SERDYUK v. UKRAINE
Inadmissible
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger
The applicant, Mr Vitaliy Andreyevich Serdyuk, is a Ukrainian national who was born in 1939 and lives in Chernigiv. In 1986 the applicant, at that time a military officer, was engaged in emergency relief operations at the site of the Chernobyl nuclear plant disaster, within the “Chernobyl alienation zone” (тридцятикілометрова зона або зона відчудження). On 25 August 1992 the Cabinet of Ministers adopted Resolution no. 501 on the Procedure for the Issuance of Certificates (“Chernobyl identity cards”) to Victims of the Chernobyl Nuclear Plant Disaster (посвідчення учасника ліквідації наслідків аварії на Чорнобильській АEC). On 31 March 1993 the Plenary Supreme Court (Пленум Верховного Суду України) adopted Resolution no. 5 “On Judicial Practice on the Establishment of Facts that are of Legal Consequence”. According to this resolution, certificates acknowledging a person’s status as a Chernobyl relief worker could be issued on the basis of a court judgment establishing participation of the person concerned in any kind of Chernobyl relief work. In 1993 the applicant applied to the Desniansky District Court of Chernigiv (Деснянський районний суд м. Чернігова, hereafter “the Desniansky Court”) seeking a declaratory judgment, acknowledging the fact that he had been involved in the Chernobyl relief works. In its ruling of 2 December 1993 the Desniansky Court acknowledged the fact that in 1986 the applicant had been engaged for several hours in operations near the Chernobyl nuclear power plant. This decision was mainly based on witness evidence. On 27 December 1993 and on the basis of this ruling, a Chernobyl identity card acknowledging his status as a Chernobyl relief worker was issued to the applicant. It entitled him to special State benefits and social payments. On 8 June 1995 the Cabinet of Ministers amended Resolution no. 501 of 25 August 1992 by adopting Resolution no. 404. By virtue of these amendments, court decisions establishing direct participation in any Chernobyl relief work were removed from the list of grounds upon which a Chernobyl identity card could be issued. In Resolution no. 404, the Cabinet of Ministers further ordered the commissions on disputed issues regarding the determination of the status of persons who assisted in dealing with the consequences of the nuclear power plant disaster (Комісія з спірних питань визначення статусу осіб, які брали участь у ліквідації наслідків аварії на Чорнобильській АЕС, hereafter “the Chernobyl disputes commissions”) of the Ministry for Protection of the Population from the Consequences of the Chernobyl Disaster (Міністерство у справах захисту населення від наслідків аварії на Чорнобильській АЕС, hereafter “the Ministry for Emergencies”) to undertake a case-by-case review of Chernobyl identity cards granted previously on the basis of a judicial ruling. On 10 June 1997, in the context of this review process, the Chernobyl disputes commission annulled the applicant’s Chernobyl identity card, finding that the period during which he had been involved in emergency relief operations (two hours and thirty minutes of work in the alienation zone) was insufficient for the Chernobyl relief worker status. This decision was amenable to an appeal to a court of general jurisdiction. On 25 May 1998 the Plenary Supreme Court amended its Resolution of 31 March 1993 to the effect that courts were no longer competent to establish facts related to entitlement to a Chernobyl identity card. On 15 July 1999 the applicant unsuccessfully challenged the decision to annul his Chernobyl identity card before the Radiansky District Court of Kyiv (Радянський районний суд м. Києва) who found the impugned decision lawful and reasonable. The applicant’s subsequent appeal to the Kyiv City Court (Київський міський суд) was dismissed on 17 November 1999. On 19 January 2001 the applicant filed a request for review of its decision of 2 December 1993 with the Desniansky Court on the ground of new circumstances. He stated that he had learned in November 2000 that his work in 1986 in three villages situated not far from Chernobyl also counted for the calculation of the overall period of relief works. On 18 April 2001 the Desniansky Court granted the applicant’s request, quashed the judgment of 2 December 1993 and reopened the proceedings. The hearing was scheduled for 28 May 2001. By judgment of 6 July 2001 the Desniansky Court established the fact that the applicant had participated in relief works in the alienation zone and had thus been involved in relief works for a period sufficient for eligibility for the Chernobyl relief worker status. As no appeal was brought, this ruling became enforceable on 7 August 2001, whilst it remained possible for a period of one month as from the latter date to file an appeal in cassation with the Supreme Court. On 10 August 2001 and on the basis of the judgment of 6 July 2001, the applicant filed a further request for a Chernobyl identity card with the Desniansky District Council, which informed him on 20 August 2001 that his request had been transmitted to the Department for the Protection of the Population from the Consequences of the Chernobyl Disaster of the Chernigiv Regional State Administration (Управління у справах захисту населення від наслідків Чорнобильської катастрофи Чернігівської обласної державної адміністрації; hereafter “the Department”). On 30 August 2001 the Department refused to issue a Chernobyl identity card to the applicant as, pursuant to the applicable Resolution of the Cabinet of Ministers, a court ruling could not serve as a ground for issuing a card. By letter of 26 September 2001, it further informed the applicant that, if he wished to file a fresh application for a Chernobyl identity card, he should substantiate the period of time during which he had allegedly been involved in relief work in the alienation zone by submitting either a mission order to the alienation zone or a salary slip showing extra payments for having worked in this zone. Although the applicant could have filed an appeal with the civil court against the decision of 30 August 2001, he did not do so. On 18 April 2002 the Supreme Court, acting on a cassation appeal lodged by the Department, quashed the judgment of 6 July 2001 and remitted the case for a fresh consideration, indicating that courts were not competent to establish facts for the purposes of obtaining the status of a Chernobyl relief worker. On 17 June 2002 the Desniansky Court, in the parties’ presence, gave a ruling in which it refused to entertain the applicant’s request to establish the legal fact of his participation in the Chernobyl relief works, holding that it lacked competence in the matter. It pointed out that, for this purpose, a special procedure had been established and that any claim should be substantiated by specific prescribed documents. It further referred to the Resolution of the Plenary Supreme Court. The applicant appealed. On 10 September 2002 the Chernigiv Regional Court of Appeal (Апеляційний суд Чернігівської області), in the applicant’s presence, upheld this decision. It stated, in particular, that specific administrative bodies had been designated by law to determine whether or not a person was entitled to a Chernobyl identity card, and that the courts were not competent to determine such issues. It further pointed out that decisions taken by such an administrative body could be appealed before the courts under the terms of Article 124 of the Constitution. Although this ruling was immediately enforceable, an appeal in cassation lay with the Supreme Court within a one-month time-limit. The applicant did not avail himself of this remedy. Article 124 of the Constitution of Ukraine provides that justice is administered exclusively by the courts. The delegation of the functions of the courts, and also the appropriation of these functions by other bodies or officials is not permitted. The jurisdiction of the courts extends to all legal relations that arise in the State. In accordance with Article 47 of the Law on the Judicial System of 7 February 2002, the Supreme Court is the highest judicial body within the system of courts of general jurisdiction in Ukraine. As prescribed by law, it examines in cassation proceedings decisions taken by lower general jurisdiction courts. Under Article 55 of this law, the Plenary Supreme Court is composed of the President of the Supreme Court, all judges of the Supreme Court, the Presidents of the higher specialised courts and their first deputies. The Plenary Supreme Court provides, inter alia, the courts of general jurisdiction with recommendations and practice directions and supervises the correctness of any recommendation or practice direction issued by higher specialised courts. The Cabinet of Ministers Resolutions nos. 501 and 404, and the text of the Resolution of 31 March 1993 of the Plenary Supreme Court are set out in the Court’s judgment of 9 November 2004 in the case of Svetlana Naumenko v. Ukraine (no. 41984/98, §§ 68, 70 and 71). According to the Plenary Supreme Court’s Resolution no. 15 of 25 May 1998, which amended its previous Resolution no. 5 of 31 March 1995, decisions of special administrative bodies competent to establish legal facts in relation to entitlement to the status of Chernobyl relief worker can be appealed before the first instance civil court and, subsequently, the civil court of cassation. At the material time, these courts had full jurisdiction both as regards the facts and the law.