Communicated on 18 December 2014
THIRD SECTION
Application no. 44335/13
Misha ASATRYAN
against Armenia
lodged on 26 June 2013
STATEMENT OF FACTS
The applicant, Mr Misha Asatryan, is an Armenian national, who was born in 1945 and lives in Sisian. He is represented before the Court by Mr A. Zeynalyan and Mr A. Ghazaryan, non-practising lawyers.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant’s retirement and pension
The applicant is a former judge who served in the judiciary from 1976 until 2008. By presidential decree of 18 May 2008 the applicant’s term of office was terminated on the ground of his inability to perform his duties for more than four months consecutively because of an illness hindering his professional activity.
The applicant was allocated a judge’s retirement pension at the rate of 75% of his last salary as a judge of the Civil Court of Appeal.
On 1 January 2009 judges’ salaries doubled.
On 20 February 2009 the applicant applied to the Ministry of Labour and Social Affairs (ՀՀ աշխատանքի և սոցիալական հարցերի նախարարություն) and to the State Social Security Service (ՀՀ աշխատանքի և սոցիալական հարցերի նախարարության սոցիալական ապահովության պետական ծառայություն) seeking adjustment of his retirement pension, including the monthly premium, to the new salary rates of judges.
By letter of 24 February 2009 the Ministry of Labour and Social Affairs refused to grant the applicant’s request.
The first set of administrative proceedings
On 4 May 2009 the applicant lodged a claim with the Administrative Court (ՀՀ վարչական դատարան) against the Ministry of Labour and Social Affairs and the State Social Security Service seeking recalculation of his retirement pension starting from 1 January 2009.
On the same date the applicant submitted a copy of his claim to the Ministry of Finance (ՀՀ ֆինանսների նախարարություն), as required by the procedural law, and attached the postal delivery receipt to his claim lodged with the Administrative Court.
On 1 December 2009 the Administrative Court granted the applicant’s claims in their entirety. In doing so, the court relied as a binding precedent on decision of the Court of Cassation (ՀՀ վճռաբեկ դատարան) of 6 November 2009 in a case brought by other former judges which stated that judges’ retirement pensions and the monthly premium were subject to recalculation based on the new rates of judges’ salaries. The court thus concluded that the applicant’s pension was subject to recalculation as from 1 January 2009. This judgment was not appealed against and became final on 11 January 2010.
Amendments to the legislation on allocation and calculation of judges’ retirement pensions
In the meantime, the Government initiated amendments to the Law on Entry into Force of the Judicial Code. Notably, on 5 August 2010 the Government adopted Decree No. 1041 A to consider urgent the discussion of the draft Law on Making Amendments to the Law on Entry into Force of the Judicial Code in the National Assembly.
On 5 October 2010 the above draft law was adopted, which reformulated Article 2.1 of the Law on Entry into Force of the Judicial Code to state that the amount of the monthly premium to be added to the retirement pension allocated to judges was that of the difference between 55% of the average monthly salary gained at the position of a judge held during the last year of service and the amount of the State retirement pension. This law entered into force on 20 November 2010.
The institution of enforcement proceedings
On 19 February 2010 the Administrative Court issued a writ of execution in respect of the judgment of 1 December 2009. As a result, on 4 March 2010 the bailiff instituted enforcement proceedings and made a decision to compel the Ministry of Labour and Social Affairs and the State Social Security Service to comply with the judgment within a ten-day period.
It appears that the judgment in question was not executed by the judgment debtors within the set ten-day period, nor later.
Criminal proceedings concerning non-enforcement of the judgment
On 18 November 2010 the applicant complained to the Prosecutor General (ՀՀ գլխավոր դատախազ) that the social security authorities refused to comply with the final and binding judgment in his favour and requested that criminal proceedings be instituted against those responsible.
By decision of 19 January 2011 the police refused to institute criminal proceedings on the ground that there was no legal basis for the recalculation of the applicant’s retirement pension.
Upon the applicant’s complaint, by decision of 22 March 2011 the Kentron and Nork-Marash District Court of Yerevan (Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների առաջին ատյանի դատարան) found that the refusal to institute criminal proceedings was groundless and violated the applicant’s right to obtain enforcement of a final judgment. The court further concluded that the judgment in question had been intentionally not executed by the relevant public officials.
Upon the prosecutor’s appeal the decision of 22 March 2011 was upheld. The prosecutor’s subsequent appeal on points of law was declared inadmissible by the Court of Cassation.
On an unspecified date the police instituted criminal proceedings which were subsequently terminated by decision of 5 August 2011 for absence of corpus delicti.
The second set of administrative proceedings
On 16 September 2011 the Ministry of Finance lodged an appeal with the Administrative Court of Appeal (ՀՀ վարչական վերաքննիչ դատարան) against the judgment of 1 December 2009 arguing that it had not been a party to the proceedings while these concerned its rights and obligations, given that their result could have implications on the State budget. The Ministry of Finance relied in this regard on Articles 117.1 and 117.2 of the Code of Administrative Procedure (‘the Code’) and stated that the existence of the judgment of 1 December 2009 had come to its knowledge as a result of a letter from the Ministry of Labour and Social Affairs of 15 September 2011.
On 28 October 2011 the Administrative Court of Appeal (ՀՀ վարչական վերաքննիչ դատարան) quashed the judgment of the Administrative Court of 1 December 2009 and remitted the case for a fresh examination on the ground that the Ministry of Finance had not been involved in the proceedings although the judgment concerned its rights and obligations. The Court of Appeal acknowledged that fact that the Ministry of Finance had been informed about the applicant’s claim at the relevant time. The court concluded, however, that the mere fact of having sent a copy of the claim to the Ministry of Finance was not sufficient for the purposes of Article 16 of the Code of Administrative Procedure.
The termination of enforcement proceedings
On 24 December 2012 the bailiff made a decision to terminate the enforcement proceedings on the ground that the judgment of the Administrative Court of 1 December 2009 had been quashed by the decision of the Administrative Court of Appeal of 28 October 2011.
The third set of administrative proceedings
By virtue of a decision of the Administrative Court of 5 March 2012, the Ministry of Finance became party to the proceedings as a third party.
On 7 November 2012 the Administrative Court rejected the applicant’s claims in their entirety. In doing so it concluded, inter alia, that no right to recalculation of the premium to the retirement pension of judges had been recognised under the law prior to the adoption on 5 October 2010 of the Law on Making Amendments to the Law on Entry into Force of the Judicial Code. It found accordingly that the applicant did not have a right to recalculation of the premium to his pension starting from 1 January 2009.
The applicant lodged an appeal against this judgment. On 2 April 2013 the Administrative Court of Appeal rejected his appeal and upheld the judgment on similar grounds.
On 16 April 2013 the applicant lodged an appeal on points of law.
By its decision of 8 May 2013 the Court of Cassation declared the applicant’s appeal on points of law inadmissible for lack of merit.
B. Relevant domestic law and practice
1. The Code of Administrative Procedure (in force from 1 January 2008 until 7 January 2014)
Third parties may be involved in the proceedings upon their request. If the judicial act will unavoidably and directly apply to certain persons, the court is under an obligation to involve those persons in the proceedings as third parties. Third parties may be involved in the litigation before the end of the court proceedings (Article 16 §§ 2, 3 and 4).
According to Article 73 § 1 (7) in cases envisaged under paragraph 2 of this Article, proof of having sent the claim to the body in charge of the administration of State funds should be attached to the claim. In cases where the defendant is an administrative entity or an official, the claimant should send a copy of the claim and its supporting documents to the body in charge of the administration of State funds (Article 73 § 2).
Article 117.2 § 1 prescribes that an appeal can be lodged against a judicial act on the merits of a case before the end of the time-period set for the entry into force of that act, with the exception of cases where the judicial act is appealed against on the ground of new or newly discovered circumstances or on the grounds envisaged by paragraph 3 of this Article.
Persons not having been involved in the proceedings and whose rights and obligations are concerned by a judicial act on the merits of a case, have a right to lodge an appeal within three months starting from the day when they knew or ought to have known about the existence of such a judicial act (Article 117.2 § 3).
2. The Judicial Code (in force from 18 May 2007)
According to Article 167 § 1 (1) a judge’s term of office is terminated by the President upon the proposal of the Council of Justice if he has not been able to perform his professional duties for more than four months consecutively or for more than six months during the calendar year as a result of temporary incapacity for work.
3. The Law of 22 February 2007 on Entry into Force of the Judicial Code (as in force from 26 June 2008 until 20 November 2010)
By the law of 26 May 2008 the Law on Entry into Force of the Judicial Code was supplemented by Article 2.1. This provision stated that a monthly premium in the amount of the difference between 75% of the monthly salary earned in the last position as judge and the State retirement pension was to be added to the retirement pension allocated to a person who had worked for ten or more years as a judge and who had terminated office on the grounds envisaged by point 1 of the first paragraph of Article 167.
4. The Law of 5 October 2010 on making amendments to the Law on Entry into Force of the Judicial Code (as in force from 20 November 2010)
By this law, Article 2.1 of the Law on Entry into Force of the Judicial Code was reformulated to state that a monthly premium in the amount of the difference between 55% of the average monthly salary earned in the position of judge held during the last year of service and the State retirement pension rate was to be added to the retirement pension allocated in accordance with the Law on State Retirement Pensions to a person who had worked for ten or more years as a judge and who had terminated office on the grounds envisaged by point 1 of the first paragraph of Article 167 of the Judicial Code. It further stated that the amount of the premium is recalculated in case of recalculation of the State retirement pension and an increase of rates of judges’ salaries in respect of the last position as a judge held by the person concerned.
5. Government Decree No. 1041-A of 5 August 2010 considering urgent the draft Law on Making Amendments to the Law on Entry into Force of the Judicial Code (ՀՀ կառավարության 2010թ. օգոստոսի 5-ի որոշումը «Դատական օրենսգիրքն ուժի մեջ մտնելու մասին ՀՀ օրենքում փոփոխություններ կատարելու մասին» ՀՀ օրենքի նախագիծն անհետաձգելի համարելու մասին)
By this Decree the Government, relying on the relevant provisions of the Law on Rules of Procedure of the National Assembly, considered the draft Law on Making Amendments to the Law on Entry into Force of the Judicial Code to be urgent.
6. The Law on the Enforcement of Judicial Acts (in force from 1 January 1999)
According to Article 42 § 1 (6) the bailiff terminates the enforcement proceedings if the judicial act, in respect of which a writ of execution was issued, has been quashed.
7. Decision of the Court of Cassation of 6 November 2009 upon appeal by Olga Hovhannisyan, Hamlet Gevorgyan and Marat Katvalyan, retired judges, against the judgment of the Administrative Court of 29 January 2009 in the case Olga Hovhannisyan, Hamlet Gevorgyan and Marat Katvalyan against the Ministry of Labour and Social Affairs concerning annulation of administrative acts and recalculation of retirement pensions
By this decision the Court of Cassation interpreted Article 2.1 of the Law on entry into force of the Judicial Code of Armenia (as in force at the relevant time). It found, in particular, that the retirement pensions of judges who had worked for ten or more years as a judge in the Court of Cassation, Court of Appeal or courts of first instance and who had retired on the grounds envisaged by point 1 of the first paragraph of Article 167 of the Judicial Code, were subject to recalculation.
COMPLAINT
The applicant complains under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention that the final and binding judgment of 1 December 2009 in his favour was deliberately not enforced by the authorities. In particular, he complains that the social security services openly refused to comply with the judgment claiming that there was no legal mechanism for its implementation and that the Department for the Enforcement of Judicial Acts terminated the enforcement proceedings. He finally complains that the authorities initiated amendments to the relevant legislation with a view to reopening the case and preventing the enforcement of the judgment.
QUESTIONS TO THE PARTIES
1. Has the applicant exhausted the domestic remedies in respect of his complaint under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, as required by Article 35 § 1 of the Convention?
2. If so, was the non-enforcement of the judgment of the Administrative Court of 1 December 2009 compatible with the requirements of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1? In particular:
- was the manner in which the enforcement proceedings were conducted compatible with the requirements of the above Articles?
- were the reopening of the proceedings after the judgment in question had become final and binding, the amendments to the Law on Entry into Force of the Judicial Code and the national courts’ subsequent reliance on them in the applicant’s case compatible with the requirements of the above Articles?
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