CASE OF KORGUN v. UKRAINE

FIFTH SECTION

CASE OF KORGUN v. UKRAINE

(Application no. 68907/14)

JUDGMENT

STRASBOURG

14 December 2023

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

In the case of Korgun v. Ukraine,

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

 Lado Chanturia, President,
 Stéphanie Mourou-Vikström,
 Mykola Gnatovskyy, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 68907/14) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 17 October 2014 by a Ukrainian national, Mr Sergiy Petrovych Korgun (“the applicant”), who was born in 1984 and lives in Kyiv;

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 23 November 2023,

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

SUBJECT MATTER OF THE CASE

1.  The application concerns the applicant’s complaint under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 that he had been deprived of his pay unlawfully and that the domestic courts, in rejecting a claim for back pay, had not provided sufficient reasons for their decisions.

2.  The applicant, a police officer at the time, was arrested on 3 February 2010 on suspicion of bribery. He remained in detention at least until he was convicted.

3.  On 17 February 2010 the applicant was suspended from his post for the duration of the disciplinary investigation. On 4 March 2010 that investigation was concluded with the recommendation that the question of whether the applicant should remain in his post depended on the outcome of the criminal case.

4.  On 6 May 2011 the applicant was convicted and on 16 September 2011 he was dismissed from the police on the grounds of that conviction.

5.  No salary was paid to him from the day of his arrest until the day of his dismissal. The applicant sued his former employer, a police department, seeking salary arrears for that period.

6.  The Kyiv Circuit Administrative Court allowed his claim. It referred notably to section 17 of the Police Disciplinary Statute and section 3(5) of the regulations on police pay: both of those provisions provided that a police officer subject to disciplinary investigation could be suspended from his or her post while preserving his or her remuneration.[1] The court ordered the defendant to pay the applicant salary arrears for the entire period from his arrest to his dismissal.

7.  The defendant appealed, arguing that there were no grounds for paying the applicant his salary since, during the relevant time, he had been in detention and had not performed his duties as an officer. The defendant also pointed out that the regulations on police pay had been amended and a new rule provided for the cessation of salary payments for the period during which a police officer was under arrest.[2] Accordingly, enforcement of the first-instance judgment would be in breach of the law and would lead to misuse of budgetary allocations.

8.  The applicant objected to the appeal, noting that the amendments to the regulations relied on by the defendant had come into force in 2012, after the applicant’s dismissal, and were therefore inapplicable.

9.  The applicant submitted to the Court a self-produced transcript of the hearing held on 24 January 2013 before the Kyiv Administrative Court of Appeal. The Government did not contest its veracity. According to the transcript, during the hearing the defendant’s representative stressed that no salary had been paid to the applicant since he had not been at work and had not been performing his duties during the relevant period. The presiding judge had asked the defendant whether the fact that the applicant had not showed up for work had been documented and formalised as the reason for withholding pay and the representative replied that it had not been.

10.  The Court of Appeal allowed the appeal and dismissed most of the applicant’s claim, allowing it only in respect of the period of the disciplinary investigation (17 February to 4 March 2010). The Court of Appeal agreed with the Circuit Court that in the case of a suspension for disciplinary investigation the suspended officer was to continue to receive his or her salary. This meant that the applicant’s right to pay was preserved for the period of the investigation, from 17 February to 4 March 2010.

As to the remainder of the period in issue, the court referred to the provision of the regulations on police pay (section 3(4)(5)), governing pay in the event of a police officer’s being “placed on leave” (перебування в розпорядженні). Under the regulations, such placement was possible during “organisational and staff-related measures” for up to fifteen days (or, where authorised by the Minister, two months). The regulations provided that during such placement the salary was to be paid, except for the salary covering the period when the officer was under arrest.

11.  The Court of Appeal also stated that general labour law did not apply to questions of remuneration of police officers and only the above-mentioned special rules applied.

12.  The applicant lodged a cassation appeal. He argued in particular that he had never been placed on leave and that no decision to that effect had ever been taken. Accordingly, the provision concerning placement on leave referred to by the Court of Appeal did not apply to him.

13.  On 10 July 2014 the High Administrative Court upheld the Court of Appeal’s decision, repeating its arguments concerning placement on leave.

THE COURT’S ASSESSMENTALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTIONThe parties’ submissions

14.   The applicant submitted that the courts had committed a manifest error and applied provisions which had not been applicable to his situation.

15.  The Government submitted that the reasoning of the domestic courts had not reached the level of arbitrariness or manifest unreasonableness, given that the courts had referred to the provisions of domestic law which provided that no salary was to be paid for periods of detention. The decision of the Court of Appeal had been reviewed and upheld in the cassation appeal. The applicant’s complaint had been an attempt to contest the domestic courts’ evaluation of the evidence, a classical example of a “fourth-instance” application.

16.  The Government submitted that the domestic legislation had provided for the maintenance of police officers’ salaries only during the period of a disciplinary investigation. This had been confirmed by the courts. The applicant had been under arrest since 3 February 2010 and no legislative provision had provided for the payment of a salary while an officer was under arrest. The enactment, on 4 May 2012, of a specific provision excluding payment during the period of arrest had not meant that payments had been due prior to the enactment but had only been intended to clarify the issue.The Court’s assessment

17.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

18.  The Court reiterates that Article 6 § 1 of the Convention obliges courts to give reasons for their decisions, but cannot be understood as requiring a detailed answer to every argument (see Perez v. France [GC], no. 47287/99, § 81, ECHR 2004‑I). The question whether a court has failed to fulfil the obligation to state reasons, deriving from Article 6 § 1, can only be determined in the light of the circumstances of the case (see Gorou v. Greece (no. 2) [GC], no. 12686/03, § 37, 20 March 2009, with further references).

