AS TO THE ADMISSIBILITY OF
Application no. 55707/00
by Natālija ANDREJEVA
[This version was rectified in accordance with Rule 81 of the Rules of Court
on 21 September 2006]
The European Court of Human Rights (Third Section), sitting on 11 July 2006 as a Chamber composed of:
Mr B.M. Zupančič, President,
Mr C. Bîrsan,
Mr V. Zagrebelsky,
Mrs A. Gyulumyan,
Mr E. Myjer,
Mr David Thór Björgvinsson,
Mrs I. Ziemele, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application lodged on 27 February 2000,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, who was previously a national of the former USSR, is a “permanently resident non-citizen” of Latvia who was born in 1942 and lives in Riga (Latvia). She was represented before the Court by Mr V. Buzajevs, a member of the Latvian Parliament. The Latvian Government (“the Government”) were represented by their Agent, Ms I. Reine.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background to the case
The applicant first entered Latvian territory in 1954, at the age of twelve, at a time when the territory was one of the fifteen “Soviet Socialist Republics” and hence de facto part of the Soviet Union. She has been permanently resident there ever since. After finishing her studies at Riga Polytechnic Institute, she obtained a job at the Olaine chemical complex in 1966, working in a laboratory at a recycling plant.
In 1973 the applicant was assigned to the regional division of the Environmental Protection Monitoring Department of the USSR Ministry of Chemical Industry. Until 1981 she was under the authority of a State enterprise attached to the Ministry, with its head office in Kyiv (Ukraine). She was subsequently placed under the authority of a subdivision of the same enterprise, which was based in the Belorussian Soviet Socialist Republic and was itself subordinate to a division with its head office in Moscow. Although the applicant's salary was now paid by monthly post-office giro transfer, initially from Kyiv and then from Moscow, her successive reassignments did not entail any significant change in her working conditions, as she continued her duties at the recycling plant in Olaine.
On 4 May 1990 the Supreme Council (the legislative assembly at the time) adopted the Declaration on the Restoration of the Independence of the Republic of Latvia. On 21 November 1990 the Environmental Protection Monitoring Department was abolished. As the enterprise had become autonomous, the applicant came under the direct authority of the plant's management.
In August 1991 Latvia regained full independence. In December 1991 the Soviet Union, the State of which the applicant had hitherto been a national, ceased to exist. The applicant therefore became stateless. Following the enactment on 12 April 1995 of the Act on the Status of Former USSR Citizens without Latvian or other Citizenship, the applicant was granted the status of a “permanently resident non-citizen” (nepilsone).
In September 1993 the applicant was made redundant as a result of staff cutbacks. She immediately signed a contract with another employer, based in Riga, for whom she worked until her retirement in 1997.
2. Facts relating to the calculation of the applicant's pension
In August 1997, after reaching the age of 55, the applicant retired and asked the Social Insurance Board for the Kurzeme District of Riga (Rīgas Kurzemes rajona Sociālās apdrošināšanas pārvalde) to calculate the amount of her retirement pension (vecuma pensija). In a letter of 21 August 1997 the Board notified her that, in accordance with paragraph 1 of the transitional provisions of the State Pensions Act, only periods of work in Latvia could be taken into account in calculating the pensions of foreign nationals or stateless persons who had been resident in Latvia on 1 January 1991. It appeared from the applicant's employment record (darba grāmatiņa) that from 1 January 1973 to 21 November 1990 she had been employed by entities based in Kyiv and Moscow. The Board therefore calculated the applicant's pension solely in respect of the time she had worked before and after that period. As a result, the applicant was awarded a monthly pension of only 20 lati (approximately 35 euros).
The applicant lodged an administrative appeal against that decision with the State Social Insurance Fund (Valsts sociālās apdrošināšanas fonds), which dismissed the appeal in a letter of 4 September 1997. According to the Fund's administration, the mere fact of having lived and worked in Latvian territory during the relevant period was of no consequence in the applicant's case, since her employer had been based outside Latvia and had not paid tax to the Latvian authorities. The Fund further noted that there were no documents from the recycling plant's archives showing that the applicant had been employed there.
After sending a number of letters to the State Social Insurance Fund and the Ministry of Welfare (Labklājības ministrija) in a vain attempt to have her pension recalculated, the applicant applied to the Riga City Kurzeme District Court for judicial review. On 6 March 1998 the court declared her application inadmissible for failure to comply with procedural formalities.
