FIFTH SECTION
DECISION
Application no. 21698/08
Georgijs SOROČINSKIS
against Latvia
The European Court of Human Rights (Fifth Section), sitting on 22 May 2018 as a Chamber composed of:
Angelika Nußberger, President,
Erik Møse,
André Potocki,
Síofra O’Leary,
Mārtiņš Mits,
Gabriele Kucsko-Stadlmayer,
Lado Chanturia, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 14 January 2008,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Georgijs Soročinskis, is a Latvian national who was born in 1938 and lives in Rīga. He was represented before the Court by Ms I. Nikuļceva, a lawyer practising in Riga.
2. The Latvian Government (“the Government”) were represented by their Agents, Ms I. Reine and subsequently by Ms K. Līce.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Allocation and recalculation of the retirement pension
4. On 20 November 1998 the applicant requested a retirement pension. At that time the applicant had the status of “permanently resident non‑citizen” of Latvia; thus, in accordance with paragraph 1 of the transitional provisions of the Law on State Pensions, the periods that he had spent in employment outside the territory of Latvia were not taken into account. Furthermore – under paragraph 13 of the transitional provisions of the Law on State Pensions – in view of the fact that the applicant had worked in Latvia for less than thirty years, his own average monthly “insurance wage” (that is to say the income in relation to which the insurance was paid) instead of the “average monthly insurance wage in the State” (that is to say the average monthly insurance wage of all insured persons in any given calendar year) was taken into account for the purpose of calculating his pension. Accordingly, his monthly pension was set at 9.96 Latvian lats (LVL – approximately 14 euros (EUR)). As this sum was lower than the minimum pension set by the Cabinet of Ministers, the applicant in fact received LVL 31 (approximately EUR 43).
5. On 11 June 1999 an agreement between Latvia and Ukraine on cooperation in the field of social security entered into force, and on 17 June 1999 the applicant applied for a recalculation of his pension to take into account the periods during which he had worked in Ukraine. On 9 February 2000, on the basis of having acquired citizenship of Latvia, the applicant applied for a further recalculation to take account of the remaining periods during which he had worked abroad. The State Social Insurance Agency took into account the periods during which the applicant had worked abroad when determining his aggregate insurance period (for a definition of “insurance period” see paragraph 16 below) as being forty years and twenty-three days; however, as the employment periods accumulated in Latvia had not increased, his own average monthly insurance wage (and not the average monthly insurance wage in the State) was again taken into account in the calculation of his pension. Even with those additions, the applicant’s pension was still below the level of the minimum pension, as set by the Cabinet of Ministers. Thus, after the formal recalculation of his pension, the pension the applicant actually received did not increase. On 1 January 2002, in accordance with amendments to the Law on State Pensions, the applicant’s pension was raised to LVL 45.00 (approximately EUR 62), which was the minimum pension for persons whose insurance period exceeded thirty years.
6. The applicant continued working, and on 2 July 2003 he applied for yet another recalculation of his pension. On 11 September 2003 the State Social Insurance Agency recalculated the applicant’s pension on the basis of the insurance contributions he had made following his retirement. It took the additional time period worked into account in determining the applicant’s aggregate insurance period. However, as the period the applicant had been employed in Latvia still did not reach thirty years, the average monthly insurance wage in the State was not taken into account in the calculation of his pension. Thus, for a total employment period of forty-one years eleven months and twenty-eight days the applicant’s pension was set at LVL 25.09 (approximately EUR 34) per month. Therefore, the applicant continued receiving the minimum pension for persons whose insurance period exceeded thirty years, which by then had been raised to LVL 46.04 (approximately EUR 63).
7. As the applicant continued working, his aggregate insurance period reached forty-two years ten months and twenty-eight days. As of 1 August 2016 his monthly pension was raised to EUR 190.12, with an additional supplement of EUR 37.85.
2. Administrative proceedings
8. The applicant challenged the decision of the State Social Insurance Agency of 11 September 2003 before the administrative courts, complaining that following the entry into force of the agreement between Latvia and Ukraine on cooperation in the field of social security and after he had acquired Latvian citizenship his pension had not increased. He also noted that all the circumstances forming the basis of his complaint had been set out in his initial application of 2 July 2003. Invoking paragraphs 13 and 33 of the transitional provisions of the Law on State Pensions (see paragraphs 17-18 below) he requested that his pension be recalculated by taking into account the time he had worked in Ukraine.
9. On 25 February 2005 the Administrative District Court dismissed the applicant’s complaint. Having found that the crux of the applicant’s complaint was the alleged failure to take into account the periods he had worked in Ukraine, the court reassessed the decision of the State Social Insurance Agency and concluded that his pension had been calculated correctly.
10. The applicant appealed against this decision, stating that all the circumstances forming the basis of his complaint had been outlined in his initial application. The applicant invoked paragraphs 13 and 33 of the transitional provisions of the Law on State Pensions. On 29 June 2006 the Administrative Regional Court dismissed the applicant’s appeal. The applicant lodged an appeal on points of law on the same grounds.
11. On 15 December 2006 the Senate of the Supreme Court set aside the judgment of the Administrative Regional Court on the grounds that the court had not obtained and reviewed the applicant’s initial application of 2 July 2003 to the State Social Insurance Agency. As a result, the court had not been able to clarify the exact scope of the applicant’s complaint.
12. On 22 May 2007 the Administrative Regional Court examined the applicant’s complaint in oral proceedings. During his oral submissions the applicant emphasised that he requested that his pension be recalculated on the basis of the average salary in the country. His total employment period was forty-two years, whereas the Law on State Pensions required the insurance period to be no less than thirty years in order for the average monthly insurance wage in the State to be used in the calculation. Despite the fact he had worked for forty-two years, only seventeen years had been taken into account. The applicant concluded by stating: “If you are a citizen then everything is taken into account in the calculation, but if you are not ‑ then it is not.” The respondent (that is to say the State Social Insurance Agency) then requested the applicant to clarify the scope of the complaint, to which he replied: “I request the pension to be recalculated on the basis of the average salary in the country.”
13. On 14 June 2007 the Administrative Regional Court dismissed the applicant’s complaint. It observed that in his initial application of 2 July 2003 the applicant had requested that his pension be recalculated in accordance with general rules. It furthermore noted that the periods he had worked in Ukraine had been taken into account already since the agreement between Latvia and Ukraine on cooperation in the field of social security had entered in force. Furthermore, following the applicant’s acquisition of Latvian citizenship the periods he had worked in Russia and had spent in military service had also been taken into account. The decision that was being challenged concerned the increase in the applicant’s insurance period. Thus, the entirety of his insurance period of forty-one years eleven months and twenty-eight days had been taken into account in the calculation of his pension. In addition, the applicant was receiving the minimum State pension in the amount set for persons whose insurance period was above thirty years. With regard to paragraph 13 of the transitional provisions of the Law on State Pensions the court noted that the applicant’s pension had been calculated correctly, but in relation to paragraph 33 it observed that this provision was not applicable to the applicant owing to its temporal limitation.
14. In his appeal on points of law the applicant again reiterated that all the circumstances that formed the basis of his claim had been set out in the initial application. He also stated that his pension had not been recalculated on the basis of the amendments to the Law on State Pensions that had entered into force on 1 January 2002. These changes applied to persons whose insurance period was above thirty years, whereas his insurance period amounted to more than forty years. Despite that, his own salary (instead of the average salary in the country) had been taken into account when calculating the level of the pension to which he had been entitled. The applicant referred to paragraphs 13 and 33 of the transitional provisions of the Law on State Pensions, as well as to procedural provisions of the Administrative Procedure Law.
15. On 29 August 2007 the Senate of the Supreme Court rejected the applicant’s appeal on points of law, noting that it contained no arguments as to how the judgment of the Administrative Regional Court had contravened the legal provisions he had referred to.
B. Relevant domestic law and practice
1. The Law on State Pensions
16. The Law on State Pensions, which entered into force on 1 January 1996, provides that one of the components to be taken into account in the calculation and allocation of pensions is the “insurance period”. Under section 1 of the Law on State Pensions, the insurance period is the period of time over which an insured person has made social insurance contributions or such contributions have been made or should have been made on that person’s behalf. With regard to the time period prior to 1 January 1991 (when the social insurance system had not yet been established), paragraph 1 of the transitional provisions of the Law on State Pensions, as in force at time when it was applied to the applicant, provided:
“1. In the case of Latvian citizens, repatriated persons, and their family members and their descendants, periods of employment and periods treated as equivalent to employment that have been accrued within or outside Latvia prior to 1 January 1991 shall count towards the insurance period, which is necessary for the allocation ([or] recalculation) of the State pension, irrespective of [any prior] payment of social insurance contributions. In the case of foreign nationals and stateless persons who were resident in Latvia on 1 January 1991, the insurance period shall be composed of periods of employment and periods treated as equivalent to employment that have been accrued within Latvia, as well as periods treated as equivalent to employment that have been accrued outside Latvia in the cases specified in sub-paragraphs (4), (5) and (10) of this paragraph. The following periods, which are treated as equivalent to employment accrued up to 1 January 1991 ... shall be considered as counting towards the insurance period to be taken into account in calculating the pension:
...
