TrustHLT/LaCour huggingface dataset:
AP2 (Applicant): This is all the more true, considering that, as the government conceded, the young residents was built in full conformity with the prescriptions of the building permit and that no violation of the law by the applicants was ever found.
AP2 (Applicant): As in the case Ivanova and Cherkessov v Bulgaria of 2016, the applicants were deprived of a proper judicial examination of proportionality of the intended demolition of their home, including, for instance, the existence of less severe measures.
AP2 (Applicant): Moreover, they received no compensation for the loss of their homes, personal belongings, nor is there any real prospect of this happening in the future.
AP2 (Applicant): Turning very briefly to question number two, the applicants claim that the use of yellow tape by the police to prevent them having access to their homes amounted to a breach of a presumption of innocence and the right to reputation.
AP2 (Applicant): The responding government contends that the use of yellow tape is a standard procedure which was not intended to identify the applicants as perpetrators of any criminal offence.
AP2 (Applicant): This is no excuse under Article 6 and Article 8 of the Convention.
AP2 (Applicant): Albeit allegedly unintended, the effect of the use of the crime scene tape and of the nationwide media coverage of the events was that of encouraging the public to consider the applicants as guilty of a criminal offence and to cause irreparable damage to their reputation.
AP2 (Applicant): It is not our proposition that the use of yellow tape would be in general prohibited under the Convention.
AP2 (Applicant): Rather, we maintain that in the specific circumstances of the present case, there was clearly no reason which could possibly justify such a procedure and that the resulting interference with the applicants' right to reputation attained the level of severity required to trigger the protection under Article 8.
AP2 (Applicant): Moreover, it should be stressed that the government has not indicated an illegal basis for the use of yellow tape and that the absence of a normative framework in this respect gives rise to possible arbitrariness.
AP2 (Applicant): With your permission, I will now give the floor to my colleague, Giulio Bonia, and reserve some further comments for the second round, also in light of any additional matter that the distinguished judges may wish to raise.
AP2 (Applicant): Thank you very much, Mr President.
Linos-Alexandre Sicilianos (JudgeP): I call now Mrs. Borgna.
AP1 (Applicant): Mr. President, distinguished members of the Court,
AP1 (Applicant): with your permission, I will use the time at my disposal to elaborate on the applicant's complaint under Article 1 of Protocol 1.
AP1 (Applicant): As my distinguished colleague just explained, the facts of the case are indeed very straightforward.
AP1 (Applicant): The applicants were abruptly, arbitrarily, and unlawfully deprived of their property.
AP1 (Applicant): In this respect, I wish to further stress a decisive point, namely that the young resident was a perfectly lawful building, contrary to what the Deputy Minister of Transport declared immediately after the issuing of the injunction order by the Court of Law.
AP1 (Applicant): The constructing company had all the necessary permits.
AP1 (Applicant): The residence was built in full conformity with the prescriptions of the building permit.
AP1 (Applicant): And the applicants themselves bought their properties in good faith and in accordance with the relevant domestic legislation.
AP1 (Applicant): Now, in a country where the problem of illegal constructions is rife and yet unabated, the demolition of a perfectly legit building, such as a young residence, is truly baffling and all the more unreasonable, considering the fierce modalities under which it was carried out.
AP1 (Applicant): That being said, the respondent government has not provided any plausible defense for the demolition of the applicant's property.
AP1 (Applicant): Mr. President, we sympathize with the representatives
AP1 (Applicant): of the respondent government.
AP1 (Applicant): They have been entrusted with an almost impossible task, that of providing a glimmer of legality to a chain of events which plainly stands outside any predictable, coherent, and lawful normative framework.
AP1 (Applicant): I shall divide my pleadings into the following parts.
AP1 (Applicant): First, I'm going to deal with the unlawfulness of the expropriation and the ensuing demolition of the young residence.
AP1 (Applicant): Second, I shall move on to the absence of a legitimate objective in the public interest warranting the destruction of the applicant's property.
AP1 (Applicant): Third, I shall deal with the lack of proportionality of the interference.
AP1 (Applicant): And finally, I shall make a few remarks on the applicant's claims for just satisfaction.
AP1 (Applicant): As to the first issue, it is our proposition that the interference with the applicant's property rights was not in accordance with the conditions provided for by law as required by Article 1P1.
AP1 (Applicant): Indeed, the expropriation was carried out in brazen disregard of law number 8561 of 1999 and of the Council of Ministers decision number 127 of 2000 governing expropriation procedures in Albania.
AP1 (Applicant): Notably, no application for expropriation was submitted by the municipality of Vlora.
AP1 (Applicant): No preliminary assessment was carried out by the competent ministry.
AP1 (Applicant): And no public notice of the planned expropriation was given, let alone a direct notification to the applicants.
AP1 (Applicant): Furthermore, the mandatory time limits envisaged by the law were patently disregarded.
AP1 (Applicant): Indeed, the timing of the expropriation procedure in the case at hand is alone troublesome and extremely suspicious.
AP1 (Applicant): Usually, a lawful expropriation procedure requires, at the very least, from three to six months time to be fully accomplished.
AP1 (Applicant): In our case, it lasted only three days.
AP1 (Applicant): These minimum procedural safeguards had been put in place by the domestic legislation precisely to prevent arbitrary deprivation of property.
AP1 (Applicant): Yet, they were blatantly obliterated by the Albanian authorities in this case.
AP1 (Applicant): As laid down by the court in a number of cases, for instance, in Capital Bank versus Bulgaria of 2005 and in Bekany versus Hungary of 2015, any interference with property rights, and I quote, must be accompanied by procedural guarantees affording to the individual or entity concerned a reasonable opportunity of presenting their case to the relevant authorities for the purpose of effectively challenging the measures complained of, end of quote.
AP1 (Applicant): In the instant case, the overt disregard of the procedural safeguards provided for by domestic law and the flagrant obliteration of an enforceable judicial injunction were precisely intended to prevent the applicants from effectively challenging the expropriation procedure and the ensuing demolition of the building.
AP1 (Applicant): Under the court's well-established case law, the fact that the expropriation was not carried out in compliance with the conditions provided for by law would make it unnecessary to ascertain whether or not a fair balance was struck.
AP1 (Applicant): Nevertheless, the applicants contend that the expropriation of the young residents did not pursue a genuine and compelling public interest, let alone one justifying the overnight destruction of their property.
AP1 (Applicant): In fact, the aim supposedly underlying the decision to expropriate and demolish the young residents is all but clear due to the ever-changing and contradictory positions of the Albanian authorities.
AP1 (Applicant): Initially, it was purposes of environmental rehabilitation of the coastline.
AP1 (Applicant): Then it became purposes of public leisure and tourism.
AP1 (Applicant): In its written pleadings, the government argued that the interference was aimed at, I quote, recovery and reconstruction of the marine front of the city.
AP1 (Applicant): Be that as it may, there is nothing in the available material or in the government's submissions to substantiate that any of these alleged aims existed at the time of the expropriation.
AP1 (Applicant): It is quite the opposite.
AP1 (Applicant): It is undisputable that no requalification project had been adopted or even envisaged at that time in relation to that specific portion of coastline.
AP1 (Applicant): The Vlora waterfront remained for several years a mere preposition and certainly did not reflect any pressing social need.
AP1 (Applicant): This is compounded by the fact that no lawful building other than the young residents has yet been demolished in the surrounding area.
AP1 (Applicant): It is true that other buildings along the extensive Vlora coastline have been demolished.
AP1 (Applicant): What the government, however, failed to mention is that those buildings were illegal, whereas the young residents was built in full compliance with domestic laws, permits, and regulations.
AP1 (Applicant): At the end of the day, the truth is that the authorities intended to target precisely the applicants building and that building alone by means of an unlawful, arbitrary, and discriminatory expropriation.
AP1 (Applicant): The dynamics of the events leading to the demolition of the young residents suggest that this was a premeditated act driven solely by reasons of political propaganda.
