EHRM, 05-03-2020, nr. 60477/12

The Government also argued that the present application should be declared inadmissible as having been lodged after the expiry of the six-month time-limit. They referred to the case of Fernie v. the United Kingdom (dec.). no. 14881/04, 5 January 2006, which was declared inadmissible for failure to comply with the six-month rule because after the termination of the domestic proceedings before the Court of Appeal the applicant had lodged an appeal with the House of Lords, which was inadmissible in law.

In that respect the Government submitted that the applicant had availed himself of a remedy that had had no prospect of success, namely a compensation claim under Article 417 of the Civil Code, and that the final domestic decision relevant for the calculation of the time-limit for lodging the application with the Court had been delivered by the Szczecin Court of Appeal on 27 January 2011 and served on the applicant on 23 February 2011.

The Court reiterates that the six month time-limit imposed by Article 35 § 1 of the Convention requires applicants to lodge their applications within six months of the final decision in the process of the exhaustion of domestic remedies. This requirement entitles only remedies that are normal and effective to be taken into account, as an applicant cannot extend the strict time-limit imposed under the Convention by seeking to make inappropriate or misconceived applications to bodies or institutions that have no power or competence under the Convention to offer effective redress for the complaint in issue (see Fernie, cited above).

In his observations of 6 July 2015 the applicant requested the Court to deem the case admissible, even assuming non-compliance with the six-month rule.

The Court notes that after the termination of the second set of proceedings concerning the applicant's right to a disability pension, on 1 August 2011 the applicant lodged a civil claim for compensation. Courts at two levels of jurisdiction dismissed his claim and his appeal. However, they examined the applicant's claim on the merits and, having applied and interpreted the relevant domestic provisions, concluded that compensation could not be granted because the activities of the agents of the State had not been illegal (see paragraph 23 above). Moreover, the second-instance court additionally examined the applicant's claim under Article 417² of the Civil Code in order to determine whether compensation could be granted to the applicant on equity grounds. Accordingly, the Court does not share the Government's view that the applicant's compensation claim had clearly had no prospect of success.

The instant case is not similar to the case referred to by the Government (see paragraph 47 below), where the applicant made use of a remedy that was inadmissible in law. In the instant case the applicant instituted a new set of proceedings, claiming compensation from the State. The Court considers that the applicant should not bear the negative consequences of the fact that he tried to find a legal solution at the domestic level, through available remedies that did not exclude any prospect of success. The Court has already found that it should not be held against the applicants if they used the domestic remedies acting neither unreasonably nor contrary to the wording of the domestic law (see Zdravka Kušić and Others v. Croatia (dec.), no. 71667/17, 10 December 2019, §§86–87).

Bearing in mind the above considerations, the Court holds that the final effective domestic decision for the purposes of calculating the six-month period was the Gorzów Wielkopolski Regional Court's judgment of 29 June 2012. It follows that the application was not lodged out of time.

The Government submitted that the applicant had failed to exhaust all available domestic remedies, given that he had not lodged cassation appeals against the judgments delivered on 26 November 2009 and 27 January 2011 by the Szczecin Court of Appeal.

They expressed the view that that remedy would have been effective and had been available, as required by the Court's case-law, submitting in the first place that the question of whether a cassation appeal was to be lodged had depended exclusively on the will of the applicant and had not been up to the discretion of any authority. They referred in this respect to a statement made by the Court in respect of the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, ECHR 1999-V, § 42, in which the Italian Government's preliminary objection that the applicant company had not exhausted domestic remedies was dismissed by the Court. The Government also submitted that a cassation appeal did not constitute an ‘extraordinary procedure in the understanding of the Court's case-law’. The Government referred to the cases of Çinar v. Turkey (dec.), no. 28602/95, 13 November 2013, Prystavska v. Ukraine (dec.), no. 21287/02, 17 December 2002, Horvat v. Croatia, no. 51585/99, ECHR 2001-VIII, and Hartman v. the Czech Republic, no. 53341/99, ECHR 2003-VIII. By way of justification for their submission regarding the effectiveness of a cassation appeal in cases relating to a disability pension, the Government invoked a Supreme Court judgment of 12 February 2009 (file no. III UK 71/08) and considered that any doubts on the part of the applicant, who had been aware of the existence of a cassation appeal, had not absolved him from the obligation to exhaust the domestic remedies; the Government referred in that respect to the cases of Epözdemir v. Turkey (dec.), no. 57039/00, 31 January 2002, and Pellegriti v. Italy (dec.), no. 77363/01, 26 May 2005).

They furthermore submitted that the applicant should have brought an action for compensation against the medical experts under Article 415 of the Civil Code.

Moreover, when communicating the case, the Court asked the parties whether an application for the reopening of the relevant proceedings on the grounds of a new assessment of the applicant's state of health could be considered to constitute an effective remedy in the present case. In that respect the Government submitted that the new assessment of the applicant's state of health had been prepared essentially on the basis of the same evidence as had the previous assessment and that it could not amount to ‘new factual circumstances’ that would justify the reopening of the proceedings under Article 403 (2) of the Code of Civil Procedure. At the same time the Government did not make any submissions regarding the applicability of section 114 of the 1998 Act to the present case.

The applicant did not make any comments regarding the non-exhaustion of domestic remedies or the reopening of the relevant proceedings.

At the outset the Court reiterates that the only remedies that Article 35 of the Convention requires to be exhausted are those which are related to the breaches alleged and which at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see, among other authorities, Akdivar and Others v. Turkey [GC], no. 21893/93, ECHR 1996-IV, § 65, and Pellegriti (cited above).

The Court furthermore notes that in assessing the availability and effectiveness of a remedy, the specific circumstances of each case should be taken into consideration. In the present case, after termination of the proceedings that ended on 27 January 2011, the applicant instituted civil proceedings for compensation against the Zielona Góra Farmer's Social Security Fund (see paragraph 22 above). As the Court found above, these proceedings were not deprived of prospect of success; the applicant's compensation claim was examined on the merits (see paragraph 41 above).

The Court recalls its case-law, according to which if more than one potentially effective remedy is available, the applicant is only required to have used one of them (Moreira Barbosa v. Portugal (dec.), no. 65681/01, ECHR 2004-V (extracts); Aquilina v. Malta [GC], no. 25642/94, § 39, ECHR 1999-III). When one remedy has been attempted, use of another remedy which has essentially the same purpose is not required (Kozacıoğlu v. Turkey [GC], no. 2334/03, §§ 40 et seq., 19 February 2009; Micallef v. Malta [GC], no. 17056/06, § 58, ECHR 2009; Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, § 177, 25 June 2019). The Court considers that having made the compensation claim against the Zielona Góra Farmer's Social Security Fund the applicant exhausted a domestic remedy that gave the authorities the opportunity to prevent or put right the alleged violations of the Convention on the domestic level. It follows that the Government's pleas on inadmissibility must be rejected.

The applicant submitted that the refusal to grant him compensation for the period of twenty-one months during which, in spite of his recognised incapacity for farm work, he had remained without any financial support from the State had violated his Convention rights.

The Government submitted that the refusal to grant the applicant compensation had not amounted to a disproportionate interference with his property rights that had been in breach of Article 1 of Protocol No. 1 to the Convention. In the Government's view, the applicant had availed himself of legal action that had not offered any prospects of success, as the Fund had not committed any delict (that is to say tort) to the applicant's detriment and its actions had not been illegal. Thus, they considered that the dismissal of his claim by the domestic courts, which had correctly applied the relevant domestic law, could not have contributed to any interference with the applicant's property rights.

The Court points out that Article 1 of Protocol No. 1 comprises three distinct rules: the first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers the deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the Contracting States are entitled to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. The three rules are not, however, ‘distinct’ in the sense of being unconnected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule (see, among many authorities, AGOSI v. the United Kingdom, 24 October 1986, § 48, Series A no. 108, and Centro Europa 7 S.r.l . and Di Stefano v. Italy [GC], no. 38433/09, § 185, ECHR 2012).

The Court reiterates that the principles that apply generally in cases brought under Article 1 of Protocol No. 1 to the Convention are correspondingly relevant when it comes to social and welfare benefits. In particular, Article 1 of Protocol No. 1 to the Convention does not create a right to acquire property. This provision places no restriction on the Contracting State's 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. If, however, a Contracting State has in force legislation providing for the payment as of right of a welfare benefit — whether conditional or not on the prior payment of contributions — that legislation must be regarded as generating possessions falling within the ambit of Article 1 of Protocol No. 1 to the Convention for persons satisfying its requirements (see Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 54, ECHR 2005-X).

In a modern democratic State many individuals are, for all or part of their lives, dependent for survival on social security and welfare benefits. Many domestic legal systems recognise that such individuals require a degree of certainty and security, and provide for benefits to be paid — subject to the fulfilment of the conditions of eligibility — as of right. Where an individual has an assertable right under domestic law to a welfare benefit, the importance of that interest should also be reflected by holding Article 1 of Protocol No. 1 to the Convention to be applicable (see, among other authorities, Stec and Others, cited above, § 51).

The mere fact that a property right is subject to revocation in certain circumstances does not prevent it from being a ‘possession’ within the meaning of Article 1 of Protocol No. 1 to the Convention (see Beyeler v. Italy [GC], no. 33202/96, § 105, ECHR 2000-I, and Moskal v. Poland, no. 10373/05, § 40, 15 September 2009).

On the other hand, where a legal entitlement to the economic benefit at issue is subject to a condition, a conditional claim that lapses as a result of the non-fulfilment of that condition cannot be considered to amount to ‘possessions’ for the purposes of Article 1 of Protocol No. 1 (see Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, §§ 82-83, ECHR 2001-VIII, and Rasmussen v. Poland, no. 38886/05, §71, 28 April 2009).

The Court furthermore reiterates that the first and most important requirement of Article 1 of Protocol No. 1 to the Convention is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful: the second sentence of the first paragraph authorises a deprivation of possessions only ‘subject to the conditions provided for by law’, and the second paragraph recognises that the States have the right to control the use of property by enforcing ‘laws’ (see The former King of Greece and Others v. Greece [GC], no. 25701/94, §§ 79 and 82, ECHR 2000-XII).

Article 1 of Protocol No. 1 to the Convention also requires that a deprivation of property for the purposes of its second sentence be in the public interest and pursue a legitimate aim by means reasonably proportionate to the aim sought to be realised (see, among others authorities, Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, §§ 81-94, ECHR 2005).

Moreover, according to the principle of ‘good governance’, where an issue in the general interest is at stake it is incumbent on the public authorities to act in good time, in an appropriate manner and with the utmost consistency (see Beyeler, cited above, § 120, and Megadat.com S.r.l . v. Moldova, no. 21151/04, § 72, 8 April 2008).

Lastly, Article 1 of Protocol No. 1 to the Convention requires a fair balance between the demands of the general interest of the public and the requirements of the protection of the individual's fundamental rights, so that no disproportionate burden is imposed on an applicant (see, among many other authorities, Jahn and Others [GC], cited above, § 93). In particular, the requisite ‘fair balance’ will not be struck where the person concerned bears an individual and excessive burden (see Sporrong and Lönnroth v. Sweden, 23 September 1982, §§ 69-74, Series A no. 52, and Brumărescu v. Romania [GC], cited above, § 78). Despite the margin of appreciation given to the State, the Court must nevertheless, in the exercise of its power of review, determine whether the requisite balance was maintained in a manner consonant with the applicant's right to property (see Rosinski v Poland, no. 17373/02, § 78, 17 July 2007). The concern to achieve this balance is reflected in the structure of Article 1 of Protocol No. 1 to the Convention as a whole, including, therefore, the second sentence, which is to be read in the light of the general principle enunciated in the first sentence. In particular, there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised by any measure depriving a person of his possessions (see Pressos Compania Naviera S.A. and Others v. Belgium, 20 November 1995, § 38, Series A no. 332, and The former King of Greece and Others, cited above, § 89). Thus, the balance to be maintained between the demands of the general interest of the community and the requirements of fundamental rights is upset if the person concerned has had to bear a ‘disproportionate burden’ (see, among many other authorities, The Holy Monasteries v. Greece, 9 December 1994, §§ 70-71, Series A no. 301-A).