In May 1998 the State Social Insurance Agency (Valsts sociālās apdrošināšanas aģentūra), which had replaced the State Social Insurance Fund, asked the Social Insurance Department of the Ministry of Welfare (Labklājības ministrijas Sociālās apdrošināšanas departaments) for an explanation as to the application of the provision in question in the applicant's case. In a letter of 5 June 1998 the Department explained that, since the applicant belonged to the category of persons to which the provision related, only the periods in which she had been employed by entities based in Latvia could be taken into account in calculating her pension. The Department added, lastly, that the only effective means of resolving the issue would be to conclude agreements with Ukraine and Russia on mutual recognition of periods of employment.
The applicant subsequently lodged a second application, this time against the Social Insurance Agency, with the Riga City Latgale District Court. In a judgment of 1 December 1998 the court dismissed her application.
The applicant appealed to the Riga Regional Court, which in a judgment of 4 May 1999 likewise found against her. It held that, since the applicant's salary had been paid to her by an employer based outside Latvia, her employment within Latvian territory was to be treated as an extended foreign assignment and could not give rise to any entitlement to a State pension for the period in question.
On an application by the applicant's lawyer, the public prosecutor attached to the Riga Regional Court appealed on points of law to the Senate of the Supreme Court.
In a letter of 9 September 1999 the Registry of the Senate informed the applicant that the case had been set down for public hearing on 6 October 1999 and indicated the precise time at which the examination of the appeal was due to start. However, as the hearing began earlier than scheduled, the Senate decided to consider the case before the parties had even arrived. After hearing the public prosecutor's submissions in favour of allowing the appeal, and after deliberating, the Senate, sitting as an extended bench of seven judges, dismissed the appeal, holding as follows:
“... On the basis of the documents at its disposal, the appellate court observed that, from 2 January 1973 until 21 November 1990, Ms Natālija Andrejeva had been employed by enterprises based outside Latvia.
The appellate court was therefore correct in finding that the period during which Ms Natālija Andrejeva had been employed by enterprises based in Ukraine and Russia could not be taken into account in calculating her pension.
In accordance with paragraph 1 of the transitional provisions of the State Pensions Act, pensions of foreign nationals or stateless persons who were resident in Latvia on 1 January 1991 are calculated in respect of periods of employment ... in Latvia ...
A period of employment within Ukrainian and Russian enterprises cannot be counted as a period of work in Latvia within the meaning of the aforementioned Act.
Section 1 of the State Pensions Act defines socially insured persons as [persons] who have made, or whose employer has made on their behalf, social-insurance contributions towards a State pension, in accordance with the State Social Insurance Act.
By virtue of ... the State Social Insurance Act, all employees of Latvian taxpayers are covered by the mandatory social-insurance scheme.
Ms Natālija Andrejeva's employers, being based in Ukraine and Russia, were not taxpayers in Latvia. Accordingly, there is no reason to believe that, having been employed by enterprises situated outside Latvia, Ms Natālija Andrejeva should be covered by the Latvian mandatory social-insurance scheme.
The Senate considers that the cooperation agreement on social security between the Republic of Latvia and Ukraine, which was signed in Kyiv on 26 February 1998 and came into force on 11 June 1999 – after the date of the impugned judgment – is not sufficient to justify a finding by this court that the public authorities acted unlawfully ...”
Since she had been unable to take part in the hearing, the applicant requested the Senate to re-examine the case. In a letter of 13 October 1999 the Chair of the Senate's Department of Civil Cases informed her that the Civil Procedure Act did not provide for the possibility of revision of a judgment after its delivery in such circumstances. However, he apologised to the applicant for the early start of the hearing and assured her that all the arguments of the parties had been properly examined.
In a letter of 13 December 1999 the Ukrainian Embassy in Latvia informed the applicant that, by virtue of the agreement between the two States which had entered into force on 11 June 1999, she was entitled to have her pension recalculated to take account of her work for the Ukrainian company. The Embassy therefore invited the applicant to apply to the relevant social-insurance department for recalculation of her pension. However, the Embassy informed her that the pension “in respect of the Ukrainian period of employment” would not be paid “until the conclusion of inter-State negotiations on the arrangements for payment of the pension”.
In a letter of 4 February 2000 the Social Insurance Agency informed the applicant that, on the basis of the above-mentioned agreement, her pension had been recalculated as from 1 November 1999 to take account of the years she had worked for employers based in Ukraine.
B. Relevant law and practice
1. Provisions on the calculation of State pensions
(a) Soviet law (before 1991)
Before 1991, persons resident in Latvian territory were covered by the same social-security scheme as the rest of the population of the USSR. In particular, the pension system at the time was based not on the contribution principle but on the solidarity principle. All pensions were paid from Treasury funds; in other words, a portion of the State's revenue was set aside for pensions. Consequently, the amount of a pension did not depend on the amount of taxes or contributions paid to the tax authorities. Allocations of tax receipts to the social-security budget, which was governed by uniform provisions, were not recorded in any special documents, with the exception of the “employment record” containing details of the insured person's professional career. Despite the formal autonomy of the budgets of the former “Soviet Socialist Republics”, such as Latvia at the time, there were no documents from which it could be ascertained exactly what proportion of the taxes deducted from an employee's income was used to fund his or her retirement pension.
(b) The Constitution
The relevant provisions of the Constitution (Satversme), as inserted by the Act of 15 October 1998, are worded as follows:
“All persons in Latvia shall be equal before the law and the courts. Human rights shall be exercised without discrimination of any kind.”
“Everyone has the right to social assistance in the event of old age, incapacity to work, unemployment and in other cases provided for by law.”
(c) The 1990 and 1995 State Pensions Acts
The main instrument governing pensions is the State Pensions Act of 2 November 1995 (Likums “Par valsts pensijām”), which came into force on 1 January 1996, replacing the former law enacted in 1990. Section 3(1) of the Act provides that persons who have been subject to the mandatory insurance scheme are entitled to a State social-insurance pension. As a rule, the amount of the pension in each particular case depends on the period during which the entitled person, the employer or both paid insurance contributions in respect of State pensions (section 9(1) and (2)). Evidence of this period is provided by data kept by the State Social Insurance Agency (section 10).
Matters relating to the reckoning of years of employment under the Soviet regime (prior to 1991) are governed by the transitional provisions of the Act, the relevant parts of which read as follows at the material time:
“The period to be taken into account in the calculation ... of the State pension payable to Latvian citizens, repatriated persons, their family members and their descendants shall consist of the total years of employment ... up to 1 January 1991, both within and outside Latvia, regardless of prior payment of social-insurance contributions. In the case of foreign nationals and stateless persons who were resident in Latvia on 1 January 1991, periods of employment and periods treated as such in Latvia shall be taken into account, as well as periods treated as employment outside Latvia in the cases specified in sub-paragraphs 4, 5 and 10 of this paragraph. Up to 1 January 1991 ..., the following periods treated as employment shall be taken into account in calculating the pension:
(4) periods of study at higher-education institutions, and at other training institutions at post-secondary level;
(5) periods of doctoral studies ..., postgraduate education or ongoing vocational training;
(10) time spent in places of detention by victims of political persecution ... in exile, and time spent escaping from such places, those periods to be multiplied by three, or by five in the case of time spent in the [Soviet] Far North and regions treated as equivalent. ...”
“The procedures for calculating, certifying and classifying the periods referred to in paragraphs 1 and 2 of these transitional provisions shall be determined by the Cabinet.”
“Expenses incurred in connection with the reckoning of the periods referred to in [paragraph 1 of] these transitional provisions in the calculation of State pensions shall be covered by the special State pension budget.”
“Proof of periods of employment during the transitional period may be provided by:
(1) an employment record [darba grāmatiņa];
(2) a record of employment contracts [darba līgumu grāmatiņa];
(3) a document certifying payment of social-insurance contributions;
(4) other evidence of periods of employment (such as certificates, contracts of employment or documents certifying performance of work).”
(d) The Constitutional Court's judgment of 26 June 2001
On 20 February 2001 twenty members of the Latvian Parliament applied to the Constitutional Court (Satversmes tiesa), seeking a ruling that paragraph 1 of the transitional provisions, which made a distinction on the ground of nationality, was incompatible with Articles 91 and 109 of the Constitution and Article 14 of the Convention, taken together with Article 1 of Protocol No. 1. In a judgment of 26 June 2001 (case no. 2001-02-0106) the Constitutional Court held that there had been no breach of the provisions cited. It observed, in particular:
“... the applicants' authorised representative... argues that, in view of their legal status, non-citizens are not connected to any State other than Latvia; accordingly, they are not able to exercise individually their right to social security ... The representative ... further submits that the distinction established in the provision in issue is not based on any economic or social factors; that, furthermore, the distinction is not founded on the legal status of citizens and non-citizens, as defined in Latvian legislation; and that the above argument is substantiated in particular by the fact that, once they are granted citizenship by means of naturalisation, non-citizens automatically become entitled to social security in respect of the years they have worked outside Latvia.
(1) On 4 May 1990 the Supreme Council ... adopted the Declaration on the Restoration of the Independence of the Republic of Latvia ('the Declaration'). Paragraph 8 of the Declaration contains an undertaking 'to guarantee social, economic and cultural rights, as well as universally recognised political freedoms compatible with international instruments of human rights, to citizens of the Republic of Latvia and citizens of other States permanently residing in Latvia. This shall apply to citizens of the USSR who wish to live in Latvia without acquiring Latvian nationality.'
