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THIRD SECTION
CASE OF ALBU AND OTHERS v. ROMANIA
(Applications nos. 34796/09 and 63 other cases)
(see Appendix for other applications)
JUDGMENT
STRASBOURG
10 May 2012
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 Albu and Others v. Romania,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Josep Casadevall,
President,
Egbert Myjer,
Ján Šikuta,
Ineta
Ziemele,
Nona Tsotsoria,
Mihai
Poalelungi,
Kristina Pardalos, judges,
and
Santiago Quesada, Section
Registrar,
Having deliberated in private on 10 April 2012,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
5. As Mr Corneliu Bîrsan, the judge elected in respect of Romania, had withdrawn from the case (Rule 28 of the Rules of Court), the President of the Chamber appointed Mr Mihai Poalelungi to sit as ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1 of the Rules of Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASES
The aforesaid allowances were to be paid retroactively, starting from April 2004, but also in the future, until the applicants’ contracts ended.
At the same time, the applicants requested that these entitlements be noted in their employment record books.
On 19 May 2008 their employer dismissed the petition as ill-founded.
In any event, they considered that the suspension was in breach of Articles 41 and 53 of the Constitution, and that the allowances claimed were therefore to be paid retroactively, from 2004 onwards.
The two supplements were first provided for by section 29 of Law no. 161/2003 of 16 April 2003, but without any indication as to the exact amount. In fact, none of the subsequent legal texts on civil servants’ salary rights made any reference to a method or criterion for determining the amount of any of the supplements.
Hence,
even though Law no. 188/1999 expressly stated that a civil servant’s
salary was also composed of the grade supplement and the
salary-step
supplement, the determination of these rights was left to the
executive, which was entitled to set out rules for the application of
the law. Consequently, the court held as follows:
“In the absence of a legal act issued or adopted by the executive in which the amount of the two allowances claimed is defined, the court does not have jurisdiction to determine by itself the amounts, as this would undermine the separation of powers principle by encroaching on the powers of the administrative authorities.
The court therefore holds that in the above-mentioned circumstances, the respondent cannot be ordered to pay the allowances claimed before their amount has been determined.”
The applicants alleged that the interpretation of the applicable legal provisions given by the court in refusing to allow their claims rendered those texts completely ineffective and thus devoid of any substance.
Moreover,
such an interpretation was discriminatory and in breach of Article 14
of the Convention, in so far as there was consistent national
case-law granting other claimants (also civil servants) the right
to the supplements in question. The discrimination was even more
disturbing given that another person, S.S.M., employed by the same
institution as them, had obtained the allowances following a decision
of 21 March 2008 given by the same first-instance court,
the Caraş Severin County Court. That decision had been upheld by
the Timişoara Court of Appeal on 2 October 2008, when
it became final.
The court noted that there was no legal justification for claiming the allowances in an amount of 25% of the basic salary, and consequently for allowing such a claim, as the figure in question was not laid down anywhere in the law.
In that connection, in order to be able to determine the exact amount of the allowances in question, additional legislation was needed, either in the form of legal provisions adopted by the legislature designed to regulate the application of section 31, or in the form of instructions issued by the Government in a separate legal text designed to explain how the law should be applied.
The Court of Appeal also referred to the Constitutional Court’s case-law to the effect that:
“The courts do not have jurisdiction to repeal or to refuse to apply specific normative acts which they consider to be discriminatory, and thus to replace them with norms created by judicial intervention or with provisions contained in other normative acts.”
Therefore, the court considered that it could not allow the applicants’ claims, in so far as those claims had not been determined by the competent authorities.
Regarding the divergent case-law referred to by the applicants in their arguments, the court held that in the Romanian legal system, legal precedents were not a source of law and therefore could not be taken into consideration.
On the applicability of Article 1 of Protocol No. 1 to the Convention, the court mentioned that the applicants had not proved the existence of a “possession”, or at least of a “legitimate expectation”, since the case-law on the matter was not well-established.
