Communicated on 19 December 2017
FOURTH SECTION
Application no. 73080/10
Sergey Aleksandrovich DOLGOPOLOV
against Ukraine
lodged on 30 November 2010
STATEMENT OF FACTS
The applicant, Mr Sergey Aleksandrovich Dolgopolov, is a Ukrainian national, who was born in1978 and lives in Kramatorsk.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 10 July 2009 the applicant, a loader at the Kramatorsk Heavy Machine Tool Building Plant (Краматорский завод тяжелого станкостроения), and one of his colleagues found some metal goods on the plant’s territory, put them into three bags and took them to a driver’s room at the shipping department. They allegedly intended to return the goods to the plant’s management.
The applicant’s conduct was noticed by the security service of the plant. The driver’s room was searched in the presence of witnesses and the relevant record was drafted. The applicant provided explanations as to his conduct.
On 17 July 2007, on the basis of the file submitted by the security service to the plant’s administration, the applicant was dismissed from his post for “loss of trust”. The descriptive part of the dismissal order stated that the applicant had committed an attempted theft.
The applicant appealed against his dismissal. He submitted in particular that his guilt to the attempted theft had not been established by a criminal court and that therefore there had been no legal grounds for his dismissal.
On 16 February 2010 the Kramatorsk Court rejected the applicant’s reinstatement claim as time barred.
On 2 June 2010 the Donetsk Regional Court of Appeal quashed the above-mentioned decision, renewed the time-limit for the applicant and rejected his claim. The relevant part of the judgment reads as follows:
“... A court may found a dismissal for the loss of trust (Article 41 paragraph 2 of the Labour Code) to be well-founded if an employee ... had taken – either intentionally or by negligence – steps which would give grounds ... for the loss of trust [in the employee].
The case file suggests that on 10 July 2009 ... [the applicant], in breach of ... the Internal regulations, instead of taking the metal goods to the thermal unit as it had been prescribed by [...], took those goods to the other side of the plant, [namely] to the driver’s room of the shipping department. This theft attempt was revealed by the plant’s security service.
The mentioned facts have not been contested by the [applicant] during the examination of the case by the court of appeal.
On 17 July 2009 [the applicant] was dismissed from his post, with the agreement of the [plant’s] trade union, on the basis of Article 42 paragraph 2 of the Labour Code for loss of trust. ...
Having regard to the mentioned-above, the court of appeal is of the opinion that the [applicant’s] dismissal had been carried out in compliance with the requirements of the labour legislation. His claim therefore shall be dismissed as manifestly ill-founded. ...”
On 3 December 2010 the Supreme Court of Ukraine dismissed the applicant’s request for leave to appeal in cassation.
On 9 September 2011 the applicant was again admitted as a loader at the plant and has been working there since then.
B. Relevant domestic law
1. Labour Code of Ukraine of 10 December 1971
Article 40. Termination of labour contract on the initiative of owner ...
“Labour contract of indefinite duration ... may be terminated by the owner ... in the following cases:
...
(8) theft (including petty one) of owner’s property which has been established by a final judgment of a court.., or by a resolution of the body which competence includes imposing administrative sanction or taking measures of social influence. ...”
Article 41. Additional grounds for termination of labour contract on the initiative of owner ...
“In addition to grounds prescribed by Article 40 of this Code, the contract may be terminated on the initiative of the owner ... in the following cases:
...
(2) guilty actions of employee directly servicing monetary, commodity or cultural valuables, if these actions give reasons to lose trust thereto on part of the owner or authorized by him/her body; ...”
2. Resolution of the Plenary of the Supreme Court of Ukraine of 6 November 1992, no. 9 on Labour Disputes Consideration
“...
28. ... A court may find a dismissal for loss of trust ... to be well-founded if an employee ... had taken, intentionally or by negligence, steps which would give grounds to the owner ... to lose trust [in the employee]. ...”
COMPLAINT
The applicant complains under Articles 6 § 2 and 13 of the Convention that, having found his dismissal to be lawful, the domestic courts have infringed his right to be presumed innocent. The applicant underlines that no criminal court has ever established his guilt for the offence of attempted theft.
QUESTIONS TO THE PARTIES
1. Was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case given the fact that the Donetsk Regional Court of Appeal stated that the applicant’s acts amounted to the offence of attempted theft?
2. Did the applicant have an effective domestic remedy, under Article 13 of the Convention, in respect of his complaint that the presumption of innocence not been respected?
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