CEDH · CASELAW;COMMUNICATEDCASES;ENG — 28 novembre 2016

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s76CF415B { page-break-before:always; clear:both }   Communicated on 28 November 2016   FOURTH SECTION Application no. 77265/12 Alicija CUDAK against Lithuania lodged on 29 November 2012 STATEMENT OF FACTS 1.     The applicant, Ms Alicija Cudak, is a Lithuanian national who was born in 1961 and lives in Vilnius. A.     The circumstances of the case 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     The applicant’s dismissal from her post at the Polish embassy 3.     In April 1994 the applicant was recruited by the embassy of the Republic of Poland in Vilnius (“the embassy” or “the Polish embassy”). She worked as a secretary and switchboard operator ( korespondentė-telefonistė ). 4.     In 1999 the applicant lodged a complaint before the Equal Opportunities Ombudsman, alleging sexual harassment by one of her male colleagues, a member of the diplomatic staff of the embassy. Following an inquiry, the Ombudsman reported that the applicant had indeed been a victim of sexual harassment. 5.     The applicant was on sick leave from 1 September to 29 October 1999. On 29 October 1999 she went to work but was not allowed to enter the embassy building. On 22 November 1999 the applicant was again refused entry when she arrived for work. The same thing occurred again on 23   November 1999. 6.     On 26 November 1999 the applicant wrote a letter to the Polish ambassador, informing her about the incidents. On 2 December 1999 the applicant was notified that she had been dismissed on the ground of her failure to come to work between 22 and 29 November 1999 (under Article   29 § 10 of the Law on the Labour Contract – see the “Relevant domestic law” section below). 7.     On 9 December 1999 the applicant brought a civil claim, requesting compensation for unlawful dismissal. At that time she did not claim reinstatement. The Polish Minister for Foreign Affairs issued a note verbale claiming immunity from the jurisdiction of the Lithuanian courts. The Lithuanian courts then discontinued the proceedings for lack of jurisdiction. The final decision was taken by the Supreme Court in June 2001. 2.     The Court’s judgment in the case of Cudak v. Lithuania 8.     By a judgment of 23 March 2010 in the case of Cudak v. Lithuania ([GC], no.   15869/02, §§ 74 and 75, ECHR 2010) the Court found that by upholding the objection based on State immunity and thus declining jurisdiction to hear the applicant’s claim, the Lithuanian courts, in failing to preserve a reasonable relationship of proportionality, overstepped their margin of appreciation and thus impaired the very essence of the applicant’s right of access to a court, in breach of Article 6 § 1 of the Convention. 9.     The applicant then claimed before the Court approximately 95,000   euros (EUR) in respect of pecuniary damage, which was her unpaid salary for the period between 1999 and 2009. In respect of non-pecuniary damage she sought approximately EUR   101,000. Considering that the applicant had been deprived of a real opportunity, and to afford redress for the non-pecuniary damage sustained by her, the Court awarded the applicant EUR   10,000 for all heads of damage combined. The Court also noted that the reopening of court proceedings in Lithuania in principle would be an appropriate way of redressing a violation (ibid., §§   77-79). 3.     The applicant’s reopened case in Lithuania (a)     The court decision to reopen court proceedings 10.     After the Court’s judgment in the case of Cudak (cited above), Ms   Cudak asked the Lithuanian courts to reopen the proceedings concerning the lawfulness of her dismissal from the Polish embassy. By a ruling of 16   September 2010 the Supreme Court reopened the civil case and remitted it to the Vilnius Regional Court for fresh examination. (b)     The applicant’s revised claim and the first-instance court decision 11.     On 24 February 2011 Ms Cudak resubmitted her (revised) civil claim ( pateikė patikslintą ieškinį ) to the Vilnius Regional Court. Firstly, she asked the court that her dismissal from her post at the Polish embassy on 22   November 1999 be declared unlawful. The applicant pointed out that Article 29 § 10 of the Law on Labour Contract, on the basis of which she had been dismissed in 1999, regulated disciplinary penalties. In her case, however, she had not been at fault for not entering the embassy (in order to work). The applicant also stated that the persons responsible for her having been dismissed in 1999 no longer worked at the Polish embassy in Vilnius. Accordingly, there were no obstacles to reinstating her to her former post as a secretary and switchboard operator. 12.     