On 5 June 2024, the Second Senate deliberated the case upon the constitutional complaint of Viacheslav Kolmykov in the public part of the plenary session in the form of written proceedings.
During the plenary session, the judge-rapporteur in the case, Oleh Pervomaiskyi, reported that Viacheslav Kolmykov had filed a petition with the Constitutional Court of Ukraine to verify the compliance of Article 61.1 of the Law of Ukraine “On Pension Provision for Persons Discharged from Military Service and Certain Other Persons” No. 2262-XII dated 9 April 1992 as amended (hereinafter - the Law) with .Article 24.1, 24.2, 41.1, 41.4, 46.1 of the Constitution of Ukraine.
According to Article 61.1 of the Law, pension amounts that were payable to a pensioner from among military personnel, persons entitled to a pension under this Law and their family members and remained unpaid in connection with his death are not included in the inheritance and are paid to those members of his family who are persons entitled to a survivor's pension. However, parents and spouses, as well as family members who lived with the pensioner on the day of his or her death, are entitled to receive these amounts even if they are not among the persons covered by the survivor's pension.“
According to the author of the complaint, as a result of the application of Article 61.1 of the Law, his right to property and the right to social protection guaranteed by Articles 41.1, 41.4, 46.1 of the Constitution of Ukraine were violated.
The judge-rapporteur also noted that the content of the constitutional complaint and the materials attached to it showed the following.
Arkadii Kolmykov, the father of the subject of the constitutional complaint, filed a claim with the court against the Main Department of the Pension Fund of Ukraine in Odesa Oblast (hereinafter, the “Department”) for recognition of unlawful actions and obligation to take certain actions.
The court of first instance granted his claim in full and ordered the Department to transfer and pay his pension to Arkadii Kolmykov in accordance with Articles 43 and 63 of the Law and in accordance with Resolution of the Cabinet of Ministers of Ukraine “On Remuneration of Servicemen, Private and Commanding Officers and Certain Other Persons” No. 704 dated 30 August 2017, as amended, taking into account the amounts paid. The said court decision came into force on 21 January 2022, but Arkadii Kolmykov died on 22 March 2022.
On 10 May 2023, the subject of the constitutional complaint filed a claim with the court to replace the party to the enforcement proceedings, in which he requested that the recoverer Arkadii Kolmykov be replaced in the enforcement proceedings for the execution of a court decision by his successor, Viacheslav Kolmykov. In support of this, he stated that he was the deceased's legal successor, and therefore the transferred and unpaid amount of the pension established by the court decision was an unpaid pension and was payable to him as the deceased's son.
The courts of first instance and appellate courts upheld the claim of Viacheslav Kolmykov.
The Department appealed against these court decisions in cassation. The board of judges of the Administrative Court of Cassation of the Supreme Court upheld the Department's cassation appeal: the decisions of the courts of previous instances were cancelled; the claim of Viacheslav Kolmykov to replace the party to the enforcement proceedings was denied, noting, in particular, that the Law defines a special legal regime for funds in the form of a pension that were to be paid to military retirees and remained unpaid due to his death.
During the session, the judge-rapporteur informed that in order to ensure a full and objective deliberation of the case and to ensure that the Court delivers a reasoned decision, he sent inquiries to members of the Court's Scientific Advisory Council, a number of bodies of state power, scientific institutions and higher education institutions with a request to express their opinions on the issues raised in the constitutional complaint.
Having examined the case file in the public part, the Court proceeded to the in-camera part for a decision.
The public part of the plenary session was attended by the authorised representative of the subject of the constitutional complaint, lawyer Alla Otrokh.
The public part of the plenary session is available on the official website of the Court at: https://ccu.gov.ua/kategoriya/2024.
