BEREZOVSKIY v. UKRAINE

SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 70908/01
by Yuriy Alekseyevich BEREZOVSKIY
against Ukraine

The European Court of Human Rights (Second Section), sitting on 15 June 2004 as a Chamber composed of

MrJ.-P. Costa, President,
MrA.B. Baka,
MrL. Loucaides,
MrC. Bîrsan,
MrK. Jungwiert,
MrV. Butkevych,
MrsA. Mularoni, judges,
and Mrs S. Dollé, Section Registrar,

Having regard to the above application lodged on 30 January 2001,

Having regard to the observations submitted by the respondent Government and the observations in reply,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Yuriy Alekseyevich Berezovskiy, is a Ukrainian national, who was born on 19 October 1937 in the Donetsk Region and lives in Yevpatoria, the Crimea. He is a retired officer of the prosecution service of Ukraine. The respondent Government were represented by their Agents, Ms Valeria Lutkovska, succeded by Ms Zoryana Bortnovska.

A.  The circumstances of the case

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

In 1964 the applicant commenced work in the prosecution service. On 22 March 1996 the applicant retired from the position of prosecutor-criminologist in the Department of Criminology of the Prosecution Service of the Crimea. However, he was re-appointed and continued working there until 1 January 1999. On that day he voluntarily retired. As from 22 March 1996 he started to receive his pension, calculated on the basis of Article 50-1 of the Law on the Prosecution Service and his years of service.

As from 1 July 1999, the Decree of the President of 16 April 1999 provided for a pay rise for the prosecution service employees in accordance with their respective ranks. The pay rise was given effect by two resolutions of the Cabinet of Ministers of 16 November 1999 and 13 December 1999.

In March 2000 the applicant applied to have his pension recalculated. On 4 April 2000 the Yevpatoria City Department for Social Protection refused to re-calculate the applicant's pension with reference to the applicant's period of work between 1996 and 1999. It based its decision on a letter, dated 7 March 2000, of the Ministry of Labour and Social Policy (No. 01-3/329-02-06), which provided inter alia that the Law on the Prosecution Service did not envisage the recalculation of pensions following a pay rise. The decision stated that there was no specific resolution of the Cabinet of Ministers dealing with the recalculation of pensions in the event of an intervening pay rise.

The applicant complained about this decision to the Ministry of Labour and Social Policy (“the Ministry”) in the Crimea. On 7 April 2000 the Ministry rejected the applicant's complaint, maintaining that the law did not provide for a recalculation of his pension. It also referred to a recommendation by the Supreme Court in a letter dated 5 June 2000 (No. 1-4/229). The Supreme Court recommended to the lower courts that the Decree of the President of 16 April 1999 and the Resolution of the Cabinet of Ministers of 13 December 1999 on pension recalculations were not applicable to persons who had became pensioners under Article 50-1 of the Law on Prosecution Service.

On 17 April 2000, the applicant instituted proceedings in the Yevpatoria City Court against the decision of the Yevpatoria City Department of Social Protection refusing him a higher pension. On 7 August 2000, the Yevpatoria City Court rejected his claims as being unsubstantiated, referring to the letter-recommendations of the Supreme Court of 18 May and 5 June 2000. In particular it held that:

“... The court has established that, Berezovskiy Y.A., a former employee of the prosecution service, being a pensioner, applied to the Department of Social Protection to have his pension recalculated. He maintained that, since the salaries of the prosecution service employees were to be increased in accordance with the Decree of the President of Ukraine, his pension should thereby be recalculated. The Department of Social Protection refused to recalculate his pension, grounding its decision on the absence of a special resolution of the Cabinet of Ministers in this connection. The Law of Ukraine on the Prosecution Service does not provide for a recalculation of a pension because of a raise in salaries. Since the Department of Social Protection acted in accordance with the explanations of the judicial bodies, the complaint of Berezovskiy against its actions is therefore unsubstantiated ....”

On 14 August 2000 the applicant lodged a cassation appeal against this decision. On 11 September 2000, the Supreme Court of the Crimea upheld it. In particular, it stated that:

“Having considered the case file, and having discussed the applicant's complaints set out in his cassation appeal and heard the explanations of Berezovskiy Y.A., the judicial chamber holds that it has no basis on which to allow his claims. The decision is in conformity with the legislation and evidence established in the course of the proceedings in the case.

In adopting its judgment, the court took into account that the applicable legislation, including the Law on the Prosecution Service, does not provide for a recalculation of pensions on account of changes to the salaries of prosecution service employees who retired from the service.

