CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 22 octobre 2009

.s800EAC49 { font-size:12pt } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s29100277 { font-family:Arial; font-weight:bold } .sA678F94A { margin-top:0pt; margin-bottom:0pt; text-align:right; font-size:11pt } .s7ED160F0 { text-decoration:none } .s2F5E426D { font-family:Arial; font-size:6pt; font-weight:bold; vertical-align:super; color:#0069d6 } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s1F6AC3E7 { font-family:Arial; font-size:11pt; font-style:italic } .s4BAE41EE { font-family:Arial; font-size:11pt } .s777B7D40 { font-family:Arial; font-size:11pt; text-decoration:underline; color:#008080 } .sBB9EE52A { font-family:Arial } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sA36B60A1 { font-family:Arial; font-style:italic } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s21338552 { font-family:Arial; font-size:10.5pt } .s99A63BFE { margin-top:0pt; margin-bottom:0pt; text-align:left; font-size:11pt } .sA4EC0FBA { margin-top:0pt; margin-bottom:0pt; text-align:left; widows:0; orphans:0; font-size:11pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s92A5AB2 { font-family:Arial; font-size:11pt; text-decoration:underline; color:#0069d6 } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .sB853CD26 { font-family:Arial; font-size:8pt }   787 22.10.2009   Press release issued by the Registrar   Chamber judgment [1] Apostolakis v. Greece (application no. 39574/07 )   TOTAL AND AUTOMATIC LOSS OF SOCIAL RIGHTS FOLLOWING A CRIMINAL CONVICTION   Violation of Article 1 of Protocol No. 1 (protection of property) of the European Convention on Human Rights     Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant a sum equivalent to the pecuniary damage actually suffered, namely, 23,327.64   euros   (EUR); EUR   1,000 for non-pecuniary damage; and EUR   1,700 for costs and expenses (The judgment is available only in French).   Principal facts   The applicant, Michail Apostolakis, is a Greek national who was born in 1938 and lives in Neo Iraklio (Greece). Since the age of 18 he had worked for the Greek Artisan and Tradesmen’s Insurance Fund (“the TEVE”) of which he became pensions director. In the end he was forced to resign on account of criminal proceedings against him for falsifying paybooks belonging to members of the TEVE. On 13   March 1998 the Athens Court of Appeal convicted him of aiding and abetting the falsification of savings books to the detriment of the TEVE and sentenced him to eleven years’ imprisonment. He was released in December 1998, the period of pre-trial detention having been deducted from his sentence. Prior to that, in 1988, a right to a retirement pension had been conferred on Mr Apostolakis after more than 30   years’ service.   After his release, in December 1999, the Social Security Fund (“IKA”) revoked the decision of 1988 to award him a pension and transferred part of the pension to his wife and daughter, on the basis of the criminal conviction and in accordance with the Pensions Code. The withdrawal of Mr   Apostolakis’s pension also caused him to lose his personal social-security rights.   After the tacit dismissal of an objection by Mr Apostolakis and an initial judgment of the Audit Court, delivered on 12   October 2005, the Court of Audit, sitting as a full court, held that the provisions according to which social rights could be withdrawn, which were designed to deter civil servants from committing offences and to ensure the proper functioning and the credibility of the a dministration, were compatible with the constitutional principle of proportionality. Subsequently, on 15   February 2007, the Audit Court held that the penalty imposed on the applicant was proportionate to the aims pursued. In March 2008 it ruled that the applicant should pay the TEVE more than 2,000,000   EUR for the losses sustained.   Complaints, procedure and composition of the Court   Mr Apostolakis contended that the full withdrawal of his pension as a result of his criminal conviction had infringed his right to peaceful enjoyment of his possessions under Article   1 of Protocol No.     1 (protection of property). The application was lodged with the European Court of Human Rights on 10   August 2007.   Judgment was given by a Chamber of seven judges, composed as follows:   Nina Vajić (Croatia), President , Christos Rozakis (Greece), Khanlar Hajiyev (Azerbaijan), Dean Spielmann (Luxembourg), Sverre Erik Jebens (Norway), Giorgio Malinverni (Switzerland), George Nicolaou (Cyprus), judges , and Søren Nielsen , Section Registrar .   Decision of the Court   The withdrawal of Mr   Apostolakis’s pension constituted an infringement of his right of property (a right to a pension constitutes a right of property where special contributions have been paid or where an employer has given an undertaking to pay a pension on terms provided for in the employment contract).   Contrary to the Greek courts’ ruling, that infringement had caused the applicant to bear a disproportionate and excessive burden, which could not be justified by the need to deter civil servants from committing offences and ensure the proper functioning of the administration and the credibility of the public service. In that connection the Court observed in particular that, following his conviction, Mr   Apostolakis had been automatically deprived of his pension for the rest of his life despite the fact that the offence he had committed had had no causal link with his retirement rights as a socially insured person. The fact that the pension – of a reduced amount – had been transferred to the applicant’s family did not suffice to offset that loss because the applicant could in future lose all means of subsistence and all social cover, for example, if he became a widower or got divorced.   The Court held that States could make provision in their legislation for the imposition of fines as a result of a criminal conviction. However, penalties of that kind, which would involve the total forfeiture of any right to a pension and social cover, including health insurance, amounted not only to a double punishment but also had the effect of extinguishing the principal means of subsistence of a person, such as Mr   Apostolakis, who had reached retirement age. Such an effect was compatible neither with the principle of social rehabilitation governing the criminal law of the States party to the Convention system, nor with the spirit of the Convention.   The Court held, unanimously, that there had been a violation of Article 1 of Protocol No.     1.     ***   This press release is a document produced by the Registry; the summary it contains does not bind the Court. The judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Press contacts Frédéric Dolt (tel : + 33 (0)3 90 21 53 39) or Stefano Piedimonte (tel : + 33 (0)3 90 21 42 04) Tracey Turner-Tretz (tel : + 33 (0)3 88 41 35 30) Kristina Pencheva-Malinowski (tel : + 33 (0)3 88 41 35 70) Céline Menu-Lange (tel : + 33 (0)3 90 21 58 77) Nina Salomon (tel + 33 (0)3 90 21 49 79)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.