Communicated on 16 March 2015
FOURTH SECTION
Application no. 1490/10
Pal NIKOLLI
against Albania
lodged on 17 December 2009
STATEMENT OF FACTS
The applicant, Mr Pal Nikolli, is an Albanian national, who was born in 1958 and lives in Tirana.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant has been working as a permanent associate professor (pedagog i brendshëm, professor i asociuar) at the University of Tirana Department of Geography since 1999.
On 28 September, 22 October and 16 November 2004 the Department of Geography, the Council of the History and Philology Faculty and the Tirana University Senate, respectively, gave their approval in support of the applicant’s application to obtain the academic title of professor.
On an unspecified date in 2004 the applicant made an application to the Commission of Scientific Qualification (“Commission” – Komisioni i Kualifikimit Shkencor), which is the ultimate authority that confers academic titles.
On 4 March 2005 the Commission decided against the application, no reasons having been given. In its recital, the decision stated that the Commission relied on a Council of Ministers’ decision adopted in 1998 (“the Council of Ministers’ decision 1998”).
On 14 April 2005, in response to a letter by the applicant, the Commission’s Chairman responded that “in view of more rigorous requirements laid down by a 2004 Council of Ministers’ decision, amending the Council of Ministers’ decision 1998, reservations were expressed concerning [the quality of] the applicant’s academic works”. The letter stated that the decision was final.
On an unspecified date in 2005 the applicant lodged a civil action seeking the Tirana District Court (“the District Court”), inter alia, to set aside the Commission decision.
On 27 September 2005 the District Court ruled in favour of the applicant and ordered the Commission to re-examine the application. It found that the Commission’s decision lacked reasons contrary to Article 108 § 1 (a) and (c) of the Code of Administrative Procedure (“CAP”). The Commission had retroactively applied the Council of Ministers’ decision 2004 instead of relying on the Council of Ministers’ decision 1998 in breach of Article 22 § 2 of the CAP. The Commission should have ordered an expert’s report to assess the quality of the applicant’s works.
On 12 December 2006 the Court of Appeal quashed the District Court’s decision. The decision stated that, in accordance with the legal provisions, the Commission was the authority responsible for conferring academic titles. An application to the Commission did not result in an automatic award of the academic title. Relying on the Council of Ministers’ decisions 1998 and 2004, the quality of the applicant’s works was not satisfactory and persuasive to the Commission. It was open to the applicant to lodge a fresh application within three years from the date of the Commission decision.
On 10 January 2007 the applicant lodged an appeal to the Supreme Court. He complained, inter alia, that the Commission decision was devoid of reasons, that the Commission had given retroactive effect to the Council of Ministers’ decision 2004 and that no expert’s report had been ordered to assess the quality of his works.
On 13 February 2009 the Supreme Court dismissed in camera the applicant’s appeal, no reasons having been given.
On 23 June 2009 the applicant lodged a constitutional complaint raising the same grounds of appeal as those advanced before the Supreme Court.
On 1 July 2009 the Constitutional Court, sitting as a full court, rejected the appeal stating that the applicant failed to substantiate a breach of his right to a fair hearing.
B. Relevant domestic law
1. Code of Administrative Procedure (“CAP”)
For the purposes of the CAP, administrative acts are decisions given by a public administration authority and which create legal consequences in respect of an individual case (article 105). Administrative acts, which, inter alia, deny, extinguish, restrict or affect in any way a legitimate right or interest, or which decide against a petitioner’s claims or against an official opinion or proposal should be reasoned (Article 108 § 1 (a) and (c)).
Under Article 22 the administrative jurisdiction is determined at the time of the institution of administrative proceedings. Subsequent legal amendments have no effect, unless the administrative authority before which the proceedings were launched ceased to exist, no longer had jurisdiction or acquired new jurisdiction which it did not have at the institution of the proceedings.
Articles 89 to 92 provide for the use of an expert’s report in the event of assessments or examinations.
2. Award of academic titles
According to section 27 of the Higher Education Act (law no. 8461 of 25 February 1999) the Commission of Scientific Qualification (“the Commission”) was responsible for the classification of teaching staff in higher education.
The Council of Ministers’ decision 1998 (no. 786 of 17 December 1998) stated that the Commission was composed of fifteen members: six senior officials covering various subject areas and nine representatives having senior qualifications in respect of various scientific fields (section 5). The Commission was responsible, inter alia, for awarding the academic title of professor. Before making an application to the Commission to obtain such title, an applicant had to obtain the prior approval of the corresponding Department, the Faculty and the University Senate. The Commission decision was taken by secret ballot (section 4.4). In the event of a negative decision, the applicant had the right to make a fresh application within one year from the date of the decision (section 4.7). The Commission was responsible for drafting and approving its internal regulation (section 5.2.6).
The Council of Ministers’ decision 2004 (no. 897 of 29 December 2004) brought about some amendments to the decision 1998. Section 4.2.1 states, inter alia, that the quality of an applicant’s works is reviewed by two assessors (oponentë) appointed by the Chairman of the University Senate. Under section 4.4 the Commission decision is taken by secret ballot and is final. In the event of a negative decision, the applicant has the right to make a fresh application within three years from the date of the decision (section 4.7).
COMPLAINTS
The applicant complains under Article 6 § 1 of the Convention that: (i) the Commission’s decision was not substantiated and (ii) there has been a breach of the principle of legal certainty as regards the Commission’s retroactive application of the Council of Ministers’ decision 2004.
QUESTIONS TO THE PARTIES
1. Was Article 6 § 1 of the Convention applicable to the proceedings in the present case? In particular, did the domestic proceedings concern the determination of a “right” within the meaning of Article 6 (see Masson and Van Zon v. the Netherlands, 28 September 1995, § 49, Series A no. 327‑A; Gutfreund v. France, no. 45681/99, ECHR 2003‑VII; and Boulois v. Luxembourg [GC], no. 37575/04, ECHR 2012)? If so, was this a “civil right”? The parties are requested to point to provisions of the relevant domestic law and their interpretation by the domestic courts as to the existence of a “right”.
2. Has there been a breach of Article 6 § 1 of the Convention in the present case? In particular:
i. Did the Commission decision contain any reasons?
ii. Did the domestic courts examine the case on issues of fact and law? Did they give sufficient reasons in response to the applicant’s complaints?
iii. Was the Council of Ministers’ decision 2004 retroactively relied upon by the Commission of Scientific Qualification? In what respect did the Council of Ministers’ decisions 1998 and 2004 differ? How did its application adversely affect the applicant’s situation?
3. Under domestic law, is a decision given by the Commission of Scientific Qualification final? Is it amenable to appeal before domestic courts on points of fact and law? Do the domestic courts have jurisdiction to quash such a decision and award an applicant the academic title as requested? The parties are invited to submit relevant case-law in support of their comments.
4. The Government are requested to submit a copy of the internal rules of operation (rregullore) of the Commission of Scientific Qualification as they were in force at the material time.
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