British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[
Home]
[
Databases]
[
World Law]
[
Multidatabase Search]
[
Help]
[
Feedback]
European Court of Human Rights
You are here:
BAILII >>
Databases >>
European Court of Human Rights >>
CRAVCENCO v. MOLDOVA - 13012/02 [2008] ECHR 32 (15 January 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/32.html
Cite as:
[2008] ECHR 32
[
New search]
[
Contents list]
[
Printable RTF version]
[
Help]
FOURTH
SECTION
CASE OF
CRAVCENCO v. MOLDOVA
(Application
no. 13012/02)
JUDGMENT
STRASBOURG
15
January 2008
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Cravcenco v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Josep
Casadevall,
Giovanni Bonello,
Kristaq
Traja,
Stanislav Pavlovschi,
Ján
Šikuta,
Päivi
Hirvelä, judges,
and
Lawrence Early, Section Registrar,
Having
deliberated in private on 11 December 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 13012/02) against the Republic
of Moldova lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by Mrs Elena Cravcenco (“the applicant”)
on 11 February 2002.
The
applicant was represented by Mr I. Manole, a lawyer practising in
Chişinău. The Moldovan Government (“the Government”)
were represented by their Agent at the time, Mr V. Pârlog.
The
applicant alleged, in particular, that the proceedings in her case
had been excessively long.
The
application was allocated to the Fourth Section of the Court. On
21 October 2005 the President of that Section decided to
communicate the application to the Government. Under the provisions
of Article 29 § 3 of the Convention, it was decided to examine
the merits of the application at the same time
as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1954 and lives in Cahul. The
facts of the case, as submitted by the parties, may be summarised as
follows.
1. The applicant's initial dismissal and proceedings
for her re-instatement
The
applicant worked for a State-owned theatre in Cahul (Teatrul
Republican Muzical-Dramatic 'B.P. Haşdeu',
“the employer”).
On
22 October 1996 she was dismissed and initiated court
proceedings to have that dismissal annulled. On 5 February 1997 the
Cahul District Court ordered her re-instatement. Following the
employer's refusal to abide by the court order, she complained to the
Ministry of Culture (“the Ministry”) on 6 February
1997. On 20 March1997 the Ministry assured her that the employer
would abide by the judgment, failing which it would take action.
The
applicant was re-instated on 31 March 1997. Notwithstanding that
fact, another person continued to be mentioned in the staff lists as
chief accountant. On 3 June 1997 the Regional Court quashed the lower
court's judgment. It delivered its reasoned decision six months
later.
On 3 June 1997 the applicant was again dismissed from
her job. She continued to complain to various authorities, including
the Ministry. On 26 August 1998 the Supreme Court of Justice
quashed the Regional Court's judgment of 3 June 1997 and upheld the
judgment of 5 February 1997. On 15 September 1998 the order
of 3 June 1997 dismissing the applicant was annulled; at the same
time she was again dismissed.
2. The second set of proceedings
The Prosecutor's Office initiated court proceedings in
the applicant's interest, seeking the annulment of the dismissal
order of 15 September 1998. On 16 September 1998 the Deputy
President of the Cahul District Court informed the regional
prosecutor about the employer's persistent resistance and the
resulting failure to properly enforce the judgment of 5 February
1997. Moreover, the prosecutor was informed of the applicant's
further dismissal on 15 September 1998. In the light of these
events, the court requested the prosecutor to open a criminal
investigation against the employer's director.
The applicant continued to complain about the
incomplete enforcement of the judgment of 5 February 1997. On 13
January 1999 she was informed by the Cahul District Court of an
administrative fine imposed on the theatre director on 16 September
1998, and of the request to open a criminal investigation against
him. The employer submitted to the court another order, dated
26 March 1999, annulling the applicant's dismissal of 15
September 1998. On 6 April 1999 a bailiff confirmed that the
applicant had not been de facto re-instated in the specific
prior position. On 26 May 1999 the President of the Cahul District
Court requested the prosecutor to open a criminal investigation
against the theatre director for failure to enforce the judgment of 5
February 1997.
On 17 July 1999 the applicant was dismissed from the
post of superior accountant. On the same date the court informed the
Ministry of the employer's persistent refusal to enforce the judgment
of 5 February 1997. On an unknown date the employer presented a new
order, dated 2 April 1999, in accordance with which the position
of “chief accountant” no longer existed. On 27 July
1999 the court again asked the prosecutor to initiate criminal
proceedings against the theatre director. It also informed the
Ministry of the employer's failure to enforce the court judgment in
the applicant's favour in a proper manner. The Ministry drew the
employer's attention to the need to abide by the judgment.
On 8 December 1999 the Cahul District Court annulled
the dismissal order of 17 July 1999 and ordered the applicant's
immediate re-instatement.
On 11 December 1999 the employer adopted a new order
(“the first order of 11 December 1999”) whereby the
applicant was re-instated in the position of “superior
accountant”. On 13 December 1999 the bailiff confirmed
that the judgment had not been properly enforced and on 14 December
1999 he asked the court to impose an administrative fine on the
theatre director.
On 11 January 2000 the prosecution informed the
applicant that its verification revealed a failure to properly
enforce the judgment of 5 February 1997 and that the employer's
order of 11 December 1999 had been challenged in court.
On 1 February 2000 the employer adopted a new order to
the effect that the position of “chief accountant” would
no longer exist after 2 April 2000. On 2 February 2000 the
applicant was informed that a new order dated 11 December 1999 (“the
second order of 11 December 1999”) had been adopted, under
the same number as the previous order of that date (see paragraph 14
above), re-instating her in her original position as chief
accountant. She was also warned that that position would end on
2 April 2000.
On 15 February 2000 the Cahul Regional Court upheld
the judgment of 8 December 1999. By another decision of the same
date the court rejected the bailiff's request to impose a fine on the
theatre director.
On 21 February 2000 the applicant requested the
employer to issue an order whereby the position of chief accountant
would be “created in reality” and reflected in the
official documents (state de personal) since no such position
allegedly existed officially, apart from her re-instatement order.
She also asked to be given the necessary authorities and access to
documents in order to perform her functions.
On
21 March 2000 the Cahul Regional Court quashed the decision of
15 February 2000 not to impose a fine on the theatre director.
It ordered a re-hearing of the case.
The
applicant initiated new court proceedings, seeking to have the order
of 1 February 2000 annulled as unlawful.
On 19 April 2000 the Cahul District Court decided to
declare invalid the first order of 11 December 1999 (order no.
1, re-instating her in the position of superior accountant, see
paragraph 14 above), and to declare valid the other order with the
same number and date (order no. 2, re-instating her in the position
of chief accountant, see paragraph 16 above). On 24 August 2000
the Cahul Regional Court quashed that judgment and simultaneously
adopted a new one, which also annulled the first order and upheld the
second. On 10 October 2000 the Chişinău Court of
Appeal quashed both judgments and ordered a full re-hearing.
3. The third set of proceedings – re-examination
of the entire case
On
5 March 2001 the Cahul District Court ordered the re-instatement of
the applicant in the position of chief accountant. On 30 October 2001
the Chişinău Regional Court quashed that judgment and
discontinued the proceedings in respect of the annulment of the order
of 1 February 2000, stating that the decision to abolish a position -
taken in accordance with the relevant procedure - was an internal
matter for the theatre and was not subject to judicial control. The
court also ordered a re-hearing of the case in respect of the
annulment of the order of 11 December 1999, the applicant's de
facto re-instatement and payment of her salary for the duration
of her involuntary absence from work. On 15 January 2002 the Court of
Appeal dismissed the applicant's appeal against the discontinuation
of proceedings with regard to the annulment of the order of 1
February 2000.
On
14 June 2002 the Cahul District Court discontinued the proceedings in
respect of the annulment of the order of 11 December 1999 and the de
facto re-instatement of the applicant because the proceedings had
been incorrectly initiated as civil proceedings, whereas they were
within the competence of the administrative courts. On the same date
the Cahul District Court dismissed the bailiff's proposal to fine the
theatre director for failure to enforce the judgment of 8 December
1999. This latter decision was subsequently upheld by the Comrat
Regional Court on 29 June 2004.
On
24 September 2003 the applicant inquired about the reasons for the
non-enforcement of the judgment of 5 February 1997. It appears that
she did not receive any reply. She repeated her request on 23 March
2004, when she was informed about the decisions of 14 June 2002. She
then appealed.
