Simon CROITORU v Romania - 3205/03 [2010] ECHR 1493 (14 September 2010)

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The European Court of Human Rights (Third Section), sitting on 14 September 2010 as a Chamber composed of:

Josep Casadevall, President,
Elisabet Fura,
Corneliu Bîrsan,
Boštjan M. Zupančič,
Alvina Gyulumyan,
Egbert Myjer,
Luis López Guerra, judges,
and Santiago Quesada, Section Registrar,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

The applicant, Mr Simon Croitoru, is a Romanian national who was born in 1924 and lives in Holon, Israel. He was represented before the Court by Ms. N. Popescu, a lawyer practising in Bucuresti. The Romanian Government (“the Government”) are represented by their Agent, Mr Răzvan-Horaţiu Radu, of the Ministry of Foreign Affairs.

The facts of the case, as submitted by the parties, may be summarised as follows.

Between 23 August 1942 and 23 August 1944, the applicant, who is of Jewish origin, was compelled to carry out forced labour pursuant to the racist legislation passed by the Antonescu Government.

Once the war was over, starting in 1945 and until his retirement in 1969, the applicant worked for the Ministry of the Interior and for several other administrative entities.

On 19 September 1997 the Ministry of the Interior's Pension Department issued a decision, based on Decree no. 214/1977, which regulates military pensions, granting the applicant his pension rights (500 237 lei (ROL) per month) with effect from 1 September 1997.

The applicant empowered M.N., who was resident in Romania, to cash his pension at the Post Office to which the money was sent.

From June until September 2002, M.N. collected the money without sending it to the applicant. The proxy was consequently revoked.

The pension payments corresponding to October and November 2002 were returned by the Post Office to the Military Insurance Office, as the money had never been collected and the Post Office had been unable to contact M.N.

On 9 July 2002, in reply to a letter sent by the applicant on 24 June 2002, the Ministry of Labour informed him that the National House of Pensions and Other Insurance Rights (NHPIR) was responsible, under its authority, for the system of civil pensions. The NHPIR had signed an agreement with the Bancpost (Romanian Postal Bank) allowing bank transfers of civil pensions to be made to the beneficiaries' accounts in Israel. However, as the applicant was the beneficiary of a military pension, he was advised to contact the Ministry of the Interior, which was the authority responsible for managing the military pension system, as the two pension systems were different and were managed separately.

This information was confirmed by a letter of 13 July 2002 from Bancpost to the applicant, in which he was informed that the bank had concluded an agreement with the Israeli Postal Authority, but only with regard to retirement pensions regulated by the NHPIR (civil pensions). The agreement did not cover the transfer of military pensions awarded by the Ministry of the Interior or by the Ministry of Defence.

At the end of 2002 the applicant asked for his pension to be transferred to his Israeli account. He contended that his old age and state of health prevented him from travelling to Romania on a monthly basis in order to collect his pension from the Post Office. In his letter the applicant also referred to the fact that M.N. had stopped sending him the pension payments she had cashed, and he had therefore revoked the proxy. Furthermore, as he had left Romania more than 30 years before, he did not know any other person whom he could appoint as his proxy for the purpose of collecting his pension payments on a monthly basis.

In its reply of 9 October 2002, the Ministry of the Interior informed the applicant that it could not transfer pensions into accounts opened with Bancpost, as it had only signed agreements with the Post Office, which was not part of the banking system.

The Ministry also indicated that the applicant could opt to ask his proxy to transfer the money he/she collected to any account he named. He was also told that in case of disagreement with the proxy, he always had the option of appointing another representative.

On 11 February 2003 the Ministry of the Interior again informed the applicant that no agreement had been concluded by the Ministry with any bank allowing transfers of military retirement pensions abroad. In any event, according to the new Law no. 164/2001 regulating military pensions, the money was to be paid directly to the beneficiary or to his legal proxy empowered to cash it. The actual payment was to be collected directly from the Post Office.

Hence, the Ministry invited the applicant to appoint a proxy and informed him that from 1 January 2003 the validity of such a mandate was limited to 18 months. No legal basis for that time-limit was indicated.

In a letter sent to the applicant on 13 March 2003 the Government's Secretariat General confirmed that an agreement concluded between the Ministry of the Interior and the Post Office allowed for the payment of military pensions either to the beneficiary himself, or to his appointed proxy. The applicant was informed that he could ask his proxy at any time to transfer the money to him abroad.

Attempting to argue that his pension was a civil and not a military one, the applicant pointed out that the NHPIR should be the institution responsible for managing his retirement file.

On 7 April 2003 the Ministry of the Interior replied that the applicant's pension had been awarded on the basis of Decree no. 214/1977, which regulated State military pensions, and therefore it could only be paid in accordance with the relevant provisions therein.

On 11 May 2005 the Pension Office of the Ministry of the Interior informed the applicant that, according to the legislation in force, if the beneficiary of a pension resided abroad, his pension, whether it was military or civil, was only to be paid to a legal proxy empowered to collect the money. This person, once appointed, could then ask the Post Office to transfer the money to an account opened with a Romanian Bank, and afterwards, to an account opened with a bank in Israel.

2. The applicant's attempts to claim the indemnities granted by Legislative Decree no. 118/1990

On 14 August 2000 the applicant asked to have his rights granted by Legislative Decree no. 118/1990 acknowledged, as he had been racially persecuted by the regime established by Marshall Antonescu. According to this decree, the pecuniary rights referred to a monthly indemnity of 60,000 lei (ROL) per year of detention. This indemnity was subject to several increments, reaching the sum of 200 ROL per month per year of detention by 13 May 2008.

Persons having proved they had suffered persecution were also entitled, under the decree, to other rights, such as free medical assistance, free public transport and exemption from paying taxes.

On 20 December 2000 the Bucharest General Labour and Social Welfare Department (GLSWD) issued a decision granting the applicant's request and indicating, without any other details, that from 1 September 2000 he would benefit from all the rights granted by Legislative Decree no. 118/1990 for the period from 23 August 1942 to 23 August 1944 when he had been persecuted.

The applicant applied to his former employer, the Ministry of the Interior, asking for the above-mentioned decision to be enforced.

On 17 September 2002 the Ministry informed the applicant that, according to the law, the responsible institution was the NHPIR, under the authority of the Ministry of Labour.

In a letter of 13 May 2003, the NHPIR informed the applicant that the indemnities granted by Legislative Decree no. 118/1990 could not be paid to him. Firstly, it was explained to him, his file had been transmitted on 11 October 2002 to the Bucharest NHPIR, 2^nd District, as the competent institution to make the payments.

However, payment had never been approved, because the file should have been filed personally by the applicant and not sent by post, or at least a representative of the applicant appointed for that specific purpose should have filed the request in his name. In consequence, the applicant's request and all the supporting documents were returned to him.

On 18 June 2003, following further requests from the applicant to be paid the indemnities he was entitled to, the NHPIR informed him that his file could not be processed because he had not appointed a proxy, as they had already mentioned in their previous letters. Consequently, any other similar request from the applicant would be ignored (“any new request to our institution with identical complaints will receive no reply”).

To date the NHPIR has not calculated the exact amount of the indemnities due to the applicant.

In a letter of 13 June 2006, the NHPIR informed the Government that the procedure instituted by Legislative Decree no. 118/1990 required the money to be paid to the beneficiary in person, or to his appointed proxy. The proxy was to be empowered to file any request, open an account with Bancpost, collect the indemnities paid and inform the authorities of any change in the beneficiary's status which might affect the indemnity. All this information had been provided to the applicant, who had failed to comply with the requirement of appointing a proxy.

The NHPIR also mentioned that once the applicant's file was complete, as required by the law, the indemnities could be paid directly to Israel, following a specific request filed by the applicant with an Israeli bank that had signed an agreement with Bancpost for that purpose.

Legislative Decree no. 118 of 30 March 1990 on the granting of certain rights to persons who were persecuted on political grounds by the dictatorial regime established on 6 March 1945, as modified by the Government Emergency Ordinance no. 105 of 30 August 1999

At the material time, the relevant provisions of Legislative Decree no. 118/1990, as completed by the provisions of the Government Emergency Ordinance no. 105/1999, read:

“(1) The following periods shall be taken into account in determining seniority and shall count as such for the purpose of calculating retirement pensions and any other rights derived from seniority: periods during which a person, after 6 March 1945, for political reasons –

(a¹) was persecuted or deported for racial or ethnic reasons by the regime established in Romania from 14 September 1940 to 23 August 1944 [...]”

“The persons referred to in Article 1 are entitled to receive a monthly indemnity of 60,000 lei for each year of detention [...]”

“The persons referred to in Article 1 shall be exempted from the payment of any taxes.

a) free medical assistance and free medication, which are to be allowed with priority both in the community and while hospitalized;

b) free urban transport – public (bus, tram, subway) or private; the costs relating to travelling with a private company shall be reimbursed by the local administrative authorities corresponding to the beneficiary's residence;

(5) pecuniary benefits [...] shall be paid to their beneficiary or to his legally appointed proxy empowered to cash the respective benefits or, at the request of the beneficiary, they shall be transferred to his personal account opened at the Savings Bank (CEC) or to any other banking institution that has concluded for this purpose a special agreement with the Ministry of Labour and Social Welfare.

Law no. 19/2000 regulating the public pension system and all other insurance rights

The pension will be paid either personally to its beneficiary, to his legally appointed proxy, or to his legal representative.”

(2) The pension will be paid either personally to its beneficiary, to his legally appointed proxy or to his legal representative.”

The applicant complained that he was unable to benefit from his pension rights and other indemnities as a direct consequence of the legal provisions compelling him, a Romanian citizen living abroad and having lost all contacts with his native country, to appoint a proxy to collect the payments concerned. Such a state of affairs placed an excessive burden on him, contrary to the provisions of Article 1 of Protocol No. 1 to the Convention, which reads as follows:

“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.”

The Government contended that the applicant had failed to comply with the requirements laid down by the law with regard to appointing a proxy. However, there had been no interference with the applicant's pecuniary rights since he had always been acknowledged as the beneficiary of the relevant sums of money, which would be paid to him retroactively as soon as he complied with the law and designated a proxy. At the same time, the Government alleged that the first essential step to enable the applicant to receive his pension payments by bank transfer was the opening of an account with a bank – a procedure which he had not proved to have even initiated. The applicant could not therefore complain that his money was not transferred, since he had failed to open an account in Romania, and it was not for the Government to speculate on how the authorities would have reacted once the applicant had complied with the basic requirement of opening the necessary bank account.

The applicant disagreed, considering that the requirements imposed on him were excessive and thus impossible for him to comply with. Even if he were able to find and appoint a proxy, it was not to be ignored that he would have to renew the authorisation every eighteen months, thereby incurring extra costs without any proper legal justification. Furthermore, when the authorities refused to authorise any bank transfer, they had never invoked as a reason for dismissing the request the applicant's failure to have opened a bank account.

Firstly, the Court notes that there is no dispute between the parties concerning the pecuniary rights to which the applicant was entitled under Law no. 164/2001 and Legislative Decree no. 118/1990. The applicant was granted these rights, and what he complains of is that he is unable to benefit from them because of the specific legal provisions and/or administrative practice governing the actual payment of this money.

In the Court's view, the applicant's claims are to be examined under the provisions of the second paragraph of Article 1 of Protocol No. 1 regarding control of the use of property.

The Court notes that, according to the Romanian legal provisions, the beneficiary of pension rights may collect the money concerned either in person or with the help of a proxy or a legal representative. In the latter case, the beneficiary of any pension – civil or military – must follow the same procedure, which is to empower a proxy who can, in the beneficiary's name, open a bank account, cash the money and subsequently transfer it to the beneficiary's account.

The aim of such a requirement is, according to the respondent Government, to allow the authorities to control the payment of pension rights with a view to preventing situations in which payments could be made in breach of the legal provisions.

As far back as 1968, in the “Belgian language” case (Case “relating to certain aspects of the laws on the use of languages in education in Belgium” (merits), 23 July 1968, “The Law”, § 10, Series A no. 6), the Court ruled as follows:

“In attempting to find out in a given case, whether or not there has been [a violation of the provision relied upon], the Court cannot disregard those legal and factual features which characterise the life of the society in the State which, as a Contracting Party, has to answer for the measure in dispute. In so doing it cannot assume the role of the competent national authorities, for it would thereby lose sight of the subsidiary nature of the international machinery of collective enforcement established by the Convention. The national authorities remain free to choose the measures which they consider appropriate in those matters which are governed by the Convention. Review by the Court concerns only the conformity of these measures with the requirements of the Convention.”

Moreover, the Court has repeatedly asserted that a wide margin should usually be allowed to the State under the Convention when it comes to general measures of economic or social strategy. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature's policy choice unless it is “manifestly without reasonable foundation” (Stec and Others v. the United Kingdom, [GC], nos. 65731/01 and 65900/01, § 52, ECHR 2006-VI).

