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FIFTH
SECTION
CASE OF TARKOEV AND OTHERS v. ESTONIA
(Applications
nos. 14480/08 and 47916/08)
JUDGMENT
STRASBOURG
4 November
2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Tarkoev and Others
v. Estonia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Rait Maruste,
Isabelle
Berro-Lefèvre,
Mirjana Lazarova
Trajkovska,
Zdravka Kalaydjieva,
Ganna
Yudkivska, judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 12 October 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in two applications (nos. 14480/08 and 47916/08)
against the Republic of Estonia lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”) by forty-five
former servicemen of the Russian (Soviet) army (“the
applicants”), on 24 March and 2 October 2008, respectively. The
applicants reside in Estonia and are Russian or Estonian nationals
whose names, along with other relevant information, are listed below
(Annex).
- The
applicants were represented by Mr M. Rusakov, a lawyer at the Legal
Information Centre for Human Rights in Tallinn. The Estonian
Government (“the Government”) were represented by their
Agent, Ms M. Kuurberg, of the Ministry of Foreign Affairs.
The Government of the Russian Federation did not make use of their
right to intervene under Article 36 § 1 of the Convention.
- Two
of the original applicants, Mr P. Slepnev and Mr V. Rannasalu died
(on 19 September and 6 November 2009, respectively) after the
submission of the applications. Mr E. Slepnjov, Mr P. Slepnev’s
son, and Ms S. Rannasalu, Mr V. Rannasalu’s widow, wished to
pursue the case before the Court.
- The
applicants alleged, in particular, that the refusal of the Estonian
authorities to pay them a pension for their period of civil
employment in Estonia unless they gave up their military pension paid
by the Russian Federation was discriminatory, in breach of Article 14
of the Convention taken in conjunction with Article 1 of Protocol No.
1.
- On
4 June 2009 the President of the Fifth Section decided to give notice
of the applications to the Government. It was also decided to examine
the merits of the applications at the same time as their
admissibility (Article 29 § 1).
- The
parties submitted written observations. The applicants requested the
Chamber to hold a hearing. The Chamber decided, pursuant to Rule 54
§ 3, that no hearing was required.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants, forty-five Russian military pensioners whose names along
with other relevant information are listed below (Annex), live in
Estonia.
A. Background of the case
- On
26 July 1994, at the same time as the conclusion of a treaty on the
withdrawal of Russian troops from Estonian territory, Estonia and the
Russian Federation signed an agreement concerning the provision of
social security 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 the securing of the 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 would be suspended while they were
receiving an Estonian pension, and vice versa.
- Until
1998 the Russian military pension was, in most cases, considerably
higher than the Estonian old-age 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 either a Russian military pension (smaller than the average
old-age pension in Estonia) or an Estonian old-age pension for fewer
years of service. In the latter case, only the years of pensionable
employment in the civil sphere – and not the years of service
in the Russian (Soviet) armed forces – were taken into account.
According to the applicants, in both cases the sums were rather small
and not enough for survival in Estonia.
- 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
employment in Estonia) for receiving an Estonian old-age pension,
applied for and were granted, such a pension for life. However, a few
months later, after a regular exchange of information between the
Estonian social insurance authorities and the Russian Embassy, the
Estonian authorities realised that the Russian Embassy was continuing
to pay the persons concerned Russian military pensions. The Estonian
authorities then suspended the payment of the Estonian pension to the
persons concerned and requested that they provide confirmation of the
suspension of payment of the Russian military pension if they wished
that the payment of the Estonian pension be resumed.
- According
to the Government, who referred to information published in the
Russian-speaking press, the average military pension paid by the
Russian Federation in 2008 was, depending on the person’s
military rank, 7,400, 5,800 or 5,000 kroons (EEK) a month
(corresponding to approximately 473, 371 or 320 euros (EUR),
respectively). At the same time, the average old-age pension in
Estonia was EEK 4,356 (EUR 278). Although the pensions paid by
Estonia had increased since 1994, the Russian military pension was
higher than the average Estonian old-age pension and definitely
higher than the minimum pension established in Estonia (EEK 2,008.80
(EUR 128) in 2009) which they had been guaranteed under Article 3 of
the Agreement.
According
to the applicants, who relied on the information from the Russian
Embassy in Tallinn, the average pension of a Russian military
pensioner in Estonia in 2008 was EEK 3,817 (EUR 244) − which
was much less than the average Estonian pension at the same time.
B. Court proceedings initiated by the applicants
- The
applicants challenged the decisions of the Estonian social security
authorities to suspend the payment of the Estonian old-age pension
(in the case of Mr V. Gladõšev – invalidity
pension). Arguing that they had been discriminated against and that
their property rights had been violated, they lodged complaints with
the competent administrative courts against the individual decisions
of the Estonian social security authorities. They requested that the
courts order the social security authorities to resume payment of the
pension. Their complaints were dismissed in separate administrative
court proceedings by the administrative courts and courts of appeal.
In the case of all of the applicants, with the exception of
Mr V. Gladõšev, 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 EEK 400 (EUR 26). The Supreme Court examined his
request for exemption and rejected it by a reasoned decision.
- The
reasoning underlying the individual decisions of the social security
authorities as well as the complaints and judgments in respect of
each of the applicants were similar and can be summarised as follows.
- The
courts found that the clear and unequivocal wording of Article 5 of
the Agreement provided that only one of the States (not both States
simultaneously), should 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 (section 4(3)). By way of comparison, the courts noted that
the State Pension Insurance Act generally provided that persons who
had the right to receive several state pensions were granted one
state pension of their choice. The same applied to members of the
Estonian Defence Forces even if they qualified for an old-age pension
and defence forces pension simultaneously (section 196(5) of the
Defence Forces Service Act (Kaitseväeteenistuse seadus)).
- The
courts did not exclude the possibility that there were people 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
relationship 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, as they were
continuing to receive their Russian military pension, the applicants
did not meet the conditions required 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 undermined, 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 equal in
value to the amount of the minimum pension in Estonia.
- Finally,
the courts noted that the States which were 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.
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE
- 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 a temporary right of residence.
...
(2) A state pension shall be granted pursuant
to this Act unless a person receives a state pension pursuant to
other Estonian Acts.
(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 6 – Right to choose type of pension
“Persons who have the right to receive several
state pensions shall be granted one state pension of their choice
...”
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 as
provided for in section 27 of this Act and spent in Estonia is
fifteen years.
...”
Section 11 – Amount of old-age pension
“(1) An old-age pension consists of
three components:
1) the basic amount (baasosa);
2) a component calculated on the basis of
years of pensionable service (staaZiosak),
the amount of which equals the number of years of pensionable service
(pensioniõiguslik staaZ) (section 28) multiplied by the
financial value of a year of pensionable service;
3) an insurance component (kindlustusosak),
the amount of which equals the sum of the annual factors of an
insured person (section 12) multiplied by the financial value of a
year of pensionable service.
...”
Section 27 – Pension qualifying period
“(1) A pension-qualifying period
(pensionistaaZ) is a period during which an insured person is
engaged in an activity which merits the right to receive a state
pension.
(2) A pension qualifying period shall be
divided as follows:
1) the years of pensionable service
(pensioniõiguslik staaZ), which is calculated up to 31
December 1998;
2) the accumulation period
(pensionikindlustusstaaZ), 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 (pensioniõiguslik
staaZ) 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, agreed between Estonia and
the Russian Federation 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.”
- A
cooperation agreement on exchange of information on the enforcement
of Article 5 of the Agreement was signed by the Estonian Social
Insurance Board (Sotsiaalkindlustusamet) and the Social
Department of the Embassy of the Russian Federation in Estonia on 7
July 2004. A new agreement concerning the same matter was signed on
20 February 2007.
- In
the meantime, on 25 June 1993, Estonia and the Russian Federation
signed a general pension agreement which was amended by a protocol
signed on 5 November 2002. That agreement and its protocol entered
into force on 16 October 2007. These instruments provide that, as a
rule, a person receives pension from his or her country of residence
on the basis of that country’s legislation. Military
pensioners, subject to the Agreement, do not fall under the general
pension agreement.
- The Government informed the Court that Estonia and the
Russian Federation were holding negotiations to sign a new general
pension agreement instead of the current one which was due to expire
in 2011. According to its draft, each country would pay pension for
the years of pensionable employment accumulated on its territory.
That principle would also apply to the military pensioners instead of
Article 5 of the Agreement.
- In a judgment of 28 April 2008 (case no. 3-3-1-1-08)
the Administrative Law Chamber of the Supreme Court dealt with a case
similar to that of the applicants. The Supreme Court quashed the
lower court’s judgment on procedural grounds and therefore did
not rule on the merits of the case. Nevertheless, it pronounced its
opinion on some aspects of the matter.
