DUMITRU AND OTHERS v. ROMANIA - 57162/09 (Judgment : Article 6 - Right to a fair trial : Fourth Section Committee) [2019] ECHR 482 (25 June 2019)

In the case of Dumitru and Others v. Romania,

The European Court of Human Rights ( Fourth Section ), sitting as a Committee composed of:

Paulo Pinto de Albuquerque, President,
Egidijus Kūris,
Iulia Antoanella Motoc, judges,
and Andrea Tamietti , Deputy Section Registrar ,

Having deliberated in private on 4 June 2019 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 57162/09) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by three Romanian nationals, Ms Gherghina Dumitru (" the first applicant") , Mr Viorel Dumitru ("the second applicant") and Mr Teodosie Florentin Păunescu ("the third applicant "), on 9 October 2009 .

2 . The Romanian Government ("the Government") were represented by their Agent, M s C. Brumar , of the Romanian Ministry of Foreign Affairs .

3 . Relying on Article 6 of the Convention , the first applicant alleged that the courts had delivered divergent decisions in similar cases and had unlawfully dismissed her claims for allowances for the other two applicants . Moreover, i nvoking Article s 6 and 1 of Protocol No. 1 in substance , she alleged that the authorities had failed to immediately enforce the judgments granting her and the other applicants the right s and benefits to which they were entitled . Furthermore, r elying on Article 8 in substance , she alleged that from 2004 onwards the authorities had deprived her and the other app licants of the financial support to which they had been entitled , which had affected their l iving conditions , health and development . Lastly, invoking Article 14, in conjunction with Ar ticles 6, 8 , and Article 1 of Protocol No. 12, she alleged tha t the decisions of the courts to dismiss some of her claims had amounted to discriminatory treatment . Moreover, the other applicants had also been discriminated against, because they had not been given the support required for their development .

4 . On 30 August 2016 the Government were given notice of the a bove - mentioned complaints and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court .

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . The first, second and third applicants were born in 1950, 2001 and 2007 respectively, and live in Că l ă ra ș i .

A. Background to the case

6 . The first applicant worked as a foster parent at the Călăraşi office of the Office for Social Care and Child Protection ( Direcția Generală de Asistență Socială şi Protecția Copilului , here in after "the DGASPC") from 1999 to 4 July 2011 , when she retired . The organisation was part of the Călăraşi County Council ("the County Council") .

7 . In May 2001 and April 2008 respectively the Călăraşi DGASPC placed the second and third applicants with the first applicant , decisions which were confirmed by a court .

8 . In line with the first applicant ' s expr ess wishes, the other appli cants remained in her care even after she retired . The third applicant is still in her care. Following an express request by the first applicant , the second applicant was removed from her care on 13 September 2016.

B . Proceedings initiated by the first applicant

1. First set of proceedings

9 . On 9 June 2008 the first applicant initiated proceedings against the Călăraşi DGASPC, seeking a court ord er for payment of her salary rights in respect of financial compensation corresponding to her unspent annual leave for the previous three years , a supplement for extra work she had performed , and overtime pay for work she had done during weekends and public holidays . She also claimed the reimbursement of expenses relating to he r regular medical examinations and laboratory tests and argued that for the previous three years the second applicant had not been given the housing , placement and food allowances to which he had been entitled.

10 . On a n unspecified date the County Council intervened in the proceedings as a third party supporting the Călăraşi DGASPC . It argued that the first applicant had had no right to claim the benefits allegedly no t given to the second applicant because on ly the President of the County Council had a legal right to exercise rights on behalf of the child .

11 . On 7 October 2008 the Călăraşi County Court ("the County Court") allowed the first applicant ' s action in part, and ordered the Călăraşi DGASPC to pay her financial compensation corresponding to her unspent annual leave for the period 2005-2007 and a supplement for extra work she had performed . The court also ordered the Călăraşi DG ASPC to give the second applicant the allowances provided for under Article 1 of Law no . 326/2003 on the rights enjoyed by children in foster care (see paragraph

37 below ) - to which he had been entitled since 8 June 2005 and up to the date of the judgment . It held that , even though the cont ract between the first applicant and her employer was special in nature because foster parents worked fro m home and were responsible for raising the children entrusted to their care , the provisions of t he Labour Code ("the Code") applied. C onsequently, she had been entitled to compensation for unspent annual leave , and to a supplement for extra work she had perfo rmed or overtime pay for work done during weekends and public holidays . Given the specific nature of her contract , which mad e it impossible to calculate the overtime work done by her , she was entitled to a supplement for extra work she had performed , and not to overtime pay , and could not be granted both . Also, a child was entitled to a food allowance, which h ad to be paid to the person feeding the child . T he argument that only the President of the County Council could claim the allowance (see paragraph 10 above) was "childish" and ill-founded. The clai m for housing allowance had to be dismissed , because the applicant s had not lived in rented accommodation.

12 . The first applicant appealed against the judgment on points of fact and law. She argued that a week earlier the first-instance court had allowed a trade union ' s claims against her employer for overtime pay for work done during weekends and public holidays . Also, t he court had failed to examine or had unlawfully dismissed her claims for housing allowance, reimbursement of her expenses relating to her medical examinations and laboratory tests , and overtime pay for work done during weekdays .

13 . By a final judgment of 12 May 2009 the Bucharest Court of Appeal ("the Court of Appeal") dismissed the first applicant ' s appeal on points of fact and law. It held that she could no t claim overtime pay, given the special nature of her work c ontract , and given that her job required her to provide constant care to the children . Also, she had not claimed the housing allowance and the reimbursement of her expenses relating to her regular medical examinations and laboratory tests from her employer on a monthly basis by providing supporting evidence for her claims, and therefore her claim s lodged with the courts for retroactive payment had been ill-founded. Moreover, she ha d failed to provide supporting documents for her claims concerning the relevant medical expenses .

2. Second set of proceedings

14 . On 14 July 2009 the first applicant initiated proceedin gs against the Călăraşi DGASPC, seeking a court order for : overtime pay for work done during weekdays; overtime pay for work done during weekends and public holidays , starting from July 2006 until 2009 , and continuing thereafter ; payment of a holiday bonus for the period 2006-2008; payment of the allowances provided for by Article 3 of the relevant collective agreement contract ; payment of the personal needs allowance s provided for by law for the second applicant in respect of the period September 2004-June 2008; payment of the second applicant ' s remaining food a llowance for the period January- March 2008; payment of a supplement for the third applicant ' s food allowance for the period May 2008- April 2009; payment of the housing allowance for the period 2004- September 2009; reimbursement of fees for her psychological examination ; and non-pecuniary damage s .

15 . She argued that on 7 October 2008 the County Court had wrongfully dismissed her claims for overtime pay (see paragraph 11 above) , even though the same court and other courts in the country had allowed such claims . T h at court had also wrongfully dismissed her claim for housing allowance and had ignored her claim for payment of a holiday bonus. Consequently , she had lodged a new claim with the court , given that her employer had granted this bonu s to public servant s and courts across the country had allowed similar claims lodged by foster parents. The principles of non-discrimination and equal treatment of employees of the same unit had been breached by the Călăraşi DGASPC by refusing to pay her benefits . The compensation for non-pecuniary damage was to cover the humiliation and discriminato ry treatment she had suffered at the hands of her employer.

16 . On 24 November 2009 the County Court allowed the first applicant ' s claim s in part. It held that, in accordance with legislation which had entered into force in April 2008 , she had been entitled to payment of a supplement for the third applicant ' s food allowance for the period May 2008- April 2009 . However, it noted that as of May 2008 the first applicant had received the a bove- mentioned supplement for the other child in her care. She had also been entitled to the reimbursement of fees for her psychological examination , as the Călăraşi DGASPC had refused to reimburse her . In addition, she was entitled to the special allowances provided for by Article 3 of the collective agreement for the period 2007 - 2009 . However, the court dismissed as res judicata her claims concerning overtime pay, the housing allowance and the second applicant ' s rights under Article 1 of Law no. 326/2003 for the period 2006-2007. It also dismissed her claim for overt ime pay and housing allowance for the period 2008-2009, relying on similar reasons to those relied on by the Court of Appeal in its judgment of 12 May 2009 (see paragraph 13 above) . Lastly, the cou rt dismissed her claim for a holiday bonus on the grounds that the collective agreement concerning her employer for the relevant period did not provide that employees were entitled to it .

17 . There is no evidence in the file that the first applicant appealed on points of fact and law against the judgment of 24 November 2009 .

3. Third set of proceedings

18 . On 8 December 2010 the first applicant initiated proceedings against the Călăraşi DGASPC, seeking a court order for payment of her salary for seven days in November and December 2009, and for a supplement ary payment for work done during weekends and public holidays for the period 2008-2010.

19 . On 10 February 2011 the County Court allowed the first applicant ' s claims in part. It held that , in accordance with the provisions of the Code and the relevant collective agreement c oncerning her employer , all the employees of that office , including her , were entitled to a supplement ary payment for work done during weekends and public holidays for the period 2008-2010 . Moreover, she was entitled to be paid for the work she had done on three days in November 2009 . However, she had received compensation for the work she had done on the other four d ays in question . Lastly, t he court dismissed the Călăraşi DGASPC ' s ar guments that her claims had already been examined in the final judgments of 12 May and 24 November 2009 (see paragraphs 13 and 16 above) .

20 . The Călăraşi DGASPC appealed against the judgment on points of fact and law .

