SECOND SECTION
Application no. 19828/13
László BÉRES
against Hungary
lodged on 21 March 2012
STATEMENT OF FACTS
The applicant, Mr László Béres, is a Hungarian national, who was born in 1957 and lives in Budapest. He is represented before the Court by Mr P. Bárándy, a lawyer practising in Budapest.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 4 October 2010 the National Police Department informed the applicant, a colonel in the police, that his appointment as a senior police commander would be terminated. He was offered the choice between accepting a lower-ranking position and retiring on a ‘service pension’ (szolgálati nyugdíj) of a monthly amount of 283,035 Hungarian forints[1] (in 2012). The applicant chose the latter option and retired by 30 December 2010.
On 28 November 2011 Parliament enacted Act no. CLXVII, which entered into force on 1 January 2012. According to its paragraph 5(1), service pensions like that of the applicant – provided that the person concerned was born in 1955 or after – were transformed into a ‘service allowance’ (szolgálati járandóság), subject to personal income tax (at the material time, 16% flat rate). Should the tax rate evolve, the allowance will be taxed accordingly.
This legislation, which concerned all ex-members of the law enforcement agencies, fire brigades and defence forces, entails that beneficiaries of the service pension are no longer ‘pensioners’ for the purposes of the law but become entitled to receive the service allowance, that is, a certain social allowance subject to personal income tax, unlike pensions. Moreover, should the receiver of the allowance be convicted of certain intentional offences, the disbursement of the allowance will apparently be interrupted, again unlike that of pensions. Furthermore, it appears that should the beneficiary acquire income other than the allowance (that is, from “black work”), the entitlement may be removed as a sanction. Lastly, as opposed to pensioners, the receivers of the allowance are no longer entitled to various miscellaneous benefits in kind, the availability of which is dependent on the status of pensioner.
COMPLAINTS
The applicant complains under Article 1 of Protocol No. 1, read alone and in conjunction with Articles 13 and 14 of the Convention that the abolition of the service pensions – the suddenness of which made it impossible to make the necessary personal adjustments – amounts to an unjustified and discriminatory interference with the peaceful enjoyment of possessions, not susceptible to an effective domestic remedy.
QUESTIONS TO THE PARTIES
1. Has the applicant exhausted domestic remedies, as required by Article 35 § 1 of the Convention?
2. Has there been an interference with the applicant’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1?
3. Does that interference impose an excessive individual burden on the applicant (see Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 59, ECHR 1999-V)?
4. In the latter context, the parties are invited to elaborate the differences between the status of those once on service pension and of those receiving service allowance, with particular regard to the availability of various in-kind benefits before and after the legislative change in question.
5. Can it be said that the impugned measure has been targeted at those in the applicant’s situation in order to redress an anomalous situation of unjustified privileges incarnated by pensions of excessively high amounts?
6. Has the legislature afforded the applicant a transitional period within which he would be able to adjust himself to the new rules (see, mutatis mutandis, Lakićević and Others v. Montenegro and Serbia, nos. 27458/06, 37205/06, 37207/06 and 33604/07, § 72, 13 December 2011)?
7. Lastly, the Government are requested to submit whether, to their knowledge, a similar amendment to the pension regime of ex-servicemen has been put in place in one or more Member States of the Council of Europe.
[1] Some 940 euros
Full & Egal Universal Law Academy