Furthermore, the court held that the Labour Code was not applicable to civil servants, as they were appointed to their posts on the basis of Law no. 188/1999. The appointments were thus made by means of individual administrative acts which did not make any reference to the allowances in question and, in any event, had not been contested by any of the applicants at the time of their appointment.
In conclusion, the applicants’ claims were dismissed as unfounded.
II. RELEVANT DOMESTIC LAW AND PRACTICE
1. The Public Servants’ Statute
Section 29
“1. For discharging their activities public servants shall have the right to a salary composed of the following:
(a) the basic salary
(b) seniority allowance
(c) grade allowance
(d) step allowance
2. Public servants shall be granted bonuses and other salary entitlements, in accordance with the law.
3. The remuneration of public servants shall take place in accordance with [the criteria] set forth in the law on the implementation of a uniform remuneration scheme for public servants.”
On 19 July 2006, point (d) was amended to read “allowance corresponding to the salary step”. With effect from 1 June 2007, section 29 became section 31, while no amendments were made to the content.
The application of these provisions was suspended from 2004 until 2006, first by Law no. 164/2004 of 15 May 2004, then by Government Emergency Ordinance no. 92/2004, enacted as Law no. 76/2005, and then by Government Ordinance no. 2/2006, enacted as Law no. 417/2006.
With effect from 1 January 2010 the two allowances, namely the grade supplement and the allowance corresponding to the salary step, were abolished by Law no. 330/2009.
2. Case-law on similar claims
“It is irrelevant that the legal text did not lay down the exact amount of the salary entitlements in question, as this cannot constitute a well-founded reason for dismissing the claims; such an interpretation would render ineffective the legal provisions concerned, which are part of the positive law, and this would be inconceivable.”
In another judgment submitted by the applicants, the Suceava Court of Appeal held on 5 June 2008 in a similar case that the claimants, employees of the Suceava District Employment Agency, were entitled to the allowances in question, as the corresponding rights were provided for by the law, it being irrelevant whether their amount was determined or not.
3. The appeal in the interests of the law of 21 September 2009
The High Court delivered its judgment on 21 September 2009, confirming the existence of a divergence in the case-law concerning the interpretation of section 31(1) (c) and (d) of Law no. 188/1999, while also setting out guidelines for a uniform interpretation of the text, as follows:
“For the uniform interpretation and application of Article 31(1) (c) and (d) of Law no. 188/1999, the High Court holds that, in the absence of a legal determination of their amount, the grade allowance and the allowance relating to the salary step cannot be granted by the judiciary.”
The High Court further held that the entitlements claimed by the public servants did not constitute a “possession”, as, in the absence of criteria for their calculation, they were only “virtual rights”.
According to Article 329 of the Romanian Civil Code of Procedure, the High Court’s interpretation of the provisions in question is binding on all the domestic courts. A decision delivered on an appeal in the interests of the law cannot alter the outcome of cases already decided.
Following the adoption of the above-mentioned judgment, the divergent case-law on the issue ceased and the domestic courts followed the High Court’s guidelines (see also Zelca and Others v. Romania (dec.), no. 65161/10, §15, 6 September 2011).
III. RELEVANT INTERNATIONAL LAW INSTRUMENTS
A. Report on the Rule of Law by the Venice Commission,
25-26 March 2011
B. Preliminary conclusions and observations by the UN Special Rapporteur on the Independence of Judges and Lawyers
C. Opinion no.11 (2008) of the Consultative Council of European Judges (CCJE) for the attention of the Committee of Ministers of the Council of Europe on the quality of judicial decisions
“...
47. While recognising the judges’ power to interpret the law, the obligation of the judges to promote legal certainty has also to be remembered. Indeed legal certainty guarantees the predictability of the content and application of the legal rules, thus contributing in ensuring a high quality judicial system.
48. Judges will apply the interpretative principles applicable in both national and international law with this aim in mind. ... In civil law countries, they will be guided by case law, especially that of the highest courts, whose task includes ensuring the uniformity of case law.
