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FIFTH
SECTION
CASE OF LESINA v. UKRAINE
(Application
no. 9510/03)
JUDGMENT
STRASBOURG
19
June 2008
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 Lesina v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Rait
Maruste,
Karel Jungwiert,
Volodymyr
Butkevych,
Renate Jaeger,
Isabelle
Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 27 May 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 9510/03) 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 Vasilyevna Lesina (“the
applicant”), on 9 March 2003.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev, from the Ministry of Justice.
- On
15 December 2005 the
Court decided to give notice of the application to the Government.
Applying Article 29 § 3 of the Convention, it decided to rule on
the admissibility and merits of the application at the same time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1935 and lives in Rischon Le Zion, Israel.
A. Termination of pension payments
- The
applicant had been receiving an old age pension until her departure
to take up permanent residence in Israel in December 1997. Before her
departure, she was paid, at her written request, six months’
pension in advance prior to the termination of such payments in
accordance with section 92 of the Pensions Act.
- In
January 1999 the applicant and her husband wrote a letter to the
Pension Fund of Ukraine requesting the resumption of their pension
payments. In a letter of 15 March 1999, the Pension Fund informed
them that under section 92 of the Pensions Act an old-age pension was
not paid to citizens residing permanently abroad and there were no
legal grounds for resuming payment of their pensions.
- On
13 August 2001 the applicant lodged a complaint with the Pechersky
District Court of Kyiv (hereafter – “the Pechersky
Court”) against the Pension Fund. This complaint was
transferred to the Kievsky District Court of Odessa within whose
jurisdiction the applicant had resided prior to emigration.
- On
25 February 2004 that court found against the applicant, after
establishing that the Pension Fund had acted in accordance with the
law.
- On
13 September 2006 the Odessa Regional Court of Appeal upheld the
decision of the first-instance court. The applicant appealed in
cassation to the Supreme Court.
- On
16 November 2006 the Supreme Court transferred the applicant’s
appeal to the Highest Administrative Court in accordance with the
rules on jurisdiction. The proceedings are still pending.
B. Indexed deposit
- The
applicant held an account in the Savings Bank. At the beginning of
the 1990s her deposit, which was in karbovanets, significantly
depreciated as a result of hyperinflation.
- In
1996 the Ukrainian authorities implemented a monetary reform intended
to replace the former monetary unit, the karbovanets, with a new
currency, the Ukrainian hryvna (українськa
гривня,
UAH), at an exchange rate of 100,000 karbovanets for 1 hryvna.
- On
21 November 1996 the Ukrainian Parliament enacted the Ukrainian
Citizens’ Deposits (State Guarantee of Reimbursement) Act (Law
no. 537/96). Pursuant to section 3 of that Act, the applicant’s
deposit was indexed at a ratio of 1 karbovanets to 1.05 hryvnas.
Section 7 established a system for the indexed savings to be repaid
progressively, taking into account the account holder’s age,
the amount on deposit and other criteria. Each year the Government
brings in regulations specifying the categories of account holders
entitled to receive compensation in the coming year.
- In
April 2000 the applicant wrote a letter to the Savings Bank of
Ukraine requesting the repayment of the entire indexed deposit. On
31 May 2000 the Bank replied that by law indexed deposits
had to be paid gradually in accordance with the procedure laid down
in the relevant legislation.
- On
20 September 2001 the applicant lodged a claim with the Pechersky
Court against the Savings Bank seeking recovery of her indexed
deposit in full.
- On
22 January 2002 the Pechersky Court rejected her claim.
- On
24 April 2002 it sent its decision of 22 January 2002 to a court in
Israel to be officially served on the applicant. It appears that this
was not done.
- According
to the applicant on 24 December 2001 and 10 January 2002
the applicant wrote letters respectively to the Kyiv City Court and
to the Supreme Court requesting information about the results of the
examination of the case. The Supreme Court received the letter in
August 2002 and requested the Pechersky Court to notify the applicant
of the outcome of her case.
- The
applicant maintained that she received a copy of the Pechersky Court
judgment only in January 2004. She appealed to the Kyiv City Court of
Appeal.
- On
28 May 2004 and 19 September 2006 the Kyiv City Court of Appeal and
the Supreme Court upheld the decision of the Pechersky District Court
of 22 January 2002.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in Sheidl v. Ukraine (dec.),
no. 3460/03, 25 March 2008, and Gayduk and Others v. Ukraine
(dec.), nos. 45526/99 et al., ECHR 2002 VI (extracts).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the both sets of proceedings
was incompatible with the “reasonable-time” requirement
laid down in Article 6 § 1 of the Convention, which reads as
follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
A. Admissibility
1. Proceedings against the Savings Bank
- The
period to be taken into consideration began on 20 September 2001
and ended on 19 September 2006. It thus lasted five years for three
levels of jurisdiction. The Court considers that some delays in the
proceedings were caused by the fact that the applicant lived abroad
and there were technical difficulties in serving all the relevant
decisions on her on time. Taking this into account, the length of
these proceedings does not appear to have been excessively long. It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
2. Proceedings against the Pension Fund
- The
period to be taken into consideration began on 13 August 2001 and has
not yet ended. It has thus lasted six years and nine months for three
levels of jurisdiction.
- 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
Government left the issue to the Court’s discretion.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Frydlender, cited above).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court considers
that the length of the proceedings in the instant case was excessive
and failed to meet the “reasonable-time” requirement.
There
has accordingly been a breach of Article 6 § 1.
II. OTHER COMPLAINTS
A. Termination of pension payments
- The
applicant complained that the termination of her pension payments
upon her emigration had violated her rights guaranteed by Article 14
of the Convention, Article 1 of Protocol No. 1 and Article 2 of
Protocol No. 4.
- The
Court notes that the Government did not submit any observations on
the question of the six-month rule. In this respect it reiterates
that the six-month rule, in reflecting the wish of the Contracting
Parties to prevent past decisions being called into question after an
indefinite lapse of time, serves the interests not only of the
respondent Government but also of legal certainty as a value in
itself. It marks out the temporal limits of supervision carried out
by the organs of the Convention and signals to both individuals and
State authorities the period beyond which such supervision is no
longer possible. It is therefore not open to the Court to set aside
the application of the six-month rule solely because a Government
have not made a preliminary objection based on it (see Walker v.
the United Kingdom (dec.), no. 34979/97, ECHR 2000 I).
- The
Court observes that under the Pensions Act the applicant, when
leaving Ukraine to take up permanent residence abroad, received her
pension for six months. The payment was made at her request, so that
the latest date by which she would have been aware that her pension
was to be terminated under section 92 of the Pensions Act would have
been the date of that payment. The Court reiterates its findings in
the Sheidl case (cited above), that the Ukrainian legal system
does not provide an individual with a judicial remedy against
statutory provisions that allegedly violate the Convention. The Court
considers that, in these circumstances, the six-month time-limit ran
from December 1997, when the applicant learned of the termination of
her pension rights. Given that this application was lodged more than
three years later, on 9 March 2003, the Court concludes that the
applicant’s complaints under Article 14 of the Convention,
Article 1 of Protocol No. 1 and Article 2 of Protocol No. 4 were
introduced out of time and must be rejected in accordance with
Article 35 §§ 1 and 4 of the Convention (see
Dudnik and Others v. Ukraine (dec.), nos. 9408/05, 10642/05
and 26842/05, 20 November 2007; and Sheidl v. Ukraine, cited
above).
B. Inability to recover the indexed deposit
- The
applicant further complained that she had been unable to recover her
indexed deposit in the State Savings Bank, in violation of Article 1
of Protocol No. 1.
- The
Court reiterates its findings in the Gayduk and Others case
(cited above), that Article 1 of Protocol No. 1 does not guarantee
any right to acquire the ownership of property and, consequently,
does not impose any general obligation on States to maintain the
purchasing power of sums deposited through the systematic indexation
of savings. The amounts referred to in Law no. 537/96 represent the
indexed value of the deposits. The Court notes that their
availability depends on the amounts which the State allocates to the
Treasury subject to certain conditions. The proceedings issued by the
applicant in the domestic courts did not, therefore, concern
“existing possessions” that belonged to the applicant. In
that connection, the Court reiterates that the right to the
indexation of savings as such is not guaranteed by Article 1 of
Protocol No. 1, (see the Rudzińska decisions cited
above, and Trajkovski v. Former Yugoslav Republic of Macedonia
(dec.), no. 53320/99, ECHR 2002-...), which provision is
therefore inapplicable in the instant case. This part of the
application is accordingly incompatible ratione materiae with
the provisions of the Convention within the meaning of Article 35 §
3 and must be rejected in accordance with Article 35 § 4.
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 17,265.50 euros (EUR) in respect of pecuniary and
non-pecuniary damage.
- The
Government contested these 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, ruling on an equitable basis, it awards the applicant
EUR 600 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 60 for postal expenses.
- The
Government did not express any views on this.
-
The Court considers it reasonable to award the applicant the claimed
amount in full.
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 concerning the excessive
length of the proceedings instituted by the applicant against the
Pension Fund 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
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
sums:
(i) EUR 600 (six hundred euros) in respect of
non-pecuniary damage;
(ii) EUR 60 (sixty euros) for costs and expenses;
(iii) plus any tax that may be chargeable to the applicant on
the above amounts;
(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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 19 June 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
