FOURTH SECTION

DECISION

Application no. 14615/18 Niculina PISMIȘ against Romania

The European Court of Human Rights (Fourth Section), sitting on 5 September 2023 as a Committee composed of:

Faris Vehabović, President , Anja Seibert-Fohr, Sebastian Răduleţu , judges , and Crina Kaufman, Acting Deputy Section Registrar ,

Having regard to:

the application (no. 14615/18) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 20 March 2018 by a Romanian national, Ms Niculina Pismiș, who was born in 1969, lives in Bucharest (“the applicant”) and was represented by Mr A. Grigoriu, a lawyer practising in Bucharest ;

the decision to give notice of the application to the Romanian Government (“the Government”), represented by their Agent, Ms O.F. Ezer, of the Ministry of Foreign Affairs ;

the parties’ observations ;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The application concerns the alleged conflicting final decision of the Bucharest Court of Appeal in labour litigations regarding the granting of interest and index-linked salary arrears to the applicant and other claimants in a similar situation to her.

2. The applicant, a custom officer working for the National Customs Authority, had been prosecuted for charges of bribery. On 11 December 2007 the National Customs Authority ordered the suspension of the applicant’s professional duties because of the ongoing criminal investigations.

3. On 27 March 2015 the PloieÅŸti Court of Appeal acquitted the applicant of the criminal charges brought against her.

4. By an administrative decision of 15 April 2015 the National Agency for Tax Administration, General Directorate of Public Finances Bucharest, ( Agenţia Naţională de Administrare Fiscală, Direcţia Generală a Finanţelor Publice – DGFP ) decided that the applicant could resume her activity at the Border Customs Office of the Otopeni Airport of Bucharest. By the above ‑ mentioned decision, it was established that the applicant would be paid her salary retroactively for the time during which she was suspended from her professional duties due to the criminal investigation that concerned her. The applicant was reinstated to the position she held before. The reinstatement was made taking into account the payment level the applicant was entitled to, given her seniority ( vechime în muncă ) at the time of her reinstatement.

5. Between 18 May 2015 and 12 August 2015 the applicant received payments of the salaries arrears she was entitled to, in 4 instalments.

6. According to the applicant’s employer, upon her reinstatement, she received the following salary benefits ( sporuri ): 25% for seniority in service, acquired between 12 December 2007 to 14 April 2015; 20% because of the salary increases that customs operators received, according to the law; 5% (from 12 December 2007 to 30 September 2008), 7% (from 1 October 2008 to 14 April 2015) stability benefit for employees of the Border Customs Office of the Otopeni Airport of Bucharest - Office of Customs Surveillance and Control with an employment period of 5, 10 or 15 years with the institution; 20% border checkpoint benefits.

7. On 14 September 2015 the applicant lodged a request with the Bucharest County Court to be paid, in addition to the salaries for the time during which her employment was suspended, any incentives ( prime lunare/bonusuri ) that her colleagues working in similar positions were entitled to, plus the amounts resulting from the actualisation of the salary arrears and other incentives with the inflation index ( actualizarea cu indicele inflaţiei a drepturilor salariale precum și a celorlalte drepturi ) and the interests.

8 . On 26 May 2016 the Bucharest County Court partially allowed the applicant’s claim deciding that the applicant was entitled to receive in addition to her salary arrears the amounts resulting from the actualisation of the salary rights with the inflation index as well as the interests calculated for the period between 12 December 2007 to 14 April 2015.

9. The County Court rejected the remaining of the applicant’s claim considering that the incentives were not automatically and continuously due by the employer to all the employees; that their payment depended on the performance of each employee for a particular period of time and their amount varied in connection with a range of criteria, so that it was irrelevant that other colleagues holding similar positions were paid incentives during the time the applicant was suspended.

10. Both the applicant and the defendant party lodged an appeal on points of law ( recurs ) against the Bucharest County Court’s decision of 26 May 2016. By a decision of 11 October 2017, the Bucharest Court of Appeal rejected the appeal of the applicant and partially allowed the appeal of her employer. The Court of Appeal partially upheld the County Court decision, deciding that the applicant’s employer should pay her the sums resulting from the actualisation of the salary arrears with the inflation index.

11 . However, the Court of Appeal rejected the applicant’s request to be paid interests for the salary arrears considering that she was entitled to the salaries once the suspension was lifted and, as such, the employer could not be held accountable for having intentionally delayed the payment of the salaries.

12. As the applicant’s employer informed the Government, they started paying the applicant the amount due after accruing the sums corresponding to the inflation index, namely 20 213 RON. The amount was paid over a period of 5 years, in yearly instalments, between 2018 and 2022.

13 . The applicant complained of a breach of Article 6 § 1 of the Convention, especially of the principle of legal certainty, in so far as similar litigation to her own brought before the same appellate court by five colleagues in an identical situation to her concerning the claims to be granted interest on their salary arrears at the same time with having the latter index ‑ linked, had different outcomes. She also complained that the above ‑ mentioned inconsistent approach taken by the domestic courts in the applicant’s case, as opposed to other similar cases, determined an infringement of her right to the peaceful enjoyment of her possessions protected by Article 1 of Protocol No. 1 to the Convention.

14. Finally, the applicant also complained under Article 1 of Protocol No. 1 about the refusal of the domestic courts to award her incentives that her colleagues working in similar positions to her were entitled to.

THE COURT’S ASSESSMENT

15. The Court notes that while the applicant initially complained, in her application to the Court, under Article 6 § 1 of the Convention, about inconsistencies of the internal judicial practice ( practică neunitară ), in her observations in response to those of the Government, she claimed that in her case, “there was not a divergence, but an opposite singular decision within the same Court”.

16. The Court recalls that it is not its function to deal with errors of fact or law allegedly made by a national court, unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, inter alia , García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 I, and Perez v. France [GC], no. 47287/99, § 82, ECHR 2004 I). Normally, assessments in issue before the national courts for consideration are not for the Court to review. The Court should not act as a fourth instance and will not therefore question under Article 6 § 1 the judgment of the national courts, unless their findings can be regarded as arbitrary or manifestly unreasonable (see Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 61, ECHR 2015).

17. Moreover, the Court has held that the possibility of conflicting court decisions is an inherent trait of any judicial system which is based on a network of trial and appeal courts with authority over the area of their territorial jurisdiction. Such divergences may also arise within the same court. That, in itself, cannot be considered contrary to the Convention (see Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 51, 20 October 2011). The general principles applicable to cases concerning conflicting decisions in domestic judicial practice have been referred to by the Court in Lupeni Greek Catholic Parish and Others v. Romania ([GC], no. 76943/11, § 116, 29 November 2016) and, more recently in Petrescu and Others v. Romania ((dec.), nos. 31390/18 and 9 others, § 55, 7 March 2023).

18. Turning to the circumstances of the present case, the Court finds that the applicant had the benefit of adversarial proceedings, in which she was able to adduce evidence, and that her arguments were properly examined by the courts. The courts’ conclusions and their interpretation of the relevant law cannot be regarded as manifestly arbitrary or unreasonable (paragraphs 8 ‑ 11, above).

19. The Court further notes that unlike in other cases, such as Petrescu and Others, cited above, where inconsistencies in the adjudication of civil claims brought by numerous persons in identical situations, where appellate courts were the courts of last resort in the matter, were not disputed by the parties, in the present case, the applicant indicated that five colleagues of hers allegedly in the same situation had won their claims to be granted interest on their salary arrears (paragraph 13 above).

20. In such circumstances, there are no indications that the above ‑ mentioned situation amounts to profound and long-standing conflicting case-law of the domestic courts within the meaning of the Court’s case law.

21 . It follows that the present complaint is inadmissible under Article 35 § 3 (a) of the Convention as manifestly ill-founded and must be rejected pursuant to Article 35 § 4.

22. In view of its findings in the previous paragraphs, the Court considers that the complaints under Article 1 of Protocol no. 1 are also manifestly ill ‑ founded ( Petrescu and Others , cited above, § 74) and should be dismissed pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 28 September 2023.

Crina Kaufman Faris Vehabović Acting Deputy Registrar President