FIFTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 5598/03 by Vladimir Borisovich LISICHENKO against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 23 August 2011 as a Chamber composed of:

Dean Spielmann , President, Elisabet Fura , Karel Jungwiert , Boštjan M. Zupančič , Mark Villiger , Angelika Nußberger , judges, Mykhaylo Buromenskiy , ad hoc judge, and Claudia Westerdiek, Section Registrar ,

Having regard to the above application lodged on 30 January 2003,

Having regard to the partial decision of 16 September 2008 ,

Having regard to the parties ’ submissions ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Vladimir Borisovich Lisichenko, is a Ukrainian national who was born in 1954 and lives in Mariupol. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev .

A. The circumstances of the case

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

In June 2003 the applicant instituted proceedings in the Ordzhonikidzevskyy District Court of Mariupol against the Head of the local department of the Pension Fund, seeking recalculation of his pension. In his claim the applicant stated, in particular, that under Article 46 of the Constitution he was entitled to a pension equal to the amount of minimum living standard. However, his pension was lower than the standard effective at the relevant time.

On 19 September 2003 the court rejected the applicant ’ s claim as unfounded, stating that the amount of his pension had been determined correctly under the applicable provisions of the pension legislation. It further specified that the applicant ’ s pension could not be topped up to the amount of minimum living standard as this had not been provided for in the pension legislation.

On 22 December 2003 the Donetsk Regional Court of Appeal upheld the decision of 19 September 2003, noting that the applicable pension legislation did not provide for an increase of the applicant ’ s pension to the amount of minimum living standard.

On 20 December 2006 the Higher Administrative Court upheld the decisions of the lower courts, after finding that the applicant ’ s pension had been determined in accordance with pension legislation.

B. Relevant domestic law

The relevant domestic law is set out in the judgment case of Pronina v. Ukraine (no. 63566/00, §§ 13-19, 18 July 2006).

COMPLAINT

The applicant complained that the domestic courts failed to consider his argument that the amount of his pension had been determined contrary to the requirements of the Constitution.

THE LAW

The applicant alleged that the decisions of the domestic courts lacked reasoning, as they did not address the issue of compatibility of his pension with the requirements of the Constitution. In particular, he claimed that the domestic courts had failed to take into account Article 46 of the Constitution, according to which his pension should have been increased to the minimum living standard. The applicant did not refer to any particular provision of the Convention.

The Court decided to examine the complaint under Article 6 § 1 of the Convention, which , in so far as relevant, reads as follows:

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

The Government did not provide any objections as to the admissibility of the complaint.

The applicant insisted that the complaint was admissible.

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 o fficial interpretation of a law. N either does it guarantee any right to have a case referred by a domestic co urt to another national or international authority for a preliminary ruling (see Pronina , cited above , § 24 ) . In its Pronina judgment the Court has already stated that i n the Ukrainian legal system, where a physical person has no right of individual petition to the Constitutional Court, it is for the domestic courts to look into the issue of the compatibility of legal acts with the Constitution and, in case of doubt, to request that constitutional proceedings be initiated. 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, t he 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 ( ibid. § 24 ).

The Court further notes that it is not its task to act as a court of appeal or, as is sometimes stated, as a court of fourth instance, 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. I t is the domestic courts which are best placed to assess the credibility of witnesses and the relevance of evidence to the issues in the case (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 domestic authorities to increase his pension had not been in compliance with the requirements set forth, in particular, in Article 46 of the Constitution . However, u nlike in the case of Pronina, the court s gave a n answer to this claim , namely that his pension was determined in line with the specific provisions of the pension legislation, which did not provide for the topping up of the pension to the amount of the minimum living standard (referred to in Article 46 of the Constitution). It follows from the reasons given by the domestic courts that they were well aware of the applicant ’ s contention about the alleged inconsistency between the pension legislation and the Constitution, but that they saw no reason to use their discretionary power to bring a case before the Constitutional Court (see, also, Tatenko v. Ukraine ( dec.) no. 14198/02, 2 October 2007 and Vavrenyuk v. Ukraine (dec.) no. 30698/04 , 14 October 2008 ).

In view of these circumstances the Court is of the opinion that the domestic courts sufficiently addressed the applicant ’ s argument about the compliance of his pension with the requirements of the Constitution. The Court further observes that its role is not to reconsider issues under the national law which have been determined by the domestic courts. It follows that this complaint is manifestly ill-founded and should be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares inadmissible the remainder of the application.

             Claudia Westerdiek Dean Spielmann Registrar President