SGAIBĂ v. ROMANIA
Inadmissible
Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra
1. The applicant, Mr Ion Sgaibă, is a Romanian national who was born in 1942 and lives in Poiana, Turburea administrative district. His application was lodged on 31 January 2005. The applicant’s request for selfrepresentation was granted. 2. The Romanian Government (“the Government”) are represented by their Agent, Ms I. Cambrea, from the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 15 April 2003 the applicant lodged a complaint against the Gorj County Pension Authority (the “Pension Authority”), complaining about the way in which his pension had been calculated with effect from December 2002. He stated that it had been calculated by multiplying the annual average point level (punctajul mediu anual) determined for each retired person by the pension point (punct de pensie) which had been set by governmental decision. He relied on the following two arguments: firstly that the average point level used for calculating his pension with effect from December 2002 had been progressively lowered since it had first been determined on 1 April 2001, and secondly that there had been errors in the calculation of his pension, meaning that the sums which had actually been paid in the periods from June to December 2001, March to December 2002 and March to May 2003 had been lower than the sums obtained by multiplying the two relevant figures together, even taking the value set by the Pension Authority. He also contended that the lowering of the annual average point level was discriminatory as it only affected people who had retired between 1 January 1999 and 31 March 2001. 5. In a first-instance judgment of 23 May 2003 the Gorj County Court (“the County Court”) dismissed his complaint, holding that even though the average point level had been lowered in January 2003, this had caused no difference in the actual pension paid between December 2002 and January 2003, and that his claims were therefore ill-founded. 6. The applicant lodged an appeal, arguing that his claims had not been properly examined. He claimed that the County Court had not considered his allegation that the lowering of the average point level had been discriminatory and had failed to address his allegation that the pension that he had actually been paid for some periods had not corresponded to the sums produced by multiplying the two relevant figures together, even taking the value set by the Pension Authority. 7. In a final decision of 19 November 2003 the Craiova Court of Appeal, sitting as a panel of three judges, namely E.C., D.U. and D.S., dismissed the applicant’s appeal as ill-founded. It held that the applicant’s pension had been calculated by reference to the pension to which he had been entitled on 31 December 2002 and deducting from it his compulsory contribution to the health insurance fund. 8. The applicant lodged an extraordinary appeal, contending that the appellate court had failed to examine all his arguments. In a final decision of 27 January 2004, the Craiova Court of Appeal, sitting as a panel of three judges including D.S. and D.U., allowed the extraordinary appeal. It held that one of the applicant’s arguments concerning the way in which his pension rights had been calculated had not been properly examined. 9. The Craiova Court of Appeal kept the case for a fresh determination of the ordinary appeal and set the date for the first hearing at 24 February 2004. 10. The re-examination of the ordinary appeal lasted from 24 February to 15 June 2004. The court held several hearings sitting as a panel of three judges, including D.S. and D.U. The applicant attended all the hearings. 11. In a final decision delivered on 15 June 2004 and served on the applicant on 28 August 2004, the appellate court dismissed the applicant’s appeal as ill-founded. It held that the applicant’s pension had been correctly calculated in accordance with the applicable law. It stated that the applicant’s pension rights had not been affected after the recalculation of the annual average point level. The appellate court also noted that the applicant had brought parallel proceedings for the calculation of his pension rights and the amount of his pension had therefore already been established by a final decision of the Gorj County Court delivered on 30 May 2003. 12. The applicant lodged another extraordinary appeal, arguing that two of the judges considering his appeal had lacked impartiality, as they had ruled on the case on a previous occasion, and that the new decision of 15 June 2004 had contradicted the final decision of 27 January 2004, which had found that there was in fact a discrepancy between the pension which was actually paid to him and the one that would have resulted from a proper calculation. He also complained that the appellate court had dismissed the financial expert report without addressing the contradictions between that report and the new pension decision. 13. In a final decision of 9 November 2004 the appellate court dismissed the extraordinary appeal, holding that all of the applicant’s grounds of appeal had been duly examined. 14. Article 24 of the Romanian Code on Civil Procedure (CCP), as in force at the material time, provided that a judge who had already ruled on a case could not sit on the panel deciding the same case in any new set of proceedings following the quashing of a previous decision. 15. Under Article 29 of the CCP, parties to civil proceedings are obliged to inform the court immediately of any facts disqualifying a judge from dealing with their case. 16. The rules concerning a change of trial venue were laid down in Articles 37 to 40 of the CCP. 17. Article 317 of the CCP provided that an extraordinary appeal on points of law against final decisions of a court of appeal in cases where the appeal had been decided by a disqualified judge, or the court’s composition had been incorrect, was available only if the parties could not have invoked these grounds in an ordinary appeal.