CEDH · CASELAW;COMMUNICATEDCASES;ENG — 4 juin 2009

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border-bottom-style:solid; border-bottom-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s546C9D04 { border-top-style:solid; border-top-width:0.75pt; border-right-style:solid; border-right-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s40B7A780 { border-top-style:solid; border-top-width:0.75pt; border-right-style:solid; border-right-width:0.75pt; border-left-style:solid; border-left-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s4F2EDFF { border-top-style:solid; border-top-width:0.75pt; border-left-style:solid; border-left-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s15514A1D { margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; font-size:12pt }   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?