FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 52531/07
by Selami ZALLI
against Albania
The European Court of Human Rights (Fourth Section), sitting on 8 February 2011 as a Chamber composed of:
Nicolas Bratza, President,
Sverre Erik Jebens,
Päivi Hirvelä,
Ledi Bianku,
Zdravka Kalaydjieva,
Nebojša Vučinić,
Vincent A. de Gaetano, judges,
and Lawrence Early, Registrar,
Having regard to the above application lodged on 1 November 2007,
Having 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
The applicant, Mr Selami Zalli, is an Albanian national who was born in 1961 and lives in Tirane. He is currently working as legal officer at the Supreme Court. The Albanian Government (“the Government”) were represented by their Agent, Mrs E. Hajro.
The facts of the case, as submitted by the parties, may be summarised as follows.
A. The applicant’s transfer and the consequent judicial proceedings
In November 1993 the applicant was appointed as a prosecutor at the Tirana District Prosecutor’s Office (“DPO”). From July 1994 to May 2001 the applicant worked as a prosecutor at the Prosecutor General’s Office (“the PGO”).
In 2001 the Prosecutor General (“the PG”) proposed that the applicant be transferred to another DPO, as a result of which he would be demoted and his earnings would decrease. The applicant contested the proposal on the ground that there was no reason for his transfer and demotion.
On 24 May 2001 the Prosecutor’s Office Council endorsed the PG’s proposal. By virtue of a presidential decree of 1 June 2001, the applicant’s transfer took effect. On the same day the applicant took up his functions as prosecutor at the Pogradec DPO. His basic remuneration was halved.
On 27 November 2001 the applicant lodged a constitutional appeal with the Constitutional Court against the presidential decree.
On 21 February 2002 the Constitutional Court declared his complaint inadmissible for non-exhaustion of remedies as provided for under Article 131 (f) of the Constitution.
On 18 March 2002 the applicant challenged his transfer before the Tirana District Court (“the District Court”). He argued that the transfer and demotion were in breach of the Prosecutor’s Office Act and adversely affected his career, income and related expenses.
On 15 April 2002 the District Court decided to transfer the case to the Tirana Court of Appeal (“the Court of Appeal”), on the grounds that it lacked jurisdiction. It reasoned that the applicant’s transfer was akin to a disciplinary measure, for which the Court of Appeal had initial jurisdiction pursuant to section 34 of the Prosecutor’s Office Act.
On an unspecified date, while the proceedings were pending before the Court of Appeal, the applicant made a claim for compensation for loss of earnings as a result of the transfer. In his final submissions to the Court of Appeal, the applicant argued that the said court was competent to examine issues relating to the transfer of prosecutors. He contended that his transfer had been contrary to the domestic law in so far as he had not given his opinion, the transfer had not been on the same hierarchical level and the subsequent demotion had not been temporary. He maintained that he had suffered a loss of earnings as a result of the transfer.
On 18 September 2002 the Court of Appeal found in the applicant’s favour and quashed the presidential decree. It held that the applicant’s transfer had affected his employment relationship and resulted in the change of his job and a decrease in remuneration. The court interpreted section 24 of the Prosecutor’s Office Act to mean that the applicant’s consent was required for the transfer, in the absence of which the procedure was not in compliance with the law. There was no mention of the applicant’s claim for compensation for loss of earnings.
On 15 October 2002 the PG’s office appealed to the Supreme Court.
In an effort to harmonise the judicial practice inter alia on the legal nature of the presidential decree and its amenability to judicial review, on 30 October 2002 the President of the Supreme Court decided that the case should be examined by the Joint Benches (Kolegjet e Bashkuara).
On 30 January 2003 the Supreme Court Joint Benches, by 10 votes to 5, quashed the Court of Appeal’s judgment, holding that a presidential decree in relation to the appointment, transfer or dismissal of a prosecutor was not subject to judicial review, owing to the special employment relationship that existed between the State and such officials. The Supreme Court Joint Benches decided to discontinue the case.
On 10 June 2003 the applicant appealed to the Constitutional Court. He argued that the decision of 30 January 2003 had breached his right of access to a court. He further submitted that the presidential decree ordering his transfer was an administrative act, which was subject to judicial review.
On 23 December 2003 the Constitutional Court quashed the Supreme Court Joint Benches’ decision. Relying on its decision no. 25/2002, the Constitutional Court found that the presidential decree concerning the appointment and dismissal of a prosecutor was an administrative act which should be amenable to judicial review. Since the Supreme Court had not examined the merits of the PG’s office appeal, the case was remitted for a determination of the merits.
B. Rehearing proceedings
On 29 June 2004 the Supreme Court Joint Benches held a hearing. The applicant argued that his transfer was not justified. He was of the view that the term “opinion” in section 24 of the Prosecutor’s Office Act should be interpreted as “consent”. He further contended that the transfer, which resulted in his demotion and a decrease in his remuneration, was unlawful.
The PG’s Office argued that the transfer was grounded on the organisational needs of the prosecutor’s office. It was not essential to have the consent of the prosecutor to his transfer. Other prosecutors had also been transferred against their wishes.
On 1 July 2004 the Supreme Court Joint Benches, by 10 votes to 6, quashed the Court of Appeal’s judgment and dismissed the applicant’s claims. It found that the applicant’s transfer had occurred “out of necessity and in the interest of work” in accordance with section 24 of the Prosecutor’s Office Act. It further held that the applicant’s consent to his transfer was not required by law. The law only stipulated that the applicant’s opinion be sought before his transfer.
The Supreme Court Joint Benches recognised the applicant’s right to seek compensation for loss of earnings and other benefits. However, since the applicant’s claim was directed at the unlawfulness of the presidential decree and since the Court of Appeal had not examined his compensation claim, the Supreme Court decided that it could not examine that claim of its own motion. It ruled however that the applicant could file afresh a claim for compensation for loss of earnings. To date, it does not appear that the applicant has lodged a new claim for compensation with the District Court.
Of the 10 judges of the Supreme Court who voted against the case on 1 July 2004, 8 had been members of the bench which, on 30 January 2003, had dismissed the case.
On 29 June 2006 the applicant appealed to the Constitutional Court and challenged the decision of 1 July 2004. He claimed that his case had not been heard by “a tribunal established by law” in rehearing proceedings. Since the decision of the Supreme Court did not aim at harmonising and unifying judicial practice, the applicant argued that his case should have been heard by a Chamber instead of the Joint Benches in rehearing proceedings. He also complained that, despite his request for compensation for loss of earnings, the Supreme Court’s refusal to award him compensation for damage as a result of the transfer and demotion was against its case-law (see the “Relevant domestic law and practice” section below). In his view, this amounted to a lack of impartiality.
On 3 May 2007 the Constitutional Court, by means of a reasoned decision, rejected the applicant’s appeal. It found that there had been no breach of the applicant’s right of access to a court on account of the courts’ failure to examine his additional claim for damages. The Constitutional Court decided that his claim for compensation submitted to the Court of Appeal did not meet the requirements of a proper civil action in so far as the claim had not been quantified. The lower courts were therefore not obliged to examine the request. Moreover, the Supreme Court had informed the applicant of his right to lodge a new civil claim for damages.
The Constitutional Court further found that the examination by the Supreme Court Joint Benches had been by a tribunal established by law. It found that the applicant’s claim regarding the lack of impartiality of the Supreme Court’s Joint Benches in the rehearing proceedings was
ill-founded.
C. Published articles
In an article entitled “The judicial review of the lawfulness of administrative acts”, published in a law journal in November 2002, the then President of the Supreme Court concluded that presidential decrees concerning the appointment, dismissal and ranking of military officers, prosecutors or ambassadors could not be subject to judicial review.
D. Relevant domestic law and practice
1. The Constitution of Albania
Under Article 131 (f) the Constitutional Court decides on “final complaints by individuals alleging a violation of their constitutional rights to a fair hearing, after all legal remedies for the protection of those rights have been exhausted.”
Article 141 § 2 stipulates that the Supreme Court sits in Joint Benches to examine cases that would harmonise or amend judicial practice.
Article 148 provides that the Prosecutor’s Office (“the PO” - Prokuroria) is a centralised institution.
2. The Supreme Court (Organisation and Operation) Act (Law no. 8588) of 15 March 2000
The Supreme Court is composed of 17 judges (section 1). It examines cases in Civil and Criminal Chambers (section 10). It also sits in Joint Benches in order to, inter alia, harmonise and amend judicial practice (section 14). A request to sit in Joint Benches is made by one of the benches, the President of the Supreme Court or the Joint Benches (section 17). The quorum for the composition of Joint Benches is two thirds of all the judges. A decision is taken by a simple majority of the Joint Benches (section 16).
3. Code of Civil Procedure
Civil proceedings start on the strength of a civil claim (Article 153). A civil claim should contain the name of the court it is addressed to, the personal details and residence of the claimant, the object of the claim, description of facts, circumstances, documents and other evidentiary materials, the claimant’s request and its value (Article 154).
4. The Prosecutor’s Office (Organisation and Operation) Act (Law no. 8737) of 12 February 2001 as amended by Law no. 9102 of 10 July 2003
The General Prosecutor (“GP”) is the highest authority of the PO (section 8 § 1). The structure of the PO is made up of three layers: the district courts’ prosecutors, the courts of appeal prosecutors and the Supreme Court prosecutors, whose duties are exercised by the prosecutors attached to the GPO (sections 13-15).
District courts’ prosecutors are appointed by a decree of the President of the Republic, on the proposal of the GP, after having had the opinion of the PO’s Council (section 21). Before taking up their duties, prosecutors take an oath (section 22).
According to the 2001 Prosecutor’s Office Act, the promotion or transfer of a prosecutor could occur only out of necessity and in the interest of work. It was finalised by a presidential decree, on the proposal of the GP, after having heard the prosecutor’s opinion (section 24).
The PO’s Council is responsible for the appointment and appraisal of prosecutors. It also examines disciplinary breaches as a result of which it adopts advisory opinions (sections 10, 31 and 42). Disciplinary measures may be appealed against to the Court of Appeal (section 34).
5. Constitutional Court’s decision no. 25 of 13 February 2002
The case concerned the impossibility of having access to a court against a presidential decree which ordered a prosecutor’s dismissal, as provided by section 34 § 2 of the Prosecutor’s Office Act. In its decision no. 25 of 13 February 2002 (25/02) the Constitutional Court declared section 34 § 2 of the Prosecutor’s Office Act unconstitutional as it was against Article 42 of the Constitution and Articles 6 § 1 and 13 of the Convention. It thus opened the way for a prosecutor to challenge a presidential decree ordering his dismissal before a court.
6. Supreme Court Joint Benches decision no. 31 of 26 March 2003
The case concerned the unjust dismissal of a police officer and his right to compensation for damage. The Supreme Court Joint Benches ruled that a police officer who was unjustly dismissed from work was entitled to compensation for loss of earnings. Such an action did not need to be explicitly sought. It sufficed that a police officer challenged the unjust termination of his employment for the court to (automatically) examine the consequences that resulted from such a termination, that is, compensation for damage. The burden of proof was on the appellant in quantifying the damage.
COMPLAINTS
The applicant complained that there had been a breach of his right of access to court on account of the domestic courts’ failure to examine his claim for compensation. He further contended that the Supreme Court Joint Benches of 30 January 2003 and 1 July 2004 had lacked impartiality. Finally, he alleged that the rehearing proceedings were unlawful and were conducted by a tribunal which was not established by law.
THE LAW
A. The complaints under Article 6 § 1 of the Convention
The applicant made three essential complaints under Article 6 of the Convention, namely that there had been a breach of his right of access to court, that he had been tried by a tribunal which lacked impartiality and that he had been heard by a tribunal which was not established by law.
Article 6 § 1 of the Convention, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law...”
1. As regards the alleged incompatibility ratione materiae
(a) The parties’ submissions
The Government contended that the proceedings at issue, namely the lawfulness of the President’s decree concerning the applicant’s transfer, did not concern the determination of a “civil” right as required by Article 6 § 1 of the Convention. The applicant’s failure to seek compensation as a result of his transfer by virtue of the President’s decree made Article 6 § 1 inapplicable (Fayed v. the United Kingdom, 21 September 1994, § 65, Series A no. 294‑B and Neigel v. France, 17 March 1997, §§ 43-44, Reports of Judgments and Decisions 1997‑II).