The
Supreme Court considered that the so-called military pension paid
under the Agreement was not a state pension and that therefore
section 6 of the State Pension Insurance Act was not applicable. It
pointed out that pursuant to section 4(3) of the Act, if an
international agreement signed by Estonia contained provisions which
differed from the provisions of that Act, the international agreement
took precedence.
The
Supreme Court found that pursuant to Article 5 of the Agreement it
was not possible to simultaneously pay a pension for service in the
Soviet armed forces and for a subsequent period of employment in
Estonia. According to the Estonian Ministry of Foreign Affairs which
was invited to participate in the proceedings, this had been the
understanding of the parties to the Agreement since its signing.
However, the parties were aware of the problem and since 2002 the
Russian party had taken the initiative to resolve it. The Estonian
Ministry of Foreign Affairs admitted that both the general approach
and the factual circumstances had changed since the signing of the
Agreement. In drawing up recent pension agreements the principle of
adding up different (not overlapping) periods was also applied; this
approach was used in the European Union as well. It was also noted
that the Estonian and Russian parties were preparing a new pension
agreement presumably also to address the issue of the military
pensioners.
The
Supreme Court referred the case to the Tallinn Court of Appeal which,
in a judgment of 4 September 2008 (case no. 3-06-2305), dismissed the
appeal. It held:
“18. ... In the Court of Appeal’s
opinion, Article 5 § 2 of the Agreement is justified, on the one
hand, by the State’s obligation and need to economically use of
the state budget. On the other hand, in assessing Article 5 § 2
of the Agreement, the context of the conclusion of the Agreement has
to be taken into account, in particular [its] relation to the [treaty
on the withdrawal of Russian troops from the Estonian territory] that
was concluded at the same time. The purpose of these “July
agreements” was the withdrawal from Estonia of the armed forces
of the country that had occupied Estonia. As a compromise between the
countries, military pensioners who did not pose a threat to Estonian
national security were granted the right to stay in Estonia. In
return, the Russian Federation assumed an obligation to secure for
the military pensioners staying in Estonia under the Agreement, a
pension from the Russian Federation that would ensure their
subsistence. When entering into the Agreement, Estonia had the right
to avoid taking excessive risks with its state budget in connection
with the remaining of the military pensioners in Estonia.
As the complainant is and was an Estonian national, his
right to stay in Estonia was guaranteed regardless of the Agreement;
however, [his] nationality alone does not provide him with any wider
social guarantees as compared to other military pensioners of the
[Soviet Union]. The Russian Federation undertook to provide a pension
to the complainant as well, regardless of his nationality (Article 3
of the Agreement).
19. The complainant as a subject falling
under the Agreement signed with the Russian Federation is not in the
same position as the military pensioners who have served in the
armies of those countries which belong to the same international
organisations as Estonia such as NATO or the European Union.
...
22. On the basis of the above, the Court of
Appeal considers that Article 5 § 2 of the Agreement was in
conformity with the Constitution at the time of its signing and
ratification.
23. Article 5 § 2 of the Agreement, in
order to be applicable in the present case, also had to conform with
the Constitution at the time when the disputed administrative
decision was taken. A provision of an international agreement can
become unconstitutional after its ratification when the provision
depriving a person of a right has in the meantime become unreasonable
because of changed circumstances, and a reasonable time for amending
the agreement or resolution of the matter at the domestic level has
elapsed.
24. The Ministry of Foreign Affairs has
acknowledged that the conceptual bases of the international pension
agreements had changed in the meantime. In the opinion of the Court
of Appeal this gives no ground to argue that Article 5 § 2 of
the Agreement has already by now become unconstitutional. The
conceptual bases of international pension agreements do not amount to
constitutional principles. The development of international social
insurance law is a long-term process wherein Estonia also needs to be
given considerable time to find the best legal and political
solutions. The material referred to in the Supreme Court’s
judgment in the present case confirms that the parties to the
Agreement are engaged with the question concerning the pensions of
the military pensioners of the former [Soviet Union].
25. Nor can the Court of Appeal see that
Article 5 § 2 of the Agreement has violated or currently
violates any international obligations.”
On 5
November 2008 the Supreme Court declined to hear an appeal against
the Court of Appeal’s judgment.
