PURICEL v. ROMANIA
Inadmissible
Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria
1. The applicant, Ms Maria Elisabeth Puricel, is a Romanian national who was born in 1919 and lives in Anglikon, Switzerland. She was represented before the Court by Mr V. Puricel, a lawyer practising in Anglikon. The Romanian Government (“the Government”) were represented by their Agent, Mr. Răzvan Horaţiu Radu, of the Ministry of Foreign Affairs. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. Ms Puricel practised as a lawyer in Romania until 7 March 1974, when she retired on the ground of having reached pensionable age. She received her pension from the Lawyers’ Insurance Fund (LIF) on a monthly basis until 1989, when she decided to leave the country and go to Germany. Pursuant to the national legislation in force at that time (Law no. 3/1977 and Decree no. 251/1978), those who left the country were compelled to give up the social and political rights conferred on them by the Romanian State. The applicant had thus renounced her pension rights while she also gave up her Romanian nationality. Consequently, by a decision of 27 July 1989, the LIF suspended the payment of the applicant’s pension rights on the grounds that she was about to move abroad and had given up her Romanian nationality. 4. On an unspecified date the applicant moved to Switzerland, where she resides at present. Upon her request, on 7 December 2001 the Romanian Consulate in Bonn granted the applicant Romanian citizenship. 5. The Romanian legislation applicable to the assessment of pension entitlements, Law no. 3/1977 regulating the national pension system and Decree-Law no. 251/1978 regarding the lawyers’ pension system, were repealed on 1 April 2001 and on 28 May 2001 respectively, when the amending Law no. 19/2000 and the Statute of the Lawyers’ Insurance Fund were respectively adopted. The new regulations removed the Romanian nationality and residence criteria from the conditions decisive for the payment of a pension. 6. On 1 December 2001 the applicant lodged her application for the resumption of pension payments, which was registered in due form by the LIF on 14 January 2002. On 26 June 2002 the LIF allowed the above-mentioned application and granted the applicant the payment of her pension, starting from 1 December 2001, as requested. 7. On 16 August 2002 the applicant contested this decision, claiming that she had retroactive entitlement to a pension, which should be calculated and updated for the previous three years (starting from 1999, three years being the general cut-off period for pecuniary claims). The LIF gave a decision on 18 September 2002 allowing the claims in part. The pension was calculated as of 1 June 2001, the reference date when the new legislation became applicable to the applicant’s case. The reasoning put forward by the LIF in rejecting the claims from 1999 to 1 June 2001 was that the legislation in force until 28 May 2001 had not provided for payment of pensions to persons who did not have Romanian citizenship and/or did not reside in Romania. Once the new legislation had come into force, on 28 May 2001, the nationality and/or residence criteria for a person’s entitlement to payment of a pension had been removed. Furthermore, Article 76 of the Statute of the LIF prescribed that pension payments were to resume, on request, the month following the month when the ground for their suspension ceased. Taking into account the entry into force of the Statute, the payment of the applicant’s pension would become operative as of 1 June 2001. The applicant’s pension was calculated and updated in accordance with the lex specialis, Law no. 19/2000. 8. The applicant contested this decision before the Bucharest County Court on 15 October 2002. On 10 December 2002, she amended her request to claim that she had become entitled to her pension rights on 1 January 1990. She argued that her renunciation of Romanian nationality and residence, and implicitly the payment of her pension, had been determined exclusively by the unfair legislation in force during the communist regime. From 1 January 1990, that legislation had lapsed, hence the suspension of her rights should be considered to have terminated and the payments resumed as of right. In support of this claim, she also invoked Article 8 of the Statute, asserting that lawyers’ pension rights were not subject to negative prescription. Consequently, her pecuniary claims were not timebarred, the general cut-off period of three years being inapplicable. The applicant also contested the LIF’s method of recalculating her pension in that she considered that the readjustment should have been made on the basis of the inflation rate and not in accordance with the specific methods stipulated in the pension lex specialis no. 19/2000. Furthermore, the applicant also complained that from June until December 2001 she had had to pay taxes on her newly set income, even though, as she did not reside in Romania, she was not a taxpayer within the meaning of the relevant law, OG no. 73/1999 and under Law no. 29/2002 and Law 60/1994 for avoiding double taxation. Consequently, she requested reimbursement of the money deducted as tax from her pension revenue. 9. On 24 June 2003, the Bucharest County Court dismissed her claims, upholding the LIF’s decision and reasoning. The applicant’s submission regarding the lapse of the applicable legislation after the fall of the communist regime, that is, Law no. 3/1977 and Decree no. 251/1978, was rejected by the court, which held that the above-mentioned legislation had been officially repealed once the new pension Law no. 19/2000 and the Statute of the LIF had come into force, namely, on 1 April 2001 and 28 May 2001 respectively. Therefore, applying the tempus regit actum principle and in so far as the applicant had not complied with the statutory conditions (Romanian citizenship and/or residence), the first-instance court considered that the applicant had not proved that she had a substantive right to receive a pension for the period of time in question. With regard to her claims concerning the pension readjustment, the court held that as long as there was a lex specialis establishing a specific method of adjusting the amounts of all pensions (recorelare), the general principles of adjusting pecuniary claims in line with the inflation rate could not be taken into consideration. The courts further held that the applicant was subject to Romanian taxation as long as she had obtained the income in question in Romania and had not proved that she was actually paying taxes in another country. 10. The applicant filed an appeal on points of law with the Bucharest Court of Appeal. She challenged the lower court’s reasoning, asserting that her pension rights had first been acknowledged in 1974 and had never ceased to exist, despite the changes in her nationality and residence and despite the fact that her enjoyment of those rights had been interfered with from 1989 onwards. Consequently, the suspension of the payment of her pension had to be considered as a wrongful act that should have terminated once the communist regime had fallen. 11. By a decision rendered on 10 February 2004, the court dismissed the appeal. It held that since the LIF’s Statute removing the citizenship and/or residence requirement had come into force on 28 May 2001, it was only from the next month, in accordance with Article 76, that the applicant was entitled to have the payment of her pension resumed. In so far as the applicable legislation before 28 May 2001 had provided that Romanian nationality and/or residence was a mandatory and decisive condition for pension payments, the applicant had not proved that she was eligible for payment of a pension in respect of the earlier period. 12. a) Law no. 3/1977 regarding the pension system and other social security rights and assistance came into force on 1 July 1977; it was repealed on 1 April 2001, once the new “pension law” no. 19/2000 came into force. Section 1 stated that every Romanian citizen who had worked for the system was entitled to pension rights. b) Decree no. 251/1978 regarding the lawyers’ pension system and other relevant social-security rights came into force on 14 July 1978, and was repealed on 28 May 2001. Article 49 provided that payment of the pension and all other relevant rights would be suspended as long as the retired person had his/her residence established in a foreign country. c) The Lawyers’ Insurance Fund Statute came into force on 28 May 2001; Article 78 stipulates that payment of suspended pensions will be resumed on request, starting on the first day of the month following the month in which the ground for the suspension ceased to exist. Article 8 of the Statute provides that lawyers’ social-security rights are not subject to negative prescription. 13. Article 69 of the 1952 International Labour Organisation’s Social Security (Minimum Standards) Convention 1952 (“the 1952 ILO Convention”) provides that benefits to which a protected person would otherwise be entitled in compliance with the 1952 ILO Convention (including old age benefits) may be suspended, in whole or in part, by national law as long as the person concerned is absent from the territory of the State concerned. The above provision is echoed in Article 68 of the 1964 European Code of Social Security and Article 74(1)(f) of the 1990 European Code of Social Security (Revised).