I correctly predicted that there was a violation of human rights in LEONIDOV v. UKRAINE.

Judgment

FIFTH SECTION
CASE OF LEONIDOV v. UKRAINE
(Application no. 2064/12)

JUDGMENT
STRASBOURG
22 September 2022

This judgment is final but it may be subject to editorial revision. In the case of Leonidov v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Mārtiņš Mits, President, Lətif Hüseynov, Mattias Guyomar, judges,and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 2064/12) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Ivan Georgiyovych Leonidov (“the applicant”), on 30 December 2011;
the decision to give notice of the application to the Ukrainian Government (“the Government”);
the parties’ observations;
Having deliberated in private on 3 February 2022,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The application concerns the applicant’s complaints under Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 that he was denied access to a cassation court in respect of his claims regarding his pension rights. THE FACTS
2. The applicant was born in 1951 and lives in Mariupol. The applicant, who had been granted legal aid, was represented before the Court by Mr Y.L. Boychenko, a lawyer practising in Strasbourg. 3. From 4 March 1970 until 15 September 1997 the applicant held a variety of posts at Mariupol Industrial College. After he retired, he asked the pension authorities to grant him a pension in accordance with the legislation applicable to educational employees (“the special pension”). The pension authorities refused to do so. They argued that only persons working as “educational employees” for twenty-five years or more were entitled to the special pension, and that although the applicant had worked at the college for more than twenty-five years, some of the positions which he had held did not fall within the category of “educational employee”. The applicant instituted administrative proceedings before the domestic courts, seeking to be granted the special pension. 4. On 7 November 2007 the Zhovtnevyy Local Court of Mariupol allowed the applicant’s claim. 5. On 21 March 2008 the Donetsk Administrative Court of Appeal upheld the above-mentioned judgment. 6. Following an appeal on points of law lodged by the pension authorities, on 16 June 2009 the Higher Administrative Court quashed the above‐mentioned decisions and remitted the applicant’s case to the first‐instance court for a fresh examination. 7. On 31 August 2009 the Zhovtnevyy Local Court of Mariupol allowed the applicant’s claim. 8. On 18 February 2010 legislative changes were adopted which specified that cases relating to pensions were to be examined by civil courts and that appeals on points of law concerning such matters were to be examined by the Supreme Court as a court of cassation. The text of the law mentions that it enters into force on the day when it would be officially published. According to the information in the official legislative database of the Ukrainian Parliament (www.rada.gov.ua), the law entered into force on 10 March 2010. 9. Following an appeal by the pension authorities, on 4 March 2010 the Donetsk Administrative Court of Appeal quashed the judgment of 31 August 2009 and rejected the applicant’s claim. In the operative part of the decision, the court stated that an appeal on the points of law could be lodged with the Higher Administrative Court within one month from the date on which the decision was delivered. 10. On 4 April 2010, the applicant appealed on points of law to the Higher Administrative Court. 11. On 16 April 2010 the Higher Administrative Court declined to examine the applicant’s appeal on points of law. It noted that the applicant had lodged his appeal after the law of 18 February 2010 had entered into force and that for that reason, his appeal fell to be examined by the Supreme Court. 12. In September 2010 the applicant lodged his appeal on points of law with the Supreme Court. 13. In December 2010 a new law was passed which specified that pension-related disputes fell within the jurisdiction of administrative courts and that appeals on points of law relating to these matters were to be examined by the Higher Administrative Court as a court of cassation. 14. On 21 January 2011 the Supreme Court forwarded the applicant’s appeal on points of law to the Higher Administrative Court, referring to the legislation of December 2010. 15. On 19 September 2011 the Higher Administrative Court declined to examine the applicant’s appeal on points of law, reasoning that on 16 April 2010 it had already refused to institute cassation proceedings. The decision of 19 September 2011 was final and not subject to further appeal. THE LAW
16. The applicant complained under Article 6 § 1 and Article 13 of the Convention that the domestic courts had failed to examine the merits of his claim, thus depriving him of his right of access to a court. 17. The relevant provisions of the Convention read, in so far as relevant, as follows:
Article 6
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
