FULLANI proti Albánii

THIRD SECTION

DECISION

Application no. 4586/18
Adrian FULLANI
against Albania

The European Court of Human Rights (Third Section), sitting on 20 September 2022 as a Chamber composed of:

Georges Ravarani, President,

Georgios A. Serghides,

María Elósegui,

Darian Pavli,

Anja Seibert-Fohr,

Peeter Roosma,

Andreas Zünd, Judges,

and Milan Blaško, Section Registrar,

Having regard to:

the above application lodged with the Court on 12 January 2018 against the Republic of Albania under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Albanian national, Mr Adrian Fullani (“the applicant”);

the decision to give notice to the Albanian Government (“the Government”) of the complaint under Article 8 of the Convention and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated, decides as follows:

THE FACTS

1. The applicant was born in 1955 and lives in Tirana. He was represented before the Court by Mr A. Saccucci, a lawyer practising in Rome.

2. The Government were initially represented by their former Agents, Mr A. Metani and Ms E. Muçaj, and subsequently by Mr O. Moçka, General State Advocate.

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

1. Circumstances preceding the judicial proceedings

4. In November 2011 the Parliament of Albania appointed the applicant for a seven-year term to the office of Governor of the Central Bank of Albania (“the CBA”), a public institution in charge of implementing the country’s monetary policy. As well as being the highest officer of the institution, the Governor chaired the Supervisory Council, which was the other governing body of the CBA.

5. Following the applicant’s arrest on 5 September 2014 on suspicion of committing abuse of office, on 6 September 2014 the Supervisory Council proposed to Parliament that the applicant be dismissed.

6. On 18 September 2014 Parliament decided to dismiss the applicant from office.

2. The Applicant’s challenge against his dismissal

7. Following his acquittal from the criminal charges, on 5 February 2016 the applicant started legal action against the CBA and Parliament, challenging his dismissal from office.

8. On 2 June 2016 the Tirana Administrative Court of First Instance admitted the applicant’s action in part. The court found that, contrary to the CBA’s submissions, there was no evidence that the applicant had harmed the CBA’s interests, and the sole fact that he had been arrested did not amount to an ethical violation justifying his dismissal. In addition, it found a number of procedural shortcomings, such as the authorities’ failure to allow the applicant to participate in the dismissal proceedings. The court further noted that it had no jurisdiction to invalidate Parliament’s decision (see paragraph 6 above), and accordingly it ordered the CBA to pay the applicant twelve-months’ salary. The court rejected the applicant’s claim for additional compensation for non-pecuniary damage and reinstatement in his former position on the grounds that in the meantime another person had been appointed to the office, and the law did not provide for the remedy of reinstatement in those circumstances. All of the parties appealed.

9. On 1 March 2017 the Tirana Administrative Court of Appeal confirmed that the applicant had been dismissed unlawfully and amended the lower court’s judgment in part. It ordered, in contrast to the first-instance court, that Parliament’s decision of 18 September 2014 (see paragraph 6 above) be struck down (shfuqizohet). In addition, instead of the twelve-months’ salary awarded by the lower court, the Court of Appeal ordered the CBA to pay the applicant his salary until November 2018, which corresponded to the end of his lawful term of office (see paragraph 4 above). The court rejected the remainder of the claims. All of the parties lodged cassation appeals with the Supreme Court.

10. On 12 July 2017 the Supreme Court found that instead of Parliament’s decision to dismiss the applicant being struck down, that decision was to be held to be void (absolutisht e pavlefshme), and it upheld the remainder of the lower court’s judgment.

11. On 30 January 2018 the Constitutional Court rejected a constitutional complaint by the CBA against the judgment of the Supreme Court.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

1. Domestic law
   1. Constitution

12. Article 17 of the Constitution reads:

“1. The restriction of the rights and freedoms provided for in this Constitution may be laid down only by law in the public interest or for the protection of the rights of others. A restriction shall be proportionate to the situation that has dictated it.

