CASE OF CORNEA v. THE REPUBLIC OF MOLDOVA
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)
Alvina Gyulumyan;Ján Šikuta;Josep Casadevall;Luis López Guerra
5. The applicant was born in 1956 and lives in Curchi. 6. At the time of the events the applicant was head of female patient services at the Orhei Psychiatric Hospital. In February 2003 the hospital’s chief physician was suspended from his position – owing to his being the subject of a criminal investigation – and the applicant was appointed to temporarily replace him. Another doctor, V.C., was appointed to temporarily fill the applicant’s former position. 7. In October 2005 the criminal investigation conducted in respect of the hospital’s chief physician was terminated and, on the basis of a court order, he returned to his position. On 27 October 2005 the hospital ordered the applicant’s transfer to the position of head of female patient services and V.C.’s transfer to the position of an ordinary doctor. On the basis of that order, the applicant took up his initial position of head of female patient services and V.C. returned to being a simple doctor. 8. On an unspecified date V.C. challenged the order of 27 October 2005 arguing that he had not consented to being removed from the position of head of female patient services. The proceedings lasted until February 2006 during which time the applicant worked as head of female patient services. Nobody informed the applicant about the proceedings. 9. On 28 February 2006 the Orhei District Court examined the action brought by V.C. without involving the applicant in the proceedings, and upheld it, quashing the hospital’s order of 27 October 2005. V.C. was reinstated in the position of head of female patient services. The applicant learned about the trial after its conclusion and appealed against the judgment. He argued, inter alia, that the judgment was unlawful because he had not been involved in proceedings in which his own rights and interests were clearly affected, relying – inter alia – on Article 360 (1) (b) of the Code of Civil Procedure (see paragraph 14 below). The hospital did not appeal against the judgment but supported the applicant’s position during the proceedings before the Court of Appeal. 10. On 8 June 2006 the Chişinău Court of Appeal declared the applicant’s appeal inadmissible on the grounds that he had not been a party to the proceedings and had no right to lodge an appeal against the judgment of 28 February 2006. In dismissing his argument quoting Article 360 (1)(b) of the Code of Civil Procedure, the Court of Appeal stated: “[...] the [applicant’s] reference to Article 360 (1)(b) of the Code, which would have entitled him to appeal without having been a party to the proceedings [...], is based on a wrong interpretation of this procedural rule, which cannot be applied in the present case”. 11. The applicant lodged an appeal on points of law with the Supreme Court of Justice, again relying on Article 360 (1)(b) of the Code of Civil Procedure (see paragraph 14 below). 12. On 15 November 2006 the Supreme Court of Justice dismissed the applicant’s appeal on points of law after finding that the applicant did not have the right to lodge an appeal against the judgment of 28 February 2006 because his rights and obligations had not been affected by that judgment. 13. After the above events, the applicant took up a position as an ordinary doctor at the hospital, receiving a salary which was lower than that of the head of section.