20 May 2009

SECOND SECTION

Application no. 6705/09 by Abel GEGIA against Georgia lodged on 19 November 2008

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Abel Gegia, is a Georgian national who was born in 1926 and lives in Tbilisi .

A. The circumstances of the case

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

The applicant had served in the Public Prosecutor ’ s Office and the judicial system since 1949. The last post he held, prior to his retirement in 1986, was a prosecutor in the Didube District Prosecutor ’ s Office in Tbilisi .

On an unspecified date the applicant was granted a pension under section 40 § 10 of the Organic Act of 21 November 1997 on the Public Prosecutor ’ s Office (“the Prosecutor ’ s Act”), which provision was introduced by an Amendment of 30 June 2004. This provision stated that a retired prosecutor was entitled, for life, to a pension equal to the salary of a serving prosecutor and adjustable in accordance with any changes in the latter ’ s salary scales. The amount of the applicant ’ s pension was thus fixed at 690 Georgian laris (GEL) (EUR 317 [1] ), which corresponded, at that time, to the salary of a serving prosecutor of comparable grade, plus the applicable seniority bonuses under section 40(1) § 5 of the Prosecutor ’ s Act.

By an Amendment of 23 December 2005 to the Prosecutor ’ s Act (“the Amendment of 23 December 2005”), which entered into force on 1 January 2006, sections 40 § 10 and 40(1) § 5 were removed. Concurrently, the State Social Insurance Fund (“the Fund”), the agency in charge of payment of pensions and other social benefits, reduced the amount of the applicant ’ s pension to GEL 560 (EUR 260).

On 17 July 2006 the applicant brought an action against the Fund in damages, requesting that his pension be adjusted in accordance with the salary of a prosecutor of comparable grade in a District Prosecutor ’ s Office, which had been raised to GEL 1,430 (EUR 659) by an order of the General Prosecutor of 18 January 2006, and that the consequential arrears be compensated with effect from January 2006.

The Fund replied that the applicant ’ s pension had been reduced on the basis of sections 7, 36 §§ 1 and 2 and 41 § 1 of the Act of 27 December 2005 on State “Compensation” and “Scholarships” [ kanoni saxelmwifo kompensaciisa da saxelmwifo akademiuri stipendiis Sesaxeb ] (“the Compensation Act”).

On 14 December 2006 the Tbilisi City Court dismissed the applicant ’ s claim for readjustment of his pension, stating that the respondent Fund had correctly applied the Compensation Act to the situation.

On 7 March 2007 the applicant lodged an appeal, complaining, inter alia , that ex post facto application of the Amendment of 23 December 2005 and the Compensation Act was arbitrary, since none of those statutes contained an indication of retroactive force as required by section 47 § 1 of the Act of 29 October 1996 on the Normative Acts. Assuming that the temporal application of the Prosecutor ’ s Act and the Compensation Act coincided, as the two statutes regulated the pension rights in a contradictory manner, preference should be given to the former because it was an organic statute and thus more authoritative than the latter.

On 15 October 2007 the Tbilisi Appellate Court dismissed the applicant ’ s appeal of 7 March 2007. As regards the argument that the Amendment of 23 December 2005 and the Compensation Act could not legitimately apply ex post facto because they did not contain an indication to that effect, as required by section 47 § 1 of the Act on Normative Acts, the court replied that, firstly, the applicant ’ s “legal liability” had not been aggravated within the meaning of second paragraph of the same provision. Secondly, as the Compensation Act had simply redefined the scope of the applicant ’ s social benefit, such legal effect could not be equated with retroactive application, in the genuine sense of that notion. Noting that the impugned sections 40 § 10 and 40(1) § 5 of the Prosecutor ’ s Act had been repealed by the time the Compensation Act had entered into force, the appellate court concluded that the two statutes did not overlap.

The applicant then lodged a cassation appeal, reiterating his previous arguments. On 4 June 2008 the Administrative Chamber of the Supreme Court, dispensing with an oral hearing, rejected his appeal as inadmissible under Article 34 § 3 (a) of the General Administrative Code. The cassation instance stated that the applicant ’ s case was not important for the consistent development of the case-law on the matter, as the analogous issue had already been resolved by its Grand Chamber in the case of Aleksi Bakradze (see below).

The case file contains a copy of the applicant ’ s pension card, according to which he had benefited from a lifelong pension of a retired prosecutor, in the amount of GEL 425 (EUR 195), since 1 October 2003, i.e. before sections 40 § 10 and 40(1) were inserted into the Prosecutor ’ s Act.

B. Rele vant domestic law and practice

1. The Organic Act of 29 October 1996 on Normative Acts, as worded at the material time

Pursuant to sections 9, 19, 22 and 24, there was a strict hierarchy between normative acts. In this hierarchy, an organic statute had more authority than an ordinary statute.

Section 25 § 1 stated that if normative acts of different hierarchical levels contradicted each other, preference had to be given to the highest.

Section 47 § § 1 and 2

“1. A normative act can have retroactive force only if explicitly stated.

2. A normative act which introduces or aggravates legal liability shall not have retroactive force.”

2. The Act of 3 December 2002 on the Social Protection of Prosecutors (“the Social Protection Act”), repealed on 1 January 2005

Section 6, which entered into force on 1 February 2003, stated that a retired prosecutor was entitled, for life, to a pension equal to the salary of a serving prosecutor (“the equivalence clause”) and adjustable in accordance with any changes in the latter ’ s rate (“the adjustment clause”).

Amendments of 30 June and 29 December 2004 to the Organic Act of 21 November 1997 on the Public Prosecutor ’ s Office repealed the Social Protection Act but continued to regulate the pension rights in a similar way, by retaining both the “equivalence” and “adjustment” clauses (see below).

3. The Organic Act of 21 November 1997 on the Public Prosecutor ’ s Office, in force at the material time

The Amendment of 30 June 2004 introduced section 40 § 10, which stated as follows:

“A staff member of the Public Prosecutor ’ s Office with at least twenty-five years of professional experience in the law-enforcement, justice, State security or judicial authorities (of which no less than four years must be spent in the prosecution service) shall be granted, upon retirement, a lifetime pension in an amount equal to the salary of a prosecutor ..., adjustable in accordance with changes in the latter ’ s salary scales...”

This Amendment also introduced section 40(1), paragraph 5 of which (re-amended on 29 December 2004) entitled prosecutors to seniority bonuses in addition to their salaries.

Sections 40 § 10 and 40(1) § 5 entered into force on 1 January 2005 but were removed by an Amendment of 23 December 2005. That Amendment entered into force on 1 January 2006 and did not contain an indication of retroactive force.

4. The Act of 27 December 2005 on State “Compensation” and “Scholarships”

This Act, which entered into force on 1 January 2006, consolidated the payment of retirement and various other social pensions and benefits, previously regulated by several distinct statutes, under the single legal regime of “State compensation” and “scholarships”.

Section 7 – “The maximum level of State compensation/scholarships”

“The amount of State compensation/scholarships shall not exceed 560 [(EUR 260)] Georgian laris.”

Section 36 §§ 1 and 2 (e) – “ Maintenance of rights obtained prior to the entry into force of this Act ”

“1. Upon the entry into force of the present Act, pensions (including any additional pension bonuses) granted under the statutes listed in the second paragraph of this section shall be called “State compensation” or “scholarship”, as applicable. The payment of such compensation/scholarship shall be continued on the assumption that they have been granted on the basis of the present Act.

2. State compensation/scholarships granted under the statutes listed below, that is prior to the entry into force of the present Act, shall not be readjusted in accordance with Chapters III, IV, V and VI: ...

(e) The Organic Act on the Public Prosecutor ’ s Office...”

Chapters III, IV, V and VI (sections 8-22) contained regulatory rules on the accrual of title to State compensation or scholarships, calculation of their amounts, the modalities of payment and some other administrative issues associated with the social-security regime newly created under that Act.

Section 41 § 1 – “Measures which have to be implemented upon the entry into force of the present Act”

“1. Upon the entry into force of the present Act, the competent agency shall ensure that the amount of compensation or scholarship granted under section 36 § 2 is readjusted in accordance with section 7.”

5. The case of “Aleksi Bakradze”

The case Aleksi Bakradze concerned an analogous complaint of a retired prosecutor, calling into question the application of the Compensation Act with respect to the pension rights obtained under sections 40 § 10 and 40(1) § 5 of the Prosecutor ’ s Act.

In a judgment of 21 June 2007, the Grand Chamber of the Supreme Court of Georgia ruled that the application of the Compensation Act with respect to pension rights obtained prior to its entry into force was compatible with both specific legal provisions and general principles of law.

For more details of this case, see Bakradze v. Georgia (no. 1700/08, communicated by the Court on 12 May 2009 ).

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention about the domestic courts ’ failure to apply properly the relevant domestic law and the Court ’ s case-law to his situation. In particular, he alleges that the State should have been recognised a private party in the dispute with him. The applicant further considers that the appellate instance was biased against him because, during the deliberations, the hearing judge consulted the Grand Chamber ’ s judgment of 21 June 2007 in the Aleksi Bakradze case. He further claims that the length of the domestic proceedings breached the “reasonable time” requirement of the above provision.

Dissatisfied with the outcome of the proceedings, the applicant invokes Article 13 of the Convention to denounce the ineffectiveness of the judiciary.

Finally, under Article 1 of Protocol No. 1, he complains about the reduction of his retirement pension.

QUESTION TO THE GOVERNMENT

In view of the applicant ’ s inability to benefit from a lifetime pension “equivalent” and “adjustable” to the salary of a serving prosecutor, including applicable seniority bonuses, as established by section 6 of the Act of 3 December 2003 on the Social Protection of Prosecutors and maintained by sections 40 § 10 and 40(1) § 5 of the Public Prosecutor ’ s Office Act, was the applicant deprived of his possessions contrary to Article 1 of Protocol No. 1? In particular, was the alleged interference with the applicant ’ s property rights effected in the public interest and in accordance with the conditions provided for by law, within the meaning of that provision?

[1] Here and elsewhere, approximate conversions are given in accordance with the exchange rate on 30 March 2009.