PARTLY DISSENTING OPINION OF JUDGE KŪRIS

1 . Unlike the majority, I do not find that there has been no violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention in respect of the quashing of the final decision of the Târgu Mureş Court of Appeal of 30 May 2008. I also disagree with the conclusions that there is no nee d to examine the “remainder” of the complaints under Article 6 § 1 and that no separate issue arises under Article 1 of Protocol No. 1 in conjunction with Article 14.

2 . Below, I deal with the two points of my disagreement with the majority: ( i ) the quashing of the above-mentioned decision from the perspective of Article 6 § 1 and Article 1 of Protocol No. 1; and (ii) the alleged discrimination against the applicants from the perspective of Article 1 of Protocol No. 1 in conjunction with Article 14. I propose my alternative (albeit very condensed) assessment of the respective complaints.

3 . But before addressing these issues let us have a look at something which is at the very heart of the dispute examined in the present case: a factual circumstance, the assessment of which in the majority ’ s reasoning has gone astray.

I

4 . The applicants, judicial officers, sought compensation for the loyalty bonuses which were not paid to them, but to which they felt they were entitled, as they met the same requirements as those belonging to other categories of judicial and non-judicial court staff. The court found for the applicants. It held that the difference in treatment between the applicants and the rest of the court staff was unjustified. On 30 May 2008 the appellate court (“first appellate formation”) dismissed the appeals lodged by the other parties, one of which was the Ministry of Justice. Its decision was final and immediately enforceable.

In fact, it was already partly executed, as 30% of the adjudged amount was paid to the aggrieved party – the applicants.

5 . Then something happened. What had promised to be a happy ending – for the applicants, but admittedly also for a wider group of court employees – came to an abrupt end.

6 . As it soon turned out, the appellate court had made a mistake. A fatal one. Instead of using the term “ spor de fidelitate ”, or “loyalty bonus”, it used the term “ spor de confidenţialitate ”, which meant “confidentiality bonus” and related to another type of payment.

This was so notwithstanding the fact that the applicants had not sought compensation for any confidentiality bonuses. And they could not, because they were not entitled to it under domestic law. Confidentiality bonuses were only granted to military personnel and civil servants with special status (paragraph 36 of the judgment). The applicants were in neither of those categories.

7 . Who does not err? “ Spor de confidenţialitate ” sounds very similar to “ spor de fidelitate ”, at least to a foreigner like me. But no, not only to a foreigner.

When seized with this issue by the applicants, who requested the correction of the “material” error, the Romanian appellate court admitted that it indeed had made a clerical (“technical”) error in using the term “ confidenţialitate ” instead of “ fidelitate ”. It stated explicitly that the use of the wrong term had not affected its reasoning. And it corrected the error by replacing, throughout the text of the decision of 30 May 2008, “ spor de confidenţialitate ” with “ spor de fidelitate ”. That was done in an interlocutory judgment, which was adopted on 4 December 2008 by the first appellate formation – the same composition of judges of the same court.

Errare humanum est , diabolicum est in errore perseverare . The payment of the adjudged compensation could continue. Had to continue.

8 . No such luck.

The clerical error was corrected upon the request of the applicants. It is, however, not unlikely that the first to spot the error had been someone related to the parties which lost the case. Hardly the representatives of the parties themselves. Rather someone who was charged with the task of processing the second payment to the applicants. Which never happened.

9 . The Ministry of Justice, a week earlier than the applicants, lodged an extraordinary appeal against the final decision of 30 May 2008, which – let it be remembered – had already been partly executed. Although the issue of the “material error” was already closed, in the formal sense, by the interlocutory judgment of 4 December 2008, the broader (and more substantial) issue of the applicant ’ s (non-)entitlement to loyalty bonuses was re-examined in different proceedings: not those pertaining to the correction of “material” errors, but those triggered by extraordinary appeals. In the course of those other proceedings, the issue of the “material error” was examined anew by the same appellate court. That court, however, sat in a different formation (“second appellate formation”). On 14 October 2009 that new formation quashed the final decision of 30 May 2008 and found for the Ministry.

10 . In principle, the examination of the Ministry ’ s extraordinary appeal could bring about the quashing of the final decision of 30 May 2008 on the grounds provided for in domestic law, whatever they might be. There would have been nothing illegitimate about the very fact of quashing. I therefore do not object to the extraordinary appeals or quashing of final judgments as such.

What merits a critical looking into is the reasoning of the second appellate formation, or, more precisely, what was, so to say, established by it in the course of the examination of the extraordinary appeal. What was established was, first and foremost, not about law , which was applicable or not applicable to the applicants ’ situation: it was about the mind and conduct of the first appellate formation, both during the examination of the applicants ’ case on the merits and during the correction of the “material” error, related to the reinstatement of the word “ fidelitate ” instead of the word “ confidenţialitate ”.

II

11 . The reasons for quashing the decision of 30 May 2008 were threefold.

The first two reasons were the following: the first appellate formation had allegedly dismissed as unfounded the appeal of the Ministry of Justice “without examining the arguments put before it by [that ministry]” and had allegedly “mistakenly cop[ ied ] the reasoning from a different decision, in which it had examined the issue of awarding a confidentiality bonus”. Although squeezed into one sentence, these two reproaches were autonomous: the non-examination of the party ’ s arguments was one thing, the mechanical copy-pasting of the court ’ s own arguments another. Put together, they create an optical illusion, where they seem to strengthen each other. But they do not, because both of them hardly hold water.

Two minuses make a plus in arithmetic. Not in legal reasoning.

As to the third reason, the error in question allegedly was not clerical in nature. The second appellate formation concluded that it was not a “simple material [or] typographical error, which arose because of the striking similarity between the words ‘ confidenţialitate ’ and ‘ fidelitate ’ ”, but stemmed from the fact that the first appellate formation had wrongly determined the subject matter of the dispute under its examination: instead of deciding on the applicants ’ entitlement to loyalty bonuses, it decided on a very different matter – their entitlement to confidentiality bonuses.

Let us address the three reasons – or reproaches – one by one.

12 . The reproach that the first appellate formation had not examined the arguments of the Ministry of Justice is a label without a basis on to which it could be affixed. This finding was reached in defiance of the fact that the dismissal of the Ministry ’ s case as unfounded had not come out of the blue. It was preceded by a dispute on the (in )applicability of the law invoked by the applicants, which was the Anti-Discrimination Ordinance, and resulted from the first appellate formation ’ s assessment of the parties ’ arguments on this matter. The Ministry argued that that ordinance was not applicable to the applicants ’ situation (paragraph 9); the applicants argued to the contrary ; and the first appellate formation explicitly held that the applicants were capable of proving the ordinance ’ s applicability.

Is this what leaving “without examination” looks like?!

13 . If parties present their case as regards the applicability of certain legislation to a situation under examination, and the court explicitly sides with the party which, in its opinion, has proved its case, how can one reasonably conclude that the other party ’ s arguments (as to the applicability of that legislation) were left unexamined?

On top of that, the first appellate formation had provided some arguments of its own, by which it had substantiated its finding (including references to the Court ’ s case-law on Article 14) – not only as to the applicability of the ordinance, but also to the effect that the applicants had been entitled to loyalty bonuses.

These arguments might have been tenuous or even amiss, but they were not non-existent . The first appellate formation indeed might have supported the wrong party and thus might have erred in its assessment, but this would be not the same as leaving “without examination”, that is to say, the non-addressing of the arguments of the disadvantaged party, with which it was reproached by the second appellate formation.

The latter provided no arguments to substantiate their reproach: they merely pronounced it. But they had the final say.

14 . I now turn to the second reason for quashing the decision of 30 May 2008: that its reasoning was mistakenly copied from some other (most likely earlier) decision, which had dealt with the confidentiality bonus.

Copy-pasting, alas, is not an unknown but a routine practice in all courts, not excluding the Strasbourg Court. Even assuming that mechanical copy ‑ pasting indeed took place in the course of the drafting of the decision of 30 May 2008, the reference to “respecting the confidentiality of information” (paragraph 10), which might have been copy-pasted from some other text, is not alien to the notion of loyalty. The requirement of loyalty encompasses that of confidentiality, which means that the employee must maintain discretion in respect of the institution ’ s affairs. Loyalty embraces more than confidentiality and is not limited to it, but the latter still is one of the constitutive elements of loyalty and one of the criteria under which it can be judged, whether or not a person is loyal to his or her institution.

If the reference to “respecting the confidentiality of information” had indeed been copy-pasted from another decision, the second formation failed to indicate it, even though seventeen months had passed since the alleged copy-pasting took place (this makes it unlikely that at the time when the hapless error had been made, the information about the “mother decision” could not be divulged, at least in general terms).

In the absence of such indication, the reproach that the reasoning of the decision of 30 May 2008 was a mere copy can hardly be said to be substantiated.

15 . Be that as it may, the issue of the wrong terminology had been brought before the first appellate formation when that formation had been seized with the request for correction of errors contained in its ill-fated decision of 30 May 2008. It would be inconceivable that the way in which the wrong terminology entered the text of that decision could have skipped the attention of its authors . If the use of the wrong terminology resulted from an over-mechanical copy-pasting at the time of drafting of the decision of 30 May 2008, that was neutralised by the replacement of “ spor de confidenţialitate ” with “ spor de fidelitate ” and an explicit assurance that the use of the wrong term had not affected the reasoning of the decision.

The second formation rejected this assurance by one argument: non creditis .

16 . The third – the concluding and thus the crowning – reason for quashing the decision of 30 May 2008 was the establishment that the error in question was not clerical. What, then, was the nature of that error? The second appellate formation held that its “predecessor” “[had] referred to a completely different legal matter, which had not been brought before it by the parties”.

On the surface, the conclusion as to the wrong determination, by the first appellate formation, of the subject matter of the dispute might sound convincing. But to be convincing it had to derive from reliable premises, in this case, the first two arguments (reasons) discussed above. As has already been shown, the first of these arguments (that the arguments of the ministry were not examined) was utterly false, and the second one (that the use of the term “ spor de confidenţialitate ” was attributable solely to copy-pasting from an unidentified source) calls for no lesser reservations. The literature on logic presents many examples of correct inferences being drawn from two false premises. However, they are presented as anomalies in their own right, and their weaponisation in judicial reasoning has probably never been recommended.

17 . In addition, the second appellate formation ignored the obvious fact that the dispute before the first appellate formation (just like the one in the earlier proceedings before the county court) had not been about confidentiality bonuses, but loyalty bonuses. In partic ular, in the decision of 30 May 2008 it says in black and white that the applicants should be entitled to confidentiality bonuses ( sic! ) “ like other members of the judiciary or ancillary staff”. But, as mentioned, “other members” who were entitled to confidentiality bonuses had been confined under domestic law solely to military personnel and civil servants with special status. The applicants were not among them and were not seeking those bonuses.

18 . The reproach to the first appellate formation that the error in question was not clerical implies more than a simple inference: it in fact amounts to a condemnation . To arrive at that conclusion, the second appellate formation examined not only the decision of 30 May 2008 (against which the extraordinary appeal was lodged), as corrected by the interlocutory judgment of 4 December 2008, but also the reasoning of that interlocutory judgment, where the authors of the error had explained that that the error was of a technical nature (which points to the “striking similarity” of two Romanian words). The second appellate formation explicitly rejected that explanation.

19 . This rejection effectively meant that, for the second appellate formation, the first appellate formation erred not once, but twice : first of all when it had mistakenly used the wrong term, and secondly when it had falsely justified that use as a technical error. It had thus either demonstrated their professional inability twice, or (worse) attempted (speaking straight from the shoulder) to cover up its one-off mistake by employing a bogus justification.

In the latter event of p erseverare diabolicum , one could wonder whether the second error had not amounted to a deliberate miscarriage of justice. The Government provided no information as to whether any investigation in this regard, which could bring about any disciplinary measures, was initiated. Which is somewhat telling.

20 . It is quite striking that whereas the clerical (“typographical”, “technical”, “material”) error was admitted and corrected by the appellate court sitting in the same formation, the finding that the error in question was not clerical at all was made by that court sitting in a different formation. The judges who had initially examined the case admitted that they had erred, said sorry and corrected themselves, but that was rejected by another judicial body.

Let me reiterate: although all this bore on law (its interpretation and application), this was not about law proper. It was about the facts behind the case-law-making, but the facts that were “established” were not demonstrated to have existed.

21 . In view of this, I find it impossible to agree with the majority that the reasoning put forward by the second formation was “valid” (paragraph 44). This validating statement contains no substantiating element.

It is thus not reasoned itself – just like the pronouncement which it validates.

22 . To soften the impression, a few arguments are provided in paragraph 45:

– that the extraordinary appeal was lodged by a party in the proceedings – so what?

– that it was lodged within a relatively short period of time – so what? and , by the way, “relatively” to what?

– that the extraordinary proceedings did not last unreasonably long – so what?

– and , finally, that the extraordinary appeal was the next logical element in the chain of domestic remedies at the disposal of the parties.

I fully subscribe to the latter argument. However, it does not negate the fact that the judgment adopted in these extraordinary proceedings was not reasoned .

23 . Having said that, I can now turn to my assessment of the applicants ’ situation and of how its important elements are passed over in silence in the present judgment, sometimes in defiance of the Court ’ s pertinent case-law.

III

24 . The applicants raised several complaints under Article 6 § 1. The central one pertains to the actual quashing of the final decision of 30 May 2008, which was allegedly in breach of the principle of legal certainty.

25 . That complaint was dismissed. However, another one under the same Article was not – the one pertaining to the overall fairness of the proceedings.

The quashing in question thus appears to have been fair, although it was the result of proceedings which as a whole were not fair .

The quashing also appears to have been fair despite the fact that it was based on the retroactive application of the Constitutional Court ’ s decisions of 3 July 2008 on the first appellate formation ’ s final decision of 30 May 2008 (as later corrected), which was immediately enforceable .

That decision of the Constitutional Court raises too many questions, in particular as to the function and purpose of constitutional justice. But I shall stop here.

26 . As mentioned (in paragraph 22 above), the majority based their finding that there has been no violation of Article 6 § 1 on this point on the following arguments, which in fact do not prove anything: the extraordinary appeal was lodged by a party to the proceedings, and not by a third-party State official with no connection to the case proceedings; it was lodged within a relatively short period of time (less than six months after the date of the contested decision); the extraordinary appeal proceedings did not last unreasonably long (about eleven months); and the extraordinary appeal constituted the next logical element in the chain of domestic remedies at the disposal of the parties, rather than an extraordinary means of reopening proceedings, and was therefore not incompatible with the principle of legal certainty.

However, an alternative approach could and should have been taken.

27 . The second appellate formation disagreed with their “predecessor” as to what constituted a “material error”. The quashing of the final decision, as corrected by the interlocutory judgment, was the result of there having been two opposing views about the interpretation of that notion (see Ryabykh v. Russia , no. 52854/99, § 52, ECHR 2003 ‑ IX; see also S.C. Textinc S.A. v. Romania [Committee], no. 52018/10, § 26, 6 February 2018, in which the Court considered that it was not justified to quash a final and binding decision only because two domestic courts had had different views on a matter discussed in the appeal proceedings). Nothing in the case or in domestic practice permits the belief that in allowing the application for correction of the decision the first appellate formation conducted an arbitrary interpretation of the notion of “material error”. As judicial staff were not entitled to confidentiality bonuses, there was no reason to assume that the first appellate formation had examined the confidentiality bonus and not the loyalty bonus. Moreover, the benefit at stake in the case was indisputably the loyalty bonus and there was no mention of the confidentiality bonus in the applicants ’ submissions. The county court correctly used the term “loyalty bonus” when deciding the case. While having the power to re-examine the merits of the case, the first appellate formation in the proceedings which gave rise to the decision of 30 May 2008 was bound by the subject matter of the action as defined by the applicants in their application lodged before the county court. It therefore must be inferred that the Court of Appeal was in fact examining the matter of the loyalty bonus, as requested by the applicants in their action, and not that of the confidentiality bonus, and that the use of the term “confidentiality bonus” stemmed from a technical error, which was later confirmed by the same bench. When examining the extraordinary appeal, the second appellate formation did not rule that the confidentiality bonuses had been applicable to the applicants.

