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FOURTH
SECTION
CASE OF GJYLI v. ALBANIA
(Application
no. 32907/07)
JUDGMENT
(Just
satisfaction)
STRASBOURG
7 December
2010
This
judgment will become final in the circumstances set out in
Article 44 § 2 of the Convention. It may be
subject to editorial revision.
In the case of Gjyli v. Albania,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
Päivi
Hirvelä,
Ledi Bianku,
Nebojša
Vučinić,
Vincent Anthony de Gaetano,
judges,
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 16 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 32907/07) against 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 Ali Gjyli (“the
applicant”), on 13 July 2007. The applicant complained about
the non-enforcement of two court judgments.
- In
a judgment delivered on 29 September 2009 (“the principal
judgment”), the Court held unanimously that there had been a
violation of Article 6 § 1 of the Convention as regards the
non-enforcement of the Durrës District Court's judgment of 27
September 2005. It further found a violation of Article 13 in
conjunction with Article 6 § 1 of the Convention in respect of
the lack of effective remedies for a failure to enforce the Durrës
District Court's judgment of 27 September 2005 (see Gjyli v.
Albania, no. 32907/07, 29 September 2009).
- Under
Article 41 of the Convention the applicant sought just satisfaction
in respect of pecuniary damage sustained as a result of non-payment
of salary arrears.
- Since
the question of the application of Article 41 of the Convention was
not ready for decision as regards pecuniary damage, the Court
reserved it and invited the Government and the applicant to submit,
within three months from the date on which the judgment became final
in accordance with Article 44 § 2 of the Convention, their
written observations on that issue and, in particular, to notify the
Court of any agreement they might reach (ibid., § 67 and point 6
of the operative provisions).
- The
applicant and the Government each filed observations within the
extended time-limits allowed to them. No basis was found on which a
friendly settlement could be secured.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
1. Events prior to the adoption of the principal judgment
- On
9 July 2005 the applicant was dismissed from work. Considering his
dismissal arbitrary, he challenged it before the Durrës District
Court (“the District Court”). The applicant did not seek
an award of pecuniary damage.
- By
a judgment of 27 September 2005, which became final, the District
Court found the dismissal void due to a flawed procedure and ordered
the applicant's reinstatement. That judgment was never enforced.
- In
separate proceedings, which were pending before the domestic courts
by the time this Court adopted the principal judgment, the applicant
sought payment of salary arrears since 9 July 2005.
2. Events after the adoption of the principal judgment
- By
a decision of 10 November 2009, the Supreme Court found in the
applicant's favour as regards his request for payment of salary
arrears. Since the employer had paid the applicant salary arrears for
the period between 9 July 2005 and 31 December 2006, the Supreme
Court found that the employer had to pay the applicant salary arrears
for the period between
1 January 2007 and 23 January 2009, the
date on which the applicant had retired.
- Until
24 March 2010 the applicant had been paid salary arrears in the
amount of 931,728 Albanian leks (ALL) for the period between 1
January 2007 and 31 March 2008. To date, the remainder of salary
arrears (ALL 1,000,000 for the period between 1 April 2008 and 23
January 2009) has not been paid to the applicant.
THE LAW
- In
the operative part of the principal judgment the Court made an award
to the applicant in respect of non-pecuniary damage, and costs and
expenses. However, it decided to reserve the application of Article
41 of the Convention, in respect of pecuniary damage, which Article
reads as follows.
“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. Pecuniary damage
1. The parties' submissions
- The
applicant requested the payment of salary arrears from 9 July 2005
until his retirement on 23 January 2009. He claimed ALL 2,724,965,
approximately 19,318 euros (EUR), which was made up of the principal
income and the social insurance contributions.
- The
Government submitted that the domestic courts had recognised the
applicant's right to payment of salary arrears. Consequently, the
execution of the salary arrears had started and would be completed
for the unpaid remainder. The Government acknowledged that there had
been a breach of the applicant's right of access to court on account
of the non-enforcement of a final court decision and requested this
Court to rule that the finding of a violation was sufficient just
satisfaction to the applicant.
2. The Court's assessment
- The
Court reiterates that a judgment in which it finds a breach imposes
on the respondent State a legal obligation to put an end to the
breach and make reparation for its consequences in such a way as to
restore as far as possible the situation existing before the breach
(see Former King of Greece and Others v. Greece [GC] (just
satisfaction), no. 25701/94, § 72, 28 November 2002). If
national law does not allow – or allows only partial –
reparation to be made, Article 41 empowers the Court to afford the
injured party such satisfaction as appears to it to be appropriate
(see Iatridis v. Greece (just satisfaction) [GC], no.
31107/96, §§ 32-33, ECHR 2000 XI).
- The
Court has first to determine whether national law allows for
reparation to be made for the consequences of the violation found by
the principal judgment (see Vajagić v. Croatia (just
satisfaction), no. 30431/03, § 23, 20 July 2006). It notes in
this connection that on 10 November 2009 the Supreme Court upheld the
applicant's civil action for the payment of salary arrears and
ordered his employer to pay the applicant the salary arrears for the
period between 31 December 2006 and 23 January 2009. The Court also
takes note of the fact that on an unspecified date the applicant was
paid ALL 931,728 as salary arrears for the period between 1 January
2007 and 31 March 2008. However, the remainder of salary arrears in
the amount of ALL 1,000,000 has not yet been paid to the applicant.
- That
being so, the Court cannot but conclude that despite partial
compensation paid to the applicant, the domestic authorities have not
fully complied with the Supreme Court's decision of 10 November 2009.
The Court considers that it has to afford the applicant just
satisfaction, corresponding to the outstanding amount of salary
arrears as calculated by the authorities, in the absence of a
different detailed breakdown submitted by the applicant.
- The
Court further notes that the applicant, as before the domestic
courts, did not make any submission in respect of interest to be
added to the award in order to compensate for loss of value of the
award over time. It therefore makes no award under this head
(contrast Ghigo v. Malta (just satisfaction), no. 31122/05, §
20, 17 July 2008).
- The
Court, making its assessment on an equitable basis, awards the
applicant the sum of EUR 7,200.
B. Default interest
- The
Court considers it appropriate that the default interest 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
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 7,200
(seven thousand two hundred euros) in respect of pecuniary damage,
plus any tax that may be chargeable, to be converted into the
national currency of the respondent State at the rate applicable on
the date of payment;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 7 December 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
