On July 26, 2023, the Second Senate of the Constitutional Court of Ukraine, at the public part of the plenary session in the form of written proceedings, deliberated the case upon the constitutional complaint of Yurii Yaroshenko regarding the constitutionality of the first sentence of the sixth paragraph of Article 86.15 of the Law of Ukraine “On the Prosecutor’s Office” dated October 14, 2014, No. 1697-VII as amended (hereinafter referred to as the Law No. 1697), the first sentence of Article 2 of the Law of Ukraine “On Measures to Legislatively Ensure the Reform of the Pension System” dated July 8, 2011, No. 3668-VI as amended (hereinafter referred to as the Law No. 3668-VI).
During the plenary session, the Judge-Rapporteur in the case, Volodymyr Moisyk, informed about the content of the constitutional complaint, the progress of the case in the courts and the complainant's arguments.
According to the Judge-Rapporteur, the subject of the right to a constitutional complaint filed a complaint to the Constitutional Court of Ukraine with a request to verify the constitutionality of the following legislative provisions:
– the first sentence of the sixth paragraph of Article 86.15 of Law No. 1697, according to which the maximum amount of a pension (including allowances, increases, additional pensions, targeted financial assistance, pensions for special services to Ukraine, indexation and other pension supplements established by the law, except for supplements to allowances for certain categories of persons who have special services to the Motherland) may not exceed ten subsistence minimums established for persons who have lost their ability to work;
– -the first sentence of Article 2 of Law No. 3668, stipulating that the maximum amount of a pension (except for pension payments made from the Accumulative Pension Fund) or monthly lifetime allowance, taking into account the allowances <...> assigned (recalculated) in accordance with, inter alia, the Law No. 1697, may not exceed ten subsistence minimums established for persons who have lost their ability to work.
From the content of the constitutional complaint and the materials attached to it, a constitutional complaint reveals that Yurii Yaroshenko is a pensioner, a former employee of the prosecution authorities, who has been registered with the Main Department of the Pension Fund of Ukraine in Kyiv since 2004 (hereinafter referred to as the Department) and receives a pension for years of service in the amount of 90% of his salary in accordance with Article 50-1 of the Law of Ukraine “On the Prosecutor’s Office” dated November 5, 1991, No. 1789-XII (hereinafter referred to as Law No. 1789). The Court of Appeal confirmed the right of Yurii Yaroshenko to receive a pension for years of service under Law No. 1789 in the amount of 90% of his salary and without limiting the maximum pension amount.
Following an increase in the salaries of prosecutors, the complainant applied to the Department for recalculation of his previously awarded pension. The Department refused to recalculate his pension, particularly referring to the provisions of Article 86 of Law No. 1697.
The court of first instance granted the claim of Yurii Yaroshenko and obliged the Department to recalculate and pay the applicant’s pension in the amount of 90% of the increased salary to prosecutors without limiting the maximum pension amount.
However, the Court of Appeal upheld the Department's appeal: the decision of the court of first instance in part of the Department's obligation to recalculate and to pay a pension to Yurii Yaroshenko in the amount of 90% of his monthly salary without limitation, taking into account previously made payments. The Court cancelled and issued a new ruling in this part, ordering the Department to recalculate and pay the pension to Yurii Yaroshenko in accordance with Article 86 of Law No. 1697, and to pay the difference between the amount of pension actually received and the amount recalculated.
The court of cassation refused to open cassation proceedings on the cassation appeal filed by Yurii Yaroshenko, referring to the fact that the challenged court decision was made in a case of minor complexity.
The subject of the right to a constitutional complaint argues that the application by the courts of the impugned provisions of Law No. 1697 and Law No. 3668 violates his constitutional right to peaceful enjoyment of property (right to property) guaranteed by Article 41.1 of the Constitution of Ukraine; the right to social protection guaranteed by Article 46.1 of the Constitution of Ukraine in the context of failure to ensure the level of social protection established by Law No. 1789, upon which he retired.
The Judge-Rapporteur also informed that there were 11 complaints pending before the Court on the same subject.
After examining the case file in the public part of the plenary session, the Second Senate proceeded to the in-camera part to adopt a decision.
The session was attended by a representative of the subject of the right to a constitutional complaint, Ivan Khomych, and the Permanent Representative of the Verkhovna Rada of Ukraine in the Constitutional Court of Ukraine, Maksym Dyrdin.
The public part of the plenary session is available on the official website of the Court in the section “Archive of video broadcasts of the Court”.
