BEREZOVSKIY v. UKRAINE
Inadmissible
Zoryana Bortnovska
The applicant, Mr Yuriy Alekseyevich Berezovskiy, is a Ukrainian national, who was born on 19 October 1937 in the Donetsk Region and lives in Yevpatoria, the Crimea. He is a retired officer of the prosecution service of Ukraine. The respondent Government were represented by their Agents, Ms Valeria Lutkovska, succeded by Ms Zoryana Bortnovska. The facts of the case, as submitted by the parties, may be summarised as follows. In 1964 the applicant commenced work in the prosecution service. On 22 March 1996 the applicant retired from the position of prosecutor-criminologist in the Department of Criminology of the Prosecution Service of the Crimea. However, he was re-appointed and continued working there until 1 January 1999. On that day he voluntarily retired. As from 22 March 1996 he started to receive his pension, calculated on the basis of Article 50-1 of the Law on the Prosecution Service and his years of service. As from 1 July 1999, the Decree of the President of 16 April 1999 provided for a pay rise for the prosecution service employees in accordance with their respective ranks. The pay rise was given effect by two resolutions of the Cabinet of Ministers of 16 November 1999 and 13 December 1999. In March 2000 the applicant applied to have his pension recalculated. On 4 April 2000 the Yevpatoria City Department for Social Protection refused to re-calculate the applicant's pension with reference to the applicant's period of work between 1996 and 1999. It based its decision on a letter, dated 7 March 2000, of the Ministry of Labour and Social Policy (No. 01-3/329-02-06), which provided inter alia that the Law on the Prosecution Service did not envisage the recalculation of pensions following a pay rise. The decision stated that there was no specific resolution of the Cabinet of Ministers dealing with the recalculation of pensions in the event of an intervening pay rise. The applicant complained about this decision to the Ministry of Labour and Social Policy (“the Ministry”) in the Crimea. On 7 April 2000 the Ministry rejected the applicant's complaint, maintaining that the law did not provide for a recalculation of his pension. It also referred to a recommendation by the Supreme Court in a letter dated 5 June 2000 (No. 1-4/229). The Supreme Court recommended to the lower courts that the Decree of the President of 16 April 1999 and the Resolution of the Cabinet of Ministers of 13 December 1999 on pension recalculations were not applicable to persons who had became pensioners under Article 50-1 of the Law on Prosecution Service. On 17 April 2000, the applicant instituted proceedings in the Yevpatoria City Court against the decision of the Yevpatoria City Department of Social Protection refusing him a higher pension. On 7 August 2000, the Yevpatoria City Court rejected his claims as being unsubstantiated, referring to the letter-recommendations of the Supreme Court of 18 May and 5 June 2000. In particular it held that: “... The court has established that, Berezovskiy Y.A., a former employee of the prosecution service, being a pensioner, applied to the Department of Social Protection to have his pension recalculated. He maintained that, since the salaries of the prosecution service employees were to be increased in accordance with the Decree of the President of Ukraine, his pension should thereby be recalculated. The Department of Social Protection refused to recalculate his pension, grounding its decision on the absence of a special resolution of the Cabinet of Ministers in this connection. The Law of Ukraine on the Prosecution Service does not provide for a recalculation of a pension because of a raise in salaries. Since the Department of Social Protection acted in accordance with the explanations of the judicial bodies, the complaint of Berezovskiy against its actions is therefore unsubstantiated ....” On 14 August 2000 the applicant lodged a cassation appeal against this decision. On 11 September 2000, the Supreme Court of the Crimea upheld it. In particular, it stated that: “Having considered the case file, and having discussed the applicant's complaints set out in his cassation appeal and heard the explanations of Berezovskiy Y.A., the judicial chamber holds that it has no basis on which to allow his claims. The decision is in conformity with the legislation and evidence established in the course of the proceedings in the case. In adopting its judgment, the court took into account that the applicable legislation, including the Law on the Prosecution Service, does not provide for a recalculation of pensions on account of changes to the salaries of prosecution service employees who retired from the service. The applicant's complaints that the court decision was adopted on the basis of non-established factual circumstances and did not conform to legislation are unsubstantiated. The evidence was assessed in accordance with Article 62 of the Code of the Civil Procedure of Ukraine and there is no basis on which to declare the judgment erroneous. The court's judgment is correct and substantiated. There are no grounds to annul this judgment. As to the recommendations of the judicial bodies, the judicial chamber considers it necessary to exclude from the judgment of the court the reference to ... the letter of the Supreme Court of Ukraine with regard to this issue... as not being based on the law. Resolves To leave the decision of the Yevpatoria City Court of 7 August 2000 unchanged, and reject the complaints of Berezovskiy Y.A. To exclude from the statement of reasons of the judgment the opinion and the reference of the court, with respect to the claim of Berezovskiy Y.A., to the recommendations of the Supreme Court of Ukraine to the judicial bodies,...” The applicant complained about this decision to the Ministry of Labour and Social Policy of Ukraine. On 7 December 2000 it rejected the applicant's complaint, maintaining that the law did not provide for a recalculation of his pension. It also referred to a recommendation by the Supreme Court in a letter dated 5 June 2000 (No. 1-4/229). The Supreme Court recommended to the lower courts that the Decree of the President of 16 April 1999 and the Resolution of the Cabinet of Ministers of 13 December 1999 on pension recalculations were not applicable to persons who had became pensioners under Article 50-1 of the Law on Prosecution Service. It also referred to the letter-recommendation of 18 May 2000. On 10 February 2001 the applicant wrote a letter to the Ministry of Justice [The Ministry of Justice of Ukraine is responsible for the registration of the legal acts of the bodies of State power] with regard to the legal validity of the recommendations of the Supreme Court as to the recalculation of his pension. On 20 March 2001 the Ministry of Justice responded that letters recommending certain courses of action, issued by State institutions, are not registered by the Ministry, since they are merely legal explanations pertaining to a particular matter. On 16 October 2001 the applicant requested the Yevpatoria City Department of the Pension Fund to recalculate his pension since the entry of the Law of Ukraine “on the Introduction of changes to the Law on the Prosecution Service of 12 July 2001”. On 17 October 2001 the Department of the Pension Fund recalculated his pension. He started to receive an increased pension of UAH 1,046.62. On 15 July 2002 the Department of the Pension Fund recalculated the applicant's pension again due to the entry into force of the Decree of the President of Ukraine of 16 April 1999 and the internal normative acts of the General Prosecution Service. His pension was, accordingly, raised to UAH 1,347.18. “Citizens have the right to social protection that includes the right to a provision in cases of complete, partial or temporary disability, the loss of the principal wage-earner, unemployment due to circumstances beyond their control, and also old age, and in other cases established by law. This right is guaranteed by general mandatory State social insurance on the basis of the insurance payments of citizens, enterprises, institutions and organisations, and also from budgetary and other sources of social security, by the establishment of a network of State, communal and private institutions to care for persons incapable of work. 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 time-in-service pension shall include the relevant postholder's salary, bonuses for the post occupied, time-in-service, and also other payments in accordance with Article 66 of the Law on Pensions.” “Prosecutors and investigators with work experience of not less than 20 years, including those with work experience in the position of prosecutors and investigators of not less than 10 years, have the right to a pension for the time-in-service irrespective of their age... Pensions assigned to employees of the prosecution service shall be recalculated following any increase in the salary of the relevant categories of prosecution officers and investigators. ... The provisions of this Article extend to retired employees of the prosecution service who, before the entry into force of this law, were assigned an old age pension, time-in-service pension or disability pension ..., irrespective of the time when they became pensioners, only work experience being taken into account, as required by this Article. ...” (This Law was amended by Article 50-1, in accordance with Law No. 3662-12 of 26.11.93, and Law No. 2663-III (2663-14) of 12.07.2001.) This Law provided for the recalculation of pensions if a pay rise intervened (Article 69 of the Law). Both texts envisaged pay rises for employees of the prosecution service as of 1 December 1999. This recommendation, by way of a letter issued to the Presidents of the regional courts, stated that the recalculation of pensions shall not cover former employees of the prosecution service who received pensions in accordance with Article 50-1 of the Law on the Prosecution Service. This recommendation, by way of a letter given to the Ministry of Labourg and Social Policy, stated that the recalculation of pensions shall not cover former employees of the prosecution service who received pensions in accordance with Article 50-1 of the Law on the Prosecution Service. The applicant provided the Court with decisions in the cases of former prosecution service officers whose pensions were recalculated following judgments in their favour: – a ruling from the Kyiv City Court of 15 November 2000 on the claim of Lenchevskiy F.S.; – a ruling from the Kyiv City Court of 15 November 2000 on the claim of Buravliov I.I.; – a decision from the Saky City Court of 26 April 2000 on the claim of Grechikhin V.F.; – a decision from the Oktiabrsky City Court of Poltava of 21 April 2000 and the ruling of the Poltava Regional Court of 25 May 2000 upon the claim of Pleskach V.G; and – a decision from the Yevpatoria City Court of 4 May 2000 upon the claim of Maslov I.V. (This judgment was quashed by the Supreme Court of the Crimea on 12 July 2000). The applicant alleged that, in all of these cases, the claimants requested the recalculation of their pensions in view of the changes to the legislation concerning the salaries of prosecution service employees. He further maintained that their claims were allowed. The Government provided the Court with decisions in cases of former prosecution service employees whose claims for recalculated pensions were rejected as the legislation did not provide for such adjustments: – a ruling from the Supreme Court of 4 September 2002 given by a chamber of 15 judges on the claim of Tyurin G.O.; – a judgment of 25 January 2002 from the Chervonozavodsky District Court of Kharkov on the claims of Yurchenko B.T.; – judgments of 24 July 2001 from the Chernigiv Regional Court of Appeal and the Desniansky District Court of Chernigiv of 21 March 2001 on the claims of Trofimov V.I.; – a judgment of 2 July 2001 from the Darnytsky District Court of Kyiv on the claims of Doronkin Y.Y.; – judgments of 11 June and 14 May 2001 from the Lviv Regional Court and the Galytsky District Court of L'viv on the claims of Yoffe M.A.; – a judgment of 28 May 2001 from the Leninsky District Court of Kirovograd on the claims of Solonchenko O.D.; – a judgment of 14 May 2001 from the Minsky District Court of Kyiv on the claims of Prykhodko O.F.; – a ruling of 4 April 2001 from the Chernivtsi Regional Court and the judgment of 2 March 2001 from the Pershotravnevy District Court of Chernivtsi on the claims of Shkirko A.O.; – a ruling of 4 December 2000 from the Donetsk Regional Court and the judgment from the Dzerzhinsky District Court of Donetsk Region on the claims of Lobayev A.A.; – a ruling of 2 November 2000 from the Khmelnytsk Regional Court and the judgment from the Khmelnytsk City Court of 12 October 2000 on the claims of Ionova G.F.; – a ruling of 6 September 2000 from the Chernivtsi Regional Court and the judgment from the Gertsayev City Court of 27 July 2000 on the claims of Kuchuk P.D.; – a ruling of 12 July 2000 from the Supreme Court of the Crimea, rejecting the claims of Maslov I.V. for the recalculation of his pension, and quashing the judgment from the Yevpatoria City Court of 4 May 2000; – a judgment of 7 June 2000 from the Leninsky District Court of Chernivtsi on the claims of Gordyushov P.T.; – a ruling of 31 May 2000 from the Supreme Court of the Crimea on the claims of Zmeykina N.S.; and – a ruling of 25 May 2000 from the Donetsk Regional Court and the judgment of 4 April 2000 from the Krasnolymansky City Court of the Donetsk Region on the claims of Valyk V.I.