The Government further maintained that there existed a special employment relationship between prosecutors and the State which was manifested in the prosecutor’s oath to act as depository of the public authority in the defence of public interests. The centralised character of the prosecutor’s office and the high public responsibility of prosecutors to represent the State in criminal proceedings militated against the applicability of Article 6 § 1 of the Convention. Moreover, the Government argued that prosecutors did not qualify as civil servants. Furthermore, the Government submitted that, in so far as the domestic law did not guarantee a right to reinstatement to work, Article 6 was inapplicable in the applicant’s case (see Stanczuk v. Poland (dec.), no. 45004/98, 14 June 2001).
Relying on the Court’s criteria in Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 62, ECHR 2007‑IV, the applicant contended that, since his right of access to a court had been acknowledged by the domestic courts, Article 6 § 1 of the Convention applied in the instant case.
(b) The Court’s assessment
The Court will examine, in the first place, whether there existed a “right” in the present case within the meaning of Article 6 of the Convention. According to the principles enunciated in its case-law, the dispute over a “right”, which can be said at least on arguable grounds to be recognised under domestic law, must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and, finally, the result of the proceedings must be directly decisive for the right in question (see Vilho Eskelinen and Others, cited above, § 40).
The Court notes that the domestic proceedings concerned a labour dispute over the applicant’s proposed transfer against his will to another DPO. The Court considers that against such background the applicant could claim to have a right recognised by domestic law to object to the transfer on the grounds of its unlawfulness.
The Court reiterates in this connection its finding from the Vilho Eskelinen and Others judgment (cited above) that two conditions must be fulfilled in order for the respondent State to be able to rely before the Court on an applicant’s status as civil servant in excluding him or her from the protection embodied in Article 6. Firstly, the State in its national law must have expressly excluded access to a court for the post or category of staff in question. Secondly, the exclusion must be justified on objective grounds in the State’s interest (ibid., § 62).
Since the adoption of the above-judgment the Court has found Article 6 to apply to disciplinary proceedings against judges (see G. v. Finland, no. 33173/05, §§ 31-35, 27 January 2009; and Olujić v. Croatia, no. 22330/05, §§ 34 and 44, 5 February 2009), police officers (see Vanjak v. Croatia, no. 29889/04, §§ 30-33, 14 January 2010) and bailiff officers (see Bayer v. Germany, no. 8453/04, §§ 37-39, 16 July 2009); as well as expulsion proceedings of military students from military training schools (Çatak v. Turkey, no. 26718/05, § 13, 6 October 2009) and proceedings concerning compensation for military servicemen (see Lelas v. Croatia, no. 55555/08, §§ 42-44, 20 May 2010; Kuzmina v. Russia, no. 15242/04, §§ 14-18, 2 April 2009 and Kondrashov and Others v. Russia, nos. 2068/03, 2076/03, 5224/03, 5385/03, 5414/03 and 5656/03, §§ 14-17, 8 January 2009); non-enforcement proceedings on behalf of a public prosecutor (see Privalikhin v. Russia, no. 38029/05, § 24, 12 May 2010) and non-enforcement proceedings on behalf of a former military serviceman (see Bormotov v. Russia, no. 24435/04, §§ 11-15, 31 July 2008).
Turning to the present case, the Court notes that the Supreme Court re-examined the applicant’s claim on 1 July 2004 as regards the alleged unlawfulness of the presidential decree ordering his transfer. While it is true that his claim was ultimately rejected, the Supreme Court, by examining the merits of the application, determined the dispute over his right. Therefore, the applicant had access to a court to challenge the presidential decree ordering his transfer, as a result of which his pecuniary interests were affected.
The Court concludes that Article 6 is applicable to the domestic proceedings at issue. It therefore dismisses this objection.
2. As regards the alleged lack of impartiality of the Supreme Court
(a) The parties’ submissions
The Government submitted that, even though the Supreme Court reheard the applicant’s case following the remittal by the Constitutional Court, no signs of lack of impartiality had been manifested by the Joint Benches. Relying on an explanatory letter by the Supreme Court, the Government contended that the decision of 30 January 2003 had not decided the merits of the applicant’s case. The essence of the applicant’s complaint had been examined and decided by way of its decision of 1 July 2004.
As regards the lack of impartiality of the Supreme Court Joint Benches of 30 January 2003, the Government added that the applicant had not included such complaint in his constitutional appeal of 10 June 2003. Additionally, the Government contended that the applicant’s complaint about the lack of impartiality of the Supreme Court Joint Benches of 1 July 2004 had not been substantiated.