28 . The extraordinary appeal was therefore no more than an appeal in disguise , which cannot be justified under the requirements of legal certainty enshrined in the right to a fair hearing (see Ryabykh cited above, § 52; see also Stoişor and Others v. Romania , no. 16900/03, §§ 13 and 23, 7 April 2009, in which the Court considered that the allegation that the court of last resort had breached legal requirements – notably that it had allegedly failed to examine some of the reasons for appeal – had not been sufficient to justify the quashing of a final decision).

29 . In the case of Brumărescu v. Romania ([GC], no. 28342/95, ECHR 1999-VII) the Court examined a similar situation where a final decision in which the domestic courts had decided on the merits in favour of the applicant had been quashed by means of an extraordinary appeal and, as a consequence, the initial action had been rejected without an examination of the merits because of lack of jurisdiction (§§ 15, 16 and 24). The Court found that such an exclusion had been in itself contrary to the right of access to a court and concluded that there had been a violation of Article 6 § 1 of the Convention (ibid., § 65).

30 . Incidentally, Brumărescu , a landmark judgment in so many respects, is cited in the “General principles” sub-section of the part of the judgment which deals with the applicants ’ complaints under Article 6 § 1 concerning breach of the principle of legal certainty. That case, and in particular that part of the judgment which has the highest precedential value for the instant case, however, was forgotten in the sub-section entitled “Application of those principles to the facts of the case”.

31 . The foregoing considerations had to be sufficient to enable the Court to conclude that, by permitting the final decision of 30 May 2008 to be quashed by means of an extraordinary appeal which was an appeal in disguise and therefore was allowed unlawfully , the authorities failed to strike a fair balance between the interests at stake and thus infringed the applicants ’ right to a fair hearing, and that there has accordingly been a violation of Article 6 § 1 as a consequence of non-compliance with the legal certainty principle.

32 . Had this been the case, I would perhaps have been comfortable that the Court saw no need to examine the “remainder” of the complaints under Article 6 § 1 of the Convention – and would have voted accordingly on this point.

IV

33 . The majority ’ s reasoning as to the alleged violation of Article 1 of Protocol no. 1 is especially succinct. It is limited to the consideration that, given that no violation was found of Article 6 § 1 on the point of the actual quashing of the final decision of 30 May 2008, the “special circumstances of the present case” can be regarded as exceptional grounds justifying the quashing of that decision and the dismissal of the applicants ’ claim for compensation.

It is nowhere explained what is meant by the “special circumstances” and why they were “special”. Maybe brevity is the soul of wit, but why should the soul be crippled?

Again, an alternative approach could and should have been taken regarding the applicants ’ complaints under Article 1 of Protocol no. 1.

34 . The applicants had their right to receive the loyalty bonuses acknowledged by a final decision issued by the domestic courts. Therefore they had a “possession” for the purposes of Article 1 of Protocol No. 1 (see SC Maşinexportimport Industrial Group SA v. Romania , no. 22687/03, § 42, 1 December 2005).

35 . The Court has on numerous occasions dealt with similar issues, and has found a violation of Article 1 of Protocol No. 1 in a number of cases against Romania where the applicants ’ property rights had been reconsidered following applications for supervisory review (see Brumărescu , cited above, §§ 61, 77 and 80; SC Maşinexportimport Industrial Group SA v. Romania , cited above, §§ 32 and 46-47; and Piaţa Bazar Dorobanţi SRL v. Romania , no. 37513/03, §§ 23 and 33, 4 October 2007). In the instant case the Government failed to submit any argument justifying a departure from the approach described above. Despite the margin of appreciation enjoyed by the State in this field, supervisory review proceedings cannot justify the applicants ’ deprivation of possessions acquired by means of a final and enforceable decision (see Blidaru v. Romania , no. 8695/02, § 55, 8 November 2007, and SC Maşinexportimport Industrial Group SA , cited above, § 46).

36 . These considerations lead to a finding that there has been a violation of Article 1 of Protocol No. 1 in so far as the applicants were unable to receive the whole amount awarded to them by the domestic courts.

V

37 . The majority is consistent in holding that the applicants ’ complaint under Article 14 had to be left unexamined as raising no separate issue, because no violation was found of Article 1 of Protocol No. 1.

I, however, am of the opinion that Article 1 of Protocol No. 1 has been violated. Accordingly, the complaint under Article 14 should have been examined and a violation found of that Article in conjunction with Article 1 of Protocol No. 1, based on, inter alia , the general principles concerning the protection against discrimination as they have been recently reiterated in Carvalho Pinto de Sousa Morais v. Portugal (no.17484/15, §§ 44-47, ECHR 2017).

Below is a synopsis of the possible alternative reasoning.

38 . At the material time judicial officers were excluded from receiving the loyalty bonus, whereas the remaining court staff received it. Accordingly, they have been treated differently from other individuals working in the judicial system.

39 . Regrettably, important parts of domestic legislation are not represented in the instant judgment, including the Government ’ s Emergency Ordinance no. 27/2006 on the monthly wages of judges, prosecutors and other categories of staff from the justice system (in force since 1 April 2007), which regulated the loyalty bonuses for magistrates and ancillary personnel. It appears from that ordinance that the loyalty bonus was meant to reward time served in the same post. Judicial officers were subject to the same obligations, restrictions and rules in office as judges and prosecutors. Although they had to serve a five-year term, nothing prohibited the renewal of their mandate or their early departure. They were subject to essentially the same incentives as other judicial staff to continue their work in the same post. Consequently, for the purpose of encouraging their loyalty, for which the loyalty bonus was designed, judicial officers were in the same situation as other judicial staff involved in case processing in courts.

40 . In order to be justified from the point of Article 14, the difference in question had to be based on an identifiable, objective or personal characteristic, or “status”. The applicants argued that the discrimination had been based on their profession. This falls into the category of “other status” provided by Article 14. The burden of proof for such justification lies with the Government (see Carvalho Pinto de Sousa Morais , cited above, § 47).

41 . The Government, however, did not make any assessment of the aim pursued by the difference in treatment. Even so, the Court could not exclude that the measure complained of might had pursued a legitimate aim, broadly compatible with the general objectives of the Convention, such as, for example, the protection of the country ’ s economic system (see, mutatis mutandis , Andrejeva v. Latvia [GC], no. 55707/00, § 86, ECHR 2009) or administrative economy and coherence (see, mutatis mutandis , Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 57, ECHR 2006 ‑ VI).

42 . The proportionality of the measure, however, was hardly defensible.

The domestic courts which examined the merits of the complaint of discrimination found for the applicants and considered that there was no justification for the difference in treatment instituted by the applicable law. It is not possible to draw any inference from the final decision of 14 October 2009, in so far as that decision rejected the applicants ’ initial complaint without examining its merits, thus making no assessment of the proportionality of the difference in treatment.

43 . Accordingly, there would have been no reason to depart from the conclusion reached by the domestic courts which examined the merits of the applicants ’ complaint, had the majority examined this complaint.

This, however, would bring me back to the already discussed issue of Article 1 of Protocol No. 1, a violation of which, regrettably, was not found in the instant case.

44 . However, I concede that no separate issue arises under Article 1 of Protocol No. 12 (and voted accordingly). But this is with the caveat that the allegation of discrimination against the applicants vis-à-vis other judicial and non-judicial staff had to be examined under Article 14 in conjunction with Article 1 of Protocol No. 1.