FOURTH SECTION
CASE OF MEMISHAJ v. ALBANIA
(Application no. 40430/08)
JUDGMENT
STRASBOURG
25 March 2014
This judgment is final but it may be subject to editorial revision.
In the case of Memishaj v. Albania,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
Paul Mahoney, President,
Ledi Bianku,
Krzysztof Wojtyczek, judges
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 4 March 2014,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 40430/08) 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 Enver Memishaj (“the applicant”), on 21 July 2008.
2. The applicant was represented by Ms Entela Memishaj, a lawyer practising in Tirana. The Albanian Government (“the Government”) were represented by their Agent, Ms L. Mandia of the State Advocate’s Office.
3. On 11 July 2011 the application was communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1944 and lives in Tirana.
5. On 10 December 2001 the applicant, who worked as an accountant for the Tirana City Hall, was dismissed. The dismissal took effect on 11 January 2002.
6. On 6 February 2002, following the applicant’s action against his dismissal, the Civil Service Commission (“CSC”) quashed the dismissal decision and ordered his employer to reinstate him. By final decision of 8 May 2003, the Supreme Court upheld the CSC decision. On 10 March 2006 the applicant was offered employment by the Tirana City Hall (see paragraph 11 below).
7. On 15 May 2003 the Tirana District Court supplemented the CSC’s decision by ordering the Tirana City Hall to pay the applicant’s salary for the period between 10 December 2001 and the date of reinstatement. The employer’s request for revision was dismissed on 10 October 2003.
8. On 4 June 2003 an enforcement writ was issued in respect of both decisions.
9. On 31 March 2006 the Constitutional Court, following a constitutional complaint by the applicant, acknowledged that there had been a breach of the applicant’s right of access to court on account of the non-enforcement of the Supreme Court’s decision. However, it made no award.
A. The applicant’s reinstatement
10. On 1 March 2006 the applicant took up employment with the Ministry of Tourism, Culture, Youth and Sports (“the Ministry”).
11. On 10 March 2006 the Tirana City Hall appointed the applicant to a position in a maintenance company, which was responsible to the Tirana City Hall. The applicant challenged the appointment.
12. On 15 May 2006 the CSC quashed the appointment decision. The CSC decision became final, none of the parties having appealed against it.
B. Proceedings concerning payment of accrued interests
13. In 2004 and 2006 the applicant successfully sought the payment of accrued interest arising from the delay in the payment of his salary.
14. On 9 April 2008, following a third action by the applicant, the Tirana District Court found in the applicant’s favour and ordered the Tirana City Hall to pay the applicant ALL 774,076 in salary arrears and ALL 105,258 in accrued interest. The court reasoned that, since the applicant had taken up employment with the Ministry on 1 March 2006, the Tirana City Hall was obliged to pay him salary arrears for the period from 11 January 2002 (see paragraph 5 above) to 28 February 2006. That obligation had ceased to exist ipso lege as of 1 March 2006. Relying on an expert’s report, the court found that the applicant’s salary arrears for the period from 11 January 2002 to 28 February 2006 amounted to ALL 1,720,261, of which ALL 946,185 had been paid by the Tirana City Hall. The accrued interest for the corresponding period amounted to ALL 105,258.
15. On 11 November 2009 an enforcement writ was issued.
16. On 12 February 2010 it would appear that the Tirana District Court’s decision became final, the Supreme Court having dismissed the defendant’s appeal.
17. On 31 March 2010 the Tirana City Hall paid the salary arrears. There is no information in the case file concerning the payment of accrued interest.
18. On an unspecified date in 2010 the applicant lodged a fourth civil action seeking the payment of accrued interest for the period between 9 April 2008 and 31 March 2010 and the payment of social security contributions by the Tirana City Hall.
19. On 30 June 2010 the Tirana District Court found in his favour and ordered the Tirana City Hall to pay accrued interest as a result of the delay in payment of the salary arrears from 9 April 2008 to 31 March 2010 and social security contributions on the basis of the applicant’s indexed salary. No quantification of the amount was made.
20. On 8 July and 23 December 2011 the Court of Appeal and the Supreme Court, respectively, upheld the Tirana District Court’s decision.
II. RELEVANT DOMESTIC LAW AND PRACTICE
21. 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 AND OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION
22. The applicant complained that the non-enforcement of the final court decision of 8 May 2003, as supplemented by the decisions of 15 May 2003, 9 April 2008 and 30 June 2010, breached his rights under Articles 6 § 1 and 13 as well as under Article 1 of Protocol No. 1 to the Convention, which Articles 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
23. The Government submitted that the Supreme Court’s decision of 8 May 2003 was enforced on 1 March 2006 when the applicant began employment with the Ministry. Moreover, on 30 June 2007 the applicant qualified for an old-age pension. Consequently, the applicant could not claim to be a victim.
