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THIRD
SECTION
CASE OF
ŞTEFĂNICĂ AND OTHERS v. ROMANIA
(Application
no. 38155/02)
JUDGMENT
STRASBOURG
2 November 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Ştefănică and Others v. Romania,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Corneliu
Bîrsan,
Boštjan
M. Zupančič,
Egbert
Myjer,
Ineta
Ziemele,
Luis
López Guerra,
Ann
Power, judges,
and
Santiago Quesada, Section
Registrar,
Having
deliberated in private on 12 October 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 38155/02) against Romania
lodged with the Court on 7 October 2002 under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by eighteen Romanian
nationals (“the applicants”), whose details are set out
in the annex to this judgement (“the Annex”). Two of
the applicants died after the lodging of the request to the Court and
their heirs expressed their will to pursue the application. Their
details are also provided in the Annex.
- The
applicants were represented by Mr G. Teodorescu, a lawyer practising
in Bucharest. The Romanian Government (“the Government”)
were represented by their Agent, Mr
Răzvan Horaţiu
Radu, from the Ministry of Foreign Affairs.
- The
applicants complained about the inconsistent case-law of county
courts in Romania concerning the granting of compensatory payments
for collective dismissal from the same State-owned bank.
- On
4 March 2009, the President of the Third Section decided to
communicate the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicants are all Romanian citizens.
- The
facts, as submitted by the parties, may be summarised as follows.
- The
applicants are all former employees of B., a bank, which was involved
in a large restructuring process of State-owned companies in Romania,
entailing collective dismissals.
- The
collective dismissal of employees of B. took place in different
stages between September 1998 and October 1999. It affected hundreds
of persons across Romania working either in the central office or in
the local branches of the bank as follows: 632 persons dismissed in
September 1998, seventy persons dismissed in February 1999 and 725
persons dismissed in May 1999. No precise numbers were available for
the final stages of the dismissal process. From the case file, it
appears that the applicants were dismissed during the period
September 1998-October 1999.
- The
applicants made several attempts to receive compensatory sums for
collective dismissal (see paragraph 14 below) before the Bucharest
Employment and Vocational Training Agency (“the agency”),
a State agency entrusted with the disbursement of these
payments, but did not have any success.
- On
3 December 2000, they brought an action against the agency, seeking
to be granted the compensatory payments. They argued that according
to the applicable law, their right had arisen on the date on which
their contracts had been terminated. The fact that B. had failed to
submit to the agency a list of the persons whose contracts had been
terminated could not be imputed to the employees. Moreover, there was
established case-law upholding applications submitted by other former
employees in a similar situation from the same court of first
instance in Bucharest and in final decisions of higher courts across
the country.
- By
a judgment of 9 August 2001, Bucharest District Court upheld the
applicants' claim. It established that B. had only submitted to the
local agency a list of persons dismissed after 8 October 1999 and had
failed to send a list of persons dismissed before that date, even
though they were part of the same collective dismissal process. The
court considered that this failure gave rise to inequalities among
the people dismissed.
- Allowing
an appeal by the agency, the Bucharest County Court, by a final
decision
of 25
March 2002
(drafted
on 1st July 2002), reversed the first-instance
decision and concluded that the applicants did not meet the
requirements for receiving the compensatory payments. For the
applicants dismissed between September 1998 and May 1999, the
appellate court referred to another condition provided by the
national legislation, namely that the State Property Fund (FPS)
should have mandated its special representatives on the board of
shareholders to proceed with the reorganisation, in particular with
the collective dismissal. In the case at issue, the appellate court
established that such a mandate did not exist on the date when the
applicants were dismissed and therefore they were not entitled to
compensatory payments. For the applicants dismissed between August
and October 1999, the county court established that they did not meet
another condition, namely that they did not prove that they had taken
part in the pre-dismissal procedures. It concluded that the
applicants did not satisfy these specific conditions and dismissed
their claims.
- The
applicants submitted requests to the Procurator General for leave to
lodge an extraordinary appeal against the final decision, invoking,
inter alia, the existence of conflicting final decisions
concerning other former employees in the same situation as them,
namely those dismissed before October 1999. Their requests were
rejected.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Relevant legislation on compensatory payments for
collective dismissal
- Emergency
Ordinance no. 9/1997, as modified by Emergency Ordinance no. 52/1998,
provided that persons whose employment contracts were terminated due
to collective dismissal procedures were entitled to compensatory
payments ranging from six to twelve times the average net salary
nationwide. On 24 June 1999 the newly adopted Emergency
Ordinance no. 98/1999 changed the method for determining the quantum
of the compensatory payments, which since then has ranged from six to
twelve times the average net salary in the specific company.
- Article
46 of Emergency Ordinance no. 98/1999 obliged the employer company to
notify, in writing, the competent agencies of the collective
dismissal process, as approved in the restructuring programme, and to
provide lists of the staff to be dismissed. Based on those lists, the
competent agencies were required to provide pre-dismissal services,
including counselling and professional guidance. In order to be
eligible for compensatory payments, the persons who were part of a
collective dismissal had to take part in these pre-dismissal
programmes.
B. Case-law on similar claims
- In
similar cases, former employees of B., dismissed before October 1999,
requested recognition of their right to compensatory payments.
Following the agency's refusal to pay compensation, they lodged
complaints with the competent domestic courts. By different final
decisions rendered by county courts between June 2000 and September
2001, their right to compensatory payments was recognised. The
reasoning varied: some county courts considered that the condition
regarding the special mandate of the FPS was satisfied, others did
not even take this special condition into account.
The
condition regarding participation in the pre-dismissal procedures was
indirectly taken into account into some of the decisions. In those
decisions reference was made to the fact that the employer had failed
to submit to the competent agencies lists of the staff dismissed
before October 1999.
Some
decisions underline the fact that the collective dismissal took place
in different stages and that the persons dismissed before October
1999 had been deprived of the social protection provided by the
compensatory payments, even though the dismissal conditions had been
identical and there was no objective reason for such discrimination.
- Another
group of former employees, who were dismissed between August 1998 and
May 1999 and who lost their case by a final decision of the Bucharest
County Court of 31 January 2002, submitted a request to the
Procurator General for leave to lodge an extraordinary appeal (recurs
în anulare) in their favour. The latter accepted their
request and made a request in this respect to the Supreme Court of
Justice.
By a
final decision of 1 October 2003 the Supreme Court allowed the
extraordinary appeal and quashed the final decision delivered in that
particular case. It concluded that the lack of the special mandate of
the FPS (issued in August 1999) did not affect the right of persons
whose employment contracts had been terminated in the framework of a
collective dismissal to receive compensatory payments. It further
explained that in the event of a contrary interpretation, the effects
would be unacceptable because it would create discrimination between
persons placed in the same or similar positions. It also added that
in the event that the former employees were not involved in the
collective pre-dismissal procedures because of the negligence of the
employer, they were still entitled to receive compensatory payments.
- Subsequent
final decisions of the Bucharest Court of Appeal of 30 June 2003
and 3 September 2004 followed the same approach and recognised the
right to compensatory payments for former employees dismissed during
the same period of time as the applicants.
C. Domestic law on extraordinary appeals
- The
Romanian Code of Civil Procedure (“the CCP”) in force at
the time provided in its Article 330 that the Prosecutor General, ex
officio or upon request of the minister of justice, could lodge
an extraordinary appeal (“recurs in anulare”)
against final judicial decisions. This extraordinary appeal was
repealed from domestic law by a Government ordinance published on 26
June 2003.
- Article
329 of the CCP regulates another type of extraordinary appeal
(“recurs in interesul legii”). The provisions in
force at the time provided that in order to ensure uniform
interpretation and application of the law, the Prosecutor General, ex
officio or at the request of the minister of justice, could
request the Supreme Court of Justice to deliver a decision concerning
a legal issue which had received different solutions in the lower
courts. The decision thus delivered could not alter the outcome of
cases already decided. Amendments were made in 2005 and it was made
possible to recognise the right of the managerial boards of the
courts of appeal to lodge such a request with the High Court of
Cassation and Justice.
- Article
322 § 9 of the CCP further provides that a case may be reopened
in front of the domestic courts if the European Court of Human Rights
has found that a specific domestic decision violated fundamental
rights or liberties.
THE LAW
- Relying
on Articles 6 § 1, 2 § 1, 13 and 17 of the Convention the
applicants complained that the rejection of their claim by the
Bucharest County Court was contrary to the solution adopted at final
instance by other county courts across the country and that they had
thus been deprived of the compensatory payments to which they were
entitled. They also claimed that the domestic courts were not
impartial or independent and had delivered a wrongful decision in
their case.
- The
Court is master of the characterisation to be given in law to the
facts of the case and is not bound by the characterisation given by
an applicant or a government. A complaint is characterised by the
facts alleged in it and not merely by the legal grounds or arguments
relied on (see Powell and Rayner v. the United Kingdom, 21
February 1990, § 29, Series A no. 172, and Guerra and
Others v. Italy, 19 February 1998, § 44, Reports of
Judgments and Decisions 1998-I). Having regard to this, the
Court considers that the applicant's complaints are to be
examined under Article 6 § 1 of the Convention and Article 1 of
Protocol No 1 in conjunction with Article 14 of the Convention.
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants complained that the domestic courts had adopted
conflicting solutions in respect of similar legal issues. The
relevant provisions of Article 6 § 1 read as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 1 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties' submissions
- The
Government submits that conflicting case-law within a legal system
based on jurisdiction over specific geographic areas is not of itself
incompatible with the requirements of Article 6 § 1. According
to them, the applicants had failed to bring forward proof of a
divergent case-law adopted consistently at national level or by the
highest jurisdiction and had provided only a limited number of
examples of divergent solutions.
- The
Government further underlines that contrary to the factual situation
in the case of Beian v.
Romania (no. 1)
(no. 30658/05, ECHR 2007 XIII (extracts)), the
divergent case-law in the present case does not stem from the highest
court. They consider that it was within the competence of the
national judges to interpret the law and, in the absence of any
decision of the Supreme Court intended to create common practice, the
existence of different interpretations of the applicable legal
provisions does not amount to a breach of the principle of legal
certainty.
- In
respect of the decision delivered by the Supreme Court of Justice on
1 October 2003, the Government notes that it was not intended to
unify the practice of the lower courts, but concerned a specific
case. Nevertheless, they further draw attention to the fact that at
the time the domestic law provided for a remedy in case of divergent
jurisprudence, namely an appeal in the interest of law (see § 20
above).
- The
applicants disagreed with the Government's position and reiterated
that opposing final decisions had been reached in cases similar to
theirs.
2. The Court's assessment
- The
Court notes that it has previously concluded that certain divergences
in interpretation could be accepted as an inherent trait of any
judicial system which, like the Romanian one, is based on a network
of trial and appeal courts with authority over a certain territory
(see Zielinski and Pradal and Gonzalez and Others v. France
[GC], nos. 24846/94 and 34165/96 to 34173/96, § 59, ECHR
1999 VII). This conclusion was made with reference to legal
systems that had a supreme court whose precise role was to resolve
conflicts between decisions of lower courts (see Zielinski and
Pradal and Gonzalez and Others, cited above, and Schwarzkopf
and Taussik v. the Czech Republic (dec.), no. 42162/02, 2
December 2008).
- The
Court notes that the present case concerns a legal question affecting
former employees of B. who were part of the same collective dismissal
process. It accepts that the legal issue at stake was not a matter of
general concern to the whole of society, such as the conflicting
case-law on restitution at stake in the case of Tudor Tudor v.
Romania (no. 21911/03, § 31,
24 March 2009), but affected a clearly defined category of people.
However, it considers that the applicants, like any other citizen,
had the right to a fair trial in the determination of their civil
claims and the right to a fair trial includes the right to legal
certainty. It recalls in this respect its case-law according to which
the principle of legal certainty is implied in the Convention and
constitutes one of the basic elements of the rule of law (see Beian
(no. 1), cited above, § 39).
- The
Court considers that once a solution has been
adopted by a State to regulate the collective dismissal of hundreds
of persons from state-owned companies, it must be implemented with
reasonable clarity and coherence in order to avoid, in so far as
possible, uncertainty and ambiguity for the persons concerned by the
measures of implementation. In that context, it should be stressed
that uncertainty – be it legislative, administrative or arising
from practices applied by the authorities – is an important
factor to be taken into account in assessing the State's conduct (see
Broniowski v. Poland [GC],
no. 31443/96, § 151, ECHR 2004 V; Păduraru
v. Romania, no. 63252/00, § 92, ECHR 2005 XII
(extracts); and Beian
v. Romania
(no. 1),
cited above, § 33).