On 13 July 2004 the Comrat Regional Court quashed the
first of the two decisions of 14 June 2002 (regarding discontinuation
of the proceedings for lack of competence) and ordered a re-hearing
of the case. The court found that the parties had not been informed
about the hearing and had not been sent a copy of the decision and,
further, that the case file had not been received at the registry of
the lower court until 24 February 2004.
On 12 April 2005 the Cahul District Court found that
the applicant's re-instatement had been ordered three times by final
court judgments (on 5 February 1997, 8 December 1999 and 15
February 2002) and that she had been properly re-instated on 11
December 1999; it therefore dismissed her claim for re-instatement.
However, the court accepted her claim for payment of salary for
involuntary absence from work for the period from 15 February 2000
until 25 August 2000, when she was dismissed by an order which she
did not challenge. The court left unexamined her request for
compensation for the effects of inflation on the late payment and her
claim for non-pecuniary damage, which could be examined in separate
proceedings.
The
applicant submitted that she was not informed of her employer's order
of 25 August 2000, had not acknowledged receipt of the order as
required by law, and was thus unable to challenge it in court. The
order had not been presented to the courts or to any other authority
in any of the proceedings after August 2000, which meant that it was
fake.
On 17 April 2006 the Cahul District Court partly
accepted the applicant's claims and found that her employer had not
paid her salary for certain periods in 2000 or made mandatory social
welfare payments in respect of the applicant. The court declared void
the first order of 11 December 1999 to re-instate the applicant,
and found that the second order of the same date and with the same
number remained valid. It awarded the applicant compensation for
non-pecuniary damage in the amount of 350 Moldovan lei (MDL)
(equivalent to 22 euros (EUR) at the time) for the failure to pay a
part of her salary in 2000, finding that the employer had in the
meantime paid another MDL 350 in salary arrears.
The
applicant submitted medical evidence concerning several periods of
in-patient hospital treatment during the proceedings and claimed that
she had spent a considerable amount of money on treatment for herself
and her daughter.
According to a letter from the Ministry of Justice to
the Government's Agent, dated 26 June 2006, the applicant's appeal
was sent to the Cahul Court of Appeal on 19 May 2006. That court sent
the case to the Supreme Court of Justice, asking it to examine the
issue of the impossibility of examining the appeal, due to the fact
that that all the judges in the Cahul Court of Appeal had already
taken part in previous examinations of the case. On an unknown date
the case was transferred to the Chişinău Court of Appeal.
According to a certificate issued by the Decisions Enforcement
department in Cahul on 3 March 2006, the applicant received MDL 1,680
in salary arrears for 1999.
On 1 November 2006 the Chişinău Court of
Appeal upheld the judgment of 17 April 2006. That judgment was also
upheld by the Supreme Court of Justice on 25 April 2007 and thus
became final.
II. RELEVANT DOMESTIC LAW
The relevant provisions of the Code of Civil
Procedure, in force before 12 June 2003, read:
“Article 208
Court judgments are immediately enforceable if they
order the defendant to:
... (2) pay [an employee] his/her salary ...
... (4) re-instate in his/her job an unlawfully
dismissed worker.”
The
relevant provisions of the new Code of Civil Procedure read:
“Article 192.
... (2) Court actions regarding ... work related claims
... shall be examined urgently and on a priority basis.
Article 256
(1) Court decisions and judgments are immediately
enforceable if they order the defendant to:
... d) pay compensation for involuntary absence from
work, when the person is re-instated in his or her job.
(2) Court judgments regarding re-instatement in post of
those unlawfully dismissed or transferred shall be enforced
immediately.”
The relevant provisions of the Labour Code (in force
at the time) read:
“Article 221.
An employee may apply to the labour disputes commission
or a court directly within one month from the date on which he or she
discovered or ought to have discovered the violation of his or her
rights. Where an employee is dismissed, the period of one month is
counted from the day on which the dismissal order was announced to
him or her and was acknowledged by the employee's signature.”
THE LAW
The
applicant complained that the proceedings in her case, including the
failure to enforce the judgment of 26 August 1998, had been
excessively long, contrary to Article 6 § 1 of the Convention,
the relevant part of which provides:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
The
applicant also complained about violations of Articles 13 and 17 of
the Convention in that the judicial system in Moldova had been
inefficient and had worked against her interests.
Article
13 provides:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
Article
17 provides:
“Nothing in [the] Convention may be interpreted as
implying for any State, group or person any right to engage in any
activity or perform any act aimed at the destruction of any of the
rights and freedoms set forth herein or at their limitation to a
greater extent than is provided for in the Convention.”
I. ADMISSIBILITY OF THE COMPLAINTS
The
Court considers that the applicant's complaint under Article 17 is
unfounded, since there is nothing in the case-file to support it.
Accordingly,
this complaint is manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention and must be
rejected under Article 35 § 4.
The Court also considers that the complaint regarding
the failure to enforce the final judgments of 5 February 1997 (as
upheld by the Supreme Court of Justice on 26 August 1998) and 8
December 1999 are out of time since the domestic courts determined
that the applicant had been properly reinstated in her position by
the order of 11 December 1999 (see paragraphs 28 and 31 above). The
present application was lodged on 11 February 2002, more than
two years after the enforcement of the judgments.
Therefore,
this complaint has been introduced outside the
time-limit set down by Article 35 § 1 of the Convention and must
be rejected as inadmissible pursuant to Article 35 § 4 of the
Convention. This finding has no bearing on the complaint
regarding the length of the proceedings in the present case,
including the proceedings in which the applicant challenged the
conclusion that she had been reinstated in 1999.
In
their additional observations concerning recent developments in the
case the Government considered that the applicant had been fully
compensated for any damage caused to her when she received the
various sums awarded to her by the domestic courts (see paragraphs 28
and 30 above). The Government therefore considered, in essence, that
the applicant could no longer be considered a victim of a violation
of her rights.
The
Court notes that the courts which made the relevant awards in favour
of the applicant did not acknowledge, even in substance, a violation
of the applicant's right to a trial within a reasonable time and did
not give any compensation to her for such a violation. They rather
ordered the employer to pay salary arrears and other payments due. In
these circumstances, the Court considers that the applicant may claim
to be a victim of a violation of Article 6 § 1 of the Convention
(see, mutatis mutandis, Prodan v. Moldova,
no. 49806/99, § 47, ECHR 2004 III (extracts)).
The
Court considers that the applicant's complaints under Articles 6 and
13 of the Convention raise questions of fact and law which are
sufficiently serious that their determination should depend on an
examination of their merits. No grounds for declaring them
inadmissible have been established. The Court therefore declares
these complaints admissible. In accordance with its decision to apply
Article 29 § 3 of the Convention (see paragraph 4
above), the Court will immediately consider the merits of the
complaints.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained that the proceedings in her case, which lasted
for some nine years despite clear legal provisions giving such
provisions priority, had been excessively long. She emphasised the
fact that none of the delays in the proceedings were attributable to
her and that the authorities had permitted long and unnecessary
breaks.
The
Government submitted that the proceedings had consisted of three
separate court actions, each having an object of its own, which
should not be taken together for the purposes of assessing the
reasonableness of the length of the proceedings. They added that the
applicant was responsible for the third set of proceedings, since she
had challenged in court the employer's order to re-instate her in the
position which she had requested. Moreover, the case was very complex
and included numerous court judgments and other decisions. Another
factor complicating the case was the impossibility of enforcing the
judgment, due to the non-existence of the position in which the
applicant was to be re-instated. The applicant had requested
adjournment of the proceedings on a number of occasions on account of
her poor health. She had appeared at work in February-March 2000 for
short periods between her health-related absences, which confirmed
that she had been fully reinstated in her job.
The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
While
the right of access to court cannot oblige the State to enforce every
judgment regardless of the circumstances of the case (see Fociac
v. Romania, no. 2577/02, § 68, 3 February
2005), the inertia of the enforcement authorities in the process of
enforcement engages the responsibility of the State (see Scollo v.
Italy, judgment of 28 September 1995, Series A no. 315 C, §
44, and Istrate v. Moldova, no. 53773/00, § 43,
13 June 2006).
1. Period to be taken into consideration
In the present case, the Court notes that the
applicant initiated the proceedings in October 1996 and that they
ended with the final judgment of the Supreme Court of Justice on 25
April 2007. It also notes that Moldova ratified the Convention on 12
September 1997 and that, therefore, it is from that date that the
length of the proceedings should be counted. However, in assessing
the reasonableness of the time that elapsed after that date, account
must be taken of the state of proceedings at the time (see Tomláková
v. Slovakia, no. 17709/04, § 36, 5 December
2006). The resulting period therefore amounts to approximately nine
years and seven months.
The
Court further notes that the parties disagree as to whether this
period should considered as a whole or be regarded as three separate
proceedings. The Court notes that the first set of proceedings in the
present case lasted until 15 September 1998, when the applicant
was re-instated following the Supreme Court of Justice's final
judgment (see paragraph 9 above). Following further dismissals and
re-instatements, the applicant was again dismissed on 17 July
1999. However, throughout the period between 15 September 1998
and 17 July 1999 and thereafter the authorities considered that the
judgment of 5 February 1997 had not been enforced properly (see
paragraphs 10 to 12 and 15 above). It follows that on the date of the
applicant's dismissal on 17 July 1999 she had still not been properly
re-instated. Hence, the annulment of that latest dismissal (see
paragraph 13 above), did not change the fact that the 1997 judgment
had still not been enforced. In fact, the judgment of 8 December 1999
resulted in the same order to properly re-instate the applicant in
her position as chief accountant, that is, the same outcome as in the
1997 proceedings. The Court considers that the fact that a new
judgment was adopted regarding an additional period of the
applicant's unlawful dismissal subsequent to the original judgment
does not mean that the period of time during which the original set
of proceedings had lasted should be excluded from the overall length
of the proceedings in the present case.
As
for the second and third sets of proceedings (which concerned the
order of 11 December 1999), the Court takes account of the fact
that, after the adoption of that order, the bailiff and other
domestic authorities considered that the judgment of 8 December 1999
had not been properly enforced (see paragraphs 14 and 15 above). What
the parties referred to as the third set of proceedings in fact
represents a re-hearing of the case which was examined in the second
set of proceedings and must thus be considered as part of the overall
length of proceedings. The courts eventually decided that the second
order of 11 December 1999 which re-instated the applicant in the
specific position had represented enforcement of the judgment in her
favour (see paragraphs 28 and 31 above). However, that conclusion was
reached only in April 2007 when a final court judgment was adopted.
The
Court, accordingly, considers that all three sets of proceedings
relate to the same issue, namely the applicant's attempts to obtain
proper re-instatement in her position and compensation, parts of
which were awarded in 2007 (see paragraphs 28 and 31 above). The
Court will therefore consider the period as a whole for the purposes
of its Article 6 § 1 analysis, starting with 12 September
1997 (see paragraph 46 above).
2. Complexity of the case
The
Court does not consider that the case was difficult from either a
factual or a legal point of view. In fact, following a final judgment
of the Supreme Court of Justice in August 1998 the case centred on
the enforcement of that judgment, which could not require extensive
legal or factual work on the case. The existence of a great number of
judgments, referred to by the Government as a complicating factor in
the case, was the result of the manner in which the courts dealt with
the case but not of an inherent complexity in the case as such. The
Court reiterates that “although it is not in a position to
analyse the quality of the case-law of the domestic courts, it
considers that, since the remittal of cases for re-examination is
usually ordered as a result of errors committed by lower courts, the
repetition of such orders within one set of proceedings discloses a
serious deficiency in the judicial system” (see Wierciszewska
v. Poland, no. 41431/98, § 46, 25 November 2003, and
Pavlyulynets v. Ukraine,
no. 70767/01, § 51, 6 September
2005).
The
Court does consider it necessary to deal with the Government's
argument regarding the impossibility of enforcing the judgment due to
the non-existence of the position in which the applicant was to be
re-instated. It has found above that the complaint regarding the
failure to enforce the final judgments in favour of the applicant was
out of time (see paragraph 38 above). However, the present complaint
relates to the length of the proceedings as a whole.
3. Conduct of the applicant
The
applicant does not appear to have contributed in any manner to the
length of the proceedings, other than using her procedural rights.
The Court cannot agree with the Government's submission that the
applicant is to be reproached for having challenged her
re-instatement of 11 December 1999. The applicant considered that
order not to constitute a full enforcement of the judgment of 5
February 1997 (see paragraph 18 above), which also appears to have
been the opinion of at least some of the domestic authorities (see
paragraphs 14 and 15 above). It was therefore natural for her to
challenge that order in court.
The
Court agrees that the adjournment of the proceedings requested by an
applicant is a relevant consideration. The Government submitted
copies of three such requests but no court decisions adjourning the
proceedings based on them. Even assuming that such adjournments were
ordered, they represent a negligible part in the entire period and
appear, moreover, to have been well-founded, relying as they did on
medical certificates. The Court concludes that the applicant did not
contribute in any significant manner to the length of the
proceedings.
4. Conduct of the authorities
The
Court notes certain periods of inactivity by the domestic courts in
examining the case, such as between 30 October 2001, when the
Chişinău Court of Appeal ordered a re-hearing of the case
and 13 July 2004, when the Comrat Regional Court examined the case
again. The two decisions adopted in the meantime, on 14 June 2002,
without the parties even being informed, cannot be considered proper
judicial acts since they lacked any form of guarantee of a fair trial
and also raised, in the opinion of the higher court, serious doubts
as to authenticity (see paragraph 25 above). These two decisions are
therefore irrelevant to the finding that the courts remained inactive
in respect of the applicant's case throughout this period.
Another
period of inactivity is apparent between 12 April 2005, when the
Cahul District Court re-heard the case and adopted its decision on
the merits, until 17 April 2006, when the next court judgment was
adopted. While the Court appreciates the difficulties caused by the
fact that all the judges at the Cahul Court of Appeal had already
examined the case and that it had to be transferred to another court,
it also recalls the lack of complexity of the matter as such as well
as the fact that the case had been examined on a considerable number
of occasions by various courts.
Moreover,
the Court considers that the State authorities did not take
sufficient action to ensure the enforcement of final judgments in the
applicant's favour within a reasonable time. It accepts that in
certain circumstances the State cannot be held responsible for a
failure to enforce a judgment where it is established that it has
taken all reasonable steps in that direction (see Fociac,
cited above, § 78). However, it is to be noted that the person
preventing the enforcement of the court judgments in the present case
was the director of a public theatre which was directly subordinated
to and funded by the Ministry. Accordingly, the State had a greater
range of avenues in obliging the employer to abide by the judgment
than if the matter had concerned a private entity. While there were
some attempts to sanction the theatre director (see paragraphs 10 and
11 above), they remained limited to relatively small administrative
fines, some of which were, moreover, annulled by the courts (see
paragraph 17 above), while criminal proceedings never resulted in
charges and a judgment. It follows that, faced with the theatre
director's overt refusal to abide by final court judgments, the
courts did very little to sanction him.
4. What was at stake for the applicant
The
Court finally notes that the proceedings concerned a very important
issue for the applicant, namely her employment. The legislator
confirmed the particular importance of such proceedings to employees
by expressly providing in the legislation for the urgent examination
of employment disputes on a priority basis and for the immediate
enforcement of judgments ordering the re-instatement of employees
(see paragraphs 32 – 34 above). The Court considers that the
domestic courts did not display the special diligence which was
required of them under both the domestic law and Article 6 § 1
of the Convention (see Guzicka v. Poland, no. 55383/00, § 30,
13 July 2004, and Orel v. Slovakia, no. 67035/01, § 58,
9 January 2007).
5. Conclusion
In
the light of the above, first of all the above-mentioned periods of
inactivity and the overall length of the proceedings in an employment
case, and having regard to what was at stake for the applicant, the
Court concludes that the requirement of a “reasonable time”
laid down in Article 6 § 1 of the Convention was not complied
with in the present case. There has therefore been a breach of that
provision.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicant complained of a lack of effective remedies in respect of
her complaint concerning the length of the proceedings.
The
Government considered that the applicant had not submitted sufficient
arguments in respect of this complaint and asked the Court to reject
it, given also that no violation of her rights under Article 6 of the
Convention had taken place.
The
Court notes that despite the several actions taken by the authorities
in order to ensure the swift enforcement of the judgments in favour
of the applicant (see paragraphs 10 to 12, 15 and 17 above), she did
not have at her disposal any means for accelerating the proceedings
or obtaining compensation. The Court therefore finds that the
applicant did not have at her disposal effective remedies in respect
of her complaint about the length of the proceedings.
There
has, accordingly, been a violation of Article 13 taken in conjunction
with Article 6 § 1 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Pecuniary damage
The applicant claimed MDL 124,155 (EUR 7,840) for
pecuniary damage, an amount which represented her salary for the
period of 1999-2006, taking into account that she had already
received her salary for 1996-1998 as awarded by the domestic courts,
and compensation for unused annual leave and penalties for the late
payment of the above sums.
The
Government challenged the applicant's calculations and considered
that the amounts claimed were excessive.
The
Court notes that the applicant sought to show that a final judgment
in her favour had not been fully enforced. However, it recalls its
finding of a violation of Article 6 of the Convention only in respect
of the length of the proceedings in respect of her claim, but not
also in respect of a failure to enforce a final judgment (see
paragraph 38 above). The domestic courts eventually determined that
the judgment had been enforced in 1999 and the Court has no reason to
doubt that finding. The Court therefore does not see a causal link
between the violation it has found in the present case and the claim
for outstanding salary and related damages.
In
view of the above, the Court makes no award for pecuniary damage.
B. Non-pecuniary damage
The
applicant claimed EUR 90,000 for non-pecuniary damage. She submitted
that she had suffered stress and humiliation as a result of her
employer's overt refusal to abide by court judgments in her favour,
the lack of real action by the authorities to ensure enforcement, and
the prolonged examination of her case by the courts. She submitted
medical evidence to support her claim that her health had suffered as
a result of her anxiety. In addition, she and her family had been
deprived of an important source of income for many years and she had
been unable to apply for alternative employment due to the pending
proceedings.
The
Government considered that there was no causal link between the
alleged violations and the claims under this heading, which had,
moreover, not been substantiated by clear evidence or reference to
the Court's case-law. Moreover, the applicant was re-instated on 11
December 1999 and could not, therefore, claim damages for any
subsequent period.
The
Court considers that the applicant must have been caused a certain
level of stress and frustration as a result of the excessive length
of the proceedings, given their importance for her family's income
and her health problems. Considering the above and the total length
of the proceedings, and deciding on an equitable basis, the Court
awards the applicant EUR 3,000 for non-pecuniary damage.
C. Costs and expenses
The
applicant claimed EUR 4,425 for costs and expenses, which included
her lawyer's fees both at domestic level and for representation
before the Court.
The
Government disagreed and considered the amount claimed exaggerated
when compared to the fees charged at domestic level. They also
challenged the number of hours needed to prepare the observations on
this relatively simple case.
The
Court recalls that in order for costs and expenses to be reimbursed
under Article 41, it must be established that they were actually and
necessarily incurred and were reasonable as to quantum (see Croitoru
v. Moldova, no. 18882/02, § 35, 20 July 2004).
According to Rule 60 § 2 of the Rules of Court, itemised
particulars of claims made are to be submitted, failing which the
Chamber may reject the claim in whole or in part.
In
the present case the Court takes note of the list of hours spent on
the case submitted to the Court. It considers that the number of
hours worked on the case and the total amount claimed are excessive.
Regard being had to the relative lack of complexity of the case and
the issues dealt with, but also to the volume of the materials which
had to be dealt with, the Court awards the applicant EUR 1,500
for costs and expenses.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares inadmissible the applicant's complaint
under Article 6 of the Convention regarding the failure to enforce
the judgments of 5 February 1997 and 8 December 1999, as well as the
complaint under Article 17 of the Convention, and the remainder of
the application admissible;
Holds that there has been a violation of
Article 6 § 1 of the Convention as regards the length of
the proceedings;
Holds that there has been a violation of
Article 13 taken in conjunction with Article 6 of the
Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,000
(three thousand euros) in respect of non-pecuniary damage and EUR
1,500 (one thousand five hundred euros) for costs and expenses, to be
converted into the national currency of the respondent State at the
rate applicable at the date of settlement, plus any tax that may be
chargeable;
(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;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 15 January 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas
Bratza
Registrar President
