THIRD SECTION

DECISION

Application no . 43502/04 Alexandru TIVODAR against Romania

The European Court of Human Rights (Third Section), sitting on 2 October 2012 as a Committee composed of:

Egbert Myjer , President, Luis López Guerra , Kristina Pardalos , judges, and Santiago Quesada , Section Registrar ,

Having regard to the above application lodged on 22 November 2004,

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

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Alexandru Tivodar , is a Romanian national, who was born in 1948 and lives in Vulcan. He is rep resented before the Court by Mr P. F. Kovacs, a lawyer practising in Vulcan.

The Romanian Government (“the Governm ent”) were represented by their Agent, Mrs I. Cambrea , from the Ministry of Foreign Affairs.

A. The circumstances of the case

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

3. The applicant retired on 19 January 1998. His pension was determined on the basis of the Pension Act in fo rce at the time, namely Law no. 3/1977.

4. Following the entr y into force of the new Pension Act on 1 March 2001, namely, Law no. 19/2000, the applicant lodged an action with a view to having his pension recalculated in accordance with the provisions of the new legislation.

5. In a hearing held on 23 March 2004, the Hunedoara County Court refused the applicant ’ s request to adduce as evidence a financial report. In a judgement delivered on the same date, the applicant ’ s action was dismissed with the reasoning that the new law did not impose an obligation to recalculate the pension rights of persons who retired between 1 January 1998 and 31 March 2001 which did not comply with certain criteria. The County Court concluded that the applicant, who retired during that period, should not benefit from having his pension recalculated on the basis of the new Pension Act.

6. The applicant lodged an appeal on points of law, claiming, inter alia , that similar cases had had a favourable outcome; that the case had been judged without an analysis of the merits and that the financial report that he had asked to be adduced to the case file had been dismissed.

7. The Alba Iulia Court of Appeal, by a final decision of 11 October 2004 upheld the first-instance judgement, finding that the lower court had correctly interpreted and applied the law to the specific case.

B. Relevant domestic law and practice

1. Relevant domestic law

2. Relevant domestic practice

9. The applicant submitted a copy of a decision given on 20 April 2004, in which the Alba Iulia Court of Appeal allowed a similar claim for the recalculation of a pension on the basis of the new Pension Act. In that decision it was concluded that for persons who retired between 1 January 1998 and 31 March 2001 the Pension Authority had a duty to recalculate the person ’ s pension on the basis of the average point level reached during their entire working life.

COMPLAINTS

11. The applicant raised several compla ints under Article 6 § 1 of the Convention: that his case was judged without an analysis of the merits; that he was not allowed to adduce evidence; that in the appeal proceedings he received the defendant ’ s arguments only on the day of the hearing; that similar cases reviewed by the same court of appeal received conflicting decisions.

12. By a letter of 16 January 2007, the applicant complained that he was discriminated against in relation to other citizens who had worked under similar circumstances and who benefitted from higher pension rights than him.

He further complained of the fact that his decision to retire was unlawfully issued only on 19 January 1998, even though his request for retirement was submitted in December 1997.

He complained that the new Pension Act has been amended numerous times by Government Emergency Ordinances, which is contrary to the Romanian Constitution and leads to a state of legislative uncertainty.

THE LAW

A. Article 6 § 1 of the Convention

13. The applicant complained that the same court of appeal had applied conflicting case-law to identical claims and it had decided his case wrongly. He relied in substance on Article 6 § 1 of the Convention, which reads as follows:

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

14. The Government cont ended that the Alba Iulia Court of Appeal had a consistent approach in respect of civil actions concerning the recalculation of pension rights in the light of the new Pension Act. It ruled that persons who retire d between 1 January 1998 and 31 Marc h 2001 were not automatically entitled to the recalculation of their pension rights in accordance with the new legislation. They submitted copies of two hundred and fo r ty six decisions delivered on the relevant period by the Alba Iulia Court of Appeal. They maintained that the applicant had not properly argued and/or documented his complaint of inconsistent case ‑ law ; except from a copy of one conflicting decision, submitted together with his initial application he had not submitted any other evidence in this respect.

15. In its Grand Chamber judgment in Ne jdet Şahin and Perihan Şahin v. Turkey ([GC], no. 13279/05, 20 October 2011), the Court reiterated the main principles applicable in cases concerning the issue of conflicting court decisions (§§ 49-58). These can be summarised as follows:

( i ) It is not the Court ’ s 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). Likewise, it is not its function, save in the event of evident arbitrariness, to compare different decisions of national courts, even if given in apparently similar proceedings, as the independence of those courts must be respected (see Ä€damsons v. Latvia , no. 3669/03, § 118, 24 June 2008);

(ii) 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 (see Santos Pinto v. Portugal , no. 39005/04, § 41, 20 May 2008, and Tudor Tudor v. Romania , no. 21911/03, § 29, 24 March 2009 );

(iii) The criteria that guide the Court ’ s assessment of the conditions in which conflicting decisions of different domestic courts ruling at last instance are in breach of the fair trial requirement enshrined in Article 6 § 1 of the Convention consist in establishing whether “profound and long ‑ standing differences” exist in the case-law of the domestic courts, whether the domestic law provides for machinery for overcoming these inconsistencies, whether that machinery has been applied and, if appropriate, to what effect (see Iordan Iordanov and Others v. Bulgaria , no. 23530/02 , §§ 49-50 , 2 July 2009 ; see also Beian v. Romania (no. 1) , no. 30658/05, §§ 34 ‑ 40 , ECHR 2007 ‑ V (extracts) ; Åžtefan and Åžtef v. Romania , nos. 24428/03 and 26977/03, §§ 33-36, 27 January 2009; and Åžtefănică and Others v. Romania , no. 38155/02 , § 36, 2 November 2010 );

(iv) The principle of legal certainty guarantees, inter alia , a certain stability in legal situations and contributes to public confidence in the courts. The persistence of conflicting court decisions, on the other hand, can create a state of legal uncertainty likely to reduce public confidence in the judicial system, whereas such confidence is clearly one of the essential components of a State based on the rule of law (see Paduraru v. Romania , § 98, no. 63252/00, ECHR 2005-XII (extracts); Vinčić and Others v. Serbia , nos. 44698/06 and others, § 56, 1 December 2009; and Ştefănică and Others , cited above, § 38).

16. In order to assess the conditions in which conflicting decisions of domestic courts ruling at last instance are in breach of the fair trial requirement enshrined in Article 6 § 1 of the Convention, the Court will first of all examine whether “profound and long-standing differences” exist in the case ‑ law of the domestic courts (see, for instance, Albu and Others v. Romania , nos. 34796/ 09 and 63 other applications, § 34, 10 May 2012).

17. Turning to the present case, the Court notes that the applicant ’ s request for the recalculation of his pension ri ghts in accordance with the New Pension Act was di smissed by the Alba Iulia Court of Appeal on 11 October 2004.

18. The Court further notes that the applicant had submitted only one copy of a conflicting decision of the same court of appeal, even though he contented that he knows of some fifty other decisions with an outcome different than his. It also notes that the Government had submitted copies of two hundred forty six decisions delivered on the relevant period by the same court of the appeal dismissing similar requests for the recalculation of the pension rights.

19. The Court considers therefore that the decision invoked by the applicant could be considered as an exception to the case-law, rather than the other way round. In such circumstances, it cannot be said, at least in so far as the applicant is concerned, that there had been “profound and long ‑ standing differences” in the relevant case-law, nor that this had resulted in judicial uncertainty, during the period in question.

20. It should also b e noted that the decision of 11 October 2004 concerning the applicant was duly reasoned, in terms of the facts and the law and the interpretation made by the Alba Iulia Court of Appeal of the facts submitted to it for examination cannot be said to have been arbitrary, unreasonable or capable of affecting the fairness of the proceedings. Furthermore, in the light of the material in its possession, there is no appearance of violation of a ny procedural rules by the Alba Iulia Court of Appeal.

21. Having regard to all of the above, the Court finds that there has been no breach of the very substance of the applicant ’ s right to a fair trial.

22. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Remaining complaints

23. The Court notes that the complaints raised in the applicant ’ s letter of 19 January 2007 were never raised before the domestic courts.

That being so, having regard to all the materials in its possession, and in so far as these complaints fall within its competence, the Court finds that there is no appearance of a violation of the rights and freedoms set out in these provisions in that respect. It follows that these complaints must be rejected, pursua nt to Article 35 §§ 1, 3(a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Santiago Quesada Egbert Myjer Registrar President