FOURTH SECTION
DECISION
Application no. 1542/13
Selvi BEÇAJ
against Albania
The European Court of Human Rights (Fourth Section), sitting on 24 June 2014 as a Chamber composed of:
Ineta Ziemele, President,
Päivi Hirvelä,
Ledi Bianku,
Nona Tsotsoria,
Zdravka Kalaydjieva,
Paul Mahoney,
Faris Vehabović, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 8 January 2013,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Selvi Beçaj, is an Albanian national, who was born in 1983 and lives in Tirana. She was initially represented by Ms E. Meli and, subsequently, by Ms E. Kokona, lawyers practising in Tirana.
2. The Albanian Government (“the Government”) were represented by their then Agent, Ms L. Mandia and, subsequently, by Ms A. Hicka of the State Advocate’s Office.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Termination of the applicant’s employment
3. On 10 February 2010 the applicant was appointed, pursuant to a service contract (kontratë shërbimi), as first secretary at the Permanent Mission of Albania to the Organisation for Security and Cooperation in Europe in Vienna, Austria (“the Permanent Mission”).
4. On 5 December 2011 the applicant went on maternity leave. She gave birth to a child on 9 January 2012.
5. On 24 January 2012 the Minister of Foreign Affairs (“the Minister”) decided to terminate the applicant’s employment as from 24 February 2012.
6. On 24 February 2012 the Minister appointed the applicant to work as a specialist at the Ministry of Foreign Affairs (“the Ministry”) in Tirana. The applicant declined the offer.
7. On 22 March 2012 it was confirmed that the applicant had been divested of her diplomatic status and the benefits that derived from the exercise of her job as first secretary.
2. Judicial proceedings against the termination of employment
8. On 23 February 2012 the applicant challenged the Minister’s decision of 24 January 2012 before the Tirana District Court (“the District Court”).
9. On 4 May 2012 the District Court partially accepted the applicant’s civil action. It found that the termination of her employment while she was on maternity leave was in breach of Articles 105/a and 107 § 1 of the Labour Code. It therefore annulled the Minister’s decision of 24 January 2012 and ordered the applicant’s reinstatement. The District Court further held that the reasons advanced by the applicant’s employer for the termination of her employment, such as the commission of traffic offences in Austria, did not prevail over the legal guarantees afforded to women during the post-natal leave period. The District Court decided that its decision should be provisionally enforced in accordance with Article 317 of the Code of Civil Procedure (“CCP”). Having regard to the applicant’s situation and the position she occupied, the District Court ordered that, in addition to her reinstatement, the applicant’s accreditation should be renewed and her benefits restored, including the grant of a residence permit, provision of accommodation, payment of salary and provision of medical examinations which had started in the applicant’s place of residence on account of her employment (paditësja vlerësohet se duhet të kthehet në një detyrë, e cila për nga rëndësia dhe specifikat e saj, implikon procedura të caktuara që lidhen me akreditimin dhe ripërfitimin e benefiteve (leja e qendrimit, përfitimi i pagës, ekzaminimet mjekësore të nisura në vendin e qendrimit për shkak të punës)). The Ministry appealed.
10. On 22 November 2012 the Tirana Court of Appeal upheld the lower court’s decision.
11. On 17 December 2012 the Ministry appealed to the Supreme Court. The proceedings are currently pending before that court[1].
3. Enforcement proceedings
12. On 22 June 2012 the District Court issued a writ of execution in respect of its decision of 4 May 2012 in accordance with Articles 510 and 511 of the CCP.
13. On 9 July 2012 the bailiff unsuccessfully requested the Ministry to comply voluntarily with the District Court’s decision, as upheld by the Court of Appeal.
14. On 27 July 2012, having regard to the Ministry’s failure to comply with the District Court’s decision voluntarily, the bailiff decided to proceed with the mandatory enforcement thereof.
15. On 12 December 2012, having regard to the Ministry’s failure to enforce the decision, the bailiff warned the Ministry that it would be fined in accordance with Article 606 of the CCP.
4. Events disclosed subsequent to the communication of the case
16. The Government submitted that on 19 December 2012, at the applicant’s request, the bailiff decided to terminate the enforcement proceedings (pushimin e ekzekutimit me kërkesë të kreditorit). It transpired from the bailiff’s decision that the applicant had decided to transfer the file to another bailiff’s office for supervision and enforcement (për ta transferuar te një përmbarues tjetër).
17. The Government further submitted that pursuant to the Minister’s order no. 222 of 13 May 2013 the applicant had been appointed as first secretary, a position equivalent to the one she used to hold, at the Consulate General of Albania in Istanbul, Turkey (“the Consulate General”). The Ministry’s letter to the Consulate General of 14 May 2013, as submitted by the applicant, stated that “the Ministry undertakes to pay Ms Beçaj only her monthly salary (Ministria...merr përsipër vetëm shpenzimet e pagës mujore)”.
18. On 1 August 2013 the State Advocate’s Office sent a letter to the Ministry, the relevant extracts of which read as follows:
“Having regard to the circumstances in which the applicant, Ms Beçaj, has lodged an application with the European Court of Human Rights about the delayed enforcement of the District Court’s decision of 4 May 2012, as upheld by the Court of Appeal’s decision of 22 November 2012, and the recent development whereby the applicant has already taken up employment as first secretary at the Consulate General of the Republic of Albania in Istanbul, we request the Ministry of Foreign Affairs to contact Mr Beçaj and ask her to withdraw the application [lodged] with the European Court of Human Rights, in so far as the State complied with its obligation to enforce the court decision by way of order no. 222 of 13 May 2013, notwithstanding the applicant’s withdrawal from the enforcement proceedings (kërkojmë nga ana e Ministrisë së Punëve të Jashtme të bëjë të mundur kontaktimin me Znj. Beçaj dhe kërkimin prej saj të heqjes dorë prej aplikimit në Gjykatën Evropiane të të Drejtave të Njeriut, për sa kohë detyrimet e shtetit ndaj ekzekutimit të vendimit gjyqësor të sipërpërmendur janë plotësuar nëpërmjet urdhrit nr. 222 datë 13.05.2013, pavarësisht prej heqjes dorë prej saj nga ekzekutimi i këtij të fundit).”
19. On 6 August 2013 the Ministry sent a letter to the Consulate General, the relevant extracts of which read as follows:
“In their request for the protection of the State’s interests, the State Advocate’s Office request the Ministry, having regard to Ms Beçaj’s appointment as first secretary at the Consulate General, [to ask her] to withdraw the application she has lodged with the European Court of Human Rights (Avokatura e Shtetit në kërkesën e saj për mbrojtjen e të drejtave të shtetit shqiptar kërkon nga MPJ që duke u nisur nga kushtet kur Znj. Beçaj është emëruar si Sekretare e Parë në Konsullatën e Përgjithshme të RSH-së në Stamboll të heq dorë nga e drejta e ankimit pranë GJEDNJ-së).”
20. On 20 December 2013, as part of her observations, the applicant submitted a statement, which she had signed on 27 August 2013, withdrawing her application from the Court. The statement reads as follows:
“Further to the State Advocate’s Office’s letter ... about my position concerning the application lodged by me, Silvi Beçaj, before the European Court of Human Rights, I inform [you] that I withdraw from pursuing this application before that court (referuar shkresës së Avokaturës së Shtetit...mbi qendrimin tim personal mbi çështjen e ngritur prej meje, Silvi Beçaj, në Gjykatën e të Drejtave të NJeriut, Strasbourg, informoj se jap dorëheqjen për vazhdimin e kësaj çështje pranë kësaj gjykate).”
21. She maintained that the statement was made as a result of pressure exerted by the Government.
B. Relevant domestic law
1. Labour Code
22. Article 104 § 1 provides that the duration of maternity leave is thirty‑five days in respect of pre-natal leave and forty-two days in respect of post-natal leave. Article 105 § 2 states that when the period of post-natal leave is over, a woman may decide whether she wishes to return to work or benefit from social insurance entitlements. Under Article 105/a, in the event that a woman’s employer terminates her employment during her pregnancy or following her return to work after the birth of a child, the employer must prove that the reason for the termination was not the woman’s pregnancy or the birth of the child. Under Article 107 § 1 the termination of employment is void if it takes place during the period in which the woman is entitled to social insurance payments subsequent to the birth of a child.
