THIRD SECTION
DECISION
Application no. 56288/12
Viktor PRIFTI
against Albania
The European Court of Human Rights (Third Section), sitting on 21 November 2023 as a Committee composed of:
Georgios A. Serghides, President,
Darian Pavli,
Oddný Mjöll Arnardóttir, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no. 56288/12) 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”) on 28 August 2012 by an Albanian national, Mr Viktor Prifti, who was born in 1954 and lives in Fier (“the applicant”), who was represented by Mr I. Kaso and Mr S. Dodbiba, lawyers practising in Tirana;
the decision to give notice of the complaint under Article 6 § 1 of the Convention concerning the fairness of the civil proceedings in the view of the consistency of the Supreme Court’ decisions, to the Albanian Government (“the Government”), represented by their then Agent, Ms. A. Hicka, and subsequently by Mr O. Moçka, of the State Advocate’s Office;
the parties’ observations;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The application concerns allegedly divergent case-law of the Supreme Court in similar cases regarding the dismissal of the applicant, a civil servant.Circumstances of the case
2. Between October 2003 and October 2006, the applicant was employed as the Head of Audit Sector at the Fier Taxation Audit Branch. On an unspecified date he obtained the status of a civil servant.
3. On 25 October 2006 the General Director of Taxation (“General Director”) dismissed the applicant from the post “because of shortcomings and serious breaches that had caused serious economic damage to the State budget”, as had been established by the High State Audit report (“the report”). Two of the applicant’s subordinates, A.Q. and H.Sh., were also dismissed, on the basis of the same report.
4. The applicant lodged a complaint with the Civil Service Commission (“CSC”), challenging his dismissal. On 28 December 2006 the CSC quashed the General Director’s decision and ordered the applicant’s reinstatement in his previous position as well as reimbursement of salary for the period when it had not been paid. The CSC found that the procedure under Law no. 8270 of 23 December 1997 had not been followed, in particular the requirement that the audit authority carry out interviews with each person suspected of a violation of the financial discipline, that minutes of such interviews be taken and included, together with observations of the audit authority, in the report.
5. On 5 July 2007 the Tirana Appeal Court (“Appeal Court”) upheld the CSC’s decision, endorsing its findings. The Appeal Court held that the audit had not been complete, the responsibility of the applicant had not been established and, therefore, the disciplinary proceedings and his dismissal could not be upheld.
6. On an unspecified date A.Q. and H.Sh. also challenged their dismissals and obtained favourable decisions by the CSC and the Appeal Court.
7. On 8 September 2009 the Supreme Court adopted a judgment in A.Q.’s case, upholding the decisions of the CSC and the Appeal Court and confirming their findings that the prescribed procedures had not been complied with in that the minutes of the audit had not been taken and A.Q. had not been informed of the results of the audit and given a possibility to comment on them. Further to this, no evidence had been presented concerning the individual responsibility of A.Q. which would establish a breach of duty on his part.
8. In the case of H.Sh., on 11 January 2011, the Supreme Court quashed the Appeal Court’s judgment on procedural grounds and remitted the case to that court, finding that the Appeal Court had not notified the appellant of the proceedings before it and that it has [erroneously] followed the procedural rules prescribed for the proceedings before a first-instance court instead of those prescribed for appeal courts.
9. In the applicant’s case, upon an appeal on points of law, lodged by the General Directorate of Taxation, on 24 May 2011 the Supreme Court reversed the Appeal Court’s judgment of 5 July 2007, quashed the CSC’s decision of 28 December 2006 and confirmed the General Director’s decision of 25 October 2006 dismissing the applicant. It held that the General Director had complied with the prescribed procedure as regards the disciplinary proceedings against the applicant and that all facts relevant for the applicant’s disciplinary responsibility had been correctly established in detail in the report. It had been established that the applicant had not complied with the provisions of the Act on Added Value Tax, the Act on Tax Revenues and the Act on Taxation Procedures.
10. The Supreme Court further held that in the impugned disciplinary proceedings the grounds for and the gravity of disciplinary violations, as well as the applicant’s degree of guilt had all been correctly established. It also held that the damage the applicant had caused to the State budget was significant and that the applicant’s actions had amounted to a serious disciplinary violation, which was prescribed by law, namely the bylaw approved by the Council of Minister’s Decision no. 306/2000 “On the Discipline in Civil Service”.
