FOURTH SECTION

DECISION

Application no . 33705/09 Mero CANAJ against Albania

The European Court of Human Rights ( Fourth Section ), sitting on 24 June 2014 as a Chamber composed of:

Ineta Ziemele , President, George Nicolaou , Ledi Bianku , Nona Tsotsoria , Zdravka Kalaydjieva , Paul Mahoney, Faris Vehabović , judges,

and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 16 June 2009 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having regard to the comments submitted by the National Association for the Protection of Work and Democracy in Albania , which was granted leave by the President to intervene in the proceedings before the Court under Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court (“third-party intervener”) ,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Mero Canaj , is an Albanian national, who was born in 1944 and lives in Fier . He is represented before the Court by Mr V. Kosta , a lawyer 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.

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

1 . Proceedings concerning the recognition of the applicant ’ s working time as a former prisoner

4 . It would appear that, between 1960 and 1986, the applicant served a total of twenty-one years in prison . He submitted a criminal history record ( vërtetim i gjendjes gjyqësore ) in support of this claim. The applicant stated that, while in prison, he had mostly worked in mines, labour camps or other State entities. From 1965 to 1967 , on the strength of a court decision, he performed his compulsory military service. From 1986 to 1990 he was sentenced to internal exile ( internim ) and performed corrective labour at an agricultural cooperative ( k ooperativë bujqësore ) .

5 . O n unspecified dates the applicant requested the authorities to count the work he had undertaken during his imprisonment as insurance years for the purpose of assessing his pension rights and obtaining an old-age pension.

6 . On 27 June 2007 and 23 January 2009 the Ministry of Labour , Social Affairs and Equal Opportunities ( “the Ministry ” ) informed the applicant that, having regard to a considerable number of former prisoners who had not obtained an old-age pension, an inter-ministerial working group had been established to examine the possibility of recognising work undertaken during imprisonment in the communist period in the calculation of insurance years for the purpose of obtaining an old-age pension. A draft proposal was made and submitted in 2007 to the Ministry of Finance and the Ministry of Justice. The Ministry instructed the applicant to contact his local authorit y to seek ways of obtaining financial assistance ( ndihmë ekonomike ).

7 . To date, no legislative act has been adopted either by Parliament or the Government as regards the affiliation of former working (non-political) prisoners of the communist period to the old-age pension system.

2. Award of financial assistance by the local authorities

8 . On an unspecified date the applicant was awarded assistance in the form of financial aid by his local authority, having regard to his family ’ s financial difficult ies . The family consisted of his wife and his son born in 1996.

9 . On 20 June 2009 the applicant ’ s wife left the country to join her brother in Italy in the hope of finding employment. However, she fell il l and it would appear that she has been unable to work since.

10 . On an unspecified date the financial assistance was revoked.

11 . On 27 July 2009 the Ministry informed the applicant that he was not entitled to an old-age pension , as he had not accumulated the required number of insurance years. He was further informed that , by virtue of a Government decision of 2005 , financial assistance was not awarded to families whose members had left the country, unless they had gone away for the purpose of pursuing studies or receiving medical treatment. The applicant was invited to submit supporting documents to prove that his wife was ill in Italy and to seek a further award of financial assistance from the local authority .

12 . On 22 January 2013 the local authority indicated that the applicant was in receipt of financial assistance in the sum of 3,200 Albanian leks per month , approximately 23 euros per month.

B. Relevant domestic law

1 . Social Insurance Act (Law no. 7703 of 11 May 1993, as amended)

13 . The Social Insurance Act has been amended at least fifteen times since its first enactment. According to the Act, a male is entitled to: ( i ) a full old-age pension at the age of 65, after having accumulated thirty-five insurance years; (ii) a reduced old-age pension at the age of 65, after having accumulated thirty-two insurance years; or (iii) a partial old-age pension at the age of 65, after having accumulated between fifteen and thirty-five insurance years. Insurance years comprise the period in which contributions have been paid. Under section 58, the Government may recognise other periods as insurance years, provided that the payment of social insurance contributions is borne by the State budget.

2 . Social Aid and Services Act (Law no. 9355 of 10 March 2005)

14. Section 5 of the Act provides that families in need, with no source of income or with insufficient means , are entitled to financial assistance ( ndihmë ekonomike ), which can be total or part ial . It consists of a monthly payment in cash or in kind. The head of the family makes an application for financial assistance to the social administrator of the local authority where the family resides. A decision refusing an award of financial assistance is amenable to appeal before a court.

15. Recital 10 (c) of Government decision no. 787 of 14 December 2005 provides that families, one of whose member s lives abroad for whatever reason, other than for the purpose of pursuing studies or receiving medical treatment , are not entitled to financial assistance.

3 . Prisoners ’ Rights and Treatment Act (Law no. 8328 of 16 April 1998 as amended by law no. 9888 of 10 March 2008).

16. The Prisoners ’ Rights and Treatment Act governs the rights and treatment of prisoners , as well as the responsibilities and duties of the competent authorities.

17. Section 34 recognises prisoners ’ right to work ( të gjithë të dënuarve u njihet e drejta për të punuar ), which can be undertaken within or outside the prison facility. Work is remunerated in accordance with criteria defined by a separate Government decision.

18. Section 35 provides that work undertaken in prison is taken into account in the calculation of an old-age pension. Government decision no. 396 of 27 July 2000 sets out the criteria for the calculation of benefits for the old-age pension.

4 . R ehabilitation of former politically persecuted persons and former political prisoners Act ( “The Rehabilitation Act” - Law no. 7514 of 30 September 1991 )

19 . In an effort to recogni s e the innocence of former politically persecuted persons and former political prisoners and to publicly ask those people to forgive them for the suffering they experienced during the communist period , Parliament enacted the Rehabilitation Act. Section 5 recognised their time spent in prison as insurance years for the purpose of obtaining an old-age pension.

COMPLAINT

20. Without invoking any Articles of the Convention, the applicant complained that he was unable to obtain an old-age pension because of the existence of a legal vacuum preventing his years in prison being recognised as insurance years.

THE LAW

21. The Court considers that the facts of the case and the applicant ’ s complaint are most appropriately examined under Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1 to the Convention and Article 1 of Protocol No. 12.

22. Article 14 of the Convention reads as follows:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour , language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

23. Article 1 of Protocol No. 1 reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

24. Article 1 of Protocol No. 12 to the Convention provides:

“1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour , language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.”

A. The parties ’ submissions

1. The Government

25. The Government submitted that the applicant had failed to exhaust domestic remedies in order to have the years of work undertaken during his imprisonment recognised as insurance years for the purpose of assessing his pension rights and obtaining an old-age pension. He had not lodge d a civil action with the national courts to have the issue resolved, even th ough he could not benefit from t he Prisoners ’ Rights and Treatment Act. Nor had he request ed the Regional Directorate of Social Insurance to recognise the years of work undertaken during his imprisonment as insurance years.

26. T he applicant was first imprisoned at the age of 16. According to the information available , it meant that no social contributions had been made in his name. In accordance with the by-laws in force at the material time, had the applicant undertaken any work during his imprisonment, he would have benefited from a reduction to his sentence. Since the applicant had served his prison sentence in full , no such reduction had been applied .

27. In t he Government ’ s view, the applicant ’ s complaints relate d to facts which had occurred in the communist period and, to date, there was no legislation recognising the years of work undertaken by former prisoners in the communist period as insurance years for the purpose of assessing pension rights and obtaining an old-age pension. In so far as this category of prisoners ha d been excluded by the application of the Prisoners ’ Rights and Treatment Act, drawing on this Court ’ s decision in the case of Gratzinger and Gratzingerova v. the Czech Republic ( ( dec. ), no. 39794/98, §§ 70-74, ECHR 2002 ‑ VII ), the applicant could not rely on the protection offered by Article 1 of Protocol No. 1. Furthermore, the respondent State enjoyed a wide margin of appreciation in formulating policies which would have a considerable financial impact.