49. Judges should in general apply the law consistently. However when a court decides to depart from previous case law, this should be clearly mentioned in its decision. ....”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6, TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION
Article 6 § 1
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
Article 14
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
A. Admissibility
ill-founded within the meaning of Article 35 § 3 (a) 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
As to the persistence and degree of the impugned divergence, the Government argued that since 2008 the national courts had taken a varying approach to the interpretation of the legal texts concerning the specific allowances to be granted to public servants. Some courts had dismissed such claims from the very beginning, whereas others had allowed them at first and then gradually started to change their own case-law, especially following the meetings with judges organised on 19 November 2008 and 10 April 2009 by the Supreme Council of Magistracy committee on the harmonisation of domestic case-law. In both of those meetings it had been agreed that a divergence existed concerning the interpretation of the legal texts governing specific allowances for civil servants. The members of the committee had agreed that the lodging of an appeal in the interests of the law was necessary in order to put an end to the divergence. Taking as a starting-point the findings made by the committee on 13 May 2009, the Prosecutor General had lodged an appeal in the interests of the law which had been allowed by the High Court of Cassation and Justice on 21 September 2009, thus marking the end of the divergence on the subject.
Moreover, the High Court’s interpretation of the applicable legal texts coincided with the approach taken by the courts in the applicants’ cases. This was further proof that there had been no breach of Article 6 of the Convention (the Government cited Usnul v. the Czech Republic (dec.), no. 33945/06, 29 March 2011, and Karakaya v. Turkey (dec.), no. 30100/06, 25 January 2011).
Furthermore, the Government reiterated that even though the issues complained of in the present cases affected a large number of people, namely the social category of public servants, this was not decisive for the existence of a structural problem.
case-law in Romania.
An appeal in the interests of the law was the main instrument capable of putting an end to differing approaches in the domestic case-law. In this connection the Government mentioned that, with effect from 26 October 2010, the provisions governing this kind of appeal had changed, making it more effective. The list of those who had locus standi to lodge such appeals had been extended to include the Minister of Justice, the Management Board of the High Court of Cassation and Justice, the management boards of the courts of appeal and the Ombudsman.
The efficiency of this mechanism was also borne out by the statistics. In 2008, the High Court had ruled on 46 appeals in the interests of the law, all of which had been allowed; in 2009, 2010 and 2011, the respective figures had been as follows: 38 appeals, of which 26 had been allowed, 9 of which 8 had been allowed, and 11 of which 10 had been allowed.
From 2005 to 2011, the High Court had ruled on 24 appeals in the interest of the law concerning the interpretation of various legal texts governing salary entitlements; 21 of these had been allowed.
Referring to the Court’s case-law on similar issues (Tudor Tudor, cited above; Veselinski v. “the former Yugoslav Republic of Macedonia”, no. 45658/99, 24 February 2005; Ferrazzini v. Italy [GC], no. 44759/98, ECHR 2001 VII; and Karakaya, cited above), the Government asked the Court to dismiss the complaint as ill-founded.
2. The Court’s assessment
(a) General principles
(i) It is not the Court’s function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 I). Likewise, it is not its function, save in the event of evident arbitrariness, to compare different decisions of national courts, even if given in apparently similar proceedings, as the independence of those courts must be respected (see Ādamsons v. Latvia, no. 3669/03, § 118, 24 June 2008);
(ii) The possibility of conflicting court decisions is an inherent trait of any judicial system which is based on a network of trial and appeal courts with authority over the area of their territorial jurisdiction. Such divergences may also arise within the same court. That, in itself, cannot be considered contrary to the Convention (see Santos Pinto v. Portugal, no. 39005/04, § 41, 20 May 2008, and Tudor Tudor, cited above, § 29);
(iii) The
criteria that guide the Court’s assessment of the conditions in
which conflicting decisions of different domestic courts ruling at
last instance are in breach of the fair trial requirement enshrined
in Article 6 § 1 of the Convention consist in
establishing whether “profound and
long-standing
differences” exist in the case-law of the domestic courts,
whether the domestic law provides for machinery for overcoming these
inconsistencies, whether that machinery has been applied and, if
appropriate, to what effect (see Iordan Iordanov and Others,
cited above, §§ 49-50; see also Beian (no.
