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Principles and standards Archives: Procedural fairness and due process

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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Joseph v. City of Johannesburg, Case CCT 43/09

Year: 2009 (Date of Decision: 9 October, 2009)

Forum, Country: Constitutional Court; South Africa

Standards, Rights: Procedural fairness; Human dignity; Right to adequate housing

Summary Background: In this case, the applicants sought a declaration regarding their entitlement to notice before municipal agencies terminated their power supply. Although the applicants who were tenants had regularly paid the owner of their building their electricity bills as part of the rent, the owner had run up arrears, due to which the City of Johannesburg’s electricity service provider, City Power, discontinued supply, giving notice to the owner, but not the tenants with whom City Power has no contractual relationship. The applicants lived without electricity for around one year, as they could not afford to move.

Holding: In this case, violation of human dignity was argued as the termination of electricity supply constituted a retrogressive measure violating the negative obligation to respect the right to adequate housing protected under the Constitution; however the case was primarily decided on the basis of the procedural fairness principle [paras. 2 and 32].

The Court held that electricity is one of the most important basic municipal services and that municipalities have constitutional and statutory obligations to provide electricity to the residents in their area as a matter of public duty [paras. 34-40]. The Court thus affirmed that the applicants were entitled to receive this service as a public law right [para. 40].

The Court further held that the government was required to act in a manner that is responsive, respectful and in conformity with procedural fairness when fulfilling its constitutional and statutory obligations [para. 46]. The Court outlined the importance of procedural fairness in the following terms: “Procedural fairness … is concerned with giving people an opportunity to participate in dignity and worth of the participants, but is also likely to improve the quality and rationality of administrative decision-making and to enhance its legitimacy” [para. 42]. Accordingly, the Court decided that in depriving the tenants of a service they were receiving as a matter of right, City Power was obliged to afford them procedural fairness before taking a decision which would materially and adversely affect that right [para. 47]. The Court found that procedural fairness in this case included adequate notice (containing all relevant information) at least 14 days before disconnection [para. 61]. Implied in the affording of such notice is that users of the municipal service may approach the City, within the notice period, to challenge the proposed termination or to tender arrangements to pay off arrears [para. 63]. The order also declared that, to the extent the electricity by-laws permit the termination of electricity supply “without notice”, these by-laws are unconstitutional.

In addition the discontinuation of electricity supply to the applicant’s residence was found to be unlawful and the City was ordered to reconnect the building immediately [para. 78].

Additional Comments: This case addresses the State’s duty to respect ESC rights.

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Case of the Sawhoyamaxa Indigenous Community

Year: 2006 (Date of Decision: 29 March, 2006)

Forum, Country: Inter-American Court of Human Rights; Paraguay

Standards, Rights: Procedural fairness and due process; Right to life; Right to adequate standard of living; Right to adequate housing; Right to adequate food; Rights to water and sanitation; Indigenous people

Summary Background: The Sawhoyamaxa Community has historically lived in the lands of the Paraguayan Chaco, which since the 1930s have been transferred to private owners and gradually divided. This increased the restrictions for the indigenous population to access their traditional lands, thus bringing about significant changes in the Community’s subsistence activities and finally caused their displacement.

Holding: The Court found various violations of the ACHR, such as of article 8 and 25 (right to a fair trial and judicial protection), article 21 (right to property), article 4(1) (right to life), and article 3 (right to recognition as a Person before the Law), all of them in relation to article 1(1) (the obligation to respect rights) [paras. 112, 144, 178 and 194]. The Court ordered the Paraguayan government to adopt measures for returning the ancestral lands to the Community within three years [para. 215], to provide basic goods and services and implement an emergency communication system until they recovered their land [para. 230]. Moreover, a development fund for the Community in the amount of one million US dollars had to be created [para. 224], compensation in the amount of 20,000 US dollars was to be paid to the families of the 17 persons who died as the result of the forced displacement of the Community [para. 226] as well as for non-pecuniary damages, costs and expenses [para. 239].

Additional Comments: However, in the years following the judgement no progress was made toward the implementation of the judgements and the communities decided to unite their efforts and to ask Amnesty International to help them set up an international campaign designed to put pressure on the government.

The fact that the two communities were in the exact situation and undertook joint actions may have been an important factor in the enforcement process.

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Case of the Yakye Axa Indigenous Community

Year: 2005 (Date of Decision: 17 June, 2005)

Forum, Country: Inter-American Court of Human Rights; Paraguay

Standards, Rights: Procedural fairness and due process; Right to life; Right to adequate standard of living; Right to adequate housing; Right to adequate food; Rights to water and sanitation; Right to health; Right to education; Indigenous people

Summary Background: The Yakye Axa community, a Paraguayan indigenous community, has traditionally lived in the lands of the Paraguayan Chaco, large parts of which were sold through the London stock exchange at the end of the 19th century. In 1979, the Anglican Church began a comprehensive development program and fostered resettlement of the indigenous groups to Estancia El Estribo, where the natural environment and resources are different from those of the place of origin of these indigenous groups. While they stayed there, the community lacked adequate access to food and water, health services and education. Sixteen persons died due to these living conditions.

