Communicated on 4 March 2014
THIRD SECTION
Application no. 5154/08
Oleg COJOCARU
against the Republic of Moldova
lodged on 27 December 2007
STATEMENT OF FACTS
1. The applicant, Mr Oleg Cojocaru, is a Moldovan national, who was born in 1969 and lives in Chetrosica Noua. He is represented before the Court by Mr I. Turcanu, a lawyer practising in Edinet.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. After a car accident in 1995, the applicant developed multiple sclerosis and lost his capability for work. On 30 January 2002 and on 27 May 2002 respectively, he obtained certification of second degree and first degree disability.
4. On 7 February 2002 he applied for a disability pension. He submitted documents attesting to two years of compulsory military service (1988‑1990), three years of work with the Ministry of the Interior as a policeman (1992-1995), and the amount of his salary.
5. On 11 February 2002 the social security service refused the request and awarded the applicant a social allowance of 55.25 Moldovan lei (MDL) (equivalent to 4.8 euros (EUR)), concluding that the applicant was unable to provide proof of the minimum contributory period required by law.
6. On 15 July 2002 the applicant requested an explanation as to why he had been refused a disability pension. On 15 August 2002 the social security service replied:
“Pursuant to Section 20 of Law [no.156] a person is entitled to a disability pension if he can provide proof of the qualifying contributory period that corresponds to the age when the disability was recognised: over 31 years of age the necessary contributory period is 5 years. The qualifying contributory period for a pension comprises both contributory periods and non-contributory periods ... in which the person does not pay social security contributions but – as of right – the period is subsumed into the general contributory period (military service, education, etc.).
You have not been able to provide proof of the requisite 5 years of the qualifying contributory period and on 1 March 2002 a social allowance of MDL 55.25 was granted ... which since 1 June 2002 has increased to MDL 65 (EUR 5.07).”
7. After repeated refusals of his applications for a disability pension, on 18 October 2006 the applicant brought a civil action against the social security service. He requested that a disability pension be granted and relied on Sections 5 and 50 [51] (1) (f) of Law no. 156 which provided that compulsory military service, active military service, and/or service deemed equivalent, that was performed before 1 January 1999 was to be subsumed into the general contributory period.
8. On 20 February 2007 the Chișinău Court of Appeal dismissed the applicant’s claims, holding, inter alia:
“... The contributory period represents the period of work during which contributions have been paid into the pension fund.
The [applicant] is unable to provide proof of any days of a contributory period into which his military service could be subsumed ... It is evident from his wages certificate ... that from June 1992 to August 1995, while employed by the Edinet police, no social security contributions were paid.”
9. The applicant appealed against that judgment, referring in particular to the legal provisions which provided that his non-contributory periods of compulsory military service and service as a policeman performed before 1 January 1999 were to be subsumed into the general contributory period and to the fact that the court had not stated its reasons for dismissing this argument.
10. On 27 June 2007 the Supreme Court of Justice dismissed the applicant’s appeal. The court held as follows:
“... According to p. 6 of [Government decree no. 417 of 3 May 2000], non-contributory periods of military service may be subsumed into contributory periods.
[The applicant] did not submit any evidence substantiating at least one day of a contributory period into which his military service and service with the Ministry of the Interior could be subsumed and which could provide grounds for granting a disability pension.
In these circumstances, the social security service is unable to determine on what salary to base the calculation of [the applicant’s] disability pension.”
That judgment was final.
B. Relevant domestic law
11. The State Social Security Pensions Act (Law no. 156) of 14 October 1998, reads as follows:
Section 5: Contributory period
“... (2) Non-contributory periods that may be subsumed into contributory periods shall comprise:
(a) a period spent in the performance of compulsory military service; ...”
Section 8: Basis for pension calculation
“... (3) For the periods listed under Section 5 (2), the basis to be used for the calculation of the pension shall be the statutory salary for the lowest wage category in the national economy on the date when the pension is calculated.”
