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THIRD
SECTION
CASE OF MARTIN v. ROMANIA
(Application
no. 14466/02)
JUDGMENT
STRASBOURG
10 March 2009
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 Martin v. Romania,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Elisabet
Fura-Sandström,
Corneliu
Bîrsan,
Boštjan
M. Zupančič,
Ineta
Ziemele,
Luis
López Guerra,
Ann
Power, judges,
and
Santiago Quesada,
Section Registrar,
Having
deliberated in private on 17 February 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 14466/02) against Romania
lodged with the Court under Article
34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by a
Romanian national, Ms Ludmila Martin (“the applicant”),
on
18 February 2002.
- The
Romanian Government (“the Government”) were represented
by their Agent, Mr Răzvan-Horaţiu Radu.
- On
23 May 2007 the
President of the Third Section decided to give notice of the
application to the Government. It was also decided to examine the
merits of the application at the same time as its admissibility
(Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1949 and lives in Tulcea.
- The
applicant worked in the Deltapan company (“the company”)
until 30 November 1998, when she was dismissed from her job, together
with some eighty-seven other employees, owing to a decrease in the
company's activity. Her post was abolished, the company being unable
to offer her another job.
- In
1995 the employees and managers of the company created the PAS
Deltapan association (“the association”), with the aim of
acquiring shares in the company, which was being privatised. The
applicant was elected to the board of directors with a two-year
mandate. In 1997 the association's general assembly elected a new
board of directors, to which the applicant was not elected.
A. Proceedings to overturn a decision of the
association
- On
9 December 1998 the applicant lodged an action seeking to have a
decision of 12 October 1998 of the association's general assembly
overturned. She alleged that the meeting of the general assembly
which modified the statute and leadership of the association had not
been legally convened.
- On
2 March 1999 the Tulcea County Court (“the County Court”)
allowed the action.
- On
28 October 1999 the Constanţa Court of
Appeal (“the Court of Appeal”) allowed an appeal by the
association, quashed the previous judgment and sent the case back for
a fresh examination. It found that while the applicant had lodged the
action against the association, the procedural acts had been
performed in respect of the company.
- This
decision was confirmed on 20 November 2001 by the Supreme Court of
Justice, which considered null and void a further appeal by the
applicant because she had submitted her reasons out of time.
- During the retrial on 25 April 2002 the County Court
held that, in accordance with Government Ordinance no. 26 of 30
January 2000 regarding associations and foundations, it had no
jurisdiction
ratione materie to examine the case, which
came within the competence of the Tulcea Court of First Instance
(“the Court of First Instance”).
- The
proceedings were stayed between 1 July and 17 October 2002 at the
applicant's request, as she had lodged an appeal against the refusal
to exercise jurisdiction.
- On
3 October 2002 the Court of Appeal, by a final decision, dismissed as
groundless the appeal against the judgment of 25 April 2002. On 23
January 2003 the court further dismissed, by an interlocutory
decision, a request by the applicant to rectify factual errors.
On 12
February 2003 the applicant lodged a further appeal against the
interlocutory decision and, considering that it could influence the
trial, on 14 August 2003 she requested adjournment of the main
proceedings. On 21 January 2004 the High Court of Cassation and
Justice declared the applicant's appeal against the interlocutory
decision inadmissible.
- On
30 November 2005 the Court of First Instance dismissed the
applicant's action as groundless.
- On
12 May 2006 the County Court confirmed that judgment by a final
decision.
B. Proceedings for reinstatement
- On
4 January 1999 the applicant challenged the dismissal decision,
seeking reinstatement and payment.
- On
5 April 1999 the Court of First Instance dismissed the action,
considering the dismissal decision lawful and well-founded.
- The
applicant appealed. Of thirteen hearings held between 15 July 1999
and 12 September 2003 seven were adjourned at the applicant's
request. This includes a stay of proceedings for non-appearance of
both parties before the court between 15 July 1999 and 26 June 2000,
when the applicant requested the reopening of the proceedings.
The
proceedings were also stayed between 6 October 2000 and
28 March
2003, when the applicant requested their adjournment pending
investigations brought about by her criminal complaints against
certain employees of the company.
- On
12 September 2003 the County Court dismissed her appeal. On 4 October
2004 the court, by an interlocutory decision, dismissed a request by
the applicant to rectify factual errors in the judgment. On 29
November 2004 it also dismissed, by a final decision, a further
appeal by the applicant against the interlocutory decision.
- The
applicant lodged an appeal on points of law. After the changes
introduced in the Code of Civil Procedure by Law no. 195/2004, the
file was sent to the Court of Appeal.
- On
15 July 2004 the Court of Appeal, after raising on its own motion a
plea of incompatibility ratione materiae, allowed the appeal
on points of law and referred the case back to the County Court,
considering that the dispute was one of labour law and therefore it
was in the latter's jurisdiction to hear the case as a first-instance
court.
- During
the trial by the County Court, of the eight hearings held between 22
September 2004 and 3 May 2006 three were adjourned at the applicant's
request. This includes a stay of proceedings between
13 October
2004 and 15 June 2005, as the applicant raised a plea of
unconstitutionality in respect of a legal provision establishing a
transitional application of certain rules regarding the courts'
competence. The Constitutional Court eventually dismissed the request
on 17 March 2005 and on 26 May 2005 returned the file to the County
Court.
On 13
June 2005 the County Court, by interlocutory decisions, granted three
requests by judges to abstain from taking part in the proceedings and
refused another such request. On 12 and 22 July 2005 and 4 May 2006
the court dismissed, by interlocutory decisions, requests by the
applicant to challenge either individual judges or the whole section.
The
proceedings were also stayed between 18 August 2005 and
20 April
2006 at the applicant's request, following her demand that the
judgment of 15 July 2004 be set aside.
- On
6 July 2005 the Court of Appeal rejected as groundless the
applicant's request for the final decision of 15 July 2004 to be set
aside and on 21 November 2005 the High Court of Cassation and Justice
declared a further appeal by the applicant inadmissible.
- On
8 May 2006 the County Court dismissed the applicant's action,
considering the dismissal decision lawful and well-founded.
- The
applicant appealed alleging, inter alia, that in her capacity
as the chairman of the company's trade union she was under the
protection of
Law no. 54/1991 which prohibited dismissal from
their jobs within one year of the end of their mandate of those
involved in the leadership of a trade union.
- On 12 September 2006 the Court of Appeal confirmed the
solution by a final decision. It held that the applicant's activity
as chairman of the trade union had ceased on 17 December 1996.
On 13
February 2007 the court dismissed as groundless the applicant's
request for the final decision to be set aside. On 21 November 2007
the High Court of Cassation and Justice, by a final decision,
declared a further appeal by the applicant inadmissible.
C. Proceedings to recover salary
- On
4 October 1999 the applicant brought proceedings to recover salary
between 1 October 1996 and 8 December 1998 in the amount of 6,221,883
old Romanian lei (ROL).
- On
28 March 2000 the Court of First Instance dismissed the action as
groundless, considering that the applicant's salary had been adapted
to her qualification and that the amounts stopped out of her wages
had been justified either by disciplinary sanctions, unchallenged
before the courts, for systematic failure to fulfil her duties, or by
the fact that she had ceased to be the leader of the trade union on
13 January 1997. The court ordered the applicant to pay the company
ROL 3,500,000 for the cost of proceedings.
- On
29 March 2001 the County Court upheld in part an appeal by the
applicant and, on the basis of an accounting expert report, ordered
the company to pay the amount of ROL 3,657,262, noting that the rest
of money to which the applicant was entitled had already been
returned to her. The court also ordered the company to pay the
applicant ROL 3,000,000 for the cost of the proceedings at first
instance and on appeal.
That
judgment became final on 24 August 2001.
- The
applications for review of the judgment of 29 March 2001 and of the
final decision of 24 August 2001 lodged by the applicant were
rejected as groundless and her further appeals were either dismissed
as groundless or declared inadmissible.
- On
13 August 2003 the applicant requested enforcement of the judgment of
29 March 2001. The Court of First Instance declared that the judgment
had become enforceable and that it could be enforced.
- On
18 February 2004, at the company's request, the Court of First
Instance, by an interlocutory decision, declared that the judgment of
28 March 2000 became enforceable. The court then found that in
spite of the fact that that judgment had been declared enforceable,
it could not be enforced because it had been varied by a
hierarchically superior court.
- The
applicant contested the interlocutory decision of
18 February
2004. On 26 April 2004 the Court of Appeal allowed the action, varied
the interlocutory decision and rejected the company's request to
declare the judgment of 28 March 2000 enforceable, as the latter had
been changed by a subsequent appeal.
- On
24 May 2004 the bailiff informed the applicant that the enforcement
of the judgment of 29 March 2001 in respect of due salaries by the
company had been effected by offsetting the salaries that the company
should had paid her with the amounts due by the applicant to the
company for costs in domestic proceedings subsequent to that judgment
(paragraph 30 above).
D. Criminal proceedings
- On
17 February 2005 the High Court of Cassation and Justice, by a final
decision, dismissed a complaint by the applicant against the
prosecutor's refusal to commit for trial three judges and a clerk
from the County Court as groundless.
- On
16 June 2005 the High Court of Cassation and Justice, by a final
decision, dismissed a complaint by the applicant against the
prosecutor's refusal to commit for trial two judges from the Court of
First Instance, a judge from the County Court and a bailiff as
groundless.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings for
reinstatement and of those for the decision of the association to be
overturned had been incompatible with the “reasonable time”
requirement, laid down in Article 6 § 1 of the Convention, which
reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government argued that the proceedings for reinstatement were complex
due to what was at stake and to legislative provisions which had
modified the procedural framework. They also submitted that there
were no substantial periods of inaction and that the applicant had
caused delays in the proceedings by lodging a criminal complaint
against some employees of the company and by making full use of the
procedures available to her under domestic law, including a plea of
unconstitutionality.
The
Government did not express an opinion in respect of the alleged
unreasonable length of the proceedings to overturn a decision of the
general assembly.
