THIRD SECTION
Application no. 54104/07
Grigore FURTUNA
against the Republic of Moldova
lodged on 7 December 2007
STATEMENT OF FACTS
1. The applicant, Mr Grigore Furtună, is a Moldovan national, who was born in 1938 and lives in Chisinau. He is represented before the Court by Mr V. Bordeianu, a lawyer practising in Chisinau.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant retired in 1999. According to his retirement card, issued on 3 June 1999, the social security service calculated his old-age pension on 21 May 1999 in the amount of 10,401.67 Moldavian lei (MDL) (equal to 866 Euro (EUR)).
4. Subsequently he noticed that he was receiving only 280.60 MDL (equal to 23.36 EUR). On 20 October 2005 the social security service replied to his inquiry as follows:
“... On 21 May 1999 your old-age pension was established in the amount of 280.60 MDL... In your case the multiplier is 227 but according to the Draft law on the amendment of the Law and to the Government Decree no. 843 of 10 September 1999, this multiplier was limited to a cap of 5...”
5. On 7 December 2006 the applicant brought an action against the social security service seeking the payment of his uncapped pension since 21 May 1999. He claimed that on 21 May 1999 there were no legal provisions instituting an upper limit on pensions; such provisions were enacted by Law no. 552 only on 21 October 1999 and did not provide for their retroactive application; the social security service could not have relied on them at an earlier date when they established his pension. The applicant relied on domestic law which excluded all statutes of limitation for claims resulted from the failure to pay pensions imputable to the social security service.
6. In the course of proceedings, the social security service submitted a copy of its decision no. 6/84 establishing the applicant’s pension; the applicant claimed that it had never been presented to him. This decision established 227 to be the applicant’s individual multiplier and 10,401.67 MDL to be his old-age pension. Hand-written corrections replaced “227” with “5” and “10,401.67 MDL” with “280.60 MDL” and a hand-written inscription read “Valid corrections according to the draft law on amending Moldavian laws”.
The social security service argued that the action was out of time. It argued that initially the cap was of two but on 18 May 1999 the Constitutional Court declared it unconstitutional. According to them, Law no. 552 which instituted the cap of five was enacted on 21 October 1999 but was applicable since 18 May 1999.
7. On 16 February 2007 the Chișinău Court of Appeal dismissed the applicant’s claims as ill-founded. It concluded that the action was not out of time but that the pension was correctly calculated and capped under Law no. 156. The court did not answer the applicant’s arguments about the inexistence of legal provisions at the time of the events and the arbitrary retrospective application of Law no. 552.
8. The applicant appealed against this judgment and argued that his old-age pension was not calculated according to the law in force at the time and that the subsequent capping of pensions should not have affected his pension.
9. On 13 June 2007 the Supreme Court of Justice dismissed the applicant’s appeal as ill-founded and reiterated the legal reasons provided by the first instance. This judgment was final.
B. Relevant domestic law
10. The Law on State social security pensions no. 156 of 14 October 1998 read in its initial text as follows:
“Article 17. Payment of old-age pensions to retired person receiving revenues
The retired persons, receiving revenues subject to social security contributions, shall have their pension suspended in the part exceeding the double amount of the minimal old-age pension.
Article 32. Periods for which pensions are paid
(1) The old-age retirement pension is established for life.
Article 33. Review of pension rights
(1) Pension rights may be reviewed once are revealed new circumstances, which occurred before pension rights were established.
Article 35. Retroactive payment
(2) The pension unpaid due to the social security service’s fault shall be paid irrespective of statutes of limitation...
Annex 4. Calculation formula for old-age pensions
...2. The pension ... is calculated according to the following formula... where K is the individual multiplier of the pension beneficiary.
3. The individual multiplier of a pension beneficiary is the ratio between the amount of wage received by him in any thirty-six consecutive months during the last five years of employment preceding the entry in force of the present law and the average country monthly wage for the same period.”
11. On 18 May 1999 the Constitutional Court delivered its judgment no. 27, concluding that Article 17 of Law no. 156 was unconstitutional. The judgment read as follows:
“... [Article 17 of Law no. 156] breaches the right of retired persons to receive the complete and legal amount of their pension. [This provision] creates situations when two persons for whom the pension was calculated in different amounts however receive the same pension, capped at the double of the minimal old-age pension.”
12. The Government Decree no. 843 enacted on 23 September 1999 approving the Rules on the calculation of pensions read as follows:
“1.... the pension is calculated according to the following formula... where K is the individual multiplier of the retired person...
33. The individual multiplier of the retired person is the ratio between the amount of wages received in any thirty-six consecutive months during the last five years of employment preceding the entry in force of Law no. 156 and the average country monthly wage for the same period but shall be taken into consideration only its value not exceeding 5,0.”
13. The Law on the amendment of other laws no. 552, voted on 28 July 1999 but enacted on 21 October 1999, read as follows:
“...Article X. The Law no. 156 of 14 October 1998 shall be amended as follows:
1. Article 17 shall read: “The retired persons, receiving revenues subject to social security contributions, shall be paid their full pension.”
... 5. Annex 4 para. (3) shall be amended with the following words at the end: “but cannot exceed 5,0.””
COMPLAINTS
14. The applicant complains under Article 6 of the Convention that domestic courts failed to deal in their judgments with his submission alleging that his pension could not have been capped under a law which had not entered in force at the time and had no retrospective effect.
15. The applicant complains under Article 1 of Protocol No. 1 to the Convention about domestic authorities’ failure to award him old-age pension entitlements which the relevant domestic law clearly guaranteed to him.
ITMarkFactsComplaintsEND
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 that the law had no retrospective effect (Ruiz Torija v. Spain, 9 December 1994, § 29, Series A no. 303-A)?
2. Does the applicant’s entitlement to an uncapped pension, as provided by Article 17 and Annex no. 4 of the Law no. 156 on State social security pensions, as worded at the time of the events, 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 the above pension an unjustified interference with the applicant’s property rights as guaranteed under the same provision?
Full & Egal Universal Law Academy