24. The applicant maintained his complaint that the Supreme Court’s decision of 8 May 2003 had not been enforced.
25. The Court considers that the question of whether the applicant could claim to be a victim should be joined to the merits and examined in conjunction with his complaint about the non-enforcement of the Supreme Court’s decision of 8 May 2003. The Court further considers that, even though the domestic courts’ decisions of 9 April 2008 and 30 June 2010 became final after the communication of the case to the respondent Government, they were given in response to the applicant’s actions about the alleged non-enforcement of the Supreme Court’s decision of 8 May 2003. These domestic developments were included in the Statement of Facts communicated to, and not disputed by, the Government and will be taken into account in the examination of the merits of this complaint.
26. The Court further considers that, since this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor inadmissible on any other grounds, it must therefore be declared admissible.
B. Merits
27. The Court recalls the general principles under Article 6 § 1 of the Convention concerning the non-enforcement of a final court decision set out, inter alia, in Qufaj Co. Sh.p.k. (cited above, § 38) and in Gjyli (cited above, §§ 43-44).
28. The Court notes that, on 8 May 2003, the Supreme Court ordered the applicant’s reinstatement by the Tirana City Hall. On 15 May 2003 the domestic court ordered the payment of salary arrears until the applicant’s reinstatement. The Government did not inform the Court of any measures which the authorities had taken to comply with that decision. The authorities’ failure to enforce that decision was also recognised by the Constitutional Court in its decision of 31 March 2006, although it was not capable of affording any redress for the breach of his right of access to court.
29. As a result of the authorities’ non-compliance with the Supreme Court’s decision of 8 May 2003, as supplemented on 15 May 2003, the applicant instituted proceedings seeking the payment of salary arrears and accrued interests. On 9 April 2008 and 30 June 2010 the domestic courts accepted his civil actions and awarded damages (see paragraphs 14 and 19 above). Even though the payment of salary arrears was executed on 31 March 2010, the payment of the accrued interest as well as social contributions remained unenforced. No justification was provided by the Government for the delay in payment and non-compliance with those domestic decisions. This further reinforced the above finding that the Supreme Court’s decision of 8 May 2003, as supplemented on 15 May 2003, remained unenforced.
30. That the applicant took employment with another State institution on 1 March 2006 was unrelated to and not in furtherance of the enforcement of the Supreme Court’s decision of 8 May 2003. The fact that the applicant qualified for an old-age pension, as alleged by the Government, could not serve as a justification for the authorities’ continuous failure to enforce the Supreme Court’s decision of 8 May 2003. Furthermore, the accrued interest, as a result of the late payment, and the social contributions which have a bearing on the applicant’s pension entitlement, have not yet been paid.
31. It follows that the applicant could claim to be a victim of a violation of his rights under Article 6 of the Convention and the Court rejects this objection of the Government (see, amongst others, Burdov v. Russia, no. 59498/00, § 31, ECHR 2002‑III). Furthermore, the Court finds that there has accordingly been a breach of Article 6 § 1 of the Convention.
32. In addition, the Court recalls that there exists no effective domestic remedy as regards the delayed enforcement or the non-enforcement of a final court judgment. In its judgments in the cases of Gjyli (cited above, §§ 55-60) and Puto and Others v. Albania (no. 609/07, §§ 33-35, 20 July 2010) the Court held that the Constitutional Court’s declaratory findings about a breach of an appellant’s right of access to court on account of the non-enforcement of a final court judgment did not offer any adequate redress. In particular, the Constitutional Court was not in a position to make any awards of pecuniary and/or non-pecuniary damage, nor could it offer a clear perspective to prevent the alleged violation or its continuation (see also paragraphs 9 and 28 above). Consequently, there has been a breach of Article 13 in conjunction with Article 6 § 1 of the Convention.
33. Finally, by virtue of the Supreme Court’s decision of 8 May 2003, as supplemented by the decisions of 15 May 2003, 9 April 2008 and 30 June 2010, the applicant’s right to the payment of accrued interest and social contributions was recognised. The impossibility for him to obtain the execution of those decisions constituted an interference with his right to peaceful enjoyment of his possessions, as set out in the first sentence of the first paragraph of Article 1 of Protocol No. 1 (see Burdov, cited above, § 40). Having regard to the fact that the Government submitted no objective justification for the authorities’ failure to comply with those decisions, the Court finds that there has also been a breach of Article 1 of Protocol No. 1 to the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
34. The applicant complained under Article 14 of the Convention that he was discriminated against on the ground of his political affiliation in respect of the non-enforcement of final court decisions in his favour. Article 14 of the Convention reads as follows:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
35. Even assuming that the applicant had exhausted all effective domestic remedies, in the light of all the material in its possession, and in so far as the matter complained of were within its competence, the Court finds that they did not disclose any appearance of a breach of Article 14 of the Convention in conjunction with Article 6 § 1. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
36. 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
37. The applicant claimed 2,000 euros (“EUR”) in respect of pecuniary damage: EUR 1,214 as regards the non-payment of accrued interest and EUR 786 as regards the non-payment of his old-age pension arising from the failure of Tirana City Hall to pay social contributions. The applicant further claimed EUR 26,428 in respect of non-pecuniary damage, namely: EUR 10,714 as regards compensation for his unfair dismissal from work on the grounds of political motives; EUR 3,571 as regards attacks to his honour and reputation which adversely affected his career; EUR 5,000 as regards damage to his quality of life; and EUR 7,143 as regards damage to his health.
38. The Government submitted that the applicant had been paid all outstanding amounts. Since he started receiving an old-age pension as of 10 January 2011, his claim for pecuniary damage should be rejected as ill-founded. As regards non-pecuniary damage, the Government argued that it was never alleged before the domestic courts that the applicant was dismissed on political grounds. Moreover, the applicant found alternative employment with other State and non-State institutions as a result of which he could not claim any damage to his honour and reputation. His claim for damage to his quality of life should be dismissed as unsubstantiated, as should his claim for damage to his health.
39. As to pecuniary damage, the Court has set out above the extent to which the applicant has and should be compensated. The Court considers that the applicant is entitled under domestic law to the judgment debt as regards the payment of accrued interest and social contributions. He is still in possession of such claim and thus no specific award in pecuniary damage should be made. In these circumstances and having regard to the aforesaid, the Court considers that the respondent Government should ensure the payment of accrued interest and social contributions as ordered by the domestic decisions of 9 April 2008 and 30 June 2010, in the applicant’s favour, within three months from the date of notification of the present judgment by the Court (see Čolić and Others v. Bosnia and Herzegovina, nos. 1218/07, 1240/07 and others, § 20, 10 November 2009; Solomatin v. Ukraine, no. 8191/04, § 30, 15 October 2009).
40. In respect of non-pecuniary damage, the Court considers that the applicant must have been caused frustration as a result of the non-enforcement of the final Supreme Court’s decision of 8 May 2003, as supplemented by the decisions of 15 May 2003, 9 April 2008 and 30 June 2010 in his favour. It awards the applicant EUR 4,700 in respect of non-pecuniary damage.
B. Costs and expenses
41. The applicant also claimed EUR 5,150 in costs and expenses: EUR 2,464 for the costs and expenses incurred before the domestic courts, EUR 2,400 for those incurred before this Court; and EUR 286 for sundry expenses (telecommunications and correspondence with his lawyers and the Court, photocopying and notary fees).
42. The Government argued that the applicant never raised before the domestic courts any claims for legal costs and expenses. His claims should be declared ill-founded or inadmissible as an abuse of the right of individual petition.
43. Regard being had to the number of successful domestic proceedings instituted by the applicant, the detailed supporting documents in its possession and to the issues raised in the present application, the Court considers it reasonable to award the sum of EUR 3,000 covering costs and expenses under all heads.
C. Default interest
44. 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. Decides to join to the merits of the complaint under Article 6 § 1 of the Convention the Government’s objection concerning the applicant’s “victim” status;
2. Declares the complaints under Articles 6 § 1 and 13 as well as under Article 1 of Protocol No. 1 to the Convention admissible and the remainder of the application inadmissible;
3. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the non-enforcement of the Supreme Court’s decision of 8 May 2003, as supplemented by the decisions of 15 May 2003, 9 April 2008 and 30 June 2010, and, consequently, dismisses the Government’s objection as regards the applicant’s “victim” status;
4. Holds that there has been a violation of Article 13 of the Convention in conjunction with Article 6 § 1 of the Convention;
5. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;
6. Holds
(a) that within three months the respondent State is to secure the enforcement of the domestic decisions of 9 April 2008 and 30 June 2010 as regards the payment of the accrued interest and social contributions;
(b) 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 4,700 (four thousand seven hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of costs and expenses;
(c) 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;
7. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 25 March 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş AracıPaul Mahoney
Deputy RegistrarPresident
Full & Egal Universal Law Academy