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GJYLI v. ALBANIA - 32907/07 [2009] ECHR 1397 (29 September 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1397.html
Cite as:
[2009] ECHR 1397
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FOURTH
SECTION
CASE OF
GJYLI v. ALBANIA
(Application
no. 32907/07)
JUDGMENT
(merits)
STRASBOURG
29
September 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Gjyli v. Albania,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Giovanni
Bonello,
Ljiljana
Mijović,
Päivi
Hirvelä,
Ledi
Bianku,
Nebojša
Vučinić,
judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 8 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 32907/07) 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 Ali Gjyli (“the
applicant”), on 13 July 2007.
The
applicant, who had been granted legal aid, was represented by
Mr
S. Puto, a lawyer practising in Tirana. The Albanian Government (“the
Government”) were represented by their then Agent, Ms S.
Meneri.
The
applicant complained about the non-enforcement of two court
judgments.
On
7 November 2007 the application was given priority under
Rule 41
of the Rules of Court.
On
12 December 2007 the President of the Chamber to which the case was
allocated decided to give notice of the application to the
Government. Under the provisions of Article 29 § 3 of the
Convention, it was decided to examine the merits of the application
at the same time as its admissibility.
The
applicant and the Government each filed written observations (Rule 59
§ 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1945 and lives in Durrës,
Albania.
A. Proceedings concerning the applicant's dismissal
The
applicant was employed by the National Employment Service (NES) as
the Director of Durrës Vocational Training Centre (“the
Durrës VTC”). The NES is responsible to the Ministry of
Labour.
On 9 July 2005 the applicant was dismissed. Considering
his dismissal arbitrary, he challenged it before the Durrës
District Court. The applicant did not seek an award of pecuniary
damage.
In
its judgment of 27 September 2005, the Durrës District Court
found the dismissal void due to a flawed procedure and ordered the
applicant to be reinstated. On 1 November 2005 the NES filed an
appeal with the Durrës Court of Appeal, (“the Court of
Appeal”).
By
judgment of 12 December 2005, the Durrës Court of Appeal
declared the appeal inadmissible as having been filed out of time.
That judgment became final as no appeal was filed with the Supreme
Court.
For
the purposes of executing the Durrës District Court's judgment
of 27 September 2005, an execution writ was issued by the court on
22 December 2005 pursuant to Articles 510 (a) and 511 (a) of the
Code of Civil Procedure (see “Relevant domestic law and
practice” below).
On
23 January 2006 the bailiff's office imposed a fine on the Minister
of Labour concerning the failure to enforce the Durrës District
Court's judgment. To date, the Durrës District Court's judgment
of 27 September 2005 has not been executed.
B. Proceedings concerning payment of arrears of salary
On an unspecified date the applicant lodged a
complaint with the Durrës District Court requesting payment of
salary arrears since 9 July 2005.
On
24 October 2006 the Durrës District Court found in the
applicant's favour and ordered the NES to pay the applicant his
salary from 9 July 2005 until the date of his actual reinstatement.
On 14 June 2007 the Durrës Court of Appeal
rejected an appeal by the NES. The NES appealed to the Supreme Court.
According to the information before the Court, it appears that these
proceedings are pending before the Supreme Court.
On
6 December 2006, at the applicant's request, the Durrës District
Court issued an execution writ in respect of its judgment of 24
October 2006.
On
an unspecified date the NES sought the immediate suspension of
execution. The Durrës District Court decided that the case fell
outside its territorial jurisdiction and transferred the case file to
the Tirana District Court.
On
31 January 2008 the Tirana District Court dismissed the NES action.
On an unspecified date the NES appealed. It appears that the
proceedings are pending before the Tirana Court of Appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The Constitution of Albania
The
relevant parts of the Albanian Constitution read as follows:
“Article 42 § 2
In the protection of his constitutional and legal
rights, freedoms and interests, or in defending a criminal charge,
everyone has the right to a fair and public hearing, within a
reasonable time, by an independent and impartial court established by
law.”
“Article 131
The Constitutional Court shall determine: ... (f)
complaints by individuals alleging a violation of their
constitutional rights to a fair hearing, provided all legal remedies
for the protection of those rights have been exhausted.”
“Article 142 § 3
State bodies shall comply with judicial judgments.”
B. The Constitutional Court (Organisation and Operation) Act (Law
no. 8577) of 10 February 2000
The
Constitutional Court Act, in so far as relevant, reads as follows:
“Article 81 – Execution of decisions
1. The Constitutional Court's judgments are binding.
2. The execution of the Constitutional Court's judgments
is ensured by the Council of Ministers by virtue of respective State
administration bodies.
3. The Constitutional Court may assign another body
responsible for the execution of its judgment and, as necessary, the
method of its execution.
4. The persons who do not enforce or prevent the
enforcement of the Constitutional Court's judgments, when their
action does not constitute a criminal offence, are liable to a fine
(...) imposed by the President of the Constitutional Court, whose
decision is final and constitutes an executive title.”
Relevant case-law of the Albanian Constitutional Court
1. Judgment no. 6/06 of 31 March 2006
The case concerned a labour dispute arising out of the
appellant's dismissal from work. The domestic courts ruled in favour
of the appellant's reinstatement and ordered the payment of his
salary arrears. Since the bailiff was ineffective in enforcing the
final ruling against a municipality, the appellant seized the
Constitutional Court.
By
judgment no. 6 of 31 March 2006, the Constitutional Court, having
considered this Court's judgment in Qufaj Co. Sh.p.k. v. Albania,
(no. 54268/00, 18 November 2004), found that there had been a
violation of the appellant's right to a fair hearing on account of
the non-enforcement of a final court ruling. However, no award was
made to the appellant.
2. Judgment no. 43/07 of 13 November 2007
The
case concerned the non-enforcement of a domestic court ruling
concerning the payment of the appellant's salary arrears by a local
government administrative unit (Këshilli i Rrethit).
The
Constitutional Court held that the defendant's argument about lack of
funds was insufficient and could not justify the non-fulfilment of
the obligation towards the appellant. The judgments reads, in so far
as relevant, as follows.
“(...) the Constitutional Court does not find any
reasonable grounds that justify a violation of the appellant's right
to a fair hearing on the account of the competent authorities'
refusal to enforce a final court judgment. It considers that, in the
proceedings at issue, the debtor (pala debitore) had all means
available throughout the entire period, from the date of the adoption
of the judgment and onwards, to pay the appellant the amount owed by
virtue of the court judgment. Moreover, during the examination of the
case the Constitutional Court could not discern any concrete steps of
the debtor which would demonstrate any willingness to enforce the
obligation that resulted from a final court judgment.
Additionally, as regards the authority responsible under
the law for the enforcement of final court judgments, namely the
bailiff, the Constitutional Court considers that they should have
diligently (me korrektësi) applied the relevant
procedural law, notwithstanding the fact that the debtor is a State
institution. All parties, whether they are private or public
entities, bear the same responsibility when confronted with the
obligation to enforce a final court judgment.
To conclude, having regard to the above reasoning, in
the proceedings at issue the Constitutional Court observes
(konstaton) that the non-enforcement of the final (...) court
judgment constitutes a violation of the appellant's right to a fair
hearing, as envisaged by Article 42 of the Constitution and Article 6
§ 1 of the Convention.”
However,
no awards were made to the appellant.
3. Judgment nos. 1/09 and 6/09 of 19 January and 6 March 2009
The
judgment no. 1/09 concerned the non-enforcement of a final
administrative decision in relation to the appellant's reinstatement
and the payment of his salary arrears. The judgment no. 6/09
concerned the non-enforcement of a final court judgment as regards
the vacation of a plot of land.
In both judgments the Constitutional Court declared
that there had been a violation of the appellants' right of access to
court on the account of the non-enforcement of a final administrative
decision and a court judgment, respectively. The Constitutional Court
did not order the appellant's reinstatement in relation to judgment
no. 1/09. No pecuniary or
non-pecuniary award was made to any of
the appellants.
D. The Code of Civil Procedure
The
relevant parts of the Code of Civil Procedure read as follows:
Article 451 – Final judgments
“A court judgment becomes final when:
(a) no further appeal lie against it;
(b) no appeal has been filed against it within the
time-limits prescribed by the law or when the appeal has been
withdrawn;
(c) the appeal has not been accepted;
(d) it was upheld, amended or the case was dismissed
(pushuar) in the appeal proceedings.”
Article 479 – Suspension of the enforcement of
a [court's] judgment
“The Supreme Court decides on the suspension of a
judgment when:
its
immediate enforcement would result in serious, irreparable damage;
the
party who filed an appeal makes a deposit that ensures the
enforcement of the judgment.”
Article 510 – Executive titles
“Enforced execution can be made only on the basis
of an executive title. Executive titles include:
(a) civil court's judgments which have become final.
...”
“Article 511 – The execution writ
“The executive title is executed at the request of
the creditor. An execution writ is issued for this purpose:
by the
court which gave the judgment in cases provided for in [Article 510
(a)];
(...).”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained under Article 6 § 1 of the Convention about
the non-enforcement of the Durrës District Court's judgment of
27 September 2005 ordering his reinstatement and the Durrës
District Court's judgment of 24 October 2006 ordering payment of his
salary arrears.
Article
6 § 1 of the Convention, in so far as relevant, reads:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
Admissibility
Non-enforcement of the Durrës District Court's judgment of
24 October 2006 concerning payment of salary arrears
The
Government argued that the applicant had failed to exhaust domestic
remedies in relation to this complaint. To date, the proceedings are
pending before the Supreme Court (see paragraphs 13–15 above).
The
applicant accepted that the proceedings were pending before the
Supreme Court, but argued that the Durrës Court of Appeal's
judgment was enforceable. The Supreme Court had not suspended
enforcement pursuant to Article 479 of the Code of Civil Procedure.
In
the present case, the Court notes that the Durrës District
Court's judgment of 24 October 2006, as upheld by the Durrës
Court of Appeal's judgment of 14 June 2007, recognised the
applicant's right to payment of arrears of his salary from 9 July
2005 until the date of his actual reinstatement. An execution writ
was issued in accordance with Articles 510 (a) and 511 (a) of
the Code of Civil Procedure. In the meantime, the defendant filed an
appeal to the Supreme Court against both lower courts' judgments (see
paragraph 15 above).
Against
this background, the Court considers that the Durrës District
Court's judgment of 24 October 2006 cannot be considered final and
binding, as it had been open to appeal. In fact, appeal proceedings
are pending before the Supreme Court. Even if an appeal to the
Supreme Court does not have automatic suspensive effect and, apart
from the power of the Supreme Court under Article 479 of the Code of
Civil Procedure, the Court recalls that Article 6 protects the
enforcement of final and binding judicial judgments, and not
judgments which may be subject to subsequent control of a higher
instance court and, eventually, quashed (see, for example, Ouzounis
and Others v. Greece, no. 49144/99, § 21, 18 April 2002;
Ioannis Karahalios v. Greece (dec.), no
62499/00, 26 September 2002; Xheraj v. Albania, no. 37959/02,
§ 70, 29 July 2008).
Having
regard to the pending proceedings before the Supreme Court, which
means that the Durrës District Court's judgment does not have
the effect of res judicata, the Court considers that this
complaint is inadmissible as being premature and must be rejected
under Article 35 §§ 3 and 4 of the Convention.
Non-enforcement of the Durrës District Court's judgment of
27 September 2005 concerning the applicant's reinstatement
The
Government challenged the applicability of Article 6 § 1,
relying on the Pellegrin v. France judgment ([GC] no.
28541/95, §§ 66-67, ECHR 1999 VIII). They argued that
employment disputes between the State and its civil servants, were
not, as a rule, regarded as “civil” within the meaning of
Article 6 § 1 of the Convention.
The
Government also submitted that the Constitutional Court was a remedy
to be exhausted in cases concerning the non-enforcement of a final
court judgment. They invoked this Court's judgment in Qufaj Co.
Sh.p.k.
v. Albania, (no. 54268/00, § 42, 18 November
2004), as applied by the Constitutional Court (judgments nos. 6/06
and 43/07, see paragraphs
21–27 above).
