CASE OF TARNOPOLSKAYA AND OTHERS v. RUSSIA
Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni
5. The applicants' names and other details are indicated in the appended table. 6. The applicants emigrated to Israel from the USSR in the 1980s and 1990s and obtained Israeli nationality. Before immigration they had been receiving old-age pensions from the Soviet authorities. However, once the applicants left the USSR, the payments were discontinued in accordance with the USSR pension law applicable at the material time. As they left the USSR prior to its collapse, they were not entitled to a pension under the new Russian legislation. 7. In early 2000 the applicants unsuccessfully applied to the regional departments of the Pension Fund of the Russian Federation (“the Pension Fund”) for the payment of their pensions to be restored. On unspecified dates they brought civil proceedings against the Pension Fund requesting restoration of the payment of their pensions. 8. By the final judgments listed in the appended table the applicants' claims were allowed and the Pension Fund was ordered to restore pension payments. 9. In their judgments the courts found, inter alia, that although the pensions had initially been awarded in accordance with the USSR legislation, the latter was also applicable in the Russian Federation. The courts interpreted the relevant legal provisions in the light of the Constitutional Court judgment of 15 June 1998, considering that the pension payments should be restored regardless of the date or place of emigration from the Russian Federation. 10. The Pension Fund restored the payments in ten cases (see § 43 below). 11. On 17 June 2005 the Pension Fund, in a letter numbered ГВ2115/6390, asked the Supreme Court of the Russian Federation to provide an explanation of the issue. It based the request on the fact that courts of different regions had different attitudes towards the problem. Thus, it noted that in Moscow, the Moscow Region and in most of the other regions the courts rejected claims for payment of pensions to emigrant pensioners whose pensions had been awarded in accordance with the legislation of the USSR. At the same time, the courts in St Petersburg, in the Samara Region, in the Kaluga Region and in the Yaroslavl Region awarded such payment. 12. Subsequently the Pension Fund, as a party to the proceedings in the present case, lodged requests with the competent regional courts for supervisory review of the final judgments in the applicants' favour. The Presidia of the regional courts granted the requests, quashed the judgments and dismissed the applicants' claims. 13. The Presidia found that according to the relevant USSR legislation, under which the pensions had been awarded, there was no possibility to continue the payments to the applicants, as they had left the country. According to their interpretation of the Ruling of the Constitutional Court of 15 June 1998, the payments were to be restored only if the pensions had been awarded in accordance with the legislation of the Russian Federation, not the USSR. The Presidia accordingly concluded that there was no basis under the domestic law for the payments to be awarded to the applicants. 14. The relevant data on the Presidia decisions is listed below. 15. For the relevant provisions on the supervisory-review proceedings contained in the Code of Civil Procedure of the Russian Federation see, among many other authorities, the Court's judgment in the case of Sobelin and Others v. Russia (nos. 30672/03 et seq., § 34, 3 May 2007). 16. According to the law “On the Judicial System of the Russian Federation”, no. 1-FKZ of 31 December 1996, the Supreme Court of the Russian Federation is a supreme judicial body performing judicial supervision over the activities of all the courts of general jurisdiction and, inter alia, providing explanations on the issues of judicial practices. 17. The relevant provisions on the payment of pensions to those who left the USSR and the Russian Federation are as follows. 18. According to the Provisions regulating the award and payment of state pensions, which were approved by the USSR Council of Ministers Decree on 3 August 1972, USSR citizens living abroad shall be paid their pensions unless they left the USSR for permanent residence or for capitalist countries. 19. The law of 24 October 1990 “On the Operation of Legislation of the USSR on the Territory of the Russian Federation” provided that the USSR legal acts operated directly on the territory of the Russian Federation unless they contradicted the Russian Federation legislation. 20. According to the Order of the Supreme Council of the RSFSR of 11 December 1991 “On Ratification of the Agreement Establishing the Commonwealth of Independent States”, the judicial norms of the former USSR were to be applied in the Russian Federation prior to adoption of the relevant legislation of the Russian Federation. 21. According to the decree of the Supreme Soviet of the Russian Federation no. 4461-I of 11 February 1993, the Pension Fund was allowed to pay pensions awarded under the USSR legislation to pensioners who had been receiving such pensions in the Russian Federation and had left for permanent residence abroad. 22. The law “On Pension Payments to Persons Leaving the Russian Federation for Permanent Residence Abroad” no. 5318-I of 2 July 1993 provided that upon a written request by a pensioner leaving Russia the pension should be transferred to him or her abroad. 23. On 15 June 1998 the Constitutional Court ruled (in Decision no. 18P) that law no. 5318-I of 2 July 1993, applied at the material time, contradicted the Constitution in the part concerning the refusal to pay pensions to persons who had left the Russian Federation before 1 July 1993. 24. According to the law “On Pension Payments to Persons Leaving the Russian Federation for Permanent Residence Abroad” no. 21-FZ of 6 March 2001, pensions were to be paid to persons who had acquired the right to receive a pension in accordance with the legislation of the Russian Federation at the time they left the country. 25. The new law “On State Pensions in the Russian Federation” no. 173FZ of 17 December 2001 reiterated that upon a written request by a pensioner leaving Russia the pension should be paid in Russia by power of attorney or transferred to him or her abroad (Article 24). It also provided that payments that had not been received in time because of the fault of the bodies responsible for the pension award or payment should be paid for the entire previous period (Article 23). 26. On 29 November 2006 in Ruling no. 85-B06-13 the Supreme Court of the Russian Federation found that no pension payments should be made if they were initially awarded in accordance with USSR, not Russian Federation, legislation. It noted, in particular, that “those who had been entitled to pension in accordance with the USSR legislation [...] and had left the Russian Federation for permanent residence abroad have lost their title to the pension”.