Communicated on 16 November 2016
FIRST SECTION
Application no. 35443/13
Voskehat GHULYAN
against Armenia
lodged on 28 May 2013
STATEMENT OF FACTS
The applicant, Ms Voskehat Ghulyan, is an Armenian national who was born in 1973 and lives in Glendale, United States of America. She is represented before the Court by Mr K. Mezhlumyan, a lawyer practising in Yerevan.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant worked in the British Council Armenia office (hereafter “the BC”) as a project manager on a full-time, permanent contract starting from 25 November 2002.
In the course of her employment the applicant had two children, born on 27 March 2008 and 7 May 2010. The applicant spent her maternity leave in the United States and regularly sent requests to extend her maternity leave every six months of her absence. In particular, she sent such requests in March and September 2009 as regards her first child and then in April and September 2010 as regards her second child. It appears that the applicant’s maternity leave was extended, based on those requests. In March 2011 her leave was further extended until 1 September 2011.
On 19 August 2011 the applicant requested another extension of her maternity leave. She handed an envelope with her written request to that effect to her friend H.K., who was to return to Armenia on 17 August 2011 after her visit to the United States. Upon arrival, H.K. gave the envelope to R.O., a driver, who then handed it to A.K., the security guard of the BC.
On 30 September 2011 the applicant received notice of termination of her employment contract prior to its term. The notice referred to the change in volume and conditions of work at the BC, as well as the need to reduce the number of staff. In addition, the notice stated the following:
“... [your] employment contract shall be terminated based on [the relevant provisions] of the Labour Code of RA.
We also inform you that your employment contract shall be terminated ... considering the fact that you did not return to work after the completion of your unpaid maternity leave, which was to end on 1 September 2011, as indicated in your letter sent to us by fax on 17 March 2011.
The employment contract shall be considered terminated as of 1 December 2011.”
It appears that the applicant sent emails to the management of the BC in relation to the early termination of her employment.
On 30 November 2011 lawyer Ar.M., a representative of “Prudence” law firm, which provided legal services to the BC, replied to the applicant on behalf of the BC. In particular, the email stated that the termination of the applicant’s employment had been in full compliance with domestic law and the terms and conditions of the BC.
By order of 1 December 2011, issued by the director of the BC, the applicant’s employment contract was terminated.
On 30 December 2011 the applicant brought a claim against the BC before the Kentron and Nork-Marash District Court of Yerevan contesting the order of 1 December 2011 and seeking reinstatement.
By decision of 11 January 2012, Judge A.M. of the District Court took over the examination of the applicant’s case and scheduled the preparatory hearing.
According to a power of attorney executed by a notary public in London on 12 January 2012, the BC authorised, inter alia, Ar.M. and K.P., another lawyer representing “Prudence” law firm, to represent its interests before courts of all instances in Armenia.
In its reply to the applicant’s claim signed by K.P., the BC denied that the applicant had submitted a request to extend her maternity leave for another six months as from 1 September 2011.
On 9 July 2012 Judge A.M. rejected the applicant’s claim, finding that her dismissal had been lawful.
After the proceedings before the District Court it was discovered that Judge A.M. and lawyer Ar.M. were twin brothers. Furthermore, “Prudence” law firm, of which Ar.M. and K.P. were senior associates, had been founded by D.M., A.M.’s and Ar.M.’s elder sister, and was managed by her husband, E.M.
On 6 August 2012 the applicant lodged an appeal arguing, inter alia, that Judge A.M. had lacked impartiality when deciding her case due to his close family ties with the legal representatives of her opponent in the proceedings.
On 28 September 2012 the Civil Court of Appeal upheld the District Court’s judgment. In doing so, the Court of Appeal did not address the applicant’s arguments regarding the alleged lack of impartiality of Judge A.M. in the proceedings before the District Court.
The applicant lodged an appeal on points of law raising similar arguments to those submitted in her previous appeal.
On 28 November 2012 the Court of Cassation declared the applicant’s appeal on points of law inadmissible for lack of merit.
B. Relevant domestic law
1. The Code of Civil Procedure
Article 21 §§ 1 and 2 provide that the grounds for a judge’s disqualification are stated in Article 91 of the Judicial Code. A judge shall recuse himself of his own motion or upon a motion of a party to the proceedings.
According to Article 22 § 1 a judge should recuse himself in case of the existence of the grounds stated in Article 21.
2. The Judicial Code
Article 91, in so far as relevant, provides:
“1. A judge should recuse himself if he is aware of any fact or circumstances which may cast reasonable doubt on his impartiality in the given case. Grounds for recusal include, inter alia, cases where:
...
4) a judge is aware that he himself, or his spouse or their relatives up to the third degree, have pecuniary interest in relation to the dispute or one of the parties thereof.”
COMPLAINT
The applicant complains that she did not receive a hearing by an impartial tribunal within the meaning of Article 6 § 1 of the Convention given that Judge A.M. of the District Court had close family ties with the representatives of her opponent in the proceedings.
QUESTION TO THE PARTIES
Did the applicant have a fair hearing in the determination of her civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, was the Kentron and Nork-Marash District Court, which dealt with the applicant’s case at first instance, impartial, as required by Article 6 § 1 of the Convention?
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