FOURTH SECTION
 
 
 
 
CASE OF GJYLI v. ALBANIA
 
(Application no. 32907/07)
 
 
 
 
 
 
JUDGMENT
(merits)
 
 
STRASBOURG
 
29 September 2009
 
FINAL
 
29/12/2009
 
This judgment 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,
 Giovanni Bonello,
 Ljiljana Mijović,
 Päivi Hirvelä,
 Ledi Bianku,
 Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 8 September 2009,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 32907/07) against the Republic of 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. 2. The applicant, who had been granted legal aid, was represented by 
Mr S. Puto, a lawyer practising in Tirana. The Albanian Government (“the Government”) were represented by their then Agent, Ms S. Meneri. 3. The applicant complained about the non-enforcement of two court judgments. 4. On 7 November 2007 the application was given priority under 
Rule 41 of the Rules of Court. 5. On 12 December 2007 the President of the Chamber to which the case was allocated decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it was decided to examine the merits of the application at the same time as its admissibility. 6. The applicant and the Government each filed written observations (Rule 59 § 1). THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
7. The applicant was born in 1945 and lives in Durrës, Albania. A. Proceedings concerning the applicant’s dismissal
8. The applicant was employed by the National Employment Service (NES) as the Director of Durrës Vocational Training Centre (“the Durrës VTC”). The NES is responsible to the Ministry of Labour. On 9 July 2005 the applicant was dismissed. Considering his dismissal arbitrary, he challenged it before the Durrës District Court. The applicant did not seek an award of pecuniary damage. 9. In its judgment of 27 September 2005, the Durrës District Court found the dismissal void due to a flawed procedure and ordered the applicant to be reinstated. On 1 November 2005 the NES filed an appeal with the Durrës Court of Appeal, (“the Court of Appeal”). 10. By judgment of 12 December 2005, the Durrës Court of Appeal declared the appeal inadmissible as having been filed out of time. That judgment became final as no appeal was filed with the Supreme Court. 11. For the purposes of executing the Durrës District Court’s judgment of 27 September 2005, an execution writ was issued by the court on 22 December 2005 pursuant to Articles 510 (a) and 511 (a) of the Code of Civil Procedure (see “Relevant domestic law and practice” below). 12. On 23 January 2006 the bailiff’s office imposed a fine on the Minister of Labour concerning the failure to enforce the Durrës District Court’s judgment. To date, the Durrës District Court’s judgment of 27 September 2005 has not been executed. B. Proceedings concerning payment of arrears of salary
13. On an unspecified date the applicant lodged a complaint with the Durrës District Court requesting payment of salary arrears since 9 July 2005. 14. On 24 October 2006 the Durrës District Court found in the applicant’s favour and ordered the NES to pay the applicant his salary from 9 July 2005 until the date of his actual reinstatement. 15. On 14 June 2007 the Durrës Court of Appeal rejected an appeal by the NES. The NES appealed to the Supreme Court. According to the information before the Court, it appears that these proceedings are pending before the Supreme Court. 16. On 6 December 2006, at the applicant’s request, the Durrës District Court issued an execution writ in respect of its judgment of 24 October 2006. 17. On an unspecified date the NES sought the immediate suspension of execution. The Durrës District Court decided that the case fell outside its territorial jurisdiction and transferred the case file to the Tirana District Court. 18. On 31 January 2008 the Tirana District Court dismissed the NES action. On an unspecified date the NES appealed. It appears that the proceedings are pending before the Tirana Court of Appeal. II. RELEVANT DOMESTIC LAW AND PRACTICE
The Constitution of Albania
19. The relevant parts of the Albanian Constitution read as follows:
“Article 42 § 2
In the protection of his constitutional and legal rights, freedoms and interests, or in defending a criminal charge, everyone has the right to a fair and public hearing, within a reasonable time, by an independent and impartial court established by law.”
“Article 131
The Constitutional Court shall determine: ... (f) complaints by individuals alleging a violation of their constitutional rights to a fair hearing, provided all legal remedies for the protection of those rights have been exhausted.”
“Article 142 § 3
State bodies shall comply with judicial judgments.”
B. The Constitutional Court (Organisation and Operation) Act (Law no. 8577) of 10 February 2000
20. The Constitutional Court Act, in so far as relevant, reads as follows:
“Article 81 – Execution of decisions
1. The Constitutional Court’s judgments are binding. 2. The execution of the Constitutional Court’s judgments is ensured by the Council of Ministers by virtue of respective State administration bodies. 3. The Constitutional Court may assign another body responsible for the execution of its judgment and, as necessary, the method of its execution. 4. The persons who do not enforce or prevent the enforcement of the Constitutional Court’s judgments, when their action does not constitute a criminal offence, are liable to a fine (...) imposed by the President of the Constitutional Court, whose decision is final and constitutes an executive title.”
Relevant case-law of the Albanian Constitutional Court
1. Judgment no. 6/06 of 31 March 2006
21. The case concerned a labour dispute arising out of the appellant’s dismissal from work. The domestic courts ruled in favour of the appellant’s reinstatement and ordered the payment of his salary arrears. Since the bailiff was ineffective in enforcing the final ruling against a municipality, the appellant seized the Constitutional Court. 22. By judgment no. 6 of 31 March 2006, the Constitutional Court, having considered this Court’s judgment in Qufaj Co. Sh.p.k. v. Albania, (no. 54268/00, 18 November 2004), found that there had been a violation of the appellant’s right to a fair hearing on account of the non-enforcement of a final court ruling. However, no award was made to the appellant. 2. Judgment no. 43/07 of 13 November 2007
23. The case concerned the non-enforcement of a domestic court ruling concerning the payment of the appellant’s salary arrears by a local government administrative unit (Këshilli i Rrethit). 24. The Constitutional Court held that the defendant’s argument about lack of funds was insufficient and could not justify the non-fulfilment of the obligation towards the appellant. The judgments reads, in so far as relevant, as follows. “(...) the Constitutional Court does not find any reasonable grounds that justify a violation of the appellant’s right to a fair hearing on the account of the competent authorities’ refusal to enforce a final court judgment. It considers that, in the proceedings at issue, the debtor (pala debitore) had all means available throughout the entire period, from the date of the adoption of the judgment and onwards, to pay the appellant the amount owed by virtue of the court judgment. Moreover, during the examination of the case the Constitutional Court could not discern any concrete steps of the debtor which would demonstrate any willingness to enforce the obligation that resulted from a final court judgment. Additionally, as regards the authority responsible under the law for the enforcement of final court judgments, namely the bailiff, the Constitutional Court considers that they should have diligently (me korrektësi) applied the relevant procedural law, notwithstanding the fact that the debtor is a State institution. All parties, whether they are private or public entities, bear the same responsibility when confronted with the obligation to enforce a final court judgment. To conclude, having regard to the above reasoning, in the proceedings at issue the Constitutional Court observes (konstaton) that the non-enforcement of the final (...) court judgment constitutes a violation of the appellant’s right to a fair hearing, as envisaged by Article 42 of the Constitution and Article 6 § 1 of the Convention.”
25. However, no awards were made to the appellant. 3. Judgment nos. 1/09 and 6/09 of 19 January and 6 March 2009
26. The judgment no. 1/09 concerned the non-enforcement of a final administrative decision in relation to the appellant’s reinstatement and the payment of his salary arrears. The judgment no. 6/09 concerned the non-enforcement of a final court judgment as regards the vacation of a plot of land. 27. In both judgments the Constitutional Court declared that there had been a violation of the appellants’ right of access to court on the account of the non-enforcement of a final administrative decision and a court judgment, respectively. The Constitutional Court did not order the appellant’s reinstatement in relation to judgment no. 1/09. No pecuniary or 
non-pecuniary award was made to any of the appellants. D. The Code of Civil Procedure
28. The relevant parts of the Code of Civil Procedure read as follows:
 
Article 451 – Final judgments
“A court judgment becomes final when:
(a) no further appeal lie against it;
(b) no appeal has been filed against it within the time-limits prescribed by the law or when the appeal has been withdrawn;
(c) the appeal has not been accepted;
(d) it was upheld, amended or the case was dismissed (pushuar) in the appeal proceedings.”
Article 479 – Suspension of the enforcement of a [court’s] judgment
“The Supreme Court decides on the suspension of a judgment when:
(a)    its immediate enforcement would result in serious, irreparable damage;
(b)    the party who filed an appeal makes a deposit that ensures the enforcement of the judgment.”

Article 510 – Executive titles
“Enforced execution can be made only on the basis of an executive title. Executive titles include:
(a) civil court’s judgments which have become final. ...”
“Article 511 – The execution writ
“The executive title is executed at the request of the creditor. An execution writ is issued for this purpose:
(a)    by the court which gave the judgment in cases provided for in [Article 510 (a)];
(...).”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
29. The applicant complained under Article 6 § 1 of the Convention about the non-enforcement of the Durrës District Court’s judgment of 
27 September 2005 ordering his reinstatement and the Durrës District Court’s judgment of 24 October 2006 ordering payment of his salary arrears. Article 6 § 1 of the Convention, in so far as relevant, reads:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
Admissibility
Non-enforcement of the Durrës District Court’s judgment of 24 October 2006 concerning payment of salary arrears
30. The Government argued that the applicant had failed to exhaust domestic remedies in relation to this complaint. To date, the proceedings are pending before the Supreme Court (see paragraphs 13–15 above). 31. The applicant accepted that the proceedings were pending before the Supreme Court, but argued that the Durrës Court of Appeal’s judgment was enforceable. The Supreme Court had not suspended enforcement pursuant to Article 479 of the Code of Civil Procedure. 32. In the present case, the Court notes that the Durrës District Court’s judgment of 24 October 2006, as upheld by the Durrës Court of Appeal’s judgment of 14 June 2007, recognised the applicant’s right to payment of arrears of his salary from 9 July 2005 until the date of his actual reinstatement. An execution writ was issued in accordance with Articles 510 (a) and 511 (a) of the Code of Civil Procedure. In the meantime, the defendant filed an appeal to the Supreme Court against both lower courts’ judgments (see paragraph 15 above). 33. Against this background, the Court considers that the Durrës District Court’s judgment of 24 October 2006 cannot be considered final and binding, as it had been open to appeal. In fact, appeal proceedings are pending before the Supreme Court. Even if an appeal to the Supreme Court does not have automatic suspensive effect and, apart from the power of the Supreme Court under Article 479 of the Code of Civil Procedure, the Court recalls that Article 6 protects the enforcement of final and binding judicial judgments, and not judgments which may be subject to subsequent control of a higher instance court and, eventually, quashed (see, for example, Ouzounis and Others v. Greece, no. 49144/99, § 21, 18 April 2002; Ioannis Karahalios v. Greece (dec.), no 62499/00, 26 September 2002; Xheraj v. Albania, no. 37959/02, § 70, 29 July 2008). 34. Having regard to the pending proceedings before the Supreme Court, which means that the Durrës District Court’s judgment does not have the effect of res judicata, the Court considers that this complaint is inadmissible as being premature and must be rejected under Article 35 §§ 3 and 4 of the Convention. Non-enforcement of the Durrës District Court’s judgment of 
27 September 2005 concerning the applicant’s reinstatement
35. The Government challenged the applicability of Article 6 § 1, relying on the Pellegrin v. France judgment ([GC] no. 28541/95, §§ 66-67, ECHR 1999‑VIII). They argued that employment disputes between the State and its civil servants, were not, as a rule, regarded as “civil” within the meaning of Article 6 § 1 of the Convention. 36. The Government also submitted that the Constitutional Court was a remedy to be exhausted in cases concerning the non-enforcement of a final court judgment. They invoked this Court’s judgment in Qufaj Co. Sh.p.k. 
v. Albania, (no. 54268/00, § 42, 18 November 2004), as applied by the Constitutional Court (judgments nos. 6/06 and 43/07, see paragraphs 
21–27 above). 37. The Court reiterates that Article 6 § 1 under its “civil” head is applicable to all disputes involving civil servants, unless the national law expressly excludes access to a court for the post or category of staff in question, and this exclusion is justified on objective grounds in the State’s interest. There can in principle be no justification for the exclusion from the guarantees of Article 6 of ordinary labour disputes, such as those relating to salaries, allowances or similar entitlements, on the basis of the special nature of the relationship between the particular civil servant and the State in question (see Eskelinen and Others v. Finland, no. 43803/98, § 62, 
8 August 2006). 38. Turning to the present case, the Court notes that the applicant’s civil claim was examined and granted by the domestic courts following the ordinary rules of civil procedure. The applicant was not excluded by domestic law from “access to a court” within the meaning of Article 6 of the Convention. Based on the test developed in the case of Eskelinen and Others, cited above, the Court concludes that Article 6 is applicable to the domestic proceedings at issue. 39. The Court considers that the question of exhaustion of domestic remedies is closely connected and central to the issue of effectiveness of the constitutional complaint in relation to the non-enforcement of a final court judgment, which has been considered under Article 13 below (see paragraphs 48–61 below). 40. It considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further finds that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits
1. The parties’ submissions
41. The Government submitted that the applicant’s appointment as the Director of the Durrës VTC had been unlawful. Consequently, he had been dismissed. 42. The applicant contended that the Durrës District Court’s judgment of 27 September 2005, which had become final on 14 January 2006, had not yet been enforced, thus constituting a violation of Article 6 of the Convention. The efforts undertaken by the bailiff had been insufficient and ineffective. 2. The Court’s assessment
43. The Court reiterates that an unreasonably long delay in enforcement of a final and binding judgment may breach the Convention (see Burdov v. Russia, no. 59498/00, ECHR 2002‑III). The reasonableness of such delay is to be determined having regard in particular to the complexity of the enforcement proceedings, the applicant’s own behaviour and that of the competent authorities and the amount and nature of the court award (see Raylyan v. Russia, no. 22000/03, § 31, 15 February 2007). 44. A person who has obtained a judgment against the State may not be expected to bring separate enforcement proceedings (see Metaxas v. Greece, no. 8415/02, § 19, 27 May 2004). In such cases, the defendant State authority must be duly notified of the judgment and is thus well placed to take all necessary initiatives to comply with it or to transmit it to another competent State authority responsible for execution. 45. The Court observes that the Government did not provide any plausible reasons for the failure of the responsible authorities to comply with the Durrës District Court’s judgment of 27 September 2005. As to the Government’s suggestion that the applicant’s appointment was made unlawfully, the domestic courts found in his favour. The risk of any mistake must be borne by the State and errors must not be remedied at the expense of the individual concerned (see Xheraj, cited above, § 58). 46. The national authorities appear to have made no efforts to offer the applicant an alternative solution, for example to accommodate him in another position of similar rank. There is no information to indicate that the enforcement entailed any complexity. The applicant did not prevent the enforcement. The Court finds no justification for this period of 
non-enforcement, which continues to date and has impaired the essence of the applicant’s right to a court.
47.

Article of the Convention at issue: Article 13
Outcome: violation