(4) periods of study at higher-education institutions, and at other training institutions at post-secondary level;
(5) periods of doctoral study, ... postgraduate education or ongoing vocational training;
...
(10) time spent in places of detention by victims of political persecution ... [or] in exile, and time spent escaping from such places, those periods to be multiplied by three, or by five in the case of time spent in the [Soviet] Far North and regions treated as equivalent. ...”
17. Under paragraph 13 of the transitional provisions of the Law on State Pensions, with respect to the transitional period, another component that is taken into account in the calculation of the pension is the person’s average monthly insurance wage within a specified time period. Thus, with respect to persons who retired in 1998, that person’s average monthly insurance wage over twenty-four months from 1996 until 1998 was taken into account. If, however, (i) the person’s insurance period in Latvia was not less than thirty years (save for politically persecuted persons, in relation to whom a different methodology applied) and if the person’s average monthly insurance wage for the last twenty-four months was below the average monthly insurance wage in the State in 1997, or (ii) the person had been officially unemployed, the average monthly insurance wage in the State in 1997 was taken into account in the calculation of his or her pension.
18. On 1 January 2002 the transitional provisions of the Law on State Pensions were supplemented by paragraph 33, which provides that in calculating the pension payable to a person whose insurance period is not less than thirty years and whose average monthly insurance wage, as calculated in accordance with paragraph 13 of these transitional provisions, is lower than the average monthly insurance wage in the State in the period between 1 January 1996 and 31 December 1999, the average monthly insurance wage in the State over the said forty-eight months should be taken into account. The retrospective application of this provision is limited to pensions that were granted after 1 January 2000.
2. Application of paragraph 13 of the transitional provisions of the Law on State Pensions
19. The Government submitted a letter of 7 September 2016 from the Ministry of Welfare, the relevant part of which stated:
““The favourable model of calculating a person’s pension” enshrined in paragraph 13 of the transitional provision of the Law would not be applied to a Latvian citizen in the following situations:
1) In January 1998 a Latvian citizen requests a retirement pension for a total insurance period of 32 years, of which 9 years are [accrued] in Latvia but 23 years [are accrued] in Georgia. The pension is calculated for 32 years but the average monthly insurance wage in the State is not taken into account in the calculation of the initial capital, as the insurance period in Latvia is below 30 years;
2) In January 2016 a Latvian citizen requests a retirement pension for a total insurance period of 40 years, of which 24 years are [accrued] in Latvia but 16 years [are accrued] in Estonia. In accordance with the legislation, Latvia grants and pays the retirement pension only for the 24 years [accrued] in Latvia; accordingly, the average monthly insurance wage in the State is not taken into account in the calculation of the initial capital, as the insurance period for which Latvia pays is below 30 years;
3) In January 2012 a Latvian citizen requests a retirement pension for a total insurance period of 38 years, of which 25 years are [accrued] in Latvia but 13 years [are accrued] in Belarus. In accordance with the Agreement between the Republic of Latvia and Belarus on the cooperation in the field of social security, Latvia grants the retirement pension only for the insurance period accrued in Latvia – the 25 years. Accordingly, the average monthly insurance wage in the State is not taken into account in the calculation of the initial capital, as the insurance period for which Latvia pays is below 30 years.”
COMPLAINT
20. The applicant complained under Article 14 of the Convention, in essence, read in conjunction with Article 1 of Protocol No. 1 to the Convention, that in the calculation of his retirement pension he had been discriminated against on the grounds of his lack of Latvian citizenship at the time that his pension had been allocated.
THE LAW
21. The applicant argued that the manner in which his retirement pension had been calculated had been contrary to Article 14 of the Convention, in essence, read in conjunction with Article 1 of Protocol No. 1 to the Convention. These provisions read:
Article 14 of the Convention
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
22. The Government argued that the case was inadmissible. Firstly, they contended that the complaint was incompatible ratione materiae with the provisions of the Convention, as the applicant could not claim to have had a “legitimate expectation” of obtaining effective enjoyment of a property right, as guaranteed by Article 1 of Protocol No. 1. Secondly, the applicant had failed to exhaust the available domestic remedies, as in the administrative proceedings he had never invoked his rights under Article 14 of the Convention. In particular, he had not claimed that he had been subjected to different treatment because of his legal status as a “permanently resident non-citizen” of Latvia. With regard to the applicant’s submission regarding his alleged lack of funds and skills, the Government pointed out that he had not sought legal aid in respect of the administrative proceedings in question. Lastly, the applicant had not challenged before the Constitutional Court the legal provisions that had been relied upon in the calculation of his pension.
