CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 14 décembre 2023

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s9F46BEC9 { margin-top:14pt; margin-bottom:12pt; text-align:justify; font-size:14pt } .s7ED160F0 { text-decoration:none } .sC36A6361 { font-family:Arial; color:#000000 } .s434D37A9 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s46DB5BA6 { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s4598CDF { width:70.9pt; display:inline-block } .sBD1BE8CC { width:33.89pt; display:inline-block } .s9AA0C774 { width:151.77pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block } .s37CDBE05 { margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid }     FIFTH SECTION DECISION Application no. 7666/16 Igor Vladimirovich OSIPOV against Ukraine   The European Court of Human Rights (Fifth Section), sitting on 14   December 2023 as a Committee composed of:   Carlo Ranzoni , President ,   Mattias Guyomar,   Mykola Gnatovskyy , judges , and Martina Keller, Deputy Section Registrar, Having regard to: the application (no.   7666/16) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 14 January 2016 by a Ukrainian national, Mr Igor Vladimirovich Osipov, who was born in 1963 and lives in Poltava (“the applicant”), and was represented by Ms   N.G.   Okhotnikova, a lawyer practising in Kyiv; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The case concerns the applicant’s complaint about the refusal of his former employer to allow him to perform his duties as the head of the Software and Computer Supply Department of a municipal company, Donbas Water (“the company”), located in Horlivka, Donbas Region, by working remotely from Slovyansk. He complained under Articles 6 and 8 of the Convention, alleging that the national courts had failed to provide adequate reasoning for their decisions and that his right to private and family life had been breached. 2.     Owing to hostilities in the region, on 28 July 2014 the company issued order no. 161, declaring an unforeseeable temporary suspension from work with full renumeration to its employees, who were unable to carry out their activities. Following the issue of order no. 161, the applicant worked part-time from the village of Shchurovo and starting from the end of August of that year, from Slovyansk, where he was registered as a temporarily replaced person. 3.     On 25 September 2014 the company issued order no. 173 cancelling order no. 161 and ordering its employees to return to Horlivka and resume their duties as from 29 September 2014. The applicant, having learned of order no. 173, made use of different types of leave, including sick leave, until December 2014. 4.     On 1 November 2014 the State Security Service of Ukraine sent the applicant a letter in reply to a request for information, informing him that the city of Horlivka was controlled by unlawful armed groups, which had committed acts of terror connected with the seizure of public and administrative buildings, unlawful seizure of vehicles, intentional killings, taking of hostages, and blocking and damage of infrastructure. The letter concluded that it was impossible to guarantee the safety of Ukrainian citizens in Horlivka. 5.     On 7 November 2014 the Cabinet of Ministers of Ukraine (“the CMU”) issued Resolution no. 1085-p, which listed the cities and towns in the territory of which the State bodies were temporarily unable to perform their duties. Horlivka was included on the list. 6.     On the same date, the CMU issued Resolution no. 595 ordering central executive bodies and local administrations to ensure the relocation of budgetary enterprises and institutions from the territories in which State bodies were temporarily unable to perform their duties to towns and cities where State bodies were able to do so. Relocation was possible only for those enterprises which could continue performing their duties from the new location. 7.     On 22 December 2014 the applicant, having used all possible leave available to him, wrote to the head of the company requesting leave to work remotely, given that State bodies were not operating in Horlivka as of 7   November 2014 and that he feared for his safety. 8.     On 16 January 2015 the head of the company rejected his request on the basis that the law in force did not provide for the possibility of working remotely. Moreover, the applicant’s presence at the company’s office in Horlivka was necessary for the performance of his duties. For operational reasons, another employee would have to be engaged to replace him in his absence. 9.     On 27 February 2015 the applicant lodged a claim with the Slovyansk Court of the Donetsk Region, seeking the quashing of order no. 173, payment of his salary for the period between 22 December 2014 and 31 March 2015, and an order to compel his employer to transfer his workplace as the head of the Software and Computer Supply Department from Horlivka to Slovyansk for the period of the anti-terrorist operation. He relied on Resolutions nos.   1085-p and 995 ( sic ) and the letter of 1 November 2014 in support of his argument that returning to Horlivka was not safe. 10.     