- In
a judgment of 13 June 2008 (case no. 3-3-1-31-08) the Administrative
Law Chamber of the Supreme Court dealt with a case where the main
issue was whether the complainant in that case was covered by the
provisions of the Agreement. It was also required to interpret
Article 5 of the Agreement. Referring to its judgment of 28 April
2008 (see paragraph 25 above), the Supreme Court reaffirmed
that, based on the grammatical interpretation of Article 5 and, above
all, the common will and understanding of the parties to the
Agreement in respect of the interpretation and application of this
provision, its current wording and the will of the parties only
provided for the possibility of receiving a pension granted by one of
the countries at a time.
THE LAW
I. PRELIMINARY OBSERVATION
- The
Government objected to the succession in the proceedings of Mr P.
Slepnev by his son Mr E. Slepnjov and of Mr V. Rannasalu by his widow
Ms S. Rannasalu, the original two applicants having passed away on 19
September and 6 November 2009, respectively, noting that they had not
submitted succession certificates issued by a notary and, in any
event, pension rights were not inheritable.
- In
this respect, the Court has had regard to its findings in a series of
earlier cases concerning the death of an applicant (see Vääri
v. Estonia (dec.), no. 8702/04, 8 July 2008, with further
references). It notes that Mr E. Slepnjov and Ms S.
Rannasalu were close relatives of the deceased. It further takes note
of the Government’s argument that pension rights were not
transferrable; however, it considers that, while having no
entitlement to any further pension payments, the original applicants’
family members can be considered to have a pecuniary interest in so
far as the case concerns payments which had been withheld, allegedly
in violation of the applicants’ rights, until the death of the
original applicants. The Court is satisfied at this stage that it has
been presented with copies of documents indicating that the persons
seeking to pursue the case are close relatives of the original
applicants, and attaches no decisive importance to the fact that no
succession certificates issued by a notary have been submitted so
far.
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1
- The
applicants complained that they had been deprived of their
possessions and discriminated against by the failure of the Estonian
authorities to pay them pensions. They relied on Article 1 of
Protocol No. 1, taken alone and in conjunction with Article 14 of the
Convention.
Article
14 provides:
“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 provides:
“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.”
- The
Court who is the master of the characterisation to be given in law to
the facts of the case (see, for example, Scoppola v. Italy
(no. 2) [GC], no. 10249/03, §
54, ECHR 2009 ...) deems it appropriate to examine the case
under Article 14 taken in conjunction with Article 1 of Protocol No.
1.
A. Admissibility
1. The parties’ submissions
(a) The Government
- The
Government considered that the applicants were dissatisfied with
Article 5 § 2 of the Agreement signed
between Estonia and the Russian Federation. However, the
implementation or amendment of bilateral treaties was not a matter
that could be dealt with under the Court’s jurisdiction.
Moreover, the Government emphasised that Estonia could not be held
liable for the fact that the pension which the applicants received
from the Russian Federation had not increased at the same pace as the
pensions paid by Estonia. Therefore, they considered that the
applications were incompatible ratione personae with the
provisions of the Convention.
- The
Government further argued that the applications were incompatible
ratione materiae with the provisions of the Convention, since
the applicants did not have any “possessions” within the
meaning of Article 1 of Protocol No. 1. Nor had they any
legitimate expectation of payment of a pension simultaneously by the
Russian Federation and Estonia as, from the very beginning, the
Agreement enshrined the principle that the pension was guaranteed by
the Russian Federation, and Estonia only paid it in the event that
its payment by the Russian Federation was suspended.
- Alternatively,
the Government called upon the Court to declare the applications
manifestly ill-founded.
(b) The applicants
- The
applicants reiterated that they did not complain about a violation of
the Estonian-Russian Agreement but about a violation by the Estonian
authorities of their rights guaranteed under Article 1 of Protocol
No. 1 and Article 14 of the Convention. Furthermore, their complaints
did not relate to the size of the Russian pension but rather to the
payment of the Estonian pension.
- The
applicants argued that their pension claim was based on the fact that
they had made insurance payments to the state budget. They also
pointed out that for a limited period in 2006 the Estonian
authorities had paid them the pension, which had been then suspended.
- Lastly,
the applicants disagreed with the Government’s opinion that the
applications were manifestly ill-founded.
2. The Court’s assessment
- The
Court observes that the applicants complained about the refusal by
the Estonian authorities to pay them a pension for their years of
employment in Estonia. They considered such a refusal to be
discriminatory and in violation of the Convention. Thus, this
complaint relates to an alleged violation by the respondent State of
the applicants’ rights guaranteed under the Convention and
therefore it is not incompatible ratione personae with the
provisions of the Convention.
- In
respect of the complaint under Article 14 of the Convention in
conjunction with Article 1 of Protocol No. 1, the Court reiterates
that Article 14 complements the other substantive provisions of the
Convention and the Protocols. It has no independent existence, since
it has effect solely in relation to “the enjoyment of the
rights and freedoms” safeguarded by those provisions. The
application of Article 14 does not necessarily presuppose the
violation of one of the substantive rights guaranteed by the
Convention. The prohibition of discrimination in Article 14 thus
extends beyond the enjoyment of the rights and freedoms which the
Convention and Protocols require each State to guarantee. It applies
also to those additional rights, falling within the general scope of
any Article of the Convention, for which the State has voluntarily
decided to provide. It is necessary but it is also sufficient for the
facts of the case to fall “within the ambit” of one or
more of the Convention Articles (see Stec and Others
v. the United Kingdom (dec.) [GC], nos. 65731/01
and 65900/01, § 39, ECHR 2005 X; Andrejeva
v. Latvia [GC], no. 55707/00, §
74, ECHR 2009 ...; and Carson and Others v. the United
Kingdom [GC], no. 42184/05, § 63, 16 March 2010).
- Although
there is 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 enact
legislation providing for the payment as of right of a welfare
benefit or pension – whether conditional or not on the prior
payment of contributions – that legislation must be regarded as
generating a proprietary interest falling within the ambit of Article
1 of Protocol No. 1 for persons satisfying its requirements (see Stec
and Others (dec.), cited above, § 54, and Carson and
Others, cited above, § 64).
- In
cases such as the present one, concerning a complaint under
Article 14 in conjunction with Article 1 of Protocol No. 1 that
the applicant has been denied all or part of a particular benefit on
a discriminatory ground covered by Article 14, the relevant test is
whether, but for the condition of entitlement about which the
applicant complains, he or she would have had a right enforceable
under domestic law, to receive the benefit in question. Although
Protocol No. 1 does not include the right to receive a social
security payment of any kind, if a State does decide to create a
benefits scheme it must do so in a manner which is compatible with
Article 14 (see Stec and Others (dec.), cited above, §
55). The Court considers therefore that in the present case the facts
fell within the scope of Article 1 of Protocol No. 1.
- As
concerns the question whether Mr Gladõšev’s
complaint should be declared inadmissible for non-exhaustion of
domestic remedies since he did not lodge an appeal with the Supreme
Court in accordance with the applicable procedural requirements, the
Court considers that, in the light of the Supreme Court’s
decisions in respect of the remaining applicants, Mr Gladõšev
had no prospect of success before the Supreme Court and, accordingly,
it would be wrong to declare his complaint inadmissible on this
ground (see, mutatis mutandis, Carson and Others, cited
above, § 58).
- The
Court concludes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. The merits
1. The parties’ submissions
(a) The applicants
- The
applicants submitted that their claim concerned a period of civil
employment in Estonia subsequent to their service in the Russian
(Soviet) army; thus, their aim was not to receive two pensions for
the same period but for different periods of employment. They
specified that they did not claim any particular amount of pension;
rather, they demanded that they be paid pension on the same
conditions as all civil pensioners in Estonia in accordance with
Estonian law without any discriminatory restrictions. According to
the applicants, the essence of their right to a pension had been
undermined since they received no pension whatsoever from Estonia.
- The
applicants pointed out that Estonian law did not allow two Estonian
pensions to be paid at the same time but no regulation prohibited
receiving an Estonian pension concurrently with one or more foreign
pensions, given that the conditions for the receipt of the Estonian
pension had been fulfilled. Nevertheless, the applicants were
prevented from receiving an Estonian pension simultaneously with a
foreign pension on the basis of Article 5 of the Agreement – as
interpreted by the Estonian authorities –, which took
precedence over domestic law, as stipulated by section 4(3) of the
State Pension Insurance Act. However, this provision of the
Agreement, which had been signed fifteen years earlier, was
completely obsolete. The applicants noted that the Russian Federation
had, on several occasions, proposed the amendment of Article 5 of the
Agreement but the Estonian authorities had not agreed to these
proposals. Moreover, the Agreement was discriminatory as none of
Estonia’s other bilateral agreements on social insurance
prohibited the award of an Estonian pension to persons who were
permanent residents of Estonia, had completed fifteen years of
pension-qualifying employment in Estonia and had reached pensionable
age.
