CASE OF GORDEYEV v. RUSSIA
Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court)
Dmitry Dedov;Erik Møse;Khanlar Hajiyev
4. The applicant was born in 1951 and lives in Khanty-Mansiysk. 5. On 11 March 2002 the applicant lodged an action against his former employer, the Khanty-Mansiysk Institute of Northern Wildlife Management (“the institute”, Ханты-Мансийский «Институт природопользования Севера»), which was affiliated to the State Agricultural Academy of Tyumen (“the Academy”, Тюменская государственная сельскохозяйственная академия), a State-owned educational institution. The applicant sought reinstatement in a job and work-related benefits. 6. On 13 May 2002 the Khanty-Mansiysk Town Court of the Tyumen Region (“the Town Court”) held in the applicant’s favour. 7. On 26 June 2002 the Court of the Khanty-Mansy Autonomous Region (“the Regional Court”), acting on appeal, reversed the above judgment and remitted the case to the Town Court for a fresh examination. 8. On 22 July 2002 the case file was sent to the Town Court. 9. On 13 August 2002 the institute was liquidated. 10. On 10 November 2003 the judge invited the defendant to present its objections and the applicant to specify his claims. 11. On 29 December 2003 the Town Court replaced the institute by the Academy as the defendant following the applicant’s request lodged on 10 November 2003. 12. On 19 January 2004 the Town Court joined two other persons as co-plaintiffs. 13. The hearing of 29 January 2004 was postponed to 2 March 2004 following the applicant’s request for collection of certain documents. 14. The hearing of 2 March 2004 was postponed to 26 April 2004 due to the prosecutor’s absence and the applicant’s position according to which it was impossible to examine the case in his absence. 15. The hearing of 26 April 2004 was postponed to 7 June 2004 following the applicant’s request to consult documents in the case file which had not been previously communicated to him. 16. On 7 June 2004 the applicant presented additional claims which required their communication to the respondent. The hearing was thus postponed to 2 July 2004. 17. The hearing of 2 July 2004 was postponed to 20 August 2004 following the applicant’s request to summon a witness and to collect additional documents. 18. The hearing of 20 August 2004 was postponed to 8 October 2004 due to the applicant’s health problems. 19. At the hearings of 8 October 2004 and 10 December 2004 the applicant amended his claims. Both hearings were adjourned to enable the respondent to study the amendments. 20. On 17 January 2005 the Town Court partly granted the applicant’s action, ordering his immediate reinstatement at “the Khanty-Mansiysk academy’s affiliate” as from 13 February 2002 and awarding him 474,587.05 and 20,000 Russian roubles (RUB) in arrears and nonpecuniary damage respectively. 21. On 27 January 2005 and on 2 February 2005 respectively the respondent and the applicant appealed. 22. On 21 March 2005 the prosecutor presented his objections on both appeals. On the same day the case was sent to the Regional Court. 23. On 5 April 2005 the Regional Court, acting on appeal, affirmed the above judgment as to the reinstatement and non-pecuniary damage, reversing and remanding it for a new trial as to the arrears. 24. On 17 May 2005 the sums due to the applicant under the judgment of 17 January 2005, as amended by the Regional Court on 5 April 2005, were transferred to his bank account. 25. In the meanwhile the Town Court was renamed the KhantyMansiysk District Court of the Khanty-Mansy Autonomous Region (“the District Court”). The applicant’s case was assigned thereto. 26. On 19 April 2005 an expert was appointed with a view to determining the applicant’s benefit entitlement. The next hearing was scheduled for 20 May 2005. 27. On 19 May 2005 the expert presented his calculations. 28. At the hearing of 20 May 2005 the applicant challenged the expert’s calculations. The applicant was invited to present his own calculations based on documentary evidence and examine a possibility to conclude a friendly settlement. 29. The hearing of 16 June 2005 was adjourned to 8 July 2005 on account of the inconsistency of the applicant’s calculations with the Labour Code. The parties were invited to establish new calculations. 30. The hearing of 8 July 2005 was adjourned pending the outcome of the supervisory-review appeal lodged by the respondent. 31. On 17 August 2005 the District Court awarded the applicant RUB 242,734.40 in arrears. 32. On 4 October 2005 the Regional Court upheld the above judgment on appeal. 33. On 5 April 2006 the sums due to the applicant under the judgment of 17 August 2005, as upheld on 4 October 2005, were transferred to his bank account. 34. On 10 January 2006 the applicant returned the writ of enforcement to the District Court on the ground that the name of the debtor institution was incorrectly indicated. 35. On an unspecified date the bailiff applied to the District Court seeking clarification of the judgments of 17 January 2005 and of 17 August 2005. The bailiff argued that both judgments were impossible to execute in view of the institute’s liquidation. 36. On 8 February 2006 the District Court examined his request in the presence of the Academy’s representative and the applicant. 37. In its first decision delivered on that date the District Court rectified the defendant’s name and held that the sums awarded to the applicant be paid by the Academy. 38. By its second decision, the District Court rejected the bailiff’s request for clarification of the judgment of 17 January 2005 as regards the applicant’s immediate reinstatement. The court held that the procedure of dismissal of an employee in case of liquidation of a structural subdivision of the employer was governed by the relevant provisions of the Labour Code. 39. These judgments were not appealed against and became final. 40. On 17 January 2005 the Academy lodged an application for supervisory-review with the Presidium of the Court of the Khanty-Mansy Autonomous Region (“the Presidium”). The Academy alleged that the lower courts had incorrectly applied the substantive law and consequently the judgments of 17 January and 5 April 2005 should be quashed in their entirety. 41. On 12 May 2006 the Presidium amended the judgments of 17 January and of 5 April 2005 as to the applicant’s immediate reinstatement. The Presidium found that in accordance with Article 81 § 4 of the Labour Code in case of the liquidation of a branch of an organisation located in another territory the termination of contracts of its employees is governed by the rules applicable to the liquidation of organisations. In accordance with point 60 of the Ruling of the Plenum of the Supreme Court no. 2 of 17 March 2004, if it is not possible to reinstate an unlawfully dismissed employee because of the liquidation of the organisation, the court finds that the dismissal was unlawful and holds that he was dismissed in accordance with Article 81 § 1 of the Labour Code as a result of the liquidation of the organisation. In view of the above, the Presidium concluded that the lower courts incorrectly applied the substantive law and amended their judgments in the part concerning the applicant’s immediate reinstatement by declaring that he should be considered as dismissed as a result of the liquidation of the employer organisation as from 17 January 2005 and that there was no need to send the matter to a new consideration. The Presidium rejected the remainder of the Academy’s supervisory-review application.