PRONINA v. UKRAINE

SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 63566/00
by Svetlana Vladimirovna PRONINA
against Ukraine

The European Court of Human Rights (Second Section), sitting on 10 January 2006 as a Chamber composed of:

MrJ.-P. Costa, President,
MrA.B. Baka,
MrI. Cabral Barreto,
MrR. Türmen,
MrV. Butkevych,
MsD. Jočienė,
MrD. Popović, judges,
and Mrs S. Dollé, Section Registrar,

Having regard to the above application lodged on 25 October 2000,

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Mrs Svetlana Vladimirovna Pronina, is a Ukrainian national who was born in 1944 and lives in the city of Yalta, Ukraine. The respondent Government were represented by their Agents, Mrs V. Lutkovska and Mrs Z. Bortnovska.

A. The circumstances of the case

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

In March 2000 the applicant lodged a claim with the Yalta City Court against the local social welfare department, challenging the refusal of the latter to award her a higher pension. In her claim, the applicant maintained that, under Article 46 of the Constitution and Article 19 of the Law on Pensions, her pension should not be lower than the minimum living standard. Therefore, given that her pension was fixed at the amount of UAH 74.70 per month and the minimum living standard was established at UAH 118.30 per month, the applicant claimed a corresponding increase in her pension.

On 4 April 2000 the court decided against the applicant. The court established in particular that, although Article 19 of the Law on Pensions provided the possibility for a higher pension, it also limited the amount to a maximum sum which the applicant in fact received. The court did not consider the applicant’s argument about the inconsistency of the amount of her pension with the minimum level of income guaranteed by Article 46 of the Constitution.

The applicant appealed against the judgment of the Yalta City Court to the Supreme Court of the Autonomous Republic of Crimea. In her cassation appeal the applicant repeatedly claimed that her pension should not be lower than the minimum living standard, as defined in Article 46 of the Constitution, and that the constitutional provisions have supremacy over the provisions of normal laws.

On 3 July 2000 the Supreme Court of the Autonomous Republic of Crimea upheld the decision of the first instance court. The court did not consider the applicant’s appeal from the viewpoint of Article 46 of the Constitution.

B. Relevant domestic and international law, and practice

1. Constitution of Ukraine of 1996

Article 8

“... The norms of the Constitution of Ukraine are norms of direct effect. Appeals to the court in defence of the constitutional rights and freedoms of the individual and citizen directly on the grounds of the Constitution of Ukraine are guaranteed.”

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 (прожитковий мінімум) established by law.”

Article 147

“The Constitutional Court of Ukraine is the sole body of constitutional jurisdiction in Ukraine.

The Constitutional Court of Ukraine decides on issues of conformity of laws and other legal acts with the Constitution of Ukraine, and provides the official interpretation of the Constitution of Ukraine and the laws of Ukraine.”

Article 150

“The jurisdiction of the Constitutional Court of Ukraine encompasses:

1) deciding on issues of conformity with the Constitution of Ukraine (constitutionality) of the following:

- laws and other legal acts of the Verkhovna Rada of Ukraine;

- acts of the President of Ukraine;

- acts of the Cabinet of Ministers of Ukraine;

- legal acts of the Verkhovna Rada of the Autonomous Republic of Crimea.

These issues are considered on the appeals of: the President of Ukraine; at least forty-five National Deputies of Ukraine; the Supreme Court of Ukraine; the Authorised Human Rights Representative of the Verkhovna Rada of Ukraine; the Verkhovna Rada of the Autonomous Republic of Crimea;

2) the official interpretation of the Constitution of Ukraine and the laws of Ukraine;

On issues envisaged by this Article, the Constitutional Court of Ukraine adopts decisions that are mandatory for execution throughout the territory of Ukraine, that are final and shall not be appealed.”

Article 152

“Laws and other legal acts, by the decision of the Constitutional Court of Ukraine, are deemed to be unconstitutional, in whole or in part, in the event that they do not conform to the Constitution of Ukraine, or if there was a violation of the procedure established by the Constitution of Ukraine for their review, adoption or their entry into force.

Laws and other legal acts, or their separate provisions, that are deemed to be unconstitutional, lose legal force from the day the Constitutional Court of Ukraine adopts the decision on their unconstitutionality.

Material or moral damages, inflicted on physical and legal persons by the acts or actions deemed to be unconstitutional, are compensated by the State by the procedure established by law.”

2. The Code of Civil Procedure of 1963 (with amendments)

Article 11 of the Code provides that courts shall decide a case on the basis of the Constitution, other legislative acts or the international treaties of Ukraine, under the procedure provided for in the Code.

