CASE OF BABKINIS v. UKRAINE

FIFTH SECTION

CASE OF BABKINIS v. UKRAINE

(Application no. 8753/16)

JUDGMENT
 

STRASBOURG

27 March 2025

This judgment is final but it may be subject to editorial revision.

In the case of Babkinis v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

 Armen Harutyunyan, President,
 Andreas Zünd,
 Mykola Gnatovskyy, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 8753/16) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 3 February 2016 by a Ukrainian national, Ms Tamara Vasylivna Babkinis (“the applicant”), who was born in 1962 and lives in Kherson;

the decision to give notice of the application to the Ukrainian Government (“the Government”), represented by their Agent, Ms Marharyta Sokorenko;

the parties’ observations;

Having deliberated in private on 6 March 2025,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The application concerns the applicant’s complaints, under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, that she had been unlawfully deprived of her back pay and that the domestic courts, in rejecting her claim for back pay and the related compensation claims, had not provided sufficient reasons for their decisions.

2.  The applicant used to be employed by the Environmental Inspectorate of the Luhansk Region, in the city of Luhansk. Following the escalation of hostilities in the region in July 2014, she left the region with her two children and settled in Kherson. No formal decision was taken as to her exact status at work over the period from July to November 2014.

3.  On 7 November 2014 the Cabinet of Ministers of Ukraine issued Resolution no. 595 (“the Resolution”) by which it approved an Interim Order governing the situation of public institutions affected by the hostilities in the Donetsk and Luhansk regions (“the Interim Order”).

4.  On 20 November 2014 the State Environmental Inspectorate of Ukraine, referring to the Resolution, ordered that the seat of the Environmental Inspectorate of the Luhansk Region be transferred from Luhansk to Severodonetsk, since the city of Luhansk was no longer under Ukrainian control (see Ukraine and the Netherlands v. Russia (dec.) [GC], nos. 8019/16 and 2 others, § 696, 30 November 2022, and Khlebik v. Ukraine, no. 2945/16, §§ 8-16, 25 July 2017).

5.  On 28 November 2014 the applicant, who was unwilling to relocate to Severodonetsk to take up her post, resigned.

6.  She lodged a claim for unpaid wages for a period of ninety-five working days from 3 July to 28 November 2014 amounting to 11,117 Ukrainian hryvnias.

7.  The applicant argued that she was due to be paid a full salary on the basis of the Labour Code’s provisions concerning “downtime” (простій). Article 34 of the Labour Code defined “downtime” as cessation of work caused by the absence of appropriate conditions for carrying out work, force majeure or other circumstances. Article 113 provided that, in the event of “downtime”, the employee would retain an average salary provided that downtime was associated with a situation dangerous to the life or health of the employee or of people around him or her. The applicant also relied on section 3 of the Interim Order which provided that in case of transfer of institutions from territory not controlled by the government to government-controlled territory, wages of the employees of those institutions would be paid in full for the period prior to the transfer (see paragraph 8 below).

8.  On 13 May 2015 the Kharkiv Circuit Administrative Court dismissed the applicant’s claim for unpaid wages. The court stated, in the relevant part:

“[The Resolution]... provides as follows.

Section 3 of the Interim Order provides that salary of employees of an institution shall be paid in full out of the institution’s budget for the period when the institution was located on the temporarily non-controlled territory and then that territory was returned under control of the State authorities or the institution was relocated to a locality on the territory under control.

The salary shall be paid to the employees of institutions relocated to the territory under control if the institution continues functioning... and employees are carrying out their duties (section 4 of the Interim Order).

...

According to Article 34 of the Labour Code downtime is cessation of work caused by the absence of appropriate conditions for carrying out work, force majeure or other circumstances. Downtime that occurred through no fault of the employee shall be paid no less than two thirds of the salary... (Article 113 of the Labour Code). At the same time, in our opinion, impossibility for the employee to return to the company that is located in the area of the antiterrorist operation[1] is not downtime.

This position corresponds to the position of the Ministry of Social Policy of Ukraine set out in letters of 08.07.2014 no. 7302/0/14-14/13 and 11.08.2014 no. 8946/0/14‑14/13 for the purpose of preventing breaches of budgetary and labour legislation.”

9.  On 23 June 2015 the Kharkiv Administrative Court of Appeal upheld the first-instance judgment, mainly repeating the first-instance court’s aforesaid considerations.

10.  The letters of the Ministry of Social Policy to which the first-instance court and the Court of Appeal referred can be summarised as follows:

(i)  letter dated 8 July 2014, addressed to other ministries, stated that employees who did not appear for work on account of danger to life and health in the areas affected by hostilities in the Donetsk and Luhansk regions could not be dismissed for unjustified absence; it recommended that they be provided with unpaid leave;

(ii)  letter dated 11 August 2014 stated that an employee’s inability to return to the place of work in an affected area was not, in the deputy minister’s opinion, “downtime” within the meaning of the Labour Code.

11.  On 22 December 2015 the Higher Administrative Court upheld the lower courts’ findings, in so far as the non-payment of wages was concerned[2]. It stated, in particular:

“The claim for salary for the period of forced downtime is groundless since impossibility for an employee to return to a company which is located in the anti‑terrorist operation area cannot be considered downtime.

The panel of the Higher Administrative Court agrees with those findings of the [lower] courts ...

...

Pursuant to Article 34 of the Labour Code of Ukraine downtime is cessation of work caused by the absence of appropriate conditions for carrying out work, force majeure or other circumstances.

Downtime that occurred through no fault of the employee shall be paid no less than two thirds of the salary rate due to the employee based on the grade assigned to the employee (Article 113 of the Labour Code).

As can be seen from the worktime recording sheets of the Environmental Inspectorate of the Luhansk Region for the period from 18 July 2014 to 28 November 2014, the applicant did not appear at her workplace while, during that time, some other employees worked.

Therefore, the [lower] courts ... had rightly not accepted the plaintiff’s statements to the effect that impossibility for her to return to the company that was located in the area of anti-terrorist operation, was to be considered downtime.

Pursuant to sections 3, 4 of the [Interim Order], enacted by the [Resolution] salary... of employees... of an institution shall be paid in full out of the institution’s budget (budgetary plan) for the period when the institution was located on the temporarily non-controlled territory and then that territory was returned under control of the State authorities or the institution was relocated to a locality on the territory in which State authorities exercise their powers in full (hereinafter – territory under control).

The salary... and payments due during the period of annual leave shall be paid to the employees... of institutions relocated to the territory under control if the institution continues functioning and employees... are carrying out their duties....

Accordingly, the court considers correct the conclusion of the [lower] courts that the plaintiff’s claim for pay during the period of forced downtime cannot be granted.”

THE COURT’S ASSESSMENT

12.  The applicant complained that the decisions of the domestic courts had not been adequately reasoned, in breach of Articles 6 and 13 of the Convention. The Court finds that this complaint falls to be examined under Article 6 only.

13.  The Government contested the applicant’s complaint, considering it to be of a “fourth instance” nature. They submitted that the domestic case file had, together with the archives of the Kharkiv Circuit Administrative Court, been destroyed in an emergency situation that had occurred there. It was also not possible to obtain documents from the applicant’s former employer, since these had been located either in Luhansk or Severodonetsk and those cities had been occupied since 2014 and 2022 respectively.

14.  The Court takes due note of the difficulties faced by the Government in providing relevant information and documents to the Court. It will examine the case on the basis of the material present in the file.

15.  It notes that this complaint is not manifestly ill-founded or inadmissible on any other grounds. It must therefore be declared admissible.

16.  The general principles of the Court’s case-law have been summarised in Ramos Nunes de Carvalho e Sá v. Portugal ([GC], nos. 55391/13 and 2 others, §§ 185 and 186, 6 November 2018, with further references).

17.  The Court observes that the applicable provisions of the Interim Order distinguished between two periods, namely: (i) the period when a public institution was located in non-government-controlled territory before being transferred to territory under government control; and (ii) the period following such a transfer. The Interim Order provided that wages in the former period must be paid in full (free of any conditions) and wages for the latter period would be paid on condition that the institution had actually been operational and the employees had carried out their duties (see paragraphs 8 and 11 above).

18.  Although the domestic courts quoted sections 3 and 4 of the Interim Order, thus implying that they were applicable to the applicant’s situation, they failed to explain why they had applied section 4, concerning the period following the transfer, to the applicant’s claim, when the claim had in fact concerned only the period prior to the transfer, so under section 3 of the Interim Order, which regulated that latter period.

19.  Moreover, the courts failed to state why they had considered the general provisions of the Labour Code in the light of non-binding letters from the Ministry, both of which concerned all employees, including those in the private sector (see paragraph 10 above), rather than binding government Resolution and section 3 of the Interim Order which specifically addressed the situation of civil servants such as the applicant.

20.  Accordingly, the Court finds that the domestic courts fell short of their obligation to give reasons for their decisions.

21.  There has accordingly been a violation of Article 6 § 1 of the Convention.

22.  The applicant complained that she had been deprived of her back pay in breach of Article 1 of Protocol No. 1.

23.  The Government considered that the applicant’s rights under Article 1 of Protocol No. 1 had not been interfered with.

24.  The Court considers that, having regard to its finding under Article 6 § 1 of the Convention, it has examined the main legal questions raised in the present application and that there is no need to give a separate ruling on the complaint under Article 1 of Protocol No. 1 (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014, and Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 68, ECHR 2015).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

25.   The applicant claimed 300,000 Ukrainian hryvnias (UAH) in respect of non-pecuniary damage. She also claimed UAH 358,792 in respect of pecuniary damage consisting of unpaid wages with inflation adjustment and of rent paid for a flat in Kherson over the relevant period.

26.  The Government contested that claim, considering it unfounded and, in any case, exaggerated.

27.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. The Court further observes that the domestic law, notably Articles 361 and 362 of the Code of Administrative Justice, allows the applicant to seek the reopening of proceedings (see Krayeva v. Ukraine, no. 72858/13, §§ 14 and 43, 13 January 2022).

28.  Ruling on an equitable basis, it awards the applicant 2,100 euros (EUR) in respect of non-pecuniary damage, plus any tax that may be chargeable.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the applicant, within three months, EUR 2,100 (two thousand one hundred euros), plus any tax than may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 27 March 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Martina Keller Armen Harutyunyan
 Deputy Registrar President

[1] At the relevant time Ukrainian Government’s military operations in Donetsk and Luhansk areas were conducted in the legal form of an “anti‑terrorist operation” (see, for example, Khlebik v. Ukraine, no. 2945/16, §§ 8-12, 25 July 2017).

[2] The Higher Administrative Court, however, quashed the lower courts’ decisions in respect of compensation for unused days of annual leave, remitting the case on that point; the proceedings concerning that issue – which do not form the subject of the present application – resulted in a decision of the Kharkiv Administrative Court of Appeal awarding the applicant compensation.