2. Code of Civil Procedure (“CCP”)
23. Under Article 317 a court decision may be provisionally enforced if it concerns payment of damages owing to unjust dismissal from work. Its provisional enforcement may also be ordered, if, owing to the delay in enforcement, the plaintiff may suffer significant damage which cannot be remedied or if the enforcement would become impossible or would be made exceedingly difficult.
24. Article 510 provides that a court decision which orders provisional enforcement thereof constitutes an execution title. Under Article 511 the execution title is enforceable at the creditor’s request.
COMPLAINT
25. The applicant complained that there had been a breach of her rights under Articles 6 § 1, 8 and 13 of the Convention as well as under Article 1 of Protocol No. 1 to the Convention on account of the non-enforcement of a final decision given in her favour.
THE LAW
A. As regards alleged violations of Articles 6 § 1, 8 and 13 of the Convention and Article 1 of Protocol No. 1
26. The applicant complained that there had been a breach of Articles 6 § 1, 8 and 13 of the Convention as well as of Article 1 of Protocol No. 1 on account of the non-enforcement of the Tirana District Court’s decision of 4 May 2012, as upheld by the Tirana Court of Appeal’s decision of 22 November 2012.
Article 6 § 1 of the Convention reads, in so far as relevant, as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
Article 8 of the Convention reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 13 of the Convention reads as follows:
“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 to the Convention reads as follows:
“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.”
1. The parties’ arguments
27. The Government pointed out that the domestic proceedings were pending before the Supreme Court. In their view, the application should be declared inadmissible since the right of individual petition had been abused. The applicant had failed to inform the Court, prior to the communication of the case, about the termination, at her request, of the enforcement proceedings in 2012. Nor had she informed the Court about her appointment as first secretary at the Consulate General in 2013. Having regard to the latter development, the Government considered that the matter had been resolved and the Court should strike the application out of its list of cases pursuant to Article 37 § 1 (b) of the Convention. Lastly, the Government submitted that the applicant had failed to exhaust domestic remedies by asking the bailiff to impose a fine on the Ministry for its failure to enforce the final decision in her favour in accordance with Article 606 of the CCP.
28. The applicant submitted that she had never requested the termination of the enforcement proceedings. Her request of 18 December 2012 had related to the transfer of the supervision and execution to another bailiff’s office. Her appointment as first secretary at the Consulate General could not be considered as full enforcement of the decision in her favour, because she was offered a monthly salary to the exclusion of any benefits such as a housing allowance and health and social insurance to which she had been entitled in her previous posting at the Permanent Mission. During the enforcement proceedings, given the Ministry’s failure to comply with the decision voluntarily, the bailiff had informed the Ministry that they would start the procedure for mandatory compliance with the decision. They had further warned the Ministry about the imposition of a fine under Article 606 of the CCP.
2. The Court’s assessment
29. To the extent that the issues complained of fall within the Court’s competence ratione materiae, the Court does not find it necessary to examine any of the Government’s objections as regards the admissibility of these complaints, since it considers that the complaints are in any event inadmissible for the reasons given below.
30. The right to a court protected by Article 6 would be illusory if a Contracting State’s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. Execution of a judgment given by any court must therefore be regarded as an integral part of the “trial” for the purposes of Article 6 (see Hornsby v. Greece, 19 March 1997, § 40, Reports of Judgments and Decisions 1997‑II).
31. Turning to the circumstances of the present case, the Court notes that, following the institution of judicial proceedings by the applicant against the termination of her employment, on 4 May 2012 the District Court partially accepted her civil action and decided that its decision should be provisionally enforced. This decision was upheld on appeal on 22 November 2012. At the applicant’s request, a writ of execution was issued on 22 June 2012.
