THIRD SECTION

DECISION

Application no. 40075/14 Aleksandr Nikolayevich MOROZOV against Russia

The European Court of Human Rights (Third Section), sitting on 19 October 2021 as a Committee composed of:

Peeter Roosma, President, Dmitry Dedov, Andreas Zünd, judges, and Olga Chernishova, Deputy Section Registrar,

Having regard to the above application lodged on 23 May 2014,

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 Aleksandr Nikolayevich Morozov, is a Russian national, who was born in 1970 and lives in Moscow. He was represented before the Court by Mr G. Avetisyan, a lawyer practising in Moscow.

The Government were represented by Mr G. Matyushkin, the then Representative of the Russian Federation to the European Court of Human Rights, and lately by Mr M. Vinogradov, his successor in that office.

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

The applicant has been blind since childhood. In 2008 he started work in Moscow State City Clinic no. 227 as a masseur.

In March 2012 the applicant underwent an examination at the Federal Medical and Social Expert Committee and received a plan for an individual rehabilitation programme. He was recommended work “in specific conditions with the use of aids for the blind”. The plan also mentioned his entitlement to a white cane, a player for audiobooks designed for blind people, and a vocal clinical thermometer.

In April 2012 Clinic no. 227 was merged with Moscow State City Clinic no. 9 (“the Clinic”), where the applicant obtained a position of a masseur. He alleged that the Clinic was not suitable for a blind person.

Between 2013 and 2014 the applicant was involved in several work ‑ related disputes with the Clinic. In particular, he lodged a civil claim seeking his working conditions be improved. The courts dismissed his claim finding that the Clinic had been taking measures to accommodate the applicant’s special needs and that his working conditions complied with the requirements of his individual rehabilitation programme. On 10 April 2014 the Moscow City Court (“the City Court”) in the final instance dismissed the applicant’s cassation appeal endorsing the reasoning by the lower courts.

In 2014 new standards for the equipment of working places for blind employees issued by the Ministry of Labour and Social Developments of Russia entered into force. After that the Clinic’s administration offered the applicant various solutions to accommodate his disability (a voice recorder, a choice of room, additional time for lunch, etc), which he refused to accept.

On 14 December 2016 the applicant was dismissed from his post for his refusal to sign amendments to his contract of employment or internal regulations which, according to him, did not take into account his disability.

The applicant later challenged his dismissal before the Lyublinskiy District Court of Moscow. He asked the court to declare the dismissal unlawful and reinstate him at work; to compensate him for his lost wages; to order the Clinic to bring his workplace in line with his special needs; and to award him compensation for non ‑ pecuniary damage in the amount of 500,000 Russian roubles (RUB). His claim was dismissed on 19 April 2017.

On 28 September 2017 the City Court granted the applicant’s appeal against the above decision. It declared the applicant’s dismissal unlawful and reinstated him to his post. It ordered the Clinic to pay the wages lost for the period of dismissal and compensation for non-pecuniary damage in the amount of RUB 5,000. Lastly, the court held that the Clinic had failed to ensure adequate working conditions for the applicant in certain respects. It therefore ordered the Clinic to make installations required for accommodation of his needs.

On 30 November 2017 the City Court dismissed the Clinic’s cassation appeal against the judgment of 28 September 2017.

That judgment had been enforced by 19 February 2018. The applicant was reinstated at work and received the sums awarded. Braille signs had been installed at the Clinic’s entrance and in the elevators, the Clinic’s floor had been covered with tactile paving, and the applicant’s computer had been equipped with a speech generator and Braille keyboard.

COMPLAINTS

The applicant complained under Article 3 of the Convention and Article 14 of the Convention taken in conjunction with Article 3 that his working conditions had not accommodate his needs as a person with disability and that he had therefore been discriminated against on the grounds of his disability.

THE LAW

The applicant’s complaints fall to be examined under Article 14 of the Convention taken into conjunction with Article 8 (compare Bayrakci v. Turkey, (dec.), no. 2643/09, §§ 15-27, 5 February 2013), which read as follows:

Article 8

“1. Everyone has the right to respect for his private ... life ...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 14

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Government claimed that Article 8 was not applicable to the case, that the applicant had not attached a power of attorney in respect to his representative, that he had failed to exhaust domestic remedy and that his complaints were manifestly ill-founded.

The applicant submitted that he had complied with admissibility criteria, including exhaustion. He also stated that his claim had been reasonable and lawful. The accommodations offered by the Clinic in 2016 had been insufficient and fell short of legal requirements. His refusal to accept them had therefore been legitimate.

The Court does not find it necessary to examine all the objections raised by the Government, because it considers that the application is in any event inadmissible for the reasons set out below.

The Court has already held that it falls first to the national authorities to redress any violation of the Convention and that in assessing whether an applicant can claim to be a genuine victim of an alleged violation, account should be taken not only of the formal position at the time when the application was lodged with the Court but of all the circumstances of the case in question, including any developments prior to the date of the examination of the case by the Court. A decision or measure favourable to the applicant is not, in principle, sufficient to deprive him or her of his or her status as a “victim” for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (see Selahattin Demirtaş v. Turkey (no. 2) [GC], no. 14305/17, § 217-18, 22 December 2020 and the references cited therein).

The Court notes that by the judgment of 28 September 2017 the domestic authorities recognised the inadequacy of the applicant’s working conditions in certain regards and ordered the Clinic to improve them. Within five months the relevant improvements were made - Braille signs were installed at the Clinic’s entrance and in the elevators, the Clinic’s floor was covered with tactile paving, and the applicant’s computer was equipped with a speech generator and Braille keyboard. The applicant did not show that those measures were insufficient.

In addition, the domestic courts reinstated the applicant at his post and awarded him compensation in respect of non-pecuniary damage. Even if that sum was lower than the Court’s award in similar cases (compare I.B. v. Greece , no. 552/10, § 95, ECHR 2013, and Emel Boyraz v. Turkey , no. 61960/08, § 79, 2 December 2014), the applicant did not challenge the judgment before the higher courts. In the absence of any explanations, his behaviour indicates that he was satisfied with the award received and, in any event, did not attempt to exhaust the available chain of judicial remedies.

In such circumstances, the Court considers that the applicant’s claim related to his working conditions was eventually upheld and that the applicant accordingly can no longer claim to be a “victim” within the meaning of Article 34 of the Convention of the violation alleged (compare Predić-Joksić v. Serbia (dec.), no. 19424/07, §§ 27-28, 20 March 2012). The application must therefore 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 18 November 2021.

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Olga Chernishova Peeter Roosma Deputy Registrar President