FIFTH SECTION

DECISION

Application no. 23606/13 Vasyl Ivanovych POTAPENKO against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 23 September 2021 as a Committee composed of:

Lətif Hüseynov, President, Lado Chanturia, Mattias Guyomar, judges, and Martina Keller, Deputy Section Registrar,

Having regard to the above application lodged on 29 March 2013,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Vasyl Ivanovych Potapenko, is a Ukrainian national who was born in 1951 and lives in Pogreby. He was represented before the Court by Mr K.M. Buzadzhy , who lives in Kyiv.

2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Ivan Lishchyna, of the Ministry of Justice.

3. On 27 April 2011 the applicant instituted proceedings in the Brovary Court against the State Pension Fund seeking the recalculation of his old ‑ age pension and the supplementary pension (approximately 7 euros per month) due to him as a victim of the Chernobyl disaster (hereinafter “the supplementary pension”).

4. On 29 June 2011 the Brovary Court, having examined the applicant’s case in written proceedings, allowed the applicant’s claims in full.

5. The State Pension Fund appealed. In the appeal the State Pension Fund provided a lengthy explanation as to why the decision of 29 June 2011 was incorrect in so far as it concerned the applicant’s old-age pension. No such lengthy explanation was provided as to the part of the decision which concerned the supplementary pension. However, at the end of the appeal the State Pension Fund, referring to the law regulating old-age pensions and the governmental decree regulating the payment of supplementary pensions to Chernobyl victims, requested that the court of appeal quash the decision of 29 June 2011 and reject the applicant’s claims in full.

6. On 27 September 2012 the Kyiv Administrative Court of Appeal quashed the decision of 29 June 2011 in full and rejected the applicant’s claims. Its decision was not subject to appeal and became final. The Kyiv Administrative Court of Appeal examined the applicant’s case in written proceedings without holding an oral hearing.

7. Article 195 § 1 of the Code of Administrative Procedure, as in force at the material time, provided that a court of appeal had the right to review decisions of first-instance courts within the scope of the appeal. The court of appeal could, however, go beyond the scope of the appeal if it established that violations committed by the first-instance court had led to an incorrect resolution of the case.

SCOPE OF THE CASE

8. The Court observes that, after notice of the application was given to the respondent Government and in response to the Government’s objections as to the admissibility and merits of the application, the applicant submitted further complaints alleging that his rights under Article 6 § 1 of the Convention had been violated because his case had been examined in written proceedings with no public or oral hearing. He also complained that he had not been given an opportunity to comment on the appeal lodged by the Pension Fund.

9. In the Court’s view, the new complaints do not constitute an elaboration on the applicant’s original complaint under Article 6 § 1. The Court considers, therefore, that it is not appropriate now to take these matters up separately in the context of the present application (see, inter alia , Piryanik v. Ukraine , no. 75788/01 , § 20, 19 April 2005, and Lyashko v. Ukraine , no. 21040/02 , § 29, 10 August 2006).

COMPLAINT

10. The applicant complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 that the court of appeal had not been competent to quash the lower court’s decision in his case in so far as it concerned his supplementary pension because the State Pension Fund had not asked it to do so in its appeal against the decision of 29 June 2011.

THE LAW

11. The Government noted that under Article 195 § 1 of the Code of Administrative Procedure, a court of appeal had the right to review decisions of first-instance courts within the scope of the appeal. A court of appeal could, however, go beyond the scope of the appeal if it established that violations committed by the first-instance court had led to an incorrect resolution of the case. The Government submitted that the appeal lodged by the State Pension Fund, in particular, concerned the applicant’s supplementary pension because it mentioned the governmental decree regulating these matters. The Government also noted that the amount of the applicant’s supplementary pension had constituted approximately 7 euros, which meant that the applicant could not have suffered a significant disadvantage as a result of the courts’ decision not to allow his claims in that respect. The Government submitted that the applicant had abused his right of application by lodging an application with the Court concerning such a small sum of money.

12. The applicant disagreed and maintained his complaint.

13. The Court notes that it follows from the text of Article 195 § 1 of the Code of Administrative Procedure (see paragraph 7 above) that the court of appeal was competent to review the lower court’s decision in full of its own motion (compare and contrast with, for example, Sokurenko and Strygun v. Ukraine , nos. 29458/04 and 29465/04, §§ 26-29, 20 July 2006). This is sufficient for the Court to find that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

14. In the light of its conclusion above, the Court does not need to rule on the other objections raised by the Government.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 14 October 2021.

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Martina Keller Lətif Hüseynov Deputy Registrar President