FOURTH SECTION

Application no. 33705/09 Mero CANAJ against Albania lodged on 16 June 2009

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Mero Canaj , is an Albanian national, who was born in 1944 and lives in Fier .

A. The circumstances of the case

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

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

It would appear that, between 1960 and 1990, the applicant served a total of 21 years ’ imprisonment according to a criminal history record ( vërtetim i gjendjes gjyqësore ) that he submitted. The applicant stated that, during his prison terms, he had worked either in mines, agricultural cooperatives, labour camps or other State entities.

It would appear that on unspecified dates the applicant requested the authorities to count the work performed during his imprisonment as insurance years for the purpose of assessing his pension rights and of obtaining an old-age pension.

On 27 June 2007 and 23 January 2009 the Ministry of Labour, Social Affairs and Equal Opportunities (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 the work performed during imprisonment in the communist period towards 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 the local authorities to seek ways of obtaining economic assistance ( ndihmë ekonomike ).

To date, it would appear that no legislative act has been adopted either by Parliament or the Government as regards the affiliation of working prisoners of the communist period to the old-age pension system.

2. The suspension of economic assistance awarded by the local authorities

On an unspecified date the applicant was awarded economic assistance in the form of financial aid by the local government unit in respect of his family ’ s difficult economic conditions. The family consisted of his wife and his son born in 1996.

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 ill and has not been able to work.

On an unspecified date the economic assistance was revoked.

On 27 July 2009 the Ministry informed the applicant that he was not entitled to an old-age pension on account of his failure to have the required number of insurance years. He was further informed that by virtue of a Government decision of 2005 economic assistance was not awarded to families whose members 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 that his wife was ill in Italy and to seek the award of the economic assistance by the local government unit.

No further information has been submitted regarding any subsequent actions taken by the applicant.

B. Relevant domestic law

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

The Social Insurance Act has been amended at least 15 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 35 insurance years; (ii) a reduced old-age pension at the age of 65, after having accumulated 32 insurance years; (iii) a partial old-age pension at the age of 65, after having accumulated between 15 and 35 insurance years.

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

Section 5 of the Act provides that families in need, that is families with no source of income or with insufficient revenue, are entitled to economic assistance ( ndihmë ekonomike ), which could be awarded in full or in part. It consists of a monthly payment in cash or in kind. The head of the family makes an application for economic assistance to the social administrator of the local government unit where the family resides. The decision refusing the award of economic assistance is amenable to appeal before a court.

Recital 10 (c) of the Government ’ s decision no. 787 of 14 December 2005 provides that families, a member of which lives abroad for whatever reason, excluding studies or medical treatment, shall be excluded from obtaining economic assistance.

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

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

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

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

COMPLAINTS

Without invoking any Articles of the Convention, the applicant complains that he has not obtained an old-age pension.

QUESTIONS TO THE PARTIES

1. Has there been a breach of Article 14 in conjunction with Article 1 of Protocol No. 1 to the Convention as regards the applicant ’ s non-affiliation to the old-age pension system as a working prisoner during the communist period (see Stummer v. Austria [GC], no. 37452/02, ECHR 2011) ? In particular, does the apparent imposition of a cut-off date in the Prisoners ’ Rights and Treatment Act 1998, to the effect that working prisoners during the communist period were excluded from the old-age pension scheme, amount to discriminatory treatment within the meaning of Article 14 of the Convention? Does the applicant have a possession within the meaning of Article 1 of Protocol No. 1?

2. Has there been a breach of Article 1 of Protocol No. 12 to the Convention (see, mutatis mutandis , Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, ECHR 2009 )? In particular, does the apparent imposition of a cut-off date in the Prisoners ’ Rights and Treatment Act 1998, to the effect that working prisoners during the communist period were excluded from the old-age pension scheme, amount to a discriminatory treatment within the meaning of Article 1 of Protocol No. 12?

3. The Government are requested to provide information on:

(a) the applicant ’ s insurance years for which contributions were made to the old-age pension system;

(b) whether the applicant is entitled to receive or whether he actually obtains a partial old-age pension, a reduced old-age pension, economic assistance ( ndihmë ekonomike ) or any other allowance whatsoever;

(c) the number of persons in the same position as the applicant and, whether the State provides such persons with an alternative to a pension payment;

(d) the precise legal initiatives taken to affiliate working prisoners of the communist period to the old-age pension system; please provide details in respect of these initiatives and their outcome.