18. The Government stated that, unlike in Tserkva Sela Sosulivka v. Ukraine (no. 37878/02, 28 February 2008), where the Court had found a violation of the applicant’s right to a court, in the present case the applicant’s claims had been examined on their merits by the first-instance and appeal courts. They had also been examined by the Higher Administrative Court, which had delivered its decision on 16 June 2009. The applicant had mistakenly lodged his appeal on points of law against the decision of 4 March 2010 with the Higher Administrative Court instead of lodging it with the Supreme Court and, as a consequence, the courts of cassation could not examine his appeal against that decision. 19. The applicant disagreed. 20. The Court notes that the parties’ observations are closely linked to the merits of this complaint. It therefore joins them to the merits. The Court finds that the present part of the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. 21. The applicant maintained his complaints. 22. The Government did not submit observations on the merits of the present part of the application. 23. The Court reiterates that Article 6 of the Convention does not compel the Contracting States to set up courts of appeal or of cassation. However, where such courts do exist, the guarantees of Article 6 must be complied with, for instance in that it guarantees to litigants an effective right of access to the courts for the determination of their civil rights and obligations (see Zubac v. Croatia [GC], no. 40160/12, § 80, 5 April 2018, and the case-law cited therein). 24. The Court notes that on 4 March 2010 the Donetsk Administrative Court of Appeal indicated to the applicant that he could appeal to the Higher Administrative Court. This assertion was based on the legislation applicable at the material time. On 10 March 2010 a new law entered into force which stipulated that the applicant’s case fell to be examined by the Supreme Court as the court of cassation. It follows that the applicant’s appeal on points of law lodged on 4 April 2010 had to be lodged with the Supreme Court, and not the Higher Administrative Court. Subsequently the applicant re-lodged his appeal on points of law with the Supreme Court, according to the law of 18 February 2010 (see paragraph 12 above). Shortly afterwards a new legislation was introduced which stipulated that the applicant’s appeal on points of law had to be examined by the Higher Administrative Court. The Supreme Court thus sent the applicant’s appeal to the Higher Administrative Court for examination (see paragraph 14 above). 25. The Court notes that when the Higher Administrative Court for the second time (see paragraph 15 above) examined the applicant’s appeal on points of law against the decision of 4 March 2010, the legislation in force at that time provided that that court was competent to examine appeals on points of law lodged in pension-related disputes. However, the Higher Administrative Court refused to examine the applicant’s appeal, referring to its earlier decision (see paragraph 11 above), which had been based on a completely different legislation, and which was no longer in force. The Court thus finds that the decision of the Higher Administrative Court of 19 September 2011 was not based on an adequate reasoning and that there has been a violation of Article 6 § 1 of the Convention (right of access to a court). The Court further considers that it is not necessary to examine the same complaint also under Article 13 of the Convention. 26. The applicant complained under Article 1 of Protocol No. 1 to the Convention of an interference with his property rights on account of the refusal of the domestic courts to examine the merits of his claim. 27. The relevant provision of the Convention read, in so far as relevant, as follows:
Article 1 of Protocol No.1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
28. The Government submitted that this complaint was incompatible ratione materiae with the provisions of the Convention because, under the legislation in force, the applicant had not been entitled to the pension he had claimed and furthermore because the courts of cassation had not been competent to re-examine the facts as established by the lower courts; thus, they could not have reversed their findings that the applicant was not entitled to the pension which he had claimed. 29. The applicant disagreed. 30. The Court notes that the complaint under Article 1 of Protocol No. 1 is directly connected with the one examined under Article 6 § 1 of the Convention. Having regard to its conclusions under that Article, the Court considers that it cannot speculate as to what the situation would have been if the applicant had had effective access to a court. Consequently, it does not consider it necessary to rule on the question whether the applicant had a possession within the meaning of Article 1 of Protocol No. 1 and on the admissibility and merits of the complaint based on that Article (see, mutatis mutandis, Glod v. Romania, no. 41134/98, § 46, 16 September 2003). 31. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
32. The applicant claimed 12,768 euros (EUR) in respect of pecuniary damage (the amount of the special pension to which, according to the applicant, he was entitled) and EUR 3,000 in respect of non-pecuniary damage. 33. The Government contested those claims. 34. In view of its findings under Article 1 of Protocol No.1, the Court considers that the applicant’s claim concerning pecuniary damage must be rejected. On the other hand, ruling on an equitable basis, it awards the applicant EUR 3,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. 35. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicant, within three months, EUR 3,000 (three thousand euros), to be converted into the national currency at the rate applicable at the date of settlement, plus any tax that may be chargeable;
(b) that from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 22 September 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Martina Keller Mārtiņš Mits Deputy Registrar President

FIFTH SECTION
CASE OF LEONIDOV v. UKRAINE
(Application no. 2064/12)

JUDGMENT
STRASBOURG
22 September 2022

This judgment is final but it may be subject to editorial revision. In the case of Leonidov v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Mārtiņš Mits, President, Lətif Hüseynov, Mattias Guyomar, judges,and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 2064/12) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Ivan Georgiyovych Leonidov (“the applicant”), on 30 December 2011;
the decision to give notice of the application to the Ukrainian Government (“the Government”);
the parties’ observations;
Having deliberated in private on 3 February 2022,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The application concerns the applicant’s complaints under Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 that he was denied access to a cassation court in respect of his claims regarding his pension rights. THE FACTS
2. The applicant was born in 1951 and lives in Mariupol. The applicant, who had been granted legal aid, was represented before the Court by Mr Y.L. Boychenko, a lawyer practising in Strasbourg. 3. From 4 March 1970 until 15 September 1997 the applicant held a variety of posts at Mariupol Industrial College. After he retired, he asked the pension authorities to grant him a pension in accordance with the legislation applicable to educational employees (“the special pension”). The pension authorities refused to do so. They argued that only persons working as “educational employees” for twenty-five years or more were entitled to the special pension, and that although the applicant had worked at the college for more than twenty-five years, some of the positions which he had held did not fall within the category of “educational employee”. The applicant instituted administrative proceedings before the domestic courts, seeking to be granted the special pension. 4. On 7 November 2007 the Zhovtnevyy Local Court of Mariupol allowed the applicant’s claim. 5. On 21 March 2008 the Donetsk Administrative Court of Appeal upheld the above-mentioned judgment. 6. Following an appeal on points of law lodged by the pension authorities, on 16 June 2009 the Higher Administrative Court quashed the above‐mentioned decisions and remitted the applicant’s case to the first‐instance court for a fresh examination. 7. On 31 August 2009 the Zhovtnevyy Local Court of Mariupol allowed the applicant’s claim. 8. On 18 February 2010 legislative changes were adopted which specified that cases relating to pensions were to be examined by civil courts and that appeals on points of law concerning such matters were to be examined by the Supreme Court as a court of cassation. The text of the law mentions that it enters into force on the day when it would be officially published. According to the information in the official legislative database of the Ukrainian Parliament (www.rada.gov.ua), the law entered into force on 10 March 2010. 9. Following an appeal by the pension authorities, on 4 March 2010 the Donetsk Administrative Court of Appeal quashed the judgment of 31 August 2009 and rejected the applicant’s claim. In the operative part of the decision, the court stated that an appeal on the points of law could be lodged with the Higher Administrative Court within one month from the date on which the decision was delivered. 10. On 4 April 2010, the applicant appealed on points of law to the Higher Administrative Court. 11. On 16 April 2010 the Higher Administrative Court declined to examine the applicant’s appeal on points of law. It noted that the applicant had lodged his appeal after the law of 18 February 2010 had entered into force and that for that reason, his appeal fell to be examined by the Supreme Court. 12. In September 2010 the applicant lodged his appeal on points of law with the Supreme Court. 13. In December 2010 a new law was passed which specified that pension-related disputes fell within the jurisdiction of administrative courts and that appeals on points of law relating to these matters were to be examined by the Higher Administrative Court as a court of cassation. 14. On 21 January 2011 the Supreme Court forwarded the applicant’s appeal on points of law to the Higher Administrative Court, referring to the legislation of December 2010. 15. On 19 September 2011 the Higher Administrative Court declined to examine the applicant’s appeal on points of law, reasoning that on 16 April 2010 it had already refused to institute cassation proceedings. The decision of 19 September 2011 was final and not subject to further appeal. THE LAW
16. The applicant complained under Article 6 § 1 and Article 13 of the Convention that the domestic courts had failed to examine the merits of his claim, thus depriving him of his right of access to a court. 17. The relevant provisions of the Convention read, in so far as relevant, as follows:
Article 6
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