23. The applicant disagreed. With respect to the compatibility ratione materiae, the applicant invoked the cases of Stec and Others v. the United Kingdom ((dec.) [GC], nos. 65731/01 and 65900/01, § 55, ECHR 2005‑X) and Andrejeva v. Latvia ([GC], no. 55707/00, § 80, ECHR 2009). In relation to the non-exhaustion argument, the applicant asserted that in his submissions to the State Social Insurance Agency and the administrative courts he had pointed out that in the calculation of his pension he had been discriminated against on the grounds of his citizenship. In particular, he had indicated that paragraph 13 of the transitional provisions of the Law on State Pensions used the term “in Latvia”, which was interpreted differently with respect to citizens and non-citizens. The applicant conceded that the documents he had submitted to the courts had been “short, formal, and very similar.” As he was unable to draft in Latvian and had no funds to hire a lawyer, the applicant had solicited help from an NGO, but the documents prepared by it, owing to their simplicity, had not fully reflected his views. Nonetheless, the applicant had believed that the administrative courts, being guided by the principle of objective investigation, would adjudicate the case fairly. The applicant also referred to the oral submissions that he had made during the hearing of 22 May 2007, during which he had directly pointed to the difference between citizens and non-citizens (see paragraph 12 above). As to the Constitutional Court, the applicant submitted that the alleged violation had emanated from the interpretation of domestic legal provisions; hence, recourse to the Constitutional Court would not have constituted an effective remedy.
24. Firstly, the Court notes that, in the light of its well-established case‑law, the applicant had a pecuniary interest falling within the ambit of Article 1 of Protocol No. 1 (see, among many other authorities, Stec and Others, cited above, § 53, ECHR 2006‑VI, and Fábián v. Hungary [GC], no. 78117/13, § 117, ECHR 2017 (extracts)). Hence, Article 14 of the Convention is applicable to his complaint that this pecuniary interest had been infringed on the basis of his citizenship (compare Andrejeva, cited above, §§ 77-80). Thus, the Government’s objection concerning compatibility ratione materiae is dismissed.
25. Concerning the exhaustion of domestic remedies the Court reiterates that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system (see Chiragov and Others v. Armenia [GC], no. 13216/05, § 115, ECHR 2015, and Larionovs and Tess v. Latvia (dec.), no. 45520/04, 25 November 2014). The rule of exhaustion of domestic remedies requires that the complaints intended to be made subsequently at Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used (see Akdivar and Others v. Turkey, 16 September 1996, § 66, Reports of Judgments and Decisions 1996‑IV). If the complaint presented before the Court has not been put, either explicitly or in substance, to the national courts when it could have been raised in the exercise of a remedy available to the applicant, the national legal order has been denied the opportunity to address the Convention issue which the rule on exhaustion of domestic remedies is intended to give it (see Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004‑III). It is not sufficient that the applicant may have unsuccessfully exercised another remedy which could have overturned the impugned measure on other grounds not connected with the complaint of a violation of a Convention right. It is the Convention complaint which must have been aired at national level for there to have been exhaustion of “effective remedies” (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 75, 25 March 2014).
26. The Court agrees with the applicant that his complaint, in the manner in which it was formulated before the domestic authorities and is currently raised before the Court, concerns the interpretation and application of domestic law. The Court has frequently held that the procedure in respect of an individual constitutional complaint in Latvia cannot serve as an effective remedy if the alleged violation results only from an erroneous application or interpretation of a legal provision, the content of which is not unconstitutional (see, for example, Schmidt v. Latvia, no. 22493/05, § 61, 27 April 2017). Thus, given the particular circumstances of the case, and without prejudice to the possibility of challenging domestic legal provisions before the Constitutional Court in relation to a differently formulated complaint, the Court finds that in the present case it stands to be determined whether the applicant raised his discrimination complaint in the proceedings before the administrative courts.
27. The Court observes that the dispute in the present case centers on the interpretation of paragraph 13 of the transitional provisions of the Law on State Pensions, which requires an insurance period of at least thirty years to be accrued in Latvia for the average monthly insurance wage in the State to be used in the calculation – a factor that would have increased the applicant’s pension. From the applicant’s submissions before the Court it can be seen that he believes that this requirement was interpreted in the light of paragraph 1 of the transitional provisions of the Law on State Pensions, which distinguishes between citizens and non-citizens with respect to the periods worked and otherwise spent abroad that ought to be equated with insurance periods in Latvia (see paragraph 16 above). Hence, the applicant is of the view that with regard to Latvian citizens, the periods that they have worked abroad are taken into account in determining whether their insurance period “in Latvia” is higher than thirty years. The applicant believes that because he had the status of “permanently resident non‑citizen” of Latvia at the time that his pension was allocated he was not in a position to profit from this more favorable interpretation. According to the applicant, this difference in treatment was not remedied after he acquired Latvian citizenship.
