ZALLI v. ALBANIA
Inadmissible
Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva
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. 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. 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. 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. 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. 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). 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). 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). 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. 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.