Marianne Meiorg

The right to protection of property stems from Article 1 of Protocol No. 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms. No particular developments took place in 2010 in regard to this right. However, the ECHR judgment regarding Estonia does stand out.

The ECHR made a judgment in the matter of 45 former Soviet army servicemen versus the Republic of Estonia on November 4th, 2010.[1] The ECHR analysed the alleged unfair treatment of the applicants in calculating the pension for the work done after leaving the army considering Article 14 of the ECHR (prohibition of discrimination) in conjunction with Article 1 of Protocol No. 1 (protection of property). The court stated that there can be discrimination only if equals have been treated unequally. The applicants in this case were special subjects, who were subject to special rules and are therefore not in a comparable situation with the other old age pensioners who receive pension from Estonia after having worked in Estonia for 15 years.

In deciding this, the court took considered the following facts.

  • The agreement between Estonia and Russia is applicable only to those persons who were already on pension at the time of signing it and received a pension from Russia (§ 61).
  • The retired army servicemen who remained in Estonia were fully aware of the fact that if they receive a pension from Russia and continue to work in a civil sector in Estonia they do not have the right to receive a pension from the Republic of Estonia for their latter work (§ 62).
  • The aforementioned agreement guarantees the veterans their pension, which is at least the equivalent of the minimum pension paid by the Republic of Estonia; in reality the pension of the veterans equals the average pension in Estonia (§ 63).
  • The veterans are eligible to pension from the Republic of Estonia on certain terms including if they are not already receiving pension from Russia. In that case their service in the Soviet army will not be considered. The service in Soviet army is not considered for anybody according to Estonian legislation, which is why no special treatment is taking place (§ 64).
  • Even if Estonia and Russia have negotiations on changing the agreement it does not necessarily mean the current agreement is discriminatory (§ 65).

This is why the court came to the decision that Estonia had not violated Article 14 (prohibition of discrimination) in conjunction with Article 1 of Protocol No. 1 (protection of property).

[1] European Court of Human Rights. 4 November 2010 judgment Tarkoev and Others v. Estonia. Applications no. 14480/08 and 47916/08.