AP1 (Applicant): In this respect, it is also worth recalling that this court has recently stated in Volchkova and Mironov versus Russia of 2017 that the criteria relating to the public interest cannot, and I quote, be taken as a carte blanche for recourse to expropriation measures irrespective of their context, end of quote.
AP1 (Applicant): With this in mind, I will now turn to the requirement of proportionality.
AP1 (Applicant): The following three factors should be borne in mind by this court when assessing whether a fair balance has been struck.
AP1 (Applicant): Firstly, Mr. President, considering
AP1 (Applicant): that the building permit was issued in 2010, we are left to wonder what could possibly have changed in the turn of just a few years to justify an extreme measure such as the expropriation and immediate demolition of the young residents.
AP1 (Applicant): The competent authorities should have exercised preventive control of construction to evaluate possible opposing interests well before issuing legitimate building permits, not arbitrarily change their mind immediately after the building was finished.
AP1 (Applicant): This reason alone makes a demolition of the young residents an extreme measure, which falls foul of the principle of proportionality.
AP1 (Applicant): Secondly, the government has failed to show that the legitimate aim relied upon could not be fulfilled by measures less drastic than the hasty expropriation and demolition of the building.
AP1 (Applicant): Thirdly, the disproportionate nature of the interference is corroborated by the fact that the applicants have not yet been paid any compensation for the unlawful demolition of their property.
AP1 (Applicant): The bulk of this argument is eloquently summarized in the court's question on whether the authorities' failure to pay the applicants after three years of the demolition amounted in itself to an interference with their property rights.
AP1 (Applicant): In this respect, the court has repeatedly stated, for instance, in Jan and others versus Germany of 2005, the compensation terms, I quote, are material to the assessment whether the contested measure respects the requisite fair balance, end of quote.
AP1 (Applicant): In the instant case, the applicants have not received any compensation over the last four years.
AP1 (Applicant): Moreover, not only has the Council of Ministers already unilaterally lowered the amount of compensation awarded by the domestic jurisdictions, but it persistently refuses to make any payment to the applicants in accordance with its own decisions.
AP1 (Applicant): In its questions for the hearing, the courts rightly asked why the authorities have not yet paid any compensation to the applicants.
AP1 (Applicant): This question, we believe, is one which still has to be answered by the responding government.
AP1 (Applicant): It is perhaps superfluous to stress that the stay in the execution of the appeal judgment ordered on 15 January 2015 by the Supreme Court upon request of the government itself has nothing to do with the 2014 decision of the Council of Minister on Compensation, which is still fully enforced and yet, for unspecified reasons, remains unexecuted.
AP1 (Applicant): Finally, the court asked the parties whether, and I quote, the compensation as awarded by the authorities in 2013 as amended in 2014 was proportionate.
AP1 (Applicant): This brings me to the last part of my pleadings, as the answer to this question is deeply intertwined with the applicants' claims for just satisfaction under Article 41.
AP1 (Applicant): The responding government forbore, in its written and oral submissions, from providing a response to this question.
AP1 (Applicant): The court has already made clear, for instance, in Guiso-Gallizai versus Italy of 2009, that the unlawfulness of a dispossession, I quote, inevitably affects the criteria to be used for determining the reparation owed by the responding government, since the pecuniary consequences of a lawful taking cannot be assimilated to those of an unlawful dispossession, end of quote.
AP1 (Applicant): Now, given that in the instant case, restituzione integrum is impossible for obvious reasons, the applicants are entitled to a compensation corresponding, at the very least, to the full market value of the property at the date of expropriation.
AP1 (Applicant): In this respect, apart from the fact that not a single euro has yet been paid, the amount awarded by the Council of Ministers in 2014 is visibly disproportionate and inadequate to sufficiently mitigate the prejudicial consequences for the loss of the applicant's property.
AP1 (Applicant): Per quota, this amount is approximately 2 thirds less than the amount for which the applicants purchased their flats, let alone the value of their property at the time of expropriation.
AP1 (Applicant): The only admissible and reasonable criteria for calculating pecuniary damages is that of the full market value of the premises at the time of the unlawful expropriation.
AP1 (Applicant): In this respect, we wish to stress that given the particular circumstances of the case and the evidence submitted in the course of the proceedings, including the independent expert report attached to our observations of 3 May 2017, the question concerning the determination of the pecuniary damages to be awarded to the applicants under Article 41 is fully ready for decision.
AP1 (Applicant): And it is so on the basis of objective criteria, such as the extension of the expropriated property, the applicable inflation and interest rates, the market value of such property at the time of expropriation, and the additional interest accrued on loans, objective criteria that the government did not contend.
AP1 (Applicant): In addition, the court shall also award pecuniary damages for the loss of opportunities ensuing from the seizure and demolition of the property, as well as non-pecuniary damages for the severe moral suffering endured by the applicants as a consequence of the authorities' actions.
AP1 (Applicant): Thank you very much, Mr. President.
Linos-Alexandre Sicilianos (JudgeP): Thank you very much for your submissions.
Linos-Alexandre Sicilianos (JudgeP): Judge Eicke, you have the floor.
Tim Eicke (Judge): I have four questions, some of which come with sub-questions.
Tim Eicke (Judge): The first is one of factual clarification.
Tim Eicke (Judge): In the respondent government submissions in paragraph 38, it is suggested that an appeal against decision 59 of the administrative court of Laura of the 28th of January 2014 is still pending before the Supreme Court.
Tim Eicke (Judge): Can I just clarify, is my understanding right that in fact what is pending before the Supreme Court is only an appeal against the decision 269 of 2014 of the administrative court concerning the, and I quote, gross procedural violation, close quote, in the calculation of the compensation for the expropriation by the Council of Ministers?
Tim Eicke (Judge): Secondly, is it right that the appeal against decision 59 of 2014, declaring that the actions carried out by the state in November 2013 were illegal, was finally determined by a judgment of the administrative court of appeal of May 2016?
Tim Eicke (Judge): Or in the alternative, did the government appeal against that judgment?
Tim Eicke (Judge): And if so, what is the status of that appeal?
Tim Eicke (Judge): And if it is appealed, why was neither of these two appeals, i.e. that to the administrative court of appeal,
Tim Eicke (Judge): nor that to a Supreme Court, if there is one, mentioned by the government in their submissions to this court?
Tim Eicke (Judge): The second question is one of clarification in relation to Albanian law.
Tim Eicke (Judge): And my question is this.
Tim Eicke (Judge): Does the Albanian law or legislation provide for an effective measure, administrative or other, against the refusal by any party, including an administrative authority, to obey a court order?
Tim Eicke (Judge): For example, akin to the concept of contempt of court proceedings available in common law jurisdictions.
Tim Eicke (Judge): And if so, have any steps been taken against those responsible for noncompliance with the interim injunction first issued in November 2013?
Tim Eicke (Judge): The third question relates to the events of the 3rd of November 2013, and is primarily directed at the government.
Tim Eicke (Judge): The question is this.
Tim Eicke (Judge): I understand that the purpose of the administrative action, as you call it in your pleadings of that day, was to check the regularity of the building permits.
Tim Eicke (Judge): Now, is it normal practice, and if so, is it provided by law, that in order to check the regularity of a building permit, the building needs to be surrounded by crime scene tape, the administrative authority needs to be supported by police in order to carry out such a check?
Tim Eicke (Judge): And if so, why would you say or would you say that that is proportionate in the circumstances of this case?
Tim Eicke (Judge): And finally, again to the government, out of fairness, I probably have to ask you this.
Tim Eicke (Judge): As you will know, Article 38 of the Convention and Articles 44A and 44C of the rules of court reflect some of the basic requirements for the conduct of a party before a court of law, including this court.
Tim Eicke (Judge): These include the duty to cooperate fully in the conduct of the proceedings, the duty to adduce relevant evidence or information, not only when requested, but of its own motion, and the obligation on the member states to furnish all necessary facilities to enable this court to examine the case fully and properly.
Tim Eicke (Judge): The rules of court make clear, at the very least, noncompliance with these requirements allows this court to draw such inferences as it deems inappropriate.
