Published on 15 May 2023

FIFTH SECTION

Application no. 48433/15 Tetyana Ivanivna POZHARSKA against Ukraine lodged on 21 September 2015 communicated on 24 April 2023

SUBJECT MATTER OF THE CASE

The application concerns the quashing of the judgment of the Desnynskyi District Court of Kyiv of 22 June 2011, ordering the State Pension Fund (SPF) to pay the applicant a higher pension, by the decision of the Kyiv Administrative Court of Appeal of 27 March 2014 upon the SPF’s appeal lodged on 6 March 2014. By the final decision of 31 March 2015, of which the applicant was informed on 2 April 2015, the Higher Administrative Court dismissed as unsubstantiated the applicant’s cassation appeal, based mainly on the arguments that she had not been informed of the SPF’s appeal or of the appeal hearing before 13 January 2015; and that the appeal court had disregarded the fact that the appeal had been introduced after the expiry of the then applicable ten-day time-limit without any acceptable justification and had failed to apply Article 189 § 4 of the Code of Administrative Justice of 2005 obliging it to reject any appeal lodged by a State authority or agency more than a year following the delivery of the judgment of 22 June 2011 irrespective of any justification for its belated introduction. The Higher Administrative Court found that the applicant had provided no reasons demonstrating that the appeal court had wrongfully applied the law.

Relying on Article 6 § 1 of the Convention, the applicant complains that the quashing of the aforementioned judgment of 22 June 2011 was unlawful and contrary to the principle of legal certainty.

QUESTIONS TO THE PARTIES

1. Did the applicant comply with the six-month time-limit laid down in Article 35 § 1 of the Convention as worded at the time when the present application was lodged? In particular, should the procedure leading to the decision of the Higher Administrative Court of 31 March 2015 be taken into account for the purposes of calculating the applicable time-limit?

2. Did the applicant have a fair hearing in the determination of her civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, were the principles of the rule of law and legal certainty respected as regards the quashing of the judgment of the Desnynskyi District Court of Kyiv of 22 June 2011 (see Ponomaryov v. Ukraine , no. 3236/03, §§ 40-42, 3 April 2008 and Ustimenko v. Ukraine , no. 32053/13, §§ 47-54, 29 October 2015, and compare Tryapyshko v. Ukraine [Committee], no. 59577/12, §§ 24-27, 17 June 2021)?