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
