Published on 3 April 2023

FIFTH SECTION

Application no. 31705/16 Yuriy Volodymyrovych GAYEVSKYY against Ukraine lodged on 25 May 2016 communicated on 17 March 2023

SUBJECT MATTER OF THE CASE

The application concerns judicial proceedings related to the quashing of a decision granting certain social benefits to the applicant (Article 6 of the Convention and Article 1 of Protocol No. 1).

On 24 June 2005 a medical commission of the State Border Guard Service established that the applicant was suffering from an illness as a result of his military service at the State Border Guard Service. Based on this decision, the applicant acquired a right to a number of social payments and benefits.

On 18 December 2008 the commission quashed its own decision and found that the applicant’s illness was not related to his military service. In May 2009 the applicant challenged this decision before the courts. His claims were rejected on first and second levels of jurisdiction. However, on 18 March 2015 the Higher Administrative Court quashed the previous decisions and ordered the State Border Guard Service to quash the decision of the commission of 18 December 2008.

From the materials in the case file, it is unclear whether before 2009 there existed a legal framework permitting the revision of decisions of medical commissions.

On 26 June 2009 a governmental decree was adopted which permitted medical commissions to revise their own decisions. The decree did not establish any criteria or deadlines for such revisions.

On 8 May 2015 the same commission decided once again to change its decision of 24 June 2005 and established that the applicant’s illness was not a result of his military service. In particular, the commission referred to the decree of 26 June 2009 mentioned above.

On 29 May 2015 the applicant challenged the decision of 8 May 2015 before the domestic courts. On 29 July 2015 the Zhytomyr District Administrative Court found in part for the applicant. On 4 November 2015 the Zhytomyr Administrative Court of Appeal, following an appeal of the State Border Guard Service, quashed that decision and found against the applicant, relying, in particular, on the decree of 26 June 2009. On 2December 2015 the Higher Administrative Court refused to grant the applicant’s request for leave to appeal in cassation. Before the courts the applicant stated that the decree of 2009 was inapplicable to his case because it was not in force when the decision of 24 June 2005 was taken. However, the courts did not address this argument.

The applicant complains, under Article 1 of Protocol No. 1, that the decision of 24 June 2005 was re-examined and quashed ten years after its adoption and that the decision of 8 May 2015 was arbitrary, in particular because the commission referred to a decree of 2009 which was not in force in 2005 and also because the decree did not clearly indicate the conditions under which a decision of a medical commission could be quashed.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, did the courts examine all the specific, pertinent and important arguments advanced by the applicant?

2. Has there been an interference with the applicant’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1? Has the applicant been deprived of his possessions in the public interest, and in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol No. 1? Did that interference impose an excessive individual burden on the applicant?