On October 3, 2020, the European Court of Human Rights ruled in case №33137 / 16 (Lyudmyla Mykolayivna KANDYBA and Others against Ukraine), which was published on November 19 and caused a whirlwind of contradictory information both in the media and among human rights activists.
The case concerned a complaint by 7 applicants from Luhansk alleging a violation of their rights to receive various “social benefits, such as pension or child benefits” in the temporarily occupied territory (hereinafter – TOT), namely the violation by Ukraine of Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1 to Convention (hereinafter – the Applicants).
Circumstances of the case
The case was related to the Resolution of the Cabinet of Ministers of Ukraine (hereinafter – CMU) №595 of 07.11.2014 “Some issues of financing budget institutions, making social payments to the population and providing financial support to certain enterprises and organizations of Donetsk and Luhansk regions” (hereinafter – Resolution №595).
We will remind that according to some provisions of this resolution, it was forbidden to carry out financing of budgetary payments in the territories which were not controlled by authorities of Ukraine. These payments were to be resumed only after the return of these territories under the control of the official authorities.
At the end of 2014, the Applicants filed a lawsuit with the National Court declaring Resolution №595 invalid, declaring the CMU’s inaction to ensure social benefits and pension obligations for residents of the temporarily occupied territories unlawful starting in July 2014. Although the Court does not indicate the case number, it can be concluded that this is a well-known case №826 / 18826/14.
By the decision of the court of first instance of 11.02.2015 the claim was partially satisfied, paragraph 2 of the Resolution №595 was canceled (the rest of the Resolution did not directly affect the rights of the plaintiffs, so the court reasonably rejected the claim in this part). In addition, the court dismissed the remaining claims on the grounds that the CMU was not a proper defendant in the dispute, which was also justified and lawful under national law, as social and pension payments were made by social security territorial bodies of the Pension Fund of Ukraine (hereinafter – PFU), respectively.
The Court of Appeal upheld the decision of the Court of First Instance on 2 April 2015, dismissing the appeals of both the applicants, the defendant and third parties (some ministries and the PFU). On May 22, 2015, the said decision was published in the Official Newspaper of Ukraine as part of the process of appealing against legal acts.
In June, the Supreme Administrative Court of Ukraine (then the Court of Cassation in Administrative Cases) suspended the execution of the contested decisions at the request of the cassators (CMU and the Ministry of Finance), which is common practice in such disputes, but on October 16, 2015 stopped the review of the case and left the decisions of courts of previous instances without changes.
The applicants lodged numerous complaints demanding that the court’s decision be complied with, which, in their view, should have led to the continuation of their social and pension benefits. The European Court of Human Rights lists the addressees of the Applicants’ appeals and their responses, which are as follows: the responsible authorities did not pay social and pension benefits to the Applicants, although the court’s decision to annul paragraph 2 of Resolution №595 came into force.
It should be noted that the repeal of the normative act or its part does not lead to the automatic continuation of payments or other, desirable for the applicants, the behavior of the defendants. However, in the present case the applicants did not bring actions directly against those authorities responsible for making the payments, focusing on proving the obligation of the various authorities to make those payments precisely in pursuance of the judgment in decision 826 / 18826/14.
In addition, 3 out of 7 Applicants filed a lawsuit with the Kyiv District Administrative Court demanding to declare the Cabinet of Ministers of Ukraine decision in the above-mentioned case illegal. In their opinion, the very continuation of their social and pension benefits should have been the result of the execution of the court decision.
This claim was (expectedly) denied by the court of appeal at the end of 2019 and upheld the court’s previous decision (as the Court notes, the decision was not appealed in the court of cassation – paragraph 28 of the Decision).
While reviewing the case, the European Court also drew attention to the case law on the protection of the rights of IDPs and TOT residents to receive pension benefits, citing the case law №227 / 2158/17, which was directly accompanied by lawyers of the Right to Protection Charitable Foundation. The court, which established the right of a TOT resident who had never been an IDP to receive a pension.
The position of the Court
The Court emphasized that the applicants had not applied to the domestic courts with applications for payments continuation. However, the filing of such actions could have led to a “reasonable chance of success” (see paragraph 53 of the judgment). The Court accepted the Government’s argument that the partial annulment of Decree №595 should not have led to an automatic resumption of payments to the Applicants (see paragraph 54 of the Judgment) and required additional measures on the part of the Applicants (appeals to the relevant sides). The applicants did not claim that such appeals would be too burdensome for them (see paragraph 55 of the judgment).
The Court therefore declared the applications of 6 of the 7 applicants inadmissible.
Another of the applicants, according to the Court’s judgment, moved to the controlled territory, received his full payments and lost contact with the Court (accordingly, his complaint was removed from the list of cases).
Thus, the European Court of Human Rights has not stated that Ukraine should not pay social and pension benefits. The decision in the case is not a decision on the merits of the dispute, but the European Court of Human Rights has repeatedly pointed out that before applying to it, applicants must use the available means of defence at the national level. The responsibility for the correct choice and exhaustion of these remedies rests undoubtedly on the applicants and their lawyers, and haste in applying to the European Court of Human Rights is never justified.
The Right to Protection Charitable Foundation protects the rights of citizens not only in national courts but also in the European Court of Human Rights, but filing complaints in Strasbourg without the use of national remedies are rare exceptions, as our successful case law shows that most violations can be remedied in Ukrainian courts.
Of course, the issue of non-enforcement by the state is open and painful, but this does not relieve potential applicants from the obligation to bring actions before national courts before applying to the European Court of Human Rights. Furthermore, in the present case the Court does not put forward the applicants’ arguments that the filing of the relevant actions would be an ineffective remedy, which most likely indicates the absence of such arguments.
We are confident that the European Court of Justice will soon express its position on the right of TOT residents to receive social and pension benefits and the corresponding obligation of the state to create effective and affordable mechanisms for making such benefits. We expect this position to be positive for the applicants. In many respects, the outcome of the case, as we see, depends on the correct choice of both the legal strategy and the lawyers who will implement it.
Author of the article:
Oleh Tarasenko, attorney, senior strategic lawyer of the Right to Protection Charitable Foundation