CEDH · CASELAW;COMMUNICATEDCASES;ENG — 18 février 2017

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s10AB3CA3 { font-family:Arial; color:#222222 } .s5243C837 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt }   Communicated on 18 February 2017   FOURTH SECTION Application no. 23026/09 Valeriy Petrovich YEROKHIN against Ukraine lodged on 11 April 2009 STATEMENT OF FACTS The applicant, Mr Valeriy Petrovich Yerokhin, is a Ukrainian national who was born in 1944 and lives in the town of Makiyivka, Ukraine. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant had worked in the coal industry since 1963. He began working for the State enterprise Ukrshakhtogidrozakhyst ( Укршахтогідрозахист ) (“the enterprise”) on 6 June 2003. On 31   January 2008 he took retirement, having reached pensionable age. The enterprise was a party to the Coal Sectoral Agreement of 3 July 2001 concluded between the Ministry of Energy and Coal Industry of Ukraine coal enterprises, on the one hand, and trade unions of employees in the coal industry, on the other (“the Sectoral Agreement”). Section 12(15) provided that employees would receive a lump sum payment on initial retirement if they had worked in the coal sector for at least ten years. The same provision was incorporated into a collective agreement dated 5 July 2004 by an amendment of 4 March 2005 concluded between the enterprise and trade union of its employees (“the collective agreement”). On 31 January 2008 the enterprise refused to pay the applicant the benefit to which he was entitled. The employer argued that it was payable to retired employees entitled to a pension, but not someone who had already been a pensioner since 1994. In addition, the enterprise cited a lack of budgetary funds to pay the benefit. On 20 February 2008 the applicant brought court proceedings against his former employer, seeking payment of UAH 7,406.55 (approximately EUR   1,000). He maintained that he met the required criteria and was entitled to the benefit based on the provisions of the Sectoral Agreement and collective agreement. The defendant stated that the applicant failed to meet the necessary criteria for the benefit, reiterating the arguments in its refusal of 31 January 2008 and stating that, in any event, the amount could not be paid owing to a lack of budgetary funds. On 26 June 2008 the Girnytskyy District Court of Makiyivka found against the applicant. It held that he had worked in the coal industry since 1963, had taken the decision to retire from the enterprise himself and was entitled to the benefit. However, the Sectoral Agreement provided that fulfilment of its provisions was to be financed by the profits of coal companies and budgetary funds. The enterprise was totally financed by budgetary funds, and its budget for 2008 did not make any provision for the payment of benefits to its employees under the respective provisions of the Sectoral Agreement and collective agreement. The court therefore concluded that the refusal of the enterprise to pay the applicant the benefit was justified. The applicant appealed against that decision. He argued that he was entitled to the benefit based on the provisions of the Sectoral Agreement and collective agreement. He also pointed out that his entitlement to the benefit had been confirmed in a letter from the Donbas Independent Trade Union dated 12 May 2008. The letter referred to the same agreements and stated that the refusal of the enterprise to pay him the benefit was unlawful and unjustified. On 2 September 2008 the Donetsk Regional Court of Appeal upheld the decision of 26 June 2008 relying on the same reasons as the Girnytskyy District Court of Makiyivka. The applicant appealed in cassation. He questioned the reasoning of the decisions of the lower courts to reject his claim on the basis of a lack of funds to pay the benefit. He argued that such grounds contradicted the nature of a collective agreement and made it a formal document, which the enterprise was not obliged to fulfil. On 11 November 2008 the Supreme Court rejected his request for leave to appeal in cassation. B.     Relevant domestic law 1.     Sectoral Agreement no. 71 of 3 July 2001 between the Ministry of Coal Industry, other State authorities, owners (owners’ unions) in the coal industry and all-Ukrainian trade unions in the coal industry Section 2 “... (2)     Neither party may unilaterally suspend fulfilment of its respective obligations under this agreement.” Section 3 “(1)     This agreement shall apply to all employees employed by enterprises, associations, companies, organisations and institutions in the coal industry.” Section 4 “... (5)     This agreement shall provide for additional guarantees taking into account norms and recommendations of the International Trade Organisation, World Health Organisation ratified by Ukraine in addition to guarantees established by Ukrainian law. ... (15)     The sources for financing fulfilment of this agreement shall be funds from enterprises derived from their economic activities as well as budgetary funds provided as State aid. Section 7 “... (2)     The Ministry of Coal Industry shall, with the purpose of stable operation and development of the sector and according to the conditions set out in the law, expect to incur expenses for implementation of social and employment guarantees stipulated in the applicable law and this agreement.” Section 12 “... (15)     Employees entitled to retirement or a disability pension (regardless of age) shall, on initial retirement from the enterprise (structural department, subdivision, branch, company etc.) (regardless of the reasons of retirement, except for a dismissal for violation of the law, employment discipline and safety regulations) be paid a lump sum [benefit], the amount of which depends on length of service in the industry (including in enterprises of the former USSR) and the average salary, but no less than: For men who have worked in the industry for over 10 years – one month’s salary; 15   years – two months’ salary; 20 years – three months’ salary.” 2.     Law no. 3356-XII of 1 July 1993on collective agreements and deeds Section 9. Effect of a Collective Agreement “The provisions of a collective agreement apply to all employees, regardless of their membership in trade unions, and shall be binding on both the owner or its authorised body, and on employees of the enterprise. The provisions of general, sectoral, regional agreements shall have direct effect and shall be binding on all entities in the sphere of the parties [which] signed the relevant agreement.” COMPLAINT The applicant complains, under Article 6 of the Convention, that the domestic courts unlawfully rejected his claim against his employer seeking payment of the benefit to which he was entitled. QUESTIONS TO THE PARTIES 1.     Does the applicant in the present case have a “possession” in terms of Article 1 of Protocol No. 1?   2.     If so, has there been an interference with the applicant’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol   No.   1? Was that interference in accordance with the law, justified in the general interests and duly proportionate in terms of Article 1 of Protocol   No. 1 (see Kechko v. Ukraine , no. 63134/00, 8 November 2005; Budchenko v. Ukraine , no. 38677/06, 24 April 2014)?