Communicated on 5 February 2020
Published on 24 February 2020
THIRD SECTION
Application no. 4086/18
Denis Viktorovich OLEYNIK
against Russia
lodged on 27 December 2017
STATEMENT OF FACTS
1. The applicant, Mr Denis Viktorovich Oleynik, is a Russian national, who was born in 1991 and lives in St Petersburg. He is represented before the Court by Mr D.G. Bartenev, a lawyer practising in St Petersburg.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant, who was looking for new employment, uploaded his curriculum vitae to various head-hunter websites.
4. On 6 July 2015 the applicant received an email from a private foundation providing support for educational programmes, “Captains” (hereinafter referred to as the “Captains foundation”). Ms P, a person in charge of an educational project “Captains of Russia”, invited the applicant to participate in a Skype interview for a position as a training manager.
5. The applicant agreed. On 7 July 2015, he and Ms P held a Skype job interview. After the interview, Ms P confirmed that the Captains foundation was willing to hire the applicant as a training manager. She also proposed that she and the applicant could continue to correspond via the social network “Vkontakte”. The applicant agreed. During the conversation in the “Vkontakte” network, Ms P asked the applicant if he was gay, and specified that the Captains foundation “adheres to traditional views” and that it would not hire a homosexual person. As the applicant confirmed that he was gay, Ms P stopped the conversation. The applicant received an e-mail from Ms P confirming that he could not be employed by the Captains foundation. No explicit reasons were given for the refusal to employ the applicant.
6. The applicant brought a civil claim against the Captains foundation, claiming that he had been denied employment on a discriminatory ground. To support his complaint, he provided to the court copies, certified by a public notary, of his conversations with Ms P, together with a screenshot of the Captains foundation’s home webpage, where Ms P was listed as a person in charge of an educational project “Captains of Russia”. The respondent party submitted, without providing any evidence, that Ms P had never worked for the Captains foundation. On 25 November 2015, the Nagatinskiy District Court of Moscow dismissed the applicant’s claim on the grounds that no act infringing his rights could be established.
7. On 20 April 2016 the Moscow City Court dismissed the applicant’s appeal, confirming the District Court judgment.
8. On 31 October 2016 the Moscow City Court dismissed the applicant’s cassation appeal as no breach of substantial or procedural law had been established. The Supreme Court also stated that the lower courts’ proceedings were compliant with the law. The applicant’s second cassation appeal was dismissed on 21 August 2017.
B. Relevant domestic law
9. Article 64 of the Russian Labour Code reads as follows:
“Unjustified refusal to conclude a labour contract shall be prohibited.
All and any direct or indirect restrictions or granting of direct or indirect advantages at concluding a labour contract depending on the sex, race, skin colour, nationality, language, origin, property, social and official status, domicile (including availability or unavailability of registration at the place of residence or lodgment) as well as on any other factors not connected with professional qualities of employees shall not be permitted, except for the cases stipulated by the federal law.
It is not allowed to refuse to conclude a labour agreement with women because of their pregnancy or presence of children.
It is not allowed to refuse employees who were invited in written form from the previous working place, in conclusion of a labour agreement, for one month beginning from the day of their withdrawal from the previous working place.
The employer must inform a person who was refused in conclusion of a labour agreement about reasons of refusal in written form.
A refusal to conclude a labour agreement can be appealed to a court.”
COMPLAINT
The applicant complains under Article 14 in conjunction with Article 8 of the Convention that his denial of employment was of a discriminatory nature and that the domestic courts did not answer his arguments in this respect.
QUESTIONs TO THE PARTIES
1. Is Article 14 in conjunction with Article 8 applicable to the applicant’s complaint about the alleged denial of employment on the grounds of his sexual orientation?
2. If so, has there been a violation of Article 14 in conjunction with Article 8? In particular, did the domestic courts offer effective protection against the alleged discrimination of the applicant by the employer company, on the ground of his sexual orientation?
3. Did the domestic courts’ failure to address the applicant’s arguments and to assess his submissions, disclose a violation of Article 6 of the Convention?
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