- The
Court notes that the judicial decisions available in the case file
and concerning the entitlement to compensatory payments concern
persons in a similar situation; namely, persons who had been
dismissed from different branches of the same company, before October
1999 and who had been denied by their employer the right to
compensatory payments. As they were not considered by the company to
have been part of a collective dismissal, the persons concerned
had also not been involved in the pre-dismissal procedures.
Furthermore, according to the Emergency Ordinance no. 98/1999, in
order to benefit from pre-dismissal assistance, their names would
have had to be provided to the agencies charged with providing these
services. As it appears from the various court decisions available in
the case-file, the employer did not provide the agencies with lists
of the persons dismissed before October 1999.
- The
Court notes further that, while the applicants' legal action for
compensatory payments was dismissed, final decisions of different
county courts recognised the right to such payments to persons in
similar situations. These contradictory solutions reveal an
inconsistent approach of the domestic courts in interpreting the
conditions set by the law for the award of compensatory payments
despite similar factual situations.
- Without
deeming it appropriate to pronounce as to what the actual outcome of
the applicants' lawsuit should have been (see mutatis mutandis,
Vinčić and Others v. Serbia, no. 44698/06 et seq. §
56, 1 December 2009), the Court considers that this diversity of
interpretation of national law by the different county courts ruling
as final instances led to judicial uncertainty in the adjudication of
similar civil claims.
- The
Court considers it necessary to analyse further the Government's
argument that there was a mechanism in place to ensure a uniform
interpretation of the applicable law. In this respect it notes that
the final instance courts with jurisdiction were the county courts
and, as a consequence, there was no possibility for the Supreme Court
of Justice to intervene in the adjudication of the cases during the
ordinary proceedings.
-
The applicants themselves applied to the Prosecutor General for leave
to lodge either one of the two extraordinary appeals and both
requests were refused. At the same time, a request from a different
set of plaintiffs was accepted and led to a favourable solution for
those concerned (see § 17 above). The decision delivered by the
Supreme Court of Justice in those extraordinary proceedings concerned
the particular application of law in that individual case and was not
meant to settle conflicting interpretations of national law (see
mutatis mutandis, Tudor Tudor, cited above, § 29).
Moreover, the Court reiterates its conclusion in the case of Tudor
Tudor (cited above) that where the intervention of the Supreme
Court was only possible by means of an extraordinary appeal that
contradicted in itself the principle of legal certainty.
The
Court acknowledges that a lower court's appreciation of the facts of
a case and its assessment of the evidence therein, may lead to
different outcomes for parties with broadly similar grievances. Such
reality does not, per se, violate the principle of legal certainty.
However,
where there are divergences in the application of substantively
similar legal provisions to persons in near identical groups, a
problem with legal certainty does arise. Such was the situation in
this case.
- In
the light of the foregoing considerations, the Court concludes that
in the absence of a remedy to resolve such divergences, the
inconsistent adjudication of claims brought by many persons in
similar situations led to a state of uncertainty, which in turn must
have reduced the public's confidence in the judiciary, such
confidence clearly being one of the essential components of a
State based on the rule of law (see mutatis mutandis,
Vinčić, cited above, § 56). The judicial
uncertainty in question has deprived the applicants of a fair
hearing.
- There
has consequently been a violation of Article 6 § 1 in this
connection.
- Having
regard to the above finding, the Court considers that it is not
necessary to pursue the examination of the remaining complaints under
Article 6 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 IN
CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION
- The
applicants complained in substance under Article 1 of Protocol No. 1
in conjunction with Article 14 of the Convention that they had been
deprived of compensatory payments, while others in a position similar
to theirs received those payments.
- Having
regard to the findings in paragraph 39 above, the Court considers
that it is not necessary to pursue the examination of these
complaints.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- In
respect of pecuniary damage, the applicants claimed jointly 198,000
euros (EUR), corresponding to the value of the compensatory payments
they considered they were entitled to, adjusted to the inflation
rate. The Government claimed that in the event that the Court finds a
violation, the applicants can avail themselves of Article 322 §
9 of the Code of Civil Procedure, which entitles them to address the
national courts with an extraordinary appeal (revizuire) in
order to restore the situation existing before the breach of the
Convention. In any event, the Government considered their claim to be
excessive and unreasonable.
- The
Court would state at the outset that a judgment in which it finds a
breach imposes on the respondent State a legal obligation to put an
end to the breach and make reparation for its consequences in such a
way as to restore as far as possible the situation existing before
the breach (see Brumărescu v. Romania (just
satisfaction) [GC], no. 28342/95, § 19, ECHR 2001 I,
and Former King of Greece and Others v. Greece [GC] (just
satisfaction), no. 25701/94, § 72).
-
Having regard to the violation found in the present case and the
reasons for that finding (see §§ 35 and 38 above,
particularly the reference to the outcome of the applicants'
lawsuits), as well as to the provisions of Article 322 § 9 of
the CCP (see paragraph 21 above), and in view of the principle of
subsidiarity, the Court considers that the applicants' claims must be
rejected.
- The
applicants also claimed EUR 90,000 for the non-pecuniary damage they
had sustained. The Government considered the sum excessive in the
light of the Court's case-law on similar cases.
- The
Court considers that the applicants undoubtedly sustained
non-pecuniary damage as a result of the breach of their right to a
fair trail. Making its assessment on equitable and reasonable bases,
the Court awards each applicant EUR 3,000 in respect of non-pecuniary
damage.
B. Costs and expenses
- The
applicants claimed an overall sum of EUR 3,000 EUR for costs and
expenses. In this respect, they submitted an itemised list that
included the drafting of legal documents submitted to the Court and
to domestic authorities seeking the lodging of extraordinary appeals.
They also submitted invoices for translation services (observations
and judicial decisions delivered in similar cases) of approximately
EUR 750.
- The
Government considered the claims to be excessive and disputed the
justification of the amounts claimed for under legal advice for
domestic extraordinary proceedings and translation services.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to the quantum.
- In
the present case, regard being had to the documents in its possession
and the above criteria, the Court considers it reasonable to make an
individual award of EUR 40 to each applicant, for costs and expenses
plus any tax that may be chargeable to them.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares
the complaint under Article 6 § 1 concerning the lack of legal
certainty admissible;
- Holds
that there has been a violation of Article 6 § 1 of the
Convention on account of breach of the principle of legal certainty;
- Holds
that there is no need to examine the admissibility or the merits of
the remainder of the complaints;
- Holds
(a) that
the respondent State is to pay to each applicant, within three months
of the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts which are to be to be converted into the respondent State's
national currency at the rate applicable on the date of settlement:
(i) EUR
3 000 (three thousand euros) in respect of non-pecuniary damage,
plus any tax that may be chargeable,
(ii) EUR
40 (forty euros), plus any tax that may be chargeable
to the applicants, in respect
of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 2 November 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
ANNEX
LIST
OF APPLICANTS
|
NO.
|
NAME
|
BORN
|
RESIDENCE
|
|
1.
|
Mariana Ştefănică
|
1957
|
Bucharest
|
|
2.
|
Aurora Vasile
|
1969
|
Bucharest
|
|
3.
|
Dorina Iliuţă
|
1954
|
Bucharest
|
|
4.
|
Emilia-Mihaela Florescu
|
1953
|
Bucharest
|
|
5.
|
Diana Nicula
|
1969
|
Bucharest
|
|
6.
|
Cristiana Curuţchi
|
1970
|
Bucharest
|
|
7.
|
Mariana Damian
|
1961
|
Bucharest
|
|
8.
|
Magdalena Dinu (Grecu, before divorce)
|
1967
|
Bucharest
|
|
9.
|
Carmen Gabriela Linţoiu
|
1965
|
Bucharest
|
|
10.
|
Ioana Oancea (deceased),
through acceptant heir Laura Mădălina
Oancea
|
1952
1983
|
Bucharest
Bucharest
|
|
11.
|
Adrian Cosmin Bratoşin
|
1973
|
Bucharest
|
|
12.
|
Elena Cristina Badea
|
1969
|
Bucharest
|
|
13.
|
Irina-Magda Bejenaru
|
1968
|
Bucharest
|
|
14.
|
Maria Magdalena Trif
|
1975
|
Bucharest
|
|
15.
|
Valeria Stamate
(deceased),
through acceptant heir Tudor Dan Stamate
|
1948
1980
|
Bucharest
Bucharest
|
|
16.
|
Melania -Aurelia Stan
|
1969
|
Bucharest
|
|
17.
|
Lizette Dumitrescu
|
1967
|
Bucharest
|
|
18.
|
Simona-Gabriela Voineagu
|
1968
|
Bucharest
|