21 . By a final judgment of 6 December 2011 the Court of Appeal allowed the Călăraşi DGASPC ' s appeal in part . The court dismissed as res judicata the first applicant ' s claim for a supplement ary payment for work done during weekends and public holidays for the period 2008-2009 because it had already been examined in the judgment of 24 November 2009 (see paragraph 16 above) . It held that even though she had used different terminolog y , in fact her claim concerned the payment of overtime for work done during weekends and public holidays . S he had also relied on legal grounds which were similar to those used to justify her claim in the p revious proceedings . The court further dismissed her claim for overtime pay fo r 2010. It held that in accordance with the rel evant provisions of the Code (see paragraph 11 above) and of the relevant collective agreement conce rning her employer , all the employees of that office for whom overtime could be calculated were entitled to such payments . However, the special nature of foster parents ' work and contract s , which implied the acceptance of the extra work which had to be performed and which could not be quantified , excluded them from the categories of employees who could be granted overtime pay . Given the provisions of the special legislation concerni ng foster parents , the legal provisions invoked by the first applicant could not be a fo undation for her claim. Lastly, the court upheld the remaining part of the first-instance court ' s judgment.

4. Fourth set of proceedings

22 . On 18 August 2011 the first applicant initiated proceedings against the Călăraşi DGASPC, seeking a court order for payment of financial compensation corresponding to her unspent annual leave , and for a supplement ary payment for work done during weekends and public holidays for the period January-July 2011 .

23 . On 3 November 2011 the County Court allowed the first applicant ' s claims. It held that her employer had failed to prove that it had paid her during h er annual leave . Also , in accordance with the re levant provisions of the Code and of the relevant collective agreement c oncerning her employer she was entitled to a supplement ary payment for work done during weekends and public holidays .

24 . The Călăraşi DGASPC appealed against the judgment on points of fact and law .

25 . By a final judgmen t of 14 March 2012 the Court of Appeal allowed the Călăraşi DGASPC ' s appeal . In dismissing the first applicant ' s claim for a supplement ary payment for work done during weekends and public holidays , the court relied on similar reasons to the ones provided by the same court on 6 December 2011 when it had dismissed a similar cl aim raised by her for the year 2010 (see paragraph 21 above) . Also , according to the available evidence , the applicant had taken her annual leave in May and June and had been paid for it. It could not be argued that she had not taken her annual leave in May 2011 because she had spent it in the company of her foster child. She had the option of asking the DGASPC to take the foste r child during her leave.

5. Fifth set of proceedings

26 . On 14 December 2010 the first applicant initiated proceedings against the Călăraşi DGASPC, seeking a court order for payment of financial compensation corresponding to her unspent annual leave for the period 2008-2010 and payment of the second applicant ' s remaining food allowance for the period January-March 2008 .

27 . On 24 March 2011 the County Court allowed the first applicant ' s claims. It held that , in accordance with the rel evant provisions of the Code , all employees were entitle d to paid leave. Since the applicant had spent her annual leave for the period 2008-2010 in the company of her foster children and had not be en relieved of her duties , she was entitle d to the financial compensation she claimed. Moreover, her employer had failed to prove that it had paid the second applicant ' s remaining food allowa nce for the period in question .

28 . The Călăraşi DGASPC appealed against the judgment on points of fact and law .

29 . By a final judgmen t of 15 December 2011 the Court of Appeal allowed the Călăraşi DGASPC ' s appeal in part . It held that the second applicant had not been entitled to a n increased food allowance for the period January-March 2008. T he legal provisions entitl ing the first applicant to receive the above-mentioned allowance had entered into force only in April 2008.

C . Other information

30 . The first appli cant submitted to the Court three judgments delivered by three different courts of appeal. The judgments allowed various claims lodged by foster parents and /or trade unions across the country (representing the interests of their members working as either public servants or foster parents) for payment of financial compensation corresponding to unspent annual leave rights and overt ime pay . B y a final judgment of 19 June 2007 the Piteşti Court of Appeal held that , in accordance with the provisions of t he Constitution and the Code , the claimants were entitle d to compensat ion for unspent annual leave for the period 2003-2005 . To hold otherwise would be to discriminate against them in relation to other categories of employees. By final judgment s of 28 January and 28 April 2009 the Cluj and the Bucharest Courts of Appeal held that , in accordance with the provisions of the relevant collective agreement and the Code , the claimants were entitle d to overtime pay for work done during weekends and public holidays, and /or to compensation for unspent annual leave for the period 2005-2008 . T he Bucharest Court of Appeal also held that the claimants were entitle d to overtime pay for work done during weekends and public holid ays also for the period after 2008 .

31 . On 17 March 2010 and 8 March 2011 the Călăraşi DGASPC informed the first applicant that following the entry into force of Government Ordinance no. 71/2009 (see paragraph 39 below ) , only part s of the judgments of 12 May and 24 November 2009 (see paragraphs 13 and 16 above) had been enforced and that the remaining amounts would be paid in two instalments. T he first applicant informed the Court on 27 April 2012 that because of the above-mentioned government ordinance , the judgments of 6 and 15 December 2011 (see paragraphs 21 and 29 above) had also remained unenforced. Subsequently , she acknowledged on 31 July 2013 that the authorities had e nforced all the judgments .

32 . On 4 January and 9 February 2017 the Călăraşi DGASPC informed the Government that the amount corresponding to the first applicant ' s unspent annual leave for the period 2008-2010 had been paid to her in full in five instalments between January 2013 and June 2016. I n addition , prior to her retiremen t, she had never ask ed the Călăraşi DGASPC for financial support for her foster children ' s possible extracurricular activities, or to be relieved of her duties during her annual leave .

33 . On an unspecified date in 2015 the Iași Court of Appeal asked the bench of judges of the High Court of Cassation and Justice ("the Court of Cassation") in charge of deliver ing advisory opinions to clarify the divergent practice of the c ourt s of a ppe a l which had existed both before and after 3 October 2013 as regards the question of whether foster parents who continued to work voluntarily durin g their annual leave were entitled to financial compensation corresponding to their unspent annual leave.

34 . On 17 October 2016 the Court of Cassation dismissed the above - mentioned proceedings as inadmissible. It held that the impugned question was not a novel legal issue. T he courts had examined it repeatedly between 2008 and 2016 , and the judgments suggested that a divergent practice existed in this regard . However, th at divergent practice could be solved by way of an " appeal in the interest s of the law " .

35 . On 14 February 2017 the Ia și Cour t of Appeal lodged an " appeal in the interest s of the law " with the Court of Cassation in respect of the a bove - mentioned legal matter (see paragraph s 33 - 34 above) . It appears that at the date of the latest information available to the Court (4 October 2017) t h o se proceedings are still ongo ing.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Relevant law

36 . Article 20 §§ 1, 2 and 3 of Government Ordinance no. 26/1997 on the protection of children in difficult situations provided that a foster parent was to be granted a monthly maintenance allowance for every child placed in his or her care. A foster parent was also to be granted , when necessary, the amounts needed to cover monthly expenses relating to food, clothing , bedding, school supplies , and educational material , as well as the amounts necessary to cover housing expenses .

37 . Article 1 §§ 1 and 2 of Law no. 326/2003 provided that children pl aced in the care of foster parents were entitled to bedding, two sets of clothes , school supplies , and educational material. C hildren enrolled in kindergarten or school were entitled to a personal needs allowance.

38 . Article 8 § 1 and Article 10 § 1(f) of Government Decision no. 679/20003 on becoming a foster parent provide that a foster parent is employed on the basis of a special work contract aimed at protecting the child. The contract is signed with an institution spe cialis ing in child protection which must supervise and support the work of the foster parent . The latter must ensure that his or her activities continue during his or her annual leave, except in those cases when the emp loyer has authorised the foster parent to be separated from the child during his or her leave .

39 . The relevant provisions of Governmen t Ordinance no. 71/2009 on the payment of different enforceable amounts as regards the salary rights of persons working in the public sector and its subsequent amendments are described in Dumitru and Others v. Romania ((dec.), no. 57265/08, §§ 25 - 27, 4 September 2012) , as are the reasons why it was adopt ed .

B . Relevant practice

40 . The Government submitted examples of a number of court judgments following claims brought by foster parents against various offices of the DGASPC .

41 . On the one hand , t he courts had allowed claims seeking court order s for supplement ary payment s for work done during weekends and public holidays and/or for payment of financial compensation corresponding to unspent annual leave for various period s between 2005 and 2014 on the ground s that : (i) the relevant legal provisions , including the individual or collective agreements in question , provided for such compensation ; and/or (ii) in accordance with the relevant legislation , all employees of public institutions were ent itled to such payments ( see the final judgment s of : Călărași County Court of 30 September 2008 ; Cluj Court of Appeal of 28 January 2009, 11 October 2011 and 26 November 2012 ; Gala ț i Court of Appeal of 30 October 2012 ; Suceava Court of Ap peal of 22 November 2012 and 30 May 2013 ; Oradea Court of Appeal of 4 June 2015 and 10 February 2016 ; and Iași Court of Appeal of 14 December 2016 ) .

42 . The courts had also allowed action s seeking court order s for the personal needs allowance provided for by Article 1 of Law no. 326/2003 for the period September 2008- June 2012 on the grounds that there was no evidence in the case file s that the respondent employer had paid it ( see the final judgment of Suceava Court of Appeal of 22 November 2012).

43 . On the other hand, t he courts had dismissed claims seeking court order s for supplement ary payment s for work done during weekdays, weekends and public holidays , and/or for payment of financial compensation corresponding to unspent annual leave for various periods between 2004 and December 2015 on the grounds that : (i) foster parents were entitled to either the a bove- mentioned supplement or a supplement for the extra work they had performed , and they had already been granted both , (ii) the work contract signed by foster parents was special in nature ; and (iii) in accordance with the relevan t legislation , the a bove- mentioned type of work could only be replaced with time in lieu in certain circumstances ( see the final judgment s of : Cluj Court of Appeal of 19 May 2010, 29 September 2011, 29 October 2014, and 1 October 2015; Bucharest Court of Appeal of 9 November 2011, 1 July 2014 , 9 January and 24 April 2015 ; Timișoara Court of Appeal of 13 and 14 March 2012; Alba- Iulia Court of Appeal of 2 and 16 November 2012; Suceava Court of Ap peal of 22 November 2012 , 30 May and 3 October 2013 and 25 and 30 September 2014 ; Craiova Court of Appeal of 18 June and 9 July 2014; Oradea Court of Appeal of 20 November 2014 and 4 June 2015; Bacău Court of Appeal of 17 December 2014; and Iași Cour t of Appeal of 17 April 2015 and 14 December 2016 ; and the judgmen t s of Maramure ș County Court of 25 January 2008; Sibiu County Court of 4 May 2012 ; Constan ț a County Court of 28 January 2016 ; and Hunedoara County Court of 31 May 2016 ) .

44 . The courts had also dismissed foster parents ' claim s for housing allowance for various period s between September 2008 and June 2012 on the ground s that the y had not claime d it from their employer on a monthly basis by providi ng supporting evidence ( see the final judgment s of Suceava Court of Ap peal of 22 November 2012 and 30 May 2013).

THE LAW

I . PRELIMINARY OBJECTION

45 . The Government submitted that the first applicant could no longer represent the other two applicants. S ince 2016 the second applicant had not been in her care (see paragraph 8 above) a nd there was no reason to consider that he still had locus standi . T he condi tions which had led the County Court to conclude (see paragraph 11 above) that the first applicant had a righ t to act on his behalf were no longer fulfilled . Also, the second applicant had failed to intervene as a party to the proceedings before the Court and had failed to assign the first applicant as a representative.

46 . While the third applicant was still in the first applicant ' s care, only the President of the Călăraşi County Council had a legal right to exercis e parental rights in his case . Also, t he first applicant had failed to refer to the other two applicants in her obser vations submitted to the Court or to discuss any specific element s concerni ng their situation .

47 . The first applicant submitted that she c ould act as the other applicants ' representative because the domestic courts had place d them in her direct care and they were part of her family since they were young.

48 . The Court notes that the present ap plication was lodged with the Court by the first applicant on her own behalf and on behalf of the other two applicants. T he first applicant did not have forma l authority to act as the other two applicants ' representative. Even if she was their foster parent, the President of the County Council seems to have remained the sole authority entitled to exercise parental rights in respect of the second and third applicant s .

49 . T he Court observes , however, that the second and third applicants were in opposition to the body formally authorised to act on their behalf. In particular, their complaints to the courts and the Court concerned the Călăraşi DGASPC, an organisation which was part of and was supported by the County Council . Moreover, the two applicants did not appear to have any significant contact with their biological family, or to be under the ir parental authority . Furthermore , the courts acknowledged that the fi rst applicant could act on their behalf and claim the legal benefits due to them, even though she had not been authorised to exercise parental rights in respect of them (see paragraph 11 above) .

50 . In these circumstances, the Court takes the view that the first applicant could act as the second and third applicants ' representative at the time when she lodged the applica tion with the Court , and that the application made on their behalf was valid.

51 . T he Court notes, however, that the second applicant was removed from her foster care in 2016 (see paragraphs 8 and 45 above). T he applicants have not submitted a ny valid power of attorney authori s ing the first applic ant to continue representing the second applicant before the Court. Moreover , the latter applicant did not appoint another representative or state his intent to pursue his applica tion .

52 . In these circumstances, the Court takes the view that the second applicant has lost his locus standi , and that his application to the Court must be declared inadmissible as incompatib le ratione personae , pursuant to Article 35 §§ 3(a) and 4 of the Convention.

53 . With regard to the third applicant , the Court notes that he remains in the first applicant ' s care. Having regard to its finding in paragraphs 48 - 50 above , the Court cannot endorse the Government ' s argument that the third applicant is no longer represent ed by the first applicant and a party to the proceedings before the Court.

54 . It follows that the part of the Government ' s preliminary objection concerning the third applicant must be dismissed.

55 . The Court will therefore continue to examine the application only in so far as it concerns the first and third applicant s .

II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

56 . The first applicant complained that the courts had delivered divergent decisions in similar cases concerning the rights and benefits to which she was entitled, and had unlawfully dismiss ed her claims for the third applicant ' s allowances. Moreover, following the entry into force of Government Ordinance no. 71/2009 (see paragraph 39 above) , the authorities had failed to immediately enforce the judgments granting her and the third applicant the rights and benefits provided for by law . The first and third applicants relied on Article 6 of the Convention , which , in so far as relevant , read s as follows:

Article 6

"In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ..."

A. Complaint concerning d ivergent case-law

1. Admissibility

(a) As regards the third applicant

57 . The Government contended that the third applicant could not claim to be a victim of a breach of the principle of legal certainty. The proceedings in question actually concerned the work relations between his foster parent and her employer. Moreover, the courts had held that during her annual leave the first applicant had continued to receive the amounts due for the third applicant ' s needs.