The court's conclusions are correct, are based on the factual circumstances of the case and are in compliance with the requirements of substantive and procedural law.

The court adequately evaluated the applicant's submissions and the circumstances of the case.

The applicant's complaints that the court decision was adopted on the basis of non-established factual circumstances and did not conform to legislation are unsubstantiated. The evidence was assessed in accordance with Article 62 of the Code of the Civil Procedure of Ukraine and there is no basis on which to declare the judgment erroneous.

The court's judgment is correct and substantiated. There are no grounds to annul this judgment.

As to the recommendations of the judicial bodies, the judicial chamber considers it necessary to exclude from the judgment of the court the reference to ... the letter of the Supreme Court of Ukraine with regard to this issue... as not being based on the law.

Resolves

To leave the decision of the Yevpatoria City Court of 7 August 2000 unchanged, and reject the complaints of Berezovskiy Y.A.

To exclude from the statement of reasons of the judgment the opinion and the reference of the court, with respect to the claim of Berezovskiy Y.A., to the recommendations of the Supreme Court of Ukraine to the judicial bodies,...”

The applicant complained about this decision to the Ministry of Labour and Social Policy of Ukraine. On 7 December 2000 it rejected the applicant's complaint, maintaining that the law did not provide for a recalculation of his pension. It also referred to a recommendation by the Supreme Court in a letter dated 5 June 2000 (No. 1-4/229). The Supreme Court recommended to the lower courts that the Decree of the President of 16 April 1999 and the Resolution of the Cabinet of Ministers of 13 December 1999 on pension recalculations were not applicable to persons who had became pensioners under Article 50-1 of the Law on Prosecution Service. It also referred to the letter-recommendation of 18 May 2000.

On 10 February 2001 the applicant wrote a letter to the Ministry of Justice [The Ministry of Justice of Ukraine is responsible for the registration of the legal acts of the bodies of State power] with regard to the legal validity of the recommendations of the Supreme Court as to the recalculation of his pension. On 20 March 2001 the Ministry of Justice responded that letters recommending certain courses of action, issued by State institutions, are not registered by the Ministry, since they are merely legal explanations pertaining to a particular matter.

On 16 October 2001 the applicant requested the Yevpatoria City Department of the Pension Fund to recalculate his pension since the entry of the Law of Ukraine “on the Introduction of changes to the Law on the Prosecution Service of 12 July 2001”.

On 17 October 2001 the Department of the Pension Fund recalculated his pension. He started to receive an increased pension of UAH 1,046.62.

On 15 July 2002 the Department of the Pension Fund recalculated the applicant's pension again due to the entry into force of the Decree of the President of Ukraine of 16 April 1999 and the internal normative acts of the General Prosecution Service. His pension was, accordingly, raised to UAH 1,347.18.

B.  Relevant domestic law and practice

1.  Constitution of 28 June 1996

Article 46

“Citizens have the right to social protection that includes the right to a provision in cases of complete, partial or temporary disability, the loss of the principal wage-earner, unemployment due to circumstances beyond their control, and also old age, and in other cases established by law.

This right is guaranteed by general mandatory State social insurance on the basis of the insurance payments of citizens, enterprises, institutions and organisations, and also from budgetary and other sources of social security, by the establishment of a network of State, communal and private institutions to care for persons incapable of work.

Pensions and other types of social payments and assistance, that are the principal sources of subsistence, shall ensure a standard of living not lower than the minimum living standard established by law.”  

2.  Law on the Prosecution Service

Article 50-1 (before the amendments in 2001)

“... the time-in-service pension shall include the relevant postholder's salary, bonuses for the post occupied, time-in-service, and also other payments in accordance with Article 66 of the Law on Pensions.”

Article 50-1 (after the amendments in 2001)
Pensions of prosecutors and investigators

“Prosecutors and investigators with work experience of not less than 20 years, including those with work experience in the position of prosecutors and investigators of not less than 10 years, have the right to a pension for the time-in-service irrespective of their age...

Pensions assigned to employees of the prosecution service shall be recalculated following any increase in the salary of the relevant categories of prosecution officers and investigators. ... The provisions of this Article extend to retired employees of the prosecution service who, before the entry into force of this law, were assigned an old age pension, time-in-service pension or disability pension ..., irrespective of the time when they became pensioners, only work experience being taken into account, as required by this Article. ...” (This Law was amended by Article 50-1, in accordance with Law No. 3662-12 of 26.11.93, and Law No. 2663-III (2663-14) of 12.07.2001.)

3.  Law on Pensions of 5 November 1991

This Law provided for the recalculation of pensions if a pay rise intervened (Article 69 of the Law).

4.  Decree of the President (No. 386/99) of 16 April 1999 and the Resolution of the Cabinet of Ministers (No. 2288) of 13 December 1999

Both texts envisaged pay rises for employees of the prosecution service as of 1 December 1999.

5.  Recommendation of the Civil Division of the Supreme Court of Ukraine of 18 May 2000 (No. 6.2)

This recommendation, by way of a letter issued to the Presidents of the regional courts, stated that the recalculation of pensions shall not cover former employees of the prosecution service who received pensions in accordance with Article 50-1 of the Law on the Prosecution Service.

6.  Recommendation of the Civil Division of the Supreme Court of 5 June 2000 (No. 1-4/229)

This recommendation, by way of a letter given to the Ministry of Labourg and Social Policy, stated that the recalculation of pensions shall not cover former employees of the prosecution service who received pensions in accordance with Article 50-1 of the Law on the Prosecution Service.

7.  Domestic court decisions provided by the applicant

The applicant provided the Court with decisions in the cases of former prosecution service officers whose pensions were recalculated following judgments in their favour:

–  a ruling from the Kyiv City Court of 15 November 2000 on the claim of Lenchevskiy F.S.;

–   a ruling from the Kyiv City Court of 15 November 2000 on the claim of Buravliov I.I.;

–  a decision from the Saky City Court of 26 April 2000 on the claim of Grechikhin V.F.;

–   a decision from the Oktiabrsky City Court of Poltava of 21 April 2000 and the ruling of the Poltava Regional Court of 25 May 2000 upon the claim of Pleskach V.G; and

–  a decision from the Yevpatoria City Court of 4 May 2000 upon the claim of Maslov I.V. (This judgment was quashed by the Supreme Court of the Crimea on 12 July 2000).

The applicant alleged that, in all of these cases, the claimants requested the recalculation of their pensions in view of the changes to the legislation concerning the salaries of prosecution service employees. He further maintained that their claims were allowed.

8.  Decisions provided by the Government

The Government provided the Court with decisions in cases of former prosecution service employees whose claims for recalculated pensions were rejected as the legislation did not provide for such adjustments:

–  a ruling from the Supreme Court of 4 September 2002 given by a chamber of 15 judges on the claim of Tyurin G.O.;

–  a judgment of 25 January 2002 from the Chervonozavodsky District Court of Kharkov on the claims of Yurchenko B.T.;

–  judgments of 24 July 2001 from the Chernigiv Regional Court of Appeal and the Desniansky District Court of Chernigiv of 21 March 2001 on the claims of Trofimov V.I.;

–  a judgment of 2 July 2001 from the Darnytsky District Court of Kyiv on the claims of Doronkin Y.Y.;

–  judgments of 11 June and 14 May 2001 from the Lviv Regional Court and the Galytsky District Court of L'viv on the claims of Yoffe M.A.;

–  a judgment of 28 May 2001 from the Leninsky District Court of Kirovograd on the claims of Solonchenko O.D.;

–  a judgment of 14 May 2001 from the Minsky District Court of Kyiv on the claims of Prykhodko O.F.;

–  a ruling of 4 April 2001 from the Chernivtsi Regional Court and the judgment of 2 March 2001 from the Pershotravnevy District Court of Chernivtsi on the claims of Shkirko A.O.;

–  a ruling of 4 December 2000 from the Donetsk Regional Court and the judgment from the Dzerzhinsky District Court of Donetsk Region on the claims of Lobayev A.A.;

–  a ruling of 2 November 2000 from the Khmelnytsk Regional Court and the judgment from the Khmelnytsk City Court of 12 October 2000 on the claims of Ionova G.F.;

–  a ruling of 6 September 2000 from the Chernivtsi Regional Court and the judgment from the Gertsayev City Court of 27 July 2000 on the claims of Kuchuk P.D.;

– a ruling of 12 July 2000 from the Supreme Court of the Crimea, rejecting the claims of Maslov I.V. for the recalculation of his pension, and quashing the judgment from the Yevpatoria City Court of 4 May 2000;

–  a judgment of 7 June 2000 from the Leninsky District Court of Chernivtsi on the claims of Gordyushov P.T.;

–  a ruling of 31 May 2000 from the Supreme Court of the Crimea on the claims of Zmeykina N.S.; and

–  a ruling of 25 May 2000 from the Donetsk Regional Court and the judgment of 4 April 2000 from the Krasnolymansky City Court of the Donetsk Region on the claims of Valyk V.I.

