Name of Ukraine

DECISION OF THE CONSTITUTIONAL COURT OF UKRAINE

of December 20, 2016 No. 7-rp/2016

On case on the constitutional representation of the Supreme Court of Ukraine concerning compliance of the Constitution of Ukraine (constitutionality) of provisions of the second proposal of part seven Article 43, first proposal of part one of article 54 of the Law of Ukraine "About provision of pensions of the persons discharged from military service and some other persons"

Case No. 1-38/2016

Constitutional court of Ukraine consisting of judges:

Baulin Yury Vasilyevich - the chairman,

Vdovichenko Sergey Leonidovich,

Gultaya Mikhail Miroslavovich,

Zaporozhets Mikhail Petrovich - the speaker,

Kasminin Alexander Vladimirovich,

Kolesnik Victor Pavlovich,

Krivenko Victor Vasilyevich,

Litvinov Alexander Nikolaevich,

Melnik Nikolay Ivanovich,

Moysyk Vladimir Romanovich,

Sasa Sergey Vladimirovich,

Slidenko Igor Dmitriyevich,

Tupitsky Alexander Nikolaevich,

Shaptala Natalya Konstantinovna,

Shevchuk Stanislav Vladimirovich,

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 the second proposal of part seven Article 43, first proposal of part one of article 54 of the Law of Ukraine "About provision of pensions of the persons discharged from military service and some other persons" of April 9, 1992 No. 2262-XII (Sheets of the Verkhovna Rada of Ukraine, 1992, No. 29, Art. 399) with changes.

The constitutional representation of the Supreme Court of Ukraine became reason for consideration of the case; the basis for consideration of the case is statement of the subject of law on the constitutional idea of illegality of provisions of the second offer of part of the seventh Article 43, the first offer of part one of article 54 of the Law of Ukraine "About provision of pensions of the persons discharged from military service and some other persons".

Having heard the judge-speaker and having researched case papers, including the line of the President of Ukraine, the Chairman of the Verkhovna Rada of Ukraine, the Cabinet of Ministers of Ukraine, the Ministry of social policy of Ukraine, the Ministry of Justice of Ukraine, the Pension fund of Ukraine, scientists of Institute of the state and the right of V. M. Koretsky of NAN of Ukraine, the Kiev national university of Taras Shevchenko, National academy of internal affairs, National university "Odessa Legal Academy", National legal university of Yaroslav the Wise, the Constitutional Court of Ukraine established:

1. The Supreme Court of Ukraine appealed to the Constitutional Court of Ukraine with the petition to recognize not corresponding to the Constitution of Ukraine (unconstitutional) provisions of the second offer of part seventh (in the constitutional representation - part five) Article 43, first proposal of part one of article 54 of the Law of Ukraine "About provision of pensions of the persons discharged from military service and some other persons" of April 9, 1992 as No. 2262-XII with changes (further - the Law No. 2262) in interrelation with Item 2 of the Section III "Final provisions" of the Law of Ukraine "About modification of some legal acts of Ukraine concerning provision of pensions" of March 2, 2015 No. 213-VIII (further - the Law No. 213), Item 2 of the Section II "Final provisions" of the Law of Ukraine "About modification of some legal acts of Ukraine" of December 24, 2015 No. 911-VIII (further - the Law No. 911).

According to the subparagraph 3 of Item 1 of the Section I of the Law of Ukraine "About introduction of amendments to some laws of Ukraine of rather social protection of the reservists injured with participation in anti-terrorist operation, and members of their families" of April 12, 2016 No. 1080-VIII article 43 of the Law No. 2262 after part three is added with two new parts in this connection part five of this Article became part seven without changes in content that does not interfere with conducting its check on compliance of the Constitution of Ukraine (constitutionality).

The board of judges of the Constitutional Court of Ukraine by the Resolution of June 16, 2016 opened the constitutional proceeedings about compliance of the Constitution of Ukraine (constitutionality) of provisions of the second offer of part of the seventh Article 43, part one of article 54 of the Law No. 2262, and regarding check on compliance of the Constitution of Ukraine (constitutionality) of Item 2 of the Section III "Final provisions" of the Law No. 213, Item 2 of the Section II "Final provisions" of the Law No. 911 refused opening of the constitutional proceeedings based on Item 2 of article 45 of the Law of Ukraine "About the Constitutional Court of Ukraine" - discrepancy of the constitutional representation to the requirements provided by the Constitution of Ukraine, this law.

According to the Supreme Court of Ukraine, provision of the second proposal of part seven Article 43, first proposal of part one of article 54 of the Law No. 2262 contradict part one of Article 8, part five Article 17, parts two, three Article 22, part one of Article 46, part one 58, article 64 of the Constitution of Ukraine. Proving illegality of the challenged provisions of Law No. 2262, the subject of law on the constitutional representation came to conclusion that as a result of temporary restriction of the maximum size of pension of the military personnel at the level of 10740 hryvnias and suspension of its payment to separate categories of the working persons there was narrowing of content and amount of the existing rights and freedoms of the military personnel on social protection, in particular the right to pension.

2. Resolving the questions which are brought up in the constitutional representation, the Constitutional Court of Ukraine proceeds from the following.

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