THIRD SECTION

DECISION

Application no. 24192/05 Lev Vladimirovich ALMINOVICH against Russia

The European Court of Human Rights (Third Section), sitting on 22 October 2019 as a Chamber composed of:

Paul Lemmens, President, Georgios A. Serghides, Helen Keller, Dmitry Dedov, María Elósegui, Gilberto Felici, Erik Wennerström, judges, and Stephen Phillips, Section Registrar ,

Having regard to the above application lodged on 5 May 2005,

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

1 . The applicant, Mr Lev Vladimirovich Alminovich, is a Russian national who was born in 1933 and lives in Irkutsk.

2 . The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

A. The circumstances of the case

1. Background

3 . The applicant was born in 1933 and lives in Irkutsk.

4 . From July 1963 to July 1978 the applicant served in the army in the Amur Region. From July 1978 to June 1980 he served in the Irkutsk Region. In 1980 he retired from military service.

5 . On 22 September 1993 the Government of the Russian Federation issued Decree no. 941 “On the procedure for calculating the length of service, award and payment of pensions and benefits to persons who served in the military” (hereinafter “the Decree”). The Decree was issued in implementation of Federal Law no. 4468-1 of 12 February 1993 “On the provision of pensions to persons who served in the army, [police etc.]”. Annex no. 1 to the Decree contained a list of remote regions of the Russian Federation. More favourable pension rules applied to people who had served in these regions. In particular, a month of service in one of the regions listed was to be counted as a month and a half of service in an “ordinary” region. This more favourable calculation was applicable to time served after particular dates. For each type of service and geographical location, different cut-off dates were set. In particular, the more favourable calculation was applicable to military officers who had served in the Irkutsk and Amur Regions after 1 January 1985.

6 . The applicant did not bring any proceedings to have his length of service recalculated or the amount of his retirement pension adjusted, either before an ordinary court or any other competent authority. In his application to the Court he provided his own estimate that if the more favourable calculation of length of service had been applied, his retirement pension would have been 5% higher.

2. Application to the Constitutional Court

7 . The applicant considered that the Decree had discriminated against him. Relying on Article 14 of the Convention, he lodged a complaint with the Constitutional Court of the Russian Federation challenging the cut-off dates contained therein.

8 . On 15 June 2004 the secretariat of the Constitutional Court of the Russian Federation informed the applicant by letter that his complaint fell outside the Constitutional Court ’ s competence under section 3 (1) (3) of the Constitutional Court Act. In the secretariat ’ s view, the applicant had sought an abstract constitutional review, which was a procedure only open to a limited number of high State officials and bodies. The letter further stated that, in any event, the legislator had the “exclusive authority to determine ... the limits of benefits of that kind, as well as to establish the procedure by which [they] would be distributed”, including the dates from which the favourable calculation of the length of service was applicable. Referring to section 40 of the Constitutional Court Act, the letter concluded that the complaint was inadmissible and fell outside the Constitutional Court ’ s competence.

9 . The applicant chose not to ask the Constitutional Court for a ruling on his complaint, which he was entitled to do under section 40 of the Constitutional Court Act.

3. Application to the Supreme Court

10 . On 14 September 2004 the applicant lodged a complaint with the Supreme Court of the Russian Federation, arguing that Government Decree no. 941 was discriminatory in setting cut-off dates for the more favourable calculation of length of service. The applicant also noted that the Constitutional Court had refused to consider his complaint for lack of jurisdiction.

11 . On 16 August 2004 the Supreme Court refused to accept the applicant ’ s complaint for examination. The decision stated that the Constitutional Court had exclusive competence to examine the constitutionality of statutory acts. As to Government decrees, it had competence to examine such acts where they had been issued pursuant to a statutory delegation of power. The decree in question had been issued “in exercise of the power ... entrusted to [the Government] by the law of the Russian Federation in which the issues of calculating long-term service for the purpose of granting pensions [had not been] regulated in substance; consequently, the Constitutional Court of the Russian Federation has competence for judicial review of the impugned legal act.” Accordingly, the Supreme Court had no competence to examine the complaint.

