FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 20889/02 by Yaroslav Mykhaylovych NESTOROVYCH against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 23 October 2007 as a Chamber composed of:

Mr P. Lorenzen , President , Mrs S. Botoucharova , Mr V. Butkevych , Mrs M. Tsatsa-Nikolovska , Mr R. Maruste , Mr J. Borrego Borrego , Mr M. Villiger, judges , and Ms C. Westerdiek , Section Registrar ,

Having regard to the above application lodged on 18 April 2002,

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 Yaroslav Mykhaylovych Nestorovych, is a Ukrainian national who was born in 1942 and lives in the city of Ternopil . 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.

1. Background of the case

On 9 September 1944 the Polish Committee of National Liberation and the former Soviet Socialist Republic of Ukraine concluded an agreement on the mutual resettlement of Ukrainians from Poland and Poles from Ukraine .

On 28 September 1945 the applicant ’ s family was moved from the Przemysl region in Poland to the Ternopil region in Ukraine .

On 22 December 1995, the Verkhovna Rada (Parliament) of Ukraine introduced amendments to the Act “on the Status of War Veterans and their Social Welfare Benefits” of 22 October 1993 (hereafter “the War Veterans Act”, see Relevant domestic law), granting war participant status to some new categories of people and mentioning for the first time people who had been resettled to Ukraine from other States.

2. Proceedings to obtain war participant status

In October 2001 the applicant requested the social welfare department of Ternopil City Council to grant him war participant status in accordance with section 9 of the War Veterans Act. This request was rejected. The applicant challenged this refusal in the Ternopil City Court.

By a decision of 19 November 2001 the court found for the applicant, noting in particular that:

“Given that Mr Nestorovych was resettled with members of his family, although it was in 1945, from Poland to Ukraine , his claim should be allowed...”

The defendant lodged an appeal against this judgment with the Ternopil Regional Court of Appeal, contesting the interpretation of the War Veterans Act by the first-instance court. They submitted that under paragraph 2 of section 9 of the Act people could be considered war participants if they had been resettled to Ukraine from other States after 1945, and also if they were born prior to 31 December 1932, had worked during the war and had documents to confirm this.

In his reply to the appeal, the applicant maintained that the resettlement from Poland to Ukraine had already been done in 1945 and there was a draft law in Parliament granting war participant status to people resettled after 1944.

By a decision of 5 February 2002 the Ternopil Regional Court of Appeal quashed the judgment of 19 November 2001 on the ground that the first-instance court had misapplied the relevant legal provisions, and found against the applicant, since he did not belong to the category of people who had been resettled to Ukraine after 1945 as required by paragraph 2 of section 9 of the War Veterans Act.

On 14 October 2003 the Supreme Court of Ukraine upheld the decision of the appellate court, finding that the latter had applied the relevant law correctly.

On 2 October 2003 Parliament passed a War Veterans (Amendment) Act (see Relevant domestic law ), which was published on 23 October 2003 and came into force on 1 January 2004. Following the amendments the applicant was granted war participant status with effect from 6 January 2004 (the date of his new request for that status).

B. Relevant domestic law and practice

Act “on the Status of War Veterans and their Social Welfare Benefits”

The Act provides for different welfare benefits for war veterans, war participants and other categories of pe ople whose lives were affected by the Second World War and its aftermath. It also cover s military personnel who participated in other armed conflicts after the Second World War.

Section 14 of the Act provides a wide range of welfare benefits for war participants, including free medical services and free use of public transport, concessions on goods and services, priority in obtaining some other welfare benefits and others.

The categories of pe ople who were entitled to war participant status were listed in section 9 of the Act , which in its original wording included people who had served in the army or had done war work , as well as those who had been part of the guerrilla movement or had been imprisoned or forc ibly resettled in territories belonging to or occupied by the countries which had fought against the USSR in the Second World War.

In July 1995 the Cabinet of Ministers of Ukraine submitted to the Parliament a War Veterans (Amendment) Bill. In the bill, section 9 was significantly reworded and mentioned for the first time people resettled in Ukraine . The Verkhovna Rada (Parliament) passed the bill with some amendments. In particular, they introduced a requirement of proving the fact of work during the war depending on the age of persons concerned. In its final version of 22 December 1995, enacted by the Parliament, the relevant parts of section 9 of the War Veterans (Amendment) Act read as follows:

Section 9. Persons to be considered war participants

“The following persons shall be considered war participants:

... 2) ...P ersons who worked during the Great Patriotic War [1] in territories which after 1944 were integrated into the former Union of Soviet Socialist Republics, and persons who were resettled after 1945 to the territory of Ukraine from the territory of other S tates , as well as citizens who, on assignment by the State bodies of the former USSR, worked in countries allied to the USSR, shall also be considered war participants.