On 31 March 2015 the Slovyansk Court of the Donetsk Region dismissed the applicant’s claim as unsubstantiated. The court found that it was not possible for the applicant to perform his duties in full remotely, given that he had high-level responsibilities and that another employee had been engaged on 6 March 2015 – for the period of the applicant’s absence – to perform those duties in Horlivka. Moreover, by September 2014 the situation in Horlivka had improved, a fact which the applicant had accepted at the court hearing. The court did not consider the applicant’s reference to Resolution no. 1085-p and the letter of 1 November 2014 to be relevant, as those documents had been issued in November 2014, whereas order no. 173 had been issued in September 2014. Lastly, the resumption of activities in Horlivka had been aimed at the restoration of the water supply in the Donetsk Region for the benefit of the people and the enterprises that lived and worked there. The applicant appealed, contesting the findings of the first-instance court. He again referred to Resolutions nos. 1085-p and 595 and argued that it would have been justified to introduce another unforeseeable temporary suspension from work with full renumeration after 25 September 2014. 11.     On 12 May 2015 the Zaporizhzhya Regional Court of Appeal upheld the decision of the first-instance court. It added that Resolution no. 1085-p was aimed at State bodies and not at enterprises which ensured the functioning of vital infrastructure. Furthermore, by 25 September 2014 the majority of employees had returned to work in Horlivka, and the company had not stopped its activities. The applicant had a choice between resuming work and going on leave. No other solution was possible under the law. The applicant appealed on points of law. 12.     On 14 July 2015 the Higher Specialised Court of Ukraine refused to open cassation proceedings. 13.     In May 2023 the applicant retired. He currently lives in Poltava. THE COURT’S ASSESSMENT 14.     The applicant complained under Article 6 of the Convention that the national courts had not addressed his arguments that the security situation in Horlivka was volatile, that Order no. 173 had been unlawful and that Resolution no. 595 of the CMU, obliging local State bodies to relocate State institutions and enterprises to territories controlled by the State, had also been applicable to the company. 15.     The Court reiterates that while Article 6   §   1 obliges domestic courts to give reasons for their judgments, this duty cannot be understood as requiring a detailed answer to every argument. The question of compliance with that duty can only be determined in the light of the circumstances of the case (see   Ruiz Torija v. Spain , 9 December 1994, § 29, Series A no. 303 ‑ A, and   García Ruiz v. Spain   [GC], no.   30544/96 , § 26, ECHR 1999 ‑ I). 16.     The Court observes that the national courts gave ample explanation for their decision not to allow the applicant’s claim. They found no grounds for the company to continue the temporary suspension from work of its employees with full renumeration as from 25 September 2014. Moreover, the activities of the company were of vital importance to the people living in the Donetsk Region and the applicant’s duties, in view of their nature, had to be performed in Horlivka. The latter ground was supported by the fact that the company had engaged another employee to temporarily replace the applicant. The reasoning provided by the national courts does not appear to be inadequate or arbitrary. The Court therefore cannot find that the applicant’s arguments remained unanswered. 17.     It follows that the applicant’s complaint under Article 6 § 1 is manifestly ill ‑ founded and must be rejected in accordance with Article   35 §§   3 (a) and 4 of the Convention. 18.     The applicant also raised complaints under Article 8 of the Convention, alleging a violation of his right to family and private life. In relation to his family life, he complained that his wife and mother-in-law were in Slovyansk and that his family life would have been disrupted had he returned to Horlivka. In relation to his private life, he complained that his life would have been at risk if he had returned to Horlivka and that the State had failed to discharge its positive obligation to protect him from that risk. 19.     The Court observes that the applicant failed to raise his complaint about the alleged breach of his family life before the national courts. Accordingly, it should be declared inadmissible for failure to exhaust domestic remedies and rejected in accordance with Article 35 §§ 1 and 4 of the Convention. 20.     In relation to the remaining complaint, the Court considers that in the light of all the material in its possession and in so far as the matters complained of are within its competence, it either does not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or does not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. 21.     It follows that the application does not meet the admissibility criteria set out in Article 35 §§ 1 and 3 and must be rejected in accordance with Article   35 §   4 of the Convention.   For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 18 January 2024.     Martina Keller   Carlo Ranzoni   Deputy Registrar   President