Information Note on the Court’s case-law

October 2022

Fullani v. Albania (dec.) - 4586/18

Decision 20.9.2022 [Section III]

Article 35

Article 35-1

Exhaustion of domestic remedies

Effective domestic remedy

Failure to submit constitutional complaint in respect of right to private life after reform extending Constitutional Court’s individual complaint jurisdiction to any constitutional rights: inadmissible

Facts – The applicant was appointed to the office of Governor of the Central Bank of Albania (“CBA”) by the Parliament, which subsequently dismissed him. He unsuccessfully brought proceedings challenging his dismissal and seeking damages. He did not lodge a constitutional appeal. The applicant complained of a breach of his right to respect for private life under Article 8.

Law – Article 35 § 1: The Court had to examine whether the applicant had complied with the requirement of exhaustion of domestic remedies in the light of the new amendments extending the Constitutional Court’s individual complaint jurisdiction.

(a) Material grounds for the complaint before the Constitutional Court – Without expressing any opinion on the matter, the Court noted that the applicant’s complaint implied that the right to respect for private life under Article 8 included a right to be reinstated in office to a senior position subject to parliamentary appointment and dismissal and to receive damages in the event of unfair dismissal from such a position. The applicant argued that there was no substantive constitutional right on which he could rely on before the Constitutional Court in order to lodge his complaint. However, the national law and case-law indicated otherwise. The applicant had not refuted the Government’s contention that he could have relied on his Constitutional rights to indemnification and to lawful work. There was nothing to suggest that such a course of action would have been obviously futile. Furthermore, the Constitutional Court in its case-law, from at least 2011 onwards, had recognised a constitutional right to respect for private life. Most importantly, a review of its case-law showed that both the complainants and the Constitutional Court itself relied frequently and directly on the Convention and the Court’s case-law. Furthermore, pursuant to the Constitution, any limitations of recognised constitutional rights could not go beyond the restrictions permissible under the Convention.

Consequently, it had been open to the applicant to invoke directly Article 8 before the Constitutional Court in alleging a violation of his right to respect for private life.

(b) Procedural availability of a complaint before the Constitutional Court – In 2016 the Constitutional Court’s individual complaint jurisdiction, which until then had been limited to complaints alleging a violation of the right to a fair hearing, was expanded to include complaints alleging a violation of any constitutional right. The applicant had not taken issue with the wording of the relevant Constitutional provision. The amendment had been introduced, at least in part, in response to the Court’s judgments which had found that a complaint before the Constitutional Court was an effective remedy only in respect of complaints under Article 6. There was thus no doubt that the remedy consisting in a constitutional complaint had been available in theory.

As to the practical availability of the remedy, it was for the applicant, if in doubt about the effectiveness of such a complaint before the Constitutional Court, to dispel those doubts by lodging a complaint before that court. Moreover, the Court had given particular consideration to remedies which had been introduced by respondent States in response to a pilot judgment of the Court. In similar situations, it had attached particular importance to the question of whether the newly created remedy was, in principle, adequate and effective. That approach was also relevant to the present case where, although the Court had not delivered a pilot judgment, the domestic authorities had broadened the Constitutional Court’s jurisdiction in a large part in response to the Court’s case-law.

Lastly, contrary to the applicant’s submissions, the Constitutional Court had begun delivering its first judgments on alleged violations of substantive constitutional rights. Indeed, following the amendment and before the present application was lodged, the Constitutional Court had issued a decision declaring admissible a complaint involving the right to respect for one’s home, which was also guaranteed by Article 8, and had, at least in substance, examined that complaint on its merits. This provided thus some support to the Government’s contention that in practice the Constitutional Court had started accepting for examination complaints that were based on or fell within the scope of Article 8, in addition to domestic constitutional provisions. That court had subsequently issued another two decisions in which it had also examined complaints purportedly falling within the scope of Article 8.

(c) Other circumstances allegedly exempting the applicant from lodging a constitutional complaint – Firstly, in so far as the applicant had contended that his complaint derived from the absence of appropriate domestic legislation and that the Constitutional Court could not have redressed that situation, the Court noted that the Constitutional Court had the power to quash judgments of the Supreme Court and order that the case be reheard in keeping with that court’s instructions and any arguments relying directly on the Convention. It was therefore not convinced that a complaint before the Constitutional Court was a priori an ineffective remedy on account of the assumption that it could not provide relief for the applicant’s complaint.

Secondly, to the extent the applicant had argued that the amendment to the Constitutional Court’s jurisdiction had been in force for a short period of time when he had lodged the present application, the Court noted that seventeen months had in fact elapsed. In line with the principle that “ignorance of the law [was] no excuse”, the applicant had not been absolved from acquainting himself with the Constitution, if need be through appropriate legal advice.

Lastly, in response to the argument that the Constitutional Court had been dysfunctional for a long period of time owing to the lack of a quorum at the relevant time, the Court noted that the CBA, which had been one of the defendants in the proceedings brought by the applicant, had submitted a constitutional complaint and obtained a decision on its claims. That fact had been sufficient to conclude that independently of the number of judges sitting in the Constitutional Court at different times, the same avenue had also been open to the applicant.

(d) Conclusion – Having regard to the context that led to the amendment of the Constitution, the lack of a dispute over the clarity of the wording of the relevant provision and the Constitutional Court’s decisions, the Court concluded that following the 2016 constitutional amendments, an individual constitutional complaint was no longer limited to complaints under Article 6 and was, in principle, an effective remedy in respect of complaints alleging any breach of rights protected by the Convention and its Protocols that had been ratified by Albania. That remedy should therefore be used by applicants before lodging an application with the Court.

Conclusion : inadmissible (non-exhaustion of domestic remedies)

(See also Balliu v. Albania (dec.), 74727/01, 30 September 2004, Legal Summary ; Jakupi v. Albania (dec.), 11186/03, 1 December 2009)

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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