Communicated on 17 December 2014
FIFTH SECTION
Application no. 77234/12
Valentyn Yegorovych PYATOV against Ukraine
and 2 other applications
(see list appended)
STATEMENT OF FACTS
THE FACTS
A list of the applicants is set out in the appendix.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Application no. 77234/12
The applicant lodged an administrative claim for pension recalculation against the Department of the Pension Fund in Smila (“the defendant”).
On 2 June 2011 the Smila Court, at the close of a public hearing, allowed the applicant’s claim.
On 3 June 2011 the defendant appealed.
On 28 November 2011 a judge of the Kyiv Administrative Court of Appeal (“the Kyiv Court of Appeal”) ruled to open appeal proceedings, to schedule 27 March 2012 as the date for consideration of the appeal and as the deadline for the applicant to reply to the appeal.
On 27 March 2012 the Kyiv Court of Appeal quashed the judgment of the Smila Court rejecting the applicant’s claim.
On 5 April 2012 Mrs N.V., identified by the applicant as a secretary of the Kyiv Court of Appeal, drew up a certificate stating that due to lack of funding the court did not serve on the parties the copies of its decisions in the case. According to the applicant, this certificate can be found in the case-file.
On 30 May 2012 the Smila Court served a copy of the decision of 27 March 2012 on the applicant.
On 10 July 2012 the Higher Administrative Court of Ukraine rejected the applicant’s request for leave to appeal on points of law against the decision of 27 March 2012 holding that the Kyiv Court of Appeal correctly interpreted and applied the relevant substantive law.
2. Application no. 32053/13
The applicant lodged an administrative claim for pension recalculation against the Department of the Pension Fund in Amur‑Nyzhnyodniprovskyy District of Dnipropetrovsk (“the defendant”).
On 1 December 2010 the Amur‑Nyzhnyodniprovskyy District Court of Dnipropetrovsk, having considered the applicant’s claim by way of abridged administrative procedure, allowed the claim.
On 13 January 2011 the defendant lodged an appeal against the judgment.
On 11 April 2011 the Dnipropetrovsk Administrative Court of Appeal (“the Dnipropetrovsk Court of Appeal”) dismissed the defendant’s appeal as lodged ten days after the time-limit for appeal had expired.
On 1 June 2011 the District Court issued a writ of enforcement indicating that the judgment had become final on 11 April 2011.
On 15 August 2011 the defendant lodged a new appeal requesting that the Court of Appeal extend the time-limit for its submission on the ground that the defendant had received a copy of the judgment of 1 December 2010 with a delay.
On 26 October 2011 a judge of the Dnipropetrovsk Court of Appeal ruled to schedule consideration of the question of extension of the time-limit for appeal for 26 January 2012.
On 26 January 2012 the Dnipropetrovsk Court extended the time-limit for the defendant’s appeal. It recounted the sequence of procedural events in the case from 1 December 2010 to 15 August 2011 described above but did not state why it believed that extension of the time-limit for appeal was warranted.
On 27 January 2012 a judge of the Dnipropetrovsk Court of Appeal ruled to open appeal proceedings, to send to the parties copies of the ruling and of the appeal and to invite the applicant to provide his reply to the appeal.
On 13 June 2012 the Dnipropetrovsk Court of Appeal quashed the judgment and rejected the applicant’s claim.
On 27 November 2012 the defendant sent a letter to the applicant informing him that his pension had been reduced in accordance with the decision of the Dnipropetrovsk Court of Appeal of 13 June 2012.
According to the applicant, he first learned about the proceedings on appeal from the defendant’s letter of 27 November 2012.
3. Application no. 4328/14
The applicant lodged an administrative claim for pension recalculation against the Department of the Pension Fund in Slavutych (“the defendant”).
On 4 April 2011 the Slavutych Court, having considered the applicant’s claim by way of abridged administrative procedure, allowed the applicant’s claim for pension recalculation.
On 11 May 2011 the defendant appealed.
On 25 February 2011 a judge of the Kyiv Administrative Court of Appeal (“the Kyiv Court of Appeal”) ruled to open appeal proceedings, to schedule the hearing in the case for 14 March 2013 and to set 11 March 2013 as the deadline for the applicant to reply to the appeal.
On 14 March 2013 the Kyiv Court of Appeal quashed the judgment and rejected the applicant’s claim.
On 3 July 2013 the applicant obtained a copy of the decision of 14 March 2013 from the registry of the Kyiv Court of Appeal.
B. Relevant domestic law
Code of Administrative Justice of 6 July 2005, with amendments at the material time
Article 102 of the Code provides that the procedural time-limit can be extended or renewed if the court, at the request of a party to proceedings, finds valid reasons for such extension or renewal. The question of extension or renewal shall be decided in written proceedings or at a hearing, in the court’s discretion. Failure of those duly notified to appear shall not prevent the court from considering the question.
Article 183-2 of the Code provides, inter alia, that claims concerning social and pension payments are considered by way of an abridged procedure without summoning the parties. In the course of that procedure a defendant must 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 must 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 shall be final.
Article 186 of the Code provides that an appeal must be lodged within ten days after the pronouncement of the judgment. If the court decides to prepare a full text of the judgment after pronouncing only its operative part or if the judgment is delivered in writing, an appeal must be lodged within ten days after receipt of a copy of the judgment by the appellant.
Article 197 of the Code provides that a court of appeal may consider an appeal sitting in camera based on the materials in the case-file if (i) all parties do not request the court of appeal to hold a hearing in their presence or (ii) all parties, having been properly informed about the hearing, fail to appear or (iii) the case concerns social benefits or pension payments and was considered at first instance by way of abridged procedure.
At the material time Articles 189 and 190 of the Code provided that a new case arriving at a court of appeal had to be allocated to a judge rapporteur. The judge, having decided to open appeal proceedings, had to send the parties, within ten days of opening the proceedings, a copy of the ruling opening proceedings and a copy of the appeal, and to set a time-limit for replying to appeal.
Article 191 provides that all parties have a right to reply to an appeal. A reply must indicate whether the party wishes to be present at any hearing.
COMPLAINTS
The applicants complain under Article 6 of the Convention that they were not duly informed about the proceedings on appeal and were not sent a copy of the defendant’s appeal in their respective cases.
In case no. 32053/13 the applicant also complains under Article 6 § 1 of the Convention that the quashing of the final judgment of 1 December 2010 in his favour breached the principle of legal certainty.
QUESTIONS TO THE PARTIES
1. In the cases of all applicants, was the principle of equality of arms respected during the proceedings in the applicants’ cases before the administrative courts of appeal, as required by Article 6 § 1 of the Convention, on account of the alleged failure of the domestic authorities to serve on the applicants copies of appeals in their cases and inform them about consideration of their cases on appeal?
2. In case no. 32053/13, was there a breach of the applicant’s right to a fair hearing, as guaranteed by Article 6 § 1 of the Convention, as a result of the renewal of the time-limit for lodging an appeal by the defendant, after the judgment in the applicant’s case had become final and binding, and of the consequent quashing of this judgment by the Dnipropetrovsk Administrative Court of Appeal?
3. In case no. 77234/12, on what dates and by what method was a copy of the appeal lodged by the defendant and of the ruling of the judge of the Kyiv Administrative Court of Appeal of 28 November 2011 served on the applicant?
4. In case no. 32053/13, on what dates and by what method was a copy of the appeal lodged by the defendant on 15 August 2011 and of the rulings of the judge of the Dnipropetrovsk Administrative Court of Appeal of 26 October 2011 and of 27 January 2012 served on the applicant?
5. In case no. 4328/14, on what dates and by what method was a copy of the appeal lodged by the defendant and of the ruling of the judge of the Kyiv Administrative Court of Appeal of 25 February 2013 served on the applicant?
The Government are requested to submit the copies of the entire case-files in the administrative cases of all the applicants.
Appendix
No
Application No
Lodged on
Applicant
Date of birth
Place of residence
Nationality
77234/12
26/11/2012
Valentyn Yegorovych PYATOV
19/08/1947
Smila
Ukrainian
32053/13
03/05/2013
Konstantin Grigoryevich USTIMENKO
28/06/1948
Dnipropetrovsk
Ukrainian
4328/14
14/12/2013
Nadiya Mykolayivna TOMILINA
26/02/1963
Slavutych
Ukrainian
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