AS TO THE ADMISSIBILITY OF
by Leonid Lvovich SHOLOS
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 20 March 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 Leonid Lvovich Sholos, is an Israeli national who was born in 1935 and lives in Netanya, Israel. 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 1995, after having lived and worked in Ukraine, the applicant retired and started receiving an old-age pension in Ukraine.
On 9 February 1997 the applicant emigrated to Israel. Before his departure, on 3 February 1997, he had been paid his pension for six months in advance (1 March – 31 August 1997), and the pension then stopped, as provided for in section 92 of the Law of Ukraine on Pensions.
On 3 August 2005 the applicant instituted proceedings in the Zavodskyy District Court of Mykolayiv against the Pension Fund of Ukraine (Пенсійний Фонд України) seeking resumption of his pension payments. In particular, he submitted that discontinuance of his pension payments was in violation of the Constitution of Ukraine and the European Convention on Human Rights.
On 20 October 2005 the court found against the applicant. The parties, however, did not provide the copy of this decision to the Court.
On 9 March 2006 the Mykolayiv Regional Court of Appeal quashed the decision of the first instance court and ordered the resumption of payment of the applicant’s pension from 1 July 2002. The court found, in particular, that the refusal to pay the applicant’s pension was an unjustified interference with the applicant’s property rights guaranteed by Article 1 of Protocol No. 1 to the Convention. The remainder of the applicant’s claims were rejected as time-barred. The court also rejected the applicant’s request to convert his pension and transfer it to his bank account in Israel.
On 15 November 2006 the Higher Administrative Court of Ukraine quashed the decision of 9 March 2006 and upheld that of 20 October 2005. In particular, the court held that the Court of Appeal had overstepped its jurisdiction and instead of deciding whether the Pension Fund had acted in accordance with the law, it considered whether the applicant was entitled to the pension in general. The court further indicated that the Court of Appeal’s reference to the Convention provisions was unsubstantiated. It finally concluded that in the absence of a relevant international agreement with Israel the payment of a pension to the applicant could not be resumed.
B. Relevant domestic law
The relevant domestic law is summarised in the admissibility decision of Myroshnychenko v. Ukraine (no. 10205/04, 3 April 2007).
The applicant complained under Article 1 of Protocol No. 1 that the Ukrainian State had violated his property rights. He also complained under Article 14 that he was discriminated against on the ground of his place of residence and ethnic origin. The applicant finally complained that such treatment affected his liberty of movement under Article 2 of Protocol No. 4.
The Government raised an objection to the admissibility of the application. In their observations of 26 April 2006 they maintained that the applicant’s complaints had been adequately addressed on the national level since, on 9 March 2006, the Mykolayiv Regional Court of Appeal had found in part for the applicant and had ordered the Pension Fund to resume payment of the applicant’s pension from 1 July 2002. Therefore, the applicant could not be considered a victim any more and the application was incompatible ratione personae with the provisions of the Convention.
The applicant disagreed and submitted that he was still a victim of the alleged violations.
The Court notes that the decision of 9 March 2006 was not final and was subsequently quashed by the decision of the Higher Administrative Court of Ukraine of 15 November 2006, which found against the applicant.
It appears from the applicant’s submissions that before the national courts he had challenged the constitutionality of the Law on Pension according to which his pension payments had been stopped and requested to resume them. In the Ukrainian legal system, where a physical person has no right of individual petition to the Constitutional Court of Ukraine, it is for the domestic courts to look into the issue of the compatibility of legal acts with the Constitution and, in case of doubt, to request that constitutional proceedings be initiated. From the relevant legislation, however, this system could not be understood as requiring the ordinary courts to examine in detail any issue of constitutionality raised by a party to the civil proceedings, or obliging them to refer every such issue of constitutionality to the Constitutional Court. It appears that the courts of general jurisdiction exercise some discretion in dealing with issues of constitutionality which have been raised in the framework of civil proceedings (see Pronina v. Ukraine, no. 63566/00, § 24, 18 July 2006). Although the applicant had raised the issue of compliance of the relevant legislation provisions with the Constitution, he had not requested the domestic courts to refer the issue to the Constitutional Court but plainly claimed no more than a resumption of the payments.
The termination of the applicant’s pension was foreseen by law and the Ukrainian legal system does not provide an individual with a judicial remedy against statutory provisions that allegedly violate the Convention (Sheidl v. Ukraine (dec.), no. 3460/03, 25 March 2008). Therefore, the Higher Administrative Court being unable to override the law which foresees the termination of payments of the applicant’s pension or to order such payments in spite of legal provisions and in the absence of any explicit request for referral of this issue to the Constitutional Court, has limited its decision to the finding that the acts of the Pension Fund was in compliance with the law.
Therefore, the Court concludes that in such circumstances the applicant’s address to the national courts from the very beginning was deprived of any prospect of success and cannot therefore be considered as an effective remedy to be exhausted.
The Court further notes that the Government did not submit any other observations on the admissibility of the present application. In this respect it reiterates that, when the Contracting Party has specified that its ratification of the Convention is purely prospective, the Convention only governs facts subsequent to its entry into force in respect of this Contracting Party (see De Varga-Hirsch v. France, no. 9559/81, Commission decision of 9 May 1983, Decisions and Reports 33, p. 188). This admissibility criterion outlines for the parties the Court’s temporal jurisdiction and the opposite approach would render ratification retrospective and thus contrary to the principles of legal certainty and the rule of law. Even the subsequent failure of remedies aimed at redressing the interference, which occurred before the date of ratification of the Convention by the State, cannot bring this interference within the Court’s temporal jurisdiction (see, Blečić v. Croatia [GC], no. 59532/00, §§ 77-79, ECHR 2006 III).
Therefore, the Court is of the opinion that it is not open to set aside this criterion of admissibility solely because a Government have not made a preliminary objection based on it (see, mutatis mutandis, 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, when leaving Ukraine to take up permanent residence abroad, received his pension for six months. The payment was made at his request, so that the latest date by which he must have been aware that his pension was to be terminated under section 92 of the Law of Ukraine on Pensions would have been the date of that payment, namely 3 February 1997. The Court further notes that the Convention entered into force in respect of Ukraine on 11 September 1997.
Therefore, the Court concludes that the applicant’s complaints under Article 14 of the Convention, Article 1 of Protocol No. 1 and Article 2 of Protocol No. 4 are incompatible ratione temporis and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court by a majority
Declares the application inadmissible.
Claudia Westerdiek Rait