2. These restrictions may not infringe the essence of the rights and freedoms and in no case should exceed the restrictions provided for in the European Convention on Human Rights.”

13. Article 35 of the Constitution reads:

“1. No one may be compelled, except when the law requires it, to make public the data connected with his or her person.

2. The collection, use and publication of data about a person shall be carried out with his or her consent, except for the cases provided by law.

3. Everyone has the right to become acquainted with data collected about him or her, except for the cases provided by law.

4. Everyone has the right to request the correction or deletion of untrue or incomplete data about him or her or data collected in violation of the law.”

14. Article 42 § 2 of the Constitution provides that in order to protect his or her constitutional and legal rights, freedoms and interests, or in defence of a criminal charge against him or her, everyone has the right to a fair and public hearing, within a reasonable time, by an independent and impartial tribunal established by law.

15. Article 44 of the Constitution reads:

“Everyone has the right to be rehabilitated and/or indemnified in compliance with the law, in the event that he or she has been harmed by an unlawful act, action or omission by State bodies.”

16. Article 49 § 1 of the Constitution reads:

“Everyone has the right to earn a living by lawful work, chosen or accepted by himself or herself. He or she is free to choose his or her profession, place of work, and his or her own system of professional qualification.”

17. Article 122 of the Constitution reads:

“1. Any international agreement that has been ratified constitutes part of the domestic legal system after it is published in the Official Journal of the Republic of Albania. It is directly applicable, except when it is not self-executing and its application requires the enactment of a law. The amendment and repeal of laws approved by a majority of all members of Parliament shall be carried out by the same majority for the purposes of the ratification of an international agreement.

2. An international agreement ratified by law has priority over the laws of the country that are incompatible with it.

3. The norms issued by an international organisation shall have priority, in the event of a conflict, over the law of the country when the direct application of the norms issued by the organisation is expressly contemplated in the agreement ratified by the Republic of Albania for participation therein.”

18. Article 131 (f) of the Constitution, as in force prior to its amendment in 2016, read as follows:

“The Constitutional Court shall decide on:

...

(f) the complaints of individuals alleging a violation of their constitutional rights to a fair hearing, after all effective legal remedies for the protection of those rights have been exhausted.”

19. On 12 August 2016, Law no. 76/2016 of 22 July 2016 on some amendments to the Constitution (“the 2016 Amendment Act”) entered into force following its publication in the Official Journal no. 138 of 27 July 2016. Article 131 (f) of the Constitution, as amended by the 2016 Amendment Act, reads as follows:

“The Constitutional Court shall decide on:

...

(f) the complaints of individuals against any acts of the public authorities or judicial decisions violating the fundamental rights and freedoms guaranteed by the Constitution, after all effective legal remedies for the protection of those rights have been exhausted, unless provided otherwise by the Constitution.”

2. Constitutional Court Act (Law no. 8577 of 10 February 2000 on the organisation and functioning of the Constitutional Court, as amended by Law no. 99/2016).

20. Section 71(ç) of the Constitutional Court Act, as amended, which entered in force on 1 March 2017, provides for the complainant’s right to request just satisfaction from the Constitutional Court in cases where his or her constitutional complaint is not heard within a reasonable time.

21. Section 76(6) of the Constitutional Court Act provides that court judgments which are quashed by the Constitutional Court shall be considered void ab initio and the case shall be sent for retrial to the court whose judgment was quashed.

2. Constitutional Court’s case-law
   1. Decision no. 52 of 1 December 2011 (“decision no. 52/2011”)

22. Decision no. 52/2011 of the Constitutional Court concerned a request for a preliminary ruling on constitutionality submitted by three ordinary courts. The referring courts’ request related, among other matters, to the compatibility with the constitutional right to respect for private and family life of several provisions of Law no. 10129 of 11 May 2009 on civil status (the Civil Status Act), which regulated the way in which the ethnicity of individuals was recorded in the civil status registry.

