DISSENTING OPINION OF JUDGE GYULUMYAN

I am unable to share the view of the majority of the Chamber that the applicant ’ s rights under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 were not violated in the present case .

1. The applicant, who was a judge of the Supreme Court of Georgia, retired on age grounds and was granted a pension under section 36 of the Act of 12 May 1999 on the Supreme Court of Georgia, according to which a Supreme Court judge was entitled to a life-long pension in an amount equal to his or her final salary and adjustable in line with changes in the salary scales of serving Supreme Court judges. Section 36 of the Supreme Court Act was later amended on several occasions.

The applicant brought two different actions against the State challenging the lawfulness of the application of the amendment of 16 March 2001, which removed the second clause concerning the adjustment requirement, and that of 23 December 2005, which fixed the pensions for judges who had already retired.

2. In the course of the applicant ’ s first pension dispute, Judge S., overstepping the scope of that case, which should normally have been limited to the issue of the lawfulness of the amendment of 16 March 2001 to the Supreme Court Act, clearly expressed his opinion about the lawfulness of the subsequent amendment of 23 December 2005. Judge S. ’ s interpretation of the amendment of 23 December 2005 was not merely theoretical; on the contrary, he specifically suggested that the amendment in question should be held applicable to the applicant ’ s particular situation (see paragraph 25 of the judgment).

3. In so far as the lawfulness of the application of the same amendment of 23 December 2005 to the applicant ’ s pension rights was at the core of her second dispute, I consider that Judge S. ’ s participation for a second time in the examination of the same issue breached the relevant impartiality requirement under Article 6 § 1 of the Convention (compare K leyn and Others , cited above, § 200; Sacilor-Lormines v. France , no. 65411/0 1, § 73 , ECHR 2006 ‑ XIII ; and Mežnarić v. Croatia , no. 71615/01, § 32). Indeed, t he applicant ’ s fear that, in the light of his previously expressed opinion on the same matter, Judge S. had a preconceived idea as to the outcome of her second pension dispute was objectively justified. His involvement in the second dispute could hardly be said to have been conducive to the level of confidence that the highest judicial body in the country should normally inspire in society (see De Cubber v. Belgium , 26 October 1984, § 26, Series A no. 86 , and Castillo Algar v. Spain , 28 October 1998, § 32 , Reports of Judgments and Decisions 1998 ‑ VIII ).

4. These considerations lead me to conclude that there has been a violation of Article 6 § 1 of the Convention as regards the requirement of an impartial tribunal.

5. A s regards compliance with Article 1 of Protocol No. 1, it is true that the latter does not guarantee, as such, the right to an old-age pension or to any social benefit in a particular amount (see, for example, Aunola v. Finland (dec.), no. 30517/96, 15 March 2001). However, the Court ’ s case ‑ law states that, if the right to receive a pension in a particular amount is established either by law or by a binding court decision, such a right clearly falls within the ambit of Article 1 of Protocol No. 1 (see, for example, Andrejeva v. Latvia [GC], n o 55707/00, § § 77 and 78 , 18 February 2009 ; Pravednaya v. Russia , no. 69529/01, § § 37-41 , 18 November 2004 ; Smirnitskaya and Others v. Russia , no. 852/02, § § 33-37 , 5 July 2007 ; and Solodyuk v. Russia , no. 67099/01, § § 26-27 , 12 July 2005 ).

The Chamber accepts that, on the basis of the original version of section 36 of the Act on the Supreme Court of Georgia, the applicant ’ s right to receive a retirement pension in an amount adjustable in line with the salary of a Supreme Court judge was covered by Article 1 of Protocol No. 1 (see paragraph 72 of the judgment).

6. Furthermore, the retroactive application of a law which deprives a person of a pecuniary interest is to be regarded as a taking of property within the meaning of the first paragraph of Article 1 of Protocol No. 1 (see, for example, Smirnitskaya , cited above, §§ 49-53, and Smokovitis and Others v. Greece , no. 46356/99, § § 32-34 , 11 April 2002 ).

The judgment of the Administrative Division of the Supreme Court stated that the amendment of 16 March 2001 could not have retroactive force. Despite the fact that the applicant ’ s pension rights were obviously of a continuous nature, those rights had arisen, in the opinion of the Supreme Court, as a result of the material fact of the applicant ’ s retirement in May 2000, when she had been granted a pension for life under the original version of section 36 of the Supreme Court Act.

7. The majority of the Supreme Court also noted that the original version of section 36 of the Supreme Court Act set a very high standard of retirement benefit for Supreme Court judges. It stated in this regard that “the creation of generous pension benefits is not only a question of providing social protection for any particular retired judge, it also aims to maintain the independence and impartiality of the judiciary in general, by providing serving judges with the expectation of obtaining the same benefits upon their future retirement...” (see paragraph 23 of the judgment).

8. The majority of the Chamber attaches too much importance to reasons based on economic arguments relating to “the sustainability of the public budget” and “rationalising public expenditure”. I am not disputing the value of these aims, but that does not mean that they should outweigh the independence of the judiciary.

Moreover, it has not been demonstrated by the respondent State how and to what extent the sustainability of the budget would in fact be jeopardised if some twenty-one individuals were to receive some increase in their pensions.

That being so, the applicant ’ s inability to benefit from increases in her pension as of 1 January 2006, by virtue of the ex post facto amendment of 23 December 2005, calls for a finding that there has been a violation of Article 1 of Protocol No. 1.

[*] . Here and elsewhere, approximate conversions are given in accordance with the exchange rate on 6 March 2012.