CEDH · CASELAW;CLIN;ENG — 4 décembre 2008

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Greece - 48775/06 Judgment 4.12.2008 [Section I] Article 1 of Protocol No. 1 Article 1 para. 1 of Protocol No. 1 Peaceful enjoyment of possessions Date of commencement of pension entitlement put back solely on account of time taken by administrative authorities and courts to issue their decisions: violation   Facts : The applicant, a public servant, was retired in 1982. The Public Accounting Department rejected an application he made in 1999 seeking the readjustment of his pension in accordance with the provisions of a law enacted in 1997. He appealed to the Court of Audit, which allowed his request in 2002, finding that he had the right to a higher pension under the legislation in force and backdating the increase to 1997. When the State appealed, however, the Court of Audit, sitting as a full court, set aside that judgment in part, considering that the increased pension was payable only from 1999. It held that under a presidential decree limiting the retroactive effect of pension claims against the State to three years, that three-year limit should be calculated from the time of publication of the Audit Court’s judgment of 2002, as that was the decision which had acknowledged the applicant’s right. Law : The applicant’s right to obtain the retroactive payment of his increased pension had been restricted by the way in which the Court of Audit , in interpreting the decree in question, had fixed the starting date for the calculation of entitlement. According to the decree the starting point was the first day of the month in which the ruling or decision concerning the pension was delivered. In the instant case, considering that the term “the ruling or decision concerning the pension” referred to its own judgment, the Court of Audit had decided that the date concerned was the date of publication of its judgment. In the Court’s opinion the rule of law required dates of commencement or expiry of rights to be clearly defined and linked to concrete, objective facts, such as the filing of a claim or the lodging of a court action by the interested party. In this case the date from which the applicant was entitled to his increased pension had been determined solely on the basis of the time the authorities and the administrative courts had taken to reach their decisions. Although the applicant had challenged his pension adjustment in 1999, the decision granting his request had not been delivered until three years later. The application of such a criterion seemed rather uncertain and likely to produce contradictory results which were difficult to justify. Furthermore, the Court could not ignore the fact that the Court of Audit had recently held that the practice of calculating the time limit from the date of publication of it judgment in favour of the party concerned was incompatible with the rule of law, several provisions of the Constitution and Article 1 of Protocol No.   1. The Government did suggest that the applicant could obtain compensation for the illegal deprivation of his pension rights by lodging a claim for compensation under the Civil Code. However, the Court did not share that view: a person who had already availed himself of a remedy seeking compensation for the disputed situation directly and not in a roundabout manner should not be required to avail himself of other remedies which were open but were unlikely to be effective. In this case the applicant had challenged the miscalculation of his pension both before the authorities and before the Court of Audit at its different levels, and had obtained a final decision stating that his pension had not been calculated correctly. That being so, he should be under no obligation to take further action in court. Particularly considering that the Government had produced no example of any previous cases in which the parties had been awarded compensation of this kind based on the Civil Code. The Court accordingly rejected the Government’s objection on the grounds of failure to exhaust domestic remedies and held that the way in which the Court of Audit had determined the disputed date for the calculation of the commencement of pension entitlement had infringed the applicant’s right to the peaceful enjoyment of his possessions and upset the fair balance that should be struck between the requirements of the general interest and the protection of property. Conclusion : violation (unanimously).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes