CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 6 mai 2010

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s642CBA18 { margin-top:0pt; margin-left:28.05pt; margin-bottom:0pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s6B505E72 { margin:0pt; padding-left:0pt } .sE2AD579 { margin-top:18pt; margin-left:29pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-family:Arial; font-weight:bold } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s9F223FEE { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s507451D6 { width:4.53pt; display:inline-block } .s4A0CEAF8 { width:194.77pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } FIRST SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 35194/06 by Christodoulos MELINIOTIS against Cyprus The European Court of Human Rights (First Section), sitting on 6   May   2010 as a Chamber composed of: Christos Rozakis, President, Anatoly Kovler, Elisabeth Steiner, Dean Spielmann, Sverre Erik Jebens, Giorgio Malinverni, judges, Stelios Nathanael, ad hoc judge, and Søren Nielsen, Section Registrar .   Mr George Nicolaou, the judge elected in respect of Cyprus, withdrew from sitting in the Chamber (Rule 28). The Government accordingly appointed Mr Stelios Nathanael to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1). Having regard to the above application lodged on 11 August 2006, Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together, 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 Christodoulos Meliniotis, is a Cypriot national who was born in 1946 and lives in Nicosia. He was represented before the Court by Ms I. Polycarpou, a lawyer practising in Nicosia. The Cypriot Government (“the Government”) were represented by their Agent, Mr   P.   Clerides, Attorney-General of the Republic of Cyprus. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was a civil servant employed as a supervisor traffic warden in the Nicosia Municipality. He had been employed by the Municipal Council since 1   September 1970. On 7   March 2000 he was informed in writing that the Municipal Council, in order to improve the organisation and efficiency of the Traffic Wardens Division, had decided to abolish his post. The letter referred to his “compulsory retirement” as of 30 April 2000. On 3 May 2000 the applicant, acting on the advice of his former employer, applied for redundancy compensation from the Redundancy Fund (“the Fund”). On 24 January 2001 the Ministry of Labour and Social Insurance refused his claim because the termination of his employment was not due to redundancy. On 26 March 2001 the applicant requested the Ministry to review the refusal. He submitted, in support of his request, a letter of the Secretary of the Municipal Council dated 20 March 2001 which stated that the termination of the applicant's employment constituted a genuine redundancy case. On 30 April 2001   the Ministry informed the applicant that it adhered to its previous decision. On 22 June 2001 the applicant lodged an application against the Municipal Council and the Fund with the Industrial Disputes Tribunal (“IDT”) requesting compensation for unlawful dismissal and, in the alternative, redundancy compensation. It its submissions, the Fund disputed the claim on the grounds that the case did not involve redundancy. On   17   September 2001 the Municipal Council lodged a preliminary objection arguing that the IDT did not have jurisdiction as the applicant was a civil servant. In around February 2002, the applicant lodged an intermediate application requesting reinstatement to his former post and compensation. On 13   September 2002 the IDT dismissed his application. It found that it lacked jurisdiction to examine the case since he had been a municipal employee and the review of the termination of his employment fell within the sphere of public law. As a consequence, the review of the contested decision lay exclusively with the Supreme Court in the exercise of its revisional jurisdiction under Article 146 of the Constitution. On an unspecified date, the applicant lodged an appeal against the dismissal of his application. On 14 July 2003 the Supreme Court rejected the appeal and agreed that the IDT did not have jurisdiction to examine the lawfulness of the termination of the applicant's employment. However, it remitted the alternative claim for compensation for redundancy to the IDT as it had not been examined. Thereafter, the proceedings before the IDT concerned only the applicant and the Fund as, pursuant to the Supreme Court's decision, the applicant's complaint of unfair dismissal against the Municipal Council could not proceed before the IDT. The case was heard by the same IDT   composition as at the original hearing. On 30 March 2004, the IDT rejected the applicant's claim in respect of the Fund. Having considered section 18 of the Termination of Employment Law (see further “Relevant domestic law”, below), it concluded that the applicant had failed to adduce sufficient evidence to show that his employment had been terminated for any of the reasons constituting redundancy-based termination. On an unspecified date, the applicant lodged an appeal with the Supreme Court. On 18 November 2005, the applicant lodged further detailed grounds of appeal with the registry of the Supreme Court. In a proposed amendment to his original grounds of appeal, he argued that the decision to remit his case to the original tribunal violated his human rights. On 26 January 