MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1377/H46-1

4 June 2020

1377th meeting, 4 June 2020 (DH) (written procedure) Human rights   H46-1 Luli and others group v. Albania (Application No. 64480/09) Supervision of the execution of the European Court’s judgments Reference documents CM/ResDH(2016)357, DH-DD(2018)1018, DH-DD(2020)325, CM/Del/Dec(2018)1331/H46-1

 

 

Application	Case	Judgment of	Final on	Indicator for the classification
64480/09+	LULI AND OTHERS	01/04/2014	01/07/2014	Complex problem
10508/02	GJONBOÇARI AND OTHERS	23/10/2007	31/03/2008
5250/07	BICI	03/12/2015	03/03/2016
32913/03	TOPALLAJ	21/04/2016	21/07/2016

Case description

These cases concern the excessive length of proceedings before civil courts and administrative bodies (principally the former Commission on Restitution and Compensation of Properties) between 1996 and the present. The European Court criticised, in particular, the failure of the judicial system to manage properly a multiplication of proceedings before various courts on the same issue and repeated remittals of cases back to lower levels of jurisdiction (violations of Article 6 § 1). The issue of the length of criminal proceedings raised by the case of Kaciu and Kottori (33192/07) is also followed in this group.[1] Finally, the cases of Gjonbocari and Others and Topallaj concern also the lack of an effective remedy for excessive length of proceedings (violation of Article 13).[2]

Under Article 46 in the Luli and Others judgment (2014), the European Court noted that the excessive length of proceedings was becoming a serious deficiency in domestic legal proceedings in Albania and that general measures at national level were undoubtedly called for to execute the judgment, in particular the introduction of a domestic remedy.

Status of execution

The authorities submitted updated information for this group of cases most recently on 31 July 2019
(DH-DD(2019)852), 8 April 2020 (DH-DD(2020)325) and 27 April 2020 (DH-DD(2020)372).

In a submission of 20 April 2020, the European Centre Foundation provided information concerning the general measures and the authorities replied on 6 May 2020 (DH-DD(2020)388-rev).

Individual measures:

The applicants were awarded just satisfaction for non-pecuniary damage by the European Court, which has been paid in all cases. One of the sets of domestic proceedings referred to in the Luli and Others judgment is still pending before the appeal court, and two of the administrative decisions adopted for the execution of the domestic court decision in the Gjonbocari and Others case are subject to judicial review and pending before the Supreme Court.

On 27 April 2020 the authorities brought to the domestic court's attention the long delay accumulated so far in the Gjonbocari and Others case and the need to consider the case with priority. The domestic proceedings in the Bici and Topallaj cases had ended before the adoption of the European Court’s judgments.

General measures:

1) Preliminary remarks:

The excessive length of proceedings before administrative bodies and the issue of the non-enforcement of a final court decision (at stake in the Gjonbocari and Others case) were related mainly to the deficient functioning of the mechanism for restitution and compensation of properties nationalised during the communist regime. The supervision of this issue was closed by the Committee at its 1324^th meeting (September 2018) (DH), on the basis of substantial progress made with the new domestic compensation mechanism (see Final Resolution CM/ResDH(2018)349 adopted in the Manushaqe Puto group of cases).[3]

2) Last examination by the Committee of Ministers:

At its last examination of these cases (1331^st meeting (December 2018) (DH)), the Committee welcomed the continuing efforts of the authorities to reduce delays in judicial proceedings but noted with concern that some of the domestic courts were faced with excessive workload. It encouraged the authorities to rapidly adopt measures to ensure the replacement of judges who had been dismissed or had resigned as a result of the ongoing vetting process. It also invited them to provide information on measures addressing the problem of frequent remittals of criminal cases for re-examination. The Committee further welcomed the introduction in 2017 of the new acceleratory and compensatory remedy for excessively lengthy judicial proceedings and invited the authorities to provide additional information on its functioning. Information was further requested on its possible retrospective application and on the statutory limitations on awards of compensation beyond the value of the object of the lawsuit.

3) Developments in respect of excessive length of judicial proceedings:

- Legislative and administrative measures adopted since 2001: A wide range of legislative and administrative measures have been adopted by the authorities since 2001 to improve the administration of justice and reduce the length of proceedings. Those include, among others, a number of amendments to the Code of Civil Procedure and the Code of Criminal Procedure aimed to expedite civil and criminal proceedings; establishment in 2012-2013 of administrative courts and national bodies on alternative dispute resolution; new rules governing appeals to the Supreme Court allowing that court to ensure coherence of the domestic case-law and unification of judicial practice.

- Increase of the average length of proceedings as a result of the vetting of judges: Despite the above measures, the authorities report an increase of the average length of judicial proceedings and growth of the backlog of cases for the period 2017-2019. This negative trend is due tothe vetting process launched in 2017 and still ongoing whereby the credentials of judges at all levels have been verified.[4]

As a result, 60% of the vetted magistrates were either dismissed or they resigned,[5] including judges at the Supreme Court and the Constitutional Court (these two courts had until recently only one judge each). The Supreme Court currently has a backlog of nearly 35,000 cases, with part of it accumulated from May 2019 to March 2020, when it was unable to form a judicial formation to adjudicate cases.

The authorities underline the extraordinary nature of this situation; that it will have only short-term effects and consider that it cannot be attributed to inadequate actions or inactions on their part. The European Commission, which monitors the judges’ vetting process in Albania, underlines that this process is a part of transitional measures required for reform of the judiciary, which has been advancing steadily and delivered substantial results, under the independent oversight of international monitoring.[6]

- Replacement of judges: The Albanian authorities have taken measures to replace the dismissed judges or the judges who resigned. The new candidates are also obliged to pass the vetting procedures. Sixteen judges and prosecutors have been newly appointed at different judicial districts and procedures for promotion of judges to the specialised courts on corruption and organised crime have been opened. The School of Magistrates intends to recruit at least 75 new magistrates.

The newly composed Supreme Court is now able to adjudicate cases in judicial formations of three judges (required in the majority of cases before it) as a result of three new judicial appointments in March 2020. An appointment procedure for six other judges to the Supreme Court is underway to continue completing the composition of that court, to be composed of 19 judges in total. In April 2020 the Supreme Court organised its judicial formations and defined the criteria for treatment of priority cases.[7]

A special body for selection of new Constitutional Court judges- the Justice Appointments Council - was set up and rules of procedure for its functioning were adopted. That body examined applications of 22 candidates and proposed the appointment of three new judges. The new judges were appointed in November 2019. The Constitutional Court has currently 4 judges which allows it to adjudicate on the admissibility of cases (six members sitting in plenary are required for the court to be fully functional). The appointment of members of the Constitutional Court in Albania is currently under assessment by the European Commission for Democracy through Law (Venice Commission).[8]

- Re-distribution of judges to the busiest courts: To reduce the impact of the vetting process on the courts’ operation, the authorities as a matter of priority are implementing a re-distribution plan for judges and prosecutors to respond to the shortage created in the busiest courts and prosecution offices. The Albanian High Judicial Council monitors and evaluates reports on the court activities submitted by the presidents of these courts on a monthly basis.

- Action plan on reducing the backlog of the Supreme Court: In December 2019 an ad hoc committee was set up upon the High Judicial Council’s initiative to propose an action plan to reduce the backlog and increase the efficiency of the Supreme Court. It has already proposed concrete actions in a memorandum.

- Reorganisation of the court system: The High Judicial Council decided to review the country’s judicial map, and an inter-institutional working group was set up for that purpose with the participation of the Council of Europe and the European Union. The number of courts is to be reduced to maximise human and financial resources and improve efficiency and access to justice.

- Frequent remittals of cases in criminal proceedings: Progress has been reported with the frequent referral of cases from higher to lower courts in criminal proceedings. As a result of the new rules on appeals to the Supreme Court, the number of remittals for retrial in the criminal cases has significantly dropped (for the year 2018, out of 535 cases reviewed by the Criminal College of the Supreme Court, only 10 were returned for retrial).

The authorities consider that all necessary measures in respect of ensuring expedient criminal proceedings have been adopted. They nevertheless pledge to provide the Committee with statistical information on this issue in the future.

- The European Centre’s submission of 20 April 2020: The European Centre noted that the backlog of cases was excessive not only at the Supreme Court but also at almost all first instance and appeal courts (especially the Tirana Court of Appeal, the administrative courts and the Administrative Court of Appeal). Although measures are being taken for reducing the Supreme Court’s backlog, it will be difficult to implement them due to the suspension of all judicial activity in the country during the COVID-19 pandemic (see DH-DD(2020)388-rev).

4) Developments in respect of the acceleratory and compensatory remedy:

- Functioning and efficiency of the remedy: Since November 2017, a new acceleratory and compensatory remedy for excessive length of judicial proceedings has been functioning in Albania. It applies to proceedings before all criminal, civil and administrative courts, criminal investigations and enforcement proceedings. It does not apply to proceedings before administrative bodies, in respect of which the authorities consider there are sufficient legislative and judicial review guarantees. The requests for compensation or acceleration are filed with the ordinary courts or the Constitutional Court, depending on the jurisdiction.

The authorities report an increase in the past two years of the use of the remedy but acknowledge that the number of filed requests continues to be low. The statistics show that only a small number of the filed requests have been accepted by the courts (for example, for 2019, out of 40 requests filed with the Supreme Court, 1 was accepted, 13 were dismissed and 26 are still pending; out of 93 requests filed with the district and appellate courts, 19 were accepted).

