CEDH · CASELAW;COMMUNICATEDCASES;ENG — 5 juin 2024

.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 } .sA36B60A1 { font-family:Arial; font-style:italic } Published on 24 June 2024   FIFTH SECTION Application no. 46247/15 Olena Vasylivna SIVKA against Ukraine lodged on 8 September 2015 communicated on 5 June 2024 SUBJECT MATTER OF THE CASE The application concerns the applicant’s obligation to reimburse allegedly overpaid pension arrears. In 2012, when reaching the age of 55, the applicant began receiving a state old-age pension under an early-retirement scheme. In 2014 the Pension Fund reviewed the applicant’s file and established that she had received 10,511.35 Ukrainian hryvnias (an equivalent of approximately 655   euros) in excess pension payments. In particular, the authorities found that the applicant had failed to disclose her status as a registered entrepreneur, which disqualified her from receiving the contested pension amounts. Consequently, the Pension Fund decided to deduct 20 per cent from the applicant’s future monthly pension until the excess pension payments were fully reimbursed. The applicant challenged this decision, arguing that her entrepreneurial status had been cancelled by a judicial order in 2008, but due to reasons beyond her control, this fact had not been recorded in the relevant state registry. She maintained that the decision to deduct the disputed amount based on her status as an entrepreneur had been unlawful, as the law regulating access to early-retirement pensions only required that she should not be employed. Initially, the first-instance court ruled in the applicant’s favour. However, the Vinnytsia Administrative Appeal Court reversed this decision, maintaining that it was the applicant’s responsibility to ensure that the cancellation of her entrepreneurial status was properly recorded in the state registry. On 11 March 2015 the Higher Administrative Court dismissed the applicant’s appeal on points of law as unfounded. The applicant complains under Article   1 of Protocol   No.   1 to the Convention that the decision to deduct the allegedly overpaid funds from her pension violated her right to peaceful enjoyment of possessions, particularly as the failure to update the state registry had been solely attributable to the state authorities. She also complains, relying on Article   6   §   1 of the Convention, that the court proceedings confirming her obligation to reimburse the impugned funds were unfair. QUESTIONS TO THE PARTIES Did the decision to deduct the impugned amount from the applicant’s monthly old-age pension constitute a deprivation of her possessions within the meaning of Article 1 of Protocol   No.   1 to the Convention? If so, was that interference in accordance with the conditions provided for by law and proportionate (see   Čakarević v. Croatia , no.   48921/13, §§ 73, 80-81, 26 April 2018)? Did the applicant have a possibility of effectively challenging the decision to reimburse the allegedly overpaid pension arrears (see G.I.E.M. S.r.l. and Others v.   Italy [GC], nos.   1828/06 and 2   others, §   302, 28   June 2018)?   The parties are invited to comment inter alia on the following aspects:   - Was the applicant eligible for an early-retirement pension between 2012 and 2014 and on the basis of which statutory provision? - How was the disputed amount of the excess pension payments calculated in the applicant’s case? - What was the amount of the applicant’s monthly pension during the period in which the 20 per cent deduction was applied? - When was the disputed amount of the excess pension payments reimbursed?