BEÇAJ v. ALBANIA
Inadmissible
Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva
1. The applicant, Ms Selvi Beçaj, is an Albanian national, who was born in 1983 and lives in Tirana. She was initially represented by Ms E. Meli and, subsequently, by Ms E. Kokona, lawyers practising in Tirana. 2. The Albanian Government (“the Government”) were represented by their then Agent, Ms L. Mandia and, subsequently, by Ms A. Hicka of the State Advocate’s Office. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 10 February 2010 the applicant was appointed, pursuant to a service contract (kontratë shërbimi), as first secretary at the Permanent Mission of Albania to the Organisation for Security and Cooperation in Europe in Vienna, Austria (“the Permanent Mission”). 4. On 5 December 2011 the applicant went on maternity leave. She gave birth to a child on 9 January 2012. 5. On 24 January 2012 the Minister of Foreign Affairs (“the Minister”) decided to terminate the applicant’s employment as from 24 February 2012. 6. On 24 February 2012 the Minister appointed the applicant to work as a specialist at the Ministry of Foreign Affairs (“the Ministry”) in Tirana. The applicant declined the offer. 7. On 22 March 2012 it was confirmed that the applicant had been divested of her diplomatic status and the benefits that derived from the exercise of her job as first secretary. 8. On 23 February 2012 the applicant challenged the Minister’s decision of 24 January 2012 before the Tirana District Court (“the District Court”). 9. On 4 May 2012 the District Court partially accepted the applicant’s civil action. It found that the termination of her employment while she was on maternity leave was in breach of Articles 105/a and 107 § 1 of the Labour Code. It therefore annulled the Minister’s decision of 24 January 2012 and ordered the applicant’s reinstatement. The District Court further held that the reasons advanced by the applicant’s employer for the termination of her employment, such as the commission of traffic offences in Austria, did not prevail over the legal guarantees afforded to women during the post-natal leave period. The District Court decided that its decision should be provisionally enforced in accordance with Article 317 of the Code of Civil Procedure (“CCP”). Having regard to the applicant’s situation and the position she occupied, the District Court ordered that, in addition to her reinstatement, the applicant’s accreditation should be renewed and her benefits restored, including the grant of a residence permit, provision of accommodation, payment of salary and provision of medical examinations which had started in the applicant’s place of residence on account of her employment (paditësja vlerësohet se duhet të kthehet në një detyrë, e cila për nga rëndësia dhe specifikat e saj, implikon procedura të caktuara që lidhen me akreditimin dhe ripërfitimin e benefiteve (leja e qendrimit, përfitimi i pagës, ekzaminimet mjekësore të nisura në vendin e qendrimit për shkak të punës)). The Ministry appealed. 10. On 22 November 2012 the Tirana Court of Appeal upheld the lower court’s decision. 11. On 17 December 2012 the Ministry appealed to the Supreme Court. The proceedings are currently pending before that court. 12. On 22 June 2012 the District Court issued a writ of execution in respect of its decision of 4 May 2012 in accordance with Articles 510 and 511 of the CCP. 13. On 9 July 2012 the bailiff unsuccessfully requested the Ministry to comply voluntarily with the District Court’s decision, as upheld by the Court of Appeal. 14. On 27 July 2012, having regard to the Ministry’s failure to comply with the District Court’s decision voluntarily, the bailiff decided to proceed with the mandatory enforcement thereof. 15. On 12 December 2012, having regard to the Ministry’s failure to enforce the decision, the bailiff warned the Ministry that it would be fined in accordance with Article 606 of the CCP. 16. The Government submitted that on 19 December 2012, at the applicant’s request, the bailiff decided to terminate the enforcement proceedings (pushimin e ekzekutimit me kërkesë të kreditorit). It transpired from the bailiff’s decision that the applicant had decided to transfer the file to another bailiff’s office for supervision and enforcement (për ta transferuar te një përmbarues tjetër). 