European Court of Human Rights

 

 

 

FOURTH SECTION

 

 

 

 

 

 

CASE OF TUSHAJ v. ALBANIA

 

(Application no. 13620/10)

 

 

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

 

15 January 2013

 

 

 

 

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




In the case of Tushaj 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. 13620/10) 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 Lek Tushaj (“the applicant”), on 6 March 2010.




  The applicant was represented by Ms E. Kokona and Ms E. Meli, lawyers 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 1970 and lives in Albania.

A.  Proceedings concerning the applicant’s reinstatement




  Further to the applicant’s dismissal, on 19 January 2007 the Civil Service Commission (“CSC”) ordered his employer, the Prime Minister’s Office, to reinstate him. No award of salary arrears was made.




  On 14 December 2007 the Supreme Court rejected the employer’s appeal and the CSC decision became final.




  On 27 February 2008 an enforcement writ was issued.




  On 28 March 2008 an appointment order was issued by the Department of Public Administration. However, the applicant was prevented by his employer from taking up his functions.




  On 12 April, 28 May and 15 July 2008 the applicant unsuccessfully requested his employer to comply with the appointment order.




  On 15 May and 25 June 2006 the People’s Advocate Office (“Ombudsperson”) unsuccessfully requested information from the applicant’s employer about compliance with the appointment order.




  On 12 February 2010 the Ombudsperson recommended the applicant’s employer to comply with the appointment order.




  On 20 April 2010 the applicant tendered his resignation.

B.  Proceedings concerning the payment of salary arrears




  On an unspecified date in 2009, having regard to the fact that the applicant had not been able to resume his work, he sought the payment of salary arrears before the domestic court.




  By final decision of 2 July 2009 the Supreme Court upheld the lower court’s decision declaring the case outside its jurisdiction, on the grounds that the action should have been lodged with the CSC.




  On 10 March 2010, following the applicant’s request, the CSC accepted his claim. It ordered his employer to pay the applicant’s salary arrears starting from 28 March 2008.




  It would appear that in March 2010 the applicant was paid the salary arrears in respect of the period between 28 March 2008 and 20 April 2010, the date on which he resigned.

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

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




  The applicant complained that the non-enforcement of the CSC decision of 19 January 2007, as upheld by the Supreme Court’s decision of 14 December 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.

A.  Admissibility

1.  As regards the complaint under Article 1 of Protocol No. 1 to the Convention




  The Government submitted that the applicant’s right to payment of salary was recognised only in March 2010, no such right having been recognised by virtue of the CSC decision of 19 January 2007. They requested the Court to reject the applicant’s claim about the payment of salary arrears for the period between 2007 and 2008 as being manifestly ill-founded, no such right having been recognised by the domestic courts.




  The applicant claimed that a right to payment of salary could be derived from the CSC decision of 19 January 2007 reinstating him to work. Even though he was belatedly paid salary arrears in respect of the period between 28 March 2008 and 20 April 2010, no salary was paid for the period between 19 January 2007 and 28 March 2008.




  The Court reiterates that an applicant can allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions related to his “possessions” within the meaning of this provision. “Possessions” can be either “existing possessions” or assets, including claims, in respect of which the applicant can argue that he or she has at least a “legitimate expectation” of obtaining effective enjoyment of a property right (see Gratzinger and Gratzingerova v. the Czech Republic (dec.) [GC], no. 39794/98, § 69, ECHR 2002-VII).




  In the instant case, the Court notes that the applicant’s right to reinstatement was finally upheld by the Supreme Court on 14 December 2007. It is from that date that an alleged violation of his Convention rights starts taking effect (see, in this connection, Gjyli, cited above, § 33).




  The Court further notes that the domestic court did not rule on the applicant’s right to payment of salary arrears, such right having been recognised in a separate set of proceedings and, only in respect of the period between 28 March 2008, which is the date of his reinstatement, and 20 April 2010, which is the date of his resignation (see paragraphs 13-16 above). The applicant himself admitted that the salary arrears in respect of the above period had been paid.




  In these circumstances, the Court considers that the applicant could not claim to be a victim of a breach of Convention rights as regards the alleged non-payment of salary arrears for the period between 19 January 2007 and 28 March 2008. It therefore dismisses this complaint as incompatible ratione personae in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

2.  As regards the remaining complaints under Articles 6 and 13 of the Convention




  The Court notes that the remainder of the applicant’s 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 the CSC reinstatement decision of 19 January 2007 was not enforced for a long time.




  The Government submitted that that decision was enforced on 28 March 2008.




  The Court notes that the relevant CSC decision became final on 14 December 2007. The appointment order was issued on 28 March 2008. In this connection, it notes that, while the public authorities took formal steps to enforce that decision, the applicant’s employer, in practice, prevented him from taking up his functions. This is supported by the applicant’s correspondence with the authorities (see paragraphs 8-11 above) and his proceedings concerning the payment of salary arrears. The Government provided no objective justification, whatsoever, for this non-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 on account of the non-enforcement of the decision in the applicant’s favour and a violation of Article 13 of the Convention in that there did not exist an effective domestic remedy against the non-enforcement.

II.  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 14,000 euros (EUR) in respect of pecuniary damage and EUR 5,000 in respect of non-pecuniary damage.




  The Government contested the applicant’s claims.




  The Court does not discern any causal link between the violation found and the pecuniary damage alleged. It therefore rejects this claim. On the other hand, it awards the applicant EUR 1,300 in respect of non-pecuniary damage.

B.  Costs and expenses




  The applicant also claimed EUR 2,200 for the costs and expenses incurred before this Court.




  The Government contested the applicant’s claims.




  Regard being had to the documents submitted by the applicant and to the fact that this case was the subject of well-established case-law and that the facts therein were straightforward, the Court considers it reasonable to award the sum of EUR 500 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.  Declares the complaints concerning Articles 6 § 1 and 13 of the Convention admissible and the remainder of the application inadmissible;

 

2.  Holds that there has been a violation of Articles 6 § 1 and 13 of the Convention on account of the non-enforcement of a final decision;

 

3.  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 1,300 (one thousand three hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 500 (five hundred 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;

 

4.  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