Published on 5 July 2021
THIRD SECTION
Application no. 54742/19
Svetlana Anatolyevna BAZYLEVSKAYA
against Russia
lodged on 7 October 2019
communicated on 17 June 2021
STATEMENT OF FACTS
1. The applicant, Ms Svetlana Anatolyevna Bazylevskaya, is a Russian national, who was born in 1968 and lives in Dalnegorsk (Primorskiy region). She is represented before the Court by Ms V.N. Frolova, a lawyer.The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant is a mother of a lifelong disabled child E. born in 1997. Before 2015, the family lived in Uzbekistan, where E. was officially declared disabled in 1999. In 2015 they moved to Russia and in 2016 they obtained Russian citizenship. In 2016 the Russian court declared E. deprived of legal capacity and the Russian authorities recognized her as a lifelong disabled person.
4. In 2018 the applicant applied for an early retirement pension stating that she had reached 50 years old and had been cared for a disabled child for more than fifteen years. The Pension Fund dismissed her request arguing that the period of care in Uzbekistan should have not been included in her employment record.
5. The applicant challenged the decision of the Pension Fund before a court. The representative of the Pension Fund did not object to the fact that the applicant’s daughter had been a lifelong disabled person but argued that she had been declared disabled in Russia only in 2016. On 6 August 2018 the Dalnegorskiy District Court of Primorskiy Region allowed the claim and obliged the Pension Fund to include thirteen years of child care in the applicant’s employment record.
6. On 18 December 2018 the Primorskiy Regional Court quashed the judgment on appeal and dismissed the applicant’s claim. The court noted that while there was an agreement on social security benefits between CIS countries, including Russia and Uzbekistan, there was no such agreement related to the recognition of status of disabled persons. Therefore, the right to social benefits could arise only from the moment of declaring the applicant’s daughter disabled under the Russian law.
7. On 3 June and 31 July 2019, respectively, the Primorskiy Regional Court and the Supreme Court of Russia upheld the appeal judgment sitting as the cassation instances.Relevant domestic law and the CIS Agreement
8. According to sub-paragraph 1 of paragraph 1 of Article 32 of LawN 400-FZ of 28 December 2013 “On social insurance pensions”, an old-age pension should be awarded to one of the parents of a lifelong disabled child who took care of them till they reach the age of eight, namely to women who have reached the age of 50 and have an employment record of no less than fifteen years.
9. According to sub-paragraph «в» of paragraph 2 of the Governmental Regulation N 1015 of 2 October 2014 “On approval of rules of calculation and confirmation of employment record for establishing social insurance pensions”, the period of care for a disabled child shall be included in the employment record.
10. According to the Agreement on guarantees of rights of citizens of the Commonwealth of Independent States in pension coverage (ratified, among other States, by Russia and Uzbekistan), the periods of employment within the territory of other States Parties shall be included in the employment record (Article 6-2); documents required for pension coverage shall be accepted in the States Parties without legalization (Article 11).
COMPLAINTS
The applicant complains under Article 1 of Protocol No. 1 to the Convention in conjunction with Article 14 of the Convention that she was deprived of a legitimate expectation to receive an early retirement pension on a discriminatory basis, comparing either to parents of disabled children who lived the whole life in Russia or to persons who had had ordinary employment in Uzbekistan and moved to Russia. The applicant argues that the interference is unlawful and does not pursue a legitimate aim or public interest.
QUESTIONS TO THE PARTIES
1. Has the applicant suffered discrimination in the enjoyment of her rights protected by Article 1 of Protocol No. 1 to the Convention, on the grounds of her place of residence between 1997 and 2015, contrary to Article 14 of the Convention?
Has the applicant been subjected to a difference in treatment in awarding an early retirement pension, comparing to the persons in a relevantly similar position (parents of disabled children residing in Russia and/or people who resided in other CIS States but had ordinary employment)?
If so, what was the legal basis for this difference in treatment? Was the application of the respective legislation foreseeable for the applicant?
Did that difference in treatment pursue a legitimate aim; and did it have an objective and reasonable justification (see Koua Poirrez v. France, no. 40892/98, § 49, ECHR 2003‑X)?
2. Did the applicant have a “legitimate expectation” to obtain an early retirement pension, within the meaning of Article 1 of Protocol No. 1 to the Convention (see Kopecký v. Slovakia [GC], no. 44912/98, §§ 45-52, ECHR 2004‑IX)?
In particular, did the applicant meet all the statutory requirements for her early retirement pension award claim to be granted (see Koua Poirrez, cited above, § 48; Andrejeva v. Latvia [GC], no. 55707/00, § 78, ECHR 2009)?
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