For persons who were born on or prior to 31 December 1932 and have valid reasons for failing to submit documents as evidence of their work during the war, the status of war participant can be established by a motion of particular committees under the procedure established by the Cabinet of Ministers of Ukraine.

For persons who were born after 31 December 1932, the status of war participant can be established only by the production of documents and other evidence that unequivocally prove the fact of their work during the war ... ”

In the Kamenivska case (see Kamenivska v. Ukraine (dec.), no. 18941/04, 30 August 2006), the p arties submitted a number of judicial decisions c oncerning the application of this provision at that time, which are equally illustrative for the present case. Those decisions demonstrated discrepanc ies in the application of the above -cited paragraph 2 of section 9 of the Act by the first-instance and appellate courts . Some of the courts considered that the fact of resettlement alone was sufficient to obtain war participant status, others read the Act as also requiring proof of war work, if the person concerned was born after 31 December 1932.

In the decisions of the Supreme Court, however, it was clearly stated that a person should meet both criteria. In its decisions of 26 December 2001 and 13 February 2002 in the cases of G. and K. against the Frankivsky Social Welfare Department, the Supreme Court decided that people of certain ages needed to show proof of war work even though they fell into one of the categories mentioned in paragraph 2 of section 9 of the War Veterans Act. In the case of G the Supreme Court held in particular:

“Under section 9 of the Act war participants include, among others, persons resettled to the territory of Ukraine from the territories of other States.

Nevertheless for persons born after 31 December 1932 war participant status can be established only by the production of documents and other evidence that unequivocally prove that they did war work.

The court established that G. was born on 3 May 1939. In 1948 he was resettled in Ukraine together with his family members.

Having applied [for war participant status] to the social welfare department he did not provide documents that would prove that he had done war work .

Under these circumstances, the court came to the right conclusion that the refusal of the social welfare department to grant G. war participant status complied with the requirements of the Act.” [2]

B y the Amendment Act of 2 October 2003, section 9 was changed and the categories of th ose resettled, including those who , like the applicant, had been resettled prior to 1945 , were listed separately in a new paragraph of the said Article with no other conditions required . This provision read s as follows:

“ ... 11) persons who were resettled after 9 September 1944 to the territory of Ukraine from the territory of other S tates.”

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention of the unfairness and length of the proceedings. He also c omplained that the domestic authorities had refused him war participant status in a discriminatory manner , and had therefore deprived him for more than two years of the welfare benefits attached to that status . He referred to Article 14 of the Convention and relied, in substance, o n Article 1 of Protocol No. 1 to the Convention.

THE LAW

1. In reply to the Government ’ s observations the applicant made an additional complaint under Article 13 of the Convention, claiming that the Ukrainian legal system provided no effective remedy to challenge the law even if the latter was imperfect. The Court notes that this complaint was not developed in the original complaints on which the Government have already commented. Accordingly, the Court does not find it necessary to examine it .

2. The applicant complained that the appellate and cassation courts had decided his case unfairly and after a long delay. He referred to Article 6 § 1 of the Convention, which read s , in so far as relevant, as follows :

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

The Court notes that the proceedings in the applicant ’ s case lasted from October 2001 to October 2003, that is two years. In the Court ’ s opinion this period is not in breach of the “reasonable time” requirement of Article 6 § 1.

As to the applicant ’ s complaint about unfairness of the proceedings, the Court would recall that it is not its task to substitute itself for the domestic jurisdictions. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation (see, inter alia , the Pérez de Rada Cavanilles v. Spain judgment of 28 October 1998, Reports 1998-VIII, p. 3255, § 43).

In the instant case the domestic courts examined the case in accordance with the law, giving sufficient reasons for their decisions. There is nothing to show that the applicant could not present all his arguments or that the proceedings were otherwise unfair.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3 . The applicant further complained that he had been discriminated against, given that only people resettled in Ukraine after 1945 were entitled to war participant status. He invoked Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1, 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 maintained that at the time of the judicial proceedings instituted by the applicant there had been no legal provision which could create in favour of the applicant a right or at least a reasonable expectation of receiving war participant status. Therefore, in the Government ’ s opinion, the applicant ’ s complaint was incompatible ratione materiae with the provisions of Article 1 of Protocol No. 1.

As to the applicant ’ s complaint about discrimination, the Government maintained that the applicant had failed to demonstrate that any other person in a situation comparable to his had been granted war participant status.

The applicant replied that the War Veterans Act, before the amendments of 2 October 2003, had distinguished unfairly between people resettled in 1944-45 and those resettled after 1945, granting war participant status only to the latter.

The Court reiterates that Article 1 of Protocol No. 1 does not create a right to acquire property. It places no restriction on the Contracting State ’ s freedom to decide whether or not to have in place any form of social security scheme, or to choose the type or amount of benefits to provide under any such scheme. If, however, a Contracting State has in force legislation providing for the payment as of right of a welfare benefit - whether conditional or not on the prior payment of contributions - that legislation must be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No. 1 for persons satisfying its requirements (see Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, ECHR 2005 ‑ ... ).

In cases such as the present, concerning a complaint under Article 14 in conjunction with Article 1 of Protocol No. 1 that the applicant has been denied all or part of a particular benefit on a discriminatory ground covered by Article 14, the relevant test is whether, but for the condition of entitlement about which the applicant complains, he or she would have had a right, enforceable under domestic law, to receive the benefit in question (see Gaygusuz , and Willis , also cited above, § 34). Although Protocol No. 1 does not include the right to receive a social security payment of any kind, if a State does decide to create a benefits scheme, it must do so in a manner which is compatible with Article 14.

As can be seen from the relevant provisions of the War Veterans Act, a person who is recognised as a war participant is entitled to a wide range of welfare benefits. It follows that the applicant ’ s interests fall within the scope of Article 1 of Protocol No. 1 and of the right to property which it guarantees. This is sufficient to render Article 14 applicable.

The Court points out that Article 14 does not prohibit a M ember S tate from treat ing groups differently in order to correct “ factual inequalities ” between them ; indeed in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of the article (see “ Case relating to certain aspects of the laws on the use of languages in education in Belgium” v. Belgium (Merits), judgment of 23 July 1968, Series A no. 6, § 10, and Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV). A difference of treatment is, however, discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see Van Raalte v. the Netherlands , judgment of 21 February 1997, Reports of Judgments and Decisions 1997-I, § 39).

The scope of this margin will vary according to the circumstances, the subject matter and the background (see Petrovic v. Austria , judgment of 27 March 1998, Report s 1998-II, § 38). A wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy (see, for example, James and Others v. the United Kingdom , judgment of 21 February 1986, Series A no. 98, § 46, and National and Provincial Building Society and Others v. the United Kingdom , judgment of 23 October 1997, Reports 1997-VII, § 80). Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature ’ s policy choice unless it is “devoid of reasonable foundation” ( ibid . ).

The Court notes that the system introduced by the War Veterans Act is a special benefit system based solely on public funds. It does not provide means of subsistence to a particular category of people in need as the ordinary welfare system would normally do. The system is rather designed to provide supplementary benefits to those people who, regardless of their actual social or economic situation, had been affected by the Second World War and other military conflicts in which the former USSR took part.

The Court, having regard to the impugned domestic provisions and their interpretation by the Supreme Court (see the Relevant domestic law), observes that when this legislation was enacted in 1995, it applied to persons resettled after 1945 who had to prove that they had worked during the war. When the legislation was changed in 2004 to include those persons who had been resettled between 9 September 1944 and 31 December 1945 and to remove the requirement to prove war work for this category of persons, the intention was to refine the definition of and to enlarge the group of beneficiaries.

In the Court ’ s opinion, the legislator acted within the limits of its margin of appreciation in such matters when initially limiting the categories of persons entitled to this special benefit and only later gradually extending the system to new categories of persons.

With a view to the above considerations, the Court concludes that the applicant has failed to substantiate his complaint that he was discriminated against in the particular circumstances of the case. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Peer Lorenzen Registrar President

[1] Part of the Second World War between 22 June 1941 and 9 May 1945

[2] The Gazette of the Supreme Court of Ukraine , No. 1 (35), January-February 2003