Information Note on the Court’s case-law 13

December 1999

Antonakopoulos, Vortsela and Antonakopoulou v. Greece - 37098/97

Judgment 14.12.1999 [Section III]

Article 6

Civil proceedings

Article 6-1

Access to court

Refusal by authorities to comply with court decision: violation

Legislative intervention in pending court proceedings: violation

Facts : In November 1969 the father of the first two applicants and husb and of the third resigned from his post as Court of Appeal judge and started receiving a retirement pension. On his death in June 1992 the right to part of that pension was transferred to the third applicant. In November 1994 the third applicant requested an adjustment of her late husband’s and her own pension. When this was refused by the State General Accounting Department, she applied to the Court of Audit. In May 1996 she amended her claims to seek an adjustment of her husband’s pension for the period D ecember 1991 – June 1992 and of her own pension for the period June 1992 – December 1995 in accordance with scales fixed for judges in service by a decision of the Justice and Finance Ministers of August 1995. In July 1996 the Court of Audit, basing its ju dgment on that decision, Law no. 2320/1995 and the Code of Civil and Military Pensions, allowed the third applicant’s claim in part. It ordered the State firstly to pay to both the third applicant and the two other applicants, namely her children, a supple mentary pension in respect of the pension owed to the third applicant’s husband for the period in question and, secondly, to pay the third applicant a supplementary pension in respect of her pension for the period in question. The decision of the State Gen eral Accounting Department was set aside. Judgment was served on that Department in July 1996 but the sums awarded were not paid. In July 1997 Law no. 2512/1997 was enacted. Section 3 of that statute provided that Law no. 2512/1995 could not be applied to the calculation of judges’ retirement pensions. Furthermore, any claim based on that statute was statute-barred, any pending judicial proceedings set aside and any sum paid out, other than pursuant to a final judgment, had to be refunded. In a judgment of December 1997 the Court of Audit, sitting as a full court, held that section 3 of the above-mentioned statute was unconstitutional and contrary to Article 6 of the Convention. On 1 July 1998 the Court of Audit dismissed an appeal lodged by the State. The a pplicants have still not received the amounts owing to them.

Law : Article 6 § 1: The instant case concerned the State’s duty to pay pension back payments to a civil servant’s successors pursuant to the legislation in force. The applicants had thus relied o n a subjective pecuniary right arising from specific provisions of the national legislation, which must be considered as a “civil” right. Accordingly, this Article was applicable.

The enforcement of a judgment of any court had to be considered as an integr al part of proceedings for the purposes of Article 6. If the authorities were to refuse or omit to enforce judgment, or to delay in doing so, the guarantees under Article 6 from which litigants had benefited during the judicial phase of the proceedings wou ld become purposeless. Furthermore, the principle of the rule of law and the notion of fair trial precluded any interference by the legislature with the administration of justice designed to influence the judicial outcome of a dispute to which the State wa s a party. In the present case the State General Accounting Department’s refusal to comply with the judgment of the Court of Audit of July 1996, which was final and enforceable for the period between that date and July 1997, had infringed the applicants’ r ight to effective judicial protection. Even assuming that the refusal had been validated by Law no. 2512/1997, nothing could justify it after the adoption of the judgment of the Court of Audit of December 1997 declaring that statute unconstitutional.

Conclusion : violation (unanimous).

Article 1 of Protocol No. 1: A “debt” could constitute a “possession” within the meaning of this Article on condition that it was sufficiently established to be enforceable. The rule of law, which was a fundamental princi ple of any democratic society, was inherent in all the Articles of the Convention and required the State or public authorities to comply with a judgment made against them. A fair balance between the demands of the general interest and the requirements of t he protection of the individual’s fundamental rights would not be achieved unless the interference in question had complied with the principle of lawfulness and was not arbitrary. In the present case the judgment of the Court of Audit of July 1996 had give n rise to a sufficiently established debt in the applicants’ favour and not just a contingent right as the Government had argued. Moreover, the State’s appeal against that decision had not had suspensive effect. Accordingly, the applicants’ inability to en force that judgment until Law No. 2512/1997 was adopted had amounted to an interference with their property right. Furthermore, in intervening after the final judgment of the Court of Audit had been adopted to state that the applicants’ claims were statute -barred, the legislature had upset the fair balance between the protection of a property right and the demands of the general interest. Moreover, the State General Accounting Department’s refusal to pay the sum owed to the applicants pursuant to the judgme nt of the Court of Audit, sitting as a full court, declaring unconstitutional section 3 of the Law 2512/1997 had amounted to a further interference with the applicants’ right to respect for peaceful enjoyment of their possessions, that refusal being manife stly unlawful under domestic law.

Conclusion : violation (unanimous).

Article 41 - The Court awarded the entire sum claimed by the applicants for pecuniary damage, namely 4, 593,735 drachmas.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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