Policy in the day-to-day management of a State's pension system is, therefore, a matter that falls entirely within the margin of appreciation of that State. This management certainly includes implementing specific mechanisms for the actual payment of pension rights. Like any measure meant to regulate the use of property, this implementation must be made in accordance with the general interest and with a “reasonable foundation” in order to comply with the provisions of the second paragraph of Article 1 of Protocol No. 1.

In the present case, the Court observes that the concrete mechanism put in place for the payment of pension rights includes the necessity of appointing a legal proxy where a beneficiary cannot present himself in person to collect the money from the post office. The legal provisions regulating the payment of the pension under pension laws no. 19/2000 and no. 164/2001 are clear, precise and foreseeable with regard to that legal requirement.

The Court considers that, as the Government also averred, the proxy form is a document commonly used in many fields and the legal formalities required are not excessive, as evidenced by the fact that the applicant had himself made use of such a document when he appointed M.N. Moreover, such a proxy could be appointed by the applicant from Israel, without the need for him to travel to Romania for that purpose only (see also paragraphs 9-11 above).

This legal requirement is imposed with the aim of controlling the payment of pension rights and it cannot be regarded as manifestly placing an excessive burden on the applicant (see, mutatis mutandis, Tuliţa v. Romania (dec.), no. 13657/03, 26 March 2003), who would be able to fully enjoy his pecuniary rights once the proxy was appointed.

The Court therefore considers that the impugned legal requirement is not so manifestly unreasonable as to exceed the wide margin of appreciation allowed in such a field; the applicant's complaints raised under Article 1 of Protocol No. 1 are thus manifestly ill-founded.

b. Concerning the applicant's right to the indemnities provided for by Legislative Decree no. 118/1990

The Court notes that the decision of 20 December 2000 granted the applicant all the rights requested under Legislative Decree no. 118/1990 (see paragraph 15 above).

However, as the relevant authority asserted in its letters to the applicant, his file could not be considered complete while it lacked an authority form empowering a third party to open an account, collect the indemnities, and inform the authorities of any significant changes in the applicant's status (see paragraph 19 above). Had the file been complete, the money could have been paid directly to Israel.

In this context and for the reasons already stated above, the Court does not consider that the formality of appointing a proxy with the aim of collecting money can be regarded as placing an excessive burden on the applicant, for the purposes of the second paragraph of Article 1 of Protocol No. 1 to the Convention.

B. Alleged violation of Article 14 of the Convention, in conjunction with Article 1 of Protocol No. 1 to the Convention

The applicant further complained of being discriminated against in his right to receive his pension, when compared with the beneficiaries of civil pensions, who were able to collect their respective pecuniary rights via bank accounts. He relied on Article 14 of the Convention, taken in conjunction with Article 1 of Protocol No. 1 to the Convention. Article 14 reads as follows:

“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.”

The Government contended that there was no difference in treatment with respect to military pensions, as opposed to civil pensions; both types of pecuniary rights were paid on a monthly basis to their beneficiary or to his or her proxy or legal representative. The beneficiary was able to open an account with a bank or empower a third party to do so in his name, no matter whether the pension was a military or a civil one.

The applicant, on the other hand, contended that the difference in payment mechanisms with respect to civil and military pensions originated in the very legal provisions applicable to each situation and were revealed by the actual practice of making pension payments, as underlined in the letter sent by Bancpost to the applicant, which confirmed the existence of an agreement concerning civil pensions only (see paragraph 7 above).

The Court observes at the outset that, as with all complaints of alleged discrimination in a welfare or pension system, it is concerned with the compatibility with Article 14 of the system, not with individual facts or the circumstances of the particular applicants or of others who are or might be affected by the legislation (see Carson and Others v. the United Kingdom [GC], no. 42184/05, § 62, ECHR 2010 ...).

The Court's role is therefore to determine the question of principle, namely whether the legislation as such unlawfully discriminates between persons who are in an analogous situation.

In the present case, the Court observes that the applicable legal provisions are identical with respect to both the civil and military pension payment systems (see paragraphs 21 and 22 above). Moreover, the actual mechanism put in place by the respondent State for the payment of pensions does have a reasonable justification (see also paragraph 33 above).

In the light of the above, the Court considers that the applicant's complaints raised under Article 14 in conjunction with Article 1 of Protocol No. 1 are manifestly ill-founded.

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You are here: BAILII >> Databases >> European Court of Human Rights >> Simon CROITORU v Romania - 3205/03 [2010] ECHR 1493 (14 September 2010) URL: http://www.bailii.org/eu/cases/ECHR/2010/1493.html Cite as: [2010] ECHR 1493