RADI AND GHERGHINA v. ROMANIA

FOURTH SECTION

DECISION

Application no. 34655/14
Teodora-Tania RADI and Răzvan Mihai GHERGHINA
against Romania

The European Court of Human Rights (Fourth Section), sitting on 5 January 2016 as a Chamber composed of:

András Sajó, President,
Vincent A. De Gaetano,
Boštjan M. Zupančič,
Nona Tsotsoria,
Egidijus Kūris,
Iulia Antoanella Motoc,
Gabriele Kucsko-Stadlmayer, judges,
and Françoise Elens-Passos, Section Registrar,

Having regard to the above application lodged on 30 April 2014,

Having deliberated, decides as follows:

THE FACTS

1. The applicants, Ms Teodora-Tania Radi and Mr Răzvan Mihai Gherghina, are Romanian nationals who were born in 1960 and 1982 respectively. The second applicant is the first applicant’s nephew. They live in the same household, in Valea Ursului, together with the second applicant’s mother. They were represented before the Court by Mr C. Cojocariu, a lawyer practising in Orpington, the United Kingdom.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicants, may be summarised as follows.

3. On 20 October 2001 Mr Gherghina suffered a traffic accident, as a result of which he became wheelchair-bound. Certificates issued in 2003 and 2007 classified him as having a “severe disability” (handicap grav), which entitled him to the services of a personal assistant.

4. Ms Radi, his aunt, is qualified to practise physiotherapy and medical rehabilitation as a nurse; she has twenty-five years’ experience in this field. She also has a university degree in law. She provided the second applicant with personal assistance immediately after his accident. At that time, the Başcov local authorities had no professional personal assistants on their payroll. The first applicant was offered the position of full-time personal assistant to the second applicant for an indefinite period of time.

1. The first applicant’s work as the second applicant’s personal assistant

5. On 3 July 2006 she signed an employment contract with the Başcov local authorities. On 6 July 2007 a job description was appended to the employment contract describing the main purpose of her job as being “to provide permanent care and assistance to a person who is the holder of a medical certificate attesting to a severe degree of invalidity”. The second applicant was not involved in the process, having no say in the choice of means of support available, or in choosing his personal assistant.

6. Under the terms of the contract, the first applicant had to work eight hours a day, or forty hours a week. She was remunerated and enjoyed a range of additional rights such as payment for overtime work, daily and weekly periods of rest and annual leave. Her salary was equal to the national minimum wage, which is determined yearly by law.

7. The first applicant provided a description of her main tasks as the second applicant’s personal assistant.

Firstly, she assisted the second applicant with his rehabilitation and physiotherapy exercises for three or four hours a day.

Secondly, she accompanied the second applicant every time he left the house, helping him in and out of the wheelchair and handling the wheelchair when necessary. The first applicant explained that these actions involved heavy physical work, made worse by the prevailing lack of accessibility of infrastructure. When the second applicant attended university, she used to wait for him until the classes were over and then help him return home. She moved town in order to follow him when, for instance, he enrolled at a university in Bucharest.

Thirdly, the first applicant ran errands for the second applicant, including representing him in his dealings with the authorities and shopping for him.

Lastly, she explained that she systematically worked overtime.

8. The first applicant has been diagnosed with anxiety and depression.

9. During the time when the first applicant wished to take annual leave, the local authorities could not provide the second applicant with a replacement personal assistant and could not accommodate him in a specialised recreation centre. Instead, they offered to pay a compensatory allowance, as provided by Article 37 § 3 of Law no. 448/2006 (see paragraph 15 below). The local authorities explained that the allowance was meant for the disabled person and not for the personal assistant.

The first applicant explained that as the compensatory allowance was not enough to employ someone on a short-term basis on the free market, she decided not to take leave. As a consequence, she has been on call on a twenty-four-hour basis, every day of the week and every week of the year since she started working as the second applicant’s personal assistant.