12 . On 9 December 2004 the Appellate Division of the Supreme Court upheld the decision of 16 August 2004. It further reiterated that in judgment no. 1-P of 27 January 2004 the Constitutional Court had confirmed the possibility of constitutional review of government decrees, where such decrees had been issued pursuant to a statutory delegation of power.

B. Relevant domestic law and practice

1. Procedure before the Constitutional Court

13 . The Federal Constitutional Law on the Constitutional Court of the Russian Federation of 21 July 1994 (“the Constitutional Court Act”) has been subject to numerous changes over the years. Some relevant provisions were summarised in Roshka v. Russia ((dec.), no. 63343/00 , 6 November 2003). The provisions below are summarised as they stood at the material time.

14 . Section 3 of the Constitutional Court Act empowered the Constitutional Court to decide cases on conformity with the Constitution of the Russian Federation of federal laws, normative acts issued by the President of the Russian Federation, the Federation Council, the State Duma, the Government of the Russian Federation (section 3(1)(a)); and to verify the constitutionality of a law that had been applied in a specific case, upon individual complaints of violations of constitutional rights and freedoms (section 3(3)).

15 . Section 40 instructed the secretariat of the Constitutional Court to inform applicants where their applications did not meet the admissibility requirements. Applicants could still ask the court to take a decision.

16 . Section 96 provided that individuals whose constitutional rights and freedoms were violated by a law applied or to be applied in a specific case were entitled to submit their complaints to the Constitutional Court.

17 . Under section 97, an application was only admissible if (i) the law in question affected the individual ’ s constitutional rights and freedoms; (ii) the law had been applied or was to be applied in a set of proceedings, finished or pending, before the courts of general jurisdiction or any other authority applying the law.

2. Practice of the Constitutional Court

18 . In judgment no. 1-P of 27 January 2004, the Constitutional Court explained that it could review the constitutionality of Government decrees under the procedure provided for in sections 96 and 97 of the Constitutional Court Act (see paras 16-17 above). Such reviews could be requested by private individuals where the challenged legal act had been issued in exercise of the power delegated to the Government of the Russian Federation by federal law, the issue had not been substantively regulated by federal law, and the Government had directly implemented the legal regulation on the basis of such authorisation.

19 . In 2008 the secretariat of the Constitutional Court prepared and published a review of practice focusing on cases where the constitutionality of government decrees had been challenged before it. The review covered the period June 1995 to July 2008 and took into account 227 decisions ( определения ) . Of those, 182 had been requested by private individuals and the rest by State bodies competent to seek a review of such acts. The document further listed grounds for refusing to consider such requests. The most common of them were incompatibility of the request with the jurisdiction of the Constitutional Court, for example where the level of social guarantees had been set by the legislator and the Government of the Russian Federation had acted within their powers and with due regard to the State ’ s financial situation and other relevant factors; and inadmissibility since the law had not been applied in the specific case and the application constituted a request by individuals for an abstract normative review.

3. Provisions of the Civil Procedure Code

20 . Article 251 § 3 of the Civil Procedure Code of the Russian Federation, as in force at the material time, provided that the courts of general jurisdiction could not examine the constitutionality of normative acts where the Constitutional Court had exclusive competence to decide on their constitutionality.

COMPLAINTS

21 . The applicant complained under Articles 6 and 14 of the Convention that his complaint had not been examined in substance and that he had been discriminated against.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

22 . The applicant complained that the domestic courts had refused to examine the merits of his complaint about the constitutionality of Government Decree no. 941. He relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows:

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

23 . The Government submitted that legal acts issued by the Government of the Russian Federation in exercise of the power entrusted to it by law could only be challenged by way of constitutional review, and therefore the Supreme Court had lacked jurisdiction to review the constitutionality of the Decree. The Constitutional Court had exclusive jurisdiction over such matters. The right to ask it to review the constitutionality of government decrees in the abstract belonged to a limited number of institutions and high State officials. The applicant in the present case had failed to apply to the competent bodies and officials and ask them to lodge such a request and thus had not exhausted domestic remedies. Furthermore, he had not applied to the courts of general jurisdiction, which could in turn have sought a preliminary review of the constitutionality of the legislation in question. The decisions of the Constitutional Court and Supreme Court had been fully justified. They asked the Court to dismiss the complaint as inadmissible under Article 35 § 3 of the Convention.

A. General principles

25 . For Article 6 § 1 to be applicable under its “civil” head, there must be a “dispute” over a “right” which can be said, at least on arguable grounds, to be recognised under domestic law. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. The outcome of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences being insufficient to bring Article 6 § 1 into play (see, among many other authorities, Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 42, ECHR 2015, and Denisov v. Ukraine [GC], no. 76639/11, § 44, 25 September 2018).

26 . As regards the applicability of Article 6 to the constitutional complaint procedure, the Court reiterates that proceedings come within the scope of Article 6 § 1, even if they are conducted before a Constitutional Court, where their outcome is decisive for civil rights and obligations (see Süßmann v. Germany , 16 September 1996, § 41, Reports of Judgments and Decisions 1996 ‑ IV; and Repcevirág Szövetkezet v. Hungary , no. 70750/14, § 39, 30 April 2019, with further references ).

27 . Furthermore, the Court recognises not only the special role and status of constitutional courts, but also the special nature of constitutional appeals, which, in those States that have made provision for a right of individual petition, afford additional legal protection to citizens at national level in respect of their fundamental rights guaranteed in the Constitution (see Meimanis v. Latvia , no. 70597/11 , § 48, 21 July 2015, with further references ). Proceedings before the constitutional courts have their own characteristics, which take account of the specific nature of the legal rules to be applied and the implications of the constitutional decision for the legal system in force. They are also intended to enable a single body to decide a large number of cases relating to very different subjects (see Ruiz-Mateos v. Spain , 23 June 1993, § 63, Series A no. 262).

B. Application in the present case

28 . In the present case, the Supreme Court did not consider the substance of the applicant ’ s complaint. It found that the decree in question had been issued pursuant to a statutory delegation of power, and that in such cases the Constitutional Court had exclusive competence over constitutionality matters (see paragraph 12 above).

29 . As to the Constitutional Court, in June 2004 its secretariat informed the applicant by letter of the possible reasons for inadmissibility of his application. Notwithstanding the exchange of letters, it remained open to the applicant to obtain review of his complaint by the Constitutional Court (see paragraph 15 above). The applicant did not pursue this avenue.

30 . The Court does not lose sight of the fact that the applicant has never applied to an ordinary court or any other authority seeking a recalculation of the length of his service, and a determination of the effect that such calculation would have on his pension rights. In such circumstances, the question of whether there has been a genuine and serious dispute over a civil right remains open. However, the Court is not obliged to decide on this matter, since even assuming that there was a dispute over such a right , the complaint is inadmissible for other reasons (compare with Roshka v. Russia (dec.), no. 63343/00 , 6 November 2003).

31 . In the present case the procedure before the Constitutional Court did not extend beyond an exchange of letters with its secretariat (see paragraph 29 above). This exchange served to alert the applicant of the possible grounds of inadmissibility, but it did not replace or preclude the Constitutional Court ’ s proper ruling on the matter. There were no formal grounds to prevent the applicant from seeking such review, as demonstrated by relevant practice (see paragraphs 18-19 above). In view of this, the exchange of letters with the Constitutional Court ’ s secretariat cannot be considered as a procedure that would be directly decisive for the contents of any dispute.

33 . Accordingly, this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION

34 . The applicant further complained that the Government Decree in question had violated his right under Article 14 not to be discriminated in the enjoyment of the rights guaranteed by the Convention.

35 . Given the above conclusion that the complaint under Article 6 is incompatible ratione materiae with the provisions of the Convention, the complaint under Article 14 should also be declared incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4 .

For these reasons, the Court, unanimously ,

Declares the application inadmissible.

Done in English and notified in writing on 21 November 2019 .

Stephen Phillips Paul Lemmens Registrar President