Lexploria

FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

VALKOV and Others against Bulgaria (Applications nos. 2033/04, 19125/04, 19475/04, 19490/04, 19495/04, 19497/04, 24729/04, 171/05, 2041/05)

The European Court of Human Rights (Fifth Section), sitting on 10 November 2009 as a Chamber composed of:

Peer Lorenzen, President, Renate Jaeger, Karel Jungwiert, Rait Maruste, Mark Villiger, Isabelle Berro-Lefèvre , Mirjana Lazarova Trajkovska , judges, and Claudia Westerdiek, Section Registrar .

Having regard to applications nos. 2033/04, lodged on 6 January 2004; 19125/04, 19475/04, 19490/04, 19495/04 and 19497/04, all lodged on 14 May 2004; 24729/04, lodged on 29 June 2004; and, 171/05 and 2041/05, both lodged on 7 December 2004;

Having deliberated, decides as follows:

THE FACTS

The applicants are the Bulgarian nationals Mr Valko Stanilov Valkov , born in 1928 (application no. 2033/04), Mr Vasil Kirilov Galabov , born in 1954 (application no. 19125/04), Mr Atanas Vladimirov Gonevski , born in 1944 (application no. 19475/04), Mr Ivan Zahariev Slavkov , born in 1950 (application no. 19490/04), Mr Boyko Dimitrov Sodev , born in 1949 (application no. 19495/04), Mr Vacho Dimitrov Baev , born in 1954 (application no. 19497/04), Mr Georgi Sotirov Atanasov , born in 1935 (application no. 24729/04), Mr Stoyan Hristov Stoyanov , born in 1950 (application no. 171/05) and Mr Lali Nanev Avreiski , born in 1950 (application no. 2041/05).

Mr Valkov , Mr Stoyanov and Mr Avreiski live in Plovdiv ; Mr Galabov , Mr Gonevski , Mr Slavkov , Mr Sodev and Mr Baev live in Sofia ; and Mr Atanasov lives in Lom .

With the exception of Mr Atanasov , they are all represented before the Court by Mr M. Ekimdjiev and Ms K. Boncheva , lawyers practising in Plovdiv .

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

1. Mr Valkov

Mr Valkov started receiving a State pension in 1979. When the Social Security Code (“the Code”) was enacted, his pension, which had previously been 327 Bulgarian levs (BGN: 167.19 euros (EUR)), was recalculated in accordance with the rules and formulas provided therein.

Accordingly, in an order of 3 July 2000, amended on 12 January 2001, the National Social Security Institute (“the NSSI”) calculated Mr Valkov ’ s pension in accordance with the Code and determined it to be BGN 622.97 (EUR 318.02). Then, in direct reference to paragraph 6 of the Transitory and Final Provisions of the Code (“paragraph 6 of the TFPC”) the NSSI set the amount of the pension to be paid at BGN 160 (EUR 81.80).

Mr Valkov ’ s pension was raised several times in the following years. On each occasion, the NSSI first of all calculated the pension due to Mr Valkov in accordance with the Code and then, in direct reference to paragraph 6 of the TFPC, set a lower amount to be paid.

In summary, Mr Valkov ’ s pension after 1 January 2000 was as follows:

Order

of the NSSI dated

For the period after

Pension due according to the Code

Pension set in reference to paragraph 6 of the TFPC

3 July 2000, amended

12 January 2001

1 January 2000

BGN 622.97

(EUR 318.02)

BGN 160

(EUR 81.80)

5 June 2001

1 June 2001

BGN 685.27

(EUR 350.24)

BGN 176

(EUR 89.98)

3 June 2002

1 June 2002

BGN 726.39

(EUR 371.20)

BGN 233.20

(EUR 119.13)

3 June 2003

1 June 2003

BGN 771.43

(EUR 394.21)

BGN 250

(EUR 127.82)

2. Mr Atanasov

Mr Atanasov started receiving a State pension in 1995. When the Code was enacted, his pension, which had previously been BGN 285.71 (EUR 146), was recalculated in accordance with the new legislation. Similar to the aforementioned applicant, in its orders the NSSI first of all calculated the pension due to Mr Atanasov in accordance with the Code and then, in direct reference to paragraph 6 of the TFPC, set a lower amount to be paid.

In summary, Mr Atanasov ’ s pension after 1 January 2000 was as follows:

From

To

Pension due according to the Code

Pension set in reference to paragraph 6 of the TFPC

1 January 2000

31 May 2001

BGN 310.79

(EUR 158.91)

BGN 160

(EUR 81.81)

1 June 2001

31 May 2002

BGN 341.87

(EUR 74.80)

BGN 176

(EUR 89.99)

1 June 2002

31 May 2003

BGN 362.38

(EUR 185.28)

BGN 186.56

(EUR 95.39)

1 June 2003

31 December 2003

BGN 384.85

(EUR 196.77)

BGN 200

(EUR 102.26)

3. Retired air force pilots

The following applicants are retired pilots from the Bulgarian Air Force. As such, during their employment in the military they received a higher salary than the average for the country, on the basis of which they made higher than the average contributions to the State pension scheme.

Similar to the aforementioned applicants, after the Code was enacted the NSSI in its orders first of all calculated the pensions due to the applicants in accordance with the Code and then, in direct reference to paragraph 6 of the TFPC, set the lower amounts to be paid to them.

(a) Mr Galabov

Mr Galabov started receiving a State pension in 1989, which up to 31 December 1999 was as follows:

Order

of the NSSI dated

For the period after

Pension due

under the

Pensions Act

Pension set in reference to Article 47“v” of the Pensions Act

7 July 1999

1 December 1989

356,160 old Bulgarian levs

(BGL: EUR 182.10)

BGL 103,950

(EUR 53.14)

7 July 1999

1 July 1999

BGL 400,170

(EUR 204.60)

BGL 111,000

(EUR 56.75)

After 1 January 2000 Mr Galabov ’ s pension was as follows:

Order

of the NSSI dated

For the period after

Pension due according to the Code

Pension set in reference to paragraph 6 of the TFPC

3 July 2000

1 January 2000

BGN 666.02

(EUR 340.52)

BGN 160

(EUR 81.80)

2 July 2001

1 July 2001

BGN 734.97

(EUR 375.29)

BGN 176

(EUR 89.98)

3 June 2002

1 July 2002

BGN 721.56

(EUR 368.64)

BGN 233.20

(EUR 119.13)

3 June 2003

1 June 2003

BGN 766.30

(EUR 391.65)

BGN 250

(EUR 127.82)

Amendment

of paragraph 6

of the TFPC of

1 January 2004

BGN 766.30

(EUR 391.65)

BGN 420

(EUR 214.74)

(b) Mr Sodev

Mr Sodev started receiving a State pension in 2001, which was as follows:

Order

of the NSSI dated

For the period after

Pension due according to the Code

Pension set in reference to paragraph 6 of the TFPC

13 August 2001

1 June 2001

BGN 915.61

(EUR 468.15)

BGN 176

(EUR 89.98)

3 June 2002

1 June 2002

BGN 970.55

(EUR 495.96 )

BGN 233.20

(EUR 119.13)

12 February 2003

15 January 2003

BGN 999.56

(EUR 510.78)

BGN 233.20

(EUR 119.13)

3 June 2003

1 June 2003

BGN 1,061.53

(EUR 542.75)

BGN 250

(EUR 127.82)

Amendment

of paragraph 6

of the TFPC of

1 January 2004

BGN 1,061.53

(EUR 542.75)

BGN 420

(EUR 214.74)

(c) Mr Stoyanov

Mr Stoyanov started receiving a State pension in 2002, which was as follows:

Order

of the NSSI dated

For the period after

Pension due according to the Code

Pension set in reference to paragraph 6 of the TFPC

12 September 2002

14 June 2002

BGN 871.32

(EUR 445.50)

BGN 233.20

(EUR 119.13)

3 June 2003

1 June 2003

BGN 925.34

(EUR 473.12)

BGN 250

(EUR 127.82)

Amendment

of paragraph 6

of the TFPC of

1 January 2004

BGN 925.34

(EUR 473.12)

BGN 420

(EUR 214.74)

1 June 2004

BGN 980.86

(EUR 501.51)

BGN 420

(EUR 214.74)

(d) Mr Avreiski

Mr Avreiski started receiving a State pension in 2002, which was as follows:

Order

of the NSSI dated

For the period after

Pension due according to the Code

Pension set in reference to paragraph 6 of the TFPC

3 September 2002

15 June 2002

BGN 699.69

(EUR 357.75)

BGN 233.20

(EUR 119.13)

3 June 2003

1 June 2003

BGN 743.07

(EUR 379.93)

BGN 250

(EUR 127.82)

Amendment

of paragraph 6

of the TFPC of

1 January 2004

BGN 743.07

(EUR 379.93)

BGN 420

(EUR 214.74)

1 June 2004

BGN 787.65

(EUR )

BGN 420

(EUR 214.74)

4. Retired sappers

The following applicants are retired sappers from the National Border Police Service. As such, they faced considerable life-threatening risks during their service for which they received a higher salary than the average for the country, on the basis of which they made higher than the average contributions to the State pension scheme.

Similar to the aforementioned applicants, the NSSI in its orders first of all calculated the pensions due to the applicants in accordance with the Code and then, in direct reference to paragraph 6 of the TFPC, set lower amounts to be paid to them.

(a) Mr Gonevski

Mr Gonevski started receiving a State pension in 2001, which was as follows:

Order

of the NSSI dated

For the period after

Pension due according to the Code

Pension set in reference to paragraph 6 of the TFPC

10 April 2002

27 November 2001

BGN 949.96

(EUR 485.22)

BGN 176

(EUR 89.98)

3 June 2002

1 June 2002

BGN 1,006.96

(EUR 514.85)

BGN 200

(EUR 102.25)

3 June 2003

1 June 2003

BGN 1,069.39

(EUR 546.77)

BGN 200

(EUR 102.25)

Amendment

of paragraph 6

of the TFPC of

1 January 2004

BGN 1,069.39

(EUR 546.77)

BGN 420

(EUR 214.74)

(b) Mr Slavkov

Mr Slavkov started receiving a State pension in 2000, which was as follows:

Order

of the NSSI dated

For the period after

Pension due according to the Code

Pension set in reference to paragraph 6 of the TFPC

11 August 2000

1 February 2000

BGN 772.74

(EUR 395.10)

BGN 160

(EUR 81.80)

5 June 2001

1 June 2001

BGN 850.01

(EUR 434.60)

BGN 176

(EUR 89.98)

3 June 2002

1 June 2002

BGN 901.01

(EUR 460.68)

BGN 200

(EUR 102.25)

3 June 2003

1 June 2003

BGN 956.87

(EUR 488.80)

BGN 200

(EUR 102.25)

Amendment

of paragraph 6

of the TFPC of

1 January 2004

BGN 956.87

(EUR 488.80)

BGN 420

(EUR 214.74)

(c) Mr Baev

Mr Baev started receiving a State pension in 2000, which was as follows:

Order

of the NSSI dated

For the period after

Pension due according to the Code

Pension set in reference to paragraph 6 of the TFPC

11 August 2000

1 March 2000

BGN 560.92

(EUR 286.79)

BGN 160

(EUR 81.80)

5 June 2001

1 June 2001

BGN 617.01

(EUR 315.47)

BGN 176

(EUR 89.98)

3 June 2002

1 June 2002

BGN 654.03

(EUR 334.40)

BGN 200

(EUR 102.25)

3 June 2003

1 June 2003

BGN 694.58

(EUR 354.84)

BGN 200

(EUR 102.25)

Amendment

of paragraph 6

of the TFPC of

1 January 2004

BGN 694.58

(EUR 354.84)

BGN 420

(EUR 214.74)

B. Relevant domestic law and practice

1. The regime governing pensions

(a) Prior to 1 January 2000

Prior to 1 January 2000 the entitlement to a pension and its amount were governed by Section III of the Labour Code of 1951 and the Pensions Act of 1957.

Article 47“v” of the Pensions Act of 1957, enacted in 1992 and amended in 1996, introduced a maximum amount that could be paid to an individual stemming from his entitlement to one or more pensions. Following the amendment of 1996 it read as follows:

“The amount of the one or more pensions received cannot exceed three times the social pension.”

(b) Social Security Code

The Code came into force on 1 January 2000 and regulates, inter alia , the amount and payment of social security contributions, the conditions for entitlement to the various types of pensions (old-age, invalidity, successors ’ or others) and, in particular, the formulas for calculating the amount of the various types of pensions.

( i ) Restriction on the maximum amount of pension to be paid

Paragraph 6(1) of the TFPC, while extending the restriction of Article 47“v” of the Pensions Act of 1957 regarding the maximum amount that could be paid to an individual stemming from his entitlement to one or more pensions, also introduced a temporal limitation for it by setting a date on which it would expire – 31 December 2003 .

( ά ) Restriction in force from 1 January 2000 to 31 December 2003

During this period paragraph 6(1) of the TFPC read as follows:

“Up to 31 December 2003, inclusively, the amount of the one or more pensions received ... cannot exceed four times the social pension for old age.”

In addition, from 1 January 2002 to 31 December 2003 paragraph 6(6) of the TFPC provided that the amount of the one or more pensions received by retired military personnel, and such from certain other national security institutions, cannot exceed five times the social pension for old age.

( β ) Restriction in force from 1 January 2004 to 31 December 2009

On 23 December 2003 paragraph 6(1) of the TFPC was amendment as from 1 January 2004 to read as follows:

“The maximum amount of the received one or more pensions, approved prior to 31 December 2009 ..., shall be equal to thirty-five percent of the maximum taxable income for social security purposes for each calendar year, [as] determined by the Budget of the State Social Security Act.”

On 1 January 2005 the basis for calculating the maximum amount to be paid in a given year was changed to the maximum taxable income for social security purposes for the previous calendar year.

On 1 January 2007 the date for recalculating the maximum amount to be paid in a given year was moved from 1 January to 1 July.

( ii ) Exceptions to the restriction

Paragraph 6(3) and (5) of the TFPC provides that the restriction on the maximum amount that could be paid to an individual stemming from his entitlement to one or more pensions did not apply to persons who have held the posts of president or vice-president of the Republic of Bulgaria, c hairman of the National Assembly, prime minister or judge in the Constitutional Court, or , under certain conditions, are military invalids.

2 . The Protection Against Discrimination Act

The Protection Against Discrimination Act of 2003 provides in section 4 that:

“(1) Any direct or indirect discrimination on grounds of gender, race, nationality, ethnicity, human genome, citizenship, origin, religion or belief, education, convictions, political affiliation, personal or social status, disability, age, sexual orientation, marital status, property status, or on any other grounds established by law or by an international treaty to which the Republic of Bulgaria is a party, shall be banned.

(2) Direct discrimination shall be any less favourable treatment of a person on the grounds referred to in paragraph (1), than the treatment another person is receiving, received, or would receive in comparable similar circumstances.

(3) Indirect discrimination shall be putting a person, on the grounds referred to in paragraph (1), in a less favourable position compared to other persons through an apparently neutral provision, criterion or practice, unless the said provision, criterion or practice is objectively justified in view of a legal aim and the means of achieving this aim are appropriate and necessary.

