FIFTH SECTIONCASE OF SHEBALDINA v. UKRAINE(Application no. 75792/11)      JUDGMENT STRASBOURG18 June 2020 This judgment is final but it may be subject to editorial revision.In the case of Shebaldina v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Mārtiņš Mits, President, Ganna Yudkivska, Lәtif Hüseynov, judges,and Anne-Marie Dougin, Acting Deputy Section Registrar,Having regard to:the application 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 Alla Petrivna Shebaldina (“the applicant”), on 1 December 2011;the decision to give notice of the complaints under Article 1 of Protocol No. 1 and Article 13 of the Convention to the Ukrainian Government (“the Government”) and to declare inadmissible the remainder of the application;the parties’ observations;Having deliberated in private on 26 May 2020,Delivers the following judgment, which was adopted on that date:INTRODUCTIONThe present case concerns the applicant’s complaint under Article 1 of Protocol No. 1 regarding the domestic courts’ refusal to award her a social allowance, to which she was entitled under domestic law. The applicant also raised a related complaint under Article 13 of the Convention.THE FACTS1. The applicant was born in 1959 and lives in Bilgorod-Dnistrovskyy, Odessa Region. The applicant, who had been granted legal aid, was represented by Mr Y. Boychenko, a lawyer practising in Strasbourg, France.2. The Government were represented by their Agent, Mr I. Lishchyna.3. The facts of the case, as submitted by the parties, may be summarised as follows.4. From 1988 until 2006 the applicant was employed as a teacher in a State institution, a specialised child-care centre (“the centre”). Under Article 57 of the 1991 Education Act, as in force at the material time, she was entitled to seniority and recreation allowances. However, between 1997 and 2002 she did not receive those allowances.5. On 3 December 2007 the applicant lodged a claim with the domestic courts against the centre and the regional department of the State Treasury for the recovery of the arrears in the payment of the allowances (2,244.30 Ukrainian hryvnias (UAH)), an index-linked adjustment (amounting to UAH 4,336.17), compensation for non-pecuniary damage (UAH 10,000), and the recovery of costs and expenses (UAH 1,484).6. On 28 October 2010 the Bilgorod-Dnistrovskyy Town Court (“the Town Court”) partly allowed the claim, found that the applicant was entitled to the seniority and recreation allowances and that the centre was in arrears in respect of the sum due to her, and ordered it to pay her UAH 2,244.30 in arrears, UAH 4,336.17 (by way of an index-linked adjustment), and UAH 1,400 in legal costs. The court held that since the failure on the part of the centre to pay to the applicant the above arrears had been due to a lack of funding from the State budget, the centre was in turn entitled to lodge a claim with the courts for the recovery of the arrears in question from the State budget. The applicant’s claim for compensation for non-pecuniary damage was dismissed.7. On 29 April 2011 the Odessa Regional Court of Appeal (“the Court of Appeal”) quashed the above judgment and dismissed the applicant’s claim. It found that (i) from 1988 until 2006 the applicant had worked in the centre, which under domestic law had dual status as a healthcare and an educational institution, and (ii) in 1997-2002 she had not received the allowances due to her under Article 57 of the Education Act; the resulting arrears owed to her amounted to UAH 2,244.30.[1] It furthermore held that under the 2004 Act on the Restructuring of Indebtedness under Article 57 of the Education Act (“the 2004 Act”), payments provided for by Article 57 in respect of the relevant period were recognised as a debt to be paid by the State from the State budget. The arrears due to the applicant recovered from the centre by the Town Court had therefore constituted a debt to be paid from the State budget and not by the centre, which had not received the relevant funds from the budget. As regards the regional department of the State Treasury, the court found that it was not a proper defendant, suggesting that its authority did not extend to that of making the above-mentioned payments. Lastly, the court dismissed the part of the applicant’s claim relating to the index-linking of the arrears and the compensation for non-pecuniary damage, stating that such payments were not provided by the 2004 Act.8. On 21 July 2011 the Higher Specialised Civil and Criminal Court declined to examine the merits of an appeal lodged by the applicant on points of law.relevant legal frameworkDomestic law9. Article 57 of the 1991 Education Act (repealed on 5 September 2017) provided at the material time for a seniority allowance for teachers, depending on the length of employment, as well as a recreation allowance.Domestic case-law10. The applicant provided copies of decisions delivered by the Court of Appeal dated 12 February 2004 and 22 February 2011, by which it had upheld judgments given by the Town Court allowing the claims of two employees of the centre against it for the recovery of seniority and recreation allowance arrears due to them under Article 57 of the Education Act for periods between 1997 and 2003. The Court of Appeal held that the Education Act did not provide that the payment of the allowances under Article 57 was conditional on the availability of the relevant funds in the State budget and ordered the centre to make the payments to the claimants.THE LAWALLEGED VIOLATION OF ARTICLE 1 of protocol no. 111. The applicant complained under Article 1 of Protocol No. 1 that the courts’ refusal to award her the above-mentioned arrears in the seniority and recreation allowances had amounted to a breach of her property rights. The above provision 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.”The parties’ submissions12. The Government submitted that, even if the Court of Appeal had agreed with the Town Court as regards the part relating to the awarding the claimed allowance arrears to the applicant, she would still have been awarded UAH 2,244.30 (amounting to, according to the Government, EUR 204). In their view, that amount was beyond the threshold of “significant disadvantage” within the meaning of Article 35 of the Convention. They furthermore submitted that the applicant had lodged her application on 1 February 2012 – that is to say more than six months from the date of the final domestic decision. Lastly, the Government argued that domestic legislation (as interpreted and applied by the courts in the present case) showed that the applicant, as a pedagogical employee of a healthcare institution, had not been entitled to the claimed allowances, because that right had only been provided for in respect of pedagogical employees of educational institutions. The domestic legislation had not therefore contained any provisions that could lead to the conclusion that the applicant had had a right to receive – or at least a legitimate expectation of receiving – the claimed allowances.13. The applicant emphasised that the unpaid allowances had constituted 30% of her monthly salary, which had not therefore constituted a negligible amount for her – especially given the economic situation in the country during the period from 1997 until 2002. Furthermore, she submitted that the Government had not specified the date on which the amount of unpaid allowances had been equivalent to EUR 204. However, in 2002 (the end of the period during which the amount was not paid) UAH 2,244.30 had amounted to EUR 450. The applicant furthermore noted that she had lodged the application on 1 December 2011 by sending a letter setting out the subject matter of her future application, as envisaged by the Rules of Court at the material time. She had therefore complied with the six-month rule. Lastly, she submitted that she had had the “possession” under Article 1 of Protocol No. 1, as her right to the allowances in question had been provided by domestic law. Moreover, both the Town Court and the Court of Appeal had confirmed that the State had guaranteed the payment of the above allowances and that the fact that it had not been paid amounted to an unpaid debt on the part of the State. The only reason for the Court of Appeal to reject her claim had been a lack of budgetary funds. However, the State could not refer to that lack of funds as an excuse for not honouring its obligations.The Court’s assessmentAdmissibility14. As to the Government’s objection that the applicant had not suffered a significant disadvantage, given that the amount that she could have claimed had amounted to UAH 2,244.30 (the equivalent of EUR 204), the Court notes that the question of whether the applicant had suffered a “significant disadvantage” can be determined with reference to criteria such as the financial impact of the matter in dispute or the importance of the case for the applicant (see Korolev v. Russia (dec.), no. 25551/05, ECHR 2010). The Court does not find any indication in the case file that the amount that the applicant sought to recover, which represented 30% of her monthly salary, was insignificant for her. Nor did the Government claim otherwise. Moreover, as noted by the applicant, the equivalent of the above amount in euros would have been much higher in 2002, had she received the allowance arrears on time (see paragraph 13 above). Indeed, the Court considers that the applicant cannot be blamed for the fact that after a lengthy period, during which the authorities failed to pay her the arrears that they owed, the exchange rate between the euro and the Ukrainian hryvnia has significantly changed and the relevant equivalent in euros has become much lower.

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