1), cited above, §§ 34 40; Ştefan and
Ştef v. Romania, nos. 24428/03 and 26977/03, §§
33-36, 27 January 2009; Schwarzkopf and Taussik,
cited above, 2 December 2008; Tudor Tudor, cited above, §
31; and Ştefănică and Others, cited above, §
36);
(iv) The Court’s assessment has also always been based on the principle of legal certainty which is implicit in all the Articles of the Convention and constitutes one of the fundamental aspects of the rule of law (see, amongst other authorities, Beian (no. 1), cited above, § 39; Iordan Iordanov and Others, cited above, § 47; and Ştefănică and Others, cited above, § 31);
(v) The principle of legal certainty, guarantees, inter alia, a certain stability in legal situations and contributes to public confidence in the courts. The persistence of conflicting court decisions, on the other hand, can create a state of legal uncertainty likely to reduce public confidence in the judicial system, whereas such confidence is clearly one of the essential components of a State based on the rule of law (see Paduraru v. Romania, § 98, no. 63252/00, ECHR 2005-XII (extracts); Vinčić and Others v. Serbia, nos. 44698/06 and others, § 56, 1 December 2009; and Ştefănică and Others, cited above, § 38);
(vi) However, the requirements of legal certainty and the protection of the legitimate confidence of the public do not confer an acquired right to consistency of case-law (see Unédic v. France, no. 20153/04, § 74, 18 December 2008). Case-law development is not, in itself, contrary to the proper administration of justice since a failure to maintain a dynamic and evolutive approach would risk hindering reform or improvement (see Atanasovski v. “the Former Yugoslav Republic of Macedonia”, no. 36815/03, § 38, 14 January 2010).
(b) Application of these principles to the present cases
Divergences of approach may arise between the courts as part of the process of interpreting legal provisions while adapting them to the material situation. These divergences may be tolerated when the domestic legal system is capable of accommodating them (see Nejdet Şahin and Perihan Şahin, cited above, §§ 86-87).
While the accommodation of divergences in isolated cases (see Karakaya, cited above) may in practice prove to be less demanding, however, when the divergence involves judicial matters affecting large parts of the public, their confidence in the judicial system may be particularly undermined. It is why the system must put in place effective mechanisms that need to be fully and promptly implemented via the highest courts responsible for ensuring the uniformity of the case-law, so as to rectify at the appropriate juncture any inconsistencies in the decisions of the various domestic courts and thus maintain public confidence in the judicial system.
It remains therefore to be examined whether the national system provides a mechanism capable of ensuring consistency in the practice of the national courts, notwithstanding the fact that the process of unifying and ensuring the consistency of the case-law may require a certain amount of time (see Schwarzkopf and Taussik, cited above).
The High Court’s ruling brought the divergence on this subject to an end, as the Court has already acknowledged in its decision in Zelca and Others v. Romania (no. 65161/10, 6 September 2011), a case very similar to the present ones. In that decision (see § 15), the Court held that the mechanism provided for by Article 329 of the Romanian Code of Civil Procedure, as a mechanism designed to resolve, and not preclude, conflicting court decisions, had proved to be effective, since in a reasonably short period of time it had put an end to the divergence in the case-law concerning the issue of the granting of grade and salary-step allowances to public servants.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
However, no legitimate expectation can be said to arise where there is a dispute as to the correct interpretation and application of domestic law and the applicant’s submissions are subsequently rejected by the national courts (ibid., § 50).
In this connection, it cannot be argued that the applicants had a possession within the meaning of Article 1 of Protocol No. 1. Likewise, as to the existence of a general climate of uncertainty, incompatible with the concept of “settled case-law”, regarding the outcome of the proceedings brought by the applicants, the Court considers that the latter cannot be said to have had a “legitimate expectation” either (see, mutatis mutandis, Liepājnieks v. Latvia (dec.), no. 37586/06, 2 November 2010, §§ 95-96).