A specialised State body, the Commission for Protection Against Discrimination (Commission), was charged with exercising control over the implementation of, and compliance with, the above Act or other Acts regulating equal treatment (section 40).

Under section 47 of the Act the Commission has the power to:

“1. establish violations of this or other Acts regulating equal treatment, the perpetrator of the violation and the aggrieved person;

2. order the prevention and termination of the violation and restoration of the original situation;

3. impose the sanctions envisaged and implement administrative enforcement measures;

4. issue mandatory instruction for compliance with this or other Acts regulating equal treatment;

5. appeal against administrative acts decreed in contravention of this or other Acts regulating equal treatment, bring action in court and joining as an interested party in proceedings instituted under this or other Acts regulating equal treatment;

6. make proposals and recommendations to the State and municipal authorities to discontinue discriminatory practices and to revoke their acts issued in violation of this or other Acts regulating equal treatment; ...”

In a recent decision of 17 September 2009, the Commission, acting in a procedure initiated by persons not party to the present case, found that paragraph 6(1) of the TFPC amounted to i ndirect discrimination on the basis of property status within the meaning of the Act and that it violated the principle of equal treatment of the persons whose pensions were restricted by the said provision. The Commission reasoned that persons who had had a higher category of labour during their lifetime, had made higher contributions to the State pension system as a result and had done so for a longer period of time were just as entitled to the full amount of their pensions as persons who did not fall into that group. In addition, the Commission considered that there was a possibility under paragraph 6 ( 1) of the TFPC that pensioners whose pensions were approved after 1 January 2010 would not face such a restriction on their pension. This difference in treatment of pensioners who retire before and after the said date was also found to lack objective justifi cation and to violate the principle of equal treatment.

Separately, the Commission considered that p aragraph 6 ( 5) of the TFPC did not amount to discriminatory treatment under the Act as it was held to be necessary and objectively justified in view of the special status of the persons to whom it provided an advantage and the restrictions such persons faced in performing their public duties.

Considering its findings above, the Commission recommended to the National Assembly that it revoke paragraph 6(1) of the TFPC .

COMPLAINTS

1. The applicants complained under Article 1 of Protocol No. 1 to the Convention that as a result of the restriction in paragraph 6 of the TFPC they were deprived of part of the pensions that they would otherwise have received under the Code.

2. The applicants complained under Article 14, in conjunction with Article 1 of Protocol No. 1, that the restriction in paragraph 6 of the TFPC was discriminatory in comparison to the privilege enjoyed by (a) the high ‑ ranking State officials listed in paragraph 6 ( 3) (see Relevant domestic law above) to whom the restriction did not apply and (b) pensioners whose pensions were not reduced because they were below the maximum amount set in accordance with paragraph 6 of the TFPC.

Mr Gonevski , Mr Slavkov and Mr Baev further complained under Article 14, in conjunction with Article 1 of Protocol No. 1, that the restriction in paragraph 6 ( 6) of the TFPC, as in force from 1 January 2002 to 31 December 2003, was discriminatory because they received a lower pension in comparison to pensioners from the military, and certain other national security institutions, while having experienced similar life-threatening risks during their service.

3. The applicants complained under Article 13, in conjunction with Article 1 of Protocol No. 1 and Article 14, that they lacked effective domestic remedies because the provisions of paragraph 6 of the TFPC could only be challenged before the Constitutional Court but individuals, such as themselves, lacked the right of petition to said court.

THE LAW

A. Complaint under Article 1 of Protocol No. 1 to the Convention

The applicants complain ed that as a result of the restriction in paragraph 6 of the TFPC they were deprived of part of the pensions that they would otherwise have received under the Code.

Article 1 of Protocol No. 1 provides the following:

“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 considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2(b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

B. Complaint under Article 14 of the Convention

The applicants complain ed that the restriction in paragraph 6 of the TFPC was discriminatory in comparison to the privilege enjoyed by (a) the high-ranking State officials listed in paragraph 6 ( 3) (see Relevant domestic law above) to whom the restriction did not apply and (b) pensioners whose pensions were not reduced because they were below the maximum amount set in accordance with paragraph 6 of the TFPC. Mr Gonevski , Mr Slavkov and Mr Baev further complain ed that the restriction in paragraph 6 ( 6) of the TFPC, as in force from 1 January 2002 to 31 December 2003, was discriminatory because they received a lower pension in comparison to pensioners from the military, and certain other national security institutions, while having experienced similar life-threatening risks during their service.

Article 14 of the Convention provides the following:

“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.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2(b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

C. Complaint under Article 13 of the Convention

The applicants complain that they lacked effective domestic remedies because the provisions of paragraph 6 of the TFPC could only be challenged before the Constitutional Court but individuals, such as themselves, lacked the right of petition to said court.

Article 13 of the Convention provides the following:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court notes at the outset that the Convention does not provide for the right of individual petition to a domestic court or authority capable of declaring unconstitutional domestic legislation (see Popov and Others v. Bulgaria ( dec .), no s . 48047/99 , 48961/99 , 50786/99 and 50792/99 , 6 November 2003 ) .

It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

For these reasons , the Court unanimously

Decides to join the applications;

Decides to adjourn the examination of the complaints concerning (a) the extension after 1 January 2004 of the restriction on the maximum amount of State pension to be paid to the applicants (Article 1 of Protocol No. 1) and (b) their alleged discriminatory treatment in comparison to certain high-ranking State officials or other pensioners to whom the restriction did not apply or applied to a lesser extent (Article 14);

Declares the remainder of the applications inadmissible;

Decides to adjourn the examination of the applications listed in the attached A ppendix .

Claudia Westerdiek Peer Lorenzen Registrar President

Appendix – List of other applications pending before the Court with similar complaints

N o.

N ame

D ate of introduction

13684/03

Hristov v. Bulgaria

17 April 2003

21119/04

Statkov (VII) v. Bulgaria

12 May 2004

8247/05

Atanasov v. Bulgaria

16 February 2005

8415/05

Tzonev v. Bulgaria

16 February 2005

8825/05

Velikov v. Bulgaria

18 February 2005

12293/05

Neykov v. Bulgaria

16 February 2005

17149/05

Chokoev v. Bulgaria

3 May 2005

24418/05

Penkov v. Bulgaria

23 June 2005

24523/05

Antonov v. Bulgaria

30 June 2005

24578/05

Tosunov v. Bulgaria

13 June 2005

29914/05

Emanuilov v. Bulgaria

25 July 2005

31043/05

Rinkov v. Bulgaria

13 August 2005

38123/05

Markov v. Bulgaria

12 October 2005

40157/05

Hristov v. Bulgaria

3 November 2005

41145/05

Ferdinandov v. Bulgaria

6 November 2005

45665/05

Minchev v. Bulgaria

19 November 2005

6163/06

Likov v. Bulgaria

17 January 2006

15176/06

Simeonov v. Bulgaria

9 March 2006

16576/06

Chamov v. Bulgaria

11 April 2006

19198/06

Kavakliyski v. Bulgaria

2 May 2006

24350/06

Stanev v. Bulgaria

1 June 2006

24460/06

Raykov v. Bulgaria

8 June 2006

34809/06

Petkov v. Bulgaria

3 August 2006

42944/06

Gotev v. Bulgaria (II)

11 October 2006

165/07

Shipkaliev v. Bulgaria

2 December 2006

9505/07

Stefanov v. Bulgaria

20 November 2006

49999/07

Mateev v. Bulgaria

7 November 2007

50053/08

Petkov v. Bulgaria

24 September 2008

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VALKOV AND OTHERS v. BULGARIA

VALKOV AND OTHERS v. BULGARIA