Last Updated on October 3, 2020 by LawEuro
FIRST SECTION
DECISION
Application no. 75328/12
Georgi DŽABIROV
against the former Yugoslav Republic of Macedonia
The European Court of Human Rights (First Section), sitting on 18 December 2018 as a Committee composed of:
Tim Eicke, President,
Jovan Ilievski,
Gilberto Felici, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 17 November 2012,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The case originated in an application (no. 75328/12) against the former Yugoslav Republic of Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Macedonian national, Mr Georgi Džabirov, represented by Mr F. Medarski, a lawyer practising in Skopje. The applicant died on 30 January 2015. The applicant’s wife, Ms Vera Džabirova, expressed her wish to pursue the application in his stead and designated the same counsel to represent her. For practical reasons, Mr Georgi Džabirov will continue to be called “the applicant” in this decision.
2. The Macedonian Government (“the Government”) were represented by their former Agent, Mr K. Bogdanov, later succeeded by Ms D. Djonova.
The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant was a lawyer. On 8 February 2006 the Pension and Disability Insurance Fund (Фонд за пензиско и инвалидско осигурување ‑ “the Fund”) issued an interim decision (привремено решение) (“the 2006 decision”) under which the applicant was awarded a monthly disability pension owing to his reduced capacity to work (намалена работна способност) in the amount of 19,232 Macedonian Denars (MKD ‑ approximately 310 euros (EUR)). The applicant was entitled to receive the disability pension as of 1 January 2006.
5. On 1 July 2008 the applicant reopened his legal practice on a part‑time basis. In view of this employment, on 17 July 2008 the Fund reduced his disability pension (“the 2008 decision”) to 70% of the amount specified in the 2006 decision. The reduced pension amounted to MKD 16,879 (approximately EUR 270); the calculation of this sum was based on section 154 of the applicable Pension and Disability Insurance Act, which provided for the payment of a pension in a reduced amount in the event that a pension recipient became employed.
6. In December 2008 a new Pension and Disability Insurance Act (“the 2008 Act”) was enacted. Under section 10 of the 2008 Act, if the recipient of a pension were to become employed, his or her pension would be suspended for the duration of that employment. The applicant was accordingly requested to inform the Fund of whether he would choose to terminate his employment and continue receiving his pension or maintain his employment and have the payment of his pension suspended. After he refused to terminate his employment, on 17 March 2009 the Fund suspended the applicant’s pension (“the 2009 decision”) for the duration of his employment, relying on section 10 of the 2008 Act. The suspension took effect on 1 January 2009, which was when the 2008 Act entered into force.
7. On 17 August 2009 a second-instance commission dismissed an appeal lodged by the applicant and upheld the Fund’s decision. It held that the 2008 Act did not provide for the payment of disability pension in the event of employment.
8. The above decisions were upheld by the Administrative Court (Управен суд) and Higher Administrative Court (Виш управен суд) by judgments of 2 December 2010 and 27 April 2012 respectively. The courts dismissed the applicant’s argument that the 2008 Act had had retroactive effect and found that the applicant had not been deprived of his pension entitlement as such, but that the payment of his pension had instead been temporarily suspended as of 1 January 2009, the date on which the 2008 Act had entered into force.
COMPLAINT
9. The applicant complained under Article 1 of Protocol No. 1 to the Convention about the suspension of his pension.
THE LAW
10. The applicant complained that he had been deprived of his pension. He relied on Article 1 of Protocol No. 1 to the Convention, which reads 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 and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
A. The parties’ submissions
1. The Government
11. The Government agreed that the temporary suspension of the applicant’s pension amounted to an interference with his rights under Article 1 of Protocol No. 1. However, that measure had been lawful and had pursued a legitimate aim – namely, that of ensuring social justice and economic well-being. Under the 2008 Act the applicant had had a choice to either continue being employed or to resume receiving his pension, and he had opted for the former. The pension payments would have resumed had he discontinued his practice and informed the authorities of that step. Lastly, they submitted that the applicant had realised a significant income from his practice; that income had been, according to them, higher than his monthly pension following the 2008 decision. Accordingly, the impugned decision had not had a significant impact on his overall financial situation.
