BORŞ v. ROMANIA and 3 other applications

Published on 12 February 2024

FOURTH SECTION

Application no. 46212/20
Felicia BORŞ against Romania
and 3 other applications
(see list appended)
communicated on 26 January 2024

SUBJECT MATTER OF THE CASE

The applicants’ respective fathers had been declared “hero-martyrs” for having died in the crossfire during the 1989 Romanian Revolution. In their capacity as heirs of “hero-martyrs” and pursuant to Law no. 341/2004 of gratitude to the hero-martyrs and fighters who contributed to the victory of the Romanian Revolution of December 1989, the applicants were entitled to and benefitted of a specific allowance which was tax free. The pension authority retained 10% of that allowance as health insurance contribution. The applicants complained before the domestic courts about that practice and asked to be refunded with the amount withheld as health insurance contribution for the past three years. They relied on Article 5 § 2 of the Law, stating that the rights granted thereto were not considered income, hence were tax-free and should be also exempt from the contribution to the health system. Their claims were dismissed by final judgments, as presented summarily below.

Law no. 341/2004 referred to three categories of beneficiaries of allowances: “hero-martyrs”; “fighters for the victory of the Revolution” (with several sub-categories: “wounded fighter”, “arrested fighter”, “fighter with a determinant role in the Revolution” and “fighter with outstanding merits in the Revolution”); and finally, “participant to the victory of the Revolution”. Article 5 § 2 of the Law stated that the rights granted by the law could not be considered as income and hence were not subjected to taxation.

At the relevant time, the above-mentioned legal provisions were allegedly interpreted and applied divergently by the domestic courts across the country, some of them considering, as in the applicants’ situation, that the specific allowance triggered health insurance payment obligations, while others finding the opposite, namely that that sum was both tax free as well as health insurance contribution-free. In that context, on 17 February 2020 the High Court of Cassation and Justice gave a judgment in a specific procedure aiming to resolve a question of law and to lay down binding guidelines for a uniform interpretation of the disputed legal provision, Article 5 § 2 of the Law no. 341/2004, in what concerned the situation of the “fighters with a determinant role in the Revolution”. The High Court essentially ruled that since that allowance, and in general allowances granted as per the Law no. 341/2004, was not defined as income subjected to taxation, it could not be subjected to health insurance contributions either. However, if no health insurance contribution was paid, those beneficiaries did not benefit of any health insurance, as opposed to the “wounded fighters”, who were expressly considered by the law as being health insured, without paying health contributions.

The applications concern the applicants’ complaints that by the wrongful interpretation of the relevant national law they have been deprived of their right to be awarded the full amount of the allowance they were entitled to and that they were thus unjustly discriminated in comparison with other claimants, who had their similar claims allowed by other domestic courts.

1. Applications nos. 46212/20 and 47551/20

In 2019 the applicants complained before the domestic courts about the pension authority’s practice to retain 10% of their allowance as health insurance contribution and asked to be refunded with the amount thus withheld for the past three years. They relied on Article 5 § 2 of the Law, stating that the rights granted thereto were not considered income, hence were tax-free and should be also exempt from the contribution to the health system.

The complaint was dismissed by the Cluj Court of Appeal by the final decision of 5 February 2020. According to the Tax Code read in conjunction with the Law no. 341/2004, only the “wounded fighters” were exempted from the payment of health insurance contributions, therefore the applicants did not fall into the category of beneficiaries exempt from paying the health insurance contribution.

2. Applications nos. 44456/21 and 44482/21

In 2020 the applicants complained before the domestic courts about having been deprived of 10% of their monthly allowance and asked to be refunded with the amount withheld as health insurance contribution for the past four years. In appeal, they mentioned the existence of the judgment given by the HCCJ on 17 February 2020. Their claims were dismissed by the Cluj Court of Appeal by the final decision of 8 March 2021. The appellate court did not refer to the applicants’ argument about the HCCJ findings.

QUESTIONS TO THE PARTIES

1.  Has the alleged inconsistent approach taken by the domestic courts in the applicants’ cases, as opposed to other similar cases, constituted an infringement of the applicants’ right to the peaceful enjoyment of their possessions protected by Article 1 of Protocol No. 1 to the Convention, in particular of their alleged right to be exempted from the payment of the health contribution on the allowance perceived as per Law no. 341/2004, as claimed before the domestic courts (see mutatis mutandis, Tudor Tudor v. Romania, no. 21911/03, 24 March 2009 and Ştefănică and Others v. Romania, no.  38155/02, §§ 41-42, 2 November 2010)?

2.  Have the applicants been subjected to discriminatory treatment contrary to Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 to the Convention, having regard to the fact that other claimants’ relevantly similar actions before the domestic courts had a favourable outcome (see, mutatis mutandis, Ştefănică and Others, cited above, §§ 41-42, and Driha v. Romania, no. 29556/02, § 38, 21 February 2008)?

3.  The parties are invited to submit relevant information and domestic practice concerning the courts’ approach at the relevant time in proceedings similar to those complained of in the present case.

APPENDIX