DECISION OF THE CONSTITUTIONAL COURT OF UKRAINE

of October 7, 2009 N25-rp/2009

On case on the constitutional representation of the Supreme Court of Ukraine concerning compliance of the Constitution of Ukraine (constitutionality) of provisions of Item 2 parts one of Article 49, the second offer of article 51 of the Law of Ukraine "About obligatory national pension insurance"

Case No. 1-32/2009

NAME OF UKRAINE

Constitutional court of Ukraine consisting of judges:

Strizhak Andrey Andreevich - the chairman,

Baulin Yury Vasilyevich,

Brintsev Vasily Dmitriyevich - the speaker,

Vdovichenko Sergey Leonidovich,

Golovin Anatoly Sergeyevich,

Dzhunya Vyacheslav Vasilyevich,

Didkovsky Anatoly Aleksandrovich,

Dombrovsky Ivan Petrovich,

Kamp Vladimir Mikhaylovich,

Mikhail Ivanovich's ear,

Lilak Dmitry Dmitriyevich,

Markush Maria Andreevna,

Machuzhak Yaroslava Vasilyevna,

Nikitin Yury Ivanovich,

Ovcharenko Vyacheslav Andreevich,

Stetsyuk Pyotr Bogdanovich,

Tkachuk Pavel Nikolaevich,

Shishkin Victor Ivanovich,

considered at plenary meeting case on the constitutional representation of the Supreme Court of Ukraine concerning compliance of the Constitution of Ukraine (constitutionality) of provisions of Item 2 parts one of Article 49, of the second offer of article 51 of the Law of Ukraine "About obligatory national pension insurance" of July 9, 2003 N 1058-IV (Sheets of the Verkhovna Rada of Ukraine, 2003, NN 49-51, of the Art. 376).

Reason for consideration of the case according to Articles 39, 40 Laws of Ukraine "About the Constitutional Court of Ukraine" became the constitutional representation of the Supreme Court of Ukraine.

The basis for consideration of the case according to Articles 71, 82 Laws of Ukraine "About the Constitutional Court of Ukraine" are availability of approvals concerning illegality of the specified provisions of the Law of Ukraine "About obligatory national pension insurance".

Having heard the judge-speaker Brintsev V. D. and having researched case papers, the Constitutional Court of Ukraine established:

1. The Supreme Court of Ukraine in the constitutional representation brought up question of recognition unconstitutional Item provisions 2 parts one of Article 49, of the second offer of article 51 of the Law of Ukraine "About obligatory national pension insurance" (further the Law) concerning the termination of pension payment to pensioners for the period of permanent residence abroad if Ukraine did not sign with the relevant state the international treaty concerning provision of pensions and if consent to be bound of such international treaty is not provided by the Verkhovna Rada of Ukraine.

Realization of constitutional right of citizens on social protection as the person of law on the constitutional representation considers, is legislatively put into dependence on the conclusion fact by Ukraine with the relevant state of the international treaty concerning provision of pensions. The legal situation in which citizens who worked at the territory of Ukraine paid insurance premiums and acquired pension entitlement, but chose as the permanent place of residence the state with which Ukraine did not sign the international treaty concerning payment to citizens of Ukraine of the pensions earned in Ukraine is created by the challenged provisions of the Law opportunities to receive them are deprived.

At the same time it is noted that the specified provisions of the Law contradict instructions of the Constitution of Ukraine concerning impossibility of cancellation of constitutional rights and freedoms, equality of constitutional rights and freedoms of citizens irrespective of the place of residence, guaranteeing care and protection to citizens of Ukraine who are behind its borders, the rights of citizens to social protection in old age (Article 22, of part one, the second Articles 24, Article part three 25, Article part one 46).

2. The line items of the questions which are rather brought up in the constitutional representation were stated by the Chairman of the Verkhovna Rada of Ukraine, the Prime Minister of Ukraine, the Representative of the Verkhovna Rada of Ukraine for human rights, the Ministry of Justice of Ukraine, the Ministry of Foreign Affairs of Ukraine, the Ministry of Labour and Social Policy of Ukraine, the Pension fund of Ukraine, the Prosecutor General's Office of Ukraine, scientists of the Kiev national university of Taras Shevchenko, the Odessa national legal academy.

3. The research of case papers conducted by the Constitutional Court of Ukraine, systems analysis of relevant provisions of the Constitution of Ukraine, the laws and other legal acts give the grounds for such conclusions.

3.1. In Ukraine as the social, constitutional state of people, his life and health, honor and advantage, immunity and safety are recognized the supreme social value. Human rights and freedoms and their guarantees determine content and orientation of activities of the state. Approval and providing human rights and freedoms is the main debt of the state (Article 1, 3 Constitutions of Ukraine).

The specified constitutional provisions are developed in the Section II of the Constitution of Ukraine "The rights, freedoms and obligations of man and citizen". Thereby the right to social protection is carried to the fundamental rights and freedoms. This right is guaranteed by obligatory national social insurance at the expense of insurance premiums of citizens, the companies, organizations and the organizations, and also budget and other sources (part two of Article 46 of the Fundamental Law of Ukraine) and provided with part two of article 22 of the Constitution of Ukraine according to which constitutional rights and freedoms are guaranteed and cannot be cancelled.

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