AALTO A OSTATNÍ proti Finsku

FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 12809/09
by Vesa AALTO and Others
against Finland

The European Court of Human Rights (Fourth Section), sitting on 23 March 2010 as a Chamber composed of:

Nicolas Bratza, President,
Giovanni Bonello,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Ledi Bianku,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,

Having regard to the above application lodged on 2 March 2009,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Vesa Aalto and 1,035 others, are Finnish nationals whose personal details appear in annex. They are represented before the Court by Mr G.O. Zacharias Sundström and Mr Matti Kauppi, lawyers practising in Helsinki.

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

The applicants are current and former personnel of the Finnish defence forces. The pensions and retirement benefits of military personnel are determined by the State Pension Act (valtion eläkelaki, lagen om statens pensioner; Act no. 280/1966) which was amended in 1993 and again in 1995. In the 1995 amendment, the service time required by military personnel to stay in active duty in order to reach full pension rights was extended from 25 years to 30 years. In addition the amount of pension was decreased gradually from 66% to 60%. Also the annual accrual (eläkekarttuma, pensionstillväxten) for military personnel was decreased from 2.64% to 2%. In practice, it means that in order to reach the same pension rights and retirement benefits as before the 1995 amendment, military personnel have to stay in active duty for 3 to 27 months longer and air force personnel 44 to 57 months longer. Moreover, the absolute amount of pension payable after the amendment of 1995 decreases in comparison to that prior to the amendment.

Apparently none of the applicants has yet retired.

On 31 December 2004 the applicants lodged their individual actions with the Helsinki District Court (käräjäoikeus, tingsrätten), requesting it to confirm that the State of Finland had violated their property rights and the prohibition of discrimination, that the applicants had a right to a full pension in accordance with the 1966 State Pension Act, and that the State was obliged to pay back the unjust enrichment and to compensate the damage caused to them. The applicants claimed that the 1995 amendment was unconstitutional. The State argued that a District Court could not examine the constitutionality of an Act without a connection to a concrete case and that it was not competent to apply, even in theory, the State Pension Act.

On 30 August 2006 the District Court dismissed the applicants’ complaints without examining the merits. It found that, according to the Constitution, everyone had the right of access to a court. As the competent court in pension matters was the Insurance Court (Vakuutusoikeus, Försäkringsdomstolen), the question of constitutionality of the provisions of the State Pension Act could not be examined in a concrete case by a District Court. Pension rights were social benefits which did not fall within the jurisdiction of a District Court. It was thus not competent to examine the applicants’ case.

The applicants appealed to the Court of Appeal (hovioikeus, hovrätten), reiterating the grounds presented before the District Court and requesting that an oral hearing be held.

On 5 December 2006 the Court of Appeal rejected the request for an oral hearing as manifestly unnecessary and upheld the District Court’s decision. It found that it was not in the District Court’s competence to examine claims based on the State Pension Act. The applicants’ claims had not been examined or decided in accordance with the State Pension Act and there was no decision from the Insurance Court concerning them. The applicants’ claims were thus premature and they had to be dismissed without examining the merits.

The applicants appealed to the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds of appeal presented before the Court of Appeal and requesting that an oral hearing be held. They referred, inter alia, to Article 6 of the Convention, to Article 1 of Protocol No. 1 to the Convention as well as to Article 15 of the Finnish Constitution.

On 24 October 2007 the Supreme Court granted the applicants leave to appeal.

On 4 September 2008 the Supreme Court rejected the request for an oral hearing as unnecessary and upheld the Court of Appeal’s decision. It reasoned its decision as follows:

“As the lower courts have stated, pensions under the State Pension Act are decided by the State Treasury whose decisions can, in accordance with section 162 of the State Pension Act, be appealed against to the Employment Pensions’ Appeal Board and further to the Insurance Court. As deciding on the grounds and the amount of state pensions does not fall within the competence of the ordinary courts of law, the claims made in the present case could not be examined on the merits.

As the Supreme Court has stated in its published decision KKO2006:71, the primary responsibility for ensuring that enacted Acts are in conformity with the Constitution, both as to their content and the procedure followed, falls with the Parliament, and the interpretation of the Constitution in this context is the responsibility of the Parliament and especially of the Constitutional Committee. The possibility for the courts to assess the constitutionality of Acts enacted by Parliament is restricted, on the basis of Article 106 of the Constitution, to individual cases only. According to the said provision, a court of law shall give primacy to the provision in the Constitution if the application of an Act would be in evident conflict with the Constitution. A court must therefore take care, when examining an individual case, that the outcome of the case is not in evident conflict with the Constitution but it cannot estimate in general whether a certain provision is in contradiction with the Constitution (HE 1/1998 vp p. 163 and PeVM 10/1998 vp p. 31).

The applicants have emphasised that the alleged violations of their fundamental and human rights must be examined together with their claims for unjust enrichment and compensation claims because examination of the latter claims falls within the competence of ordinary courts of law. The applicants have referred in this respect to the above-mentioned decision KKO 2006:71. In the said decision it was stated that the State cannot be held liable on the ground that a provision, which allegedly has been enacted in violation of the Constitution, has affected an individual in a manner which could not be avoided by applying Article 106 of the Constitution, unless the content of such an Act or the procedure followed was in evident contradiction with the Constitution.

In the present case the alleged violation of fundamental and human rights manifests itself or will manifest itself in the decrease of the applicants’ pension rights. Therefore the assessment of the complaints and their grounds requires firstly the examination of the content of the applicable State Pension Act according to which the applicants’ pension is to be calculated, and to how big a pension the applicants are or will be entitled at the moment of retirement. As stated above, it is the task of the Insurance Court as the last instance to decide on questions concerning the applicants’ pension rights, in the event of their retirement. When deciding on pension issues, the Insurance Court must take into consideration the above-mentioned Article 106 of the Constitution, if needed, and give primacy to the provision in the Constitution if a provision in the State Pension Act is in evident conflict with the Constitution. The alleged unjust enrichment or damage can in the present case be prevented by applying Article 106 in the applicants’ pension case as far as there are grounds for it. In this respect the present case differs from the situation in the case KKO 2006:71.

It is thus clear that there are no grounds to assess the alleged violation of fundamental and human rights or the compensation or other claims relating to it before it is clear how the State Pension Act will be applied in their case. Those applicants whose pensions have not yet been decided have no legal need to have their complaints examined before the grounds and the amount of their state pension have been decided.

On these grounds the Supreme Court finds that there are no grounds to examine the present complaints. The dismissal of the complaints does not, however, mean that the applicants could not have the alleged violation of their pension rights duly examined in a competent court.”

B. Relevant domestic law

Constitution

Article 15 of the Constitution (Suomen perustuslaki, Finlands grundlag; Act no. 731/1999) provides that the property of everyone is protected. Provisions on the expropriation of property, for public needs and in consideration of full compensation, are laid down by an Act.

Article 21 of the Constitution provides that:

“[e]veryone has the right to have his or her case dealt with appropriately and without undue delay by a legally competent court of law or other authority, as well as to have a decision pertaining to his or her rights or obligations reviewed by a court of law or other independent organ for the administration of justice. Provisions concerning the publicity of proceedings, the right to be heard, the right to receive a reasoned decision and the right of appeal, as well as the other guarantees of a fair trial and good governance shall be laid down by an Act.”

According to Article 98 of the Constitution, the Supreme Court, the Courts of Appeal and the District Courts are the ordinary courts of law.

According to Article 106 of the Constitution:

"[i]f, in a matter being tried by a court of law, the application of an Act would be in evident conflict with the Constitution, the court of law shall give primacy to the provision in the Constitution."

State Pension Act

According to section 162 of the current State Pension Act (valtion eläkelaki, lagen om statens pensioner; Act no. 1295/2006), appeal against a decision of the State Treasury (Valtiokonttori, Statskontoret) lies to the Employment Pensions’ Appeal Board (työeläkeasioiden muutoksenhakulautakunta, besvärsnämnden för arbetspensionsärenden) and further to the Insurance Court.

COMPLAINTS

1. The applicants complained under Articles 6 and 13 of the Convention that they had no effective access to a court to permit a judicial determination of their civil rights.

2. They complained under the same Articles that the Court of Appeal had refused to hear oral arguments and to hear such witnesses as could have furnished the courts with details pertaining to the nature of the case and its admissibility in the ordinary courts of law.

3. They further complained under the same Articles that the length of the proceedings had exceeded the “reasonable time” requirement for a purely procedural and preliminary matter.

4. The applicants complained under Article 1 of Protocol No. 1 and Article 13 that they had been deprived of their property.

