Communicated on 22 June 2015
FOURTH SECTION
Application no. 49270/11
Jurijs SAVICKIS and others
against Latvia
lodged on 4 August 2011
STATEMENT OF FACTS
1. A list of the applicants is set out in the appendix. They are “permanently resident non-citizens” of the Republic of Latvia. They are represented before the Court by Mr V. Buzajevs.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Background to the case
3. Historical background to the case has been described elsewhere (see Andrejeva v. Latvia [GC], no. 55707/00, §§ 12-13, ECHR 2009 and, for more details, Likvidējamā p/s Selga and Vasiļevska v. Latvia, nos. 17126/02 and 24991/02, §§ 5-9, 1 October 2013).
4. All applicants were born in different territories of the Soviet Union and came to Latvia at a later date, when it was one of the fifteen Soviet Socialist Republics of the Soviet Union.
(a) First applicant
5. The first applicant was born in Kalinin District and worked in the current territory of Russia from 1958 to 1979. He came to Latvia in 1979, at the age of 40. He started working in Latvia in 1980.
(b) Second applicant
6. The second applicant was born in Azerbaijan and worked there for 12 years, including obligatory military service of 3 years. He came to Latvia in 1968, at the age of 30.
(c) Third applicant
7. The third applicant was born in Vladivostok and came to Latvia in 1951, at the age of 3. He worked in Latvia from 1968. He also did obligatory military service in Russia for 2.1 years.
(d) Fourth applicant
8. The fourth applicant was born in Uzbekistan and worked there for 8.9 years. Subsequently, she also worked in Germany for 4 years, in the current territory of Russia for 8.9 years and raised a child in Belarus (1.4 or 2.2 years). She came to Latvia in 1987, at the age of 41.
(e) Fifth applicant
9. The fifth applicant was born in Syzran. She worked in the current territory of Russia for 9.9 years, Uzbekistan – 0.6 years, Turkmenistan – 4.8 years, Tajikistan – 6.1 years. She came to Latvia in 1986, at the age of 44, but started working in Latvia in 1987.
2. Facts relating to the calculation of the applicants’ pension
(a) Initial calculation
(i) First applicant
10. In 2001 the first applicant retired and on unspecified date asked the State Social Insurance Agency (Valsts sociālās apdrošināšanas aģentūra) to calculate the amount of his retirement pension. On 26 September 2001 it was calculated and his years of service outside Latvia (from 1958 to 1979) were not included in the overall period of employment. The monthly amount of his pension was 30 Latvian lati (LVL) (approximately 43 euros (EUR)), payable from 1 September 2001. He did not appeal against this decision.
(ii) Second applicant
11. In 1998 the second applicant retired and on unspecified date asked the State Social Insurance Agency to calculate the amount of his retirement pension. On 12 January 1999 it was calculated. There is no information about inclusion of his years of service outside Latvia in the overall period of employment. The monthly amount of his pension was LVL 79.05 (approximately EUR 113), payable from 3 December 1998. He did not appeal against this decision.
12. On 17 December 2007 the second applicant applied for revision of his pension. On 11 February 2008 it was recalculated and granted in the amount of LVL 177.46 (approximately EUR 253), payable from 1 January 2007. He did not appeal against this decision.
(iii) Third applicant
13. In 2009 the third applicant wished to retire and on 20 October 2009 applied to the State Social Insurance Agency to grant him retirement pension. His request was refused as his period of employment was insufficient – he had been employed for 28 years, 5 months and 14 days, but not the required 30 years. There is no information about inclusion of his years of service outside Latvia in the overall period of employment. He did not appeal against this decision.
14. On 7 July 2010 the third applicant applied for pension again. This time, on 2 August 2010 it was granted in the amount of LVL 186.17 (approximately EUR 266), payable from 11 July 2010. There is no information about inclusion of his years of service outside Latvia in the overall period of employment. He did not appeal against this decision.
(iv) Fourth applicant
15. In 2008 the fourth applicant retired and on 26 February 2008 asked the State Social Insurance Agency to calculate the amount of her retirement pension. On 28 March 2008 it was calculated and her years of service outside Latvia were not included in the overall period of employment. As a result, the monthly amount of her pension was LVL 49.50 (approximately EUR 71), payable from 27 February 2008. At the same time, owing to changes in legislation her pension was set to LVL 54.79 (approximately EUR 79) from 1 April 2008. She did not appeal against this decision.
