Application with Claim on Renewal of Pension Payment after the CCU Judgment Shall not Be Restricted with Six-Month Period for Application to Administrative Court – SC GC

Plaintiff was awarded with retirement pension; after she moved to Israel in 1999 the payment was terminated on the grounds of Articles 49 and 51 of the Law of Ukraine “On Obligatory State Pension Insurance”.

On 26 July 2017 the plaintiff applied to the Department of the Pension Fund of Ukraine requesting to renew the pension payment. However, she was refused due to the lack of an international pension agreement between Ukraine and Israel, as well as the lack of the registration of her residence place on the territory of Ukraine and the legislative mechanism of pension payment for citizens residing abroad.

While applying to court, the plaintiff requested to renew the payment of pension appointed for her since 7 October 2009 – the day of the adoption of Judgment No. 25-рп/2009 by the Constitutional Court of Ukraine, pursuant to which item 2 of part 1 of Article 49, the second sentence of Article 51 of the Law of Ukraine “On Obligatory State Pension Insurance” had been acknowledged as unconstitutional.

While satisfying partially the claim, the first instance court, whose opinion was upheld by appeal court, relied on the fact that reasons for the renewal of the right to pension of individuals, who had left the country for permanent residence abroad, had appeared since the day of coming into force of this CCU Judgment.

While referring to the Procedure of Submission and Processing of Documents for Awarding (Restructuring) Pensions Pursuant to the Law of Ukraine “On Obligatory State Pension Insurance”, the courts remarked, at the same time, that since the plaintiff had applied with a claim on the pension payment renewal on 26 July 2017, the payment should be renewed just since that date.

While transferring this case for the consideration by the Grand Chamber of the Supreme Court, the panel of judges of the Administrative Cassation Court within the Supreme Court has noted that in the case No. 815/1226/18 there was a necessity to deviate from the opinion of the Supreme Court of Ukraine expressed in the Resolution of the Supreme Court of Ukraine of 8 December 2015 in the case No. 645/2730/15-а regarding the necessity of application of Articles 99 and 100 of the Code of Administrative Procedure of Ukraine (as applicable by 15 December 2017) concerning disputes, which had raised due to the renewal of payment of previously appointed pension on the grounds of the Judgment of the Constitutional Court of Ukraine No. 25-рп/2009 of 7 October 2009.

While raising the issue of deviation from the legal opinion of the Supreme Court of Ukraine, the Supreme Court represented by the panel of judges of the Administrative Cassation Court referred to relevant case-law of the European Court of Human Rights and remarked that the reasons for the deviation were represented, particularly, by changes, which had occurred in legal consciousness in recent times, caused by the amplification of the sphere of applying such principles as “good governance”, “peaceful possession of property”, “protection of legitimate expectations”, “legal certainty” in Ukraine, as well as changes in doctrinal approaches to the issue of constitutional guarantees of the implementation of an individual’s right to social protection.

Having considered the plaintiff’s cassation appeal, the Grand Chamber of the Supreme Court acknowledged such opinions of lower courts as erroneous ones in the view of following reasoning.

Retirement pension shall be once appointed for a person and shall be paid by the state during the pensioner’s whole life, save in exceptional cases, which may be established by law. Pension becomes “awarded” at the moment of the appointment and shall remain the same (“awarded”) till its next change. At the same time, the awarded sums of pension, which have not been received due to the fault of the body appointing and paying the pension, shall be paid retroactively without limitation for any period with the compensation for loss of the income part.

The SC Grand Chamber concluded that Articles 99 and 100 of the Code of Administrative Procedure of Ukraine (as applicable by 15 December 2017) should not be applicable to disputes, which had raised due to the renewal of payment of previously appointed (awarded) pensions to citizens of Ukraine residing beyond its territory on the grounds of the Judgment of the Constitutional Court of Ukraine No. 25-рп/2009 of 7 October 2009. Taking into account the fact that the non-payment of pension to such persons has occurred due to the fault of the state represented by its competent bodies, the renewal of the pension payment shall be performed without any time limitations.

Such opinion of the Grand Chamber of the Supreme Court shall be applicable while considering similar cases and as for Articles 122 and 123 of the Code of Administrative Procedure of Ukraine (as applicable since 15 December 2017), which in their contents are analogous to Articles 99 and 100 of the Code of Administrative Procedure of Ukraine (as applicable by 15 December 2017).

To comply with targets of administrative judicial proceedings and to ensure individuals’ constitutional guarantees to pension support, the Grand Chamber of the Supreme Court considers it necessary to deviate from the opinions of the Supreme Court of Ukraine set out the resolutions of 8 December 2015 in the case No. 21-5653а15, of 12 April 2016 in the case No. 462/9427/13-а, of 8 June 2016 in the case No. 505/2135/14-а and of 11 October 2016 in the case No. 404/4541/15-а regarding the fact that the existent disputes on the renewal of payment of previously appointed pensions for citizens of Ukraine residing beyond its territory on the grounds of the Judgment of the Constitutional Court of Ukraine No. 25-рп/2009 of 7 October 2009 shall be settled taking into account the norms of procedural law – Articles 99 and 100 Code of Administrative Procedure of Ukraine (as applicable by 15 December 2015).

The full the text of the Resolution of the Grand Chamber of the Supreme Court of 20 May 2020 in the case No. 815/1226/18 (proceedings No. 11-1206апп19) is available in the Unified State Register of Judgments.