On the basis of inconsistency with the principles of the rule of law the provision on pension provision for certain categories of persons was declared unconstitutional
On June 18, 2020, the Second Senate of the Constitutional Court of Ukraine adopted a Decision upon the constitutional complaint of Olha Mykolaiivna Levchenko, a citizen of Ukraine, regarding the compliance of the provision of paragraph 5 of Section III “Final Provisions” of the Law of Ukraine “On Introducing Amendments to Certain Legislative Acts of Ukraine on Pension Provision” dated March 2, 2015 No. 213–VIII (hereinafter referred to as the Law No.213–VIII) with the Constitution of Ukraine (constitutionality).
By the respective Decision, the Constitutional Court declared the impugned provision to be as such that does not comply with the Constitution of Ukraine.
O.Levchenko appealed to the Constitutional Court to review the constitutionality of the provision of paragraph 5 of Section III “Final Provisions” of Law No.213-VIII regarding the abolition from June 1, 2015 of the norms on pension provision of persons to whom pensions are granted in accordance with the Law of Ukraine “On Prosecutor's Office” dated October 14, 2014 No.1697–VII as amended.
The provision of paragraph 5 of Section III “Final Provisions” of Law No. 213–VIII, which is subject to review, is as follows: “In case of failure to adopt by June 1, 2015 of the law on the appointment of all pensions, including special, on general grounds from June 1 2015, the norms on pension provision for persons whose pensions are granted in accordance with the laws of Ukraine “On Civil Service”, “On the Prosecutor's Office”, “On the Status of the People's Deputy of Ukraine”, “On the Cabinet of Ministers of Ukraine”, “On Forensic Examination”, “On National Bank of Ukraine ”,“ On Service in Local Self-Government Bodies”, “On Diplomatic Service”, Tax and Customs Codes of Ukraine, Regulations on Assistant Consultant of the People's Deputy of Ukraine” are to be abolished.
The Constitutional Court of Ukraine, resolving the issues raised in the constitutional complaint, proceeded, in particular, from the fact that the subject matter of O.Levchenko’s constitutional complaint is an issue not of remuneration of the prosecutor, as the official, but social protection of the citizen of Ukraine in case of disability (in case of O.Levchenko – partial one) with peculiarities of regulation of this issue concerning prosecutors.
According to the Constitutional Court, the legal structure applied by the legislator “in case of failure to adopt by June 1, 2015 of the law on the appointment of all pensions, including special, on general grounds from June 1, 2015 the norms on pension provision for persons whose pensions are granted in accordance with laws Ukraine are to be abolished <…> “is very contradictory and ambiguous.
In view of the above, the Constitutional Court of Ukraine found that the provision of paragraph 5 of Section III “Final Provisions” of Law No.213–VIII does not comply with the requirements of legal certainty and predictability as constituent elements of the rule of law established by Article 8.1 of the Constitution of Ukraine.
The Court also states that the legislator's failure to comply with the principle of legal certainty as a constituent element of the principle of the rule of law has led to inconsistent application of the impugned provision by the courts of administrative jurisdiction.
The unconstitutional provision of paragraph 5 of Section III “Final Provisions” of Law No. 213 – VIII shall lose its effect from the date of adoption of this Decision by the Constitutional Court of Ukraine.
The decision of the Constitutional Court of Ukraine is binding, final and may not be appealed.
