On Thursday, July 27, the Constitutional Court of Ukraine at a public part of the plenary session in the form of written proceedings deliberated the case upon the constitutional petition of the Supreme Court regarding the constitutionality of paragraph 1 of Article 40.1 of the Law of Ukraine “On Compulsory State Social Insurance” No. 1105-XIV dated September 23, 1999 (hereinafter referred to as Law No. 1105).
During the plenary session, Judge-Rapporteur Viktor Kychun outlined the content of the constitutional petition and the grounds for initiating constitutional proceedings in the case.
According to the Judge-Rapporteur, the subject of the right to constitutional petition appealed to the Constitutional Court of Ukraine with a request to verify the constitutionality of paragraph 1 of Article 40.1 of Law No. 1105.
According to the impugned provision of Law No. 1105, insurance payments and provision of social services are suspended “if the victim is a person who has received documents for leaving Ukraine for permanent residence/staying abroad for permanent residence unless otherwise provided by an international treaty of Ukraine ratified by the Verkhovna Rada of Ukraine”.
From the content of the constitutional petition and the materials attached to it, it can be seen that the Supreme Court, composed of the board of judges of the Second Judicial Chamber of the Civil Court of Cassation, by its decision dated November 25, 2020, in case No. 234/9296/17, concluded that the provision of Law No. 1105 (in the version in force at the time of the case deliberation), which provided for the suspension of insurance payments and social services for the entire period of the victim’s stay abroad, contradicts Articles 24.1 and 24.2, Article 25.3, Articles 41.1 and 41.4, Article 46.1, Article 64.1 of the Constitution of Ukraine.
However, on January 1, 2023, the Law of Ukraine No. 2620-IX dated September 21, 2022, which amended Law No. 1105, came into force. The Plenum of the Supreme Court, conducted a comparative analysis of the provision of paragraph 1 of Article 46.1 of Law No. 1105 in the previous version and the provision of paragraph 1 of Article 40.1 of Law No. 1105 in the current version. The latter regulated the grounds and procedure for suspension of insurance payments and provision of social services and concluded that such regulation in relation to citizens residing abroad has changed towards a deterioration in the legal status of a person since insurance payments and provision of social services are suspended not in case of permanent residence of Ukrainian citizens abroad, but also in case of execution of documents for permanent residence/staying for permanent residence abroad.
The Judge-Rapporteur also informed that to ensure full and objective consideration of the case and to make a reasoned decision, certain letters of requests were prepared and sent to the Verkhovna Rada Committee on Social Policy and Protection of Veterans' Rights, the Ministry of Social Policy of Ukraine, as well as to Taras Shevchenko National University of Kyiv, Yaroslav Mudryi National Law University, Ivan Franko National University of Lviv, V.M. Koretskyi Institute of State and Law of the National Academy of Sciences of Ukraine.
The Court examined the case file during the public part of the plenary session and proceeded to the in-camera part to adopt the decision.
The public part of the plenary session was attended by the representative of the subject of the right to constitutional petition, First Deputy Chief of the Supreme Court Apparatus Rasim Babanly and Permanent Representative of the Verkhovna Rada of Ukraine to the Constitutional Court Maksym Dyrdin.
To watch the public part of the plenary session: https://ccu.gov.ua/kategoriya/2023.
