FIFTH SECTION
CASE OF
PICHKUR v. UKRAINE
(Application no.
10441/06)
JUDGMENT
STRASBOURG
7 November 2013
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 Pichkur v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as
a Chamber composed of:
Mark Villiger, President,
Angelika Nußberger,
Boštjan M. Zupančič,
André Potocki,
Paul Lemmens,
Helena Jäderblom, judges,
Stanislav Shevchuk, ad hoc judge,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 15 October 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
10441/06) 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, Mr Anatoliy Andriyovych Pichkur (“the
applicant”), on 21 November 2005.
The applicant was represented by Mr V. Shapoval,
a lawyer practising in Hannover, Germany. The Ukrainian Government (“the
Government”) were represented by their Agent, Ms V. Lutkovska, from the
Ministry of Justice.
On 21 September 2010 the Court declared the
application partly inadmissible and decided to communicate the complaint
concerning discriminatory deprivation of retirement pension to the Government.
Mrs G. Yudkivska, the judge elected in respect of
Ukraine, was unable to sit in the case (Rule 28 of the Rules of Court). The
President of the Chamber decided to appoint Mr Stanislav Shevchuk to sit as an ad
hoc judge (Rule 29 § 1(b)).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1938 and lives in
Bremen, Germany.
In 1996, after having worked for forty years in
Ukraine, the applicant retired and began receiving a retirement pension.
From 1999 the applicant authorised his mother to
receive his pension.
In August 2000 the applicant emigrated to
Germany. Prior to his departure, he was supposed to inform the local department
of the Pension Fund that he was leaving for permanent residence abroad and to
receive six months’ pension payments in advance, with subsequent termination of
all pension payments during the whole period of his stay abroad (see Relevant domestic
law below). However, the applicant did not follow this procedure and his mother
continued to receive his pension after his departure. The monthly amount of the
applicant’s pension varied from 107 Ukrainian hryvnias (UAH), which was equivalent
of around 21 euros (EUR) at the material time, in February 2001 to UAH 365.41
(EUR 58) in September 2005 and totalled in UAH
10,872.40.
On 23 September 2005, on discovering that the
applicant was no longer resident in Ukraine, the Zaporizhzhya Leninskiy
District Department of the Pension Fund (hereinafter “the Pension Fund
Department”) took a decision in accordance with Section 49 § 1 (2) of the
General State Pension (Obligatory Insurance) Act to terminate pension payments
to the applicant with effect from 1 September 2005 on the ground that he lived permanently
abroad.
At the request of the Pension Fund Department, on
6 April 2006 the Zaporizhzhya Leninskiy District Court (hereinafter “the
District Court”) ordered the applicant to pay back the amount of UAH 10,872.40
Ukrainian hryvnias unlawfully received after his emigration. This judgment was
upheld by the higher courts and became final, but remained unenforced.
On 8 September 2008 the Zaporizhzhya Leninskiy
District Police Department refused to institute criminal proceedings against
the applicant for allegedly unlawful receipt of pension between 2001 and 2005
for lack of corpus delicti in his actions.
On 7 October 2009 the Constitutional Court
declared unconstitutional the provisions on the basis of which the applicant’s
pension payments had been terminated (see Relevant domestic law below).
On 12 October 2009, following the above decision
of the Constitutional Court, the applicant requested the Pension Fund Department
to restore his pension payments. By a letter of 10 February 2010 the Pension
Fund Department, referring to the Pension Fund letter of 28 December 2009 concerning
the procedure for application of the decision of the Constitutional Court of
Ukraine, informed the applicant that the above decision of the Constitutional
Court applied only to those who had left for abroad after 7 October 2009 and that
therefore there were no legal grounds for the restoration of his pension
payments. On 3 September 2010 the applicant challenged the above interpretation
of the Constitutional Court decision by the Pension Fund before the Kyiv
Administrative Court, which rejected his complaint as submitted too late.
