DECISION OF THE CONSTITUTIONAL COURT OF UKRAINE

of October 10, 2001 No. 13-rp/2001

On the case of the constitutional idea of the Representative of the Verkhovna Rada of Ukraine for human rights of compliance of the Constitution of Ukraine (constitutionality) of provisions of Articles 7, 8 Laws of Ukraine "About the state guarantees of recovery of savings of citizens of Ukraine", according to the constitutional address of Vorobyov V. Yu., Losev S. V. and other citizens about official interpretation of provisions of Articles 22, 41, 64 Constitutions of Ukraine (case on saving of citizens)

Case No. 1-23/2001

NAME OF UKRAINE

Constitutional court of Ukraine as a part of judges of the Constitutional Court of Ukraine:

Victor Egorovich's buffoons - the chairman,

Voznyuk Vladimir Denisovich,

Evgrafov Pavel Borisovich,

Ivashchenko Vladimir Ivanovich,

Kozyubra Nikolay Ivanovich,

Korniyenko Nikolay Ivanovich - the judge-speaker,

Kostitsky Mikhail Vasilyevich,

Malinnikova Lyudmila Fiodorovna,

Rozenko Vitaly Ivanovich,

Savenko Nikolay Dmitriyevich,

Selivon Nikolay Fedosovich,

Timchenko Ivan Artemyevich,

Silent Vladimir Pavlovich,

Chubar Lyudmila Panteleevna,

Shapoval Vladimir Nikolaevich,

Yatsenko Stanislav Sergeyevich,

with participation: the person of law on constitutional predstavleniyeupolnomochenny the Verkhovna Rada of Ukraine on human rights of Karpacheva Nina Ivanovna; representatives of the person of law on the constitutional representation Tertsa Valery of Nikolaevich - the head of Department of the social and economic and cultural rights of citizens of the Secretariat of the Representative of the Verkhovna Rada of Ukraine for human rights, Tkachenko Nikolay Stepanovich - the head of department of constitutional right of the Secretariat of the Representative of the Verkhovna Rada of Ukraine for human rights; Selivanov Anatoly Aleksandrovich - the Permanent representative of the Verkhovna Rada of Ukraine in the Constitutional Court of Ukraine; Nosov Vladislav Vasilyevich - the Permanent representative of the President of Ukraine in the Constitutional Court of Ukraine; representatives of the Verkhovna Rada of Ukraine Adactylous Boris Yakovlevich - the People's Deputy of Ukraine, the member of the committee of the Verkhovna Rada of Ukraine on legal policy, Donchenko Yury Grigoryevich - the People's Deputy of Ukraine, the chairman of subcommittee of Committee of the Verkhovna Rada of Ukraine concerning social policy and work, Stojan Alexander of Nikolaevich - the People's Deputy of Ukraine, the chairman of subcommittee of Committee of the Verkhovna Rada of Ukraine concerning social policy and work; Ushakova of Raisa Antonovnynachalnika of Finance department of the non-productive sphere of the Ministry of Finance of Ukraine, Kovalchuk Sergey Nikolaevich - the chief of legal management of the Ministry of Finance of Ukraine; Lutkovskaya Valeria Vladimirovna - the Representative of the Ministry of Justice of Ukraine for observance of the Convention on human rights protection and fundamental freedoms,

considered at plenary meeting case concerning compliance of the Constitution of Ukraine (constitutionality) of provisions of Articles 7, 8 Laws of Ukraine "About the state guarantees of recovery of savings of citizens of Ukraine" of November 21, 1996 N 537/96-BP (Sheets of the Verkhovna Rada of Ukraine, 1997, N 8, the Art. 60, Art. 61; 1998, N 35, Art. 240) and rather official interpretation of provisions of Articles 22, 41, 64 Constitutions of Ukraine.

Reason for consideration of the case according to Articles 39, of 40, of 42, 43 Laws of Ukraine "About the Constitutional Court of Ukraine" became the constitutional representation of the Representative of the Verkhovna Rada of Ukraine for human rights, the constitutional address of Vorobyov V. Yu., Losev S. V. and other citizens - residents of the Kharkiv region.

The basis for consideration of the case according to article 71 of the Law of Ukraine "About the Constitutional Court of Ukraine" is availability of dispute on constitutionality of provisions of Articles 7, 8 Laws of Ukraine "About the state guarantees of recovery of savings of citizens of Ukraine", and also the availability of ambiguous application of provisions of Articles determined by article 94 of the Law of Ukraine "About the Constitutional Court of Ukraine" 22, of 41, 64 Constitutions of Ukraine.

Having heard the judge-speaker Korniyenko M. I., Karpachova N. I. explanation., Tertsa V. M., Tkachenko M. S., Selivanov A. O., Nosov V. V., Adactylous B. Ya., Donchenko Yu. G., Stojan O. M., Ushakova G. A., Kovalchuk S. M., Lutkovskoy V. V., the specialist, professor Rabinovich P. M. and having studied case papers, the Constitutional Court of Ukraine established:

1. The person of law on constitutional predstavleniyeupolnomochenny the Verkhovna Rada of Ukraine on human rights - addressed with the petition concerning compliance of the Constitution of Ukraine of provisions of Articles 7, 8 Laws of Ukraine "About the state guarantees of recovery of savings of citizens of Ukraine" (further - the Law).

The author of representation considers that provisions of the specified articles of the Law violate the constitutional rights and freedoms of citizens of Ukraine provided, in particular, by Articles 3, of 13, of 22, of 41, 48 Constitutions of Ukraine, and also international standards of human rights. The procedure established by the Law according to which the savings of citizens renewed and indexed according to this Law in organizations of Savings bank of Ukraine return step by step, depending on age of the investor, the deposit amount, other circumstances, in borders of the means provided for this purpose by the Government budget of Ukraine the current year means (Article 7), and in case of death вкладчикатолько their part which amount is determined proceeding from the size of government assistance on burial (Article 8).

At plenary meeting of the Constitutional Court of Ukraine the Representative of the Verkhovna Rada of Ukraine for human rights noted that the stipulated in Clause 7 Laws of restriction on return of cash savings of citizens break the principle of equality established by articles 24, of 41 Constitution of Ukraine.

2. Sparrows V. Yu., Losev S. V. and other citizens the constitutional address about need of official interpretation of Articles 22, of 41, prove 64 Constitutions of Ukraine by the fact that courts of law which they addressed with claims for return of their deposits, in one cases, being guided by the specified Articles, satisfied their claims, and based on provisions of the Law refused others. Therefore such ambiguous application of provisions of the Constitution of Ukraine by courts of law led, according to applicants, to violation of their property right, in particular concerning return on the first demand of their deposits and the right to dispose of them.

Considering that the constitutional representation of the Representative of the Verkhovna Rada of Ukraine for human rights, the constitutional address of Vorobyov V. Yu., Losev S. V. and other citizens concern the same question, based on article 58 of the Law of Ukraine "About the Constitutional Court of Ukraine" they are united in one constitutional proceeedings.

3. Written explanations of the Chairman of the Verkhovna Rada of Ukraine, the First the Deputy Prime Minister of the minister of Ukraine, the Ministry of Justice of Ukraine are filed.

According to the Chairman of the Verkhovna Rada of Ukraine, provision of Articles 7, 8 Laws do not limit realization of the constitutional right of citizens on property affirmed in article 41 of the Constitution of Ukraine. At the same time the provision of article 7 of the Law according to which savings return "in borders of the means provided for this purpose by the Government budget of Ukraine the current year" needs official interpretation.

The first vice-Prime Minister of Ukraine noted that idea of the Representative of the Verkhovna Rada of Ukraine for human rights of illegality of Articles 7, 8 Laws cannot be satisfied due to the lack of possibility of return of the indexed deposits with everything at the same time and in full.

The Ministry of Justice of Ukraine considers that the amount of compensation added by the state on deposits of citizens is not their property. With respect thereto the mechanism of return of these deposits provided by Articles 7, 8 Laws is lawful.

4. In performance at plenary meeting Stojan O. M. specified that considering financial opportunities of the state the Verkhovna Rada of Ukraine consciously went for restriction of the right of investors to dispose of their cash savings depreciated and renewed in organizations of Savings bank of Ukraine. At the same time the mechanism of step-by-step return of savings of citizens established by the Law requires enhancement.

According to Adactylous B. Ya., provisions of Articles 7, 8 Laws answer the Constitution of Ukraine as citizens who placed the savings till January 2, 1992 in organizations of Savings bank of the USSR actually lost them, and on the renewed and priondeksirovanny deposits did not acquire the property right. This point of view is divided by Donchenko Yu. G., who considers that recovery of actual cost of savings are only privilege for those citizens to whom first of all provisions of article 7 of the Law extend.

Selivanov A. O. supported line item of the Chairman of the Verkhovna Rada of Ukraine.

Compensation by the state of the depreciated savings, according to Nosov V. V., is element of social protection of citizens and does not involve its civil responsibility to investors of the former Savings bank of the USSR.

According to Lutkovskaya V. V., person has no property right to the priondeksirovanny amount which contains on off-budget accounts of Savings bank of Ukraine. These means are the actual registration of the right of person to receive compensation amount in case of accomplishment by the state of the conditions established by it.

In the performances of Ushakov R. A. and Kovalchuk S. M. was marked out that the mechanism of return of savings of citizens established by Articles 7, 8 Laws is optimum, such which gives the chance taking into account financial capability of the state at least somehow to compensate savings of the most socially unprotected citizens.

5. Solving dispute on constitutionality of provisions of Articles 7, 8 Laws, the Constitutional Court of Ukraine proceeds from it.

5.1. According to the Constitution of Ukraine everyone has the right to own, use and dispose of the property, results of the intellectual, creative activities (Article part one 41); nobody can be illegally deprived of the property right, the right of private property is indestructible (Article part four 41).

Money is property right object, including private (article 13 of the Law of Ukraine "About property".

According to Article 384 of the Civil code of the Ukrainian SSR citizens can store means in the public bank and other credit institutes, dispose of deposits, gain income in type of percent or prizes on deposits, to perfrom clearing settlements according to charters of the specified organizations and issued in accordance with the established procedure governed.

The science of the civil law recognizes that placement by person of means on accounts of savings bank for the purpose of their preserving is realization of its property right to these means and at the same time the conclusion between the investor and savings bank of the civil agreement (bank deposit agreement) which confirmation is the savings book. The reality of any subjective property right consists in its security. Household deposits in Savings bank of Ukraine, it is specified in the Law of Ukraine "About banks and banking activity", are guaranteed by the state (Article part two 57).

As for the obligation of the state to guarantee household deposits of Savings bank of Ukraine, these obligations have civil nature. The state, is specified in part two of Article 384 of the Civil code of the Ukrainian SSR, guarantees confidentiality of deposits, their safety and issue on the first demand of the investor.

These provisions of the legislation are approved with the stated above provisions of the Constitution of Ukraine, and also part two of Article 3 of the Fundamental Law according to which human rights and freedoms and their guarantees determine content and orientation of activities of the state. The state answers to the person for the activities. Approval and providing human rights and freedoms is the main debt of the state.

5.2. One of methods of protection of the property right of investors is recovery of provision which existed before violation of this right (part one of Article 6 of the Civil code of the Ukrainian SSR).

The law which separate provisions are disputed by the Representative of the Verkhovna Rada of Ukraine for human rights establishes obligations of the state to citizens of Ukraine, foreign citizens and persons without citizenship who owing to inflation and other circumstances actually lost the cash savings placed in the period till January 2, 1992 in organizations of Savings bank of the USSR which operated on the territory of Ukraine, and also in organizations of Savings bank of Ukraine during 1992-1994 if they consisted on its accounts at least than one complete calendar year during 1992-1995 (Article 1). The essence of these obligations consists in preserving and recovery of actual cost of the specified savings of citizens by their one-time compensation indexation of Savings bank of Ukraine by organizations within December, 1996 - March, 1997, as was made and is attested issue of savings books to investors (Articles 2, 5). Further compensation indexation of savings of citizens according to provisions of part two of article 3 of the Law is performed during issue of deposits.

Recovery of savings of citizens by compensation indexation in organizations of Savings bank of Ukraine means not only renewal of their actual cost, but also the investor's right as owner of the cash savings to require return of the renewed and indexed amount of this contribution.

5.3. According to the Constitution of Ukraine the right of private property is indestructible (Article part four 41). Constitutional rights and freedom of man and citizen cannot be limited, except the cases provided by the Constitution of Ukraine (Article part one 64).

Considering these provisions established by the Law (Article 7) the mechanism according to which savings return not on the first demand of the investor as it is stipulated in Article 384 Civil codes of the Ukrainian SSR, and "step by step, depending on age of the investor, the deposit amount, other circumstances, in borders of the means provided for this purpose by the Government budget of Ukraine the current year" limits constitutional right of property of citizens whose money deposits are renewed by compensation indexation in Government savings bank of Ukraine.

5.4. According to the Constitution of Ukraine owners, performing the property right, shall observe the constitutional regulations that "the property obliges", and it "shall not be used to the detriment of the person and society" (Article part three 13), and also that use of property cannot do harm to the rights, freedoms and advantage of citizens, interests of society (Article part seven 41).

Therefore, follows from systems analysis of provisions of the Constitution of Ukraine that the property right can be limited.

The right of the state to limit ownership, use and the order of property is determined also by the First protocol to the Convention on human rights protection and fundamental freedoms of 1950. Each physical person or legal entity, is specified in this document, has the right to own peacefully the property. However the state has the right "enact such laws which, in his opinion, are necessary for control of use of property according to common interests..." (Article 1).

Considering it is the Constitutional Court of Ukraine considers that provisions of article 7 of the Law according to which savings return "step by step" "depending on the deposit amount", "in borders of the means provided for this purpose by the Government budget of Ukraine the current year" though limit constitutional right of property of citizens, but do not contradict Articles 13, of 41, 64 and to other articles of the Constitution of Ukraine.

At the same time the Constitutional Court of Ukraine specifies that absence in the Law of specific stages, terms of return of savings and amounts of budgetary appropriations can lead to complete loss by citizens of the deposits, i.e. to violation of their constitutional right of property.

Such line item is stated also in the decision of the European Court of Human Rights in "James and others against the United Kingdom" of February 21, 1986: "Without denying the right of the state to establish - in rather wide borders of discretion, according to its domestic legislative, social, economic policy or with other purpose - restrictions in use of property right objects taking into account public interest, it must be kept in mind that these restrictions, however, shall not lead to deprivation of opportunities of such use, i.e. to their complete loss".

5.5. According to the Constitution of Ukraine citizens have equal constitutional rights and freedoms (Article part one 24). It means, as the right of possession established by the Fundamental Law, uses and orders property (Article part one 41), as well as restriction of this right by the state, shall be equal for all citizens.

Considering this provision of article 7 of the Law according to which the savings of citizens renewed and priondeksirovanny according to the Law in organizations of Savings bank of Ukraine, return to dependences "from age of the investor", is such which does not answer the Constitution of Ukraine (is unconstitutional).

As for "other circumstances" as one of conditions of return of the renewed deposits, this provision of article 7 of the Law also does not answer the Constitution of Ukraine (is unconstitutional). Its any interpretation in the course of application of the Law can lead to violation of equality of owners of the renewed and indexed deposits to their right restriction for return of these deposits.

6. According to article 8 of the Law in case of the death of the investor heirs or other persons, representatives of local executive bodies, local government bodies or public organizations which undertook the organization of funeral can receive in case of presentation of the savings book of the investor and the death certificate in organizations of Savings bank of Ukraine, on the location of contribution, part of the indexed contribution for the organization of funeral and holding funeral and ritual actions, necessary according to national traditions, which amount is determined proceeding from the size of government assistance on burial.

This regulation does not deprive of heirs of the right to inheritance of contribution in accordance with general practice and consequently, and on receipt of the right of the owner to this contribution.

Accepting the adduced arguments in attention, the Constitutional Court of Ukraine considers that bases for recognition of provision of article 8 of the Law it which does not answer the Constitution of Ukraine, no.

7. Deposits, renewed and priondeksirovanny according to the Law, are object of the right of private property of citizens. Considering this operation of articles 22, of 41, 64 Constitutions of Ukraine about which need of official interpretation it is in the constitutional address of Vorobyov V. Yu., Losev S. V. and other citizens, extends as well to the property relations which object are the specified deposits.

Based on stated and being guided by Articles 147, of 150, 152 Constitutions of Ukraine, Articles 51, of 61, of 63, 70 Laws of Ukraine "About the Constitutional Court of Ukraine", the Constitutional Court of Ukraine solved:

1. Recognize such which do not answer the Constitution of Ukraine (are unconstitutional), provisions of article 7 of the Law of Ukraine "About the state guarantees of recovery of savings of citizens of Ukraine" of November 21, 1996 N 537/96-BP (with changes) regarding return of savings of citizens of Ukraine, the foreign citizens and stateless persons renewed and indexed according to this Law in organizations of Savings bank of Ukraine, in dependence "from age of the investor" and "other circumstances".

2. Recognize such which answers the Constitution of Ukraine (is constitutional), provision of article 8 of the Law of Ukraine "About the state guarantees of recovery of savings of citizens of Ukraine".

3. In aspect of the constitutional address of Vorobyov V. Yu., Losev S. V. and other citizens of provision of Articles 22, of 41, 64 Constitutions of Ukraine should be understood so that their action extends also to the property relations which object are the deposits renewed and priondeksirovanny according to the Law of Ukraine "About the state guarantees of recovery of savings of citizens of Ukraine" in organizations of Savings bank of Ukraine.

4. Provisions of article 7 of the Law of Ukraine "About the state guarantees of recovery of savings of citizens of Ukraine", recognized as unconstitutional, lose force from day of acceptance by the Constitutional Court of Ukraine of this Decision.

5. The solution of the Constitutional Court of Ukraine is obligatory to execution in the territory of Ukraine, final and cannot be appealed.

Decision of the Constitutional Court of Ukraine is subject to publication in "the Messenger of the Constitutional Court of Ukraine" and in other official publications of Ukraine.

 

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