Secondly, the applicant asked the court to apply Article 42 § 2 of the Law on Labour Contract (see the “Relevant domestic law” section below), and to order that the Polish embassy pay her unpaid salary for the entire duration of her forced absence from work ( už priverstinę pravaikštą ) in respect of the period from the day of her dismissal up until 31   January 2011, which amounted to over 257,000 Lithuanian litai (LTL – approximately EUR   74,500), as well as interest on that sum. 13.     Thirdly, the applicant asked to be awarded litigation costs. 14.     The Polish embassy did not claim immunity from the Lithuanian courts’ jurisdiction. However, the embassy denied that in 1999 the applicant had been sexually harassed and then dismissed for reasons arising therefrom. The embassy also took the view that the applicant’s reinstatement was in any case impossible because of her confrontational behaviour at the embassy in autumn 1999. The embassy further stated that the requirements for candidates wishing to work as a secretary and switchboard operator have changed: candidates now had to have a university degree and be able to speak English. 15.     By a decision of 13 May 2011 the Vilnius Regional Court dismissed the applicant’s civil claim. The court considered it not proven that the applicant had been dismissed for reasons related to sexual harassment. (c)     The appellate court ruling 16.     The applicant appealed. The Polish embassy asked the appellate court to uphold the Vilnius Regional Court’s decision. 17.     On 11 November 2011 the Court of Appeal quashed that decision and partly allowed the applicant’s claim by acknowledging that she had been dismissed unlawfully, and for reasons linked to sexual harassment. 18.     However, the appellate court noted that in her initial lawsuit of 9   December 1999 (see paragraph 9 above) she had not asked the court to reinstate her to her former post at the Polish embassy. Instead, being under constant pressure, and having been sexually and psychologically harassed (which had caused her to become ill), the applicant had at that time asked to be dismissed on the employer’s initiative and to be awarded compensation under Article 30 of the Law on Labour Contract. It was only after the court proceedings in Lithuania had been reopened that the applicant had asked to be reinstated, submitting that the Polish diplomats who had been responsible for the conflict no longer worked at that embassy. The Court of Appeal then noted that twelve years had passed since the applicant had been dismissed. Moreover, it noted, that according to the Polish embassy authorities the embassy did not have any posts free, and the nature and structure of the applicant’s former post had evolved. The appellate court accordingly deemed that there was no possibility for the applicant to be reinstated, and that Article 42 § 3 of the Law on Labour Contract should be applied. The court then established that the applicant’s average monthly salary at the Polish embassy between June and August 1999 had been LTL   1,930 (EUR   560). The court therefore awarded the applicant severance pay amounting to twelve times the average monthly salary – approximately LTL   23,160 (EUR   6,700) – which was the maximum sum that could be awarded under Article 42 § 3. The applicant was also awarded the costs she had incurred while litigating in Lithuania. (d)     The cassation court ruling 19.     The applicant lodged an appeal on points of law. She argued that in   1999 conditions at the Polish embassy had clearly been unfavourable for her reinstatement, because the embassy’s top management ( ambasados vadovybė ) at that time had not taken the sexual harassment seriously. In fact, it was she and not the person guilty of harassment, a Polish diplomat, who had been fired. Nevertheless, there was no reason to believe that such unfavourable conditions existed to that day. Therefore there was no reason to refuse her reinstatement. She emphasised that – notwithstanding her earlier request – she had clearly expressed her wish to be reinstated in the revised civil claim (see paragraph 11 above). The applicant further submitted that the arguments by the Court of Appeal were in contradiction with Articles 13 and 141 of Code of Civil Procedure, which, respectively, guaranteed parties to civil proceedings the right to use their rights unhindered ( dispozityvumo principas ) and the right to change a civil claim or the basis on which it was lodged ( ieškinio dalyko arba ieškinio pagrindo pakeitimas ). The applicant submitted that, by considering that she did not wish to be reinstated, the Court of Appeal had also deviated from the Supreme Court’s practice (she referred to case 3K-3-259/2001 of 12 March 2001). 20.     