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|Publication:||[not yet received]|
|Title:||Andrejeva v. Latvia|
|Date of reference by Commission:|
|Date of reference by State:|
|Date of Judgment:||18-02-2009|
|Conclusion:||Violation of article 6-1|
Violation of article 14
Violation of article P1-1
|Keywords:||FAIR TRIAL / DISCRIMINATION / PROPERTY|
The applicant was born in 1942 and lives in Riga (Latvia). She has lived in Latvia for 54 years and, having previously been a national of the former USSR, currently has the status of a permanently resident non-citizen (nepilsone) of Latvia. Now retired, she was employed at a recycling plant at the Olaine chemical complex, formerly a public body under the authority of the USSR Ministry of Chemical Industry. The complex is situated in what was USSR territory and is now Latvian territory following the restoration in August 1991 of Latvian independence. The case concerned, in particular, the applicant's complaint that the application of the transitional provisions of the Latvian State Pensions Act in her case had deprived her of pension entitlements in respect of 17 years of employment. The applicant first entered Latvian territory in 1954, at the age of 12, at a time when it was part of the Soviet Union. She has been permanently resident there ever since. She started her job at the Olaine chemical complex in 1966. In 1973 she 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 with its head office in Kiev. She was subsequently placed under the authority of a subdivision of the same enterprise, which was subordinate to a division with its head office in Moscow. Although the applicant's salary was paid by post-office giro transfer, initially from Kiev and then from Moscow, her successive reassignments did not entail any significant change in her working conditions, as she continued her duties at the Olaine recycling plant.
Following the declaration of Latvia's independence, on 21 November 1990 the Environmental Protection Monitoring Department was abolished and the applicant came under the direct authority of the plant's management. On retiring in 1997 the applicant asked her local Social Insurance Board to calculate her retirement pension. She was informed 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. As the applicant had been employed from 1 January 1973 to 21 November 1990 by entities based in Kiev and Moscow, the Board calculated her pension solely in respect of the time she had worked before and after that period. As a result, she was awarded a monthly pension of 20 Latvian lati (approximately EUR 35).
The applicant brought administrative and judicial proceedings, without success. Ultimately, the applicant's appeal on points of law to the Senate of the Supreme Court, examined at a public hearing on 6 October 1999, was dismissed. The Senate upheld the district and regional courts' findings that the period during which the applicant had been employed by Ukrainian and Russian enterprises could not be taken into account in calculating her pension. Furthermore, as those employers were not taxpayers in Latvia, there was no reason for the applicant to be covered by the Latvian mandatory social-insurance scheme. The applicant requested the re-examination of her case because she had been unable to take part in the hearing of 6 October 1999 as it had started earlier than scheduled. That request was also dismissed. In February 2000 the applicant was informed that, on the basis of an agreement reached between Latvia and Ukraine, her pension had been recalculated, with effect from 1 November 1999, to take account of the years she had worked for her Ukrainian-based employers.
Relying on Article 14 taken in conjunction with Article 1 of Protocol No. 1, the applicant alleged, in particular, that by refusing to grant her a State pension in respect of her employment in the former Soviet Union prior to 1991 on the ground that she did not have Latvian citizenship, the Latvian authorities had discriminated against her in the exercise of her pecuniary rights. She also complained, under Article 6 § 1 (right to a fair hearing), that the hearing of 6 October 1999 had taken place earlier than scheduled, which had prevented her from taking part in the examination of her appeal on points of law.
Article 14 taken in conjunction with Article 1 of Protocol No. 1
The Court reiterated that once an applicant had established the existence of a difference in treatment, it was for the Government to show that the difference was justified.
In the present case the Court noted, firstly, that in the judgments they had delivered in 1999 the Latvian courts had found that the fact of having worked for an entity established outside Latvia despite having been physically in Latvian territory did not constitute "employment within the territory of Latvia" within the meaning of the State Pensions Act. The parties disagreed as to whether at that time such an interpretation could have appeared reasonable or whether it was manifestly arbitrary. The Court did not consider it necessary to determine that issue separately.
The Court accepted that the difference in treatment complained of pursued at least one legitimate aim that was broadly compatible with the general objectives of the Convention, namely the protection of the country's economic system.
The parties agreed that if the applicant became a naturalised Latvian citizen she would automatically receive the pension in respect of her entire working life. However, the Court had held that very weighty reasons would have to be put forward before it could regard a difference of treatment based exclusively on the ground of nationality as compatible with the Convention; it could not discern any such reasons in the present case. Firstly, it had not been established, or even alleged, that the applicant had not satisfied the other statutory conditions entitling her to a pension in respect of all her years of employment. She was therefore in a similar situation to persons who had had an identical or similar career but who, after 1991, had been recognised as Latvian citizens. Secondly, there was no evidence that during the Soviet era there had been any difference in treatment between nationals of the former USSR as regards pensions. Thirdly, the Court observed that the applicant was not currently a national of any State. She had the status of a "permanently resident non-citizen" of Latvia, the only State with which she had any stable legal ties and thus the only State which, objectively, could assume responsibility for her in terms of social security.
In those circumstances, the arguments submitted by the Latvian Government were not sufficient to satisfy the Court that there was a "reasonable relationship of proportionality" between the legitimate aim pursued and the means employed.
The Government took the view that the reckoning of periods of employment was essentially a matter to be addressed through bilateral inter-State agreements on social security. The Court was fully aware of the importance of such agreements but nevertheless reiterated that by ratifying the Convention, Latvia had undertaken to secure "to everyone within [its] jurisdiction" the rights and freedoms guaranteed therein. Accordingly, the Latvian State could not be absolved of its responsibility under Article 14 on the ground that it was not or had not been bound by inter-State agreements on social security with Ukraine and Russia. Nor could the Court accept the Government's argument that it would be sufficient for the applicant to become a naturalised Latvian citizen in order to receive the full amount of her pension. The prohibition of discrimination in Article 14 was meaningful only if an applicant's personal situation was taken into account exactly as it stood. The Court therefore found a violation of Article 14 taken in conjunction with Article 1 of Protocol No. 1.
Article 6 § 1
The Court noted, among other things, that the appeal on points of law had been lodged not by the applicant herself or her lawyer but by the public prosecutor attached to the Riga Regional Court. The Government argued that the favourable position adopted by the public prosecutor had dispensed the Senate from having to afford the applicant the opportunity to attend the hearing herself. The Court was not persuaded by that argument and observed, in particular, that it did not appear that under Latvian law, a public prosecutor could represent one of the parties or replace that party at the hearing. Ms Andrejeva had been a party to administrative proceedings governed at the time by the Civil Procedure Act and instituted at her request. Accordingly, as the main protagonist in those proceedings she should have been afforded the full range of safeguards deriving from the adversarial principle.
The Court concluded that the fact that the appeal on points of law had been lodged by the prosecution service had in no way curtailed the applicant's right to be present at the hearing of her case, a right she had been unable to exercise despite having wished to do so. There had therefore been a violation of Article 6 § 1.
Under Article 41 (just satisfaction), the Court awarded the applicant 5,000 euros (EUR) in respect of all damage sustained and EUR 1,500 for costs and expenses. (The judgment is available in English and French.)
|Last Modified: 26-02-2013 10:24:53 (Documentation SIM)