ANNUAL SPECIAL REPORT 2017
23
again before the State legal Counsel the issue of whether prisoners are eligible for the severe disability financial aid program”.
b. - Payment of pensions to prisoners
Payments of a prisoner’s pension during his incarceration were declared as
disproportionate with an interest of 5%, after payment of the pension was
retrospectively suspended for the duration of the detention. Social Security
Service (IKA-ETAM) held that the payment of pensions is suspended for
the duration of a detention sentence of more than 6 months, under Law
1846/1951. In addition, circular 128/1973 introduces a non-rebuttable presumption that the pensioner was aware of the fact that the payment was
undue during the sentence. The Ombudsman invoked case law according
to which the above provision is contrary to articles 25(1) and 22(5) of the
Greek Constitution (Judgments no 3180/2007 Athens Administrative Court
and 2527/2008 Athens Administrative Court of Appeal), given that “pensioners’ criminal offences are not directly linked to their pensioner status,
nor are they reason for the loss of the status thereof”. The Ombudsman
argued that payments of pensions may not be retrospectively declared as
undue, if the social security service has not suspended payment by its own
accord. Moreover, the non-rebuttable presumption of being aware of undue
payments is discriminatory against prisoners on pension.
The Ministry of Labour advised that the issue will be uniformly addressed
in the context of the new Social Security Regulation of EFKA, taking into
account the Ombudsman’s observations. In addition, article 27 of Law
4488/2017 provides for the suspension of pension payment to pensioners
serving a sentence of more than a year, if the offense they were charged
with was committed against the social security service
A similar complaint was lodged by another pensioner who was paroled for
home detention. His request for reinstatement of his pension was refused, on
the ground that “parole following a public prosecutor’s order merely alters
the place or manner of serving the sentence imposed … and therefore constitutes no reason to terminate the suspension of pension payment”. Given
the unfavourable nature of Law 1846/1951, the Ombudsman argued that, until
the suspension of pension payment is uniformly addressed by EFKA, care
should be taken to limit the repercussions of its implementation. The terms
“service of sentence” and “conviction” should be narrowly interpreted as
meaning exclusively detention inside a detention facility and no other forms
of service should be included, such as release on parole, which lacks the
element of deprivation of liberty. Furthermore, the justification of payment
suspension, being that the State covers the pensioner’s living cost for the
duration of detention, does not apply in the case of parole; therefore the
suspension serves no legal purpose.
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