2. The applicant
12. The applicant submitted that the suspension of his pension had constituted de facto a discontinuation of his acquired right, and that this had been accomplished by means of the retroactive application of the 2008 Act. There had been no changes to the state of his health to justify the discontinuation. Although he had made a profit from his legal practice the pension had still represented a significant part of his overall income.
B. The Court’s assessment
13. The Government have not contested Ms. Džabirova’s standing in the proceedings before the Court. The Court notes that the applicant’s widow has the requisite standing under Article 34 of the Convention to continue the application on behalf of her late husband (see Streltsov and other “Novocherkassk military pensioners” cases v. Russia, nos. 8549/06 and 86 others, § 39, 29 July 2010, and Demerdžieva and Others v. the former Yugoslav Republic of Macedonia, no. 19315/06, § 19, 10 June 2010).
14. The principles relevant to the instant case have been set out in the case of Béláné Nagy ([GC], no. 53080/13, §§ 112 – 118, ECHR 2016, with further references). They were recently reiterated in the case of Fábián ([GC], no. 78117/13, § 65, ECHR 2017 (extracts)).
15. Turning to the present case, the Court considers that the applicant’s pension entitlement under the 2008 decision constituted a possession within the meaning of Article 1 of Protocol No. 1 to the Convention (see Lakićević and Others v. Montenegro and Serbia, nos. 27458/06 and 3 others, § 64, 13 December 2011). The ex nunc suspension of the payment of this pension amounted to an interference with the peaceful enjoyment of the applicant’s possessions (B. v. the United Kingdom, no. 36571/06, §§ 36 and 41, 14 February 2012, with further references).
16. The Court notes that the 2009 decision was based on section 10 of the 2008 Pension and Disability Insurance Act (see paragraph 6 above). The Court is therefore satisfied that the interference in question was provided for by law (see Béláné Nagy, cited above, § 120).
17. The Court agrees with the Government that the aims pursued through the measure in question – namely, social justice and economic well.‑ being – were legitimate (see Lakićević, cited above, § 68).
18. As to whether the interference struck a fair balance between the demands of the general interest of the community and the rights of the individual, the Court will examine the relevant factors identified in the case of Fábián (cited above, § 73) – namely the extent of loss of the benefit, the element of choice and the extent of the loss of the means of subsistence suffered by the applicant.
19. In this respect the Court notes that the impugned measure does not concern the permanent loss of the applicant’s pension, nor the reduction thereof; rather it was temporarily suspended for the duration of the applicant’s employment (see paragraphs 6 and 8 above), which did not strike at the very substance of the right (see Fábián, cited above, § 74).
20. The Court furthermore observes that after the impugned legislation had entered into force, the applicant was given the option of choosing either to maintain his pension and discontinue his practice or to remain in employment with his pension being temporarily suspended. It was his refusal to terminate his employment that brought about the suspension of his pension (see paragraph 6 above). Therefore, it cannot be said that his pension was suspended without him having any choice in the matter (ibid. § 76, with further references).
21. As to the extent to which the applicant’s means of subsistence were affected by the suspension of his pension, it appears from the parties’ submissions and the available material that the impact of the measure was not such as to bring him into danger of falling below the subsistence threshold. In this respect the Court also observes that the applicant did not claim that the measure had had the above effect, or that he had been requested to pay any amounts back to the Fund as a result of it. It therefore follows that the suspension of the applicant’s pension payments did not leave him devoid of all means of subsistence (see Fábián, cited above, § 82, and Hasani v. Croatia, no. 20844/09 (dec.), 30 September 2010; also contrast Moskal v. Poland, no. 10373/05, § 74, 15 September 2009).
22. In view of the foregoing, and bearing in mind the State’s wide margin of appreciation in the matters of economic and social policy (among many other cases, see Fábián, cited above, § 84), the Court finds that the application is 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,
Declares the application inadmissible.
Done in English and notified in writing on 24 January 2019.
Renata Degener Tim Eicke
Deputy Registrar President
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