2. Proceedings concerning the first applicant’s conditions of employment

10. On 13 June 2012 the first applicant filed a complaint against her employer before the Argeş County Court. She argued mainly that she had not received various benefits she had been entitled to on the basis of her work contract, such as: supplements for seniority, for difficult working conditions, and for providing assistance to a person diagnosed with a “severe disability”; or additional remuneration for night work. She also complained that she could not actually take her annual leave as she had to remain continuously at the second applicant’s disposal; she therefore sought to compel her employer to respect her right to periods of rest.

She also complained that the local authorities did not offer her support in discharging her duties, as mandated by law.

11. Before the court she further submitted that she was suffering from physical and intellectual exhaustion and permanent stress as a result of not being able to cope with the physical requirements of assisting the second applicant. The first applicant further explained that although she performed demanding work that required qualifications and had been employed for twenty-five years, she currently received the starting salary for a social worker with no experience. That situation would penalise her at the time of retirement as her social contributions were significantly lower. She further contended that at her age it would be difficult to get a new job.

12. On 16 January 2013 the Argeş County Court dismissed the first applicant’s claims. It found that she had received all the benefits to which she had been entitled under Law no. 448/2006, including a 25% increase in salary to take account of her seniority, which had been correctly calculated by her employer. On the latter point, the court noted that whereas the employer had initially added the 25 % bonus to her basic wage, later it had corrected the mistake by including the 25 % bonus within the basic wage, as required by the applicable laws and regulations. It also noted that some benefits provided for in other laws, such as additional remuneration for night work or for working with severely disabled persons, were not applicable to the status of personal assistant. The court further observed that the first applicant had received compensatory payments from her employer for being unable to take annual leave from 2009 to 2011.

13. The first applicant appealed, arguing that under the Labour Code, the right to paid annual leave was guaranteed to all employees who could not validly waive it. She accused her employer of failing to identify a replacement, and argued that the indemnity she had received could not compensate for her inability in practice to take her annual leave.

14. On 31 October 2013 the Pitești Court of Appeal dismissed the appeal and essentially upheld the County Court’s decision.

B. Relevant law

15. The relevant provisions of the Protection of Persons with Disabilities Act (“Law no. 448/2006”) read as follows:

(a) Personal assistant

Article 35

“A disabled person has the right to a personal assistant, on the basis of a medical and psychosocial assessment.”

Article 36

“1. A person may take up the position of personal assistant on an individual employment contract if he or she fulfils the following conditions:

(a) is at least 18 years old;

(b) has never been convicted of a crime that would make him or her incompatible with performing the function of personal assistant;

(c) has full working capacity;

(d) is in good health, as attested by a general practitioner or on the basis of a special medical check-up;

(e) has completed at least a secondary school education, the relatives and spouse of the disabled person being exempted from this requirement; ...”

Article 37

“1. During the period of providing care and protection to the disabled person, the personal assistant shall be entitled to the following, on the basis of the individual employment contract:

(a) a basic salary, calculated in accordance with the statutory provisions regulating the employment benefits payable to a social worker with intermediate-level education employed by a State social assistance unit, as well as a length-of-service allowance and other allowances provided for by law;

(b) working hours that do not exceed, on average, eight hours a day and forty hours a week;

(c) annual leave, in accordance with the statutory provisions applicable to personnel working in public institutions;

(d) free public urban transport;

(e) inter-urban transport.

2. During the temporary absence of the personal assistant, the employer shall be required to secure a replacement personal assistant for the disabled person.

3. If the employer cannot secure a replacement for the personal assistant, the employer shall provide the disabled person with a compensatory allowance in accordance with Article 43, paragraph (1), or house him or her in a recreation centre.”

Article 39

“1. The individual employment contract shall be concluded with the local authorities of the disabled person’s place of residence ...

3. The terms and conditions for concluding, modifying or terminating the personal assistant’s individual employment contract shall be complemented by the provisions of the Labour Code, with any subsequent additions and modifications.”

Article 43

“The monthly allowance [for the personal assistant] shall be equal to the net starting salary for a social worker with intermediate-level education employed by a State social assistance unit.”

(b)  Professional personal assistant

Article 45

“(1) An adult with a severe or profound disability who does not have any means of subsistence or whose income is below the minimum wage shall be entitled to care and protection by a professional personal assistant.