17. The Government further submitted that pursuant to the Minister’s order no. 222 of 13 May 2013 the applicant had been appointed as first secretary, a position equivalent to the one she used to hold, at the Consulate General of Albania in Istanbul, Turkey (“the Consulate General”). The Ministry’s letter to the Consulate General of 14 May 2013, as submitted by the applicant, stated that “the Ministry undertakes to pay Ms Beçaj only her monthly salary (Ministria...merr përsipër vetëm shpenzimet e pagës mujore)”. 18. On 1 August 2013 the State Advocate’s Office sent a letter to the Ministry, the relevant extracts of which read as follows: “Having regard to the circumstances in which the applicant, Ms Beçaj, has lodged an application with the European Court of Human Rights about the delayed enforcement of the District Court’s decision of 4 May 2012, as upheld by the Court of Appeal’s decision of 22 November 2012, and the recent development whereby the applicant has already taken up employment as first secretary at the Consulate General of the Republic of Albania in Istanbul, we request the Ministry of Foreign Affairs to contact Mr Beçaj and ask her to withdraw the application [lodged] with the European Court of Human Rights, in so far as the State complied with its obligation to enforce the court decision by way of order no. 222 of 13 May 2013, notwithstanding the applicant’s withdrawal from the enforcement proceedings (kërkojmë nga ana e Ministrisë së Punëve të Jashtme të bëjë të mundur kontaktimin me Znj. Beçaj dhe kërkimin prej saj të heqjes dorë prej aplikimit në Gjykatën Evropiane të të Drejtave të Njeriut, për sa kohë detyrimet e shtetit ndaj ekzekutimit të vendimit gjyqësor të sipërpërmendur janë plotësuar nëpërmjet urdhrit nr. 222 datë 13.05.2013, pavarësisht prej heqjes dorë prej saj nga ekzekutimi i këtij të fundit).” 19. On 6 August 2013 the Ministry sent a letter to the Consulate General, the relevant extracts of which read as follows: “In their request for the protection of the State’s interests, the State Advocate’s Office request the Ministry, having regard to Ms Beçaj’s appointment as first secretary at the Consulate General, [to ask her] to withdraw the application she has lodged with the European Court of Human Rights (Avokatura e Shtetit në kërkesën e saj për mbrojtjen e të drejtave të shtetit shqiptar kërkon nga MPJ që duke u nisur nga kushtet kur Znj. Beçaj është emëruar si Sekretare e Parë në Konsullatën e Përgjithshme të RSH-së në Stamboll të heq dorë nga e drejta e ankimit pranë GJEDNJ-së).” 20. On 20 December 2013, as part of her observations, the applicant submitted a statement, which she had signed on 27 August 2013, withdrawing her application from the Court. The statement reads as follows: “Further to the State Advocate’s Office’s letter ... about my position concerning the application lodged by me, Silvi Beçaj, before the European Court of Human Rights, I inform [you] that I withdraw from pursuing this application before that court (referuar shkresës së Avokaturës së Shtetit...mbi qendrimin tim personal mbi çështjen e ngritur prej meje, Silvi Beçaj, në Gjykatën e të Drejtave të NJeriut, Strasbourg, informoj se jap dorëheqjen për vazhdimin e kësaj çështje pranë kësaj gjykate).” 21. She maintained that the statement was made as a result of pressure exerted by the Government. 22. Article 104 § 1 provides that the duration of maternity leave is thirtyfive days in respect of pre-natal leave and forty-two days in respect of post-natal leave. Article 105 § 2 states that when the period of post-natal leave is over, a woman may decide whether she wishes to return to work or benefit from social insurance entitlements. Under Article 105/a, in the event that a woman’s employer terminates her employment during her pregnancy or following her return to work after the birth of a child, the employer must prove that the reason for the termination was not the woman’s pregnancy or the birth of the child. Under Article 107 § 1 the termination of employment is void if it takes place during the period in which the woman is entitled to social insurance payments subsequent to the birth of a child. 23. Under Article 317 a court decision may be provisionally enforced if it concerns payment of damages owing to unjust dismissal from work. Its provisional enforcement may also be ordered, if, owing to the delay in enforcement, the plaintiff may suffer significant damage which cannot be remedied or if the enforcement would become impossible or would be made exceedingly difficult. 24. Article 510 provides that a court decision which orders provisional enforcement thereof constitutes an execution title. Under Article 511 the execution title is enforceable at the creditor’s request.