Moreover, the High Court’s ruling of 21 September 2009 on the appeal in the interests of the law, which ended the divergence on the matter, confirmed that civil servants were not entitled to the allowances claimed, an interpretation which was in line with what the court of appeal had held when it dismissed the applicants’ claims.
It follows that the applicants did not have a possession within the meaning of Article 1 of Protocol No. 1.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Done in English, and notified in writing on 10 May 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago
Quesada Josep Casadevall
Registrar President
|
No. |
Application no. |
Lodged on |
Applicant’s name, date of birth, place of residence |
|
|
34796/09 |
10/06/2009 |
Dorin Petru ALBU 13/06/1959 Baile Herculane
|
|
|
34797/09 |
10/06/2009 |
Ana ANGHELOIU 23/02/1955 Resita
|
|
|
34798/09 |
10/06/2009 |
Stefania BONTEA 08/04/1954 Resita
|
|
|
34799/09 |
10/06/2009 |
Marioara Viorica BUDIMIR 20/08/1951 Resita
|
|
|
34800/09 |
10/06/2009 |
Ion BERBENTEA 18/07/1957 Resita
|
|
|
34801/09 |
10/06/2009 |
Simona BENGA 12/08/1975 Resita
|
|
|
34802/09 |
10/06/2009 |
Claudiu Mihai BALABAN 30/10/1978 Resita
|
|
|
34803/09 |
10/06/2009 |
Gheorghe Vasile BALAJ 24/02/1969 Resita
|
|
|
34804/09 |
10/06/2009 |
Codrut Dan BUCATES 21/08/1969 Resita
|
|
|
34805/09 |
10/06/2009 |
Sebastian BUZORI 04/10/1973 Bocsa
|
|
|
34806/09 |
10/06/2009 |
Floarea BOROZAN 17/01/1971 Bania
|
|
|
34807/09 |
10/06/2009 |
Emanuel CRING 27/02/1969 Moldova Noua
|
|
|
34808/09 |
10/06/2009 |
Daniela CORICOVAC 11/02/1970 Resita
|
|
|
34809/09 |
10/06/2009 |
Iulica DINA 01/08/1970 Resita
|
|
|
34810/09 |
10/06/2009 |
Marius DUMBRAVA 16/11/1962 Resita
|
|
|
34811/09 |
10/06/2009 |
Elena DRAGHICESCU 27/01/1954 Otelu Rosu
|
|
|
34812/09 |
10/06/2009 |
Ovidiu George DRAGILA 27/02/1976 Resita
|
|
|
34813/09 |
10/06/2009 |
Gheorghe DRAGHICI 06/07/1967 Resita
|
|
|
34814/09 |
10/06/2009 |
Maria DITESCU 29/03/1963 Resita
|
|
|
34815/09 |
10/06/2009 |
Daniela Lavinia DANILIUC 30/05/1980 Moldova Noua
|
|
|
34816/09 |
10/06/2009 |
Mircea Laurentiu GRIGORE 26/09/1968 Resita
|
|
|
34817/09 |
10/06/2009 |
Ileana HREBENCIUC 22/08/1963 Resita
|
|
|
34818/09 |
10/06/2009 |
Caius ISAC 05/11/1962 Resita
|
|
|
34819/09 |
10/06/2009 |
Dorina GROZA 28/03/1951 Bocsa
|
|
|
34820/09 |
10/06/2009 |
Carla Maria GOAGA 10/08/1972
|
|
|
34821/09 |
10/06/2009 |
Lenuta Liliana LINTA 10/11/1969 Resita
|
|
|
34822/09 |
10/06/2009 |
Viorel Florin LAZAR 17/09/1974 Caransebes
|
|
|
34823/09 |
10/06/2009 |
Dorin Ioan LUCA IORGA 14/07/1974 Bocsa
|
|
|
34824/09 |
10/06/2009 |
Alina LOTOROSANU 17/12/1981 Resita
|
|
|
34825/09 |
10/06/2009 |
