SHYLINA v. UKRAINE and 3 other applications

Communicated on 27 August 2020

Published on 14 September 2020

FIFTH SECTION

Application no. 2412/19
Elvira Denysivna SHYLINA against Ukraine
and 3 other applications
(see list appended)

STATEMENT OF FACTS

1.  A list of the applicants is set out in the appendix.The circumstances of the cases

2.  The facts of the cases, as submitted by the applicants, may be summarised as follows.Background information pertinent to all applications

3.  Due to the eruption of the military conflict in the eastern regions of Ukraine and the occupation of the Crimean peninsula in 2014, a number of residents of those regions had to leave their homes and move to Government controlled territories. Those people who had moved received the status of internally displaced persons (“IDPs”) which has been regulated by a number of legal acts. In particular, the legislation provided that the IDPs were entitled to all the same social benefits as other Ukrainian citizens as well as to some special benefits to support them after the move. According to the Cabinet of Ministers of Ukraine Resolution no. 637 of 5 November 2014 on welfare payments to persons displaced from the temporarily occupied territory of Ukraine and the anti-terrorist operation area (“Resolution no. 637”), as worded at the time of adoption, all of the social benefits due to the IDPs had to be paid at their new place of residence as confirmed by the certificate of an IDP (see paragraph 39 below).

4.  On 14 March and 8 June 2016 the Cabinet of Ministers of Ukraine adopted two resolutions amending Resolution no. 637: i) Resolution no. 167 “On amendments to some resolutions of the Cabinet of Ministers” (“Resolution no. 167”), and ii) Resolution no. 365 “On some issues of social benefits for internally displaced persons” (“Resolution no. 365”). Section 1 of Resolution no. 637 was amended by these resolutions in order to provide that from 1 July 2016 all of the social benefits due to IDPs shall be paid solely through the accounts and the network of offices and devices of the Derzhavnyy Oschchadnyy Bank of Ukraine (the State Savings Bank, “Oshchadbank”). The IDPs had to be issued with the relevant bank cards and had to undergo identity verification every six months (on the first two occasions), and every twelve months afterwards. It was further established that until 1 July 2016 Oshchadbank had to open bank accounts for those IDPs who had no accounts there already (see paragraph 39 below). It followed that in case a person failed to open such an account, his or her social benefits were suspended.Application no. 2412/19

5.  In November 2014, due to the occupation of the Crimean peninsula, the applicant and her family moved to the Government controlled territory and registered as IDPs. In view of their status they were entitled to a housing allowance. The applicant, as a representative of the family, had been receiving this allowance in her bank account opened with a private bank: Raiffeisen Bank Aval.

6.  In April 2016, apparently after Resolution no. 167 came into force, the payment of the housing allowance due to the applicant was suspended.

7.  The applicant challenged the actions of the local social security department concerning the suspension of her housing allowance from April 2016. Her claims were granted by the courts as there were no grounds for such a suspension. According to the applicant she received all the payments due to her for the period from April to June 2016.

8.  In July 2016 the applicant challenged the provisions of Resolution no. 637 and the amending resolutions. She claimed that those provisions were discriminatory and did not correspond to the legal acts of the higher legal force and should therefore be invalidated. The applicant referred to, inter alia, Article 14 of the Law on Ensuring the Rights and Freedoms of Internally Displaced Persons and Article 6 of the Law on the Prevention of and the Fight against Discrimination in Ukraine (see paragraphs 37 and 38 below), as well as Articles 8 and 14 of the Convention and Article 1 of Protocol No. 12 and Article 1 of Protocol No. 1 to the Convention. She also relied on the Court’s case law in discrimination cases, in particular the test the Court applies to establish whether there was any discrimination. The applicant pointed to the difference in the treatment of the persons without IDP status receiving the housing allowance and the IDPs who received it, as only the latter were required to open bank accounts with Oshchadbank. She also pointed to the discrimination between the IDPs themselves, in particular those who already had bank accounts with Oshchadbank before the amendments of March and June 2016 and those who had no such accounts.

