MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1294/H46-1

22 September 2017

1294th meeting, 19-21 September 2017 (DH) Human rights   H46-1 Manushaqe Puto and Others group (Application No. 604/07) and Driza group (Application No. 33771/02) v. Albania Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2017)807, CM/ResDH(2013)115, CM/Del/Dec(2016)1259/H46-1

 

 

Application	Case	Judgment of	Final on	Indicator for the classification
MANUSHAQE PUTO AND OTHERS GROUP
604/07+	MANUSHAQE PUTO AND OTHERS	31/07/2012 04/11/2014	17/12/2012 23/03/2015	Pilot judgment
25408/06+	KARAGJOZI AND OTHERS	08/04/2014	08/04/2014
30601/08	LULI	15/09/2015	15/09/2015
30264/08+	METALLA AND OTHERS	16/07/2015	16/07/2015
25038/08+	SHARRA AND OTHERS	10/11/2015	10/11/2015
33148/11+	ALIÇKA AND OTHERS	07/04/2016	07/04/2016
32382/11	KARAGJOZI AND OTHERS	07/04/2016	07/04/2016
33839/11	HALIMI AND OTHERS	07/04/2016	07/04/2016
5207/10+	RISTA AND OTHERS	17/03/2016	17/03/2016
12878/10+	QERIMI AND CANAJ	08/09/2016	08/09/2016
DRIZA GROUP
33771/02	DRIZA	13/11/2007	02/06/2008	Complex problem
7352/03	BESHIRI AND OTHERS	22/08/2006	12/02/2007
6397/04	BUSHATI AND OTHERS	08/12/2009 14/02/2012	08/03/2010 14/05/2012
10810/05	CAUSH DRIZA	15/03/2011	15/06/2011
49106/06	DELVINA	08/03/2011 21/05/2013	08/06/2011 07/10/2013
16530/06	ELTARI	08/03/2011 10/06/2014	15/09/2011 10/09/2014
45264/04	HAMZARAJ No.1	03/02/2009	06/07/2009
12306/04	NURI	03/02/2009	06/07/2009
38222/02	RAMADHI AND 5 OTHERS	13/11/2007	02/06/2008
35720/04+	VRIONI AND OTHERS[1]	29/09/2009 07/12/2010	29/12/2009 11/04/2011
37295/05+	SILIQI AND OTHERS	10/03/2015	10/03/2015

Case description

These cases concern the structural problem of failure to enforce final, domestic judicial and administrative decisions relating to the right of the applicants to restitution or compensation (whether pecuniary or in kind) for property nationalised under the Communist regime (violations of Article 6 § 1 and Article 1 of Protocol No. 1) and the lack of an effective remedy in this respect (violations of Article 13). In view of the scale of the problem, the European Court delivered a pilot judgment in the Manushaqe Puto and Others case (final on 17 December 2012) in which it requested the setting-up of an effective compensation mechanism within 18 months, namely by 17 June 2014.

Other violations were also found in this group of cases: bailiffs’ failure to secure enforcement of a Supreme Court decision, which recognised the applicants’ property claim and ordered the occupiers to cease occupation of the untitled land (violations of Article 6 § 1 and of Article 1 of Protocol No. 1 in Bushati); lack of legal certainty and lack of impartiality of the Supreme Court (violations of Article 6 § 1 in Driza).

Status of execution

Individual measures: All individual measures have been adopted in the cases of Driza, Beshiri and Others, Bushati and Others, Hamzaraj (No. 1), Nuri, Ramadhi and five Others, Vrioni and Others, Çaush Driza, Siliqi and Others, Metalla and Others, Halimi and Others and Karagjozi and Others. The just satisfaction awarded by the European Court was paid in the case of Manushaqe Puto and Others; however, the default interest remains outstanding. In the case of Delvina, clarifications are awaited as regards the amounts paid in respect of the just satisfaction and the default interest. Information is awaited regarding the individual measures in the other cases.

General measures:

1) Preliminary remarks: In the framework of the supervision of this group of cases, exercised since 2007, the Committee has called on the Albanian authorities on many occasions to take all necessary measures, without further delay, to implement the numerous final domestic decisions concerning the rights over property nationalised during the Communist regime.

Given the lack of substantial progress at that time, the Committee adopted an interim resolution in June 2013 (CM/ResDH(2013)115) and called on the Albanian authorities to attach the highest priority to establishing an effective compensation mechanism, taking into account the measures already identified by the Committee. In December 2013 (1186^th meeting) the Deputy Minister of Justice assured the Committee of the political will and the commitment of the newly elected government to adopt all necessary measures to set up a compensation mechanism, as required by the Manushaqe Puto pilot judgment.

Following consultations in Tirana in February 2014 between the authorities and the Department for the Execution of the Judgments of the European Court, the Albanian Council of Ministers formally adopted, on 24 April 2014, an action plan setting out a comprehensive list of measures aimed at introducing an effective compensation mechanism.

2) Introduction of a new compensation mechanism: Law No. 133 of 5 December 2015, in force since 24 February 2016, introduced a new mechanism to afford compensation for or restitution of the property at issue. Extensive consultations between the authorities and the Department for the Execution of Judgments took place during the drafting process. This process also had the support of a co-operation project designed by the Human Rights National Implementation Division of the Council of Europe together with the Department. The authorities also took account of recommendations and comments made by the Committee of Ministers during its examinations of these cases.

Law No. 133/2015 introduced a new evaluation method to determine the compensation to be awarded in respect of the properties at issue and established a Compensation Fund (a Financial Fund and a Land Fund) to ensure the necessary resources to compensate former owners. It also set requirements concerning annual allocations from the State budget to that fund, calculated to finalise the process of payment within 10 years. Binding deadlines have been set for the various stages of the procedure. Some detailed aspects of the new mechanism, such as the treatment of claims, are governed by secondary legislation. The responsibility for the implementation of the Law primarily lies with the Property Management Agency (the “Agency”).

3) Assessment of the new mechanism by the Committee of Ministers: In June 2015 (1230^th meeting) (DH), while the adoption of the Law was underway, the Committee noted in particular that the authorities had conducted a careful review of all the legal and financial implications and had estimated the overall cost of compensation in order to have a concrete basis for considering the necessary legislative changes.

In December 2015 (1243^rd meeting) (DH) the Committee noted with satisfaction the adoption of the Law, considering it as a very positive step towards putting an end to the longstanding failure to respect the obligation to compensate or restore property to former owners. The Committee encouraged the authorities to spare no efforts in providing the necessary technical and logistical infrastructure, as well as appropriate human and financial resources, to ensure that the compensation scheme was effective and expeditious, and that all deadlines and commitments were respected.

In June 2016 (1259^th meeting) (DH) the Committee welcomed the progress in the adoption of the secondary legislation for the implementation of the new Law and the establishment of a high-level domestic periodic monitoring mechanism. Given the importance of bringing a definitive solution to the longstanding problem revealed in these judgments, the Committee encouraged the authorities to continue to deploy all efforts necessary for the effective functioning of the compensation mechanism. It also invited them to keep it regularly informed about the progress achieved in its implementation, particularly as regards the adoption of the remaining secondary legislation, the concrete results noted in the process of treatment of applications and the first results of the periodic monitoring.

4) Assessment of the new mechanism by the Albanian Constitutional Court: The Constitutional Court examined certain questions related to the constitutionality of the new Law[2] in a ruling delivered on 16 January 2017. It notably found that, although the new evaluation method might lead to lower compensation in comparison to that provided for in previous legislation, it was compatible with Article 1, Protocol No. 1. Only two provisions relating to some details of this method were found to lack sufficient clarity and were repealed. In its assessment, the Constitutional Court relied on an amicus curiae brief^[3] from the Council of Europe’s Venice Commission, adopted its 108th Plenary Session (Venice, 14-15 October 2016).

The authorities confirmed their intention to conduct a thorough analysis of this decision and to act upon its findings if need be, taking into account the Convention requirements and those set by the Constitutional Court (see DH-DD(2017)807).

5) Implementation of the new mechanism: In response to the Committee’s decision adopted in June 2016, the authorities submitted detailed information in a revised action plan 7 July /2017 (DH-DD(2017)807), which can be summarised as follows:

a) Adoption of the relevant secondary legislation: The Council of Ministers has enacted the remaining outstanding secondary legislation. One by-law set up an inter-institutional commission to identify the State property available to be transferred into the Land Fund and thus used for compensation. This commission is now fully operational. A second by-law set tariffs for some services provided by the administration during the compensation process.[4]

b) Measures to ensure the efficient functioning of the Property Management Agency: In 2016, the Prime Minister approved the new structure of this Agency, which was expanded from 90 to 169 employees. The Agency has successfully developed an IT tool to digitalise the cartographic data deriving from the final decisions on restitution or compensation and to calculate the compensation to be awarded according to the new evaluation method.

c) Allocation of resources for the efficient functioning of the mechanism: As regards the Financial Fund, the budget allocated in 2016 and 2017 for the payment of financial compensation under the general scheme[5] amounts to approximately 3.35 billion Albanian Lek (ALL). This is a reduced budget in comparison to the one earmarked under Law No. 133/2015, which amounted to 6.33 billion ALL for 2016 and 2017.

As regards the Land Fund, the authorities identified in situ the agricultural land[6] allocated to this fund by a 2008 decision of the Council of Ministers, verified its legal status and evaluated it based on the Land Value Map adopted in 2016. The total value of this land amounts to 37 billion ALL. The authorities are in the process of taking similar steps in respect of the forest and pasture land[7] allocated by a 2011 decision of the Council of Ministers, with an estimated value of 60 billion ALL.

d) Treatment of claims for restitution or compensation: The new law set a three-year time-limit from its entry into force (by 24 February 2019) for the Agency to (i) examine the claims for which no final decision had been taken, including new claims filed within 90 days of the entry into force of this law and (ii) to evaluate, according to the new method, the compensation due in respect of claims where a final decision had been made recognising  the right to compensation but without determining the amount due.

As regards the first category, which totals approximately 15,800 claims, the authorities indicated that their examination is on-going. As regards the second category, totalising 26,000 claims, the authorities indicated that the evaluation has been completed for 10,763 claims (i.e. 41%), and that the compensation due for these claims amounts to approximately 34 billion ALL.

To date, the Agency has issued 836 decisions on compensation under the general scheme, awarding approximately 3.4 million ALL. The claimants received either financial compensation from the budget allocated for 2016 and 2017, which was used in full, or in-kind compensation from the Land Fund (with 312.8 ha of agricultural land used for this purpose).

e) Results of the domestic monitoring: In April 2017, the Agency presented its activity report for 2016 to Parliament. During exchanges with members of Parliament, the Head of the Agency confirmed that the implementation of the new Law was proceeding at a steady pace. 

6) Communications under Rule 9 § 2: Since its previous examination, the Committee has received four communications from the National Association of the Forcefully Expropriated Owners (“Pronësi Me Drejtësi”) concerning the general measures. In its most recent communication (30 March 2017), this NGO expressed disagreement with the Constitutional Court’s decision of 16 January 2017, in particular with its findings on the evaluation method introduced by the new law (DH-DD(2017)508). On 29 August 2017, the Committee further received a communication from the Association “Krahina Jone”, advocating for the restitution in kind of the nationalised properties (DH-DD(2017)955).

Analysis by the Secretariat

The authorities have made sustained efforts to ensure the efficient functioning of the new compensation mechanism. All secondary legislation required for the implementation of Law No. 133/2015 has been adopted and the authorities ensured that the Property Management Agency has the human resources and logistical infrastructure found to be necessary to enable it to fulfil its mission successfully. Due to these efforts, the new mechanism is now fully operational, which should be noted with satisfaction.

In another positive development, the Constitutional Court has recently confirmed that the new mechanism is compatible with the Constitution of Albania as regards most of the points it was asked to examine. As the Constitutional Court did, however, repeal two provisions relating to the new evaluation method, it remains for the authorities to examine the consequences of this decision and, if necessary, take appropriate action to prevent any adverse impact on the functioning of the mechanism.

As regards the implementation of the new mechanism, clear progress has been made in the examination of the claims with a final decision recognising the right to compensation. In view of the still significant number of claims which are awaiting a decision halfway through the three-year time-limit set by the Law, it is nevertheless crucial that the authorities continue monitoring closely the situation so that all required steps are taken to ensure that the above time-limit is met.

As regards the process of payment of the compensation, which should be completed within 10 years of February 2016, the information provided indicates that decisions on compensation have been issued in relatively few of the cases resolved so far (836 decisions for a total of 10,763 cases). It further appears that the financial resources made available in 2016 and 2017 are well below the annual budget required by this Law for financial compensation. In order to preserve the effectiveness of the new mechanism and to be able to comply with the above calendar, it is essential that the authorities make available as planned all financial and land resources they had pledged in support of this mechanism.

Financing assured: YES