MYROSHNYCHENKO v. UKRAINE
Inadmissible
Peer Lorenzen
The applicant, Mr Oleksiy Andriyanovych Myroshnychenko, is a Ukrainian national who was born in 1928 and lives in Jena, Germany. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev. The facts of the case, as submitted by the parties, may be summarised as follows. In 1988 the applicant retired and started receiving an old age pension. On 12 July 1998 the applicant and his wife immigrated to Germany, where they were granted refugee status. Before their departure, on 3 July 1998, they had been paid their pension for six months in advance (12 July 1998 – 12 February 1999) with consecutive termination of payments in accordance with Article 92 of the Law on Pensions. In October 2003 the applicant lodged a complaint with the Constitutional Court claiming that the termination of pension payments to him was unconstitutional. By letter of 23 October 2003 the Registry of the Constitutional Court replied to the applicant that he had no right to lodge a constitutional appeal. In October 2003 the applicant raised the same issue with the Parliamentary Ombudsman for Human Rights. By letter of 29 April 2004, the Ombudsman’s Secretariat replied that the only possible solution to the applicant’s problem was the introduction of legislative changes since the termination of pension payments in case of emigration was directly foreseen by the law. According to the applicant, in January 2004 he lodged a complaint with the Poltava Kievsky District Court, but received no reply. By letter of 9 December 2003, the Supreme Court of Ukraine informed the applicant, in reply to his letter, that it had no competence to act as a first instance court in respect of the applicant’s complaint. In 2005 the applicant again submitted his complaint to the Constitutional Court, as well as to the General Prosecutor’s Office and the President of Ukraine. By letter of 3 March 2005, the Constitutional Court replied to the applicant along the same lines as in its letter of 23 October 2003. The applicant’s complaints to the General Prosecutor’s Office and the President of Ukraine were redirected to the Constitutional Court, which in reply to the applicant referred to its previous letters of 23 October 2003 and 3 March 2005. On 12 January 2006 the applicant lodged an administrative complaint with the Pechersky District Court of Ukraine against the Supreme Court and the Constitutional Court, the Ombudsman, the General Prosecutor’s Office and the President of Ukraine for failure to protect elderly people who emigrated from Ukraine and failure to consider his complaints. On 27 January 2006 the court rejected this complaint for failure to comply with procedural requirements. 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.” “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...” “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 92. Payment of pensions to the citizens who left abroad. “Pensions shall not be granted to citizens who left for permanent residence abroad. The pensions granted in Ukraine before the leave for permanent residence abroad shall be paid for 6 months in advance before departure for abroad. During the stay of these citizens abroad only pensions granted for professional disability or illness shall be payable. The procedure of transferring the pensions granted for professional disability or illness to other countries shall be established by the Cabinet of Ministers of Ukraine.” Article 51 of the Law contains provisions similar to those of second paragraph of Article 92 of the Law on Pensions, cited above. It further foresees that while abroad the person concerned should be paid pension, if such pension payments are foreseen by the international treaty ratified by the Parliament. There is no treaty on social welfare between Ukraine and Germany.