Retroactive withdrawal of pensions that were granted over a long period, undermines legal certainty and infringes property rights

JUDGMENT

Romeva v. North Macedonia 12.12.2019 (no. 32141/10)

see here

SUMMARY

Peaceful enjoyment of property rights. Pension. Retrospective recall. Social insurance.

The applicant, after legal proceedings, was granted a pension. The Fund, 7 years after retirement, re-examined the data and retrospectively withdrawn the pension without thorough scrutiny of the evidence.

According to the ECtHR, any intervention by a public authority in the peaceful enjoyment of property must be lawful and a “fair balance” is required so that the person concerned does not bear an individual and excessive burden.

The Court observes that in the present case the applicant was deprived of her sole source of income, pension and that the revocation of the decision to grant a pension was not based on any new evidence but on a review of the same administrative evidence decision to grant it. But so was legal certainty.

In the light of those facts, the Court held that there was no fair balance between the requirements of the general interest and those of the protection of fundamental human rights and that the burden on the applicant was excessive since for a considerable period of time she had no withdrawal of pension. Violation of the right to property.

PROVISION

Article 1 of the First Additional Protocol

PRINCIPAL FACTS

The applicant, Olgica Romeva, is a Macedonian/citizen of the Republic of North Macedonia who was
born in 1947 and lives in Skopje.

The case concerned a decision depriving her of a retirement pension.

In 2000 the Pension and Disability Fund granted Ms Romeva a retirement pension. The decision
became final and she started receiving monthly payments.

However, following an internal audit in 2007 the Fund discovered that Ms Romeva had not been
employed from 1963 to 1967, meaning she had not worked the statutory minimum of 35 years to
qualify for a pension. In order to correct that mistake, the Fund opened a review of her case proprio
motu and ruled in 2007 to retroactively divest her of the pension. All her appeals were unsuccessful,
with the Supreme Court holding ultimately in 2010 that the Fund’s decision had been lawful.

The Fund brought civil proceedings against Ms Romeva for reimbursement of the pension benefits
paid to her between 2000 and 2007. The courts found for the Fund in a final judgment of 2014 and
enforcement proceedings were started.

While the pension proceedings were still pending completion, Ms Romeva again became entitled to
a pension as of November 2009 following changes to domestic legislation.

Relying in particular on Article 1 of Protocol No. 1 (protection of property), Ms Romeva complained
that she had been deprived of her pension, which had been her sole source of income.

THE DECISION OF THE COURT…

The general principles concerning the scope of Article 1 of the First Protocol are equally important in the case of social security and social welfare benefits.

The Court reiterates that, as a general rule, the first and most important requirement of Article 1 of the First Protocol is that any intervention by a public authority in the peaceful enjoyment of property must be lawful: a “fair balance” is required so that the person concerned and excessive burden.

There is no dispute between the parties that the Fund’s decision of 18 October 2007, which retroactively revoked the applicant’s old-age pension received in May 2000, constituted an infringement of her property within the meaning of Article 1 of the First Protocol. The Court has found that Article 143 of the Law on Pensions and Invalidity Insurance provides for an ex officio review of the final pension decision. In addition, the decision depriving the applicant of her pension was based on Article 258 of the Administrative Procedure Act, which allowed the final decision to be re-examined in an administrative procedure, including pensions procedures.

The Court notes that prior to the internal audit, the Fund’s records showed that the applicant was employed in the period 1963-1967. It was only after the internal audit of the applicant’s case that irregularities occurred, in that it was found that the applicant’s employment record was missing from the minutes, making it necessary for her former employer to request information to confirm the accuracy of her records. . In the absence of any information from the employer that the applicant had actually worked between 1963 and 1967, the Fund concluded that the data on her employment for the abovementioned period had been incorrectly recorded in her records. On the contrary, there was a negligence on the part of the Fund to properly collect and maintain the relevant data on the applicant and to examine its initial claim for a pension which led to the erroneous decision, which the Fund subsequently sought to correct at the expense of the applicant.

At this point, the Court observes that the applicant’s claim that she had worked with various employers through ‘youth groups’ between 1963 and 1967 was not contested by the Government.

In that regard, the Court notes that it has already found that there is nothing to suggest that the applicant was responsible for the wrong assessment by the Fund of its application for pension. In that regard, the Court observes that the applicant’s assertion that she had worked with several employers was not contested by the Government.

Notwithstanding these important considerations, the Court nevertheless holds that the abovementioned general principle cannot prevail where the person concerned is liable to bear an excessive burden as a result of a measure depriving him of his rights. If an error was caused by the authorities themselves, without any third party fault, a different proportionality approach should be taken into account to determine whether the burden on an applicant is excessive.

In assessing compliance with Article 1 of the First Protocol, the Court must consider the various interests at stake, taking into account that the Convention seeks to ensure “practical and effective” rights.

In that regard, the Court attaches particular importance to the fact that the revocation of the applicant’s decision to grant a pension was not based on any new evidence but on the re-examination of the same evidence which formed the basis of the administrative decision, which was irrevocable as it was not challenged before the courts. In the Court’s view, such a review of ex proprio motu evidence outside the system of extraordinary appeals to repeal final administrative decisions calls into question legal certainty in the field of social security.

In addition, the Court observes that the present case does not concern the suspension of the applicant’s pension, but the complete loss of her pension rights. The fact that she acquired new pension rights from 3 November 2009 on the basis of a subsequent legislative change has nothing to do with deprivation itself.

The Court observes that prior to the granting of the pension the applicant was dependent on the state social security scheme and had received an unemployment benefit. Due to the applicant’s special circumstances, the  pension was her only source of income for more than nine years. For more than two years of this period, deprived of her pension, she had no income.

In view of the circumstances described above, it must be noted that, as a result of the disputed measure, the applicant has suffered, almost from day to day, the complete loss of her pension, which was her only source of income.

In the light of the foregoing, the Court finds that there was no fair balance between the requirements of the general public interest and those of the protection of fundamental rights of the individual and that the burden on the applicant was excessive.

Violation of Article 1 of the First Additional Protocol.

Just satisfaction: The ECtHR awarded the applicant EUR 6,000 in respect of non-pecuniary damage.

 


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