The applicant further emphasised that even if she had not sought reinstatement, it would still have been unfair and unjust for the Court of Appeal to rely on Article 42 § 3 of the Law on Labour Contract, instead of Article 42 § 2 thereof. The applicant considered that, as an employee who had been unlawfully and involuntarily dismissed, she should be awarded not only a severance payment, as indicated in Article 42 § 3, but also her unpaid salary for the entire period following her dismissal, as stipulated in Article   42 § 2. In support of her argument the applicant noted that Article   297 § 4 of the Labour Code ( Darbo kodeksas ) provided for precisely such regulation (see the “Relevant domestic law” section below). The applicant asserted that both reinstating her in her post at the Polish embassy and awarding her her unpaid salary were indispensable and just requirements, and were necessary in order that the loss which she had suffered through her unlawful dismissal could be remedied. 21.     The Polish embassy argued that it was just to award the applicant severance pay in the amount of twelve months’ salary, as indicated in Article 42 § 3 of the Law on Labour Contract. The embassy also denied that in 1999 the applicant had been sexually harassed. It insisted that the applicant had not proved that she had showed up at work in November   1999. That failure to turn up to work had, in turn, had led to the applicant’s dismissal. 22.     On 26 June 2012 the Supreme Court upheld the appellate court’s decision. The Supreme Court firstly established that there was prima facie evidence that in 1999 the applicant had been sexually harassed and stated that harassment was a form of discrimination. Under Article 2 1 of the Law on Equal Opportunities for Women and Men ( Moterų ir vyrų lygių galimybių įstatymas ), when hearing cases concerning discrimination on the basis of gender, once a complaint has been lodged, it is to be presumed that discrimination took place (the Supreme Court also relied on Council Directive 97/80/EC as well as on the European Parliament and the Council Directive 2006/54). This principle was the exception to Article 178 of the Code of Civil Procedure, which provided that “the person who claims [something] must prove it”. Accordingly, the burden had lain on the Polish embassy to prove that the applicant had not been sexually harassed, and the embassy had failed to refute that. The Supreme Court also emphasised that in 1999 the applicant had notified the embassy of her harassment, but this had only triggered conflict between the applicant and the embassy. Being under pressure from her employer, the applicant had then informed the embassy that she was ill and expressed a wish to leave her job. However, in such circumstances the Polish embassy, having been aware of the applicant’s harassment, had been wrong to dismiss the applicant on the pretext that she had not shown up for work. 23.     As to the applicable domestic law, the Supreme Court noted that on the day on which the applicant had been dismissed – 22 November 1999 – it was the Law on Labour Contract that had regulated labour law issues. On 1   January 2003 a new piece of legislation, the Labour Code, had come into force. Nevertheless, under Article 3 of the Law on the Adoption, Entry Into Force and Implementation of the Labour Code ( Darbo kodekso patvirtinimo, įsigaliojimo ir įgyvendinimo įstatymas ), as well as according to the established case-law of the Supreme Court, when an employee had been dismissed while the Law on Labour Contract had still been in force, it had been the Law on Labour Contract that was to be applied when deciding questions related to lawfulness of dismissal. Accordingly, Article 42 of the Law on Labour Contract, and not Article 297 of the Labour Code, stipulated the principles applicable in the applicant’s case. 24.     The Supreme Court then held that even though in her revised lawsuit of 24 February 2011 the applicant had relied on Article 42 §§ 1 and 2 of the Law on Labour Contract, and had asked to be reinstated and to be awarded unpaid salary for the duration of the period following her unlawful dismissal, her claim had not been binding on the Supreme Court. On the contrary, when applying the law a court had to take into account the principles of reasonableness and the need to find a fair solution. The Supreme Court considered that the goal of reinstatement, as a remedy, was to restore the situation which had existed before the unlawful dismissal. Reinstatement therefore was a remedy which had to be applied swiftly, because the requirements of the holder of a certain post could evolve over time. In other words, reinstatement could be not a solution, because reinstating a person could involve an employer incurring expenses that were disproportionate to the unlawful dismissal. Therefore, under Article 42 § 3 of the Law on Labour Contract, a court could substitute reinstatement by the payment of severance pay. 25.     