AS TO THE ADMISSIBILITY OF
by Martti LEINO
The European Court of Human Rights (Fourth Section), sitting on 24 March 2009 as a Chamber composed of:
David Thór Björgvinsson,
Mihai Poalelungi, judges,
and Lawrence Early, Registrar,
Having regard to the above application lodged on 22 June 2006,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.
Having deliberated, decides as follows:
The applicant, Mr Martti Leino, is a Finnish national who was born in 1937 and lives in Espoo. He was represented before the Court by Mr P. Kavonius, a lawyer practising in Lohja. The respondent Government were represented by their agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
The applicant had a voluntary pension insurance from 1988 until 2001 into which he paid in total 16,902.72 euros (EUR). From April 2001 his employer was responsible for paying contributions to the insurance policy and in November 2001 it paid one instalment of EUR 4,940.25.
By a decision of 20 August 2002 the Social Insurance Institution (kansaneläkelaitos - KELA, folkpensionsanstalten – FPA, hereafter “KELA”) granted the applicant an old-age pension (kansaneläke, folkspension) of EUR 154.85 per month as from 1 October 2002. The occupational pension (työeläke, arbetspension) paid to the applicant by a life insurance company was taken into consideration in calculating the amount of his old-age pension.
On 5 June 2003 an insurance company granted the applicant a pension based on his voluntary pension insurance retroactively as from 1 October 2002.
As a result of this new pension decision the KELA informed the applicant by letter of 10 June 2003 that there had been an error in the previous decision of 20 August 2002 and that his old-age pension would diminish as a result of the pending rectification. The applicant was invited to inform the KELA of his opinion on the rectification by 30 June 2003. A form to this effect was attached to the letter. The applicant did not reply to the letter.
On 30 June 2003 the KELA made a decision to cease the payment of the applicant’s old-age pension as of 1 July 2003 due to the increase in his other pensions. The applicant did not appeal against this decision which thus became final.
By a letter dated 1 July 2003 the KELA informed the applicant that the old-age pension he had received in the period between 1 October 2002 and 30 June 2003, in total EUR 1,404.81, was in fact in excess due to the new calculations and that he should let the KELA know his opinion on the matter by 12 July 2003. The applicant did not reply to the letter.
On 22 August 2003 the KELA decided to recover the entire old-age pension paid. The applicant was given two months to pay.
On 17 September 2003 the applicant appealed to the Appellate Board for Social Insurance (tarkastuslautakunta, prövningsnämnden) against the decision of 22 August 2003. He claimed that the entire voluntary pension was regarded by the KELA as one paid by his employer whereas he himself, the tax authorities and his insurance company considered the main part of that pension as being paid by the applicant.
On 26 August 2004 the Appellate Board dismissed his appeal, stating that there were no reasons for making an exception to the rule that pension payments to which the recipient was not entitled should be paid back.
On 13 October 2004 the applicant appealed to the Insurance Court, which dismissed his appeal on 23 February 2006 without elaborating on the reasons or addressing the specific circumstances of the applicant’s pension.
On 17 March 2006 the KELA requested the applicant to contact them regarding the schedule of repayments. Subsequently the insurance company’s lawyer contacted the KELA and provided additional clarifications, to no avail. On 11 May 2006 a payment order was sent to the applicant.
In his application lodged on 22 June 2006 the applicant complained that the KELA and the Insurance Court did not give sufficient reasons for their decisions of 22 August 2003 and 23 February 2006, respectively. He claimed that they had retroactively changed the interpretation of the pension insurance conditions to his detriment. He also complained that there was no possibility to have rectified an incorrect interpretation of the law by the authorities. He invoked Articles 6 and 13 of the Convention and made reference to the H.A.L. v. Finland judgment (no. 38267/97, 27 January 2004).
The applicant alleged violations of Articles 6 and 13 of the Convention. He claimed that the reasoning in the domestic decisions was not sufficient, that the authorities had made an incorrect interpretation of the law and that he had had no remedy.
Article 6 § 1 reads insofar as relevant:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
Article 13 reads:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Government contested the applicant’s claims.
The Government’s preliminary objection in respect of the decision of 30 June 2003
The Government observed that the applicant had not appealed against the decision of 30 June 2003, which had terminated his right to the old-age pension. This being the case, the Government argued that the application should be declared inadmissible under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
The applicant contested the inadmissibility plea of the Government, stating that he had exhausted all the domestic remedies available to him.
The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges those seeking to bring their case against the State before an international judicial or arbitral organ to use first the remedies provided by the national legal system. Consequently, States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system. The rule is based on the assumption, reflected in Article 13, with which it has close affinity, that there is an effective remedy available in respect of the alleged breach in the domestic system. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see Handyside v. the United Kingdom, judgment of 7 December 1976, Series A no. 24, § 48, and, mutatis mutandis, Akdivar and Others v. Turkey, judgment of 16 December 1996, Reports of Judgments and Decisions 1996-IV, § 65).
The Court notes that the applicant failed to challenge the decision of 30 June 2003, although he had an effective remedy available to him in the form of an appeal. Therefore the Court concludes that the applicant’s complaint under Article 6 of the Convention regarding the allegedly incorrect interpretation of the law with regard to the decision of 30 June 2003, and to the extent that it raises a fairness issue, must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
The parties submissions on the decision of 22 August 2003
The Government observed that the decision of 22 August 2003 only concerned the question of whether or not the applicant had fulfilled the conditions for foregoing the repayment of the pension that had already been paid to him. The applicant’s substantive arguments against the decision of 30 June 2003 were not pertinent for the examination of his appeal against the decision of 22 August 2003. The earlier decision had already become final. Hence the Appellate Board for Social Insurance as well as the Insurance Court did not need to examine the applicant’s arguments.
The applicant insisted that the decisions were not sufficiently reasoned and that he did not have an effective remedy available to him.
The Court considers that the decisions of 26 August 2004 by the Appellate Board for Social Insurance and of 23 February 2006 by the Insurance Court contained sufficient reasoning with regard to the decision on whether or not the applicant should forego the repayment of the pension. The applicant’s complaints with regard to the earlier decision that had already become final could not have been taken into consideration and hence did not need to be reflected in the decisions. Furthermore, it is clear that the applicant had a remedy available to him which he did in fact use with regard to the later decision.
Therefore the Court concludes that the applicant’s complaints under Articles 6 and 13 of the Convention regarding the insufficient reasoning of the decision of 22 August 2003 and the lack of an effective remedy are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
The remainder of the applicant’s complaints
The applicant raised further complaints under Articles 6 and 14 of the Convention and Article 1 of Protocol No. 1 to the Convention in his observations of 2 September 2008. He claimed that he had not been heard during the proceedings, that he had been discriminated against and that he had been denied his legal right to a pension. As the final domestic decision was taken in 2006, it follows that these complaints have been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Early Nicolas Bratza