Information Note on the Court’s case-law No. 123
October 2009
Apostolakis v. Greece - 39574/07
Judgment 22.10.2009 [Section I]
Article 1 of Protocol No. 1
Article 1 para. 1 of Protocol No. 1
Peaceful enjoyment of possessions
Possessions
Total automatic loss of pension rights and welfare benefits as a result of a criminal conviction: violation
Facts – The applicant had been working for the Greek Artisan and Tradesmen’s Insurance Fund, of which he became pensions director, since the age of eighteen. In the end he was forced to resign on account of criminal proceedings instituted against him. In 1998 the Court of Appeal convicted him of aiding and abetting the falsification of paybooks to the detriment of the Fund and sentenced him to eleven years’ imprisonment. He was conditionally released that year, the period of pre-trial detention having been deducted from his sentence. Prior to that, in 1988, a right to a retirement pension had been conferred on the applicant after more than thirty years’ service. In 1999 the Social Security Fund revoked the decision of 1988 and transferred part of the pension to his wife and daughter, on the basis of the criminal conviction and in accordance with the Pensions Code. The withdrawal of Mr Apostolakis’s pension also caused him to lose his personal social-security rights. The applicant unsuccessfully appealed against those measures.
Law – Article 1 of Protocol No. 1: On joining the Greek civil service the applicant had acquired a right that constituted a “possession” within the meaning of Article 1 of Protocol No. 1. The withdrawal of the applicant’s pension had amounted to an infringement of his right of property that was neither an expropriation nor a control of the use of property. Following his conviction the applicant had been automatically deprived of his retirement pension for the rest of his life. Aged sixty-nine, and unable to start a new professional occupation, he was personally deprived of any means of subsistence. Whilst the applicant’s conduct had been criminally culpable, it had had no causal link with his retirement rights as a socially insured person. Moreover, the fact that the pension had been transferred to the applicant’s family – the applicant being married and having children – did not suffice to offset that loss. In that connection it should be noted that the transfer had been effected in the same way as if the applicant had died, which meant that the pension amount had been reduced: seven-tenths of the initial sum, according to the applicant. Above all, there was nothing to rule out the possibility of the situation continuing in the future, as the applicant might become a widower or get divorced, for example, which would result in the loss of all means of subsistence. To that was added the fact that the withdrawal of the applicant’s pension resulted in the loss of his social-security right. The margin of appreciation available to States allowed them to make provision in their legislation for the imposition of fines as a result of a criminal conviction. However, penalties of that kind, which would involve the total forfeiture of any right to a pension and social cover, including health insurance, amounted not only to a double punishment but also had the effect of extinguishing the principal means of subsistence of a person, such as the applicant, who had reached retirement age. Such an effect was compatible neither with the principle of resocialisation governing the criminal law of the Contracting States nor with the spirit of the Convention. Accordingly, the applicant had been obliged to bear an excessive and disproportionate burden which, even if account was taken of the wide margin of appreciation to be afforded to States in the area of social legislation, was not justified on the grounds relied on by the Government, namely, the proper functioning of the administration or the credibility and integrity of the public service.
Conclusion: violation (unanimously).
Article 41: EUR 23,327.64 in respect of pecuniary damage and EUR 1,000 in respect of non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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