FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 33852/04
by Victor HAROVSCHI
against Moldova
The European Court of Human Rights (Fourth Section), sitting on 18 November 2008 as a Chamber composed of:
Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
David Thór Björgvinsson,
Ledi Bianku,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 19 July 2004,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Victor Harovschi, is a Moldovan national who was born in 1969 and lives in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant worked for a non-governmental organisation in 2002 and 2003. In May 2003 he was dismissed from his job because he had failed to perform his duties properly and had not observed work discipline. He was allegedly not paid compensation for his unused annual leave, nor his salary for September 2002.
1. The original proceedings
The applicant initiated court proceedings asking for his reinstatement, the issuing of his workbook (carnet de muncă) and payment of his salary for the entire period during which he had not obtained his workbook, a recognition of the fact that his contract with the employer had been concluded for an indefinite period and that his one-year contract had been unlawfully concluded, the payment of his salary for the entire period of his involuntary absence from work and the payment of compensation for unused annual leave.
On 30 October 2003 the Râşcani District Court rejected the applicant’s claims, finding that he had been correctly dismissed due to his failure to perform his duties properly, as confirmed by the relevant materials and witness statements. Witnesses testified in court about his use of the internet for personal amusement during working hours and his personal conflicts with the administration as a result of matters such as his improper use of the internet, his manner of dressing and his attitude towards colleagues. His dismissal was moreover based expressly on a provision in his contract to that effect. The court also found it established that the applicant had not submitted his workbook to the employer when he started work and therefore could not request it back upon his dismissal. Finally, the court found that the entire sum due to him on dismissal had been paid.
The applicant appealed. He argued, inter alia, that the lower court had violated procedural rules when it refused to request documents which were in the possession of the other party, the relevance of which he had explained in his request. In addition, his contract should have been considered as concluded for an indefinite time. The court also refused to award him his salary for September 2002 even though he had not received it. His claim for compensation for unused annual leave had also been unlawfully rejected. He challenged both the power of the executive director of his employer to dismiss him and the basis for his dismissal, as the legal requirement to give at least two disciplinary warnings before dismissal had not been complied with and his conduct could not have contravened internal regulations since there were none. He finally contested the finding of the court regarding his failure to submit his workbook to the employer, relying on the fact that one of his former colleagues testified in court that she had not been asked to submit a workbook either and, accordingly, had not submitted one, and that employers were obliged by law to keep workbooks for staff. He again asked the court to request a list of documents from his former employer and explained what matters could be proved by examining those documents.
On 24 December 2003 the Chişinău Court of Appeal rejected his appeal. The court found that the applicant had been lawfully dismissed since he had systematically failed to perform his duties. In addition, his contract had expired on 1 November 2003.
In his appeal in cassation the applicant essentially repeated the arguments he had made on appeal, annexing a letter from the Labour Inspection which had found, on 19 December 2003, that his former employer had failed to observe labour laws by not keeping workbooks for all its employees, including that of the applicant, by failing to adopt orders for hiring personnel or to adopt internal rules of conduct and a plan for annual leave. The Labour Inspection found that the applicant had not been paid compensation for unused annual leave, in the amount of 930.88 Moldovan lei (MDL). He also relied on previous judgments of the Supreme Court of Justice in which, in his opinion, the court had decided in favour of persons in similar situations.
On 12 May 2004 the Supreme Court of Justice rejected his appeal in cassation, finding that he had been dismissed in accordance with the law and as a result of his systematic failure to observe the work regulations, having been sanctioned on three separate occasions before his dismissal. The applicant did not provide evidence of the alleged unlawfulness of those sanctions. Moreover, it was clear from the case file that he had been paid in full and that he had not submitted his workbook to the employer.
2. Proceedings after communication of the present application
On 6 October 2006 the present application was communicated to the respondent Government.
On 1 November 2006 the applicant lodged with the Supreme Court of Justice a request for the re-opening of the proceedings.
On 5 January 2007 the Supreme Court of Justice accepted that request and ordered a full re-hearing of the case.
On 28 February 2008 the Chişinău Court of Appeal quashed the first-instance court judgment of 30 October 2003 and adopted a new one, rejecting the applicant’s claims after having found that he had started working for his employer on 1 October 2002, when he concluded a contract for one year, and that he had been dismissed for repeatedly violating work discipline and bringing the work of the entire office to a standstill for a day due to his abusive use of the internet. However, the court partly accepted his claim for compensation for unused leave and awarded him MDL 752.22 in this connection. The court also ordered the employer to issue the applicant with a new-type workbook. It rejected the applicant’s claim for payment of his salary for the period during which the employer had not issued him the workbook, finding that no evidence had been submitted of his inability to find other employment in the absence of the new-type workbook, given in particular that he was still in the possession of his old workbook, which could be used in seeking new employment.
On 6 June 2008 a panel of the Supreme Court of Justice found the appeal in cassation lodged by the parties inadmissible. The parties were not summoned to the hearing.
B. Relevant domestic law
Article 440 of the Code of Civil Procedure reads as follows:
“Article 440. Procedure for examining the admissibility of an appeal in cassation
... (2) Admissibility of an appeal in cassation shall be decided without summoning the parties”
COMPLAINTS
1. The applicant complained under Article 6 § 1 of the Convention of various procedural violations (failure to summon him to the hearing before the Supreme Court of Justice of 12 May 2004 and of 6 June 2007, failure to respond to his claim for the recognition of his contract as an contract of unlimited duration, and failure of the courts to request documents essential for the examination of the case from the other party and to give sufficient reasons for the judgments).
2. He also complained under Article 1 of Protocol No. 1 to the Convention that he was not awarded money to which he was entitled under the law.
THE LAW
1. In respect of the applicant’s complaint under Article 6 of the Convention, the Court notes that all the judgments adopted in the original proceedings were quashed and the case was fully examined in the new proceedings. It considers that, whatever the shortcomings of those initial proceedings, they were remedied to the extent that they were not repeated in the new proceedings. In this connection, the Court notes, in particular, that in the new proceedings the courts dealt with all the applicant’s claims. They established that the applicant had concluded a contract with his employer and started working from 1 October 2002, which responded to the applicant’s claims that he had worked without a contract since September 2002 and did not receive a salary for that month, and that he had concluded a contract for an indefinite period of time with his employer. The courts also established that due to a number of serious violations of work discipline he had been fired before the end of the contract, and that, accordingly, his request to be re-instated in his former position and to receive his salary for involuntary inability to work had been ill-founded. Finally, unlike in the first proceedings, the courts examined the applicant’s claim for compensation for unused leave and awarded him such compensation, while giving reasons for rejecting his claim for additional compensation due to the delay in issuing him a new-type workbook.
The Court therefore considers that in the new proceedings the domestic courts fully examined all the applicant’s claims and gave sufficient reasons for their judgments.
In respect of the failure of the Supreme Court of Justice to summon the parties to its hearing of 6 June 2008, the Court notes that the domestic law (see Article 440 of the Code of Civil Procedure, cited above) expressly provides that the determination of the admissibility of an appeal in cassation is made without summoning the parties. Since the admissibility decision did not deal with the substance of the case but was limited to determining whether the appeal in cassation satisfied formal criteria set out in the law, and in the absence of any element in the case clearly requiring the Supreme Court of Justice to hear the applicant in person before deciding on the admissibility of the appeal, the Court considers that the failure to summon the parties before declaring the appeal in cassation inadmissible does not raise an issue under Article 6 § 1 of the Convention.
The Court notes that the applicant effectively complained of incorrect application of the law by the domestic courts. In this connection, the Court reiterates that it is in the first place for the domestic authorities, notably the courts, to interpret and apply domestic law (see Jahn and Others v. Germany [GC] nos. 46720/99, 72203/01 and 72552/01, § 86, ECHR 2005- VI, and Bimer S.A. v. Moldova, no. 15084/03, § 58, 10 July 2007). There is nothing in the case file to suggest that the judgments were manifestly arbitrary or insufficiently reasoned so as to raise an issue under Article 6 of the Convention and the Court has no grounds in the present case to call into question the judgments adopted by the domestic courts.
It follows that this complaint must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
2. The Court reiterates that “[a]n applicant can allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions related to his “possessions” within the meaning of this provision. “Possessions” can be either “existing possessions” or assets, including claims, in respect of which the applicant can argue that he or she has at least a “legitimate expectation” of obtaining effective enjoyment of a property right. By way of contrast, the hope of recognition of a property right which it has been impossible to exercise effectively cannot be considered a “possession” within the meaning of Article 1 of Protocol No. 1, nor can a conditional claim which lapses as a result of the non-fulfilment of the condition” (see Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, §§ 82-83, ECHR 2001-VIII; Gratzinger and Gratzingerova v. the Czech Republic (dec.) [GC], no. 39794/98, § 69, ECHR 2002-VII; and Kopecký v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004‑IX).
In the present case, the applicant’s claim for the payment of his salary following his dismissal depended on a finding by the domestic courts that his dismissal had been unlawful. Since the courts found that his dismissal had been lawful, the applicant did not have a “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention, nor a “legitimate expectation” to be paid his salary and other related sums of compensation.
It follows that this complaint must 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.
Lawrence EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy