Deprivation of retroactive pension to a pensioner who was paid a pension for more than 20 years. Violation of the right to respect for property
JUDGMENT
Argalioti v. Greece 18.07.2023 (app. no. 46882/16)
SUMMARY
Removal of the right to a pension by decision of the Council of State which retroactively applied a legislative provision. The applicant submitted an application for an old-age pension in recognition of her time working in Turkey, but her application was rejected as out of time as it was submitted after the statutory deadline of one year from the date of her final settlement in Greece. She then filed an appeal, which was rejected by the Administrative Court of First Instance of Piraeus. After filing an appeal, the Administrative Court of Appeal of Piraeus with its decision no. 1978/2003 accepted the appeal judging that article 9 of Law 2187/1994 could not retroactively revoke a right acquired under Law 2079/1992, the which was the only law in force on the date of filing the impugned application. Based on this decision, the Social Security Organisation (IKA ) recognized the applicant’s right to an old-age pension with retroactive effect from December 22, 1992. The IKA then appealed. With decision No. 1361/2008, the Council of State accepted it, ruling that the applicant did not meet the conditions required by law to be entitled to an old-age pension.
In the motions she submitted to the Court of Appeal on 29 June 2009, the applicant referred to the judgment of the Court in the case of Ichtigiaroglou v. Greece of 19.06.2008. The Court of Appeal dismissed the appeal. On November 28, 2010, the applicant filed an appeal before the Supreme Court, which was rejected. On June 16, 2022, the director of the EFKA, which succeeded the IKA, ordered the applicant to return the sums she had unduly received for her pension from December 22, 1992 to August 2013, together with interest, amounting to 58,477.50 euros .
The ECtHR ruled that the applicant was not only deprived of her property, but also suffered a disproportionate burden, as she was asked to return all the amounts she had received in good faith as a pension and found a violation of the right to respect for property (Article 1 of the PPP), awarding compensation of 50,000 euro. Furthermore, the Court found that the case lasted more than 10 years, of which approximately four years and four months before the Council of State. Therefore, it found a violation of the reasonable time (Article 6 § 1 of the ECHR).
PROVISION
Article 6 par. 1
Article 1 of the First Additional Protocol
PRINCIPAL FACTS
The applicant, who was born in Imbro in 1929, where she worked as a nurse from 1949 to 1965 and moved to Greece in 1972. In 1984, she submitted to the Social Insurance Institution (“IKA”) an application for an old-age pension in recognition of her years of work in Turkey, on the condition that it be validated in Greece after the redemption of the years of insurance she paid in that country. Her application was rejected as late, since it was submitted after the expiry of the one-year deadline provided by the legislation from the date of her final settlement in Greece. The Council of State ratified the rejection decision. Article 23 of Law 2079/1992, which entered into force on August 27, 1992, abolished the deadline provided by the previous legislation.
On December 22, 1992, the applicant submitted a new application to the IKA. Shee received no response. Article 9 of Law 2187/1994, published on February 8, 1994, retroactively amended Article 23 of Law 2079/1992. According to the new provision, only persons permanently residing in Turkey could benefit from the abolition of the aforementioned deadline. On May 27, 1999, the applicant submitted to the IKA a supplementary application following the one she submitted in 1992. On June 25, 1999, the director of the IKA rejected her applications. On July 13, 1999, the applicant filed an appeal before the local administrative committee of the IKA.
After receiving no response, on December 8, 1999 the applicant filed an appeal before the Administrative Court of First Instance of Piraeus for the annulment of the implicit rejection of her hierarchical appeal. Meanwhile, on 11 April 2000, the local administrative committee expressly rejected this appeal. With no. 593/2001 decision of March 30, 2001, the Administrative Court of First Instance of Piraeus rejected the appeal, ruling that the applicant did not meet the condition of article 9 of Law 2187/1994, which retroactively covered her case. On August 8, 2001, the applicant filed an appeal before the Piraeus Administrative Court of Appeal. With decision No. 1978/2003 of October 30, 2003, the Court accepted the appeal. It considered that Article 9 of Law 2187/1994 could not retroactively revoke a right acquired under Law 2079/1992, which was the only law in force on the date of submission of the contested application (December 22, 1992). By virtue of this decision, the IKA recognized the applicant’s right to an old-age pension with retroactive effect from December 22, 1992. On January 30, 2004, the IKA filed an appeal before the Supreme Court.
With decision No. 1361/2008 of May 5, 2008, the Council of State accepted the appeal. It judged that, because Article 9 of Law 2187/1994 had retroactive effect, the applicant’s application, submitted on December 22, 1992, i.e. after August 27, 1992 – the date of entry into force of the aforementioned provision – had to be assessed in the light of of this provision. Pointing out that the applicant had already settled in Greece at the date of her application, it concluded that she did not meet the conditions required by law to be entitled to an old-age pension. Undo it with no. 1978/2003 decision of the Administrative Court of Appeal and re-sent the case to the appellate court. In the statement she submitted to the Court of Appeal on 29 June 2009, the applicant referred to the decision of the Court in the case of Ichthyiaroglou v. Greece of 19.06.2008 (ref. no. 12045/06). With decision No. 1880/2009 of November 13, 2009, the Court of Appeal, ruling on the referral of the case, rejected the appeal. Noting that with the no. 1361/2008 decision the Council of State had ruled that article 9 of Law 2187/1994 had retroactive effect, it ruled that the grounds of appeal based on article 1 of the First Additional Protocol were invalidly raised. On November 28, 2010, the applicant filed an appeal before the Supreme Court. He argued that the Court of Appeal should consider the ground of appeal based on Article 1 of the ICCPR in the light of the Court’s decision in Ichthyiaroglou v Greece. In August 2013, the IKA stopped paying the applicant’s old-age pension. With decision No. 2178/2015 of June 8, 2015, the Department of the Council of State decided to refer the dispute to a Department of Seven Members due to its major importance. With decision No. 417/2016 of February 8, 2016, the Council of State rejected the appeal. It considered that with decision No. 1361/2008 it had judged that article 9 of Law 2187/1994 had retroactive effect and that, consequently, it had also tacitly settled the question, examined ex officio, of the compatibility of this provision with rules of supra-legislative power. It came to the conclusion that the Court of Appeal could not deviate from its assessment and deny the implementation of the disputed provision due to its incompatibility, if any, with Article 1 of the PPP. Two members of the Department abstained.
On June 16, 2022, the director of the EFKA, which succeeded the IKA, referring to it with no. 417/2016 decision of the Council of State, ordered the applicant to return the sums she had unduly received for her pension from December 22, 1992 to August 2013, together with interest, amounting to 58,477.50 euros.
Relying on Article 6 § 1 of the ECHR, the applicant claimed that the duration of the administrative procedures followed in the present case was excessive. She also considered that the retroactive application of Article 9 of Law 2187/1994 by the Council of State constituted unjustified interference, on the one hand, in the administration of justice, thus violating her right to a fair trial guaranteed by Article 6 § 1 and, on the other hand , to her right to respect for her property guaranteed by Article 1 of the First Additional Protocol.
THE DECISION OF THE COURT…
As regards the domestic law relevant to the present case, the Court refers to its judgment in the Ichtigiaroglou case. The Court recalls that in this case it found a violation of Article 1 of Protocol No. 1. It considered that when the applicant applied to the IKA for a pension old age, she had a claim in accordance with Article 23 of Law no. 2079/1992 and therefore a sufficiently established legitimate expectation under domestic law. Prior to the judgment of the Council of State retroactively applying Article 9 of Law No 2187/1994, she had thus disposed of property for nearly twelve years. The Court also noted that, even if the legislative power can regulate rights deriving from previous laws, such legislative intervention must be justified by compelling reasons of general interest. Emphasizing that even if the legitimacy and conformity of Article 9 of Law no. 2187/1994 with this principle appeared to it to be highly questionable, it considered that the impugned law had not in itself deprived the applicant of her property because the substantive administrative courts had refused to give it retroactive effect. On the other hand, the desired fair balance between the general interest and respect for the applicant’s property was upset by the judgment of the Council of State, which had purely and simply abolished, by applying the law retroactively, her right to obtain the disputed pension.
The Court cannot accept the Government’s argument that the present case is different from the case just mentioned. First, the Court observes that the two cases are based on a very similar factual and legal framework. In particular, the respective applicants had already settled in Greece before the entry into force of Law no. 2079/1992 and their applications submitted on the basis of that law were pending before the administrative authorities at the time of publication 2187/1994. In addition, they seized the administrative courts after the publication of this last law. Above all, the applicants were able to benefit from a pension for a long period thanks to the decisions of the lower courts, overturned by the Council of State retroactively applying Article 9 of the said law.
Secondly, the Court cannot accept the Government’s argument that the applicant had no legitimate expectation since the case-law relating to the retroactive application of Article 9 of Law no. 2187/1994 was already well established when it lodged its appeal against judgment no. 1880/2009 of the Court of Appeal. It attaches particular importance to the fact that the applicant had invoked before the domestic courts the judgment delivered – a few weeks after the publication of judgment no. 1361/2008 of the Council of State – in the Ichtigiaroglou case. The applicant could therefore have expected that they would take into account this judgment in which the Court had found a violation of Article 1 of Protocol No. 1 precisely because of a judgment crystallizing this domestic case-law.
Consequently, the Court concludes that by holding that the Court of Appeal could not examine the plea based on the breach of Article 1 of Protocol No. 1 to the Convention, even though the applicant had invoked the judgment delivered by it in the Ichtigiaroglou case, the Council of State confirmed a solution contrary to the Convention.
The applicant was thus not only deprived of her property, but she also suffered a disproportionate burden, since at present she must return all the sums she had received bona fide by way of pension. Accordingly, there has been a violation of Article 1 of Protocol No. 1.
