SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application nos. 25409/04, 19647/06, 22505/06, 22514/06, 31463/07, 62002/08 and 14842/09
by Mehmet ÇAYTAŞ and Others
against Turkey
The European Court of Human Rights (Second Section), sitting on 29 September 2009 as a Chamber composed of:
Françoise Tulkens, President,
Ireneu Cabral Barreto,
Danutė Jočienė,
András Sajó,
Nona Tsotsoria,
Işıl Karakaş,
Kristina Pardalos, judges,
and Sally Dollé, Section Registrar,
Having regard to the above applications lodged on 24 May 2004, 2 May 2006, 31 May 2006, 30 May 2006, 16 July 2007, 18 December 2008 and 17 February 2009,
Having deliberated, decides as follows:
THE FACTS
The applicants are all Turkish nationals. Their names, dates of birth, the names of their representatives and the dates on which they lodged their applications appear in the appendix.
A. The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.
On different dates the applicants registered with the Social Security Institution (Sosyal Sigortalar Kurumu, “the SSK”) or the Social Security Institution for the Self-Employed (Bağ-Kur).
Subsequent to their registration, they all lodged actions seeking the correction of their dates of birth, which had initially been registered erroneously in their birth records. As a result, the applicants’ ages were increased by two to nine years by court decisions to reflect their biological ages.
When they reached the minimum age limit for retirement on the basis of their rectified dates of birth, the applicants applied to the SSK or to Bağ-Kur for retirement pensions. Their requests were, however, rejected as they were not considered to have fulfilled the conditions set out in the relevant laws to receive such benefits (Section 120 of Law no. 506 and Section 66 of Law no. 1479). The applicants were informed that, for the purpose of determining eligibility for pension benefits, a person’s age was calculated on the basis of the date of birth declared at the time of registration with the social security institutions; subsequent amendments to the date of birth would thus not be taken into account.
The applicants subsequently brought actions before labour courts seeking declaratory judgments (tespit davası) regarding their eligibility for retirement pensions in the light of their amended dates of birth. In all cases the labour courts dismissed the applicants’ requests on the same legal grounds as the decisions of the social security institutions. The Court of Cassation upheld these judgments.
The details regarding these proceedings appear in the table below.
Application no.
Date of registration with the social security institution
Date of correction of the date of birth
Date of labour court decision
Date of Court of Cassation decision
25409/04
22.08.1986
(Bağ-Kur)
21.11.2001
(Lice Civil Court)
3.10.2002
(Diyarbakır Labour Court)
29.12.2003
19647/06
1.03.1977
(SSK)
30.05.1979
(Balıkesir Burhaniye Civil Court)
8.06.2005
(Izmir Labour Court)
15.11.2005
22505/06
20.12.1977
(SSK)
14.09.2004
(Karşıyaka Civil Court)
2.05.2005
(Izmir Labour Court)
27.12.2005
22514/06
1.06.1977
(SSK)
5.10.1978
(Izmir Civil Court)
8.06.2005
(Izmir Labour Court)
15.11.2005
31463/07
13.11.1976
(SSK)
13.01.1978
(Tekman Civil Court)
28.09.2006
(Ankara Labour Court)
12.04.2007
62002/08
1.05.1979
(SSK)
8.07.2003
(Alaca Civil Court)
7.03.2007
(Ankara Labour Court)
23.06.2008
14842/09
6.10.1984
(Bağ-Kur)
22.10.2002
(Sivas Civil Court)
4.06.2007
(Sivas Labour Court)
18.11.2008
B. Relevant domestic law
1. The Social Security Law (Law no. 506 of 17 July 1964)
Section 60 A of Law no. 506 provides:
“In order for insured [persons] to benefit from the old-age insurance,
a) Women must have reached the age of fifty-eight and men sixty and [they must have made contributions for] a minimum of 7,000 days, or
b) Women must have reached the age of fifty-eight and men sixty and [they must have been] insured for twenty-five years and [have paid] a minimum of 4,500 days of premiums in respect of disability, old-age and death insurance.”
Section 120 of Law no. 506 provides:
“... In the implementation of the age-related provisions [of this Law] within the context of disability, old-age and death insurance, ... the date of birth recorded in the State register at the time of taking up of the job within the terms of this Law ... shall be taken into account.
In the calculation of the income and monthly allowances ... [deriving] from ... old‑age insurance, corrections of age made after the date on which [the person] commenced working subject to ... Law no. 506 or other social security institutions, shall not be taken into consideration.”
2. Law on the Social Security Institution for Artisans and Craftsmen and Other Self-Employed Persons (Law no. 1479 of 2 September 1971)
Section 35 of Law no. 1479 provides:
“In order for insured [persons] to benefit from old-age insurance,
...
b) Women must have reached the age of fifty-eight and men sixty and they must have paid insurance premiums for twenty-five full years.”
