CEDH · CASELAW;COMMUNICATEDCASES;ENG — 22 janvier 2021

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s59947BC4 { margin-top:14pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s6B505E72 { margin:0pt; padding-left:0pt } .sF7610474 { margin-top:14pt; margin-left:36.55pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s9E4F845E { margin-left:36.55pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-style:italic } .s434D37A9 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } Communicated on 22 January 2021 Published on 8 February 2021   FIFTH SECTION Application no. 78382/12 Volodymyr Yakovych GORBATKO against Ukraine lodged on 4 December 2012 STATEMENT OF FACTS The applicant, Mr Volodymyr Yakovych Gorbatko, is a Ukrainian national who was born in 1942 and lives in Zaporizhzhya. The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. First set of proceedings On 7 April 2008 the applicant instituted proceedings before the Komunarskyy District Court of Zaporizhzhya claiming that: a) from 2005 to 2008 he had not received an additional pension due to him as a person having the status of child of war, under the Law on Social Protection of Children of War; b) since 29 August 2005 the State Pension Fund had not paid him the 50% increase in his pension to which he had been entitled under the Law on Rehabilitation of Victims of Political Repression in Ukraine; c) the State Pension Fund had not paid him the 1% increase in his pension for every year worked over a period of 25 years. He also claimed that the State Pension Fund had unlawfully calculated his pension according to the Law on Mandatory State Insurance instead of the Law On Pensions. On 15 July 2009 the court found in part for the applicant and ordered the State Pension Fund to pay him the additional pension as a child of war for the periods from 9 July 2007 to 31 December 2007 and from 22 May 2008 to 31 December 2008. The court rejected the remainder of the applicant’s complaints as unsubstantiated, without providing reasons for doing so. The court did not consider the applicant’s argument that the Law On Pensions should have been applied to his pension instead of the Law on Mandatory State Insurance. The parties appealed. The applicant stated that the lower court had failed to examine his claims concerning the 50% pension increase and the 1% per year pension increase and his argument concerning the Law On Pensions. He also submitted that his claims concerning the “child of war” additional pension should be allowed in full. On 9 December 2010 the Dnipropetrovsk Administrative Court of Appeal changed the decision of 15 July 2009 and allowed the applicant’s claims concerning the 50% pension increase and the 1% pension increase in full. The court ordered the State Pension Fund to pay the applicant the 50% increase and the 1% increase for the period from 29 August 2005 to 9   December 2009. The court upheld the part of the lower court’s decision concerning the additional pension due to the applicant as a child of war. The parties appealed in cassation. The case file contains two decisions of the Higher Administrative Court dated 6 March 2012 concerning those appeals in cassation. The first decision of the Higher Administrative Court states that the court of cassation decided to reject the appeal in cassation lodged by the State Pension Fund and to uphold the decision of the Dnipropetrovsk Administrative Court of Appeal. The second decision of the Higher Administrative Court states that the court of cassation decided to quash the decision of the court of appeal and to uphold the decision of the Komynarskyy Court of 15 July 2009. Second set of proceedings On 2 June 2011 the applicant instituted proceedings before the Komunarskyy Court requesting the court to oblige the State Pension Fund to recalculate his pension for the period from 10 December 2010 onwards and in accordance with the decision of the Dnipropetrovsk Administrative Court of Appeal dated 9 December 2010. He also submitted that the State Pension Fund should apply to his pension the Law On Pensions, and not the Law on Mandatory State Insurance. On an unspecified day in September 2011 the applicant was informed that the court had decided to examine his case in the framework of simplified proceedings, that is solely on the basis of documents, without holding an oral and public court hearing. On the same day the applicant received a decision of the Komunarskyy Court dated 1 August 2011 by which the court ordered the State Pension Fund to recalculate and pay the applicant arrears on the pension due to him as a child of war. The court rejected the remainder of his claims, stating that the applicant had not provided evidence that his pension and the pension supplement due to him as a rehabilitated person were duly calculated. The applicant appealed. On 9 April 2012 the Dnipropetrovsk Administrative Court of Appeal upheld the decision of the lower court, having found that its reasoning regarding the child of war pension was correct. The court did not mention the remainder of the applicant’s claims, namely those concerning the 50% pension increase, the 1% pension increase and the pension due to the applicant as a rehabilitated person. COMPLAINTS First set of proceedings The applicant complains that the Higher Administrative Court issued two contradictory decisions in his case. He complains that the length of proceedings was excessive. He also complains that the courts did not address his argument concerning the application of the Law On Pensions instead of the Law On Mandatory State Insurance. Second set of proceedings The applicant complains that the court hearings were not public and oral and the right to equality of arms was violated because he was not given an opportunity to respond to the arguments presented by the other party. The applicant also complains that the court of first instance examined only his complaints concerning the child of war pension, and rejected the remainder of his claims without providing any reasoning. He complains that the court of appeal considered his appeal only insofar as it concerned the child of war pension, but not the remainder of his claims. Both sets of proceedings Referring to both sets of proceedings, the applicant complains under Article 1 of Protocol No. 1 that his property rights were violated in so far as his pension is concerned. He also complains under Article 1 of Protocol   No.   12 because, during and after the war, the State did not protect him to a sufficient extent and the civil servant who subjected him to political repression is still in office.   QUESTIONS TO THE PARTIES   1.     In so far as both sets of proceedings are concerned, 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, was the principle of legal certainty respected as regards the first set of proceedings? As regards the first set of proceedings, did the courts examine all the specific, pertinent and important arguments advanced by the applicant (see Pronina v. Ukraine , no. 63566/00, § 25, 18 July 2006)? Was the principle of equality of arms respected as regards the second set of proceedings? In so far as the second set of proceedings is concerned, did the applicant have effective access to court regarding his complaints concerning the 50% pension increase, the 1% pension increase and the pension due to the applicant as a rehabilitated person?   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?