COMPLAINTS

The applicant complains about the refusal of the courts to award him a pension, as foreseen by law, and the unfairness of the proceedings. He also complains about the discriminatory application of the law following the recommendation of the Supreme Court. He alleges that the hearings were unfair. The applicant refers to Articles 6 and 14 of the Convention.

The applicant also claims an infringement of Articles 17, 18 and Article 1 of Protocol No. 1 to the Convention, without any particular substantiation.

THE LAW

1.  The applicant complains under Article 6 § 1 of the Convention about the unfairness of the proceedings in his case. In particular, he alleges that the domestic authorities misapplied domestic law and acted contrary to the provisions of the law allowing him to have an increased pension. He further maintains that the judgments in his case were arbitrary and lacked relevant substantiation. Article 6 § 1 of the Convention reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

(a)  Applicability of Article 6

The parties did not contest the applicability of Article 6 § 1 of the Convention to the proceedings in the instant case.

Firstly, the Court notes that the applicant is a former employee of the prosecution service of Ukraine. The Court recalls that disputes concerning the recruitment, career and termination of service of civil servants are as a general rule outside the scope of Article 6 § 1 of the Convention. However, disputes concerning pensions fall within the ambit of Article 6 § 1 because, on retirement, employees break the special bond between themselves and the authorities; they then find themselves in a situation exactly comparable to that of employees under private law as the special relationship of trust and loyalty binding them to the State has ceased to exist and the employee can no longer wield a portion of the State's sovereign power (see Pellegrin v. France [GC], no. 28541/95, § 67, ECHR 1999-VIII).

Secondly, the Court recalls that the applicability of this limb of Article 6 § 1 of the Convention requires the existence of a “dispute” over a “right” which can be said, at least on arguable grounds, to be recognised under domestic law. That dispute must be genuine and serious; it may relate not only to the existence of a right but also to its scope and to the manner of its exercise. Furthermore the outcome of the proceedings must be directly decisive for the right in question (see, for example, Rolf Gustafson v. Sweden, judgment of 1 July 1997, Reports of Judgments and Decisions 1997-IV, p. 1160, § 38). In the present case, the Court observes that the proceedings complained of concerned the issue of whether or not the applicant was eligible for pension recalculations, and that the final ruling in those proceedings, which rejected his claims for recalculation, was decisive for his pecuniary rights, i.e. a specific monthly sum of money that he was supposed to receive. The Court therefore considers that the proceedings involved a “dispute” over the applicant's “civil rights” and that, consequently, Article 6 § 1 of the Convention applies in the present case.

(b)  Complaints under Article 6 § 1 of the Convention

(i)  Fairness and legal certainty

The Government submitted that the applicant did have a fair hearing of his claims. However, they were rejected as he had no right secured in legislation for a pension recalculation. Neither the Law on the prosecution, before the changes introduced on 12 July 2001, nor the Law on Pensions, provided for such a recalculation. The applicant's reference to the Resolution of the Verkhovna Rada of 26 November 1993, the Decree of the President of 16 April 1999 and the Resolutions of the Cabinet of Ministers of 16 November and 13 December 1999, were incorrect, as these normative acts did not provide for the recalculation of the applicant's pension. Also, the Resolution of the Cabinet of Ministers of 16 November 1999 was annulled at the time of the applicant's appeal to the Yevpatoria City Court. The Government maintained that the applicant's reference to the recommendation of the Supreme Court was unfounded as it had no binding effect. They further referred to the fact that it was only the employees of the prosecution service who had retired before 1 January 1994, who were allowed to receive pension recalculations.

The applicant disagreed. In particular, he contended that domestic law provided for the recalculation of his pension, but that it was refused unlawfully.

(ii)  The Court's assessment

The Court observes that the applicant does not allege any particular failure to respect his right to a fair hearing by the domestic authorities, and that his complaints essentially consist of an objection to the outcome of the proceedings and to alleged errors of fact and law. In this respect the Court recalls that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the States Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court, unless and in so far as they may have infringed rights and freedoms protected by the Convention (see Garcia Ruiz v. Spain, [GC], no. 30544/96, § 28, ECHR 1999-I). Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are primarily matters for regulation by national law and the national courts. Finally, the Court recalls that, although Article 6 § 1 of the Convention obliges courts to give reasons for their decisions, it cannot be understood as requiring a detailed answer to every single argument raised by a party to the proceedings.

The Court notes in the present case that the applicant was able to put forward his arguments fully, that adequate reasons for refusing his claims were provided, and that there is nothing in the case-file which might disclose any arbitrariness in the handling of the applicant's claims by the domestic courts.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and must be rejected pursuant to Article 35 § 4 of the Convention.

(c)  Complaints under Article 14 of the Convention in conjunction with Article 6 § 1

The applicant next complains of a discriminatory application of the law and invokes Article 14 of the Convention, combined with the aforementioned Article 6 § 1. Article 14 of the Convention 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 difference in treatment complained of is not based on any objective status of the applicant specified in Article 14, such as his sex or race, but on a claim that the domestic courts erred in their assessment of the facts and the interpretation of domestic law.

The Court reiterates that it is not its task to take the place of the domestic courts and cannot entertain complaints that domestic courts committed errors of law of fact. It is primarily for the national authorities, notably the courts, to interpret domestic law (see, among many other authorities, Pérez de Rada Cavanilles v. Spain, judgment of 25 September 1998, Reports of Judgments and Decisions 1998-VIII, p. 3255, § 43), and to assess the facts in cases before them (see, Van de Hurk v. the Netherlands, judgment of 19 April 1994, Series A no. 288, pp. 19-20, § 60).

The domestic courts concluded in the present case, after having assessed the facts in the light of the relevant domestic case-law, that the applicant had no right to a recalculation of his pension. The fact that the domestic courts, including the Supreme Court of the Crimea, did not accept the applicant's arguments on this point does not, as such, raise an issue under Article 14 of the Convention.

It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

2.  The applicant's complaints under Articles 17 and 18 of the Convention

The applicant next complains of an infringement of Articles 17 and 18 of the Convention, which respectively prohibit activities aimed at the destruction of rights and freedoms to a greater extent than is provided for in the Convention, or an abusive application of accepted Convention restrictions.

The Government did not comment on these claims.

Having regard to the considerations outlined above concerning the applicant's complaints under Articles 6 and 14 of the Convention, the Court finds these further complaints under Articles 17 and 18 wholly unsubstantiated. It follows that they are also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3.  The applicant's complaint under Article 1 of Protocol No. 1 to the Convention

Finally, the applicant complains of a violation of Article I of Protocol No. 1, which provides 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.”

(i)  Submissions of the parties

The Government submitted that there was no infringement of this provision as the applicant had no legitimate expectation to receive a recalculated pension. Furthermore, they stated that the applicant's pension was anyway recalculated after legislative amendments.

The applicant disagreed. He maintained that he had had a right, secured in the earlier legislation, to have his pension recalculated. He alleged that he had not received a recalculation of his pension in due time and, therefore, had suffered financially.

(ii)  The Court's assessment

The Court recalls that, according to the Convention organs' case-law, a person complaining of an interference with his property must show that such right existed (see X., Y. and Z. v. the Federal Republic of Germany, nos. 7655/76, 7655/76 and 7657/76, Commission Decision of 4 October 1977, Decisions and Reports (DR) 12, p. 111). The Court further recalls that "possessions" within the meaning of Article 1 of Protocol No. 1 may be either "existing possessions" (see Van der Mussele v. Belgium, judgment of 23 November 1983, Series A no. 70, p. 23, § 48), or claims in respect of which the applicant can argue that he has at least a "legitimate expectation" of obtaining the effective enjoyment of a property right (see Pine Valley Developments and Others v. Ireland, judgment of 29 November 1991, Series A no. 222, p. 23, § 51; Pressos Compania Naviera S.A. and Others v. Belgium, judgment of 20 November 1995, Series A no. 332, p. 21, § 31).

It is clear that in the instant case the applicant's claim for a recalculated pension did not concern “existing possessions”. The question remains, however, whether the applicant had a “legitimate expectation” regarding the recalculation of his pension.

The Court finds that the decisions of the domestic courts in the present case show that the applicant did not have a right to a recalculation of his pension before the legislation was amended by the Law on the Prosecution Service of 12 July 2001. Thereafter his pension was recalculated and increased accordingly. In these circumstances, the Court concludes that, at the material time prior to this reform, the applicant did not have a legitimate expectation which could give rise to an issue under Article 1 of Protocol No. 1 to the Convention.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

S. DolléJ.-P. Costa
RegistrarPresident

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