Published on 7 February 2022

FOURTH SECTION

Application no. 36815/20 Elena DUMITRESCU against Romania lodged on 6 August 2020 communicated on 17 January 2022

SUBJECT MATTER OF THE CASE

On 5 June 2012 the relevant medical commission, after having examined the applicant, issued a disability certificate which noted that she had a second ‑ degree disability ( grand de handicap accentuat ) in her capacity as a blind person ( nevÇŽzÇŽtor ). Based on that certificate and having regard to the period of her contribution to the state pension fund, on 13 July 2012, the applicant was granted the right to receive a pension.

On 19 November 2015 the High Court of Cassation and Justice had established by means of an appeal in the interests of the law that the term “blind” ( nevǎzǎtor ) within the meaning of the disability legislation referred exclusively to a person with full visual impairment.

Consequently, a wider scale revision of the pensions granted to claimants such as the applicant was undertaken by the pension authorities, with a view to clarifying whether they had indeed qualified to receive their pensions, based on their disability, coupled with the qualifying period of contribution to the pension fund.

In the applicant’s case, the pension decision of 2012 was revoked by the Bacǎu Pension Authority on 30 May 2018. The reassessment of her file revealed that in view of her second-degree disability (visual impairment, and not full blindness) and of the period of her contribution to the pension fund, she had not been entitled to receive a pension.

The applicant challenged this decision, referring, inter alia , to the case Moskal v. Poland (no. 10373/05, 15 September 2009), which was in her view relevant to her situation.

By final decision of 20 December 2019 (notified to the applicant on 14 February 2020) the BacÇŽu Court of Appeal dismissed her complaint; it found that according to the law, she had not been entitled to receive the pension established in 2012; furthermore, she was not fully deprived of any income, she co-owned an apartment with her husband and she owned a car. Hence, the impugned measure was not disproportionate.

Meanwhile, on 4 July 2018 the BacÇŽu Pension Authority established that the applicant was to repay the amount of 37,710 Romanian lei (RON, approximately 7,900 EUR), perceived as undue pension for the period between 1 June 2015 and 31 May 2018. The applicant challenged that decision.

On 5 December 2018 the Bacǎu County Court allowed her claims and annulled the decision; it found that the measure imposed on her was disproportionate, having regard to the fact that the pension authority had been at fault for having issued the pension decision, as well as for having delayed for more than three years the re-assessment procedure in the applicant’s case, once the HCCJ had indicated the correct interpretation of the relevant legal concepts; it also referred to the applicant’s very low income (375 RON as monthly disability benefits, approximately 70 EUR), holding that the required reimbursement would jeopardize her living and constituted an excessive burden.

That decision was reversed by the Bacǎu Court of Appeal on 15 June 2020; the appellate court’s judgment contains only the operative part, being rendered without any reasoning.

On 5 July 2021 the fiscal authorities launched enforcement proceedings against the applicant for an outstanding debt of 37,626 RON (approximately 7,900 EUR).

The applicant complains under Article 1 of Protocol No. 1 about the infringement of her right to peaceful enjoyment of possessions in the proceedings having established that she had not been entitled to receive a pension. She further complains that the domestic courts violated her property rights when they ordered her to repay the very high amount of money allegedly perceived as undue pension. She argues that the alleged interference with her property affected her in a harsh manner in that it has put her, as an disabled person with very low income and of frail health, in a very difficult situation exposing her to poverty and thus putting her well-being in danger.

Under Article 6 § 1 she complains about the unfairness of proceedings whereby her obligation to reimburse the amounts perceived as pension was confirmed by the appellate court in a judgment lacking any reasoning.

QUESTIONS TO THE PARTIES

1. Did the BacÇŽu Court of Appeal’s judgments of 27 December 2019 and 15 June 2020, respectively, deprive the applicant of her possessions within the meaning of Article 1 of Protocol No. 1? If so, was the interference justified under this provision? In particular, was it proportionate (see for instance Béláné Nagy v. Hungary [GC], no. 53080/13, §§ 115 ‑ 18, 13 December 2016; Moskal v. Poland , no. 10373/05, § 72, 15 September 2009; and ÄŒakarević v. Croatia , no. 48921/13, §§ 80-81, 26 April 2018)?

2. Did the applicant have a fair hearing in the determination of her civil rights and obligations, in accordance with Article 6 § 1 of the Convention, having regard to the fact that the judgment of 15 June 2021 lacked any reasoning?