The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:<\/p>\n
M\u0101rti\u0146\u0161 Mits, President,
\nGanna Yudkivska,
\nL\u04d9tif H\u00fcseynov, judges,
\nand Anne-Marie Dougin, Acting Deputy Section Registrar,<\/p>\n
Having regard to:<\/p>\n
the applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by two Ukrainian nationals, Mr Mykola Mykhaylovych[1] Dmytrenko (\u201cthe first applicant\u201d \u2013 application no.\u00a059552\/11, lodged on 12\u00a0September 2011) and Mr Mykhaylo Gerasymovych[2] Bezdorozhniy (\u201cthe second applicant\u201d \u2013 application no.\u00a07096\/12, lodged on 29\u00a0January 2012);<\/p>\n
the decision to give notice of the applicants\u2019 complaints under Article 1 of Protocol No. 1 of the State\u2019s failure to pay a supplement to their pensions for the period between 2 April and 31 December 2006 to the Ukrainian Government (\u201cthe Government\u201d) and to declare the remainder of the applications inadmissible pursuant to Rule\u00a054\u00a0\u00a7\u00a03 of the Rules of Court;<\/p>\n
the Government\u2019s observations;<\/p>\n
Having deliberated in private on 9 June 2020,<\/p>\n
Delivers the following judgment, which was adopted on that date:<\/p>\n
![\"INTRODUCTION\"](\"https:\/\/laweuro.com\/wp-content\/uploads\/2021\/10\/INTRODUCTION.jpg\")
<\/p>\n
1. The case concerns the applicants\u2019 complaints under Article 1 of Protocol No. 1 of the State\u2019s failure to pay a supplement to their pensions.<\/p>\n
THE FACTS<\/strong><\/p>\n 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.<\/p>\n 3. The Government were represented by their Agent, Mr I. Lishchyna.<\/p>\n 4. The facts of the case, as submitted by the parties, may be summarised as follows.<\/p>\n 5. The first applicant has, and the second applicant had, the special status of \u201cchild of war\u201d (a person who on 2\u00a0September 1945 was no more than 18 years of age) under the Children of War Social Protection Act in force as of 1 January 2006 (\u201cthe Children of War Act\u201d). Article 6 of the above Act entitled them to a special supplement to their pension in the amount of 30% of the minimum pension.<\/p>\n 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.<\/p>\n 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\u2019 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.<\/p>\n 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\u00a0July and 31\u00a0December 2007 and between 22 May 2008 and 31 December 2010. The above judgment, which became final on 18\u00a0August 2011, remains unenforced.<\/p>\n RELEVANT LEGAL FRAMEWORK AND PRACTICE<\/p>\n 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, \u00a7\u00a7 17-25, 26 June 2014).<\/p>\n THE LAW<\/strong><\/p>\n I. JOINDER OF THE APPLICATIONS<\/p>\n 10. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.<\/p>\n II. LOCUS STANDI OF MR BEZDOROZHNIY<\/p>\n 11. In their comments on the claims for just satisfaction submitted by Mr\u00a0Yuriy Mikhaylovich Bezdorozhniy the Government stated that the latter had not provided confirmation that he was the second applicant\u2019s son and only heir in order to prove that he had standing to continue the present proceedings in that applicant\u2019s stead.<\/p>\n 12. The Court notes that, following the Registry\u2019s request, Mr\u00a0Bezdorozhniy provided documents confirming his status as the second applicant\u2019s son and only heir. Those documents were also forwarded to the Government for information.<\/p>\n 13. The Court thus considers that Mr Bezdorozhniy has duly confirmed his status as the second applicant\u2019s 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, \u00a7 12, 22 February 2005), the Court considers that Mr Bezdorozhniy has standing to continue the present proceedings in the second applicant\u2019s stead. However, reference will still be made to the second applicant throughout the remainder of the judgment.<\/p>\n III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF THE STATE\u2019S FAILURE TO PAY THE PENSION SUPPLEMENT<\/p>\n 14. The applicants complained under Article 1 of Protocol No. 1 of the State\u2019s 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:<\/p>\n \u201cEvery 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.<\/p>\n 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.\u201d<\/p>\n A. Admissibility<\/strong><\/p>\n 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\u00a0November 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.<\/p>\n 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, \u00a7\u00a7 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., \u00a7\u00a064). It therefore dismisses the Government\u2019s above objection.<\/p>\n 17. The Court further notes that the applicants\u2019 complaints are not manifestly ill-founded within the meaning of Article\u00a035\u00a0\u00a7\u00a03\u00a0(a) of the Convention and not inadmissible on any other grounds. They must therefore be declared admissible.<\/p>\n B. Merits<\/strong><\/p>\n 18. The Court reiterates that in the aforementioned case of Sukhanov and\u00a0Ilchenko, 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\u2019 pension and considered that interference unjustified, in breach of the above provision (ibid., \u00a7\u00a7 55-56).<\/p>\n 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\u2019 rights under Article 1 of Protocol No. 1 in the relevant period in 2006 has been unjustified.<\/p>\n 20. There has accordingly been a breach of the above provision.<\/p>\n IV. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF THE NON-ENFORCEMENT OF THE JUDGMENT<\/p>\n 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.<\/p>\n 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, \u00a7 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\u00a0Nikolayevich Ivanov v. Ukraine (no.\u00a040450\/04, 15 October 2009; see, similarly, Kruchko and Others v.\u00a0Ukraine [Committee], nos. 52227\/10 and\u00a03 others, \u00a7 12, 4 October 2018).<\/p>\n V. APPLICATION OF ARTICLE\u00a041 OF THE CONVENTION<\/p>\n 23. Article\u00a041 of the Convention provides:<\/p>\n \u201cIf 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.\u201d<\/p>\n 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\u2011pecuniary damage. He also asked the Court to reimburse him unspecified costs relating to the submission of his application.<\/p>\n 25. The Government contested the second applicant\u2019s claims.<\/p>\n 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, \u00a7 92, 30 March 2017) the Court therefore makes no award to him.<\/p>\n 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\u2019s 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, \u00a7 64, and Filozofenko v. Ukraine [Committee], no. 72954\/11, \u00a7 24, 9\u00a0January 2020). On the other hand, it awards the second applicant EUR\u00a0900 in respect of non-pecuniary damage (see Sukhanov and Ilchenko, cited above, \u00a7 65). Lastly, the Court rejects the second applicant\u2019s claim for costs relating to the submission of his application as it is unsubstantiated.<\/p>\n 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.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1. Decides to join the applications;<\/p>\n 2. Holds that Mr Bezdorozhniy has standing to continue the present proceedings in the second applicant\u2019s stead;<\/p>\n 3. Decides to strike the part of application no. 7096\/12 concerning the non\u2011enforcement of the judgment of 31 December 2010 out of the Court\u2019s list of cases pursuant to Article 37 \u00a7 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;<\/p>\n 4. Declares application no. 59552\/11 and the remainder of application no.\u00a07096\/12 admissible;<\/p>\n 5. Holds that there has been a violation of Article 1 of Protocol No. 1 on account of the State\u2019s failure to pay to the applicants pension supplements in the relevant period in 2006;<\/p>\n 6. Holds<\/p>\n (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;<\/p>\n (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;<\/p>\n 7. Dismisses the remainder of the second applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 2 July 2020, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Anne-Marie Dougin \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 M\u0101rti\u0146\u0161 Mits _______________<\/p>\n [1] Rectified on 27 August 2020: the text was Mykolayovych
\nActing\u00a0Deputy\u00a0Registrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 President<\/p>\n
\n[2] Rectified on 27 August 2020: the text was Garasymovych<\/p>\n