CEDH · CASELAW;CLIN;ENG — 6 décembre 2007

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Romania - 30658/05 Judgment 6.12.2007 [Section III] Article 6 Civil proceedings Article 6-1 Fair hearing Conflicting decisions of a supreme court: violation   Article 14 Discrimination Difference in treatment between persons in the same position as a result of conflicting decisions by the Supreme Court: violation   Facts : The applicant was conscripted in 1953 but not allowed to undergo military training because of his father’s opposition to the collectivisation of farmland. Instead, he was assigned to several military units as a builder. Law no.   309 of 22   May   2002 recognised work done for military units under the authority of the Labour Department as forced labour and introduced compensatory measures, including a monthly allowance, free medical treatment and exemption from the television licence fee. The applicant was not able to benefit from this law because he had performed his military service in a military unit that did not answer to the Labour Department. In the Court of Cassation he complained of discrimination in the law between conscripts assigned to forced labour in military units under the authority of the Labour Department and those assigned to similar tasks but unable to benefit from the law simply because their military units did not operate under the authority of the Labour Department. He submitted that a former conscript in the same situation as himself had obtained a ruling in the Court of Cassation that he was covered by the provisions of Law no.   309/2002. The Court of Cassation dismissed the applicant’s appeal on the ground that his military unit was not on the list of military units under the authority of the Labour Department. Law : Article 6 § 1 – In one series of judgments the Court of Cassation had extended the scope of Law no.   309/2002, on compensatory measures for conscripts assigned to forced labour during their military service, to all conscripts, regardless of the hierarchy to which their military units answered, whereas in another series of judgments delivered over the same period it had reached the opposite decision, as in the applicant’s case. For want of a means of ensuring consistency of practice within the highest domestic court, that court had managed, sometimes on the same day, to deliver judgments concerning the scope of the same law which were diametrically opposed. However, the role of a supreme court was precisely to regulate such contradictions in the case-law. In this particular case the Court of Cassation had been at the origin of deep and lasting divergences. This practice, developed by the highest judicial authority in the land, was in itself contrary to the principle of legal certainty. Instead of playing its part and establishing an interpretation to be followed, the Court of Cassation itself had become a source   of legal uncertainty, thereby undermining public confidence in the judicial system.   The lack of legal certainty had   effectively deprived the applicant of any possibility of qualifying for the rights prescribed by law, unlike other people in a similar situation. Conclusion : violation (unanimously). Article 14 combined with Article 1 of Protocol no. 1 – The applicant complained of the authorities’ refusal to grant him the rights provided for in Law no.   309/2002 in respect of forced labour carried out during his military service. Having been assigned to forced labour during his military service, the applicant met the requisite condition for entitlement to those rights. The refusal to grant them to him had been based solely on the fact that the military units in which he had served had not operated under the authority of the Labour Department. However, in the light of a series of judgments of the Court of Cassation granting the rights provided for in the law concerned to persons who had been assigned to forced labour outside the Labour Department, the applicant had had a   “legitimate expectation” that his claim would be recognised. Article 1 of Protocol no. 1 was therefore applicable. As a result of the contradictory case-law of the Court of Cassation there had been a difference of treatment between the applicant and other people in a similar situation. This was not a mere divergence in the case-law of the type inherent in any legal system built around a set of trial courts and courts of appeal, but a deficiency of the Court of Cassation in the performance of its role in settling such disputes. The Government had submitted no objective and reasonable justification for this difference of treatment. Conclusion : violation (unanimously). Article 41 – EUR 5,000   in respect of all damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes