EHRM, 12-12-2019, nr. 32141/10

The pension system in the respondent State primarily relies on employers to submit the requisite data about individuals' employment, especially regarding the beginning and end-dates of periods of employment, as well as any subsequent changes (see paragraph 33 below).

Prior to the events relating to her application for a pension the applicant was unemployed and was receiving financial aid via the unemployment benefits social scheme. During this period her health insurance was also covered through the unemployment benefits social scheme. Her entitlement to continue to receive such benefits would end at the moment that she found employment or met the criteria required to obtain a pension. In May 2000 the applicant was instructed by the Employment Bureau (Агеhција 3а bpабoTybање) to lodge an application for a pension.

On 22 May 2000 the applicant lodged an application for a retirement pension with the Pension and Disability Fund (Фohд 3а пеh3иcкo и иhbалидcкo ocигypybање — ‘the Fund’). The application contained only basic information about the applicant, such as her home address and personal identification number. It did not contain any information regarding her past employment, and nor were any annexes attached.

On 23 May 2000 the Fund granted the applicant a retirement pension in the amount of 6,462 denars (MKD) per month. The Fund established that by having completed a service period of thirty-five years, ten months and twenty-four days, the applicant had satisfied the service period criterion to qualify for a pension, which was the sole precondition at the material time. The decision became final and the applicant started receiving monthly payments.

Between February and July 2007 the Fund conducted an internal audit of its records. A final report was drafted which found that the records of several pension recipients had been incomplete and that in some cases there were missing or insufficient data regarding past employment.

With regard to the applicant, the report established that, although the records showed that she had been employed for the requisite period, her ‘employment booklet’ (pабoThа кhишка) was missing. It was therefore decided to consult the employer for whom the applicant had worked between 1963 and 1967 to verify this period of her employment. It appears that no further evidence was obtained with regard to the applicant's employment for the period mentioned.

Following the findings of the internal audit, a proprio motu review of the applicant's case was conducted. On 18 October 2007 the Fund annulled the decision of 23 May 2000 and refused the applicant's request for a pension. In its decision the Fund ruled that the information in the Fund's possession regarding the applicant's employment had been incorrect for the period between 1963 and 1967 in that she had not in fact been employed during that period. As a consequence, she did not satisfy the statutory criterion to qualify for a pension — namely a minimum period of thirty-five years in employment. The Fund relied on section 258 of the Administrative Proceedings Act and section 145-A of the Act on Pensions and Disability Insurance (see paragraphs 32 and 30 below). Following this decision, payment of the applicant's pension was discontinued.

On 26 November 2007 the applicant appealed. She claimed that section 145-A of the Act on Pensions and Disability Insurance had been introduced after the date on which she had been granted a pension, so it should not have been applied retroactively in her case.

Not having received a decision on the appeal, on 28 February 2008, the applicant brought an administrative action in the Administrative Court (yпpаbеh cyд). She argued that domestic law prescribed that information pertaining to employment be collected, kept and processed by the Fund and that she had never submitted any documents to it, apart from an application for a retirement pension, which had contained only her personal information. Furthermore, she argued that she was unable to contest the veracity of the data, because it had been collected, maintained and processed exclusively by the Fund.

On 17 April 2008 the appeal was dismissed by the Second-Instance Commission for Pension and Retirement-Related Issues (Кomиcија hа Bлада hа Pепyблика Mакедohија 3а pешаbање bo bTop cTепеh пo пpедmеTиTе oд пеh3иcкo и иhbалидcкo ocигypybање — ‘the Second-Instance Commission’).

On 6 November 2008 the Administrative Court upheld the action and quashed the Second-Instance Commission's decision. The Administrative Court found that section 145-A of the Act on Pensions and Disability Insurance had indeed been applied retroactively in the applicant's case. The section in question had come into force on 14 June 2006, so it could not be applied to the decision concerning the applicant, which dated from 2000.

On 16 March 2009 the Second-Instance Commission issued a fresh decision dismissing the applicant's appeal. Referring to section 249 paragraph 2 of the Administrative Proceedings Act (see paragraph 31 below) it established that grounds for reopening final proceedings existed in the applicant's case, namely the finding that ‘erroneous documents had been used in the proceedings before the Fund, which the claimant endorsed by submitting her request for a pension’ with regard to her employment for the period between 1963 and 1967. This finding was extrapolated from the Fund's records and held to be sufficient to justify re-examining her application for a pension and refusing it.

On 9 April 2009 the applicant brought an action in the Administrative Court. She reiterated that under domestic law the Fund was responsible for the accuracy of its records regarding employment and it was the employer's duty to submit the relevant documents. Moreover, she submitted that the decision of 22 May 2000 did not make reference to any specific periods of employment, so she could not have been aware of any inaccuracies. Therefore, any suggestion that she had endorsed erroneous data by lodging an application for a retirement pension with the Fund, or that she should be held responsible in any way, was unfounded.

On 15 October 2009 the Administrative Court dismissed her action, upholding the findings of the Second-Instance Commission in both fact and law. It held that the relevant form held by the Fund regarding the applicant's employment between 1963 and 1967 was illegible and contained insufficient data and therefore could not serve as relevant to calculate the applicant's employment.

On 30 November 2009 the applicant lodged an appeal with the Supreme Court (Bpxobеh cyд). She reiterated her earlier complaints about having had no influence on the data maintained by the Fund.

On 26 April 2010 the Supreme Court dismissed the applicant's appeal and held that the decision of the Fund to refuse the applicant's request for a pension had been lawful.

On 15 May 2012 the Fund lodged a criminal complaint against the applicant, stating that she had submitted falsified information to the Fund regarding her employment. The complaint was rejected by the Public Prosecution (Ochobho јаbho oбbиhиTелcTbo) on 25 May 2012 on the grounds that the statutory limitation period for the prosecution had expired.

In the meantime, specifically on 11 June 2008, the Fund brought a civil action in the Skopje Court of First Instance against the applicant seeking reimbursement of the full amount of the pension paid to her for the period between 5 May 2000 and 30 September 2007. The Fund submitted that the applicant owed it the amount of MKD 645,138 on the grounds of unjust enrichment (cTекhybање бе3 ochob). In support of its action the Fund referred to its own findings, in particular the decision of 18 October 2007 to discontinue the applicant's pension (see paragraph 12 above).

The Skopje Court of First Instance upheld the action; after an appeal by the applicant was dismissed by the Skopje Court of Appeal, on 8 January 2014 the judgment became final. The judgment was submitted to a bailiff, who started enforcement proceedings against the applicant on behalf of the Fund.

The applicant lodged an appeal on points of law with the Supreme Court, which was dismissed on 28 January 2015.

According to a document from the Public Revenues Office (yпpаbа 3а јаbhи пpиxoди) issued on 29 October 2008, the applicant's sole source of income since 2006 had been her pension.

While the applicant's pension proceedings were still pending, changes were introduced in the domestic legislation regarding the necessary criteria to qualify for a retirement pension. Following those changes, the applicant lodged a fresh request with the Fund, and on 3 November 2009 she was granted a retirement pension under the new criteria in the amount of MKD 10,384.50 per month. The Fund found that she met the newly introduced ‘age criterion’ for a pension (at the time she was sixty-two years old, as required). It appears that since that date she has been regularly receiving her pension.

Under section 6 paragraph 3, the rights acquired under this Act can be divested or limited only in accordance with and subject to the conditions stipulated in this Act.

Section 143 provides for review of a decision which became final under conditions provided in the Administrative Proceedings Act. The review can be initiated proprio motu or following a request.

Section 145-A was introduced by a change made to the Act during June 2006 that came into force on 14 June 2006. It allows for a final decision granting a right (including a pension) to a person to be annulled by means of a fresh proprio motu decision of the Fund. The only condition stipulated is that the person in question ‘should not have been entitled to such a right’. Such an annulment can be partial or in full.

Section 249 stipulates the conditions subject to which a review can be allowed of a decision that has become final in administrative proceedings. Paragraph 2 provides for a review of a final decision if it is established that the final decision was based on erroneous documentation, an erroneous statement by a witness or expert, or as a result of a criminal act.

Under section 258, when deciding whether to reopen a final case (decision), the administrative organ issues a decision whereby it can overturn or confirm the earlier decision. If it overturns the decision, it is up to the organ to decide whether this new decision will come into force ex tunc or ex nunc.

Under section 7 of the Act, the responsibility for providing relevant data concerning employees falls to the employer. Under section 8 that data includes, in particular, information regarding the beginning and the end of each period of employment.

Section 19 stipulates that the records regarding employment be kept by the Fund and its branch offices.

Section 24 stipulates that in the event that the information submitted to the Fund is found to be erroneous, the Fund will request the person who submitted it to correct it within a period of no more than thirty days from the date on which that person received that request.

The Court notes that the Government did not raise any objections as to the admissibility of the case. However, noting that the issue of compatibility ratione materiae is a question that falls under the Court's jurisdiction, the Court finds it necessary to examine the matter of its own motion (see Tănase v. Moldova [GC], no. 7/08, § 131, ECHR 2010, and Blečić v. Croatia [GC], no. 59532/00, § 67, ECHR 2006-III).

Article 1 of Protocol No. 1 places no restriction on the Contracting States' freedom to decide whether or not to have in place any form of social security or pension scheme, or to choose the type or amount of benefits to provide under any such scheme. However, where a Contracting State has in force legislation providing for the payment as of right of a welfare benefit or pension — whether or not such benefit is conditional on the prior payment of contributions — that legislation must be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No. 1, but it does so only for persons satisfying the requirements thereof (see, for example, Béláné Nagy v. Hungary [GC], no. 53080/13, § 82, 13 December 2016, ECHR 2016, and cases cited therein).

In a number of cases the Court has accepted that the grant of a pension benefit of which the applicant was subsequently divested on the grounds that the legal conditions for such a grant had not been fulfilled initially, could give rise to a ‘possession’ for the purposes of Article 1 of Protocol No. 1 (see Béláné Nagy cited above, § 87). In such cases the Court has considered that a property right was generated by a favourable evaluation of pension request that was lodged by an applicant in good faith (see for example, Moskal v. Poland, no. 10373/05, § 45, 15 September 2009, and Antoni Lewandowski v. Poland, no. 38459/03, §§ 78 and 82, 2 October 2012).

The Court notes, in the instant case, that the applicant's right to receive a pension was generated by the favourable evaluation of her pension application by the Fund. In particular, on the basis of the applicant's request and the information available to the Fund, on 23 May 2000 the Fund recognised the applicant's right to a pension. She was therefore provided with an enforceable right to receive the pension in a particular amount. On the basis of that decision, the applicant was in receipt of a pension until 18 October 2007.

The Court furthermore notes that the applicant lodged her initial request for a pension following an instruction to do so issued by the Employment Bureau. At that point she did not specify anything regarding her periods of employment, and did not provide any annexes or evidence to that end (see paragraphs 8 and 14 above), and nor was it established that at any point in the past the applicant had personally supplied the Fund with any information regarding her past employment. Indeed, under sections 7 and 8 of the Act Regulating Records of Pensions and Disability Insurance Beneficiaries (see paragraph 33 above), it was incumbent on the employer, and not the employee, to supply the Fund with all the relevant information regarding the period of employment in question. Furthermore, under section 19 of the same Act, it is the responsibility of the Fund and its branch offices to create and maintain individual records of employment (see paragraph 34 above).

Accordingly, no reason not to rely on the instruction of the Employment Bureau to submit a pension request was apparent to the applicant (see paragraphs 7 and 8 above). From that point on it fell to the relevant authorities to check whether she met the necessary requirements to be granted a pension. In fact, such an assessment was indeed made and the applicant was granted а pension.

Moreover, it cannot be inferred from the facts of the case that the applicant took any action with the intention of misleading the Fund or that she otherwise acted in bad faith when submitting her request for a pension or at any point in her communication with the Fund. Such a conclusion also follows from the findings of the Second-Instance Commission, which — although it established the existence of erroneous data with regard to the period of the applicant's employment — failed to establish any liability on the part of the applicant for providing such data. It rather held that the applicant had endorsed the use of the incorrect data on which the Fund had relied when granting her request. However, the Court notes that it failed to explain the manner in which the applicant had allegedly endorsed the incorrect provision of data (see paragraph 17 above). In this connection, it should be noted that the Fund itself established the relevant facts when granting the applicant's request for a pension, without any involvement on the part of the applicant through which she could have consented to the provision of incorrect information.

Taking account of those circumstances, there is nothing that persuades the Court to conclude that the applicant's pension request was not submitted in good faith (contrast Kusina v. Poland (dec.), no. 28589/05, § 35, 9 April 2013). The outcome of the criminal proceedings lodged against the applicant in this regard also cannot lead to a different conclusion (see paragraph 22 above). Accordingly, the Court finds that the favourable evaluation of the applicant's pension request generated for the applicant a property right protected by Article 1 of Protocol No. 1 (see, among other authorities, Fábián v. Hungary [GC], no. 78117/13, §§ 61–62, 5 September 2017; Moskal, cited above, § 45; and Płaczkowska v. Poland, no. 15435/04, § 63, 2 October 2012).

The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

The applicant claimed 3,086 euros (EUR), which represented the amount she would have received between October 2007 and November 2009 had she continuously received a pension. She also claimed EUR 16,903 in respect of pecuniary damage suffered, as a consequence of a payment order issued by a bailiff as part of the enforcement proceedings initiated against the applicant (see paragraph 24 above) stating that amount. The total amount claimed by the applicant under the head of pecuniary damage, including interest, was set at EUR 24,142.

The applicant also claimed EUR 25,850 in respect of non-pecuniary damage.

The Government contested both amounts, stating that there was no causal link between the damages claimed and any violation that may be found by the Court. Furthermore, the claim regarding non-pecuniary damage was unsubstantiated.

The Court finds that the applicant was deprived of her income in connection with the violation found and must take into account the fact that she undoubtedly suffered some pecuniary and non-pecuniary damage (see Moskal, cited above, § 105). Making an assessment on an equitable basis, as is required by Article 41 of the Convention, the Court awards the applicant EUR 6,000 for both non-pecuniary damage and prospective pecuniary damage. Given the nature of the violation found, the Court further requests the Government to ensure that any payment order issued against the applicant following the proceedings initiated against her (see paragraph 24 above) is not enforced.

The applicant did not make a claim for any costs and expenses incurred. The Court therefore sees no reason to award her any sum in this respect.

The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

Done in English, and notified in writing on 12 December 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Abel Campos

Registrar

Ksenija Turković

President