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THIRD
SECTION
CASE OF URSAN v. ROMANIA
(Application
no. 35852/04)
JUDGMENT
STRASBOURG
6 April 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Ursan v. Romania,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Elisabet
Fura,
Corneliu
Bîrsan,
Alvina
Gyulumyan,
Egbert
Myjer,
Ineta
Ziemele,
Ann
Power, judges,
and
Santiago
Quesada,
Section Registrar,
Having
deliberated in private on 16 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 35852/04) against Romania
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Romanian national, Ms Dorina Ursan (“the
applicant”), on 28 September 2004.
- The
Romanian Government (“the Government”) were represented
by their Agent, Mr Răzvan-Horaţiu
Radu.
- On
17 October 2007 the President of the Third Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1953 and lives in Iaşi.
- On
1 October 2002 the applicant was appointed to the post of director of
the Economics Department of the Romanian Waters Agency (“the
Agency”), a public institution under the authority of the
Ministry of Agriculture, Forestry, Water and the Environment (“the
Ministry”).
A. The Agency's decision of 21 July 2003 to dismiss the
applicant
- In
July 2003 the audit office of the Ministry investigated the Agency's
activity and discovered some irregularities. As a result, on 21 July
2003 the Agency dismissed the applicant for alleged mismanagement.
- On
5 August 2003 the Ministry certified mismanagement on the applicant's
part and on 12 August 2003 it lodged a criminal complaint against
her. It appears from the file that the proceedings are still pending.
- On
26 November 2003 the Bucharest County Court set aside the decision of
21 July 2003 and ordered the applicant's reinstatement and payment of
the salary due until her effective reinstatement. The court found
that no preliminary investigations had been carried out prior to that
decision.
That
judgment was quashed on grounds of incompatibility ratione loci,
but on 15 April 2005 the Iaşi County
Court set aside that decision and ordered the applicant's
reinstatement and payment of the difference between the salary earned
before and after the decision, until the applicant's effective
reinstatement. That ruling was upheld by a final decision of 4
October 2005 by the Iaşi Court of
Appeal.
B. The Agency's decision of 2 February 2004 to suspend
the applicant
- On
12 January 2004 the agency reinstated the applicant in her previous
position, but on 2 February 2004 it suspended her from office. That
decision was based on the existence of a criminal complaint against
the applicant, and stated that during the applicant's suspension,
which would remain in place until the end of the criminal
proceedings, she would be offered another post corresponding to her
qualifications. On 3 February 2004 she was appointed as economic
adviser in a local branch of the Agency.
- On
30 June 2004 the Iaşi County Court set
aside the decision of 2 February 2004 and ordered the Agency to
reinstate the applicant in her previous position as director of the
Economics Department and to pay her the difference between the salary
earned before and after that decision. The court considered that
decision to be unlawful, inter alia, because the criminal
complaint against the applicant had not been lodged by the Agency,
which was the applicant's employer, but by the Ministry, which had no
professional relationship with the applicant.
- On
27 July 2004 the Agency therefore declared void its decision of
2 February 2004, reinstated the applicant in her previous post
and paid her the outstanding salary.
- However,
on 2 December 2004 the Iaşi Court of
Appeal, by a final decision, allowed an appeal on points of law by
the Agency and dismissed the applicant's complaint against the
decision of 2 February 2004.
C. The Agency's decision of 16 August 2004 to suspend
the applicant
- According
to the Agency, on 6 August 2004 it lodged a criminal complaint
against the applicant.
- On
16 August 2004 the Agency again suspended her from her post, on the
basis of that criminal complaint.
- On
29 October 2004 the Iaşi County Court
set aside that decision and ordered the Agency to reinstate the
applicant in her previous post and to pay her, from 16 August 2004
until her effective reinstatement, compensation for pecuniary damage
in the form of an increased and updated salary, together with all the
other benefits to which she would have been entitled. The court held
that the Agency had not proved that it had lodged a criminal
complaint against the applicant.
- On
20 January 2005 the Iaşi Court of
Appeal, by a final decision, dismissed an appeal on points of law by
the Agency. However, in its reasoning the court found that the
decision of 16 August 2004 had been unlawful because the courts had
eventually confirmed the previous decision of 2 February 2004
suspending the applicant (see paragraph 12 above).
D. Attempts by the applicant to secure enforcement of
the judgment of 29 October 2004
- On
31 January 2005 the applicant requested the Agency to enforce the
judgment of 29 October 2004 (see paragraph 15 above). Following a
refusal by the Agency, the applicant lodged a criminal complaint on
27 February 2005 against its Director-General. Eventually, on 5
February 2007, the Bucharest District Court acquitted the
Director-General on the ground that his conduct had not amounted to a
criminal offence, but ordered him to pay a criminal fine. The court
also noted that the Agency's decision of 2 February 2004 had been
declared void by its subsequent decision of 27 July 2004
reinstating the applicant (see paragraph 11 above). That judgment
became final.
- On
2 February 2005 the applicant requested assistance from the
re-named
Ministry of the Environment and Water, under whose authority the
Agency continued to function, with a view to her reinstatement. On
13 May 2005 the Ministry replied that the judgment of 29 October
2004 was enforceable.
- Between
8 February 2005 and 4 July 2007 the applicant made successive
requests to a bailiff to attach the Agency's bank assets in order to
recover the salary due to her, increased and updated in line with
inflation. Several account statements issued between June 2005 and
December 2007 certified payment by the Agency of the amounts claimed
by the applicant.
In
particular, on 31 March 2005 she requested the bailiff to oblige the
Agency to reinstate her. In her request of 4 July 2007, the applicant
acknowledged that she had recovered salary for the period between
16 August 2004 and 31 March 2007, but that the Agency had still
not reinstated her.
- On
30 August 2006 the Ministry of the Environment and Water informed the
applicant that it had requested the Agency to enforce the judgment in
her favour.
- According
to the Agency, the applicant had not asked to be reinstated,
preferring to claim the corresponding salary. The applicant contested
this assertion.
E. Action by the applicant against the Agency seeking
reassessment of her salary and payment of social security
contributions
- On
1 October 2007 the applicant brought civil proceedings against the
Agency seeking reassessment of her salary on the basis of increases
and updates for the period 2003-2007, alleging that she was still
receiving a salary at the 2003 level. She also claimed payment of
social security contributions on her behalf.
- On
12 September 2008 the Iaşi County
Court refused her request. Having regard to the date on which it was
lodged, the court found that her claim relating to the period from 21
July 2003 to 1 October 2004 was time barred. As to the rest of
the period, it considered that the decision of 2 February 2004
which had suspended her from office was still in effect and therefore
the applicant was not entitled to a salary corresponding to the post
of director. Since it had dismissed her main claim for payment of
salary, the court also dismissed her secondary request for payment of
social security contributions.
- On
20 January 2009 the Iaşi Court of
Appeal, by a final decision, dismissed an appeal on points of law by
the applicant and upheld the decision of the first-instance court,
but varied its reasoning. Thus, it found that the decision of 2
February 2004 had been actually rendered void by the subsequent
decision of 27 July 2004 to reinstate the applicant
(see
paragraph 11 above). The court further noted that the decision of
27
July 2004 had been issued in accordance with the judgment of
30
June 2004, but had not been annulled by the Agency following the
final decision of 2 December 2004 (see paragraph 12 above).
Therefore, the professional relationship between the applicant and
the Agency had not been suspended.
The
court further noted that, under the judgments of 15 April 2005 (see
paragraph 8 above) and 29 October 2004 (see paragraph 15 above), the
Agency had an obligation to reinstate the applicant in her previous
post and to pay her, until her effective reinstatement, compensation
for pecuniary damage in the form of an increased and updated salary.