The Supreme Court thus considered that the Court of Appeal had been correct in pointing out that in her initial lawsuit of 1999 the applicant had submitted that there had been no possibility for her to return to her job at the Polish embassy because of the unfavourable conditions prevailing therein. The Supreme Court further considered that the Court of Appeal had been equally correct in pointing out that in 1999 “the applicant agreed to be dismissed on the basis of Article 28 of the Law on Labour Contract, that is to say to be dismissed upon her own request”. The Court of Appeal had also been right in noting that a rather long time – twelve years – had passed since the applicant’s dismissal. According to the Polish embassy, currently it had no free posts; moreover, (i)     the structure of employment posts at the embassy and (ii)     the requirements of the applicant’s former post had changed. For the Supreme Court, it was therefore correct to apply Articles   28 and 42 § 3 of the Law on Labour Contract to the applicant’s situation. This meant establishing that the applicant had been dismissed upon her own request and awarding the applicant a sum amounting to twelve average monthly salaries in severance pay. 26.     The Supreme Court emphasised that under Articles 417 and 418 of the Code of Civil Procedure, a court had discretion to exceed what has been requested by the plaintiff, and to apply alternative methods to protect an employee’s rights, without further elaborating on this question. Lastly, the Supreme Court considered the applicant’s remaining arguments to be legally irrelevant. B.     Relevant domestic law 27.     The Law on Labour Contract ( Darbo sutarties įstatymas ), which the Lithuanian courts applied in the applicant’s case, inasmuch as relevant read as follows: Article 28.     Rescinding the labour contract on the employee’s request ( Darbo sutarties nutraukimas darbuotojo pareiškimu ) “The employee has the right to rescind a labour contract of indefinite duration if he has warned the employer in writing no less than fourteen days in advance. ... Once the time-limit indicated by the employee has expired, the employee has a right to stop working, and the employer must make a record of the dismissal.   ... ” Article 29.     Rescinding a labour contract on the employer’s initiative ( Darbo sutarties nutraukimas darbdavio iniciatyva ) “[Permissible] grounds for rescinding a labour contract on the employer’s initiative are ... 10)     when an employee does not come to work for an entire day without giving a reason; ... It is prohibited to dismiss an employee because of his or her political or religious views, nationality, citizenship, or other circumstances which are not related to the employee’s professional qualifications.” Article 30.     Rescinding the labour contract at the employer’s will ( Darbo sutarties nutraukimas darbdavio valia ) “An employer ... may rescind a labour contract ... for other important reasons by paying ... to the employee who is being dismissed and who has worked for that employer for: 1)     less than one year – severance pay amounting to six times the [employee’s] average monthly salary; 2)     more than one year but less than five years – severance pay amounting to twelve times the [employee’s] average monthly salary; 3)     more than five years but less than ten years – severance pay of eighteen times the [employee’s] average monthly salary; 4)     more than ten years but less than twenty years – severance pay of twenty-four times the [employee’s] average monthly salary; 5)     more than twenty years – severance pay of thirty-six times the [employee’s] average monthly salary. ...” Article 42.     Employee’s reinstatement “1.     An employee who disagrees with his or her dismissal ... may appeal to a court ... If an employee has been dismissed ... without a proper legal basis or in breach of law, the court shall reinstate that employee in his or her ... job. 2.     A court, when reinstating to his or her former job an employee who was dismissed ... unlawfully, shall order the employer to pay the employee’s unpaid salary for the entire period of dismissal or order the employer to pay the difference, if during that time the employee has worked in a lower paid job. 3.     When an unlawfully dismissed employee declares that, if reinstated to [his or her] prior job, his or her working conditions would be untenable, the court, having concluded that the dismissal was unlawful, may, at that employee’s request, refrain from ordering [his or her] reinstatement and [instead] award severance pay of up to twelve times his or her average monthly salary. In such a case, the employee is considered to have been dismissed under Article 28 of this Law.” 28.     The Labour Code, in force since 1   January 2003, insofar as relevant reads as follows: Article 129.     Termination of an employment contract on the initiative of an employer without any fault on the part of an employee “1.     