FIFTH SECTION

DECISION

Application no . 44977/09 Aleksandr Nikolayevich KISLYAK against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 11 December 2012 as a Chamber composed of:

Mark Villiger , President, Ann Power-Forde , Ganna Yudkivska , André Potocki , Paul Lemmens , Helena Jäderblom , Aleš Pejchal , judges, and Claudia Westerdiek , Section Registrar ,

Having regard to the above application lodged on 4 August 2009,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Aleksandr Nikolayevich Kislyak , is a Ukrainian national, who was born in 1952 and lives in Koblenz , Germany .

A. The circumstances of the case

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

In 1992 the applicant retired and started receiving a pension.

On 12 October 2003 the applicant emigrated to Germany . Before his departure, he had been paid his pension for six months in advance (12 October 2003 – 11 April 2004) with consecutive termination of payments in accordance with Article 92 of the Law on Pensions.

On 28 August 2006 the applicant wrote to the Mykolayiv Central District Pension Fund Department (the District Department) claiming that the termination of his pension payments had been unlawful and contrary to the provisions of the Constitution and asking to explain to him the reasons for the termination of pension payments.

In a letter of 5 September 2006, the head of the District Department informed the applicant that under the Pensions Act Ukrainian citizens living abroad receive pension on the basis of international treaties with other States and that no such treaty had been concluded with Germany . As the applicant did not have any document confirming his permanent residence in Ukraine , there were no grounds to renew his pension payments.

On 23 October 2006 the applicant lodged an administrative complaint with the Mykolayiv Central District Court against the District Department for its refusal to pay his pension. He maintained, in particular, that Article 24 of the Constitution guaranteed equal rights to all Ukrainian citizens and Article 46 provided for their social protection, and therefore he considered that the refusal of the District Department violated his rights.

On 7 December 2006 the first-instance court rejected his complaint. It found, in particular, that the procedure of pension payments provided by the Pensions Act was not contrary to the constitutional provisions invoked and the courts were not in a position to change the procedure of pension payments provided by law. It further noted that if the authorities were to grant him pension payments they would create inequality between him and other pensioners residing abroad.

On 2 April 2007 the Mykolayiv Regional Court of Appeal upheld the first-instance court ’ s decision. It agreed with the findings and reasoning of the lower court and noted that Article 24 of the Constitution would be violated if the applicant was granted the privilege of different treatment.

On 11 February 2009 the Higher Administrative Court upheld the decision of the lower courts. It noted, in particular, that the applicant referred to unconstitutionality of termination of pension payments upon his emigration abroad, however, the impugned provisions of the Pensions Act were valid, had not been repealed or found unconstitutional, and therefore they were binding for all individuals and institutions throughout the territory of Ukraine.

B. Relevant domestic law

1. Constitution of Ukraine of 1996

Article 24

“Citizens have equal constitutional rights and freedoms and are equal before the law.

There shall be no privileges or restrictions based on race, colour of skin, political, religious and other beliefs, sex, ethnic and social origin, property status, place of residence, linguistic or other characteristics...”

Article 46

“Citizens have the right to social protection that includes the right to subsistence in cases of complete, partial or temporary disability, the loss of the principal wage-earner, unemployment due to circumstances beyond their control and also in old age, and in other cases established by law...

... 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. Constitutional Court Act of 16 October 1996

Section 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.

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

3. Pensions Act of 5 November 1991

Section 92. Payment of pensions to citizens who have moved abroad.

“Pensions shall not be granted to citizens whose permanent residence is abroad.

Pensions granted in Ukraine as a lump sum before departure for permanent residence abroad shall be paid 6 months in advance of departure abroad. During the stay of these citizens abroad only pensions granted for professional disability or illness shall be payable.

The procedure of transferring the pensions granted for professional disability or illness to other countries shall be established by the Cabinet of Ministers of Ukraine.”

4. General State Pension (Obligatory Insurance) Act of 9 July 2003

Section 49

Termination and resumption of pension payments

“1. The payment of pension shall be terminated by a decision of the territorial bodies of the Pension Fund or by a court:

...