Section 20: Contributory period for a disability pension
“(1) An insured person categorised as having a degree of disability caused by an ordinary disease shall be entitled to a disability pension if he or she satisfies the respective length-of-service requirement in respect of the contributory period for the age at which the invalidity was recognised, as set out in table no.1.”
Table no. 1
“Age at which the disability was recognisedContributory period (years)
Over 31 years 5 years”
Section 50 [51]: Activities that may be subsumed into the contributory period.
“(1) In addition to the periods listed under Section 5, the periods during which the following activities were performed, before the entry in force of the present law [before 1 January 1999], shall also be subsumed into the contributory period:
... (f) military service or service deemed equivalent to it.
(2) The procedure for incorporating the periods listed under subsection (1) (d)-(f) in the contributory period shall be determined by the Government.
(3) The costs associated with the incorporation of the periods listed under subsection (1) (d)-(f) in the contributory period shall be met from the State budget.”
12. Government Decree no. 417 of 3 May 2000 approving the Regulations on the calculation and confirmation of the qualifying contributory period for pensions reads as follows:
“3. The qualifying contributory period for pensions shall comprise both contributory and non-contributory periods.
Contributory periods shall be those involving activities in relation to which the person is liable for the payment of social security contributions.
Non-contributory periods shall be those in which the person is not liable for the payment of social security contributions but which are subsumed as of right into the contributory period (military service, higher education, etc.). ...
8. The following periods of non-contributory activities which were performed prior to 1 January 1999 shall also be subsumed into the contributory period:
... the period of military service or other service deemed equivalent to it. ”
13. Law no. 1544 of 23 June 1993 on pensions for military personnel and persons employed on the command staff and as troops of the Ministry of the Interior reads as follows:
“The present Law lays down ... the conditions under which pension benefits shall be awarded to the following Moldovan citizens: military personnel in the armed forces, ... persons employed by the Ministry of the Interior and other military units set up by parliamentary decision, retired military personnel formerly in the armed forces or security service ... or the Ministry of the Interior of the former USSR and their families.”
Section 10: Authorities providing pension benefits
“... (2) Military personnel performing their service under contract [and] persons performing their service on the command staff and as troops of the Ministry of the Interior ... shall be provided with pension benefits by the Ministry of Defence ... or the Ministry of the Interior ... according to rules determined by the Government.”
Section 18: Calculation of years of service
“The following periods shall be taken into account for the purposes of calculating the years of service of military personnel performing service under contract and of persons performing service on the command staff and as troops of the Ministry of the Interior ... which qualify them for a pension under Art. 13 a) :
(a) active military service, service on the command staff and service as troops of the Ministry of the Interior; work with civil ministries ... where this formed part of the person’s active military service or in the Ministry of the Interior ...”
Section 19: Requirements for pension entitlement
“Military personnel and persons employed on the command staff and as troops of the Ministry of the Interior who have a disability shall be entitled to a disability pension if the disability originated during their period of service or at most three months after termination of their service or after this time-limit if the disability resulted from an injury, contusion or illness that occurred during their period of service.”
COMPLAINTS
14. The applicant complains under Article 6 of the Convention that in their judgments the domestic courts failed to deal with his submission asserting that his non-contributory military service and service with the Ministry of the Interior should be subsumed into the contributory period pursuant to Sections 5 and 50 [51] (1) f) of Law no. 156.
15. The applicant complains under Article 1 of Protocol No. 1 to the Convention that the domestic authorities failed to award him a disability pension to which he maintains he is entitled under the relevant domestic law.
QUESTIONS TO THE PARTIES
1. Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention, in view of the courts’ failure to address in their judgments his argument concerning the applicability of Sections 5 and 50 [51] (1) (f) of the State Social Security Pensions Act (Law no. 156) (Ruiz Torija v. Spain, 9 December 1994, § 29, Series A no. 303-A)?
2. Does the applicant’s entitlement to a disability pension, as provided by Section 20 of the State Social Security Pensions Act (Law no. 156), constitute a “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention? If so, was the State’s failure to pay the applicant a pension of that kind an unjustified interference with the applicant’s property rights as guaranteed under the same provision?
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