FIFTH SECTION

DECISION

Application no. 54219/13 Andriy Vasylyovych IVASHCHENKO against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 14 September 2023 as a Committee composed of:

Lado Chanturia , President , Stéphanie Mourou-Vikström, Mykola Gnatovskyy , judges , and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 54219/13) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 15 August 2013 by a Ukrainian national, Mr Andriy Vasylyovych Ivashchenko (“the applicant”), who was born in 1963 and lives in Kyiv;

the decision to give notice of the application to the Ukrainian Government (“the Government”), represented by their then Agent, Mr I. Lishchyna;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns a complaint raised under Article 1 of Protocol No. 1 to the Convention about the refusal of the national courts to recognise the applicant’s entitlement to the recalculation and payment of his late mother’s pension.

2. On 4 February 2010 the Dniprovskyi District Court of Kyiv allowed an application by the applicant’s mother seeking to oblige the Pension Fund to recalculate and pay her a Chernobyl relief worker pension.

3. On 27 December 2010 the applicant’s mother died.

4. On an unspecified date the Pension Fund appealed against the above decision.

5. On 20 April 2011 the Kyiv Court of Appeal upheld the decision of 4 February 2010.

6. The applicant requested the Pension Fund to enforce the decision of 4 February 2010. Having received a negative reply, he lodged a claim with the Dniprovskyi District Court of Kyiv against the Pension Fund, seeking a recognition of his right as an heir to obtain a pension of his mother – which belonged to her although it had not been paid to her – in accordance with the decision of 4 February 2010.

7. On 23 November 2012 the Dniprovskyi District Court of Kyiv confirmed the applicant’s entitlement to the payment of his late mother’s pension, as requested. The Pension Fund appealed against the latter decision, contesting the applicant’s right as an heir to obtain his late mother’s pension in accordance with the decision of 4 February 2010.

8. On 19 March 2013 the Kyiv Court of Appeal quashed the abovementioned decision of 23 November 2012, finding that the applicant had not inherited the right to the payment of his mother’s pension, given that the pension had not been recalculated in accordance with the decision of 4 February 2010, which had not taken effect at the time of the death of his mother, and that therefore, the right of recalculation and payment could not have been inherited.

9. On 12 June 2013 the Higher Specialised Court of Ukraine upheld the above-mentioned decision.

THE COURT’S ASSESSMENT

10. The Court reiterates that no legitimate expectation can be said to arise where there is a dispute as to the correct interpretation and application of domestic law and the applicant’s submissions are subsequently rejected by the national courts (see, for instance, Kopecký v. Slovakia [GC], no. 44912/98, § 50, ECHR 2004-IX).

11. The Court notes that the applicant’s mother died on 27 December 2010, whereas the first-instance court’s decision allowing her application for the recalculation of her pension did not take effect until 20 April 2011. It appears that the applicant did not inherit the right to the recalculation and payment of his mother’s pension as it had not been enforceable when she died.

12. It follows that this application must be rejected as incompatible ratione materiae , pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 5 October 2023.

Martina Keller Lado Chanturia Deputy Registrar President