European Court of Human Rights

 

 

 

FOURTH SECTION

 

 

 

 

 

 

CASE OF THEMELI v. ALBANIA

 

(Application no. 63756/09)

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

 

STRASBOURG

 




January 2013

 

 

 

 

This judgment is final but it may be subject to editorial revision.




In the case of Themeli v. Albania,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

          George Nicolaou, President,
          Zdravka Kalaydjieva,
          Faris Vehabović, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 11 December 2012,

Delivers the following judgment, which was adopted on that date:

PROCEDURE




  The case originated in an application (no. 63756/09) 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 Jorgji Themeli (“the applicant”), on 5 November 2009.




  The applicant was represented by Ms E. Kokona, a lawyer practising in Tirana. The Albanian Government (“the Government”) were represented by their Agent, Ms L. Mandia of the State Advocate’s Office.




  On 11 July 2011 the application was communicated to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE




  The applicant was born in 1942 and lives in Tirana.




  Further to the applicant’s dismissal in 2003, on 19 January 2004 the Tirana District Court ordered his employer, the Ministry of Economy, Trade and Energy (“the Ministry”), to pay his salary throughout the period he remained unemployed. That decision became final on 2 February 2007, following the Supreme Court’s rejection of the employer’s appeal.




  On 10 February 2005 an enforcement writ was issued.




  From 1 January 2006 to 31 January 2007 the applicant was regularly paid monthly salaries as a result of the inclusion of his name on the employer’s waiting lists, no salaries having been paid for the period between 2003 and 2006.




  On 2 February 2009 the bailiff decided to discontinue the enforcement on the grounds that the outstanding amount had been paid. The applicant challenged the bailiff’s decision.




  On 30 April 2010 the Tirana District Court found in the applicant’s favour and ordered the bailiff to continue the enforcement proceedings. It ruled that the employer had paid the applicant the sum of 2,065,101 Albanian leks (“ALL”) out of a total of ALL 2,887,500 due to him for the period between 2003 and 2006.




  On 30 June 2011, following the bailiff’s appeal, the Court of Appeal upheld that decision.




  On 18 January 2012 the Ministry ordered the payment of the outstanding amount.




  On 8 March 2012 the applicant’s debt judgment was fully enforced.

II.  RELEVANT DOMESTIC LAW AND PRACTICE




  The relevant domestic law and practice has been described in the cases of Qufaj Co. Sh.p.k. v. Albania (no. 54268/00, §§ 21-26, 18 November 2004) and Gjyli v. Albania (no. 32907/07, §§ 19-28, 29 September 2009).

THE LAW




  The applicant complained that the non-enforcement of Tirana District Court’s decision of 19 January 2004, as upheld by the Supreme Court’s decision of 2 February 2007, breached his rights under Articles 6 § 1 and 13 of the Convention as well as under Article 1 of Protocol No. 1 to the Convention, which read as follows:

Article 6 § 1

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

Article 13

“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.”

Article 1 of Protocol No. 1

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

I.  THE GOVERNMENT’S REQUEST TO STRIKE OUT THE APPLICATION UNDER ARTICLE 37 OF THE CONVENTION




  By a letter of 18 January 2012 the Government submitted a unilateral declaration with a view to resolving the issue raised by the application.




  The applicant requested the Court to reject the unclear terms of the Government’s unilateral declaration.




  Having studied the terms of the Government’s unilateral declaration, the Court considers that, in the particular circumstances of the applicant’s case, it does not provide a sufficient basis for concluding that respect for human rights, as defined in the Convention and its Protocols, does not require it to continue the examination of the case (see, amongst others, Choumakov v Poland (no. 2), no. 55777/08, §§ 37-40, 1 February 2011, and Ruprecht v. Poland, no. 39912/06, §§ 25-27, 21 February 2012).




  The Court therefore rejects the Government’s request to strike the application out under Article 37 of the Convention and will accordingly pursue its examination of the admissibility and merits of the case.

II.  ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION

A.  Admissibility




  The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B.  Merits




  The applicant submitted that there had been a long delay in the enforcement of the final judgment in his favour, the judgment having been enforced only on 8 March 2012. Despite being included on the employer’s waiting list, he stated that the lack of an effective remedy and the circumstances of his case ‘forced’ him to apply for early retirement.




  The Government submitted that the judgment was finally enforced on 18 January 2012. Moreover, the applicant had been included on the employer’s waiting list since 1 January 2006, the non-enforcement referring only to the period between 10 March 2003 and 1 January 2006.




  The Court notes that the decision in the applicant’s favour was finally enforced on 8 March 2012, five years after it became final on
2 February 2007 (see Gjyli, cited above, § 33). The Government provided no justification whatsoever for this delayed enforcement.




  Furthermore, the Court recalls that there exists no domestic effective remedy as regards the delayed enforcement or the non-enforcement of a final court judgment (see Puto and Others v. Albania, no. 609/07, §§ 33-35, 20 July 2010; and, Gjyli, cited above, §§ 55-60).




  Having regard to its well-established case-law on the subject (Qufaj Co. Sh.p.k., cited above; Gjyli, cited above; and Puto and Others, cited above), the Court finds that there has been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 on account of the delayed enforcement on 8 March 2012 of the Supreme Court’s decision of
2 February 2007 and a violation of Article 13 of the Convention in that the applicant did not have an effective domestic remedy to redress the damage caused by such delayed enforcement.

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.  Damage




  The applicant claimed 13,332 euros (EUR) in respect of pecuniary damage, which consisted of EUR 7,332 as regards the loss of accrued interest had he put the money in a savings deposit and, of EUR 6,000 as regards the loss of pension contribution. He further claimed EUR 9,000 in respect of non-pecuniary damage.




  The Government submitted that the applicant did not submit an expert’s report as regards the calculation of the loss of accrued interest and the alleged lack of work benefits. The non-pecuniary damage should relate only to the period until 1 January 2006, regard being had to the fact that he was on the employer’s waiting list thereafter.




  The Court notes that the applicant produced some figures as regards the pecuniary damage, but its substantiation remained unclear and its calculation was open to speculation. It therefore makes no award under this head. Making an assessment on an equitable basis, the Court further awards the applicant EUR 2,900 in respect of non-pecuniary damage, having regard to the delayed enforcement and the violations found.

B.  Costs and expenses




  The applicant also claimed EUR 2,000 for the costs and expenses incurred before the domestic courts and EUR 3,200 for those incurred before this Court.




  The Government submitted that the applicant’s claims for costs and expenses were unfounded, since the bills he had provided did not conform with the domestic law requirements.




  Regard being had to the fact that this case was the subject of
well-established case-law, that the facts therein were straightforward and to the documents submitted by the applicant, the Court considers it reasonable to award the sum of EUR 1,000 covering costs under all heads.

C.  Default interest




  The Court considers it appropriate that the default interest rate 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

1.  Rejects the Government’s request to strike the application out of the list;

 

2.  Holds that there has been a violation of Articles 6 § 1 and 13 of the Convention on account of delayed enforcement of the Supreme Court’s decision of 2 February 2007;

 

3.  Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;

 

4.  Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 2,900 (two thousand nine hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 1,000 (one thousand euros) 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;

 

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 15 January 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

     Fatoş Aracı                                                                      George Nicolaou
Deputy Registrar                                                                       President