CASE OF CHIS v. ROMANIA
Violation of Art. 6-1
Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra
4. The applicant was born in 1953 and lives in Bucharest. 5. The applicant worked as chief of the catering division of TAROM company (the Romanian Air Transport company), a State-owned company. In 1990, by a Government decision, the catering branch of TAROM became a new company, CASROM. In 1998 CASROM merged into the COMCHIM company, a private company. In 2004 that company changed its name into ROMAQUA. 6. On 8 February 1990 the applicant was dismissed from his job. He challenged that decision and on 9 November 1992 the Ilfov District Court ordered CASROM to reinstate the applicant in his previous job or in an equivalent post, and TAROM to pay him 154,043 Romanian lei (ROL) as overdue salary for the period February 1990 to September 1992, and also to pay him salary until effective reinstatement. That judgment became final on 28 May 1993. 7. On 6 June 1996 the applicant lodged an action against TAROM and CASROM for payment of salary until effective reinstatement and for bringing the amount of ROL 154,043 up-to-date in accordance with inflation. On 3 February 2005 the Bucharest Court of Appeal, by a final decision, ordered TAROM to pay the applicant that amount indexed to take account of inflation. 8. In March and April 2004, and then in April 2005, the bailiff sought to attach the company's financial assets in several banks in respect of the salaries due. Those seizures were endorsed by the courts. 9. On 28 April 2004 the Bucharest District Court declared that the judgment of 9 November 1992 could be enforced. 10. On 19 May 2004 TAROM lodged an objection to execution, alleging that the applicant's right to request enforcement of that judgment had become time-barred. The Bucharest County Court upheld that request by a final decision of 17 June 2005, declaring that the applicant's right to request enforcement of the judgment of 9 November 1992 was time-barred. 11. On 23 March 2007 the Bucharest County Court dismissed as time–barred an action by the applicant for payment of salaries from 1990 to 1999 and of other pecuniary rights related to his employee capacity. However, on 27 September 2007 the decision was quashed by the Bucharest Court of Appeal and the case sent for fresh consideration. No information on the outcome of the proceedings is available to the Court. 12. On 26 April 2007 the Bucharest County Court dismissed an action by the applicant for payment of salary and connected rights from 1999 onward, for lack of responsibility of TAROM. The court considered that the applicant should have taken action against COMCHIM/ROMAQUA. That judgment became final. 13. On 13 March 1995 the applicant sought comminatory damages from CASROM for noncompliance with the judgment of 9 November 1992. 14. On 13 June 1996 the Bucharest District Court set comminatory damages of ROL 50,000 per day until the applicant's effective reinstatement. The court held that CASROM had systematically refused to reinstate the applicant. That judgment became final on 9 June 1997. 15. On 5 December 1997 the applicant requested quantification and payment of comminatory damages. 16. On 11 January 1999 the Bucharest District Court upheld his request and set to ROL 69,250,000 the amount corresponding to damage for non-compliance between 5 October and 14 December 1998. On 6 October 1999 Bucharest County Court upheld that judgment. On 16 November 1999 ROMAQUA paid that amount. 17. On 5 June 1999 the applicant sought again quantification and payment of comminatory damages. 18. On 20 December 2000 the Bucharest District Court ordered the debtor to pay ROL 54,627,890, of which ROL 10,467,750 was comminatory damages for 14 December 1998-15 November 1999 and ROL 44,160,140 was indexation of the damages set on 11 January 1999. On 26 April 2001 the Bucharest County Court declared the debtor's appeal null and void for non-payment of court fees. On 21 May 2001 ROMAQUA paid that amount. 19. On 22 October 1999 the Bucharest County Court ordered COMCHIM to pay the applicant ROL 200,000,000 for non-pecuniary damage caused by the refusal to comply with the court orders. 20. On 13 March 2001 the Bucharest Court of Appeal upheld that judgment. 21. On 3 September 2002 COMCHIM paid the applicant ROL 395,900,000, representing the updated above-mentioned amount. 22. However, on 17 December 2002 the Supreme Court of Justice quashed the previous decisions and sent the case back to the County Court. 23. After retrial, on 24 November 2003 the County Court dismissed the action on the grounds that it had been objectively impossible for the debtor to comply with the obligation to reinstate the applicant because of the reorganisation of the company. 24. On 9 June 2004 the Bucharest Court of Appeal allowed an appeal by the applicant, quashed the previous judgment and ordered ROMAQUA to pay the applicant ROL 500,000,000 for nonpecuniary damages. It considered that the “objective impossibility” had not been proved and that in any case it could not justify non-compliance. That judgment became final on 27 January 2006. 25. On 26 August 2004 Bucharest District Court attached ROMAQUA's financial assets in a bank. On 3 February 2005 the Bucharest Court of Appeal upheld that interlocutory judgment. 26. On 1 September 2004 ROMAQUA paid ROL 500,000,000. 27. On 27 September 2004 ROMAQUA objected to the execution, submitting that it had already paid ROL 395,900,000 and that the execution should have been continued only for the remaining until ROL 500,000,000. On 14 July 2005 the Bucharest County Court, by a final decision, upheld the objection and annulled the execution insofar as it concerned the payment of ROL 395,900,000 in the applicant's favour. 28. According to the applicant, ROMAQUA had not claimed the difference that it had paid. 29. On 8 August 2002 the applicant lodged an action against the Ministry of Justice, seeking pecuniary and non-pecuniary damages for length of the proceedings related to his dismissal. On 4 November 2002 the Bucharest County Court dismissed his action, considering that the Ministry of Justice bore no responsibility for the alleged facts. That judgment became final on 18 March 2004. 30. On 11 June 1993 CASROM invoked the impossibility to reinstate the applicant in a post corresponding to his qualifications and offered him the post of night watchman, which was rejected by the latter. 31. On 6 June 1995 TAROM paid ROL 154,043 for salaries for the period February 1990 to September 1992, as ordered by the judgment of 9 November 1992, as well as ROL 217,563 for salaries until 30 June 1993. 32. On 17 March 1999 COMCHIM reinstated the applicant. 33. On 12 November 2004 TAROM paid ROL 4,235,986,868 for due and updated salaries. 34. On 20 June 2005 the bailiff also received for the applicant ROL 340,000,000 from TAROM, in compliance with the judgment of 9 November 1992, representing salaries from 15 February 1990 to 17 March 1999 indexed. 35. On 1 July 2009 the Bucharest District Court allowed a request by TAROM and ordered the applicant to return the amount of 457,598.68 new Romanian lei (RON). The court considered that TAROM had paid all the debt. The applicant appealed and the proceedings are still pending. 36. In 1991 and then in 1992 the applicant passed two competitions for a post within the Financial Control Office. Following refusal by that institution to employ him, the applicant brought court proceedings. 37. On 14 December 1995 Bucharest District Court ordered the Financial Control Office to employ the applicant as from 20 October 1992 and to pay him ROL 2,000,000 for damages and ROL 100,000 for court fees. That judgment became final on 30 May 1997. 38. In 1999 the courts declared that the judgment had become enforceable and that it could be enforced. However, the applicant was not employed allegedly because he was a collaborator of the former State Security Department (Securitate). By a decision of 25 September 2007 the National Council for the Study of the Archives of the Securitate declared that the applicant had not been a collaborator. 39. On 25 February 2008 the applicant sought again employment with the Financial Control Office. On 27 March 2008 the bailiff enjoined that institution to employ the applicant. However, the Financial Control Office considered that the applicant's right to request enforcement was time-barred. 40. On 9 May 2008 the bailiff certified in an official record the institution's refusal to employ the applicant and considered necessary to apply a pecuniary penalty for delay in enforcement. 41. On 12 May 2008 the applicant brought proceedings against the Financial Control Office, seeking from the court to order that institution to employ him as from 20 October 1992, as ordered by the judgment of 14 December 1995, and to pay him damages. 42. On 16 June 2008 the Bucharest District Court rejected his request to be employed as res judicata. It further held that his right to request enforcement of that judgment was time-barred. 43. On 22 September 2008 the Bucharest County Court allowed an appeal by the applicant, quashed the previous judgment and send the case back for a fresh consideration. On 23 June 2009 the Bucharest Court of Appeal upheld that judgment by a final decision. 44. The proceedings are still pending.