9.  On 24 May 2017 the Kyiv Circuit Administrative Court rejected the applicant’s claims in full. The court reasoned that the Cabinet of Ministers acted within its competence when adopting the Resolutions at stake. As to the applicant’s discrimination arguments, the court noted that discrimination could be considered those limitations of the rights and freedoms which hinder a person in the enjoyment of his or her right. In the court’s view, in the present case the applicant’s claims related exclusively to her unwillingness to open a bank account with Oshchadbank, and she did not advance any arguments in support of her complaints of discrimination against her. The court further noted that the limitations at stake did not deprive the applicant of her rights, they only established the modalities of its realisation. The court also rejected the applicant’s references to the Convention as not proving the discriminatory nature of the impugned resolutions.

10.  The applicant appealed, mainly by repeating her arguments. She also noted that the local court failed to examine in detail her references to the Court’s case law and the test it applies when examining discrimination cases.

11.  On 17 October 2017 the Kyiv Administrative Court of Appeal upheld the local court’s judgment. It endorsed the local court’s findings regarding the lawfulness of the actions of the Cabinet of Ministers in the adoption of the Resolutions at stake. It noted in particular, that these Resolutions were aimed at

“safeguarding the money due to the socially unprotected [persons] registered as internally displaced persons (...); ensuring the payment of pensions and other social benefits; prevention of fraud and unlawful actions during the payment of such benefits and prevention of financing of terrorism.”

It continued to note that the Resolutions at stake not only ensured the payment of the social benefits to the IDPs through the designated bank but also did not deprive them of the possibility to withdraw this money and deposit it with another bank of their choice. In this context it repeated the local court’s argument that the applicant’s claims related exclusively to her unwillingness to open a bank account with Oshchadbank, and that she did not advance any arguments in support of her complaints of discrimination against her. Further, with reference to domestic law and the Court’s judgment in the case of Pichkur v. Ukraine (no. 10441/06, 7 November 2013), the appellate court concluded that the Government’s actions were lawful, based on domestic legislation and did not aim to discriminate based on one’s place of residence. Therefore, the court found no signs of discrimination.

Finally, it noted that by Resolution no. 689 of 13 September 2017, Resolution no. 637 was amended in order to provide that the payment of the social benefits to the IDPs was to be conducted via Oshchadbank with the possibility of further transactions (money transfers, payment or cashing) at any other bank in the Government controlled territory (see paragraph 39 below). With regard to this fact the court considered that the Cabinet of Ministers thus “eliminated the violation of the claimant’s rights”.

12.  The applicant appealed in cassation mainly by repeating her arguments. She also noted that the amendments to Resolution no. 637 mentioned by the court of appeal did not resolve the problem because the IDPs still had to open a bank account with Oshchadbank.

13.  On 25 September 2018 the Supreme Court upheld the lower courts’ judgments dismissing the applicant’s claims. It endorsed their findings as to the lawfulness of the actions of the Cabinet of Ministers in the adoption of the resolutions at stake. On the matter of discrimination the Supreme Court noted that the lower courts rightly concluded that there were no signs of discrimination and that on the contrary, the impugned measures were called upon to ensure special protection of the IDPs.

14.  In November 2017 the payment of the housing allowance due to the applicant and her family was resumed when the applicant’s husband opened a bank account with Oshchadbank. However, according to the applicant there is still an outstanding debt for the period before November 2017.Application no. 18183/19

15.  In July 2016 the payment of a pension due to the applicant was suspended for unclear reasons.

16.  The applicant applied to the court challenging the actions of the Pokrovsk Department of the Pension Fund and claimed that the pension due to her should be paid, and that this payment should be made to her existing bank account. The applicant also complained of discrimination regarding the payment of her pension on the ground of her place of residence (uncontrolled territory as compared to the controlled territory) and her status as an IDP. She referred, inter alia, to Article 24 of the Constitution of Ukraine, the Law on the Prevention of and the Fight against Discrimination in Ukraine as well as to Article 14 of the Convention and Article 1 of Protocol No. 1 to the Convention. She also relied on the Court’s case law, in particular the judgment in the case of Pichkur v Ukraine (cited above).

17.  On 11 October 2018 the Donetsk Circuit Administrative Court ordered the Pokrovsk Department of the Pension Fund to resume the payment of the applicant’s pension. However it rejected the claim concerning the payment being made to her bank account with a private bank, relying on the requirements of Resolution no. 637 (as amended). The court allowed for the immediate enforcement of the judgment in the form of one month’s payment.

18.  The above judgment became final on 26 December 2018 and on 7 February 2019 the enforcement proceedings were opened.

19.  On 8 February 2019 the Pokrovsk Department of the Pension Fund informed the applicant that the actual enforcement of the judgment was not possible as her pension account had not been opened in Oshchadbank as required for IDPs. It also noted that the payment could be made upon the verification of her IDP status as required by legislation. It further stated that the information that the applicant was an IDP had not been confirmed as she had never crossed the demarcation line between the Government controlled and uncontrolled territory. Therefore, her pension payments had been suspended from 26 December 2018 onward. Finally, the Pokrovsk Department of the Pension Fund suggested that the applicant contact an office of the Pension Fund at her place of residence and request that her pension should be sent to the Oshchadbank bank account.

20.  In February 2019 the applicant requested the Donetsk Circuit Administrative Court to indicate the judicial supervision of the enforcement of the judgment of 11 October 2018 and to adopt a separate ruling on the possible criminal offence by the debtor.

21.  On 25 February 2019 the court refused this request noting that it was a right and not an obligation of the court to indicate judicial supervision as well as to adopt a special ruling. Judicial supervision could only be applied at the time of adoption of the judgment itself, which was not applicable in the present case. It also found no reasons to adopt a separate ruling.

22.  The applicant sought to appeal against this decision and submitted her appeal directly to the appellate court. However, according to the respective transitional legislation she should have filed it with the local court. Her appeal was returned to her by the ruling of 11 March 2019.

23.  According to the applicant, the judgment of 11 October 2018 remains unenforced.Application no. 20103/19

24.  In July 2016 the payment of a pension due to the applicant was suspended for unclear reasons.

25.  The applicant applied to the court challenging the actions of the Bakhmut-Lymansk Department of the Pension Fund and claimed that the pension due to her should be paid, and that this payment should be made to her existing bank account. The applicant also complained of discrimination concerning the payment of her pension on the ground of her place of residence (uncontrolled territory as compared to controlled territory) and her status as an IDP. She referred, inter alia, to Article 24 of the Constitution of Ukraine, the Law on the Prevention of and the Fight against Discrimination in Ukraine as well as to Article 14 of the Convention and Article 1 of Protocol No. 1 to the Convention. She also relied on the Court’s case law, in particular the judgment in the case of Pichkur v. Ukraine (cited above).

26.  During the proceedings before the Donetsk Circuit Administrative Court the applicant requested the court to indicate the judicial supervision of the enforcement of the judgment.

27.  On 20 November 2018 the Donetsk Circuit Administrative Court granted the applicant’s claims and ordered the payment of the pension due to her since July 2016. It also allowed her claim concerning the payment to her account opened with a private bank. The court rejected the applicant’s claim to indicate the judicial supervision of the enforcement of the judgment, reasoning that pursuant to national law a court in the operative part of the judgment could indicate the judicial supervision of the enforcement of such a judgment, but it was its right and not an obligation. The court ordered the immediate enforcement of the judgment in the form of the payment for one month.

28.  On 21 December 2018 the judgment became final and on 7 February 2019 the enforcement proceedings were opened.

29.  On 18 February 2019 the Bakhmut-Lymansk Department of the Pension Fund sent a letter to the applicant informing her that it had resumed the payment of her pension and calculated the debt due to her since July 2016. However, in view of the absence of a bank account with Oshchadbank, the payment of her pension had been suspended since 1 February 2019. The debtor therefore considered that it had enforced the judgment within the limits of its competence.

30.  According to the applicant, the judgment of 20 November 2018 remains unenforced.Application no. 63361/19

31.  In March 2016 the payment of a pension due to the applicant was suspended, apparently because the applicant’s factual place of residence was not confirmed (as required by the legislation for the IDPs).

32.  The applicant applied to the courts, challenging the actions of the Kostyantyniv-Druzhkivka Joint Department of the Pension Fund and she claimed that the pension due to her should be paid, and that this payment should be made to her existing bank account.

33.  On 17 April 2019 the Donetsk Circuit Administrative Court ordered to pay the applicant her pension due since March 2016 and awarded her compensation for the loss of part of her income due to the unlawful suspension of her pension.

34.  On 1 July 2019 this judgment became final and on 30 July and 9 August 2019 the enforcement proceedings were opened (separately for the different awards).

35.  On 27 July 2019 the Kostyantyniv-Druzhkivka Joint Department of the Pension Fund sent a letter to the applicant informing her that the payment of her pension according to the judgment of 17 April 2019 could not be made because she had no account with Oshchadbank. It further noted that the payment of the debt accumulated during the period between March 2016 and July 2018 would be paid according to Resolution no. 335 of 25 April 2018 of the Cabinet of Ministers of Ukraine (see paragraph 40 below).

36.  According to the applicant, the judgment of 17 April 2019 remains unenforced.Relevant domestic lawLaw of 2015 on Ensuring the Rights and Freedoms of Internally Displaced Persons

37.  The relevant provisions of the law in force at the material time read as follows:

Article 1. Definition of [an] Internally Displaced Person

“1.  An internally displaced person is a citizen of Ukraine who permanently resides in Ukraine, [and] who was forced or who voluntarily left his or her place of residence as a result of, or in order to avoid, the negative consequences of the armed conflict, temporary occupation, widespread manifestations of violence, violations of human rights and emergency situations of natural or anthropogenic origin.”

Article 7. Ensuring the Exercise of the Rights of the Registered Internally Displaced Persons for Employment, Pensions, Compulsory State Social Insurance, Social Services and Education

“1.  The registered internally displaced persons shall enjoy the rights to employment, pension, compulsory state social insurance in case of unemployment, in connection with temporary disability, from industrial accidents and occupational diseases that caused disability and the right to receive social services in accordance with the legislation of Ukraine. ...

2.  Ukraine takes all possible measures aimed at resolving issues related to the social protection of the internally displaced persons, including resuming of social benefits payments [due to them].

3.  Elderly citizens, disabled people, disabled children and any other persons in difficulty who are registered as internally displaced persons are entitled to receive social benefits in accordance with the law currently in force at the place of registration of their actual place of residence. ...”

Article 14. Prohibition of discrimination

“1.  Internally displaced persons shall enjoy the same rights and freedoms in accordance with the Constitution, laws and international treaties of Ukraine as other citizens of Ukraine resident in Ukraine. They shall not be discriminated against in the exercise of any rights and freedoms on the ground that they are internally displaced persons. ...”Law of 2013 on the Prevention of and the Fight against Discrimination in Ukraine

38.  Article 6 of the law reads as follows:

Article 6. Prohibition of discrimination

“1.  According to the Constitution of Ukraine, generally recognized principles and norms of the international law and the international treaties of Ukraine, all persons, regardless of their specific characteristics, have equal rights and freedoms, as well as equal opportunities for their exercise.

2.  Any forms of discrimination on the part of the State authorities, the authorities of the Autonomous Republic of Crimea, local self-government authorities, their officials, legal entities of public and private law, as well as natural persons specified in Article 5 of this Law shall be prohibited.

3.  As discrimination shall not be considered the actions that do not restrict the rights and freedoms of others and do not impede their implementation, as well as those that do not give undue advantage to persons and/or groups of persons on certain grounds, to which affirmative action applies, namely:

- special protection by the State of certain categories of persons in need of such protection;

- implementation of measures aimed at preserving the identity of separate groups of persons, if such measures are necessary;

- granting privileges and compensations to certain categories of persons in cases provided by law;

- imposing State social guarantees for certain categories of citizens;

- special requirements provided by the law as to the exercise of certain rights.”Resolution of the Cabinet of Ministers of Ukraine no. 637 of 5 November 2014 on welfare payments to persons displaced from the temporarily occupied territory of Ukraine and the anti-terrorist operation area and relevant amendments to it

39.  Relevant provisions of Section 1 of Resolution no. 637 as worded at the time of adoption in 2014 provided that the social benefits due to the IDPs were to be paid at the place of such persons’ registration, which should be confirmed by a certificate. After the amendments introduced by Resolutions no. 167 and 365 it was envisaged that from 1 July 2016 onward all of the payments should be made solely through the accounts and the network of offices and devices of Oshchadbank. The home delivery of payments via the Ukrainian post was also made possible under certain conditions. In order to identify the recipients of social benefits who are internally displaced persons, and to ensure the payment of these benefits to them, payment cards were to be issued. For pension recipients, those cards were also to be pension certificates. It was provided that the IDPs had to undergo physical identification in the Oshchadbank offices every six months on the first two occasions, and every twelve months subsequently. In case of failure to undergo this identification the bank should suspend outgoing transactions from the current account and inform the respective social security department that issued the certificate of registration of the internally displaced person, and the Ministry of Finance.

Resolution no. 389 amended Section 1 of Resolution no. 637 in order to provide that while all of the payments were still to be made via Oshchadbank, there was also a possibility of receiving cash and carrying out non-cash transactions through the network of offices and devices of any bank, but only in the territory where the State authorities exercise their powers.Resolution of the Cabinet of Ministers of Ukraine no. 335 of 25 April 2018 on Amendments to Resolution of the Cabinet of Ministers of Ukraine no. 365 of 8 June 2016

40.  This Resolution amended Section 15 of Resolution no. 365 in order to provide that the amounts of the social benefits due to the internally displaced persons for earlier periods that have not been paid to them shall be paid according to the special conditions to be set out by the Cabinet of Ministers.

COMPLAINTS

The applicant, Ms Shylina, in application no. 2412/19 complained under Article 1 of Protocol No. 1 to the Convention in conjunction with Article 14 on account of the discriminatory nature of the respective legislative provisions limiting the IDPs’ rights to choose a bank through which to receive social benefits as compared to other persons without IDP status receiving similar payments, and that this created an excessive burden for her.

The applicants in applications nos. 18183/19, 20103/19 and 63361/19 complained under Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention on account of the non-enforcement of the court judgments adopted in their favour. Invoking Article 14 the applicants also complained on account of the discriminatory nature of the respective legislative provisions limiting the IDPs’ rights to choose a bank through which to receive social benefits as compared to other persons receiving them.

QUESTIONS TO THE PARTIES REGARDING ALL APPLICATIONS

1.  Did the interference with the applicants’ right to the peaceful enjoyment of possessions comply with the requirements of Article 1 of Protocol No. 1? In particular:

-  what were the reasons for and the aim of the introduction of the impugned amendments of March and June 2016 requiring the internally displaced persons (“IDPs”) to open accounts in a designated bank in order to receive their social benefits, in particular in light of the further amendments of September 2017?

-  did the above requirement constitute an excessive burden on the applicants?

2.  In view of the fact that social benefits due to persons who are not IDPs can be paid into the bank account of their choice, does the requirement for the IDPs to open accounts in a designated bank in order to receive their social benefits constitute a discrimination in the exercise of the applicants’ rights guaranteed by Article 14 of the Convention taken together with Article 1 of Protocol No. 1?

QUESTION TO THE PARTIES

REGARDING APPLICATIONS NOS. 18183/19, 20103/19 AND 63361/19

Has there been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 as regards the non-enforcement of the decisions of the domestic courts adopted in the applicants’ favour? Did the applicants have an effective remedy in respect of their non‑enforcement complaints as required by Article 13?

APPENDIX

No.

Application no.

Case name

Lodged on

Applicant

Date of Birth

Place of Residence

Nationality

Represented by

1

2412/19

Shylina v. Ukraine

20/12/2018

Elvira Denysivna SHYLINA

11/01/1973

Rivne

Ukrainian

2

18183/19

Petina v. Ukraine

20/03/2019

Rayisa Mykhaylivna PETINA

11/08/1942

Velyke Orikhove

Ukrainian

Vadym Mykhaylovych MAKAROV

3

20103/19

Nelina-Yeremyeyeva v. Ukraine

04/04/2019

Nadiya Pavlivna NELINA-YEREMYEYEVA

01/09/1943

Ivanivka

Ukrainian

Vadym Mykhaylovych MAKAROV

4

63361/19

Shevchuk v. Ukraine

27/11/2019

Tetyana Grygorivna SHEVCHUK

13/08/1947

Svobodne

Ukrainian

 

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