- The
applicants admitted that, although an Estonian pensioner who was
entitled to a special pension could not simultaneously receive an
Estonian special pension (for example, a military pension) and a
regular old-age pension, he or she was entitled to the old-age
pension for the whole period of his or her employment, including the
period giving entitlement to the special pension. However, service in
the Russian (Soviet) army – unlike service in the Estonian army
– was not included in the pension-qualifying period under
Estonian law.
- The
applicants rejected the Government’s argument that the Russian
Federation could pay them pension for their years of employment in
Estonia, alleging that during their employment in Estonia they had
made obligatory payments to the pension insurance budget of that
country. They noted, in turn, that nothing prevented Estonia from
taking into account the applicants’ years of service in the
Russian (Soviet) army upon calculation of Estonian civil pensions.
- The
applicants considered that they had been discriminated against based
on their language and ethnic (national) origin, and their association
with a national minority, arguing that most of the Russian military
pensioners were ethnic Russians or native speakers of Russian. They
considered it inappropriate to compare Russian military pensioners
with Estonian military pensioners and considered that the group they
should properly be compared with was that of foreign military
retirees of other countries. They argued that Russian military
pensioners were the only group of persons forced to refuse a foreign
pension in order to receive an Estonian pension for civil employment
in Estonia.
- The
applicants rejected the idea that the Russian military pensioners
constituted a special group not comparable to any other group because
they were former members of an army of a country that had occupied
Estonia. In their view, such arguments merely demonstrated the biased
attitude against them.
- The
applicants further rejected budgetary considerations as a legitimate
justification for their different treatment. They conceded that an
excessive burden on the state budget could have been an argument to
be considered in the context of the scope of social assistance but it
could not be used to justify unequal treatment of individuals. Nor
could the fact of the existence of the Agreement as such justify
their disadvantageous treatment which in the absence of any
reasonable justification amounted to discrimination.
(b) The Government
- The
Government referred to the historic context of the conclusion of the
Agreement and emphasised that it was closely connected to the treaty
on the withdrawal of Russian troops from Estonia. According to the
Agreement, retired personnel of the armed forces were allowed, as a
rule, to remain living in Estonia if they so wished, with one of the
reasons given having been the consideration that their resettlement
could have caused practical problems and been burdensome for the
Russian Federation. From the Estonian viewpoint the retired
servicemen did not pose the same threat to the Estonian national
security as persons in active service.
- The
Government emphasised that the military pensioners had served for a
significant period of their life in the armed forces of the Soviet
Union, the Russian Federation’s legal predecessor. Thus, it was
natural that the Russian Federation assumed an obligation to pay
their pensions. The Government pointed out that the Agreement
provided a double guarantee for them. Firstly, according to Article 3
of the Agreement, the Russian Federation had to pay them pension
pursuant to the legislation of the Russian Federation in at least the
amount of the minimum pension established in Estonia, whereby,
according to the Government, nothing prevented the Russian Federation
from taking into account the years of pensionable employment
accumulated in Estonia. In any event, even without this period having
been taken into account, the size of the military pension was
comparable to an average pension in Estonia. Secondly, Article 5
of the Agreement provided for an additional guarantee according to
which the applicants could opt for an Estonian old-age pension in
case they were not in receipt of a Russian pension. Thus, the
applicants received a pension either from the Russian Federation or
Estonia according to their own preferences. The Government also
emphasised that, unlike in the above-cited case of Andrejeva,
where no agreement between the countries existed, Estonia had a
bilateral Agreement with the Russian Federation regulating the
payment of pensions in such a way that none of the subjects to the
Agreement was deprived of his or her social guarantees.
- The
Government noted that other international agreements on pension
insurance signed by the Russian Federation at that time had also been
based on the principle “one State pays”. An agreement of
13 March 1992 on pension insurance in the member States of the
Commonwealth of Independent States (CIS) and a special agreement
concerning military pensioners, signed between the members of the CIS
on 15 May 1992, served as examples. The only exception in the present
case, according to the Government, was that under the Agreement the
responsibility to pay the pensions lay with the Russian Federation
and not with the country of residence. However, the Government had no
influence over the changes in the amount of pension paid to the
applicants by the Russian authorities or any pension reforms carried
out by them.