On 29 November 1990, six months after adopting the Declaration, the Supreme Council ... passed the State Pensions Act. The entitlement to a State pension was granted to all residents of the Republic of Latvia who at the time of the Act's entry into force on 1 January 1991 were resident in Latvia. The Act provided for the right to social cover in old age. It referred to two types of State pension: employment pensions ([including] retirement pensions ...) and social-welfare pensions. Anyone covered by the social-insurance scheme of the Republic of Latvia was entitled to an employment pension. Anyone not entitled to an employment pension was guaranteed the right to a social-welfare pension under the Act. Accordingly, for the purposes of the Act, the terms 'State pension' and 'social cover in old age' were identical. By section 44 of the Act, ... stateless persons who had arrived in Latvia from another country and had not been employed by enterprises or institutions of the Republic of Latvia received their pensions in accordance with agreements signed with the State concerned; in the absence of such an agreement, they were to be granted a social-welfare pension. Thus, pensions were calculated according to the same rules for both of the above-mentioned categories ...
The pension system established by the Act was based on ... the principle of redistribution (solidarity), which did not encourage any interest on the part of employees in old-age cover. As Latvia strengthened its independence as a State, it soon became necessary to develop a new pension system complying with the principles of the European Union.
Having assessed the country's economic and demographic situation, the available resources and other circumstances, on 2 November 1995 Parliament passed a new Act with the same title ..., which came into force on 1 January 1996. Paragraph 1 of the transitional provisions of the Act provides that the period to be taken into account in calculating the State pensions of foreign nationals and stateless persons who were resident in Latvia on 1 January 1991 comprises their periods of employment in Latvia and periods treated as such. Periods of employment outside Latvia before 1 January 1991 and periods treated as such are not taken into account in determining the relevant period for pension calculations. ...
The pension scheme introduced in Latvia has been favourably assessed at international level. There has been a positive evaluation of the radical change in the traditional principle of solidarity between generations: money earned by the working generation is paid to current pensioners, but at the same time the insurance principle is applied, whereby people contribute their own funds towards their pension. ... International experts acknowledge that it is not possible to resolve all social issues by means of the pension system, as any effort to do so will only create problems endangering the system's long-term stability. ...
In passing the State Pensions Act, Latvia has adopted principles based on insurance premium payments in respect of ... State pensions, including the rule that the amount of the pension depends on the time worked ... [This] consists of periods of employment as defined by the Act and periods treated as such, irrespective of the person's nationality.
(2) ... In its case-law the European Court of Human Rights determines the compatibility of any claim with [Article 1 of Protocol No. 1], defining new criteria in each case. Not all claims automatically come under the concept of a 'possession' within the meaning of the Convention. To establish whether this is the case, it is necessary to assess the correlation between the entitlement to the pension or benefit in question and the obligation to pay taxes and other contributions. [The existence of a] right or legitimate expectation must be sufficiently demonstrated. A person complaining of interference with the exercise of his right of property must show that he or she has such a right.
In addition, the European Court of Human Rights makes a distinction between a system involving individual contributions to the [pension] fund, where the sum to be paid [from the fund] can also be determined in each case, and a system in which there is only an indirect link between contributions paid and the pension received. The latter system cannot be regarded as sufficiently tangible; however, the right of property, as such, must be tangible ...
To establish whether the legislative provision in issue concerns the right of property, the nature of the pension system must be examined. The new pension scheme is a system that creates a 'possession'. It is based on the principle that a person belonging to it has paid contributions into specific [pension] funds and that the contributions form a share of the funds' overall capital. Furthermore, the amount [of this share of the capital] can be determined at any moment. In such circumstances, the person acquires a 'possession' within the meaning of the Convention. In the case of Gaygusuz v. Austria, cited by the applicant, the European Court of Human Rights noted a link between the type of benefit in question, to which the applicant was not entitled under Austrian law, and payment of contributions to the unemployment insurance fund. The Court therefore found that the claim fell within the scope of Article 1 of Protocol No. 1 ...
However, the pension system which existed in Latvia until 1 January 1991 was based on the solidarity principle, entailing the responsibility of the community as a whole and not creating a direct link between contributions and the amount of the pension. Where the solidarity principle is applied, it is impossible to determine what share of the fund belongs to each of the participants. Accordingly, the right of property, which is protected by Article 1 of the Protocol No. 1 ..., does not arise in this case. This system does not confer on each individual any entitlement to an identifiable share, but rather an expectation of receiving material assistance according to the circumstances prevailing at the time the pension is to be paid. Pensions under this system are based on the so-called principle of collective security and cannot be granted on the basis of [each person's] individual contribution. It is true that there may be an entitlement to the payment of a certain amount of benefit where the system remains continuously in force and the individual fulfils the relevant conditions. However, even in those circumstances there is no entitlement to a specific amount, since the amount is subject to fluctuations and to legal regulation ...
