FOURTH SECTION
CASE OF DUMITRESCU v. ROMANIA
(Application no. 36815/20)
JUDGMENT
STRASBOURG
4 July 2023
This judgment is final but it may be subject to editorial revision.
In the case of Dumitrescu v. Romania,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
Faris Vehabović, President,
Iulia Antoanella Motoc,
Branko Lubarda, judges,
and Crina Kaufman, Acting Deputy Section Registrar,
Having regard to:
the application (no. 36815/20) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 6 August 2020 by a Romanian national, Ms Elena Dumitrescu, born in 1959 and living in Bacǎu (“the applicant”) who was represented firstly by Mr I. Popa, and following his decease in the course of 2021, by Mrs M.S. Popa, both lawyers practising in Bacǎu;
the decision to give notice of the complaints concerning Article 1 of Protocol No. 1 to the Convention and Article 6 of the Convention to the Romanian Government (“the Government”), represented by their Agent, Ms O.F. Ezer, of the Ministry of Foreign Affairs, and to declare inadmissible the remainder of the application;
the decision to give priority to the application (Rule 41 of the Rules of Court);
the parties’ observations;
the decision to reject the Government’s objection to examination of the application by a Committee;
Having deliberated in private on 13 June 2023,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. On 5 June 2012 the relevant medical commission, having examined the applicant, issued a disability certificate which attested that she had a second‑degree disability, as a blind person. 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 an old age pension.
2. On 19 November 2015 the High Court of Cassation and Justice (“the HCCJ”) established by means of an appeal in the interests of the law that the term “blind” as mentioned in the disability legislation referred exclusively to a person with full visual impairment.
3. Consequently, a wide-scale revision of pensions already granted to claimants such as the applicant was undertaken by the pension authorities.
4. On 30 May 2018 the applicant’s pension decision of 2012 was revoked by the Bacǎu Pension Authority, which decided that, in the light of her second-degree disability (partial visual impairment) and of the period of her contribution to the pension fund, she had not been entitled to receive a pension.
5. The applicant challenged this decision referring, inter alia, to the Court’s case Moskal v. Poland (no. 10373/05, 15 September 2009).
6. By final decision of 27 December 2019 (notified on 14 February 2020) the Bacǎu Court of Appeal upheld the decision of 30 May 2018 and found that the impugned decision was not disproportionate: the applicant was not fully deprived of an income, as she was receiving a monthly disability benefit of 375 Romanian lei (RON), which was approximately 75 euros (EUR), she co-owned an apartment with her husband, and owned a car.
7. On 4 July 2018 the Bacǎu Pension Authority established that the applicant was to repay the amount of RON 37,110 (approximately EUR 7,600), received in undue pension for the period between 1 June 2015 and 31 May 2018.
8. On 5 December 2018 the Bacǎu County Court found for the applicant and annulled the decision of 4 July 2018 as being disproportionate. It found that the pension authority had been at fault for having issued the pension decision, and for having delayed for more than three years the re-assessment procedure in the applicant’s case, once the HCCJ had indicated the interpretation of the relevant legal concepts. Moreover, it held that the required reimbursement would jeopardise her livelihood and put an excessive burden on her, given that her very low income was only composed of monthly disability benefits.
9. On 25 February 2019 the pension authority revoked its decision of 4 July 2018.
10. On 15 June 2020 the Bacǎu Court of Appeal reversed the judgment of 5 December 2018 finding that in the light of the lawfulness of the decision revoking the applicant’s pension (see paragraph 6 above), the consequent decision reclaiming the undue pension was also lawful and hence could not be annulled.
11. On 17 September 2020 the pension authority revoked its decision of 25 February 2019, holding that the outstanding debt established in the decision of 4 July 2018 was still in force. That decision was upheld by the Bacǎu County Court on 17 February 2021, “as it was only reproducing the content of the previous decision of 4 July 2018, already declared lawful by the courts”.
12. On 5 July 2021 the fiscal authorities launched enforcement proceedings against the applicant for an outstanding debt of RON 37,626 (approximately EUR 7,600). It appears that as of May 2021, the monthly amount withheld from the applicant’s income was RON 53 (approximately EUR 11); as of January 2022, that monthly amount was increased to RON 118 (approximately EUR 24).
THE COURT’S ASSESSMENT
THE GOVERNMENT’S PRELIMINARY OBJECTIONAbuse of the right of individual petition
13. The Government objected that by providing an incomplete version of the judgment of 15 June 2020, lacking the reasoning part, the applicant had abused her right of application.
14. The applicant indicated that the copy of the above-mentioned judgment had been submitted by Mr I. Popa, her initial representative, who died during the proceedings before the Court, and denied any intention on her part or that of her representative to mislead the Court about the relevant facts.
15. The Court recalls its finding that an application deliberately based on false or misleading submissions or on a description of facts that omits events of central importance may constitute an abuse of the right of application, within the meaning of Article 35 § 3 (a) of the Convention (see Vinniychuk v. Ukraine, no. 34000/07, § 42, 20 October 2016). The applicant’s intention to mislead the Court must, however, always be established with sufficient certainty (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014).
16. Even assuming that events of central importance had been omitted by the submission of a partial copy of the afore mentioned domestic judgment, in view of the objective impossibility of obtaining a pertinent explanation from the applicant’s previous representative, the Court considers it difficult to discern with sufficient certainty the existence of any abusive conduct on behalf of the applicant in the present case.
17. The Government’s objection cannot therefore be upheld.
ALLEGED VIOLATION OF ARTICLE 1 of Protocol No. 1 to THE CONVENTION18. The applicant complained under Article 1 of Protocol No. 1 of the infringement of her right to peaceful enjoyment of possessions due to (a) establishing that she had not been entitled to receive a pension, and (b) that she had to repay the very large amount of money allegedly received in undue pension. Such interference affected her, a disabled person with very low income and fragile health, in a harsh manner exposing her to poverty and thus putting her well‑being in danger.
19. In the instant case, the applicant’s right to receive a pension was generated by the favourable evaluation of her pension application by the pension authority. In particular, based on her disability certificate and the information available to the Bacǎu Pension Authority, on 13 July 2012 her right to receive pension was recognised and a pension was paid to her until 30 May 2018.
20. These elements generated for the applicant a property right protected by Article 1 of Protocol No. 1 (see, among other authorities, Fábián v. Hungary [GC], no. 78117/13, §§ 61-62, 5 September 2017).
21. Furthermore, this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.
22. It is not disputed between the parties that the pension authority’s decisions of 20 May 2018 and 4 July 2018 (later confirmed on 17 September 2020) respectively, which retrospectively divested the applicant of the pension she had been receiving since 2012, amounted to an interference with her possessions within the meaning of Article 1 of Protocol No. 1. The Court sees no reason to hold otherwise (see Fábián, cited above, § 62). The proceedings concerning the reimbursement of amounts paid to her between 2015 and 2018 were a consequence of the interference with the applicant’s possessions.
23. The said interference falls to be examined under the general rule enunciated in the first sentence of the first paragraph of Article 1 of Protocol No. 1. It appears that it was provided for by Law no. 263/2010 on the unified public pension scheme and pursued a legitimate aim, ensuring that the public purse was not called upon to subsidise undeserving beneficiaries. It should be examined further whether it imposed a disproportionate and excessive burden on the applicant.
24. While the public authorities should not be prevented from correcting their mistakes – even those resulting from their own negligence, the risk of any mistake made by the State authority must be borne by the State itself. Such errors should not be remedied at the expense of the individuals concerned. In the context of revocation of a property title granted erroneously, the “good governance” principle may not only impose on the authorities an obligation to act promptly in correcting their mistake, but also necessitate the payment of adequate compensation or another type of appropriate reparation to its former good-faith holder (Rysovskyy v. Ukraine, no. 29979/04, § 71, 20 October 2011, with further references).
