CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 8 janvier 2013

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border-left-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s4F2EDFF { border-top-style:solid; border-top-width:0.75pt; border-left-style:solid; border-left-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top }   THIRD SECTION DECISION Application no. 1700/08 Aleksi BAKRADZE against Georgia and 2 other applications (see list appended) The European Court of Human Rights (Third Section), sitting on 8   January 2013 as a Chamber composed of:   Josep Casadevall, President,   Alvina Gyulumyan,   Corneliu Bîrsan,   Ján Šikuta,   Luis López Guerra,   Nona Tsotsoria,   Johannes Silvis, judges, and Marialena Tsirli, Deputy Section Registrar, Having regard to the above applications lodged on 5 December 2007, 28   April and 19 November 2008, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having deliberated, decides as follows: THE FACTS 1.     A list of the applicants is set out in the appendix. 2.     The Georgian Government (“the Government”) were represented by their Agent, Mr Levan Meskhoradze, of the Ministry of Justice. 3.     The facts of the cases, as submitted by the parties, may be summarised as follows. 4.     On various dates in 2003 the applicants, who had retired from the Public Prosecutor’s Office between 1986 and 1999, were granted pensions in various amounts under section 6 of an Act on the Social Protection of Public Prosecutors (“the Social Protection Act”). Notably, this provision stated that a retired prosecutor was entitled, for life, to a pension equal to the salary of an acting prosecutor (“the equivalence clause”) and adjustable in accordance with any changes in the latter’s salary scales (“the adjustment clause”). 5.     On 29 December 2004 the Social Protection Act was repealed. However, an Act on the Public Prosecutor’s Office (“the Prosecutors’ Act”), notably its sections 40 § 10 and 40(1) § 5, continued to regulate retired prosecutors’ pension rights in the same manner, by retaining both the equivalence and adjustment clauses. 6.     On 1 January 2006 sections 40 § 10 and 40(1) § 5 were removed from the Prosecutors’ Act. Concurrently, an Act on State Compensation entered into force, on the basis of which the applicants started receiving, as of 1   January 2006, pensions in the amount of 560 Georgian laris ((GEL) EUR   260). 7.     The Act on State Compensation consolidated, under a single legal regime for State compensation, the payment of pensions for retired civil servants (such as retired public prosecutors, judges, retired officials of the Defence, Interior and Security Ministries and former members of Parliament), including those who had previously been entitled, under various distinct statutes, to a life-long pension in an amount permanently adjustable in line with changes in the salary scales of the corresponding posts. Section 7 of the Act fixed the maximum level of such State compensation for all the retired civil servants concerned, irrespective of the number of years they had served and in which part of the public service, at GEL 560 (EUR 260) (see also Khoniakina v. Georgia , no. 17767/08, §§   39 and 40, 19 June 2012). 8.     On various dates between March and July 2006, the applicants brought court actions against the State, requesting that their pensions be continued to be paid under the equivalence and adjustment clauses, as had initially been envisaged by the then already repealed Social Protection Act and the Prosecutors’ Act (see paragraphs 4-6 above). They specifically complained that the Act on State Compensation had been applied to their situation in a retroactive manner, unjustifiably worsening their initial pension entitlements. 9.     The applicants’ actions were dismissed as manifestly ill-founded by the domestic courts on various dates (see the appendix below). At the first and appellate levels of jurisdiction, all three applicants’ cases were examined by the Tbilisi City Court and the Tbilisi Court of Appeals by holding adversarial oral hearings. Subsequently, in all three cases, the Supreme Court of Georgia, acting as the final cassation instance, dispensed with oral hearings during the examination, which was based on the written procedure, of the applicants’ appeals on points of law. 10.     As to the case of the first applicant, given that it became the first precedent concerning the reduction of retired public prosecutors’ pensions, it was examined by the Grand Chamber of the Supreme Court. In reply to the applicant’s arguments about the retroactive force of the Act on State, the Grand Chamber held, in its decision of 21 June 2007, that the law in question could not be said to have retroactively affected any of the events which had commenced and terminated prior to its entry into force. What that Act did was simply to regulate the continuous legal relationship in question anew. The Grand Chamber further stated that laws cannot be reproached for having retroactive force in the realm of “public law” and social security, of which the applicant’s pension rights formed a part. Otherwise, it would become virtually impossible for the State to change its social and fiscal policies. 