11. The applicant lodged a constitutional complaint with the Constitutional Court, which dismissed it on 23 January 2012 as ill-founded.
12. The applicant also submitted to the Court a Supreme Court decision of 25 September 2014 in an unrelated case, dismissing the appeal of Taxation General Director against an appeal court’s judgment which did not grant to an audit report the evidentiary value.
THE COURT’S ASSESSMENT
13. The applicant complained under Article 6 § 1 of the Convention that he had not had a fair hearing, in so far as the Supreme Court had delivered contradictory decisions in identical cases.
14. The general principles applicable to cases concerning conflicting decisions in the case-law have been summarised in the case of Nejdet Şahin and Perihan Şahin v. Turkey ([GC], no. 13279/05, §§ 49-58 and 61, 20 October 2011). The Court has affirmed that those principles also applied in cases concerning disparities existing primarily in the case-law of the highest domestic court (see Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, §§ 117-18, 29 November 2016).
15. In particular, the Court has held that the possibility of conflicting court decisions is an inherent trait of any judicial system which is based on a network of trial and appeal courts with authority over the area of their territorial jurisdiction. Such divergences may also arise within the same court. That, in itself, cannot be considered contrary to the Convention (see Nejdet Şahin and Perihan Şahin, cited above, § 51). The Court will therefore first need to examine whether, in the present case, “profound and long-standing differences” exist in the case-law of the domestic courts.
16. In the present case, the Court notes that the applicant referred to the judgments adopted by the Supreme Court in the cases of his two colleagues, A.Q. and H.Sh, who had been dismissed at the same time as the applicant on the basis of the same report. In the case of A.Q. the Supreme Court confirmed the lower courts’ decisions that the procedures followed by the High State Audit had been flawed in that it had failed to carry out interviews with the employees concerned, take minutes of such interviews, inform the employees concerned of its conclusions, and give them the opportunity to comment on them. The Supreme Court also found that A.Q.’s disciplinary responsibility had not been proven. In the case of H.Sh. the Supreme Court quashed the Appeal Court’s decision on grounds unrelated to the applicant’s case (see paragraphs 7-8 above).
17. It is true that the procedures followed by the High State Audit were the same in the applicant’s case and in the case of A.Q. and that the conclusions of the Supreme Court in the respective cases, as to the lawfulness of these procedures, were different. At the same time, they reached different conclusions as to whether the facts contained in the audit report were sufficient to establish individual disciplinary responsibility. The Court observes that the applicant did not produce any other decision supporting the allegation of contradictory case-law of the Supreme Court. The Court considers that the Supreme Court’s judgment in the applicant’s case, while different in the outcome from the Supreme Court’s judgment in the case of A.Q., is not sufficient for a conclusion that there were “profound and long‑standing differences” in the case-law of the Supreme Court.
18. Furthermore, the Supreme Court was not called to settle conflicting interpretations of the law, but rather to review particular appeals on points of law in individual cases. The contested judgment of the Supreme Court of 24 May 2011 is sufficiently reasoned and cannot be considered arbitrary. In particular, the Supreme Court clarified the grounds for the applicant’s disciplinary responsibility (see paragraph 10 above). In that connection the Court notes that the applicant’s responsibility might reasonably differ from that of A.Q. and H.Sh. since the applicant was the Head of Audit Sector at the Fier Taxation Audit Branch, whereas A.Q. and H.Sh. were his subordinates. The Court also notes that there is nothing to suggest that the overall proceedings leading to the Supreme Court’s judgment were otherwise unfair.
19. Taking into consideration the circumstances of the case, which refer to specific situations ascertained by an audit report and not an issue of general interest, and the nature of the divergence complained of; the Court considers that the existence of “profound and long-standing differences” has not been demonstrated (see, similarly, Derbuc and Others v. Croatia (dec.), nos. 53977/14 and 41902/15, §§ 44-45, 15 March 2022; Vrbanić v. Croatia (dec.) [Committee], no. 5917/16, §§ 29-30, 25 September 2018; and Dajbukat and Szilagyi-Palko v. Romania [Committee], no. 43901/07, § 25‑30, 18 February 2014).
20. It follows that the present application is inadmissible under Article 35 § 3 (a) of the Convention as manifestly ill-founded and must be rejected in accordance with Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 14 December 2023.
Olga Chernishova Georgios A. Serghides
Deputy Registrar President
Full & Egal Universal Law Academy