Information Note on the Court’s case-law No. 135
November 2010
Tarkoev and Others v. Estonia - 14480/08
Judgment 4.11.2010 [Section V]
Article 14
Discrimination
Refusal, under terms of bilateral agreement, of Estonian pension to servicemen in receipt of Russian military pension: no violation
Facts – In 1994, on concluding a treaty for the withdrawal of Russian troops from Estonian territory, Estonia and the Russian Federation signed a bilateral agreement whereby retired Russian (Soviet) military personnel on the territory would be entitled to apply for residence permits in Estonia and to receive a Russian military pension. Alternatively, provided they had reached the minimum age for retirement under Estonian law and had worked there for at least fifteen years (excluding time spent in Russian (Soviet) military service), they could apply for an Estonian pension, in which case the Russian pension would be suspended. The applicants, who were former Russian (Soviet) military personnel, were in receipt of both pensions until payments of the Estonian old-age pension were discontinued when the Estonian authorities learned that they were also in receipt of a Russian military pension. In their application to the European Court, the applicants complained that they had been discriminated against when compared to other persons who fulfilled the conditions for the receipt of the Estonian pension. In that connection, they noted that there was no prohibition under Estonian law on receiving an Estonian pension concurrently with a foreign pension and that none of Estonia’s other bilateral agreements on social insurance prohibited the award of an Estonian pension to persons who satisfied the conditions for entitlement.
Law – Article 14 in conjunction with Article 1 of Protocol No. 1: Although there was no obligation on a State under Article 1 of Protocol No. 1 to create a welfare or pension scheme, if a State did decide to do so the legislation had to be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No. 1 for persons satisfying its requirements. Article 14 was therefore applicable.
The difference in the applicants’ treatment compared to other persons who had completed at least fifteen years of pensionable employment in Estonia was not based on the applicants’ nationality or ethnic origin and it was questionable whether it was based on any other personal characteristic or “status”. However, it was not necessary to determine that matter because the applicants were not, in any event, in a comparable situation with any other group of pensioners eligible for an Estonian pension.
Firstly, the applicants had received the Russian military pension on the basis of the bilateral agreement that had been signed in 1994 in connection with the withdrawal of the Russian troops. That agreement only applied to persons who had already retired and were in receipt of the Russian military pension when it was signed. The conditions on which the Estonian authorities had agreed to accept the continued presence of Russian military retirees on their territory had to be seen in the context of the Russian Federation’s primary obligation to secure the withdrawal of its forces. The agreement did not concern any military pensioners who had moved to Estonia after it was signed. Secondly, those Russian military pensioners who had remained in Estonia had been fully aware at the time that receipt of a Russian military pension would mean that they would not be entitled to an additional Estonian pension if they started or continued work in the civil sphere in Estonia. Thirdly, under the terms of the agreement, the applicants were guaranteed a pension at least equal to the minimum pension in Estonia. Lastly, if not in receipt of the Russian military pension they were entitled to apply for the Estonian old-age pension. While in such a case their years of service in the Russian (Soviet) army would not be taken into account for the calculation of their Estonian pension, Estonia could not be considered responsible for any pension payments for such service. Service in the Russian (Soviet) armed forces formed no part of pensionable employment for anyone under the Estonian legislation, so there was no room to find any different treatment of the applicants in that respect.
Conclusion: no violation (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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