23. In examining the request, the court observed that the constitutional right to respect for private and family life was protected by several constitutional provisions, including Article 35 (protection of personal data), Article 36 (freedom and confidentiality of correspondence), Article 37 (inviolability of the home) and Article 53 (protection of marriage and family) of the Constitution (paragraph 28 of the decision). It also noted that the right to respect for private life was protected under Article 8 of the Convention, and continued its reasoning by setting out the applicable case-law of the Court under that Article.

24. Having identified the applicable principles and applied them to the circumstances at hand, the Constitutional Court declared the provisions in issue unconstitutional.

2. Decision no. 17 of 15 March 2016 (“decision no. 17/2016”)

25. Decision no. 17/2016 of the Constitutional Court concerned an individual complaint that the authorities’ non-enforcement of a judgment recognising the complainant’s visitation right towards his child amounted to a violation of Article 6 § 1 and Article 8 of the Convention. In examining the complaint concerning the non-enforcement of the judgment, in addition to the Court’s case-law under Article 6 § 1, the Constitutional Court referred extensively to the complainant’s right to respect for his family life under Article 8 of the Convention and the Court’s case-law under that provision. It accordingly found a violation of Article 6 § 1 of the Convention and considered that, since the applicant’s claims under Article 8 of the Convention had been taken into account for the examination of the non-enforcement complaint, it was not necessary to rule separately on the complaint under Article 8.

3. Decision no. 80 of 18 December 2017 (“decision no. 80/2017”)

26. Decision no. 80/2017 of the Constitutional Court concerned, among other matters, an individual complaint that the authorities’ partial demolition of a home and its surrounding wall amounted to a violation of the complainant’s right to respect for the home under Article 8 of Convention.

27. In examining the compatibility of the complaints ratione materiae, the Constitutional Court found that they were prima facie within its jurisdiction (paragraph 13 of the decision) and that the complainant, as bearer of both substantive and procedural rights, within the meaning of Article 131 (f) of the Constitution, had standing to bring an individual complaint (paragraph 11 of the decision).

28. As regards the merits of the complaint under Article 8 of the Convention, the court noted that the ordinary courts’ finding that the complainant’s construction had been illegal and therefore not eligible for compensation after demolition was well founded (paragraphs 38 and 44 of the decision). It concluded that the ordinary courts had responded adequately to the complaint based on the right to respect for one’s home, in compliance with Article 8 of the Convention (paragraph 45 of the decision).

29. One judge appended a partly dissenting opinion, pointing out that the constitutional amendments of July 2016 (see paragraph 19 above) had expanded the jurisdiction of the Constitutional Court to hear complaints in respect of substantive constitutional rights. In the dissenter’s view, the court should have conducted a more in-depth assessment of the complainant’s Article 8 claims, in particular as to the proportionality and reasonableness of the interference.

30. An application relating to that case is currently pending before the Court (no. 8706/18, communicated on 16 April 2018).

4. Decision no. 7 of 12 January 2021 (“decision no. 7/2021”)

31. Decision no. 7/2021 of the Constitutional Court concerned, among other matters, an individual complaint that the ordinary courts’ decision to recognise a third party as the heir of a member of the complainant’s family, amounted to a violation of the complainant’s right to respect for private and family life under Article 8 of Convention.

32. In response to that complaint, the Constitutional Court set out the general principles applicable to the complaint and concluded that it was manifestly ill-founded (haptazi e pabazuar).

5. Decision no. 38 of 2 December 2021 (“decision no. 38/2021”)

33. Decision no. 38/2021 of the Constitutional Court concerned, among other matters, an individual complaint that the authorities’ decision to disqualify the complainant from entering into a judicial career path amounted to a violation of the latter’s right to “private life under Article 35 of the Constitution”. The complainant argued that the authorities’ actions had interfered with his right to exercise a profession and had affected his dignity, personality and the development of his relationships with the outside world.

