CASE OF MEMISHAJ v. ALBANIA
Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
Krzysztof Wojtyczek;Ledi Bianku;Paul Mahoney
4. The applicant was born in 1944 and lives in Tirana. 5. On 10 December 2001 the applicant, who worked as an accountant for the Tirana City Hall, was dismissed. The dismissal took effect on 11 January 2002. 6. On 6 February 2002, following the applicant’s action against his dismissal, the Civil Service Commission (“CSC”) quashed the dismissal decision and ordered his employer to reinstate him. By final decision of 8 May 2003, the Supreme Court upheld the CSC decision. On 10 March 2006 the applicant was offered employment by the Tirana City Hall (see paragraph 11 below). 7. On 15 May 2003 the Tirana District Court supplemented the CSC’s decision by ordering the Tirana City Hall to pay the applicant’s salary for the period between 10 December 2001 and the date of reinstatement. The employer’s request for revision was dismissed on 10 October 2003. 8. On 4 June 2003 an enforcement writ was issued in respect of both decisions. 9. On 31 March 2006 the Constitutional Court, following a constitutional complaint by the applicant, acknowledged that there had been a breach of the applicant’s right of access to court on account of the non-enforcement of the Supreme Court’s decision. However, it made no award. 10. On 1 March 2006 the applicant took up employment with the Ministry of Tourism, Culture, Youth and Sports (“the Ministry”). 11. On 10 March 2006 the Tirana City Hall appointed the applicant to a position in a maintenance company, which was responsible to the Tirana City Hall. The applicant challenged the appointment. 12. On 15 May 2006 the CSC quashed the appointment decision. The CSC decision became final, none of the parties having appealed against it. 13. In 2004 and 2006 the applicant successfully sought the payment of accrued interest arising from the delay in the payment of his salary. 14. On 9 April 2008, following a third action by the applicant, the Tirana District Court found in the applicant’s favour and ordered the Tirana City Hall to pay the applicant ALL 774,076 in salary arrears and ALL 105,258 in accrued interest. The court reasoned that, since the applicant had taken up employment with the Ministry on 1 March 2006, the Tirana City Hall was obliged to pay him salary arrears for the period from 11 January 2002 (see paragraph 5 above) to 28 February 2006. That obligation had ceased to exist ipso lege as of 1 March 2006. Relying on an expert’s report, the court found that the applicant’s salary arrears for the period from 11 January 2002 to 28 February 2006 amounted to ALL 1,720,261, of which ALL 946,185 had been paid by the Tirana City Hall. The accrued interest for the corresponding period amounted to ALL 105,258. 15. On 11 November 2009 an enforcement writ was issued. 16. On 12 February 2010 it would appear that the Tirana District Court’s decision became final, the Supreme Court having dismissed the defendant’s appeal. 17. On 31 March 2010 the Tirana City Hall paid the salary arrears. There is no information in the case file concerning the payment of accrued interest. 18. On an unspecified date in 2010 the applicant lodged a fourth civil action seeking the payment of accrued interest for the period between 9 April 2008 and 31 March 2010 and the payment of social security contributions by the Tirana City Hall. 19. On 30 June 2010 the Tirana District Court found in his favour and ordered the Tirana City Hall to pay accrued interest as a result of the delay in payment of the salary arrears from 9 April 2008 to 31 March 2010 and social security contributions on the basis of the applicant’s indexed salary. No quantification of the amount was made. 20. On 8 July and 23 December 2011 the Court of Appeal and the Supreme Court, respectively, upheld the Tirana District Court’s decision. 21. The relevant domestic law and practice has been described in the cases of Qufaj Co. Sh.p.k. v. Albania (no. 54268/00, §§ 21-26, 18 November 2004) and Gjyli v. Albania (no. 32907/07, §§ 19-28, 29 September 2009).