4 June 2009
FIFTH SECTION
Application no. 14480/08 by Boris TARKOEV and Others
Application no. 47916/08 by Yury MININ and Others
against Estonia
lodged on 24 March and 2 October 2008, respectively
STATEMENT OF FACTS
THE FACTS
The applicants are former servicemen of the Soviet and/or Russian Army who had retired from service before the withdrawal of the Russian Army from Estonia in 1994. They reside in Estonia and are Russian or Estonian nationals whose names along with other relevant information are listed below (Annex). They are represented before the Court by Mr M. Rusakov, a lawyer at the Legal Information Centre for Human Rights, an NGO based in Tallinn.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Background of the case
On 26 July 1994 Estonia and Russia concluded an agreement concerning social guarantees to the retired military personnel of the armed forces of the Russian Federation on the territory of Estonia (“the Agreement”). The Agreement provided that retired military personnel, that is persons discharged from army service and receiving pensions, could apply for residence permits in Estonia. The Russian Federation undertook to secure payment of pensions to the persons concerned according to Russian legislation. Furthermore, it was stipulated that the retired military personnel could also apply for an Estonian pension, in which case the payment of their Russian pension was suspended while they were receiving an Estonian pension, and conversely.
Until 1998 the Russian military pension was in most cases considerably higher than the Estonian national pension. Then, after the change in the economic situation and amendment of the pension law, the Russian military retirees faced the situation where they could choose to receive a Russian military pension (smaller than the average national pension in Estonia) or an Estonian national pension for fewer years of service. In the latter case, only the years of pensionable service in the civil sphere – and not the years of service in the Soviet/Russian armed forces – were taken into account. According to the applicants, in both cases the sums are rather small and not enough for survival in Estonia.
In 2005 the Estonian Social Insurance Board (Sotsiaalkindlustusamet) and the Social Department of the Embassy of the Russian Federation in Estonia concluded a cooperation agreement aimed at exchange of information about granting Estonian pensions to Russian military retirees. After the conclusion of the agreement the Estonian social security authorities no longer required the persons concerned to present written confirmation that they had refused the Russian military pension. The Estonian authorities assumed that the Russian Embassy would discontinue payment of military pensions on receipt of notification of payment of an Estonian pension. From January 2006 many military retirees, including the applicants, who had worked in Estonia in the civil sphere and fulfilled the requirements (in particular at least fifteen years of pensionable service in Estonia) for receiving an Estonian national pension, applied for and were granted, “for life”, such a pension. However, a few months later, when the Estonian authorities realised that the Russian Embassy was continuing to pay the persons concerned Russian military pensions, they suspended payment of the Estonian national pension and requested that the persons concerned provide confirmation of suspension of payment of the Russian military pension.
2. Court proceedings initiated by the applicants
The applicants challenged the decisions of the Estonian social security authorities to suspend the payment of the Estonian national pension. They lodged complaints with the competent administrative courts against the individual decisions of the Estonian social security authorities. Their complaints were dismissed in separate administrative court proceedings by the administrative courts and courts of appeal. In the case of all applicants, with the exception of Mr V. Gladõšev (application no. 14480/08), the Supreme Court dismissed the appeals as manifestly ill-founded. Mr V. Gladõšev’s appeal was refused by the Supreme Court because of his failure to pay the court fee of 400 kroons (EEK, corresponding to approximately 26 euros (EUR)).
The underlying reasoning of the individual decisions of the social security authorities as well as the complaints and judgments in respect of each of the applicant were similar and can be summarised as follows.
The applicants complained against the decisions to suspend the payment of the Estonian national pension and requested that the courts order the social security authorities to resume payment of the pension. They argued that they had been discriminated against and that their property rights had been violated.
The courts dismissed the applicants’ complaints. They found that the clear and unequivocal wording of Article 5 of the Agreement provided that only one of the States, and not both States simultaneously, would pay a pension to the military retirees. Simultaneous payment of the Russian military pension and the Estonian old age pension was excluded because the State Pension Insurance Act (Riikliku pensionikindlustuse seadus) provided that if an international agreement entered into by the Republic of Estonia contained provisions which differed from the provisions of this Act for the grant or payment of pensions, the international agreement applied.
The courts did not exclude the possibility that people were living in Estonia who were receiving military pensions from a foreign country and, at the same time, a state pension from Estonia. Nevertheless, they found that the Russian military retirees had not been discriminated against, as their situation was not comparable to that of persons who had served in the armies of States which were members of the same international organisations as Estonia, such as NATO or the European Union. The courts pointed out that the relations of Estonia with those countries had been established on a different basis.
The courts dismissed the argument concerning an alleged violation of the applicants’ legitimate expectation, noting that they could have no legitimate expectation of receiving two pensions simultaneously, as the Agreement provided that a person could not receive two pensions at the same time.
The courts also rejected the applicants’ allegation that their property rights had been violated, finding that the applicants, as they were continuing to receive their Russian military pension, did not comply with the conditions for receiving the Estonian pension and that therefore they had no property rights within the meaning of Article 32 of the Estonian Constitution or Article 1 of Protocol No. 1 to the Convention. The courts emphasised in this context that the applicants had the right to opt for an Estonian pension instead of the Russian one at any moment they wished.
The courts found that the essence of the applicants’ pension rights had not been impaired, as they had been guaranteed an income sufficient for subsistence. They noted that according to Article 3 of the Agreement the applicants received a pension at least in the amount of the minimum pension in Estonia.
Finally, the courts noted that the States parties to the Agreement could amend the Agreement so that each of them undertook to pay pensions according to the pensionable years of work in the respective country. However, this was a matter of political will; the actual Agreement did not foresee such a possibility and there were no grounds for not applying the Agreement.
B. Relevant domestic and international law
The State Pension Insurance Act (Riikliku pensionikindlustuse seadus), as in force at the material time, provided:
Section 4 – Right to receive a state pension
“(1) Under the conditions provided for in this Act, state pensions shall be granted and paid to:
1) permanent residents of Estonia;
2) aliens residing in Estonia on the basis of temporary residence permits or temporary right of residence.
...
(3) If an international agreement entered into by the Republic of Estonia contains provisions which differ from the provisions of this Act for the grant or payment of pensions, the international agreement applies.”
Section 7 – Right to receive an old-age pension
“(1) The following persons have the right to receive an old-age pension:
1) persons who have reached sixty-three years of age and
2) whose pension qualifying period provided for in section 27 of this Act and earned in Estonia is fifteen years.
...”
Section 11 – Amount of old-age pension
“(1) An old-age pension consists of three components:
1) the base amount;
2) a component calculated on the basis of years of pensionable service, the amount of which equals the number of years of pensionable service (section 28) multiplied by the value of a year of pensionable service;
3) an insurance component, the amount of which equals the sum of the annual factors of an insured person (section 12) multiplied by the value of a year of pensionable service.
...”
Section 27 – Pension qualifying period
“(1) A pension qualifying period is a period during which an insured person is engaged in an activity which grants the right to receive a state pension.
(2) A pension qualifying period shall be divided as follows:
1) the years of pensionable service, which is calculated up to 31 December 1998;
2) the accumulation period, which is calculated from 1 January 1999.
...”
Section 28 – Time included in years of pensionable service
“(1) Time during which the employer of a person is required to pay social tax for the person shall be included in the years of pensionable service of the person.
...”
The relevant provisions of the Agreement concerning social guarantees to retired military personnel of the armed forces of the Russian Federation on the territory of Estonia, concluded between Estonia and Russia on 26 July 1994, provide as follows:
Article 3
“The Russian Federation shall secure pensions for military retirees on the territory of the Republic of Estonia regardless of their nationality, on the conditions and according to the norms established by the legislation of the Russian Federation. The pension shall be paid at least in the amount of the minimum pension in the Republic of Estonia, including compensation.
...”
Article 5
“The authorities of the Republic of Estonia may establish and pay at the cost of the Republic of Estonia pensions to military retirees who have a right to a pension under the laws of the Republic of Estonia, subject to the wishes of those military retirees.
In this case the payment of the pension that had earlier been established by the Russian Federation shall be suspended for the period of payment of pensions by the authorities of the Republic of Estonia, and vice versa.”
COMPLAINTS
1. The applicants complain that they were deprived of their possessions in violation of Article 1 of Protocol No. 1 to the Convention. They rely on two elements in this connection: first, that they have made contributions to the pension funds but do not receive any pension whatsoever and, second, that their legitimate expectation of receiving a pension has been violated by the suspension of payment of the pension that had been granted to them “for life”.
2. The applicants argue that the Estonian pension laws do not generally forbid receiving pensions from foreign states and that they – persons in receipt of Russian military pensions – are the only exception to that general rule. They consider that their different treatment amounts to a violation of Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1.
3. The applicants complain under Article 6 § 1 of the Convention that the courts lacked impartiality and undertook the role of the defendant’s lawyer.
4. Finally, Mr V. Gladõšev complains that he was denied access to court. The Supreme Court refused his appeal because of his failure to pay the court fee. This also amounted to discrimination against him on the basis of his property status. He relies on Article 6 § 1 separately and in conjunction with Article 14.
ANNEX
Application no. 14480/08
No.
Applicant
Nationality
Born
Number of pensionable years in Estonia as determined by the Estonian authorities in 2006
Supreme Court decision
to reject the appeal
1.
Boris Tarkoev
Russian
1933
No information
24.09.2007
2.
Victor Baranov
Russian
1936
23.193
24.09.2007
3.
Albert Kropachev
Russian
1937
22.635
24.09.2007
4.
Rudolf Heinsoo
Estonian
1929
28.278
24.09.2007
5.
Elmu Kruuser
Estonian
1936
28.368
24.09.2007
6.
Victor Lesnoy
Russian
1937
22.873
24.09.2007
7.
Mikhail Ryazantsev
Russian
1923
25.499
24.09.2007
8.
Yury Tsivilskiy
Russian
1930
26.493
24.09.2007
9.
Vassili Gladõšev
Estonian
1959
No information
-
Application no. 47916/08
No.
Applicant
Nationality
Born
Number of pensionable years in Estonia as determined by the Estonian authorities in 2006
Supreme Court decision
to reject the appeal
1.
Yury
Minin
Russian
1936
20.849
30.04.2008
2.
Anatoly Afanasiev
Russian
1928
18.435
07.05.2008
3.
Madad
Aliev
Russian
1938
18.476
07.05.2008
4.
Georgy Dzevulskiy
Russian
1929
20.386
07.05.2008
5.
Aleksander
Grünstein
Estonian
1925
35.550
30.04.2008
6.
Valeri
Guilimson
Russian
1940
18.735
30.04.2008
7.
Arvo
Haljak
Estonian
1933
28.553
07.05.2008
8.
Boris
Klepinin
Russian
1939
20.930
30.04.2008
9.
Yury
Kokurin
Russian
1933
19.055
30.04.2008
10.
Petr
Lavrichenko
Russian
1939
16.540
30.04.2008
11.
Grigori
Maksyutin
Russian
1919
28.867
30.04.2008
12.
Moisey
Medvedik
Russian
1925
No information
30.04.2008
13.
Konstantin Nesterenko
Russian
1939
21.650
30.04.2008
14.
Dmitri
Novikov
Russian
1919
23.945
30.04.2008
15.
Feodor
Parfenyuk
Russian
1931
19.868
07.05.2008
16.
Serafim
Philippov
Russian
1937
16.093
07.05.2008
17.
Leonhard
Puksand
Estonian
1933
30.072
30.04.2008
18.
Valdur
Rannasalu
Estonian
1933
19.349
30.04.2008
19.
Valentin
Rubtsov
Russian
1937
37.932
30.04.2008
20.
Lidia
Sazanova
Russian
1930
15.878
30.04.2008
21.
Anatoly
Shalaev
Russian
1939
17.955
30.04.2008
22.
Nikolay
Sholokhov
Russian
1928
15.831
07.05.2008
23.
Ivan
Simon
Russian
1942
17.088
30.04.2008
24.
Petr
Slepnev
Russian
1936
23.075
30.04.2008
25.
Nikolai
Smerdov
Russian
1924
24.570
07.05.2008
26.
Sergey
Solodkiy
Russian
1927
23.389
30.04.2008
27.
Yury
Stepanov
Russian
1928
16.562
30.04.2008
28.
Gennady
Studenetskiy
Russian
1937
16.855
07.05.2008
29.
Jevgeni
Sulai
Estonian
1935
22.178
30.04.2008
30.
Nikolay
Tiranov
Russian
1935
17.278
30.04.2008
31.
Nikolay
Trushkov
Russian
1923
29.823
30.04.2008
32.
Arkady
Tulyakov
Russian
1927
23.985
30.04.2008
33.
Semen
Valdman
Russian
1933
No information
07.05.2008
34.
Vasily
Yurkevich
Russian
1933
20.644
30.04.2008
35.
Georgy
Zhdanov
Russian
1928
28.403
30.04.2008
36.
German
Znoev
Russian
1936
21.162
30.04.2008
QUESTIONS TO THE PARTIES
1. Have the applicants suffered discrimination in the enjoyment of their Convention rights contrary to Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1?
1.1. In particular, with the exception of the Russian military retirees falling under the Estonian-Russian Agreement, does the entitlement to an Estonian pension depend on whether the person concerned is in receipt of a foreign pension, given that he or she fulfils the criteria for receiving an Estonian pension? If the general regulation does not exclude that a person in receipt of a foreign pension receives an Estonian pension at the same time, is the difference in treatment between the applicants on the one hand, and other individuals who have completed at least fifteen years of pensionable service in Estonia and receive concurrently an Estonian and a foreign pension on the other, compatible with Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1?
1.2. Is the difference in treatment between the applicants on the one hand, and other individuals who have completed at least fifteen years of pensionable service in Estonia (regardless of whether they receive a foreign pension), on the other, compatible with these provisions?
2. Have the applicants been deprived of their possessions within the meaning of Article 1 of Protocol No. 1, on account of the fact that they receive no pension for their years of civil service in Estonia? If so, was that deprivation necessary to control the use of property in accordance with the general interest? In particular, did that deprivation impose an excessive individual burden on the applicants?
Full & Egal Universal Law Academy