Communicated on 18 December 2014

THIRD SECTION

Application no. 44338/13 Lyova GABRIELYAN against Armenia lodged on 26 June 2013

STATEMENT OF FACTS

The applicant, Mr Lyova Gabrielyan , is an Armenian national, who was born in 1940 and lives in Gyumri . 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 1982 until 2005. From 1999 until 2005 he was a judge at the Shirak Regional Court ( Õ‡Õ«Ö€Õ¡Õ¯Õ« Õ´Õ¡Ö€Õ¦Õ« Õ¡Õ¼Õ¡Õ»Õ«Õ¶ Õ¡Õ¿ÕµÕ¡Õ¶Õ« Õ¤Õ¡Õ¿Õ¡Ö€Õ¡Õ¶ ).

By presidential decree of 5 February 2005 the applicant ’ s term of office was terminated because he had reached retirement age.

The applicant was allocated a judge ’ s retirement pension at the rate of 75% of his last salary.

On 1 January 2009 judges ’ salaries doubled.

On 23 March 2009 the applicant applied to the Ministry of Labour and Social Affairs ( ՀՀ աշխատանքի և սոցիալական հարցերի նախարարություն ) seeking adjustment of his retirement pension, including the monthly premium, to the new salary rates for judges.

By letter of 9 April 2009 the Ministry of Labour and Social Affairs refused the applicant ’ s request on the ground that, according to Article 2.1 of the Law on Entry into Force of the Judicial Code, premiums added to retirement pensions are calculated at the time of allocating the pension and that the law did not envisage any possibility for recalculation of premiums already allocated.

On 1 7 November 2009 and 1 December 2009 the applicant applied to the Ministry of Labour and Social Affairs and to the State Social Security Service ( ՀՀ աշխատանքի և սոցիալական հարցերի նախարարության սոցիալական ապահովության պետական ծառայություն ) with a request to recalculate his retirement pension . He referred to a decision of 6 November 2009 of the Court of Cassation ( ՀՀ վճռաբեկ դատարան ) in a case brought by other former judges which concerned the very issue raised in his request and stated, in particular, that judges ’ retirement pensions and the monthly premium were subject to recalculation based on the new rates of judges ’ salaries.

By letters of 25 December 2009 and 1 February 2010 the Ministry of Labour and Social Affairs and the State Social Security Service respectively refused to grant the applicant ’ s request, stating that the Ministry had presented the issues of implementation of the decision of the Court of Cassation of 6 November 2009 and calculation of premiums payable to judges to the Government with a view to organising a discussion with competent authorities.

It appears that the applicant was not subsequently informed of any developments.

The first set of administrative proceedings

On 1 February 2010 the applicant lodged a claim with the Administrative Court ( Õ€Õ€ Õ¾Õ¡Ö€Õ¹Õ¡Õ¯Õ¡Õ¶ Õ¤Õ¡Õ¿Õ¡Ö€Õ¡Õ¶ ) against the Ministry of Labour and Social Affairs seeking to annul the administrative acts of 25 December 2009 and oblige the respondent to recalculate his retirement pension starting from 1 January 2009. In this regard he relied on the decision of the Court of Cassation of 6 November 2009.

Upon the request of the Administrative Court, on 26 February 2010 the applicant sent a copy of his claim to the Ministry of Finance ( Õ€Õ€ Ö†Õ«Õ¶Õ¡Õ¶Õ½Õ¶Õ¥Ö€Õ« Õ¶Õ¡Õ­Õ¡Ö€Õ¡Ö€Õ¸Ö‚Õ©ÕµÕ¸Ö‚Õ¶ ).

On 1 5 June 2010 the Administrative Court granted the applicant ’ s claims in their entirety. In doing so, the court relied on the decision of the Court of Cassation of 6 November 2009 as a binding precedent and concluded that the applicant ’ s pension, including the additional monthly premium, was subject to recalculation by the Ministry of Labour and Social Affairs as from 1 January 2009.

On 2 5 Ju ne 2010 the Ministry of Labour and Social Affairs lodged an appeal on points of law against this judgment.

By its decision of 27 October 2010 the Court of Cassation took over the case.

On 27 May 2011 the Court of Cassation rejected the appeal on points of law and upheld the judgment of the Administrative Court of 18 June 2010. In doing so the Court of Cassation found, in particular, that the legislation in force directly provided for the possibility of recalculation of the additional monthly premium to the allocated pension.

On 2 1 June 2011 the Administrative Court issued a writ of execution in respect of the judgment of 15 June 2010 stating that it had become final on 27 May 2011.

The applicant applied to the Minister of L abour and Social Affairs with a request to implement the necessary measures with a view to complying with the final and binding judgment of 15 June 2010.

By letter of 26 August 2011 the applicant was informed that the law did not provide for a possibility to recalculate the premiums already allocated and therefore no financial means had been allocated from the 2011 State budget for that purpose. He was further informed that the issue had been presented to the relevant authorities.

Amendments to the legislation on allocation an d 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 earned 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 second set of administrative proceedings

On 16 September 2011 the Ministry of Finance lodged an appeal with the Administrative Court of Appeal against the judgment of 15 June 2010 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 for 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 18 June 2010 had come to its knowledge as a result of a letter from the Ministry of Labour and Social Affairs of 15 September 2011.

In his reply the applicant argued, inter alia , that already on 26 February 2010 he had informed the Ministry of Finance about the proceedings by registered mail, as instructed by the Administrative Court. However, the Ministry had not expressed willingness to be involved in the proceedings, which right it had under Article 16 § 2 of the Code. He further argued that, given the Ministry of Labour and Social Affairs and the State Social Security Service ’ s replies to his requests, and the initiation by the Government of a draft law on making amendments to the Law on Entry into Force of the Judicial Code, the Minister of Finance could not have been unaware of the judgment in question, in view of the fact that the relevant discussions had taken place with the necessary participation of the Ministry of Finance. He finally argued that in such circumstances the appeal lodged by the Minister of Finance was aimed solely at avoiding the enforcement of the final and binding judgment in his favour .

On 28 October 2011 the Administrative Court of Appeal ( ՀՀ վարչական վերաքննիչ դատարան ) quashed the judgment of the Administrative Court of 15 June 2010 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 stated, inter alia, that the fact that a copy of the applicant ’ s claim had been sent to the Ministry of Finance at the relevant time was not sufficient to conclude that the court had complied with its obligation to involve the latter in the proceedings.

On 25 November 2011 the applicant lodged an appeal on points of law against the decision of the Court of Appeal of 28 October 2011. He reiterated his statement that the Ministry of Finance had been informed by him of the proceedings, according to the Administrative Court ’ s request. He also argued that the Administrative Court of Appeal had no jurisdiction to examine the case after it had been examined in the final instance by the Court of Cassation. Furthermore, the Court of Appeal had reached a wrong conclusion in relation to the question of when the Ministry of Finance had become aware, or ought to have become aware, of the judgment in question. In this connection he pointed out that, according to Article 117.2 § 3 of the Code, persons who had not been involved in the proceedings had the right to lodge an appeal within a period of three months starting from the moment when they knew or ought to have known about the existence of a judicial act affecting their rights.

On 14 December 2011 the Court of Cassation declared the applicant ’ s appeal on points of law inadmissible for lack of merit.

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 30 October 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 January 2009.

The applicant lodged an appeal against this judgment. On 28 February 2013 the Administrative Court of Appeal rejected his appeal and upheld the judgment on similar grounds.

The applicant lodged an appeal on points of law. By its decision of 23 April 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)

Article 167 § 4 (2) states that a judge ’ s term of office is terminated if he has reached the age of 65 (maximum age for office).

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 2 of the fourth paragraph of Article 167 of the Judicial Code.

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 2 of the fourth 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 in 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 2010 թ . 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 annulment 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 2 of the fourth 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 15 June 2010 in his favour was deliberately not enforced by the authorities. In particular, he complains that the Ministry of Labour and Social Affairs refused to comply with the judgment and that the authorities initiated amendments to the relevant legislation with a view to reopening the case and preventing its enforcement.

QUESTIONS TO THE PARTIES

1. Has the applicant complied with the requirements of Article 35 § 1 of the Convention in relation to his complaint under Article 6 and Article 1 of Protocol No. 1? In particular:

- did the applicant submit his complaint within the period of six months from the date on which the final decision was taken in relation to the above complaint?

- did the applicant exhaust the domestic remedies available to him with regard to the above complaint?

2. If so, was the non-enforcement of the judgment of the Administrative Court of 15 June 2010 compatible with the requirements of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1? In particular:

- were the measures, if any, taken by the Ministry of Labour and Social Affairs with a view to securing the execution of the judgment 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?