FIFTH SECTION

DECISION

Application no. 13417/16 Viktor Leonardovych CHARNOMSKYY against Ukraine and 7 other applications (see list appended)

The European Court of Human Rights (Fifth Section), sitting on 20 February 2018 as a Committee composed of:

Erik Møse , President, Síofra O ’ Leary, Lәtif Hüseynov , judges, and Anne-Marie Dougin, Acting Deputy Section Registrar ,

Having regard to the above applications lodged on the various dates indicated in the appended table ,

Having deliberated, decides as follows:

THE FACTS

1. The list of applicants and the relevant details of the applications are set out in the appended table.

The circumstances of the cases

2. The facts of the cases, as submitted by the applicants, may be summarised as follows.

3. The applicants were employed as civil servants and were receiving a State old-age retirement pension.

4. On 1 April 2015 amendments to the Compulsory State Pension Insurance Act (“the Pension Act”) and to other legislative acts entered into force, setting out that the disbursement of old-age pensions of employees working within certain categories of the public sector (listed in that provision) should be suspended until 31 December 2015. The old-age pensions of employees working in the private sector were limited to 85% of their initial amount.

5. On 1 January 2016 further amendments to the Pension Act and to other legislative acts entered into force, setting out that the disbursement of those old-age pensions whose beneficiaries were employed within certain categories of the public sector (listed in that provision) after retirement should be suspended until 31 December 2016.

6. In line with the application of the above rules, the disbursement of the applicants ’ pensions was accordingly suspended or reduced for the respective periods.

7. The applicants instituted court proceedings on different dates, seeking that the disbursement of their pensions be resumed. Their claims were rejected by the domestic courts. The courts referred to the amended Pension Act and held that there was no legal basis for resuming the payments. In particular, they held that the measures adopted by the Pension Fund were in compliance with the amended Pension Act, which had been applied correctly in the applicants ’ cases. In relation to some applications, the domestic courts also noted that the respective measures pursued the legitimate aim of maintaining the sustainability of the public budget, thereby rationalising public expenditure.

COMPLAINTS

8. The applicants complained under Article 1 of Protocol No. 1 to the Convention regarding an interference with their property rights by the suspension or reduction of the disbursement of their old-age pensions.

THE LAW

A. Joinder of the applications

9. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

B. Complaints under Article 1 of Protocol No. 1 to the Convention, Article 13 of the Convention (all applications) and Article 14 of the Convention (applications nos. 47485/16, 78136/16, 9040/17 and 13616/17)

10. The applicants complained regarding an alleged interference with their property rights by the suspension or reduction of the disbursement of their old-age pensions. They relied on Article 1 of Protocol No. 1, which 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.”

11. They further complained that they had not had an effective remedy before the domestic courts with respect to their complaints under Article 1 of Protocol No. 1 to the Convention. They relied on Article 13 of the Convention, which reads as follows:

“Everyone whose rights and freedoms as set forth in this 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 . ”

12. Some of the applicants (applications nos. 47485/16, 78136/16, 9040/17 and 13616/17) also complained that they had been discriminated against in comparison with non-working pensioners, who had not been affected by the respective amendments. They relied on Article 14 of the Convention, which reads as follows:

“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.”

13. The Court has previously found in a number of cases (see, among other authorities, Sheidl v.Ukraine ( dec. ), no. 3460/03, 25 March 2008, and Sholos v. Ukraine ( dec. ), no. 11780/05, 24 March 2009) that in the Ukrainian legal system the ordinary courts of general jurisdiction do not have the power to override a statutory provision, and therefore do not provide applicants with an effective remedy against a statutory provision which encroaches upon their Convention rights.

14. In particular, in the cases of Sheidl and Sholos (cited above), the applicants had sought before the domestic courts the resumption of pension payments that had been terminated in accordance with the applicable statutory provisions. The domestic courts had rejected their claim on the grounds that the pension authorities had applied the relevant legislative provisions correctly. Before the Court, the applicants complained of a violation of Article 1 of Protocol No. 1 to the Convention and – in the case of Mr Sholos – of a violation of Article 14 of the Convention. The Court underlined that, given that the courts of general jurisdiction in Ukraine, including the Supreme Court, did not have power to override the law, individuals did not have an effective domestic remedy against a statutory provision which allegedly encroached upon their Convention rights. This was because the Ukrainian legal system did not provide an individual with a right of individual petition to the Constitutional Court of Ukraine, which was the only jurisdiction empowered to repeal a statutory provision. The Court then noted that the applicants ’ complaint directly concerned statutory provisions which were clear and unambiguous. It also noted that the essence of the complaint was that the statutory provisions were unconstitutional and that judicial proceedings in the courts of general jurisdiction could not lead to the statutory provisions being overridden. The Court therefore concluded that the applicants had used a remedy that was not effective, and rejected their complaint under Article 1 of Protocol No. 1 to the Convention as having been submitted outside the six-month time-period.

15. In the present cases, the substance of the applicants ’ complaints to the domestic ordinary courts was that the impugned statutory provisions violated their rights. Being unable to override these provisions for the reasons indicated above, the domestic ordinary courts found that the measures adopted by the Pension Fund were in compliance with the amended pension law. The applicants therefore used domestic proceedings which could not be considered effective in the circumstances of their cases.

16. This being so, the Court reiterates that where it is clear from the outset that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on or prejudice to the applicant (see, notably, Varnava and others v. Turkey [GC], nos 16064/90 et 8 others, § 157, ECHR 2009).

17. In the present cases, the relevant legislative amendments entered into force on 1 April 2015 and 1 January 2016, and the applicants ’ pensions were suspended or reduced accordingly on those dates.

18. The Court therefore considers that the dates to be taken into account for the purpose of calculating the six-month period within the meaning of Article 35 § 1 of the Convention are 1 April 2015 and 1 January 2016 respectively.

19. Consequently, the six-month period commenced on 1 April 2015 as far as applications nos. 13417/16, 27550/16 and 47301/16 are concerned, and on 1 January 2016 as far as applications nos. 47485/16, 78136/16, 9040/17, 13616/17, 23331/17 are concerned.

20. Since the applications were lodged more than six months after these dates, the present complaints should be rejected on the grounds that they have been submitted too late.

21. Accordingly, the Court concludes that the applicants ’ complaints must be declared inadmissible under Article 35 §§ 1 and 4 of the Convention.

C. Other alleged violations of the Convention

22. The applicants also raised other complaints under Article 6 § 1, Article 8 and Article 18 of the Convention. The Court has examined the applications and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

23. It follows that these parts of the applications must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 22 March 2018 .

Anne-Marie Dougin Erik Møse              Acting Deputy Registrar President

APPENDIX

No.

Application no.

Lodged on

Applicant

Date of birth

Place of residence

13417/16

11/05/2016

Viktor Leonardovych CHARNOMSKYY

24/12/1953

Lviv

27550/16

10/05/2016

Anatoliy Sergiyovych BARYAK

04/09/1975

Vinnytsya

47301/16

28/07/2016

Leonid Mykolayovych NESOLYONYY

20/11/1953

Khmelnytskyy

47485/16

06/12/2016

Olga Dmytrivna GULCHENKO

13/09/1963

Kaniv

78136/16

07/12/2016

Valentyna Ivanivna TURBAL

10/10/1966

Ovruch

9040/17

13/01/2017

Lyudmyla Adamivna RYABUSHEY

01/02/1968

Ovruch

13616/17

26/01/2017

Valentyn Viktorovych MOZHAROVSKYY

17/08/1976

Malyy Kobylyn

23331/17

15/03/2017

Valentyna Andriyivna BARANOVSKA

03/09/1964

Ovruch