Case of European Court of Human Rights, October 22, 2009 (case Apostolakis v. Greece)

Resolution DateOctober 22, 2009

Information Note on the Court’s case-law No. 123

October 2009

Apostolakis v. Greece - 39574/07

Judgment 22.10.2009 [Section I]

Article 1 of Protocol No. 1

Article 1 para. 1 of Protocol No. 1

Peaceful enjoyment of possessions

Possessions

Total automatic loss of pension rights and welfare benefits as a result of a criminal conviction: violation

Facts – The applicant had been working for the Greek Artisan and Tradesmen’s Insurance Fund, of which he became pensions director, since the age of eighteen. In the end he was forced to resign on account of criminal proceedings instituted against him. In 1998 the Court of Appeal convicted him of aiding and abetting the falsification of paybooks to the detriment of the Fund and sentenced him to eleven years’ imprisonment. He was conditionally released that year, 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 the applicant after more than thirty years’ service. In 1999 the Social Security Fund revoked the decision of 1988 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. The applicant unsuccessfully appealed against those measures.

Law – Article 1 of Protocol No. 1: On joining the Greek civil service the applicant had acquired a right that constituted a “possession” within the meaning of Article 1 of Protocol No. 1. The withdrawal of the applicant’s pension had amounted to an infringement of his right of property that was neither an expropriation nor a control of the use of property. Following his conviction the applicant had been automatically deprived of his retirement pension for the rest of his life. Aged sixty-nine, and unable to start a new professional occupation, he was personally deprived of any means of subsistence. Whilst the applicant’s conduct had been criminally culpable, it had had no causal link with his retirement rights as a socially insured person. Moreover, the fact that the pension had been transferred to the applicant’s family – the applicant being married...

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