The Constitutional Court of Ukraine recognized the norm allowing retroactive reduction of special pensions as unconstitutional

The Second Senate of the Constitutional Court of Ukraine considered the case on the constitutional complaint of Viktor Prykhodko regarding the compliance with the Constitution of Ukraine of the first paragraph of point 131 of section XV "Final Provisions" of the Law of Ukraine "On Compulsory State Pension Insurance" dated July 9, 2003, No. 1058-IV as amended by the Law of Ukraine "On Amendments to Certain Legislative Acts of Ukraine Regarding Pension Increases" dated October 3, 2017, No. 2148-VIII, and adopted Decision No. 5-r(II)/2026.

According to the first paragraph of point 13-1 of section XV "Final Provisions" of Law No. 1058 as amended by Law No. 2148, it is established that "from October 1, 2017, pensions assigned after the entry into force of the Law of Ukraine 'On Measures to Legally Ensure the Reform of the Pension System' (except for persons with disabilities of groups I and II, persons with war-related disabilities of group III, and combatants, persons covered by paragraph 1 of article 10 of the Law of Ukraine 'On the Status of War Veterans and Guarantees of Their Social Protection') under the conditions of the laws of Ukraine 'On Civil Service,' 'On the Prosecutor's Office,' 'On the Status of People's Deputy of Ukraine,' 'On Scientific and Scientific-Technical Activity' during work in civil service positions defined by the Law of Ukraine 'On Civil Service' dated December 10, 2015, No. 889-VIII, as well as in positions and under conditions provided by the laws of Ukraine 'On the Prosecutor's Office,' 'On the Judiciary and the Status of Judges,' are paid in the amount calculated according to this Law."

According to Prykhodko V. V., as a result of applying the contested provision of Law No. 1058 as amended by Law No. 2148, the amount of his pension was significantly reduced, which violates several articles of the Constitution of Ukraine, in particular article 22, parts one and two of article 24.

In resolving the issue of compliance with the Constitution of Ukraine of the contested provision of Law No. 1058 as amended by Law No. 2148, the Court proceeds from the following.

Participants in social relations, in addition to the right to know their rights and obligations, which must be ensured, in particular, in the manner defined by part two of article 57 of the Basic Law of Ukraine, also have the right to expect that only those laws and other normative acts adopted by an authorized body, which are in force at the time of their application and officially published or otherwise promulgated before the start of their application, will be applicable to regulate social relations.

To ensure the effectiveness of the guarantee of non-application of laws and other normative acts that "have not been brought to the attention of the population in the manner prescribed by law" for regulating social relations, part three of article 57 of the Constitution of Ukraine emphasizes the invalidity of such acts.

The Verkhovna Rada of Ukraine adopted Law No. 2148 on October 3, 2017.

Law No. 2148 was published in the newspaper "Holos Ukrainy" on October 10, 2017. It came into force on October 11, 2017—the day following its publication.

At the same time, according to the contested provision of Law No. 1058 as amended by Law No. 2148, it is applicable to regulate the relevant segment of social relations from October 1, 2017, i.e., before the day of its publication.

Analyzing the specific provision of the first paragraph of point 131 of section XV "Final Provisions" of Law No. 1058 as amended by Law No. 2148, namely "from October 1, 2017," the Court stated that it was precisely on the basis of this provision that the contested provision of Law No. 1058 as amended by Law No. 2148 was retroactively applied to regulate pension provision relations.

As a result of the retroactive effect in time of the contested provision of Law No. 1058 as amended by Law No. 2148, the person was deprived of the right to timely receive information about changes in the legislative regulation of pension provision relations. However, in case of changes in the legislative regulation of these relations that may cause a reduction in the amount of pension payments that a person is to receive, the general rule contained in part one of article 58 of the Constitution of Ukraine applies, according to which laws and other normative acts do not have retroactive effect in time.

The retroactive application of the contested provision of Law No. 1058 as amended by Law No. 2148 from October 1, 2017, despite the fact that Law No. 2148 was adopted on October 3, 2017, and published on October 10, 2017, is a significant and indisputable violation of the constitutional principles of good governance and the rule of law, as well as several constitutional guarantees of the realization of rights defined in part one of article 57, part one of article 58, and part five of article 94 of the Basic Law of Ukraine.

The Constitutional Court of Ukraine concluded that the specific provision of the first paragraph of point 13-1 of section XV "Final Provisions" of Law No. 1058 as amended by Law No. 2148, namely "from October 1, 2017," contradicts part two of article 3, part one of article 8, part one of article 46, article 57, part one of article 58, and part five of article 94 of the Constitution of Ukraine, therefore the contested provision of Law No. 1058 as amended by Law No. 2148 cannot be applied to regulate social relations earlier than the day following the publication of Law No. 2148.

Considering the above, the Court concluded that the specific provision of the first paragraph of point 131 of section XV "Final Provisions" of Law No. 1058 as amended by Law No. 2148, namely "from October 1, 2017," is unconstitutional.

Subscribe to our Telegram channel t.me/sudua and to Google News SUD.UA, as well as to our VIBER and WhatsApp pages on Facebook and Instagram to stay informed about the most important events.