SULCS v. LATVIA AND OTHER APPLICATIONS
Inadmissible
Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
1. The applicants are Latvian nationals, except the applicant Aleksandrs Ļebedevs (application no. 52525/10) who is a non-citizen of the Republic of Latvia. Their names, dates of birth, places of residence and the dates of introduction of applications are listed in the appendix to this decision. 2. According to the amendments to the Law on Maternity and Sickness Insurance (“Par maternitātes un slimības apdrošināšanu”), from 1 January 2008 the parental benefit (vecāku pabalsts) was allocated to socially insured persons (to one of the parents or a guardian) who either did not gain income because s/he was on parental leave or, on the contrary, did not use the parental leave and continued working. The benefit was paid until the child reached the age of one. 3. The applicants’ children were born in the period between December 2008 and June 2009, except three applicants whose children were born shortly afterwards (see the appended list). 4. By virtue of a decision of the State Social Insurance Agency (“VSAA”) the applicants, whose children were born before June 2009, were entitled to a parental benefit in the amount of 70% of the average salary calculated for the purposes of social insurance deductions. Until June 2009 the applicants received the parental benefit in full amount and continued working. 5. On 16 June 2009 the Parliament of Latvia introduced changes to the Law on Maternity and Sickness Insurance which came into force on 1 July 2009 and deleted, inter alia, the provision according to which the parental benefit could be allocated to a parent or a guardian who was not on a parental leave but continued working. Section 5 of the Law on Payment of State Pensions and Benefits during the Period from 2009 to 2012 (thereinafter – Law on Payments) (Par valsts pensiju un valsts pabalstu izmaksu laika periodā no. 2009. gada līdz 2012. gadam), which was adopted on the same day, provided for a transitional period of the aforementioned amendments. In particular, it provided that starting from 1 July 2009 to 2 May 2010 the parents (guardians) who gained income during the maternity period should receive 50% of the parental benefit allocated to them. 6. Each applicant submitted a constitutional complaint seeking the Constitutional Court to find that provision 5 of the Law on Payments run contrary to Articles 1, 91 and 110 of the Constitution. They argued that by virtue of the decision of the VSAA they were entitled to a parental benefit, and that, therefore, the legislative changes infringed their legitimate expectations to receive the parental benefit in full amount until the child reached the age of one. The applicants whose children were born after June 2009 argued that they had the same legitimate expectations arising from the law in force at the time when they planned their family. 7. The Constitutional Court on 15 March 2010 found that the contested provision was constitutional. Firstly, it concluded that the employed and unemployed parents were not in a comparable situation, therefore differentiated benefit rates did not lead to unequal treatment. Secondly, the Constitutional Court recognised that even if the parents had had legitimate expectation to receive the parental benefit in full amount, the contested measure in the particular economic situation in Latvia had a legitimate aim and it did strike a fair balance between the general interests and the applicants’ rights: “9.7 ... [The amendments to the social insurance benefits in force as from 1 January 2008] caused a situation that families could choose to attribute parental benefit to the parent who received higher remuneration before the birth of a child. For instance, in a family where one of the parents was unemployed before the birth of a child, whilst the other parent was employed, the benefit was allocated to the one who was employed and received a wage ... rather than the one who was not employed and was on a parental leave. However, in cases when both parents were employed before the birth of the child, the family asked to allocate the parental benefit to the one who received a higher salary, even thought de fact it was the other parent who was on the parental leave.... . Such application of the parental benefit was in conflict with the conclusions made in the judgment no. 2006-07-01 by the Constitutional Court regarding the effective social insurance system of the State because in the result of this a group of persons was formed who were not socially insured during the childcare period. For instance, if parental benefit was allocated to an employed parent who had a higher wage, social insurance payments were made from the wage of this particular person. However, the other parent who was on childcare leave and did not receive parental benefit, was not socially insured since he or she received neither benefit, nor wage. Therefore persons could not receive any other social insurance services because they have not made social insurance payments for almost a year. Moreover, the newly established type of insurance, i.e. parental insurance did not provide for an additional social insurance payment rate, therefore it deteriorated the situation in the State social insurance budget. One of the reasons of such a huge deficit in the social insurance budget was inconsiderate definition of parenting benefit as a type of social insurance. In 2008, approximately 66.7 million lats were spent for the disbursement of this benefit (when introducing this benefit, it was planned to use about 26 million lats), and already 43 million lats were used for this purpose in the first half of 2009 before the contested provision was adopted. (...) 20. The contested provision was adopted during economic recession in Latvia .... In the second quarter of 2009, Latvia underwent the most rapid reduction of economic activities in the entire European Union. ... During this period, the financial deficit of the state consolidated budget reached 449.9 million lats or approximately 3.5 percent from the Gross Domestic Product, and it was estimated that the deficit may reach 1.3 milliard lats or approximately 9.5 percent from the Gross Domestic Product by the end of 2009. As a result, both the functioning of the State and economic growth in the foreseeable future would be endangered... (...) 24. If amendment of legal regulatory framework serves for the benefit of the society, then restriction of the legal trust of persons is permitted. The contested norm has been adopted with the purpose to balance revenues and expenses of the State special budget of social insurance. Economic recession denied the possibility for the State to guarantee such amount of social security that was established during the period of economic growth of the State. If no measures were taken to solve the situation, this would have influenced the possibility of the State to ensure the right of persons to social security and to guarantee sustainability of social security system. This would not comply with the principle of a socially responsible State. Consequently, restriction of the right of employed parents to receive parental benefit at full extent during the transitional period has been established with a view to ensure substantial interests of the society. In the result of this, a fair balance between restriction of legal security of a person and the right of the society to a sustainable State social insurance system and balanced State budget was ensured”. 