ANNUAL REPORTOF UKRAINIAN PARLIAMENT COMMISSIONER FOR HUMAN RIGHTS CHAPTER 1 26 According to the existing case law6, the courts recognize that public authorities unlawfully apply in their practice the provisions of effective legislation that are declared unconstitutional, despite the fact that the relevant legislative acts have not been amended accordingly. The Ministry of Justice refers to the legal position of the Constitutional Court of Ukraine7, according to which “the decisions of the Constitutional Court of Ukraine, irrespective whether they specify the procedure and terms of their implementation or not, are binding on the whole territory of Ukraine. Public authorities should refrain from applying or using legal acts or provisions thereof, which are declared unconstitutional. The decisions of the Constitutional Court of Ukraine have direct effect and do not require confirmation by any public authority to enter into force.” The Ministry of Social Policy sees the restoration of the rights of the citizens affected by Chornobyl disaster and war veterans in accordance with the decisions of the Constitutional Court of Ukraine # 6-r/2018 of 17 July 2018 and #12-r/2018 of 18 December 2018 is only possible through amending the respective laws. At the same time, the decision of the Constitutional Court of Ukraine of #2-r/2019 of 4 June 2019 in the case upon constitutional submissions of 45 MPs of Ukraine regarding the conformity with Constitution of Ukraine of certain provisions of the Law of Ukraine “On Pension Coverage” #1788 XII of 5 November 1991 and of 48 MPs of Ukraine regarding the conformity with Constitution of Ukraine of certain provisions of the laws of Ukraine “On Pension Coverage,” “On the Status and Social Protection of Citizens affected by Chornobyl Disaster,” “On Pension Coverage of Persons Dismissed from Military Service and Certain Other Persons,” “On Civil Service,” “On Forensic Examination,” “On the National Bank of Ukraine,”“On Service in Local Self-Government Bodies,”“On the Status of the Member of Parliament of Ukraine,”“On Diplomatic Service,”“On Compulsory State Pension Insurance,”“On the Cabinet of Ministers of Ukraine,” “On the Prosecutor’s Office,” as well as the Regulation on the Assistant Consultant of the MP of Ukraine approved by the Verkhovna Rada of Ukraine #379/95-BP of 13 October 1995 on the right of citizens to retirement pension shall be enforced without amending the pension legislation by applying its provisions without amending the laws that have been declared unconstitutional8. The Verkhovna Rada of Ukraine is considering the draft laws aimed at enforcing the decisions of the Constitutional Court of Ukraine, in particular: the draft law “On amendments to certain laws of Ukraine on restoration of the appropriate social guarantees of citizens affected by Chornobyl disaster, for ensuring implementation of the decisions of the Constitutional Court of Ukraine” (reg. #1117 of 29.08.2018); the draft law “On amendments to certain laws of Ukraine on restoration of existing rights and freedoms of war veterans, labour veterans, children of war and victims of Nazi persecution (reg. #1118 of 29.08.2019); draft law “On amendments to the Law of Ukraine “On the Status of War Veterans, Guarantees of their Social Protection” regarding the renewal of benefits due to the decision of the Constitutional Court of Ukraine #12-r/2018 of 28 December 2018 and clarification of certain provisions” (reg. #2046 of 03.09.2019). They should be considered as soon as possible. The decision of the Supreme Court #240/4937/18 of 21 January 2019 (#PZ/9901/55/18) (concerning the recalculation of pensions due to Chornobyl disaster) declared the omission by the Ovruch Unified Department of PFU in Zhytomyr oblast unlawful as it failed to award and pay increased pension since 17 July 2018 to an applicant as an unemployed pensioner living in the territory of radioactive contamination, based on the provisions of Article 39 of the Law of Ukraine “On the Status and Social Protection of Citizens affected by Chornobyl Disaster” #796-XII of 28 February 1991, which the Constitutional Court of Ukraine declared inconsistent with the Constitution by its judgment # 6 r/2018 of 17 July 2018. 6 7 http://zakon.rada.gov.ua/laws/show/v013p710-18. According to the PFU, after the Constitutional Court of Ukraine issued a decision #2-r-2019 of 4 June 2019, a total of 1,892 persons applied for a retirement pension in accordance with Article 54, item (a), and Article 55 of the Law of Ukraine “On Pension Coverage” #1788-XII of 5 November 1991, and 1,579 of them were awarded a pension. During the validity of the provisions which were declared unconstitutional by the decision of the Constitutional Court of Ukraine, 41 persons were denied a retirement pension, but their right to that pension was renewed as they applied for such a renewal after the relevant decision of the Constitutional Court of Ukraine was adopted. 8