DMYTRENKO AND BEZDOROZHNIY v. UKRAINE - 59552/11 (Judgment : Protection of property : Fifth Section Committee) [2020] ECHR 515 (02 July 2020)

JUDGMENT STRASBOURG 2 July 2020 This judgment is final but it may be subject to editorial revision. In the case of Dmytrenko and Bezdorozhniy v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Mārtiņš Mits, President, Ganna Yudkivska, Lәtif Hüseynov, judges, and Anne-Marie Dougin, Acting Deputy Section Registrar, Having regard to: the applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Ukrainian nationals, Mr Mykola Mykolayovych Dmytrenko (“the first applicant” - application no. 59552/11 , lodged on 12 September 2011) and Mr Mykhaylo Garasymovych Bezdorozhniy (“the second applicant” - application no. 7096/12 , lodged on 29 January 2012); the decision to give notice of the applicants’ complaints under Article 1 of Protocol No. 1 of the State’s failure to pay a supplement to their pensions for the period between 2 April and 31 December 2006 to the Ukrainian Government (“the Government”) and to declare the remainder of the applications inadmissible pursuant to Rule 54 § 3 of the Rules of Court; the Government’s observations; Having deliberated in private on 9 June 2020, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1. The case concerns the applicants’ complaints under Article 1 of Protocol No. 1 of the State’s failure to pay a supplement to their pensions. THE FACTS 2. The first applicant was born in 1943 and lives in Donetsk. The second applicant was born in 1936. On 5 November 2019 Mr Yuriy Mikhaylovich Bezdorozhniy, the son and the heir of the second applicant, informed the Court that the latter had died in 2015 and expressed his wish to pursue the application. 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. The first applicant has, and the second applicant had, the special status of “child of war” (a person who on 2 September 1945 was no more than 18 years of age) under the Children of War Social Protection Act in force as of 1 January 2006 (“the Children of War Act”). Article 6 of the above Act entitled them to a special supplement to their pension in the amount of 30% of the minimum pension. 6. The applicants instituted court proceedings against the Pension Fund of Ukraine, claiming, inter alia , the above pension supplement for the period between 2 April and 31 December 2006. 7. By final decisions delivered on 13 May and 18 August 2011 respectively, the Higher Administrative Court of Ukraine and the Donetsk Administrative Court of Appeal rejected the applicants’ claims. The courts found that by virtue of the amendments to the State Budget Act 2006, with effect from 2 April 2006, the above pension supplement was to be introduced gradually in 2006, in accordance with a procedure elaborated by the Cabinet of Ministers. However, since in 2006 no such procedure had been elaborated, there was no ground for allowing the claims. 8. Furthermore, on 31 December 2010 the Kuybyshevskyy District Court of Donetsk ordered the Pension Fund to calculate and pay to the second applicant the pension supplement for the periods between 9 July and 31 December 2007 and between 22 May 2008 and 31 December 2010. The above judgment, which became final on 18 August 2011, remains unenforced. RELEVANT LEGAL FRAMEWORK AND PRACTICE 9. The provisions of the relevant domestic law and practice are set out in the case of Sukhanov and Ilchenko v. Ukraine (nos. 68385/10 and 71378/10 , §§ 17-25, 26 June 2014) . THE LAW I. JOINDER OF THE APPLICATIONS 10. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II. LOCUS STANDI OF MR BEZDOROZHNIY 11. In their comments on the claims for just satisfaction submitted by Mr Yuriy Mikhaylovich Bezdorozhniy the Government stated that the latter had not provided confirmation that he was the second applicant’s son and only heir in order to prove that he had standing to continue the present proceedings in that applicant’s stead. 12. The Court notes that, following the Registry’s request, Mr Bezdorozhniy provided documents confirming his status as the second applicant’s son and only heir. Those documents were also forwarded to the Government for information. 13. The Court thus considers that Mr Bezdorozhniy has duly confirmed his status as the second applicant’s son and only heir. In the absence of any other submissions from the Government as regards his standing to pursue the application, and noting further that the case concerns a property right which is, in principle, transferable to the heirs of the deceased (see, for instance, Sharenok v. Ukraine , no. 35087/02 , § 12, 22 February 2005), the Court considers that Mr Bezdorozhniy has standing to continue the present proceedings in the second applicant’s stead. However, reference will still be made to the second applicant throughout the remainder of the judgment. III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF THE STATE’S FAILURE TO PAY THE PENSION SUPPLEMENT 14. The applicants complained under Article 1 of Protocol No. 1 of the State’s failure to pay the supplement to their pensions in the relevant period in 2006 pursuant to Article 6 of the Children of War Act. The above provision reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility 15. The Government submitted that, even assuming that the applicants had been unlawfully deprived of their possessions, the pension supplement claimed by them had been negligible and should not raise any issue under the Convention. According to them, the total amount due for the relevant period had been 159 euros (EUR). Referring to Svystun v. Ukraine ((dec.), no. 25250/16 and 2 other applications, 3 November 2016), they submitted that the amount, which was less than EUR 200 and had not constituted the primary source of income for any applicant, showed that the applicants had not suffered a significant disadvantage. 16. The Court notes that it was for the Cabinet of Ministers to determine in 2006 the size of the pension supplement claimed by the applicants (see Sukhanov and Ilchenko , cited above, §§ 54-55). However, no relevant decision was eventually made by it (ibid.). In such circumstances, the Court cannot speculate on the exact amount of the pension supplement for the relevant period in 2006 which the applicants should have received and, accordingly, on the losses sustained by them as a result of the alleged violation (ibid., § 64) . It therefore dismisses the Government’s above objection. 17. The Court further notes that the applicants’ complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 18. The Court reiterates that in the aforementioned case of Sukhanov and Ilchenko , which concerned an identical issue to the present one, it found that the failure of the State to act, that is to say to determine the amount of the pension supplement to be paid to the applicants in the relevant period in 2006, constituted an interference with their rights under Article 1 of Protocol No. 1. No arguments were provided by the Government to explain this inactivity which had kept the applicants in uncertainty. The Court thus did not see any reason why the authorities failed to take any steps to determine the amount of the supplement to the applicants’ pension and considered that interference unjustified, in breach of the above provision (ibid., §§ 55-56). 19. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that the interference with the applicants’ rights under Article 1 of Protocol No. 1 in the relevant period in 2006 has been unjustified. 20. There has accordingly been a breach of the above provision. IV. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF THE NON-ENFORCEMENT OF THE JUDGMENT 21. The second applicant also complained of the non-enforcement of the judgment of 31 December 2010 (see paragraph 8 above). He referred to Article 1 of Protocol No. 1. 22. The Court finds that this part of the application is a follow-up to the Burmych and Others judgment and shall be dealt with in accordance with the procedure envisaged therein (see Burmych and Others v. Ukraine (striking out) [GC], nos. 46852/13 et al, § 221, 12 October 2017), that is to say struck out and transmitted to the Committee of Ministers of the Council of Europe in order for it to be dealt with in the framework of the general measures of execution of the pilot judgment in the case of Yuriy Nikolayevich Ivanov v. Ukraine (no. 40450/04 , 15 October 2009; see, similarly, Kruchko and Others v. Ukraine [Committee], nos. 52227/10 and 3 others, § 12, 4 October 2018). V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 23. 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.” 24. The first applicant did not submit any claims for just satisfaction. The second applicant claimed 1,746 euros (EUR) in respect of pecuniary damage (this sum representing the pension supplement allegedly due to him for the period between 2006 and 2015) and EUR 30,000 in respect of non‑pecuniary damage. He also asked the Court to reimburse him unspecified costs relating to the submission of his application. 25. The Government contested the second applicant’s claims. 26. As to the first applicant, the Court notes that he did not submit a claim for just satisfaction. In the absence of any exceptional circumstances (contrast Nagmetov v. Russia [GC], no. 35589/08 , § 92, 30 March 2017) the Court therefore makes no award to him. 27. As regards the second applicant and his claim for pecuniary damage, the Court notes that its examination is limited to his complaint about the State’s failure to pay the pension supplement in the relevant period in 2006. Furthermore, it reiterates that it is not its role to substitute itself for the national authorities and to calculate the amount of the pension supplement payable to the applicant in 2006, given the failure of the national authorities to adopt any decision on the matter. Accordingly, it considers that it would be more appropriate for this issue to be addressed at the stage of enforcement of the present judgment (see Sukhanov and Ilchenko , cited above, § 64, and Filozofenko v. Ukraine [Committee], no. 72954/11, § 24, 9 January 2020). On the other hand, it awards the second applicant EUR 900 in respect of non-pecuniary damage (see Sukhanov and Ilchenko , cited above, § 65). Lastly, the Court rejects the second applicant’s claim for costs relating to the submission of his application as it is unsubstantiated. 28. 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. Decides to join the applications; 2. Holds that Mr Bezdorozhniy has standing to continue the present proceedings in the second applicant’s stead; 3. Decides to strike the part of application no. 7096/12 concerning the non‑enforcement of the judgment of 31 December 2010 out of the Court’s list of cases pursuant to Article 37 § 1 (c) of the Convention and transmit it to the Committee of Ministers of the Council of Europe in order for it to be dealt with in the framework of the general measures of execution of the above-mentioned Ivanov pilot judgment; 4. Declares application no. 59552/11 and the remainder of application no. 7096/12 admissible; 5. Holds that there has been a violation of Article 1 of Protocol No. 1 on account of the State’s failure to pay to the applicants pension supplements in the relevant period in 2006; 6. Holds (a) the respondent State is to pay Mr Bezdorozhniy, within three months, EUR 900 (nine hundred euros) in respect of non-pecuniary damage, plus any tax that may be chargeable on the above amount, which is to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (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; 7. Dismisses the remainder of the second applicant’s claim for just satisfaction. Done in English, and notified in writing on 2 July 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Anne-Marie Dougin Mārtiņš Mits Acting Deputy Registrar President BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII