Resolution CM/ ResDH (2011)223 [1]

Execution of the judgment of the European Court of Human Rights

Kjartan Ásmundsson against Iceland

(Application No. 60669/00, judgment of 12 October 2004, final on 30 March 2005)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns discriminatory interference with the applicant ’ s right to respect for his property on account of the lapse of his right to a disability pension following an amendment to the legislation (violation of Article 1 of Protocol No. 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ ResDH (2011)223

Information about the measures to comply with the judgment in the case of

Kjartan Ásmundsson against Iceland

Introductory case summary

The case concerns discriminatory interference with the applicant ’ s right to respect for his property.

Following an industrial accident in 1978, the applicant was assessed to be 100% disabled and incapable of continuing to work as a seaman. He was granted a disability pension. In 1992, the method of evaluating disability was changed so that disability was no longer assessed in relation to the ability to perform the same work, but rather work in general. Under the terms of the new rules, the applicant ’ s degree of disability was reassessed at 25%, i.e. less than the minimum threshold of 35%. Accordingly, after a transitional period of 5 years, his right to a disability pension lapsed, in 1997.

The European Court found that the new pension rules had been prompted by legitimate concerns and were based on objective criteria. However, it resulted in the applicant ’ s being completely deprived of the disability pension which at the time constituted no less than a third of his gross monthly income and which he had received for nearly 20 years. In addition, the fact that the vast majority of persons in receipt of disability pensions continued to receive benefits as before (although for some at a reduced rate) whilst a small minority (54 persons including the applicant) had totally lost their pension entitlement could be considered as differential treatment. Against this background, the Court concluded that the applicant was made to bear an excessive and disproportionate burden (violation of Article 1 of Protocol No. 1).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

75 000 EUR

1 500 EUR

20 000 EUR

96 500 EUR

Paid on 18/04/2005

b) Individual measures

The European Court awarded just satisfaction compensating the loss of the applicant ’ s entitlement to a disability pension. It reduced the amounts claimed by the applicant, indicating that it could not award him the full amount claimed because a reasonable and proportionate decrease in his disability pension rights, having regard to the new criteria, would be in conformity with his rights under the Convention (§ 51). In particular, the Court noted that ”as an individual, the applicant was made to bear an excessive and disproportionate burden which, even having regard to the wide margin of appreciation to be enjoyed by the State in the area of social legislation, cannot be justified by the legitimate community interests relied on by the authorities. It would have been otherwise had the applicant been obliged to endure a reasonable and commensurate reduction rather than the total deprivation of his entitlements” (§ 45).

The applicant ’ s retirement pension became payable in July 2009. It is to be noted that the applicant made no claim before the European Court concerning any possible reduction of his retirement pension resulting from the violation found.

II. General measures

The authorities indicated that a few people in a situation similar to that of the applicant had contacted the Ministry of Justice, which advised them to contact the office of the Attorney General had to claim compensation. The Icelandic authorities consider that the other 53 people concerned are sufficiently informed of the possibility to apply to the Attorney General for compensation, since the judgment of the European Court was published in Icelandic on the homepage of the Ministry of Justice.

III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case, that these measures will prevent similar violations and that Iceland has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 2 December 2011 at the 1128th Meeting of the Ministers’ Deputies