SECOND SECTION

DECISION

Application no. 43806/19 Ä°skender DOÄžAN against Turkey

The European Court of Human Rights (Second Section), sitting on 16 February 2021 as a Committee composed of:

Aleš Pejchal, President, Egidijus Kūris, Carlo Ranzoni, judges, and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 6 August 2019,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Ä°skender DoÄŸan, is a Turkish national, who was born in 1959 and lives in Denizli. He was represented before the Court by Mr M.R. Ä°nal, a lawyer practising in Ankara.

The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 18 January 2012 the applicant applied to the Social Security Institution (“the SGI”) for retirement pension.

On 2 February 2012 the SGI granted the applicant a retirement pension under the social security scheme regulated in Section 4 (1) (a) of Law no. 5510.

On 28 December 2012 the SGI revoked the applicant ’ s pension on the grounds that the applicant had been granted the retirement pension as a result of an incorrect calculation, indicating that social security scheme, under which the applicant could have sought a pension, had needed to be determined in conformity with Section 8 of the Law no. 2829, according to which the old age pension and other social security benefits of persons who had worked under different social security schemes over the years were to be governed by the scheme under which the concerned person had worked the longest in the last seven years of actual working term prior to retirement. The SGI maintained that the applicant had worked longer in affiliation to the social security scheme under Section (4) (1) (b) of Law no. 5510 than the social security scheme under Section (4) (1) (a) of the same Law in the last seven years of actual working term. The SGI further established that the applicant was to repay it the retirement pensions that he had received, namely 9,266.44 Turkish liras (“TRY”) (equivalent of approximately 3,940 euros (EUR) at the material time), without interest provided that he paid it within twenty-four months after he was notified of the order of repayment.

On 27 February 2013 the applicant took an action before the Denizli Labour Court seeking for continuation of his retirement pension and annulment of the administrative decision concerning repayment of the retirement pensions that he had received.

On 15 October 2014 the Denizli Labour Court found for the applicant, indicating that he had worked the longest in affiliation to the social security scheme under Section (4) (1) (a) of Law no. 5510 in the last seven years prior to his application to the SGI for retirement pension.

On 3 December 2015 the Court of Cassation quashed the judgment of the first instance court on the basis that the term of “seven years of actual working term” had not amounted to calendar year but total of the days equivalent to seven years on which the applicant had actually worked, that the applicant had therefore failed to meet the requirement to have worked longest in affiliation to the social security scheme regulated in Section (4) (1) (a) of Law no. 5510 in the last seven years of actual working term, for entitlement to a retirement pension.

On 2 November 2016 the Denizli Labour Court of First Instance decided to comply with the findings of the Court of Cassation and dismissed the applicant ’ s case with the same reasoning.

On 25 January 2018 the Court of Cassation upheld the judgment of the Denizli Labour Court dismissing the applicant ’ s case.

On 9 March 2018 the applicant lodged an individual application with the Constitutional Court under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention.

On 8 July 2019 the Constitutional Court found the applicant ’ s complaints about his right to fair hearing and his right to peaceful enjoyment of his possessions inadmissible for being manifestly ill-founded.

As to the applicant ’ s complaint about the length of proceedings, the Constitutional Court held that that compliant had been inadmissible for non-exhaustion of domestic remedies in view of the new domestic remedy established by Law no. 6384 for complaints concerning, inter alia , the length of proceedings.

Meanwhile, in July 2019 the applicant was granted a retirement pension under Section (4) (1) (b) of Law no. 5510 as he fulfilled the conditions for a retirement pension under that scheme.

COMPLAINTS

The applicant complained that the aforementioned facts had given rise to a violation of his rights under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention.

THE LAW

The applicant submitted that cancellation of his retirement pension and the domestic authorities ’ request from him to repay the pensions that he had received amounted to a violation of his rights. He invoked Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention.

The Court considers that the applicant ’ s complaints should be examined solely from the standpoint of the right to peaceful enjoyment of possessions within the meaning of Article 1 of Protocol No. 1, bearing in mind that, since it is master of the characterisation to be given in law to the facts of the case, it is not bound by the characterisation given by an applicant or a government (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, ECHR 2018).

The Court recalls at the outset that although no right to a pension as such is guaranteed by the Convention, the payments of contributions to a social security fund may create a property right protected by Article 1 of Protocol No. 1 (see Docevski v. the Former Yugoslav Republic of Macedonia (dec.), no. 66907/01, 10 November 2005). Moreover, having regard to the pecuniary nature of the entitlement to a given social security benefit, Article 1 of Protocol No. 1 may be applicable without it being necessary to rely solely on the link between the entitlement and the obligation to “pay taxes or other contributions” (see the Gaygusuz v. Austria, judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1142, § 41, and Walden v. Liechtenstein (dec.), no. 33916/96, 16 March 2000). However, even if it is assumed that Article 1 of Protocol No.1 guarantees a person ’ s certain social insurance benefits, including the right to a pension, it cannot be interpreted as entitling that person to a pension of a particular amount (see Müller v. Austria , 5849/ 72, Commission Report of 1 October 1975, DR 43, pp. 25, 31).

In the present case the Court observers that the applicant ’ s entitlement to pension under Section 4 (1) (a) of Law no. 5510 was established by the decision of the Social Security Institution. The Court notes that where the amount of a benefit is reduced or discontinued by national authorities, this may constitute an interference with possessions which requires to be justified (see Kjartan Ásmundsson v. Iceland , no. 60669/00, § 40, ECHR 2004 ‑ IX, and Rasmussen v. Poland , no. 38886/05, § 71, 28 April 2009).

The Court, on the other hand, has held, in the context of the discontinuation of a social benefit, that bearing in mind the importance of social justice, public authorities should not be prevented from correcting their mistakes, even those resulting from their own negligence. Holding otherwise would be contrary to the doctrine of unjust enrichment. It would also be unfair to other individuals contributing to the social security fund, in particular those denied a benefit because they failed to meet the statutory requirements. Lastly, it would amount to sanctioning an inappropriate allocation of scarce public resources, which in itself would be contrary to the public interest (see Čakarević v. Croatia , no. 48921/13, § 79, 26 April 2018).

The Court further recalls that where the issue is not discontinuation of a benefit but an obligation imposed on the persons to repay benefits already received in reliance on an administrative decision , it is more pertinent to recall the Court ’ s case-law to the effect that mistakes solely attributable to State authorities should in principle not be remedied at the expense of the individual concerned, especially where no other conflicting private interest is at stake. The Court has also held that 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 and consistent manner (ibid., § 80).

Under these considerations, the Court observes that the applicant, unlike the situation prevailing in the case of Čakarević v. Croatia (cited above) , has failed not only to allege that the pension in question was his only source of income, but also to establish that he was in poor health, unemployed and without any income. The Court also observes that the applicant continued to contribute to the social security scheme under Section (4) (1) (b) of Law no. 5510 until July 2019, when he was again granted a retirement pension, which leads the Court to conclude that he had not been left in a vulnerable situation on account of the national authorities ’ decision to cease his retirement pension and order him to repay the sum that he had received.

The Court further observes that the applicant was provided with an opportunity with repaying the sum, which had been paid to him as a result of an incorrect calculation for only seven months, without interest provided that he paid it within twenty-four months after he was notified of the order of repayment.

In view of these considerations, the Court is of the opinion that the applicant was not left with an excessive individual burden on account of the national authorities ’ decision to cease his retirement pension and the order concerning repayment of the sums that he had already received.

Therefore, the application is manifestly ill-founded and should be rejected under Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 25 March 2021 .

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Hasan Bakırcı Aleš Pejchal Deputy Registrar President