European Court of Human Rights

 

 

 

FIFTH SECTION

CASE OF VALENTYN IVANOV v. UKRAINE

(Application no. 9021/11)

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

25 March 2021

This judgment is final but it may be subject to editorial revision.

In the case of Valentyn Ivanov v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

          Stéphanie Mourou-Vikström, President,
          Ganna Yudkivska,
          Lado Chanturia, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 9021/11) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Valentyn Ivanovych Ivanov (“the applicant”), on 21 January 2011;

the decision to give notice to the Ukrainian Government (“the Government”) of the complaint under Article 6 § 1 of the Convention concerning the fairness of proceedings, and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated in private on 4 March 2021,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1.  The present case concerns a failure of the national courts to address a specific and pertinent argument which was important to the outcome of the applicant’s case concerning the allocation of the “children of war” supplement to his pension. The applicant invoked Article 6 § 1 of the Convention.

THE FACTS

2.  The applicant was born in 1933 and lives in Dnipro. The applicant, who had been granted legal aid, was represented by Mr A.S. Kychenok, a lawyer practising in Kyiv.

3.  The Government were represented by their Agent, Mr I. Lishchyna.

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

5.  On 26 January 2009 the applicant wrote to the Krasnogvardiyskyy Branch of the Pension Fund in Dnipropetrovsk (hereinafter “the Pension Fund”) seeking a recalculation of his pension for the period between 9 July 2007 and 31 December 2008 to include a “children of war” supplement equal to 30% of the minimum pension, and allocation of the same supplement as from 1 January 2009.

6.  On 20 February 2009 the Pension Fund dismissed the request for a recalculation.

7.  On 15 May 2009 the applicant initiated administrative proceedings against the Pension Fund in the Krasnogvardiyskyy District Court of Dnipropetrovsk, seeking a recalculation of his pension to include the “children of war” supplement for the period between 2006 and 2008, payment of the outstanding index-linked amount, and allocation of the same supplement as from 2009. The applicant attached his letter of 26 January 2009 to the Pension Fund to his claim.

8.  On 16 February 2010 the District Court partly allowed the claim. It referred to the Constitutional Court’s decisions of 9 July 2007 and 22 May 2008, which declared unconstitutional the provisions of the 2007 and 2008 State Budget Acts suspending and modifying payments of the “children of war” supplement for the respective years. Consequently, the court ordered a recalculation of the applicant’s pension for the periods between 9 July and 31 December 2007 and between 22 May and 31 December 2008. The court further found that the applicant’s claim for 2006 had to be rejected, as his right to additional payments had only arisen on 9 July 2007, the date of the Constitutional Court’s decision. The District Court also dismissed the claim for 2009, since the applicant had not provided evidence proving that he had asked the Pension Fund to allocate the “children of war” supplement for that period.

9.  The Pension Fund and the applicant appealed to the Dnipropetrovsk Regional Court of Appeal. The applicant asked the Court of Appeal to quash the first-instance court’s decision and to allow his claim in full.

10.  On 30 July 2010 the Court of Appeal considered the Pension Fund’s appeal and dismissed it as unsubstantiated.

11.  On 29 November 2010 the applicant lodged another written submission with the Court of Appeal, stressing that the first-instance court had disregarded his letter of 26 January 2009 to the Pension Fund, which he had attached to his initial administrative claim.

12.  On 16 March 2011 the Court of Appeal dismissed the applicant’s appeal as unsubstantiated. It reasoned that in 2006 the Cabinet of Ministers had not set up a procedure for payment of the “children of war” supplement, which rendered payment impossible. The appellate court further upheld the first-instance court’s reasoning regarding the recalculation of the applicant’s pension for the periods in 2007 and 2008, but did not comment on the applicant’s claim for the period from 2009 onwards.

13.  The applicant lodged a cassation appeal, complaining that the Court of Appeal had failed to consider evidence proving that he had asked the Pension Fund to allocate the disputed supplement from 1 January 2009.

14.  On 14 June 2011 the Higher Administrative Court of Ukraine upheld the decision and reasoning of the lower courts. The court commented on the applicant’s claim for the periods in 2007 and 2008, but did not deal with the claim for 2009.

RELEVANT LEGAL FRAMEWORK and practice

15.  The relevant provision of the Code of Administrative Justice read, at the relevant time, as follows:

Article 159. Lawfulness and reasoning of judicial decisions

“1. A court decision must be lawful and reasoned.

2. A decision is lawful if the court, having complied with all the requirements of procedural law, has adjudicated the case in line with substantive law.

3. A decision is reasoned if it is made on the basis of a complete and thorough assessment of the circumstances of an administrative case, which have been corroborated by the evidence examined at the court hearings.”

16.  The relevant domestic law and practice on the “children of war” supplement for the period 2006 to 2009 can be found in the case of Sukhanov and Ilchenko v. Ukraine (nos. 68385/10 and 71378/10, §§ 17-25, 26 June 2014).

THE LAW

I.       ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

17.  The applicant complained that the domestic courts had failed to examine his main evidence in support of his claim for a “children of war” supplement to his pension for 2009 (“the supplement”). He relied on Article 6 § 1 of the Convention, which reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

A.    Admissibility

18.  The Government submitted that, according to their calculation, the amount of unpaid supplement for 2009 amounted to 1,195.20 Ukrainian hryvnias, which was equivalent to no more than 200 euros (EUR). They asked the Court to reject the claim for lack of significant financial disadvantage.

19.  The applicant replied that the calculation should not be limited to the year 2009. When taking into account the years up to 2019, the total amount would be the significant sum of EUR 2,376.

20.  The Court notes that it is not its task to decide which sum had to be paid to the applicant. This exact question was put to the national courts when the applicant asked them to award him the supplement for the period from 2009 onwards. At the same time, the Court points out that the applicant’s claim was not limited to the year 2009 and the amount of unpaid supplement might have been higher than that indicated by the Government. Consequently, the Government’s objection must be dismissed.

21.  The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B.     Merits

22.  The applicant maintained his complaint.

23.  The Government referred to a letter of 25 November 2019 from the Head of the Krasnogvardiyskyy District Court of Dnipropetrovsk stating that the material in the case file in the applicant’s administrative case had been destroyed owing to the expiry of the limitation period for its storage. They further submitted that the applicant could have attended the hearings before the court of first instance and the appellate court and would have had an opportunity to raise his arguments during those hearings. The applicant’s absence from the hearings suggested that he had not displayed the diligence expected of a claimant and that the proceedings in question had not been of significance to him.

24.  Further, the Government argued that both the appellate and the cassation courts had acknowledged the applicant’s right to the 30% “children of war” supplement for 2007 and 2008. They concluded that the national courts had given reasoned replies to the applicant’s claim and had sufficiently clarified the circumstances of the case. It was for the domestic courts to interpret and apply the rules of procedural or substantive law as they were better placed to assess the credibility of witnesses and the relevance of evidence to the issues in the case. The Government asked the Court to dismiss the complaint as manifestly ill-founded.

The Court’s assessment

25.  A summary of the relevant general principles can be found in Mala v. Ukraine, no. 4436/07, §§ 47-49, 3 July 2014.

26.  In the present case the applicant attached to his administrative claim his letter of 26 January 2009 to the Pension Fund, in which he had asked the latter to allocate the supplement to him. The first-instance court dismissed the applicant’s claim for the supplement, ruling that he had not proved that he had applied to the Pension Fund requesting the allocation. The applicant further referred to his letter of 26 January 2009 in his written submissions to the appellate court and the court of cassation. Neither the Dnipropetrovsk Regional Court of Appeal nor the Higher Administrative Court addressed this important point, which was of key significance to the applicant’s claim.

27.  It is not the task of the Court to decide what would have been the most appropriate way for the domestic courts to deal with this argument. However, having regard to the circumstances of this case, and specifically to the domestic courts’ failure to address the above-mentioned point altogether, even though it was specific, pertinent and important, the Court considers that the administrative proceedings did not comply with the principle of fairness enshrined in Article 6 § 1 of the Convention.

28.  There has accordingly been a violation of that provision.

II.    APPLICATION OF ARTICLE 41 OF THE CONVENTION

29.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.    Damage

30.  The applicant claimed 2,376 euros (EUR) in respect of pecuniary damage and EUR 7,500 in respect of non-pecuniary damage.

31.  The Government submitted, with regard the claim for pecuniary damage, that there was no causal link between the alleged violation and the loss allegedly sustained and that the claim for non-pecuniary damage was unsubstantiated. They asked the Court to reject the applicant’s claim for damages.

32.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged and therefore rejects this claim; however, it awards the applicant EUR 900 in respect of non-pecuniary damage.

B.      Costs and expenses

33.  The applicant did not submit any claims for costs and expenses. The Court therefore makes no award in this respect.

C.    Default interest

34.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the complaint concerning the fairness of the proceedings admissible;

2.      Holds that there has been a violation of Article 6 § 1 of the Convention;

3.      Holds

(a)   that the respondent State is to pay the applicant, within three months, EUR 900 (nine hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.      Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 25 March 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Martina Keller                                                     Stéphanie Mourou-Vikström
Deputy Registrar                                                                  President