| Applicant name | GASHI AND GINA |
| Applicant type | Natural person |
| Number of applicants | 2 |
| Country | Albania |
| Application no. | 29943/18 |
| Date | 04/04/2023 |
| Judges | Pere Pastor Vilanova, President, Georgios A. Serghides, Yonko Grozev, Darian Pavli, Peeter Roosma, Ioannis Ktistakis, Andreas Zünd |
| Institution | Court |
| Type | Judgment |
| Outcome Art. 8 | Violation |
| Reason | No legal basis |
| Type of privacy | Private life |
| Keywords | Dismissial from office |
| Facts of the case | The case concerns the applicants’ suspension from their posts as public prosecutors, alleged deficiencies in the related proceedings and a lack of effective remedies, and the alleged disclosure of documents to the media.The applicants complained that their suspension from office based on the suspension orders of 11 May 2018 had violated their right to respect for their private life. |
| Analysis | The Court reiterates the three aspects of private life that can be at state at these type of cases, namely (i) the applicant’s ‘inner circle’, (ii) the applicant’s opportunity to establish and develop relationships with others, and (iii) the applicant’s social and professional reputation. It also underlines that there are two ways in which a private-life issue would usually arise in such a dispute: either because of the underlying reasons for the impugned measure (in that event the Court employs the reason-based approach) or – in certain cases – because of the consequences for private life (in that event the Court employs the consequence‑based approach). If the consequence-based approach is at stake, the threshold of severity with respect to all the above-mentioned aspects assumes crucial importance. As regards the first applicant, the Court points out that she was prevented from exercising her duties as a prosecutor in the context of criminal investigations when she was suspended ex lege. It is not in dispute between the parties that the alleged adverse effect on her “private life”. However, as to the first applicant’s argument that her suspension had a disruptive impact on the vetting process and weighed heavily in the decision to dismiss her from office, the Court notes that she did not substantiate that argument, beyond the fact that the suspension was mentioned, as a matter of fact, when indicating her employment status at the time. The Court considers that the first applicant has not demonstrated that the negative consequences arising from the suspension order were sufficiently serious for her right to respect for her private life under Article 8 of the Convention to be at stake. Any other adverse impact, for instance on reputation, was mostly due to being charged with a criminal offence rather than to the ex lege suspension, albeit with the continued payment of salary. Accordingly, her complaint is incompatible ratione materiae. This is remarkable, because normally, the Court would refer to the ratione personae requirement instead. The second applicant was suspended and the situation complained of persisted even after the criminal proceedings against the second applicant had been terminated. He remained deprived of the opportunity to resume his work and live in the professional environment where he could pursue his goals of professional and personal development. Consequently, the negative consequences became sufficiently serious for his right to respect for his private life under Article 8 of the Convention to be at stake. Furthermore, the Court finds that the second applicant’s continued suspension was devoid of any legal basis since there was no longer an ongoing criminal investigation against him. That is why the interference had no legal basis. Judge Serghides has written a bare statement of dissent, on the inadmissibility of the first applicant’s claims. |
| Other Article violation? | No violation 6, 13, 18 |
| Damage awarded | (a) that the respondent State is to pay the second applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 4,500 (four thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 3,000 (three thousand euros), plus any tax that may be chargeable to the second applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; |
| Documents | Judgment |