2006, he submitted an application to make technical amendments to his grounds of appeal. The application was approved by the court on 15 February 2006. On 20 February 2006 the Supreme Court called the parties for an urgent decision in the case, rather than waiting as would be normal under the standard procedure, and dismissed the applicant's appeal. Unlike the decision of the IDT, the judgment of the Supreme Court was not based on the applicant's failure to adduce the relevant evidence. Instead, it held that the position of employees of municipal councils whose posts, like that of the applicant, had been abolished was governed by the Municipal Corporations Law and Municipal Regulations. These provided that despite the abolition of a post, its holder was deemed to continue to hold the post abolished, with all its benefits and privileges, until he retired at the age of sixty or until he was appointed to another post. Accordingly, the applicant had the right to remain in employment until he was sixty years old and his employment could not be terminated earlier without his consent. The abolition of his post could therefore not amount to redundancy under the relevant legislation. The court further noted that upon the abolition of the applicant's post, the provisions of the Municipal Regulations of Nicosia 284/97 relating to early retirement were set in motion apparently with the applicant's consent. It   treated the letter of the Municipal Council to the applicant of 7   March   2000, which referred to “compulsory retirement”, as an offer for an early retirement. It concluded that a person who had retired could not be considered to have been made redundant. Following the decision of the Supreme Court, the applicant made a claim by letter dated 15 September 2006 to the Municipal Council for payment of damages for unlawful dismissal. He claimed recovery of all salaries and benefits which he would have been entitled to receive between 30   April   2000 and 1 October 2006, the date on which he would have retired had he remained in employment until the age of sixty. His claim was refused by letter of 26 October 2006. He subsequently filed a recourse under Article 146 of the Constitution challenging the legality of the refusal to pay the damages requested in his letter of 15 September 2006. He also filed civil proceedings in the District Court seeking damages for unlawful dismissal. It   is not clear whether these two sets of proceedings are still pending. The applicant further claimed that on an unspecified date he requested payment of the amount of 30,000 Cypriot pounds from the Municipal Council which he claimed was due to him by virtue of his alleged early retirement and the Municipal Regulations 284/97. He alleged that the Municipal Council refused his claim due to the fact that he had not retired voluntarily but “compulsorily”. Relevant domestic law 1. Termination of Employment Law No. 24 of 1967 Under section 3(1) of the Law, where an employer terminates the employment of an employee for any reason other than a reason specified in section 5, the employee has a right to compensation. Section 5(b) provides that termination by an employer of an employee's services owing to the employee's redundancy is a legally permissible ground for termination and does not give rise to a right of compensation. According to section 16(1), an employee is deemed to be redundant and to have a right to a payment from the Fund if his employment was terminated for a reason specified in section 18. Section 18 provides, in so far as relevant, as follows: “For the purposes of this Law, an employee is redundant when his employment has been terminated– ... (c) because of any of the following other reasons concerned with the operation of the business: (i) modernisation, mechanisation or any other change in methods of production or of organisation which reduces the number of employees necessary; (ii) changes in products or production methods or in the skills needed on the part of employees; (iii) closing of departments; ...” 2. Municipal Regulations of Nicosia 284/97 Section 31(1) of the Regulations provides, in so far as relevant, as follows: “It remains within the absolute discretion of the Municipal Council to reach a decision concerning the early retirement of employees that have completed their career but have not reached their sixtieth year of age. In accordance with the provisions of the present Regulations no early retirement may be decided by the Council unless: (1) the concerned employee has consented to his early retirement ...” COMPLAINTS The applicant originally complained under Article 6 of the Convention about (i) the overall length of the proceedings; (ii) the alleged bias of one of the members of the IDT; and (iii) the procedural unfairness of the proceedings before the IDT. He also complained about the fact that he was not awarded a redundancy payment by the Fund. In his subsequent written observations, the applicant advised the Court that he no longer wished to maintain his complaint regarding the denial of a redundancy payment. Instead, he complained under Article 1 of Protocol No. 1 about the failure of the Municipal Council to pay him compensation for unfair dismissal. He also advanced an additional complaint under Article 6 of the Convention about the alleged non-enforcement of the judgment of the Supreme Court of 20 February 2006, a judgment which he claimed entitled him to all the financial benefits he would have received had he remained in employment until the age of sixty. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 The applicant complained that the duration of the domestic proceedings exceeded a reasonable length, that a judgment in his favour was not enforced and that he did not have a fair trial as required by Article 6 § 1 of the Convention which reads, insofar as relevant, as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A. The fairness of the proceedings The applicant complained about the alleged unfairness of the proceedings before the IDT, claiming that the chairman had verbally abused his lawyer, forced him to stop his submissions and replaced him with another lawyer. He also insisted that the requirement that he adduce evidence of the redundancy before the IDT had violated his rights under Article 6. Finally, he complained about the failure of the IDT to deal with his claim for reinstatement to his former post at the Municipal Council. The Government noted that although the IDT had rejected the applicant's claim for a redundancy payment because he had failed to adduce evidence to show that the termination of his employment was due to redundancy action, the Supreme Court had rejected the applicant's claim for different reasons, holding instead that because the applicant had a right to remain in employment under the Municipal Corporations Law, the abolition of his post could not be tantamount to termination for redundancy reasons. The   Government concluded that any concern under Article 6 § 1 arising from the approach of the IDT was therefore remedied on appeal to the Supreme Court. Further, the legality of the termination of the applicant's employment was challengeable through a recourse under Article 146 of the Constitution to seek annulment of the Municipal Council's decision as a breach of the applicable legislation. As regards the applicant's complaint that the chairman of the IDT had failed to deal with his claim for reinstatement, the Government pointed out that the Supreme Court judgment of 14 July 2003 addressed this complaint insofar as it held that the IDT had no jurisdiction to consider the lawfulness of the termination of the applicant's employment. Accordingly, there was no jurisdiction to deal with the claim for reinstatement grounded on the alleged unlawful termination. The correct recourse for the claim for reinstatement lay under Article 146 of the Constitution. The Court notes that insofar as the applicant complains about the fairness of the proceedings before the IDT, no evidence has been submitted to the Court to support his allegations that the chairman of the IDT restricted his lawyer's opportunity to put forward his case. As regards his complaint about the IDT requirement that he adduce evidence of redundancy, the Court emphasises, first, that the case involved a civil claim brought by the applicant. In the circumstances, the requirement that he discharge the burden of proof in order to establish that the case was one of redundancy and not retirement was not unreasonable in principle. Second, and in any event, the Supreme Court based its subsequent decision on reasons entirely unrelated to the question of whether the applicant had discharged the burden of proof. Finally, as regards the applicant's complaint about reinstatement to his former post, it is clear that the IDT did not address his claim for reinstatement because, as the judgment of the Supreme Court made clear, it had no jurisdiction to do so. The applicant should have taken proceedings under Article 146 of the Constitution in order to pursue this complaint. In conclusion there is no evidence that the applicant's legal proceedings were unfair. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article   35 §§   3 and   4 of the Convention. B. The length of the proceedings The applicant complained about the overall length of the proceedings to resolve his complaint about his dismissal, without specifying the particular court proceedings to which he referred. The Court considers that it is appropriate to consider the proceedings commenced in the IDT on 22 June 2001 and concluded by the judgment of the Supreme Court of 20 February 2006. The Court observes that these proceedings lasted for a total of four years and eight months. During this time, the matter was twice considered by the IDT and twice by the Supreme Court. The Court notes at the outset that it is regrettable that the IDT failed to consider the applicant's complaint against the Fund in the context of its first examination of the case. As a result, it was necessary to remit the case to the IDT for further examination following the decision of the Supreme Court of 14 July 2003. This clearly had an impact on the length of the proceedings. However, this failure, in itself, is insufficient for the Court to hold that there has been a violation of Article 6. In assessing whether the overall length of the proceedings was reasonable, it is necessary to consider all the circumstances of the case, including the complexity of the proceedings, the conduct of the applicant and the diligence shown by the domestic courts in dealing with his claims and what was at stake for the applicant (see, inter alia , Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000 ‑ VII). In this regard, the Court observes that the two complaints lodged with the IDT in June 2001 were against two separate bodies: the Municipal Council and the Fund. In respect of the first complaint, the Municipal Council subsequently lodged an objection as to the jurisdiction of the IDT. Thereafter, the case against the Municipal Council focussed on the question of jurisdiction. The Court considers that the matter was relatively complex and observes that it was the subject of a subsequent appeal to the Supreme Court. The Supreme Court handed down its judgment less than a year after the IDT decision. As to the second complaint against the Fund, again the Court observes that the complaint raised complex matters of fact and law which were addressed in some detail, first, by the IDT and subsequently by the Supreme Court. Less than nine months after the case had been referred back to it by the Supreme Court judgment of 14 July 2003, the IDT adopted its decision on the matter. The Supreme Court's subsequent judgment was handed down just under two years later. However, in assessing whether there has been an unreasonable delay in the Supreme Court dealing with the case, particularly as regards the case against the Fund, it is relevant whether the applicant lodged a prompt appeal against the decisions of the IDT. In this respect, the Court observes that the applicant has failed to provide any evidence of the dates on which the relevant appeals to the Supreme Court were lodged. Moreover, the Court considers the applicant's lodging of further detailed grounds of appeal, which included a new ground of appeal, with the Supreme Court in the proceedings against the Fund in November 2005, some 19 months after the relevant decision of the IDT, to be significant. It is also relevant that a further application to amend the grounds was made in January 2006, shortly before the court adopted its decision. Although only technical amendments were proposed, consideration and approval of the proposed amendments nonetheless occupied court time. Finally, the Court notes that there is no evidence that the domestic courts failed to proceed diligently with the applicant's case. His application to amend his grounds of appeal on 26 January 2006 was approved on 15   February 2006. Further, in his submissions to the Court, the applicant refers to the fact that the Supreme Court, in the appeal against the Fund, called the parties for an urgent decision on 20 February 2006 instead of following the normal procedure. In all the circumstances of the case, the Court considers that the overall length of the proceedings was not unreasonable. Accordingly, this complaint is also manifestly ill-founded and must be rejected in accordance with Article   35 §§   3 and   4 of the Convention. C. Non-enforcement of the 20 February 2006 judgment In his written submissions, the applicant contended that the refusal of the authorities to comply with the judgment of the Supreme Court of 20   February 2006 was a violation of Article 6. He referred to Hornsby v.   Greece , 19 March 1997, Reports of Judgments and Decisions 1997 ‑ II. The Government argued that the complaint was unfounded. Even if the applicant were correct in his interpretation of the judgment of the Supreme Court, which was disputed, a judgment by a domestic court was only binding on the parties to the legal proceedings and the Municipal Council was not a party to the proceedings brought against the Fund. The Court observes that the applicant brought domestic proceedings to seek to enforce the Supreme Court judgment of 20 February 2006 and that it is not clear whether these proceedings are still pending. However, for the reasons outlined further below, it is doubtful that any enforcement proceedings brought by the applicant against the Municipal Council in respect of the decision of 20 February 2006 could be considered “effective” in remedying the alleged violation of which he complains. Accordingly, the Court leaves open the question whether the applicant's complaint is premature in that he has not yet exhausted domestic remedies. As regards the substance of the applicant's complaint, the Court agrees with the Government that it is wholly unfounded. In Hornsby , cited in support by the applicant, the Court held that States were required to take the necessary measures to comply with a final, enforceable, judicial decision (cited above, § 45). It is clear that the Supreme Court judgment in the present case was not a final, enforceable, judicial decision in respect of the applicant's claim against the Municipal Council for compensation based on his alleged unfair dismissal. The Municipal Council was not even a party to the proceedings and the proceedings themselves were concerned with whether the applicant had been made redundant and was entitled to a payment from the Fund, and not whether he had been unfairly dismissed and was therefore entitled to compensation. The applicant was required to take further domestic proceedings under Article 146 of the Constitution in order to pursue his claim for compensation for unfair dismissal. The Court concludes in the light of the above that the applicant was not denied enforcement of a final, enforceable judgment. This complaint is therefore also manifestly ill-founded and must be rejected in accordance with Article   35 §§   3 and   4 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 The applicant alleged that there had been an unjustified interference with his right to peaceful enjoyment of his possessions under Article 1 of Protocol No. 1. That Article provides 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.” In respect of the applicant's complaint regarding the denial of a redundancy payment to which he considered himself entitled, the Government contested that there was any “possession” to engage Article 1 of Protocol No. 1. They contended that the applicant had no legitimate expectation of any entitlement to a redundancy payment in the event of the abolition of his post. Instead, he had a right to claim damages from the Municipal Council for unlawful dismissal in civil proceedings under Article 146 of the Constitution. Further, no legitimate expectation could arise if the employment was brought to an end following his consent to early retirement. In his subsequent written observations, the applicant notified the Court that he no longer wished to pursue his complaint regarding the denial of the redundancy payment. However, he insisted that there had been a breach of Article 1 of Protocol No. 1 insofar as the Municipal Council refused to award him all the financial benefits to which he alleged that the Supreme Court had found him entitled in its judgment of 20 February 2006. He   argued that the Supreme Court judgment was binding and irrevocable and automatically entitled him to all the financial benefits set out in the judgment. No further judicial proceedings were required to implement the judgment and subsequent steps under Article 146 and in the District Court had been taken through excessive caution on his part. As noted above, the Government disputed that the Supreme Court had adjudicated in the applicant's favour in its decision of 20 February 2006. They highlighted that the Supreme Court concluded on 14 July 2003 that the IDT did not have jurisdiction over a claim relating to the alleged unlawful dismissal of a public sector employee. The Supreme Court's judgment of 20 February 2006 considered the legislation relating to municipal corporations only in order to allow it to assess the applicant's claim that the abolition of his post had resulted in his redundancy. It was in this context that the court discussed the entitlement of municipal employees to remain in employment and to receive salaries and benefits until retirement age. The Government considered that this could not lead to the conclusion that the court had “adjudicated” in the applicant's favour and against the Municipal Council, which was no longer a party to the proceedings. Accordingly, the Government concluded that there was no enforceable debt in favour of the applicant. The Government further emphasised that the applicant was not entitled to compensation for termination of his employment prior to his retirement as of right, even if it was correct that he had not voluntarily retired. The right to compensation depended on the unlawfulness of the termination as determined and pronounced judicially. The Court notes that the applicant no longer maintains his complaint about the denial of a redundancy payment. Accordingly, the Court considers it unnecessary to examine this complaint. As regards the applicant's complaint that the Municipal Council failed to pay him compensation for unfair dismissal, the Court agrees with the Government, for reasons outlined in the context of its assessment of the applicant's non-enforcement complaint under Article 6, that the judgment of the Supreme Court did not give rise to an enforceable debt in the applicant's favour. The proprietary interest relied on by the applicant cannot be characterised as an “existing possession” within the meaning of the Court's case-law (see, for example, Kopecký v. Slovakia [GC], no. 44912/98, § 41, ECHR 2004 ‑ IX). However, the Court recalls that it has previously held that claims, in respect of which the applicant could argue that he had at least a “legitimate expectation” of obtaining effective enjoyment of a property right, could constitute assets which were protected under Article 1 of Protocol No. 1 (see Kopecký , cited above, § 35). In the present case, the Court observes that the applicant had a claim for compensation for unfair dismissal. Accordingly, he had a legitimate expectation that his claim would be determined in accordance with the applicable laws (see Pressos Compania Naviera S.A. and Others v.   Belgium , 20 November 1995, § 30, Series A no. 332). However, as noted above, the applicant did not commence proceedings under Article 146 of the Constitution as required in order to pursue his claim. Although he subsequently commenced Article 146 proceedings, the object of those proceedings was to review the legality of the decision of the Municipal Council to refuse to pay him the sums requested in his letter of 15   September 2006, rather than to establish whether the applicant's dismissal had been unlawful. In the circumstances, there is no evidence of any interference with the applicant's claim for compensation for unlawful dismissal. In particular, the Municipal Council's refusal to pay to the applicant all salaries and benefits which he would have received had he remained in employment was entirely reasonable in the absence of any adjudication in the applicant's favour. It follows that this complaint is also manifestly ill-founded and must be rejected in accordance with Article   35 §§   3 and   4 of the Convention. In view of the above, it is appropriate to discontinue the application of Article 29 § 3. For these reasons, the Court unanimously Declares the application inadmissible.   Søren Nielsen   Christos Rozakis   Registrar   President