CASE OF BEIAN v. ROMANIA [Extracts]
Violation of Art. 6-1;Not necessary to examine Art. 6-1 (independence and impartiality of the court);Violation of Art. 14+P1-1;Remainder inadmissible;Pecuniary and non-pecuniary damage - financial award (global)
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Isabelle Berro-Lefèvre
5. The applicant was born in 1932 and lives in Sancraiu de Mureş. 6. In 1953 the applicant was called up for military service. However, because of his father’s opposition to the collectivisation of farmland, he was not allowed to undergo military training. Instead, he was assigned to a number of military units, including the Vatra Dornei unit, as a building worker. His military service ended in 1955. 7. In 1961 the Labour Department, an administrative body grouping together the military units specially created for conscripts who were barred from military training, was abolished. 8. Law no. 309 of 22 May 2002 (“Law no. 309-2002”) recognised as forced labour the work performed in the military units coming under the authority of the Labour Department, and provided for compensatory measures including a monthly allowance, free medical treatment and exemption from the television licence fee. 9. On 22 August 2002 the applicant applied to the county pensions and social insurance fund (“the county fund”), claiming the benefits available under Law no. 309-2002. In a decision of 19 December 2002 the county fund refused the application on the ground that the applicant had not performed his military service in a military unit coming under the authority of the Labour Department. 10. On 5 May 2003 the applicant brought proceedings against the county fund before the Targu Mureş Court of Appeal, seeking to have the decision of 19 December 2002 set aside and to be recognised as having performed forced labour during his military service. 11. In a judgment of 2 June 2003 the Court of Appeal found in the applicant’s favour and ordered the county fund to issue a new decision awarding him the benefits provided for by Law no. 309-2002. On the basis of the entries in the applicant’s military service record book, the Court of Appeal concluded that he had worked on various building projects with the Vatra Dornei military unit and had been discharged from service as an “untrained combat soldier”. 12. The county fund appealed to the High Court of Cassation and Justice (“the HCCJ”). 13. At the applicant’s request, the HCCJ referred to the Constitutional Court an objection raised by the applicant as to the constitutionality of Article 1 of Law no. 309-2002. The applicant alleged that, in making a distinction between persons who had performed the same kind of forced labour during their military service, the provision in question was in breach of Article 16 of the Constitution and of the European Convention on Human Rights. He considered this difference in treatment to be unjustified since it was based solely on the hierarchical structure to which the conscript’s military unit had belonged. 14. The Constitutional Court dismissed the objection in a judgment of 1 April 2004, which included the following passage: “The definition of the categories of persons who are eligible for certain measures in compensation for the duress and hardship they underwent in the past ... is a matter for the legislature alone, provided that no privileges or discrimination are engendered between persons belonging to the same category and in identical situations. Article 1 of Law no. 309-2002 does not give rise to any privileges or discrimination contrary to Article 16 of the Constitution.” 15. In a judgment of 8 June 2004 in which it found in favour of the county fund, the HCCJ quashed the judgment of the Court of Appeal and remitted the case for further preparation, with a view to determining whether the Vatra Dornei military unit had been attached to the Labour Department. 16. In a letter of 1 November 2004 in reply to a request for information made by the Court of Appeal, the Piteşti military unit, which kept the army archives, stated that the Vatra Dornei military unit did not feature on the list of units attached to the Labour Department. It added that, in accordance with the rules on the implementation of Law no. 3092002, the list had been drawn up by the National Pensions and Social Insurance Fund, which had made it available to the military unit as a “working tool”. 17. On 3 November 2004 the national archives of the Ministry of the Interior and Administrative Affairs informed the Court of Appeal that the Vatra Dornei military unit had not been attached to the Labour Department. 18. On the basis of the information provided by the Piteşti military unit and the national archives, and taking the view that Law no. 309-2002 applied only to conscripts who had worked in military units coming under the authority of the Labour Department, the Court of Appeal dismissed the applicant’s claims in a judgment of 8 November 2004. 19. The applicant appealed to the HCCJ. In his submission, the Piteşti military unit, by confining itself to reproducing the information contained in the list drawn up by the National Pensions and Social Insurance Fund and omitting to check the recruitment file, which contained proof of the work carried out, had not adequately replied to the request for information from the Court of Appeal. 20. The applicant further contested the distinction made by the Law between those conscripts who had performed forced labour in military units answerable to the Labour Department and other conscripts who, although they had performed the same kind of work, were not entitled to benefits under the Law solely because their military units had not come under the authority of the Labour Department. He argued that, in any event, the HCCJ, in a judgment of 21 January 2004, had recognised a former conscript in a similar situation to his own as being covered by the provisions of Law no. 309-2002. 21. In a final judgment of 13 May 2005, the HCCJ dismissed the appeal and upheld the judgment of the Court of Appeal on the following grounds: “In accordance with Law no. 309-2002, persons who performed their military service between 1950 and 1961 in the work brigades under the authority of the Labour Department are covered by the provisions of that Law. It follows that the decisive criterion for eligibility under the Law is not the kind of work performed within the military unit, for example building work, but whether or not the unit in question came under the authority of the Labour Department, within which work brigades were established. As a result, given the information provided by the Piteşti military unit in its letter stating that the unit to which the applicant belonged was not on the list of units answerable to the Labour Department, the Court of Appeal was correct in ruling that the conditions for application of the Law were not met in the instant case and in dismissing the appeal accordingly.” “Any Romanian citizen who performed military service between 1950 and 1961 in the work brigades coming under the authority of the Labour Department shall be covered by the provisions of this Law.” “The persons referred to in Article 1 shall be entitled to a monthly allowance ...” “The persons referred to in Article 1 ... shall also be entitled to ...: – free medical treatment and medicines ...; – exemption from the television licence fee ...” “(2) The benefits referred to in the preceding sections shall be awarded on request, regard being had to the entries in the individual’s military service record book or certificates issued by the county military headquarters or the Piteşti military unit. (3) Requests for these benefits shall be addressed to the county pensions and social insurance funds.” “For the purposes of the award of the benefits provided for by this Law, the National Pensions and Social Insurance Fund may request the national archives ... to compile, on the basis of the documents at its disposal, a list of the work brigades under the authority of the Labour Department.” 22. In a case similar to the present one, a former conscript who had performed forced labour in a military unit which did not come under the authority of the Labour Department claimed eligibility under the provisions of Law no. 309-2002. When the county pension fund dismissed his claim on the ground that the Law applied only to conscripts in the work brigades, he appealed to the Court of Appeal, which found in his favour. 23. Following an appeal by the county fund, the HCCJ upheld the Court of Appeal judgment on the following grounds: “As the fact that the claimant was subjected to forced labour is not in dispute ..., there is no justification for withholding the benefits in question. To do so would be to create an inequitable situation, denying compensation to persons who performed military service in identical conditions and who, for purely formal reasons relating solely to the hierarchical structure to which their military units belonged, would thus be subjected to different treatment of a clearly discriminatory nature.” 24. In a number of other judgments, including those of 4 November 2003, 21 January, 2 June and 14 December 2004, 11 and 19 January, 7, 14, 18, 22 and 28 February, 1, 8, 14 and 28 March and 24 May 2005, and 24 May and 6 June 2006, the HCCJ delivered rulings to the same effect as that referred to above. 25. However, in other judgments, and in particular those delivered on 13 and 28 November 2003, 11 March and 15, 22 and 29 April 2004, 11 and 18 January, 1, 17 and 21 February, 1, 10 and 28 March, 13 and 23 May and 14 November 2005, and 12 and 13 April and 25 May 2006, it ruled to the opposite effect, holding that conscripts who had not performed their military service in a military unit coming under the authority of the Labour Department were not covered by the provisions of Law no. 309-2002.