FIFTH SECTION
CASE OF KRYVCHENKO AND OLIYNYK v. UKRAINE
(Applications nos. 58568/17 and 22219/18)
JUDGMENT
STRASBOURG
4 July 2024
This judgment is final but it may be subject to editorial revision.
In the case of Kryvchenko and Oliynyk v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Carlo Ranzoni, President,
Mārtiņš Mits,
María Elósegui, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,
Having deliberated in private on 13 June 2024,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.
2. The Ukrainian Government (“the Government”) were given notice of the applications.
THE FACTS
3. The list of applicants and the relevant details of the applications are set out in the appended table.
THE LAW
JOINDER OF THE APPLICATIONS4. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.
THE LOCUS STANDI OF MRs Olena Leonidivna Kryvchenko IN APPLICATION NO. 58568/175. The Court notes that the applicant in application no. 58568/17 died on 24 October 2018, while the case was pending before the Court. The applicant’s widow, Mrs Olena Leonidivna Kryvchenko, has requested to pursue the application on her late husband’s behalf. The Court points out that in various cases, where applicants have died in the course of the proceedings, it has taken into account the wishes of their heirs or close members of their families to pursue the proceedings before the Court (see, for example, X. v. France, Series A no. 234-C, p. 89, § 26, and Jama v. Slovenia, no. 48163/08, § 28, 19 July 2012). It sees no reason to reach a different conclusion in the present case and, therefore, accepts that the applicant’s wife, Mrs Olena Leonidivna Kryvchenko, can pursue the application initially brought by him. However, reference will still be made to the applicant throughout the present judgment.
ALLEGED VIOLATION OF ARTICLE 6 § 1 of the Convention6. The applicants complained of the lack of reasoning or inadequate reasoning in a court decision. They relied, expressly or in substance, on Article 6 § 1 of the Convention.
7. The Court reiterates that, according to its long-standing and established case-law, it should not act as a court of fourth instance and will not therefore question under Article 6 § 1 of the Convention the judgment of the national courts, unless their findings can be regarded as arbitrary or manifestly unreasonable (see Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 61, ECHR 2015, with further references).
8. Article 6 § 1 obliges domestic courts to give reasons for their judgments. This duty cannot be understood as requiring a detailed answer to every argument, and the question of compliance with that duty can only be determined in the light of the circumstances of the case (see Ruiz Torija v. Spain, 9 December 1994, § 29, Series A no. 303‑A, and García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999‑I). Those principles were applied in a number of Ukrainian cases (see, for example, Benderskiy v. Ukraine, no. 22750/02, §§ 42-47, 15 November 2007; Pronina v. Ukraine, no. 63566/00, § 25, 18 July 2006; and Bogatova v. Ukraine, no. 5231/04, §§ 18 and 19, 7 October 2010).
9. Reviewing the facts of the present case in the light of those principles, the Court considers that the domestic courts failed in their duty to provide reasons for their decisions and did not address pertinent and important arguments raised by the applicants. The specific procedural failings, indicated in the appended table, prompt the Court to conclude that the applicants were stripped of their right to a reasoned court decision.
10. These complaints are therefore admissible and disclose a breach of Article 6 § 1 of the Convention.
APPLICATION OF ARTICLE 41 OF THE CONVENTION11. Regard being had to the documents in its possession and to its case‑law (see, in particular, Pronina v, cited above, § 29), the Court considers it reasonable to award the sums indicated in the appended table.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Decides to join the applications;Decides that Mrs Olena Leonidivna Kryvchenko, the widow of the applicant in application no. 58568/17, has locus standi in the proceedings;Declares the applications admissible;Holds that these applications disclose a breach of Article 6 § 1 of the Convention concerning the lack of reasoning or inadequate reasoning in court decision; Holds(a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, 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 4 July 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Viktoriya Maradudina Carlo Ranzoni
Acting Deputy Registrar President
APPENDIX
List of applications raising complaints under Article 6 § 1 of the Convention
(lack of reasoning or inadequate reasoning in court decision)
No.
Application no.
Date of introduction
Applicant’s name
Year of birth
Subject matter of the domestic proceedings
Key argument the court failed to address
Final domestic decision
Date
Name of the court
Amount awarded for non-pecuniary damage per applicant
(in euros)[1]
58568/17
28/07/2017
Demyan Volodymyrovych KRYVCHENKO
Born in 1951
Deceased in 2018
Heir:
Olena Leonidivna Kryvchenko
The applicant is a retired police officer who was seeking recalculation of his pension as was provided for by a new legislation on the National Police establishing higher salary rates for police officers. The local pension authority rejected the applicant’s request for recalculation of his pension. He also requested a certificate about the new (increased) salary rate from the police, which would serve as the basis for the above recalculation, but it was rejected.
The applicant lodged a claim before the Nikopol City District Court asking: (i) to recognise his right for recalculation of the pension; (ii) to request the certificate in question from the Police; (iii) to order the pension authority to recalculate the applicant’s pension accordingly. The applicant argued that his requests for the certificate addressed to the Police authorities had been futile. On 23 January 2017 the Nikopol City District Court granted all claims. However, by a final decision of 23/03/2017, the Dnipropetrovsk Administrative Court of Appeal quashed that judgment and rejected the applicant’s claims. Referring to Regulation of the Cabinet of Ministers no. 45 of 13 February 2008, it stated that, in case of increase of police officers’ salaries, which were used as the basis for the pensions, local pension authorities could only recalculate those pensions based on certificates about the new salary rate of police officers. The sequence of actions of the authorities should have been as follows: (1) the Cabinet of Ministers informs local pension authorities about the increase and the necessity to recalculate pensions of certain categories of persons; (2) pension authorities prepare a list of the persons concerned and request the Police to provide the certificates mentioned above; (3) the Police provides the certificates; (4) pension authorities recalculate the pensions. The Court of Appeal confirmed that the applicant was entitled to recalculation of his pension. Nevertheless, it stated that, since the pension authority had not received the necessary certificate from the Police (or from the applicant), it was not able to recalculate the pension. Therefore, the Court of Appeal concluded that the applicant did not have the right to recalculation owing to the above. It did not examine the applicant’s claim asking to order the pension authority to request the certificate from the Police.
The applicant died on 24/10/2018, and his wife expressed her wish to pursue the proceedings in his stead.
The appellate court failed to provide any reasons as to why it could not order the issuance of the certificate by the Police upon the applicant’s explicit request to do so. On the overall, the appellate court made the applicant’s right to recalculation of his pension dependant on exchange of information between the state authorities, thus making it practically impossible for the applicant to obtain pension recalculation due to him and disregarding the substance of his claims.
23/03/2017, Dnipropetrovsk Administrative Court of Appeal
1,500
22219/18
24/04/2018
Dmytro Vyacheslavovych OLIYNYK
1971
The applicant was in dispute with some private individuals over property rights and de facto control over a flat in Kyiv. The domestic courts recognised him as the sole lawful owner of the flat. However, it appears that the flat, at the relevant time, was de facto controlled by private individuals opposed to the applicant in the above-mentioned dispute. One of those opposing parties, A.S.O., by two separate agreements dated 28/05/2008 and 05/06/2008, rented out 1/3 and 2/3 of the flat respectively to Y. company (a tenant).
The applicant instituted two sets of proceedings seeking, inter alia, to invalidate those agreements since A.S.O. was not the flat’s owner and, as such, could not rent it out.
On 02/12/2014 the Kyiv City Court of Appeal discontinued the first set of proceedings after having certified a friendly settlement between the applicant and Y., whereby the applicant waived his claim regarding the validity of the 05/06/2008 agreement regarding 2/3 of the flat.
As for the second set, the Court of Appeal rejected the claim since according to the court, it had been the subject of the friendly settlement certified in the 1st set of proceedings. On 25/10/2017 the High Specialised Court for Civil and Criminal Matters upheld the Court of Appeal’s decision.
The courts provided no comment on the applicant’s arguments that the two agreements were distinct and that in the 2nd set of proceedings he sought invalidation of the 28/05/2008 agreement specifically. The courts failed to comment on why discontinuation, due to friendly settlement, of the proceedings concerning the 05/06/2008 agreement precluded examination of the claim concerning the other agreement.
25/10/2017, High Specialised Court for Civil and Criminal Matters
1,500
[1] Plus any tax that may be chargeable to the applicants.