CASE OF ITSLAYEV v. RUSSIA
Remainder inadmissible;No violation of Art. 6-1
Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
5. The applicant was born in 1959. Formerly a resident of the village of Goyskoye of the Urus-Martan District in the Chechen Republic, he is currently living in the town of Nazran in Ingushetiya. He is a lawyer at the Memorial Human Rights Centre. 6. In April 1996 the applicant was appointed head of the administration of Goyskoye. In June 1996 the district administration stopped paying his salary because of lack of funds. 7. In August 1996 Chechen rebel fighters took power in Grozny, the capital of the Chechen Republic. 8. In December 1999 the Russian federal government regained control over the Urus-Martan District. In spring 2000 the district administration was re-established and the applicant applied for payment of his salary. He states that the administration promised to pay his salary as soon as the money arrived from the federal budget. 9. In December 2000 the Urus-Martan Town Court (“the Town Court”) started functioning, but it was located in Gudermes, the administrative centre of the Gudermes District of Chechnya, about 80 km from Goyskoye. The applicant submitted that he could not go to Gudermes to lodge his claim because of the poor overall security situation and a curfew imposed by the military. Moreover, he had no money for travel and accommodation there. 10. On 25 June 2001 the applicant again applied to the district administration for payment of his salary. On 15 July 2001 he received a reply from the head of the administration dated 4 July 2001 in which the latter informed him that the salary would be paid as soon as funds were available. 11. Sometime after July 2001 the Town Court moved from Gudermes to Urus-Martan. 12. On 9 October 2001 the applicant brought a court action with the Town Court against the district administration for payment of salary arrears over the period between June 1996 and April 1997. 13. On the same date he lodged a formal request for reinstatement of time-limits for lodging his claim. It read as follows: “Courts started functioning in the Chechen Republic in December 2000. Therefore, I could lodge a claim against the administration of the Urus-Martan District for salary arrears due for my work as head of administration of Goyskoye in 1996 only from that moment. However, in the beginning the court was located in Gudermes and it was difficult to go there because of numerous checkpoints, curfew and lack of money for travel. Furthermore, on numerous occasions I have applied to the administration of the Urus-Martan District with requests to pay me the salary arrears, considering that my claims were lawful. On 4 July 2001 I received a letter signed by the head of the administration of the Urus-Martan District, from which it emerged that the payment of salary arrears had again been postponed. Until the last moment I hoped that the salary arrears would be paid to me voluntarily, as it was an obligation of any state authority. For the above reasons I missed the time-limits for lodging a claim against the administration of Urus-Martan for salary arrears. Taking into consideration the above statements and in accordance with Article 105 of the Code of Civil Procedure of RSFSR I request [the Town Court] to restore the procedural time-limit for lodging a claim for salary arrears.” 14. On 16 October 2001 the Town Court held a hearing in the applicant’s case. According to the record of the hearing, the applicant gave the following explanation as regards his failure to comply with the timelimits: “I applied to a court only on 9 October 2001 as I did not know that law established the time-limits for applying to a court. I request the court to reinstate the time-limits for applying to a court and to recover salary arrears ...” The defendant accepted the applicant’s salary claims only for the period between June and August 1996 and submitted that the applicant would receive the arrears as soon as funds were available. On the same date the Town Court adopted a judgment in the case, which in its relevant part provided as follows: “... [Mr Itslayev] applied to the court only on 9 October 2001 because he did not know that law established the time-limits for applying to a court and he requests the court to reinstate the time-limit for applying to the court and to recover salary arrears ... The defendant’s representative submitted that ... the Administration of the UrusMartan District agreed to pay the applicant salary arrears for the period between June and August 1996 as soon as the funds were available. Having regard to the parties’ submissions and having read the materials of the case, the court comes to the following conclusion: ... According to Article 211 of the Labour Code of the Russian Federation an application concerning the settlement of a labour dispute is to be lodged with a district court within three months of the date when an employee knew or should have known about the violation of his right. In violation of this statutory provision, the applicant did not apply to a court between December 2000, when the courts started functioning in Chechnya, and 9 October 2001. The court considers that the applicant’s arguments that he had missed the time-limits because the head of administration of the UrusMartan District had promised to pay him salary and that he was not aware of time-limits are unsubstantiated. Therefore the court comes to a conclusion that the applicant missed the time-limit without any valid reason and that there are no grounds to restore it.” 15. The applicant alleged that the presiding judge had relied on an order from “higher” authorities not to accept claims similar to that of the applicant’s for examination on the merits and that he had to seek advice from judge B. of the Supreme Court of the Chechen Republic (“the Supreme Court”). The applicant also indicated that the presiding judge had been appointed for a period of one year and therefore he could not be considered independent. 