ANDREJEVA v. LATVIA JUDGMENT
19
also pointed out that the applicant’s monthly pension had been recalculated
ex nunc and not ex tunc. In other words, it was only with effect from 2000
that she had begun to receive the exact amount corresponding to the
“Ukrainian” period of her career, and no payments had been made to her
retrospectively. However, the Government submitted that that position
complied with Article 28 of the 1969 Vienna Convention on the Law of
Treaties, which laid down the general principle that international treaties did
not have retrospective effect “[u]nless a different intention appears from the
treaty or is otherwise established”; that had not been the case in this
instance. In any event, the Government submitted that the difference
between the amount of the pension currently received by the applicant and
the amount she would receive if her pension were recalculated with
retrospective effect was minimal and not capable of imposing an “excessive
financial burden” on her.
48. The applicant acknowledged that, after the agreement with Ukraine
had been concluded, the amount of her pension had been recalculated and
slightly increased. However, the agreement did not contain any clause
allowing the corresponding portion of her “Ukrainian” pension to be paid
retrospectively. That also applied to other social security agreements,
including the one with the Russian Federation which had just been approved
and was due to take effect soon.
49. The Court points out that by Rule 55 of the Rules of Court, “[a]ny
plea of inadmissibility must, in so far as its character and the circumstances
permit, be raised by the respondent Contracting Party in its written or oral
observations on the admissibility of the application”. In the instant case, it
notes that the pension in issue was recalculated in 2000; accordingly, there
was nothing to prevent the Government from raising their objection at the
admissibility stage. Having failed to do so, they are estopped from relying
on it. In the light of these considerations, while acknowledging that the
issue raised by the Government is relevant in relation to Article 41 of the
Convention (see paragraph 104 below), the Court cannot allow this
objection.
50. Furthermore, the Court takes note of the recent approval by the
parliaments of the two States concerned of the cooperation agreement
between the Russian Federation and Latvia on social security (see
paragraphs 44-45 above). However, irrespective of what benefit the
applicant might draw from that agreement after it comes into force, the
Court observes that the situation complained of remains unchanged to date.
It thus has no reason to consider that the applicant’s status as a “victim”
within the meaning of Article 34 of the Convention has thereby been
affected.