58 . The applicants did not submit observations on this point.

59 . The Court notes that the complaint about the divergent case-law also concerned the allowances due to the third applicant. Some of the claims for these allowances were allowed by the courts, and some were dismissed.

60 . With regard to the claims which were dismissed, the Court notes that they concerned housing allowance in particular and that the courts pursued a similar approach in examining such claims and provided similar reasons for their judgments (see paragraphs 13 , 16 and 44 above).

61 . In the light of the above, the Court takes the view that the refusal of the housing allowance was not the result of a divergence in the case-law and that therefore the third applicant ' s complaints in this respect are in any event manifestly ill-founded.

62 . It follows that his complaint must be declared inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

( b ) As regards the first applicant

i. Victim status

63 . The Government argued that the complaint concerning the divergent dec isions delivered by the courts with regard to financial compensation for unspent annual leave was an actio popularis . The first applicant had not been significantly affected by the divergent case-la w . T he courts had allowed all her claims for damages in this connection , except for the one concerning the last six mont hs of her employment. E ven in the latter cas e , the courts had not denied her right to compensation in general , but had dismissed her claim because she had not asked her employer to relieve her of her duties during her leave .

64 . The first applicant did not submit observations on this point.

65 . The relevant principles concerning an actio popularis and a person ' s ability to claim to be a victim of a violation of the rights set forth in the Convention are set out in Aksu v. Turkey ( [GC] no s. 4149/04and 41029/04 , § § 50 - 52 , 15 March 2012 ).

66 . In the instant case, the Court notes that on three separate occasions the first applicant initiated proceedings against the Călăraşi DGASPC for financial compensation corresponding to her unspent annual leave in respect of various periods of time. The domestic courts allowed two of th ose claims and granted her financial compensation for the periods 2005-2007 and 2008-2010 (see paragraphs 11 and 27 above) .

67 . I n this connection, t he Court takes the view that , in relation to the a bove- mentioned periods , the first applicant can no longer claim to be a victim of the courts ' alleged ly d ivergent case-law on the question of a foster parent ' s right to financial compensation corresponding to unspent annual leave. The same applies to the first applicant ' s claims for some of the benefits related to her work - the reimbursement of fees for her psychological examination, special allowances provided for by Article 3 of the collective agreement for the period 2007-2009, and wages for three days in November 2009 - which were granted by the courts (see paragraphs 16 and 19 above).

68 . It follows that this part of the first applicant ' s complaint must be declared inadmissible as incompatible ratione personae , pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

69 . However, t he Court observes that the first applicant ' s claim for financial compensation corresponding to her unspent annual leave for the period January-July 201 1 was dismissed by the courts (see paragraph 25 above) . S he was involved in these pr oceedings and was directly affected by the courts ' judgment .

70 . While it is true that her claim concerned a rather short period of time , and that the financial comp ensation sought by her concerned only some of t he benefits she was allegedly entitle d to , the Court notes th at the courts ' divergent case-law on whether foster parents are actually entitled to such financial compensation still does not seem settled . Moreover, regardless of its outcome, a judgment delivered by the Court of Cassation on the ongoing " appeal in the interest s of the law " (see paragraph 35 above) would be unable to provide any redress for the fact that the divergent case - law on this point ha s been in existence for many years.

71 . It follows that the Government ' s preliminary objection of lack of victim status concerning the first applicant ' s claim for financial compensation for the period January-July 2011 must be dismissed.

ii Non-exhaustion of domestic remedies

72 . As regards the holiday bonus claimed by the first applicant, t he Government submitted that she had failed to exhaust the domestic remedies. In particular, s he had not appeal ed a gainst the judgment of 24 November 2009 (see paragraphs 16 and 17 above) and , during t he proceedings brought by her for financial compensation for unspent annu al leave for the period January-July 2011 (see paragraphs 22 - 25 above) , she had not complained about the divergent case-law before the courts.

73 . The first applicant di d not submit observations on this point.

74 . The Court notes that there is no evidence in the file that the first applicant appealed against t he judgment of 24 November 2009 (see paragraph 17 above) . Consequently, the Court is not in a position to spe culate on whether the appellate court would have upheld or overturned this judgment on the question of holiday bonuses.

75 . It follows that this part of the first applicant ' s complaint, in so far as it concerns holiday bonuses, must be declared inadmissible for non - exhaustion of domestic remedies , pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

76 . A s regards the first applicant ' s failure to raise the argument about the divergent case-law during the proceedings which concerned her claim for financial compensation for unspent annual leave for the period January - July 2011 , the Court notes that such a claim would have had very little prospect of success. Under Roman ian law , the courts had no obligation to acknowledge final judgme nts delivered by other courts as precedent s or so urces of law or to follow the ir r easoning . Moreover, the only authority which would have been able to end a divergent practice was the Court of Cass ation , by way of an extraordinary " appeal in the interest s of th e law " (see paragraph 35 above) . However, th at avenue of re dress could not be used by the first applicant .