Tim Eicke (Judge): Now, I noted in preparing for this hearing and during the oral submissions and the applicants positively assert that the government's submissions, in part, provided an incomplete picture of the factual circumstances of this case, and in particular, the domestic proceedings, and in part, so to say, were deliberately misleading, such as in relation to the outright denial, which you make in paragraphs 50 and 51 of your first written pleadings, that decision one of 2013 had, in fact, been appealed, and as we understand it, on a field being confirmed, only for the applicants to produce both the appeal filed, document 26, and the judgment of the Administrative Appeal Court of 2014 in relation to that appeal, document 28.
Tim Eicke (Judge): If this court were minded to consider whether the government has failed to comply with the obligations I identified at the beginning of this question, and whether, and if so, what inferences to draw from such noncompliance, what submissions not already made would you wish this court to take into account before drawing such inferences?
Linos-Alexandre Sicilianos (JudgeP): Judge Bianku.
Ledi Bianku (Judge): I have three questions to the government, and then, with your permission, one to the applicants' representatives.
Ledi Bianku (Judge): The first question, talking of the Supreme Court of Appeal, you assert that the applicants had access to the domestic courts and that their complaints were met, or at least examined, within reasonable time.
Ledi Bianku (Judge): How do you explain what appears to be a complete inactivity of the Supreme Court since its order suspending the execution of Judgment 269, 2014, of 15 January, 2015, more than two years ago?
Ledi Bianku (Judge): You assert the complexity of the issues and a necessity to call different experts.
Ledi Bianku (Judge): How can that justify complete inactivity for more than two years, where there is no even any evidence of the court having ordered, instructed any experts so far, and where it took the Administrative Court of Appeal seven months to consider and decide the appeal against Judgment 3916-2014, despite the fact that it concerned the same issue and also, at least potentially, required the calling of different experts?
Ledi Bianku (Judge): Second question, as I understand it, Article 142, paragraph 3 of the Albanian Constitution provides that, I quote, state organs must execute judicial decision, end of quote.
Ledi Bianku (Judge): Would it be correct, therefore, for me to start from the position that, as a matter of national law, an interim order is binding on all state institutions, including the Council of Ministers?
Ledi Bianku (Judge): You are asking us to conclude that an interim decision, 1 slash 2013, was taken, I quote, in open violation of the law and practice of the Supreme Court and the Constitutional Court, and turns out to be fictitious, end of quote.
Ledi Bianku (Judge): On what basis do you say this court, as an international court and compliant with the principle of subsidiarity, is competent to reach such a conclusion, essentially, of domestic law?
Ledi Bianku (Judge): In any event, did you raise this submission in the appeal against that decision to the Administrative Appeals Court or the Supreme Court?
Ledi Bianku (Judge): Is it right, as the applicants suggest, that the government's appeal against the interim measure was discontinued by the Administrative Appeals Court in its decision of 20 January 2014 because the subject matter of the dispute had become academic, but that that court expressly confirmed the competence of the First Instance Court to have made the interim order and indicated its view that the breach of that order was unlawful?
Ledi Bianku (Judge): Third question.
Ledi Bianku (Judge): Can a decision by the Council of Ministers, de facto, amend a court decision in the Albanian legal system?
Ledi Bianku (Judge): If not, could you explain what the legal impact of the Council of Ministers' decision of 9 April 2014 is on the merits of the lower Administrative Court decision of 6 March 2014, as far as the compensation amount is concerned?
Ledi Bianku (Judge): And the final question to the applicants.
Ledi Bianku (Judge): On the yellow tape, what is your case before this court today?
Ledi Bianku (Judge): Are you dropping Article 6.2 claim,
Ledi Bianku (Judge): and are you pleading the yellow tape issue only under Article 8?
Ledi Bianku (Judge): So, reputation limp, could you please elaborate on this point?
Linos-Alexandre Sicilianos (JudgeP): Thank you very much. Other colleagues? Judge Pardalos, please.
Kristina Pardalos (Judge): Thank you. I would like to ask the government just to clarify in a more detailed manner
Kristina Pardalos (Judge): which were the measures taken against the police official that surrounded the building with the yellow tape.