23 December 2022
On Friday, 23 December, at its plenary session, the Constitutional Court of Ukraine adopted the Decision in the case upon the constitutional complaint of Vasyl Mosiurchak on compliance of sub-clause 1 of clause 2 of Chapter XI “Final and Transitional Provisions“ of the Law of Ukraine “On Civil Service“ of 10 December 2015 No. 889–VIIІ (on the guarantees of social protection of civil servants) (hereinafter – the Law No. 889) with the Constitution of Ukraine.
The Court declared the disputed rule of the Law No. 889 as such that does not comply with the Constitution of Ukraine (is unconstitutional).
The Decision reads that V.I.Mosiurchak, former civil servant, applied to the Kalush united department of the Pension Fund of Ukraine in Ivano-Frankivsk region with an appeal to recalculate the pension he had been aссrued. His petition was not upheld, in view of the fact that pensions accrued on the ground of Article 37 of the Law of Ukraine “On Civil Service“ of 16 December 1993 No. 3723–XII as amended (hereinafter the Law No. 3723), are not recalculated. The petitioner challenged the said decision in the appeal, yet the court of appeal refused to uphold the appeal and noted that “at the moment when, as the petitioner considers, the right to recalculation of pension arose, the legislation lacked the norms which would regulate the conditions and the procedure of implementing such recalculation“.
The petitioner applied to the Constitutional Court with a complaint to declare sub-clause 1 of clause 2 of Chapter XI “Final and Transitional Provisions“ of the Law No. 889 as such that contradicts Articles 22, 46.1, 58.1, and 64 of the Constitution of Ukraine (is unconstitutional). The disputed rule of the Law No. 889 declared the Law No.3723 as such that had lost its effect, apart from Article 37, which was applied to persons determined in clauses 10 and 12 of Chapter XI “Final and Transitional Provisions“ of the Law No. 889.
The subject of the right to constitutional complaint argued that refusal to recalculate the pension he had been accrued was a violation of his right to social protection.
In deciding on the case, the Constitutional Court took into account its earlier formulated legal positions, the European Convention of Human Rights, the case-law of the European Court of Human Rights and other international acts and documents.
In assessing the constitutionality of sub-clause 1 of clause 2 of Chapter XI “Final and Transitional Provisions“ of the Law No. 889, the Constitutional Court noted that the regulation of pension provision of civil servants depending on the time of accrual of pensions was realised or will be realised according to the normative acts, first and foremost, laws of Ukraine, according to which forms, types, grounds and conditions of pension provision on civil servants underwent changes.
From the day the Law No 889 took effect, pension provision of the subject of the right to constitutional complaint and other civil servants was regulated by the Law No. 1058 as a general law (lex generalis), which regulates relations among all subjects of the system of general mandatory state pension insurance.
At the same time, the right to accrual of pension on the ground of Article 37 of the Law No. 3723 as a special law (lex specialis) was preserved for the persons outlined in clauses 10 and 12 of Chapter XI “Final and Transitional Provisions“ of the Law No. 889. Yet these persons were not granted the right to indexation and recalculation of the amount of the pensions they had been accrued.
In its decisions, the Constitutional Court noted that „the change of the mechanism of calculation of social payments and assistance should take place according to the criteria of proportionality and justice; and it is constitutionally admissible in the amount insofar the very essence of the content of the right to social protection is not put to doubt“. The Verkhovna Rada of Ukraine has the constitutional authority to adopt laws which determine and change the normative regulation of pension provision, at the same time the legislator has to align the rules of the law which it passed with the rules of the Constitution of Ukraine.
The Constitutional Court of Ukraine reiterates that legal certainty is one of the requirements of the rule of law principle. This requirement claims for that legal norms be clear and precise, as well as that their purpose is to ensure the predictability of situations and legal relations. The Constitutional Court asserts that a person has the right to reasonable expectations regarding the consistency and integrity of the legislative activity of the Verkhovna Rada of Ukraine as the only body of legislative power in Ukraine.
In this case, the subject of the right to constitutional complaint and other civil servants had certain legitimate expectations regarding their pension provision in accordance with the provisions of Article 37 of the Law No. 3723.
In assessing the need to take into account such legitimate expectations, the Constitutional Court considered that the right of persons (as defined in clauses 10 and 12 of Chapter XI “Final and Transitional Provisions” of the Law No. 889) to receive a pension on the basis of Article 37 of the Law No. 3723 as a special law (lex specialis) was preserved, as well as these persons are granted the right to a pension also on the basis of the Law No. 1058 as a general law (lex generalis) aimed at the regulating pensions. Choosing one of the specified grounds for assigning a pension allows a person to pick the pension option with a larger amount.
Consequently, sub-clause 1 of clause 2 of Chapter XI “Final and Transitional Provisions” of the Law No. 889 in this aspect does not contradict Articles 8 and 46 of the Constitution of Ukraine.
Within these proceedings, the Constitutional Court also assessed the constitutionality of sub-clause 1 of clause 2 of Chapter XI “Final and Transitional Provisions” of the Law No. 889, considering all the arguments provided by the subject of the right to constitutional complaint regarding the impossibility of increasing the amount of the pension accrued in accordance with Article 37 of the Law No. 3723.
In this context, the Constitutional Court pointed out that the positive obligations of the state in the field of social protection consist, in particular, in the proper regulation of relations.
The right to social protection, guaranteed by Article 46 of the Fundamental Law of Ukraine, is based on the fact that the pension levels, other types of social payments and benefits, which are the main source of livelihood, must be determined accordingly to human needs, human dignity and other constitutional values, and also that, in the presence of economic and other prerequisites, the pension levels, other types of social payments and benefits should be indexed and/or transferred in a timely manner.
The Constitutional Court of Ukraine in its Decision stated that “the legal mechanism for indexation and recalculation of pension levels, other types of social payments and benefits is one of the constitutional guarantees of the effectiveness of the right to social protection.”
The Verkhovna Rada of Ukraine within the aim to develop, concretise and detail the provisions of Articles 3, 8, 24.1, Article 46 of the Fundamental Law of Ukraine should standardise in laws the grounds, procedure and conditions for indexing and recalculating the amounts of all types of pensions for all groups of pensioners.
Due to the fact that there is no reference to Article 371 of the Law No. 3723 in sub-clause 1 of clause 2 of Chapter XI “Final and Transitional Provisions” of the Law No. 889, it is impossible for the subject of the right to constitutional complaint and other persons who have been granted the right to a pension on the basis of Article 37 of Law No. 3723, to recalculate the pension levels, i.e. to modernise them. As a result, there is a difference in the amount of pensions for civil servants granted on the basis of Article 37 of the Law No. 3723, depending on the time the pensions are granted.
In view of the foregoing, the Constitutional Court of Ukraine notes that the current state of the legislative regulation of relations on the recalculation of the pension levels of the subject of the right to constitutional complaint and other persons who are granted the right to a pension in accordance with Article 37 of the Law No. 3723 is not an ordinary legislative gap (lacuna), but a legislative omission, the presence of which is a violation of the Constitution of Ukraine.
By virtue of the above, the Constitutional Court of Ukraine declared sub-clause 1 of clause 2 of Chapter XI “Final and Transitional Provisions” of the Law No. 889 to run contrary to Articles 3.2, 8.1, 8.2, 24.1, and 46 of the Constitution of Ukraine in that its provisions made it impossible to recalculate the pension levels granted in accordance with Article 37 of the Law No. 3723.
To keep the balance of private interests of the subject of the right to constitutional complaint and other persons who are granted the right to a pension in accordance with Article 37 of the Law No. 3723 and the public interest in maintaining the balance of the State Budget of Ukraine during martial law in Ukraine, the Constitutional Court of Ukraine postponed the loss of validity of sub-clause 1 of clause 2 of Chapter XI “Final and Transitional Provisions” of the Law No. 889.
The provision of the Law declared unconstitutional shall expire three months after the date of termination or cancellation of martial law in Ukraine, introduced by the Decree of the President of Ukraine “On the Introduction of Martial Law in Ukraine” of February 24, 2022 No. 64/2022, as amended. In addition, the Constitutional Court of Ukraine obliged the Verkhovna Rada of Ukraine to bring normative regulation in line with the Constitution of Ukraine and this Decision.