It also found that following the attachment of the Agency's accounts
she had received the amounts due from the Agency.
While
her claim for the period from 21 July 2003 to 1 October 2004 was
time-barred, the applicant was not entitled to a salary after that
date either, since she had not been reinstated, but only to damages
corresponding to an increased and updated salary. The court held that
the above-mentioned judgments had already been enforced by means of
attachment of the Agency's accounts. However, the amount of damages
paid could be challenged by an objection to execution under Article
399 of the Code of Civil Procedure, not by an action for reassessment
of salary such as that brought by the applicant. Finally, since the
Agency could not be ordered to pay a salary to the applicant, it
could not be ordered to pay social security contributions on her
behalf either.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
- The
applicant complained that the non-enforcement of the judgment in her
favour had infringed her rights guaranteed by Article 6 § 1 of
the Convention and Article 1 of Protocol No. 1 to the Convention,
which, in so far as relevant, read as follows:
Article 6 § 1
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal...”
Article 1 of Protocol No. 1
“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 contested that argument.
A. Admissibility
- The
Court notes that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that they are not inadmissible on any other grounds.
They must therefore be declared admissible.
B. Merits
- In
their observations of 28 March 2008 the Government argued that the
non-enforcement of the judgment of 29 October 2004 of the Iaşi
County Court, as far as the applicant's reinstatement was concerned,
had been due to the objective circumstance that the final decision of
2 December 2004 of the same court had validated the Agency's decision
of 2 February 2004 to suspend her from office (see paragraph 12
above).
As
far as payment of the salary arrears was concerned, the Government
submitted that the domestic courts had endorsed the attachment by the
bailiff of the Agency's assets; the judgment of 29 October 2004 had
therefore been enforced in that respect.
- The
applicant contested those arguments, arguing that her right to be
reinstated had been recognised by a final court decision and that the
Agency had refused to perform that obligation. She further submitted
that she had recovered salary only at the 2003 level, without
benefitting from increases and updates in line with inflation as
provided for by the judgment of 29 October 2004. Moreover, the
Agency had not paid the social security contributions due on her
behalf.
- The
Court reiterates that execution of a final judgment given by any
court must be regarded as an integral part of the “trial”
for the purposes of Article 6 of the Convention. (see Hornsby v.
Greece, 19 March 1997, § 40, Reports of Judgments and
Decisions 1997 II, and Immobiliare Saffi v. Italy
[GC], no. 22774/93, § 63, ECHR 1999-V). When the authorities are
obliged to act in order to enforce a judgment and they fail to do so,
their inactivity can engage the State's responsibility on the ground
of Article 6 § 1 of
the Convention (see Scollo v. Italy,
28 September 1995, § 44, Series A
no. 315 C).
- The
Court notes in the present case that by a judgment of 29 October 2004
the Iaşi County Court ordered a public
institution to reinstate the applicant in her previous post and to
pay her compensation for pecuniary damage until her effective
reinstatement. That judgment gave rise to a “possession”
within the meaning of Article 1 of Protocol No. 1.
- The
Court further observes that the applicant has not been reinstated in
her previous post, although the domestic authorities have not found,
in a definitive manner, that it is impossible to reinstate her (see
Ştefanescu v. Romania, no. 9555/03, § 25, 11
October 2007). Moreover, by a final decision of 20 January 2009 the
Iaşi Court of Appeal confirmed the
Agency's obligation to reinstate the applicant (see paragraph 24
above). That judgment also invalidates the Government's plea of
objective conditions preventing enforcement of that obligation in the
form of a decision by the Agency to suspend her from office which was
still in force. The Court also finds that the Agency has not made any
attempt to reinstate the applicant.