The applicant submitted that the publication in a law journal in November 2002 of a study by the then President of the Supreme Court on the judicial review of administrative acts, notably presidential decrees, had objectively prejudiced the merits of his case on 30 January 2003 (see Buscemi v. Italy, no. 29569/95, ECHR 1999‑VI and Kyprianou v. Cyprus [GC], no. 73797/01, ECHR 2005‑XIII). In order to defend the view that presidential decrees could not be subject to judicial review, the then President of the Supreme Court had decided to put the applicant’s case before the Joint Benches, thus calling into question the impartiality of the Supreme Court and its decision of 30 January 2003.
(b) The Court’s assessment
(i) The alleged lack of impartiality of the Supreme Court of 30 January 2003
The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see, most recently, Demopoulos and Others v. Turkey (dec.), nos. 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04 and 21819/04, §§ 69-70, ECHR 2010‑...).
In the instant case, the Court observes that the applicant complained about the lack of impartiality of the President of the Supreme Court in the proceedings which gave rise to the decision of 30 January 2003 for the first time before this Court. He failed to raise such a complaint, even in substance, in his constitutional appeal of 10 June 2003 before the Constitutional Court, which is an effective remedy to be exhausted for the purpose of complaints under Article 6 of the Convention (see Balliu v. Albania (dec.), no. 74727/01, 30 September 2004; Beshiri and Others v. Albania, no. 7352/03, § 32, 22 August 2006; and Jakupi v. Albania (dec.), no. 11186/03, 1 December 2009) or in the ensuing proceedings.
It follows that this part of the complaint should be dismissed for
non-exhaustion of domestic remedies in accordance with Article 35 §§ 1 and 4 of the Convention.
(ii) The alleged lack of impartiality of the Supreme Court of 1 July 2004
Impartiality normally denotes the absence of prejudice or bias and its existence or otherwise can be tested in various ways. According to the Court’s constant case-law, the existence of impartiality for the purposes of Article 6 § 1 must be determined according to a subjective test where regard must be had to the personal conviction and behaviour of a particular judge, that is, whether the judge held any personal prejudice or bias in a given case; and also according to an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality (see Micallef v. Malta [GC], no. 17056/06, §§ 93, ECHR 2009‑...).
In the instant case, the Court notes that there is no evidence that the six judges who voted against the applicant on 1 July 2004 and, who had also dismissed his case on 30 January 2003, displayed personal bias. It therefore shall examine the case under the objective impartiality test which provides for a further guarantee.
In this connection, the Court notes that on 30 January 2003 the Supreme Court decided to discontinue the case by holding that the presidential decree was not amenable to judicial review. It did not pursue the examination of the merits of the case. Such a conclusion is reinforced by the finding of the Constitutional Court’s decision of 23 December 2003, which remitted the case for a determination of the merits.
It was only on 1 July 2004 that the Supreme Court examined the merits of the case and concluded that the applicant’s transfer had been lawful. Having regard to the above reasons, any misgivings about the lack of impartiality of the Supreme Court’s Joint Benches of 1 July 2004 cannot be regarded as objectively justified (see Berhani v. Albania, no. 847/05, §§ 68-77, 27 May 2010).
The Court considers that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 and therefore inadmissible in accordance with Article 35 § 4 of the Convention.
3. As regards the complaint that the Supreme Court of 1 July 2004 did not constitute a “tribunal established by law”
(a) The parties’ submissions
The Government submitted that, in accordance with the Supreme Court Act, all judges sat in Joint Benches on 30 January 2003. The remittal of the applicant’s case to the Supreme Court, by virtue of the Constitutional Court’s decision of 23 December 2003, logically entailed its re-examination by the Joint Benches on 1 July 2004. In the Government’s view, it would have been unreasonable to have a case re-examined by a Chamber of the Supreme Court, at a time when a decision had been previously taken on the case by the Joint Benches but subsequently quashed by the Constitutional Court.
The applicant further argued that there were no objective grounds for the Supreme Court to re-examine his case in Joint Benches on 1 July 2004.