16. The applicant provided the Court with a copy of the decision delivered by the Town Court on 17 October 2001 in a case of a certain M., who had claimed from the district administration salary arrears due to his wife. He submitted that his wife had been killed in April 2001 and that he was in a very difficult financial situation because he had borrowed money to bury her. The Town Court restored the time-limit for lodging his claim and examined it on the merits. It held as follows: “... the court finds that the plaintiff missed the time-limit for a valid reason, because no courts were functioning in Chechnya between August 1996 and December 2000, and between January and July 2001 the court was based in Gudermes and he could not have applied there for lack of funds ...” 17. On 6 November 2001 the applicant lodged an appeal with the Supreme Court against the judgment of 16 October 2001. In so far as he contested the application of time-limits in his case, the applicant made two arguments. In the first place he submitted that he had applied for the reinstatement of time-limits because the Town Court requested him to do so. However, Article 211 of the Labour Code could not be applied in his case, as the antiterrorist operation was still going on in the Chechen Republic. On 15 July 2001 he had received a letter from the head of the district administration by which he was informed that his salary arrears would be paid as soon as funds were available. Therefore his right had been infringed at the end of July. The three-month time-limit had started to run from the end of July and he had applied to the court in due time. Secondly, assuming that he had missed the time-limit, the Town Court could and should in accordance with Article 105 of the Code of Civil Procedure accept that he had missed the time-limit for valid reasons which were as follows: “(a) I was appointed head of a rural administration in April 1996 and worked in this position in very difficult conditions, sometimes at risk to my life. (b) I think that it is a matter of honour for the Russian state to pay at least salary arrears to heads of administrations of communities which were appointed in that period and who had worked with federal authorities. (c) On numerous occasions I have applied orally to the Administration of UrusMartan. And when I was told that there were no funds, that I would have to wait and that I would be paid, I continued to wait, believing the authorities and understanding the situation which existed in the Republic. (d) The Town Court should not have punished me, as it did, and taken the side of those who in that period killed and continue to kill people who work for the state. As a matter of fact, the Urus-Martan Town Court have now punished me for my work for the state in 1996. (e) There existed no legal conditions in the Chechen Republic to apply Article 211 of the Labour Code in labour disputes involving state authorities because of the circumstances which existed in previous years.” The applicant requested the appeal court to take into account the above circumstances, to quash the judgment of 16 October 2001 and deliver a new decision in his case. 18. On 26 February 2002 the Supreme Court, comprising judges B. and A. and presided over by Judge S., upheld the judgment of 16 October 2001. It held as follows: “... Having regard to the materials of the case and to the submissions by the plaintiff, the Civil Chamber finds that the judgment is lawful and reasoned. According to Article 211 of the Labour Code of the Russian Federation an application concerning the settlement of a labour dispute is to be lodged with a court within three months of the date when an employee knew or should have known about the violation of his right. However, since December 2000 the plaintiff has not made such an application to a court. The [Town] court has thoroughly examined the submitted evidence and reasonably found that the reasons advances by the plaintiff for missing the time-limit were not valid and refused to restore the time-limit.” The applicant was present at the hearing. He alleged that Judge B., to whom, the Town Court judge had allegedly referred, was a member of the court. Furthermore, according to the applicant, his appeal was not examined in a public hearing, but took place in one of the rooms in the Supreme Court building. 19. Article 211 of the Russian Labour Code of 1971 (in force at the material time) provided in its relevant part that an application concerning the settlement of a labour dispute had to be lodged with a district court within three months of the date when an employee knew or should have known about the violation of his right. In instances where the periods established in that Article lapsed for justifiable reasons, they could be reinstated by a court. 20. Article 105 of the Russian Civil Procedure Code of 1964 (in force at the material time) provided in its relevant parts that in cases where individuals missed the statutory time-limits for reasons which the court considered valid, the time-limits could be restored by a court. An application for reinstatement of time-limits had to be lodged with a court with jurisdiction to take a procedural decision on the matter, and had to be examined in a hearing. A claim in respect of which the time-limits had expired had to be lodged together with the application for reinstatement of the time-limits. 21. Ruling of the plenary session of the Supreme Court of the Russian Federation of 22 December 1992 No. 16 (applied until 17 March 2004) “On Some Issues related to the Application by Courts of the Russian Federation of Legislation when resolving Labour Disputes” provided in relevant parts of paragraph 8 that a judge could not refuse to accept a claim for consideration on the ground of expiration of time-limits, as Article 211 of the Labour Code did not provide for such a possibility. Where a court considered that the time-limits had not been respected for valid reasons, it had to restore them. In cases where a court, after having thoroughly examined the materials of the case, established that the time-limits had not been complied with for a non-valid reason, it had to dismiss the claim.