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THIRD
SECTION
DECISION
AS TO THE
ADMISSIBILITY OF
Application no.
16287/03
by Adrian Ioan BARTOŞ
against Romania
The
European Court of Human Rights (Third Section), sitting on
26
January 2010 as a Chamber composed of:
Josep
Casadevall,
President,
Elisabet
Fura,
Corneliu
Bîrsan,
Boštjan
M. Zupančič,
Alvina
Gyulumyan,
Egbert
Myjer,
Luis
López Guerra,
judges,
and Santiago
Quesada, Section
Registrar,
Having
regard to the above application lodged on 31 March 2003,
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 Adrian Ioan Bartoş, is a
Romanian national who was born in 1950 and lives in Sibiu. He was
represented before the Court by Mr Ionel Olteanu, a lawyer practising
in Bucharest. The Romanian Government (“the Government”)
were represented by their Agent, Mr Răzvan-Horaţiu Radu.
A. The circumstances of the case
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- In
1997 the Public Health Agency of Sibiu County (“the agency”),
further to a competitive examination, appointed the applicant in the
post of economic deputy director in the Sibiu County Hospital (“the
hospital”), a public institution. The hospital was in charge
with the enforcement of that decision.
- In
April 2001 the agency found management deficiencies by the applicant.
Therefore on 9 May 2001 the agency decided to dismiss him from his
position as deputy director. That decision was to be enforced by the
hospital and provided for a thirty-day time-limit to be challenged
before the courts.
- Consequently,
on 11 May 2001 the hospital offered the applicant two alternative
posts, either as economist or as consultant in the accounting
department, informing him that in case of refusal it would terminate
his employment contract in accordance with Article 130 § 1 (e)
of the Labour Code for professional incompatibility. The applicant
declined the two offers.
- On
14 May 2001 the hospital charged the applicant with pecuniary damage
caused to the institution, on the basis of the above-mentioned
findings.
However,
on 1 October 2001 the Sibiu jurisdictional branch of the Court of
Accounts annulled that decision, considering that the pecuniary
damage had not been caused by the applicant and therefore he was not
liable under the Labour Code. That judgment became final.
On 7
December 2001 the public prosecutor also found no grounds which would
justify initiating a criminal action against the applicant.
- On
16 May 2001, having regard to the decision of 9 May 2001 and to the
fact that the applicant had refused the two alternative posts, the
hospital dismissed him from his job.
- On
28 May 2001 the applicant challenged the decision of 16 May 2001
before the courts, seeking reinstatement in his previous job and
payment of salary arrears. In his subsequent submissions, he also
challenged the decision of 9 May 2001.
- On
1 March 2002, the post of economic director was discontinued in line
with new legal provisions.
- On
13 June 2002 the Sibiu County Court allowed that action in part and
annulled the decision of 16 May 2001, considering that his dismissal
under Article 130 § 1 (e) of the Labour Code for management
deficiencies had been groundless. It held that the legal grounds for
terminating his employment contract should be reconsidered in a fair
manner, by taking into account the applicant's preference for ceasing
or continuing in another post.
However,
the court dismissed his complaint against the decision of 9 May
2001 as being out of time. Consequently, even if it found that the
grounds for his dismissal were unfounded, it dismissed his other
claims, considering that it could not order reinstatement in his
previous job and payment of salary since that decision taken by the
agency to dismiss him from his post had not been examined on the
merits and had not been annulled. The court concluded that the
hospital was not at fault for the termination of his employment
contract because the applicant had previously been dismissed from his
job by the hierarchically superior body and had not opted for another
position. Therefore, in spite of upholding the annulment of his
dismissal, the court considered that the provisions of Article 136 of
the Labour Code were not applicable in the case. That Article
provided that in case of annulment of a dismissal decision, the
institution had an obligation to reinstate that person in his
previous job and to pay him damages.
- The
applicant appealed, considering his reinstatement as the legal
consequence of annulling the decision by which he had been dismissed.
He also submitted that he had working relations with the hospital and
that the decision taken by the agency was not relevant in his case.
The
hospital argued that the decision to dismiss the applicant had been
taken by the hierarchically superior body, which had also employed
him, and that the hospital had only enforced that decision in the
absence of a positive answer by the applicant to its two alternative
job proposals. The hospital also submitted that the two contested
decisions did not have the same purpose because the decision taken by
the agency aimed only at dismissing the applicant from his post, thus
giving the possibility to continue working relations in another post,
according to his qualifications.
- On
7 October 2002 the Alba Iulia Court of Appeal upheld that judgment by
a final decision. It considered that the annulment of the decision of
16 May 2001 had no influence over the previous decision of 9 May
2001, which had not been challenged in due time. Therefore, since the
latter decision had not been annulled, it was not possible to order
the applicant's reinstatement in his previous job or payment of
salary. The court also considered to be irrelevant the fact that the
applicant had working relations with the hospital, since the
Regulations for the organisation and functioning of the public health
agencies had provided that those agencies were entitled to revoke
directors' appointments in subordinate institutions (see “Relevant
domestic law” below).
- On
28 October 2002 the applicant requested the hospital to reinstate him
in accordance with the judgments of 13 June and 7 October 2002,
considering that his employment contract was still in effect. He also
submitted that he had the qualifications required for the post of
accounting director or director in charge with reform. On 30 October
2002, during a meeting with the hospital's management, the applicant
was informed about the unavailability of any post of economist within
the hospital. He was also informed that the post of accounting
director was not vacant and that the appointment in the post of
director in charge with reform was to be made by the Ministry of
Health, and not by the hospital.
- Therefore,
on 29 October 2002 the hospital requested the Sibiu County Employment
Agency (the “AJOFM”) to find a corresponding job for the
applicant and also informed the applicant about this action. On
21 November 2002 the AJOFM informed the hospital of the
existence of two available posts of economist in a certain company.
- On
25 November 2002 the hospital invited again the applicant to its
headquarters. The applicant went on 28 November 2002, but refused to
read the information sent by the AJOFM, requesting to have it
submitted to him by post. Eventually, the applicant refused those
offers.
- Therefore,
on 17 January 2003 the hospital terminated his employment contract
under Article 130 § 1 (a) of the Labour Code, which provided for
dismissal of an employee by the institution when the post occupied by
the former had been discontinued following reorganisation. In
accordance with the judgments of 13 June and 7 October 2002 it
annulled the mention in his employment record which provided that he
had been dismissed because of management deficiencies. The decision
further stated that the period between 15 May 2001 and 17 January
2003 was not considered as length of service.
- The
applicant challenged that decision, seeking its annulment, his
reinstatement in an equivalent post and payment of salary starting
with 7 October 2002, the date on which the judgment of 13 June
2002 became final (see paragraph 12 above). He submitted that the
annulment of the decision of 16 May 2001 had restored the status
quo ante and therefore his employment contract was still valid.
The
hospital submitted that the post occupied by the applicant had been
discontinued in accordance with new legal provisions, that it had no
vacancy suited to the applicant's qualifications and that it had
requested assistance from the AJOFM. Since the applicant had declined
those offers, the hospital reconsidered the grounds for his
dismissal, as stated in the judgment of 13 June 2002.
- On
16 June 2003 the Sibiu County Court dismissed his action. It
considered his dismissal as the only alternative, taking into account
that his post had been discontinued, that the hospital had offered
him another post corresponding to his qualifications and also the
fact that the applicant had claimed only a post of accounting
director or director in charge with reform, which could only be
filled by competitive examination.
The
court further noted that the judgment of 13 June 2002 had only
annulled the decision of 16 May 2001 by which the applicant had been
dismissed from his job, but not the decision taken by the agency on 9
May 2001 with a view to dismiss him from his post. As a result his
employment contract continued to be in effect, but his reinstatement
in his previous job was no longer possible. The court also held that
the period between 15 May 2001 and 17 January 2003 had legally been
considered as not amounting to length of service, since neither the
applicant nor the employer had paid social security during that
period, as provided for by the legal provisions. Finally, the court
dismissed as groundless his claim for overdue salary starting with 7
October 2002 for the reason that he had not worked.
That
judgment became final.
B. Relevant domestic law
- The
order no. 1562/1993 of the Ministry of Health on the organisation and
functioning of the public health agencies provided that the
hierarchically superior body was in charge with appointing or
revoking the appointments of the directors from the subordinate
institutions. Those attributes were preserved by the order no.
120/2001 of the Ministry of Health on the approval of the Regulations
for the organisation and functioning of the public health agencies.
COMPLAINTS
- The
applicant complained that the non-enforcement of the judgment of 13
June 2002 of the Sibiu County Court had infringed his rights
guaranteed by Article 6 § 1 of the Convention and Article 1 of
Protocol
No. 1 to the Convention.
