Communicated on 4 June 2020 Published on 22 June 2020

FIFTH SECTION

Application no. 32522/19 Tetyana Vasylivna NECHYPORENKO against Ukraine and 2 other applications

STATEMENR OF FACTS

The applicants are Ukrainian nationals.

The facts of the cases, as submitted by the applicants, may be summarised as follows.

1. Application no . 32522/19 was lodged on 8 June 2019 by Tetyana Vasylivna NECHYPORENKO (the first applicant) who was born on 3 November 1969 and lives in Velyka Yablunivka , Cherkassy region.

2. Application no . 33081/19 was lodged on 14 June 2019 by Anton Oleksandrovych GOLKA (the second applicant) who was born on 7 March 1988 and lives in Smila , Cherkassy region.

3. Application no . 33100/19 was lodged on 14 June 2019 by Oleksandr Grygorovych DAVYMOKA (the third applicant) who was born on 11 October 1987 and lives in Cherkassy.

The applicants joined the police force in 2002, 2014 and 2009 respectively. In 2015 all three applicants started working in the Main Department of National Police in Cherkassy region (hereinafter – the Police Department). During the last years of their service they were often ill and they decided to retire for health considerations.

Upon the applicants ’ requests, the Police Department issued orders on their retirement of their own accord on 22 September 2017 in respect of the first applicant, on 30 March 2018 in respect of the second applicant, and on 25 July 2017 in respect of the third applicant.

The Military Medical Commission of the Medical Service of the Police Department issued the applicants with certificates for 14 July 2017 (the third applicant), and for 19 March 2018 (the other two applicants) confirming that their illnesses were linked to their service in the police force.

Those findings were also confirmed by the Cherkassy Social Medical Expert Commissions Nos. 1 and 2.

On 8 August 2017 the Cherkassy Social Medical Expert Commission No. 2 established that the third applicant had a second degree disability with a loss of 80% of earning capacity caused by work-related illnesses.

On 12 April 2018 the same Commission reached similar conclusions in respect of the first applicant - a second degree disability with a loss of 80% of earning capacity caused by work-related illnesses.

On 20 April 2018 the Cherkassy Social Medical Expert Commission No. 1 concluded that the second applicant also had a second degree disability with a loss of 80% of earning capacity caused by work-related illnesses.

Each of the applicants addressed the Police Department with requests to be paid a lump sum provided by the Decree of the Ministry of Interior of Ukraine on approval of the procedure and conditions for payment of a lump sum in case of death or disability of a police officer.

By order of the Police Department of 3 November 2017 the third applicant was granted the requested lump sum in the amount of 144,000 hryvnas (UAH), the equivalent of 4,591.60 euros (EUR).

This order was cancelled on 20 March 2018 as granted unreasonably. The Police Department noted that under Article 97 of the National Police Act only those officers who had retired on health grounds were entitled to the lump sum in question. As the third applicant had retired of his own accord, he was not entitled to the lump sum in question. The third applicant was informed about the decision by letter of 16 April 2018.

By letters of 5 June 2018, the Police Department informed the first and second applicants that their respective requests were refused given that under Article 97 of the National Police Act only those officers who had retired on health grounds were entitled to the lump sum in question.

The applicants challenged the Police Department ’ s refusals before the Cherkassy Circuit Administrative Court (hereinafter - the Cherkassy Court).

(a) The first applicant

On 4 July 2018, the first applicant lodged an administrative claim with the Cherkassy Court in which she complained about the discriminatory treatment of the retired police officers which violated Articles 24 and 46 of the Constitution and Article 14 of the Conve ntion and Article 1 of Protocol No. 1.

On 9 August 2018 the Cherkassy Court refused the first applicant ’ s administrative claim. The court found that in order to receive the disputed lump sum a police officer was supposed to follow a certain order of actions and the disability should be the reason for the retirement. The applicant, however, retired of her own record and received a conclusion on her disability after retirement – more than six months afterwards.

On 8 November 2018 and 22 January 2019 the Sixth Administrative Court of Appeal (hereinafter - the Court of Appeal) and the Supreme Court upheld the decision of the Cherkassy Court of 8 August 2018.

(b) The second applicant

On 4 July 2018 the second applicant lodged an administrative claim with the Cherkassy Court in terms similar to the first applicant ’ s claim.

On 3 September 2018 the Cherkassy Court refused the second applicant ’ s administrative claim. The court noted that the applicant had retired of his own accord and that his claim was unsubstantiated. On 19 December 2018 the Sixth Administrative Court of Appeal upheld the decision of the first instance court. On 30 January 2019 the Supreme Court rejected the applicant ’ s appeal in cassation on the ground that applicant ’ s case was not complicated and thus was not subject to appeal in cassation.

(c) The third applicant

On 25 May 2018 the third applicant lodged an administrative claim, which he changed and complemented on 3 August 2018. He complained that the order granting him the lump sum in question had been cancelled. He submitted arguments similar to those of the other two applicants.

On 11 October 2018 the Cherkassy Court refused the third applicant ’ s administrative claim. The court rejected his claim as unsubstantiated since he had retired of his own accord and his work-related disability had been established only later. On 17 December 2018 the Sixth Administrative Court of Appeal appealed the decision of the Cherkassy Court of 11 October 2018. On 28 January 2019 the Supreme Court rejected the applicant ’ s appeal in cassation on the ground that the applicant ’ s case was not complicated and thus was not subject to appeal in cassation.

The first applicant took no further actions, but the second and third applicant appealed to the Constitutional Court claiming that the provisions of the National Police Act applied by the domestic courts were discriminatory, and therefore contrary to the constitutional provision on non-discrimination.

On 10 April 2019 the Constitutional Court rejected the complaint lodged by the second applicant as inadmissible on the ground that it was not properly substantiated.

On 24 April 2019 the Constitutional Court granted leave to appeal to the third applicant and started the constitutional proceedings on the applicant ’ s complaint that the provision of Article 97 of the Law “On National Police” were contrary to provisions of Constitution on equality and the right to social welfare. The proceedings are still pending.

Article 1. Status of the Constitutional Court of Ukraine

“1. The Constitutional Court of Ukraine (hereinafter – the Constitutional Court or the Court) is the body of constitutional jurisdiction, which ... decides on conformity of laws of Ukraine to the Constitution of Ukraine ...”

Article 7. Powers of the Court

“1. The powers of the Court shall include:

...

9) deciding on conformity to the Constitution of Ukraine (constitutionality) of laws of Ukraine (specific provisions thereof), upon a constitutional complaint of an individual who considers that the law of Ukraine, which had been applied in the final court judgment in his or her case contradicts the Constitution of Ukraine.”

Article 50. Forms of Applications to the Constitutional Court of Ukraine

“1. Applications to the Constitutional Court of Ukraine shall be made in the form of a constitutional petition, constitutional appeal, or constitutional complaint.”

Article 55. Constitutional Complaint

“ A constitutional complaint shall be a written application submitted to the Court regarding review for conformity to the Constitution of Ukraine (constitutionality) of a law of Ukraine (specific provisions thereof) which was applied in the final court judgment in the case of the subject of the right to constitutional complaint.

The constitutional complaint shall indicate:

1) the surname, name, patronymic (if any) of a citizen of Ukraine, foreigner or a stateless person, his or her residential address (place of stay of a foreigner or a stateless person), or full name and registered address of a legal entity, as well as the number of means of communications, e-mail address, where available;

2) information about an authorised person acting on behalf of the subject of the right to constitutional complaint;

3) a summary of the final court judgment in which relevant provisions of the law of Ukraine were applied;

4) a report of proceedings of the relevant case in courts;

5) specific provisions of the law of Ukraine to be reviewed for conformity to the Constitution of Ukraine, and particular provisions of the Constitution of Ukraine against which such law of Ukraine is to be reviewed for conformity;

6) a substantiation of the alleged unconstitutionality of a law of Ukraine (specific provisions thereof), specifying those human rights safeguarded by the Constitution of Ukraine, which in the opinion of the subject of the right to constitutional complaint, have been violated by the application of such law;

7) information regarding documents and materials referred to by the subject of the right to constitutional complaint, with copies of such documents and materials attached;

8) a list of the attached materials and documents.

A copy of the final court judgment in the case of a subject of the right to constitutional complaint shall be duly certified by the adjudicating court.”

Article 56. Subject of the Right to Constitutional Complaint

“1. A subject of the right to constitutional complaint shall be a person who considers that the law of Ukraine applied in the final court judgment in his or her case (specific provisions thereof) contradicts the Constitution of Ukraine.

2. Public legal entities shall not be subjects of the right to constitutional complaint.

A constitutional complaint shall be signed by an individual in person.

Where a subject of the right to constitutional complaint is a legally capable person unable to personally sign the constitutional complaint due to his or her health state or physical incapacity, it shall be signed by a person authorised in a manner prescribed by the law acting on his or her behalf.

3. A constitutional complaint by a legal person shall be signed by a duly authorised person whose powers shall be evidenced by constituent documents of such legal entity and by an act appointing (electing) a duly authorised person to such position.”

Article 57. Preliminary Review of Applications to the Court

“... 2. The Secretariat shall conduct a preliminary review of applications to the Court.

3. Where the form of a constitutional complaint is non-compliant with this Law, the Head of the Secretariat shall return it to the subject of the right to constitutional complaint.

Any return of a constitutional complaint shall not preclude repeated application to the Court in compliance with this Law.”

Article 62. Grounds for Rejection to Initiate Constitutional Proceedings in the Case

“1. The grounds for rejection to initiate constitutional proceedings in the case shall be as follows:

1) application submitted to the Court by an inappropriate subject;

2) issues raised in the constitutional petition, constitutional appeal, or the constitutional complaint falling beyond the Court ’ s competence;

3) non-compliance of a constitutional petition or a constitutional appeal with the requirements set forth by this Law;

4) inadmissibility of a constitutional complaint;

5) invalidation of the act (specific provisions thereof), conformity of which to the Constitution of Ukraine has been raised, except as provided by paragraph 2 Article 8 of this Law;

6) existence of a decision or an opinion by the Court in respect of the same subject matter of a constitutional petition, constitutional appeal, constitutional complaint, as well as of rulings by the Court to reject constitutional proceedings in the case or to terminate constitutional proceedings in the case, where adopted pursuant to sub-paragraphs 1, 2 of this paragraph.”

Article 77. Admissibility of a Constitutional Complaint

“1. A constitutional complaint shall be deemed as admissible subject to its compliance with Articles 55 and 56 of this Law and where:

1) all domestic legal remedies have been exhausted (subject to the availability of a legally valid judicial judgment delivered on appeal, or, where the law provides for cassation appeal, – of a judicial judgment delivered on cassation);

2) not more than three months have passed from the effective date of a final judicial judgment that applies the law of Ukraine (specific provisions thereof).

2. As an exception, a constitutional complaint may be accepted beyond the requirements established in sub-paragraph 2 paragraph 1 of this Article, where the Court declares its consideration as being necessary on the grounds of public interest.

3. Where a subject of the right to constitutional complaint has missed the date for submitting a constitutional complaint due to the unavailability of a full text of the judicial judgment, he or she shall have the right to petition in his or her constitutional complaint for the renewal of the missed term.

4. The Court shall reject constitutional proceedings by declaring a constitutional complaint inadmissible, where the content or demands of such constitutional complaint are manifestly ill-founded or where the right to submit a complaint has been abused.”

Article 361. Grounds for review of court decisions under newly discovered or exceptional circumstances

“... 5. The grounds for review of court decisions in exceptional circumstances are:

1) unconstitutionality (constitutionality) established by the Constitutional Court of Ukraine of a law, other legal act or their separate provision, applied (not applied) by a court in deciding the case, if the court decision has not yet been enforced...”

Article 363. The procedure and term for filing an application for review of a court decision under newly discovered or exceptional circumstances

“ 1. An application for review of a court decision under newly discovered or exceptional circumstances may be filed:

...

4) on the grounds specified in paragraph 1 of part five of Article 361 of this Code, by the parties to the case within thirty days from the day of the official publication of the relevant decision of the Constitutional Court of Ukraine...”

Article 97

Lump sum allowance in case of death or loss of earning capacity of a police officer

“1. The lump sum allowance in case of death, establishing of loss of earning capacity of a police officer (hereinafter –the lump sum allowance) is a social payment, guaranteed assistance by the State, which is granted and paid to persons entitled to it under this Act, in case of:

...

4) establishing of a disability of a police officer as a result of a disease related to his/her service in the bodies of internal affairs or police within six months of his / her retirement from the police service for the reasons specified in this paragraph;

...

2. The procedure and conditions for payment of the lump sum allowance in case of death or loss of earning capacity of a police officer shall be established by the Ministry of Internal Affairs of Ukraine.”

COMPLAINT

The applicants complain under Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1 about the discriminatory distinction in domestic law as to the entitlement to the lump sum allowance in case of a loss of earning capacity of a police officer. Despite the fact that all three applicants had health problems at the time of retirement and established their loss of earning capacity because of work-related illnesses, they were denied the impugned social benefit only because the health problems were not indicated as a reason for retirement in the respective orders on their retirement issued by the Police Department.

COMMON QUESTIONS

1. Have the applicants been denied a lump sum allowance, provided by Article 97 of the Law “On National Police” in a discriminatory manner contrary to Article 14 of the Convention r ead in conjunction with Article 1 of Protocol No. 1?

In particular, have the applicants been subjected to a difference in treatment in the enjoyment of the above social benefit on the ground of the reason indicated in their respective orders of retirement?

If so, does the above ground fall within the “other status” category within the meaning of Article 14 of the Convention?

If so, did that difference in treatment pursue a legitimate aim; and did it have a reasonable justification?

2. Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?

In particular, was the constitutional complaint an effective remedy within the meaning of this provision in respect of the applicants ’ complaint under Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1?