Refusal to grant an allowance. The deprivation of the right to be heard by the parties has violated the right to a fair trial

JUDGMENT 

Elisei-Uzun and Andonie v. Romania 23.04.2019 (no. 42447/10)

see here

SUMMARY 

Discrimination between officials. Refusal to grant allowance to specific employees of the Ministry of Justice. Failure to take part in the hearing before the Court of Appeal against the decision to grant benefits. Abolition of allowances due to constitutional legislative changes. The ECtHR held that there was a violation of the right to be heard, as the national court dismissed the applicants’ claim without giving them the opportunity to support their case and without giving sufficient reasons for rejecting their claim. Infringement of Article 6 (1) of the ECHR. No violation of Article 1 of the First Additional Protocol due to a proper balance between the right to property and the public interest, as the legislation no longer provided for the specific benefits.

PROVISIONS 

Article 6§1

Article 14

Article 1 of the First Additional Protocol

Article 1 of the 12th Protocol

PRINCIPAL FACTS 

The applicants were born in 1975 and live in Târgu-Mureş. They began working as judicial officers at
the Mureş County Court in June 2000.

The case concerned access to a court to complain about alleged discriminatory treatment.
In December 2007 Mr Elisei-Uzun and Mr Andonie brought an action in Mureş County Court seeking
compensation equivalent to the “loyalty bonus” (spor de fidelitate) to which they felt they were
entitled in respect of their salary since December 2004. They complained that although they had met
the same requirements as all the other judicial and non-judicial court staff who had received the
loyalty bonus, they had been excluded by legal provisions from benefiting from it. They brought the
action against their employer, the Ministry of Justice and the Ministry of the Economy and Finance.
In February 2008 the County Court allowed the claim and ordered that the applicants be paid
compensation for discrimination. The Ministry of Justice and the Ministry of Finance appealed, but in
final decision of May 2008 the Court of Appeal dismissed the appeal. It considered that the
applicants had proved discrimination. The court relied on the laws regulating “confidentiality
bonuses” (spor de confidenţialitate). Meanwhile, the authorities paid each of the applicants 30% of
the compensation due.

In November 2008 the applicants lodged an application for the correction of material errors in the
Court of Appeal’s decision. They asked that the word “confidentiality” be replaced with the word
“loyalty”. The Court of Appeal allowed the application, since the use of the phrase “confidentiality
bonus” had stemmed from a technical error and did not affect the reasoning of the judgment.
The Ministry of Justice lodged an extraordinary appeal against the final decision of May 2008. It
pointed out that the subject matter of the dispute was not a confidentiality bonus, but rather a
loyalty bonus. In October 2009, the Court of Appeal allowed the extraordinary appeal and quashed
the final decision. It ruled that the subject matter of the dispute had been wrongly determined as
being an entitlement to a confidentiality bonus. That could not be considered as a simple material
error. It also observed that the Constitutional Court had declared the relevant provisions of the Antidiscrimination Ordinance to be unconstitutional and concluded that there were no longer any legal
grounds to support the applicants’ action. It thus rejected the applicants’ initial action.

Mr Elisei-Uzun and Mr Andonie lodged several unsuccessful appeals against that decision.
Relying on Article 6 § 1 (right to a fair hearing) of the European Convention on Human Rights and
Article 1 of Protocol No. 1 (protection of property) to the Convention, the applicants complained
that the Court of Appeal’s October 2009 decision had breached the principle of legal certainty as it had set aside a final and binding judgment which, in addition, had been partially enforced. They further complained, in particular, that their rights under Article 6 § 1 had been breached since the Court of Appeal in this decision had dismissed their action without allowing them the opportunity to present their case and without giving sufficient reasons for dismissing their claim.

THE DECISION OF THE COURT …

Regarding the facts of the case under examination, the Court notes at the outset that the two courts which had found in the applicants’ favour had examined the merits of their claim for compensation and had relied, in addition to the domestic law, directly on the Convention. However, the Court of Appeal in its impugned decision of 14 October 2009 considered that the applicants’ initial action had been about a legislative change and relied exclusively on the decisions rendered by the Constitutional Court. In doing so the Court of Appeal failed to explain on what grounds it considered that those decisions were relevant to the applicants’ action. In addition, it made no reference to the relevant Convention provisions (which moreover had not been the object of the Constitutional Court’s examination).

More importantly, the applicants were not given the opportunity to discuss the applicability of the Constitutional Court decisions, as in the same hearing the court examined the extraordinary appeal and re-tried the applicants’ initial action. Admittedly, the applicants asked the court to examine the case in their absence.Therefore, that court should have sought the parties’ opinion on the merits of the original action in the light of the recent developments brought by the Constitutional Court decision, in particular since the interpretation of the legal provisions at stake was a contentious point during the first set of proceedings which took place before the adoption of the said decisions .

However, in reality the Court of Appeal examined in the same hearing both the extraordinary appeal and the initial action lodged by the applicants .The applicants were not able to argue their case on the merits and in particular to comment on the possible consequences of the Constitutional Court’s decisions of 3 July 2008.

Nevertheless   the domestic courts have a duty to allow the parties to present their arguments and to conduct a proper examination of the submissions, arguments and evidence adduced by the parties. In the particular circumstances of the present case, the Court considers that the introduction, in the Court of Appeal’s reasoning, of the argument based on the unconstitutionality of the provisions of the Anti-discrimination Ordinance took the applicants by surprise and breached the principle of adversarial proceedings.

In addition, the Court cannot find any argument in the Court of Appeal’s decision of 14 October 2009 which would explain why that court considered that it could not rely directly on the provisions of the Constitution, which enshrines the principle of equality and non‑discrimination and of the Convention, as the County Court had done in order to decide the merits of the applicants’ complaint. The Court observes in this connection that the reasoning of the Court of Appeal also contains no reference to the Court’s case-law on Article 14 of the Convention or Article 1 of Protocol No. 12.

In the light of the above, the Court considers that the Court of Appeal in its final decision of 14 October 2009 has dismissed the applicants’ action without allowing them the opportunity to present their case and without giving sufficient reasons for dismissing their claim. It has thereby violated the applicant’s right to a fair trial, so  there has accordingly been a violation of Article 6 § 1 of the Convention.

Lastly, the applicants complained that the denial of a loyalty bonus had constituted discrimination on the grounds of their profession, in violation of Article 14 of the Convention taken together with Article 1 of Protocol No. 1 to the Convention, as well as of Article 1 of Protocol No. 12 of the Convention.

The Court finds that the domestic courts struck a fair balance between the applicant’s rights to protection of property and the general interest in correcting miscarriages of criminal justice so there has not been violation of Article 1 of Protocol No. 1, in conjunction with a violation of Article 14 and Article 1 of Protocol No. 12 of the Convention.

Just satisfaction : the Court awards EUR 4,000 to each applicant in respect of non-pecuniary damage,   and EUR 1,350 to each applicant for costs and expenses(echrcaselaw.com editing).

 


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