Communicated on 13 June 2019

FIFTH SECTION

Application no. 33137/16 Lyudmyla Mykolayivna KANDYBA and others against Ukraine lodged on 1 June 2016

STATEMENT OF FACTS

A list of the applicants is set out in the appendix.

A. The circumstances of the case

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

From the beginning of April 2014 armed groups started to seize official buildings in the Donetsk and Luhansk regions and announced the creation of self-proclaimed entities known as the “Donetsk People ’ s Republic” and “Luhansk People ’ s Republic” (the “DPR” and “LPR”). In response, on 14 April 2014 the Government, who consider the armed groups to be terrorist organisations, authorised the use of force against them in the form of an “anti-terrorist operation”. In June 2014 the armed groups started to seize offices of the National Bank of Ukraine and other regional financial institutions in the Donetsk and Luhansk regions.

On 6 August 2014 the National Bank of Ukraine suspended all financial transactions on the territories outside the control of the Government.

Government forces recaptured some territories in the Donetsk and Luhansk regions, but certain parts of the regions have remained outside the Government ’ s control since that time. The part of the Luhansk region not under the Government ’ s control is the city of Luhansk, where the applicants live.

On 7 November 2014 the Cabinet of Ministers of Ukraine adopted Resolution no. 595 “on issues of financing publicly funded institutions, paying social benefits and providing financial support to certain enterprises and organisations in the Donetsk and Luhansk regions”. This Resolution approved an Interim Order “on financing publicly funded institutions, paying social benefits and providing financial support to certain enterprises and organisations in the Donetsk and Luhansk regions” (see relevant domestic law part below).

On 11 November 2014 the above Resolution and the Interim Order came into force and all social benefit payments in Luhansk were suspended. At the same time, Section 8 of the above Interim Order established the procedure for payments of social benefits to persons who moved to the territory controlled by the Government and underwent certain formalities.

On 9 December 2014 the applicants lodged a claim against the Cabinet of Ministers of Ukraine seeking, inter alia , the invalidation of the provisions of Resolution no. 595 of 7 November 2014, including the provisions of the Interim Order approved by this Resolution and renewal of their social benefits payment.

On 11 February 2015 the Kyiv Administrative Court found in part for the applicants. In particular, the court invalidated Section 2 of the Interim Order. The court found that when enacting the above Section 2 of the Interim Order, the CMU acted ultra vires , because only the Parliament of Ukraine had been authorised to diminish the content and scope of existing social rights and freedoms of the applicants. The court further rejected the claim for the renewal of social benefits payments, since the applicants had failed to sue the appropriate defendants, i.e. local pension and social insurance authorities.

On 2 April 2015 the Kyiv Administrative Court of Appeal upheld the above judgment and the latter came into force.

On 16 October 2015 the High Administrative Court of Ukraine upheld the judgments of the lower courts.

The applicants lodged a number of claims before the domestic authorities seeking the enforcement of the above judgment of 11 February 2015.

On 16 November 2015 the Department of the State Bailiffs ’ Service of the Ministry of Justice of Ukraine informed the applicants that the courts ’ judgments could be enforced only under a writ of execution. However, the writ of execution concerning the above judgment of 11 February 2015 had not yet been submitted. It also assured the applicants that, should it be delivered, all measures on the execution of the judgment of 11 February 2015 would be undertaken.

On 30 November 2015 the Ministry of Social Politics of Ukraine informed the applicants that the execution of the above judgment of 11 February 2015 was not within its competence.

On 1 December 2015 and on 20 April 2016 the Pension Fund of Ukraine informed the applicants that the reply concerning the claim for the execution of the judgment of 11 February 2015 had already been provided (the applicants did not provide the Court with the initial replies). Moreover, the Pension Fund of Ukraine noted that the judgment of 11 February 2015 had not imposed any particular obligation on it.

On 1 December 2015 the Ministry of Finance of Ukraine informed the applicants that the reply concerning the claim for execution of the judgment of 11 February 2015 had already been provided on 30 April 2015 (the applicants did not provide the Court with the initial reply). The Ministry also stated that the execution of the judgment of 11 February 2015 would be organised within its competence in accordance with the law. However, on 4 January 2016 it informed the applicants that the payment of social benefits was not within its competence.

On 8 April 2016 the Ukrainian Parliament Commissioner for Human Rights informed the applicants that she had submitted requests before the Ministry of Social Politics of Ukraine and the Pension Fund of Ukraine concerning the actions taken by these institutions following the invalidation of Section 2 of the Interim Order by the judgment of 11 February 2015.

B. Relevant domestic law

The relevant provisions of the Code of Administrative Justice of Ukraine (in force at the time when the judgment at issue became final) read as follows:

Article 255 § 1

“The judgment or the court ruling which has come into force is obligatory for the parties to the proceedings, for their successors as well as for all authorities, enterprises, institutions and organisations, officials or other persons and to be enforced on the territory of Ukraine.”

Article 257 § 1

“If necessary, the means, terms and way of enforcement can be specified in the judgment. [The court] also can impose certain obligations on the authorities in order to ensure enforcement of the judgment.”

Article 257 § 2

“A judgment, which has come into force ..., is the basis for its execution.”

Article 257 § 4

“Forced enforcement of court judgments in administrative cases is carried out in accordance with the procedure established by the Law of Ukraine "on enforcement proceedings.”

Article 258 § 1

“For each court ’ s judgment, which became enforceable ... one writ of execution is issued on the request of the persons in whose favour it was given ...”

Article 259 § 4 of the above С ode provides that in case the writ of execution was issued mistakenly or if it does not contain a particular obligation to be fulfilled by the debtor, the court can recognise it as not being subject to enforcement.

The relevant provisions of the Law of Ukraine “on enforcement proceedings” (adopted on 2 June 2016) read as follows:

Article 4 § 1

“A writ of execution must contain the following information:

...

5. Operative part of the judgment which envisages coercive measures of its enforcement.”

The Interim Order “on financing publicly funded institutions, paying social benefits and providing financial support to certain enterprises and organisations in the Donetsk and Luhansk regions” was approved by the Resolution no. 595 of the Cabinet of Ministers of Ukraine of 7 November 2014 “on issues of financing publicly funded institutions, paying social benefits and providing financial support to certain enterprises and organisations in the Donetsk and Luhansk regions”.

The relevant provisions of the Interim Order read as follows:

Section 2

“In the settlements of the Donetsk and Luhansk regions, where the State authorities do not exercise their powers in full, payments from the State Budget, the Pension Fund of Ukraine and other compulsory State social insurance funds will only be conducted after the State authorities regain control over those territories.”

Other relevant domestic law is summarised in Tsezar and Others v. Ukraine (nos. 73590/14 and 6 others, §§ 20-29, 13 February 2018).

COMPLAINTS

The applicants complain under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention about the non-enforcement of the judgment of the Kyiv Administrative Court of 11 February 2015. In particular, they state that the invalidation of Section 2 of the Interim Order had entailed automatic renewal of their social benefits by transferring the money to their bank accounts. They also complain that their right to an effective remedy under Article 13 of the Convention has been breached on account of this failure.

QUESTIONS TO THE PARTIES

1. Has there been a breach of the applicants ’ right to have a fair hearing in the determination of their civil rights and obligations within a reasonable time, guaranteed by Article 6 § 1 of the Convention on account of the alleged non-enforcement of the judgment of the Kyiv Administrative Court of 11 February 2015?

2. Has there been an interference with the applicants ’ peaceful enjoyment of their possessions, within the m eaning of Article 1 of Protocol No. 1 to the Convention on account of the alleged non-enforcement of the judgment of the Kyiv Administrative Court of 11 February 2015? If so, was that interference in compliance with the requirements of that provision?

3. Did the applicants have access to an effective remedy in their case, as required by Article 13 of the Convention?

APPENDIX

No.

Applicant ’ s name

date of birth

place of residence

nationality

Lyudmyla Mykolayivna KANDYBA

25/09/1953

Luhansk

Ukrainian

Oksana Anatoliyivna BAKLYTSKA

29/08/1979

Luhansk

Ukrainian

Olga Grygorivna DEMCHENKO

12/05/1987

Luhansk

Ukrainian

Natalia Arkadiyivna OSYPCHUK

25/11/1981

Luhansk

Ukrainian

Olga Volodymyrivna PLUZHNIKOVA

23/05/1983

Luhansk

Ukrainian

Vitaliy Tymofiyovych CHAIKIN

20/12/1926

Luhansk

Ukrainian

Iryna Yevgenivna SHELESTUNOVA

25/08/1983

Luhansk

Ukrainian