FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 3460/03 by Vera Vasilyevna SHEIDL against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 25 March 2008 as a Chamber composed of:

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

Having regard to the above application lodged on 14 January 2003,

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, Ms Vera Vasilyevna Sheidl, is a Ukrainian national who was born in 1945 and lives in Vienna , Austria . She was represented before the Court by Mr I. A. Fominskiy, who lives in Vinnitsa . The Ukrainian Government (“the Government”) were represented by their Agent, Mrs V. Lutkovska, of the Ministry of Justice .

A. The circumstances of the case

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

In April 1996 the applicant, a retired prosecutor, started receiving a pension.

In June 2001 the applicant married an Austrian national and decided to move abroad for permanent residence.

On 15 October 2001, the applicant informed the Zamostyansky District Social Welfare Department (hereinafter – “the District Department”) of her intention to leave the country for permanent residence in Austria and requested that they pay her a lump sum of six months ’ pension in advance in accordance with section 92 of the Ukraine Pensions Act ( Закон України « Про пенсійне забезпечення » ) . The above provision of the Act also provided that her pension payments would subsequently terminate.

By a decision of 1 November 2001, the head of the District Department ordered the above payment to the applicant and the subsequent termination of pension payments in accordance with section 92 of the Pensions Act.

On 15 November 2001 the applicant wrote to the District Department claiming that the termination of her pension payments had been unlawful and contrary to the provisions of the Constitution.

In a letter of 23 November 2001, the head of the District Department informed the applicant that the contested provision of the Pensions Act was the only legal norm regulating this type of situation and that this provision had not been declared unconstitutional. He further informed the applicant that he was not competent to decide on the conformity of law with the Constitution and that the Constitutional Court alone could decide on the issue of constitutionality and invalidate provisions of any law which it found unconstitutional.

On 19 August 2002 the applicant wrote in similar terms to the Vinnitsa Regional Social Welfare Department but to no avail.

On 23 August 2002 the applicant lodged a claim against the District Department in the Zamostyansky District Court of Vinnitsa seeking resumption of her pension payments and compensation for pecuniary and non-pecuniary damage.

On 30 September 2002 the court found against the applicant, having held that the Social Welfare Department had applied section 92 of the Pensions Act correctly in the applicant ’ s case. The court noted, inter alia , that the Constitution of Ukraine contained general norms which were further detailed in specific legislation like the Pensions Act.

The applicant appealed against the decision of the first-instance court to the Vinnitsa Court of Appeal. In her appeal the applicant maintained that section 92 of the Pensions Act, which had been passed prior to the Constitution, was contrary to the constitutional provisions on prohibition of discrimination and limitation of rights guaranteed by the Constitution and was therefore invalid.

By a decision of 14 November 2002, the Court of Appeal upheld the decision of the first-instance court. It repeated the findings of the first- instance court and noted that section 92 of the Pensions Act remained unchanged and valid.

The applicant appealed in cassation.

On 31 October 2003 a panel of three judges of the Supreme Court of Ukraine rejected the applicant ’ s appeal in cassation and upheld the decisions of the lower courts.

B. Relevant domestic law and practice

1. Constitution of Ukraine of 1996

Article 8

“... The norms of the Constitution of Ukraine are norms of direct effect. Appeals to the court in defence of the constitutional rights and freedoms of the individual and citizen directly on the grounds of the Constitution of Ukraine are guaranteed.”

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 la w...

... 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.”

Article 147

“The Constitutional Court of Ukraine is the sole body of constitutional jurisdiction in Ukraine .

The Constitutional Court of Ukraine decides on issues of conformity of laws and other legal acts with the Constitution of Ukraine, and provides the official interpretation of the Constitution of Ukraine and the laws of Ukraine .”

Article 150

“The jurisdiction of the Constitutional Court of Ukraine encompasses:

1) deci sions on issues of conformity with the Constitution of Ukraine (the constitutionality) of the following:

- laws and other legal acts of the Verkhovna Rada [Parliament] of Ukraine ;

- acts of the President of Ukraine;

- acts of the Cabinet of Ministers of Ukraine;

- legal acts of the Verkhovna Rada of the Autonomous Republic of Crimea.

These issues are considered on the appeals by: the President of Ukraine; at least forty-five national deputies of Ukraine; the Supreme Court of Ukraine; the Authorised Human Rights Representative of the Verkhovna Rada of Ukraine; the Verkhovna Rada of the Autonomous Republic of Crimea;

2) the official interpretation of the Constitution of Ukraine and the laws of Ukraine ;

On issues envisaged by this Article, the Constitutional Court of Ukraine adopts decisions that are mandatory for execution throughout the territory of Ukraine , are final and are not subject to appeal.”

2. The Code of Civil Procedure of 1963 (repealed as of 1 September 2005 )

Article 11 of the Code provided that courts should decide a case on the basis of the Constitution, other legislative acts or the international treaties to which Ukraine was a party , under the procedure provided for in the Code.

Article 202 of the Code provided that a court decision should mention the facts of the case established by the court, evidence on which the court ’ s conclusion was based, and reasons for accepting or rejecting this or that argument, as well as the laws applied by the court.

3. 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.”

Section 94. Ground for a constitutional appeal

“The ground for a constitutional appeal in order to obtain an official interpretation of the Constitution of Ukraine and laws of Ukraine is a lack of uniform application of provisions of the Constitution or laws by the courts of Ukraine, or other organs of State authorities, if the subject of the right to a constitutional appeal considers that it may lead or has led to a violation of his or her constitutional rights and freedoms.”

4 . 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. C ourt 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 co nformity 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 ...”

5 . Pensions Act of 5 November 1991

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

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

P ensions 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. ”

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention about the conclusions of the domestic courts. She further complained that she was deprived of her pension in violation of Article 1 of Protocol No. 1 and that this amounted to discrimination. She finally relied on Article 12 of the European Social Charter.

THE LAW

1. The applicant complained that the domestic courts had applied the provisions of section 92 of the Pensions Act unlawfully in her case, because, in the applicant ’ s opinion, these provisions were unconstitutional. She relied on Article 6 § 1 of the Convention , which provides in so far as relevant:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law.”

The Government maintained that the ordinary courts did not have the jurisdiction to consider the laws or repeal them and, therefore, the fact that the ordinary courts had not examined the issue of constitutionality did not interfere with the applicant ’ s right to a fair hearing. They further maintained that the domestic courts had answered the applicant ’ s arguments to the extent they were competent to do so.

The applicant disagreed. She maintained that she had not sought official interpretation of the Constitution but had requested the courts to apply the constitutional provisions directly, notwithstanding the relevant provisions of the Pensions Act, the latter being unconstitutional in her opinion. She further maintained that if the domestic authorities had needed interpretation of the relevant provisions of the Constitution they could have applied themselves to the Constitutional Court .

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, 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 laws 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 , 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 King dom , 16 December 1992, Series A no. 247-B, § 34).

In the instant case, the applicant claimed that the refusal of the Social Welfare Department to resume payment of her pension had not been 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 regarded as specific legislation enacted in the light of the principles laid down in 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 th is complaint must be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

2. The applicant further complained that she was deprived of her pension unlawfully. She referred to Article 1 of Protocol No. 1 and, in substance, Article 14 of the Convention, which read as follows:

Article 14

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

Article 1 of Protocol No. 1

“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 Government raised an objection as to the admissibility of the applicant ’ s complaints under Article 14 of the Convention and Article 1 of Protocol No. 1. They maintained that the applicant had been aware of the impugned provisions of section 92 of the Ukraine Pensions Act in November 2001 at the latest when the above provision had been applied to her. The Government considered that in the instant case the six months ’ period should be calculated from 1 November 2001, namely from the date when she became aware of the alleged infringement of her rights.

Alternatively, the Government maintained that the applicant could have raised her complaint before the Constitutional Court of Ukraine, which was the sole body of constitutional jurisdiction in Ukraine . Having failed to do so, the applicant had not exhausted the remedies available to her under domestic law.

The applicant disagreed with the Government. She maintained that the Government had contradicted themselves in claiming that she had lodged her application too late and that she had not exhausted remedies available to her under domestic law.

The Court reiterates its constant case-law that given that the courts of general jurisdiction in Ukraine, including the Supreme Court, do not have power to override the law (see, among many authorities, Voytenko v. Ukraine , no. 18966/02, § 30 , 29 June 2004 and Glova and Bregin v. Ukraine , nos. 4292/04 and 4347/04, § 14 , 28 February 2006 ), individuals do not have an effective domestic remedy against a statutory provision which encroaches upon their Convention rights, since the Ukrainian legal system does not provide an individual with a right of individual petition to the Constitutional Court of Ukraine, which is the only jurisdiction empowered to repeal a statutory provision (see, Pronina cited above ). The Court notes that the applicant ’ s complaint directly concerns statutory provisions which are clear and unambiguous. The essence of the applicant ’ s complaint was that these statutory provisions were unconstitutional and that the judicial proceedings in the courts of general jurisdiction which have been examined above could not lead to these statutory provisions being over - rid d en. Therefore, in the Court ’ s view, the applicant had no remedy which could be considered effective in the circumstances of her case and her recourse to the ordinary courts confirmed these findings.

The Court therefore rejects the Government ’ s objection as to non-exhaustion of domestic remedies. At the same time, the Court reiterates that the six-month time-limit in principle runs from the date of the act complained of, if no remedies are available or if they are judged to be ineffective (see Hazar and O thers v. Turkey (dec.), no. 62566/00, 10 January 2002).

The Court observes that under the Pensions Act the applicant, when leaving Ukraine for permanent residence abroad, requested on 15 October 2001 the social welfare department to pay her pension six months in advance of her departure and that subsequently the payment of her pension was suspended as of 1 November 2001. Therefore, the act of which the applicant complained took place on 1 November 2001, when she became aware that the further payment of her pension had been terminated under section 92 of the Pensions Act.

The Court considers that, in these circumstances, the six-month time-limit ran from 1 November 2001, when the applicant learned about the termination of her pension payments. The applicant was fully aware of the system, having made the request for advance payment herself, and in this situation she was not permitted to await the outcome of the ensuing court proceedings, and if need be she should have asked for legal advice. Given that this application was lodged more than a year later, on 14 January 2003 , the Court concludes that the applicant ’ s complaints under Article 14 of the Convention and Article 1 of Protocol No. 1 have been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

3. The applicant finally complained of a violation of Article 1 2 of the European Social Charter. The Court notes that these complaints are outside the competence of the Court.

It follows that these complaints are incompatible ratione materiae and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia W esterdiek Peer L orenzen Registrar President