Material damage caused by the application of an unconstitutional norm shall be compensated on the basis of Part 3 of Article 152 of the Constitution of Ukraine even in the absence of a special law – SC AdmCC Joint Chamber

The absence of a special law establishing the procedure for compensation of damage caused by an unconstitutional act does not release the state from the obligation to provide such compensation and cannot serve as grounds for refusing to satisfy a claim filed on the basis of Part 3 of Article 152 of the Constitution of Ukraine. This is because the norms of the Constitution of Ukraine are norms of direct effect and do not allow the narrowing of the content and scope of a person’s constitutional rights due to the inaction of the legislator.

This conclusion was reached by the Joint Chamber of the Administrative Cassation Court of the Supreme Court in a case concerning the recovery from the State of Ukraine of material damage in the form of unpaid portion of the claimant’s salary caused by the provisions of Clause 26 of Section VI “Final and Transitional Provisions” of the Budget Code of Ukraine, which were declared unconstitutional by Decision No. 6-р/2020 of the Constitutional Court of Ukraine dated March 26, 2020.

The Joint Chamber noted that, by its legal nature, the Constitutional Court of Ukraine’s recognition of the unconstitutionality of a law, other acts, or their individual provisions indicates that they contradicted the norms of the Basic Law from the moment of their adoption. The adoption of a decision by the Constitutional Court of Ukraine does not create the legal fact of unconstitutionality; such a decision merely confirms the existence or absence of such a fact, which arose at the moment the unconstitutional act was adopted. From the day the Constitutional Court of Ukraine adopts its decision (unless another period is specified in the decision itself), unconstitutional acts merely lose their force.

Thus, damage caused by an unconstitutional act arises during the period when the act was in force and had not yet been declared unconstitutional – that is, in the past. It is impossible to cause damage by an unconstitutional act after it has lost its force pursuant to a decision of the Constitutional Court of Ukraine. The infliction of damage always occurs as a result of an already adopted and previously applied unconstitutional act.

The Supreme Court also noted that the provisions of Part 3 of Article 152 of the Constitution of Ukraine contain a reference to a special law. Therefore, compensation for damage caused by acts and actions declared unconstitutional should not be carried out in any manner other than that established by law. At the same time, despite the requirements of Article 152 of the Constitution of Ukraine, no law establishing the procedure for the state’s compensation of material or moral damage caused by acts and actions declared unconstitutional had been adopted by the time this case was considered. Nevertheless, the state must take measures to restore the rights, freedoms, and legitimate interests of a person that it has recognized and violated through its own fault.

Accordingly, the Supreme Court concluded that the claimant has the right to initiate court proceedings for compensation of damage on the basis of Part 3 of Article 152 of the Constitution of Ukraine and to receive such compensation, provided that the fact of its infliction is established as a result of the court’s assessment of the consequences of such unconstitutional regulation.

Resolution of the Joint Chamber of the Administrative Cassation Court of the Supreme Court dated February 24, 2026, in case No. 160/6949/20 (proceedings No. K/9901/4565/21) – https://reyestr.court.gov.ua/Review/134367664.

This and other legal positions of the Supreme Court can be found in the Database of Legal Positions of the Supreme Court - https://lpd.court.gov.ua.