DECISION OF THE CONSTITUTIONAL COURT OF UKRAINE

of April 28, 2009 No. 9-rp/2009

On case on the constitutional representation of the President of Ukraine concerning compliance of the Constitution of Ukraine (constitutionality) of the subitem 13 of item 4 of the Section I of the Law of Ukraine "About introduction of amendments to some laws of Ukraine concerning reduction of influence of the global financial crisis by the sphere of employment of the population" (case on the help with unemployment uvolnenny by agreement of the parties)

Case No. 1-19/2009

NAME OF UKRAINE

Constitutional court of Ukraine consisting of judges:

Strizhak Andrey Andreevich - the chairman,

Baulin Yury Vasilyevich,

Vdovichenko Sergey Leonidovich,

Golovin Anatoly Sergeyevich,

Dzhunya Vyacheslav Vasilyevich,

Didkovsky Anatoly Aleksandrovich,

Dombrovsky Ivan Petrovich,

Kamp Vladimir Mikhaylovich,

Mikhail Ivanovich's ear,

Lilak Dmitry Dmitriyevich,

Markush Maria Andreevna - the speaker,

Machuzhak Yaroslava Vasilyevna,

Nikitin Yury Ivanovich,

Ovcharenko Vyacheslav Andreevich,

Stetsyuk Pyotr Bogdanovich,

Shishkin Victor Ivanovich,

with the assistance of representatives of the person of law on the constitutional representation Solodkogo Rostislav Dmitriyevicha - the deputy manager of Service of ensuring bonds with the Constitutional Court of Ukraine and Central Election Commission of the Secretariat of the President of Ukraine, Doroshkevich Ruslan Nikolaevich - the deputy manager of the Main service of social and economic development - the head of department of social policy of the Secretariat of the President of Ukraine; Selivanov Anatoly Aleksandrovich - the Permanent representative of the Verkhovna Rada of Ukraine in the Constitutional Court of Ukraine; recruited in consideration of the case: Nemchenko Vasily Ivanovich - the Permanent representative of the Cabinet of Ministers of Ukraine in the Constitutional Court of Ukraine, Ivankevich Victor Viktorovich - the deputy minister of work and social policy of Ukraine, Zhugayevich of Yarema Vasilyevichapredsedatel of board of Fund of obligatory national social insurance of Ukraine on case of unemployment, Zinkevich Natalya Ivanovna - the first deputy director of the State jobcenter, considered at plenary meeting case on the constitutional representation of the President of Ukraine concerning compliance of the Constitution of Ukraine (constitutionality) of the subitem 13 of item 4 of the Section I of the Law of Ukraine "About introduction of amendments to some laws of Ukraine concerning reduction of influence of the global financial crisis by the sphere of employment of the population" of December 25, 2008 N 799-VI (Uryadovy of hens' єр, 2009, on January 13).

Reason for consideration of the case according to Articles 39, 40 Laws of Ukraine "About the Constitutional Court of Ukraine" became the constitutional representation of the President of Ukraine.

The basis for consideration of the case according to Articles 71, 82 Laws of Ukraine "About the Constitutional Court of Ukraine" are availability of dispute on constitutionality of provisions of the subitem 13 of item 4 of the Section I of the Law of Ukraine "About introduction of amendments to some laws of Ukraine concerning reduction of influence of the global financial crisis by the sphere of employment of the population".

Having heard the judge-speaker Markush M. A., Solodky M. D., Doroshkevich M. M., Selivanov A. O. explanations., Nemchenko V. I., Ivankevich V. V., Zhugayevich Ya. V., Zinkevich N. I. and having researched case papers, the Constitutional Court of Ukraine established:

1. The person of law on the constitutional representation is the President of Ukraine - appealed to the Constitutional Court of Ukraine with the petition to recognize such which does not answer the Constitution of Ukraine, in particular to Articles 22, of 46, of provision of part three of article 23 of the Law of Ukraine "About obligatory national social insurance unemployment case" of March 2, 2000 N 1533-III (In? домост? Verkhovno ї For the sake of Ukra§ni, 2000, N 22, the Art. 171) (further - the Law) in edition of the Law of Ukraine "About introduction of amendments to some laws of Ukraine concerning reduction of influence of the global financial crisis by the sphere of employment of the population" of December 25, 2008 N 799-VI (further - the Law N 799-VI).

In the constitutional representation it is specified that amendment of part three of article 23 of the Law after words of "reasonable excuses" by the words "or by agreement of the parties" violates constitutional rights of citizens of Ukraine as before modification of part third of article 23 of the Law the help with unemployment to persons who left by agreement of the parties was paid from the eighth day after registration of insured person in accordance with the established procedure in public service of employment (part three of article 22 of the Law). As affirms as the constitutional representation, with change of edition of part three of article 23 of the Law "the help with unemployment to persons who left from the last place of employment at own will without valid excuse or by agreement of the parties will be paid from the 91st calendar day".

The head of state considers that thus the legislator narrowed content of the right of citizens who left from the last place of employment by agreement of the parties, on receipt of the help in the first three months of the period which proceeds after termination of the employment contract (contract) by agreement of the parties, than violated requirements of article 22 of the Constitution of Ukraine according to which in case of adoption of the new laws narrowing of content and amount of the existing rights and freedoms is not allowed. The specified amendment also limits the right of citizens to social protection which includes the right to providing them, in particular, in case of unemployment owing to circumstances; this right is guaranteed by obligatory national social insurance at the expense of insurance premiums of citizens, the companies, organizations and the organizations, and also budget and other sources of social security (article 46 of the Constitution of Ukraine).

2. The line items which concerns subject of the constitutional representation stated the President of Ukraine, the Cabinet of Ministers of Ukraine, the Chairman of the Verkhovna Rada of Ukraine, the Ministry of Labour and Social Policy of Ukraine, Federation of trade unions of Ukraine, Fund of obligatory national social insurance of Ukraine on unemployment case, scientists of the Kiev national university of Taras Shevchenko, National legal academy of Ukraine of Yaroslav the Wise, the Odessa national legal academy.

3. Constitutional court of Ukraine, considering the questions which are brought up in the constitutional representation, proceeds from the following.

Ukraine is the sovereign and independent, democratic, social, constitutional state (article 1 of the Constitution of Ukraine). 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 (part two of article 3 of the Constitution of Ukraine). The constitution of Ukraine guarantees the right to social protection of citizens that includes the right to providing them in case of complete, partial or temporary disability, loss of the supporter, unemployment owing to circumstances, and also in old age and in other cases provided by the law (Article part one 46). Thus the list of cases with which this constitutional regulation connects the citizen's right to social protection is not exhaustive.

Social protection contacts impossibility to have earnings (labor earnings), its loss or insufficient level of vital providing the citizen and disabled members of his family, in particular in case of unemployment as the social and economic phenomenon. Obligatory national social insurance constitutes system of the rights, obligations and guarantees which provides social protection which includes material security of citizens in case of disease, complete, partial or temporary disability, loss of the supporter, unemployment owing to circumstances, and also in old age and in other cases provided by the law at the expense of cash funds which are created by payment of insurance premiums by the owner or the body authorized by it, citizens, and also the budget and other sources provided by the law (article 1 of Bases of the legislation of Ukraine about obligatory national social insurance) (daleeosnova). The state is guarantor of providing insured persons and provisions of the corresponding social services by it (part two of article 8 of the Law). The state sales warranties insured citizens of the rights and legislative determination of conditions and procedure of obligatory national social insurance are the principles of obligatory national social insurance (Article 5 of Bases).

