30 Apr The abolition of a final and binding court decision did not lead to violations of the principle of legal certainty

In the case of Elisei-Uzun and Andonie v. Romania (Application no. 42447/10, 23/04/2019) the European Court of Human Rights held that there has been:

• violation of Article 6 paragraph 1 in respect of the right to access to the court;
• no violation of Article 6 paragraph 1, regarding the abolition of a final and partially executed judgment; and
• no violation of Article 1 of Protocol No. 1 to the European Convention on Human Rights.

The case concerned access to a court to complain about alleged discriminatory treatment. Applicants Mr Elisei-Uzun and Mr Andonie brought an action in Mureş County Court seeking compensation equivalent to the “loyalty bonus” (spor de fidelitate) to which they felt they were entitled in respect of their salary since December 2004. They complained that although they had met the same requirements as all the other judicial and non-judicial court staff who had received the loyalty bonus, they had been excluded by legal provisions from benefiting from it.

They brought the action against their employer, the Ministry of Justice and the Ministry of the Economy and Finance. In February 2008 the County Court allowed the claim and ordered that the applicants be paid compensation for discrimination. The Ministry of Justice and the Ministry of Finance appealed, but in final decision of May 2008 the Court of Appeal dismissed the appeal. It considered that the applicants had proven discrimination. The court relied on the laws regulating “confidentiality bonuses” (spor de confidenţialitate). Meanwhile, the authorities paid each of the applicants 30% of the compensation due.

In November 2008 the applicants lodged an application for the correction of material errors in the Court of Appeal’s decision. They asked that the word “confidentiality” be replaced with the word “loyalty”. The Court of Appeal allowed the application, since the use of the phrase “confidentiality bonus” had stemmed from a technical error and did not affect the reasoning of the judgment. The Ministry of Justice lodged an extraordinary appeal against the final decision of May 2008. It pointed out that the subject matter of the dispute was not a confidentiality bonus, but rather a loyalty bonus.

In October 2009, the Court of Appeal allowed the extraordinary appeal and quashed the final decision. It ruled that the subject matter of the dispute had been wrongly determined as being an entitlement to a confidentiality bonus. That could not be considered as a simple material error. It also observed that the Constitutional Court had declared the relevant provisions of the Government Ordinance no. 137/2000 on preventing and punishing all forms of discriminationto be unconstitutional and concluded that there were no longer any legal grounds to support the applicants’ action.

Relying on Article 6 § 1 (right to a fair hearing) of the European Convention on Human Rights and Article 1 of Protocol No. 1 (protection of property) to the Convention, the applicants complained that the Court of Appeal’s October 2009 decision had breached the principle of legal certainty as it had set aside a final and binding judgment which, in addition, had been partially enforced. They further complained, in particular, that their rights under Article 6 § 1 had been breached since the Court of Appeal in this decision had dismissed their action without allowing them the opportunity to present their case.

The Court notes that the applicants’ action concerned loyalty bonuses and while the County Court judgment of 14 February 2008 decided on that claim, the court of appeal, in its final decision, referred to “confidentiality bonus[es]” instead. In this context, the Court considered valid the reasoning put forward by the domestic authorities, that the final decision had been quashed because the Court of Appeal had failed to examine the arguments put before it by the parties. The Court further notes that the extraordinary appeal proceedings did not last unreasonably long: the application was lodged on 20 November 2008 and the decision was rendered on 14 October 2009. There has, accordingly, been no violation of Article 6 § 1 of the Convention on this point.

The Court further considers that the special circumstances of the present case can be regarded as exceptional grounds justifying the quashing of the final decision of 30 May 2008, and the dismissal of the applicants’ claim for compensation. The Court finds that the domestic courts struck a fair balance between the applicant’s rights to protection of property and the general interest in correcting miscarriages of criminal justice. There has, accordingly, been no violation of Article 1 of Protocol No. 1 to the Convention.

The Court considered that the Court of Appeal in its final decision has dismissed the applicants’ action without allowing them the opportunity to present their case and without giving sufficient reasons for dismissing their claim. It has thereby violated the applicant’s right to a fair trial. There has accordingly been a violation of Article 6 § 1 of the Convention.

References from the European Court of Human Rights