- The
Government made reference to Estonia’s social insurance
agreements with Latvia, Lithuania, Finland, Canada and the Ukraine
and two agreements with the Russian Federation (the Agreement and a
general pension insurance agreement), all of which were necessarily
different, reflecting the results of negotiations between different
countries and regulating situations which had developed under
different historical, economic and political circumstances.
Furthermore, in respect of EU Member States, EU regulations applied.
The Government submitted that the social insurance agreements signed
in the 1990s were characterised by the fact that the obligation of
paying the pension rested with one party; besides the Agreement, the
same principle was also enshrined in the Estonian-Russian general
pension insurance agreement.
- Furthermore,
the Government informed the Court about ongoing negotiations on a new
pension agreement between Estonia and the Russian Federation (see
paragraph 24 above). However, the signing of the new agreement and
its entry into force depended on both parties.
- The
Government contended that the applicants had not been discriminated
against on the basis of their ethnic origin or nationality. Article 3
of the Agreement unequivocally stipulated that the Agreement applied
to military pensioners of the Russian Federation regardless of their
nationality. It could also be seen from the list of the applicants in
the present case that they were of diverse ethnic origin and
nationality.
- The
Government pointed out that the Russian military pensioners were not
treated differently to other pensioners living in Estonia. Those
entitled to an Estonian special pension (for example, members of the
defence forces, police officers, judges and prosecutors) also had to
choose whether they wished to receive the special pension or an
ordinary old-age pension; in the latter case they were not
simultaneously entitled to the special pension.
- The
Government considered that the Russian military pensioners could not
be compared to any other group since no other relevantly similar
group of persons existed. There was no identifiable group of
“military pensioners of other countries who were not denied
Estonian civil pensions” in Estonia. The Russian military
pensioners were a unique group of persons who were granted the
exceptional right to stay in Estonia on the basis of the Agreement
after the withdrawal of Russian troops. According to the Agreement,
the Russian Federation undertook to provide them with social
guarantees regardless of the fact that they did not live on the
territory of the Russian Federation; Estonia only assumed the
responsibility of paying their pensions if they met the criteria for
receiving an Estonian pension and on the condition that the person in
question gave up the special status obtained as a result of having
served in the armed forces that had previously occupied Estonia.
Everyone subject to the Agreement, including the applicants, had been
aware of these conditions when they had decided to stay in Estonia.
2. The Court’s assessment
- The
Court has established in its case-law that only differences in
treatment based on an identifiable characteristic, or “status”,
are capable of amounting to discrimination within the meaning of
Article 14. Moreover, in order for an issue to arise under Article 14
there must be a difference in the treatment of persons in analogous,
or relevantly similar, situations. Such a difference of treatment is
discriminatory if it has no objective and reasonable justification;
in other words, if it does not pursue a legitimate aim or if there is
not a reasonable relationship of proportionality between the means
employed and the aim sought to be realised. The Contracting State
enjoys a margin of appreciation in assessing whether and to what
extent differences in otherwise similar situations justify different
treatment. The scope of this margin will vary according to the
circumstances, the subject-matter and the background. A wide margin
is usually allowed to the State under the Convention when it comes to
general measures of economic or social strategy. Because of their
direct knowledge of their society and its needs, the national
authorities are, in principle, better placed than the international
judge to appreciate what is in the public interest on social or
economic grounds, and the Court will generally respect the
legislature’s policy choice unless it is “manifestly
without reasonable foundation” (see Carson and Others,
cited above, § 61, with further references).
- The
Court recalls that the applicants in the present case are former
Russian (Soviet) servicemen who after the withdrawal of Russian
troops from Estonia in 1994 remained in Estonia on the basis of the
Estonian-Russian Agreement and who receive a Russian military pension
on the basis of that Agreement. The Court notes that the applicants’
different treatment as compared to other persons who have completed
at least fifteen years of pensionable employment in Estonia is based
on the fact that they are in receipt of another pension, that is a
pension paid by the Russian Federation under the Russian legislation
and in accordance with the Agreement. The Court observes that the
distinction in question is not based on the applicants’
nationality or ethnic origin and finds it questionable whether this
difference in the applicants’ treatment can be considered to be
based on any other personal characteristic or “status”.
However, it considers it not necessary to determine this matter
because of the reasons set out below.
- The
applicants argued that they had been treated differently from
military pensioners of other countries, for example, those of NATO
countries. Thus, the Court is called to determine whether the
applicants are in a similar situation to military pensioners of other
countries in respect of whom Estonia has not signed international
agreements limiting their pension rights or, more generally, as
compared with any other persons who have completed at least fifteen
years of pensionable employment in Estonia and who, again in the
absence of any restrictive international agreements, are not
prevented from receiving several pensions from several countries at
the same time.
- In
doing so, the Court has had regard to the specific historical context
of the present case. It notes that the Estonian-Russian Agreement is
only applicable to persons who had already retired by the time the
Agreement was signed in 1994 and who were already in receipt of the
Russian military pension at that time. Furthermore, as the Agreement
was signed at the same time as the conclusion of a treaty on the
withdrawal of Russian troops from Estonia, the conditions on which
the Estonian authorities agreed to accept the continued presence of
Russian military retirees in their territory have to be seen in the
context of the Russian Federation’s primary obligation to
secure the withdrawal of its forces from the occupied territory.
- The
Court observes that the Agreement did not concern any further
military pensioners who might have moved to Estonia after it was
signed. Moreover, the Russian military pensioners who remained in
Estonia on the basis of the Agreement were fully aware at the time
and after the signing of the Agreement that if, being in receipt of a
Russian military pension, they started or continued to be employed in
the civil sphere in Estonia, such employment would not give them any
entitlement to a further Estonian civil pension.
- The
Court has also had regard to the facts that according to Article 3 of
the Agreement the applicants are guaranteed a pension at least in the
amount of the minimum pension in Estonia and that, according to the
submissions of the parties, the amount of the pension the Russian
military pensioners receive is comparable to the size of ordinary
Estonian old-age pensions (according to the information provided by
the Government, the Russian military pension is higher than an
average Estonian old-age pension whereas according to the applicants
the Russian military pension was about 12% lower in 2008). Moreover,
the value of the Russian military pension received by the applicants
in Estonia, and its relation to the Estonian old-age pension, depends
on a variety of circumstances, such as the size of Russian pensions
as set down by Russian legislation, the two countries’
comparative costs of living, interest and exchange rates, their
comparative rates of economic growth, inflation, taxation and even
the availability of other welfare benefits and the eligibility of the
persons concerned for such benefits (see, for comparison, Carson
and Others, cited above, § 86).
- The
Court also notes that the applicants do have the right to apply for
the Estonian old-age pension, given that they have attained the age
of sixty-three years, have completed at least fifteen years of
pensionable employment in Estonia and, at the same time, are not in
receipt of the Russian military pension. While it is true that in
such a case their years of service in the Russian (Soviet) armed
forces would not be taken into account for calculation of their
pensions, Estonia cannot be considered responsible for any pension
payments for such service. Service in the Russian (Soviet) armed
forces forms no part of pensionable employment for anyone under the
Estonian legislation, so there is no room to find any different
treatment of the applicants in this respect.
- Lastly,
the Court considers that the fact that Estonia and the Russian
Federation hold negotiations on a new pension agreement possibly
determining the matters differently from the agreements in force does
not in itself lead to a conclusion that the application of the
present regulations is discriminatory.
- Based
on the above considerations, the Court concludes that the applicants
are not in a comparable situation with any other group of pensioners,
such as, for example, military or civil pensioners of other countries
or ordinary Estonian civil pensioners who are eligible for the
receipt of an Estonian pension upon completion of at least fifteen
years of pensionable employment in Estonia.
- It
follows that there has been no violation of Article 14 taken in
conjunction with Article 1 of Protocol No. 1 in the present case.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
Court has also examined the remainder of the applicants’
complaints under Articles 6 § 1 and 14
of the Convention as submitted by them, including a complaint about
the lack of impartiality of the courts and Mr V. Gladõšev’s
complaint about him having been denied access to the Supreme Court
owing to his failure to pay the court fee. However, having regard to
all the material in its possession, the Court finds that these
complaints do not disclose any appearance of a violation of the
rights and freedoms set out in the Convention or its Protocols. It
follows that this part of the application must be rejected as being
manifestly ill-founded, pursuant to Article 35 §§ 3 and 4
of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Decides to join the applications;
- Declares the complaint concerning the alleged
discrimination under Article 14 of the Convention taken in
conjunction with Article 1 of Protocol No. 1 admissible and the
remainder of the application inadmissible;
- Holds that there has been no violation of
Article 14 of the Convention taken in conjunction with Article 1 of
Protocol No. 1.
Done in English, and notified in writing on 4 November 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
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
|
1926
|
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
|