- As
to the obligation to pay compensation for pecuniary damage until the
applicant's effective reinstatement, the Court notes that the Agency
paid the amounts claimed by the applicant, at least for the period
between February 2005 and July 2007 (paragraph 19 above), and that
the Iaşi County Court also stated in
its final decision of 20 January 2009 that the judgments in the
applicant's favour had already been enforced by means of the
attachment of the Agency's accounts (see paragraph 24 above). The
Court sees no reasons to depart from those findings. However, since
the obligation to pay persists until the applicant's effective
reinstatement, the Court cannot consider that it has been fully
enforced.
- The
Court further notes that, invoking the same judgment of 29 October
2004, the applicant claimed a higher amount of damages, as well as
payment by the Agency of social security benefits on her behalf. On
this point, the Court considers that the domestic courts have already
examined and decided on that matter (see paragraph 24 above).
Accordingly, in the present case the Court cannot substitute its view
for that of the domestic courts with regard to the amount of damages
and payment of social security contributions.
- The
Court has frequently found violations of Article 6 § 1 of
the
Convention and Article 1 of Protocol No. 1 in cases raising issues
similar to the ones in the present case (see, among others, Miclici
v. Romania, no. 23657/03, 20 December 2007, and Vasile
Niţescu v. Romania, no. 20763/03, 21 April 2009).
- Having
examined the material submitted to it, the Court notes that the
Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
There has accordingly been a violation of Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Article 6 § 1 that the proceedings
terminated by the final decision of 20 January 2009 had been unfair,
that the domestic courts had been neither independent nor impartial,
and that they had failed to assess the facts correctly and had
misinterpreted the domestic law. She further complained that the
courts had not awarded her the difference in salary claimed and had
not ordered the Agency to pay social security contributions on her
behalf.
- Having
carefully considered the applicant's submissions in the light of all
the material in its possession, the Court finds that, in so far as
the matters complained of are within its competence, they do not
disclose any appearance of a violation of the rights and freedoms set
out in the Convention.
- It
follows that this part of the application must be declared
inadmissible as being manifestly ill-founded, pursuant to Article 35
§§ 3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 26,189 euros (EUR) in respect of pecuniary damage,
representing the difference between the amount of EUR 60,000
allegedly due and the amount of EUR 33,811 that she had already
recovered. The amount claimed included the increases in salary and
the social security contributions. In a subsequent letter, she
brought that amount up to date. The applicant further claimed EUR
182,500 as a pecuniary penalty for the delay in enforcement. In
respect of non-pecuniary damage she claimed EUR 150,000.
- The
Government submitted that the Agency had paid the amounts due under
the judgment of 29 October 2004. Furthermore, they considered that
the finding of a violation would constitute in itself sufficient just
satisfaction for any non-pecuniary damage which the applicant might
have suffered.
- The Court reiterates that, where it has found a breach
of the Convention in a judgment, the respondent State is under a
legal obligation to put an end to that breach and make reparation for
its consequences in such a way as to restore as far as possible the
situation existing before the breach (see Iatridis v. Greece
(just satisfaction) [GC], no. 31107/96, § 32, ECHR
2000-XI). If national law does not allow – or allows only
partial – reparation to be made, Article 41 empowers the Court
to afford the injured party such satisfaction as appears to it to be
appropriate. The Court enjoys
a certain discretion in the
exercise of that power, as the adjective “just” and the
phrase “if necessary” attest. In particular, if one or
more heads of damage cannot be calculated precisely or if the
distinction between pecuniary and non-pecuniary damage proves
difficult, the Court may decide to make a global assessment (see
Comingersoll S.A. v. Portugal [GC], no. 35382/97, §
29, ECHR 2000-IV).
- The
Court observes that in the present case it has found a violation of
Article 6 § 1 of the Convention and Article 1 of Protocol No. 1
in that the applicant was not reinstated in her previous post and was
also not paid full compensation in respect of pecuniary damage until
her effective reinstatement.
