CASE OF LAZARENKO AND OTHERS v. UKRAINE
Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing;Equality of arms)
Carlo Ranzoni;Ganna Yudkivska;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani
5. In disputes between the applicants and the domestic pension authorities, the firstinstance courts ruled in their favour, ordering increases of their pensions based on the rise in the average wages in the country since their retirement. 6. The defendant authorities appealed to the Dnipropetrovsk Administrative Court of Appeal (“the Court of Appeal”). 7. Under domestic law (see paragraph 18 below), when an appeal arrived at the Court of Appeal, a judge rapporteur of that court, if he or she believed that it complied with the necessary formal requirements, had to issue a ruling opening appeal proceedings (“the ruling”) and send it to the applicants together with a copy of the appeal. 8. The Government and the applicants disagree as to whether those documents were actually sent to the applicants (see paragraphs 11 to 13 below). 9. On various dates set out in the Appendix, the Court of Appeal quashed the judgments in the applicants’ favour, dismissing their claims for pension increases holding that the domestic law did not require the pensions to be increased in case of rise in the average wages in the country following retirement. In the fifth applicant’s case the Court of Appeal held a hearing in his presence (see paragraph 14 below). In the other applicants’ cases the court sat in camera without summoning the parties. 10. In the second to sixth applicants’ cases the Court of Appeal’s decisions became effective immediately since no further appeal lay against them (see the related legislative provisions in paragraph 16 below). The first applicant lodged an appeal on points of law with the Higher Administrative Court. On 26 October 2012 it upheld the Court of Appeal’s decision, without commenting on the complaint she had presented that she had not been informed of the appeal proceedings. 11. According to the applicants, the domestic courts did not send them either (i) a copy of the defendants’ appeals or (ii) a copy of the rulings opening appeal proceedings in their cases. They therefore had no knowledge of the appeal proceedings prior to the Court of Appeal’s decisions in their cases. They learned of those decisions later, notably after their pensions had been reduced based on the Court of Appeal’s decisions. 12. According to the Government, the applicants were duly informed of the appeal proceedings. 13. It can be seen from the material before the Court that: 14. On 23 June 2012 the Court of Appeal sent the fifth applicant a summons to attend a hearing on 1 November 2012. The delivery slip is in his domestic case file. At the hearing, which he attended, the court examined the pension authority’s appeal in its absence and quashed the first-instance court’s judgment.