07.04.2022
On April 6, 2022, the Second Senate of the Constitutional Court of Ukraine adopted a Decision on the case upon the constitutional complaint of Serhii Polishchuk on the constitutionality of Article 16-3.4 of the Law of Ukraine „On social and legal protection of military personnel and members of their families“ (case on enhanced social protection of military personnel). Judge-rapporteur in this case is Vasyl Lemak.
The contested provisions stipulate: „If, within two years, a serviceman, a person liable for military service or a reservist, after the initial determination of disability or the degree of disability without establishing disability, during a second examination, is established the highest disability group or a higher percentage of disability, which entitles them to receive a one-time cash benefit in a larger amount, the payment is made taking into account the previously paid amount. In case of a change in the group of disability, its cause or degree of disability for more than two years after the initial determination of disability, the payment of a one-time cash benefit in connection with the changes that have occurred is not made“.
By this Decision, the contested provision was declared as inconsistent with the Constitution of Ukraine (unconstitutional). „The establishment of such a legislative restriction is unjustified in view of the fact that the legislator had the opportunity to choose a means to achieve the same goal that would less onerous affect the scope of the implementation of the rights of military personnel to social protection“, the current Decision states.
The Constitutional Court of Ukraine takes into account the realities associated with the armed aggression of the Russian Federation against Ukraine, the role of the Armed Forces of Ukraine and other military formations in the defense of the Ukrainian state, its sovereignty, independence and territorial integrity. The corresponding constitutional principles are the core of the constitutional system of Ukraine, so that its implementation as a whole depends on their protection, including human and citizen's rights and freedoms guaranteed by the Constitution of Ukraine.
In its Decision, the Court has formulated a number of legal positions regarding the defense capability of the state, in particular, the role of the Armed Forces of Ukraine, under martial law.
The Constitutional Court of Ukraine, in particular, noted that „The main role in the defense of Ukraine is played by the Armed Forces of Ukraine and other military formations, which, through their courageous struggle, effectively protect the Ukrainian state and the Ukrainian people“.
Military personnel, other citizens involved in the performance of state defense duties, perform the duty to protect the Fatherland in the Armed Forces of Ukraine and other military formations not for the sake of obtaining special statuses, in particular, privileges, benefits or compensation. At the same time, the prescription of Article 17.5 of the Constitution of Ukraine clearly imposes a constitutional obligation on the state to create a system of enhanced social support for military personnel and members of their families, which extends not only to special pensions and assistance for them, but also support in the healthcare and educational domains, as well as the provision of housing and special support measures in their transition to civilian life.
Under martial law, the state is obliged to mobilise all available resources to strengthen its defense capability and repel the armed aggression of the Russian Federation against Ukraine. Consequently, the comprehensive support of the military personnel of the Armed Forces of Ukraine is one of the means of expanding the defense capabilities of the state.
The Constitutional Court of Ukraine emphasised that the constitutional obligation of the state to ensure enhanced social protection of military personnel (Articles 17, 46 of the Constitution of Ukraine) is more significant than any goals, the achievement of which the legislator defined as the basis for imposing restrictions on the right to receive a one-time monetary assistance in an increased amount when the disability group changes, increase in the percentage of disability over time. Consequently, the restrictions established by the contested provisions of the Law are unjustified and disproportionately restrict the right to enhanced social protection of military personnel, and thus are not consistent with fundamental constitutional values, in particular, such as the principle of protecting human rights, the principle of the rule of law in the aspect of proportionality and the requirements of social protection of military personnel.
The provisions of the Law, declared unconstitutional, become null and void from the date of adoption of this Decision by the Constitutional Court of Ukraine.
