CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 18 juin 2009

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s507451D6 { width:4.53pt; display:inline-block } .s4A0CEAF8 { width:194.77pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } FIRST SECTION FINAL DECISION AS TO THE ADMISSIBILITY OF Application no. 45603/05 by Antonina Dmitriyevna BUDINA against Russia The European Court of Human Rights (First Section), sitting on 18 June 2009 as a Chamber composed of:   Christos Rozakis, President,   Nina Vajić,   Anatoly Kovler,   Elisabeth Steiner,   Khanlar Hajiyev,   Dean Spielmann,   George Nicolaou, judges, and Søren Nielsen, Section Registrar , Having regard to the above application lodged on 21 November 2005, Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court, Having regard to the partial decision of 12 February 2008, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, Ms Antonina Dmitriyevna Budina, is a Russian national who was born in 1948 and lives in Moscow. She is represented before the Court by Mr M. Rachkovskiy, a lawyer practising in Moscow. The Russian Government (“the Government”) are represented by Mrs V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. 1.     Proceedings against Government At the age of six the applicant had bone tuberculosis. A resident of Pushkino (a town in the Moscow Region), in 1995 she was assigned disability status and started to receive a disability allowance. In 2003 the applicant reached retirement age, and on her request the disability allowance was replaced with an old-age pension. Considering the pension inadequate, in October 2004 the applicant asked the Presnenskiy District Court of Moscow to oblige the Government to upgrade it. On 3 March 2005 the court rejected the applicant’s request, because her pension had been calculated in accordance with the law. On 26   May 2005 the Moscow City Court upheld this judgment on appeal. In 2006 and 2007 the applicant applied to the Constitutional Court. She attacked the Law on Pensions insofar as it allowed pensions below the established subsistence level. The court considered these applications beyond its competence because they required a factual assessment of the applicant’s welfare and suggested legislative improvements. In November 2007 the applicant moved from Pushkino to Moscow. 2.     Income when in Pushkino During her life in Pushkino in 2004–07, the applicant’s monthly income included: –     a pension (1,460 Russian roubles (RUB)); –     social aid (RUB 590); and –     compensation for limited ability to work (RUB 410). In addition, she enjoyed the following benefits: –     50% discount on utility bills; –     free public urban and suburban transport; –     50% discount on interurban rail and air transport; –     50% discount on telephone and radio bills; –     free medical assistance; –     50% discount on medical prescriptions; –     free sanatorium treatment; and –     free suburban and interurban transport to the place of the treatment. Once the applicant received an indigence aid of RUB 500. The applicant’s family also benefited from the discount on utility bills. On her request, part of the benefits were monetised. 3.     Income when in Moscow During her life in Moscow from 2007 onwards, the applicant’s monthly income included: –     a pension (RUB 2,250); –     social aid (RUB 3,500); –     compensation for limited ability to work (RUB 490). In addition, she enjoyed the following benefits: –     50% discount on utility bills; –     free public urban and suburban transport; –     50% discount on interurban rail and air transport; –     50% discount on telephone and radio bills; –     free medical assistance; –     free dental prosthetics (except precious metals and cermets); and –     free suburban and interurban transport to the place of treatment. Once the applicant received an indigence aid of RUB 500. On her request, part of the benefits were monetised. B.     Relevant domestic law In Russia each region has its own subsistence level ( прожиточный минимум ). In the Moscow Region and Moscow these levels are fixed by the Moscow Region’s Law no. 13/98-03 of 28 April 1998 and Moscow’s Law no.   23 of 15 May 2002 respectively. In the Moscow Region in 2004–07 the subsistence level for pensioners was RUB   2,540 per month. In Moscow in 2007–08 the subsistence level for pensioners was RUB 4,220 per month. There was no special subsistence level for disabled pensioners. COMPLAINT The applicant complained under Article 2 of the Convention that her pension was too small for survival. THE LAW Referring to Article 2 of the Convention the applicant denounced the small amount of her pension. The Court will examine this complaint under Article 3 of the Convention (see Larioshina v. Russia (dec.), no. 56869/00, 23 April 2002). Insofar as relevant, this Article reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 1.     The Government The Government argued that this complaint was inadmissible for several reasons. The Court had had no competence to examine this complaint ratione materiae , because the right to a pension of a particular amount had been outside the scope of the Convention. The Court had often reiterated this. Otherwise, it would have to examine such social matters as, for example, labour rights, joblessness, and work in a harsh climate. The bodies competent to deal with such matters had been not the Court but the UN   Commission on Human Rights and the UN Human Rights Committee. By examining the merits of this complaint the Court would breach Russia’s sovereignty in social matters. The applicant had failed to exhaust domestic remedies. If she had believed that the authorities had miscalculated her benefits, she should have sued these authorities. If she had believed that the regulations on pensions had breached laws or the Constitution, she should have challenged them in courts or the Constitutional Court. The applicant’s pension had been fixed in accordance with domestic law, and her request for an increase had been groundless. The State had been constantly improving people’s welfare within the confines of economic reality. The subsistence level had been justified and met the applicant’s real needs. Pensions had been complemented with discounts on vital goods and services. The applicant’s aggregate welfare had exceeded the subsistence level. The applicant had missed her chance to increase her income. Her disability degree had left her a limited possibility to work. If the applicant had used that possibility, her pension would have been bigger. The applicant had not shown that her income had caused her suffering incompatible with Article 3. 2.     The applicant The applicant argued that her complaint was admissible. The Court did have competence ratione materiae . Unable to work, in questions of welfare pensioners had been at the State’s mercy. By examining this complaint, the Court would not breach the State’s sovereignty in social matters, but would assess the effect of the State’s policy on the applicant’s physical and psychological integrity. Furthermore, the Court had examined similar complaints before (see Larioshina , cited above). The applicant did exhaust domestic remedies. The proceedings before the Presnenskiy District Court had been meant precisely to challenge the small amount of the pension. The applicant did apply to the Constitutional Court. The official subsistence level had been too low and had not taken into account the applicant’s disability. But during certain periods the applicant’s income had not reached even that level. Only from 2007 had the applicant’s income risen above the subsistence level and in 2008 allowed her to pay for flat maintenance, food, and hygiene items. Nevertheless, she had still been lacking funds for non-food goods, sanitary and cultural services, health and sanatorium treatment. The privilege of free sanatorium treatment had been illusory because it had required an overwhelming amount of paperwork. 3.     The Court As to domestic remedies, the Court notes that the applicant has submitted her complaint to the attention of the Presnenskiy District Court. In addition, contrary to the Government’s statement, the applicant did complain to the Constitutional Court about the possibility of her income being below the subsistence level. The Court therefore considers that the applicant did exhaust domestic remedies as required by Article 35 § 1 of the Convention. As to compatibility ratione materiae , the Court reiterates that the mere fact that an interpretation of the Convention may extend into the sphere of social and economic rights should not be a decisive factor against such an interpretation. There is no water-tight division separating that sphere from the field of civil and political rights covered by the Convention (see Airey v.   Ireland , 9 October 1979, § 26, Series A no. 32). In particular, a wholly insufficient amount of pension and social benefits may raise an issue under Article 3 of the Convention (see Larioshina , cited above). The Court therefore considers that this complaint is not per se incompatible ratione materiae with the provisions of the Convention within the meaning of Article   35   §   3 but must be examined to determine whether there has been treatment of a kind falling within the prohibition of Article 3. The Court recalls that Article 3 may be described in general terms as imposing a primarily negative obligation on States to refrain from inflicting serious harm on persons within their jurisdiction. However, the obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken in conjunction with Article 3, may require States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman and degrading treatment or punishment, for example by affording protection to the vulnerable against ill-treatment inflicted by private individuals (see e.g. A. v. the United Kingdom , judgment of 23   September 1998, Reports 1998-VI, p. 2699, § 22; Z and Others v.   the   United Kingdom [GC], no. 29392/95, ECHR 2001-V; and M.C. v.   Bulgaria , no. 39272/98, §§ 148-153, ECHR 2003 ‑ XII) and safeguarding the health of persons deprived of liberty (see Kudła v. Poland [GC], no.   30210/96, § 94, ECHR 2000-XI). As regards the types of “treatment” which fall within the scope of Article 3 of the Convention, the Court’s case-law refers to “ill-treatment” that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering (see V. v. the United Kingdom [GC], no. 24888/94, §   71, ECHR 1999-IX). Where treatment humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3 (see amongst other authorities, Price v. the United Kingdom , no.   33394/96, §§ 24-30, ECHR 2001-VII, and Valašinas v. Lithuania , no.   44558/98, §   117, ECHR 2001-VIII). Moreover, it is sufficient if the victim is humiliated in his or her own eyes (see the Tyrer v. the United Kingdom judgment of 25 April 1978, § 32, Series A no.   26; Smith and Grady v.   the   United Kingdom , nos. 33985/96 and 33986/96, § 120). Finally, in considering whether a treatment is “degrading” within the meaning of Article   3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3. Even the absence of such a purpose cannot conclusively rule out a finding of a violation of Article 3 ( Peers v .   Greece , no.   28524/95, §§ 67-68, 74; Valašinas , cited above, § 101). In the present case, it cannot be said that the State authorities have imposed any direct ill-treatment on the applicant. The essence of the applicant’s complaint is that the State pension on which she depends for her subsistence and livelihood is not sufficient for her basic human needs. The Court cannot exclude that State responsibility could arise for “treatment” where an applicant, in circumstances wholly dependent on State support, found herself faced with official indifference when in a situation of serious deprivation or want incompatible with human dignity (see O’Rourke v.   United Kingdom, no.   39022/97, 26 June 2001, where the Court held that the applicant’s suffering, notwithstanding that he had remained on the streets for 14 months to the detriment of his health, had not attained the requisite level of severity to engage Article 3 and had, in any event, not been the result of State action rather than his own volition as he had been eligible for public support but had been unwilling to accept temporary accommodation and had refused two offers of permanent accommodation; also see, mutatis mutandis , Nitecki v. Poland , no. 65653/01, 21 March 2002, where, in rejecting the applicant’s complaint about the State’s refusal to refund him the full price of a life-saving drug, the Court noted while Article 2 might be engaged if the authorities of a Contracting State put an individual’s life at risk through the denial of health care which they have undertaken to make available to the population generally, in this case 70% of the drug price had been compensated by the State and the applicant only had to stand for the outstanding 30%). Turning to the facts of the present application, the Court notes that the applicant’s income within the period in question was not high in absolute terms. However, the applicant has failed to substantiate her allegation that the lack of funds translated itself into concrete suffering. On the contrary, in her observations the applicant explained that in 2008 her pension was enough for flat maintenance, food, and hygiene items, but was not enough for clothes, non-food goods, sanitary and cultural services, health and sanatorium treatment. Of these latter items, it appears that the applicant was in fact eligible for free medical treatment. While she claimed that in practice the paperwork for sanatorium treatment was prohibitive, she has not shown that essential medical treatment has, for that reason, been rendered unavailable. Indeed there is no indication in the materials before the Court that the level of pension and social benefits available to the applicant have been insufficient to protect her from damage to her physical or mental health or from a situation of degradation incompatible with human dignity (see also Larioshina , cited above). Therefore even though the applicant’s situation was difficult, especially from 2004 to 2007, the Court is not persuaded that in the circumstances of the present case the high threshold of Article 3 has been met. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3-4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.   Søren Nielsen   Christos Rozakis   Registrar   President