Article 202 of the Code foresees that a court decision shall mention the facts of the case established by the court, evidence on which the court’s conclusion is based, reasons for admitting or rejecting this or that argument, as well as the laws applied by the court.

3. Law on the Constitutional Court of Ukraine of 16 October 1996

Article 42. Constitutional appeal

“The Constitutional appeal is a written petition to the Constitutional Court of Ukraine on the necessity for an official interpretation of the Constitution of Ukraine and laws of Ukraine, in order to secure the implementation or protection of the constitutional rights and freedoms of an individual and citizen, as well as the rights of a legal entity.

The constitutional appeal shall contain:

1) the surname, first name and patronymic of a citizen of Ukraine, alien, or stateless person, his or her residential address, or the full name and location of the legal entity;

2) information about the citizen’s representative by law or by an authority;

3) Articles (separate provisions) of the Constitution of Ukraine or a Law of Ukraine, of which interpretation shall be given by the Constitutional Court;

4) reasoning for the necessity of an official interpretation of the provisions of the Constitution of Ukraine or laws of Ukraine;

5) information about other documents and materials referred to by the subjects of the constitutional appeal (copies of these documents and materials shall be attached);

6) a list of materials and documents attached.

The constitutional appeal, accompanying documents and materials shall be submitted in triplicate.”

Article 43. Subjects of the right to a constitutional appeal in order to obtain the opinion of the Constitutional Court of Ukraine

“The subjects of the right to a constitutional appeal in order to obtain the opinion of the Constitutional Court of Ukraine in the cases foreseen by subparagraph 4 of Article 13 of this Law are citizens of Ukraine, aliens, stateless persons and legal entities.”

Article 45. Grounds for a refusal to initiate a constitutional examination

“Grounds for refusal to institute proceedings before the Constitutional Court of Ukraine are:

1) the lack of any right to a constitutional petition or appeal, as set out in the Constitution of Ukraine and this Law;

2) non-compliance of the constitutional petition or appeal with the requirements prescribed by the Constitution of Ukraine and this Law;

3) lack of jurisdiction of the Constitutional Court of Ukraine over issues raised in the constitutional petition or appeal.”

Article 46. The procedure for constitutional proceedings

“The institution of proceedings before the Constitutional Court of Ukraine by way of a constitutional petition or appeal shall be approved by a panel of judges of the Constitutional Court of Ukraine or by the full Constitutional Court of Ukraine in session.

The case in which constitutional proceedings have been instituted shall be examined by the Constitutional Court of Ukraine at a plenary session under the procedure and within the time-limit prescribed by this Law.

The date for consideration of a case by the Constitutional Court of Ukraine shall be determined by the President of the Constitutional Court.”

Article 48. Competence of panels of judges of the Constitutional Court of Ukraine on cases arising from constitutional petitions

“A panel of judges of the Constitutional Court of Ukraine in cases arising from constitutional petitions adopts, by a majority vote, a procedural decision to institute proceedings ... or to refuse to institute such proceedings.

When a panel of judges of the Constitutional Court of Ukraine adopts a procedural decision to institute proceedings ..., the President of the Constitutional Court submits this case for consideration to a plenary session of the Constitutional Court.

When a panel of judges adopts a procedural decision to refuse to institute proceedings, the secretary of the panel of judges submits the materials to the President of the Constitutional Court of Ukraine for consideration of the case at a session of the Constitutional Court.”

Article 49. Competence of panels of judges of the Constitutional Court of Ukraine in cases arising from constitutional appeals

“A panel of judges of the Constitutional Court of Ukraine in cases arising from constitutional appeals adopts the procedural decision to institute proceedings ... or to refuse to institute such proceedings, under the procedure prescribed by Article 48 of this Law.”

Article 70. Procedure for the implementation of decisions and opinions of the Constitutional Court of Ukraine

“Copies of decisions and opinions of the Constitutional Court of Ukraine shall be sent on the next working day after their official promulgation to the subject who holds the right to a constitutional petition or appeal, and on whose initiative the case was considered, as well as to the Ministry of Justice of Ukraine and the public authority which adopted the legal act which was object of the examination by the Constitutional Court.

Where necessary, the Constitutional Court of Ukraine may determine in its decision or opinion, the procedure and time-limits for their implementation, and oblige appropriate State authorities to secure implementation of the decision or compliance with the opinion.

The Constitutional Court of Ukraine has the right to demand from authorities mentioned in this Article written confirmation of the implementation of the decision or compliance with the opinion of the Constitutional Court.

Failure to implement decisions or to comply with the opinions of the Constitutional Court of Ukraine gives rise to liability in accordance with law.”

Article 83. Issues of constitutionality that arise in the proceedings before the courts of general jurisdiction

“When, in the proceedings before the courts of general jurisdiction, a dispute arises over the constitutionality of norms applied by a court, the examination of the case shall be suspended.

Under such circumstances, constitutional proceedings shall be initiated and the case shall be considered by the Constitutional Court of Ukraine immediately.”

Article 94. Ground for a constitutional appeal

“The ground for a constitutional appeal in order to obtain an official interpretation of the Constitution of Ukraine and laws of Ukraine is a lack of uniform application of provisions of the Constitution or laws by the courts of Ukraine, other organs of State authorities, if the subject of the right to a constitutional appeal considers that it may lead or has led to a violation of his or her constitutional rights and freedoms.”

Article 95. The operative part of the opinion of the Constitutional Court of Ukraine

“The operative part of the opinion of the Constitutional Court of Ukraine officially interprets the provisions of the Constitution and laws which have been the object of the constitutional petition or appeal.

If in the interpretation of a law of Ukraine (its separate provisions) the existence of non-conformity with the Constitution of Ukraine is established, then the Constitutional Court, within the same proceedings, shall decide the issue of the constitutionality of that law.”

4. Law of Ukraine on Pensions of 5 November 1991

Article 19 of this Law provides as relevant:

“Old age pensions shall be established in the amount of 55% of the salary, but not less then the minimum amount of pensions (мінімальний розмір пенсії)...

The minimum amount of an old age pension shall be established in relation to the minimum consumer budget (мінімальний споживчий бюджет). In case of economic crisis and a fall in production, the minimum amount of pensions shall be established in an amount which is not lower than the basic standard of income (межа малозабезпеченості). ...

The maximum amount of an old age pension shall not exceed ... three times the minimum amount of pension ...”

5. Law of Ukraine on Establishing the Amount of the Basic Standard of Income and the Amount of the Minimum Wage for 1999 (25 December 1998)

The Law set the basic monthly standard of income (межа малозабезпеченості) at UAH 90.7[1] for the first half of 1999, and UAH 118.3[2] for the second half.

6. Law of Ukraine on Increasing the Minimum Amount of Pensions (15 July 1997)

This Law set the minimum amount of pensions (мінімальний розмір пенсії) at UAH 24.9[3].

7. Resolution of the Plenary of the Supreme Court of Ukraine on the Application of the Constitution of Ukraine on the Administration of Justice (1 November 1996)

The relevant parts of the Resolution read as follows:

“2. Since the Constitution of Ukraine, as stipulated in its Article 8, has the highest legal force, and its norms are norms of direct effect, the courts, in consideration of concrete cases, shall assess the content of any law or any other legal act for its compliance with the Constitution of Ukraine and, where necessary, shall apply the Constitution as an act of direct effect. The court decisions shall be based on the Constitution and the current legislation which does not contradict it.

In case of doubt as to the compliance with the Constitution of Ukraine of a particular law, as applied or applicable in a case, the court, upon the motion of the parties to the proceedings or of its own motion, shall suspend consideration of the case and apply, by way of a reasoned decision (ruling), to the Supreme Court of Ukraine which, under Article 150 of the Constitution, may raise before the Constitutional Court the issue of compliance of laws and other legal acts with the Constitution. Such decisions can be taken by the first instance court, court of cassation or the court which considers a supervisory review...”

8. Opinion on the Constitution of Ukraine adopted by the Venice Commission at its 30th Plenary Meeting (7-8 March 1997)

“Chapter XII

Constitutional Court of Ukraine

General comments

This chapter sets up a permanent constitutional court. This fully corresponds to the prevailing practice in the new democracies to protect the constitutionality of the new legal order by a specific, permanent and independent judicial body and can only be welcomed. The text adopted is mostly very similar to the draft previously examined by the Commission. However, the role of the Constitutional Court has been further developed by the Law on the Constitutional Court of Ukraine adopted in October.

This concerns in particular the powers of the Constitutional Court:

The text of the Constitution does not provide for a procedure of constitutional complaints by individuals for violation of their human rights but it gives to the Parliamentary Ombudsman the possibility to seize the Constitutional Court. The Law on the Constitutional Court of Ukraine introduces such a procedure on the basis of the power of the Constitutional Court to officially interpret the Constitution of Ukraine (see in particular Articles 42, 43 and 94 of the Law). The scope of these provisions seems however not entirely clear.”

9. Opinion on the Law on the Constitutional Court of Ukraine adopted by the Venice Commission at its 31st Plenary Meeting (20-21 June 1997)

“II.The Constitutional Framework

... 4. The Commission noted already in its opinion on the Constitution of Ukraine (document CDL-INF(97)2) that several procedures which could play an important role for the consolidation of constitutionalism in Ukraine were not specifically mentioned in the text of the Constitution:

-constitutional complaints by individuals concerning violation of their human rights;...

In its opinion, the Commission noted that the Law on the Constitutional Court seeks to remedy these gaps by using the procedures mentioned in the Constitution in a way producing effects similar to the missing procedures. ...

IV.The Procedure for the Official Interpretation of the Constitution

9. The law gives the right to request an official interpretation of the Constitution both to State bodies via petition (Article 41) in cases of practical necessity (Article 93) and to individuals and legal entities (Article 43) by way of constitutional appeal in case of inappropriate application of provisions of the Constitution or the laws that may lead or have led to a violation of the constitutional rights and freedoms of the appellant (Article 94).

10. It is unusual to give the right to seek an interpretation of the Constitution from the Constitutional Court also to individuals and private bodies. However, the solution is certainly favourable to the realisation of fundamental rights in Ukraine and therefore has to be welcomed. It may also partly replace the constitutional complaints procedure missing in the Constitution, in particular since, according to Article 95, the Constitutional Court may decide the unconstitutionality of a law in this context.

It should however also be noted that this procedure provides less protection than a full fledged constitutional complaints procedure, as in Germany or Spain, since under it the Constitutional Court may not decide on the legality of acts of State bodies other than those (of mainly normative character) listed in Article 151 of the Constitution and Article 13 No. 1 of the Law (see in particular Article 14 of the Law).

11. In addition, another serious weakness of the procedure is the absence of any indication on the procedural rights of the private parties to the dispute. The law contains a provision on the introduction of the appeal (Article 42) and that the decision has to be sent to the appellant (Article 70). There is however no indication whether the individual has the right to submit additional briefs to the Constitutional Court and whether he, perhaps assisted or represented by a lawyer, can attend and take part in the session of the Court on his case. It seems indispensable that the individual who has brought a case should also have the right to intervene before the Court. The tendency of the European Court of Human Rights to apply Article 6 of the European Convention also to disputes before a Constitutional Court concerning individuals should be noted. The Court would therefore be well advised to adopt a liberal attitude but, in any case, it seems scarcely acceptable that such an important matter touching individual rights should be left to the internal regulations or the discretion of the Court and not be settled by law.”

COMPLAINTS

The applicant complained under Article 2 of the Convention that the refusal of the domestic authorities to increase the amount of her pension violated her right to life. She further complained, in substance, about an unfair hearing under Article 6 § 1 of the Convention and a violation of her property rights under Article 1 of Protocol No. 1.

THE LAW

1. The applicant complained that her right to life was violated, invoking Article 2 § 1 of the Convention, which provides insofar as relevant as follows:

“Everyone’s right to life shall be protected by law.”

The Court reiterates that according to its case-law neither Article 2 nor any other provision of the Convention can be interpreted as conferring on an individual a right to enjoy any given standard of living (see Wasilewski v. Poland, no. 32734/96, 20 April 1999). Moreover, the applicant did not show that she suffered such destitution as to put her life at risk. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The applicant also raised in substance an issue under Article 1 of Protocol No. 1, alleging a violation of her right to social benefits, namely a pension. Article 1 of Protocol No. 1 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 Government maintained that the applicant’s complaint concerned neither an “existing possession” nor a “legitimate expectation” to receive such a possession. Therefore, in the Government’s opinion, this complaint should be rejected as being incompatible ratione materiae with this provision.

The applicant disagreed.

The Court reiterates that the concept of “possessions” in the first part of Article 1 of Protocol No. 1 has an autonomous meaning, which is not limited to ownership of physical goods and is independent of the formal classification in domestic law: certain other rights and interests, for instance debts, constituting assets, may also be regarded as “property rights”, and thus “possessions” for the purposes of this provision. The issue that needs to be examined is whether the circumstances of the case, considered as a whole, conferred on the applicant an entitlement to a substantive interest protected by Article 1 of Protocol No. 1 (see Broniowski v. Poland (dec.) [GC], no. 31443/96, § 98, ECHR 2002‑X).

The Court has previously held that entitlement to a welfare benefits, even under a non-contributory scheme, may constitute a pecuniary right for the purposes of Article 1 of Protocol No. 1. However, in order to establish such a right, the person concerned must satisfy the various statutory conditions set by the law (see Gaygusuz v. Austria, cited above, § 41; Willis v. the United Kingdom, no. 36042/97, §§ 32-34, ECHR 2002-IV; Wessels-Bergervoet v. the Netherlands (dec.), no. 34462/97, 3 October 2000; Koua Poirrez v. France, no. 40892/98, ECHR 2003-X). In the instant case, the applicant, having reached the age of retirement, was entitled to a pension under the law. However, the essence of the applicant’s complaint is not her entitlement to a pension as such, but her alleged entitlement to a higher pension. In this respect the Court reiterates that the provisions of Article 1 of Protocol No. 1 cannot be interpreted as giving an individual a right to a pension of a particular amount (see Jankovic v. Croatia (dec.), no. 43440/98, ECHR 2000-X).

It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

3. The applicant further complained that the court failed to examine her arguments in full, in particular that concerning the amount of her pension in relation to the minimum living standard established by Article 46 of the Constitution. The applicant invoked in substance Article 6 § 1 of the Convention, which provides insofar as relevant as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

a. The Government’s preliminary objection

The Government contended that the applicant had not exhausted domestic remedies, as required by Article 35 § 1 of the Convention. The Government noted that, under the Ukrainian law, the courts of general jurisdiction should examine cases on the basis of the Constitution, laws and international treaties. The Government pointed out that such courts lacked competence to interpret the Constitution, which can only be effected by the Constitutional Court. The Government therefore suggested that the applicant could apply to the Constitutional Court in order to request an official interpretation of the relevant provision of the Constitution.

The applicant did not reply to this objection.

The Court first recalls that constitutional court proceedings do not, in principle, fall outside the scope of Article 6 § 1 (see Süßmann v. Germany [GC], no. 20024/92, § 39, Reports of Judgments and Decisions 1996-IV). In each case, the Court must determine whether the outcome of such proceedings is decisive for the determination of the applicant’s “civil rights and obligations” (see Süßmann cited above, § 39).

Where proceedings before a constitutional court are embedded in ordinary proceedings, for example where the domestic courts refer a question of constitutionality to a Constitutional Court, the proceedings before the Constitutional Court may be relevant in the assessment of the compliance of the underlying procedure with Article 6 § 1 of the Convention (see Bock v. Germany, judgment of 29 March 1989, Series A no. 150, § 37; Ruiz‑Mateos v. Spain, judgment of 23 June 1993, Series A no. 262, §§ 55-68). However, this is not the case in the present application before the Court, which concerns the possibility for an individual to lodge an appeal for interpretation directly with the Constitutional Court in order to quash a law on the ground of its unconstitutionality (see, mutatis mutandis, Roshka v. Russia (dec.), no. 63343/00, 6 November 2003).

The Court notes that, unlike some other Member States, Ukraine does not confer upon a private person the right to make a direct complaint of a violation of the Constitution to the Constitutional Court, but only the right to seek leave for an opinion on the interpretation of a particular constitutional provision to be given. Nevertheless, that leave to appeal decision lies within the sole discretion of the Constitutional Court itself, and the procedure for the examination of such appeals is rather vague (see the Opinion of the Venice Commission above). In the Court’s view such a system does not constitute an effective remedy for the purpose of Article 35 § 1 of the Convention. The Court, accordingly, dismisses the Government’s preliminary objection.

b. Admissibility

The Government recalled the Court’s case-law that Article 6 § 1 of the Convention does not oblige domestic courts to give a detailed answer to each argument of the plaintiff. They further maintained that, despite the fact that the applicant mentioned the constitutional provision in her claims and in her cassation appeal, she did not make any oral submissions on this issue during the hearing, but grounded her claim on the provisions of the Pension Law. The Government concluded that mere reference to her constitutional rights in her written submissions to the court did not require the latter to examine this issue in detail.

The applicant maintained that the State authorities failed to follow the constitutional provision about the social welfare of retired pensioners.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaint concerning the allegedly insufficient reasoning of the domestic courts under Article 6 § 1 of the Convention;

Declares the remainder of the application inadmissible.

S. DolléJ.-P. Costa
RegistrarPresident

[1] Around EUR 15

[2] Around EUR 18.5

[3] Around EUR 3.9

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