Lexploria

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 pension s , could apply for residence permit s in Estonia . The Russian Federation undertook to secure payment of pension s 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 pension s 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 mi litary pension. The Estonian authorities assumed that the Russian Embassy would discontinue payment of military pension s on receipt of notification of payment of an Estonian pension. From January 2006 m any 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 continu ing to pay the persons concerned Russian military pension s , 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 Eston ian 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 il l-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. S imultaneous 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 receiv ing military pension s 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 arm ies 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 receiv ing 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 pension s 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 wish es of th o se 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 receiv ing 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 pension s from foreign states and that they – persons in receipt of Russian military pension s – 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

1933No 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 Glad õš ev

Estonian

1959No 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

Gr ünstein

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

1925No 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

1933No 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?

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TARKOEV AND OTHERS and MININ AND OTHERS v. ESTONIA

TARKOEV AND OTHERS and MININ AND OTHERS v. ESTONIA

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