32. The applicant complained that there had been a breach of Articles 6 § 1, 8 and 13 of the Convention as well as of Article 1 of Protocol No. 1 as a result of the authorities’ failure to enforce the District Court’s decision of 4 May 2012. In this connection, the Court notes that, following an appeal by the Ministry, as submitted by the Government, this case is pending for examination before the Supreme Court. Irrespective of the nature of provisional enforcement of a domestic decision under domestic law, it is the Court’s established case-law that Article 6 protects the enforcement of final and binding judicial decisions, and not decisions which may be subject to subsequent review by a higher court and, eventually, quashed (see Gjyli v. Albania, no. 32907/07, § 33, 29 September 2009). It is in line with the subsidiary character of the Convention machinery as prescribed by Article 35 § 1 that “the Court may only deal with the matter after all domestic remedies have been exhausted”.
33. Having regard to the fact that proceedings are pending before the Supreme Court, which means that the District Court’s decision does not have the effect of res judicata, the Court considers that the applicant’s complaints under Articles 6 § 1, 8 and 13 of the Convention as well as under Article 1 of Protocol No. 1 concerning the non-enforcement of the District Court’s decision of 4 May 2012 are inadmissible as being premature and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
B. As regards an alleged violation of Article 34 of the Convention
34. In her observations, the applicant complained that she had been pressured to withdraw her application to the Court. As a result, she was forced to sign the statement withdrawing her application from the Court, which she submitted to the Court on 20 December 2013 as part of her observations.
35. Having regard to the order of events as set out in paragraphs 18 to 20 above, the Court has decided to raise of its own motion the question of the respondent State’s compliance with its obligation under Article 34 of the Convention (see, mutatis mutandis, Shamayev and Others v. Georgia and Russia, no. 36378/02, § 468, ECHR 2005‑III), which reads, in so far as relevant, as follows:
“The Court may receive applications from any person ... claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”
36. The Government submitted that the letters of the State Advocate’s Office had been sent to the Ministry instead of to the applicant because, in their view, the decision in the applicant’s favour had been enforced. There had never been any attempt by the authorities to put pressure on the applicant to withdraw her application to the Court.
37. The Court reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted by Article 34 that applicants or potential applicants should be able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints (see, among other authorities, Akdivar and Others, cited above, § 105, and Aksoy v. Turkey, 18 December 1996, § 105, Reports 1996-VI).
38. Whether or not contact between the authorities and an applicant are tantamount to unacceptable practice from the standpoint of Article 34 must be determined in the light of the particular circumstances of the case. In this respect, regard must be had to the vulnerability of the complainant and his or her susceptibility to influence exerted by the authorities (see Akdivar and Others, cited above, § 105, and Kurt v. Turkey, 25 May 1998, § 160, Reports of Judgments and Decisions 1998‑III). Even an informal “interview” with the applicant, let alone his or her formal questioning in respect of the Strasbourg proceedings, may be regarded as a form of intimidation (contrast Sisojeva and Others v. Latvia [GC], no. 60654/00, §§ 117 et seq., ECHR 2007-I).
39. Turning to the circumstances of the present case, on 1 August 2013 the State Advocate’s Office requested, in writing, the applicant’s employer, the Ministry, to ask the applicant “to withdraw the application lodged with the European Court of Human Rights”. On 6 August 2013 the Ministry sent a letter to the Consulate General with a view to requesting the applicant to withdraw her application. On 27 August 2013 the applicant signed a statement withdrawing her application.
40. The Court would emphasise that it is in principle not appropriate for the authorities of a respondent State to enter into direct contact with an applicant with a view to securing the applicant’s unilateral withdrawal of his or her application (see, mutatis mutandis, Akdivar and Others, cited above, §§ 104-06; Kurt, cited above, §§ 161-65; Ryabov, cited above, §§ 59-65; Fedotova v. Russia, no. 73225/01, § 51, 13 April 2006; Akdeniz and Others v. Turkey, no. 23954/94, §§ 118-121, 31 May 2001; Assenov and Others v. Bulgaria, 28 October 1998, §§ 169-171, Reports 1998‑VIII; and Ergi v. Turkey, 28 July 1998, § 105, Reports 1998‑IV). If a Government has reason to believe that in a particular case the right of individual petition has been abused, the appropriate course of action is for that Government to alert the Court and to inform it of its misgivings. In general, Governments should avoid action capable of being interpreted as an attempt to coerce or intimidate.