34. In examining the allegation of a breach of the right to respect for private life, the Constitutional Court adopted a similar approach to that which it had adopted in 2011 (see paragraph 23 above).

35. In concluded that the complainant had not substantiated his claim that he had suffered negative consequences from the decision in question and accordingly it was not necessary to examine the questions of whether the alleged interference was necessary in democratic society, in accordance with the law or whether it pursued a legitimate aim. The court therefore rejected the complaint.

3. Background to the expansion of the Constitutional Court’s jurisdiction

36. In 2014 Parliament set up an ad hoc parliamentary committee, which was to be responsible for the reform of the justice sector. In June 2015 the committee approved a report on the assessment of the justice system in Albania (“the Assessment Report”; see Xhoxhaj v. Albania, no. 15227/19, § 4, 9 February 2021).

37. In so far as relevant, the Assessment Report noted that under Article 131 (f) of Constitution, as in force at the relevant time, the Constitutional Court’s jurisdiction in respect of individual complaints was limited to allegations concerning the right to a fair trial. It also noted that, accordingly, the Court had not considered a complaint before the Constitutional Court as an effective remedy in respect of other kinds of complaints and that this fact had had an impact on the effectiveness of the Constitutional Court.

38. The Assessment Report served as the basis for the production and adoption of a strategy on justice system reform (“the Reform Strategy”), as a result of which in 2016 the Constitution was amended and a number of essential statutes were enacted (see Xhoxhaj, cited above, § 5).

39. At its 105th Plenary Session (18-19 December 2015), the European Commission for Democracy through Law (the Venice Commission) adopted interim opinion no. 824/2015 (CDL-AD(2015)045) on the draft constitutional amendments on the judiciary of Albania. It reads, in so far as relevant:

“30. Article 22 [of the draft Amendment Act] (amending article 131 [of the Constitution]) proposes to change the wording which provides for the jurisdiction of the CC [Constitutional Court] in relation to the adjudication of individual complaints for violation of constitutional rights. In the current text the CC’s competence was limited to ‘the final adjudication of the complaints of individuals for the violation of their constitutional rights to due process of law’. If the intention of the drafters is to extend the CC competence to the complaints related to other basic rights and freedoms, it should be welcomed [footnote omitted].”

40. The relevant parts of the explanatory report on the 2016 Amendment Act described the rationale behind the amendment of Article 131 (f) of the Constitution in the following terms:

“the wording of certain provisions regulating the jurisdiction of the [Constitutional Court] ... resulted in the complaints to the [Constitutional Court] not being an effective remedy in the protection of fundamental human rights and freedoms, as noted in certain judgments of the [European Court of Human Rights].

...

[It is therefore proposed to] extend the jurisdiction of the [Constitutional Court] for the purpose of upholding effectively the rights of individuals. It is suggested that several amendments be made that are oriented towards the extension of the Constitutional Court’s jurisdiction [namely] ... the expansion of the [scope of the] individual constitutional complaint which must be reworded for the purpose of offering better protection for individuals from the acts of public authorities (German model – Verfassungsbeschwerde).”

4. Other relevant materials

41. The Conference of European Constitutional Courts (“CECC”) is a forum whereby European constitutional courts and other similar European institutions exercising constitutional jurisdiction organise regular specialised conferences with a view to sharing experience as regards constitutional practice and jurisprudence.

42. The XVIIIth Congress of the CEEC took place on 24‑25 February 2021 in Prague and its topic was “Human rights and fundamental freedoms: the relationship of international, supranational and national catalogues in the 21st century”. Each of the participating constitutional courts, including the Albanian Constitutional Court, submitted a national report on that topic responding to questions that had been sent to each participating court in advance. Inasmuch as relevant, the Albanian national report, which was submitted on an unspecified date in 2019, stated:

“What mechanism is used to invoke the international treaties in [domestic disputes]?

...

[The] European Convention [on Human Rights] has a supranational and sub-constitutional status [in the Albanian legal system] ... [E]veryone is entitled to file a complaint with the Constitutional Court and the ordinary courts system for the protection of individual rights, invoking its provisions directly[1].”

THE LAW

43. The applicant complained that the domestic courts’ refusal to reinstate him in office or to award him additional compensation for non-pecuniary damage for the harm caused to his reputation and honour as a result of his dismissal amounted to a violation of his right to respect for his private life under Article 8 of the Convention.

44. Article 8 of the Convention reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

1. Objection of non-exhaustion of domestic remedies
   1. The parties’ submissions

(a) The Government

45. The Government submitted that in 2016 Parliament had adopted a judicial reform which, among other matters, concerned the jurisdiction of the Constitutional Court. Prior to the reform, the jurisdiction of the Constitutional Court in respect of individual complaints was limited to complaints alleging a violation of the right to a fair hearing, whereas as of 2016, individuals could complain before the court of a breach of any of their constitutional rights, including the right to respect for private life.

46. Accordingly, the Government relied on the amended version of Article 131 (f) of the Constitution (see paragraph 19 above) and sections 76 of the Constitutional Court Act (see paragraph 21 above) to assert that the applicant had failed to exhaust domestic remedies by lodging a complaint before the Constitutional Court. As regards the substantive grounds of a potential complaint before that court, the Government argued that it was open to the applicant to rely on his rights to indemnification and to lawful work under Articles 44 and 49 § 1 of the Constitution (see paragraphs 15-16 above) respectively.

47. In connection with the case-law supporting the above assertion, the Government stated that the amendment to the jurisdiction of the Constitutional Court regarding individual complaints had been in force for a short period of time which explained why there was no well-established case-law on this matter.

48. They also submitted, in response to the applicant’s contentions (see paragraph 53 below) that the Constitutional Court had had a quorum to rule on a potential complaint lodged by the applicant and in any event, had there been any delays in examining the complaint, section 71(ç) of the Constitutional Court Act (see paragraph 20 above) provided for the right to receive compensation for the breach of the “reasonable time” requirement.

49. Lastly, the Government submitted that as the domestic courts had annulled the applicant’s dismissal and had awarded him sufficient damages, the applicant lacked victim status under Article 34 of the Convention. They also submitted that the complaint was manifestly ill-founded.

(b) The applicant

50. The applicant firstly maintained that his complaint derived from the absence of appropriate domestic legislation providing for his right to reinstatement, and the Constitutional Court was unable to remedy that state of affairs.

51. Secondly, in his view the fact that amendments to the Constitutional Court’s jurisdiction had been in force only for a short time could not absolve the Government from the requirement to submit well-established case-law in support of their claim that a complaint before the Constitutional Court was an effective remedy for complaints under Article 8 of the Convention. On the contrary, in the applicant’s opinion, the novelty of the remedy should serve as a reason to exempt the applicant from making use of the alleged new remedy.

52. Thirdly, the applicant maintained that although the Constitutional Court’s jurisdiction had been amended, the substantive constitutional rights had not been amended and there was no constitutional right to reinstatement in office or to receive compensation for non-pecuniary damage.

53. Lastly, the applicant submitted that the functioning of the Constitutional Court during the relevant time had been disrupted by judicial resignations and dismissals and the authorities’ delay in appointing new judges. He pointed in particular to a period during which the court had lacked the quorum to decide on any cases.

54. For all of the above reasons, in the applicant’s view a constitutional complaint before the Constitutional Court could not be regarded as an effective remedy for his complaint under Article 8 of the Convention.

2. The Court’s assessment

(a) General principles

55. It is a fundamental feature of the machinery of protection established by the Convention that it is subsidiary to the national systems safeguarding human rights. The Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. It should not take on the role of the Contracting States, whose responsibility it is to ensure that the fundamental rights and freedoms enshrined in the Convention are respected and protected at domestic level. The rule of exhaustion of domestic remedies is based on the assumption – reflected in Article 13 of the Convention, with which it has close affinity – that there is an effective remedy available in respect of the alleged violation. The rule is therefore an indispensable part of the functioning of this system of protection (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 69, 25 March 2014).

56. States are exempted from answering before an international body for their acts until they have had an opportunity to put matters right through their own legal system, and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see, among many other authorities, Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports 1996‑IV, and Vučković and Others, cited above, § 70).

57. The obligation to exhaust domestic remedies therefore requires applicants to make normal use of remedies which are available and sufficient in respect of their Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see Akdivar and Others, cited above, § 66, and Vučković and Others, cited above, § 71). To be effective, a remedy must be capable of remedying directly the impugned state of affairs and must offer reasonable prospects of success (see Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006‑II; Vučković and Others, cited above, § 74; and Balogh v. Hungary, no. 47940/99, § 30, 20 July 2004).

58. There is no obligation to have recourse to remedies which are inadequate or ineffective (see Akdivar and Others, cited above, § 67, and Vučković and Others, cited above, § 73). However, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to pursue it (see Akdivar and Others, cited above, § 71; Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 70, 17 September 2009; and Vučković and Others, cited above, § 74).

59. The Court has also frequently emphasised the need to apply the exhaustion rule with some degree of flexibility and without excessive formalism (see Ringeisen v. Austria, 16 July 1971, § 89, Series A no. 13; Akdivar and Others, cited above, § 69; and Vučković and Others, cited above, § 76). It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case (see Akdivar and Others, cited above, § 69, and Kurić and Others v. Slovenia [GC], no. 26828/06, § 286, ECHR 2012 (extracts)).

60. As regards the burden of proof, it is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time. The availability of a remedy said to exist, including its scope and application, must be clearly set out and confirmed or complemented by practice or case‑law (see McFarlane v. Ireland [GC], no. 31333/06, §§ 117 and 120, 10 September 2010, and Mikolajová v. Slovakia, no. 4479/03, § 34, 18 January 2011).

61. Once this burden has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact used, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances exempting him or her from this requirement (see Akdivar and Others, cited above, § 68; Demopoulos and Others v. Turkey (dec.) [GC], nos. 46113/99 and 7 others, § 69, ECHR 2010; and Vučković and Others, cited above, § 77).

(b) Application of those principles to the present case

62. The parties disagreed on the availability of the remedy consisting in a constitutional complaint for two main reasons: the existence of a material ground for the complaint and its availability from a procedural point of view. The Court will therefore examine these questions in turn.

(i) Material grounds for the complaint before the Constitutional Court

63. The Court notes, without expressing any opinion on the matter, that the applicant’s complaint before the Court implies that the right to respect for private life under Article 8 of the Convention includes 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 submitted that his complaint could not be heard by the Constitutional Court as there was no substantive constitutional right on which he could rely before that court. However, the applicant did not submit detailed arguments to refute the Government’s contention that he could have relied on Articles 44 and 49 § 1 of the Constitution (see paragraphs 15-16 above). In this connection, the Court does not discern any element which would suggest that the course of action put forward by the Government was obviously futile.

64. Moreover, the Court notes that the Constitutional Court had referred to the existence of a constitutional right to respect for private life at least as early as 2011, when it examined a request for a preliminary ruling on constitutionality (see paragraph 22 above) as well as in its subsequent case-law on individual complaints (see paragraphs 25, 31 and 33 above). In those judgments, the court had recognised a right to respect for private life on the grounds of, among other things, Article 35 of the Constitution (see paragraph 13 above).

65. Most importantly, a review of the Constitutional Court’s case-law shows that both the complainants and the court itself rely frequently and directly on the Convention and the Court’s case-law (see paragraphs 25-34 above). The possibility of relying directly on the Convention provisions before the Constitutional Court was also referred to in that court’s national report submitted to the XVIIIth Congress of the CEEC (see paragraph 42 above), which although it lacks binding effect, provides some context to the matter. Furthermore, according to the second paragraph of Article 17 of the Albanian Constitution, any limitations of recognised constitutional rights cannot go beyond the restrictions permissible under the Convention.

66. Accordingly, the Court is unable to agree with the applicant’s argument that there was no substantive right on which he could rely before the Constitutional Court in order to lodge the complaint that is currently before the Court. In the Court’s view, as well as relying on the national law and case-law, it was open to the applicant to invoke directly Article 8 of the Convention before the Constitutional Court in alleging a violation of his right to respect for private life.

(ii) Procedural availability of a complaint before the Constitutional Court

67. The Court notes that in 2016 the jurisdiction of the Constitutional Court, which until then was 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 (see paragraphs 18 and 19 above for a comparison of the wording of Article 131 (f) before and after the 2016 amendment). The applicant did not take issue with the wording of that Article.

68. It also emerges from the explanatory report on the 2016 Amendment Act (see paragraph 40 above) and the general context in which it was adopted (see paragraph 37 above) that the expansion of the Constitutional Court’s individual complaint jurisdiction was 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 of the Convention (see Balliu v. Albania (dec.), no. 74727/01, 30 September 2004, and Jakupi v. Albania (dec.), no. 11186/03, 1 December 2009).

69. In view of the foregoing there is no doubt that the remedy consisting in a constitutional complaint was available in theory.

70. As to the practical availability of the remedy, the Court reiterates that in a legal system in which fundamental rights are protected by the Constitution and the law, it is incumbent on the aggrieved individual to test the extent of that protection and allow the domestic courts to apply those rights and, where appropriate, develop them in exercising their power of interpretation (see, mutatis mutandis, A, B and C v. Ireland [GC], no. 25579/05, § 142, ECHR 2010). Therefore, if the applicant had any doubts about the effectiveness of a complaint before the Constitutional Court, it was for him to dispel those doubts by lodging a complaint before that court.

71. Moreover, the Court has given particular consideration to remedies which have been introduced by respondent States in response to a pilot judgment of the Court (see, for instance, Balan v. the Republic of Moldova (dec.), no. 44746/08, 24 January 2012, and Nagovitsyn and Nalgiyev v. Russia (dec.), nos. 27451/09 and 60650/09, 23 September 2010 concerning the non-enforcement of judgments; Stella and Others v. Italy (dec.), nos. 49169/09 and 10 others, 16 September 2014, and Łatak v. Poland (dec.), no. 52070/08, 12 October 2010 concerning prison overcrowding; Techniki Olympiaki A.E. v. Greece (dec.), no. 40547/10, 1 October 2013; Balakchiev and Others v. Bulgaria (dec.), no. 65187/10, 18 June 2013, and Müdür Turgut and Others v. Turkey (dec.), no. 4860/09, 26 March 2013 concerning the length of proceedings; and Hodžić v. Slovenia (dec.), no. 3461/08, 4 April 2017 concerning “old” foreign-currency savings). In similar situations, the Court has attached particular importance to the question of whether the newly created remedy was, in principle, adequate and effective (see, for example, Shmelev and Others v. Russia (dec.), nos. 41743/17 and 16 others, § 119, 17 March 2020).

72. In the Court’s view, the above approach is also relevant to the case at hand where, although the Court has not delivered a pilot judgment, the domestic authorities broadened the Constitutional Court’s jurisdiction in a large part in response to the Court’s case-law.

73. Lastly, the Court also notes that, contrary to the applicant’s submissions, the Constitutional Court had begun delivering its first judgments on alleged violations of substantive constitutional rights. Indeed, between 12 August 2016, when the 2016 Amendment Act entered in force (see paragraph 19 above), and 18 January 2018, when the applicant submitted his application to the Court, the Constitutional Court issued decision no. 80/2017 (see paragraph 26 above). Although that decision did not directly concern the right to respect for private life, on that occasion the Constitutional Court declared admissible a complaint involving the right to respect for one’s home, which is also guaranteed by Article 8 of the Convention. It further appears that, at least in substance, the Constitutional Court examined that complaint on its merits, with the majority holding that it was manifestly ill-founded whereas one dissenting judge stated that the complaint should have been examined in more detail (see paragraph 29 above).

74. In the Court’s view the said decision provides 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 of the Convention, in addition to domestic constitutional provisions. Following the above-mentioned decision, the Constitutional Court issued decisions nos. 7/2021 and 38/2021 in which it also examined complaints purportedly falling within the scope of Article 8 of the Convention (see paragraphs 31-35 above).

(iii) Other circumstances allegedly exempting the applicant from lodging a constitutional complaint

75. The applicant contended that his complaint derived from the absence of appropriate domestic legislation and the Constitutional Court could not have redressed that situation. However, the Court notes that the Constitutional Court has the power to quash judgments of the Supreme Court (see paragraph 21 above) and order that the case be reheard in keeping with that court’s instructions and any arguments relying directly on the Convention (see, for the direct applicability of the Convention in Albania, paragraph 17 above and Bakiu and Others v. Albania (dec.), nos. 43928/13 and 16 others, § 80, 10 April 2018). The Court is 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.

76. The applicant also submitted that the fact that the amendment to the Constitutional Court’s jurisdiction had been in force for a short period of time when he lodged the present application should militate in favour of exempting him from the obligation to make use of that remedy. The Court notes that the amendment to the Constitutional Court’s jurisdiction entered in force on 12 August 2016 (see paragraph 19 above) and the present application was lodged with the Court approximately seventeen months later, on 18 January 2018. In line with the principle that “ignorance of the law is no excuse”, the Court considers that the applicant was not absolved from acquainting himself with the Constitution, if need be through appropriate legal advice (see Lekić v. Slovenia [GC], no. 36480/07, § 92, 11 December 2018, and K.‑H.W. v. Germany [GC], no. 37201/97, § 73, ECHR 2001 II (extracts)).

77. 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 notes that the CBA, which was one of the defendants in the judicial proceedings initiated by the applicant, submitted a constitutional complaint and obtained a decision on its claims (see paragraph 11 above). In the Court’s view, this fact is sufficient to conclude that independently of the number of judges sitting in the Constitutional Court at different times, the same avenue was also open to the applicant.

(iv) Conclusion

78. In the light of the foregoing considerations, having regard to the context that led to the amendment of Article 131 (f) of the Constitution, the lack of a dispute over the clarity of its wording and to the Constitutional Court’s decisions discussed above, the Court is unable to agree with the applicant’s argument that he was not required to lodge a complaint before the Constitutional Court.

79. Accordingly, the Court concludes that following the 2016 constitutional amendments, an individual constitutional complaint is no longer limited to complaints under Article 6 of the Convention and is, in principle, an effective remedy in respect of complaints alleging any breach of rights protected by the Convention and its Protocols that have been ratified by Albania. This remedy should therefore be used by applicants before lodging an application with the Court.

80. As the applicant has failed to lodge a complaint before the Constitutional Court, it follows that the Government’s objection of failure to exhaust domestic remedies must be upheld and the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

2. Other objections as to the admissibility

81. The Government also submitted that the applicant did not have victim status for the purposes of Article 34 of the Convention and that under Article 35 § 3 (a) the application was manifestly ill-founded. Having regard to the conclusion it has reached above, the Court considers that it is not necessary to examine these objections.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 13 October 2022.

Milan Blaško Georges Ravarani
Registrar President

[1]https://www.cecc2017-2020.org/fileadmin/Dokumenty/Pdf/Questionnaire/National_Reports/English/Albania_-_Questionnaire_XVIII_Congress_of_CECC_eng.pdf