According to the Constitution of Ukraine and Bases the Law determined pravovovy base, the economic mechanism and organizational structure of obligatory national social insurance of citizens, in particular on unemployment case. Obligatory national social insurance on unemployment case (further - insurance on unemployment case) is system of the rights, obligations and guarantees which provides material security on unemployment case on circumstances, independent of insured persons, and provision of social services by fund of obligatory national social insurance of Ukraine on unemployment case (Item 1 of article 1 of the Law). One of the principles by which insurance on unemployment case is performed is provision of the state sales warranties by insured persons of the rights (article 2 of the Law).

4. On edition of Item 9 of article 1 of the Law before modification the list of the bases of loss of work on circumstances, independent of insured persons, - the termination of the employment contract according to Items 1, of 2, 3 articles 36, of article 38 (in case of impossibility of further work, and also failure to carry out by the owner or the body of the legislation on work authorized by it, conditions of the collective agreement or employment contract), Articles 39, of Items 1, of 2, of 5, of the 6th Article 40 of the Labor code of Ukraine was fixed (further - the Code).

Item 9 of article 1 of the Law is reworded as follows by instructions of subitem 1 (the paragraph of the seventh) of item 4 of the Section I of the Law N 799-VI. This edition does not provide in the list of the bases of loss of work on circumstances, independent of insured persons, the termination of the employment contract according to Item 1 of article 36 of the Code - by agreement of the parties.

5. Article 22 of the Law determines conditions and duration of payment of the help with unemployment. On contents of this Article which establishes the general rule concerning conditions of giving of the help with unemployment persons who stopped the employment contract, in particular according to Item 1 of article 36 of the Code, before modification of part third of article 23 of the Law, belonged to category of persons who left on reasonable excuses. The right to payment of the help with unemployment according to the general rule fixed in part three of article 22 of the Law at these persons arose from the eighth day after their registration in accordance with the established procedure in public service of employment.

New edition of Item 9 of article 1 of the Law and changes to part three of article 23 of the Law from category of citizens who had the right to payment of the help with unemployment in accordance with general practice according to provisions of article 22 of the Law withdraw category of persons who left by agreement of the parties (Item 1 of article 36 of the Code), and are included in the group of people, determined in part three of article 23 of the Law. I.e. they are equated to persons who lost work without valid excuse. Respectively citizens who left by agreement of the parties to the introduction in action of new edition of Item 9 of Article 1 and modification of part third. article 23 of the Law according to article 22 of the Law, had the right by the general rule fixed in part three of article 22 of the Law to payment of the help with unemployment from the eighth day after their registration in accordance with the established procedure in public service of employment in accordance with general practice, and with entering of the specified changes into the Law such right at them arises from the 91st calendar day.

The constitutional court of Ukraine recognizes that owing to the changes made to Item 9 of Article 1 and part three of article 23 of the Law citizens of Ukraine, uvolnenny from the last place of employment by agreement of the parties, lost the right to payment of the help with unemployment from the eighth day after their registration in accordance with the established procedure in public service of employment (article 22 of the Law), and sledovatelno the right to the help with unemployment within 90 calendar days after dismissal from work. The constitution of Ukraine does not allow in case of adoption of the new laws or introduction of amendments to current laws of narrowing of content and amount of the existing rights and freedoms (part three of article 22 of the Constitution of Ukraine). The right to social protection is the inherent constitutional right of citizens. Constitutional rights and freedom of man and citizen cannot be limited, except the cases provided by the Constitution of Ukraine; separate restrictions of the rights and freedoms can be established only in the conditions of warlike or emergency state with indication of effective period of these restrictions (part one, the second article 64 of the Constitution of Ukraine).

