CEDH · CASELAW;COMMUNICATEDCASES;ENG — 19 mars 2020

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .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 } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s6B505E72 { margin:0pt; padding-left:0pt } .s6983F43D { margin-top:14pt; margin-left:27.6pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; padding-left:1.6pt; font-family:Arial; font-size:11pt; font-weight:bold } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s743F3A55 { margin-right:0pt; margin-left:0pt; padding-left:0pt } .s7A11F50B { margin-left:6.52pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; padding-left:0.83pt; font-weight:normal; font-style:italic } .s434D37A9 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s36C5EC9D { margin-top:14pt; margin-left:35.72pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; padding-left:0.83pt; font-family:Arial; font-size:11pt; font-style:italic } .s58699FB5 { margin-top:14pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } Communicated on 19 March 2020 Published on 8 June 2020   FIRST SECTION Application no. 35049/16 Sevak HOVHANNISYAN and Others against Armenia lodged on 10 June 2016 STATEMENT OF FACTS The applicants, Messrs Sevak Hovhannisyan, Gagik Galstyan and Andranik Gevorgyan, are Armenian nationals who were born in 1978, 1975 and 1973 respectively and live in Yerevan. They are represented before the Court by Ms K. Gevorkyan, a lawyer practising in Yerevan. The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows. At the material time the applicants were employed at the Karen Demirchyan Branch of Yerevan Metropolitan (the Metropolitan). On 1 January 2014 the relevant provisions of the new pension legislation introducing mandatory pension contributions were to enter into force. However, before their entry into force, several members of Parliament lodged an application with the Constitutional Court challenging the compatibility of those provisions with the Constitution. By its decision of 24 January 2014 the Constitutional Court decided to suspend the application of the contested provisions of the above-mentioned law until the adoption of its final ruling. On 12 February 2014 the applicants and other employees of the Metropolitan participated in a protest against the introduction of the mandatory pension scheme. On the same date the applicants and their colleagues submitted an application to Y., the Director of the Metropolitan, asking for the application of the new pension scheme to be suspended until the delivery of the Constitutional Court’s ruling on the matter. The applicants allege that they were the ones to hand this application to the management. It appears that on the same date security-related controls were carried out in the services in which the applicants were working. On 13 February 2014 S., the applicants’ supervisor, reported to Y. that the applicants had been responsible for certain breaches of safety regulations. By the relevant orders of Y., dated 14 February 2014, the applicants were dismissed with reference to Article 113 § 1 of the Labour Code (loss of confidence). In an article published on 19 February 2014 on an online media portal, S. criticised the applicants’ work performance. The relevant part of the article reads as follows: “According to [S.], they regularly carry out inspections, as a result of which some shortcomings have been revealed. In response to the question of whether that inspection had been carried out on the day of the protest [against the introduction of the mandatory pension scheme], [S.] immediately said “no”. Then, when we [the journalists] tried to find out the exact date of the inspection, he suddenly said: “Yes, it was [carried out] on the day of the protest. It was our usual inspection. It just coincided [with the day] of the protest". The former supervisor did not accept the [journalist’s] observation that the employees did not file any personal complaints but were merely protesting against the pension system. "I read the press every day. I know what they were talking about." [S.] did not even deny that he was deeply offended by his former employees and even hostile [and that] whoever [had been in his place] would be offended, humiliated and hostile”. On 10 March 2014 the applicants lodged a claim against the Metropolitan with the Arabkir and Kanaker-Zeytun District Court of Yerevan (the District Court) seeking annulment of the orders of 14   February 2014, reinstatement in work and compensation for forced unemployment up to the day of their reinstatement. In support of their claims, the applicants argued that the termination of their employment was due to their participation in the protest against the introduction of the new mandatory pension scheme. On 13 July 2015 the District Court partially granted the applicants’ claims. In particular, by stating that the applicants’ dismissal procedure had not been respected, it annulled the orders of 14 February 2014 and awarded the applicants compensation for their forced unemployment to be calculated for the period between 14 February 2014 and the date of entry into force of the judgment. At the same time, the District Court rejected the applicants’ claim as regards their reinstatement and awarded them compensation in that respect amounting to five times their average salary. The District Court did not address the applicants’ allegations concerning the violation of their freedom of expression as a result of their dismissal. The applicants and the Metropolitan lodged appeals. By its decision of 15 October 2015 the Civil Court of Appeal (the Court of Appeal) partially granted the Metropolitan’s appeal and rejected the applicants’ appeal, stating, in particular, the following: “... to quash and amend the judgment ... of [the District Court] of 13 July 2015 as regards ... the [three] dismissal orders ... issued by [Y.] on 14 February 2014 and the compensation awarded to [the applicants] for their non-reinstatement in their previous work amounting to five times their average salary. The remaining part of [the judgment of 13 July 2015] remains in force.” The Court of Appeal did not address the applicants’ arguments that their dismissal had been linked to their negative attitude towards the introduction of the new mandatory pension scheme. The applicants lodged an appeal on points of law against the decision of 15 October 2015. By decision of 16 December 2015 the Court of Cassation declared their appeal inadmissible for lack of merit. On 8 March 2016 the District Court issued a writ of execution which stated that the judgment of 13 July 2015 (in so far as it had been upheld by the Civil Court of Appeal) had become final and binding. On 29 April 2016 the Department for the Enforcement of Judicial Acts (the DEJA) initiated enforcement proceedings. In the meantime, on 15 April 2016 the Metropolitan applied to the Court of Appeal with a request to interpret its decision of 15 October 2015. The Metropolitan also requested rectification of the decision, arguing that no question of compensation for forced unemployment could be raised in the case of lawful dismissal and refusal of the claim for reinstatement, since forced absence constituted the consequence of unlawful dismissal, whereas in the present case the applicants’ dismissal was found to have been lawful. Moreover, it followed from the reasoning expressed in the decision of the Court of Appeal that the District Court’s judgment of 13 July 2015 had been quashed in its entirety, including the part concerning the payment of compensation to the applicants for their forced absence from work. On 16 May 2016 the DEJA decided to postpone the enforcement proceedings for a period of two weeks, until 30 May 2016, on the grounds that the Metropolitan had submitted an application for clarification and rectification of the decision of 15   October 2015. By decision of 12 May 2016 the Court of Appeal refused the Metropolitan’s request for an interpretation of the decision of 15   October 2015. At the same time, by another decision adopted on the same date, the Court of Appeal granted the Metropolitan’s request to rectify the decision of 15   October 2015. The Court of Appeal stated, in particular, that by its decision of 15 October 2015 it had concluded that the ordering of the applicants’ dismissal was lawful and that there were no grounds for declaring it unlawful. Accordingly, those orders did not have any legal consequences, including payment for forced absence. The Court of Appeal considered that by its decision of 15 October 2015 the District Court’s judgment of 13 July 2015 was quashed in its entirety, that is the District Court’s finding concerning the payment to the applicants for their forced absence from work had also been quashed. On 27 May 2016 the applicants lodged an appeal on points of law against this decision, arguing that the Court of Appeal had amended the content and essence of the decision of 15 October 2015. Relevant domestic law The Code of Civil Procedure (as in force at the material time) According to Article 143 § 1, as in force at the material time, on a request lodged by the parties to the proceedings or on its own initiative, the court that adopted a ruling is entitled to clarify it, to correct errors, spelling mistakes and arithmetic miscalculations, without changing the content and essence of the ruling. Labour Code of 2004 (in force since 2004) Article 113 § 7 (1) provides that an employer shall have the right to terminate an employment contract in the case of losing confidence in the employee. Article 122 provides that an employer shall have the right to terminate the employment contract of an employee whom it no longer trusts, if that employee (a) destroyed, harmed, lost or appropriated the employer’s property; (b) created a risk to the safety of the employer’s property; (c)   caused distrust among consumers, customers and partners of the employer, as a result of which the employer sustained or could have sustained damage. COMPLAINT 1.     The applicants complain under Article 6 of the Convention that the decision of the Civil Court of Appeal of 12 May 2016, which set aside a final decision in their favour, was in breach of the principle of legal certainty. 2.     The applicants complain under Article 10 of the Convention that the termination of their employment contract was due to their participation in a protest on 12 February 2014 against the application of the law concerning the mandatory pension scheme. QUESTIONS TO THE PARTIES 1.     Was the principle of legal certainty, as guaranteed by Article   6   §   1 of the Convention, respected as regards the final and binding decision of the Civil Court of Appeal of 15 October 2015 (see Riabykh v. Russia , no.   52854/99, 24 July 2003, §§ 51-53; Ivanova v. Ukraine , no. 74104/01, 13   September 2005, §§20-23; Lizanets v. Ukraine , no. 6725/03, 31   May 2007, §§ 32-34)? The Government are requested to provide a copy of the decision of the Court of Cassation following the applicants’ appeal on points of law against the decision of the Civil Court of Appeal of 12 May 2016 lodged on 27   May 2016. 2.     Was the termination of the applicants’ employment at Karen Demirchyan Branch of Yerevan Metropolitan in breach of their right to freedom of expression, as guaranteed by Article 10 of the Convention (see Vogt v. Germany , no. 17851/91, 12 September 1996, §§ 53-61; Heinisch v.   Germany , no. 28274/08, 21 July 2011, §§ 44-45, Fuentes Bobo v. Spain , no. 39293/98, 29 February 2000, §§ 43-50)?