The
Court reiterates that Article 6 § 1 under its “civil”
head is applicable to all disputes involving civil servants, unless
the national law expressly excludes access to a court for the post or
category of staff in question, and this exclusion is justified on
objective grounds in the State's interest. There can in principle be
no justification for the exclusion from the guarantees of Article 6
of ordinary labour disputes, such as those relating to salaries,
allowances or similar entitlements, on the basis of the special
nature of the relationship between the particular civil servant and
the State in question (see Eskelinen and Others v. Finland,
no. 43803/98, § 62,
8 August 2006).
Turning to the present case, the Court notes that the
applicant's civil claim was examined and granted by the domestic
courts following the ordinary rules of civil procedure. The applicant
was not excluded by domestic law from “access to a court”
within the meaning of Article 6 of the Convention. Based on the test
developed in the case of Eskelinen and Others,
cited above, the Court concludes that Article 6 is applicable to the
domestic proceedings at issue.
The
Court considers that the question of exhaustion of domestic remedies
is closely connected and central to the issue of effectiveness of the
constitutional complaint in relation to the non-enforcement of a
final court judgment, which has been considered under Article 13
below (see paragraphs 48–61 below).
It
considers that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
finds that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties' submissions
The
Government submitted that the applicant's appointment as the Director
of the Durrës VTC had been unlawful. Consequently, he had been
dismissed.
The
applicant contended that the Durrës District Court's judgment of
27 September 2005, which had become final on 14 January 2006, had not
yet been enforced, thus constituting a violation of Article 6 of the
Convention. The efforts undertaken by the bailiff had been
insufficient and ineffective.
2. The Court's assessment
The
Court reiterates that an unreasonably long delay in enforcement
of a final and binding judgment may breach the Convention (see
Burdov v. Russia, no. 59498/00, ECHR 2002 III).
The reasonableness of such delay is to be determined having regard in
particular to the complexity of the enforcement proceedings, the
applicant's own behaviour and that of the competent authorities and
the amount and nature of the court award (see Raylyan v. Russia,
no. 22000/03, § 31, 15 February 2007).
A
person who has obtained a judgment against the State may not be
expected to bring separate enforcement proceedings (see Metaxas v.
Greece, no. 8415/02, § 19, 27 May 2004). In such cases, the
defendant State authority must be duly notified of the judgment and
is thus well placed to take all necessary initiatives to comply with
it or to transmit it to another competent State authority responsible
for execution.
The
Court observes that the Government did not provide any plausible
reasons for the failure of the responsible authorities to comply with
the Durrës District Court's judgment of 27 September 2005. As to
the Government's suggestion that the applicant's appointment was made
unlawfully, the domestic courts found in his favour. The risk of any
mistake must be borne by the State and errors must not be remedied at
the expense of the individual concerned (see Xheraj, cited
above, § 58).
The
national authorities appear to have made no efforts to offer the
applicant an alternative solution, for example to accommodate him in
another position of similar rank. There is no information to indicate
that the enforcement entailed any complexity. The applicant did not
prevent the enforcement. The Court finds no justification for this
period of
non-enforcement, which continues to date and has
impaired the essence of the applicant's right to a court.
For
the foregoing reasons, the Court considers that there has been a
violation of Article 6 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 IN CONJUNCTION WITH
ARTICLE 6 § 1 OF THE CONVENTION
The applicant did not complain about a lack of
effective domestic remedies as regards non-enforcement of the
judgments in his favour.
However,
the Court observes that the ineffectiveness of domestic remedies is
being increasingly raised before this Court in cases concerning a
failure to enforce or delayed enforcement of final domestic
judgments. It has therefore decided of its own motion to examine this
issue under Article 13 of the Convention (see, for example, Burdov
v. Russia (no. 2), no. 33509/04, §§ 89-117, 15 January
2009; Beshiri and Others v. Albania, no. 7352/03, 22 August
2006; and Qufaj Co. Sh.p.k. v. Albania, no. 54268/00, 18
November 2004).
Article
13 of the Convention provides that:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. Admissibility
The
Court considers that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further finds that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
Merits
1. The parties' submissions
The
Government maintained that a constitutional complaint is an effective
remedy in the light of this Court's judgment in Qufaj Co. Sh.p.k.,
cited above, and the Constitutional Court's case-law (see
paragraphs
21–27 above).
The
applicant maintained that a constitutional complaint about the
non-enforcement of a final court judgment was not effective as
required by Article 13 of the Convention. The Constitutional Court's
judgments (see paragraphs 21–27 above) were limited to the
finding of a violation of a declaratory nature. They did not provide
a remedy or eliminate the continuing violation in respect of the
non-enforcement of a final court judgment.
2. The Court's assessment
a. General principles
Article
13 of the Convention guarantees the availability at a national level
of a remedy to enforce the substance of the Convention rights and
freedoms in whatever form they may happen to be secured in the
domestic legal order. The effect of Article 13 is thus to require the
provision of a domestic remedy to deal with the substance of an
“arguable complaint” under the Convention and to grant
appropriate relief (see Kudła v. Poland [GC], no.
30210/96, § 157, ECHR 2000 XI).
The
scope of the Contracting States' obligations under Article 13 varies
depending on the nature of the applicant's complaint; however, the
remedy required by Article 13 must be “effective” in
practice as well as in law (see, for example, İlhan v. Turkey
[GC], no. 22277/93, § 97, ECHR 2000-VII) in the sense
either of preventing the alleged violation or its continuation, or of
providing adequate redress for any violation that has occurred (see
Kudla, cited above, § 158).
b. Application in the present case
The
Court observes first that in the Albanian legal system anyone who
considers that there has been a violation of his right to a fair
hearing can, if he has exhausted all domestic remedies, lodge a
constitutional complaint with the Constitutional Court under Article
131 (f) of the Constitution.
In
its Qufaj Co. Sh.p.k. judgment, (cited above, § 42), the
Court found that:
“the Constitutional Court was competent to deal
with the applicant company's complaint relating to non-compliance
with a final judgment as part of its jurisdiction to secure the right
to a fair trial”.
This
element of the right to a fair hearing was embodied for the first
time in the Constitutional Court's judgment no. 6/06, subsequently
upheld in its judgments nos. 43/07, 1/09 and 6/09.
In
the present case, however, the Court notes that the applicant did not
lodge a constitutional complaint with the Constitutional Court
concerning the non-enforcement of the Durrës District Court's
judgment of
27 September 2005. The Court must determine whether
the above-noted remedy would have been “effective” in the
sense either of preventing the alleged violation or its continuation
or of providing adequate redress for any violation that had already
occurred.
The
Court notes that the Constitutional Court judgments (see paragraphs
21–27 above) recognised that there had been a violation of the
appellants' right of access to court on account of the
non-enforcement of domestic courts' judgments. However, their
findings were declaratory so that the Constitutional Court did not
offer any adequate redress. In particular, it did not make any awards
of pecuniary and/or non-pecuniary damage, nor could it offer a clear
perspective to prevent the alleged violation or its continuation.
Furthermore,
the Court notes that the bailiff's actions were not effective in the
present case. Moreover, the Government did not contend the existence
of any other alternative preventive remedy which, in the
circumstances of the case, could have been relied upon by the
applicant.
The
Court concludes that there has accordingly been a violation of
Article 13 in conjunction with Article 6 § 1 of the Convention.
On that account, the Government's preliminary
objection based on
non-exhaustion of domestic remedies must be
dismissed.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Pecuniary damage
The
applicant claimed 2,724,965 leks (approximately EUR 22,272) in
respect of pecuniary damage. He submitted an estimate of his salary
arrears from 9 July 2005 until 31 May 2008 having regard to the
Durrës District Court's judgment of 24 October 2006.
The
Government submitted that the proceedings concerning the payment of
the applicant's salary arrears are pending before the Supreme Court.
They requested the Court to stay the examination of Article 41 until
the ruling of the Supreme Court. While the Government undertook to
submit a table estimating the applicant's salary arrears, no further
information has been provided to date.
The
Court reiterates that a judgment in which it finds a breach imposes
on the respondent State a legal obligation under the Convention to
put an end to the breach and make reparation for its consequence
(see, for example, Beshiri and Others v. Albania, no. 7352/03,
§ 110, 22 August 2006).
Among
the matters which the Court takes into account when assessing
compensation are pecuniary damage (the loss actually suffered as a
direct result of the alleged violations) and non-pecuniary damage
(reparation for the anxiety, inconvenience and uncertainty caused by
the violation) and other non-pecuniary loss (see, among other
authorities, Ernestina Zullo v. Italy, no. 64897/01, §
25, 10 November 2004). In addition, if one or more heads of damage
cannot be calculated precisely or if the distinction between
pecuniary and non-pecuniary damage proves difficult, the Court may
decide to make a global assessment (see Comingersoll v. Portugal
[GC], no. 35382/97, § 29, ECHR 2000-IV).
The
Court considers that the question of compensation for the failure to
reinstate the applicant may be linked to the pending proceedings
before the Supreme Court concerning salary arrears. Consequently,
the Court considers that the question of the application of Article
41 in respect of pecuniary damage is not ready for decision. The
question must accordingly be reserved and the further procedure fixed
with due regard to domestic developments in the arrears' proceedings.
B. Non-pecuniary damage
The
applicant claimed 1,500,000 leks (approximately EUR 12,260) in
respect of non-pecuniary damage. The Government disagreed with the
amount claimed by the applicant.
The
Court accepts that the applicant suffered distress that would have
been avoided had the authorities complied with the final judgment. In
this connection, making its assessment on an equitable basis, the
Court awards the applicant EUR 2,100 in respect of non-pecuniary
damage.
C. Costs and expenses
The
applicant, who received EUR 850 in legal aid from the Council of
Europe in connection with the presentation of this case, sought
162,194 leks (approximately EUR 1,277) for the legal expenses
incurred in the domestic proceedings. He provided supporting
documents in respect of postage, legal fees and the tax paid to the
bailiff for the enforcement of the Durrës District Court's
judgment of 24 October 2006. The applicant requested EUR 3,665 for
the expenses incurred in the Strasbourg proceedings. He submitted a
receipt to this end.
The
Government contested the applicant's claim for costs and expenses,
maintaining that the domestic and Strasbourg legal fees were not
substantiated by officially recognised taxable receipts.
According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable to
quantum (see, for example, Xheraj, cited above, § 85).
As
regards the costs and expenses incurred in the domestic proceedings,
the Court notes that it is satisfied with the postage fees as claimed
by the applicant. It considers the legal fees incurred in the first
set of proceedings reasonable having regard to the information in its
possession. However, it makes no awards as regards the legal fees and
the bailiff's tax incurred in relation to the second set of
proceedings as that complaint has been declared inadmissible.
As
regards the costs and expenses incurred in the Strasbourg
proceedings, the Court notes that this case was not complex. It did
not require extensive research in the light of the Court's settled
case-law, nor was there a large amount of evidentiary support
involved.
In
these circumstances and having regard to the details of the claim
submitted by the applicant, the Court awards him, in respect of the
domestic and Strasbourg proceedings, EUR 3,000 less the EUR 850
received by way of legal aid from the Council of Europe.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint under Article 6 § 1
of the Convention as regards the non-enforcement of the Durrës
District Court's judgment of 24 October 2006 inadmissible;
2. Joins to the merits the Government's preliminary objection
regarding the applicant's failure to exhaust domestic remedies in
respect of the Durrës District Court's judgment of 27 September
2005 and declares the remainder of the application admissible;
Holds that there has been a violation of
Article 6 § 1 of the Convention as regards the
non-enforcement of the Durrës District Court's judgment of 27
September 2005;
Holds that there has been a violation of Article
13 in conjunction with Article 6 § 1 of the Convention in
respect of the lack of effective remedies for a failure to enforce
the Durrës District Court's judgment of 27 September 2005 and
dismisses in consequence the Government's preliminary
objection;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into the respondent State's national
currency, at the rate applicable at the date of settlement:
(i) EUR
2,100 (two thousand one hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR
2,150 (two thousand one hundred fifty euros), plus any tax that may
be chargeable, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Holds that the question of the application of
Article 41 of the Convention in respect of pecuniary damage is not
ready for decision;
accordingly,
(a) reserves
the said question;
(b) invites
the respondent Government and the applicant to submit, within the
forthcoming three months from the date on which the judgment becomes
final in accordance with Article 44 § 2 of the
Convention, their written observations on the matter and, in
particular, to notify the Court of domestic developments;
(c) reserves
the further procedure and delegates to the President of the
Chamber the power to fix the same if need be.
Done in English, and notified in writing on 29 September 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