Accordingly, the provision in issue does not concern the right of property and is not at variance with Article 1 of Protocol No. 1 ... The applicants' submission that the provision in issue infringes Article 14 of the Convention is therefore likewise unfounded.
(4) ... Welfare legislation, to which the provision in issue relates, is a specific field of human rights and, in constitutional laws of States and international human-rights instruments, is regarded as a general obligation of the State. The regulatory mechanism is left to the discretion of each State's legislature. The exercise of social rights depends on the country's economic situation and the available resources.
Since the entry into force of the Pensions Act, all residents of Latvia, regardless of their nationality, are entitled to a State pension [in respect of] social insurance, provided that they are socially insured and have completed the requisite number of years for insurance purposes. Paragraph 1 of the transitional provisions of the Pensions Act in its current wording was enacted in order to settle the issue of the reckoning ... of periods of employment prior to 1 January 1991 and periods treated as such in the new pension scheme. It should also be borne in mind that the impugned provision concerns only the category of persons who became entitled to a State pension from 1 January 1996.
With regard to foreign nationals and stateless persons who were resident in Latvia on 1 January 1991, periods of employment within the territory of Latvia prior to that date are taken into account in calculating their pension, in the same way as for Latvian citizens. Accordingly, the Latvian State has assumed responsibility for all permanent residents of Latvia, regardless of their nationality, in respect of the time they have worked in Latvian territory.
The distinction made by the provision in issue is objectively justified by the nature and principles of the Latvian pension system. It cannot therefore be regarded as constituting discrimination within the meaning of the Constitution.
The Constitutional Court considers that the question of periods of work by foreign nationals and stateless persons outside Latvia before 1 January 1991 should be resolved with the help of international agreements, and with due regard to the principles of fairness, proportionality, reciprocity and other legal rules.
The opinion of [the representative of] Parliament that Latvia should not assume the obligations of another State as regards the guarantee of a retirement pension for a period of work within the territory of another State is well-founded. ...”
(e) The State Pensions Act (new version)
In an Act of 20 October 2005, which came into force on 1 January 2006, Parliament amended a large number of the provisions of the State Pensions Act. The relevant paragraphs of the transitional provisions now read as follows:
“In the case of Latvian citizens, periods of employment and periods treated as such in the territory of Latvia and of the former USSR prior to 31 December 1990, as well as the total of the periods referred to in sub-paragraph 10 of this paragraph spent outside Latvia, shall be counted towards the period of payment of social-insurance contributions for the purpose of calculating their pension. In the case of foreign nationals and stateless persons, periods of employment and periods treated as such in the territory of Latvia, as well as any periods treated as periods of employment in the territory of the former USSR, in the cases specified in sub-paragraphs 4 and 5 of this paragraph, and any periods spent outside Latvia in the cases specified in sub-paragraph 10, shall be counted towards the contribution period. Up to 31 December 1990 ..., the following periods treated as employment shall be taken into account in calculating the pension:
(4) periods of study at higher-education institutions, and at other training institutions at post-secondary level, without exceeding five years in the case of qualifications requiring no more than five years' education at the relevant time, and without exceeding six years in the case of qualifications requiring more than five years' education at the relevant time;
(5) periods of ... doctoral studies, up to a maximum of three years, postgraduate education or ongoing vocational training;
(10) time spent in places of detention by victims of political persecution ... in exile, and time spent escaping from such places, those periods to be multiplied by three, or by five in the case of time spent in the [Soviet] Far North and regions treated as equivalent. ...”
“Amendments to the introductory part of paragraph 1 of these transitional provisions, concerning the reckoning of periods of employment and periods treated as such in pension calculations shall come into force on 1 January 2007.”
Paragraphs 2-1, 3 and 7 of the transitional provisions (see above) remained unchanged.
(f) International agreements
Mutual recognition of periods of employment to be taken into account in calculating State pensions is provided for in the cooperation agreements on social security which Latvia has concluded with Lithuania (in force since 31 January 1996), Estonia (in force since 29 January 1997), Ukraine (in force since 11 June 1999), Finland (in force since 1 June 2000) and Canada (ratified by the Latvian Parliament on 15 December 2005). A similar agreement with the Netherlands (in force since 1 June 2005) prohibits any discrimination on the ground of place of residence.