- The
period to be taken into consideration in respect of the proceedings
for reinstatement began on 4 January 1999 and ended on 12 September
2006. It thus lasted seven years, eight months and ten days at three
levels of jurisdiction.
The
period to be taken into consideration in respect of the proceedings
for annulment of the decision of the general assembly began on
9
December 1998 and ended on 12 May 2006. It thus lasted seven years,
five months and four days for three levels of jurisdiction.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII). Special diligence is necessary in employment
disputes (see Ruotolo v. Italy,
27 February 1992, §
17, Series A no. 230 D).
- In
addition, only delays attributable to the State may justify a finding
of a failure to comply with the “reasonable time”
requirement (see H. v. France, 24 October 1989, §
55, Series A no. 162 A). However, a delay at some stage may be
tolerated if the overall duration of the proceedings cannot be deemed
excessive (see, for example, Nuutinen v. Finland,
no. 32842/96, § 110, ECHR 2000 VIII).
- The
Court considers that the proceedings at issue did not disclose any
particular complexity.
- As regards the conduct of the applicant in the
proceedings for reinstatement, the Court notes that she did not
appear before the courts between 15 July 1999 and 26 June 2000, and
that she requested adjournment of the proceedings between 6 October
2000 and
28 March 2003, as she had lodged criminal complaints
against third persons (paragraph 18 above). It further notes that the
proceedings were also stayed between 13 October 2004 and 15 June 2005
due to her plea of unconstitutionality and between 18 August 2005 and
20 April 2006 at her request (paragraph 22 above).
These
delays amounted to approximately four years and nine months, the
total length of the proceedings being seven years and eight months.
- In
so far as the behaviour of the applicant in the proceedings to
overturn the decision is concerned, the Court notes that she had not
conducted her appeal against the judgment of 28 October 1999
diligently, and that it was eventually dismissed on 20 November 2001
as the applicant had submitted her reasons out of time (paragraph 10
above). It further notes that the applicant lodged multiple
complaints against the refusal to exercise jurisdiction, which were
eventually rejected or declared inadmissible (paragraphs 12-13
above).
These
delays amounted to around three years and nine months, the total
length of the proceedings being seven years and five months.
- As
to the applicant's conduct, the Court reiterates that an applicant
cannot be required to cooperate actively with the judicial
authorities, nor can he or she be criticised for having made full use
of the remedies available under the domestic law in the defence of
his or her interests. Nonetheless, her conduct referred to above
constitutes an objective fact, not capable of being attributed to the
respondent State, which is to be taken into account when determining
whether or not the proceedings lasted longer than the reasonable time
referred to in Article 6 § 1 (see, mutatis mutandis,
Erkner and Hofauer v. Austria, 23 April 1987, § 68,
Series A no. 117, and Zabelina v. Ukraine (dec.), no.
31094/02, 15 January 2008).
- The
Court cannot detect any particular instance in these delays for which
the authorities could be held responsible in either set of
proceedings, although they bear responsibility for some procedural
defects (paragraph 9 above). However, the changes of venue occurred
in accordance with the new legal provisions. Moreover, the applicant
failed to demonstrate any period of substantial inactivity that could
be attributable to the judicial authorities during the conduct of the
proceedings (see, mutatis mutandis, Beshiri and Others v.
Albania, no. 7352/03, § 45, 22 August 2006). Thus, it cannot
be said that the authorities failed in their duty to administer
justice expeditiously or that their conduct was in this case
primarily responsible for the length of the proceedings.
- In sum, the Court considers that there were
significant delays in the two sets of proceedings, which were
attributable to the applicant, and therefore the length of the
proceedings at three levels of jurisdiction during the period under
consideration was not such as to amount to a breach of the
“reasonable time” requirement in Article 6 § 1 of
the Convention.
- There
has accordingly been no violation of Article 6 § 1 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained that the proceedings and the solutions had been
unfair, that her dismissal while she was the leader of the trade
union had been abusive, that the domestic courts had failed to assess
the facts correctly, had misinterpreted the domestic law, had
artificially created over 300 files and had not been independent and
impartial.
- She
also complained that the courts had declared that the judgment of 28
March 2000 could be enforced, that she had not received the salary to
which she was entitled and that the judgment of 29 March 2001 had not
been enforced, considering that the bailiffs should not have offset
the salaries that the company should have paid her with the amounts
that she owed to the company for the cost of domestic proceedings.
- The
applicant further relied on internal legislation and on some other
international conventions in respect of alleged violations of her
rights to life, to work, to protection in her capacity as a workers'
representative, to a standard of living and to a pension.
- Having
carefully considered the applicant's submissions in the light of all
the material in its possession, the Court finds that, in so far as
the matters complained of are within its competence, they do not
disclose any appearance of a violation of the rights and freedoms set
out in the Convention or its Protocols.
- It
follows that this part of the application must be declared
inadmissible as being manifestly ill-founded, pursuant to
Article 35 §§ 3 and 4 of the
Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been no violation of
Article 6 § 1 of the Convention.
Done in English, and notified in writing on 10 March 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
