FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Applications nos. 9408/05, 10642/05 and 26842/05
by Leonid Nikolayevich DUDNIK and Others
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 20 November 2007 as a Chamber composed of:
MrP. Lorenzen, President,
MrsS. Botoucharova,
MrV. Butkevych,
MrsM. Tsatsa-Nikolovska,
MrR. Maruste,
MrJ. Borrego Borrego,
MrsR. Jaeger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having regard to the above applications lodged, respectively, on 2 and 13 March and 24 June 2005,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the cases together,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The first applicant, Mr Leonid Nikolayevich Dudnik, was born in 1946. The second applicant, Mr Vladimir Rabinovich, was born in 1939. The third applicant, Mr Vladimir Dobrov, was born in 1942. All three applicants are Ukrainian nationals. The first applicant lives in Tel Aviv – Yafo, the other two live in Bat-Yam, Israel. They were represented before the Court by Mr A. L. Reyzenson, who lives in Bat Yam. 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.
The applicants had been receiving their old age pension at the time when they left Ukraine for permanent residence in Israel. Mr Rabinovich left on 23 September 1999, Mr Dobrov – on 24 December 2000 and Mr Dudnik – on 20 September 2001. Before their departures, they had been paid, upon their written requests, their pensions for six months in advance with consecutive termination of such payments in accordance with Article 92 of the Law on Pensions.
In January and February 2005 the applicants wrote separate but similar complaints about the termination of their pension payments to the Constitutional Court of Ukraine. The latter forwarded them to the Pension Fund of Ukraine. By letter of 2 February 2005 to Mr Dudnik and by letters of 1 March 2005 to Messrs Rabinovich and Dobrov, the Pension Fund of Ukraine informed the applicants that the old age pensions could be paid to the citizens who resided permanently abroad only if there was a relevant international agreement with the particular State. In absence of such agreement with the State of Israel, the payment of pensions to the applicants could not be renewed. The Fund further informed that the Ministry of Labour of Ukraine was in process of drafting such an agreement.
B. Relevant domestic law
The relevant domestic law is summarised in the admissibility decision of Myroshnychenko v. Ukraine (no. 10205/04, 3 April 2007).
COMPLAINTS
The applicants complained that the Ukrainian State violated their rights to pension. They invoked Article 1 of the Convention. They further complained that their complaints to different public authorities had been to no avail. They referred to Article 13 of the Convention. They also complained under Article 14 that they were discriminated on the ground of their place of residence. They finally complained that such treatment affected their liberty of movement under Article 2 of Protocol No. 4.
THE LAW
The Government raised an objection as to the admissibility of the application. They maintained that the applicants had been aware of the impugned provisions of Article 92 of the Law of Ukraine on Pensions at the time of their departure when the above provision had been applied to them. The Government considered that in the instant case the six months’ period should be calculated, respectively, from 23 September 1999, 24 December 2000, and 20 September 2001, i.e. from the dates on which they became aware of the alleged violation of their rights.
The applicant did not agree with the Government.
The Court observes that under the Law on Pension the payment of the applicants’ pensions was suspended, when they left Ukraine for permanent residence abroad, respectively, in September 1999, December 2000, and September 2001. Therefore, the acts of which the applicants complained took place at the time, when they became aware that the further payment of their pensions was terminated under Article 92 of the Law on Pensions.
The Court recalls that the six-month time-limit in principle runs from the date of the act complained of, if no remedies are available or if they are judged to be ineffective (see Hazar and Others v. Turkey (dec.), no. 62566/00, 10 January 2002).
The Court notes that the applicants’ complaints directly concern a statutory provision which is clear and unambiguous. In the case of Myroshnychenko v. Ukraine (cited above), which concerned a similar situation, the Court found that the Ukrainian legal system did not provide an individual with an effective remedy to invalidate or override a statutory provision. The Convention does not guarantee, as such, a right of access to a court with such competence either (see, mutatis mutandis, Gorizdra v. Moldova (dec.), no. 53180/99, 2 July 2002; and James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, § 81). Therefore, in the Court’s view, the applicants had no remedy which could be considered effective in the circumstances of their cases.
The Court considers that, in these circumstances, the six-month time-limit ran, respectively, from 23 September 1999, 24 December 2000, and 20 September 2001, when the applicants became aware of the termination of their pension payments (see Myroshnychenko, cited above). Given that these applications have been lodged several years later, in March and June 2005, the Court accepts the Government’s preliminary objection and concludes that the applications have been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention.
For these reasons, the Court unanimously
Decides to join the applications;
Declares the applications inadmissible.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy