THIRD SECTION
CASE OF ELGAKOTI SH.P.K. AND OTHERS v. ALBANIA
(Application no. 63986/10 and 5 others – see appended list)
JUDGMENT
STRASBOURG
6 July 2023
This judgment is final but it may be subject to editorial revision.
In the case of Elgakoti SH.P.K. v. Albania,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Ioannis Ktistakis, President,
Darian Pavli,
Oddný Mjöll Arnardóttir, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,
Having deliberated in private on 15 June 2023,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in applications against Albania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.
2. The Albanian Government (“the Government”) were given notice of the applications.
THE FACTS
3. The list of applicants and the relevant details of the applications are set out in the appended table.
4. The applicants complained of the non-enforcement or delayed enforcement of domestic decisions. Some applicants also raised other complaints under the Court’s well-established case-law.
THE LAW
JOINDER OF THE APPLICATIONS5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.
Standing of the applicant’s heirs to pursue application NO. 45719/126. The Court was informed on 4 May 2015 that Mr Kulo, the applicant in application no. 45719/12, had died and that the domestic court had designated, as heirs, Mrs Anila Kulo, Ermioni Kulo and Elina Kulo, each of them bearing 1/3 of his rights and obligations.
7. The Court considers that the applicant’s heirs have a legitimate interest in taking the applicant’s place (see Dalban v. Romania [GC], no. 28114/95, §§ 1 and 39, ECHR 1999 VI, and Ernestina Zullo v. Italy [GC], no. 64897/01, § 37, 29 March 2006).
8. Accordingly, the Court holds that Mrs Anila Kulo, Ermioni Kulo and Elina Kulo have standing to continue the present proceedings. The Court, however, will still refer to Mr Kulo as the applicant in the present judgment.
ALLEGED VIOLATION OF ARTICLE 6 § 1 THE CONVENTION9. The applicants complained principally of the non-enforcement or delayed enforcement of domestic decisions given in their favour. They relied, expressly or in substance, on Article 6 § 1 of the Convention.
10. The Court reiterates that the execution of a judgment given by any court must be regarded as an integral part of a “hearing” for the purposes of Article 6. It also refers to its case-law concerning the non-enforcement or delayed enforcement of final domestic judgments (see Hornsby v. Greece, no. 18357/91, § 40, Reports of Judgments and Decisions 1997‑II).
11. In the leading cases of Qufaj Co. Sh.p.k. v. Albania, no. 54268/00, 18 November 2004, and Gjyli v. Albania, no. 32907/07, 29 September 2009, the Court already found a violation in respect of issues similar to those in the present case.
12. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of the above complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the authorities did not deploy all necessary efforts to enforce fully and in due time the decisions in the applicants’ favour.
13. These complaints are therefore admissible and disclose a breach of Article 6 § 1 of the Convention.
OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW14. The applicants in applications nos. 63986/10, 11487/11, 48963/11, 45720/12 and 71642/12 also complained under Article 13 of the Convention and Article 1 of Protocol No. 1 about the non-enforcement and delayed enforcement of the domestic decisions in their favour. Having regard to the facts of the case, the submissions of the parties, and its findings above, the Court considers that it has examined the main legal question raised in the present applications. It thus finds that the applicants’ remaining complaints are admissible but that there is no need to give a separate ruling on them (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014, and Habilaj v. Albania [Committee], no. 2480/10, § 14, 15 September 2022).
APPLICATION OF ARTICLE 41 OF THE CONVENTION15. 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.”
16. Regard being had to the documents in its possession and to its case‑law (see, in particular, Qufaj Co. Sh.p.k., cited above, §§ 46-48, and Gjyli, also cited above, §§ 62-76), the Court considers it reasonable to award the sums indicated in the appended table.
17. As regards application no. 11487/11, the applicant claimed that from the time of termination of the contract until his reinstatement his salary had increased, but he had not been paid its indexation. He requested the payment of the indexation of his salary for several years. The final court’s decision does not describe any sums from which his salary could be calculated, however, the Court considers that had the applicant been reinstated in due time, as the decision ordered, he would have been entitled to receive his salary in full, and the indexation of his salary should be considered as an integral part of the domestic courts’ ruling. Furthermore, this approach is supported by the domestic provisions of the Labour Code, under Article 120, entitling the employees to benefit automatically from the indexation. The debtor in the enforcement proceedings, that is the authorities in the present case, has to contest the amount to be enforced (see Memishaj v. Albania [Committee], no. 40430/08, § 39, 25/03/2014).
18. The applicant in application no. 71642/12 submitted that the authorities had also failed to pay him the health and social contributions, which had a bearing on his entitlement to an old age pension, as well as had not paid him any accrued interest. As to the claims in respect of health and social contributions, the Court notes that the employer is the only one in the position to pay contributions to the health insurance and retirement funds relating to wages due for the time it had paid the applicant salary arrears; these contributions should therefore be considered as an integral part of the national courts’ ruling, and it is up to the Government to take the necessary measures in this direction (see Miclici v. Romania, no. 23657/03, §§ 66-67, 20 December 2007).
