CASE OF VOLOVIK v. UKRAINE
Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient
Peer Lorenzen
4. The applicant was born in 1939 and lives in Zaporizhzhya. 5. On 25 April 1993 the applicant's son, who was a Russian national and served in the Russian Army, died because of an accident while on duty. The Russian State Military Insurance Company paid his wife and child, who resided in Russia, the insurance settlement to which they were entitled under the Russian law. 6. In 2001 the applicant lodged several requests with the Zaporizhzhya Regional Enlistment Office and the Ukrainian State Insurance Company “Oranta” (the “Oranta Company”), seeking the insurance settlement allegedly due to him under the Treaty on Payment of Pensions to Military Servicemen and Their Families and on State Insurance of Military Servicemen of the Member States of the Commonwealth of Independent States of 15 May 1992 (the “CIS Treaty of 15 May 1992”, see Relevant domestic law), which had entered into force in respect of Ukraine on that day. By letters of 9 July and 1 August 2001 respectively, the Oranta Company and the Enlistment Office rejected the applicant's requests on the ground that his son had served in the Russian Armed Forces and, thus, the applicant was not entitled to receive an insurance settlement under Ukrainian law. 7. In 2002 the applicant sought the insurance settlement by the Russian State Military Insurance Company. By letter of 27 September 2002, that company refused his request and informed the applicant that the amounts due to him because of the death of his son were to be paid by the Oranta Company pursuant to the CIS Treaty of 15 May 1992. 8. In December 2001 the applicant instituted proceedings in the Komunarskyy District Court of Zaporizhzhya against the Oranta Company, seeking the recovery of the insurance settlement which the latter allegedly had to pay him because of his son's death. He also sought compensation for non-pecuniary damage. The applicant argued that he was entitled to receive the insurance settlement in respect of his son on the ground that he, the applicant, resided on the territory of Ukraine, which had undertaken, pursuant to the CIS Treaty of 15 May 1992, to make such payments if a military serviceman had died while on duty in the Armed Forces of one of the CIS Member States. 9. On 10 April 2002 the court ruled against the applicant. This judgment was upheld by the Zaporizhzhya Court of Appeal on 18 July 2002 and the Supreme Court on 8 January 2003. 10. The courts found that under Ukrainian law the applicant was not entitled to receive the insurance settlement payable in similar cases to the relatives of Ukrainian military servicemen. The courts held that according to the CIS Treaty of 15 May 1992, read in conjunction with the decision of the Economic Court of the Commonwealth of Independent States (the “CIS Economic Court”) of 20 March 1997, such a payment should have been made by the Russian Federation, in the Armed Forces of which his son had served. 11. In 2002 the applicant instituted proceedings in the Zhovtnevyy District Court of Zaporizhzhya against the Zaporizhzhya Regional Enlistment Office, seeking the recovery of a special pension, which he was allegedly entitled to receive under the Law of Ukraine on Social and Legal Protection of Military Servicemen and Their Families of 20 December 1991 (the “Law of 1991”), read in conjunction with the provisions of the CIS Treaty of 15 May 1992, because of his son's death. He relied on the same reasons as in respect of his claim against the Oranta Company. 12. On 17 October 2002 the court ruled against the applicant, finding that he was not entitled to receive the pension under Ukrainian law, since his son had been a Russian national and had served in the Russian Armed Forces. 13. On 6 November 2002 the applicant lodged an appeal with the same court. 14. On 7 November 2002 the court invited the applicant to rectify certain shortcomings in his appeal by 25 November 2002. In particular, the court noted that the appeal did not contain the correct names of the parties, reasons for challenging the judgment of 17 October 2002, or an exact formulation of the applicant's request. 15. On 20 November 2002 the applicant lodged with the court the corrected version of his appeal, in which the opposite party was named as the Zaporizhzhya Regional Enlistment Office. As regards the reasons for his disagreement with the judgment of 17 October 2002, the applicant stated that the first-instance court had wrongly interpreted and applied specific provisions of the Law of 1991 and that it had disregarded the guarantees contained in the CIS Treaty of 15 May 1992. He requested that the Zaporizhzhya Court of Appeal quash the impugned judgment and adopt a new decision on the merits of his claim. 16. On 28 November 2002 the Zhovtnevyy District Court declared the applicant's appeal inadmissible. Referring to the applicant's appeal of 6 November 2002, the court stated that the applicant had failed to make the necessary corrections to it by the deadline set by the court. The applicant was sent back both versions of his appeal along with a copy of the decision of 28 November 2002 by the court. 17. On 6 December 2002 the applicant lodged with the same court an appeal against the decision of 28 November 2002. The applicant requested its annulment on the ground that the Zhovtnevyy District Court, deciding on the admissibility of his appeal against the judgment of 17 October 2002, had not taken into account the corrected version of his appeal lodged with that court on 20 November 2002. 18. In his appeal of 6 December 2002 the applicant cited the parts of his appeal of 20 November 2002 that contained the reasoning for and the formulation of his request. 19. In a cover letter accompanying his appeal of 6 December 2002 the applicant stated that he annexed three copies of that appeal, copies of his appeals of 6 and 20 November 2002, and copies of the judgment of 17 October 2002 and the decisions of 7 and 28 November 2002. 20. On 6 December 2002 the Zhovtnevyy District Court found that the applicant's appeal of the same day did not comply with the procedural formalities. In particular, it held that the appeal was directed against the decision of 28 November 2002 and the judgment of 17 October 2002 at the same time and that it did not contain sufficient reasoning or a list of annexed documents. The court invited the applicant to rectify the shortcomings of his appeal by 20 December 2002. 21. On 18 December 2002 the applicant lodged with the Zhovtnevyy District Court an appeal against its decision of 6 December 2002. On 10 January 2003 the Zaporizhzhya Regional Court of Appeal held that the latter decision could not to be appealed against and refused to consider the applicant's appeal. 22. On 27 January 2003 the Zhovtnevyy District Court declared the applicant's appeal against the decision of 28 November 2002 inadmissible on the ground that the applicant had failed to rectify the shortcomings indicated in its decision of 6 December 2002. 23. The applicant did not appeal against the decision of 27 January 2003. 24. Article 139 of the Code of 1963 provided that the judge to whom the case had been allocated should not entertain a claim which had not been lodged in compliance with the requirements set out in the Code or in respect of which court fees had not been paid. The judge was to grant a time-limit to rectify the shortcomings in the claim. The claim was to be declared inadmissible and sent back to the claimant if the latter had not followed the instructions of the judge. 25. According to Article 290, the parties were entitled to appeal against the judgment (decision on the merits of the case) of the first-instance court in full or in part. A ruling (procedural decision) of the first-instance court was to be appealed against separately from the judgment in the cases envisaged by the Code. 26. Under Article 291, a first-instance court's ruling could be appealed against if it impeded the further progress of the case. The parties could submit their objections against the rulings which were not to be appealed against along with their appeal against a judgment in the case. 27. Article 293 envisaged that an appeal should be typewritten. It was to set out the name of the court with which the appeal was lodged; the name of the appellant, and his contact details; the full and exact names of other persons participating in the case, their places of residence and contact details; reference to the judgment or ruling against which the appeal was lodged and the scope of that appeal; the on which the appeal was based; new facts or means of proof important for the case or objections against the evidence, which the first-instance court had allegedly groundlessly refused to admit or which, for good reasons, could not have been submitted before; the list of evidence admitted by the first-instance court which the appellant sought to have reconsidered by the court of appeal; the petition (object of the appeal); a list of the written materials annexed to the appeal. The appeal should be signed by the appellant or his representative. It should be accompanied by a power of attorney, if necessary, and copies of the appeal and written materials. The number of copies should correspond to the number of persons involved in the case. 28. According to Article 294, an appeal should be submitted to the court of first instance that had dealt with the case. The court should apply the rules contained in Article 139 of the Code in respect of an appeal which did not comply with the requirements set out in Article 293 or in respect of which court fees had not been paid. 29. Pursuant to Article 295, if an appeal was lodged in compliance with the requirements of the Code the court of first instance should send copies of it to the persons participating in the case in order that they could submit any comments they might wish to make. Upon the expiry of the time-limit for lodging an appeal the same court should send the appeal together with the case file to the court of appeal. 30. Under Articles 301 and 305, the court of appeal verified whether a judgment or ruling of the first-instance court was lawful and duly reasoned. The court of appeal had the power to examine new evidence, and evidence which allegedly had not been examined in compliance with the Code. When considering an appeal against a judgment, the court of appeal was entitled to reject the appeal; to quash the judgment and to remit the case for a fresh consideration, if a procedural violation prevented the court of appeal from examining new evidence or the evidence which the first-instance court had not examined; to quash the judgment and to discontinue the proceedings; to change the judgment or to adopt a new judgment. 31. According to Article 310, when considering an appeal against a ruling of the first-instance court, the court of appeal was entitled to reject the appeal, if the ruling had been delivered in compliance with the law; to change the ruling, if it was a correct decision, though the provisions of the Code had been wrongfully applied; to quash the ruling and to remit the matter to the first-instance court for a fresh consideration, if it had not been delivered in accordance with the procedure for its consideration; to quash the ruling and to deliver a new ruling on the matter, which had been resolved by the first-instance court in violation of the provisions of the Code. 32. Article 296 of the Code of 2004 provides that an appeal shall be submitted through the court of first instance that adopted the contested decision. The court shall refer an appeal or appeals together with the case file to the court of appeal within three days of the expiry of the time-limit for lodging the appeal or if all persons who wish to contest the decision have lodged their appeals. Appeals arriving after the referral of the case file to the court of appeal shall be referred to the same court not later than the next working day. 33. Pursuant to Article 295 § 1, a judge of the court of appeal appointed as rapporteur shall decide on the admissibility of an appeal. 34. The relevant provisions of the CIS Treaty of 15 May 1992 read as follows: “Payment of pensions to and compulsory State insurance of military servicemen of the Armed Forces of the Member States of the Commonwealth [of Independent States] ..., as well as payment of pensions to the families of those military servicemen shall be arranged on the basis of the conditions, norms and in the manner established or which will be established by the legislation of the Member States, on the territory on which the aforementioned military servicemen and their families reside, while before the [relevant] laws are adopted by these States [payment of pensions and compulsory State insurance shall be arranged] on the basis of the conditions, norms and in the manner envisaged in the legislation of the former Union [of Soviet Socialist Republics] ... [T]he level of pension payments ... shall not be lower than that established by the legislation ... of the former Union [of Soviet Socialist Republics].” “... The amount of allowance (salary) [necessary] for calculation of pension payments to be made to military servicemen and their families shall be determined in accordance with the legislation of the Member States on whose territory the military servicemen and their families reside.” “The Member States shall bear the expenses [in respect of] payment of pensions to military servicemen and their families and compulsory State insurance of military servicemen ... without reciprocal payments between the States.” “The questions concerning the application of the present Treaty shall be considered, if necessary, by the Council of Ministers of Defence of the Member States, as well as by the Ministries of Defence ... of the Member States of the Commonwealth on a bilateral or multilateral basis.” “The Treaty enters into force when signed [by the Parties].” 35. Section 3 of the Law of 1991 read, as worded at the material time, as follows: “This Law applies to: [i] military servicemen serving on the territory of Ukraine, and military servicemen, who are nationals of Ukraine, serving outside Ukraine; [ii] family members of servicemen who perished, died, disappeared, or became disabled in the course of their service; [iii] reservists called for training, and their family members.” 36. According to Article 32 of the Statute of the Commonwealth of Independent States of 22 January 1993 and Article 5 of the Statute of the Economic Court of the Commonwealth of Independent States of 6 July 1992, the CIS Economic Court is entitled to give interpretation to treaties and other acts of the Commonwealth. Ukraine, not having ratified either the Statute of the Commonwealth or the Statute of the CIS Economic Court, does not recognise the latter's jurisdiction. 37. Pursuant to the judgment and the ruling, delivered by the CIS Economic Court on 4 September 1996 and 20 March 1997 respectively, on the interpretation of several treaties of the Commonwealth, including the CIS Treaty of 15 May 1992, the payment of an insurance settlement or of a lump sum payment to a member of the family of a deceased military serviceman shall be made by the State in which the serviceman was insured, irrespective of his family member's country of residence. The insurance company or other competent authority of the State, in the Armed Forces of which the military serviceman served, shall be responsible for the fulfilment of the obligations under the insurance contract of that serviceman.