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FOURTH
SECTION
CASE OF
CAZACU v. MOLDOVA
(Application
no. 40117/02)
JUDGMENT
STRASBOURG
23
October 2007
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Cazacu v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza,
President,
Mr G. Bonello,
Mr K. Traja,
Mr S.
Pavlovschi,
Mr L. Garlicki,
Ms L.
Mijović,
Mr J. Šikuta, judges,
and
Mr T.L. Early, Section Registrar,
Having
deliberated in private on 2 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 40117/02) against the Republic
of Moldova lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Moldovan national, Mr Vasile Cazacu, (“the
applicant”) and his family members (“the other
applicants”), on 19 September 2002. The applicants were
represented before the Court by Ms L. Iabangi from “The
Helsinki Committee for Human Rights”, a non-governmental
organisation based in Chişinău.
- The
Moldovan Government (“the Government”) were represented
by their Agent at the time, Mr V. Pârlog.
- The
applicants complained that the refusal of Mr Cazacu's employer to pay
his redundancy payments and the domestic courts' acceptance of this
refusal notwithstanding clearly contrary provisions of the law had
violated his rights guaranteed by Article 6 of the Convention and
Article 1 of Protocol No. 1 to the Convention.
- The
application was allocated to the Fourth Section of the Court. On
15 November 2005 a Chamber of that Section decided to
communicate the application to the Government. Under the provisions
of Article 29 § 3 of the Convention, it decided to examine the
merits of the application at the same time as
its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1950 and lives in Cimişlia.
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- From
1986 the applicant was employed by the Bureau of Architecture,
Projects and Production of the Chief Architect of Cimişlia
Region (“the Cimişlia Bureau”),
a State service. In 1993 the Bureau adopted new by-laws, which were
approved by the Ministry of Architecture and Construction. Under
these by-laws, the Bureau was registered as an independent legal
person with the rights of a State company and governed by the
Regulations of State companies. It was created within the organs of
local public administration and on the basis of municipal property
but was financed exclusively from the income it generated from
selling a variety of services to the local administration and to the
population.
- On
16 December 1999 Lăpuşna County
Council decided to merge several bureaux, including the Cimişlia
Bureau, into one service at the County level. The Lăpuşna
Bureau thus became the legal successor of the Cimişlia
Bureau in which the applicant had worked. Before this merger, the
Cimişlia Bureau decided to reduce the
number of personnel employed and as a result the applicant was made
redundant by an order of 29 December 1999.
- On
12 January 2000 he acknowledged the dismissal notice in writing, as
requested by law. In accordance with the relevant labour legislation,
he requested redundancy payments (namely redundancy compensation
worth one month's average salary, his average monthly salary during
the three months when he would be looking for a new job, payment for
unused leave for 1999 and payment of his salary for December 1999 and
part of January 2000).
- The
employer refused to pay because it had set aside no money for
redundancy payments. According to a certificate issued by the
Cimişlia employment office on 9 June
2000, the applicant had been unemployed from 21 January 2000 to
the date of the issue of the certificate.
- The
applicant initiated court proceedings, claiming redundancy payments,
namely one month's salary on dismissal, the continuing payment of his
salary for the three subsequent months when he would be looking for
another job and monetary compensation for untaken leave. On 5 July
2000 the Cimişlia District Court
partly accepted his claims. He appealed and the Cahul Regional Court
quashed that judgment, ordering a full re-hearing of the case.
- On
27 April 2001 the Cimişlia District
Court rejected all his claims as unfounded.
- On
14 August 2001 the Cahul Regional Court upheld that judgment. It
found, among other things, that the applicant had missed the
two-month deadline for making his claim against the Cimişlia
Bureau, since the decision to reorganise the bureau had been
published in January 2000 and the complaint had been lodged in May
2000.
- Notwithstanding the fact that the applicant had missed
the above-mentioned time-limit, on 26 April 2002 the Court of Appeal
examined the substance of his appeal and upheld the judgment of the
Regional Court. The court reasoned that no compensation was due
because the Cimişlia Bureau, in which
the applicant had worked, was self-financed; it had not set aside any
resources for compensation but had distributed all the money obtained
from its activity to its employees, after paying taxes. Since it had
been an independent legal person, its legal successor, the Lăpuşna
Bureau, could not be held liable for any outstanding debts.
The court also found that the applicant had not offered any new
services after October 1999 and thus could not claim his salary for
November-December 1999. He had been warned in April 1999 of impending
dismissal and instructed to complete all outstanding work by 29
December 1999. Finally, the court found that he had not registered
with the Lăpuşna employment
office as unemployed and could therefore not claim redundancy
compensation.
II. RELEVANT DOMESTIC LAW
- The relevant provisions of the Labour Code of 25 May
1973, in force until 28 March 2003, read as follows.
“Article 3. Sphere of application of
labour legislation.
The labour legislation regulates work relations of
employees employed in enterprises, institutions and organisations on
the territory of Moldova, regardless of the type of property and form
of management ...
Article 6. Nullity of contract clauses making
the conditions of employees worse.
Contractual clauses making the conditions of employees
worse than those provided for by law are null and void.
...
Article 45/3. Indemnities and compensation
for employees made redundant.
Employees made redundant by enterprises, institutions
and organisations because of a reduction of the number of personnel
or status of personnel:
1) shall be paid a redundancy indemnity worth
one month's average salary;
2) shall continue to receive the average
salary during the period needed to find a new job, but for no longer
than two months from the date of redundancy, taking into account the
payment of the redundancy indemnity;
3) exceptionally, shall continue to receive
the average salary during the third month from the date of
redundancy, based on a decision of the employment office, subject to
the employee's timely request to that authority (within two weeks of
redundancy) and if not offered a job in the meantime.
...
Article 80. Prohibition of granting of
monetary compensation in lieu of untaken leave
It is prohibited to grant monetary compensation in lieu
of untaken leave, save in the case of dismissal of an employee who
has not used his or her leave days”.
- The relevant provisions of the Code of Civil Procedure
(in force until 12 June 2003) read as follows:
“Article 296. Scope of appeal
proceedings.
The court which examines the appeal shall verify whether
the first-instance court's judgment is lawful and well-grounded, on
the basis of the information in its possession, as well as any new
written evidence submitted to the court.
The court may re-evaluate the evidence in its possession
and examine any new evidence submitted by the parties in accordance
with the present Code.
The court shall deal with each ground of appeal
invoked.”
THE LAW
- The
applicant and his family complained that their rights guaranteed
under Article 6 of the Convention had been violated because of the
alleged lack of impartiality of the courts which had examined the
case. They also complained, under the same Article, that the
applicant's appeal had worked to their detriment.
Article
6 § 1 of the Convention, in so far as relevant, provides:
“1. In the determination of his civil
rights and obligations ... everyone is entitled to a fair hearing ...
within a reasonable time by an independent and impartial tribunal...”
- They
also complained that the domestic courts had refused to follow the
clear provisions of the law regarding the right to redundancy
payments, contrary to Article 1 of Protocol No. 1 to the Convention.
Article
1 of Protocol No. 1 to the Convention reads as follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
I. ADMISSIBILITY
1. Standing of the members of the applicant's family
- The
members of the applicant's family complained in their own names about
alleged violations of their rights under Article 6 of the Convention
and Article 1 of Protocol No. 1 to the Convention. They submitted
that the inability of the applicant to obtain redundancy payments had
caused serious damage to the entire family as he was its only
breadwinner.
- The
Court notes that the applicant could personally complain in the
courts about the refusal to pay him redundancy payment and about any
procedural violations of his rights, as he in fact did. While the
difficult financial situation in which the applicant's family was
allegedly placed by the failure to make redundancy payments could
reasonably be considered to have affected his entire family, this
does not constitute a sufficiently distinct interference with the
family's rights to give them a separate standing in the proceedings
before the Court (see, a contrario, McCann and Others v.
the United Kingdom, judgment of 27 September 1995, Series A
no. 324, and Çakıcı v. Turkey [GC],
no. 23657/94, ECHR 1999 IV). The Court may, however, take
into account any such additional damage when dealing with any claims
for just satisfaction, if it finds a violation in the present case.
Accordingly,
the complaint lodged by the members of the applicants' family must be
rejected as being incompatible ratione personae with the
provisions of the Convention in accordance with Article 35 §§
3 and 4.
2. The Government's preliminary objection
- The
Government contended that the application had not been properly
submitted by the applicant but rather by a lawyer who claimed to be
associated with the Helsinki Committee for Human Rights in Moldova.
No evidence was produced to prove such an association with that
non-governmental organisation. In addition, the applicant's authority
to act had been issued to the Helsinki Committee and not to any
specific lawyer and there was nothing in the file to show that the
latter had been authorised by the Helsinki Committee to represent the
applicant.
- The
applicant's lawyer submitted a delegation issued by the Helsinki
Committee on 12 June 2002 authorising the applicant's lawyer to
present the applicant's case to the Court. She also submitted a
letter to the Court dated 16 May 2006 and signed by both the
applicant and his lawyer, in which they expressed their intention not
to settle the case.
- The Court notes that at no time did the applicant
state that Ms Iabangi had acted without his proper
authorisation. Moreover, he subsequently co-signed documents signed
by her (see the preceding paragraph). Since the authority to act
signed by the applicant clearly mentioned his intention to lodge a
complaint before the Court, and because even subsequent confirmation
of a particular person's actions in representing an applicant before
the Court may dispel any doubts regarding the initial application
(see Popov v. Moldova (no. 2), no. 19960/04,
§ 2, 6 December 2005), the Court sees no reason to
consider that the lawyer in the present case had not been authorised
by the applicant to lodge the application on his behalf.
Accordingly,
this objection must be rejected.
3. Complaint concerning the domestic courts' lack of
impartiality
- The
applicant complained of the alleged lack of independence and
impartiality of the judges who had examined his case in view of the
fact that the other party was a State service. He considered that
after the 2001 changes in the system of appointment of judges the
judiciary had become dependent on the executive, thus worsening a
situation already made difficult by the economic dependence of the
judiciary on the Ministry of Justice.
- The
Government considered that this complaint was manifestly ill founded
and should be rejected.
- The
Court considers that the applicant has not submitted evidence capable
of showing that the entire judicial system in Moldova and the
particular courts which examined his case were dependent on the
executive and that judges were biased against him.
- Accordingly,
the Court concludes that this complaint is manifestly ill-founded
within the meaning of Article 35 § 3 of the
Convention and should be rejected under Article 35 § 4 thereof.
4. Complaint about equality of arms
- The
applicant also complained under Article 6 of the Convention that his
position had been prejudiced even though he was the only party to
lodge an appeal.
- The
Government considered that this complaint was manifestly ill-founded
and should be rejected.
- The
Court notes that Article 296 of the Code of Civil Procedure (see
paragraph 16 above) expressly provides for the court's power when
hearing an appeal to examine all the evidence in its possession and
to adopt different views from those of the lower court should it
consider that necessary. It follows that the deterioration of an
appellant's position is not against the law. Neither does the Court
see any problem in this respect under Article 6 of the Convention.
- Accordingly,
the Court concludes that this complaint is manifestly ill-founded
within the meaning of Article 35 § 3 of the
Convention and must be rejected under Article 35 § 4 thereof.
6. Complaint under Article 1 of Protocol No. 1 to the
Convention
- The
applicant complained about a violation of his rights guaranteed by
Article 1 of Protocol No. 1 to the Convention.
- Although
the Government argued that the applicant's complaint under Article 1
of Protocol No. 1 to the Convention was manifestly ill- founded, the
Court considers that it raises questions of fact and law which are
sufficiently serious for its determination to depend on an
examination of its merits. No grounds for declaring it inadmissible
have been established. The Court therefore declares this complaint
admissible.
- In
accordance with its decision to apply Article 29 § 3 of the
Convention (see paragraph 4 above), the Court will now consider the
merits of the admissible complaint.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO
THE CONVENTION
- The
applicant considered that the domestic courts' failure to award him
redundancy payments as clearly stipulated in the law had amounted to
a violation of Article 1 of Protocol No. 1 to the Convention.
- The
Government disagreed. They argued that the applicant had received his
salary and that no provisions had been made in the Cimişlia
Bureau's budget for redundancy payments. Moreover, the applicant had
not effectively worked during November and December 1999 and could
not therefore expect a salary for those months. In addition, he
received unemployment benefit during the six months following the
registration of his dismissal. Finally, the Government considered
that Article 1 of Protocol No. 1 to the Convention could not
apply to the present case because the relations between the applicant
and the Cimişlia Bureau were of a
labour-law nature.