28. T he Prisoners ’ Rights and Treatment Act applied to prisoners who ha d been convicted and had undertaken work while serving the ir sentence only after its entry into force ; it could not apply retroactively so as to encompass the applicant ’ s situation . Even though the authorities ha d been attempting to recognise the years of work undertaken by former prisoners prior to 1 October 1993 so that th e social contributions would be borne by the State budget, the applicant ’ s situation was different from the situation governed by the Prisoners ’ Rights and Treatment Act. To date, no law has been drafted for this category of prisoners.

29. In any event, the Government submitted that the applicant , as well as other people who might be in a similar situation, had not been neglected by the State authorities ; t hey ha d been provided with financial assistance. As regards the applicant, the Government submitted that , even though he ha d reached the pensionable age of 65, he was not entitled to an old-age pension because he did not satisfy the statutory requirement in respect of the number of insurance years. T he applicant ha d been receiving financial assistance from the local authorities s ince 1993. The Government further submitted that, according to a study conducted by the National Association for the Protection of Work and Democracy, there were 3,858 people in a position similar to that of the applicant.

2. The applicant

30. The applicant argued that, in view of the Government ’ s admission that there existed no legal provision recognising the work undertaken during imprisonment u n der the communist regime for the purpose of assessing pension rights and obtaining an old-age pension, there was no effective domestic remedy to exhaust. The domestic courts would not be able to examine a claim which was not grounded on a domestic legal provision.

31. Despite the fact that he had worked during his imprisonment in the communist period , the applicant was not entitled to an old-age pension. In this connection, he considered that he was being discriminated against since the State had failed to fulfil its obligation to enact legislation. According to a letter written from the applicant dated 15 May 2013, he had worked a t otal of twenty-seven years, which consisted of twenty-one years of work during his imprisonment, four years of work during his internal exile at an agricultural cooperative and two years of military service.

32. Even though the applicant was receiving financial assistance from the local authorities , he argued that it wa s not “stable” . I t wa s revised annually and depend ed on the financial ability of the local authorities to provide it.

3. The third-party intervener

33. The third-party intervener , the National Association for the Protection of Work and Democracy in Albania , is a local NGO whose goal is the rehabilitation, integration and education of former prisoners under the communist regime .

34 . They submitted that, although the facts complained of had occurred prior to the entry into force of the Convention in respect of the respondent State, the applicant complained about the respondent Government ’ s failure to enact legislation to recognise the work undertaken by former non-political prisoners in the communist regime as insurance years. In this connection, the third party pointed to the Rehabilitation Act (paragraph 19 above), which had recognised political prisoners ’ right to an old-age pension. The non-recognition of work undertaken by former non-political prisoners in the communist regime ha d had a serious effect on the life and health of these people .

35. In the third party ’ s views, the respondent Government ha d created “legitimate expectations” towards former non-political prisoners by their promises to enact legislation and to bear the costs of social contributions. The delay in adopting the requisite legislation ha d created an insecure environment as regards the enjoyment of this right.

36 . The third-party intervener submitted copies of correspondence with various State institutions exchanged in the period 1998 to 2010. This showed that the third-party included 3,858 members who were in a position similar to the applicant and who ha d accumulated a total of 24,312 working years. On 15 June 2002 a working group was established by order of the then Prime Minister in order to prepare the necessary statutes and implementing acts to recognise the working period of former prisoners as insurance years ( Order no. 119 of 15 June 2002 ). It would appear that in 2007 a draft decision was formulated, but no further action was taken owing to a lack of documentation to calculate accurately the number of years worked by former prisoners as insurance years and the precise financial effects on the State budge t . A letter dated 22 June 2007 from the Minister of Labour , Social Affairs and Equal Opportunities suggested that the financial burden on the State budget had been calculated as 1 billion Albanian leks , approximately 8 million euros .

B. The Court ’ s assessment

37. The Court does not find it necessary to determine whether the rule of exhaustion of domestic remedies has been complied with , since it considers that the application is in any event inadmissible for the reasons given below.

38. The Court reiterates that Article 14 complements the other substantive provisions of the Convention and the Protocols. It has no independent existence , since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. The application of Article 14 does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention. It is necessary but also sufficient for the facts of the case to fall “within the ambit” of one or more of the provisions in question. The prohibition of discrimination in Article 14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and its Protocols require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Article of the Convention, for which the State has voluntarily decided to provide (see , among many other authorities, Stec and Others v. the United Kingdom ( dec. ) [GC], nos. 65731/01 and 65900/01 , §§ 39-40, ECHR 2005 ‑ X; Andrejeva v. Latvia [GC], no. 55707/00, § 74 , ECHR 2009 ; and Carson and Others v. the United Kingdom [GC], no. 42184/05, § 63 , ECHR 2 010 ).

39. The Court notes that whereas Article 14 of the Convention prohibits discrimination in the enjoyment of “the rights and freedoms set forth in [the] Convention”, Article 1 of Protocol No. 12 extends the scope of protection to “any right set forth by law”. It thus introduces a general prohibition of discrimination ( Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 53 , ECHR 2009 ).

40 . The Court notes that the present case concerns the applicant ’ s actions to have the alleged time of work undertaken as a non-political prisoner in the communist period recognised as insurance years for the purpose of assessing his pension rights and of obtaining an old-age pension. In this connection, in the absence of any existing legislation, the belief that, in the future, the authorities may enact legislation recognising applicants ’ alleged periods of work in prison as insurance years cannot be regarded as a form of “legitimate expectation” for the purposes of Article 1 of Protocol No. 1 (see, mutatis mutandis , Klaus and Iouri Kiladzé v. Georgia , no. 7975/06 , §§ 55-62, 2 February 2010; Kopecký v. Slovakia [GC], no. 44912/98, § 49, ECHR 2004 ‑ IX ; and Gratzinger and Gratzingerova v. the Czech Republic ( dec. ), no. 39794/98, § 73, ECHR 2002 ‑ VII). Against this background, the applicant ’ s situation must be distinguished from that of political prisoners, whose time spent in prison was recognised by parliament as insurance years for the purpose of obtaining an old-age pension by virtue of the 1991 Rehabilitation Act (see paragraph 19 above) .

41 . I t appears to be undisputed by the parties that the applicant served twenty-one years in prison. However, it is disputed whether the applicant undertook any work during his imprisonment. In the Government ’ s view, the applicant had not benefitted from reductions to his sentence. This showed that he had not worked during his imprisonment. On his part, the applicant submitted a criminal history record listing his convictions. The record did not contain information regarding periods of work undertaken by him in prison. No further documentary evidence supporting the claim that the applicant had worked for twenty-one years in prison was submitted to the Court.

42 . It is not for the Court to determine whether the applicant undertook any work during his imprisonment and, if so, the number of insurance years he had accumulated. The Court, mindful of its subsidiary role under the Convention, reiterates that the national authorities are in principle better placed than an international court to make such an assessment of facts. In these circumstances, irrespective of whether the re existed social security legislation recognising the work undertaken by non-political prisoners in the communist period as insurance years for the purpose of awardin g non-prisoners an old-age pension, the Court notes that it could not be established that the applicant had accumulated the required number of insurance years in order to be entitled to an old-age pension.

43 . Having regard to the above findings in paragraphs 40 and 42, the Court concludes that the applicant ’ s complaint under Article 1 of Protocol No. 1 taken together with Article 14 and under Article 1 of Protocol No. 12 to the Convention must be declared inadmissible as manifestly ill-founded and rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention .

For these reasons, the Court , by a majority ,

Declares the application inadmissible.

FatoÅŸ Aracı Ineta Ziemele              Deputy Registrar President