FIFTH SECTIONCASE OF VYELYEV v. UKRAINE(Application no. 57211/13)  JUDGMENT This version was rectified on 25 January 2022under Rule 81 of the Rules of Court  STRASBOURG20 January 2022 This judgment is final but it may be subject to editorial revision.In the case of Vyelyev v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Mārtiņš Mits, President, Jovan Ilievski, Ivana Jelić, judges,and Martina Keller, Deputy Section Registrar,Having regard to:the application (no. 57211/13) 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 Ivanovych Vyelyev (“the applicant”), on 27 August 2013;the decision to give notice of the application to the Ukrainian Government (“the Government”);the parties’ observations;Having deliberated in private on 16 December 2021,Delivers the following judgment, which was adopted on that date:INTRODUCTION1. The case concerns the quashing of a final judgment delivered in the applicant’s favour. It raises issues under Article 6 of the Convention and Article 1 of Protocol No. 1.THE FACTS2. The applicant was born in 1952 and lives in Zaporizhzhya. He was represented before the Court by Ms A. Velmozhko, a lawyer practising in Zaporizhzhya.3. The Government were represented by their Agent, Mr I. Lishchyna, of the Ministry of Justice.4. The facts of the case, as submitted by the parties, may be summarised as follows.5. On 27 October 2010 the applicant instituted proceedings in the Komunarskyy District Court of Zaporizhzhya (“the District Court”) against the Komunarskyy District Department of the Pension Fund in Zaporizhzhya (“the defendant”), seeking to have his pension recalculated in his favour as from 1 June 2010 on the basis of the average national wage.6. On 28 December 2010 the District Court allowed the applicant’s claim. The case was examined by way of an abridged procedure, pursuant to Article 183-2 of the Code of Administrative Justice.7. On 7 September 2011 the Dnipropetrovsk Administrative Court of Appeal (“the Court of Appeal”) upheld the findings of the District Court and ordered that the applicant’s pension be recalculated on the basis of the average national wage. This decision was final and not subject to further appeal (see paragraph 14 below).8. Following the above-mentioned judgment given by the Court of Appeal, the applicant’s pension was recalculated by the defendant, and from 25 October 2011 to 15 July 2013 (see paragraph 12 below), he accordingly received his pension payments in the increased amount.9. In the meantime, on 28 October 2011, the defendant lodged a cassation appeal with the Higher Administrative Court (“the HAC”) against the judgment of 7 September 2011, arguing that the lower courts had wrongly interpreted and applied the substantive law.10. On 7 November 2011 the HAC decided to open cassation proceedings in the case.11. On 4 July 2013 the HAC found that the lower courts had misapplied the substantive law. In particular, it found that the relevant law was to be interpreted in such a way that the amount of the average national wage relied on by the applicant should have been used to calculate his pension when the pension had first been awarded, and not for the purpose of its subsequent recalculation. The HAC therefore allowed the defendant’s cassation appeal, quashed the judgment of 7 September 2011 and rejected the applicant’s claim.12. On 15 July 2013 the amount of the applicant’s pension was recalculated in compliance with the judgment given by the HAC on 4 July 2013 and, until 1 October 2017 (when the pension was recalculated again in accordance with a new law), he received a lower pension amount than the one paid as a result of the final judgment of 7 September 2011 in his favour.RELEVANT LEGAL FRAMEWORKCode of Administrative Justice of 6 July 200513. The relevant extracts of the Code of Administrative Justice, as in force at the material time, provided for the following.14. Article 183-2 provided, inter alia, that claims concerning pension payments were to be considered by way of an abridged procedure without the parties being summoned. The judgment could be appealed against before a court of appeal. The decision of the court of appeal would be final and not subject to further appeal.15. Pursuant to Article 211, parties to the proceedings were entitled to lodge a cassation appeal against judgments of the court of appeal, except in the cases provided for in the Code.16. Article 214-5 provided that a judge rapporteur was to refuse an application for a cassation appeal if, inter alia, the case was not amenable to cassation review.THE LAWQuashing of the final judgment17. The applicant complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 that by overturning the final and enforceable judgment given by the Court of Appeal on 7 September 2011 in his favour, the Higher Administrative Court had acted in breach of the principle of legal certainty and, as a result, had deprived him of the higher pension payments he had been receiving following that final judgment. The relevant parts of those provisions read as follows:Article 6 § 1“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time... by [a] ... tribunal ...”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 ...”Arguments by the partiesThe Government18. The Government alleged that the applicant’s complaint of a breach of the principle of legal certainty had been lodged outside the six-month time‑limit, which, in their opinion, had started running from the adoption of the ruling by the HAC of 7 November 2011 on the opening of the cassation proceedings. The applicant had been aware of the opening of the cassation proceedings, but had not objected to or participated in them. In any event, his complaint had been unsubstantiated, since the HAC had reasonably quashed the final judgment in order to correct judicial errors and miscarriages of justice, namely the incorrect application of substantive law by the lower courts.19. Lastly, the Government agreed that the judgment of 7 September 2011 had constituted a “possession” within the meaning of Article 1 of Protocol No. 1 until it had been quashed by the HAC. However, the applicant had failed to initiate enforcement proceedings in that regard while the judgment had still been in force, which implied that the issue had been of no importance to him. The applicant20. The applicant alleged that the ruling by the HAC of 7 November 2011 on the opening of the cassation proceedings referred to by the Government had been of an interim character and could not be considered to be final for the purposes of Article 6 and Article 35 § 1 of the Convention. The outcome of the application for a cassation review had not yet been determined and the proceedings could have been closed at any moment. In any event, he had not been aware of the opening of the cassation proceedings and had not received any notifications from the HAC in that respect. Therefore, the HAC’s ruling of 7 November 2011 could not have triggered the running of the six-month period, which should have been counted from the date on which the final judgment in the applicant’s favour had ultimately been quashed.21. There had been no need for the applicant to institute any enforcement proceedings in respect of the final judgment of 7 September 2011, since the pension authority had complied with the judgment voluntarily and had been paying him the higher pension payments until 15 October 2013, when his pension amount had been recalculated and decreased following the quashing of the above-mentioned judgment by the HAC.22. The quashing of the final and enforceable judgment delivered in his favour following a cassation appeal which had no basis in law had irremediably undermined legal certainty and had deprived him of the right to receive the pension payments to which he had been entitled.The Court’s assessmentAdmissibility(a)   Six-month rule23. The parties disagreed as to the starting-point from which the six‑month period was to be calculated (see paragraphs 18 and 20 above).24. The Court notes that in the specific circumstances of the present case, even assuming that the six months were to be counted from the date when the HAC had accepted for examination the cassation appeal against the final judgment and opened the proceedings, the Government provided no evidence that the applicant had been duly notified of the HAC’s ruling on the matter. Contrary to the Government’s assertions, the domestic case-file material provided to the Court by the Government contains no proof that any document informing the applicant of the opening of the cassation proceedings had been dispatched to him or had ever even been issued.25.

Article of the Convention at issue: Article 1
Outcome: violation