FIFTH SECTION

DECISION

Application no. 73080/10 Sergey Aleksandrovich DOLGOPOLOV against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 17 September 2019 as a Committee composed of:

Síofra O ’ Leary, President, Ganna Yudkivska, Lado Chanturia, judges, and Milan Blaško, Deputy Section Registrar ,

Having regard to the above application lodged on 30 November 2010,

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 Sergey Aleksandrovich Dolgopolov, is a Ukrainian national, who was born in 1978 and lives in Kramatorsk. He was represented before the Court by Ms Y. Koroleva, a lawyer practising in Kramatorsk.

The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 10 July 2009 the applicant, a loader at the Kramatorsk Heavy Machine Tool Building Plant ( Краматорский завод тяжелого станкостроения ), and one of his colleagues took some metal goods from the plant, put them into three bags and took them to a driver ’ s room in the shipping department even though, according to the relevant order, they were required to deliver the goods to a thermal unit on the other side of the plant.

The applicant ’ s conduct was noticed by the plant ’ s security service. The driver ’ s room was searched in the presence of witnesses and a record of the search was made. The file indicates that the applicant explained that they had intended to return the goods to the plant ’ s management.

On 17 July 2007, on the basis of the file submitted by the security service to the plant ’ s administration and relying on Article 41 § 2 of the Labour Code, the plant ’ s administration dismissed the applicant from his post for a “loss of trust and confidence ”. The descriptive part of the dismissal notice stated that the applicant had attempted to steal ( попытку хищения ) metal goods from the plant ’ s central warehouse.

The applicant appealed against his dismissal. He submitted, in particular, that it had not been established by a criminal court that he was guilty of attempted theft, which was a criminal offence. He stated that he had therefore been dismissed unlawfully.

On 16 February 2010 the Kramatorsk Court rejected the applicant ’ s claim for reinstatement to his post as time-barred.

On 2 June 2010 the Donetsk Regional Court of Appeal quashed the above-mentioned decision, renewed the time-limit for the applicant but rejected his claim. The relevant part of the judgment reads as follows:

“... A court may find a dismissal for a loss of trust and confidence (under Article 41 § 2 of the Labour Code) to be well-founded if an employee ... has taken – either intentionally or negligently – steps which would give grounds ... for the loss of trust and confidence [in the employee].

The case file suggests that on 10 July 2009 ... [the applicant], in breach of ... internal regulations, instead of taking the metal goods to the thermal unit as required by [name], took those goods to the other side of the plant, [namely] to the driver ’ s room of the shipping department. This attempted theft was noticed by the plant ’ s security service.

Those facts were not contested by the [applicant] during the examination of the case by the Court of Appeal.

On 17 July 2009 [the applicant] was dismissed from his post, with the agreement of the [plant ’ s] trade union, on the basis of Article 41 § 2 of the Labour Code, for a loss of trust and confidence. ...

Having regard to the above-mentioned, the Court of Appeal is of the opinion that the [applicant ’ s] dismissal was carried out in compliance with the requirements of the labour legislation. His claim shall therefore be dismissed as manifestly ill-founded. ...”

On 3 December 2010 the Supreme Court of Ukraine dismissed the applicant ’ s request for leave to appeal in cassation.

On 9 September 2011 the applicant was again given work as a loader at the plant and has been working there ever since.

Article 40. Termination of a labour contract on the initiative of the employer ...

“A labour contract of indefinite duration ... may be terminated by the employer ... in the following cases:

...

(8) theft (including petty theft) of the employer ’ s property which has been established by a final judgment of a court ..., or by a resolution of a body with the competence to impose administrative sanctions or apply social measures. ...”

Article 41. Additional grounds for the termination of a labour contract on the initiative of the employer ...

“In addition to the grounds set out in Article 40 of this Code, a contract may be terminated on the initiative of the employer ... in the following cases:

...

(2) guilty actions of employee, who is directly serving monetary, market or cultural values, in the event that such actions give the employer or its authorised representative reason to lose trust and confidence in the employee; ...”

“...

28. ... A court may find a dismissal for loss of trust ... to be well-founded if an employee ... has taken, intentionally or negligently, steps which would give the employer grounds ... to lose trust and confidence [in the employee]. ...”

COMPLAINT

The applicant complained that, in the labour case, the domestic courts had ruled against him, contrary to the presumption of his innocence, and that no effective remedy had been available to him in this respect.

THE LAW

The applicant submitted, without challenging the factual findings contained in the domestic court ’ s decision, that the court had accepted the employer ’ s terminology and referred to an “attempted theft” that the applicant had allegedly committed – which implied that he was guilty of a criminal offence – although he had never been charged or indicted, much less convicted, of that offence. H e relied on Article 6 § 2 and Article 13 of the Convention, which read as follows:

Article 6 § 2

“2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Government argued that Article 6 § 2 was not applicable since the labour proceedings against the applicant could not be regarded as proceedings concerning the determination of a criminal charge against the applicant. The proceedings at issue had been “civil” in their nature and concerned an alleged breach of work discipline by the applicant and the lawfulness of his employer ’ s reaction. They noted, in this respect, that there had not been any link between the labour proceedings at issue and any criminal proceedings against the applicant as no such proceedings had ever been instituted.

The applicant maintained his complaint.

The Court reiterates that the question of the applicability of Article 6 § 2 of the Convention, which is aimed at preventing the undermining of a fair criminal trial by prejudicial statements made in close connection with those proceedings, is normally to be examined under two aspects: a narrow aspect relating to the conduct of the relevant criminal trial as such, and a more extensive one which can go beyond the scope of the trial under certain conditions (see Gogitidze and Others v. Georgia , no. 36862/05, § 124, 12 May 2015 ).

In this connection, the Court observes that the labour litigation in the present case did not concern the determination of the applicant ’ s guilt under criminal law. The subject matter of the labour case was the assessment of the applicant ’ s behaviour from the perspective of labour law – in particular his responsibility for his failure to comply with his duty as a loader. The domestic courts were satisfied that the conduct of the applicant was a valid reason for the employer ’ s loss of trust and confidence in him and that his dismissal was in compliance with the relevant domestic legislation.

As regard the second, more extensive, aspect of Article 6 § 2 of the Convention, the role of which is to prevent the principle of presumption of innocence from being undermined while the relevant criminal proceedings are ongoing or after they have ended with an outcome other than conviction (such as acquittal, discontinuation of the criminal proceedings as being statute-barred, the death of an accused, and so on), the Court observes that the labour case at issue did not either take place simultaneously with any criminal proceedings against the applicant or after the conclusion of any such criminal proceedings. In fact, no criminal proceedings have ever been instituted against the applicant in respect of the facts underlying his dismissal.

Consequently, neither of the aspects of Article 6 § 2 of the Convention are of relevance in the present case nor can the case give rise to the application of the provision in question (compare Zollmann v. the United Kingdom (dec.), no. 62902/00, ECHR 2003-XII).

It follows that the applicant ’ s complaint is incompatible ratione materiae with the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

In respect of the applicant ’ s complaint under Article 13 of the Convention, the Court reiterates that, in accordance with its case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right. Having regard to its considerations above under Article 6 of the Convention, the Court finds that the applicants has no arguable claim for the purposes of Article 13, which therefore does not apply (see, among many other authorities , KudÅ‚a v. Poland [GC], no. 30210/96, § 157, ECHR 2000 ‑ XI).

In view of the above, this part of the application must also be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 10 October 2019 .

Milan Blaško Síofra O ’ Leary Deputy Registrar President