41. However, unlike previous cases, where an official from the local military prosecutor’s office had paid the applicant a visit (Konstantin Markin v. Russia [GC], no. 30078/06, § 162, ECHR 2012 (extracts)), or where the applicant had been directly contacted by State officials with regard to his complaints brought before the Court (Popov v. Russia, no. 26853/04, § 250, 13 July 2006), or where the applicant had been forced by State officials to write a statement withdrawing his application before the Court (Knyazev v. Russia, no. 25948/05, §§ 112-19, 8 November 2007), the present case concerned an isolated incident on the part of the authorities, in writing, to request the applicant to withdraw her application. The Court finds no indication, on the basis of the documents in the case file, of a recurrence of that attempt.
42. The Court has accepted that the parties may settle a case pending before it, without resorting to the friendly settlement mechanism provided for by Article 39 of the Convention. They should be left with ample room to explore the possibility of resolving disputes otherwise than by a judgment. At the same time, steps taken by a State in the context of settlement negotiations with an applicant should not take on any form of pressure, intimidation or coercion (see Yevgeniy Alekseyenko v. Russia, no. 41833/04, §§ 172-73, 27 January 2011). The Court must look beyond appearances and examine the realities of the situation complained of. It is in this context that the Court is prepared to accept that the authorities’ letters were an attempt to resolve the matter with the applicant with a view to subsequently requesting the Court to strike the application out of its list of cases in accordance with Article 37 § 1 (b) of the Convention. The Court cannot discern any expressions, references or insinuations of a threatening nature in the authorities’ letters (see, conversely, Petra v. Romania, 23 September 1998, § 44, Reports of Judgments and Decisions 1998‑VII). Nor can the Court infer any negative consequences resulting from the authorities’ letters in relation to the applicant, in the absence of any indication to the contrary.
43. Lastly, the applicant was represented by counsel throughout the proceedings before this Court. She could therefore reasonably be expected to seek legal advice on the course of action to be followed. In this connection, the Court takes note of the applicant’s statement of 27 August 2013 withdrawing her application. There is no indication that the applicant wrote the above statement as a result of immediate, direct pressure or coercion on the part of the authorities. Had that been the case, the applicant should have informed the Court promptly of this development instead of waiting to submit the statement on 20 December 2013 as part of her observations. It further transpires from the case file that the Government was not in possession of such statement. The circumstances of the case do not lend credence to the applicant’s allegation that she was forced or pressured to make that statement (compare and contrast Knyazev, cited above).
44. Having regard to the above considerations, the Court is not persuaded that there is sufficient basis on which to find any hindrance of the right of individual petition in this case and decides not to pursue the matter (see, for example, Charalambous and Others v. Turkey (dec.), nos. 46744/07, 16622/08, 29673/08, 37368/08, 45656/08, 4584/10, 4649/10, 4852/05, 5189/10, 5210/08, 5247/08, 5270/08, 5277/08, 5281/08, 59490/09, 60676/08, 60678/08, 60688/08, 60696/08, 60719/08, 60734/08, 60742/08, 60771/08, 6081/10, 7048/08, 7086/08, 7439/08, 7512/08, 7839/10, § 74, 3 April 2012).
For these reasons, the Court, unanimously,
Declares the applicant’s complaint under Articles Articles 6 § 1, 8 and 13 of the Convention as well as under Article 1 of Protocol No. 1 inadmissible;
Decides not to pursue the complaints raised under Article 34 of the Convention.
Fatoş AracıIneta Ziemele
Deputy RegistrarPresident
[1]. As extracted from the Supreme Court’s website on 8 April 2014:
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