19.  According to the Court’s established case-law reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based (see García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999-I). This obligation presupposes that a party to judicial proceedings can expect a specific and express reply to those submissions which are decisive for the outcome of the proceedings in question (see Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 185, 6 November 2018, with further references).

20.  Turning to the present case, the Court notes that Court of Appeal did not comment on why it considered the rules on placement on leave applicable to the applicant, given that it has never been shown that any decision to place him on leave had ever been taken.

21.  The applicant pointed out the issue regarding the Court of Appeal’s reasoning but the High Administrative Court did not comment on that argument in any way, simply restating the Court of Appeal’s reasoning.

22.  The Court also perceives no implicit response to the applicant’s arguments (contrast, for example, Čivinskaitė v. Lithuania, no. 21218/12, §§ 142-44, 15 September 2020).

23.  In these circumstances, it is impossible to ascertain whether the courts simply neglected to deal with that argument or whether they intended to dismiss it and, if that was their intention, what their reasons were for so deciding.

24.  The courts did not refer to any other provision in domestic law which could serve as basis for not paying the applicant’s salary in the relevant period.

25.  The defendant in the domestic proceedings relied on subsequent amendments to the relevant regulations enacted in 2012. Their argument in that connection was ambiguous: they did not explicitly say (let alone cite any provision of the law in support of their argument) that the amendments had been meant to be applied retroactively, but appeared, rather, to argue that, because of the amendments, they would have had difficulty in complying with the judgment for budgetary reasons (see paragraph 7 above).

26.  Moreover, the Government submitted that those amendments had been superfluous and had simply made explicit what had supposedly been the state of the domestic law even before their enactment, namely that the law had not entitled police officers to any salary while they were under arrest and were, therefore, not performing their duties. This also echoes the argument raised by the defendant in their appeal (see paragraphs 7 and 16 above).

27.  However, neither the Court of Appeal nor the High Administrative Court ever referred to either of those arguments. Moreover, no specific legal provision on which those arguments could be based was ever cited, either by the defendant or by the Government.

28.  The courts, therefore, fell short of their obligation to examine and comment on the submissions which were decisive for the outcome of the case. The Court is unable to find that the applicant was heard by the domestic courts as required by Article 6 § 1 for the proceedings to be considered “fair”.

29.  There has been a violation of Article 6 § 1 of the Convention.ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1

30.  The Government submitted that, in the absence of any entitlement under domestic law to receiving pay during detention (see paragraph 16 above), Article 1 of Protocol No. 1 was not applicable.

31.  The applicant submitted that he had been entitled to the payments.

32.  The Court considers that, having regard to its finding under Article 6 § 1 and in particular in view of the considerations set out above (see paragraphs 26-29), 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; Xero Flor w Polsce sp. z o.o. v. Poland, no. 4907/18, § 295, 7 May 2021; Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 68, ECHR 2015; and, for example, Kravchuk v. Ukraine [Committee], no. 77435/12, § 29, 22 April 2021).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

33.  The applicant claimed 351,941.57 Ukrainian hryvnias in respect of pecuniary damage (representing the amount of his unpaid salary during the disputed period and compensation for the delay in payment, calculated under certain provisions of domestic law) and 20,000 euros (EUR) in respect of non-pecuniary damage.

34.  The Government contested those claims, considering them unfounded and excessive.

35.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. The Court 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).

36.  However it awards the applicant EUR 2,250 in respect of non‑pecuniary damage, plus any tax that may be chargeable to the applicant.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,Declares the complaint under Article 6 § 1 of the Convention admissible;Holds that there has been a violation of Article 6 § 1 of the Convention;Holds that it is not necessary to examine the admissibility and merits of the complaint under Article 1 of Protocol No. 1 to the Convention;Holds

(a)  that the respondent State is to pay the applicant, within three months, EUR 2,250 (two thousand two hundred and fifty euros), plus any tax that 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 14 December 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Martina Keller Lado Chanturia
 Deputy Registrar President

[1] Section 17(1) of the Police Disciplinary Statute (enacted on 22 February 2006) provided that a police officer who was subjected to a disciplinary investigation (службове розслідування) could be suspended from his or her post while retaining his or her salary and benefits. Subsection 3 of the Statute provided that the duration of the suspension from the post was not to exceed the time allotted for the disciplinary investigation. Section 3(5)(1) of the regulations on police pay, enacted by Ministry of the Interior Order no. 499 of 31 December 2007, restates the provisions of section 17 of the Disciplinary Statute.

[2] Amendments to the police pay regulations were enacted by Ministry of the Interior Order no. 288 of 5 April 2012. The Order added section 3(5)(4) to the regulations, which provided that no remuneration would be paid to police officers remanded in custody as criminal defendants, starting from the day of their arrest. The Order also stated that it would come into force on the day of its publication. The Order was published on 14 May 2012.

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