- The
Court points out that Article 1 of Protocol No. 1 to the Convention
does not guarantee the right to acquire property (see Kopecký
v. Slovakia [GC], no. 44912/98, § 35, ECHR
2004 IX, and Van der Mussele v. Belgium, judgment of
23 November 1983, Series A no. 70, p. 23, § 48). Moreover, “an
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 Kopecký , cited above,
§ 35; Prince Hans-Adam II of Liechtenstein v. Germany
[GC], no. 42527/98, §§ 82-83, ECHR 2001-VIII; and
Gratzinger and Gratzingerova v. the Czech Republic (dec.)
[GC], no. 39794/98, § 69, ECHR 2002-VII).
- The Court also observes that “in each case the
issue that needs to be examined is whether the circumstances of the
case, considered as a whole, conferred on the applicant title to a
substantive interest protected by Article 1 of Protocol No. 1”
(see Broniowski v. Poland [GC], no. 31443/96, § 129,
ECHR 2004 V; Iatridis v. Greece [GC], no. 31107/96, §
54, ECHR 1999-II; and Beyeler v. Italy [GC], no. 33202/96, §
100, ECHR 2000-I). The Court has, moreover, “to consider
whether there was [...] a sufficient legal basis in support of the
applicant's claim to warrant its being regarded as an 'asset'”
(Kopecký , cited above, § 53).
- In the present case the Court notes that two of the
applicant's claims were rejected by the domestic courts because he
had not complied with the relevant requirements: he had not done any
new work after October 1999 and could therefore not claim a salary
for that period; and he had not registered with the employment office
in order to be able to claim redundancy compensation for an extra
(third) month after his dismissal (see paragraph 14 above and Article
45 (3) of the Labour Code, paragraph 15 above). The Court considers
that in respect of these claims the applicant did not have a
“legitimate expectation” of enjoying a property right
within the meaning of Article 1 of Protocol No. 1 to the Convention.
- However, the applicant's other claims (for a one-off
redundancy payment equal to his monthly salary, the continuation of
payment of his salary for two months after his redundancy and
compensation for untaken leave) were based on clear provisions of the
law giving him the right to obtain all these payments (see Articles
45 and 80 of the Labour code, paragraph 15 above). The Court
observes that these Articles did not subject their application to any
conditions such as registering with the employment office. They
applied to all “[e]mployees made redundant by enterprises,
institutions and organisations because of a reduction of the number
of personnel or status of personnel” by virtue of the
redundancy itself. The Government have not claimed that the applicant
was not in that exact situation.
- Moreover,
there is no mention in Articles 45 and 80 of an employer's discretion
as to whether or not to set aside money for making the relevant
payments. Even assuming that the Cimişlia
Bureau in the present case adopted some internal regulation or
included a clause in the contract with the applicant to the effect
that no redundancy payments would be made because of the full
redistribution of the Cimişlia
Bureau's revenues amongst its employees (see paragraph 14 above), any
such provisions would automatically lose all legal value in view of
the express prohibition contained in Article 6 of the Labour Code
(see paragraph 15 above).
- The
Court also notes that none of the domestic courts found that the
applicant did not qualify for the claimed payments. Rather, they
implicitly acknowledged the Cimişlia
Bureau's duty to make such payments when finding that its successor
(the Lăpuşna Bureau) could not be
held liable for debts to the applicant. They limited their analysis
to a finding that the Cimişlia Bureau
had not set aside any money for the purpose of redundancy payments
(see paragraph 14 above).
- It
follows that the applicant qualified fully for the redundancy
payments provided for in Articles 45 and 80 of the Labour Code, and
therefore had a “legitimate expectation” for the purposes
of Article 1 of Protocol No. 1 to the Convention of obtaining the
payments referred to in paragraph 40 above (compare and contrast the
position in Kopecký v. Slovakia [GC],
no. 44912/98, § 58, ECHR 2004 IX). Accordingly,
the domestic courts' refusal to award him these amounts constituted
an interference with his rights under that Article.
- The
Court notes that none of the courts found that the Cimişlia
Bureau had been unable to pay its debts before merging with the
Lăpuşna Bureau, which makes it
unnecessary to determine whether the latter could be held liable for
the debts of the former. Accordingly, the only reason for dismissing
the applicant's claims referred to in paragraph 40 above and
mentioned in the courts' judgment was the failure by the employer to
provide for redundancy payments.
- The
Court recalls that “[t]he first and most important requirement
of Article 1 of Protocol No. 1 is that any interference by a public
authority with the peaceful enjoyment of possessions should be
lawful: the second sentence of the first paragraph authorises
deprivation of possessions only “subject to the conditions
provided for by law” and the second paragraph recognises that
States have the right to control the use of property by enforcing
“laws”. Moreover, the rule of law, one of the fundamental
principles of a democratic society, is inherent in all the Articles
of the Convention” (see Broniowski, cited above, §
147).
- The
Court notes that all employers in Moldova were obliged by law to
provide for redundancy payments (see paragraph 15 above). The
domestic courts did not refer to any legal provision or other
circumstance allowing an exception to that rule in the present case
and limited their reasoning to establishing the fact of the
employer's failure to conform to a mandatory legal provision.
- The
Court considers that the refusal of the domestic courts to allow the
applicant's claims was unlawful for the purposes of Article 1 of
Protocol No. 1 to the Convention and accordingly incompatible
with the applicant's right to the peaceful enjoyment of his
possessions. This conclusion makes it unnecessary to ascertain
whether a fair balance was struck between the demands of the general
interest of the community and the requirements of the protection of
the individual's fundamental rights.
There
has therefore been a violation of Article 1 of Protocol No. 1 to the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Pecuniary damage
- The
applicant claimed 805 euros (EUR) in respect of pecuniary damage,
including the effects of inflation on the following amounts: his
salary for November 1999 to January 2000; the one-off compensation on
his dismissal, including compensation for the effects of inflation on
that amount (EUR 172); his average monthly salary for three months
following his dismissal (EUR 517); and payment for unused leave
(EUR 57).
- The
Government objected, considering that the applicant had not submitted
any evidence to prove his right to any payments.
- The
Court recalls its finding that the applicant could not claim his
salary for the period between November 1999 and his dismissal and for
the third month after his dismissal (see paragraph 39 above).
However, he was entitled by law to receive a one-off compensation
equal to his monthly salary at his dismissal, to continue to receive
his salary for a further two months after his dismissal and to
receive payment for unused leave (see paragraph 40 above). In
addition, the applicant was unable to use the relevant amounts for
seven years and nine months. In the light of the materials of the
case, the Court accepts in full the applicant's claims under this
head.
B. Non-pecuniary damage
- The
applicant claimed EUR 3,000 in respect of non-pecuniary damage. He
referred to the fact that his wife had been unemployed and he had
been the family's only breadwinner when he lost his job and had not
received a redundancy payment, which placed his entire family of six
in a very difficult financial position. He was further humiliated
during the proceedings when he tried to defend his rights in court.
- The
Government contended that the applicant had not submitted evidence to
prove a causal link between the alleged violations of his rights and
his alleged suffering. Moreover, the applicant's family's financial
situation had been improved by paying them unemployment benefit for
two years and five months after his dismissal (equal to approximately
EUR 100 for the entire period) and a further payment of
compensation for each minor (EUR 3 per month for each child).
- The
Court considers that the applicant must have been caused a certain
amount of stress and frustration as a result of the failure to make
him a redundancy payment, which put considerable pressure on his
family's financial situation. However, the amount claimed is
excessive. Ruling on an equitable basis, the Court awards the
applicant EUR 2,000 in respect of non-pecuniary damage.
C. Costs and expenses
- The
applicant claimed EUR 1,314 for costs and expenses, of which
EUR 1,305 was for his legal representation. He relied on a
contract with his lawyer and an itemised list, according to which the
lawyer had spent 14.5 hours working on the present case at an
hourly rate of EUR 90.
- The
Government considered that the amount claimed was excessive seen
against Moldovan reality. They also argued that the lawyer, as a
representative of a non-governmental organisation specialising in the
defence of human rights, should not have taken money from the
applicant in view of the not-for-profit nature of the organisation.
- The
Court recalls that in order for costs and expenses to be included in
an award under Article 41, it must be established that they were
actually and necessarily incurred and are reasonable as to quantum
(Roşca v. Moldova, no. 6267/02, § 45, 22
March 2005). Having regard to the information in its possession and
the complexity of the case, the Court awards the applicant EUR 1,000
for costs and expenses.
D. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint under Article 1 of
Protocol No. 1 to the Convention admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 805 (eight
hundred and five euros) in respect of pecuniary damage, EUR 2,000
(two thousand euros) for non-pecuniary damage and EUR 1,000 (one
thousand euros) for costs and expenses, to be converted into the
national currency of the respondent State at the rate applicable at
the date of settlement, plus any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 23 October 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
