FIFTH SECTION
Application no. 8531/13
Mykola Oleksiyovych KUSHNIR
against Ukraine
lodged on 14 January 2013
STATEMENT OF FACTS
The applicant, Mr Mykola Oleksiyovych Kushnir, is a Ukrainian national, who was born in 1919 and lives in Kyiv. He is represented before the Court by Mr V. Rachynskyy, a lawyer practising in Kyiv.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant instituted administrative proceedings in the Obolonskyy District Court of Kyiv (“the District Court”) claiming that in 2009, 2010 and 2011 the local authorities failed to pay him appropriate amounts of the annual lump sum allowance under the “War Veterans Status and Their Social Protection Guarantees Act” (Закон України «Про статус ветеранів війни, гарантії їх соціального захисту»). The applicant further claimed 1,000 Ukrainian hryvnias (“UAH”) as compensation for non-pecuniary damage in connection with the alleged violations.
On 21 October 2011 the District Court held that the case should be considered by way of abridged procedure, pursuant to Article 183-2 of the Code of Administrative Justice.
On 1 November 2011 the District Court allowed the applicant’s claim as regards the annual allowance which was due to him in 2011. It ordered that the Kyiv City Social Security Payments Centre (“the Centre”) should pay the applicant a lump sum amounting to eight times the minimum pension in respect of the annual allowance to which the applicant was entitled under the above-mentioned Act in 2011, less the amount that had been already paid to him for that period. The claims in respect of the other periods as well as the claim for non-pecuniary damages were rejected without providing reasons in the text of the judgment.
On 10 November 2011 a copy of the judgment was sent to the Centre. According to the applicant, he was not sent a copy of that judgment. The Centre lodged an appeal arguing that the applicant’s claims had to be dismissed in full.
On 30 November 2011 the case was referred to the Kyiv Administrative Court of Appeal (“the Court of Appeal”).
By letter of 2 March 2012 the Court of Appeal informed the applicant that owing to its work overload, his case had not yet been registered in the electronic database.
On 5 June 2012 the applicant lodged a request with the Court of Appeal asking, inter alia, for a copy of the District Court’s judgment.
By letter of 26 June 2012 the Court of Appeal informed the applicant that his case had not yet been registered in the electronic database.
On 24 October 2012 the applicant requested the Court of Appeal to provide him with a copy of the District Court’s judgment specifying that he had not been given a copy of that judgment. He further requested to be informed of the progress of the appeal proceedings.
By the letter of 1 November 2012 the Court of Appeal informed the applicant that his case would be considered on 7 November 2012 in a written procedure.
On 28 November 2012 the Court of Appeal considered the defendant’s appeal and adopted a new judgment increasing the amount to be paid to the applicant. In particular, it held that the Centre should pay the applicant a lump sum amounting to ten times the minimum pension, in respect of the annual allowance to which the applicant was entitled in 2011, less the amount that had been already paid to him for that period. As to the allowances to which the applicant was entitled in 2009 and 2010, the Court of Appeal dismissed those claims without considering them on the merits since they had been lodged out of time. The remainder of the applicant’s claims (allegations concerning non-pecuniary damage) was rejected without specifying any reasons.
B. Relevant domestic law
Code of Administrative Justice of 6 July 2005
Article 183-2 of the Code provides, inter alia, that claims concerning social and pension payments should be considered by way of an abridged procedure without summoning the parties. In the course of that procedure a defendant should be given a ten-day time-limit for objections against the claim and submitting the relevant documents. The day after the adoption of judgment by the first-instance court, the copies thereof should be sent to the parties by registered letters. The judgment may be appealed against to a court of appeal. The decision of a court of appeal is final and not subject to further appeal.
COMPLAINTS
1. The applicant complains under Article 6 § 1 of the Convention that his right of access to the Court of Appeal was not ensured.
2. The applicant further complains under Article 6 and 13 of the Convention of unfairness of the proceedings and lack of effective remedies.
QUESTION TO THE PARTIES
Did the applicant have access to the court of appeal in accordance with the requirements of Article 6 § 1 of the Convention?
The Government are invited to provide documents evidencing the date when the applicant was notified of the judgment of 1 November 2011 and given a copy thereof.
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