- Limitation of the possibility to award compensation beyond the value of the object of the lawsuit: The compensation can vary from ALL 50,000 (EUR 399) to ALL 100,000 (EUR 799) for each year of delay but cannot exceed the value of the object of the lawsuit/ enforcement. The authorities state that the latter restriction aims at preventing persons from benefiting more from the excessive length of proceedings than from the alleged right. No domestic courts’ interpretation on this matter has been reported yet.

- Redress for delays predating the introduction of the remedy: The law does not provide for a retrospective operation of the compensatory remedy for delays predating its introduction. The authorities note that it is for the domestic courts to provide interpretation of its possible retrospective operation. They point out that the remedy was considered applicable to pending enforcement proceedings regardless of when they have been initiated, referring to a judgment in which the domestic court held that compensation for lengthy enforcement proceedings is to be calculated from the moment of entitlement to enforcement. In this case, the court awarded compensation also for a period predating the introduction of the remedy.

- The European Centre’s submission of 20 April 2020: the European Centre noted the need for an awareness-raising campaign for all parties involved in implementation of the remedy, as well as training and capacity building for judges. In reply, the Government noted that the School of Magistrates had already included in the training for judges, prosecutors and state attorneys’ courses on relevant jurisprudence of the European Court and the Constitutional Court and on implementation of the provisions on excessive length of proceedings and compensation. They referred to the respective courses included in the current academic year ((DH-DD(2020)388-rev).

Analysis by the Secretariat

As to the individual measures

The Committee may wish to invite the authorities to bring to the domestic courts’ attention the need for dealing with the pending proceedings in the cases of Luli and Others with expediency, similarly to the measure already taken in the Gjonbocari and Others case, and to keep it informed about the developments. No further individual measures appear necessary in the Bici and Topallaj cases and the Committee may wish to close its supervision of those cases (a draft final resolution is appended).

As to the general measures

a)     Excessive length of proceedings

As a part of a broad reform of the justice system, a wide range of legislative and practical measures have been adopted to reduce delays in judicial proceedings. Progress has also been made in reducing significantly the number of cases referred from higher to lower courts in criminal proceedings. The authorities may be encouraged to further consolidate judicial practice in respect of such referrals.

However, the average length of judicial proceedings and backlog of cases has increased in the past three years. It is largely due to lack of judges and a number of vacant judicial posts, which is a result of the ongoing reorganisation of the judiciary, vetting of judges and a number of judges dismissed or resigned. The authorities have taken a number of measures to fill out the vacant judicial posts, including at the Supreme Court and the Constitutional Court, and are actively working on the country’s judicial reorganisation and on finding solutions for the Supreme Court’s backlog. Nevertheless, the Supreme Court and the Constitutional Court are currently functioning with only four judges each and the Constitutional Court is able to examine only admissibility issues.

The Committee might wish to encourage the authorities to resolve this situation without further delay. While it is encouraging that the Supreme Court is now able to adjudicate cases in the judicial formations required for the majority of cases before it, its significant backlog is of particular concern. Thus, further steps for judicial appointments at these two courts and for reducing the backlog of cases at the Supreme Court are called for to ensure their proper functioning. The authorities should also be encouraged to step up their cooperation with the Venice Commission on the issue of appointment of Constitutional Court judges.

b)     Effective domestic remedies

The general acceleratory and compensatory remedy for excessively long judicial proceedings and for enforcement proceedings, operational since November 2017, has begun to be used more often. Nevertheless, the number of requests filed with the courts is still low and the accepted requests are few. Information on the grounds for their dismissal appears to be necessary. The authorities could be also requested to provide information on adopted and envisaged measures for raising the awareness of the general public about the existence and modalities of the remedy.

Moreover, there is still lack of clarity as to how the provision limiting the possibility for the courts to award compensation beyond the value of the object of the lawsuit will be applied in practice. The Committee may wish to invite the authorities to inform it as to whether this provision require further amendments to be fully operational and Convention-compliant. Alternatively, they could provide examples of domestic case-law showing that it is applied in conformity with the Convention[9].

As regards the issue of redress for delays predating the introduction of the remedy, it appears that in one case concerning lengthy enforcement proceedings the domestic court awarded compensation for the delays predating the introduction of the remedy. This example is encouraging, and the authorities can be invited to provide further examples of judicial practice to demonstrate that this approach is consolidating in the domestic judicial practice. Given the importance of the interpretation by domestic courts of the provisions regulating the remedy, as evidence by the above issues, the authorities may be encouraged to fully avail themselves of the expertise of the Council of Europe in providing specific training to the competent courts on the application of the domestic remedy and the requirements of the European Court’s case-law in this connection.

Financing assured: YES