Communicated on 30 August 2016

FOURTH SECTION

Application no. 57162/09 Gherghina DUMITRU and others against Romania lodged on 9 October 2009

STATEMENT OF FACTS

The applicants, Ms Gherghina Dumitru (the first applicant), Mr Viorel Dumitru (the second applicant), and Teodosie Florentin P ă unescu (the third applicant) are Romanian nationals who were born in 1950, 2001 and 2007 respectively. They all live in Călăraşi .

A. The circumstances of the case

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

The first applicant was working as a foster parent ( asistent maternal ) at the Călăraşi Office for Social Care and Child Protection ( Direcția Generală de Asistență Socială şi Protecția Copilului Călăraşi , hereafter “the DGASPCC”) from 1999 to 2011. The organisation forms part of the Călăraşi County Council.

1. Background to the case

In February 2001 and April 2008 respectively the DGASPCC placed the second and third applicants with the first applicant. They had been abandoned by their mothers immediately after birth.

2. Proceedings initiated by the first applicant against the DGASPCC in relation to seeking payment of salary and benefits

(a) First set of proceedings

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 ( indemnizație de concediu de odihnă ) for the period 2005-2007, a supplement for extra work she had performed ( spor pentru muncă 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 he had been entitled under the relevant legal provisions. Lastly, she claimed non-pecuniary damages, as well as costs and expenses.

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 first applicant against the DGASPCC. It argued, inter alia , that she 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 a supplement for the extra work she had performed, 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 he had been entitled from 8 June 2005 onwards. The court also ordered the DGASPCC to pay the first applicant costs and expenses. It held that the contractual relationship between her 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, provisions of the Romanian Labour Code applied. Consequently, the first applicant had been entitled to holiday pay and a supplement for the extra work she had performed. 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 also held that the first applicant was 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 she had been given a supplement for extra work performed, and it would have been impossible to calculate the number of 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 an 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 argue d that a week earlier the first ‑ instance court had allowed a trade union ’ s claims for overtime payments against the same employer, and according to the relevant domestic legislation she had been entitled to such a payment. The court had unlawfully dismissed her claims for housing allowance and reimbursement of her medical examinations and blood test expenses. It had also dismissed her claim for non-pecuniary damages by wrongly assessing the evidence.

By a final judgment of 12 May 2009 the Bucharest Court of Appeal dismissed the first applicant ’ s appeal on points of law. It held that she could not have claimed overtime payments given the special nature of her job, which required her to provide constant care to the children placed with her. Also, she had not claimed the housing allowance from her employer on a monthly basis by providing supporting evidence for her claims, and therefore her claim for retroactive payment of that allowance had been ill ‑ founded. The court considered that the first applicant ’ s claims for reimbursement of her medical examination and blood test expenses could be treated in the same way. It also found that she had failed to provide details and supporting documents for her claims concerning the medical expenses. Lastly, the court dismissed her claim for non-pecuniary damages, on the grounds that her simple statement concerning such damage was unsupported by proof, and in circumstances where she herself had demonstrated passivity in claiming her rights, it was insufficient for the purpose of engaging the DGASPCC ’ s civil liability.

(b) Second set of proceedings

On an unspecified date in 2009 the first applicant initiated proceedings against the DGASPCC, seeking: a court order for future overtime payments and overtime payments for the period 2006-2009; a holiday bonus ( primă de vacanță ) for the period 2006-2008; allowances provided for by Article 3 of the relevant collective agreement; a personal needs allowance for the second applicant in respect of the period September 2004-June 2008; a supplement for the second applicant ’ s food allowance for the period January ‑ March 2008; a supplement for the third applicant ’ s food allowance for the period 2008-2009; housing allowance for the period 2004-2009; medical expenses in respect of work carried out by a psychologist; and non ‑ pecuniary damages.

By a final judgment of 24 November 2009 the CălăraÅŸi County Court allowed the first applicant ’ s claim for salary supplements and child allowances in part. It held that, according to the relevant legal provisions, the first applicant had been entitled to payment of the supplement for the third applicant ’ s food allowance. She had also been entitled to reimbursement of medical expenses in respect of the work carried out by a psychologist, and the allowances provided for by Article 3 of the collective agreement. However, the court dismissed as res judicata the first applicant ’ s claims concerning an additional overtime payment, housing allowance and the second applicant ’ s rights under Articles 1 and 2 of Law no. 326/2003 for the period 2006-2007. It also dismissed her claim for overtime payments for the period 2008-2009, housing allowance for the period 2008-2009 and non ‑ pecuniary damages, relying on similar reasons to those cited by the Bucharest Court of Appeal in its judgment of 12 May 2009. Lastly, the court dismissed the first applicant ’ s claim for a holiday bonus.