Ramaian MITRICA 04/09/1979 Resita
|
|
|
34826/09 |
10/06/2009 |
Maria MURGU 05/10/1973 Resita
|
|
|
34827/09 |
10/06/2009 |
Ion MARAN 07/05/1967 Ciclova Romana
|
|
|
34828/09 |
10/06/2009 |
Florica MALACHI 19/10/1957 Resita
|
|
|
34829/09 |
10/06/2009 |
Carmen NECHITA 15/12/1952 Baile Herculane
|
|
|
34830/09 |
10/06/2009 |
Nicolae NEGRU 30/10/1953 Moceris
|
|
|
34831/09 |
10/06/2009 |
Nicolae NOVACESCU 13/04/1963 Caransebes
|
|
|
34832/09 |
10/06/2009 |
Cristian Sandel PAPUC 09/09/1972 Resita
|
|
|
34833/09 |
10/06/2009 |
Marius PUIE 18/04/1977 Resita
|
|
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34834/09 |
10/06/2009 |
Alina Silvia ROSCA 23/09/1971 Resita
|
|
|
34835/09 |
10/06/2009 |
Alina Domnica PETRE 16/08/1974 Resita
|
|
|
34836/09 |
10/06/2009 |
Constanta POP 20/05/1958 Resita
|
|
|
34837/09 |
10/06/2009 |
Daniela PRUNA 10/08/1965 Resita
|
|
|
34838/09 |
10/06/2009 |
Lidia RADU 10/05/1954 Anina
|
|
|
34839/09 |
10/06/2009 |
Emilian Marius RADOI 04/09/1971
|
|
|
34840/09 |
10/06/2009 |
Alexandru SUTA 29/10/1956 Resita
|
|
|
34841/09 |
10/06/2009 |
Ion STIRBU 28/02/1953 Resita
|
|
|
34842/09 |
10/06/2009 |
Loredana STAMATE 27/02/1975 Resita
|
|
|
34843/09 |
10/06/2009 |
Mihaela STETA 28/01/1965 Resita
|
|
|
34844/09 |
10/06/2009 |
Ana TOMA 22/06/1951
|
|
|
34845/09 |
10/06/2009 |
Calina TURCIN 15/11/1964 Obreja
|
|
|
34846/09 |
10/06/2009 |
Elisabeta TOMA 22/08/1958 Resita
|
|
|
34847/09 |
10/06/2009 |
Marius ZAVELCUTA 07/07/1975 Resita
|
|
|
34848/09 |
10/06/2009 |
Dumitru MIU 28/12/1949 Resita
|
|
|
34849/09 |
10/06/2009 |
Iosif CORCAN 11/07/1945 Resita
|
|
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34850/09 |
10/06/2009 |
Florina Veronica LUNGU 12/07/1973 Resita
|
|
|
34851/09 |
10/06/2009 |
Gheorghe Sabin POP 02/07/1954 Resita
|
|
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34852/09 |
10/06/2009 |
Virginia MIU 25/10/1961 Resita
|
|
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34853/09 |
10/06/2009 |
Nicolae ARDELEAN 09/07/1945 Oravita
|
|
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34854/09 |
10/06/2009 |
Ioan Mihai BALMEZ 08/11/1957 Resita
|
|
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34855/09 |
10/06/2009 |
Rodica Stefania BIRCEA 21/05/1966 Resita
|
|
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34856/09 |
10/06/2009 |
Dorin TANASESCU 25/05/1963 Resita
|
|
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34857/09 |
10/06/2009 |
Erika INISCONI 28/07/1972 Resita
|
|
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34858/09 |
10/06/2009 |
Ion VISAN 26/01/1952 Resita
|
|
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34859/09 |
10/06/2009 |
Aneta NEGOIANU 12/09/1957 Resita
|