An employer may terminate an employment contract of indefinite duration only for valid reasons by giving the employee notice thereof, in accordance with the procedure established in Article 130 of this Code. The dismissal of an employee from his work without any fault on the part of that employee shall be allowed if the employee cannot, with his consent, be transferred to other work. 2.     Only circumstances that are related to the qualifications, professional skills or conduct of an employee shall be recognised as valid. An employment contract may also be terminated on economic or technological grounds or due to the restructuring of the workplace, or for other similar valid reasons. 3.     A legitimate reason to terminate employment relations shall not include: ... 3)     participation in proceedings against an employer charged with the violation of laws, other regulatory acts or the collective agreement, as well as [lodging an] application to administrative bodies; 4)     gender, sexual orientation, race, nationality, language, origin, citizenship and social status, belief, marital and family status, convictions or views, or membership of political parties and public organisations; ...” Article 297.     Disputes relating to the Employment Contract “1.     An employee who disagrees with a change in working conditions, his suspension from work on the employer’s initiative, or his dismissal from work shall be entitled to bring an action in a court within one month of the day of his receipt of the relevant notice. If it is established that the working conditions have been changed or the employee was suspended from work without a valid reason or in breach of the law, the violated rights of the employee must be restored and he must be paid the average salary payable for the entire period of the time during which he stood involuntarily idle or the difference between [that salary] and that which the employee was paid for his employment in a lower paid job. ... 3.     If an employee is dismissed without a valid reason or in violation of the procedure established by law, the court shall reinstate him in his previous job and award him the average work pay for the entire period of involuntary idle time from the day of dismissal from work until the day of execution of the court decision. 4.     If the court establishes that the employee may not be reinstated in his previous job due to economic, technological, organisational or similar reasons, or because he may be provided with conditions not favourable for work, it will pass a decision to recognise the termination of the employment contract as unlawful and award him severance pay in the amount specified in Article 140(1) of this Code [depending on the time the employee worked for that employer] as well as the average wage for the period of involuntary idle time from the day of dismissal from work until the effective date of the court decision. In this case the employment contract shall be considered terminated from the effective date of the court decision. [emphasis added]” COMPLAINTS Under Article 6 § 1 of the Convention the applicant complains that even after the Court’s judgment in her case she found no justice in Lithuanian courts. She asserts that the court proceedings were delayed, and that the courts made allowances and tacitly supported the Polish embassy, which was a stronger party in this case. The applicant’s requests to the Lithuanian courts that harm done to her by the Polish embassy be remedied were to no avail. The Lithuanian courts misconstrued her written statements and claims. Firstly, the Court of Appeal and the Supreme Court had ignored her request for re-instatement, even thought this would have been the fairest solution in this case. Secondly, and even after the Court’s judgment in her case, the Lithuanian courts disregarded her actual pecuniary and non-pecuniary loss, notwithstanding that the Polish embassy had not compensated her unpaid salary to this day. The Court’s judgment in the applicant’s favour thus had no practical impact in her case. QUESTIONS TO THE PARTIES 1.     Has there been a violation of the applicant’s right to a fair hearing, within the meaning of Article 6 § 1 of the Convention, in particular, in view of:   a)     the Lithuanian courts’ refusal to re-instate the applicant in her previous job at the Polish embassy in Vilnius, and/or   b)     the manner in which the Lithuanian courts examined the question of whether the applicant should be awarded unpaid salary for the entire period between her dismissal from the Polish embassy until the court decision by which that dismissal was declared unlawful (see, mutatis mutandis , Bochan v.   Ukraine (no. 2) [GC], no. 22251/08, §§ 33-39, ECHR 2015)?   2.     The Government are requested to submit copies of the Polish embassy’s replies to the applicant’s lawsuit, appeal and appeal on points of law during the reopened court proceedings.