- He
also complained under Article 6 § 1 that both the proceedings
and the outcome had been unfair, that the domestic courts had neither
been independent nor impartial, that they had failed to assess the
facts correctly, and had misinterpreted the domestic law.
- The
applicant complained under Article 14 that he had been discriminated
against because of his political opinions.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant alleged that the judgment of 13 June 2002 of the Sibiu
County Court had not been enforced, since the hospital had not
reinstated him, as provided in the operative part of that judgment.
He relied on Article 6 § 1 of the Convention, which, in so far
as relevant, reads as follows:
Article 6 § 1
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
- The
Government raised an objection of incompatibility
ratione
personae, arguing that the applicant was not a victim within the
meaning of Article 34 of the Convention. They submitted that the
judgment of 13 June 2002, which had required the hospital to
reconsider the legal grounds for the applicant's dismissal in
accordance with his choice for ceasing or continuing to work in
another post, had been enforced.
- The
applicant contested those arguments. In particular, he considered
that the annulment of his dismissal should have led to his
reinstatement by the hospital. Instead of enforcing the judgment of
13 June 2002, the hospital had dismissed him again on 17 January
2003.
- The
Court does not consider it necessary to examine the objection raised
by the Government as the application is in any event inadmissible for
the following reasons.
- The
Court notes that the applicant's allegations revolve around the fact
that he considered the judgment of 13 June 2002 as ordering the
hospital, which was a public institution, to reinstate him. On this
point, the Court notes that that judgment has not provided for that
obligation in its operative part, as claimed by the applicant.
However, the Sibiu County Court, considering that the grounds for his
dismissal were unfounded, held to be necessary a reassessment of
those grounds, taking into account the applicant's preference for
ceasing or continuing to work in another post (see paragraph 10
above).
- The
Court further observes that the applicant claimed to be reinstated in
another post of director (see paragraph 13 above), refusing the other
offers made by the hospital (see paragraph 5 above) or following
contacts between the hospital and the local employment agency
(see paragraphs 14-15 above). Therefore the Court cannot find that
the hospital has not made any attempt at reinstating the applicant
after the annulment by the courts of his dismissal.
- Moreover,
the domestic courts ruled that his new dismissal was the only
alternative, since his previous post had been discontinued in
accordance with new legal provisions and since the hospital had
offered him another post corresponding to his qualifications, but he
continued to claim a post of director (see paragraph 18 above). The
Court sees no reasons to depart from those findings.
- Finally,
the Court notes that although the domestic courts found groundless
the reasons for the applicant's dismissal, the decision taken by the
agency was not annulled because his complaint was out of time (see
paragraph 10 above). Therefore, the applicant's conduct led to an
objective impossibility of reinstating him in his previous job.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO
THE CONVENTION
- The
applicant alleged that the non-enforcement of the judgment of 13 June
2002 had deprived him of the salary to which he would have been
entitled if reinstated. He relied on Article 1 of Protocol No. 1,
which reads as follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
- The
Government raised an objection of incompatibility
ratione
materiae. They considered that the applicant had no “possession”
within the meaning of the Convention because the domestic courts had
dismissed his claim for salary.
- The
applicant disagreed, considering that he had at least a legitimate
expectation of recovering salary.
- The
Court considers that the applicant has not shown that he had a claim
which was sufficiently established to be enforceable, and he
therefore cannot argue that he had a “possession” within
the meaning of Article 1 of Protocol No. 1 (see, among other
authorities, Gratzinger and Gratzingerova v. the Czech Republic
(dec.), no. 39794/98, ECHR 2002 VII).
- The
Court therefore upholds the Government's objection. It follows that
this complaint is incompatible ratione materiae
with the provisions of the Convention within the meaning of Article
35 § 3 and must be rejected in accordance with Article 35 §
4.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Article 6 § 1 that both the
proceedings and the outcome had been unfair, that the domestic courts
had neither been independent nor impartial, that they had failed to
assess the facts correctly, and had misinterpreted the domestic law.
He also complained under Article 14 that he had been discriminated
against because of his political opinions.
- Having
carefully considered the applicant's submissions in the light of all
the material in its possession, the Court finds that, in so far as
the matters complained of are within its competence, they do not
disclose any appearance of a violation of the rights and freedoms set
out in the Convention.
- It
follows that this part of the application must be declared
inadmissible as being manifestly ill-founded, pursuant to Article 35
§§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Santiago Quesada Josep
Casadevall
Registrar President
