Communicated on 6 October 2015
THIRD SECTION
Application no. 56574/10
Elena STĂTESCU against Romania
and 5 other applications
(see list appended)
The applicants are Romanian nationals. Their details are mentioned in the annexed table.
A. The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.
All applicants are parents of twins or triplets who were born between 2005 and 2009 and who benefited from a sole maternity allowance granted on the basis of Emergency Ordinance No. 148/2005 on the support provided to families for raising their children. In 2009 a new law amending the ordinance was adopted (Law No. 239/2009) and the amount of the maternity allowance was to be raised with 600 lei for each child born from a multiple pregnancy from the second child on.
Numerous parents, including the applicants, considered that the maternity allowance should be granted in equal amounts for each child issued from a multiple pregnancy and had instituted court proceedings in this respect.
Noting the divergent case-law resulting from the interpretation of the ordinance, the High Court of Cassation and Justice delivered a ruling on an appeal in the interests of law (recurs în interesul legii) by which it gave a new interpretation to the ordinance. In its decision adopted on 14 November 2011, the High Court held that the practice of granting to all families without difference of only one maternity allowance starting from the entry into force of Emergency Ordinance No. 148/2005 and until the adoption of Law No. 239/2009 had been discriminatory. The High Court recognised a retroactive right to maternity allowance for each child born from a multiple pregnancy during the mentioned period, namely between 14 November 2005 and 18 June 2009.
All applicants instituted proceedings before the courts in order to obtain equal maternity allowances for all their children born from multiple pregnancies. All applicants (with the exception of application no. 12696/2015) had received favourable decisions from the first instance courts which considered that children born in the same time should have equal rights. However, the appeals filed by the administrative authorities were all allowed and the applicants’ requests had been dismissed. The courts of appeal held either that the requested right had not been provided by law (application no. 56574/10), or, in the cases where the applicants challenged the initial administrative decisions following the recognition of their right by the High Court in 2011, that they had not followed the proper administrative procedure to challenge the initial administrative decisions establishing the amount of their maternity allowance. With respect to other actions filed by the applicants after the adoption of the High Court’s decision, seeking to obtain recognition of their right confirmed by the High Court, the courts of appeal held that the actions were time barred since the applicants had not challenged within the legal timeframe the initial administrative decisions (applications nos. 1343/14, 6889/14, 30880/14 and 56284/14).
The applicant in application no. 12696/2015 had filed a new action before the courts following the adoption of the High Court’s decision seeking to be paid the allowance for her second child. By a final judgment of 4 September 2014 her action was rejected since a similar claim by the same applicant had already been decided by the national courts.
B. Relevant domestic law and practice
1. Government Emergency Ordinance No. 148/2005
Government Emergency Ordinance No. 148/2005 on the support provided to families for raising their children entered into force on 14 November 2005.
Article 1 of the ordinance provided that parents who had obtained taxable income in the last twelve months before the birth of their child were entitled to maternity leave in order to raise their child up to two years as well as to a monthly allowance of 800 lei.
The Methodological Rules for the application of the Ordinance, adopted by Government Decision No. 1025/2006 defined birth as the process that leads to the production of one or more live children. The rules did not make any difference between normal or multiple birth.
2. Law No. 239/2009
On 18 June 2009 Law No. 239/2009 amending Emergency Ordinance No. 148/2005 entered into force. It provided in its unique article that the amount of the maternity allowance was to be raised with 600 lei for each child born from a multiple pregnancy from the second child on.
3. Decision no. 26 of 14 November 2011 of the High Court of Cassation and Justice
In a decision adopted on 14 November 2011 the High Court of Cassation and Justice confirmed the existence of divergent case-law concerning the interpretation of Emergency Ordinance No. 148/2005. The High Court noted that some courts applied literally the text of the ordinance and considered that only one maternity allowance was due notwithstanding the number of children born from a pregnancy while other courts considered that the principle of equality before the law required that the maternity allowance should be granted in equal amounts for each child.
The High Court held that the practice of granting to all families without difference of only one maternity allowance starting from the entry into force of Emergency Ordinance No. 148/2005 and until the adoption of Law No. 239/2009 had been discriminatory.
It concluded that a retroactive right to maternity allowance for each child born from a multiple pregnancy between 14 November 2005 and 18 June 2009 should be granted to all parents concerned.
4. Romanian Code of Civil Procedure
Article 329 of the Civil Procedure Code, as in force at the relevant time, provided that the interpretation of the law provided by the High Court of Cassation and Justice in the context of an appeal in the interests of law was binding on all national courts.
COMPLAINTS
The applicants complain under Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention taken alone and in conjunction with Article 14 that the proceedings brought by them in order to obtain equal rights for each of their children were unfair, that they were discriminated against in comparison with other persons in their situation because of the existent divergent case-law on the issue and that they have been wrongfully deprived of their right to maternity allowances for all their children. The applicants reiterate the same complaints also under Articles 2, 8, 13 and Article 1 of Protocol No. 12 to the Convention.
QUESTIONS
1. Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?
In particular, was a new administrative action filed after the adoption of the judgment on the appeal on points of law by the High Court of Cassation and Justice, an effective remedy within the meaning of this provision in respect of the applicants’ complaints?
2. Was the principle of legal certainty, as developed in the Court’s case-law in the interpretation of Article 6 of the Convention, complied with by the domestic courts?
Have the applicants had a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention taken alone or in conjunction with Article 14 of the Convention, in so far as similar actions before the domestic courts, concerning the award of maternity allowances to parents of children born from multiple pregnancies had different outcomes?
Taking into account the coexistence of conflicting final decisions delivered by the domestic courts having competence to rule on appeals on points of law on identical claims, does the national law offer an effective mechanism able to resolve such inconsistencies?
The Government are also invited to submit the full text of the reasoned final decisions delivered in similar cases.
3. Has there been an interference with the applicants’ peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1 to the Convention?
4. Have the applicants been subject to discriminatory treatment contrary to Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1, considering that other parents of twins or triplets have had the right to benefit from maternity allowance for each child recognised by final judicial decisions?
APPENDIX
No
Application
no.
Lodged on
Applicant name
date of birth
place of residence
Represented by
Final domestic judgment
56574/10
31/08/2010
Elena STĂTESCU
Păuşeşti Maglaşi
Judgment of 23 June 2010 of the Piteşti Court of Appeal
1343/14
18/12/2013
Maria TOMA
Săud
Judgment of 19 June 2013 of the Oradea Court of Appeal
6889/14
13/02/2014
Monica-Simona MELINTE
16/10/1981
Târgu-Neamţ
Judgment of 15 November 2013 of the Bacău Court of Appeal
30880/14
07/04/2014
Sorinel Nicuşor SOOS
09/02/1972
Petroşani
Radu Ciprian HARJA
Judgment of 22 October 2013 of the Alba-Iulia Court of Appeal
56284/14
04/08/2014
Ionela Bianca CANTEMIR
12/10/1980
Iaşi
Judgment of 10 February 2014 of the Iaşi Court of Appeal
12696/15
03/03/2015
Daniela-Liana VEREŞ
05/05/1974
Cluj-Napoca
Flavia Lucia MOISE
Judgment of 4 September 2014 of Cluj Court of Appeal
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