TATENKO v. UKRAINE
Inadmissible
Peer Lorenzen
The applicant, Ms Lyubov Vasilyevna Tatenko, is a Ukrainian national who was born in 1938 and lives in the city of Donetsk. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, and the Head of the Government Agent’s Office, Mrs I. Shevchuk. The facts of the case, as submitted by the parties, may be summarised as follows. In February 2001 the applicant instituted proceedings in the Prymorsky District Court of Mariupol against the local social welfare department, challenging the refusal of the latter to increase her pension in accordance with the Constitution and the Law on Pensions. On 22 June 2001 the court found against the applicant. In its decision the court noted in particular that: “It is true that the Constitution of Ukraine mentions that the pension should not be lower than the minimum living standard. In this particular case, however, it is not a provision of the Constitution, but a specific legal norm on a pension matter which applies.” The court further concluded that the applicant’s pension was in accordance with the Law of Ukraine on Increasing the Minimum Amount of Pensions and decided against the applicant. The applicant appealed against this decision, claiming that the first instance court misapplied and misinterpreted the relevant pension law and Article 46 of the Constitution. On 13 August 2001 the Donetsk Court of Appeal upheld the decision of the first instance court. The applicant applied for leave to make a cassation appeal. On 5 October 2001 the panel of three judges of the Supreme Court rejected the applicant’s request for leave to make a cassation appeal. The relevant provisions read as follows: “... The norms of the Constitution of Ukraine are norms of direct effect. Appeals to the court in defence of the constitutional rights and freedoms of the individual and citizen directly on the grounds of the Constitution of Ukraine are guaranteed.” “... Pensions and other types of social payments and assistance that are the principal sources of subsistence, shall ensure a standard of living not lower than the minimum living standard (прожитковий мінімум) established by law.” “The Constitutional Court of Ukraine is the sole body of constitutional jurisdiction in Ukraine. The Constitutional Court of Ukraine decides on issues of conformity of laws and other legal acts with the Constitution of Ukraine, and provides the official interpretation of the Constitution of Ukraine and the laws of Ukraine.” “The jurisdiction of the Constitutional Court of Ukraine encompasses: 1) deciding on issues of conformity with the Constitution of Ukraine (the constitutionality) of the following: - laws and other legal acts of the Verkhovna Rada of Ukraine; - acts of the President of Ukraine; - acts of the Cabinet of Ministers of Ukraine; - legal acts of the Verkhovna Rada of the Autonomous Republic of Crimea. These issues are considered on the appeals of: the President of Ukraine; at least forty-five National Deputies of Ukraine; the Supreme Court of Ukraine; the Authorised Human Rights Representative of the Verkhovna Rada of Ukraine; the Verkhovna Rada of the Autonomous Republic of Crimea; 2) the official interpretation of the Constitution of Ukraine and the laws of Ukraine; On issues envisaged by this Article, the Constitutional Court of Ukraine adopts decisions that are mandatory for execution throughout the territory of Ukraine, that are final and shall not be appealed.” Article 11 of the Code provided that courts were to decide a case on the basis of the Constitution, other legislative acts or the international treaties of Ukraine, under the procedure provided for in the Code. By Article 202 of the Code a court decision was to set out the facts of the case established by the court, evidence on which the court’s conclusion was based, and reasons for admitting or rejecting this or that argument, as well as the laws applied by the court. Article 19 of this Law provides as relevant: “Old age pensions shall be established in the amount of 55% of the salary, but not less than the minimum amount of pensions (мінімальний розмір пенсії)... The minimum amount of an old age pension shall be established in relation to the minimum consumer budget (мінімальний споживчий бюджет). In case of economic crisis and a fall in production, the minimum amount of pensions shall be established in an amount which is not lower than the basic standard of income (межа малозабезпеченості). ... The maximum amount of an old age pension shall not exceed ... three times the minimum amount of pensions ...” This Law set the minimum amount of pensions (мінімальний розмір пенсії) at UAH 24.9. The relevant extracts of the Law read as follows: “This Law in accordance with Article 46 of the Constitution of Ukraine defines the minimum living standard, gives legal basis for its fixation, approval and taking into account in realisation by the State of the constitutional guarantee to sufficient living standard for citizens... Article 2. Use of the minimum living standard The minimum living standard shall be used for: - general assessment of the standard of living in Ukraine, which is a basis for realisation of social policy and development of some State social programmes; - fixing the amounts of the minimum wage and minimum old age pension, determination of amounts of social welfare, assistance to families with children, unemployment benefit, as well as stipends and other social payments in accordance with requirements of the Constitution of Ukraine and laws of Ukraine...” The relevant extracts of the Law read as follows: “Article 1. The minimum living standard for 2000 per person shall be fixed at the amount of 270.1 hryvnas per month... Article 2. The minimum living standard for 2000 shall be used for general assessment of the standard of living in Ukraine.” The relevant parts of the Resolution read as follows: “2. Since the Constitution of Ukraine, as stipulated in its Article 8, has the highest legal force, and its norms are norms of direct effect, the courts, in consideration of concrete cases, shall assess the content of any law or any other legal act for its compliance with the Constitution of Ukraine and, where necessary, shall apply the Constitution as an act of direct effect. The court decisions shall be based on the Constitution and the current legislation which does not contradict it. In case of doubt as to the compliance with the Constitution of Ukraine of a particular law, as applied or applicable in a case, the court, upon the motion of the parties to the proceedings or of its own motion, shall suspend consideration of the case and apply, by way of a reasoned decision (ruling), to the Supreme Court of Ukraine which, under Article 150 of the Constitution, may raise before the Constitutional Court the issue of compliance of laws and other legal acts with the Constitution. Such decisions can be taken by the first instance court, court of cassation or the court which considers a supervisory review...” The case concerned budgetary restrictions proposed in the State Budget of 2001 with respect to privileges, compensations and guarantees foreseen by different legislative acts. The relevant parts of the decision read as follows: “The Constitutional Court of Ukraine ... ...2. ... considered that, since the third paragraph of Article 46 of the Constitution of Ukraine declared that “pensions and other types of social payments and assistance that are the principal sources of subsistence, shall ensure a standard of living not lower than the minimum living standard established by law”, the suspension for 2001 of privileges, compensations and guarantees provided for in the current legislation, led to a violation of constitutional rights of a significant number of Ukrainian citizens. At the present ... the maximum amounts of an old age pension are respectively 129 and 172 hryvnas... ... At the same time, the Law of Ukraine “on Fixing the Minimum Living Standard for 2001” of 22 March 2001 approved the minimum living standard for 2001 at 311.3 hryvnas a month per person...The Law of Ukraine “on the Minimum Living Standard” of 15 July 1999 no. 966-XIV defines the minimum living standard as a cost value of set of food products sufficient for normal functioning of human body, preservation of its health, as well as minimum set of goods and minimum set of services which are necessary for main social and cultural needs of a person. With a view to the above, the Constitutional Court considers that some of privileges, compensations and guarantees suspended for 2001 ... are not privileges, compensations and guarantees as such for the people to whom they were granted by law, since their pensions and salaries are significantly lower than the minimum living standard established by law, these privileges, compensations and guarantees serve as a particular social aid, support; supplement to the principles sources of subsistence and are aimed at realisation of a constitutional right of every citizen to sufficient living standard ... Therefore, suspension of privileges, compensations and guarantees paid from the budgets of all levels ... violates the provisions of ... the third part of Article 46 ... of the Constitution ...” The Constitutional Court decided that the provisions suspending the privileges, compensations and guarantees paid from the budget were unconstitutional.