Holding: The Court found that Paraguay had violated various provisions of the American Convention on Human Rights (ACHR) in relation to article 1(1) (the obligation to respect rights), such as the right to a fair trial and judicial protection (article 8 and 25) [para. 119], the right to property (article 21) [para. 156] and the right to life (article 4) [para. 176], since it failed to adopt the necessary positive measures required to ensure the community lived under dignified conditions during the period they had to do without their land [para. 168-169]. The Court considered that Paraguay had failed to adopt adequate measures to ensure its domestic law guaranteed the community’s effective use and enjoyment of their traditional land and concluded that the State had the obligation to adopt positive measures towards a dignified life, particularly when high risk, vulnerable groups that require priority protection were at stake [para. 162]. The Court ordered the State to submit the traditional land to the community at no cost [para. 217], to establish a fund for the purchase of land for the community [para. 218], and to provide basic goods and services necessary for the community to survive as long as the Community remained landless [para. 221].

Moreover, the State was ordered to create a community development fund and a community program for the supply of drinking water and sanitary infrastructure. In addition, the Court ordered the State to allocate 950,000 US dollars to a community development program consisting of the implementation of education, housing, agricultural and health programs [para. 205]. Pecuniary damage had to be compensated and costs and expenses reimbursed within one year [para. 233].

Additional Comments: The Inter-American Court stated that it would supervise enforcement and ordered the State to submit a report on measures adopted within one year after the decision was notified [para. 241].

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Lemo v. Northern Air Maintenance (PTY) LTD

Year: 2004 (Date of Decision: 22 November, 2004)

Forum, Country: Industrial/Labour Court; Botswana

Standards, Rights: Non-discrimination and equal protection of the law; Procedural fairness; Right to decent work; Right to be free from torture and cruel, inhuman or degrading treatment or punishment

Summary Background: Issue at stake in this case: The applicant alleged dismissal from employment on the grounds that he was HIV positive. While the employer respondent did not expressly communicate this basis, the inference was raised as the applicant was dismissed one day after disclosing his positive status. It was noted that the respondent had been “accommodating” in permitting his employee to take extended unpaid leave over a three-year period due to his deteriorating health condition. The letter of termination listed “continual poor attendance over the last three years” as explanation for the cessation of employment. The Court addressed the question as to what, after three years of concessions, had actually triggered the dismissal of the applicant.

Holding: The Court found in favour of the applicant on the grounds of unfair dismissal and lack of procedural fairness. It rejected the respondent’s argument that it in fact sought to terminate the applicant’s contract one day prior to learning of his positive HIV/AIDS result, as there was no evidence that the applicant had been informed of a decision to dismiss him, nor was any valid reason given for his dismissal.

As the respondent largely authorized the applicant’s persistent absenteeism over three years, the Court rejected this as a valid ground for dismissal. Similarly, the applicant’s refusal to submit to medical examination by a private medical practitioner was not valid grounds for dismissal, as his fitness was already being assessed by a hospital. Thus even if the applicant were dismissed the day prior to disclosing his positive results, there was no valid reason for doing so.

The Court reiterated the interdiction on dismissal of an employee solely on the grounds of being HIV positive (citing Diau v. Botswana Building Society [2003]). While an HIV positive employee is not exempt from termination of employment, such action is only acceptable where the illness results in an inability to perform duties, as is the case with any illness or incapacity, in which case the normal rules of termination of services for inability apply. The Court warned of discriminatory practices towards HIV positive employees, which are at risk of violating section 7(1) of the Constitution, the prohibition on inhuman and degrading treatment. It condemned the unfair treatment of persons based on personal traits or circumstances that have “no relationship to individual capacities” [p. 7, para. H] and reaffirmed the constitutional principle of the elimination of discrimination at the workplace, enshrined in the International Labour Organization Declaration on Fundamental Principles and Rights at Work [para. A]. Additionally, the Court cited the ILO Termination of Employment Convention (1982) requiring dismissal based on a reason “connected with the capacity or conduct of the worker” [p. 6, para. E].

In sum, the respondent’s actions were found to be procedurally and substantively unfair. The Court emphasized that fair procedure requires the applicant to be consulted and warned that persistent absence may lead to dismissal, and that an employee must be granted the opportunity to ameliorate attendance performance, with full knowledge that failure to do so may result in dismissal.

The Court found it inappropriate to reinstate the applicant in his employment given the breakdown of relations and instead directed the respondent to pay compensation equivalent to six months of the applicant’s salary, as per section 19(2) of the Trade Disputes Act.

Additional Comments: The Court emphasized that modern antiretroviral drugs have largely curtailed the interference of the HIV/AIDS virus with the fulfilment of employment duties, and so the legitimacy of grounds for dismissal based on “incapacity” must be carefully scrutinized.

Full Citation: Lemo v. Northern Air Maintenance (PTY) LTD, 2004 (2) BLR 317 (IC), Industrial Court, Gaborone, Case No. IC No 166 of 2004, available at—ed_protect/—protrav/—ilo_aids/documents/legaldocument/wcms_242081.pdf

Copy of the decision on file with ICJ

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