At its plenary session on September 13, 2023, the First Senate of the Constitutional Court of Ukraine (hereinafter referred to as the Court) delivered its Decision in the case upon the constitutional complaint of Mykola Kostina regarding the constitutionality of the provisions of paragraph 26 of Section VI „Final and Transitional Provisions“ of the Budget Code of Ukraine (hereinafter referred to as the Code).
According to the specified provision of the Code, in particular, the norms and provisions of Articles 50 and 54 of Law of Ukraine „On the Status and Social Protection of Citizens Affected by the Chornobyl Disaster“ dated February 28, 1991 No. 796-XII (hereinafter referred to as Law No. 796) are applied in the manner and in the amount established by the Cabinet of Ministers of Ukraine, proportionally to the available financial resources of the state and local budgets and budgets of the funds of compulsory state social insurance.
The subject of constitutional control in this case is therefore the provisions of paragraph 26 of Section VI „Final and Transitional Provisions“ of the Code in terms of the application of the norms and provisions of Articles 50 and 54 of Law No. 796.
Law No. 796 is a special law, it determines the main provisions for the exercise of the constitutional right of citizens affected by the Chornobyl disaster to the protection of their life and health, including the procedure for pension protection for such persons, hence the Court emphasises that social guarantees for this category of persons, in particular, the amount of their pension, should be established by the legislator exclusively in Law No. 796.
According to the Decision, Law No. 796 defines four categories of persons affected by the Chornobyl disaster for establishing benefits and compensation. The procedure for granting state and supplementary pensions to persons referred to Category 1 is regulated by Articles 50 and 54 of Law No. 796.
Article 54 of Law No. 796 establishes a state pension for persons referred to Category 1 and for those who lost their breadwinner. The same Article establishes the amount of disability pension for persons referred to Category 1 as a result of an injury or illness caused by the Chornobyl disaster, and the Cabinet of Ministers of Ukraine establishes only the procedure for granting such pension.
The Court emphasises that the amounts of pensions for disability resulting from injury or illness and pensions for the loss of a breadwinner as a result of the Chornobyl disaster cannot depend on the available financial resources of the state and local budgets and the budgets of the compulsory state social insurance funds. Such pensions must be paid in accordance with the procedure and in the amounts established by the law. At the same time, the Cabinet of Ministers of Ukraine depending on the available financial resources cannot change the amount of pensions.
Whereas, the establishment by the provisions of paragraph 26 of Section VI „Final and Transitional Provisions„ of the Code of a different legislative regulation compared to Article 54 of Law No. 796 has caused legal uncertainty in the application of the said provisions of the Code and Law No. 796, thus depriving persons referred to as category 1 of the possibility to be sure of receiving a guaranteed state pension, since their payments depend on the financial capacity of the state. In the Court’s opinion, this contradicts the principle of the rule of law established by Article 8.1 of the Constitution of Ukraine.
The Court, therefore, declared the provision of paragraph 26 of Section VI of the Code in terms of application of Article 54 of Law 796 to be inconsistent with the Constitution of Ukraine (unconstitutional), the provision of paragraph 26 of Section VI „Final and Transitional Provisions„ of the Code in the part of the application of Article 54 of Law No. 796.
At the same time, the Court found that paragraph 26 of Section VI „Final and Transitional Provisions“ of the Budget Code of Ukraine is constitutional insofar as it envisages that the norms and provisions of Article 50 of Law of Ukraine No. 796, as amended, shall be applied in the manner and in the amounts established by the Cabinet of Ministers of Ukraine proportional to the available financial resources of the state and local budgets and budgets of the compulsory state social insurance funds.
Pursuant to Article 50 of Law No. 796, persons referred to Category 1 are granted a monthly additional pension for health damage in accordance with the procedure and in the amounts established by the Cabinet of Ministers of Ukraine.
Since Article 50 of Law No. 796 does not directly establish the amount of a monthly additional pension for health damage to persons referred to as Category 1, the Court has no reason to conclude that the provisions of paragraph 26 of Section VI „Final and Transitional Provisions“ of the Code, in the part whereby the norms and provisions of Article 50 of the Law No. 796 are applied in the manner and amounts established by the Cabinet of Ministers of Ukraine proportionally to the available financial resources of the state and local budgets and the budgets of the compulsory state social insurance funds, constitutes a violation of the provisions of Article 8.1 of the Constitution of Ukraine.
Given the above, the Court concluded that the provision of paragraph 26 of Section VI „Final and Transitional Provisions“ of the Code in terms of application of Article 54 of the Law No. 796 is unconstitutional. The Court also found that the provision of paragraph 26 of Section VI „Final and Transitional Provisions“ of the Code in terms of the application of the norms and provisions of Article 50 of Law No. 796 is consistent with the Constitution of Ukraine.
The Judge-Rapporteur in this case is Viktor Kychun.
The Decision and its summary will be published on the official website of the Court on 14 September 2023.
