FIFTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 5598/03
by Vladimir Borisovich LISICHENKO
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 16 September 2008 as a Chamber composed of:
Peer Lorenzen, President,
Rait Maruste,
Karel Jungwiert,
Volodymyr Butkevych,
Mark Villiger,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 30 January 2003,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Vladimir Borisovich Lisichenko, is a Ukrainian national who was born in 1954 and lives in Mariupol.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The background of the applicant’s proceedings
The applicant is a former employee of the Mariupol Police Security Department. In January – February 1987 the applicant participated in the clean-up operation in the aftermath of the Chernobyl nuclear disaster following which he contracted an industrial illness. Under domestic legislation the applicant was entitled to choose either a disability pension provided under the general scheme (hereinafter the “general pension”) or a special disability pension provided for the victims of the Chernobyl nuclear disaster (hereinafter the “special pension”).
2. Applicant’s pension proceedings and related issues
In February 1997 the applicant was assigned the special pension in the amount of 330 Ukrainian hyrvnas (UAH). In August 1998, following its review by the local social welfare department, his special pension was reduced to UAH 232.
First set of proceedings
In June 1999 the applicant instituted proceedings in the Ordzhonikidzevskyy District Court of Mariupol (hereinafter the “first- instance court”) against the local social welfare department claiming that the latter had unlawfully refused to accept a salary certificate, issued by his former employer, for the purpose of determining a higher amount of his special pension. On 1 December 1999 the court rejected the applicant’s claim as unsubstantiated, finding, in particular, that the salary certificate submitted by the applicant had not been supported by any pay-slips for the relevant period. On 13 January 2000 the Donetsk Regional Court (the Donetsk Regional Court of Appeal as renamed since 2001) upheld this decision.
Second set of proceedings
In July 2000 the applicant instituted proceedings in the first-instance court against the local social welfare department and his former employer claiming that the salary certificate, taken as a basis for the determination of the amount of his special pension since August 1998, had been incorrect. On 15 March 2001 the court found for the applicant, stating, in particular, that there had been some misprints in the impugned certificate and obliging the applicant’s former employer to issue a correct salary certificate.
Third set of proceedings
In April 2001 the applicant again lodged the same claim with the first- instance court against his former employer alleging that the salary certificate had been incorrect. On 16 May 2001 the court left the claim unexamined for res judicata reasons. The applicant did not appeal against this decision.
Further decisions taken by the local pension authorities
On 25 April 2001 the applicant’s former employer issued a new salary certificate. The local department of the Pension Fund, having reinspected the documents available from the applicant’s former employer, rejected the new certificate as unfounded and determined the applicant’s special pension in the amount of UAH 216.55.
On 23 April 2002, upon the applicant’s request, he was assigned the general pension in the amount of UAH 266.34 in the place of his special pension.
Fourth set of proceedings
In September 2002 the applicant instituted proceedings in the first-instance court against the local department of the Pension Fund claiming that it had wrongly determined the amount of his special pension. On 25 March 2003 the court rejected the applicant’s claim as unsubstantiated. On 26 June 2003 and 27 January 2005 the Donetsk Regional Court of Appeal and the Supreme Court of Ukraine, respectively, upheld the decision of the first-instance court.
Fifth set of proceedings
In June 2003 the applicant instituted proceedings in the first-instance court against the Head of the local department of the Pension Fund requesting the recalculation of the amount of his pension. In his claim the applicant stated, in particular, that under Article 46 of the Constitution he was entitled to a pension equal to the amount of minimum living standard. However, his pension was lower than the standard effective at the relevant time.
On 19 September 2003 the court rejected the applicant’s claim as unfounded, stating that the amount of his pension had been determined correctly under the applicable provisions of the pension legislation. On 22 December 2003 and 20 December 2006, respectively, the Donetsk Regional Court of Appeal and the Higher Administrative Court of Ukraine upheld the decision of the first-instance court. Neither of the courts considered the applicant’s argument under Article 46 of the Constitution about the inconsistency of the amount of his pension with the minimum living standard.
3. Applicant’s salary proceedings
Sixth set of proceedings
In May 2001 the applicant instituted proceedings in the first-instance court against his former employer seeking recovery of salary arrears and other payments due to him for the period when he participated in the clean-up operation following the Chernobyl nuclear disaster. On 26 December 2001 the court rejected the applicant’s claim as unfounded. On 11 April and 6 September 2002 the Donetsk Regional Court of Appeal and the Supreme Court of Ukraine, respectively, upheld the decision of the first-instance court.
Seventh set of proceedings
In September 2002 the applicant lodged an application with the first-instance court requesting the court to establish the facts relevant to his employment during the period when he participated in the clean-up operation following the Chernobyl nuclear disaster. On 21 October 2002 the court left the application unexamined on the ground of res judicata referring to its judgment of 26 December 2001. On 24 December 2002 and 26 February 2004 the Donetsk Regional Court of Appeal and the Supreme Court of Ukraine, respectively, upheld the decision of the first-instance court.
B. Relevant domestic law and practice
1. Constitution of 1996
The relevant extract of the Constitution provides as follows:
Article 46
“... 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. Act of 15 November 2001 on Fixing of the Minimum Living Standard for 2002
The relevant extract of the Act reads as follows:
“Section 1. The minimum living standard for 2002 per person shall be fixed at the amount of 342 hryvnas per month...”
3. Act of 28 November 2002 on the Minimum Living Standard for 2003
The relevant extract of the Act provides as follows:
“Section 1. Section 1 of the Act on Fixing of the Minimum Living Standard for 2002 shall remain in force during 2003.”
The remainder of the relevant domestic law and practice is set out in the Court’s judgment in the case of Pronina v. Ukraine (no. 63566/00, 18 July 2006).
COMPLAINTS
Without invoking any specific provision of the Convention the applicant complained that during the fifth set of proceedings the domestic courts had failed to have regard to his argument that the amount of his pension had been determined contrary to Article 46 of the Constitution.
The applicant complained under Article 6 § 1 of the Convention of unfairness in the other sets of proceedings (except for the second set), alleging that the courts had wrongly assessed the evidence and had misinterpreted the facts. He further complained under the same provision of the Convention that the proceedings in his cases had lasted an unreasonably long period of time. The applicant finally complained about violations of Articles 3 and 4 of the Convention on account of the outcome of the proceedings in his cases without giving further details.
THE LAW
A. Lack of reasons in the court decisions taken within the fifth set of proceedings
The applicant complained that the domestic courts had ignored the argument, advanced by him in the course of the fifth set of proceedings, that the amount of his pension had not been in compliance with the Constitution. The applicant did not refer to any particular provision of the Convention.
The Court shall examine this complaint under Article 6 § 1 of the Convention, which reads in so far as relevant as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of this part of the application to the respondent Government.
B. Other complaints
The Court has examined the remainder of the applicant’s complaints and considers that, in the light of all the materials in its possession and in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaint concerning the lack of reasons in the court judgments given in the course of the fifth set of the applicant’s proceedings;
Declares the remainder of the application inadmissible.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy