FIFTH SECTIONCASE OF SHYLINA v. UKRAINE(Application no. 2412/19)  JUDGMENT Art 1 P1 • Control of the use of property • Suspension of payment of a special monthly allowance to an internally displaced persons (IDP) in Ukraine for failure to comply with legislative requirement to open a bank account in a designated State bank • Impugned measure did not impose individual and excessive burden on applicant • States’ wide margin of appreciation in implementing social and economic policies • Interference lawful, pursued a legitimate aim and was not disproportionateArt 14 (+ Art 1 P1) • Discrimination • Applicant not in an analogous, or relevantly similar situation in comparison with other recipients of social benefits without IDP status • Special allowance intended for IDPs only • Possession or otherwise of bank account in a designated State bank not an identifiable characteristic or “status” within the meaning of Art 14 • Applicant did not demonstrate a difference in treatment as compared to other internally displaced persons • Manifestly ill-founded Prepared by the Registry. Does not bind the Court. STRASBOURG15 February 2024 FINAL 15/05/2024 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.In the case of Shylina v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Georges Ravarani, President, Lado Chanturia, Carlo Ranzoni, Mārtiņš Mits, María Elósegui, Kateřina Šimáčková, Mykola Gnatovskyy, judges,and Victor Soloveytchik, Section Registrar,Having regard to:the application (no. 2412/19) 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, Ms Elvira Danysivna Shylina (“the applicant”), on 20 December 2018;the decision to give notice to the Ukrainian Government (“the Government”) of the complaints under Article 1 of Protocol No. 1 to the Convention and Article 14 of the Convention taken together with Article 1 of Protocol No. 1 to the Convention and to declare inadmissible the complaint under Article 6;the parties’ observations;Having deliberated in private on 23 January 2024,Delivers the following judgment, which was adopted on that date:INTRODUCTION1. The present case concerns the applicant’s complaints, to be examined under Article 1 of Protocol No. 1 to the Convention, taken alone and in conjunction with its Article 14, that the suspension of payments to her on the basis of provisions of a by-law which stated that, as of 1 July 2016, social benefits to internally displaced persons (“IDPs”) could only be paid into accounts opened with a designated State bank, was discriminatory and interfered with her right to the peaceful enjoyment of her possessions.THE FACTS2. The applicant was born in 1973 and lives in Rivne. She was represented by Mr M. Glotov, Ms A. Martynovska and Mr M. Tarakhkalo.3. The Government were represented by their Agent, most recently Ms M. Sokorenko from the Ministry of Justice.4. The facts of the case, as submitted by the parties, may be summarised as follows.Background information5. After Russia occupied and claimed jurisdiction over the Autonomous Republic of Crimea and the City of Sevastopol (hereinafter “Crimea”) and owing to armed hostilities in certain parts of the Donetsk and Luhansk regions of Ukraine (see Ukraine v. Russia (re Crimea) (dec.) [GC], nos. 20958/14 and 38334/18, 16 December 2020, and Ukraine and the Netherlands v. Russia (dec.) [GC], nos. 8019/16 and 2 others, 30 November 2022), in 2014 and later many residents of those regions had to leave their homes and move to territories controlled by the Government. The majority of those who moved received the status of IDP which has been regulated by numerous legal acts. In particular, the legislation provided that IDPs were entitled to the same social benefits as other Ukrainian citizens, as well as to some special benefits to support them after their move. However, from 1 July 2016 onwards, in order to receive those benefits IDPs were required to have accounts with the Derzhavnyy Oshchadnyy Bank of Ukraine (the State Savings Bank – “Oshchadbank”) and to undergo periodic physical identification therein (see paragraphs 17, 19 and 20 below).Circumstances of the case6. Having left Crimea in November 2014, the applicant and her family moved to Government-controlled territory and were registered as IDPs. In view of their status they were entitled to a special monthly allowance to cover their living expenses, including housing and municipal services, on the basis of the Cabinet of Ministers’ Resolution no. 505 of 1 October 2014 (see paragraph 22 below). The applicant, as the family’s representative, had until then been receiving the allowance into an account held with a private bank, R.7. In April 2016 the payment of the allowance to the applicant was suspended, in the absence of information indicating to the authorities that she had opened an account with Oshchadbank. Furthermore, the Department of Labour and Social Protection of the Executive Committee of the Rivne City Council (“the Department”) informed her that it would not pay the allowance into an account with any bank other than Oshchadbank.8. The applicant challenged the Department’s decision to suspend the allowance. Her claims were granted by the courts as there had been no legal grounds for the suspension. The courts noted that until July 2016 the allowance could be paid through her current account with the bank R. According to the applicant, she received all the payments due to her for the period from April to June 2016 (2,400 Ukrainian hryvnas (around 80 euros) per month).9. From July 2016 the payment of the applicant’s allowance was again suspended on the basis of the Cabinet of Ministers’ Resolution no. 637 of 5 November 2014 (see paragraphs 19 and 20 below) because of her refusal to open an account with Oshchadbank.10. In July 2016 the applicant challenged the relevant provisions of Resolution no. 637 with subsequent amendments before the courts. She claimed that those provisions were discriminatory and were incompatible with other legal acts of higher legal force and should therefore be invalidated. The applicant referred, inter alia, to section 14 of the Law on Ensuring the Rights and Freedoms of Internally Displaced Persons of 2014 and section 6 of the Law on the Prevention of and Fight against Discrimination in Ukraine of 2012 (see paragraphs 17 and 18 below). She also relied on the Court’s case‑law in discrimination cases – in particular, the test the Court applies to establish whether discrimination took place. The applicant pointed to the difference in the treatment of people without IDP status who received benefit payments without having to open an account with Oshchadbank and people with IDP status who were required to open accounts with Oshchadbank in order to receive the allowance. She also submitted that there had been discrimination between the IDPs themselves, namely between those who had already had accounts with Oshchadbank and those who had not had such accounts.11. On 24 May 2017 the Kyiv Circuit Administrative Court dismissed the applicant’s claim in full. That court reasoned that the Cabinet of Ministers had acted within its competence when adopting the measure at issue and that the limitations in question had not deprived the applicant of any rights, but merely established the practical arrangements for implementing them. The first-instance court also concluded that the applicant’s claim related exclusively to her unwillingness to open an account with Oshchadbank and that she had not advanced any convincing arguments in support of her complaints about discrimination.12. The applicant appealed against that judgment, mainly reiterating her previous complaints. She also submitted that the first-instance court had failed to examine in detail her references to the Court’s case-law and in particular to the test it applies when examining discrimination cases.13. On 17 October 2017 the Kyiv Administrative Court of Appeal upheld the first-instance court’s judgment. It endorsed the latter’s findings regarding the lawfulness of the adoption of Resolution no. 637 and amendments to it. The appellate court also stated that the contested measure was aimed at “safeguarding the money due to socially unprotected [individuals] registered as internally displaced persons ...; ensuring the payment of pensions and other social benefits; the prevention of fraud and unlawful actions linked to the payment of such benefits and the prevention of the financing of terrorism”. The court further noted that the measure at issue not only ensured the payment of social benefits to IDPs through the designated bank but also did not prevent them from withdrawing the money and depositing it with another bank of their choice. Further, with reference to domestic law and the Court’s judgment in Pichkur v. Ukraine (no. 10441/06, 7 November 2013), the appellate court concluded that the Government’s actions were based on the domestic legislation and were not intended to discriminate on the basis of one’s place of residence. Lastly, the appellate court stressed that by Resolution no. 689 of 13 September 2017, Resolution no. 637 had been amended in order to provide that the payment of social benefits to the IDPs was to be conducted via Oshchadbank with the option that further transactions (money transfers, payment or withdrawal) could be made to any other bank in Government-controlled territory (see paragraph 21 below). In that connection, the appellate court considered that the Cabinet of Ministers had thus “eliminated the violation of the claimant’s rights”.14. The applicant lodged a cassation appeal in which she mainly repeated her arguments. She also argued that the amendments to Resolution no. 637 mentioned by the appellate court had not resolved the problem because IDPs still had to open an account with Oshchadbank.15. On 25 September 2018 the Supreme Court upheld the lower courts’ decisions against the applicant. That court endorsed their findings as to the lawfulness of the actions of the Cabinet of Ministers. On the matter of discrimination, the Supreme Court noted that the lower courts had rightly concluded that there were no signs of discrimination and that on the contrary, the impugned measures had been intended to ensure the special protection of IDPs.16. Meanwhile, in November 2017 the applicant requested the Department to close her personal file as a recipient of the allowance because she had become unemployed and was thus no longer entitled to receive it. The Department allowed her request, although the applicant still had not received the allowance payments for the period from July 2016 to November 2017 because of her refusal to open an account with the designated State bank. The Department subsequently resumed the payment of the allowance to the applicant’s family when her husband opened an account with Oshchadbank.RELEVANT LEGAL FRAMEWORKLaw no. 1706-VII of 2014 on Ensuring the Rights and Freedoms of Internally Displaced Persons17. The relevant provisions of the law in force at the material time read as follows:Section 1. Definition of [an] Internally Displaced Person“1. An internally displaced person is a citizen of Ukraine who permanently resides in Ukraine, [and] who was forced or who voluntarily left his or her place of residence as a result of, or in order to avoid, the negative consequences of armed conflict, temporary occupation, widespread manifestations of violence, violations of human rights or emergency situations of natural or anthropogenic origin....”Section 7. Ensuring the Exercise of the Rights of Registered Internally Displaced Persons to Employment, Pensions, Compulsory State Social Insurance, Social Services and Education“1. Registered internally displaced persons shall enjoy rights to undertake employment; to a pension; to compulsory state social insurance in case of unemployment, temporary disability, or a disability caused by industrial accidents or occupational diseases; and to receive social services in accordance with the legislation of Ukraine....2. Ukraine takes all possible measures aimed at resolving issues related to the social protection of internally displaced persons, including the resumption of social benefit payments [due to them].3. Elderly citizens, disabled people, disabled children and any other persons in difficulty who are registered as internally displaced persons are entitled to receive social benefits in accordance with the law currently in force at the place of registration of their actual place of residence....”Section 14. Prohibition of discrimination“1. Internally displaced persons shall enjoy the same rights and freedoms in accordance with the Constitution, laws and international treaties of Ukraine as other citizens of Ukraine residing in Ukraine. They shall not be discriminated against in the exercise of any rights and freedoms on the ground that they are internally displaced persons.”Law no. 5207-VI of 2012 on the Prevention of and the Fight against Discrimination in Ukraine18. The relevant parts of this Law read as follows:Section 6. Prohibition of discrimination“1. In accordance with the Constitution of Ukraine, the generally recognised principles and norms of the international law and the international treaties to which Ukraine is a party, all persons, regardless of their specific characteristics, have equal rights and freedoms, as well as equal opportunities for their exercise.2. Any form of discrimination on the part of the State authorities, the authorities of the Autonomous Republic of Crimea, local self-government authorities, their officials, legal entities of public and private law, as well as natural persons specified in section 5 of this Law shall be prohibited.3. Actions that do not restrict the rights and freedoms of others and do not impede the exercise thereof shall not be considered discrimination, nor shall those that do not give undue advantage to persons and/or groups of persons on certain grounds to which affirmative action applies, namely:- special protection by the State of certain categories of persons in need of such protection;- implementation of measures aimed at preserving the identity of separate groups of persons, if such measures are necessary;- granting privileges and compensation to certain categories of persons in cases provided for by the law;- imposing State social guarantees for certain categories of citizens;- special requirements provided for by legislation as to the exercise of certain rights.”Resolution of the Cabinet of Ministers no. 637 of 5 November 2014 on welfare payments to persons displaced from the temporarily occupied territory of Ukraine and the anti-terrorist operation area (with amendments)19. The relevant provisions of section 1 of Resolution no. 637, as worded at the time of its adoption in 2014, stated that the social benefits due to IDPs were to be paid at the place of such a persons’ registration, which should be confirmed by the IDP certificate.20. After the amendments introduced by Resolution no. 167 of 14 March 2016 and Resolution no. 365 of 8 June 2016, it was envisaged that from 1 July 2016 onwards the payment of all social benefits to the IDPs should be made solely through the accounts and the network of offices and devices of Oshchadbank. In order to identify those recipients of social benefits who are IDPs and to ensure the payment of these benefits to them, payment cards were to be issued. IDPs had to undergo physical identification in an Oshchadbank office every six months on the first two occasions, and every twelve months subsequently. If an IDP failed to undergo the identification, the bank was required to suspend outgoing transactions from the person’s current account and to inform the social security department which had issued the IDP registration certificate and the Ministry of Finance.21. The amendments introduced by Resolution no. 689 of 13 September 2017 provided that while all social welfare payments to IDPs still had to be made via Oshchadbank, IDPs could also receive cash and carry out non-cash transactions through the network of offices and devices of any bank located on Government-controlled territory.Resolution of the Cabinet of Ministers no. 505 of 1 October 2014 on providing a monthly targeted allowance to internally displaced persons to cover their living expenses, including housing and municipal services (with amendments)22. Resolution no. 505 approved the Procedure for providing a monthly targeted allowance to IDPs to cover the costs of accommodation, including housing and municipal services. The relevant provisions of the Procedure, as worded at the material time, provided that the allowance for IDPs was to be granted to the family and paid to one of its members, subject to written consent in any form from the other family members. Oshchadbank was designated as an authorised bank, meaning that the allowance would be credited to accounts opened by IDPs with it. Cash benefits were to be paid by transfer to a current account opened with the Oshchadbank in accordance with the Procedure for the payment of social benefits through current accounts in banks.THE LAWALLEGED VIOLATION OF ARTICLE 1 of Protocol no. 1 to THE CONVENTION23. The applicant complained that the suspension of the allowance payments interfered with her right to peaceful enjoyment of her possessions and created an excessive burden for her. The applicant relied on Article 8 of the Convention and Article 1 of Protocol No. 1. The Court considers that the complaint falls to be examined solely under the latter provision, which reads as follows:“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.”Admissibility24. The Government did not raise any objections in respect of the admissibility of the applicant’s complaints under Article 1 of Protocol No. 1 to the Convention.25. The Court notes that these complaints are neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.MeritsThe parties’ submissions(a)   The applicant26. The applicant did not deny that the interference with her property right had some legal basis. However, according to the applicant, the relevant provisions of the resolutions of the Cabinet of Ministers were not sufficiently clear and were incompatible with other legal acts of higher legal force. More specifically, in accordance with Resolution no. 505, a failure to open an account with Oshchadbank was not among the grounds for the termination of the allowance payments. Moreover, the resolutions at issue did not stipulate that the refusal by an IDP to open a new account with Oshchadbank (assuming that he or she did not already have one) would lead to the deprivation of social benefits. Thus, the applicant considered that the interference with her right to the peaceful enjoyment of her possessions was not based on law.27. The applicant pointed out that the Government had failed to provide any data on fraud cases to support their claims that the stated goals of the relevant resolutions of the Cabinet of Ministers were being achieved; nor had they explained how the obligation to receive social benefits only through Oshchadbank would counteract fraudulent schemes or illegal actions. The applicant concluded that the relevant restrictions were intended not to protect the rights of IDPs, but to significantly reduce the number of people receiving the allowance, which she claimed was confirmed by statistics from competent public authorities.28. The applicant also stated that the Government had failed to examine other, less intrusive alternatives to the measure at issue or to explain why the supposed State control over social payments to IDPs could not be ensured by other banks operating in Ukraine (including other State-owned ones) or by the relevant State authorities, instead of Oshchadbank, which, according to the applicant, offered a very low level of services and protection to its clients. The applicant emphasised that because of her refusal to open an account with Oshchadbank payment of the allowance, an important means of support for her family, had been suspended. That had been an excessive reaction which had severely impacted her family. In particular, it had made it significantly harder to cope with their living costs, especially given that they did not own their housing, and that her daughter was a minor and her husband had a disability.(b)   The Government29. The Government noted that the requirement that IDPs receive their social benefits only through accounts opened with Oshchadbank had been provided for by national legislation, namely by the respective provisions of the resolutions of the Cabinet of Ministers (see paragraphs 20 and 21 above). According to the Government, the by-law in question was sufficiently accessible and foreseeable. Therefore, they considered that the interference with the applicant’s right to the peaceful enjoyment of possessions was in line with the requirements of the principle of “lawfulness”.30. Referring to an explanatory note on the contested Cabinet of Ministers resolutions, the Government drew the Court’s attention to the aims of the legislative requirement that the payment of social benefits to IDPs could only be made via accounts opened with a designated State bank, namely “safeguarding the money due to socially unprotected [individuals] registered as internally displaced persons ...; ensuring the payment of pensions and other social benefits; the prevention of fraud and unlawful actions linked to the payment of such benefits and the prevention of the financing of terrorism”. Relying on certain media publications and information obtained from the law‑enforcement authorities, the Government also pointed to the practice, which it submitted was widespread, of receiving social benefits for deceased IDPs and to the illegal misappropriation of budget funds by people pretending to be IDPs who repeatedly travelled back and forth between the temporarily occupied territory of Ukraine and Government-controlled territory. It was for this reason that it had been decided to make welfare payments to IDPs only through accounts with Oshchadbank, the offices of which registered IDPs were obliged to attend for physical identification once every six months on the first two occasions and every twelve months thereafter (see paragraph 20 above). The Government concluded that the relevant legislative amendments had been introduced not to limit IDPs, but to ensure the proper payment of social benefits due to them and State control over those payments via Oshchadbank. Thus, in the Government’s view, the requirement that IDPs receive social benefits through a designated State bank pursued a legitimate aim.31. Finally, the Government pointed out that the obligation for IDPs to open an account with Oshchadbank in order to receive social benefits could not have placed an excessive burden on the applicant since the obligation served as a kind of safeguard and was a necessary step to ensure the further payment of social benefits. In particular, the Government emphasised that she had refused to open an account with the designated State bank to receive the allowance for her family and that her entitlement to the allowance had subsequently ended because she had become unemployed. The payment of the allowance to the applicant’s family had nevertheless been resumed when her husband had opened an account with Oshchadbank (see paragraph 16 above).The Court’s analysis32.

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