(2) Care and protection of adults with a severe or profound disability by the professional personal assistant shall be provided on the basis of a decision by the evaluation committees for adults with a disability.

(3) The opinion of the adult with a severe disability shall be taken into consideration in deciding on the choice of professional personal assistant.

(4) The employment contract of the professional personal assistant shall be concluded by the local general directorates for social assistance and child protection.”

Article 47

“(1) During the provision of care and protection for adults with a severe or profound disability, the professional personal assistant shall be entitled to the following:

(a) a basic wage determined in accordance with the statutory provisions regulating wages for a social worker with intermediate-level education working in State social assistance units ... as well as a length-of-service allowance and any other allowances provided for by law;

(b) an allowance of 15%, calculated from the basic wage, for neuropsychological strain and special working conditions;

(d) an allowance of 25%, calculated from the basic wage, for the period in which the assistant is responsible for caring for an adult with a severe or profound disability ...;

(3) During periods of leave, the employer shall be required to secure a replacement for the professional personal assistant or to house the person with a severe or profound disability in a recreation centre.”

Article 48

“The conditions for obtaining a licence, the certification procedures and the status of the professional personal assistant shall be regulated by decision of the Government, on a proposal by the National Authority for Disabled Persons ...”

Article 49

“The professional personal assistant shall have the following obligations:

(a) to take part in annual vocational training organised by the employer;

(b) to sign an undertaking, in addition to the individual employment contract, through which he or she assumes responsibility to carry out the individual service plan for the adult with a severe or profound disability;

(c) to perform all the activities and services described in the individual employment contract, the job description and the individual service plan, for the benefit of the adult with a severe or profound disability;

(d) to treat the adult with a severe or profound disability with respect, good faith and understanding and not to take advantage physically, psychologically or morally of the adult’s condition;

(e) to inform the local or Bucharest district general directorates for social assistance and child protection within forty-eight hours of any changes that have occurred in the physical, psychological or mental state of the adult with a severe or profound disability or any other changes that may affect statutory entitlements.”

Article 50

“Non-fulfilment or unsatisfactory fulfilment by the professional personal assistant of his or her duties provided for by law, as well as those provided for in the individual employment contract, shall give rise to disciplinary action, either civil or criminal, against the professional personal assistant in accordance with the law.”

16. The relevant provisions of the Labour Code (Law 53/2003) read as follows:

Article 144

“1. The right to annual paid leave is guaranteed to all employees.

2. The right to annual paid leave cannot be transferred, waived or limited.”

Article 145

“The minimum period of annual leave is twenty working days.”

Article 146

“1. Annual leave has to be taken annually.

...

3. By the end of the year, the employer must grant annual leave to all employees who, in the course of the year, have not taken all the days of annual leave to which they were entitled.

4. Monetary compensation for annual leave that has not been taken cannot be granted unless the individual employment contract is terminated.”

Article 147

“1. Employees who work in especially difficult conditions shall be entitled to extra annual leave of at least three working days. ...”

Article 148

“1. Annual leave shall be taken on the basis of an individual schedule decided by the employer ... after consulting the employee. The scheduling shall be carried out by the end of the calendar year for the coming year. ...”

Article 149

“The employee must take his or her leave within the scheduled period, except in situations expressly provided for by law or when, for objective reasons, the leave cannot be taken.”

Article 150

“1. The employee shall be entitled to a leave allowance for the leave period ...

2. The leave allowance shall represent the daily average salary from the three months immediately preceding the month during which the leave is taken, multiplied by the number of days of leave.

3. The leave allowance shall be paid by the employer at least five days before the employee takes leave.”

17. The relevant provisions of international conventions concerning forced labour, servitude and slavery, as well as the ILO’s definition of “forced labour” and “voluntary offer”, are described in C.N. and V. v. France (no. 67724/09, §§ 51-52, 11 October 2012).

COMPLAINTS

18. The first applicant alleged that the personal assistance scheme imposed a disproportionate burden on the relatives of persons with disabilities acting as personal assistants, such as herself, thus amounting to forced and compulsory labour in breach of Article 4 of the Convention. In this regard, by derogating from the Labour Code, Law no. 448/2006 imposed inferior pay and worse working conditions which did not take account of seniority, level of education or the real characteristics of the work performed. She alleged that this situation had not been foreseeable at the time when her employment contract was concluded, since it had provided for some basic rights which had nevertheless later been watered down by her employer and the domestic courts.

She lastly contended that the shortage of professional assistants and specialised centres were structural problems in Romania, rendering inoperative the provisions of Article 37 of the Protection of Persons with Disabilities Act.

19. For the same reasons, she contended that the personal assistance scheme breached her right to respect for her private life as guaranteed by Article 8 of the Convention. She argued that the domestic courts had applied the relevant legal provisions inflexibly, refusing to take into account her individual circumstances in terms of qualifications and experience.

20. The second applicant complained under Article 8 of the Convention that he had not been involved at any stage in the process of recruiting, training or managing his personal assistants. He alleged that the system put in place by the local authorities to provide assistance did not meet his actual needs, which had never been properly assessed. He contended that family members were appointed as personal assistants almost by default, because of a chronic absence of professional personal assistants, and because the salaries available were too low to recruit assistants on the free market. He submitted that having a member of his family appointed as his personal assistant was hardly conducive to his goal of having an independent and autonomous life. He argued that it actually had the opposite effect of entrenching his dependence on family members, making it nearly impossible for him to leave the parental home.

21. Both applicants alleged a breach of Article 13 of the Convention in that no remedy existed under Romanian law to challenge the domestic statutory personal assistance scheme, arguing that this situation in itself ran counter to the provisions of the Convention. They relied on the Constitutional Court’s decision no. 818 of 3 July 2008, according to which the ordinary domestic courts did not have the power to refuse to apply provisions of law which appeared to them to be in breach of human rights or to replace them with other provisions created by way of judicial interpretation, as the legislative function belonged to Parliament and, to some extent, the Government.

22. The first applicant lastly alleged a breach of Article 14 of the Convention in conjunction with Articles 4 and 8 of the Convention, in that her pay and working conditions were inferior to those available to all other State employees, without any objective and reasonable justification, on account of her association with a disabled person, and her gender. She submitted that the vast majority of personal assistants were women, as they were seen as the primary providers of care, and because they often earned less than their husbands, making them more likely to accept the personal assistance employment package. She submitted that the inflexible and inferior working and pay conditions attached to personal assistance contracts – primarily affecting women – enforced gender‑based stereotypes of woman as housekeepers and the main carers for children, amounting to gender-based discrimination in breach of Article 1 of Protocol No. 12.

THE LAW

A. Complaints raised under Articles 4, 8, 13 and 14 of the Convention and Article 1 of Protocol No. 12 to the Convention by the first applicant

23. The first applicant complained about the conditions of her work. She relied on Articles 4, 8, 13 and 14 of the Convention, which read as follows, in so far as relevant:

Article 4 (prohibition of slavery and forced labour)

“...

2. No one shall be required to perform forced or compulsory labour.

3. For the purpose of this article the term ‘forced or compulsory labour’ shall not include:

(a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of [the] Convention or during conditional release from such detention;

(b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;

(c) any service exacted in case of an emergency or calamity threatening the life or well-being of the community;

(d) any work or service which forms part of normal civic obligations.”

Article 8 (right to respect for private and family life)

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 13 (right to an effective remedy)

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

Article 14 (prohibition of discrimination)

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

Article 1 of Protocol No. 12 (General prohibition of discrimination)

“1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.”

1. Article 4 of the Convention

(a) General principles

24. The Court reiterates that the Convention does not contain a definition of the term “forced or compulsory labour”. In its case-law, the Court has had recourse to International Labour Organisation (ILO) Convention No. 29 concerning forced or compulsory labour. For the purposes of that Convention, the term “forced or compulsory labour” means “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily”. The Court has taken that definition as a starting-point for its interpretation of Article 4 § 2 of the Convention (see, inter alia, Siliadin v. France, no. 73316/01, §§ 115-116, ECHR 2005‑VII; Stummer v. Austria [GC], no. 37452/02, §§ 117-118, 7 July 2011; Graziani-Weiss v. Austria, no. 31950/06, § 36, 18 October 2011).

25. In the case of Van der Mussele v. Belgium (23 November 1983, § 32, Series A no. 70) which concerned a pupil advocate’s duty to provide services under the legal-aid scheme without remuneration, the Court developed standards for evaluating what could be considered normal in respect of duties incumbent on members of a particular profession (ibidem, § 39). These standards take into account whether the services rendered fall outside the ambit of the normal professional activities of the person concerned; whether the services are remunerated or not or whether the service includes another compensatory factor; whether the obligation is founded on a conception of social solidarity; and whether the burden imposed is disproportionate (see also Steindel v. Germany (dec.), no. 29878/07, 14 September 2010, concerning a medical practitioner’s duty to participate in an emergency service, and Graziani-Weiss (cited above), concerning a lawyer’s duty to act as legal guardian of a mentally ill person with no relative capable of performing that task).

26. The Court has specified that not all work exacted from an individual under threat of a “penalty” is necessarily “forced or compulsory labour” prohibited by Article 4 § 2 of the Convention. Factors that must be taken into account include the type and amount of work involved.

(b) Application of those principles to the facts of the case

27. In the case at hand, the Court notes at the outset that the first applicant accepted her work willingly, as she voluntarily entered into a bilateral contract with the local authorities. There is no indication of any sort of coercion either on the part of the second applicant or on the part of the authorities. The first applicant was remunerated for her work. The fact that she was not satisfied with the salary level does not equate to a lack of remuneration. Furthermore, she was free to take the matter to the courts, an option of which she availed herself in order to obtain their opinion on the subject.

28. The Court further notes that the first applicant is free to denounce the contract at any given moment without any consequences for her. She risks no penalties or loss of rights or privileges (see C.N. and V. v. France, cited above, § 52). Her studies and professional qualifications open up a wider range of opportunities for her on the employment market (see paragraph 4 above). The Court considers that neither the uncertainty as to how she would in practice be able to find suitable work nor the manner in which the authorities might find an alternative solution for the second applicant’s care are matters that alter the first applicant’s freedom to terminate the contract.

29. For the reasons above, the Court concludes that the first applicant was not required to perform compulsory work.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

2. Articles 8, 13 and 14 of the Convention and Article 1 of Protocol No. 12

30. The Court has examined the remaining complaints. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

31. In particular, concerning the first applicant’s allegations of an infringement of the right to respect for her private life, the Court reiterates that she is free to denounce her contract at any point and to regain control of her private life, should she feel that it has been hampered by the conditions of her current employment.

32. As to the alleged discrimination against the first applicant with regard to the conditions of her employment, the domestic courts explained why different benefits which might apply to other categories of employees did not apply to her (see paragraph 12 above). The Court sees no reason to depart from the domestic courts’ interpretation of the applicable law (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999‑I).

33. Lastly, concerning the complaint raised under Article 13, the Court reiterates that it is not its task to review the relevant legislation in the abstract. Instead, it must confine itself, as far as possible, to examining the issues raised by the case before it (see, for example, mutatis mutandis, Finger v. Bulgaria, no. 37346/05, § 120, 10 May 2011; and Goranova-Karaeneva v. Bulgaria, no. 12739/05, § 48, 8 March 2011). It notes that the first applicant had full access to a court to complain about the conditions of her employment and that in the judicial decisions delivered in her case she received answers to all the arguments she had raised before the domestic courts.

34. It follows that 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.

B. Complaints raised under Articles 8 and 13 by the second applicant

35. The second applicant complained, under Article 8 of the Convention, about his lack of involvement in the choice of personal assistant and, under Article 13, about his inability to challenge the statutory personal assistance scheme.

36. However, the Court notes at the outset that the second applicant did not complain to the domestic authorities or courts about the local authorities’ decision to hire his aunt, the first applicant, as his personal assistant. He did not complain about the means for his protection chosen by the local authorities under Law no. 448/2006. Moreover, he was not a party to the court proceedings initiated by his aunt concerning the conditions of her employment.

It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Declares the application inadmissible.

Done in English and notified in writing on 28 January 2016.

              Françoise Elens-PassosAndrás Sajó
RegistrarPresident

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