On 20 October 2009 the applicant applied to the
District Court for revision of its judgment of 6 April 2006 on the grounds of newly
discovered circumstances, referring to the decision of the Constitutional Court
of 7 October 2009. On 2 December 2009 the Zaporizhzhya Regional Prosecutor’s
Office (the ZRPO) made a similar application to the same court, acting in the
applicant’s interests. On 29 June 2010 the court rejected the applications, on
the ground that the decision of the Constitutional Court had no retroactive
effect and could not qualify as a newly discovered circumstance. On 14 October
and 22 November 2010 the Zaporizhzhya Regional Court of Appeal and the Higher
Administrative Court upheld the decision of the first-instance court.
On 12 February 2010 the Zaporizhzhya Leninskiy
District Prosecutor instituted proceedings in the interests of the applicant in
the District Court against the Pension Fund Department, seeking resumption of
pension payments to the applicant.
On 15 April 2011 the District Court found for
the applicant and ordered the Pension Fund Department to resume payment of
pension to the applicant with effect from 7 October 2009, the date of the
Constitutional Court decision.
On 26 April 2011 the Pension Fund Department appealed
against the judgment of 15 April 2011.
On 21 June 2011 the Dnipropetrovsk
Administrative Court of Appeal upheld the decision of 15 April 2011.
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND
PRACTICE
A. Legislation of the USSR on pensions
Since 1956 the pension payments had been
regulated by the State Pension Act of 14 July 1956. Section 6 of the Act
provided that the pensions were to be paid from the funds allocated in the
State budget, including the funds of State social security, which were formed
from the contributions of enterprises, institutions and organisations without
any deductions from the salaries. As a general rule, under Section 7 of the
Act, the men were entitled to old age pension when they attained the age of 60
and had been working for at least 25 years. For women the retirement age was 55
and the work record was at least 20 years.
In May 1990 the new pension act - the Pension
Benefits Act was enacted. It introduced the Pension Fund of the USSR which was
separated from the State Budget and was formed from the different types of
contributions, including obligatory social security contributions of
enterprises and individuals alike (Article 8 the Act). After dissolution of the
Soviet Union, a similar provision was introduced in the Ukrainian Pensions Act
of 1991 (see below).
B. Domestic law
1. Constitution of Ukraine of 1996
Relevant provisions of the Constitution read as
follows:
Article 9
“International treaties that are in force and are agreed to be binding
by the Verkhovna Rada of Ukraine are part of the national legislation of
Ukraine...”
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 old age...”
2. Pensions Act of 5 November 1991
Relevant sections of the Act provides:
Section 8. Funds for
pension payment. Exemption of pensions from taxation
“...The Pension Fund of Ukraine is an independent financial and
banking system, is not part of the State budget of Ukraine, is formed from
funds that are paid by enterprises and organizations ... from insurance
payments of citizens engaged in entrepreneurial activity, from obligatory
insurance contributions of citizens, as well as from the funds of the State
budget of Ukraine...”
Section 92. Payment of
pensions to citizens who have left for abroad.
“Pensions shall not be granted to citizens who have left for
permanent residence abroad.
Pensions granted in Ukraine before the recipient leaves for
permanent residence abroad shall be paid for six months in advance, before the
recipient departs for abroad. While a citizen is abroad only pensions granted
for occupational disability or illness shall be payable.
The procedure of transferring pensions granted for professional
disability or illness to other countries shall be established by the Cabinet of
Ministers of Ukraine.”
3. General State Pension (Obligatory Insurance) Act of
9 July 2003 (in force at the material time)
Sections 49 and 51 of the Act provided, in so
far as relevant, as follows:
Section 49. Termination
and resumption of pension payments
“1. The payment of pension shall be terminated by a
decision of the territorial bodies of the Pension Fund or by a court:
...
2) for the duration of residence of the retired
person abroad, unless otherwise stipulated by international treaties of Ukraine
ratified by the Verkhovna Rada of Ukraine......”
Section 51. Payment of pension in the event of
emigration
“In the event of departure of a retired person for permanent
residence abroad, a pension granted in Ukraine shall be paid for six months in
advance before departure, from the month following the month when the person
registered as leaving their place of residence. While he is abroad the pension
shall be paid if there is provision to do so in an international treaty of
Ukraine ratified by the Verkhovna Rada of Ukraine.”
There is no treaty on social security between Ukraine and
Germany.
The subparagraph (2) of paragraph 1 of Section 49 and the second
sentence of Section 51 were found unconstitutional in October 2009 (see below).
4. Decision of the Constitutional Court of Ukraine of
7 October 2009 in the case on the constitutional appeal of the Supreme Court of
Ukraine concerning compliance with the Constitution of Ukraine
(constitutionality) of the provisions of the second subparagraph of the first
paragraph of section 49 and the second sentence of section 51 of the Law of
Ukraine on the General Obligatory State Pension Insurance.
By this decision the Constitutional Court found
the provision concerning termination of pension payments to Ukrainian citizens
residing abroad unconstitutional and repealed the relevant provision of section
51 of the General State Pension (Obligatory Insurance) Act. The court noted in
particular that:
“The disputed provisions of the Act made the constitutional
right to social security dependent on the signing of an international treaty on
pensions between Ukraine and the country concerned. Thus the State, despite
constitutional guarantees of social security for all who are entitled to a
retirement pension, deprived retired people of their rights by law, if they choose
as their place of permanent residence a country with which no such treaty has
been signed. Given the legal and social nature of pensions, the citizen’s right
to receive a pension cannot be associated with such a condition as permanent
residence in Ukraine; according to constitutional principles the State is
required to ensure this right [to a pension] regardless of where a person who
has been awarded a pension, lives, in Ukraine or abroad.”
The Constitutional Court further invited
Parliament to review all other relevant legal acts containing similar provisions.
C. Relevant international law
Article 69 of the 1952 International Labour
Organisation’s Social Security (Minimum Standards) Convention (“the 1952 ILO
Convention”) provides that a benefit to which a protected person would
otherwise be entitled in compliance with the 1952 ILO Convention (including old
age benefit) may be suspended, in whole or in part, by national law as long as
the person concerned is absent from the territory of the State
concerned. The above provision is echoed in Article 68 of the 1964
European Code of Social Security and Article 74(1)(f) of the 1990 European Code
of Social Security (Revised).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 14 OF THE
CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL NO. 1
The applicant complained that he had been
deprived of his retirement pension on the ground of his place of residence, in
violation of Article 14 of the Convention read 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.”
A. Admissibility
The Government maintained that in the present
case there are two distinct periods. The first period lasted from the applicant’s
departure for abroad on 29 August 2000 until the decision of the Constitutional
Court of Ukraine on 7 October 2009. The second period started after the above
decision and continues. The Court will examine the admissibility issues
relating to each of these periods, starting with the last one.
1. Period from 7 October 2009
According to the Government, following the
Constitutional Court decision the applicant was entitled to request the
domestic authorities to resume his pension payments. The applicant did so and
the relevant proceedings were at the time of submission of the Government’s
observations pending before the domestic courts. The Government considered this
period inadmissible as the applicant had not exhausted existing domestic
remedies.
The applicant noted that he had instituted a
number of proceedings at the domestic level, but at the time of submission of
his observations to no avail. He considered that he had exhausted domestic
remedies.
