FIFTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 10441/06
by Anatoliy Andriyovych PICHKUR
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 21 September 2010 as a Chamber composed of:
Peer Lorenzen, President,
Karel Jungwiert,
Mark Villiger,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva,
Ganna Yudkivska, judges,
and Claudia Westerdiek, Registrar,
Having regard to the above application lodged on 21 November 2005,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Anatoliy Andriyovych Pichkur, is a Ukrainian national who was born in 1938 and lives in Bremen, Germany.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Situation with the applicant's pension
In 1996 the applicant retired and began receiving a retirement pension.
From 1999 the applicant authorised his mother to receive his pension. She continued to receive the applicant's pension even after he emigrated to Germany in 2001.
On 23 September 2005 the Pension Fund of Ukraine decided to terminate pension payments to the applicant on the ground that he lived permanently abroad. Later the domestic courts also ordered the applicant to pay back the pension obtained in violation of law for the period of his residence abroad prior to September 2005 (see below).
Following the decision of the Constitutional Court of 7 October 2009 (see Relevant domestic law part below), the applicant requested the Pension Fund for renewal of pension payments. By letter of 28 December 2009, the Pension Fund informed the applicant that the above decision of the Constitutional Court applied only to those who left for abroad after 7 October 2009.
2. First set of proceedings
On 20 September 2005 the applicant lodged a complaint with the Leninskiy District Court of Zaporizhzhya against the Pension Fund, seeking resumption of his pension payments.
On 7 November 2005 the court left the applicant's complaint without consideration as he had not complied with procedural formalities set forth in the law. The applicant received a copy of this decision on 14 February 2006.
3. Second set of proceedings
On 29 November 2005 the Pension Fund instituted proceedings in the Leninskiy District Court of Zaporizhzhya against the applicant, seeking recovery of the pension payments unlawfully received by the applicant since his emigration.
On 6 April 2006 the court, in the applicant's absence, decided against him and ordered him to pay the Pension Fund 10,872.40 Ukrainian hryvnias (UAH).
On 12 October 2006 the Zaporizhzhya Regional Court of Appeal upheld the decision of the first-instance court.
On 24 December 2007 and 10 April 2008 the Odessa Regional Court of Appeal, acting as a court of cassation, rejected appeals by both the applicant and the Zaporizhzhya Regional Prosecutor's Office, which was acting in the applicant's interests.
4. Third set of proceedings
In June 2006 the applicant lodged a complaint with the Pecherskiy District Court of Kyiv against the President of Ukraine for failure to reply to his letter.
On 19 July 2006 the court decided to transfer the case to the Leninskiy District Court. On 15 November 2006, the Kyiv City Court of Appeal upheld the decision of the first-instance court.
The applicant appealed in cassation.
5. Fourth set of proceedings
On 4 August 2006 the applicant lodged a complaint with the Ordzhenikidzevskiy District Court against the Pension Fund and the Leninskiy District Court for depriving him of his pension.
On 3 November 2006 the court found against the applicant. By a ruling, it rejected the applicant's complaint against the Leninskiy District Court for lack of jurisdiction. By a separate decision it also rejected the applicant's complaint against the Pension Fund as unsubstantiated. On 15 March 2007 the Zaporizhzhya Regional Court of Appeal upheld the decision and the ruling of 3 November 2006. The applicant appealed in cassation to the Supreme Administrative Court.
B. Relevant domestic law
1. Law of Ukraine on Pensions of 5 November 1991
Section 92. Payment of pensions to the citizens who left abroad.
“Pensions shall not be granted to citizens who left for permanent residence abroad.
Pensions granted in Ukraine before the leave for permanent residence abroad shall be paid for six months in advance before departure for abroad. During the stay of these citizens abroad only pensions granted for professional disability or illness shall be payable.
The procedure of transferring pensions granted for professional disability or illness to other countries shall be established by the Cabinet of Ministers of Ukraine.”
2. Law of Ukraine on General Obligatory State Pension Insurance of 9 July 2003 (in force at the material time)
Section 51 of the Law contains provisions similar to those of the second paragraph of section 92 of the Law on Pensions, cited above. It further foresees that while abroad the person concerned should be paid a pension if such payments are foreseen by an international treaty ratified by the Parliament.
There is no treaty on social welfare between Ukraine and Germany.
3. Decision of the Constitutional Court of Ukraine of 7 October 2009 in the case on constitutional appeal of the Supreme Court of Ukraine concerning compliance with the Constitution of Ukraine (constitutionality) of the provisions of the second item of the first paragraph of Section 49 and the second sentence of section 51 of the Law of Ukraine on General Obligatory State Pension Insurance.
By this decision the Constitutional Court found the provision concerning termination of pension payments to the Ukrainian citizens residing abroad unconstitutional and repealed the relevant provision of section 51 of the Law on General Obligatory State Pension Insurance. The Constitutional Court further invited the Parliament to review all other relevant legal acts containing similar provision.
COMPLAINTS
The applicant complained that deprivation of his pension on the ground of his place of residence and inability to obtain judicial redress in Ukraine violated his rights guaranteed by Articles 6 § 1, 13 and 14 of the Convention. He further complained that the domestic courts had failed to send him procedural documents and decisions in due time and that they had considered his cases unfairly and for too long. He also complained that the decision of 6 April 2006 had been rendered in his absence. In his later correspondence he further referred to Article 53 of the Convention, Article 1 of Protocol No.1 and Article 1 of Protocol No. 12 with respect to the same events.
THE LAW
1. The applicant complained that he was deprived of his retirement pension on the ground of his place of residence in violation of Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1, which read as follows:
Article 14
“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.”
Article 1 of Protocol No. 1
“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 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 Court, to give notice of this part of the application to the respondent Government.
2. The Court, having examined the remainder of the applicant's complaints, 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 examination of the applicant's complaint concerning deprivation of retirement pension in a discriminatory manner;
Declares the remainder of the application inadmissible.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy