March 20, 2024
On March 20, 2024 at the plenary session the Second Senate delivered the Decision in the case upon the constitutional complaint of Vasyl Atamanchuk regarding the conformity of the provisions of Article 2 of the Law of Ukraine “On Measures for Legislative Support of the Pension System Reform” No. 3668–VI dated July 8, 2011 (hereinafter, “Law No. 3668–VI”), the first sentence of Article 67.3 of the Law of Ukraine “On the Status and Social Protection of Citizens Affected by the Chornobyl Disaster” No. 796–XII dated February 28, 1991 (hereinafter, “Law No. 796–XII”) with the Constitution of Ukraine (constitutionality).
The Constitutional Court of Ukraine declared the impugned provisions of the Laws unconstitutional.
The Judge-rapporteur in the case was Serhiy Holovaty.
In accordance with the provision of Article 2 of Law No. 3668–VI, which was disputed by Vasyl Atamanchuk, “the maximum amount of a pension (except for pension payments made from the Accumulative Pension Fund) <...> (taking into account allowances, increases, additional pension, targeted cash assistance, pensions for special merits to Ukraine, indexation and other pension supplements established by law, except for supplements to certain categories of persons who have special merits to the Motherland), assigned (recalculated) in accordance with <... > laws of Ukraine <...> “On the Status and Social Protection of Citizens Affected by the Chornobyl Disaster” <...> may not exceed ten subsistence minimums established for persons who have lost their ability to work.”
Pursuant to the provision of the first sentence of Article 67.3 of the Law No. 796-XII, “the maximum amount of pension (taking into account allowances, increases, additional pension, targeted cash assistance, pensions for special merits to Ukraine, indexation and other pension supplements established by law, except for supplements to certain categories of persons who have special merits to the Motherland) may not exceed ten subsistence minimums established for persons who have lost their ability to work”.
Vasyl Atamanchuk has the status of participant in the liquidation of the consequences of the Chornobyl disaster of category 1 (who is a person with a Group II disability due to an illness caused by the Chornobyl disaster), a person with a disability as a result of war, a veteran of military service.
In 1993 he was granted a pension in accordance with Article 54.1 of the Law No. 796–XII as amended by the Law of Ukraine “On Amendments to Article 54 of the Law of Ukraine “On the Status and Social Protection of Citizens Affected by the Chornobyl Disaster” No. 3285–XII dated June 17, 1993 (hereinafter, “Law No. 3285–ХІІ”) in the amount of compensation for actual damages – 70 percent of his earnings for work in the exclusion zone.
Due to amendments in the legislation on the assignment, recalculation and payment of pensions to certain categories of citizens, Vasyl Atamanchuk during 2016-2023 repeatedly filed administrative claims with the courts of Ukraine against the Main Directorate of the Pension Fund of Ukraine in Ivano-Frankivsk Oblast (hereinafter, the “Directorate”) to recalculate pension assigned to him. However, the courts dismissed his claims.
In resolving the issues raised in the constitutional complaint, the Constitutional Court of Ukraine was guided by its previous legal positions on these issues, the judgments of the European Court of Human Rights and the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, the First Protocol of it.
In its Decision, the Court stated that Article 67 of the Law No. 796-XII in its original wording, which was in force at the time of the pension assignment to Vasyl Atamanchuk, did not contain any provisions limiting the maximum amount of the pension, but instead required an annual increase in the specific amounts of all additional payments, pensions and compensations in accordance with changes in the cost of living index and the growth of the minimum wage. Article 67.1 of the Law No. 796–XII as amended by the Law of Ukraine “On Amendments and Additions to the Law of Ukraine «On the Status and Social Protection of Citizens Affected by the Chornobyl Disaster»” No. 230/96-VR dated June 6, 1996 which was in force at the time of the present case deliberation, also contains such a requirement, namely that the specific amounts of all additional payments, pensions and compensations are increased by the Cabinet of Ministers of Ukraine in accordance with changes in the cost of living index and increases in the minimum wage.
It follows from the above that, while preserving the requirement for persons affected by the Chornobyl disaster to increase the amount of all additional payments, pensions and compensations in accordance with changes in the cost of living index and the growth of the minimum wage, the legislator, by the provisions of Article 2 of Law No. 3668-VI and the first sentence of Article 67.3 of Law No. 796-XII, limited the maximum amount of the state pension of these persons (taking into account allowances, increases, additional pension, targeted cash assistance, pensions for special merits to Ukraine, indexation and other pension supplements established by law, except for supplements to certain categories of persons who have special merits to the Motherland) to ten subsistence minimums established for persons who have lost their ability to work.
The Court noted that the analysis of paragraph 2 Section II “Final and Transitional Provisions” of Law No. 3668-VI testifies the suspension of pension increases for persons affected by the Chornobyl disaster.
The Constitutional Court of Ukraine in its previous decisions pointed out that “the state may alter the legislative regulation in the field of social protection of persons affected by the Chornobyl disaster, however, in case of altering such regulation, it should not resort to restrictions that violate the essence of their individual rights, and the achieved level of social protection must be maintained.” At the same time, the Court, based on the content of Articles 3, 16, 50 of the Constitution of Ukraine, concluded, “the state is entrusted with a positive obligation to ensure enhanced social protection to persons with disabilities from among those ones who were affected by the Chornobyl disaster.
Given the above, the Constitutional Court of Ukraine came to the conclusion that the introduced limitation of the maximum amount of pension (taking into account allowances, increases, additional pension, targeted cash assistance, pensions for special merits to Ukraine, indexation and other pension supplements established by law, except for supplements to certain categories of persons who have special merits to the Motherland) to persons affected by the Chornobyl disaster led to the violation of the essence of the constitutional guarantees regarding the provision of social protection of these persons, which is a violation of the state's obligations arising from the content of Articles 3, 16, 50 Constitutions of Ukraine in their relationship.
The above shows that the provisions of Article 2 of Law No. 3668-VI, the first sentence of Article 67.3 of Law No. 796-XII, which limit the maximum amount of pension of persons affected by the Chornobyl disaster, do not correspond to Articles 1, 3, 16, 22.3, 50.1 of the Constitution of Ukraine.
The Constitutional Court of Ukraine underscored in its decision that the state guaranteed pension to participants in the liquidation of the consequences of the accident at the Chornobyl NPP and to persons affected by the Chornobyl disaster, patients suffering from radiation sickness as a result of the Chornobyl disaster, assigned to category 1 of persons who were affected by the Chornobyl disaster, due to the deterioration of the health of these persons, in particular, disability caused by participation in work related to the liquidation of the consequences of the accident at the Chornobyl NPP. Victims of the Chornobyl disaster, who are assigned to category 1, during all or part of their lives, depend on social security, which was guaranteed to them by the state.
Given the fact that the pension of Vasyl Atamanchuk was assigned in accordance with Article 54.1 of Law No. 796-XII in the wording that did not allow any limitation of the maximum amount of pension, and the provision of the first sentence of Article 67.3 of Law No. 796-XII in the wording effective at the time of the pension assignment guaranteed annual pension increase without limiting its maximum amount, the subject of the right to a constitutional complaint had every reason to count on the stability of the legislation. Since then, he has legitimate expectations that the right to the level of social protection established for him is guaranteed.
As a result of further actions of the legislator, this guarantee was cancelled: Vasyl Atamanchuk was deprived of the right to receive a pension without limiting its maximum amount, which constituted interference with the right to property and caused the subject of the right to a constitutional complaint to feel the collapse of legitimate expectations.
Taking into account the above, the Constitutional Court of Ukraine considers that the provisions of Article 2 of Law No. 3668-VI in the part of requirements for limiting the maximum amount of pension of persons affected by the Chornobyl disaster, that are subject to the effect of Law No. 796-XII, the first sentence of Article 67.3 Law No. 796–XII, contradict the requirements of Articles 8.1, 8.2, 41.1 of the Constitution of Ukraine.
Provisions of Laws declared as unconstitutional shall cease to be effective from the date of delivering this Decision by the Constitutional Court of Ukraine.
