FOURTH SECTION
DECISION
Application no. 32897/07
Ali TELHAI
against Albania
The European Court of Human Rights (Fourth Section), sitting on 17 February 2015 as a Committee composed of:
George Nicolaou, President,
Ledi Bianku,
Krzysztof Wojtyczek, judges,
and Fatoş Aracı, Deputy Section Reistrar,
Having regard to the above application lodged on 11 July 2007,
Having regard to 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, Mr Ali Telhai, is an Albanian national, who was born in 1945 and lives in Berat, Albania.
2. The Albanian Government (“the Government”) were represented by their then Agent Ms E. Hajro and, subsequently, by Ms L. Mandia of the State Advocate’s Office.
A. The circumstances of the case
3. The circumstances of the case, as submitted by the parties, may be summarised as follows.
1. Proceedings concerning the applicant’s reinstatement
4. On an unspecified date in 1993 the applicant was dismissed from his post as a technician at workshop no. 1 in the State-owned Textile Factory in Berat (“the company”). The applicant challenged his dismissal.
5. On 8 June 1993 the Berat District Court found in the applicant’s favour and ordered his reinstatement. The company appealed.
6. On 29 July 1993 the Vlora Court of Appeal upheld the District court’s decision. It further ordered the payment of one month’s salary. The decision became final, at the most on 30 August 1993, no appeal having been lodged against it.
2. Proceedings concerning the restructuring of the company
7. Due to economic difficulties, on 12 April 1996, pursuant to the Transformation of State-owned Companies Act (see paragraph 17 below), the company was transformed into a joint stock company (shoqëri anonime), in whose capital the State had a share. It operated as a joint stock company until 2007, when it was split into two companies: one being privately owned and the other being State-owned.
8. At some point in 2000 workshop no. 1 was privatised.
3. Enforcement proceedings
9. On 8 November 1999 the applicant’s wife sent a letter to the Constitutional Court about the authorities’ failure to enforce the Vlora Court of Appeal’s decision of 29 July 1993. There has been no acknowledgment of receipt by the Constitutional Court.
10. On an unspecified date, most likely in 2002, the applicant complained to the Ombudsman about the non-enforcement of the Vlora Court of Appeal’s decision of 29 July 1993.
11. On 18 September 2002 the Ombudsman stated that, having regard to the entry into force of the new Labour Code and the restructuring of the company, the applicant’s reinstatement was not possible.
12. On 3 January 2007 the applicant sent a letter to the Constitutional Court about the authorities’ failure to enforce the final decision in his favour. There has been no acknowledgment of receipt by the Constitutional Court.
13. On 29 May 2007, following the applicant’s request, the Ombudsman responded along the same lines contained in his letter of 18 September 2002.
14. The Vlora Court of Appeal’s decision of 29 July 1993 remains unenforced.
B. Relevant domestic law
15. Relevant domestic law and practice have been described in Qufaj Co. Sh.p.k. v. Albania, no. 54268/00, §§ 21-26, 18 November 2004; Gjyli v. Albania, no. 32907/07, §§ 19-28, 29 September 2009, and Bushati and Others v. Albania, no. 6397/04, §§ 58-64, 8 December 2009.
16. Additional provisions relevant to the case read as follows.
1. The Transformation of State-owned Companies Act (law no. 7926 of 20 April 1995 on the transformation of State-owned companies to commercial companies)
17. The Transformation of State-owned Companies Act provides for the re-registration of State-owned companies as public companies with shared capital or limited liabilities companies (section 3). The process of re-registration is entrusted with the Ministry of Finance, which represents the State. The newly established company is to honour all obligations towards third parties.
2. Code of Civil Procedure of 1981 (“The 1981 CCP”)
18. Article 192 of the 1981 CCP provided that, in the event of failure to voluntary comply with the decision, the bailiff instituted enforcement proceedings at the request of the creditor. This Code was repealed with the entry into force of the new CCP in 1995.
COMPLAINTS
19. The applicant complained about a breach of Articles 6 § 1 and 13 of the Convention as a result of the non-enforcement of the Vlora Court of Appeal’s decision of 29 July 1993.
THE LAW
20. The applicant alleged that, following the authorities’ failure to enforce the final decision of 29 July 1993, there had been a breach of his rights under Articles 6 § 1 and 13 of the Convention, which in so far as relevant, read as follows:
Article 6 § 1
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
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”
21. The Government submitted that the enforcement of the decision of 29 July 1993 was objectively impossible, since the company no longer existed as a legal entity. They also maintained that the applicant had failed to submit a request to the bailiff for the enforcement of the final decision.
22. According to Article 35 § 1 of the Convention the Court “may only deal with [a] matter ... within a period of six months from the date on which the final decision was taken”. The six-month time-limit does not apply as such to continuing situations (see, for example, Puto and Others v. Albania, no. 609/07, § 24, 20 July 2010). However, in cases involving the execution of a final court decision, a continuing situation ends, in principle, on the date of the enforcement of the relevant decision or when an “objective impossibility” to enforce such decision is duly acknowledged (see, for example, Tripcovici v. Romania (dec.), no. 21489/03, 22 September 2009; Kravchenko v. Russia, no. 34615/02, § 34, 2 April 2009, and Babich and Azhogin v. Russia (dec.), no. 9457/09, §§ 48‑9, 15 October 2013). The continuing situation may not postpone the application of the six-month rule indefinitely. The Court has, for example, imposed a duty of diligence and initiative on applicants wishing to complain about the continuing failure of the State to comply with its obligations in the context of ongoing disappearances or the right to property or home (see, for example, Varnava and Others v. Turkey [GC], nos. 16064/90 et seq., §§ 159-172, ECHR 2009, and Sargsyan v. Azerbaijan [GC] (dec.), no. 40167/06, §§ 124-148, 14 December 2011). While there are, admittedly, obvious distinctions as regards different continuing violations, the Court considers that the applicants must, in any event, introduce their complaints “without undue delay”, once it is apparent that there is no realistic prospect of a favourable outcome or progress for their complaints domestically (see, for example, Sargsyan v. Azerbaijan [GC] (dec.), cited above, § 140).
23. Turning to the present case, the Court notes that the final decision was given on 29 July 1993. However, the Court observes that the period to be taken into consideration began on 2 October 1996, when the Convention entered into force in respect of Albania.
24. The Court further notes that from 2 October 1996 to 18 September 2002 the applicant did not take any pertinent action for the enforcement of the final decision. In this connection, there is no indication that he sought the bailiff’s assistance to enforce the final decision. The letters of 8 November 1999 and 3 January 2007 could not be considered akin to a constitutional appeal in respect of which the Constitutional Court would have been required to take a decision. On 18 September 2002 the applicant was informed by the Ombudsman that the final decision in his favour could not be enforced on account of an “objective impossibility”.
25. In these circumstances, the Court considers that it was from, at the latest, 18 September 2002 that the applicant became aware that there was no “realistic prospect of a favourable outcome or progress” domestically concerning the continuing non-enforcement of the final decision. He should thus have acted diligently and introduced the application “without undue delay” within six months from that date (see Sokolov and Others v. Serbia (dec.), nos 30859/10, 54078/10, 54105/10, 54106/10, 54110/10, 54116/10 and 54118/10, § 34, 14 January 2014), However, the application was lodged on 11 July 2007. Moreover, the applicant took no relevant actions from 2002 to 2007 to seek the enforcement of the final decision.
26. Accordingly, the Court concludes that the application was introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 12 March 2015.
Fatoş AracıGeorge Nicolaou
Deputy RegistrarPresident
Full & Egal Universal Law Academy