FIFTH SECTION
CASE OF FILOZOFENKO v. UKRAINE
(Application no. 72954/11)
JUDGMENT
This version was rectified on 3 February 2020
under Rule 81 of the Rules of Court
STRASBOURG
9 January 2020
This judgment is final but it may be subject to editorial revision.
In the case of Filozofenko v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
André Potocki, President,
Mārtiņš Mits,
Lәtif Hüseynov, judges,
and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 3 December 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 72954/11) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Ms Lina Alekseyevna Filozofenko (“the applicant”), on 18 November 2011.
2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna.
3. The applicant complained under Article 1 of Protocol No. 1 about the State’s failure to pay a supplement to her pension.
4. On 11 July 2018 notice of the above complaint was given to the Government and the remainder of the applications was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
THE FACTSTHE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1938 and lives in the Odessa Region.
6. The applicant has a special status of a “child of war” (a person who on 2 September 1945 was no more than 18 years of age) under the Children of War Social Protection Act in force as of 1 January 2006 (“the 2006 Act”). Section 6 of the above Act entitled her to a special supplement to her pension in the amount of 30% of the minimum pension.
7. On 11 December 2008 she lodged a claim against the State Pension Fund with the domestic courts, asking them to recalculate her pension in accordance with section 6 of the above Act for 2006-2008 and to pay her the outstanding debt.
8. On 10 June 2009 the Odessa Circuit Administrative Court partly allowed the claim. It held that in 2006 section 6 of the 2006 Act had been suspended by the State Budget Act 2006. In return amendments to the latter Act, which had entered into force on 1 April 2006[1], had empowered the Cabinet of Ministers to set up a mechanism for a pension increase. However, in 2006 no such mechanism had been set up and the applicant’s claims relating to 2006 had to be rejected. As to her claims relating to 2007 and 2008, the court noted that in 2007 and 2008 section 6 of the 2006 Act had been suspended and modified respectively by the 2007 and 2008 State Budget Acts. However, on 9 July 2007 and 22 May 2008 the Constitutional Court had found that suspension and modification unconstitutional. The court consequently held that the State Pension Fund should recalculate the applicant’s pension, but only for the periods from 9 July to 31 December 2007, and from 22 May to 31 December 2008.
9. On 1 November 2010 the Odessa Regional Administrative Court of Appeal partly amended the above judgment. It upheld the lower court’s findings as regards the applicant’s claims for 2006. As to her claims for 2007 and 2008, it also upheld her right to a pension increase for the period from 9 July to 31 December 2007 and from 22 May to 31 December 2008, but held that since she had missed a one-year statutory period for lodging a claim, the claim for 2007 had to be allowed only for the period from 11 to 31 December 2007.
10. On 18 May 2011 the Higher Administrative Court upheld the latter judgment.RELEVANT DOMESTIC LAW
11. The provisions of the relevant domestic law and practice are set out in the case of Sukhanov and Ilchenko v. Ukraine (nos. 68385/10 and 71378/10, §§ 17-25, 26 June 2014).
THE LAWALLEGED VIOLATION OF ARTICLE 1 of protocol No. 1
12. The applicant complained under Article 1 of Protocol No. 1 about the domestic courts’ refusal to acknowledge in full her claims for pension increase for 2006-2008. The above provision 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 parties’ submissions
13. The Government first submitted that the applicant had lodged her application with the Court on 23 January 2012, while the final decision in her case had been delivered on 18 May 2011. They thus considered that the application had been lodged out of time. Alternatively, they considered that the applicant’s complaint was manifestly ill-founded. As regards her claims for the periods from 1 January to 9 July 2007 and from 1 January to 22 May 2008, the Government referred to Sukhanov and Ilchenko (cited above, §§ 35-39), in which the Court found the applicants’ similar claims in respect of those periods inadmissible. As to the period from 9 July to 11 December 2007, they considered the complaint to be inadmissible, because the applicant had missed a time-limit for lodging her claim. As to the period from 1 April[2] to 31 December 2006, the Government generally referred to the applicant’s complaints in this respect as manifestly ill-founded.
14. The applicant first noted that she had sent her first letter to the Court on 17 November 2011, that is, within six months from the date of the domestic final decision, and had submitted to the Court a duly completed application form on 23 January 2012, a time-limit set by the Court. Therefore, she had lodged the application on time. She further stated that the domestic court’s refusal to allow her claims from 1 January to 31 December 2006, from 1 January to 11 December 2007 and from 1 January to 22 May 2008 had been unlawful and ungrounded.The Court’s assessmentAdmissibility
15. The Court first notes, as regards the Governments submission about the applicant’s alleged failure to comply with the six-month rule, that the applicant sent the first letter to the Court on 18 November 2011, within six months from the date of the final domestic decision, and the fully completed application form on 23 January 2012, a time-limit set by the Court for the applicant in reply to her first letter, pursuant to the rules in force at the material time. Accordingly, the Court considers that the applicant submitted her application on time and in compliance with Article 35 § 1 of the Convention and dismisses the Government’s objection in this respect.
16. The Court further notes, as regards the applicant’s claims for the pension increase for the periods from 1 January to 1 April 2006[3], from 1 January to 9 July 2007 and from 1 January 2008 to 22 May 2008, that in Sukhanov and Ilchenko (cited above, §§ 35-39) it declared the applicants’ similar complaints inadmissible as manifestly ill-founded as the applicants had not made out that they had a “legitimate expectation” to the increased levels of pension during the above periods. It finds no reason to reach a different conclusion in the present case and rejects, as manifestly ill‑founded, the applicant’s claims in respect of the above periods as well. Furthermore, as to the period from 9 July to 11 December 2007, the Court notes that the applicant’s claim was rejected by the domestic courts as time-barred. It does not discern any arbitrariness in the courts’ decisions regarding that period and also rejects the applicant’s complaint in respect of this period as manifestly ill-founded.
17. However, as to the applicant’s complaint in respect of the period from 1 April[4] to 31 December 2006, the Court considers that it is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and not inadmissible on any other grounds. It must therefore be declared admissible (see Sukhanov and Ilchenko, cited above, §§ 40-41).Merits
18. The Court recalls that in the aforementioned case of Sukhanov and Ilchenko it found that the failure of the State to act, that is, to determine the amount of the pension supplement to be paid to the applicants between April and December 2006, constituted an interference with their rights under Article 1 of Protocol No. 1. No arguments were provided by the Government to explain this inactivity which kept the applicants in uncertainty. The Court thus did not see any reason why the authorities had failed to take any step to determine the amount of the supplement to the applicants’ pension and considered that interference unjustified, in breach of the above provision (ibid., §§ 55-56).
19. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court also considers that the interference with the applicant’s rights under Article 1 of Protocol No. 1 in the period from 1 April[5] to 31 December 2006 has been unjustified.
20. There has accordingly been a breach of the above provision.APPLICATION OF ARTICLE 41 OF THE CONVENTION
21. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”Damage
22. The applicant claimed 3,084.40 Ukrainian hryvnias (UAH) in respect of pecuniary damage, this sum allegedly representing the total amount of increase in pension not recognised by the domestic courts, and 3,000 euros (EUR) in respect of non-pecuniary damage.
23. The Government submitted that the claims were unsubstantiated.
24. The Court reiterates that it is not its role to substitute itself for the national authorities and to calculate the amount of the pension supplement payable to the applicant in 2006, given the failure of the national authorities to adopt any decision on the matter. Thus, it considers that it would be more appropriate for this issue to be addressed at the stage of enforcement of the present judgment (see Sukhanov and Ilchenko, cited above, § 64). On the other hand, it awards the applicant EUR 900 in respect of non-pecuniary damage (ibid., § 65).Costs and expenses
25. The applicant also claimed UAH 189.19 (around 6 EUR) for the postal expenses in the proceedings before the Court. She provided postal receipts for the amount claimed.
26. The Government considered that it was impossible to verify from the receipts submitted by the applicant who was the payer of the postal expenses and invited the Court to reject the claim.
27. Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the sum of EUR 6 for the proceedings before the Court.Default interest
28. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,Declares the complaint under Article 1 of Protocol No. 1 in respect of the period between 1 April[6] and 31 December 2006 admissible and the remainder of the application inadmissible;Holds that there has been a violation of Article 1 of Protocol No. 1 in respect of the above period;Holds
(a) that the respondent State is to pay the applicant, within three months the following amounts, to be converted into the currency of the respondent State, at the rate applicable at the date of settlement:
(i) EUR 900 (nine hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 6 (six euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 9 January 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Milan Blaško André Potocki
Deputy RegistrarPresident
[1]. Rectified on 3 February 2020: the text was “2 April 2006”.
[2]. Rectified on 3 February 2020: the text was “2 April”;
[3]. Rectified on 3 February 2020: the text was “2 April 2006”.
[4]. Rectified on 3 February 2020: the text was “2 April”;
[5]. Rectified on 3 February 2020: the text was “2 April”.
[6]. Rectified on 3 February 2020: the text was “2 April”.
Full & Egal Universal Law Academy