18. The Government stated that, unlike in Tserkva Sela Sosulivka v. Ukraine (no. 37878/02, 28 February 2008), where the Court had found a violation of the applicant’s right to a court, in the present case the applicant’s claims had been examined on their merits by the first-instance and appeal courts. They had also been examined by the Higher Administrative Court, which had delivered its decision on 16 June 2009. The applicant had mistakenly lodged his appeal on points of law against the decision of 4 March 2010 with the Higher Administrative Court instead of lodging it with the Supreme Court and, as a consequence, the courts of cassation could not examine his appeal against that decision. 19. The applicant disagreed. 20. The Court notes that the parties’ observations are closely linked to the merits of this complaint. It therefore joins them to the merits. The Court finds that the present part of the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. 21. The applicant maintained his complaints. 22. The Government did not submit observations on the merits of the present part of the application. 23. The Court reiterates that Article 6 of the Convention does not compel the Contracting States to set up courts of appeal or of cassation. However, where such courts do exist, the guarantees of Article 6 must be complied with, for instance in that it guarantees to litigants an effective right of access to the courts for the determination of their civil rights and obligations (see Zubac v. Croatia [GC], no. 40160/12, § 80, 5 April 2018, and the case-law cited therein). 24. The Court notes that on 4 March 2010 the Donetsk Administrative Court of Appeal indicated to the applicant that he could appeal to the Higher Administrative Court. This assertion was based on the legislation applicable at the material time. On 10 March 2010 a new law entered into force which stipulated that the applicant’s case fell to be examined by the Supreme Court as the court of cassation. It follows that the applicant’s appeal on points of law lodged on 4 April 2010 had to be lodged with the Supreme Court, and not the Higher Administrative Court. Subsequently the applicant re-lodged his appeal on points of law with the Supreme Court, according to the law of 18 February 2010 (see paragraph 12 above). Shortly afterwards a new legislation was introduced which stipulated that the applicant’s appeal on points of law had to be examined by the Higher Administrative Court. The Supreme Court thus sent the applicant’s appeal to the Higher Administrative Court for examination (see paragraph 14 above). 25. The Court notes that when the Higher Administrative Court for the second time (see paragraph 15 above) examined the applicant’s appeal on points of law against the decision of 4 March 2010, the legislation in force at that time provided that that court was competent to examine appeals on points of law lodged in pension-related disputes. However, the Higher Administrative Court refused to examine the applicant’s appeal, referring to its earlier decision (see paragraph 11 above), which had been based on a completely different legislation, and which was no longer in force. The Court thus finds that the decision of the Higher Administrative Court of 19 September 2011 was not based on an adequate reasoning and that there has been a violation of Article 6 § 1 of the Convention (right of access to a court). The Court further considers that it is not necessary to examine the same complaint also under Article 13 of the Convention. 26. The applicant complained under Article 1 of Protocol No. 1 to the Convention of an interference with his property rights on account of the refusal of the domestic courts to examine the merits of his claim. 27. The relevant provision of the Convention read, in so far as relevant, as follows:
Article 1 of Protocol No.1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
28. The Government submitted that this complaint was incompatible ratione materiae with the provisions of the Convention because, under the legislation in force, the applicant had not been entitled to the pension he had claimed and furthermore because the courts of cassation had not been competent to re-examine the facts as established by the lower courts; thus, they could not have reversed their findings that the applicant was not entitled to the pension which he had claimed. 29. The applicant disagreed. 30. The Court notes that the complaint under Article 1 of Protocol No. 1 is directly connected with the one examined under Article 6 § 1 of the Convention. Having regard to its conclusions under that Article, the Court considers that it cannot speculate as to what the situation would have been if the applicant had had effective access to a court. Consequently, it does not consider it necessary to rule on the question whether the applicant had a possession within the meaning of Article 1 of Protocol No. 1 and on the admissibility and merits of the complaint based on that Article (see, mutatis mutandis, Glod v. Romania, no. 41134/98, § 46, 16 September 2003). 31. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
32. The applicant claimed 12,768 euros (EUR) in respect of pecuniary damage (the amount of the special pension to which, according to the applicant, he was entitled) and EUR 3,000 in respect of non-pecuniary damage. 33. The Government contested those claims. 34. In view of its findings under Article 1 of Protocol No.1, the Court considers that the applicant’s claim concerning pecuniary damage must be rejected. On the other hand, ruling on an equitable basis, it awards the applicant EUR 3,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. 35. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicant, within three months, EUR 3,000 (three thousand euros), to be converted into the national currency at the rate applicable at the date of settlement, plus any tax that may be chargeable;
(b) that from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 22 September 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Martina Keller Mārtiņš Mits Deputy Registrar President