Communicated on 5 July 2019

FIFTH SECTION

Application no. 30850/11 Mykola Mykolayovych SHKIRYA against Ukraine lodged on 11 March 2011

STATEMENT OF FACTS

The applicant, Mr Mykola Mykolayovych Shkirya , is a Ukrainian national, who was born in 1973 and lives in Kremenchuk .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 20 November 2008 the applicant lodged an administrative claim with the Poltava Circuit Administrative Court against his employer, the Security Service of Ukraine, seeking payment of social benefits connected to his military service and damages for pecuniary losses. In particular, the applicant claimed compensation for not having been provided with rations ( продовольчий пайок ) or kit ( речове майно ) for 2007-08; payment in full for financial aid to resolve household and social issues ( матеріальна допомога на вирішення соціально-побутових питань ) for 2008; a 50% reimbursement of his expenses for service charges ( витрати з оплати житлово-комунальних послуг ) for the period 2006-08; and a reimbursement of the costs of transportation to and from his holiday destination ( вартість проїзду у відпустку ) for him and his family in 2007.

On 6 February 2009 the applicant lodged additional written submissions with the Poltava Circuit Administrative Court containing, among other things, copies of his expense claims as submitted to the Security Service Accounting Department and their responses, as substantiation of his claim for reimbursement of 50% of his expenses for service charges in 2006-08.

On 16 February 2009 the applicant supplemented his claim, making additional monetary requests. He asked the Poltava Circuit Administrative Court to order that the Security Service pay him an amount corresponding to his salary for the delay in payment of compensation for his kit, and to reimburse him 50% of his expenses for his service charges for November 2008.

On an unspecified date the applicant applied to the Poltava Circuit Administrative Court, seeking that it stay part of the proceedings and request the Supreme Court to file a constitutional appeal with the Constitutional Court of Ukraine concerning the question of the compliance of the provisions applied by the Security Service in relation to the payment of some of his benefits with the Constitution of Ukraine (that is, the question of their constitutionality).

On 13 July 2009 the Poltava Circuit Administrative Court rejected the above request, finding no grounds for granting it.

On 17 November 2009 the Poltava Circuit Administrative Court rejected the applicant ’ s entire claim of 20 November 2008 as unsubstantiated. In relation to the claim for compensation for the lack of provision of rations and kit, the court referred to legislative changes of 2000 and 2007, which had been introduced to the Law on social and legal protection of military servants and their families, suspending the provision of rations and the payment of compensation for the claimed period. The court also established that in 2008 the applicant had in fact received compensation for kit that had not been provided. In relation to the claim for financial aid to resolve household and social issues, the court found that in 2008 the applicant had in fact received the amount provided for in the Security Service Order of 6 June 2008. In relation to the claim for the reimbursement of service charges, the court found that the applicant had failed to follow the prescribed procedure, and in particular he had failed to submit expense claims to the Accounting Department in order to obtain a 50% reimbursement. In relation to the costs of transportation to and from his place of vacation, the court acknowledged that the applicant had a right to receive such compensation, but that the Ministry of Finance, when drafting the Budget Act of 2007, did not provide for such types of expenditure on the part of the Security Service and therefore such payments were not possible for such costs incurred in that year.

The applicant appealed to the Kharkiv Administrative Court of Appeal. In his notice of appeal he submitted that contrary to the findings of the first-instance court, he had filed expense claims with the Accounting Department for the reimbursement of 50% of his expenses for service charges and he attached the copies of those documents. He also contested the first-instance court ’ s reasoning that the reimbursement of his expenses for transportation to and from his place of vacation was not possible due to a lack of funds, arguing that the State could not rely on a lack of money as a ground for not honouring its obligations. The applicant also complained that the first ‑ instance court had failed to consider his additional claim of 16 February 2009.

On 18 March 2010 the Kharkiv Administrative Court of Appeal opened the appeal proceedings.

On an unspecified date the Security Service of Ukraine, referring to the Jurisdiction of Courts to Examine Cases Related to Social Payments (Amendments) Act of 18 February 2010 ( Закону України Про внесення змін до деяких законодавчих актів України щодо підвідомчості справ , пов ’ язаних із соціальними виплатами ), filed a request with the Kharkiv Administrative Court of Appeal, seeking to divide the administrative case and transfer the claims relating to rations, kit, and service charges, as well as transportation to and from the applicant ’ s holiday destination, to the Kyiv Court of Appeal to be considered under the rules of the Code of Civil Procedure.

On 2 July 2010 the Kharkiv Administrative Court of Appeal allowed the above-mentioned request in part, transferred the majority of the case to the Poltava Regional Court of Appeal and continued the administrative proceedings in so far as they related to the claim for payment of financial aid for household and social issues. That jurisdictional decision was final and was not open to appeal.

On 2 July 2010 the Kharkiv Administrative Court of Appeal upheld the decision of the Poltava Circuit Administrative Court of 17 November 2009 confirming that the applicant had received financial aid in accordance with the legislation in force.

On 9 September 2010 the Constitutional Court declared the legal provisions on the basis of which the applicant ’ s case was transferred from an administrative court to a court of general jurisdiction to be unconstitutional.

On 14 September 2010 the Poltava Regional Court of Appeal upheld the decision of the Poltava Circuit Administrative Court of 17 November 2009. The appellate court confirmed the finding of the first-instance court that the applicant had not submitted an expense claim to the Accounting Service and thus could not claim a violation of his right to reimbursement of 50% of his expenses for service charges. The court also confirmed that the Budget Act 2007 did not provide for any expenditure for the reimbursement of travel expenses to and from holiday destinations. The appellate court did not comment on the applicant ’ s additional claim of 16 February 2009. That decision was final and was not open to appeal.

On 13 December 2013 the Higher Administrative Court of Ukraine upheld the decision of the Kharkiv Administrative Court of Appeal of 2 July 2010. The court noted that the payment of financial aid had been made in accordance with the Instruction on financial cover and payments of a compensatory character to the military servicemen of the Security Service approved by an Order of the Head of the Security Service on 23 January 2008, which was in line with the applicable legislation.

B. Relevant domestic law and practice

The relevant provisions of the Civil Procedure Code of 2004, as worded at the material time, read as follows:

Article 213: Lawfulness and reasoning of judicial decisions

“1. A court decision must be lawful and reasoned.

2. A decision is lawful if the court, having complied with all the requirements of the civil procedure, has adjudicated the case in line with the law.

3. A decision is reasoned if it is based on a complete and thorough assessment of the circumstances which the parties referred to in support of their claims or objections and which were corroborated by the evidence examined in the court hearings.”

The relevant provisions of the Jurisdiction of Courts to Examine Cases Related to Social Payments (Amendments) Act of 18 February 2010 no. 1691-VI read as follows:

II. Final and transitional provisions

“...

2. After this Act enters into force, the administrative courts will continue with the consideration of cases if proceedings have already been opened under paragraph 3 of section 1 of Article 18 of the Code of Administrative Justice. Administrative claims, notices of appeal or cassation appeal, or submissions that have been lodged [in accordance with] paragraph 3 of section 1 of Article 18 of the Code of Administrative Justice with the relevant administrative courts in administrative cases, prior to the present Law entering into force, and [in respect of cases] in which proceedings have not yet been opened, shall be transferred by those courts to the relevant courts, which will consider [those cases] under the rules of civil justice [namely under a general jurisdiction].”

The Constitutional Court of Ukraine in its decision of 9 September 2010 in a case concerning the compliance of the provisions of the Jurisdiction of Courts to Examine Cases Related to Social Payments (Amendments) Act with the Constitution of Ukraine, held, inter alia , the following:

Decided:

“1. To declare the following provisions of the Jurisdiction of Courts to Examine Cases Related to Social Payments (Amendments) Act of 18 February 2010 no. 1691-VI to be unconstitutional: ...

- paragraph 2 of section II ...”

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention that the national courts disregarded his main argument in support of his claim for the reimbursement of his expenses for service charges and that his right to have his case considered by a tribunal established by law was breached.

He also complains under Article 6 § 1 and Article 13 of the Convention of the failure of the domestic courts to examine his additional claim of 16 February 2009, alleging that they deprived him of the right of access to court.

He further complains under Article 1 of Protocol No. 1 to the Convention that the State authorities deprived him of his possessions when dismissing his claims for reimbursement of his expenses for service charges and his travel expenses to and from a holiday destination.

QUESTIONS TO THE PARTIES

1. Has there been a violation of the applicant ’ s right of access to a court under Article 6 § 1 of the Convention in respect of the alleged failure of the domestic courts to examine his additional claim of 16 February 2009?

2. Has there been a violation of the applicant ’ s right to a fair trial under Article 6 § 1 of the Convention? In particular, did the national courts duly take account of the documents which the applicant submitted in support of his claim for compensation for service charges, namely, his expense claims to the Security Service Accounting Department and the responses?

3. Has there been a violation of the applicant ’ s right under Article 6 § 1 to a hearing by a tribunal established by law? In particular:

(a) Was the transfer of part of the applicant ’ s administrative case from the Kharkiv Administrative Court of Appeal to the Poltava Regional Court of Appeal in accordance with the law applicable at the time, given that the decision to open appeal proceedings preceded the decision to transfer the majority of the case?

(b) Given that on 9 September 2010 the Constitutional Court of Ukraine declared the provisions of the Jurisdiction of Courts Act of 18 February 2010 providing for civil courts to have jurisdiction over cases relating to social payments to be unconstitutional, was the Poltava Regional Court of Appeal, when dealing with the applicant ’ s case, a “tribunal established by law”?

4. Did the applicant ’ s entitlement to a reimbursement of 50% of his expenses for service charges for 2006-2008 and to a reimbursement of travel expenses to and from his holiday destination in 2007 amount to a “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention?

5. If so, has there been an interference with the applicant ’ s peaceful enjoyment of his possessions, within the meaning of Article 1 of Protocol No. 1? Was that interference in accordance with the law, justified in the general interest and duly proportionate in ter ms of Article 1 of Protocol No. 1?