The Court Declared the Norm of the Law by which the Verkhovna Rada of Ukraine Authorised the Cabinet of Ministers of Ukraine to Determine the Minimum Amount of Disability Pension for Citizens of Ukraine Affected by the Chornobyl Disaster Unconstitutional
On April 7, 2021, the Second Senate of the Constitutional Court of Ukraine adopted the Decision upon the constitutional complaint of Oleksandr Diachenko and other citizens of Ukraine (hereinafter - the complainants, applicants) on the compliance of paragraph 4.13 of Section I of the Law of Ukraine "On Amendments and Repeal of Certain Legislative Acts of Ukraine" of December 28, 2014 No.76–VIII with the Constitution of Ukraine (constitutionality).
The complainants are victims of the Chornobyl disaster and receive state disability pensions as a result of an injury or illness caused by the Chornobyl disaster.
The applicants requested the Court to consider the constitutionality of paragraph 4.13 of Section I of the Law of Ukraine “On Amendments and Repeal of Certain Legislative Acts of Ukraine” of December 28, 2014 №76–VIII (hereinafter - the Law No.76–VIII), according to which the text of Article 54 of the Law of Ukraine “On the Status and Social Protection of Citizens Affected by the Chornobyl Disaster” of February 28, 1991 No.796–XII (hereinafter – the Law No.796–XII) reads as follows:
"Disability pensions due to injury or illness, and survivors' pensions due to the Chornobyl disaster may be granted at the request of a citizen from earnings earned for work in the exclusion zone in 1986-1990, in the amount of compensation for actual losses, which is determined in accordance with the law.
In all cases, the average monthly salary for calculating the pension for work in the exclusion zone in 1986-1990 may not exceed 3.0 thousand karbovantsiv.
The conditions, procedure for granting and minimum amounts of disability pension due to injury or illness, and pension in connection with the loss of a breadwinner as a result of the Chornobyl disaster are determined by acts of the Cabinet of Ministers of Ukraine on relevant issues."
The Constitutional Court of Ukraine declared Article 54.3 of the Law No.796-XII as amended by the Law No.76-VIII on authorisation by the Verkhovna Rada of Ukraine of the Cabinet of Ministers of Ukraine to determine by its acts the minimum amounts of disability pension caused by injury or illness and pension in connection with the loss of a breadwinner as a result of the Chornobyl disaster as such that does not comply with the provisions of Articles 3, 8, 16, 22 and 50 of the Constitution of Ukraine (unconstitutional).
In its decision, the Court stated that the Constitution's obligation on the state to protect persons affected by the Chornobyl disaster indicates the special status of such persons in the context of their social protection and health care, and thus determines their enhanced social protection.
Having carried out a comparative analysis of Article 54.4 of Law No.796–XII as amended by the Law No.230/96–VR and paragraphs 11, 12 of the Procedure for Calculating Pensions for Victims of the Chornobyl Disaster, approved by the Resolution of the Cabinet of Ministers of Ukraine "On Increasing the Level of Social Protection of Citizens Affected by the Chornobyl Disaster" of November 23, 2011 No.1210 as amended (hereinafter - the Procedure), the Constitutional Court of Ukraine concluded that the Cabinet of Ministers of Ukraine had determined significantly lower minimum state pensions for persons covered by Article 54 of the Law No.796–XII, than they were guaranteed at the legislative level by paragraph four of this article of the Law No.796–XII as amended by the Law No.230/96–VR.
The Constitutional Court of Ukraine also noted that the state may change the legislation in the field of social protection of victims of the Chornobyl disaster, but in case of such regulation it should not resort to restrictions that violate the essence of their individual rights, and the achieved level of social protection be saved. However, the state, represented by the Cabinet of Ministers of Ukraine, determined in the Procedure the minimum state pension for disability caused by injury or illness, and the pension in connection with the loss of a breadwinner due to the Chornobyl disaster in significantly less amount than guaranteed by the Law No.796–XII as amended by the Law No.230/96–VR, leveling the very essence of the rights and guarantees defined by Articles 3, 16 and 50 of the Constitution of Ukraine, which is in fact a failure of the state to fulfill its positive obligation to provide this category of persons with a guaranteed level of social protection.
In its decision, the Court emphasised that the applicants, in addition to being victims of the Chornobyl disaster, belonged to a separate, most socially vulnerable group of such persons, namely persons with disabilities.
The Constitutional Court of Ukraine stressed that the Chornobyl disaster is the world's largest man-made environmental catastrophe in the history of nuclear energy in terms of the number of dead, victims of its consequences, the scale of radioactive contamination of territories, especially in Ukraine. The Chornobyl disaster had a particularly devastating effect on the lives, physical and psychological health of the participants in the liquidation of the Chornobyl disaster and the victims of the Chornobyl disaster, who were diagnosed with a disability (including children with disabilities).
The Court concluded that in accordance with Articles 3, 16 and 50 of the Constitution of Ukraine in their interconnection, the state has a positive obligation to provide enhanced social protection to persons with disabilities from among those affected by the Chornobyl disaster. The positive duty of the state in this case essentially requires it to take affirmative action measures, given that it is the duty of the state to protect one of the most vulnerable segments of the population that needs it.
Separation by the legislator of persons with disabilities from among the participants in the liquidation of the Chornobyl nuclear power plant, as well as from the victims of the Chornobyl disaster from the category of persons affected by the Chornobyl disaster, persons in need of special treatment by the state, and the introduction of a state pension for this category of persons, as well as the establishment at the level of law of its minimum amounts should be considered as a manifestation of the state's measures of affirmative action for these persons.
The Constitutional Court of Ukraine also mentioned that the social obligations of the state to citizens who lost their health due to the fact that the state once obliged them to take part in overcoming the consequences of the Chornobyl disaster which is a global catastrophe, and who suffered disabilities as a result of such actions, as well as to persons with disabilities from among the victims of this disaster should not depend on the financial capabilities of the state and its economic situation. Therefore, social guarantees, including the minimum level of social protection for this category of persons, should be established by the legislator. The Cabinet of Ministers of Ukraine, as the state body authorised to develop a draft law on the State Budget of Ukraine and ensure the implementation of the relevant law approved by the legislator, shall determine the conditions and procedure for assigning the statutory minimum state pension for this category of persons.
The Court stated that Article 54.3 of the Law No.796–XII, as amended by the Law No.76–VIII, authorising the Cabinet of Ministers of Ukraine to determine by its acts the minimum amount of disability pension due to injury or illness and pension due to loss of breadwinner as a result of the Chornobyl disaster contradicts Articles 3, 8, 16, 22 and 50 of the Constitution of Ukraine.
The Constitutional Court of Ukraine also stated that the state must compensate the citizens of Ukraine covered by Article 54 of the Law No.796–XII the damage caused to them as a result of validity of Article 54.3 of the Law No.796–XII as amended by the Law No.76–VIII, and is obliged to develop a procedure (legal mechanism) for compensation for such damage.
The Constitutional Court of Ukraine, guided, in particular, by the provisions of Articles 91 and 97 of the Law of Ukraine “On the Constitutional Court of Ukraine”, postponed for three months the repeal of Article 54.3 of the Law No.796–XII as amended by the Law No.76–VIII on the authorisation by the Verkhovna Rada of Ukraine of the Cabinet of Ministers of Ukraine to determine by its acts the minimum amount of disability pension due to injury or illness and pension in connection with the loss of a breadwinner due to the Chornobyl disaster, as well as established the procedure for implementing the Decision.