77 . In the light of the above, the Court cannot endorse the Government ' s argument that the first applicant failed to exhaust the domestic remedies in this respect . It follows that the Government ' s preliminary objection concerning this part of the first applicant ' s complaint must be dismissed.

iii. Other grounds for inadmissibility

78 . The Court notes that the first applicant ' s claims for reimbursement of expenses incurred in relation to medical examinations and laboratory tests, overtime pay for the period 2008-2009, housing allowance, and wages for four days in November and December 2009 were dismissed either on grounds concerning her specific situation, which does not disclose an appearance of divergent practice by the domestic courts, or by judgments which she failed to appeal (see paragraphs 11 - 13 , 16 and 19 above).

79 . It follows that with regard to all of the above-mentioned rights and benefits, the first applicant ' s complaints are either manifestly ill-founded or to be rejected for non-exhaustion of domestic remedies. They should therefore be declared inadmissible pursuant to Article 35 §§ 1, 3 (a) and 4 of the Convention.

80 . As regards the remaining complaint, that is the first applicant ' s claim that her requests for overtime pay for the periods 2005-2007 and 2010-July 2011 and for financial compensation for unspent annual leave for the period January-July 2011 ha d been refused on the basis of divergent domestic case - law, t he Court notes that it is not manifestly 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.

2. Merits

(a) The parties ' submissions

81 . The fi rst applicant argued that t he case-law submit ted by the Government confirmed the divergent c ase-law of the courts. It was clear from the judgments as well as from the relevant domestic legislation , that all em ployees were entitled to be paid annual leave . Also, her annual leave could not be transferred, waived or restricted . In addition , she was entitled to overtime pay .

82 . T he Government submitted that the first applicant ' s claim for compensation for un spent annual leave concerned the equivalent of half of a monthly salary . Therefore, the divergent case-law had had a limited impact on her .

83 . With regard to overtime pay , the Government submitted that the large majority of courts had dismissed such claims on identical grounds to th e ones relied on by the courts in the first applicant ' s case. O nly a few of the claims of this nature had been successful . A divergent minority opinion was inherent in a legal order where ju dges were independent and obey ed only the law. Whi le the case-law had been in consistent at the time when the first applicant had brought proceedings before the courts , the legal order had proved to be capable of re solving the initial divergence. As of 2014 the case-law on this point had become unifor m .

84 . In the Government ' s view, t he divergen t case-law had not been generated by the Cour t of Cassation . Also, the proceedings concerning the first applicant had been fair and adversarial and t he courts had examined her claims , interpreted the domestic law , and prov ided reasons for their judgments which were not arbitrary or manifestly erroneous.

(b) The Court ' s assessment

85 . The relevant principles concerning conflicting decisions in case-law are set out in Lupen i Greek Catholic Parish and Others v. Romania [GC] (no . 76943/11 , § 116 , 29 November 2016 ).

86 . T he Court observes that the Government acknowledged that the courts had delivered divergent judgments on the question of whether foster parents were entitled to overtime pay and to financial compensation for unspent annual leave .

87 . Moreover, the Court observes that, according to the available evidence, the divergent case-law persisted for a significant number of years and affected a large number of individuals employed as foster parents , and prior to 2017 the relevant authorities failed to make use of an " appeal in the interest s of the law " (see paragraph 35 above) in order to speedily bring to an end the inconsistency in the case-law.

88 . Admittedly, as the Government argued, the Romanian judicial system , by means of case-law, pr oved capable of bringing an end to the inconsistent rulings on the question of a foster parent ' s right to overtime pay. However, given the number of years the domestic courts delivered conf licting judgments on this point and the number of individuals affected by the impugned inconsistency, the Court i s not convinced that by waiting for the Romanian judicial system to bring an end to such inconsistent ruling s by means of case-law , the authorities promptly set in motion the most appropriate mechanism for ensuring harmonisation of the case-law . Moreover, the Court ha s already established that the inconsistency concerning the question of a foster parent ' s entitlement to financial compensation for unspent annual leave still appears to be unresolved (see paragraph s 33 - 35 above) .

89 . In the light of the foregoing considerations, the Court concludes that the context in which the actions brought by the first applicant with regard to her claims for overtime pay for the periods 2005-2007 and 2010-July 2011 and for financial compensation corresponding to her unspent annual leave for the period January-July 2011 were examined undermined the principle of legal certainty , and thus had the effect of depriving her of a fair hearing.

90 . It follows that there has been a violation of Article 6 § 1 of the Convention on account of the breach of the principle of legal certainty.

B . Complaint concerning d el ayed enforcement of the courts ' judgments

91 . T he Government argued on the one hand that the applicants ha d lost their victim status and on the other hand that their complaint was manifestly ill-founded . T he first applicant had acknowledge d i n her correspondence with the Court that the authorities had enforced all the judgments. E nforc ing the judgments by ordering payment in instalments had not been unreasonable.