19. The State should also ensure, by appropriate means, the enforcement of the pending domestic decisions referred to in the appended table.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Decides to join the applications;Declares that Mrs Anila Kulo, Ermioni Kulo and Elina Kulo have standing to continue the proceedings on behalf of late Mr Kulo, the applicant in application no. 45719/12;Declares the complaints concerning the non-enforcement and delayed enforcement of the domestic decisions under Article 6 of the Convention, admissible, and decides that there is no need to examine the remaining complaints in applications nos. 63986/10, 11487/11, 48963/11, 45720/12 and 71642/12;Holds that the applications disclose a breach of Article 6 § 1 of the Convention concerning the non-enforcement and delayed enforcement of domestic decisions;Holds that the respondent State shall ensure, by appropriate means, within three months, the enforcement of the pending domestic decisions referred to in the appended table, also taking into account the Court’s findings in paragraphs 17 and 18 above;Holds(a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(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.
Done in English, and notified in writing on 6 July 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Viktoriya Maradudina Ioannis Ktistakis
Acting Deputy Registrar President
APPENDIX
List of applications raising complaints under Article 6 § 1 of the Convention
(non-enforcement or delayed enforcement of domestic decisions)
No.
Application no.
Date of introduction
Applicant’s name
Year of birth/registration
Representative’s name and location
Relevant domestic decision
Start date of non-enforcement period
End date of non-enforcement period
Length of enforcement proceedings
Domestic award (in euros)
Details of enforcement writ
Amount awarded for non-pecuniary damage per applicant
(in euros)
Amount awarded for costs and expenses per application
(in euros)[1]
63986/10
09/10/2010
ELGAKOTI SH.P.K.
1994
Ibra Bardhyl
Elbasan
Vlora Court of Appeal, 22/06/1999
25/02/2000
pending
More than 22 year(s) and 8 month(s)
Vlora Court of Appeal, 22/06/1999 ordered the Vlora Directorate of Health Services to pay the applicant company the total sum of 3,130,600 Albanian lek (“ALL”).
Vlora District Court, no. 173 09/09/1999
2,500
-
11487/11
16/02/2011
Arben CARCIU
1961
Kokona Elira
Tirana
Civil Service Commission,
16/06/2006
18/01/2008
Partially enforced on 15/01/2015 as regards the re-instatement and payment of salary arrears
6 year(s) and 11 month(s) and 29 day(s)
Civil Service Commission decision no.456 of 16/06/2006, ordered the removal of the disciplinary measure applied to the applicant; his reinstatement to the previous position and the payment of salary arrears until reinstatement.
Tirana District Court, no. 18, 18/02/2011
3,600
250
48963/11
26/07/2011
Edipe SHKËMBI
1955
Tirana District Court, 06/06/2005
20/06/2005
31/03/2015
8 year(s) and 9 month(s) and 12 day(s)
(partially enforced in July 2007; the applicant reached the retirement age in 2015)
Tirana District Court decision no. 1368 of 06/06/2005, as upheld by the Tirana Court of Appeal on 20/06/2006 ordered the applicant’s employer, the Albanian Public Broadcaster, to reinstate her and pay the applicant damages in the total sum of 552,500 ALL as a result of the unfair dismissal.
Tirana District Court, no.419,
05/02/2009
4,700
-
45719/12
13/07/2012
Harallamb KULO
Born in 1945
Died in 2012
Heirs
Ermioni Kulo
Anila Kulo
Elina Kulo
Civil Service Commission, 12/07/2006
31/03/2008
26/01/2016
7 year(s) and 9 month(s) and 27 day(s)
Civil Service Commission on 12/07/2006 ordered the amendment of a disciplinary measure on the dismissal of the applicant and substituted it with a lighter measure. If further ordered the return of the applicant to the previous position and payment of salary arrears until reinstatement. This decision was upheld by the Tirana Court of Appeal on 31/03/2008.
Tirana Court of Appeal, 31/03/2008
3,600,
to be paid jointly to the heirs
-
45720/12
09/07/2012
Fisnik BROVINA
1964
Tirana Court of Appeal, 13/09/2011
08/03/2012
Pending for more than 11 year(s) and 1 month(s) and 7 day(s)
Tirana Court of Appeal decision no.1789 of 13/09/2011 ordered the invalidation of the acts on the dismissal of the applicant from his position, his reinstatement to his previous position, and payment of salary arrears until reinstatement. It also ordered the applicant’s employer to pay him the difference between the salary of the Secretary General of the institution and the applicant’s salary for two months.
Tirana District Court, no.5544, 18/10/2011
4,700
-
71642/12
03/11/2012
Sotiraq GJATA
1953
Tirana District Court, 30/11/2006
19/02/2008
Partially enforced on 19/12/2018
10 year(s) and 10 month(s) and 1 day(s)
(the applicant reached the retirement age in 2018)
Tirana District Court decision no.6807 of 30/11/2006, upheld by the Court of Appeal decision no. 1396 of 16/11/2007, ordered the annulment of the applicant’s dismissal order, his reinstatement to the previous position and the payment of salary arrears according to his monthly payment in the sum 36,789 ALL until reinstatement.
Tirana District Court, no.432, 19/02/2008
4,700
-
[1] Plus any tax that may be chargeable to the applicants.