Communicated on 5 February 2016

FOURTH SECTION

Application no. 42447/10 Constantin ELISEI-UZUN and Adrian Vlad ANDONIE against Romania lodged on 9 April 2010

STATEMENT OF FACTS

The applicants, Mr Constantin Elisei-Uzun and Mr Adrian Vlad Andonie , are both Romanian nationals who were born in 1975 and live in Târgu-Mure ş .

A. The circumstances of the case

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

The applicants have been judicial officers ( asisten ţ i judiciari ) at the Mure ş County Court since 29 June 2000.

1. Ordinary proceedings

On 18 December 2007, relying on the provisions of the Anti ‑ discrimination Act (Government Ordinance no. 137/2000 on preventing and punishing all forms of discrimination) and of Article 14 of the Convention and Protocol No. 12 to the Convention, the applicants brought an action in the Mure ÅŸ County Court seeking compensation equivalent to the “loyalty bonus” ( spor de fidelitate ) to which they felt they had been entitled in respect of their salary since December 2004. In accordance with national law as in force at that time, they were not awarded the bonus , unlike all other court staff, including judges and auxiliary personnel. The action was brought against the applicants ’ employer and against the Ministry of Justice and the Ministry of Economy and Finance.

In a judgment of 14 February 2008 the County Court allowed the claim. It found that there was a difference in treatment between the applicants and the rest of the judicial staff and that there was no justification for that different treatment. The court concluded that Article 14 of the Convention and Protocol No. 12 to the Convention were applicable and declared that the applicants had been discriminated against. The court ordered that the applicants be paid the bonus, backdated from December 2004 to when the discrimination had ceased. The judgment was immediately enforceable.

On 30 May 2008 the Târgu Mure ş Court of Appeal dismissed an appeal lodged by the two Ministries. It ruled that as the applicants had to respect the confidentiality of the information to which they had access they should be entitled to a “confidentiality bonus” ( spor de confiden ţ ialitate ), like other members of the judiciary and auxiliary personnel. It therefore awarded the applicants such a “confidentiality bonus”. The decision was final.

On 14 October 2008, the authorities complied with the final decision and paid each of the applicants 30% of the compensation awarded by the court.

2. Request for correction of material errors in the decision of 30 May 2008 ( îndreptarea erorii materiale )

The applicants made a request for correction of material errors in the final decision adopted by the Court of Appeal in their case. They asked in particular that the word “confidentiality” be replaced with the word “loyalty” throughout the whole decision.

On 4 December 2008 the request was allowed by the Court of Appeal, sitting in the same formation. The court considered that the use of the phrase “confidentiality bonus” stemmed from a technical error and did not affect the reasoning of the judgment.

3. Extraordinary appeal against the final decision ( contesta ţ ie în anulare )

The Ministry of Justice lodged an extraordinary appeal against the final decision of 30 May 2008, claiming that the Court of Appeal had failed to examine the grounds of appeal as stated by the defendants. It pointed out that the subject matter of the dispute was not a confidentiality bonus, as wrongly established by the court, but rather a loyalty bonus.

The extraordinary appeal was allowed on 14 October 2009. The Court of Appeal ruled that the subject matter of the dispute had been wrongly determined as being an entitlement to a confidentiality bonus. For that reason it quashed the final decision. It re-examined the initial action and observed that the Constitutional Court had in decision no. 818 of 3 July 2008 declared the relevant provisions of the Anti-discrimination Act to be unconstitutional. It concluded that there were no longer any legal grounds to support the applicants ’ action. The Court of Appeal thus allowed the appeal, quashed the judgment rendered by the County Court and dismissed the applicants ’ initial action.

The applicants unsuccessfully lodged several extraordinary appeals against that decision, all of which were dismissed by final decisions of the Court of Appeal (19 January 2010 – contesta ţ ie în anulare ; 20 January 2010 – revizuire ; and 4 February 2010 – contesta ţ ie în anulare ).

B. Relevant domestic law and practice

1. The employment situation of judicial officers

Judicial officers are law graduates with at least five years ’ work experience, who are appointed by the Ministry of Justice on the basis of a recommendation from the Economic and Social Council. The Council is a consultative body of the Government and Parliament whose role is to ensure dialogue between employers, trade unions and civil society. It was regulated at that time by Law no. 109/1997 and later by Law no. 248/2013. The judicial officers, along with judges, form the benches which settle labour-law conflicts as first-instance courts. They give an advisory vote in the cases they sit in. Their status is regulated by Law no. 304/2004 on the organisation of the judiciary (notably, Articles 55 and 110 to 115).

Judicial officers are subject to the same obligations, restrictions and rules on conflicts of interest as judges and prosecutors. Their work experience counts towards the accumulation of seniority in the court system. At the material time, they did not receive a loyalty bonus with their monthly wage, unlike judges, prosecutors, and specialist and non-specialist auxiliary personnel, which included court clerks, probation officers, prison guards, administrative staff, as well as civil servants working in the courts and the Ministry of Justice.

From 1 January 2011, the loyalty bonus was abolished for all categories of staff by Law no. 284/2010, which repealed Government Emergency Ordinance no. 27/2006.

2. Discrimination under Romanian Law

Discrimination is defined in Article 2 § 1 of the Anti-discrimination Act (Government Ordinance no. 137/2000 on preventing and punishing all forms of discrimination) and by Article 5 §§ 2 and 3 of the Labour Code. In addition, Article 159 § 3 of the Labour Code prohibits discrimination in respect of salary rights. Under Article 27 § 1 of the Anti-discrimination Act, a person who alleges discrimination may bring a court action to seek compensation and to have the discriminatory treatment brought to an end.

Article 27 § 4 of that Act provides that the burden of proof is reversed in cases involving alleged discrimination. The person claiming discrimination must provide prima facie evidence of potential discrimination. It is then for the defendant to prove that there has been no breach of the principle of equal treatment.

On 3 July 2008 the Constitutional Court, in decision no. 818, declared Articles 1, 2, and 27 § 1 of the Anti-discrimination Act unconstitutional . The Constitutional Court held:

“Reading the provisions of the Ordinance so as to allow the courts to have the power to repeal legal provisions and to replace them by new provisions or by existing provisions from other laws is evidently unconstitutional as it breaches the principle of the separation of powers enshrined in Article 1 § 4 of the Constitution as well as in Article 61 § 1, which states that Parliament is the only legislative body in the country.

...

Accordingly, the Constitutional Court ... rules that the provisions of Articles 1, 2 § 3, and 27 § 1 of Government Ordinance no. 137/2000 on preventing and punishing all forms of discrimination are unconstitutional in so far as they can be interpreted as allowing the courts to revoke or refuse to apply [laws] on the grounds that they are discriminatory, and to replace them with provisions created on the basis of case-law or provisions from other laws which were not considered by the legislature when adopting the provisions that have been declared discriminatory.”

The Constitutional Court adopted a similar decision, no. 821/2008, on the same day.

Both decisions were published in the Official Monitor on 16 July 2008. Article 31 of Law no. 47/1992 on the organisation and functioning of the Constitutional Court provides that any decision by the Constitutional Court which declares a legal provision unconstitutional is binding.

COMPLAINTS

The applicants complain that the denial of a loyalty bonus was discriminatory, relying on Article 14 of the Convention and Article 1 of Protocol No. 12 to the Convention.

Under Article 1 of Protocol No. 1 to the Convention, the applicants complain that their right to receive a loyalty bonus was breached in so far as it was at first recognised by a final court decision and partially enforced before being again denied to them by the courts.

Relying on Article 6 § 1 of the Convention, the applicants complain that the decision of 14 October 2009 by the Court of Appeal breached the principle of legal certainty since it set aside a final and binding judgment which, in addition, had been partially enforced.

They also complain, under the same Article, that their right of access to a court was breached, as the Court of Appeal failed to examine the merits of their action, in particular their arguments relating to an alleged violation of Article 14 of the Convention and Article 1 of Protocol No. 12 to the Convention.

They further claim that the decision of 14 October 2009 breached their right to a fair trial, since the Court of Appeal examined the extraordinary appeal by means of a closed hearing, to which they were not invited.

They submit that the Court of Appeal has breached the principle of non ‑ retroactivity of the law by applying the Constitutional Court ’ s decision of 3 July 2008, although that decision was not in force when they brought their initial action.

The applicants also complain of a lack of impartiality on the part of the Court of Appeal as the defendant in the case, the Ministry of Justice, has the power to bring disciplinary proceedings against judges. Moreover, the Minister of Justice is a member of the High Council of the Judiciary ( Consiliul Superior al Magistraturii ), the disciplinary authority for judges.

Relying on Article 1 of the Convention, the applicants complain that the Romanian courts failed to apply the provisions of the Convention, which should take precedence over national law.

They also complain, under Article 17 of the Convention, that the Constitutional Court breached their Convention rights through decisions nos. 818 and no. 821 of 3 July 2008.

QUESTIONS TO THE PARTIES

1. 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 particular:

– did they have access to a court, in particular concerning the quashing of the final decision of 30 May 2008 and the subsequent proceedings?

– did the final decision of 14 October 2009 adequately state the reasons on which it was based?

2. Was the principle of legal certainty, as developed in the Court ’ s case law in the interpretation of Article 6 of the Convention, complied with by the domestic courts?

3. Has there been an interference with the applicants ’ peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1?

If so, was that interference necessary and did it impose an excessive individual burden on the applicants (see Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 59, ECHR 1999-V)?

4. Have the applicants suffered discrimination in the enjoyment of their Conventional rights on the ground of their profession, contrary to Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1 to the Convention, and contrary to Article 1 of Protocol No. 12 to the Convention?