- Therefore,
the Court considers that, in so far as the judgment of 29 October
2004 remains in force, the State's outstanding obligation to enforce
it cannot be disputed. Accordingly, the applicant is still entitled
to enforcement of that judgment. The Court reiterates that the most
appropriate form of redress in respect of a violation of Article 6 is
to ensure that the applicant as far as possible is put in the
position he would have been in had the requirements of Article 6 not
been disregarded (see Piersack v. Belgium (Article 50), 26
October 1984, § 12, Series A no. 85). The Court finds that this
principle also applies in the present case, having regard to the
violations found. It therefore considers that the Government must
secure, by appropriate means, the enforcement of the judgment of 29
October 2004, namely the reinstatement of the applicant in her
previous post and payment of compensation for pecuniary damage until
her effective reinstatement.
- The
Court further points out that its judgments are essentially
declaratory in nature. In general, it is primarily for the State
concerned to choose the means to be used in its domestic legal order
in order to discharge its legal obligation under Article 46 of the
Convention (see Shofman v. Russia, no. 74826/01, §
53, 24 November 2005, with further references). By finding a
violation of Article 6 § 1 of the Convention and Article 1 of
Protocol No. 1 in the present case, the Court has established the
Government's obligation to take appropriate measures to remedy the
applicant's individual situation, that is, to ensure compliance with
the applicant's enforceable claim under the judgment of 29 October
2004 (compare with Fadeyeva v. Russia, no. 55723/00, §
142, ECHR 2005-...). Whether this involves reinstating the applicant
in her previous job or in an equivalent job or, if this is not
possible, granting her reasonable compensation for non-enforcement,
or a combination of these and other measures, is a decision that
falls to the respondent State (see Tarverdiyev v. Azerbaijan,
no. 33343/03, § 66, 26 July 2007). The Court, however,
emphasises that any measures adopted must be compatible with the
conclusions set out in the Court's judgment (see Assanidze v.
Georgia [GC], no. 71503/01, § 202, ECHR 2004-II, with
further references).
- As
regards the amount of money claimed by the applicant in respect of
the difference in salary and of social security contributions, the
Court reiterates its findings in paragraph 34 above and will not make
an award under this head.
- As
regards the amount claimed by the applicant as the equivalent of a
periodic pecuniary penalty, the Court reiterates that under Romanian
law a coercive fine is an indirect means of securing enforcement (see
Gavrileanu v. Romania, no. 18037/02, § 66,
22 February 2007). In the present case, as the applicant has not
made use of the judicial mechanism of the coercive fine, the Court
will not speculate as to its amount and therefore will not make an
award under this head.
- The
Court further considers that the serious interference with the
applicant's right of access to a court and to the peaceful enjoyment
of her possessions cannot be adequately compensated for by the simple
finding of a violation of Article 6 § 1 of the Convention and
Article 1 of Protocol No. 1.
- Making
an assessment on an equitable basis, as required by Article 41
of the Convention, the Court awards the applicant EUR 4,800 in
respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 10,253 for costs and expenses, covering
lawyers' fees, translations, postal costs, transport, accommodation
and the production of an expert report. She submitted invoices and
copy of a legal assistance contract.
- The
Government contested these claims. In particular, they considered
that the legal assistance contract had not included information
proving a causal link with the present application. However, they
agreed with the amount relating to fees for correspondence with the
Court.
- 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 information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 350 covering costs
under all heads.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints concerning Article 6
§ 1 of the Convention and Article 1 of Protocol No. 1 in respect
of the enforcement of a final decision admissible and the remainder
of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention and Article 1 of Protocol No. 1;
- Holds
(a) that
the respondent State shall ensure, by appropriate means, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
the enforcement of the judgment of 29 October 2004 of the Iaşi
County Court;
(b) that
the respondent State is to pay the applicant, within the same three
months, the following amounts, to be converted into the national
currency of the respondent State at the rate applicable at the date
of settlement:
(i) EUR
4,800 (four thousand eight hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR
350 (three hundred and fifty euros), plus any tax that may be
chargeable to the applicant, in respect of costs and expenses;
(c) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 6 April 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