By instructions of the Law of Ukraine "About employment of the population" it is determined that payment in accordance with the established procedure to the help with unemployment is one of types of compensations which are provided with the state (the subitem "v" of part one of Article 25); persons recognized in the procedure established by the law as the unemployed have the right to this compensation - the help with unemployment (Article part two 11). In solutions of the Constitutional Court of Ukraine it was repeatedly emphasized that privileges, compensations, guarantees are type of the public assistance and necessary component of constitutional right on sufficient living standards on which everyone has the right to sufficient living standards for himself and the family (article 48 of the Constitution of Ukraine) therefore narrowing of content and amount of this right by adoption of the new laws or introduction of amendments to current laws according to article 22 of the Constitution of Ukraine is not allowed (the solution of the Constitutional Court of Ukraine of July 6, 1999 by N 8-rp/99, of March 20, 2002 N 5-rp/2002, of March 17, 2004 N 7-rp/2004, of December 1, 2004 N 20-rp/2004, of October 11, 2005 N 8-rp/2005, of June 18, 2007 N4-rp/2007).

The constitutional court of Ukraine considers that edition of the Law before modification did not limit the right of the specified category of persons to social protection and therefore restrictions of the rights to the public assistance which are rather already determined in the Law as such restrictions deprive this category of persons of possibility of receipt of the help with unemployment during the certain period could not be introduced by the Law N 799-VI. In case of adoption of the new laws or introduction of amendments to current laws narrowing of content is not allowed and amount of the existing rights and freedoms (part three of article 22 of the Constitution of Ukraine), differently the provision of person in society because of restriction of the rights and freedoms enshrined in the laws of Ukraine worsens. Failure to carry out of the social obligations of rather separate category of persons by the state leads to violation of the principles of the social, constitutional state, puts citizens in unequal conditions, undermines reliance principle of person to the state.

Under such circumstances the Constitutional Court of Ukraine came to conclusion that the specified changes to the Law limited the rights of citizens which stopped the employment contract on Item 1 of article 36 of the Code. Therefore, the provision of part three of article 23 of the Law in edition of the Law N 799-VI does not answer article 22 of the Constitution of Ukraine. As the provision of part three of article 23 of the Law is in system communication with provision of Item 9 of article 1 of the Law, according to part three of article 61 of the Law of Ukraine "About the Constitutional Court of Ukraine" there are bases for recognition of provision of Item 9 of article 1 of the Law in edition of the Law N 799-VI unconstitutional.

Considering stated and being guided by Articles 22, of 147, of 150, of 152, 153 Constitutions of Ukraine, Articles 51, of 61, of 63, of 65, of 67, of 69, 73 Laws of Ukraine "About the Constitutional Court of Ukraine", the Constitutional Court of Ukraine solved:

1. Recognize such which does not answer the Constitution of Ukraine (is unconstitutional), provision of Item 9 of Article 1 to the Law of Ukraine "About obligatory national social insurance on unemployment case" of March 2, 2000 N 1533-III in edition of the Law of Ukraine "About introduction of amendments to some laws of Ukraine concerning reduction of influence of the global financial crisis by the sphere of employment of the population" of December 25, 2008 N 799-VI (subitem 1 (the paragraph of the seventh) of Item 4) of the Section I) regarding withdrawal in the specified edition of Item 1 of Article 36 of the Labor code of Ukraine.

2. Recognize such which does not answer the Constitution of Ukraine (is unconstitutional), provision of part three of article 23 of the Law of Ukraine "About obligatory national social insurance on unemployment case" of March 2, 2000 N 1533-III in edition of the Law of Ukraine "About introduction of amendments to some laws of Ukraine concerning reduction of influence of the global financial crisis by the sphere of employment of the population" of December 25, 2008 N 799-VI (the subitem 13 of item 4 of the Section I) concerning amendment after words of "reasonable excuses" as the words "or by agreement of the parties".

3. Provisions of the Law of Ukraine "About obligatory national social insurance on unemployment case", are recognized as unconstitutional, lose force from day of acceptance by the Constitutional Court of Ukraine of this Decision.

4. The solution of the Constitutional Court of Ukraine is mandatory in the territory of Ukraine, final and cannot be appealed.

The solution of the Constitutional Court of Ukraine is subject to publication in "In? to snik Konstituts? yny to Ukra§ni's Court" and in other official publications of Ukraine.

Disclaimer! This text was translated by AI translator and is not a valid juridical document. No warranty. No claim. More info