FOURTH SECTION

DECISION

Application no. 20797/14 Iván GARA against Hungary

The European Court of Human Rights (Fourth Section), sitting on 24 March 2020 as a Committee composed of:

Faris Vehabović , President, Iulia Antoanella Motoc, Carlo Ranzoni, judges, and Ilse Freiwirth, Deputy Section Registrar ,

Having regard to the above application lodged on 7 March 2014,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Iván Gara , is a Hungarian national, who was born in 1951 and lives in Budapest. He was represented before the Court by Mr D.A. Karsai, a lawyer practising in Budapest.

2 . The Hungarian Government (“the Government”) were represented by their Agent, Mr Z. Tallódi, Ministry of Justice.

3 . On 11 June 2019 the applicant died. His widow, Ms Mary Pearl Lasseter, a national of the United States who was born in 1963, submitted that she intended to continue the case in the applicant ’ s stead.

The circumstances of the case

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

5 . From 1 January 1998 the applicant was member of a private pension fund. On 1 May 2012 he changed the fund and became member of ING Magánnyugdíjpénztár . When introducing the application, his savings held by this private fund amounted to 5,339,874 Hungarian forints (HUF) (approximately 16,000 euros (EUR)).

6 . He reached the retirement age on 8 September 2013. The pension authorities established his monthly state pension due. Because he was member of a private fund, only 76.75% – rather than the entirety – of the relevant amount started to be disbursed by the state Pension Fund, that is to say, HUF 283,095 (approximately EUR 850) per month. The remaining portion of 23.25% to be paid by the private pension fund was not disbursed, apparently because ING Magánnyugdíjpénztár considered that the relevant legislation, under which it was to make the payments, was not available.

7 . Had the applicant opted for quitting the private fund and integrating fully with the state fund, his monthly pension would have increased by HUF 85,754 (approximately EUR 250); and additionally he would have received the yields of his earlier investment as a lump sum payment of HUF 2,329,486 (approximately EUR 7,000). By contrast, by staying in the private fund, the amount theoretically available from the private fund amounted to only HUF 18,928 (approximately EUR 60) per month, as of 12 August 2013. Because of the 8.38% yield of the applicant ’ s investment with the fund, this figure increased to HUF 21,340 (approximately EUR 70) per month by 25 February 2014, according to the information the applicant received from the private fund. (According to section 30/ A (1) in fine of Act no. LXXXII of 1997, the value of the annuity must be recalculated annually including the accruing of yields, when the individual notification of the account is being dispatched.)

8 . On 30 June 2014 ING Magánnyugdíjpénztár merged with Horizont Magánnyugdíjpénztár .

9 . The Government submitted that from 1 January 2015 onwards the legal context allowed for the one-time, lump sum payments of private pension fund investments in cases such as the applicant ’ s. The applicant submitted that, according to information received from his previous pension fund, no specific amendments on how private pension funds should calculate and perform payments of life annuities had been in place at that time.

10 . On 21 July 2017 the Board of Directors of Horizont Magánnyugdíjpénztár modified its Services Regulations, allowing for the disbursement of private pension fund annuities. On 16 August 2017 the Hungarian National Bank approved the amendment.

11 . No information is available as to whether payments were made after the 2017 changes and if so, in what amount.

COMPLAINTS

12 . The applicant complained under Article 1 of Protocol No. 1 to the Convention that the belated state approval of the private pension fund payments amounted to a removal of his legitimate expectation to receive life annuity once retired. Moreover, he submitted under Article 13 that no remedy was available against that state of affairs.

THE LAW

13 . The applicant submitted that the state measure enabling the life annuity payments was delayed to such an extent that his property rights were violated. He relied on Article 1 of Protocol No. 1 which provides as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

14 . The applicant argued in particular that the late issuance of the relevant rules by the authorities prevented him from receiving the private portion of his pension from 2013 until 2017, representing an undue interference with his property rights. The Government disagreed.

15 . The Court notes at the outset that the impugned situation ceased to exist by 16 August 2017 with the state approval of the payments in question.

16 . As regards the period between September 2013 (the applicant ’ s retirement) and August 2017, the Court first notes the Government ’ s unrefuted submission that a one-time, lump sum payment became possible by 1 January 2015 at the latest.

17 . Secondly, the Court observes that the applicant could have re - joined the state Pension Fund , in which case his monthly pension would have increased significantly more than with the amount he expected from the private fund – and this together with a lump sum payment of his accumulated yields (see paragraph 7 above). Indeed, in this situation, the investment held by the private fund would have been transformed into part of his monthly income.

18 . Thirdly, the Court notes the investment character of the applicant ’ s fund held by the private pension fund, stated by the law and also shown by the evolution of its value between August 2013 and February 2014 according to a yield rate of 8.38% (see paragraph 7 above). This circumstance lends itself to the assumption that any payments withheld, in the period at issue, by the private fund for the alleged want of relevant legislation indeed remained part of the applicant ’ s investment; and the payments, once started, were to reflect the increased value. The Court notes at this juncture that the applicant submitted no information on whether payments were put in place after the 2017 changes and if so, in what amount.

19 . On the basis of the above elements, the Court considers that, in order to mitigate any hindrance experienced, the applicant had options at his disposal: notably, he could have returned to the state system securing a significantly higher state pension, could have requested a lump sum payment with accrued interests from the private fund after 1 January 2015, or else can be assumed to have been entitled to a monthly private pension payment reflecting the intervening yields of the investment including any withheld amount. The Court is therefore satisfied that, even assuming that the requisite specific legislation was missing until August 2017, the alleged omission of the authorities does not disclose any appearance of a violation of the applicant ’ s rights under Article 1 of Protocol No. 1. It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention.

20 . The applicant also raised a complaint under Article 13 of the Convention concerning the lack of any effective remedy for his property complaint.

21 . The Court observes that the applicant ’ s complaint under Article 1 of Protocol No. 1 is inadmissible within the meaning of Article 35 § 3 (a) of the Convention. It follows that he has no “arguable claim” of a violation of his rights under Article 1 of Protocol No. 1 for the purposes of Article 13 of the Convention.

22 . Accordingly, this part of the application is incompatible ratione materiae with the provision of the Convention within the meaning of Article 35 § 3 (a) and must be rejected, in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Ilse Freiwirth Faris Vehabović Deputy Registrar President