PORTYANKO v. UKRAINE
Inadmissible
Aleš Pejchal;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Josep Casadevall;Síofra O’Leary
The applicant, Mr Yuriy Vladimirovich Portyanko, is a Ukrainian national, who was born in 1961 and lives in Bakaly. He was represented before the Court by Ms M.Y. Bogdanovich, a lawyer practising in Kyiv. On 22 May 2008 the Constitutional Court declared unconstitutional several provisions of the Law on 2008 State Budget and Amendments to Certain Legislative Acts which had been the basis for re-calculation and eventual decrease of the applicant’s Chornobyl pension. In July 2011, referring to the above decision of the Constitutional Court, the applicant lodged a civil claim with the Pecherskyy District Court of Kyiv against the State Treasury, complaining that as from 1 January 2008 the amount of his Chornobyl pension was too low contrary to the Constitution and seeking damages caused by a legislative act which had decreased his pension and later had been recognized unconstitutional. He invoked Articles 1173 and 1175 of the Civil Code in this respect. By judgment of 18 July 2011, the District Court rejected the applicant’s claim on the ground that the conditions and mechanisms for implementation of the provisions of Articles 1173 and 1175 of the Civil Code had not been established by the legislation. Furthermore, the court noted that the applicant did not prove any damage caused to him, given that he alleged damages to have been sustained as from 1 January 2008, whilst the provisions found unconstitutional lost their legal force on 22 May 2008. On 21 September 2011 and 18 October 2011 respectively the Kyiv City Court of Appeal and the Higher Specialised Court for Civil and Criminal Matters upheld the decision of the first-instance court confirming: that the applicant failed to meet the conditions laid down by Articles 1173 and 1175; and that compensation for material damage as guaranteed by Articles 1173 and 1175 would only have been possible if a special law establishing the conditions and procedure for such compensation had been enacted. The court of appeal noted in particular that, in the circumstances referred to by the claimant, the possibility of obtaining compensation in respect of pecuniary damage is linked to the existence of legislation establishing the specific conditions and the relevant procedure. It concluded that, as such legislation did not exist, the first-instance court had rightly decided that the applicant’s claims were unfounded. The Civil Code, which came into force in 2004, lays down different obligations as to compensation in respect of damage. Among others, two articles, namely Articles 1173 and 1175, relied on by the applicant in the domestic proceedings, provide for the State to compensate the victims of unlawful decisions of State authorities. The articles in question provide as follows: “1. Pecuniary damage caused to a natural person or legal entity by unlawful decisions, actions or omissions of State authorities, authorities of the Autonomous Republic of Crimea or local self-governance authorities in the course of the exercise of their powers shall be compensated for by the State, the Autonomous Republic of Crimea or local self-governance regardless of the fault of these bodies.” “1. Pecuniary damage caused to a natural person or legal entities as a result of adoption by State authorities, authorities of the Autonomous Republic of Crimea or a local self-governance authority of a normative-legal act that was declared illegal and annulled, shall be compensated for by the State, the Autonomous Republic of Crimea or the local self-governance authority regardless of the fault of officers and employees of these bodies.” “5. Provisions of the Law on 2008 State Budget and Amendments to Certain Legislative Acts, found unconstitutional, lose their legal force from the date when this decision has been adopted by the Constitutional Court of Ukraine.”