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FIFTH
SECTION
CASE OF SUK v. UKRAINE
(Application
no. 10972/05)
JUDGMENT
STRASBOURG
10
March 2011
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 Suk v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean
Spielmann,
President,
Elisabet
Fura,
Boštjan
M. Zupančič,
Isabelle
Berro-Lefèvre,
Ann
Power,
Ganna
Yudkivska,
Angelika
Nußberger,
judges,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 15 February 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 10972/05) 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 Grygoriy Grygorovych
Suk (“the applicant”), on 12 March 2005.
- The
applicant was represented by Mr M. Belym, a lawyer practising in the
village of Shcherbani, Poltava region. The Ukrainian Government (“the
Government”) were represented by their Agent, Mr Y. Zaytsev,
from the Ministry of Justice.
- The
applicant alleged, in particular, that the domestic authorities
deprived him of his possessions in breach of Article 1 of Protocol
No. 1 to the Convention.
- On
25 January 2010 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1956 and lives in the city of Poltava.
- In
November 2001 the applicant instituted proceedings in the Poltava
Kyivsky District Court against his former employer – the
Poltava Regional Fire Safety Department – claiming payment
arrears of a monthly subsistence allowance for the years 1999 and
2000.
- On
27 September 2002 the court found in part for the applicant and
awarded him 767.04 Ukrainian hryvnias (UAH).
- On
11 October 2002 the same court rectified its judgment of 27 September
2002 and increased the amount awarded to UAH 797.04.
- On
15 April 2003 the Poltava Regional Court of Appeal quashed the
decisions of 27 September and 11 October 2002 and rejected the
applicant’s claims. The appellate court based its findings on
the fact that the Budget Act 2000 had not foreseen expenditure for
the payments under the applicable Presidential Decree, and therefore
held that the applicant had no entitlement to such payments during
the impugned period under the Budgetary System Act.
- On
15 September 2004 the Supreme Court of Ukraine rejected a cassation
appeal lodged by the applicant against the decision of 15 April 2003.
II. RELEVANT DOMESTIC LAW
A. Constitution of Ukraine
- The
relevant provision of the Constitution reads as follows:
Article 95
“The budgetary system of Ukraine is built on the
principles of just and impartial distribution of social wealth among
citizens and territorial communities.
All expenditure by the State for social purposes, and
the amount and aims thereof, shall be determined by the State Budget
Act of Ukraine.
The State aspires to achieve a balanced budget for
Ukraine.
Regular reports on revenue and expenditure of the State
Budget of Ukraine shall be made public.”
B. Budgetary System Act (in force at the material time)
- Section
28 of the Act provides, in so far as relevant, as follows:
“... The State Budget Act of Ukraine shall not
make ... changes to existing legislation. If necessary, changes or
additions are made initially to the relevant laws ...
... If the draft State Budget Act of Ukraine does not
provide full funding within available resources of the costs set
forth in Ukrainian legislation, the Verkhovna Rada of Ukraine shall
enact the State Budget Act of Ukraine without amending current
legislation. Such legislation is valid during the budget year only to
the extent that it does not contradict the State Budget Act of
Ukraine.
If the Verkhovna Rada has not approved the full costs of
salaries and additional payments, the corresponding number of staff
of the institutions financed from the budget shall be made
redundant.”
C. Presidential Decree no. 926/96 of 4 October 1996 on
conditions for the financial subsistence of soldiers and officers and
remuneration of employees of the agencies of the Interior (in force
at the material time)
- The
relevant part of the Decree reads as follows:
“In order to regulate the financial subsistence of
soldiers and officers of the Interior, I decide:
2. To pay:
...
material assistance in the amount of a monthly salary
[payable] once a year to soldiers and officers of the Interior ...”
- The
Decree was abolished by Presidential Decree no. 1234/2007 of 18
December 2007.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE
CONVENTION
- The
applicant complained that the domestic authorities deprived him of
his possessions. He 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.”
A. Admissibility
- The
Government maintained that the applicant had never had a final and
binding judgment in his favour and the fairness of the domestic
proceedings which resulted in ultimate rejection of the applicant’s
claim for the monthly subsistence allowance had not been questioned
by the applicant. Therefore, they considered that the applicant could
not claim to be a victim of a violation of his Convention rights.
- The
applicant did not comment.
- The
Court notes that the issue in the present case is not related to a
“claim” before the domestic courts, which can constitute
a “possession” within the meaning of Article 1 of
Protocol No. 1 (see, among other authorities, Burdov v. Russia,
no. 59498/00, § 40, ECHR 2002-III), but rather entitlement to a
payment that derives directly from a valid and foreseeable provision
of the domestic law (see Kechko v. Ukraine, no. 63134/00,
§ 23, 8 November 2005). Therefore, the Court rejects this
argument of the Government as irrelevant.
- The
Court further notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) 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 considered that the State authorities’ ultimate
refusal to afford the subsistence payment to which he had been
entitled under the law constituted an interference with his property
rights.
- The
Government maintained that the applicant’s complaint concerned
neither an “existing possession” nor a “legitimate
expectation” to receive such a possession. They considered that
there was no final and binding judgment confirming his entitlement to
such payments and that the domestic legislation clearly provided that
payment of the subsistence payment in question could be effected only
in case of sufficient budgetary funds.
- The
Court reiterates that the concept of “possessions” in the
first part of Article 1 of Protocol No. 1 has an autonomous meaning,
which is not limited to ownership of physical goods and is
independent of the formal classification in domestic law. Certain
other rights and interests constituting assets, for instance debts,
can also be regarded as “property rights”, and thus
“possessions” for the purposes of this provision. The
issue that needs to be examined is whether the circumstances of the
case, considered as a whole, conferred on the applicant an
entitlement to a substantive interest protected by Article 1 of
Protocol No. 1 (see Broniowski v. Poland (dec.) [GC],
no. 31443/96, § 98, ECHR 2002 X).
- The
Court considers that it is within the State’s discretion to
determine what benefits are to be paid to its employees out of the
State budget. The State can introduce, suspend or terminate the
payment of such benefits by making the appropriate legislative
changes. However, once a legal provision is in force which provides
for the payment of certain benefits and any conditions stipulated
have been met, the authorities cannot deliberately refuse their
payment while the legal provision remains in force (see Kechko v.
Ukraine, cited above, § 23).
- The
Court observes that the applicant’s claim before the domestic
authorities was based on an express provision of domestic law which
was in effect at the material time (see paragraph 13 above). The
subsistence payment in question was payable with reference to a
single, objective condition – employment as an active soldier
or police officer. As the applicant had fulfilled this condition, he
can be said to have had a reasonable expectation, if not a right, to
receive the payment in question. It is not the Court’s task to
replace the domestic authorities in the interpretation of domestic
law. However, in the instant case the domestic courts relied in their
decisions on the fact that the Budget Act 2000 had not foreseen
expenditure for the payments payable under the applicable
Presidential Decree, and therefore held that the applicant had no
entitlement to such payments during the impugned period under the
Budgetary System Act. It therefore appears that the domestic courts
ignored the provisions of Section 28 of the Budgetary System Act,
which prohibited the annual State Budget Acts from introducing
changes to other legislation without the latter having been changed
first (see respectively paragraphs 9 and 12 above). Furthermore, the
Court does not accept the Government’s budgetary argument, as
it is not open to a State authority to cite a lack of funds as an
excuse for not honouring its obligations (see, mutatis mutandis,
Burdov v. Russia, cited above, § 35). Therefore, the
ultimate denial by the domestic authorities of the applicant’s
entitlement to this benefit for the period in question appears to be
arbitrary and not based on the law.
- Therefore,
there has been a violation of Article 1 of Protocol No. 1.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also complained under Article 6 of the Convention about the
outcome of the proceedings. He equally complained under Article 14
that he had been discriminated against because one of his colleagues
obtained a favourable decision from the courts in a similar dispute.
- The
Court has examined the remainder of the applicant’s complaints
as submitted by him. However, in the light of all the material in its
possession, and in so far as the matters complained of are within its
competence, the Court finds that they do not disclose any appearance
of a violation of the rights and freedoms set out in the Convention
or its Protocols.
- Accordingly,
it rejects this part of the application in accordance with Article 35
§§ 3 (a) and 4 of the Convention as being manifestly
ill-founded.
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.”
- The
applicant did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award him any sum on
that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the applicant’s complaint under
Article 1 of Protocol No. 1 admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention;
Done in English, and notified in writing on 10 March 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean Spielmann Registrar President