In particular, the agreement with Ukraine provides in principle for mutual recognition of periods of employment completed in accordance with the relevant legislation of both parties (Article 16 § 1 of the agreement). With regard to the period before 1 January 1991, periods of employment in the territory of one or both parties are taken into consideration in the calculation of pensions by either party, and it is immaterial whether or not contributions have been paid in the territory in question (paragraph 3 of the same Article). Articles 17 and 18 of the agreement lay down the procedure for the application of the above principle in specific circumstances.
Article 4 § 1 of the agreement with Canada places nationals of one of the parties who are within the territory of the other party on an equal footing with nationals of that party as regards welfare benefits. However, the second paragraph of the same Article states: “Paragraph 1 shall not apply to the transitional provisions of the Act on State Pensions of the Republic of Latvia regarding creditable periods accumulated prior to 1 January 1991 outside the Republic of Latvia.”
2. Provisions governing civil procedure
At the material time, administrative procedure was governed by Chapters 22 to 25 of the former Latvian Code of Civil Procedure (Latvijas Civilprocesa kodekss), which have remained in force following the replacement of the Code by the new Civil Procedure Act (Civilprocesa likums). The relevant provision of the former Code read as follows:
“Applications challenging conduct by the central or local administrative authorities that has adversely affected the rights of a natural person or other legal entity shall be compulsorily examined by a court in the presence of the public prosecutor.”
The relevant provisions of the new Civil Procedure Act, which came into force on 1 March 1999, are worded as follows:
“(1) Public prosecutors shall be entitled to participate in the examination of a case if they have brought an action or an application or if their participation is compulsory.
(3) The participation of the public prosecutor in the examination of a case shall be compulsory where it is prescribed by law or deemed necessary by the court.
(4) A public prosecutor who participates in the examination of a case shall be entitled to inspect material in the case file, to challenge judges, to adduce evidence and take part in examining it, to make [procedural] applications [to the court], to submit observations on issues arising in the course of the examination of the case and on the merits of the case in general, to appeal against court decisions, judgments and orders, to receive copies of the court's decision or of documents in the file, and to perform other procedural steps as determined by law.
(6) The withdrawal by a public prosecutor of an action or application he or she has brought before a court shall not deprive the person in whose interests the prosecutor was acting of the right to request the court to examine the case on the merits.”
“(1) After hearing the report by the senator [judge of the Senate], the court shall hear the observations of the parties or their representatives. The court may set a limited time for making submissions; however, both parties shall be allotted equal time.
(2) The person who lodged the appeal on points of law, or the public prosecutor, where the latter lodged the appeal, shall address the court first. ...
(3) Senators may put questions to the parties.
(4) Each party shall have the right to one reply.
(5) If the public prosecutor takes part in the examination of a case where he or she did not lodge an appeal on points of law, he or she shall give an opinion after the parties have presented their observations and their replies.”
Relying on Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1, the applicant complained that paragraph 1 of the transitional provisions of the State Pensions Act made the reckoning of periods of employment outside Latvia subject to the condition of nationality. She submitted that this entailed differential treatment of persons in identical or similar positions, and hence discrimination prohibited by Article 14. In particular, she argued that the discrimination had caused her substantial damage since it had deprived her, as a “non-citizen”, of her pension in respect of seventeen years of employment.
The applicant also alleged several violations of the rights protected by Article 6 § 1. She complained, firstly, that the Kurzeme District Court had dismissed her initial application for judicial review of the calculation of her pension, thereby deliberately and arbitrarily obstructing the exercise of her right of access to the courts. Secondly, the applicant complained that her right to a fair hearing had been infringed in that the Senate had brought forward its examination of the appeal on points of law lodged on her behalf by the public prosecutor, without giving her any prior notification. Thirdly, the applicant complained that the interpretation of the relevant provisions of the State Pensions Act by the Latvian courts dealing with her case had been incorrect and arbitrary, indicating a lack of impartiality on their part. Lastly, the applicant complained that she had been unable to obtain a review by a domestic court of the compatibility of the legislation in question with the Latvian Constitution and the Convention, since no such remedy had existed at the relevant time.
A. Complaint under Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1
The applicant complained that the application in her case of paragraph 1 of the transitional provisions of the State Pensions Act, which made a distinction between pensioners on the basis of nationality, constituted discrimination prohibited by Article 14 of the Convention in the exercise of her rights under Article 1 of Protocol No. 1. The relevant parts of those provisions read as follows:
Article 14 of the Convention
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as ... national or social origin, association with a national minority ... birth or other status.”
Article 1 of Protocol No. 1
“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.”
1. The parties' submissions
(a) The Government
The Government submitted that Article 1 of Protocol No. 1 was not applicable to the pension calculated in respect of the period prior to 1991. In that connection they referred to and fully endorsed the reasons given by the Constitutional Court in its judgment of 26 June 2001 (see above). They accordingly emphasised the need to distinguish between the system of retirement pensions that had existed until 1 January 1991 and the system introduced after that date. The former system had been based on the solidarity principle, entailing the responsibility of the community as a whole and not creating a direct link between contributions and the amount of the pension. It had been impossible to determine the exact share of the pension fund contributed by each person covered by the scheme. In other words, individuals were not entitled to claim an identifiable amount in respect of their retirement pension. Accordingly, there was only an indirect link between contributions and pensions, and the applicant's claim in the instant case was insufficiently tangible to constitute a “possession” within the meaning of Article 1 of Protocol No. 1.
The current pension system, however, was based on the principle of individual contributions. Each person's contributions formed a specific share of the pension fund, and the precise amount of that share could be determined at any time. All contributors therefore had a sufficiently tangible entitlement to their share of the fund for it to qualify as a “possession” within the meaning of Article 1 of Protocol No. 1.
In the light of the foregoing, the Government submitted that Article 1 of Protocol No. 1 was not applicable to the portion of retirement pensions calculated in respect of periods of employment before 1991. Article 14 of the Convention was therefore not applicable either.
Even supposing that the reverse were true, the Government drew attention to the Constitutional Court's conclusion that Latvia had assumed responsibility for periods worked in Latvian territory by any of the country's permanent residents, regardless of their nationality. In the same way, they contended, Latvia was not obliged to take responsibility for periods of work for the benefit of and in the territory of other States. They therefore submitted that the distinction between Latvian citizens and other individuals in the instant case was justified and reasonable and did not amount to discrimination prohibited by Article 14.
Lastly, the Government observed that the reckoning of periods of employment outside Latvian territory was a matter to be addressed through inter-State agreements on social security. They pointed out that such agreements had already been concluded with several States and that a similar agreement with the Russian Federation was currently being drafted.
(b) The applicant
The applicant contested the Government's arguments. She submitted, firstly, that the difference between the solidarity principle, which had applied until 1991, and the principle of individual contributions, introduced after that date, could not serve as a basis for the distinction of which she complained. She observed in that connection that in both cases, pensions were accrued during the contributor's period of employment, and that even under the previous system, the pension fund had been made up of individual taxes paid to the State. The only difference between the two systems was the method for calculating the pension – in other words, the determination of the link between contributions and pension, which was not a sufficient ground for depriving those who had paid contributions under the former scheme of the entitlement to a retirement pension in respect of the corresponding period.
The applicant also contested the Government's argument that Latvia was not required to take on other States' obligations in respect of periods of employment in their territory. She pointed out in that connection that before 1991, Latvia, Russia and Ukraine had formed part of the same State, the Soviet Union, and that contributions levied by the authorities at that time had not been linked to any particular territorial unit of the USSR. The applicant therefore disputed that any territorial criterion could be introduced in relation to that period.
The applicant submitted in particular that the distinction between pensioners on the ground of nationality was unjustified. She pointed out that she had first come to Latvia at the age of twelve and had spent all her working life there, and that her employment during the Soviet era had consisted in protecting the environment in Latvia. Lastly, she submitted that she had been wrongly denied Latvian nationality. In those circumstances, she maintained that the distinction in issue had indeed constituted discrimination in breach of Article 14 of the Convention.
Furthermore, the applicant was not persuaded by the Government's argument that the reckoning of periods of employment prior to 1991 was a matter to be addressed by means of international agreements. In her submission, the agreement with Ukraine did not provide adequate redress in respect of her complaint, since it concerned only a very limited period not corresponding to the actual length of her employment. As to the draft agreement with Russia, the applicant pointed out that that instrument had yet to be finally adopted and that negotiations between the two governments had already lasted more than eight years. She reiterated in that connection that Russia and Ukraine had no legal basis for assuming responsibility for her pension, since her entire working life had been spent in the territory of Latvia.
2. The Court's assessment
The Court considers, in the light of the parties' submissions, that this complaint raises serious issues of fact and law which cannot be resolved at this stage in the examination of the application, but require examination on the merits. It follows that this complaint cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
B. Complaints concerning Article 6 § 1 of the Convention
The applicant also alleged several violations of the rights protected by Article 6 § 1 of the Convention, the relevant parts of which read as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an ... impartial tribunal ...”
1. The parties' submissions
As to the applicant's complaint that the Senate of the Supreme Court had held its hearing earlier than scheduled, thus preventing her from taking part in the examination of the appeal on points of law lodged by the public prosecutor on her behalf, the Government denied that there had been any infringement of her rights under Article 6 § 1. They pointed out in that connection that the appeal examined on 6 October 1999 had been lodged by the public prosecutor, who had adopted a similar position to that of the applicant. The Government were therefore of the view that arguments identical or similar to those which the applicant could have put forward herself had been duly submitted by the public prosecutor. Similarly, in its judgment the Senate had carried out a sufficiently thorough analysis of those arguments. The applicant's absence during the hearing could therefore not have influenced the outcome of the proceedings.
The applicant did not comment on this particular point, confining herself to criticising the other aspects of the proceedings in issue. She thus submitted that the Kurzeme District Court had erred in dismissing her initial application for judicial review of the calculation of her pension. The interpretation of the relevant provisions of the State Pensions Act by the domestic courts dealing with her case had likewise been incorrect and arbitrary, indicating a lack of impartiality on their part. Lastly, she criticised the lack of an adequate constitutional-review procedure at the material time.
2. The Court's assessment
(a) Complaint concerning the inadmissibility of the applicant's initial application for judicial review
With regard to the applicant's complaint concerning the Kurzeme District Court's order of 6 March 1998 declaring her application against the State Social Insurance Fund inadmissible for failure to comply with procedural formalities, the Court observes that, after that order had been made, the applicant brought a second application against the legal successor of the initial respondent, containing the same complaints and the same requests as her earlier memorial, and that the application was examined by the Latvian courts at all levels of jurisdiction. It follows that the applicant had the benefit of adversarial court proceedings and that this complaint must be dismissed as being manifestly ill-founded, in accordance with Article 35 §§ 3 and 4 of the Convention.
(b) Complaint concerning the denial of access to the hearing of the appeal on points of law
With regard to the applicant's complaint that the Senate of the Supreme Court held its hearing earlier than scheduled, thus preventing her from taking part in the examination of the appeal on points of law lodged by the public prosecutor on her behalf, the Court considers that this complaint raises serious issues of fact and law which cannot be resolved at this stage in the examination of the application, but require examination on the merits. It follows that this complaint cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
With regard to the applicant's complaint that the domestic law on pensions had been incorrectly interpreted, the Court points out that under Article 19 of the Convention, its sole task is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not competent to examine applications relating to errors of fact or law allegedly committed by a national court, or to substitute its own assessment for that of the national courts unless and in so far as these errors may have infringed rights and freedoms protected by the Convention (see, for example, García Ruiz v. Spain [GC], no. 30544/96, §§ 28-29, ECHR 1999-I). The courts' interpretation of the State Pensions Act in the instant case cannot be regarded as manifestly arbitrary or unreasonable.
Furthermore, the Court observes that the applicant had the benefit of adversarial proceedings at first instance and on appeal. Furthermore, her lawyer was able to submit to the courts the arguments he considered relevant to her case, and those arguments were indeed examined by the judges. The Court also notes that all the impugned decisions contained extensive reasoning based on both factual and legal considerations.
With regard to the applicant's further complaint of a lack of impartiality on the judges' part, the Court observes that her allegation is not based on any specific fact. In this connection, it considers that the mere fact that the courts adopted legal reasoning that was contrary to the applicant's position is not a sufficient indication of bias on their part.
It follows that this part of the application must be rejected as being manifestly ill-founded, in accordance with Article 35 §§ 3 and 4 of the Convention.
(d) Complaint concerning the lack of a remedy in respect of domestic legislation
With regard to the applicant's complaint that at the material time there had been no remedy whereby individuals could challenge laws and other rule-making instruments as being incompatible with the Convention or the Latvian Constitution, the Court reiterates that neither Article 6 nor any other provision of the Convention requires such a remedy (see, for example, The Holy Monasteries v. Greece, judgment of 9 December 1994, Series A no. 301, p. 37, § 90, and Gustafsson v. Sweden, judgment of 25 April 1996, Reports 1996-II, p. 658, § 70). 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 dismissed in accordance with Article 35 § 4.
For these reasons, the Court,
by a majority,
Declares admissible, without prejudging the merits, the complaint under Article 14 of the Convention in conjunction with Article 1 of Protocol No. 11;
Declares admissible, without prejudging the merits, the applicant's complaint under Article 6 § 1 of the Convention concerning the holding of a hearing earlier than scheduled in the Senate of the Supreme Court;
Declares the remainder of the application inadmissible.
Vincent Berger Boštjan M. Zupančič Registrar President
ANDREJEVA v. LATVIA DECISION
ANDREJEVA v. LATVIA DECISION