THIRD SECTION

DECISION

Application no . 54577/07 Dumitru DAVID against Romania

and 7 other applications

(see list appended)

The European Court of Human Rights ( Third Section), sitting on 9 April 2013 as a Committee composed of:

Luis López Guerra , President, Nona Tsotsoria , Valeriu Griţco , judges, Marialena Tsirli, Deputy Section Registrar ,

Having regard to the appended applications,

Hav ing regard to the decision of 6 March 2012,

Having regard to the observations submitted by the Romanian Government and the observations in reply submitted by the applicants,

Having regard to the judgement of Albu and Others v. Romania , no. 34796/09 and 63 other applications , 10 May 2012,

Having deliberated, decides as follows:

THE FACTS

All applicants reside in Romania and are Romanian nationals. The particulars relating to their names and other details are set out in the table appended hereto.

The Romanian Government (“the Government”) were represented by their Agent, Ms Catrinel Brumar , from the Ministry of Foreign Affairs.

A. The circumstances of the cases

The facts of the cases, as submitted by the applicants, may be summarised as follows.

The applic ants have retired under Law no. 3/1977. They had been employed in the mining or railroad industry, thus qualifying in principle as having worked in Group I working conditions for the purposes of Law no. 3/1977 (see Relevant domestic law and practice below).

These current applications concern essentially the recalculation of the applicants ’ pensions pursuant to Law no. 19/2000, as well as the alleged different outcomes of similar actions before the courts of appeal , depending on whether the “mandatory contribution period” ( stagiu de cotizare ) applicable for “special working conditi ons” was considered to be of 20 or 30 years.

A 30-year mandatory contribution period was taken into account by the pension authorities in the recalculation of the applicants ’ pensions. The applicants argued before the national courts that, for the recalculation of their pensions u nder Law no. 19/2000, a 20-year mandatory contribution period should have been taken into account, thus allegedly entitling them to a higher pension.

They relied on two lines of legal argument. Firstly, some of them claimed that they should receive the same treatment as persons having worked in “spec ial conditions”, under Articles 20 and 43 of Law no. 9/2000, and having retired after its entry into force, thus benefitting from a 20-year mandatory contribution period. Secondly, some of the applicants argued that the correct interpretation of Article 14 of Law no. 3/1977 resulted in a 20 ‑ year mandatory contribution period applicable in their cases. Furthermore, some of the applicants argued that Decision no. 40/2008 of the High Court of Cassation and Justice mandated a 20-year mandatory contribution pe riod, as it referred to Article 14 of Law no. 3/1977 in its operative part. They contended that this approach was followed by other courts of appeal, which had allowed identical claims of their former colleagues.

By final judgem ents delivered between 2006 and 2010 by various courts of appeal, the applicants ’ actions, seeking recalculation of their pensions by the pension authorities, were dismissed.

B. Relevant domestic law and practice

The relevant provisions of Law no. 3/1977 read as follows:

Article 1

“(3) Depending on the conditions, complexity and importance of the work, positions are categorized in Group I, II or III (...)”

Article 8

“(1) Working personnel having a length of employment of minimum 30 years for men and 25 years for women, respectively, are entitled to a pension [ ... ] when reaching the age of 62 for men and 57 for women. (...)”

Article 14

“(1) For persons having effectively worked for at least 20 years in positions which belong, according to the law, to Group I of working conditions, or at least 25 years in group II of working conditions, for the purposes of pension calculation, each year worked in any of these groups shall count as:

(a) one year and six months for persons in group I of working conditions.

(b) one year and three months for persons in group II of working conditions.

(2) On this basis, pe rsons having worked in groups I and II are entitled, upon their request, to retire when reaching the age of:

(a) 52 for men in group I and 57 for men in group II;

(b) 50 for women in group I and 52 for women in group II.”

The relevant pr ovisions of Law no. 19/2001 read as follows:

Article 20

“(a) For the purposes of this law, positions under special working conditions are those [...] in mining enterprises, for personnel spending in a given month at least 50% of monthly normal working hours underground; (...)”

Article 43

“(1) Persons having worked in any of the positions covered by Article 20 (a) and having achieved at least a 20 year contribution period under these conditions benefit from an age-limit pension from the age of 45 (...).”

Article 77

“(1) The average annual pension score accrued during the contribution period shall be determined by dividing the total number of points resulting from the addition of annual scores by the number of years constituting a complete mandatory contribution period (...).

(2) For persons covered by articles 43 (...) the mandatory contribution period provided by these articles shall be taken into account when determining the average annual score provided by § 1.”

The relevant provisions of the Decision no. 4 0 of 22 September 2008 rendered by the High Court of Cassation and Justice in an appeal in the interest of the law regarding the interpretation of Article 77 in conjunction with Article 43 of Law no. 19/2000, published in the Official Gazette on 20 May 2009 , read as follows:

“The courts do not have a unified point of view regarding the application of Article 77(2) in conjunction with Article 43 (1) and (2) of Law no. 19/2000 regarding the determination of the mandatory contribution period (...) for persons having retired between 1 July 1977 and 31 March 2001 and having been employed in special working conditions”

Thus, some courts have held that such persons benefit (...) from a mandatory contribution period of 20 years under Article 43 (1) of Law no. 19/2000. (...)

Other courts, have on the contrary, held that for such persons the mandatory contribution period (...) is that provided by the law in force at the time of their retirement. (...)

The only advantages offered by Law no. 3/1977 to persons employed in groups I and II are the group bonus and the possibility of retirement before reaching the standard retirement age, the provisions of Article 14 not implying a reduction of the mandatory contribution period (...).

These latter courts have correctly interpreted and applied the provisions of the law.(...)”

The operative part of the Decision no. 40 of 22 September 2008 of the High Court of Cassation and Justice , which was available prior to the publication of the decision in the Official Gazette, read as follows:

“ The provisions of Article 7 7 in conjunction with Article 43 of Law no. 19/2000 (...) are to be interpreted in the sense that the mandatory contribution period (...) for p ersons having retired between 1 July 1977 – 31 March 2001(...) is the one provid ed for by Article 14 of Law no. 3/1977 “ .

Until the publication of the appeal in the interests of the law , a number of courts of appeal have interpreted the Decision no. 40 of 22 September 2008 of the High Court of Cassation and Justice to imply a 30-year mandatory contribution period. Such is the case of Pite ÅŸ ti Court of Appeal, d ecision no. 375/R-CA of 2 March 2009, Ploie ÅŸ t i Court of Appeal, decisio n no. 755 of 14 April 2009, BraÅŸ ov Court of Appeal, decisions no. 768/R of 6 July 2010 and nos. 71 6/R, 707/R and 708/R of 29 June 2010, Craiova Court of Appeal, decision no. 5776 of 19 November 2010, Craiov a Court of Appeal, decision no. 5038 of 15 October 2010, and Cluj Court of Appeal, decision no. 2417/R of 6 October 2010.

Other courts of appeal ha ve interpreted the Decision no. 40 of 22 September 2008 of the High Court of Cassation and Justice to imply a 20-year mandatory contribution p eriod. Such is the case of Piteş ti Court of Appeal no. 562/R-CA of 23 March 2009, Bucharest Court of Appeal, de cisions no. 3988R of 17 October 2008, no. 4805R of 28 November 2008, no. 4859/R of 3 December 2008; no. 1528/P of 11 March 2009, no. 1895 of 25 March 2009, no. 4596R of 19 June 2009, no. 5423/R of 7 October 2009, no. 5868/R of 22 October 2009 and no. 6967R of 27 November 2009; Ploie ş t i Court of Appeal, decision no. 492 of 16 March 2009, Constan ţ a Court of Appeal, d ecisions no. 312/AS of 21 April 2009 and no. 77/AS of 2 March 2010, Gala ţ i Court of Appeal, decision no. 470/R of 5 May 2009, and Braş ov Court of Appeal, decisions nos. 1047/R and 1036/R of 5 October 2010.

COMPLAINTS

The applicants complain that their right to a fair trial, secured by Article 6 of the Convention, has been infringed on account of the diverging solutions adopted by national courts in allegedly identical cases regarding the recalculation of pensions for persons having retired under L aw no. 3/1977 based on the length of the mandatory contribution period taken into account. The applicants contend that the final decisions submitted by them in substantiation of the existence of a divergent case-law on the matter, spanning from 2005 to late 2010, confirm the existence of a widespread divergent case-law before the courts of appeal acros s the country, despite Decision n o. 40/2008 rendered by the High Court of Cassation and Justice in an appeal in the interest of the law.

They further complain in substance that the divergent solutions, allowing or, on the contrary, as in the applicants ’ case, dismissing identical pecuniary claims related to the pension calculation, also gave way to discr imination, in breach of Article 14 of the Convention and o f Article 1 of Protocol No. 12 to the Convention, r ead in conjunction with Article 6 mentioned above.

THE LAW

The applicants complain ed of the decisions of domestic courts in relation to their claims and alleged that they were in breach of Articles 6 § 1 and 14

of the Convention, of Article 1 of Protocol No. 12 to the Convention which, in so far as relevant read:

Article 6

“1. In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law ... .”

Article 14

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

Article 1 of Protocol No. 12

“1. The enjoyment of any right set forth by law 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.

2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.”

