YERMOLOV proti Ukrajině

FIFTH SECTION

DECISION

Application no. 45172/05
by Vasiliy Ivanovich YERMOLOV
against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 6 March 2007 as a Chamber composed of:

Mr P. Lorenzen, President,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr J. Borrego Borrego,
Mrs R. Jaeger,
Mr M. Villiger, judges,

and Mr J.S. Phillips, Deputy Section Registrar,

Having regard to the above application lodged on 10 November 2005,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

Having regard to the observations submitted by the respondent Government,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Vasiliy Ivanovich Yermolov, is a Ukrainian national who was born in 1931 and lives in Odessa. He was represented before the Court by Mr Vitaliy Zelyonyy. The respondent Government were represented by their Agent, Mr Y. Zaytsev.

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant was discharged from the military in 1976. At that time, he moved to Odessa and started receiving a pension in accordance with the calculations of the Odessa Regional Military Commissariat (the “Commissariat”).

On 14 February 2005 the applicant lodged complaints with the Kyivsky District Court of Odessa (the “Kyivsky Court”) against the Commissariat, seeking that it recalculate his pension due to changes to the base military salary introduced by legislation. In particular, he maintained that the Commissariat had to recalculate his pension taking into account the Presidential Decrees of 14 July 1999 and 23 February 2002 and the Decree of the Minister of Defence of 5 March 2001.

On 19 April 2005 the Kyivsky Court rejected his claims for pension recalculation as being unsubstantiated. In particular, the court referred in its reasoning to paragraph 8 of the Resolution of the Plenary Supreme Court of 15 April 2005 and the relevant legislation on the matter. It found inter alia that recalculation had no retroactive effect on the amounts of pension determined before the changes introduced to the base military salary.

On 21 June 2005 the Odessa Regional Court of Appeal dismissed the applicant’s appeal, finding no grounds for quashing the first instance court judgment. It also upheld the findings of the first instance court.

COMPLAINTS

The applicant alleges that the failure of the State to recalculate his pension amounted to a violation of his rights envisaged by Articles 13 and 17 of the Convention. In substance, the applicant complains under Article 6 § 1 of the Convention that the courts acted unfairly in examining his case and that they did not respect the principles of adversarial proceedings. In particular, he states that the decisions of the domestic courts contravened domestic legislation and practice.

THE LAW

Notice of the application was given to the Government on 9 May 2006. The Government submitted their observations on the admissibility and merits of the applicant’s complaint on 26 June 2006. The applicant has failed to submit observations in reply. Moreover, he has failed to respond to the communications from the Registry of the Court, the last of which was a registered letter dated 17 October 2006 warning the applicant of the possibility that his case might be struck out of the Court’s list if he failed to respond. The applicant’s representative received this letter on 26 October 2006. No reply was received to it.

In these circumstances and taking into account the lack of diligence of the applicant’s lawyer and the absence of a serious indication that the applicant himself wishes to pursue the application in an effective manner (see Falkovych v. Ukraine (striking out), no. 64200/00, § 11, 4 October 2005), the Court, having regard to Article 37 § 1 (a) of the Convention, concludes that the applicant does not intend to pursue the application. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the further examination of this case. Accordingly, the application of Article 29 § 3 of the Convention to the case should be discontinued.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Stephen Phillips Peer Lorenzen
Deputy Registrar President