Bara and Kola v. Albania (European Court of Human Rights)

Information Note on the Court’s case-law 255
October 2021

Bara and Kola v. Albania – 43391/18 and 17766/19

Judgment 12.10.2021 [Section III]

Article 13
Effective remedy

New length-of-proceedings remedy, albeit effective in principle, ineffective in the instant case: violation

Article 6
Administrative proceedings
Criminal proceedings
Article 6-1
Reasonable time

Significant delays before the Supreme Court unacceptable despite the context of the far-reaching reform of the justice system: violation

Facts – In 2016 Albania introduced sweeping reforms of the entire justice system which led to amendments to the Constitution and the organisation and functioning of the highest courts in the country, such as the Supreme Court, including the manner in which its judges were to be elected by various institutions, and paved the way for the vetting of all serving judges and prosecutors. However, even prior to the institution of the vetting process, the Supreme Court had accumulated delays and a significant backlog of cases. Moreover, between May 2019 and March 2020, it lacked the required statutory quorum to take any decisions.

Further, on 5 November 2017, in response to the Court’s leading judgment in Luli and Others v. Albania, the Albanian authorities introduced a new acceleratory/preventive and compensatory remedy in the Code of Civil Procedure (“CCP”) in respect of undue length of proceedings in administrative, civil and criminal cases.

The first applicant (application no. 43391/18) complained about the length of administrative proceedings he had brought challenging the fairness of academic elections to the publicly funded position of university rector and the second applicant (application no. 17766/19) about the length of criminal proceedings against him with charges of premediated murder and illegal possession of firearms. They complained, in particular, about the duration of the proceedings before the Supreme Court. The first applicant also complained that in the circumstances of his case the new remedy had not been effective within the meaning of Article 13.

Law

Article 6 § 1

(a) Applicability (application no. 43391/18) – Article 6 was applicable under its civil head. More specifically:

(i) Existence of a right – Domestic law gave candidates who fulfilled the statutory requirements specified in the relevant provisions the right to apply for the publicly funded position of university rector and provided for judicial remedies against any procedural irregularities in the academic election for that position. The first applicant who had been one of the candidates who had met the statutory eligibility requirements and possessed the necessary qualifications to run, had ranked second. The domestic courts had not dismissed his complaints against the administrative decisions on the grounds of the non-existence of a right but because there had been no irregularities in the conduct of the election. He could thus arguably claim to have a right to participate in a lawful and fair election process for this position.

(ii) Civil nature of the right – the election and subsequent appointment to this position had undoubtedly concerned the exercise of an individual’s professional career and, consequently, his or her pecuniary interests. The applicant had had access to the domestic courts to challenge the outcome of the election and the proceedings at issue had been directly decisive for his rights in so far as they could have ended in the annulment and rerunning of the election, which in turn could have led to him to being elected.

(b) Merits (applications nos. 43391/18 and 17766/19) – The proceedings in the two cases were still ongoing; to date the administrative proceedings had lasted over five years and four months and the criminal proceedings over nine years and nine months; both at three levels of jurisdiction. The length of proceedings had been unreasonable in both cases, the main delays being before the Supreme Court in the cassation appeal proceedings. Neither of the cases had been particularly complex nor had there been lack of diligence on behalf of the applicants. In view of what was at stake for the applicants, a diligent examination by the Supreme Court had been called for.

While not disregarding the understandable delay stemming from the far-reaching justice system reforms and the vetting process, the Court reaffirmed that States had a general obligation to organise their legal systems so as to ensure compliance with the requirements of Article 6 § 1, including that of a fair hearing within a reasonable time. Further, it noted that from 2012 the Supreme Court’s backlog had gradually increased and remained very significant; the Court could not accept that it was only temporary, or that, despite recent measures undertaken to reduce its backlog sufficiently prompt and comprehensive remedial action had been taken over a number of years to deal with the situation. Finally, while it was not for the Court to decide on the proper interpretation of domestic law, it considered that the Supreme Court’s approach in the first applicant’s case not to count the effects of the ongoing justice sector reforms on its functioning in the overall length of proceedings, in the circumstances, would not be consistent with its case-law under Article 6 § 1 on the “reasonable time” requirement as it might shift to individual litigants the full burden of any delays caused by justice sector reforms.

