Last Updated on January 30, 2024 by LawEuro
European Court of Human Rights (59065/21)
In January 2010 the applicant accidentally shot Ž.K. while cleaning his rifle after a hunt. The victim sustained multiple injuries in his abdomen, hip and leg. The applicant was charged with negligently causing serious damage to health contrary to Article 137 § 3 of the Criminal Code. He fully admitted his guilt.
In the domestic proceedings at issue in the present case the applicant was ordered to pay to the SSIF the amount of EUR 5,824 as reimbursement for the lost working capacity pension which the SSIF had paid to the person that the applicant had accidentally injured. There was no dispute between the parties that that obligation constituted an interference with his rights under Article 1 of Protocol No. 1 to the Convention and the Court has no reason to find otherwise.
The European Court of Human Rights observes that Article 6.263 § 2 of the Civil Code establishes the obligation for anyone who has caused pecuniary damage to another person to fully compensate for such damage. According to Article 6.290 § 1 of the Civil Code, damage which has to be compensated for includes social allowances paid in the event of an injury. Moreover, Article 6.290 § 3 of the Civil Code and Article 21 § 1 of the Law on State Social Insurance provide that social insurance authorities which have paid allowances to a person who has sustained damage because of another person’s actions may claim reimbursement of the amounts paid from the person who caused the damage in question. Article 6.290 § 3 of the Civil Code was examined by the Constitutional Court which found no grounds to question its compliance with the Constitution.
The Government submitted that the interference pursued the legitimate aims of protecting the interests of the victims of crime and protecting the public purse and the applicant did not dispute that submission.
The Court reiterates that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one and it will respect the legislature’s judgment as to what is “in the public interest” unless that judgment is manifestly without reasonable foundation.
The Court has no reason to doubt that protecting the public purse serves a communal interest. Moreover, in view of the fact that the measure in question was aimed at ensuring the ability of the public authorities to pay lost working capacity pension to the person whom the applicant had injured, the Court accepts that it sought to protect the interests of the victim of the crime. Therefore, it is satisfied that the interference at issue pursued legitimate aims in the public interest.
The Court reiterates that Article 1 of Protocol No. 1 to the Convention requires that any interference be reasonably proportionate to the aim sought to be realised. The requisite fair balance will not be struck where the person concerned bears an individual and excessive burden.
In addition, the importance of the procedural obligations under Article 1 of Protocol No. 1 must not be overlooked. Thus the Court has, on many occasions, noted that, although Article 1 of Protocol No. 1 contains no explicit procedural requirements, judicial proceedings concerning the right to the peaceful enjoyment of one’s possessions must also afford the individual a reasonable opportunity of putting his or her case to the competent authorities for the purpose of effectively challenging the measures interfering with the rights guaranteed by this provision. An interference with the rights provided for by Article 1 of Protocol No. 1 cannot therefore have any legitimacy in the absence of adversarial proceedings that comply with the principle of equality of arms, allowing discussion of aspects that are important for the outcome of the case. In order to ensure that this condition is satisfied, the applicable procedures should be considered from a general standpoint.
At the outset, the Court observes that the applicant did not dispute the fact that he had seriously injured Ž.K. in a hunting accident and that he was therefore under an obligation to compensate the latter for the damage which he had caused. However, he disputed the extent of that obligation and argued that the requirement for him to reimburse the SSIF for the lost working capacity pension paid to the victim imposed a disproportionate burden on him.
Firstly, the applicant argued that he had fully compensated Ž.K. for the pecuniary and non-pecuniary damage he had caused by paying the compensation awarded in the criminal proceedings and that any further claims against him were unjustified. However, the Court is unable to accept this argument. It refers to the position of the Supreme Court and the courts which examined the applicant’s case, which distinguished between, on the one hand, the pecuniary damage caused to the victim at the time of the injury – in the present case, Ž.K.’s expenses for medication, hospitalisation and transport incurred immediately after the injury – and on the other hand, pecuniary damage arising later, such as loss of income because of the diminished capacity to work and additional expenses for medication, care or rehabilitation. It also takes note of the Government’s submission that the full extent of the damage caused by the injury cannot always be identified at the time when that injury occurs and accepts that, for that reason, the victim may need to be able to bring further claims to cover any new expenses which arise after the injury. Accordingly, the Court rejects the applicant’s argument that the compensation which he had paid to Ž.K. during the criminal proceedings had fully covered the damage caused and that any further claims against him were unjustified.
In his submissions before the Court, the applicant also argued that he had been made to finance the payment of Ž.K.’s pension twice because he already contributed to it by paying taxes and other social contributions. However, he did not raise this argument with the domestic authorities and therefore the Court will not take it into consideration.
The applicant further submitted that a lost working capacity pension was a type of social assistance granted by the State to those citizens who needed it and that the payment of such social assistance should not be transferred onto private individuals. In this connection, the Court reiterates that Article 1 of Protocol No. 1 imposes no restriction on the Contracting States’ freedom to decide whether or not to have in place any form of social security scheme, or to choose the type or amount of benefits to provide under any such scheme. It also reiterates that the Convention does not provide for the institution of an actio popularis and that its task is not normally to review the relevant law and practice in abstracto but to determine whether the manner in which they were applied to, or affected, the applicants gave rise to a violation of the Convention.
Accordingly, the role of the Court in the present case is not to examine in abstracto whether the system established under the Lithuanian law, whereby the financial burden of paying social allowances to persons who have been injured through others’ fault is borne not by the State but by the persons responsible for the injuries, is compatible with Article 1 of Protocol No. 1. Instead, the issue before it is whether, taking into account the individual circumstances of the applicant, the obligation for him to reimburse to the SSIF the lost working capacity pension paid to Ž.K. struck a fair balance between the general interest of the community and the applicant’s property rights; such a balance would not be struck if the applicant had to bear an excessive burden.
In this connection, the Court firstly notes that the requirement for the applicant to reimburse the payments which the SSIF made to Ž.K. was not a mandatory or automatic consequence of him being found guilty of the criminal offence. Instead, in the domestic proceedings, the courts examined whether the diminution of Ž.K.’s working capacity had resulted from the applicant’s actions and whether the pension paid to him was equal to the damage sustained from the injuries; under the domestic law, the applicant could be required to reimburse the SSIF only for the amount of the pension corresponding to the damage caused by his actions. Moreover, the applicant had an opportunity to challenge the causal link between his actions and the extent of the victim’s injuries and a forensic examination was ordered at his request in the proceedings which concerned the claim for reimbursement lodged by the SSIF in 2017. He did not allege either in the domestic courts or before the Court that that examination had been conducted improperly or that its conclusions were inaccurate. Thus, the Court is satisfied that the proceedings viewed as a whole afforded him a reasonable opportunity of putting his case to the appropriate authorities with a view to their establishing a fair balance between the conflicting interests at stake.
The Court further observes that the amount of the lost working capacity pension paid to Ž.K. was likewise established not in an automatic manner but on the basis of his individual circumstances and the actual damage which he had sustained. In particular, the calculation of the pension took into account the level of Ž.K.’s working capacity, his length of service and the salary which he used to receive prior to the injury; during one period when his working capacity was assessed as being sufficiently high (70%), no pension was paid.
The Court takes note of the argument which the applicant raised in the domestic proceedings that the amount of pension paid to Ž.K. also depended on the amount of the basic pension, which is determined by the government in the light of various economic or political factors. It observes that, as established by the domestic courts, one of the purposes of the lost working capacity pension is to compensate the victim for the additional expenses arising from the consequences of the injury and that those expenses are liable to increase over time because of factors such as inflation. The Court has previously accepted the possibility of amendments to social security legislation which may be adopted in response to, among other things, societal changes. Accordingly, it is unable to find that adjusting the amount of the lost working capacity pension so that it reflects the changing economic reality in the country is arbitrary or unreasonable. It also notes that the applicant did not argue that the gradual increase of Ž.K.’s pension had been significant or that it had resulted in that pension no longer corresponding to the damage sustained by Ž.K.’s because of the injuries.
The Court also considers it relevant for the assessment of the proportionality of the interference that, should the victim’s working capacity improve in the future, the applicant has the right to ask the courts to reassess the amount of compensation due from him.
Furthermore, the Court finds it particularly important that the domestic law provides the applicant with an opportunity to seek the reduction of the amount which he is required to pay, on account of, among other considerations, his financial situation, the fact that the injury had been caused unintentionally or the fact that he had already compensated the victim for a substantial part of the damage caused. However, as pointed out by the Government, the applicant never made any such request either to the SSIF or in court proceedings. Thus, he did not avail himself of the opportunity provided by the domestic law to seek the reduction of the financial burden imposed on him and he did not provide any explanation to the Court for omitting to do so.
Moreover, in his submissions to the Court, the applicant did not allege that the obligation to reimburse the SSIF deprived him of the means of subsistence or otherwise constituted an excessive burden in view of his financial situation.
The Court also observes that the SSIF granted all of the applicant’s requests to make payments in monthly instalments and it initiated court proceedings against him only after he had refused to make those payments voluntarily. Accordingly, it is satisfied that, on those occasions on which the applicant availed himself of the various opportunities provided by the domestic law, the domestic authorities acted in a flexible manner and took measures aimed at alleviating the financial burden imposed on him.
Lastly, the Court is mindful of the fact that the present case concerns not a certain defined amount of debt which the applicant might hope to eventually repay, but the obligation imposed on him to make regular payments, which are liable to gradually increase, to the SSIF until 2039, when Ž.K. will reach retirement age. It notes that the duration of his obligation to reimburse the SSIF for the lost working capacity pension paid to the victim, while undoubtedly long, is the same as the period during which the victim’s capacity to work and gain income remains diminished, that is to say, the same as the period during which the victim will continue to suffer the consequences of the applicant’s negligent actions. Accordingly, the Court is unable to find that the duration of the interference at issue suffices to make it disproportionate.
All the foregoing considerations taken together lead the Court to conclude that, in the particular circumstances of the present case, a fair balance was struck between, on the one hand, the general interest of the community and, on the other hand, the applicant’s property rights. There has accordingly been no violation of Article 1 of Protocol No. 1 to the Convention.
CASE OF BERNOTAS v. LITHUANIA – 59065/21. Full text of the document.
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