(v) Fifth applicant
16. In 2005 the fifth applicant retired and on 9 February 2005 asked the State Social Insurance Agency to calculate the amount of her retirement pension. On 16 February 2005 her pension was calculated and her years of service outside Latvia were not included in the overall period of employment. As a result, the monthly amount of her pension was LVL 38.50 (approximately EUR 56), payable from 1 December 2004. She did not appeal against this decision.
(b) The applicants’ requests subsequent to the Court’s judgment in the case of Andrejeva v. Latvia
17. On 14 August 2009 the first, second, fourth and fifth applicants applied to the State Social Insurance Agency seeking that (i) the administrative proceedings as regards calculation of their pension be re-opened, (ii) the initial decisions concerning their pension be quashed in so far as they concerned periods of employment to be taken into account, (iii) the equivalent periods of employment in the former territory of the Soviet Union be taken into account for the calculation of the overall period of employment and that their pensions be accordingly increased, and (iv) compensation for material loss caused by the difference be granted.
18. On 21 September 2009 by the Director of the State Social Insurance Agency dismissed their applications. The applicants brought complaints before the administrative court.
19. On 20 October 2009 the Administrative District Court (Administratīvā rajona tiesa) dismissed the first applicant’s complaint. Its decision was final.
20. On 20 November 2009 the Administrative District Court dismissed the fifth applicant’s complaint. Its decision was final.
21. On 27 November 2009 the Administrative District Court dismissed the second applicant’s complaint. Its decision was final.
22. On 16 December 2009 the Administrative District Court dismissed the fourth applicant’s complaint. Its decision was final.
(c) The applicants’ requests subsequent to the Constitutional Court’s judgment in their case
23. Subsequent to the Constitutional Court’s judgment (see paragraphs 33-35 below), the first applicant applied for revision of his pension.
24. On 10 March 2011 the State Social Insurance Agency acceded to his request in part and recalculated his pension as from 1 August 2009. As a result, the monthly amount of his pension was LVL 121.60 (approximately EUR 174). It was payable from 1 February 2011 onwards. His years of service in Russia were included in the overall period of employment. The first applicant did not bring a complaint against this decision before the administrative courts.
25. On the same date the State Social Insurance Agency recalculated his monthly pension supplement. As a result from 1 February 2011 he received LVL 24.50 (approximately EUR 35) in addition to his pension. He did not appeal against this decision.
26. It appears that the other applicants have not requested that their pensions be revised.
(d) Most recent information about the applicants’ pension
27. According to the most recent information provided by the applicants, they receive the following monthly pensions, including monthly pension supplement.
28. The first applicant receives LVL 146.10 (approximately EUR 209).
29. The second applicant receives LVL 196.36 (approximately EUR 280).
30. The third applicant receives LVL 198.07 (approximately EUR 283).
31. The fourth applicant receives LVL 91.15 (approximately EUR 130).
32. The fifth applicant receives LVL 101.36 (approximately EUR 144).
3. The Constitutional Court’s review
33. The first, second, fourth and fifth applicants lodged an application to the Constitutional Court (Satversmes tiesa), seeking a ruling that paragraph 1 of the transitional provisions of the Law on State Pensions was incompatible with Article 91 of the Constitution (prohibition of discrimination) and Article 14 of the Convention taken together with Article 1 of Protocol No. 1 to the Convention. The third applicant lodged a similar application. Their applications were joined.
34. In a judgment of 17 February 2011 (case no. 2010-20-0106), the Constitutional Court held that there had been no breach of the provisions cited. The Constitutional Court admitted that the legislator had established different principles in respect of Latvian nationals and “non-citizens” and that these two groups were treated differently when calculating the overall period of employment. The Constitutional Court drew a clear distinction between Andrejeva and the present case. The facts of these cases were different. Ms Andrejeva had lived in Latvia and had been subject to the central government of the Soviet Union or an employee of an enterprise of the Soviet Union; it was just that the regional department where she had worked had been located in the territory of Latvia. In the present case, however, the applicants had been working outside the territory of Latvia for periods of considerable length (ranging from 28 to 68% of their overall period of employment). There was no information that the present applicants would have formally been employed by a Soviet enterprise but actually worked in the territory of Latvia, which had been the case of Ms Andrejeva. Having examined the State’s obligations in relation to social rights under international law, including the Court’s case-law, the question of State continuity and noting that Latvia was not the successor of the rights and obligations of the Soviet Union, the Constitutional Court found that the difference in treatment for calculating retirement pension for Latvian nationals and “non-citizens” had objective and reasonable grounds.
35. With reference to the Court’s case-law, the Constitutional Court also noted the role of international agreements on social security. Latvia had concluded several agreements that envisaged mutual recognition of periods of employment to be taken into account in calculating State pensions. They referred to agreements with the United States of America (in force since 5 November 1992), Lithuania (in force since 31 January 1995), Estonia (in force since 29 January 1997, new agreement since 1 September 2008), Ukraine (in force since 11 June 1999), Finland (in force since 1 June 2000), Norway (in force since 18 November 2004), the Netherlands (in force since 1 June 2005), Canada (in force since 1 November 2006), Belarus (in force since 28 September 2010) and Russia (in force since 19 January 2011). The Constitutional Court thus held:
“Consequently, when calculating the period of employment for the applicant Ms Sivicka, the cooperation agreement between Latvia and Belarus on social security should be taken into account; however, the period accrued in Germany shall be included into the period of employment based on normative acts of the European Union (see European Parliament regulations nos. 883/2004, 987/2009 and 1231/2010).
Moreover, since 19 January 2011, the cooperation agreement on social security between Latvia and Russia has entered into force; it provides that pension shall be granted and disbursed in the country where the person resides at the moment of request of pension. Consequently, for the applicants Mr Savickis, Ms Sivicka and Ms Vagaponova, the period accrued in [what is now] the Russian Federation shall be included in the period of employment, whilst for Mr Podoļako – period spent in obligatory military service. It has been established in the agreement [with Russia] that pensions granted before coming into force of that agreement may be revised based on an application submitted by a person.
Consequently, the issues concerning inclusion of periods accrued outside the territory of Latvia in the period of employment [for calculation of State pension in Latvia] have been solved by concluding bilateral international cooperation agreements on social security or in accordance with legal acts of the European Union.”
B. Relevant domestic and international law and practice
36. Relevant domestic law and practice have been described in the Grand Chamber judgment in the above-cited Andrejeva case (§§ 25-38).
37. International agreements on social security concluded by Latvia have been described in the above-cited Andrejeva case (§§ 42-45).
38. In addition, since the adoption of the above-cited Andrejeva case more bilateral agreements have been concluded, most importantly, with Belarus (in force since 28 September 2010) and Russia (in force since 19 January 2011). Agreements with Belarus and Russia include the provisions concerning mutual recognition of periods of employment to be taken into account in calculating State pension.
COMPLAINT
39. The applicants complain under Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1 to the Convention that their employment period calculated for the purpose of receiving retirement pension in Latvia did not include those periods which had been accrued outside the territory of Latvia during the Soviet times. They allege that the only reason for this refusal was the fact that they did not have Latvian nationality.
QUESTIONS TO THE PARTIES
1. Have the applicants exhausted all effective domestic remedies following the Constitutional Court’s judgment in their case, as required by Article 35 § 1 of the Convention? In particular, have they applied for revision of their pension and/or pursued their complaints in that regard to the highest level of domestic courts?
2. Have the applicants suffered discrimination on the ground of their nationality, contrary to Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1 to the Convention?
3. The parties are requested to comment on the effect of the international agreements on social security concluded by Latvia on the applicants’ retirement pension.
4. The parties are requested to provide further details of the applicants’ employment during the Soviet times:
4.1. whom did they work for and where were their employers located, and
4.2. to provide specific places and dates of their employment.
APPENDIX
No.
First name LAST NAME
Birth year
Place of residence
Jurijs SAVICKIS
1939
Jūrmala
Genādijs ŅESTEROVS
1938
Olaine
Vladimirs PODOĻAKO
1948
Rīga
Asija SIVICKA
1946
Jūrmala
Marzija VAGAPOVA
1942
Rīga
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