Monitoring of civil proceedings on the collection of fines and penalties for unpaid leave (court hearing on 10.28.2021)
On October 28, 2021 In the court of first instance in Yerevan, in the building of the court of first instance of the capital communities of Arabkir, a court hearing was held in a civil case: Lyudmila Avagyan versus CJSC “Derzhava-S” on the recovery of a fine and penalty for unpaid compensation and untimely paid compensation for unused vacation.
Lyudmila Avagyan was present at the hearing, representatives of “Derzhava-S” CJSC did not appear.
The case was at the stage of judicial inquiry. Since the representatives of “Derzhava-S” CJSC were absent, the court once again turned to Lyudmila Avagyan to present her claims. Lyudmila Avagyan stated that her demand is a desire to receive compensation.
The court informed Lyudmila Avagyan that she would receive the judgment by mail.
According to Article 179 of the RA Civil Procedure Code, the court decision in accordance with the procedure established by this Code is announced within 15 days after the end of the trial, unless a shorter period is established for the announcement of the decision by the law. A copy of the decision is sent to the persons participating in the case, no later than the next day after its announcement, if before that it was not handed over to them.
Guided by this article of the RA Civil Procedure Code, Lyudmila Avagyan has the right not to be present at the announcement of the court’s decision and to receive it by mail in a letter sent by the court secretariat.
This trial has a long history. On November 2, 2018, Lyudmila Avagyan filed a lawsuit in the court of general jurisdiction of the city of Yerevan. It should be noted that at the preliminary hearing of the case, Lyudmila Avagyan stated that she had never been on vacation during the years of her work at “Derzhava-S” CJSC (from January 1, 2005 to July 1, 2017).
The defendant CJSC “Derzhava-S” did not respond to the claim within two weeks established by law. The defendant company was informed about the time and place of the hearing but did not appear at the hearing. Lyudmila Avagyan’s claim against “DERZHAVA-S” CJSC was rejected by the court decision of May 22, 2020, with the justification that the obligation to prove the monthly salary was imposed on Lyudmila Avagyan by the decision of 10/25/2019, but the latter did not provide any evidence on this circumstance that objectively deprives the court of the opportunity to assess the amount of the plaintiff’s compensation.
However, Lyudmila Avagyan appealed this decision, because she considered that there was a violation of the norms of substantive and judicial-procedural law and asked the Civil Appeal Court to cancel this decision and send it to the court of first instance for reconsideration. During the investigation of this case, the Court of Appeal considered that there were enough grounds for appeal to overturn the verdict and send the case for a full reconsideration to the court of first instance of the city of Yerevan.
On February 17, 2021, the civil case was admitted for retrial in the Court of First Instance of Yerevan. According to the plaintiff, the defendant did not appear in court, and therefore the hearings in the case were constantly postponed.
In addition to the above, one should pay attention to the decision of the RA Court of Cassation (ԵԿԴ / 3516/02/08), which clearly stated that the employer must pay for all unused vacation days.
The employee’s right to paid vacation is not only a right enshrined in the RA Constitution and the RA Labor Code, but is also based on international legal norms enshrined in the Revised European Social Charter (part 2, Article 2, subparagraphs 2 and 3), which defines, that “Ensuring and effective implementation of the right to fair working conditions, the Parties undertake … to provide paid days off … to provide an annual 4-week vacation …” and the ILO Convention (revised) 132 “On paid leaves”, (ratified by Armenia on 10.03.2005) which determines the right to monthly leave. As well as other norms for the implementation of this right, such as the International Covenant on Economic, Social and Cultural Rights guaranteeing the right to periodic leave in Article 7.
At the court session held on October 28, no procedural violations were recorded during the hearing of the case, but it should be noted that once again the Defendant and his legal representatives did not appear in court and did not provide the court with evidence in the case. Considering that the re-examination of the case has been dragging on for 8 months, such actions can be regarded as delaying the trial and violating the right to a fair trial. Moreover, in the opinion of the ISHR, domestic courts should be diligent to ensure that the proceedings are prompt and effective (see, for example, paragraph 36 of the ECtHR judgment in the case of “Shtepa v. Ukraine”). Moreover, this position of the European Court does not contradict Armenian legislation, Article 147 of the RA Civil Procedure Code states that the failure to appear at the court session of the person participating in the case, notified of the time and place of the court session, is not an obstacle to the consideration of the case.
Expert Council of the ISHR, member of the Armenian Section of the ISHR
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