FIFTH SECTION

DECISION

Application no . 24686/12 Yuriy Vladimirovich PORTYANKO against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 6 October as a Chamber composed of:

Josep Casadevall, President, Angelika Nußberger , Boštjan M. Zupančič , Ganna Yudkivska , Helena Jäderblom , Aleš Pejchal , Síofra O ’ Leary, judges,

and Claudia Westerdiek, Section Registrar ,

Having regard to the above application lodged on 13 April 2012,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Yuriy Vladimirovich Portyanko , is a Ukrainian national, who was born in 1961 and lives in Bakaly . He was represented before the Court by Ms M.Y. Bogdanovich , a lawyer practising in Kyiv.

A. The circumstances of the case

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

On 22 May 2008 the Constitutional Court declared unconstitutional several provisions of the Law on 2008 State Budget and Amendments to Certain Legislative Acts which had been the basis for re-calculation and eventual decrease of the applicant ’ s Chornobyl pension.

In July 2011, referring to the above decision of the Constitutional Court, the applicant lodged a civil claim with the Pecherskyy District Court of Kyiv against the State Treasury, complaining that as from 1 January 2008 the amount of his Chornobyl pension was too low contrary to the Constitution and seeking damages caused by a legislative act which had decreased his pension and later had been recognized unconstitutional. He invoked Articles 1173 and 1175 of the Civil Code in this respect.

By judgment of 18 July 2011, the District Court rejected the applicant ’ s claim on the ground that the conditions and mechanisms for implementation of the provisions of Articles 1173 and 1175 of the Civil Code had not been established by the legislation. Furthermore, the court noted that the applicant did not prove any damage caused to him, given that he alleged damages to have been sustained as from 1 January 2008, whilst the provisions found unconstitutional lost their legal force on 22 May 2008.

On 21 September 2011 and 18 October 2011 respectively the Kyiv City Court of Appeal and the Higher Specialised Court for Civil and Criminal Matters upheld the decision of the first-instance court confirming: that the applicant failed to meet the conditions laid down by Articles 1173 and 1175; and that compensation for material damage as guaranteed by Articles 1173 and 1175 would only have been possible if a special law establishing the conditions and procedure for such compensation had been enacted. The court of appeal noted in particular that, in the circumstances referred to by the claimant, the possibility of obtaining compensation in respect of pecuniary damage is linked to the existence of legislation establishing the specific conditions and the relevant procedure. It concluded that, as such legislation did not exist, the first-instance court had rightly decided that the applicant ’ s claims were unfounded.

B. Relevant domestic law

1. Civil Code

The Civil Code, which came into force in 2004, lays down different obligations as to compensation in respect of damage. Among others, two articles, namely Articles 1173 and 1175, relied on by the applicant in the domestic proceedings, provide for the State to compensate the victims of unlawful decisions of State authorities. The articles in question provide as follows:

Article 1173

Compensation for pecuniary damage caused by a public authority, an authority of the Autonomous Republic of Crimea or a local self-governance authority

“1. Pecuniary damage caused to a natural person or legal entity by unlawful decisions, actions or omissions of State authorities, authorities of the Autonomous Republic of Crimea or local self-governance authorities in the course of the exercise of their powers shall be compensated for by the State, the Autonomous Republic of Crimea or local self-governance regardless of the fault of these bodies.”

Article 1175

Compensation for pecuniary damage caused by a State authority, an authority of the Autonomous Republic of Crimea or a local self-governance authority within the scope of law-making activity

“1. Pecuniary damage caused to a natural person or legal entities as a result of adoption by State authorities, authorities of the Autonomous Republic of Crimea or a local self-governance authority of a normative-legal act that was declared illegal and annulled, shall be compensated for by the State, the Autonomous Republic of Crimea or the local self-governance authority regardless of the fault of officers and employees of these bodies.”

2. Decision of the Constitutional Court of Ukraine of 22 May 2008 (case on subject-matter and content of the State Budget Act)

“5. Provisions of the Law on 2008 State Budget and Amendments to Certain Legislative Acts, found unconstitutional, lose their legal force from the date when this decision has been adopted by the Constitutional Court of Ukraine.”

COMPLAINTS

Invoking Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1, the applicant complained about the refusal of the domestic courts to order compensation for damage under Articles 1173 and 1175 of the Civil Code and to elaborate the procedure for the provision of such compensation.

THE LAW

1. The applicant complained that he had not received any compensation for the damage sustained, as guaranteed by Articles 1173 and 1175 of the Civil Code, as no legislation had been enacted to establish the procedure for granting such compensation. He relied on Article 1 of Protocol No. 1, which 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 Court reiterates that Article 1 of Protocol No. 1 protects “possessions”, which can be either “existing possessions” or assets, including claims, in respect of which the applicant can argue that he or she has at least a “legitimate expectation” of obtaining effective enjoyment of a property right. It does not, however, guarantee the right to acquire property or the right to compensation (see, James and Others v. the United Kingdom , 21 February 1986, § 64, Series A no. 98; J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd v. the United Kingdom [GC], no. 44302/02, § 61, ECHR 2007-I, and Kopecký v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004-IX). Where a proprietary interest is in the nature of a claim, the person in whom it is vested may be regarded as having a “legitimate expectation” if there is a sufficient basis for the interest in national law, for example where there is settled case-law of the domestic courts confirming its existence (see, Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 65, ECHR 2007-I, and Kopecký , cited above, § 52). No legitimate expectation can be said to arise where there is a dispute as to the interpretation and application of domestic law and the applicant ’ s submissions are subsequently rejected by the national courts (see, Kopecký , cited above, § 50).

In order to create a legitimate expectation, the legal provision relied upon must determine the necessary rules for a claim. If the legal conditions to be met and the other parameters of a claim are not clearly defined, the legal provision in question cannot be said to serve as a basis for a legitimate expectation (see, Klaus and Iouri Kiladze v. Georgia , no. 7975/06, §§ 58-60, 2 February 2010). At the same time, in a situation where the lack of a procedure governing the payment of compensation was the only obstacle to a person ’ s otherwise clear entitlement to a particular type of compensation under the law, the Court considered that such person could be said to have a claim sufficiently established to be enforceable and could validly claim its recovery against the State (see, mutatis mutandis, Zolotyuk v. Ukraine ( dec. ), no. 3958/13, 16 December 2014; Petlyovanyy v. Ukraine ( dec. ), no. 54904/08, 30 September 2014, with further references).

The Court notes that Articles 1173 and 1175 of the Civil Code concerning compensation for persons affected by unlawful decisions of State authorities are couched in very general terms which makes their implementation dependent on further clarification of the conditions to be met and procedure to be followed in order to quantify and obtain such compensation. Even though, unlike other compensatory provisions of the Code previously analysed by the Court, the provisions of Articles 1173 and 1175 are not followed by the clauses stating that “the conditions and procedure governing State compensation ... shall be established by law” (see, Zolotyuk and Petlyovanyy , both cited above), it is apparent from the wording of these provisions that the entitlement of the persons affected by unlawful decisions of State authorities to such compensation is dependent on further elaboration of the procedure to be followed and the conditions for obtaining such compensation. Furthermore, the domestic courts at all levels have interpreted those provisions in the same way, that is in the absence of a law setting forth such conditions, no right to compensation can arise under Articles 1173 and 1175 taken alone. The Court does not see any convincing argument to depart from this finding. A procedure for awarding and paying such compensation and calculating its amount has not been established by the Civil Code or by any other domestic legislation so far. The Court has already found that, in the absence of special law establishing further conditions and procedure for compensation of damage by a State authority, other similar provisions of the Civil Code of Ukraine on compensation do not create legitimate expectations for the applicant within the meaning of Article 1 of Protocol No. 1 (see, mutatis mutandis, Zolotyuk and Petlyovanyy , both cited above).

As the applicant did not have a sufficiently established claim to compensation for the purposes of Article 1 of Protocol No. 1, he cannot argue that he had a “legitimate expectation” of obtaining any specific sums. It follows that 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.

2. Invoking Articles 6 and 13 of the Convention the applicant complained about the refusal of the domestic courts to order compensation of damage from the State under Articles 1173 and 1175 of the Civil Code.

The Court recalls that it is not its task to act as an appeal court of “fourth instance” by calling into question the outcome of the domestic proceedings. The domestic courts are best placed to interpret and apply rules of substantive and procedural law (see, amongst many authorities, Gurepka v. Ukraine , no. 61406/00, § 45, 6 September 2005). It appears that the domestic courts examined the applicant ’ s claims and rejected them while giving sufficient reasons for their decisions. Their decisions do not appear to be arbitrary or manifestly unreasonable.

It follows that this part of the application must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Done in English and notified in writing on 29 October 2015 .

             Claudia Westerdiek Josep Casadevall Registrar President