Communicated on 17 November 2016

FOURTH SECTION

Application no. 49392/09 Maria DIMA and Nicoleta Luci REGHIȘ against Romania lodged on 7 September 2009

STATEMENT OF FACTS

The applicants, Ms Maria Dima (the first applicant) and Ms Nicoleta Luci Reghiș (the second applicant) are Romanian nationals who were born in 1954 and 1999 respectively. They both live in C ă lăra ş i .

A. The circumstances of the case

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

The first applicant has been working as a foster parent ( asistent maternal ) at the Călăraşi Office for Social Care and Child Protection ( Direc ț ia General ă de Asistență Socială ş i Protecția Copilului Călăraşi , hereafter “the DGASPCC”) since 2000. The organisation forms part of the Călăraşi County Council.

1. Background to the case

In 1999, immediately after birth, the second applicant was placed in a State institution because of her biological mother ’ s poor living conditions. From October 1999 onwards her biological mother stopped visiting her because she was unable to pay the necessary travel expenses. Consequently, by a court judgment of 5 September 2001, the second applicant was declared abandoned.

On 13 June 2001 the DGASPCC placed the second applicant with the first applicant.

In 2006 the second applicant ’ s biological mother re-established contact with her, and asked for her to be reintegrated into her biological family. Subsequently, the mother asked the DGASPCC to move the second applicant to a foster parent or children ’ s home in Arad, in order to facilitate her having contact.

In June 2006 the Călăraşi County Court dismissed the DGASPCC ’ s application to have the second applicant moved to a children ’ s home in Arad.

In 2007 the DGASPCC started new proceedings, seeking to reintegrate the second applicant into her biological extended family, namely her brother ’ s family.

On 27 June 2007 the Călăraşi County Court allowed the DGASPCC ’ s application for the court to approve the second applicant ’ s reintegration into her biological extended family and give permission to the family to exercise parental rights in respect of the child. The court also ordered that the placement of the second applicant with the first applicant be discontinued.

On 21 December 2007 the DGASPCC decided to place the second applicant with the first applicant as a matter of urgency, because enforcement of the judgment of 27 June 2007 had not been possible, as the second applicant had strongly objected to it.

On 22 January 2008 the DGASPCC asked the Călăraşi County Court to maintain the second applicant ’ s placement with the first applicant and allow the President of the Călăraşi County Council to exercise parental rights in respect of the second applicant.

On 28 February 2008 the Călăraşi County Court allowed the DGASPCC ’ s application of 22 January 2008, on the grounds that the placement of the second applicant in foster care would provide better living and schooling conditions for her, and would be in her best interests. The court held that the second applicant was to live with the first applicant, and that the President of the Călăraşi County Council was to exercise parental rights. The court noted that the attempts to integrate the applicant into her extended family had failed because of the second applicant ’ s strong opposition and lack of adequate preparation. The second applicant had refused to accompany her relatives to Arad and had run away from the DGASPCC ’ s office, being returned by the police. The court further noted that, according to the second applicant ’ s statements, she had wanted to maintain a connection with her biological family, but had refused to live with them. Consequently, the DGASPCC had decided to postpone the reintegration proceedings and initiate counselling sessions in order to prepare the second applicant for reintegration and avoid psychological trauma that would have threatened her normal development.

2. Proceedings initiated by the first applicant against the DGASPCC for salary and benefits

On an unspecified date in 2008 the first applicant initiated proceedings against the DGASPCC, seeking a court order for payment of her salary and holiday pay ( indemniza ț ie de concediu de odihn ă ) for the period 2005-2007, a supplement for the extra work she had performed ( spor pentru munc ă nenormată ), and an additional overtime payment ( plata orelor suplimentare ). She also claimed reimbursement of expenses relating to her medical examinations and blood tests. Furthermore, she argued that the second applicant had not been given the housing, placement and food allowances to which she had been entitled under the relevant legal provisions. Lastly, she claimed non-pecuniary damages, as well as costs and expenses.

On 2 September 2009 the first applicant withdrew her claim regarding the supplement for the extra work she had performed, because the supplement was paid by the employer voluntarily.

On an unspecified date the Călăraşi County Council intervened in the proceedings as a third party and asked the domestic courts to dismiss the proceedings initiated by the applicant against the DGASPCC. It argued, inter alia , that the first applicant had had no right to claim the benefits allegedly not given to the second applicant, because those benefits were for children, and only the President of the Călăraşi County Council had a legal right to make such a claim.

On 7 October 2008 the Călăraşi County Court allowed the first applicant ’ s action in part, and ordered the DGASPCC to pay her holiday pay for the period 2005-2007 and salary for the period October-December 2007, adjusted according to the rate of inflation. The court ordered the DGASPCC to give the second applicant the allowances provided for by Articles 1 and 2 of Law no. 326/2003 on the rights enjoyed by children in foster care, to which she had been entitled for the last quarter of 2007 and from 8 June 2005 onwards, adjusted according to the rate of inflation. Also, the court ordered the DGASPCC to pay the first applicant ’ s costs and expenses. The court held that the contractual relationship between the first applicant and the DGASPCC was special in nature, as foster parents worked from home and were responsible for raising , caring for and educating the children entrusted to their care. However, even though the contractual relationship was special in nature, the provisions of the Romanian Labour Code applied. Consequently, the first applicant had been entitled to holiday pay. According to Articles 1 and 2 of Law no. 326/2003, a child was entitled to a food allowance, which had to be paid to a foster parent. The argument that only the President of the County Council could claim the allowance had been childish and ill-founded. The court held that the first applicant had been entitled to be reimbursed for the costs and expenses she had incurred before the court. However, it held that she had not been entitled to an overtime payment, because it would have been impossible to calculate the number of the overtime hours worked, given the special nature of her work. Her claim for housing allowance was also rejected, on the grounds that the applicants did not live in rented accommodation. Lastly, the court dismissed the first applicant ’ s claim for non-pecuniary damages, on the grounds that her employer had refused to pay the payments awarded by the court as a result of erroneous interpretation of the law, and not as a result of bad faith.

The first applicant appealed on points of law ( recurs ) against the judgment of 7 October 2008. She argued that a week earlier the first-instance court had allowed a trade union ’ s claims for overtime payments against the same employer. The court had unlawfully dismissed her claim for housing allowance and had failed to examine her claim for reimbursement of her medical examination and blood test expenses. It had also dismissed her claim for non-pecuniary damages by wrongly assessing the evidence.

By a final judgment of 27 April 2009 the Bucharest Court of Appeal dismissed the first applicant ’ s appeal on points of law. It held that, according to the available evidence, the allowances set out under Articles 1 and 2 of Law no. 326/2003 – in particular those relating to food, equipment, bedding and personal needs – had been paid. Also, according to the relevant domestic legislation, holiday pay for leave not taken could only be awarded after a contractual relationship ended. Furthermore, the court dismissed the claim for overtime payment and reiterated the first-instance court ’ s arguments in respect of the claims for housing allowance. Lastly, the court dismissed the first applicant ’ s claim for non-pecuniary damages, on the grounds that she had not proved the existence or extent of the non-pecuniary damage allegedly sustained. The damage would have to have been sufficiently serious and caused by a fault on the part of the employer, and the employer would have had to punish the employee in question unfairly during the performance of his duties.

In July 2009 the DGASPCC informed the first applicant that, following the entry into force of Government Ordinance no. 71/2009 on the payment of salary granted to employees in the public sector by final court orders, the payment of the sums due following the judgment of 7 October 2008 would be made in three annual instalments between 2010 and 2012.

On 17 March 2010 the DGASPCC informed the first applicant that 34% of the sums granted by the judgment of 7 October 2008 had been paid to her.

3 . Other relevant information

On 17 September 2013 the first applicant informed the Court that she had lodged an application with the Court on behalf of herself and the second applicant. On the same date she informed the Court that part of the judgment of 7 October 2008 remained unenforced.

B. Relevant domestic law

The relevant provisions of Government Ordinance no. 71/2009 on the payment of salary granted to employees in the public sector by final court orders, in particular the regulation concerning the payment of such sums by annual instalments, can be found in Dumitru and Others v. Romania ( dec. ), no. 57265/08, §§ 24-27, 4 September 2009.

Articles 1 and 2 of Law no. 326/2003 on the rights enjoyed by children in foster care provide, inter alia , that children in foster care have a right to bedding, equipment, transport, toys, toiletries, school supplies, sports equipment and educational material. Children who are in school are also entitled to an allowance for personal needs. The limits of such financial assistance and the conditions relating to it are provided for in the appendix to Law no. 326/2003.

COMPLAINTS

The first applicant complains under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention on behalf of herself and the second applicant regarding the non-enforcement of the judgment of 7 October 2008 and the subsequent division of the payments due into annual instalments.

The first applicant complains expressly under Articles 1, 2, 3, 4, 5, 6, 9, 10, 13, 14, 17 and 18 of the Convention, and in substance under Article 8 of the Convention, that after 2004 the domestic authorities suspended her salary and deprived her and the second applicant of the financial means essential to their existence, which resulted in the first applicant ’ s health and their living conditions being affected . Also the domestic authorities failed to provide the second applicant with the financial support to which she was legally entitled for her personal needs and physical and emotional growth and development. Moreover, they failed to listen to her and enforce the judgment of 7 October 2008, and divided the payments due into annual instalments, thus depriving the applicants of basic and minimum resources essential to their existence for a substantial period of time, and subjecting them to humiliation and hardship.

The first applicant complains under Article 14, taken together with Articles 6 and 8 of the Convention and Article 1 of Protocol No. 12 to the Convention, that the decisions of the domestic courts to dismiss some of her claims amounted to discriminatory treatment, in that other employees enjoyed the benefits claimed by her, as well as better working conditions. Moreover, the first applicant asserts that the second applicant has been treated differently from other children in institutions and other children in general, who had access to or provision of the support required for their development and the allowances and benefits claimed by her.

QUESTIONS TO THE PARTIES

1. Having regard to the second applicant ’ s family and legal circumstances, can the first applicant act as the second applicant ’ s representative and lodge an application to the Court on her behalf?

2. Has there been a breach of the applicants ’ rights as guaranteed by Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention, following the alleged failure of the domestic authorities to fully enforce the Călăraşi County Court ’ s judgment of 7 October 2008 (see Burdov v. Russia (no. 2), no. 33509/04, §§ 65-70, ECHR 2009) ?

3. Has there been an interference with the applicants ’ right to respect for their private and family life within the meaning of Article 8 § 1 of the Convention, owing to the alleged failure of the domestic authorities, over a significant period of time after 2004, to provide them with the financial and material support and basic and minimum resources to which they were legally entitled (for their personal needs, physical and emotional growth and development), thus subjecting them to humiliation and hardship?

If so, was the interference with their rights in accordance with the law and necessary in a democratic society, within the meaning of Article 8 § 2 of the Convention?

4. Have the applicants suffered discrimination in the enjoyment of their Convention rights, in comparison with other employees or children who had access to or provision of the support which they claimed? If so, was the discrimination contrary to Article 14 of the Convention, read in conjunction with Articles 6 and 8 of the Convention and/or to Article 1 of Protocol No. 12 to the Convention?