AS TO THE ADMISSIBILITY OF
by Dmitriy KOCHKADAYEV
The European Court of Human Rights (Fifth Section), sitting on 24 March 2009 as a Chamber composed of:
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
Stanislav Shevchuk, ad hoc judge,
and Claudia Westerdiek, Section Registrar.
Having regard to the above application lodged on 7 June 2005,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr Dmitriy Kochkadayev, is a Ukrainian national who was born in 1947 and lives in Torzym, Poland. He was represented before the Court by Mr A. Schwierzy, a lawyer practising in Sulecin, Poland. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, of the Ministry of Justice.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1968-1981 the applicant worked in the town of Ulyanovsk in Russia. In 1981 the applicant moved to the town of Uman in Ukraine, where he worked until his departure to Poland in 1991. In 1995 the applicant received a permanent residence permit in Poland.
In December 1997, according to the applicant, he reached the age of retirement, as he had worked in hazardous conditions and was, therefore, entitled to an early pension.
In a letter of 6 October 1999 the Pension Fund of Ukraine informed the applicant that, in accordance with the Law of Ukraine on Pensions, pensions should not be granted to citizens who had left for permanent residence abroad.
On 19 November 2004 the applicant again requested the Pension Fund of Ukraine to grant him a pension but received a refusal since he had not submitted a Ukrainian passport.
At the end of 2004 – beginning of 2005 a certain D. lodged a complaint before the Uman District Court on behalf of the applicant challenging the refusal of the Pension Fund to pay him pension. On 7 April 2005 the court found that the Fund's refusal was based on the legal provisions in force and that the applicant was not entitled to pension payments since he had not been residing in Ukraine since 1991.
B. Relevant domestic law
Section 12 of the Law of Ukraine on Pensions provides that an old-age pension is granted to men from the age of 60 and with work experience of at least 25 years.
Section 13 of the Law of Ukraine on Pensions provides for situations in which a man can receive an early retirement pension at the age of 50 or 55.
Other relevant domestic law is summarised in the Myroshnychenko v. Ukraine decision (no. 10205/04, 3 April 2007).
Referring to Article 1 of the Convention, the applicant complained that he was not entitled to pension payments and was discriminated against.
The Government submitted that the applicant had failed to appeal against the decision of 7 April 2005 and thus had failed to exhaust effective domestic remedies in respect of his complaints.
The applicant disagreed and pointed out that such an appeal would be irrelevant in his case since the refusal to pay him a pension was based on the law in force and the domestic courts had no competence to overrule the law.
The Court reiterates its findings in the Sheidl case (Sheidl v. Ukraine (dec.), no. 3460/03, 25 March 2008) to the effect that the Ukrainian legal system does not provide an individual with a judicial remedy against statutory provisions that allegedly violate the Convention. Therefore, since the non-payment of the applicant's pension was foreseen by law, the applicant's complaint lodged before the national court could not be considered as an effective remedy which was recognised by the applicant himself in his submissions to the Court, and taken into consideration for the purpose of the present application. Moreover, in his submissions to the national court the applicant expressly challenged the actions of the local pension authorities only and did not raise any questions of compliance of the legislation in force with the Convention or the Constitution of Ukraine, given that such claim would be deprived of any prospect of success in any event.
The Court further notes that the Government did not submit any observations on the question of the six-month rule. In this respect it reiterates that the six-month rule, in reflecting the wish of the Contracting Parties to prevent past decisions being called into question after an indefinite lapse of time, serves the interests not only of the respondent Government but also of legal certainty as a value in itself. It marks out the temporal limits of supervision by the organs of the Convention and signals to both individuals and State authorities the period beyond which such supervision is no longer possible. It is therefore not open to the Court to set aside the application of the six-month rule solely because a Government have not made a preliminary objection based on it (see Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000 I).
The Court observes that under the Law of Ukraine on Pensions the applicant is not entitled to any pension since he does not reside in Ukraine. However, it is unclear when exactly the applicant reached retirement age. According to him, it was in December 1997. However, it was in October 1999 that the applicant became clearly aware that Ukrainian legislation provided no grounds for him to receive a pension from Ukraine while residing in Poland. The Court considers that, in these circumstances, the six-month time-limit ran from October 1999, the latest time by which the applicant must have become aware of the relevant provision of section 92 of the Law of Ukraine on Pensions, which was applicable in his case. Given that this application was lodged nearly six years later, on 7 June 2005, the Court concludes that the applicant's complaints were introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention (see Myroshnychenko, v. Ukraine (cited above)).
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia Westerdiek Rait