Published on 14 June 2021

FIFTH SECTION

Application no. 46352/19 Yaroslav Olegovych VOLOSHCHUK against Ukraine lodged on 30 August 2019 communicated on 27 May 2021

SUBJECT MATTER OF THE CASE

The applicant (born in 1981) suffers from a minor motor impairment to his upper left limb as a result of a trauma sustained at birth. He has a university diploma in software engineering.

In October 2015 the newly created cyber police announced competition for posts of special agents and inspectors. The requirements for special agents differed from those for inspectors. Candidates applying for special agents ’ posts were required to have a higher education, preferably in the technical domain. There were no requirements related to their physical condition. As regards candidates for inspectors ’ posts, they also had to have a university diploma, but rather in the legal domain. Furthermore, the call for competition stated that those applying for inspectors ’ posts were expected to be in a good physical condition. The minimum salaries announced were 25,000 Ukrainian hryvnias (UAH) for special agents and UAH 6,000 for inspectors.

The applicant applied for the post of special agent. He passed all the work-related tests and a medical examination. In March 2016 he was admitted to the post of an inspector rather than a special agent, given that the latter post had apparently not yet been created. His salary was fixed at UAH 2,500. According to the applicant, he was not familiarised with the order on his appointment and its terms.

Before starting his work, the applicant was supposed to undergo a three ‑ month training, which included tactics training comprising combat drills. Due to his state of health, the applicant failed the latter and in June 2016 was dismissed on that ground.

The applicant brought administrative proceedings against the Cyber Police Department seeking his reinstatement and recovery of the salary at the amount announced in the call for competition for the special agent post. He claimed, in particular, that the post of a special agent, for which he had applied and had passed all the related tests and exams, did not presuppose any requirement of physical fitness, that the authorities had employed him in full awareness of his state of health and that his subsequent dismissal as being “unfit for work” had been arbitrary. The courts (the Odesa Circuit Administrative Court on 5 June 2018, the Fifth Administrative Court of Appeal on 8 November 2018 and the Cassation Administrative Court within the Supreme Court on 17 December 2018) found against the applicant. They held , in particular, that all those joining the police were required to undergo special training approved by the Ministry of the Interior.

The applicant complains that his dismissal was unlawful and arbitrary and that it amounted to his discrimination in breach of Article 1 of Protocol No. 12. He also complains under Article 1 of Protocol No. 1 that his salary was lower than both the announced minimum and his colleagues ’ salary at the same post.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicant ’ s right to respect for his private life within the meaning of Article 8 § 1 of the Convention? If so, did that interference comply with Article 8 § 2?

2. Has there been a breach of the applicant ’ s rights under Article 1 of Protocol No. 1?

3. Has the applicant suffered discrimination in the enjoyment of his rights under Article 8 of the Convention and Article 1 of Protocol No. 1, in breach of Article 14 of the Convention, or of a “right set forth by law”, in breach of Article 1 of Protocol No. 12? In particular, has the applicant been subjected to a difference in treatment? If so, did that difference in treatment pursue a legitimate aim and did it have a reasonable justification?