THIRD SECTION
CASE OF LAÇI v. ALBANIA
(Application no. 28142/17)
 
 
JUDGMENT
 
Art 6 § 1 (civil) • Domestic court’s continuing failure to assess eligibility for exemption from stamp duty, impairing very essence of right of access to court • Shortcomings in functioning of the State Commission for Legal Aid and a prevailing reluctance of judges to award exemptions, as noted by Council of Europe monitoring bodies
 
STRASBOURG
19 October 2021
 
FINAL
 
19/01/2022
 
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Laçi v. Albania,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
 Georges Ravarani, President,
 Georgios A. Serghides,
 María Elósegui,
 Darian Pavli,
 Anja Seibert-Fohr,
 Peeter Roosma,
 Frédéric Krenc, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no. 28142/17) against the Republic of Albania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Albanian national, Mr Mustafa Laçi (“the applicant”), on 3 April 2017;
the decision to give notice of the application to the Albanian Government (“the Government”);
the parties’ observations;
Having deliberated in private on 28 September 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns the domestic courts’ continuing failure to examine the applicant’s eligibility for exemption from stamp duty, as a result of which the examination of his claim for damages on the merits has not yet started, thus constituting a restriction of his right of access to a court. THE FACTS
2. The applicant was born in 1968 and lives in Kavaje. He was represented by Mr D. Matlija and Mr. T. Alexandridis, lawyers practising in Tirana. 3. The Government were represented by their then Agent, Ms E. Muçaj and, subsequently, by Ms B. Lilo of the State Advocate’s Office. 4. The facts of the case, as submitted by the parties, may be summarised as follows. Proceedings concerning the applicant’s claim for damages
5. On 21 February 2011 the applicant and seventy other people lodged claims against the Ministry of Defence and the State requesting compensation (without indicating the amount) for pecuniary and non‑pecuniary damage for the loss of life of their family members in an explosion in an ammunition dismantling facility, the management of which had been outsourced by the authorities to private companies. 6. On 27 January 2012 the Tirana District Court severed the claims for damages. On 20 January 2014 the applicant paid a fixed amount of stamp duty (taksa e padisë) of 12,000 Albanian leks (ALL – approximately 98 euros (EUR)) in accordance with the domestic rules (see paragraph 22 below). On 28 February 2014 the court declared itself not competent to examine the applicant’s claim in view of the establishment and operation of the administrative courts and referred the case to the Tirana Administrative Court of First Instance (“the Court of First Instance”). The amount of compensation claimed was set at ALL 32,000,000 (approximately EUR 228,000) and the stamp duty payable was 3% of that amount, that is, ALL 960,000 (approximately EUR 6,840). 7. On 6 January 2015 the applicant, who was unemployed and living on a monthly allowance of ALL 8,000 (approximately EUR 57), asked the State Commission for Legal Aid (“the SCLA”) for an application form to seek legal aid in the form of exemption from the payment of stamp duty on account of his indigence. The request was left unanswered. 8. Following the applicant’s request for exemption from the payment of stamp duty, the Court of First Instance, at a preliminary hearing, rejected it in accordance with Article 154/a of the Code of Civil Procedure (“the CCP”) for failure to put right the deficiencies of the claim (të metat e padisë). On 20 November 2014 the applicant’s representative requested a reduction in the amount of compensation claimed. The request does not appear to have been examined by the court. 9. On 20 January 2015 the Court of First Instance returned the claim to the applicant without taking any action, stating that he had failed to put right the deficiencies, namely payment of the stamp duty and expert fees in full within the time-limit fixed. The court further held that the relevant tax legislation did not explicitly provide for exemption from the payment of stamp duty and expert fees, even though the applicant had shown, by submitting supporting documents, that he was unable to pay the stamp duty. On 26 January 2015 the applicant appealed against that decision. 10. On 21 December 2017 the Tirana Administrative Court of Appeal (“the Administrative Court of Appeal”) quashed the decision and remitted the case to the Court of First Instance, instructing it to: determine the value of the claim and amount of stamp duty to be paid; make an interlocutory decision indicating which party would pay the costs; and direct the applicant to request legal aid in the form of exemption from the payment of stamp duty under the Legal Aid Act 2008. In the event of refusal or no reply from the SCLA, the Court of First Instance was to assess of its own motion whether the applicant was eligible to benefit from legal aid under section 21(1) and (2) and section 13(1)(c) of the Legal Aid Act 2008. If the Court of First Instance concluded that the applicant did not meet the statutory requirements to benefit from legal aid, it could return the claim for failure to pay the stamp duty, in accordance with sections 25(a) and 21(1) of the Administrative Courts Act. On the other hand, failure to pay the expert fees did not constitute grounds to consider the claim defective, because the court could issue an order to recover the expenses (nxjerrjen e detyrueshme të shpenzimeve), in accordance with Article 105 of the CCP (see paragraph 17 below). 11. On 22 January 2018 the Ministry of Defence, which was the defendant in the proceedings, lodged a cassation appeal with the Supreme Court, before which the proceedings still appear to be pending. The cassation appeal did not challenge the applicant’s lack of financial means, but maintained that the Court of First Instance had correctly interpreted and applied the relevant provisions concerning his exemption request. The authorities’ letter to the applicant
12. Following the outcome of the applicant’s claim for damages before the Court of First Instance, on 19 February 2015 the Secretary General of the Ministry of Justice (“the Ministry”) informed the applicant’s lawyer (in relation to another matter) that no application form to request exemption from the payment of stamp duty had been prepared yet, and that a number of regulatory acts needed to be adopted before the SCLA could provide such a form. Additionally, the Ministry explained that the SCLA could, in some instances, defer the payment of stamp duty or allow payment in several instalments. Lastly, the Ministry stated that in the absence of a decision by the SCLA within ten days, the relevant court could grant legal aid in one of the forms prescribed by law if the statutory requirements were met. RELEVANT LEGAL FRAMEWORK AND PRACTICE
domestic law and practiceCode of Civil Procedure (“the CCP”)

13. Article 104, which was repealed in 2017, provided that stamp duty (taksa mbi aktet) was determined on the basis of the value of the claim, which was indicated by the claimant. However, the court could determine the value of the claim if there were obvious doubts as to the amount indicated by the claimant, who, as a rule, was liable to pay stamp duty. 14. Article 105/b, as introduced in 2001, provides that individuals who are exempted from the payment of stamp duty will be exempted from the payment of other costs and expenses. 15. Under Articles 102 and 156, stamp duty is payable at the time of lodging a claim. In the event of failure to pay, a single judge will return the claim to the claimant without taking any further action whatsoever, in accordance with Article 154/a, indicating that the deficiencies be put right within the time-limit fixed. A special appeal may be lodged against the decision. 16. According to Article 158/a the court, at a preliminary hearing, can decide to exempt a claimant from the payment of stamp duty in the cases provided for by law. In such a case, Article 106 provides that court fees will be borne by the defendant to the extent determined by the court. 17. Under Article 105, expert fees have to be paid in advance by the party requesting an expert report. The court can, however, order the other party to pay the expert fees or that they be split between all parties to the proceedings, if the circumstances of the case and the financial situation of the parties so require. Administrative Courts Act
18. Article 25 of the Administrative Courts Act provides that the presiding judge carries out a number of actions within seven days of the date of the claim being lodged, such as asking the claimant to put right the deficiencies of the claim within ten days, deciding that an expert report be drawn up when there is a need for special knowledge, and carrying out other actions provided for in Article 158/a of the CCP. These actions are carried out by way of interlocutory decisions. Failure of the parties to take part in the preliminary actions does not constitute grounds for dismissal of the case, even if they are summoned and duly notified. Legal Aid Act 2008, as amended (Law no. 10039 of 22 December 2008, as amended by Laws nos. 143/2013 and 77/2014)
19. The Legal Aid Act 2008 was in force until 1 June 2018, when it was repealed by the Legal Aid Act 2017 (Law no. 111 of 14 December 2017). Section 11 provided for two types of legal aid: primary legal aid (that is, information on legislation and the legal system, the rights and obligations of individuals, and assistance in drafting legal documents) and secondary legal aid (that is, legal counsel and representation in criminal, civil and administrative proceedings). Under section 12, which was amended in 2013, free legal aid could also be granted in the form of exemption from the payment of stamp duty and other costs and expenses. 20. The Legal Aid Act 2008 provided for the setting up of the SCLA, which was responsible for, amongst other things, considering applications for legal aid (sections 6 and 10). Under section 16(4) and (6), as amended in 2014, requests for legal aid in the form of exemption from the payment of stamp duty had to be made using a specific application form. Section 21/1, introduced in 2013, provided that the SCLA would examine requests for legal aid in the form of exemption from the payment of stamp duty within ten days of receipt. If the SCLA did not take a decision or rejected the request, the court, at a preliminary hearing, could decide a claimant’s exemption from the payment of stamp duty and other costs and expenses if the conditions under section 13(1)(c) were met. If the SCLA decided that a claimant was unable to pay stamp duty owing to his or her financial situation, even if the conditions under section 13(1)(c) were not met, it could order that payment be deferred or made in instalments. 21. Section 13(1)(c), as amended in 2014, provided that a person could benefit from free legal aid if he or she had inadequate financial means to pay stamp duty and was a recipient of social protection or satisfied the requirements to receive such protection, or was a victim of domestic violence or human trafficking. National Taxes Act (law no. 9975 of 28 July 2008, as amended)
22. The National Taxes Act lays down, amongst other things, the types of taxes and fees applicable in the country and procedures for their calculation. Section 11 provided for the payment of certain service fees (tarifa shërbimi), such as court fees, which would be determined by a joint order of the Minister of Finance and the relevant State authorities. Pursuant to section 11, a joint practice direction issued by the Minister of Justice and Minister of Finance (direction no. 13 of 12 February 2009), as amended in 2010, stated that stamp duty for a claim for damages the value of which was less than ALL 100,000 (approximately EUR 714) was ALL 12,000. If the value of the claim exceeded ALL 100,000, the stamp duty would be 3% of the amount claimed. 23. In 2010 a new statutory provision was introduced providing for exemption from the payment of certain service fees for certain categories of individuals (law no. 10280 of 20 May 2010). However, no provision was made for exemption from the payment of court fees. Domestic case-lawConstitutional Court’s decision no. 7/2013

24. On 27 February 2013, prior to the adoption of the 2013 and 2014 amendments to the Legal Aid Act, the Constitutional Court ruled by a majority that compliance with the requirement under domestic law to pay stamp duty at the time of lodging a claim, even by people without financial means, did not constitute a breach of an individual’s right of access to a court. It stated that a claimant who lodged a claim was required to pay stamp duty in advance as a percentage of the value of the claim. An ordinary judge, having regard to the circumstances of the case and the financial situation of the claimant, could decide, on a case-by-case basis, to exempt him or her from the payment of stamp duty in order to ensure respect for the right of access to a court. In such a case, the stamp duty would be paid from the State budget. The Constitutional Court further pointed out that the SCLA was to provide legal aid to certain categories of individuals in accordance with the Legal Aid Act 2008. 25. The dissenting opinion stated that there was a breach of an individual’s right of access to a court on account of the requirement to pay stamp duty, because the domestic legislation did not provide for an exemption from the payment of stamp duty for persons without financial means. It stated that the requirement to pay stamp duty was sine qua non for the continuation of the proceedings. It also stated that the majority’s interpretation of the provisions of the CCP and Legal Aid Act left room for arbitrariness in the absence of a clear legal framework for the criteria for exemption. Lower courts’ decisions
26. In their written observations, the Government provided the following domestic courts’ decisions concerning exemption from the payment of court fees. On 26 March 2015, in a similar case relating to the award of pecuniary and non-pecuniary damages for the loss of life of the claimants’ family member, the Administrative Court of First Instance, having examined the claim for damages on the merits, ordered that the stamp duty and costs and expenses which the claimants had paid upon lodging the claim would be borne by the defendants, which were State bodies, in accordance with, inter alia, Articles 102 and 106 of the CCP. 27. On 18 October 2018, at a preliminary hearing in proceedings concerning a claim for the payment of pecuniary and non-pecuniary damages, the single judge of the Administrative Court of First Instance granted a request for exemption from the payment of stamp duty owing to the claimant’s indigence, pursuant to Articles 104 and 158/a of the CCP. 28. On 25 September 2019 the Tirana District Court granted a request for legal aid in the form of representation in civil proceedings under the Legal Aid Act 2017 because the claimant’s monthly retirement pension was lower than the minimum monthly income fixed by the Government. 29. On 1 November 2019 the Administrative Court of First Instance accepted a claimant’s request for exemption from the payment of stamp duty because he met the statutory requirements under the Legal Aid Act 2017 as he was in receipt of disability allowance. 30. On 23 December 2019 the Administrative Court of First Instance granted a request for legal aid in the form of representation in administrative proceedings under the Legal Aid Act 2017 because the claimant’s monthly income was lower than the minimum monthly income fixed by the Government. Council of Europe materialCommissioner for Human Rights

31. Following his visit to Albania from 23 to 27 September 2013, the Commissioner for Human Rights (“the Commissioner”) expressed concerns about the issue of excessive court fees and considered that district and appellate court judges needed to be provided with clear guidance concerning the implementation of the Constitutional Court’s decision no. 7/2013 relating to that subject matter, which, in his view, could be developed by the Supreme Court in close consultation with the Constitutional Court (see Report CommDH(2014)1). 32. The Commissioner noted the concerns expressed by the People’s Advocate that the Constitutional Court’s decision did not provide clear indications as to what would be the legal basis for the exemption from the payment of court fees, given that there was a clear legal obligation to pay stamp duty upfront and exemptions from payment were exceptional. The Commissioner referred to another report in which it had been noted there was no possibility for the courts to reduce court fees in special circumstances, including on the basis of inability to pay, except in those instances where the persons belonged to a specific category exempted from taxes (namely, if they proved that they were recipients of social protection or satisfied the requirements to receive such protection; or were victims of domestic violence or human trafficking). 33. In a follow-up letter of 11 March 2016 (CommDH (2016)44) to the then Albanian Minister of Justice, the Commissioner reiterated his concerns about the lack of effective implementation of the Legal Aid Act 2008, which continued to hinder access to justice by certain vulnerable social groups. He pointed to shortcomings of the functioning of the SCLA, which was demonstrated by the low number of requests for legal aid it had received. 34. The Commissioner further expressed concerns that “reportedly, judges [we]re reluctant to exempt persons with financial constraints from the payment of court fees. As a result, few persons ha[d] been granted the exemption”. In his view, the 2013 amendments to the Legal Aid Act, which tasked the SCLA with granting exemptions from the payment of stamp duty and other costs and expenses under certain conditions, had not borne any fruit since reportedly nobody had benefited from that possibility. European Commission Against Racism and Intolerance
35. In its fifth monitoring cycle report on Albania, which covered the situation in the country up to 10 December 2014, the European Commission Against Racism and Intolerance (ECRI) expressed concerns about the ineffectiveness of the free legal aid system. Persons in need of legal aid were not able to present the required detailed application documents to the SCLA, which only dealt with a small number of cases per year, and its budget was too low to hire lawyers for all persons in need. In spite of the Constitutional Court’s decision no. 7/2013, ECRI reported that “judges were however reluctant to make use of th[e] power” to exempt claimants from paying stamp duty. ECRI expected that judges would start making use of that power and was of the view that the authorities should ensure that a lawyer was appointed to claimants through the legal aid system in discrimination cases considered urgent. THE LAW
    ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
36. The applicant complained that the domestic courts’ failure to examine the merits of his claim for damages on account of his failure to pay stamp duty had constituted an unjustified restriction of his right of access to a court under Article 6 § 1 of the Convention, the relevant part of which reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
AdmissibilityThe parties’ submissions

37. The Government submitted that the applicant no longer had any interest in pursuing his case before the Court since the decision of the Administrative Court of Appeal had been in his favour. That decision showed that the domestic system provided sufficient remedies which were effective in theory and in practice. 38. The Government also submitted that the applicant had not complied with the six-month time-limit without providing any details. They further contended that the complaint was premature, given that the applicant had lodged the application with the Court prior to the Administrative Court of Appeal’s decision. Lastly, the Government considered that the complaint was unfounded. 39. The applicant submitted that the Government had not stated the deadline from which the six-month time-limit had started to run. In any event, his application was not premature. He had first lodged his claim with the domestic courts in 2011 and to date had not yet received a determination of his case. Consequently, in his view, the domestic courts had not provided a practical and effective remedy exempting him from the obligation to pay court fees.

Outcome for Article 6: violation