Conclusion: violation (unanimously)

Article 13 in conjunction with Article 6 § 1 (application no. 43391/18)

(a) Compliance in principle of the new remedy with the requirements of Article 13 – The CCP provided for both an accelerative/preventive and a compensatory remedy. As to the former aspect, bearing in mind the relevant domestic law and the criteria taken into account by the domestic courts for finding a breach of the “reasonable time” requirement which were those developed by the Court’s relevant case-law, the Court found that the procedure for the implementation of the acceleratory/preventive remedy would have an effect on the length of the proceedings as a whole, either by speeding up the proceedings or preventing them taking an unreasonably long time. This had been further supported by the Supreme Court’s decisions relied on by the Government that showed that the preventive remedy in question had produced results not only de jure but also de facto. In this connection, emphasising the importance of speedy proceedings in the context of such a remedy, the Court observed that these decisions had been taken promptly. At this stage, therefore, there was no reason to believe that a request for finding a breach of the “reasonable time” requirement and expedition of the proceedings would be ineffective.

The new remedy also provided for the possibility to obtain damages caused by the unjustifiable length of proceedings. A claim for compensation could be lodged within six-months of the finding of a breach of the “reasonable time” requirement and was to be examined in accordance with the usual procedural rules within three months of being lodged. If allowed, the competent court would grant an award having regard to the criteria as developed in the Court’s case-law. Taking note of the domestic courts’ decisions regarding the remedy’s compensatory aspect, the Court noted the following concerning its effectiveness: the procedural rules governing the examination of a claim for compensation had to conform to the principle of fairness enshrined in Article 6; individuals should, in principle, be able to raise claims regarding the entire length of proceedings up to that point, no matter how many levels of jurisdiction; the proceedings had to be conducted promptly, and thus consideration might be given to subjecting examination of such claims to different rules from those governing ordinary damages claims; the importance of ensuring the prompt enforcement of the compensation awards. Lastly, the Court considered that the amounts awarded in compensation to date had not been such as to enable it to determine that they were unreasonable. It had previously accepted that a State which had introduced a number of remedies, one of which was designed to expedite proceedings and one to afford compensation, might award amounts which, although lower than those awarded by the Court, had not been unreasonable, on condition that the relevant decisions, which must be consonant with the legal tradition and the standard of living in the country concerned, were speedy, reasoned and executed very quickly.

That being said, at this stage, there was no reason to believe that the compensatory aspect of the remedy did not afford a claimant the opportunity to obtain adequate and sufficient compensation for his or her grievances or that it would not offer reasonable prospects of success. In addition, it was closer, more accessible and faster than an application to the Court and was processed in the applicant’s own language.

In the light of the foregoing considerations, the new remedy was effective in that it could both prevent the continuation of the alleged violation of the individual’s right to have his or her case heard without any excessive delay and provide appropriate redress for violations which had already occurred. Accordingly, in principle it fulfilled the respondent State’s obligation to provide effective remedies in respect of alleged violations of an individual’s rights under the Convention and it had to be therefore used by individuals claiming a breach of the right to a hearing within a reasonable time

(b) Effectiveness of the remedy in the present case – Although the applicant, following the entry into force of the acceleratory/preventive remedy, had lodged a request for the expedition of his cassation appeal proceedings, this had gone unanswered for more than three years and the proceedings had not been expedited but still remained pending. Consequently, the acceleratory/preventive remedy in the circumstances of his case had not served the purpose of speeding up the proceedings before the Supreme Court or preventing them from becoming unreasonably long. Lastly, in the absence of a finding of a breach of the “reasonable time” requirement, he could not seek compensation for the duration of those proceedings.

Conclusion: violation (unanimously)

Article 41: EUR 1,200 to the first applicant and EUR 2,300 to the second applicant as regards non-pecuniary damage; claim for pecuniary damage dismissed.

(See also Scordino v. Italy (no. 1) [GC], 36813/97, 29 March 2006, Legal Summary; Sürmeli v. Germany [GC], 75529/01, 8 June 2006, Legal Summary; Luli and Others v. Albania, 64480/09 et al, 1 April 2014, Legal Summary; Rutkowski and Others v. Poland, 72287/10 et al, 7 July 2015, Legal Summary)

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