SEREBRYANSKYY v. UKRAINE
Inadmissible
Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano
1. The applicant, Mr Ivan Mykolayovych Serebryanskyy, is a Ukrainian national, who was born in 1926 and lives in Pervomaysk. He had been granted legal aid and is represented by Mr V. Galkin, a lawyer practising in Toshkivka, Ukraine. 2. The Ukrainian Government (“the Government”) were represented by their Agent, most recently, Ms Nataly Sevostianova, of the Ministry of Justice of Ukraine. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant is entitled to a lump sum payment in accordance with section 12 of the War Veterans Status and Social Protection Guarantees Act (Закон України «Про статус ветеранів війни, гарантії їх соціального захисту»), payable to him every year by 5 May (the “Victory Day payment”). In 2004 the applicant received 120 Ukrainian hryvnias (UAH), UAH 250 in 2005, UAH 250 in 2006, UAH 280 in 2007 and UAH 310 in 2008. 5. In March 2008 the applicant instituted proceedings in court, stating that the above-mentioned lump sums should have been equal to five times the minimum pension and claiming the unpaid difference for 2004-08. 6. On 4 August 2008 the Pervomaysky Town Court awarded the applicant UAH 3,870 in unpaid lump sums for 2007-08 in the light of the Constitutional Court decision of 9 July 2007 (see the “Domestic law” part below). The court held that the applicant was entitled to these payments, and the dispute was limited only to their amounts. From 9 July 2007 the applicant was entitled to a payment in the amount of five times the minimum pension. The court noted that the decision of the Constitutional Court had been adopted after the payments were due to be made, but that the Constitutional Court could not adopt a decision which would not be enforced. 7. On 30 October 2008 the Donetsk Administrative Court of Appeal upheld that decision. 8. On 24 June 2010 the Higher Administrative Court of Ukraine quashed those decisions and rejected the applicant’s claims. It held that the Constitutional Court decisions did not have retrospective effect. It further rejected the applicant’s claims related to 2004-06, because the applicant had missed the one-year time-limit for lodging his claim. 9. Section 2 of the War Veterans Status and Social Protection Guarantees Act provides that legal acts which reduce the rights and privileges of war veterans laid down by the Act are null and void. 10. In accordance with section 12 of the War Veterans Status and Social Protection Guarantees Act war veterans shall receive each year by 5 May a lump sum in the amount of five times the minimum pension. In accordance with section 17(1) of this Act those who did not receive the payment before 5 May can still request payment by 30 September of the same year. 11. The State Budget Acts of 2006 and 2007 suspended the above-mentioned provision for 2006 and 2007 respectively. They also set a different level of payment. On 9 July 2007 the Constitutional Court of Ukraine found the amendments in respect of 2007 to be unconstitutional (see Kolesnik and Others v. Ukraine (dec.), nos. 57116/10, 74847/10 and 10642/11, § 46, 26 June 2014). It appears that no similar complaint was lodged in 2006. 12. The State Budget Act 2008 amended section 12 of the War Veterans Status and Social Protection Guarantees Act to provide that the amount of the lump sum should be determined by the Cabinet of Ministers. Decision no. 183 of the Cabinet of Ministers of 12 March 2008 set the amount of this payment at UAH 310. On 22 May 2008 the changes introduced by the State Budget Act 2008 were found to be unconstitutional by the Constitutional Court of Ukraine. 13. The minimum pension for 2007-08 was set at UAH 410.06 and UAH 481 respectively. 14. Lastly, the Code of Administrative Justice in force as of 1 September 2005 set a one-year time-limit for lodging claims under the administrative justice procedure. 15. On 1 May 2009 the Higher Administrative Court of Ukraine issued a general analysis of the administrative courts’ practice in cases related to the social protection of children of war, war veterans and victims of the Nazi persecutions. The Higher Administrative Court of Ukraine noted that: “An analysis of the courts’ practice shows that disputes are mainly caused by shortcomings in the legislative regulation of social protection; in particular, since legal acts of equal force exist on the matter, it is difficult to establish which provision has higher legal force and should thus be applied in the dispute in question. The main legal acts in question include the Constitution of Ukraine, the Children of War Social Protection Act, the War Veterans Status and Social Protection Guarantees Act [...]. The State Budget Acts for 2006-2008 introduced changes to those legal acts, suspending some provisions and reducing some payments. On 9 July 2007 and 22 May 2008 some changes introduced by the State Budget Acts were found to be unconstitutional by the Constitutional Court of Ukraine.” 16. The Higher Administrative Court of Ukraine further noted that the national courts had not always correctly decided which legal act should be applied. In respect of the lump sum payment under section 12 of the War Veterans Status and Social Protection Guarantees Act it noted that in 2006 the provisions of the State Budget Act 2006 were to be applied, since this Act was adopted later than the War Veterans Status and Social Protection Guarantees Act. 17. As for the 2007-2008 payments, the Higher Administrative Court of Ukraine noted that the relevant provisions of the State Budget Acts of 2007-2008 had been found to be unconstitutional. However, since the Constitutional Court decisions could not be applied retrospectively, the relevant persons had “the right to receive the 5 May lump sum payment in the amount set by the War Veterans Status and Social Protection Guarantees Act only after the dates of adoption of the relevant decisions of the Constitutional Court”. In particular, only those who did not receive the relevant payment before 5 May could receive it before 30 September under section 17(1) of the War Veterans Status and Social Protection Guarantees Act. 18. In a letter of 14 August 2009 sent to the heads of the administrative courts of appeal the Higher Administrative Court of Ukraine reiterated its position.