92 . With regard to final court judgments acknowledging an amount due, t he relevant principles concerning delayed enforcement and enforcement by ordering payment in instalments , in the light of domestic legislation adopted to safeguard the financial well-being of the country in a situation of serious economic crisis , are set out in Dumitru and Others v. Romania ( (dec.) no. 57265/08, §§ 38-4 2 , 4 September 2012) , where the Court has established that the rules contained in G overnment Ordinance no. 71/2009 (see paragraph 39 above) did not affect the actual substance of the applicants ' right of access to court and w ere not unreasonable measure s ( ibid. , § 51).

93 . T he C ourt also notes that full enforcement of the final judgments w hich granted the applicants several benefits was delayed for several years following the entry into force of Government Ordinance no. 71/2009. However, these judgments were eventually fully enforced by the authorities by the amounts due being paid in several instalments. In particular , the final judgment of 15 December 2011 was fully enforced by 2016 (see paragraph 32 above) . All the other judgments were enforced by 2013 (see paragraph 31 above).

94 . The Court observes that , given the available evi dence , it does not appear that , when enforc ing the relevant judgments , the authorities f ailed to comply with the legal conditi ons set out by Government Ordinance no . 71/2009 and its subsequent amendments.

95 . In the light of the above, the Court takes the view that the authorities ' actions were not unreasonable and did not affect the actual substance of the first and third applicants ' right of access to court.

96 . It follows that this part of the first and third applicants ' complaints is manifestly ill-founded and must be dismissed , pursuant to Article 35 §§ 3(a) and 4 of the Convention.

II . OTHER ALLEGED VIOLATION S OF THE CONVENTION

97 . Relying expressly or in substance on Articles 6, 8 and 14 of the Convention and on Articles 1 of Protocol No. 1 and 1 of Protocol No. 12 to the Convention , the first and third applicant s alleged of being victims also of other breaches of their Convention rights .

98 . The Court has examined these complaints as submitted by the applicant s . However, having regard to all the material in its possession and to the parties ' observations, and in so far as they fall within its jurisdiction, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill - founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

II I . APPLICATION OF ARTICLE 41 OF THE CONVENTION

99 . 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

100 . The first applicant clai med 5,000,000,000 Romanian l ei (RON - approximately 1,089,600,000 euros (EUR)) on behalf of herself and the third applicant in respect of non-pecuniary damage for the stress and humiliation they had suffered at the hands of the authorities and for the health problems the first applicant had developed during the proceedings .

101 . The Government argued that there was no causal link between the proceedings and the first applicant ' s health problems . Also, the amount claimed by the applicants was unjustified and excessive.

102 . Having regard to the violation found, t he Court accepts that the first applicant suffered some non - pecuniary damage as a result of the infringement of her rights under Article 6 of the Convention, which cannot be made good by the mere finding of a violation. Making an assessment on an equitable basis, it awards the first applicant EUR 3, 6 00 under this head, plus any tax that may be chargeable.

B. Costs and expenses

103 . The first applicant claimed RON 753. 80 (approximately EUR 165) for the costs and exp enses incurred before the Court. She submitted documents supporting her claims.

104 . The Government argued that the documents submitted by the first a pplicant attested that she had in fact incurred costs and expenses of only RON 633.40 (approximately 138 EUR) . T hey also left the matter of whether she should be granted that amount to the Court ' s discretion .

105 . 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 quantum. In the present case, regard being had to the documents in its possession and the above criteria , the Court considers it reas onable to award the first applicant the sum of EUR 165 covering costs and expenses in the proceedings before the Court.

C. Default interest

106 . The Court considers it appropriate that the default interest rate 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,

1. Declares admissible the first applicant ' s complaint under Article 6 § 1 of the Convention that her requests for overtime pay for the periods 2005 - 2007 and 2010-July 2011 and for financial compensation for unspent annual leave for the period January-July 2011 had been refused on the basis of divergent domestic case-law;

2. Declares the remainder of the application inadmissible;

3 . Holds that there h as been a violation of Article 6 § 1 of the Convention;

4 . Holds

(a) that the respondent State is to pay the first applicant , within three months , the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i ) EUR 3,600 ( three thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii ) EUR 165 ( one hundred and sixty-five euros), plus any tax that may be chargeable to the applicant , 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;

5 . Dismisses the remainder of the applicant s ' claim for just satisfaction.

Done in English, and notified in writing on 25 June 2019 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Andrea Tamietti Paulo Pinto de Albuquerque
Deputy Registrar Presiden t

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You are here: BAILII >> Databases >> European Court of Human Rights >> DUMITRU AND OTHERS v. ROMANIA - 57162/09 (Judgment : Article 6 - Right to a fair trial : Fourth Section Committee) [2019] ECHR 482 (25 June 2019) URL: http://www.bailii.org/eu/cases/ECHR/2019/482.html Cite as: [2019] ECHR 482