(c) Third set of proceedings

On 8 December 2010 the first applicant initiated proceedings against the DGASPCC, seeking a court order for payment of her salary for seven days in November and December 2009, and an additional overtime payment for the period 2008-2010.

By a final judgment of 6 December 2011 the Bucharest Court of Appeal dismissed as res judicata the first applicant ’ s claim for an additional overtime payment for the period 2008-2009. It also dismissed her claim for an additional overtime payment for 2010 by reiterating the reasons cited in its judgment of 12 May 2009. The court allowed in part her claim concerning her salary for November and December 2009, considering the claim on its merits.

(d) Fourth set of proceedings

On 18 August 2011 the first applicant initiated proceedings against the DGASPCC, seeking a court order for payment of holiday pay and additional overtime for the period January-July 2011.

By a final judgment of 3 November 2011 the Călăraşi County Court allowed her claims. It held that, according to the relevant legal provisions, she had been entitled to both the holiday pay and payment for additional overtime.

(e) Fifth set of proceedings

On an unspecified date in 2011 the first applicant initiated proceedings against the DGASPCC, seeking a court order for payment of her holiday pay for the period 2008-2010 and a supplement for the second applicant ’ s food allowance for the period January-March 2008.

By a final judgment of 15 December 2011 the Bucharest Court of Appeal allowed the first applicant ’ s claim for holiday pay for the period 2008-2010. It held that, according to the relevant legal provisions, she had been entitled to the holiday pay. However, the court dismissed the rest of her claims on the merits.

3. Other relevant information

The first applicant submitted to the Court four different court judgments delivered by three different courts of appeal. The judgments allowed various claims lodged by various private parties (working as foster parents) and trade unions (representing the interests of their members, who were working either as public servants or foster parents) for holiday pay, additional overtime payments or holiday bonuses. In allowing the claims, the domestic courts relied on the relevant legal provisions and legislation combating discrimination. Thus, by a final judgment of 19 June 2007 the Pite ş ti Court of Appeal allowed an action by the Organisation for Children ’ s Rights ( Sindicatul “ Drepturile Copilului ” ) against the V âlcea office of the DGASPC for payment of holiday pay for the period 2003-2005. By a final judgment of 6 December 2007 the Bucharest Court of Appeal allowed several foster parents ’ action against the Telorman office of the DGASPC for payment of holiday bonuses for the period 2004-2006. By a final judgment of 28 January 2009 the Cluj Court of Appeal allowed an action by the Maramure ş Foster Parents ’ Trade Union against the Maramure ş office of the DGASPC for payment of holiday pay and additional overtime for the period 2005-2008. Lastly, by a final judgment of 28 April 2009 the Bucharest Court of Appeal allowed an action by the Speranța Trade Union against the DGASPCC for payment of future additional overtime and additional overtime for the period 2005-2009.

On 31 July 2013 the applicant informed the Court that the Romanian authorities had enforced the judgements acknowledging her financial entitlement.

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 yearly 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. Moreover, children who are in school are 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

1. The first applicant complains under Article 6 of the Convention that the domestic courts have delivered divergent decisions in similar cases concerning the rights and benefits to which she was entitled, and have unlawfully dismissed her claims for the second and third applicants ’ allowances .

2. Relying on Article 6 of the Convention, and in substance on Article 1 of Protocol No. 1 to the Convention, the first applicant complains that the authorities failed to immediately enforce the court judgments granting her and the second and third applicants the rights and benefits provided for by the relevant domestic legislation, following the entry into force of Government Ordinance no. 71/2009.

3. The first applicant complains expressly under several Articles of the Convention, and in substance under Article 8 of the Convention, that from 2004 onwards, over the course of several years, the domestic authorities deprived her and the second and third applicants of the financial and material support to which they were legally entitled, which resulted in their living conditions, health, personal and moral development being affected .

4. 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 and received those benefits, as well as better working conditions. Moreover, the first applicant asserts that the second and third applicants were also discriminated against, because they had no access to or provision of the support required for their development or the allowances and benefits claimed by her.

QUESTIONS TO THE PARTIES

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

2 . Did the applicants have a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention, in so far as similar actions before the courts of appeal concerning the award of specific benefits and allowances had different outcomes? Did the domestic courts comply with the principle of legal certainty, as developed in the Court ’ s case-law in the interpretation of Article 6 of the Convention (see Nejdet Ş ahin and Perihan Ş ahin v. Turkey [GC], no. 13279/05, §§ 49-58, 20 October 2011)?

3. 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 domestic courts ’ judgments granting the applicants the pecuniary rights and benefits which they claimed (see Burdov v. Russia (no. 2), no. 33509/04, §§ 65-70, ECHR 2009) ?

4. 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 the course of several years 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?

5 . 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?