The Court notes that from the circumstances of
the case, it appears that the interpretation of the Constitutional Court
decision by the Pension Fund seems to suggest a new distinction between retired
persons who have left for abroad prior or after the decision of the
Constitutional Court of 7 October 2009. This interpretation, however, was
disputed at the domestic level. In particular, the Court notes that on 15 April
2011 the Leninskiy District Court found for the applicant and ordered the
District Department of the Pension Fund to resume payment of pension to the
applicant with effect from 7 October 2009, the date of the Constitutional Court
decision. This decision was upheld on appeal, but the applicant did not inform the
Court whether it was further appealed in cassation by the Pension Fund
Department. In absence of any information to the contrary, the Court will
assume that the proceedings had terminated with the decision of the court of
appeal in the applicant’s favour and he can no longer claim to be a victim of
the violation alleged for the period after 7 October 2009. It follows that this
complaint is incompatible ratione personae with the provisions of the
Convention within the meaning of Article 35 § 3 (a) and must be
rejected in accordance with Article 35 § 4.
2. Period between 29 August 2000 and 7 October 2009
(a) Observation of the six-month rule
The Government considered
that in accordance with the law then in force the applicant was no longer
entitled to a pension from the moment of his departure for permanent residence
abroad in August 2000. He must have been aware of that fact and if he had acted
in good faith his pension payments would have stopped at that point. They
concluded that the six-month period for this complaint had started running on
29 August 2000, when the disputed law had had to be applied to him.
The Government argued that the payments received
by the applicant between February 2001 (excluding the six months’ payment on
his departure in August 2000) and September 2005 could not be considered
pension payments, given that he had not been entitled to a pension under the
law.
The applicant disagreed. He maintained that
under the law only the local departments of the Pension Fund had the authority
to terminate and resume the payment of pensions. In his case, the final
decision on termination of pension payments had been given by the Pension Fund
Department on 29 September 2005. He further maintained that the law-enforcement
authorities had checked the allegations that he had acted unlawfully in not informing
the Pension Fund about his departure abroad and had found no corpus delicti
in his actions.
The Court reiterates that it is not for it to
rule in abstracto on the compatibility of the Ukrainian
pension system with the Convention, but to ascertain in concreto what
effect the application in this case of the provisions of the Pension Act had on
the applicant’s rights guaranteed by Article 14, taken in conjunction with
Article 1 of Protocol no. 1. In previous similar cases against Ukraine the
Court has taken as a starting point the moment when pensioners became aware
that the further payment of their pensions had been terminated under Article 92
of the Pensions Act, that is when the disputed provisions began to apply to
them personally (see Dudnik and Others v. Ukraine (dec.), nos. 9408/05,
10642/05 and 26842/05, 20 November 2007, and Sheidl v. Ukraine,
(dec.), no. 3460/03, 25 March 2008).
In the present case, the decision on termination
of the pension payments to the applicant was made on 29 September 2005. It was
from that moment that the relevant provisions of the domestic law affected him
personally, and it was from then that he could claim to be a victim of a
violation of his rights guaranteed by the Convention. Given that the Ukrainian
legal system did not provide an individual with an effective remedy to
invalidate or override a statutory provision, and the alleged violation clearly
derived from a statutory provision (see Myroshnychenko v. Ukraine
(dec.), no. 10205/04, 3 April 2007), it was then that the applicant could
arguably claim that the relevant legal provision had been applied to his
detriment. Taking into account the fact that the present application was lodged
on 21 November 2005, less than two months after the decision of the Pension
Fund on termination of his pension payment had been taken, the Court finds that
the applicant complied with the six-month rule and the Government’s objections
to this end shall be dismissed.
(b) Applicability of Article 14 taken in conjunction
with Article 1 of Protocol No. 1 to the period in question
The Government, as mentioned above, considered
that under the law in force at the material time the applicant had neither
entitlement to nor legitimate expectations of a pension in Ukraine between the
dates of his departure for abroad and the decision of the Constitutional Court.
The applicant considered that the termination of
his pension payments had led to discrimination against him in respect of his
right to enjoy his property regardless of his place of residence.
The Court reiterates that Article 14 complements
the other substantive provisions of the Convention and the Protocols. It has no
independent existence, since it has effect solely with regard to “the enjoyment
of the rights and freedoms” safeguarded by those provisions (see, among many other
authorities, Şahin v. Germany [GC], no. 30943/96, § 85, ECHR
2003-VIII). The application of Article 14 does not necessarily presuppose the
violation of one of the substantive rights guaranteed by the Convention. It is
necessary but it is also sufficient for the facts of the case to fall “within
the ambit” of one or more of the Convention Articles (see, among other
authorities, Gaygusuz v. Austria, § 36, 16 September 1996, Reports
of Judgments and Decisions 1996-IV, and E.B. v. France [GC],
no. 43546/02, § 47, ECHR 2008-... and references therein).
The prohibition of discrimination in Article 14
thus extends beyond the enjoyment of the rights and freedoms which the
Convention and Protocols require each State to guarantee. It applies also to
those additional rights, falling within the general scope of any Convention
article, for which the State has voluntarily decided to provide (see Stec
and Others v. the United Kingdom (dec.) [GC], nos.
65731/01 and 65900/01, § 40, ECHR 2005-X).
If a Contracting State has legislation in force
providing for the payment of a welfare benefit as of right, 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 those satisfying its requirements (ibid., § 54).
In cases, such as the present one, 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. 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.
(ibid., § 55).
It is not disputed between the parties that, had
the applicant continued to reside in Ukraine, he would have continued to
receive a pension. 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 in this case.
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention and that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
The applicant considered that discrimination in
his situation had been established by the decision of the Constitutional Court
of Ukraine of 7 October 2009. Despite the fact that the decision of the
Constitutional Court had no retroactive effect, the provisions of the
Convention, including Article 14 which prohibits discrimination, had been in
force for Ukraine since 11 September 1997. Therefore, since that date the
State had had to act in compliance with its obligations and was not allowed to
discriminate against retired people.
The Government made no observations on the
merits.
The Court notes that the applicant complained of
a difference in treatment on the basis of his place of residence, which
constitutes an aspect of personal status for the purposes of Article 14 (see Carson and Others v. the United Kingdom [GC],
no. 42184/05, §§ 70 and 71, ECHR 2010-....).
The Court’s case-law establishes that
discrimination means treating differently, without an objective and reasonable
justification, persons in relevantly similar situations (see Willis v. the
United Kingdom, no. 36042/97, § 48, ECHR 2002-IV).
A difference in treatment is 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 different
treatment (see Van Raalte v. the Netherlands, 21 February 1997,
§ 39, Reports 1997-I).
The Court reiterates its reasoning in the Carson
judgment, that the payment of social welfare contribution in itself could not
place persons living in different countries in a relevantly similar position,
as any social welfare system, including pension schemes, is primarily designed
to ensure certain minimum standards of living for residents of the country
concerned and to serve their needs. Moreover, it is difficult to draw any
genuine comparison between the pensioners within the country and those living
elsewhere, because of the range of economic and social variables which apply
from country to country (see Carson and Others v. the United Kingdom [GC],
cited above, §§ 85 and 86). Furthermore, the Court established that the States
had the right to enter into reciprocal agreement in social security sphere and
the fact that a State entered in such agreement with one country could not
create an obligation for that State to confer the same social security
advantages to persons living in other countries (ibid, §§ 88 and 89)
The Court considers that the present case has to
be distinguished from the above Carson judgment, in which the difference
in treatment complained of concerned the lack of indexation of existing
pensions for those residing in some foreign States, while nobody questioned the
applicants’ entitlement to the pension as such. In the present case, however,
the entitlement to the pension itself had been made dependent on the applicant’s
place of residence, resulting in a situation in which the applicant, having
worked for many years in his country and having contributed to the pension
scheme, had been deprived of it altogether, on the sole ground that he no
longer lived in Ukraine. Indeed, the applicant, who had been economically
active in Ukraine from 1956 to 1996, had a right to a pension after he retired
and, as the domestic law provided at the material time, he would again receive
his pension upon his return to Ukraine. The Court therefore concludes that,
with respect to the entitlement to the pension itself, the applicant was in a
relevantly similar situation as the pensioners who resided in Ukraine.
It remains to be seen whether the difference in
treatment complained of can be justified. In this respect, the Court notes that
no justification had ever been advanced by the authorities for depriving the
applicant of his pension solely because he was living abroad. Indeed, the
decision of the Constitutional Court of 7 October 2009 does not indicate that
the domestic authorities advanced relevant reasons to justify the difference in
treatment complained of, nor was any such justification given by the Government
in the proceedings before this Court.
In this context the Court notes that the
Government has not relied on considerations of international cooperation to
justify treating pensioners living in Ukraine differently from those living
abroad. In any event, the Court is not prevented from defining higher standards
on the basis of the Convention than those contained in other international
legal instruments. The Court has frequently reiterated that the Convention is a
living instrument which must be interpreted “in the light of present-day
conditions” (see Tyrer v. the United Kingdom, 25 April 1978, § 31,
Series A no. 26). The rise of population mobility, the higher levels of
international cooperation and integration, as well as developments in the area
of banking services and information technologies no longer justify largely
technically motivated restrictions in respect of beneficiaries of social
security payments living abroad, which may have been considered reasonable in
the early 1950s when the 1952 ILO Convention, mentioned in paragraph 26, was
drafted.
The foregoing considerations are sufficient to
enable the Court to conclude that the difference in treatment complained of was
in breach of Article 14 of the Convention taken in conjunction with Article 1
of Protocol No. 1.
II. 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 10,000 euros (EUR) in
respect of pecuniary damage. He complained that the Pension Fund Department had
refused to provide him with an exact calculation of the pension he would have
received if payments had not been terminated in September 2005. This sum in his
opinion roughly corresponded to the amount of pension which he had not received
between September 2005 and April 2011 plus an increase to this pension due to
his status as a child of war. He also claimed EUR 10,000 in respect of
non-pecuniary damage.
The Government disagreed with the applicant’s
calculations, considering his claims unsubstantiated and groundless.
The Court notes that the violation found in the
present case concerns only the period prior to October 2009 and that the
applicant would not be able to claim the pension not paid to him between
September 2005 and October 2009 at the domestic level. Although, as the
Government noted, the applicant did not present any calculations supported by
documents, he could not do so without information solicited from a relevant
State authority. As the applicant noted, he had been denied that information.
The Court notes that in this situation pecuniary damage does not lend itself to
a precise calculation, and therefore it is appropriate to make a global
assessment of his pecuniary and non-pecuniary damage (B. v. the United
Kingdom (Article 50), 9 June 1988, §§ 10-12, Series A no. 136-D,
Dombo Beheer B.V. v. the Netherlands, 27 October 1993, § 40, Series A
no. 274, and Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 29,
ECHR 2000-IV). The Court considers that in the circumstances of the
present case it would be appropriate to award to the applicant EUR 5,000.
B. Costs and expenses
The applicant also claimed EUR 3,500 for costs
and expenses incurred before the domestic courts, namely lodging numerous
claims and complaints with the judicial authorities, participation in five
hearings, travels to Kyiv and Zaporizhzhya to attend those hearings, purchase
of a copying machine and making copies, costs of correspondence and telephone
calls. He noted, however, that he was not in a position at this time to provide
supporting documents for his claims.
The Government noted that the costs and expenses
claimed were not supported by any documents and were not relevant to the
proceedings before the Court.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to the documents
in its possession and the above criteria, the Court rejects the claim for costs
and expenses.
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
1. Declares the applicant’s complaint
concerning the period between 29 August 2000 and 7 October 2009 admissible
and the remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 14 of the Convention taken in conjunction with Article 1 of Protocol
No. 1;
3. 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, EUR 5,000 (five
thousand euros), plus any tax that may be chargeable to the applicant, in
respect of pecuniary damage and non-pecuniary damage, at the rate applicable on
the date of settlement;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 7 November 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Mark
Villiger
Registrar President
