Recognition of Occupying Authority’s Acts Necessary for the Protection of Occupied Territories Residents’ Rights Shall not Legitimize Such Authority – the Supreme Court

Documents issued by occupying authority shall be recognized, if their non-recognition leads to grave violations or restrictions of citizens’ rights.

Herewith, the recognition of occupying authority’s acts in exceptional cases within limited context of the protection of occupied territories residents’ rights shall not legitimize such authority in any way.

A panel of judges of the Administrative Cassation Court within the Supreme Court underlined such position, having considered an administrative case under the claim of a citizen to Krasnoarmiiskyi Integrated Department of the Pension Fund of Ukraine in Donetsk oblast on the cancellation of a decision, obligation to carry out certain actions.

The plaintiff appealed the decision of the PFU ID as for the refusal to grant an age-related pension pursuant to Article 26 of the Law of Ukraine No. 1058-IV of 9 July 2003 “On Mandatory State Pension Insurance”. The defendant justified its refusal with the fact that pursuant to provided documents the plaintiff’s insurance period was less than necessary 15 years. The defendant did not include a part of periods of the plaintiff’s work into such period, since they were confirmed by archive certificates signed by functionaries of so-called “Donetsk People's Republic”; therefore, the defendant casted doubt on their veracity.

Court of first instance partially satisfied the claim and cancelled the decision of the PFU ID on the refusal to grant the plaintiff with the age-related pension. The court obliged the defendant to re-consider the plaintiff’s claim and to adopt the decision on granting the pension taking into account the archive certificates. Appeal court upheld the judgment of the first instance court.

Having disagreed with such judgments of previous instances courts, the defendant appealed them in the cassation court.

The Supreme Court adopted a judgment on the refusal to satisfy the cassation appeal on the following grounds.

Pursuant to Article 62 of the Law of Ukraine No. 1788-XII of 5 November 1991 “"On Pension Provision” and part 1 of Article 48 of the Labor Code of Ukraine, employment record book is the main document confirming the period of employment.

In case of lack of the employment record book or relevant records in it, the employment period shall be established on the grounds of other documents issued at the place of work, service, studying, as well as by archive institutions.

Regarding the defendant’s arguments noted in the objection to claim in the appeal and cassation appeal as for the fact that certificates issued on the temporarily occupied territory may not be taken into account, the courts of first and appeal instances reasonably based their judgments on the fact that decisions of the UN International Court of Justice known as «Namibian exceptions» should be applied to the noted legal relations: documents issued by occupying authority shall be recognized, if their non-recognition leads to grave violations or restrictions of citizens’ rights.

The panel of judges paid attention to the position of the European Court of Human Rights, which developed this principle in its case law, for example in Loizidou v. Turkey, Cyprus v. Turkey and Mozer v. the Republic of Moldova and Russia. “The obligation to disregard acts of de facto entities [of occupying authority] is far from absolute. Life goes on in the territory concerned for its inhabitants. That life must be made tolerable and be protected by the de facto authorities, including their courts; and, in the very interest of the inhabitants, the acts of these authorities related thereto cannot be simply ignored by third States or by international institutions, especially courts, including this one (ECHR). To hold otherwise would amount to stripping the inhabitants of the territory of all their rights whenever they are discussed in an international context, which would amount to depriving them even of the minimum standard of rights to which they are entitled”.

Herewith, in exceptional cases, the recognition of occupying authority’s acts within limited context of the protection of occupied territories residents’ rights shall not legitimize such authority in any way

Resolution of the Supreme Court of 22 October 2018 on the case No. 235/2357/17 – http://www.reyestr.court.gov.ua/Review/77310529.