(b) The Court’s assessment
The Court reiterates that, under Article 6 § 1, a “tribunal” must always be “established by law”. This phrase reflects the principle of the rule of law which is inherent in the entire system of the Convention and its protocols. A body which was not established in accordance with the wishes of the legislature would, by definition, lack the legitimacy required in a democratic society to hear individual cases. The phrase “established by law” covers not only the legal basis for the very existence of a tribunal, but also the composition of the bench in each case (see Lavents v. Latvia, no. 58442/00, § 114, 28 November 2002). The “law” referred to in Article
6 § 1, therefore, encompasses not just the legislation concerning the establishment and jurisdiction of the courts, but also any other provisions of domestic law which, if not complied with, would render the participation of one or more judges in the case unlawful. Such provisions relate in particular to the terms of office, disqualification and challenging of judges (see Coëme and Others v. Belgium, nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, § 99, ECHR 2000-VII).
In the instant case, the applicant’s allegation relates to the fact that the rehearing of his application by the Supreme Court’s Joint Benches rather than by a Chamber, was conducted by a tribunal not established by law.
In this connection, the Court notes that on 30 January 2003 the applicant’s case was declared inadmissible by the Supreme Court Joint Benches. On 23 December 2003 the Constitutional Court quashed the Supreme Court Joint Benches’ decision and remitted the case for a determination of the merits. The Court does not consider that the rehearing of the case by the Supreme Court Joint Benches on 1 July 2004 was a wrong application of statutes concerning the organisation of the domestic legal system. Accordingly, the Court does not discern any breach of the domestic legislation. The Supreme Court of 1 July 2004 was accordingly a “tribunal established by law” within the meaning of Article 6 § 1 of the Convention.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
4. As regards the alleged denial of the right of access to court concerning the claim for compensation
(a) The parties’ submissions
The Government contended that the applicant’s claim for damages was connected to the main civil claim concerning the lawfulness of the presidential decree. The rejection of the main claim by the Supreme Court on 1 July 2004 also entailed the dismissal of the claim for damages, whose basis was connected to and relied on the main claim.
The applicant alleged that there had been a breach of his right of access to court.
(b) The Court’s assessment
Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way it embodies the “right to a court”, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect (see Golder v. the United Kingdom, judgment of 21 February 1975, Series A no. 18, pp. 17-18, §§ 35-36).
The “right to a court” is not absolute. It is subject to limitations permitted by implication, in particular where the conditions of admissibility of an appeal are concerned, since by its very nature it calls for regulation by the State, which enjoys a certain margin of appreciation in this regard (see Ashingdane v. the United Kingdom, judgment of 28 May 1985, Series A no. 93, pp. 24-25, § 57).
The Court observes that on an unspecified date the applicant filed a claim with the Court of Appeal seeking compensation for loss of earnings as a result of his being unlawfully transferred to another DPO. By final decision of 1 July 2004 the Supreme Court Joint Benches ruled that the applicant’s transfer had been lawful.
The Court notes that domestic courts have adopted a well-established case-law according to which unfairness or unlawfulness in employment related matters may give rise to a right to compensation in favour of the employee. In so far as the applicant’s transfer was found to be just and lawful, the Court finds that his claim for compensation had no arguable basis in domestic law. Moreover, the domestic courts indicated to the applicant that it was open to him to file a claim for damages in proper form insofar as his transfer, even though lawful, had entailed financial loss. Accordingly, the Court does not consider that there has been a breach of the applicant’s right to a court.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
B. The complaint under Article 13 of the Convention
The applicant complained that he was deprived of an effective remedy in respect of his inability to appeal against the presidential decree.
Article 13 of the Convention reads as follows.
“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.”
The Government submitted that there had been no breach of Article 13 of the Convention concerning the applicant’s complaint about the impossibility to challenge the presidential decree ordering his transfer. In their view, the Constitutional Court’s decision of 23 December 2003 had remedied the violation that had previously occurred.
The Court reiterates that Article 13 of the Convention guarantees the availability at a national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable claim” under the Convention and to grant appropriate relief (see Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000-XI).
In the present case, the Court notes that the applicant lodged a constitutional appeal with the Constitutional Court against his inability to challenge the presidential decree before the domestic courts. On
23 December 2003 the Constitutional Court decided in the applicant’s favour and ruled that the presidential decree was amenable to judicial review. In such circumstances, the case was remitted to the Supreme Court for a fresh examination. The Supreme Court examined the merits of the case. The Court considers that the remedy used before the Constitutional Court proved to be effective.
The Court therefore concludes that this part of the application must be rejected as manifestly ill-founded and therefore inadmissible, pursuant to Article 35 §§ 3 and 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy