CASE OF KECHKO v. UKRAINE
Violation of P1-1;Pecuniary and non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
7. The applicant was born in 1945 and resides in the city of Donetsk, Ukraine. 8. The applicant has worked as an English teacher in a secondary school since 1984. 9. On 23 March 1996 the Ukrainian Parliament adopted a new wording for the Education Act that provided for, in particular, the payment of certain benefits to teachers. 10. On 2 April 1999 the applicant instituted civil proceedings in the Leninsky District Court of Donetsk against the Leninsky District Department for Education, claiming entitlement to those benefits. The applicant maintained that he had more than 10 years’ of service and was thus entitled to a 20% increase in his salary as from 1 January 1997. However, the defendant had not paid him this increase. He further maintained that the defendant had not paid him annual bonuses for excellent work and recreation. The defendant stated that the claimed amounts could not be paid because the State budgets for 1997-1999 did not make any provision for such expenditures. 11. On 5 October 1999 the court found in part for the applicant. The court rejected the applicant’s claim for an excellent work bonus as such a payment required an assessment of the applicant’s work which was outside the court’s competence. The court also rejected the applicant’s claim for unpaid benefits in 1997 and 1998 as being out of time, according to the law on employment disputes. The court further rejected the applicant’s claim for benefits after 1 June 1999 as the Secondary Education Act, adopted in May 1999, had suspended them. The court, however, awarded the applicant the claimed increase in salary for the period between 1 January and 1 June 1999. 12. The applicant appealed against this decision to the Donetsk Regional Court. 13. On 4 November 1999 the regional court quashed the decision of the first instance court and remitted the case for a fresh consideration. The court noted, in particular, that the Secondary Education Act had entered into force on 23 June 1999; therefore the first instance court had erroneously overlooked the period between 1 and 23 June 1999. 14. On 24 February 2000 the Leninsky District Court of Donetsk ruled against the applicant. The court found that, under the transitional clauses of the Secondary Education Act, the provision entitling the applicant to benefits would only resume force on 1 September 2001. Thus, at the time of the examination of the claim, there was no legal basis for it. 15. On 30 March 2000, the Donetsk Regional Court upheld the decision of the first instance court. It observed that the claims of the applicant for the periods prior to the adoption of the Secondary Education Act could not be satisfied, since at the time of the consideration of the case the relevant provisions of the Education Act had been suspended by the Secondary Education Act. This decision was final. 16. At the material time, Article 233 of the Labour Code of Ukraine provided that employees could institute proceedings in respect of an employment dispute within three months from the date on which they learned or could have been expected to learn that there had been an infringement of their rights. By an Act of 11 July 2001, this article was supplemented by a provision repealing time-limits for disputes concerning salary arrears. 17. Article 57 of the Education (Amendment) Act 1996 provided for a 20% increase in salary for teachers who had worked in the education system for more than 10 years. The same article provided for an annual payment for recreation and an annual bonus for the performance of excellent work. Between 23 June 1999 and 1 September 2001 these provisions were suspended by the Secondary Education Act mentioned below. 18. The second paragraph of Article 43 of the Secondary Education Act of 13 May 1999 provided that teachers of State and municipal secondary schools would be paid their salaries and benefits under Article 57 of the Education Act out of the State Budget of Ukraine. The transitional clause of the former Act stipulated that Article 43 would enter into force on 1 September 2001.