October 12, 2022
On October 12, 2022, the Constitutional Court of Ukraine deliberated the case upon the constitutional complaints of Volodymyr Zhydenko and Viktor Petrenko regarding the compliance of the provisions of Article 2 of the Law of Ukraine “On Measures for Legislative Support of Pension System Reform” dated July 8, 2011 No. 3668-VI (hereinafter referred to as “ Law No. 3668”) (regarding social guarantees for defenders of Ukraine) with the Constitution of Ukraine (constitutionality) and delivered a Decision whereby recognized the disputed provisions of Law No. 3668 as unconstitutional.
Zhydenko V.V. and Petrenko V.O. believe that the contested provisions of Law No. 3668 contradict Articles 8.1, 8.2, 17.5, 22.3, 46.1, 46.2 of the Constitution of Ukraine.
Zhydenko V.V. as a participant of the anti-terrorist operation, “a combatant who served in the national police as an officer and was released from service” believes that the “limitation of the maximum amount of pensions” established in Article 2 of Law No. 3668 violates his human rights guaranteed by the Constitution of Ukraine, content and scope of which cannot be narrowed (Article 22 of the Constitution of Ukraine).
V.O. Petrenko, who is a member of an armed forces, a member of the ATO, a combatant, released to the reserve, claims that the provisions of Article 2 of Law No. 3668 applied in the court decisions in his case led to a significant narrowing of the content and scope of his existing rights and freedoms as a person who has the right to pension in accordance with the norms of the previous legislation of Ukraine, since during his military service the maximum pension limit was not established at the legislative level.
When delivering the Decision, the Court took into account its own legal positions, which are significant for the deliberation of this case, and developed them in this Decision.
The Constitutional Court of Ukraine considers that constitutional obligation of the state to grant a special legal status to citizens of Ukraine who are in service in the Armed Forces of Ukraine and in other military formations, members of their families, as well as to persons who with arms defend the sovereignty, territorial integrity and inviolability of Ukraine during the aggression of the Russian Federation against Ukraine, launched in February 2014, with the provision of high-level social guarantees under this status follows from the content of parts one, two, five of Article 17 of the Constitution of Ukraine in their conjunction with Article 46.1, Article 65.1 of the Basic Law of Ukraine.
The Constitutional Court of Ukraine examined the compliance with the Constitution of Ukraine of the establishment of the maximum amount of the pension assigned (enumerated) according to the Law of Ukraine “On Pension Provision of Persons Released From Military Service and Certain Other Persons” dated April 9, 1992 No. 2262-ХІ (hereinafter referred to as “Law No. 2262”) and concluded that pension provision as the main component of high-level social guarantees for citizens of Ukraine who are in service in the Armed Forces of Ukraine and in other military formations, as well as persons who with arms defend the sovereignty, territorial integrity and inviolability of Ukraine under the time of aggression of the Russian Federation against Ukraine, which began in February 2014, cannot be cancelled or limited.
In the Decision, the Court emphasised that the disputed provisions of Law No. 3668, which limit the maximum amount of the pension assigned (enumerated) under Law No. 2262, in particular to persons to whom the provisions of Article 17.5 of the Constitution of Ukraine are extended, do not correspond to the essence of high-level social guarantees for such persons.
By this decision, the Constitutional Court of Ukraine recognized as unconstitutional the provisions of Article 2 of Law No. 3668, which extend their effect to Law of Ukraine No. 2262, as they do not provide high-level social guarantees that must be provided by the state in accordance with the special legal status of citizens of Ukraine who are in service in the Armed Forces of Ukraine and in other military formations, as well as persons who with arms defend the sovereignty, territorial integrity and inviolability of Ukraine during the aggression of the Russian Federation against Ukraine, which began in February 2014.
The Constitutional Court of Ukraine also noted that the provisions of Law No. 3668, recognized as unconstitutional, lose their effect six months after delivering this Decision by the Constitutional Court of Ukraine and obliged the Verkhovna Rada of Ukraine to bring the normative regulation into compliance with the Constitution of Ukraine and this Decision.
The Decision of the Constitutional Court of Ukraine is binding, final and may not be appealed.
