CASE OF MARKU v. ALBANIA
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)
George Nicolaou;Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva
I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1931 and lives in Laç. A. Proceedings concerning the recognition of the applicant’s status as a war veteran 6. On an unspecified date in 2002 the applicant lodged an application to have his status as a (national liberation) war veteran recognised. On 15 January 2003 the Central Commission on War Veterans (“the Central Commission”), which was the body responsible for the examination of such applications, informed the applicant that it had stopped receiving applications in September 2001. 7. On an unspecified date in 2003 the applicant lodged an application for leave to appeal out of time. On 13 May 2003 the Lezha District Court allowed his application for leave to submit an application to the Central Commission out of time. 8. On 19 June 2003, following the Lezha District Court’s decision, the applicant requested the Central Commission to have his status as a (national liberation) war veteran recognised. 9. On 14 July 2003 the Central Commission informed him, by way of a letter, that, in spite of the Lezha District Court’s decision, it had ceased to operate on 30 July 2002 and could not examine his application. The applicant did not institute any judicial proceedings in response to the Central Commission’s communication. 10. On 9 December 2004 the applicant was informed by the Directorate of Information at the Council of Ministers (Drejtoria e Informacionit, Këshilli i Ministrave) that the end date for the Central Commission’s operations had been extended to 31 December 2006 (paragraph 26 below). 11. On 7 December 2005 the applicant lodged a civil action with the Tirana District Court (“the District Court”) for the legal recognition of his time and status as a (national liberation) war veteran (vërtetimin e faktit juridik të njohjes së kohës së veteranit të LANC-it...si dhe njohjen e statusit të veteranit). He relied on Article 388 of the Code of Civil Procedure (“CCP”) (paragraph 27 below), the Status of War Veterans Act (paragraph 21 below) and the Council of Ministers’ decisions no. 190 of 3 May 1995 and no. 748 of 11 November 2004 (paragraph 26 below). 12. On 1 February 2006 the District Court allowed the action. It found that from 1 March 1943 to the liberation of the country, the applicant had been a messenger for a partisan unit (korrier ... në shërbim të çetës partizane). The Tirana District Court considered just the applicant’s reliance on CMD no. 748 of 11 November 2004. It recognised the applicant’s war veteran status (vendosi...njohjen e statusit të veteranit). 13. On 14 February 2006 the Central Commission, which had intervened as a third party in the proceedings, appealed against the District Court’s decision arguing that the decision had been taken contrary to the law. 14. On 1 February 2007, the Tirana Court of Appeal upheld that decision. It found that, in so far as the Central Commission did not challenge the accuracy of the evidence examined by the District Court, its decision was considered just and given in accordance with the law (...meqenëse për provat e paraqitura personi i tretë nuk ka pretendime, Gjykata e Apelit çmon se vendimi i Gjykatës së Rrethit Tiranë është i drejtë dhe i bazuar dhe si i tillë duhet të lihet në fuqi). On 12 March 2007, following a request by the applicant, an enforcement writ was issued. 15. On 13 April 2007 a bailiff requested the Central Commission to voluntary comply with the court’s decision. 16. On 26 September 2007 the bailiff’s office decided to conclude the enforcement proceedings (pushimin e ekzekutimit) on the grounds that the judgment was of a declaratory nature, was not directed against a debtor and that no rights or obligations had arisen therefrom. The court decision had been transmitted to the Central Commission for further action. 17. Following requests by the applicant to the authorities, on 2 and 13 July 2007 and 4 March 2008 the Ministry of Defence informed him that the Central Commission had ceased to exist on 31 December 2006. Despite efforts to extend its operations into 2007, no legislation had been subsequently adopted to enable it to continue. B. Proceedings concerning the payment of financial entitlements on account of the applicant’s war veteran status 18. On 5 March 2008 the applicant lodged a civil claim requesting the Central Commission to pay him the financial entitlements he was eligible to under domestic law on account of his status as a war veteran. 19. On 23 October 2008 the Tirana District Court dismissed the claim. It held that the decision of 14 February 2006, as upheld on appeal on 1 February 2007, recognised the existence of a legal fact on the basis of Article 388 of the CCP and was of a declaratory nature. An interested party could institute proceedings for the recognition of the existence of a legal fact; however, the authority competent for recognising a person’s war veteran status was the Central Commission. That entity had never examined an application made by the applicant, who had never been recognised as having war veteran status. When a decision by the Central Commission was taken, it was amenable to appeal before the national courts. The Central Commission’s powers had not been transferred to any other authority. 20. Appeals lodged by the applicant with the Tirana Court of Appeal, Supreme Court and Constitutional Court were dismissed on 8 December 2009, and 10 February and 18 May 2012 respectively.