11.     Subsequently, the above-mentioned decision of 21 June 2007 of the Grand Chamber of the Supreme Court concerning the first applicant’s case was relied on by the relevant Chambers of the Supreme Court as a precedent authority for declaring inadmissible the cases of the remaining two applicants on 27 December 2007 and 4 June 2008 (see the appendix below). COMPLAINTS 12.     Relying on Article 6 § 1 of the Convention, all three applicants complained about the outcome and length of the domestic proceedings. The first and second applicants also complained that the Supreme Court had dispensed with oral hearings in the cassation part of the proceedings. Without making any relevant arguments, the first applicant accused the Grand Chamber of the Supreme Court of Georgia of having been biased against him during the examination of his case, and further complained, under Article 13 of the Convention, that the judiciary system in Georgia was ineffective in general. 13.     Under Article 1 of Protocol No. 1, the applicants complained of the reduction of their retirement pensions on the basis of the arbitrarily retrospective application of the Act on State Compensation. THE LAW 14.     Having regard to the similar subject matter of the applications, the Court finds it appropriate to join them. A. As to the complaint under Article 1 of Protocol No. 1 15.     The applicants complained that the ex post facto application of the Act on State Compensation had unlawfully reduced their retirement pensions, in breach of Article 1 of Protocol No. 1. This provision reads, in its relevant part, as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law ...” 1. The parties’ submissions 16.     Among other arguments, the Government submitted that the Act on State Compensation, by repealing the adjustment clause with respect to the pensions rights of retired public prosecutors and entitling them instead to the lump sum of 560 GEL (EUR 260), had not deprived the prosecutors of their right to receive a pension as such, but rather had regulated the question anew by changing the amount. The Government emphasised that the determination of social policy fell, according to the relevant case-law of the Court, within the wide margin of appreciation of the national authorities, and that Article 1 of Protocol No. 1 should not be interpreted as entitling a person to receive a pension of a particular amount. The applicants’ current allowance was almost six times the amount of the average pension, which currently amounted to approximately GEL 100 (EUR 46). This meant that the applicants, former public prosecutors, were provided with a level of financial support reflecting their merit, and enjoyed a far better standard of living than the average senior person in Georgia. The State, whilst exercising its sovereign power to reform its social and economic policy in the light of its budgetary constraints, had implemented legislative amendments that were reasonably proportionate to the interest pursued. 17.     The applicants disagreed. They complained that, by adopting the Act on State Compensation, which discontinued the application of the adjustment clause, the legislative authority had interfered, with retrospective effect, in their pension rights, in breach of the principle of legal certainty and other principles of the rule of law enshrined in the Convention. If the State budget deficit was the real reason for the annulment of the life-long and adjustable pension of the retired public prosecutors, the applicants wondered how it had become possible to increase significantly in a rather short period of time the salary of acting public prosecutors. Notably, the salary of the Chief Public Prosecutor had risen to GEL   4,000   (EUR   1,844) and that of the regional public prosecutors had been set at GEL   2,580   (EUR   1,190). The applicants complained that they were being required to bear an excessive burden, incompatible with the proportionality test under Article   1 of Protocol No. 1. 2. The Court’s assessment 18.     Recalling its recent judgment in a similar Georgian case, the Court reiterates that, in the present cases as well, the applicants’ right to receive a life-long retirement pension in an amount equal to their final salary and adjustable in accordance with changes in the salary of serving public prosecutors under the relevant legislative provisions created a proprietary interest falling within the ambit of Article 1 of Protocol No. 1. Furthermore, the subsequent discontinuation of the adjustment requirement since 1   January 2006 (see paragraph 6 above), as a result of which the applicants became unable to claim higher pensions despite the rise in the salary of acting prosecutors, must be regarded as interference with their right to the peaceful enjoyment of their possessions (compare with Khoniakina , cited above, § 72; and also Stec and Others v. the United Kingdom   (dec.), no.   65731/01 and 65900/01, § 39, ECHR 2005-X). 19.     As to the applicants’ complaint that the Act on State Compensation retrospectively and thus unlawfully amended their pension entitlements, the Court recalls that it already ruled on many previous occasions that statutory pension regulations are liable to change and that the legislature cannot be prevented from regulating, via new retrospective provisions, pension rights derived from the laws in force (see Khoniakina , cited above, § 74 and 75; and also Arras and Others v. Italy , no. 17972/07, § 42, 14 February 2012; Sukhobokov v.   Russia , no. 75470/01, § 26, 13 April 2006). The Court thus considers that the interference with the applicants’ pension rights, which was effected on the basis of the clearly and precisely formulated Act on State Compensation and was not tainted by any manifest arbitrariness in the course of the application of that amendment by the relevant domestic authorities (see Torri v. Italy , 1 July 1997, § 56, Reports of Judgments and Decisions 1997 ‑ IV), satisfied the lawfulness requirement under Article   1 of Protocol   No.   1. 20.     Lastly, in so far as the legitimate aim and the proportionality of the interference is concerned, the Court considers that there is no reason to depart from its previous position on the matter, which was extensively explained in its judgment in the above-mentioned case of Khoniakina   (cited above, §§ 76-80). In reply to the applicants’ specific argument in the present cases (see paragraph 16 above), the Court reiterates that the Act on State Compensation formed part of a wide legislative reform of the pension system for a large number of retired civil servants (some 850 persons), including public prosecutors, and thus did not constitute an individual and excessive burden for the applicants only. Acknowledging that the respondent State possesses wide margin of appreciation in balancing the rights at stake in relation to economic policies, such as those implemented in the present and Khoniakina cases, the Court considers that the discontinuation of the adjustment requirement in relation to the applicants’ retirement pensions could not be said to have impaired the very essence of their pension rights and was not therefore disproportionate to the legitimate aim pursued (ibidem, §   79). 21.     It follows that the applicants’ complaints under Article   1 of Protocol   No.   1 are manifestly ill-founded and must be rejected in accordance with Article   35   §§   3   (a) and 4 of the Convention. B. As to the remainder of the application 22.     With respect to the first and second applicants’ complaints about the absence of oral hearings in the cassation proceedings before the Supreme Court of Georgia, the Court recalls that the same issue was already examined in the context of the relevant Georgian procedural law and practice and found to have been, in similar factual circumstances, fully compatible with Article 6 § 1 of the Convention (see Rizhamadze v.   Georgia , no.   2745/03, §§   35-44, 31 July 2007; Mumladze v.   Georgia , no.   30097/03, §§   56-63, 8 January 2008; Gogoladze v.   Georgia , no.   4683/03, §§ 31-38, 11 December 2007). 23.     As to the remaining complaints under Articles 6 § 1 and 13 of the Convention concerning the outcome and length of the domestic proceedings and the alleged ineffectiveness of the judiciary, the Court, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is similarly manifestly ill ‑ founded and must be rejected in accordance with Article   35 §§   3   (a) and   4 of the Convention. For these reasons, the Court unanimously Decides to join the applications; Declares the applications inadmissible.   Marialena Tsirli   Josep Casadevall   Deputy Registrar   President   Appendix     No Application No Lodged on Applicant Date of birth Place of residence Represented by Domestic court decisions   1700/08 05/12/2007 Mr Aleksi BAKRADZE 25/04/1927 Tbilisi   Mrs Adelina Khoniakina (1) Tbilisi City Court decision of 21/07/06;   (2) Tbilisi Court of Appeals decision of 28/11/06;   (3) Supreme Court decision of 21/06/07.   22552/08 28/04/2008 Mr Giorgi NADAREISHVILI 04/11/1928 Tbilisi   None. (1) Tbilisi City Court decision of 13/07/06;   (2) Tbilisi Court of Appeals decision of 06/03/07;   (3) Supreme Court decision of 27/12/07.   6705/09 19/11/2008 Mr Abel GEGIA 06/08/1926 Tbilisi   None. (1) Tbilisi City Court decision of 14/12/06;   (2) Tbilisi Court of Appeals decision of 15/10/07;   (3) Supreme Court decision of 04/06/08.