25. In the current case, it has not been alleged that the applicant took any action with the intention of misleading the pension authority or that she otherwise acted in bad faith when submitting her request for a pension. Indeed, the pension authority itself established the relevant elements when granting the applicant’s request for a pension.
26. The revocation of the decision to grant a pension to the applicant was not based upon any new evidence but only upon a reassessment of the same evidence which was at the basis of the final administrative decision, reassessment conducted ex proprio motu and with retroactive effect by the pension authority, following the HCCJ’s interpretation of the applicable law. It appears that the interpretation given by the HCCJ in an appeal in the interests of the law is binding on the relevant authorities only as of the moment of its being made public (see Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 46, 29 November 2016). Hence, the impugned reassessment of evidence brings into question legal certainty in the area of social security. Crucially, uncertainty is a factor to be taken into account in assessing the State’s conduct, the public authorities being bound to act in good time and in an appropriate and consistent manner (see Čakarević v. Croatia, no. 48921/13, § 84, 26 April 2018).
27. The case at hand concerns the complete loss of a pension entitlement. Owing to the applicant’s specific circumstances, the pension had constituted her essential source of income for a period of over six years (see, mutatis mutandis, Romeva v. North Macedonia, no. 32141/10, §§ 74‑75, 12 December 2019).
28. Also, the proceedings aimed at claiming the reimbursement of the pension benefits paid to the applicant (see paragraph 12 above) further aggravated her already difficult financial situation (see Čakarević, cited above, § 89).
29. In the above circumstances, the Court finds that the burden placed on the applicant was excessive. There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.
REMAINING COMPLAINT30. The applicant complained under Article 6 of the Convention about the lack of reasoning in the judgment given on 15 June 2020 (see paragraph 10 above).
31. Based on the material in its possession, the Court cannot discern any signs of arbitrariness in the domestic court’s findings therein (see Namazli v. Azerbaijan (dec.), no. 28203/10, § 45, 7 June 2022).
32. Accordingly, this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
APPLICATION OF ARTICLE 41 OF THE CONVENTION
33. The applicant claimed 38,298 Romanian lei (RON), approximately 7,800 euros (EUR), the outstanding amount she was bound to pay, including RON 672 (approximately EUR 135), already withheld from her (paragraph 12 above), for pecuniary damage; EUR 20,000 for non‑pecuniary damage and RON 3,200 (approximately EUR 650) in respect of costs and expenses incurred before the Court.
34. The Government contested the claims.
35. Given the nature of the violation found, the Court requests the Government to ensure that any payment order issued against the applicant following the proceedings initiated against her (see paragraph 12 above) is not enforced any further (see Romeva v. North Macedonia, no. 32141/10, § 88, 12 December 2019); also, the applicant must be reimbursed the amounts already paid by her on account of the enforcement proceedings of the decisions of 4 July 2018 and 17 September 2020 (see paragraphs 11 and 12 above). Furthermore, it awards the applicant EUR 5,000 in respect of non‑pecuniary damage, plus any tax that may be chargeable to her.
36. Based on the documents in its possession, the Court considers it reasonable to award the applicant EUR 650 covering costs and expenses for the proceedings before the Court, plus any tax that may be chargeable to her.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Declares the complaint concerning Article 1 of Protocol No. 1 admissible and the remainder of the application inadmissible;Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;Holds(a) that the respondent State is to return to the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the amounts already paid by her on account of the enforcement proceedings of the decisions of 4 July 2018 and of 17 September 2020;
(b) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 650 (six hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Dismisses the remainder of the applicant’s claim for just satisfaction.Done in English, and notified in writing on 4 July 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Crina Kaufman Faris Vehabović
Acting Deputy Registrar President