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Holding N. 1320 –O-O of the Constitutional Court of the Russian Federation (Red Star Consulting LLC v. former employee)

Year: 2009 (Date of Decision: 13 October, 2009)

Forum, Country: Constitutional Court; Russia

Standards, Rights: Procedural fairness and due process; Nondiscrimination and equal protection of the law; Right to decent work

Summary Background: The case raised the issue of the constitutionality of article 393 of the Labor Code of the Russian Federation, prescribing the exemption of employees from the payment of legal expenses in labor litigation. In January 2009 the plaintiff, “Red Star Consulting” LLC, sued a former employee in a District Court of Archangelsk in an attempt to recover a compensation for legal expenses, including power of attorney and the attorney’s legal services, arising from a labor dispute between the two parties. The Court ruled against “Red Star Consulting” LLC, while in part upholding the claims of the employee. The regional Appeals Court of Archangelsk upheld the decision without changes. “Red Start Consulting” subsequently filed an application to the Constitutional Court, alleging that article 393 of the Labor Code violated the Russian Constitution, particularly article 19, paragraph 1, which prescribes the principle of equality before the law in court. The petitioner also alleged that there was no precedent in Russia, by a general jurisdiction court, on the issue of applicability of article 393 of the Labor Code to civil litigation.

Holding: The Constitutional Court rejected the claims of the petitioner and declared its application inadmissible [para. 2.1].

In its reasoning, the Court stated that the right to judicial protection belongs to the fundamental and inalienable human rights and freedoms and, at the same time, constitutes a guarantee for the enjoyment of all other rights and freedoms [para. 2.3].

The provisions of article 37 of the Russian Constitution, prescribe freedom of the employment agreement, as well as the right of the employee and of the employer to resolve, upon mutual agreement, questions arising from the institution, subsequent change and termination of labour relations. They also determine the obligation of the government to ensure the appropriate protection of the rights and legal interests of the employee as the economically weakest part within the labour relation. The Court underlines that this is consistent with the fundamental goals of the legal regulation of labour within the Russian Federation as a social state of law (article 1 part 1, article 2 and article 7 of the Constitution).

Accordingly, the lawmaker shall consider not only the economic dependence of the employee upon the employer, but also the organizational dependence of the latter upon the former. Therefore, the lawmaker shall establish procedural safeguards for the protection of the labour rights of employees when considering labour litigation in court, in the absence of which (i.e. procedural safeguards) the “realization” of the employee and, consequentially, of the right to fair trial, would remain unaccomplished.

Among such procedural guarantees the Court mentions: the possibility to address the court of a trade union or a counsel defending the rights of employees (article 391 of the Labour Code of the Russian Federation), the assignment of the burden of proof on the employer (for example, in the cases foreseen by article 247 of the Labour Code or in litigation on the rehiring of personnel, whose labour agreement has been breached on the initiative of the employer), and the exemption of the employee from the payment of legal expenses (article 393 of the Labour Code) [para. 2.5].

The Court concludes by emphasizing that the rule of exempting the employee from legal expenses upon the adjudication of labour disputes aims at ensuring his right to legal protection, in order to provide him with an equal access to justice and to respect the principle of equality, embedded in article 19(1) of the Constitution of the Russia Federation [para. 2.6].

For all the above-mentioned reasons, the Court held the application by “Red Star Consulting” inadmissible.

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