8. Finally, the court recognised that the reduced amount of the benefit to employed parents in the transitional period was a proportional measure in that the employed parents still continued to receive both the salary and 50% of the reduced parental benefit. Consequently, their family income increased in comparison to the unemployed parents who received only the benefit. 9. The dissenting opinion to the aforementioned judgment of the Constitutional Court stated: “It has been concluded in the Judgment that a transitional period of 306 days has been observed, which guarantees protection of legitimate expectations, whilst the amount of benefit to be disbursed has only been reduced (see: Para 19 – 23 of the Judgment). I do not share this point of view. Even based on the strictest criteria for assessing legitimate expectations, the above mentioned transitional period could only be applied to those persons who have not been calculated and allocated the benefit before coming into force of the Contested Norm. It would be more appropriate for a socially responsible State not to change the amount of the benefit regarding all children who were incepted before coming into force of the Contested Norm. However, the amount of benefit for persons, to whom it has already been granted, was reduced in half within the term of two weeks (the contested norm was adopted on 16 June 2009 and came into force on 1 July of the same year). In that short time, no one could change their life. For instance, those person who decided to take a child care leave because of the amendments to the legal regulatory framework, could not implement their intention because, pursuant to Section 156 (2) of the Labour Law, an employee has a duty to notify the employer in writing one month in advance of the beginning and the length of the parental leave or parts thereof”. 10. Pursuant to Article 91 of the Constitution (Satversme), all human beings in Latvia shall be equal before the law and the courts. Human rights shall be realised without discrimination of any kind. 11. Article 110 provides that the State shall protect and support marriage – a union between a man and a woman, the family, the rights of parents and rights of the child. The State shall provide special support to disabled children, children left without parental care or who have suffered from violence. 12. The law defines the state social benefit as a State monetary support, such as, for instance, child-care benefit, to individuals belonging to certain categories in situations when they bear additional expenditures or when those individuals do not gain income, and the compensation is not provided from State social insurance scheme. It is paid from the State budget. 13. Section 10 provided that parental benefits were allocated to socially insured persons (to one of the parent or a guardian) who either did not gain income because s/he was on parental leave or, did not use the parental leave and continued working. The benefit was paid until the child reached the age of one. 14. The travaux préparatoires to the Law on State Social Insurance, which introduced the aforementioned amendments of 1 January 2008 (see paragraph 12, above) highlighted certain threats to the sustainability of the proposed model (as cited by the Constitutional Court in the judgment of 15 March 2010): “.... [With the amendment] it was planned to disburse parental benefit to employed persons without restrictions and at full extent, these persons also receiving labour incomes; however this does not comply with the essence of social insurance. Second, introduction of parental benefit would be ensured in the frameworks of the present social insurance payment rate; therefore this would negatively influence social insurance special budget in the long term. Consequently, according to the prognosis of the social insurance budget model, the reserve accumulated in the social insurance special budget would be used 10 years earlier, i.e. already in 2032 after introduction of parental benefit and disbursing it from the state social insurance budget in the frameworks of the actual social insurance payment rate”. 15. Paragraph 1 of section 5 provides that an employed or a self-employed person who was granted a parental benefit with respect to a child born until 2 May 2010 shall receive the parental benefit in the amount of 50% of the amount of the benefit granted. 16. The travaux préparatoires to the aforementioned law provided that it shall ensure functioning of the fundamental principle of state social insurance. Namely, the State social insurance substitutes certain income in a situation when a person loses earning from labour. If a person takes care for a child aged up to one year and at the same time continues working, s/he does not lose the income from labour. Moreover, persons who receive both a wage and a parental benefit enjoy better circumstances when compared to those parents who are on a childcare leave and receive parental benefit only. 17. The ILO Maternity Protection Convention (revised) of 15 June 2000 (ratified by Latvia on 14 April 2006 and came into force on 9 February 2009) with respect to maternity benefits provides: Article 6 1. Cash benefits shall be provided, in accordance with national laws and regulations, or in any other manner consistent with national practice, to women who are absent from work on leave referred to in Articles 4 or 5. 2. Cash benefits shall be at a level which ensures that the woman can maintain herself and her child in proper conditions of health and with a suitable standard of living. 3. Where, under national law or practice, cash benefits paid with respect to leave referred to in Article 4 are based on previous earnings, the amount of such benefits shall not be less than two-thirds of the woman’s previous earnings or of such of those earnings as are taken into account for the purpose of computing benefits. 4. Where, under national law or practice, other methods are used to determine the cash benefits paid with respect to leave referred to in Article 4, the amount of such benefits shall be comparable to the amount resulting on average from the application of the preceding paragraph. 5. Each Member shall ensure that the conditions to qualify for cash benefits can be satisfied by a large majority of the women to whom this Convention applies. 6. Where a woman does not meet the conditions to qualify for cash benefits under national laws and regulations or in any other manner consistent with national practice, she shall be entitled to adequate benefits out of social assistance funds, subject to the means test required for such assistance. 7. Medical benefits shall be provided for the woman and her child in accordance with national laws and regulations or in any other manner consistent with national practice. Medical benefits shall include prenatal, childbirth and postnatal care, as well as hospitalization care when necessary. 8. In order to protect the situation of women in the labour market, benefits in respect of the leave referred to in Articles 4 and 5 shall be provided through compulsory social insurance or public funds, or in a manner determined by national law and practice...