JOINT PARTLY DISSENTING OPINION OF JUDGES YUDKIVSKA AND HÃœSEYNOV

1. The present case raises an important issue about the scope of the State’s positive obligations towards a prisoner in a socio-economic sphere. Unlike the majority, we are of the opinion that in the present case the Ukrainian authorities violated not only Article 3, but also Article 1 of Protocol No. 1.

2. The applicant’s complaint under Article 1 of Protocol No. 1 concerned his unsuccessful attempts to obtain a disability pension while serving a sentence of life imprisonment. In the majority’s view, the applicant had “failed to substantiate his allegation of a lack of assistance regarding the procedure” to be followed for that purpose (paragraph 63), and on that basis the complaint was found to be manifestly ill-founded. We respectfully disagree.

3. To start with, according to the Court’s well-established case-law, Article 1 of Protocol No. 1 entails both negative and positive obligations for the States Parties. Positive obligations deriving from this provision may require the State Party to take the measures necessary to protect the right of property (see, among many other authorities, Ališić and Others v. Bosnia and Herzegovina, Croatia, Serbia, Slovenia and the former Yugoslav Republic of Macedonia [GC], no. 60642/08, § 100, ECHR 2014). This is particularly true where there is a direct link between the measures that an applicant may legitimately expect from the authorities and his effective enjoyment of his possessions (see Öneryıldız v. Turkey [GC], no. 48939/99, § 134, ECHR 2004-XII).

4. In assessing compliance with Article 1 of Protocol No. 1, the Court must carry out an overall examination of the various interests in issue, bearing in mind that the Convention is intended to safeguard rights that are “practical and effective”. It must look behind appearances and investigate the realities of the situation complained of. That assessment may involve the conduct of the parties, including the means employed by the State and their implementation. In that context, it should be stressed that uncertainty – be it legislative, administrative or arising from practices applied by the authorities – is a factor to be taken into account in assessing the State’s conduct (see Romeva v. North Macedonia , no. 32141/10, § 72, 12 December 2019).

5. In the present case, the applicant, who claimed that he was entitled to a disability pension, has never been awarded that pension. That said, there has been no rejection of a request by him to that effect either. The particularity of the applicant’s situation is that he has apparently not even lodged a formal application for a disability pension. While under the normal circumstances such a situation would be held against the applicant, suggesting a lack of diligence on his part, in the present case it lies at the core of his grievance before the Court. Thus, the applicant blamed the authorities for a failure to facilitate his access to relevant services and information in order to comply with all the required formalities with a view to formalising his entitlement to a disability pension.

6. It is noteworthy that the Government did not question the applicant’s eligibility for a disability pension as such, or at least did not dispute that he had grounds for claiming it. However, regardless of whether the applicant could legitimately expect to receive that pension, he was entitled under the relevant law to apply for a pension and have his application examined, and, moreover, under Article 122 § 3 of the Code on the Execution of Sentences, to expect that the prison administration “facilitate, in every possible way, his efforts in preparing and filing the required documents”. In other words, the State, acting in line with its margin of appreciation in determining the steps to be taken to ensure compliance with the Convention, imposed the aforementioned positive obligation on prison authorities, with a view to securing the effective exercise by prisoners of their property rights related to receipt of a disability pension. The alleged failure of the prison administration to comply with that obligation in the applicant’s case is, as noted above, the crux of his grievances before the Court.

7. It appears from the case file that the said positive obligation has not been complied with. We stress that, in view of his vulnerability at the hands of the authorities, who exercised complete control over him throughout his detention (see, mutatis mutandis , Y.F. v. Turkey , no. 24209/94, § 34, ECHR 2003 ‑ IX), the applicant was not able to exercise his rights under Article 1 of Protocol No. 1 without their aid.

8. The parties are in disagreement as to whether the applicant requested any particular assistance from the prison administration other than an examination by a medico-social expert commission (an authority competent to issue disability certificates). In respect of this last-mentioned point, they are also in disagreement as to the date of the first such request.

9. In this regard, it must be noted that, as confirmed by the case-file materials, the applicant enquired about the procedure to be followed for the purpose of obtaining a disability pension for the first time in November 2012 at the latest. Although it was mentioned in the records that some explanations had been provided to him, neither the form nor the content of those explanations are clear. It is not known, in particular, whether the applicant was made aware of the legally prescribed application form to be filled in, in his case, or whether he was able to ask any questions and receive satisfactory answers in that regard. In other words, the applicant’s interest in securing an award of a disability pension did not receive any follow-up from the authorities apart from “explanations”, the adequacy of which has not been established.

10. Furthermore, we must take note of the undisputed fact that a medico-social expert commission examined the applicant for the first time on 13 June 2016, with a view to deciding whether his condition was to be considered as a disability and, if so, of what gravity. It must have been obvious for the authorities that the applicant had sought that examination with the aim of eventually obtaining a disability pension. This is also confirmed by the fact that the commission’s report was transmitted to the local pension authority. However, the prison administration took no steps to help the applicant complete all the procedures and furnish all the required documents to that authority.

11. Another undisputed fact of relevance is that the applicant repeatedly sought help from a legal aid centre in his efforts to obtain a disability pension and that his applications were either not acted upon or refused on what appeared to be formalistic grounds (see paragraphs 21 and 25 of the judgment).

12. We consider the foregoing considerations sufficient to conclude that the State authorities have fallen short of their positive obligation, as arising by virtue of domestic law, to assist the applicant in his efforts related to his claimed disability pension entitlement. This in turn affected adversely the possibility for the applicant to have his claim about a pension entitlement filed and duly examined. Therefore we believe that this complaint was admissible and that there has been a violation of Article 1 of Protocol No. 1.

[1] Rectified on 19 August 2021: the text was “and 121”.