Non-Working Pensioners Inhabiting the Radioactively Contaminated Zone Have Right to Increase in Pensions – Pilot Case

By the Judgment No. 6-р/2018 of 17 July 2018 from the moment of its adoption the Constitutional Court of Ukraine pursuant to Article 39 of the Law No. 796-XII renewed the right of non-working pensioners inhabiting radioactively contaminated territory – zone of guaranteed voluntary evacuation, to get increase in pensions at the rate determined by the Resolution of the Cabinet of Ministers of Ukraine No. 1210 of 23 November 2011.

The Supreme Court represented by the panel of judges of the Administrative Cassation Court issued such judgment in a pilot case under the claim to Ovruch Integrated Management Office of the Pension Fund of Ukraine (hereinafter – PFU) in Zhytomyrska oblast on the recognition of inactivity as invalid, the obligation to hold calculation and payment of the increase in pensions.

The plaintiff is an individual, who suffered from the Chernobyl disaster (1^st category), is registered in the PFU Office as a beneficiary of an invalidity pension. The plaintiff lives in Ovruch, Zhytomyrska oblast, which pursuant to the List of Localities Referred to the Radioactively Contaminated Territories after the Chernobyl Disaster, is the zone of guaranteed voluntary evacuation.

By 1 January 2015 the plaintiff had been receiving increase in pension as a non-working pensioner, who inhabited the noted territory, pursuant to Article 39 of the Law of Ukraine No. 796-XII of 28 February 1991 “On the Status and Social Protection of Citizens, Who Suffered from the Chernobyl Disaster”.

Since 1 January 2015 the payment of such increase has been terminated due to the adoption of the Law of Ukraine No. 76-VIII of 28 December 2014 “On Amendments to and Recognition Invalid Certain Legislative Acts of Ukraine”, by which, particularly, Article 39 of the Law No. 796-XII was excluded.

The Constitutional Court of Ukraine by its Judgment No. 6-р/2018 of 17 July 2018 recognized the noted amendments as unconstitutional ones.

The plaintiff submitted a claim to the PFU Office, where he asked to inform, whether the payment of the increase in pensions for him had been renewed, pursuant to Article 39 of the Law No. 796-XII. The defendant informed that the increase in pension for him was not calculated and paid.

Considering such inactivity of the PFU Office unlawful, the plaintiff applied to court with this administrative claim.

The defendant motivated its actions by the fact that the Law of Ukraine No. 987-VIII of 4 February 2016 “On Amendments to the Law of Ukraine “On the Status and Social Protection of Citizens, Who Suffered from the Chernobyl Disaster” entered into force on 1 January 2016. By this Law the Law No. 796-XII was amended with Article 39 of such content: “Additional payment shall be fixed for citizens working in the exclusion zone in the amount and according to the procedure established by the Cabinet of Ministers of Ukraine”. In the defendant’s opinion, the Constitutional Court of Ukraine did not analyze the text of the Law No. 796-XII as of the date of the adoption of the Judgment No. 6-р/2018 in July 2018, i.e. the Court recognized the exclusion of Article 39 of the Law No. 796-XII as unconstitutional.

The Supreme Court represented by the panel of judges of the Administrative Cassation Court remarked that the Constitutional Court of Ukraine by its Judgment No. 6-р/2018 of 17 July 2018 re-established the wording of the Article 39 of the Law No. 796-XII, which had been valid by 1 January 2015. This wording of article resumes social payments to those individuals, whose right to supplemental payment has not been resumed after including Article 39 by the Law No. 987-VIII.

The Supreme Court also noted that the Cabinet of Ministers of Ukraine had been authorized to determine the rate and procedure of the payment of exemptions, compensations and guarantees established by the Law No. 796-XII.

The Constitutional Court of Ukraine by its Judgment No. 20-рп/2011 of 26 December 2011 recognized as constitutional the regulation of the level of social benefits and care, funded by the State Budget of Ukraine, by the Cabinet of Ministers of Ukraine.

The Supreme Court concluded that since 17 July 2018 the plaintiff had right to increase in pension as a non-working pensioner inhabiting radioactively contaminated territory – zone of guaranteed voluntary evacuation on the grounds of Article 39 of the Law No. 796-XII at the rate determined by the Resolution of the Cabinet of Ministers of Ukraine No. 1210 of 23 November 2011.

Judgment of the Supreme Court No. 240/4937/18 of 21 January 2019.