FAKAS v. UKRAINE
Inadmissible
Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano
1. The applicant, Mrs Tetyana Volodymyrivna Fakas, is a Ukrainian national, who was born in 1966 and lives in Ivano-Frankivsk. The applicant, who had been granted legal aid, was represented by Mr R. Karvatskyy and Mr D. Karapish, lawyers. 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 has been unemployed since 1997. She is married and has three children. On 24 August 2001 the applicant gave birth to her third child. Between November 2001 and July 2004 the applicant received a monthly child allowance of between 35.40 Ukrainian hryvnias (UAH) (November 2001) and UAH 43.14 (July 2004). 5. On 2 July 2006 the applicant instituted proceedings in the Ivano-Frankivsk City Court, claiming unpaid child allowance for the period between September 2001 and July 2004 under the State Assistance (Families with Children) Act (see the “Relevant domestic law” part below). The applicant stated that she was entitled to a monthly child allowance in an amount equal to the monthly “minimum subsistence level” established by law (“прожитковий мінімум”) for a child aged up to six years. She further referred to Article 46 of the Constitution of Ukraine, which provided that pensions and other types of social payment and assistance that were the recipient’s principle sources of subsistence should ensure an income not lower than that level. Between July 2001 and July 2004 she was receiving around UAH 40 (approximately 7 euros (EUR)) a month, whereas the official subsistence level for a child aged up to six years changed from UAH 276.48 (at the material time around EUR 57) in September 2001 to UAH 324.49 (at the material time EUR 50) in August 2004. 6. On 26 February 2007 the court rejected the applicant’s claims as lodged outside the one-year time-limit, which runs from the date when the person concerned has learned or should have learned about a breach of his or her rights. 7. The applicant appealed, stating that she had learned about the alleged breach of her rights only in March 2006 after having consulted a lawyer. 8. On 7 June 2007 the Lviv Administrative Court of Appeal quashed the decision of the first-instance court but rejected the applicant’s claims as unsubstantiated. The court held that although the applicant was entitled to a monthly allowance in accordance with section 15 of the State Assistance (Families with Children) Act, these amounts had been determined by the State Budget Acts of 2002-04. Therefore, the applicant had received the reduced amounts in accordance with the law. 9. On 3 November 2010 the Higher Administrative Court of Ukraine upheld that decision. The court held that the amounts of the allowance in question had been determined by the State Budget Acts of 2001-2004. 10. According to sections 22, 23 and 26 of the State Assistance (Families with Children) Act 1992 (Закон України «Про державну допомогу сім’ям з дітьми»), in force until 1 January 2002, child allowance was paid monthly to a child’s principal carer (e.g. employed women, unemployed women registered as such etc.) until the child reached the age of three in an amount equal to 100% of the minimum wage. 11. Section 29 of the same Act provided that unemployed women were entitled to child allowance in an amount equal to 50% of the minimum wage until a child reached the age of two. 12. By decision no. 14 of the Cabinet of Ministers of Ukraine of 12 January 2001 “On the Amount of State Assistance [payable] to Families with Children in 2001”, the amount of assistance was established as 20% (unemployed women) or 30% (employed women) of UAH 118 (the minimum wage in 2001). 13. According to section 15 of the State Assistance (Families with Children) Act, which was adopted on 22 March 2001 and entered into force on 1 January 2002, until a child reached the age of three child allowance was payable to a non-insured person in an amount equal to the minimum subsistence level for a child aged up to six years. 14. The monthly minimum subsistence level for children aged up to six years was determined yearly by a special law (Закон України “Про затвердження прожиткового мінімуму”). It was gradually increased from UAH 307 (2002) to UAH 324.49 (2004). 15. Part 3 of the Final Provisions of the State Assistance (Families with Children) Act provided that the amount of child allowance under section 15 of the Act was to be determined yearly by the Verkhovna Rada of Ukraine as a percentage of the minimum subsistence level with a view to gradually reaching that level. The amount in question could not be lower than 25% of the official subsistence level. 16. The State Budget Acts of 2002-2004 established that child allowance, which was provided for by the State Assistance (Families with Children) Act, was payable in an amount of 50% of the “guaranteed minimum” of the official subsistence level (“рівень забезпечення прожиткового мінімуму”). This portion was set as UAH 80 (2002-2003) and UAH 85 (2004) (section 42 of the State Budget Act 2002, section 48 of the State Budget Act 2003, and section 66 of the State Budget Act 2004).