FOURTH SECTION
DECISION
Application no. 53115/07
Arben BAJRAKTARI
against Albania
The European Court of Human Rights (Fourth Section), sitting on 17 March 2015 as a Committee composed of:
Nona Tsotsoria, President,
Paul Mahoney,
Krzysztof Wojtyczek, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 12 November 2007,
Having regard to the comments submitted by the parties,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
The applicant, Mr Arben Bajraktari, is an Albanian national, who was born in 1967 and lives in Tirana.
The Albanian Government (“the Government”) were represented by their then Agent, Ms L. Mandia of the State Advocate’s Office.
On 11 July 2011 the application was communicated to the Government.
The facts of the case, as submitted by the parties, may be summarised as follows.
A. Proceedings concerning the applicant’s dismissal
On 10 November 2005 the applicant was dismissed from his position as Director of the Durrës Customs Office (“Kryetar i Degës Doganore Durrës”).
On 23 December 2005, following the applicant’s action against his dismissal, the Civil Service Commission (“CSC”) quashed the dismissal decision and ordered his employer to reinstate him. It also decided that the applicant should be paid salary arrears in respect of the period from his dismissal to the enforcement of the decision. It would appear that the CSC’s decision became final on 24 January 2006, no appeal having been lodged against it within the prescribed time-limit.
On 10 February 2006 the applicant’s employer made an application to appeal out of time against the CSC’s decision, which was dismissed by the Court of Appeal on 21 March 2006. That decision was upheld by the Supreme Court on 22 May 2007.
On 7 October 2008 the Constitutional Court, following the applicant’s constitutional complaint, found that there had been a breach of the applicant’s right of access to court as a result of the non-enforcement of the Court of Appeal’s decision of 21 March 2006.
B. Enforcement proceedings
On 6 April 2006 an enforcement writ was issued for the execution of the Court of Appeal’s decision.
On 22 November 2007 the applicant was appointed to the position of specialist at the Directorate General of Taxes (“përgjegjës zyre”). The applicant did not challenge the appointment and occupied this position until 3 February 2009.
On 23 January 2009 the bailiff ordered the applicant’s employer to pay the salary arrears in favour of the applicant in respect of the period from 10 November 2005 to 22 November 2007.
On 3 February 2009 the applicant was appointed to the position of Director of the Tirana Customs Office (“Drejtor i Drejtorisë Rajonale Tiranë”). The applicant did not challenge the appointment.
On 18 December 2009 the authorities paid the salary arrears in respect of the period during which the applicant had been unemployed, from 10 November 2005 to 22 November 2007.
C. Subsequent developments after the communication of the case
The Government submitted that on 3 February 2009 the applicant had been reinstated in his previous position as ordered by way of the CSC’s decision of 23 December 2005. They further stated that the salary arrears had been paid in respect of the period from 10 November 2005 to 22 November 2007. They did not make any payment of salary arrears in respect of the period from 23 November 2007 to 3 February 2009, the applicant having taken up employment with another State institution. Therefore, they requested the Court to strike out the case as the final decision in the applicant’s favour had been enforced.
The applicant submitted that the authorities had enforced the final decision on 3 February 2009, three years from the adoption of the enforcement writ. He also confirmed that the salary arrears in respect of the period from 10 November 2005 to 22 November 2007 had been paid, whereas that was not the case concerning the salary arrears in respect of the period from 23 November 2007 to 3 February 2009. He further complained about the authorities’ failure to pay him indexed salary arrears.
COMPLAINT
The applicant complained under Article 6 § 1 of the Convention about the non-enforcement of the CSC’s decision of 23 December 2005.
THE LAW
Having regard to the information submitted by the parties, the Court notes that on 22 November 2007 the applicant was appointed to the position of specialist at the Directorate General of Taxes. On 3 February 2009 he was appointed to the position of Director of the Tirana Customs Office, which was equivalent to the post the applicant used to occupy. He did not challenge the above appointments.
The Court further notes, as admitted by the parties, that the applicant was paid the salary arrears in respect of the period during which he was unemployed, that is from 10 November 2005 to 22 November 2007. As a result of his appointments on 22 November 2007 and, particularly, on 3 February 2009, the applicant received a comparable level of earnings, which he did not challenge domestically. The Court cannot accept the applicant’s claim that the salary arrears were not indexed, it not having been raised before and examined by the national courts.
In these circumstances, the Court finds that the matter under Article 6 § 1 of the Convention must be considered to have been resolved within the meaning of Article 37 § 1 (b) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case.
In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court, unanimously,
Decides to strike the application out of its list of cases.
Done in English and notified in writing on 9 April 2015.
Fatoş AracıNona Tsotsoria
Deputy RegistrarPresident
Full & Egal Universal Law Academy