FOURTH SECTION

Application no. 1542/13 Selvi BEÇAJ against Albania lodged on 8 January 2013

STATEMENT OF FACTS

The applicant, Ms Selvi Beçaj , is an Albanian national, who was born in 1983 and lives in Tirana. She is represented before the Court by Ms Elira Kokona and Ms Erinda Meli , lawyers practising in Tirana.

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

A. Termination of the applicant ’ s employment

On 10 February 2010 the applicant was appointed, pursuant to a service contract, as first secretary at the Permanent Mission of Albania to the Organisation for Security and Cooperation in Europe in Vienna, Austria.

On 5 December 2011 the applicant went on maternity leave.

On 9 January 2012 the applicant gave birth to a child.

On 24 January 2012 the Minister of Foreign Affairs (“Minister”) decided to terminate the applicant ’ s employment as from 24 February 2012.

On 24 February 2012 the Minister appointed the applicant to work as specialist at the Ministry of Foreign Affairs (“the Ministry”) in Tirana.

On 22 March 2012 it was confirmed that the applicant was divested of her diplomatic status and benefits that derived from the exercise of her job as first secretary.

B. Judicial proceedings against the termination of employment

On 23 February 2012 the applicant challenged the Minister ’ s decision of 24 January 2012 before the Tirana District Court (“the District Court”).

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 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 temporarily 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 as granting the residence permit, provision of accommodation, payment of salary and provision of medical examinations which had started in the place of residence because of the applicant ’ s job) ( 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.

On 22 November 2012 the Tirana Court of Appeal upheld the lower court ’ s decision. There is no information as to whether an appeal has been lodged with the Supreme Court.

C. Enforcement proceedings

On 22 June 2012 the District Court issued an enforcement writ for the execution of its decision of 4 May 2012 in accordance with Articles 510 and 511 of the CCP.

Despite the bailiff ’ s request to have the Ministry enforce the District Court ’ s decision, as upheld by the Court of Appeal, that decision remains unenforced to date.

D. Relevant domestic law

1. Labour Code

Article 104 § 1 provides that the duration of maternity leave is 35 days in respect of pre-natal leave and 42 days in respect of post-natal leave. Article 105 § 2 states that, following the duration of post-natal leave, a woman decides whether she wishes to return to work or benefit from social insurance entitlements. Under Article 105/a, in the event of termination of employment by the employer during a woman ’ s pregnancy or following her return to work after the delivery of a child, the employer has the burden to prove that the cause for the termination was not due to the woman ’ s pregnancy or the delivery of the child. Under Article 107 § 1 the termination of employment is void if it takes place during the period that the woman is entitled to social insurance subsequent to the delivery of a child.

2. Code of Civil Procedure

Under Article 317 a court decision may be temporarily enforced if it concerns payment of damage owing to unjust dismissal from work. Its temporary enforcement may also be ordered, if, owing to the delay of enforcement, the plaintiff may suffer significant damage which cannot be remedied or if the enforcement would become impossible or would be made exceedingly difficult.

Article 510 provides that a court decision which orders temporary enforcement thereof constitutes an executive title. Under Article 511 the executive title is are enforced at the creditor ’ s request.

COMPLAINTS

The applicant complains that there has been a breach of Articles 6 § 1, 8, 13 as well as of Article 1 of Protocol No. 1 on account of the non-enforcement of the Tirana District Court ’ s decision of 4 May 2012, as upheld by the Tirana Court of Appeal ’ s decision of 22 November 2012.

QUESTIONS TO THE PARTIES

1. Has there been a breach of Articles 6 § 1, 8, 13 as well as of Article 1 of Protocol No. 1 on account of the authorities ’ failure to enforce the Tirana District Court ’ s decision of 4 May 2012? In particular:

(a) What is the nature of a domestic court ’ s decision ordering its temporary enforcement under Article 317 of the Code of Civil Procedure? Is it immediately enforceable? If yes, what measures did the authorities take to enforce the Tirana District Court ’ s decision of 4 May 2012? The parties are required to submit relevant domestic case-law as regards the application and interpretation of Article 317 of the Code of Civil Procedure.

(b) Is there an effective remedy against the authorities ’ failure to temporarily enforce a court decision under Article 317 of the Code of Civil Procedure? If yes, what remedy should the applicant have exhausted? The parties are required to submit relevant domestic case-law as regards the existence of an effective remedy.