In December 2023, the Government of Ukraine registered in the Verkhovna Rada of Ukraine the Bill “On Amendments to Certain Legislative Acts on Peculiarities of Pension Payment to Persons Who Committed Criminal Offenses Against the Fundamentals of National Security, Public Safety, Peace, Human Security, International Law and Order” (Reg. No. 10355). Its purpose is to regulate issues related to the payment of pensions to persons sentenced to restriction of freedom or imprisonment for committing intentional criminal offenses against the foundations of national security, public safety, peace, human security, international law and order, who are suspected or charged with committing these crimes.
What does the bill propose?
During the term of serving their sentence, those convicted of these criminal offenses shall be paid a pension in an amount not exceeding the subsistence minimum for persons who have lost their ability to work, as determined by law. According to the authors, this will be an additional preventive measure to protect state and public security, the security of mankind, international law and order and peace, defense capability, independence of the country, and its constitutional order. In addition, the amendments to Article 49 of the Law of Ukraine, “On Compulsory State Pension Insurance,” propose to suspend pension payments to persons who are suspected or accused of committing such criminal offenses.
What do human rights activists think about this?
This approach to the actual imposition of an additional pecuniary punishment on convicts raises doubts about the government’s priorities in terms of giving a negative assessment of certain types of crime. For example, those convicted of murder, torture, or rape are not subject to such pension restrictions. In other words, according to this logic, criminals who have committed murder, rape, torture, and other grave and especially grave crimes (including corruption) deserve less public condemnation than those who have been convicted of collaboration (such as ensuring the operation of the public utilities sector in the temporarily occupied territory of Ukraine).
A pension is a property to which ownership arises when a person makes mandatory contributions to a pension fund. It is unclear how the restriction of the right to receive a pension will prevent future crimes against national security, as such crimes are not crimes against property and are usually not committed for the purpose of enrichment.
Imposing an additional penalty in the form of a restriction of the right to a pension on persons who have already been sentenced to restriction of freedom or imprisonment violates the principle of prohibition of retroactive effect of criminal law, which worsens a person’s situation. The Constitution of Ukraine stipulates that laws and other legal acts do not have retroactive effect. The Criminal Code of Ukraine does not contain punishments such as suspension of pension payments for crimes against national security, and the retrospective application of such a punishment violates the principles of criminal law.
The termination of pension payments by the decision of a pension authority, as proposed by the draft law, is an atypical and punitive function of pension authorities.
Bill No. 10355 contains significant shortcomings that need to be addressed in a systematic manner. The proposed amendments to the laws of Ukraine are more than debatable for the stated purpose of adoption, and, in some aspects, contain signs of violating the fundamental principles of the Constitution of Ukraine. If the draft law is adopted in its current version, there is a high probability that decisions made in accordance with it will be challenged, including in the European Court of Human Rights.