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FIFTH
SECTION
CASE OF BOGATOVA v. UKRAINE
(Application
no. 5231/04)
JUDGMENT
STRASBOURG
7
October 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Bogatova v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Rait Maruste,
Isabelle
Berro-Lefèvre,
Mirjana Lazarova
Trajkovska,
Zdravka Kalaydjieva,
Ganna
Yudkivska, judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 14 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 5231/04) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian national, Ms Lyudmila Bogatova
(“the applicant”), on 27 January 2004.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- The
applicant alleged, in particular, that the domestic courts failed to
give sufficient reasons for their decisions in her pension dispute.
- On
10 November 2008 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1944 and lives in Dniprodzerzhynsk.
- In
July 2003 the applicant instituted proceedings in the Bagliyskyy
District Court of Dniprodzerzhynsk against the State of Ukraine, the
President, and the local department of the Pension Fund, seeking
recovery of pension arrears and compensation for non-pecuniary
damage. In her claim the applicant stated, in particular, that under
Article 46 of the Constitution she was entitled to a pension equal to
the amount of minimum living standard. However, her pension was lower
than that standard effective at the relevant time.
- On
26 December 2003 the court rejected the applicant’s claim as
unfounded, stating that the amount of her pension had been determined
correctly under the pension legislation. On 5 April 2004 and 8 June
2006 respectively the Dnipropetrovsk Regional Court of Appeal and the
Supreme Court upheld the decision of the first-instance court.
Neither of the courts considered the applicant’s argument under
Article 46 of the Constitution in respect of inconsistency of the
amount of her pension with the minimum living standard.
II. 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).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF
THE CONVENTION
- The
applicant complained under Articles 6 § 1 and 13 of
the Convention that the domestic courts had failed to consider her
argument that the amount of her pension had been determined contrary
to the requirements of the Constitution.
- The Court notes that in the present case that the role
of Article 6 § 1 in relation to Article 13 is that of a lex
specialis, the requirements of Article 13 being
absorbed by more stringent requirements of Article 6 § 1 (see,
among other authorities, Brualla Gómez de la Torre v.
Spain, 19 December 1997, § 41, Reports of
Judgments and Decisions 1997 VIII). Consequently, it will
consider the present complaint solely under Article 6 § 1
of the Convention, which reads, in so far as relevant, as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
A. Admissibility
- The
Government maintained that the complaint was inadmissible on
non-exhaustion grounds. First, they submitted that the applicant
should have requested the domestic courts to refer the case to the
Constitutional Court to determine the constitutionality of the
legislative acts which were the basis for the judicial decisions.
Second, the applicant applied to the Court when the domestic
procedure had not been completed.
- The
applicant contended that applying to the Constitutional Court would
not be effective. Moreover, she was not fully aware of the relevant
procedures. She further claimed that she applied to the Court in
2004, before the termination of the domestic proceedings, as those
had been seriously protracted.
- As to the first Government’s objection, the
Court notes that the option of applying to the Constitutional Court
(which has no power to review the decisions of the domestic courts)
is of no relevance to the present complaint, the latter referring to
the issue of insufficient reasoning in the court decisions. Moreover,
the Court has held that there is no effective domestic remedy to
challenge the constitutionality of a statutory provision, since the
Ukrainian legal system does not provide an individual with the right
of direct individual petition to the Constitutional Court (see
Pronina, cited above, § 24, and Sheidl v. Ukraine
(dec.), no. 3460/03, 25 March 2008). In this context the Court
reiterates that for the remedy to be effective it must be independent
of any action taken at the authorities’ discretion and must be
directly available to those concerned (see Gurepka v. Ukraine,
no. 61406/00, § 59, 6 September 2005). The Court notes that
the applicant’s request to the domestic courts for referral of
the case to the Constitutional Court would be dependent on the
discretion of the Supreme Court and, therefore, does not comply with
the requirements of effective remedy for the purpose of Article 35 §
1 of the Convention. It follows that the Government’s objection
should be dismissed.
- As
to the second Government’s objection, it is true that at the
time she lodged her application with the Court the applicant had not
exhausted her complaint before the domestic courts. However, in 2006
the domestic proceedings had terminated and the applicant
supplemented her application accordingly. It follows that since then
the matter raised by the Government has become no more relevant.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
applicant maintained that the domestic courts failed to give
sufficient reasons for their decisions and did not address her
arguments in respect of non-compliance of her pension with the
requirements of the Constitution.
- The
Government did not comment on the complaint on the merits.
- The
Court notes that the similar complaint has been considered in the
case of Pronina (cited above). It notes that in the present
case the applicant also claimed before the domestic courts that her
pension should have been calculated in line with the requirements of
Article 46 of the Constitution. However, as in Pronina,
the domestic courts made no attempt to analyse the applicant’s
claim from this standpoint, despite the explicit reference to it
before every judicial instance. It is not the task of the Court to
decide what would have been the most appropriate way for the domestic
courts to deal with this argument. It notes,
however, that one of the ways to address the applicant’s
argument could be to raise this issue before the Constitutional Court
which would thus have an opportunity to decide on conformity of the
relevant provisions of the pension legislation with the Constitution.
Still, by mere ignoring the applicant’s point altogether,
even though it was specific, pertinent and important, the domestic
courts fell short of their obligations under Article 6 § 1
of the Convention.
- There
has accordingly been a violation of Article 6 § 1 of
the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained of a violation of Article 2 of the Convention on
account of the outcome of the proceedings in her case and of a
violation of Article 13 of the Convention, arguing that she did not
have an effective remedy in respect of her pension claim.
- Having
considered the applicant’s submissions in the light of all the
material in its possession, the Court finds that, in so far as the
matters complained of are within its competence, they do not disclose
any appearance of a violation of the rights and freedoms set out in
the Convention.
- It
follows that this part of the application must be declared
inadmissible as being manifestly ill-founded, pursuant to Article 35
§§ 3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 12,873 Ukrainian hryvnias (UAH) or 1,829 euros
(EUR) in respect of pecuniary damage. She further claimed that the
award in respect of non-pecuniary damage should not be less than
EUR 6,000.
- The
Government contested those claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicant EUR 1,200 in respect of
non pecuniary damage.
B. Costs and expenses
- The
applicant further claimed EUR 100 for legal fees, EUR 30 for
translation expenses, and EUR 40 for postal and other communication
expenses, all of them having been incurred in connection with the
proceedings before the Court.
- The
Government contended that those claims were unsubstantiated.
- Having
examined the evidence submitted by the applicant, the Court awards
the sum of EUR 9 to cover postal expenses and rejects the
remainder of the claims under this head as unsubstantiated.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint under Article 6 § 1
of the Convention admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts:
(i) EUR
1,200 (one thousand two hundred euros) in respect of non-pecuniary
damage, plus any tax that may be chargeable;
(ii) EUR
9 (nine euros) in respect of costs and expenses, plus any tax that
may be chargeable;
(b) that
the above amounts shall be converted into the national currency of
the respondent State at the rate applicable on the date of
settlement;
(c) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 7 October 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
