FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 30698/04 by Stanislav Oleksandrovych VAVRENYUK against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 14 October 2008 as a Chamber composed of:

Rait Maruste , President, Karel Jungwiert , Volodymyr Butkevych , Renate Jaeger , Mark Villiger , Isabelle Berro-Lefèvre , Mirjana Lazarova Trajkovska , judges, and Claudia Westerdiek, Section Registrar ,

Having regard to the above application lodged on 9 August 2004,

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, Mr Stanislav Oleksandrovych Vavrenyuk, is a Ukrainian national who was born in 1939 and lives in Kirovograd . The Ukrainian Government (“the Government”) were represented by Mr . Y. Zaytsev, their Agent.

A. The circumstances of the case

On 4 March 2002 the applicant instituted proceedings in the Leninskyy District Court of Kirovograd against the local welfare department challenging the refusal of the latter to increase his pension in accordance with the Constitution and the Pensions Act.

On 5 July 2002 the Leninsk y y District Court of Kirovograd rejected the applicant ' s claim as unsubstantiated, stating, inter alia , that the applicant ' s pension had been determined correctly.

The applicant appealed against this decision, claiming that the first-instance court had failed to apply the relevant pension law and had disregarded Article 46 of the Constitution.

On 12 November 2002 the Kirovograd Regional Court of Appeal upheld the judgment of the first-instance court. In reply to the applicant ' s argument about the applicability of Article 46 of the Constitution instead of relevant pension law the court of appeal noted that the local welfare department had acted in accordance with the applicable provisions of the pension legislation, while the question of compliance of such legal provisions with the Constitution fell within the competence of the Constitutional Court rather than the ordinary courts.

On 13 November 2004 the Supreme Court rejected the applicant ' s request for leave to appeal in cassation. The applicant did not ask any of the courts dealing with his case to suspend the proceedings in the case and take measures to bring the above issue of constitutionality before the Constitutional Court .

B. Relevant domestic law and practice

The relevant domestic law and practice are set out in the Court ' s judgment in the case of Pronina v. Ukraine ( no. 63566/00, 18 July 2006 ) and the decision in the case of Tatenko v. Ukraine (no. 14198/02, decision of 2 October 2007).

COMPLAINTS

The applicant complain ed under Article 6 § 1 and 13 of the Convention that the domestic courts had wrongly applied the law in his case. The applicant further complain ed under Article 6 § 1 of the Convention that his case had not been heard in public and that the proceedings in his case had lasted unreasonably long . The applicant finally complain ed that the refusal to grant him a higher amount of pension constituted a violation of Article 1 of Protocol No. 1.

THE LAW

1. Alleged lack of reason ing in the domestic courts ' decisions

The applicant complained that the domestic courts had failed to consider his arguments in full, in particular that the amount of his pension had to be determined in accordance with Article 46 of the Constitution. He relied on Article 6 § 1 and 13 of the Convention, which read, in so far as relevant, as follows:

Article 6 § 1

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

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Government maintained that the applicant could have requested the domestic courts to refer the issue of constitutionality of the disputed pension law provisions to the Constitutional Court , but had failed to do so. Therefore, the applicant had not exhausted the remedies available to h im under domestic law. They also maintained that the issue o f the constitutionality of legislative acts fell outside the jurisdiction of the ordinary courts and, therefore, the fact that they did not examine the issue of constitutionality did not violate the applicant ' s right to a fair hearing.

The applicant disagreed. He argued that it was an obligation of the domestic courts to refer the issue of constitutionality of the disputed pension law provisions to the Constitutional Court . He further claimed that the domestic courts had failed to decide his case in conformity with the Constitution.

The Court reiterates 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, amongst 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).

Further, 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 v. Ukraine , no. 63566/00, § 24, 18 July 2006 ) . 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 of Ukraine, 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 ( see Pronina v. Ukraine , cited above , § 24 ).

In the instant case the applicant claimed that the refusal of the local welfare department to increase his pension had not been in compliance with the Constitution. However, u nlike in the case of Pronina, the court of appeal gave a very clear answer to this claim, namely, that the refusal had been in accordance with the applicable provisions of the pension legislation, while the question of compliance of such legal provisions with the Constitution fell within the competence of the Constitutional Court rather than the ordinary courts. It follows from the reasons given, in particular, by the Court of Appeal in the present case that the domestic courts were well aware of the applicant ' s complaint that the legal provisions were not compatible with the Constitution, but that they saw no reasons to use their discretionary power to bring a case before the Constitutional Court . It is also the case that the applicant, who could have submitted a request to the domestic courts to bring this issue before the Constitutional Court , did not avail himself of the opportunity.

In view of these circumstances the Court is of the opinion that the domestic courts addressed the applicant ' s argument about the applicability of Article 46 of the Constitution in his case. The Court further recalls that its role is not to reconsider the issues under the national law that have been determined by the domestic courts. It follows that this complaint is manifestly ill-founded. Therefore, no separate issue under Article 13 of the Convention arises either.

Accordingly this part of the application must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

2. Alleged lack of public hearing and length of proceedings

The applicant complained that the domestic courts had failed to hold hearings in public and that the proceedings in his case had lasted unreasonably long. He relied on Article 6 § 1 of the Convention which reads in so far as relevant as follows:

Article 6

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

To the extent that the applicant complained about the lack of public hearing without giving further details, the Court considers the matter to be wholly unsubstantiated. As to the applicant ' s complaint about the length of the proceedings at issue, the Court notes that these proceedings lasted in total less than two years involving three court instances . The Court finds no discernible period of inactivity which c ould be attributed to the domestic courts . It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3. Alleged violation of property rights

The applicant complained under Article 1 of Protocol No. 1, arguing that h is right to a higher pension had been violated . 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 Court has previously held that entitlement to a welfare benefit, 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 Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, ECHR 2005 ‑ ... and the case-law referred to there). 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 his entitlement to a pension as such, but his 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.

For these reasons, the Court unanimously

Declares the application inadmissible.

             Claudia Westerdiek Rait Maruste Registrar President