Yan Bernaziuk, Judge of the Administrative Сassation Court of the Supreme Court told about disputes in the sphere of protection of the rights of pensioners residing abroad

Judge of the Administrative Cassation Court of the Supreme Court Yan Bernaziuk held a webinar on "Disputes in the sphere of protection of the rights of pensioners residing abroad". This event took place within the framework of the training on "Protection of social rights by the administrative court" on 19 March 2021.

The speaker reminded that, Ukraine should guarantee the care and protection of its citizens staying abroad, as it is prescribed by Article 25 of the Fundamental Law. The great importance of the mutual responsibility of the state and its citizens for any law-governed state was emphasized by him. It is the responsibility of the state to take care of its citizens, wherever they are staying, and to protect their rights and freedoms.

According to Yan Bernaziuk, even though the Constitution of Ukraine stipulates that “Citizens shall have the right to social protection including the right to financial security in cases of complete, partial, or temporary disability, loss of the principal wage-earner, unemployment due to circumstances beyond their control, old age, and in other cases determined by law” (Article 46), in theory and practice such issues as granting (recalculating, renewing, etc.) of pensions to citizens of Ukraine, including those who are leaving for the permanent residence abroad and, consequently the issue of enjoyment of the constitutional right to a pension (which should not fairly be dependent on the host country), are still acute.

The judge underlined that certain legislative shortcomings in this area caused a significant number of appellate claims on invalidation of decisions (actions, inaction) of the government bodies, entitled to ensure execution of the laws on social rights, including the rights to pension.

Yan Bernaziuk informed on existence of a long-standing and unresolved legal situation arising between the citizens and bodies of the Pension Fund of Ukraine following the pensioner’s departure abroad with his/her further consular registration in the relevant country.  The payout of pensions, thereafter and from the moment of a citizen’s departure abroad, has been terminated under the provisions of Articles 49 and 51 of the Law of Ukraine "On Compulsory State Pension Insurance".

The judge drew his attention to the Decision of the Constitutional Court of Ukraine of 7 October 2009 No. 25-rp / 2009 that had a great influence on the process of these disputes resolution. This Decision, in particular, declared provisions of Part 1 of Articles 49 and 51 of the Law of Ukraine "On Compulsory State Pension Insurance" unconstitutional. It has not only confirmed the fact of constitutional error by terminating the payment of pensions, but also obliged the government agencies of Ukraine to take measures to eliminate the negative consequences caused by the previous wording of the pension law and, accordingly, to provide additional state financing.

The speaker also addressed the Supreme Court’s jurisprudence in protecting the violated constitutional right to a pension of persons leaving for another country for permanent residence.

Thus, he drew attention to the position of the Supreme Court in the case, initiated by refusal of the territorial agency of the Pension Fund of Ukraine to resume the payment of an old-age pension from the date of its termination to a person who left for another country for permanent residence, (Ruling No. 766/15025/16-a).

When describing before the audience a legal position concerning the constitutional right to a pension of a person who has left for permanent residence abroad, a judge analyzed the conclusion of the Supreme Court, which was set out in the decision of 30 September 2019 in case No. 475/164/17.

In addition, the speaker told about pension disputes seeking to restore citizens’ pension rights, which had been violated in the Soviet times, by paying his attention to the Ruling of the Supreme Court of 1 October 2019 in the case No. 826/3943/16.

Moreover, a judge gave a detailed description of position set out in a case No. 815/1226/18. In particular, it states that persons who went abroad for permanent residence and whose pension payments were suspended (under Articles 49, 51 of the Law of Ukraine "On Compulsory State Pension Insurance", declared unconstitutional according to the Decision No. 25 -rp / 2009 of the Constitutional Court of Ukraine), are entitled to receive the entire pension for the entire period from the effective date of the Decision made by a single body of constitutional jurisdiction. The speaker noted that position in this case had been already applied in more than 1,000 other cases.