28. Having examined the material before it the Court cannot conclude that this position was put before the domestic courts. The reasoning of the domestic courts indicates that they analysed the applicant’s claim that the periods he had worked in Ukraine had not been taken into account in the calculation of his pension – namely, that the pension had not been calculated correctly. Despite that, in his appeals the applicant consistently limited himself to reiterating that the circumstances substantiating his claim had been outlined in his initial submissions, whereby he had only requested that his pension be calculated in accordance with the applicable rules. In none of his appeals did he indicate that the periods he had worked outside Latvia had not been taken into account in deciding whether his own or the average monthly insurance wage in the State should be taken into account in calculating his pension, let alone that (according to him) this had resulted in his being treated differently, as compared to persons who had held Latvian citizenship at the moment their pensions had been calculated.
29. The Court furthermore observes that the administrative courts took particular care to clarify the essence of the applicant’s grievances: specifically, (i) the Senate of the Supreme Court annulled the judgment of the Administrative Regional Court so that the exact scope of the applicant’s complaint could be established, (ii) the applicant’s original application to the State Social Insurance Agency was obtained and reviewed, and (iii) the applicant was invited to make his submissions in an oral hearing (see paragraphs 11-13 above). At the hearing of 22 May 2007 the applicant submitted that he wished his pension to be calculated on the basis of the average monthly insurance wage in the State; however, he provided no explanation as to how the court should arrive at this conclusion or how a failure to do so would mean that persons who had Latvian citizenship at the moment of calculation of their pensions were treated differently than persons who, like the applicant, acquired Latvian citizenship later.
30. Even though towards the end of his oral submissions the applicant made a statement implying that (according to him) citizens and non-citizens were subject to different rules when their pensions were calculated (see paragraph 12 above), this statement alone is not sufficient for the Court to conclude that the applicant outlined the discrimination of which he is now complaining in a manner such that the domestic courts could have addressed the technical and complex questions which potentially arise in this field in full knowledge of the scope and nature of the applicant’s complaint. In particular, when asked to clarify his claim, the applicant complained, as he had done throughout the proceedings, about the manner in which his pension had been calculated and reiterated his request that the average monthly insurance wage in the State be used in the calculation of his pension. He provided no further explanation in respect of (i) his apparent assertion that “permanently resident non-citizens” of Latvia were subject to less favorable treatment in the calculation of their pensions and (ii) what relevance that bore to his case, in view of the fact that he was a citizen of Latvia.
31. Furthermore, even though the Administrative Regional Court did not address the applicant’s aforementioned statement in its judgment of 14 June 2007, the applicant did not point to this fact in his appeal on points of law. Likewise, his appeal on points of law included no expression of his belief that citizens and non-citizens were treated differently in the calculation of their pensions and that he himself had been treated less favorably on the grounds of his lack of Latvian citizenship at the time that his pension was allocated (see paragraph 14 above). Hence, the applicant did not raise, at least in substance, his discrimination complaint before the Senate of the Supreme Court.
32. The Court thus observes that the applicant aired for the first time before this Court his belief that paragraph 13 of the transitional provisions of the Law on State Pensions was interpreted in the light of paragraph 1 of those provisions.
33. Accordingly, the Court cannot establish that the applicant put before the domestic authorities his claim that he had been discriminated against on the basis of the time at which he had acquired his citizenship. Therefore, the domestic courts did not review the discrimination claim that is now brought before the Court.
34. The Court is mindful of the applicant’s assertion that he did not have sufficient command of Latvian language and that he had no funds with which to hire a lawyer. However, like the Government, it observes that there is no indication in the case file that the applicant attempted to acquire legal aid for the proceedings before the administrative courts.
35. On the basis of the information before it, the Court cannot conclude that the national authorities were provided with an opportunity to address the violations alleged against them (contrast Schalk and Kopf v. Austria, no. 30141/04, § 69, ECHR 2010, and Marić v. Croatia, no. 50132/12, §§ 52-53, 12 June 2014).
36. Accordingly, this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court, unanimously
Declares the application inadmissible.
Done in English and notified in writing on 14 June 2018.
Claudia WesterdiekAngelika Nußberger
RegistrarPresident
Full & Egal Universal Law Academy