Přehled
Rozhodnutí
THIRD SECTION
FINAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 50034/99
by Olubukunola OBASA
against the United Kingdom
The European Court of Human Rights (Third Section), sitting on 15 November 2001 as a Chamber composed of
Mr G. Ress, President,
Mr I. Cabral Barreto,
Sir Nicolas Bratza,
Mr P. Kūris,
Mr B. Zupančič,
Mr J. Hedigan,
Mrs M. Tsatsa-Nikolovska, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application lodged on 30 April 1999 and registered on 29 July 1999,
Having regard to the partial decision of 30 November 2000,
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, Olubukunola Obasa, is a United Kingdom national, who was born in 1961 and lives in Wellingborough. She was represented before the Court by Mr P. Emmanuel, a solicitor practising in London.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant commenced employment as a social worker with the London Borough of Islington (“the Council”) on 4 September 1989. In April 1991, she submitted a formal complaint to the Council’s principal Equal Opportunities Officers alleging inter alia harassment and refusal of a promotion on grounds of race. She was interviewed by investigating officers in October 1991.
On 9 December 1991, the applicant presented an originating application to the Employment Tribunal alleging that she had been discriminated against as a black woman with a disability, inter alia, due to the decision to give a promotion to another employee instead of herself, the failure to transfer her to another post and the failure to assign her to a higher grade by giving due recognition to her professional qualifications. In her application, she relied on events going back to the commencement of her employment in 1989.
On 23 January 1992, one of the Council’s investigating officer informed the applicant that her complaints had been found to be unsubstantiated. The applicant sought to appeal the rejection of her complaints pursuant to the Council’s internal grievance procedure.
The Employment Tribunal held a hearing on 9 June 1992, at which the parties agreed that under section 68(1) of the Race Relations Act 1976, which required that complaints be presented within three months of the act complained of, the applicant could not rely upon events taking place before September 1990. Determination of the merits was considered to require detailed evidence and the matter was reserved for a further hearing.
On 24 June 1992, the Council made a request for further and better particulars of the originating application. The applicant replied on 24 November 1992.
While in the ordinary course of events according to the Government, the hearing on the merits would have been listed for hearing in the first half of 1993, the Council applied to the Employment Tribunal for the merits hearing to be postponed, on the grounds that it would be preferable to await the outcome of the applicant’s internal appeal. The matter was adjourned, the applicant making no objection to this adjournment.
The applicant’s internal appeal was heard by the Council on 28 April and 4 May 1993. By letter dated 13 May 1993, she was informed that her appeal had been rejected. However, with regard to the applicant’s transfer request the Council committee was concerned at the lack of evidence that any serious consideration was given to this matter and expressed the view that steps should be taken to find the applicant alternative work and to expedite her transfer. Pursuant to this decision, instructions were given to investigate options for a transfer. An offer of transfer was made to the applicant on 8 February 1994.
Following the determination of the internal appeal, the Tribunal resumed consideration of the applicant’s case, listing the case for a merits hearing on 11-13 May 1994. The case lasted longer than anticipated by the parties and it was adjourned and re-listed. The Council had indicated to the Tribunal on 13 May that it would be possible to reach a negotiated settlement. In the event a settlement was not reached and the Tribunal re-convened on 7 November 1994 for a further four days.
On 20 December 1994, the Tribunal issued its decision, finding that there had been discrimination by her employer in a number of procedural aspects.
The proceedings were adjourned for the parties to reach agreement as to the damages payable. The Council had already met with the applicant’s trade union representatives on 6 December 1994. Negotiations culminated in a meeting of 24 March 1995, in which the Council’s legal representatives agreed a settlement figure with the applicant subject to the approval of the elected members of the Council. On 3 April 1995, the Council informed the applicant that their members had rejected their officers’ recommendations and that no settlement was possible on the terms discussed. The applicant broke off the negotiations entirely the next day.
The Tribunal proposed listing the case in June 1995 but as these dates were not convenient for the Council and it appears that the applicant was not available in June 1995 the date was fixed for 11 September 1995. After a remedies hearing on that date, the Tribunal made the applicant an award of 24,952.51 pounds sterling (GBP), which decision issued on 9 October 1995.
The Council appealed to the Employment Appeal Tribunal (EAT). Its notice of appeal had been lodged on 27 January 1995, as it was required to be lodged within 42 days of the merits decision.
On 3 October 1995, an ex parte preliminary hearing was held by the EAT to determine whether the appeal had reasonable prospects of success. It ordered that the appeal should proceed to a full hearing and required the Employment Tribunal’s notes of evidence to be disclosed. These consisted of some 50 pages. After their transcription, the EAT sent out a listing notice on 11 July 1996, giving a hearing date of 17 September 1996.
After the hearing, the EAT delivered judgment on 28 October 1996. It quashed the findings of discrimination. It found the procedure by which appeals concerning discrimination had to be particularised could not be categorised itself as discriminatory and there was no conduct in implementing the policy which had been identified as discriminatory.
On 12 December 1996, the applicant filed an application for permission to appeal to the Court of Appeal. Permission was granted by the Court of Appeal on 3 February 1997. The applicant lodged her notice of appeal on 11 February 1997. The bundles of documents were filed on 21 May 1997.
After a hearing, on 16 February 1998 at which the applicant was represented, the Court of Appeal rejected the applicant’s appeal.
The Court of Appeal refused leave to appeal to the House of Lords on 19 March 1998.
On 27 March 1998, the applicant sought leave to appeal to the House of Lords. In her petition, she requested exemption under House of Lords Standing Order XIII from the lodgement fee as she was no longer in receipt of legal aid. In July 1998, the Appeal Committee of the House of Lords decided to waive the fee. The petition was then formally lodged in July 1998. The applicant supplied the transcripts necessary for the application on 30 November 1998. The House of Lord refused leave on 26 April 1999.
COMPLAINT
The applicant complains under Article 6 that her claims of discrimination were not determined before the courts within a reasonable time contrary to Article 6 of the Convention.
THE LAW
The applicant’s complaint relates to the length of the proceedings, which began on 9 December 1991 and ended on 26 April 1999 with the refusal by the House of Lords of leave to appeal. They therefore lasted seven years and approximately four months. According to the applicant, the length of the proceedings is in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention. The Government reject the allegation.
The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant’s conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.
For these reasons, the Court by a majority
Declares admissible, without prejudging the merits, the applicant’s remaining complaint concerning the length of proceedings.
Vincent Berger Georg Ress
Registrar President