Section 66 of Law no. 1479 provides:
“... In the implementation of the age-related provisions [of this Law] within the context of disability, old-age and death insurance, ... the date of birth recorded in the State register at the time of taking up of the job within the terms of this Law ... shall be taken into account.”
COMPLAINTS
The applicants complained under Article 6 § 1 of the Convention that the social security institutions, the labour courts and the Court of Cassation had failed to take into account the final court decisions correcting their dates of birth.
The first and sixth applicants (nos. 25409/04 and 62002/08, respectively) also complained under Article 1 of Protocol No. 1 that their retirement, and thus access to pension benefits, had been unfairly delayed on account of the non-recognition of their amended dates of birth in the determination of their eligibility for pensions.
THE LAW
1. In view of the similarity of the present applications both as regards their factual circumstances and the legal issues they disclose, the Court deems it appropriate to join them.
2. The applicants complained under Article 6 § 1 of the Convention that the failure of the domestic authorities to take into account final court decisions correcting their dates of birth in determining their eligibility for retirement pensions had violated their right to a fair hearing.
The Court notes in the first place that a wide margin is usually allowed to the State under the Convention as regards general measures of economic or social strategy (see Stec and Others v. the United Kingdom [GC], no. 65731/01, § 52, ECHR 2006‑VI). The Court notes that Laws nos. 506 and 1479 set out expressly the conditions for qualifying for a retirement pension, which conditions are not manifestly arbitrary. The relevant provisions of these Laws clearly state that an insured person is entitled to a retirement pension only after paying insurance premiums for a certain number of days or years and after reaching a certain age. The relevant provisions further specify that, for the purposes of those Laws, a person’s age is calculated according to the date of birth established in the State register at the time of the commencement of services.
The Court considers that this is merely a technical requirement introduced with a view to preventing fraudulent attempts at claiming retirement benefits by increasing one’s age. It does not otherwise aim to undermine final court decisions. In other words, although applicants can use their amended dates of birth for all other official purposes they cannot rely on their amended ages to obtain social security benefits.
The Court stresses that the domestic courts did no more than apply the clear and foreseeable provisions of the social security laws in their decisions. The Court further notes that, in doing so, they did not nullify the court decisions correcting the applicants’ ages, considering specifically that those decisions had merely amended the birth register and had not ruled on the utilisation of the new date of birth for social security purposes.
In the absence of evidence of any arbitrary conduct on the part of the domestic courts, and bearing in mind that it fell primarily to these courts to interpret the application of the relevant domestic laws, the Court considers that no issue arises under Article 6 § 1 of the Convention.
It follows that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
3. The first and sixth applicants also alleged that their entitlement to retirement pensions had been delayed due to the non-recognition of their amended dates of birth, which had violated their property rights under Article 1 of Protocol No. 1.
The Court reiterates that Article 1 of Protocol No. 1 does not create a right to acquire property. It places no restriction on the Contracting State’s freedom to decide whether or not to put in place a particular form of social security scheme, or to choose the type or amount of benefits to be provided under any such scheme (see, mutatis mutandis, Kopecký v. Slovakia [GC], no. 44912/98, § 35(d), ECHR 2004-IX). If, however, a Contracting State has legislation in force providing for the payment of a welfare benefit as of right, whether or not such payment is conditional on the prior payment of contributions, that legislation must be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No. 1 “for persons satisfying its requirements” (see Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 54, ECHR 2005‑X). Where however the person concerned does not satisfy the legal conditions laid down in domestic law for the grant of such benefits, there is no interference with the rights under Article 1 of Protocol No. 1 (see Bellet, Huertas and Vialatte v. France, (dec.) no. 40832/98 27 April 1999, and Rasmussen v. Poland, no. 38886/05, § 71, 28 April 2009).
The Court has already established above that the applicants did not satisfy the age requirements set out in Laws nos. 506 and 1479 for an entitlement to a retirement pension. In these circumstances, the refusal of the domestic authorities to grant them pensions did not amount to an interference with the applicants’ property rights under Article 1 of Protocol No. 1.
It follows that these applications should be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court by a majority
Decides to join the applications;
Declares the applications inadmissible.
Sally DolléFrançoise Tulkens
RegistrarPresident
APPENDIX
Application no.
Applicants’ names
Date of birth
Representative’s name
Lodging date
25409/04
Mehmet Çaytaş
12.06.1946
Fırat Üger
Cihan Biçen
24.05.2004
19647/06
Bekir Tokaç
29.03.1960
Sabiha Polat
2.05.2006
22505/06
Feyzullah Kutucuoğlu
6.04.1958
Sabiha Polat
31.05.2006
22514/06
Yücel Zırhlı
7.01.1960
Sabiha Polat
30.05.2006
31463/07
Nezih Kızılkaya
15.02.1961
Ali Üstünbaş
16.07.2007
62002/08
Veli Culfa
3.05.1962
Mehmet Demir
18.12.2008
14842/09
Mehmet Kimsesiz
6.10.1962
Altan Kayabaşı
17.02.2009
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