23 March 2023
On Wednesday, March 22, 2023, at the plenary session, the Second Senate of the Constitutional Court of Ukraine adopted the Decision in the case upon the constitutional complaint of Ihor Lazurenko regarding the constitutionality of the provisions of Articles 70.2.4 and 70.2.5 of the Law of Ukraine "On Enforcement Proceedings" dated June 2, 2016 No. 1404-VIII (hereinafter - the Law No. 1404), and Articles 50.2.3 and 50.2.4 of the Law of Ukraine "On General Compulsory State Pension Insurance" dated July 9, 2003 No. 1058-IV (hereinafter – the Law No. 1058).
By this decision, the Court declared the provisions of Articles 70.2.4 and 70.2.5 of the Law No. 1404, and Articles 50.2.3 and 50.2.4 of the Law No. 1058 to be inconsistent with the Constitution of Ukraine (unconstitutional) in that they make it impossible to pay a pension - in the amount not lower than the subsistence minimum - which is the main source of living, allocated in the amount of subsistence minimum established by law.
The Court stated that the disputed provisions of the Laws Nos. 1404 and 1058, which set the permissible percentage deductions from the debtor's pensions for enforcement proceedings, result in the payment of a pension, which is the main source of subsistence, even in a lower amount than the subsistence minimum established by law. In this way, a person was deprived of minimum social benefits and protection from poverty through the enforcement of a judgment.
The subject of the right to constitutional complaint believes that the disputed provisions of the Laws Nos. 1404 and 1058 "allow to foreclose on the debtor's pension even if it is the only source of income (main source of subsistence) of the debtor and its amount is equal to the subsistence minimum for the person concerned". The complainant emphasises that "such a state of affairs <...> does not allow a person <...> to maintain an adequate standard of living and preserve human dignity, violates the right of a person <...> to social protection from the state"; and "the legitimate aim, which is the need to ensure the enforcement of a court decision, cannot prevail in a situation where an excessive burden (poverty) is imposed on a pensioner debtor and there is an encroachment on his/her human dignity".
In resolving the issues raised in the constitutional complaint, the Constitutional Court of Ukraine emphasised that "in a social state, human dignity is the core of the state's social policy, which should be implemented to protect people from poverty and guarantee them basic social protection, the minimum standard of which is the subsistence minimum, which should actually provide a person with a sufficient and decent standard of living. The social state is responsible for the protection of human dignity, ensuring a sufficient and decent standard of living and, for this purpose, is obliged to create appropriate and effective national legal mechanisms for the realisation of the constitutional rights to social protection and an adequate standard of living for a person and his or her family. "Human dignity will be denied if the state does not provide a person with at least minimal social benefits," the Court's decision reads.
The Constitutional Court pointed out that the positive obligation of the state to ensure unconditional protection of human dignity and minimum social protection is defined by the provisions of Article 46.3 of the Constitution of Ukraine. In particular, this means regulating the allocation and systematic payment of pensions, other types of social benefits and assistance that are the main source of subsistence, during certain periods determined by law, in an amount not lower than the subsistence minimum established by law for the relevant category of persons. This means that, as a result of such regulation, the amount of pensions, other social benefits and assistance paid to individuals, which is the main source of subsistence, may under no circumstances be lower than the subsistence minimum guaranteed by the state, even if deductions from these payments are made by the state to achieve a legitimate (legitimate) aim.
At the same time, the Constitutional Court emphasised that the legislator, in ensuring the exercise of the constitutional right to judicial protection and public order in the field of judicial proceedings (this also applies to the enforcement of court decisions), may determine restrictions on the exercise of other human rights and freedoms, in particular, their rights in the field of social protection, but it is obliged to regulate these issues by taking appropriate measures to achieve a fair balance between the protection of public interests and the constitutional human rights to social protection and an adequate standard of living for themselves and their families.
The Constitutional Court noted that the contested provisions of the Laws Nos. 1404 and 1058, which set the maximum permissible percentage deductions from the debtor's pensions for enforcement proceedings, which are set at the minimum amount - the subsistence minimum for persons who have lost their ability to work, as defined by law, make it impossible to pay a pension, which is the main source of subsistence, in an amount not lower than the subsistence minimum established by law. In this way, a person may be deprived of even minimal social benefits and protection from poverty through the enforcement of a decision.
The Constitutional Court of Ukraine concluded that the disputed provisions of the Laws Nos. 1404 and 1058 constitute a failure by the state to fulfill its positive obligation to ensure minimum social protection of a person in accordance with the provisions of Article 46.3 of the Constitution of Ukraine, which denies human dignity as an absolute value, levels the essence of the constitutional rights to social protection and an adequate standard of living for oneself and one's family, and therefore does not comply with the provisions of Articles 1, 3, 8, 21, 28, 46, and 48 of the Constitution of Ukraine.