The Government contended that the legal issue raised in the present cases did not give rise to “profound and long-standing differences” . In any event, an appeal in the interest of law, considered an effective mechanism for the unification of Romanian case-law, was set in motion relatively promptly, in less than one year from the onset of the impugned divergence. As to the applicants ’ complaints of discrimination, the Government submitted that the mere existence of divergences in the case-law could not be regarded as discrimination. Moreover, the applicants had not indicated any criteria on the basis of which they had allegedly been discriminated.

The Court reiterates at the outset that it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 ‑ I) . It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation, its role being to verify whether the effects of such interpretation are compatible with the Convention, save in the event of evident arbitrariness, when the Court may question the interpretation of the domestic law by the national courts (see Nejdet Åžahin and Perihan Åžahin v. Turkey [GC], no. 13279/05 , §§ 49-50, 20 October 2011).

The possibility of conflicting court decisions is an inherent trait of any judicial system which is based on a network of trial and appeal courts with authority over the area of their territorial jurisdiction . Such divergences may also arise within the same court. That, in itself, cannot be considered contrary to the Convention, as d ivergences of approach may arise between the courts as part of the process of interpreting legal provisions while adapting them to the material situation. These divergences may be tolerated when the domestic legal system is capable of accommodating them (see Albu and Others v. Romania , cited above , §§ 38 ).

Turning back to the present cases, the Court notes that from the information submitted by the parties it appears that throughout the country the majority of courts gave similar rulings to the effect that persons having retire d between 1 July 1977 and 31 March 2001 and having been employed in special working conditions do not benefit from a mand atory contribution period of 20 years under Article 43 (1) of Law no. 19/2000.

In the light of the above, the Court finds that there were neither profound nor long-standing differences in the case-law of the domestic courts relating to the matter at stake in the present cases.

Moreover, the C ourt notes that on 22 September 2008 an appeal in the interests of the law was granted by the Romanian High Court of Cassation and Justice, which laid down binding guidelines for the uniform interpretation of the disputed legal provisions.

The solutions applied by the court of appeals in the present cases were similar to the interpretation given by the High Court of Cassatio n and Justice.

It is true that in the present cases, in contrast to the abovementioned case of Albu and Others , the applicants had relied on six contrary d ecisions delivered after 20 May 2009, when the appeal in the interest of the law had already been published. Nevertheless, the Court observes that the six decisions are an exception to the case-law, as at national level the domestic courts adopted a uniform approach, in accordance with the appeal in the interests of the law.

The Court recalls that achieving consistency of the law may take time, and periods of conflicting case-law may therefore be tolerated without undermining legal certainty (see Nejdet Şahin and Perihan Şahin , cited above, § 83), provided that the domestic legal system proves capable of accomodating them.

Having regard to all of the above, the Court considers that the mechanism, which is designed to resolve, and not preclude, conflicting court decisions, has proved to be effective and it has put an end to the divergence in the case-law concerning the recalculation of pensions for perso ns having retired under Law no. 3/1977.

Furthermore, the Court observes that the applicants had the benefit of adversarial proceedings, in which they were able to adduce evidence and freely formulate their defence and in which their arguments were properly examined by the courts. Likewise, the courts ’ conclusions and their interpretation of the relevant law cannot be regarded as manifestly arbitrary or unreasonable.

Lastly, the Court notes that there is no evidence in the case file that there has been any discrimination against the applicants on any grounds.

Having regard to all the above-mentioned considerations, the Court considers that the applicants ’ complaints are manifestly ill-founded and should be dismissed as inadmissible pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares inadmissible the remainder of the applications.

Marialena Tsirli Luis López Guerra Deputy Registrar President

APPENDIX: LIST OF APPLICATIONS

No

Application No

Lodged on

Applicant

Date of birth

Place of residence

Represented by

54577/07

26/11/2007

Dumitru DAVID

22/12/1939

Baia Mare

Mariana BUDULAN

2.

43636/06

19/10/2006

Ioan MIHALACHE

27/02/1931

Deva

3.

48039/09

08/09/2009

Constantin DUBINTOV

N/A

Schitu GoleÅŸ ti

Cornel Gheorghe TUTUIANU

4.

52596/09

23/09/2009

Ion NICOLESCU

N/A

Nucet

Viorel CIMPEANU

5.

63469/10

18/10/2010

Corneliu IOAN

29/10/1945

BraÅŸ ov

Arghir PORCA

29/02/1948

BraÅŸ ov

Ilie MARICA

03/09/1936

BraÅŸ ov

Marin SFANTU

22/03/1936

BraÅŸ ov

Vasile BARBU

6.

10666/11

04/02/2011

Paul DUMITRESCU

05/09/1947

Dră g ă ne ş ti-Olt

7.

13178/11

14/02/2011

Constantin MECHE

07/01/1948

Caracal

8.

20219/11

12/03/2011

Augustin CALUGAR

28/01/1938

Cluj Napoca

Claudiu Octavian ULICI