2) for the duration of residence of the retired person abroad, unless otherwise stipulated by international treaties of Ukraine ratified by the Verkhovna Rada of Ukraine ......”

Section 51

Payment of pension in the event of emigration

“In the event of departure of a retired person for permanent residence abroad, a pension granted in Ukraine shall be paid for six months in advance before departure, from the month following the month when the person registered as leaving their place of residence. While he is abroad the pension shall be paid there provided that there is provision to do so in an international treaty of Ukraine ratified by the Verkhovna Rada of Ukraine .”

5. 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)

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

In case of doubt as to the conformity of a particular law with the Constitution of Ukraine, as applied or applicable in a case, the court, upon the request 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 conformity of laws and other legal acts with the Constitution. Such decisions can be taken by a first instance court, court of cassation or a court which is considering a case under the supervisory review procedure...”

COMPLAINT

The applicant complained under Article 6 § 1 of the Convention that the domestic courts failed to examine all his arguments and to analyse his complaints from the viewpoint of the constitutional provisions he had referred to.

THE LAW

The applicant complained that the domestic courts had misapplied and misinterpreted the relevant pension law and had failed to apply Articles 24 and 46 of the Constitution in his case. He relied on Article 6 § 1 of the Convention which provides as relevant:

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

The Court reiterates that the Convention does not guarantee, as such, a right of access to a court with competence to invalidate or override a law, or to give an official interpretation of a law (see, mutatis mutandis , Gorizdra v. Moldova ( dec .), no. 53180/99, 2 July 2002 and James and Others v. the United Kingdom , judgment of 21 February 1986, Series A no. 98, § 81). In the Ukrainian legal system, while a physical person can file a constitutional appeal with the Constitutional Court in order to obtain, subject to that c ourt ’ s discretion to accept the case or not, an official interpretation of the Constitution or the laws of Ukraine (Sections 13 § 4, 42 and 43 of the Constitutional Court Act), such a person cannot file a constitutional petition in order to obtain an opinion on the constitutionality of laws (Sections 13 § 1, 39 and 40 of the Constitutional Court Act). It is for the domestic courts to look into the issue of the compatibility of laws with the Constitution and, in case of doubt, to request that constitutional proceedings be initiated (Section 83 of the Constitutional Court Act; see also Resolution of the Plenary of the Supreme Court of Ukraine of 1 November 1996 on the Application of the Constitution of Ukraine on the Administration of Justice). From the relevant legislation, however, this system could not be understood as requiring the ordinary courts to examine in detail any issue of constitutionality raised by a party to the civil proceedings, or obliging them to refer every such issue of constitutionality to the Constitutional Court. It appears that the courts of general jurisdiction exercise some discretion in dealing with issues of constitutionality which have been raised in the framework of civil proceedings. Therefore, the question whether a court has failed to provide reasons for its judgment in this respect can only be determined in the light of the circumstances of the case (see Pronina v. Ukraine , no. 63566/00, § 24, 18 July 2006) .

The Court further observes that it is not its task to act as a court of appeal in respect of the decisions taken by domestic courts. It is the role of the domestic courts to interpret and apply the relevant rules of procedural or substantive law (see, among many other authorities, the judgments in Vidal v. Belgium , 22 April 1992, Series A no. 235-B, pp. 32-33, § 32, and Edwards v. the United Kingdom, 16 December 1992, Series A no. 247-B, § 34).

In the instant case, the applicant claimed that the refusal of the Pension Fund Department to resume payment of his pension was not in compliance with the Constitution of Ukraine. Unlike in the case of Pronina , the domestic courts gave a very clear answer to this claim, namely, that section 92 of the Pensions Act was a valid legal act which had not been found unconstitutional. They further noted that asking the courts to decide contrary to the law would create a privilege to the applicant contrary to Article 24 of the Constitution. Given that it is the role of the domestic courts to interpret and apply domestic law, it is not for the Court to attempt to re ‑ determine the issues in the light of domestic legislation.

It follows that this application must be rejected as being manifestly ill ‑ founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

For these reasons , the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Mark Villiger Registrar President