European Court of Human Rights

SECOND SECTION

DECISION

Application no. 22433/05
by Natela DAVITASHVILI
against Georgia

The European Court of Human Rights (Second Section), sitting on 12 May 2009 as a Chamber composed of:

Françoise Tulkens, President,
Ireneu Cabral Barreto,
Vladimiro Zagrebelsky,
Danutė Jočienė,
Dragoljub Popović,
András Sajó,
Nona Tsotsoria, judges,
and Francoise Elens-Passos, Deputy Registrar

Having regard to the above application lodged on 6 February 2005,

Having regard to the observations submitted by the respondent Government and the absence of those of the applicant in reply,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mrs Natela Davitashvili, is a Georgian national who was born in 1947 and lives in Tbilisi. The respondent Government were represented by their Agent, Mr Mikheil Kekenadze of the Ministry of Justice.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant had worked, under a contract of indefinite duration, as a laboratory assistant in a tuberculosis hospital since 1994. By an order of 12 July 2002, the hospital administration (“the respondent”) dismissed her.

The applicant sued for unlawful dismissal and, in a judgment of 29 November 2002, the Didube-Chughureti District Court in Tbilisi found in her favour.

Enforcing the terms of the above judgment, the respondent issued, on 29 November 2002, an order reinstating the applicant to her previous position.

On 1 December 2002 the respondent offered, and the applicant accepted, an employment contract for six months.

On 1 April 2003 the respondent notified the applicant that her contract would expire on 1 June 2003 and that no extension was possible.

On 27 June 2003 the applicant filed another action, requesting, inter alia, that the respondent be ordered to re-employ her. She claimed that she had signed the six-month contract by mistake.

On 18 June 2004 the Tbilisi Regional Court, overturning a lower instance decision, found for the applicant, ordering the respondent to offer her a contract of indefinite duration, as the situation had stood prior to her unlawful dismissal of 12 July 2002. The appellate judgment noted, in its operative part, that a cassation appeal lay within a month following delivery of its motivated copy to the parties.

On 24 September 2004 the respondent lodged a cassation appeal.

On 26 January 2005 the Supreme Court allowed the respondent’s cassation appeal, by quashing the appellate judgment of 18 June 2004 and dismissing the applicant’s employment action of 27 June 2003. The cassation court established that the Didube-Chughureti District Court’s binding decision of 29 November 2002 had been properly enforced, in so far as the respondent had duly issued, on 29 November 2002, an order reinstating the applicant to her permanent position. It was only subsequent to that reinstatement that the respondent had offered her an employment contract for six months, which she had accepted herself. The Supreme Court noted in that regard that the Labour Code did not preclude employers and employees from replacing a permanent labour relation with that of a definite duration. Nor did the labour legislation impose upon employers an obligation to extend contracts of limited duration against their will.

Throughout the second set of proceedings, a labour union of which the applicant was a member submitted to the domestic courts legal arguments on her behalf.

B. Relevant domestic law

Pursuant to Article 264 §§ 1 and 2 of the Code of Civil Procedure (“the CCP”), if a cassation appeal had not been lodged within the statutory period, the appellate judgment became binding.

Subsequent to Article 397 § 1 of the CCP, the period for lodging a cassation appeal, which could not be either restored or extended, was one month. That period started to run from the moment of delivery of the appellate judgment to a party in question. Delivery was made either by handing a copy of the appellate judgment or its communication by registered post to a party.

Article 397 § 2 of the CCP further stated that, if the appellate court had orally pronounced the reasoned text of its judgment in the presence of a party concerned, the period for lodging a cassation appeal started to run upon pronouncement.

COMPLAINTS

Under Articles 1, 6 § 1 and 17 of the Convention, the applicant denounced the outcome of the second set of employment proceedings, arguing that the Supreme Court had improperly assessed the circumstances of her case and misread the labour legislation. She also complained that the respondent had lodged its cassation appeal outside the statutory time-limit.

Under Article 11 of the Convention, the applicant complained that the domestic courts had not shared the arguments of the labour union of which she was a member. Invoking Article 14 of the Convention, she claimed to be a victim of the authorities’ discriminatory treatment.

THE LAW

1. Alleged violation under Article 6 § 1 of the Convention

Under Article 6 § 1 of the Convention the applicant complains about the outcome of the second set of employment proceedings and claims that the appellate judgment of 18 June 2004 had been quashed on the basis of the belated cassation appeal. This provision reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ...”

(a) As regards the outcome of the proceedings

By calling into question the outcome of the proceedings, the applicant requests the Court to act as an appeal court of “fourth instance”. However, the Court reiterates that the domestic courts are best placed for assessing the relevance of evidence to the issues in the case and for interpreting and applying rules of substantive and procedural law (see, amongst many authorities, Rizhamadze v. Georgia, no. 2745/03, § 21, 31 July 2007; Gurepka v. Ukraine, no. 61406/00, § 45, 6 September 2005). Insofar as the relevant domestic decisions do not disclose any manifestly arbitrary reasoning (cf., a contrario, Donadze v. Georgia, no. 74644/01, § 32, 7 March 2006), the Court considers that this limb of the applicant’s complaint under Article 6 § 1 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

(b) As regards the alleged introduction of the cassation appeal outside the statutory period

By complaining that the Supreme Court entertained the belated cassation appeal, the applicant claims, in substance, that the appellate judgment of 18 June 2004 was final by the time of its quashing on cassation (Article 264 §§ 1 and 2 of the Code of Civil Procedure). An issue with respect to the principle of res judicata is thus at stake (see, Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999-VII; Istrate v. Moldova, no. 53773/00, §§ 48-51, 13 June 2006).

The Government replied that the applicant’s complaint was manifestly ill-founded, in so far as the respondent had been served with a motivated copy of the appellate judgment only on 8 September 2004. As proof, they submitted an official record from the Tbilisi Regional Court showing that a written copy of that judgment had been handed personally to the director of the respondent hospital on that date. The director set her signature on that record in confirmation of receipt.

Observing that the operative part of the appellate judgment of 18 June 2004 had indeed provided for a subsequent delivery of its reasoned text to the parties (see the Facts above), the Court, in the absence of any evidence in the case file to the contrary, is persuaded by the Government’s substantiated claim that the impugned judgment was delivered to the respondent on 8 September 2004. Consequently, the statutory period of one month had started to run from that date (Article 397 § 1 of the CCP), and, by the time the respondent lodged its cassation appeal on 24 September 2004, the appellate judgment of 18 June 2004 was not yet final (Article 264 §§ 1 and 2 of the CCP).

In the light of the above findings, the Court concludes that the second limb of the applicant’s complaint under Article 6 § 1 of the Convention is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. Other alleged violations of the Convention

The applicant also invoked Articles 1, 14, 11 and 17 of the Convention. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that this part of the application is similarly to be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Françoise Elens-Passos Françoise Tulkens
Deputy Registrar President