5. Lastly, they complained under Article 14 of the Convention of discrimination.

THE LAW

Complaint concerning access to a court

The applicants complained that they had had no effective access to a court to permit a judicial determination of their civil rights. They relied on Articles 6 and 13 of the Convention which, in so far as relevant, provide as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

“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 Court reiterates that Article 6 guarantees a right of access to a court but it neither guarantees a direct access to a court of constitutional jurisdiction in order to challenge the constitutionality of legislative provisions (see, for example Ruiz-Mateos and Others v. Spain, application no. 14324/88, Commission decision of 19 April 1991, DR 69, p. 227; and Posti and Rahko v. Finland, no. 27824/95, § 52, ECHR 2002‑VII), nor guarantees an applicant a favourable outcome to his case. In the present case, and even assuming that they had an arguable civil claim for the purposes of the applicability of Article 6, the Court can but note that the applicants had in fact access to three levels of jurisdiction. The fact that all three courts were unanimous in concluding that they had no competence at that stage to examine the applicants’ case cannot be said to have deprived them of their right of access to a court. The applicants were told that as a matter of domestic law their claims could only be examined once it was clear “how the State Pension Act will be applied in their case.” Accordingly, when the applicants are concretely affected by the new retirement provisions, they can renew their challenge to the constitutionality of the provisions before the Employment Pensions’ Appeal Board and the Insurance Court and, as regards the related civil claims, the ordinary courts. The Court thus concludes that, and at this stage, the applicants had effective access to a court. Article 6 did not guarantee them anything further in the circumstances.

It follows that this complaint must be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

Complaint concerning a lack of an oral hearing

The applicants also complained under the same Articles that the Court of Appeal had refused to hear oral arguments and to hear such witnesses as could have furnished the courts with details pertaining to the nature of the case and its admissibility in the ordinary courts of law.

The Court notes that the applicants did not have an oral hearing at any stage of the proceedings. However, their request for an oral hearing only concerned questions of law, which the Court of Appeal is presumed to know ex officio and which could be adequately resolved on the basis of the case-file and the parties’ written observations (see, inter alia, Döry v. Sweden, no. 28394/95, § 37, 12 November 2002). It was thus justified to dispense with a hearing in the applicants’ case. Accordingly, it follows that this complaint must be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

Complaint concerning the length of the proceedings

The applicants further complained under the same Articles that the length of the proceedings had exceeded the “reasonable time” requirement for a purely procedural and preliminary matter.

The Court notes that the civil proceedings started on 31 December 2004 when the applicants lodged their individual actions with the District Court and ended on 4 September 2008 when the Supreme Court rendered its decision. The proceedings lasted thus some three years and eight months at three levels of jurisdiction. Their length cannot be considered excessive. It follows that this complaint must be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

Complaint concerning the deprivation of property

The applicants complained under Article 1 of Protocol No. 1 to the Convention and Article 13 of the Convention that they had been deprived of their property. Article 1 of Protocol No. 1 to the Convention reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The Court reiterates that the rights stemming from payment of contributions to social insurance systems are pecuniary rights for the purposes of Article 1 of Protocol No. 1 (see, for example, Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 53, ECHR 2005‑X). However, an entitlement to a future pension cannot be equated with a fully crystallised right to a particular amount of pension (see, for example, Stec and Others v. the United Kingdom [GC], no. 65731/01, § 53, ECHR 2006‑VI). Since most persons remain within the pension system for many years of their active employment, they must take into account the fact that pension legislation may be subject to changes. Therefore, in so far as the applicants complain about the negative impact of the amendments to the State Pension Act on their pension entitlements, the Court observes that there has not been any interference as yet with their rights under Article 1 of Protocol No. 1. It reiterates its reasoning on the applicants’ Article 6 complaint to the effect that when an aggrieved applicant eventually obtains a decision on his pension, it will be open to him to challenge before the specialised pension courts the constitutionality of the measures reducing his pension rights. If successful, a compensation claim can be filed with the ordinary courts. At this stage, however, the complaints are hypothetical, none of the applicants being able to show proof of concrete individual prejudice. On that account the complaint under Article 13 must also be dismissed.

It follows that this part of the application must be rejected as being incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 §§ 3 and 4 of the Convention.

Complaint about discrimination

Finally, the applicants complained under Article 14 of the Convention about discrimination. Article 14 reads as follows:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Court notes that the applicants have not substantiated their complaint in any manner. Therefore, it follows that this complaint must be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Lawrence Early Nicolas Bratza
Registrar President

ANNEX

List of applicants represented by Matti Kauppi

List of applicants represented by Zacharias Sundström