Published on 27 October 2025
FIFTH SECTION
Application no. 62983/19
Volodymyr Illich KYTAYEV
against Ukraine
lodged on 27 November 2019
communicated on 6 October 2025
SUBJECT MATTER OF THE CASE
The applicant complains under Articles 6 and 13 of the Convention and under Article 1 of Protocol No. 1 about the Supreme Court’s decision rejecting his claim for a benefit associated with his former military service.
The applicant sustained certain injuries while serving in the Soviet Army: in 1983, while serving in Afghanistan, and in 1986, while serving in Hungary. In 1995 the applicant was discharged from the Army. In 2013 a commission of the Ministry of Defence of Ukraine (“the Ministry”) established that his injuries were related to the performance of military service (“the Commission Report”). In November 2014 the applicant was recognised as having a disability.
The applicant applied for a lump-sum benefit payment to servicemen who became disabled due to the performance of their duties (“the Benefit”). In 2016 the Ministry refused to pay the Benefit on the grounds that, at the time the applicant had been discharged from the Army (1995), the law had provided for a different form of compensation for injuries (which had been paid to the applicant until 2007), and that the Benefit had only been introduced in 2006.
In April 2016 the applicant lodged a claim seeking an order to pay him the Benefit. The Ministry objected that the applicant had not provided all documents required by relevant rules to obtain the Benefit, including documents showing that the injuries were not the result of factors which, under the relevant rules,[1] excluded payment of the Benefit, namely the victim’s intoxication, commission of an offence by them or self-harm (“Excluded Factors”). The applicant responded that the military authorities had all the relevant records and, if they had any indication that there were any Excluded Factors, they should have pointed to them and, if they had such records, they should and would have produced them.
On 7 June 2016 a first-instance court allowed the claim in part and ordered the military authorities to reconsider the applicant’s request for the Benefit. On 25 October 2016 the Kharkiv Administrative Court of Appeal, after holding a hearing with the parties, quashed that judgment, re-examined the case de novo and ordered the Ministry to pay the Benefit. Concerning the documents, the Court of Appeal considered that the Commission Report provided sufficient indication of the circumstances under which injuries had been inflicted (since the report described the injuries to the applicant’s neck and arm and stated that “they were connected with military service”). The Court of Appeal stated that none of the medical documents indicated that there had been any Excluded Factors.
The Ministry appealed in cassation to the Supreme Court (“the SC”). The applicant submitted a written reply and asked to be present at the hearing before the SC. The SC refused this application and examined the case without the presence of the parties.
On 7 August 2019 the SC quashed the lower courts’ decisions and rejected the applicant’s claim. It held that the applicable rules excluded payment of the Benefit where injuries were the result of the Excluded Factors and explicitly required that applicants for the Benefit submit, in addition to the Commission Report, documents showing the circumstances under which injuries were sustained, in particular indicating that they were not sustained due to the Excluded Factors.
The SC stated that the Commission Report produced in the applicant’s case only indicated the probable date and nature of the injuries but there was no document in the file indicating the circumstances under which they had been sustained and which, in particular, would allow to establish whether they had been caused by the Excluded Factors. The SC referred to a decision of the SC’s Social Chamber in a similar case of 10 April 2019 (case no. 822/220/18) explaining that in such situations claims for the Benefit were to be refused.
QUESTIONS TO THE PARTIES
1. Did the applicant have a fair hearing in the determination of his civil rights and obligations, as required by Article 6 § 1 of the Convention? In particular:
(i) did the Supreme Court provide sufficient reasons for its decisions and were they “arbitrary” and/or “manifestly unreasonable” (see, for example, Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 61, ECHR 2015, and Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, §§ 185 and 187-92, 6 November 2018, with further references)?
(ii) was the approach to the question of evidence and the burden of proof foreseeable and compliant with the requirements of Article 6 § 1 of the Convention (see, for example, Petko Petkov v. Bulgaria, no. 2834/06, §§ 32-35, 19 February 2013; Tence v. Slovenia, no. 37242/14, §§ 35-38, 31 May 2016; Karajanov v. the former Yugoslav Republic of Macedonia, no. 2229/15, §§ 55-64, 6 April 2017)?
(iii) did the Supreme Court have jurisdiction under Ukrainian law to reassess the facts and the evidence in the case in the manner it did, in particular without holding an oral hearing, or was it obliged to remit the case for new examination by the lower courts? Can the applicant be said to have been taken by surprise by the procedure adopted by the Supreme Court (see, for example, Sokurenko and Strygun v. Ukraine, nos. 29458/04 and 29465/04, §§ 22-29, 20 July 2006; Clinique des Acacias and Others v. France, nos. 65399/01 and 3 others, §§ 36-43, 13 October 2005; Čepek v. the Czech Republic, no. 9815/10, §§ 43-60, 5 September 2013; Ben Amamou v. Italy, no. 49058/20, §§ 49-79, 29 June 2023; and compare, for example, Vegotex International S.A. v. Belgium [GC], no. 49812/09, §§ 133-43, 3 November 2022; Les Authentiks and Supras Auteuil 91 v. France, nos. 4696/11 and 4703/11, §§ 49-58, 27 October 2016)?
[1] Resolution of the Cabinet of Ministers of Ukraine no. 975 of 25 December 2013 (in effect since 24 January 2014).