Weekly analytics for 17 — 23 January

Pension amount limits for criminals: The Government’s new initiative

Event

On January 17, 2024, the Parliament’s Committee on Social Policy and Veterans’ Rights recommended to include in the session’s agenda the Government’s draft law “On amendments to certain legislative acts on the peculiarities of pension payments to persons committed a criminal offense against the fundamentals of national security, public safety, peace, human security, or international law and order” (registration №10355 of 18.12.2023).

This draft was developed to address the issues related to the payment of pensions to persons sentenced to restriction of liberty or imprisonment for intentional criminal offenses against the foundations of national security, public safety, peace, human security, or international law and order, as well as to persons declared wanted or internationally wanted.

These include the following criminal offenses under the Criminal Code of Ukraine: actions aimed at violent change or overthrow of the constitutional order or seizure of state power (Article 109); encroachment on the territorial integrity and inviolability of Ukraine (Article 110); financing of actions aimed at violent change or overthrow of the constitutional order or seizure of state power, as well as changing the territorial borders or the state border of Ukraine (Article 1102); state treason (Article 111); collaborationism (parts 3-8 of Article 1111); aiding and abetting the aggressor state (Article 1112); sabotage (Article 113); espionage (Article 114); obstruction of lawful activities of the Armed Forces of Ukraine and other military formations (Article 1141); terrorist act (Article 258); public calls for committing a terrorist act (Article 2582); creation of a terrorist group or terrorist organization (Article 2583); financing of terrorism (Article 2585); creation of paramilitary or armed formations not provided for by law (Article 260); planning, preparation, initiation, and conduct of aggressive war (Article 437); violation of the laws and customs of war (Article 438); ecocide (Article 441); genocide (Article 442); and mercenarism (Article 447).

The Draft Law proposes amendments to the Criminal Enforcement Code of Ukraine, as well as the Laws of Ukraine “On the status and social protection of citizens affected by the Chornobyl disaster”, “On pensions for persons discharged from military service and some other persons”, “On compulsory state pension insurance”, “On the prosecutor’s office”, and “On civil service”.

At the same time, the Parliament’s Committee on Social Policy and Protection of Veterans’ Rights recommended that the Parliament’s Committee on Law Enforcement Activity support the Government’s draft law “On amendments to the Criminal Procedure Code of Ukraine regarding persons suspected or accused of committing a criminal offense” (Reg. №10356 of 18.12.2023). This draft law proposes, inter alia, to require that an investigator and prosecutor inform the Pension Fund of Ukraine regarding a suspect accused of committing an intentional criminal offense under the above articles of the Criminal Code of Ukraine who is entitled to pension benefits, as well as such suspect’s placement on the wanted list or the international wanted list and removal from such list.

CPLR’s expert assessment

At first glance, the idea of the legislative initiative is clear: if a person has committed a grave or especially grave crime against the foundations of national security, public safety, peace, human security, and international law and order, why should the state support such a person by paying him or her a significant pension? In this situation, there is an analogy with the existing provision regarding the reduction of the amount of pensions for persons who were dismissed from service due to conviction for an intentional criminal offense committed by using their official position or being brought to administrative responsibility for committing a corruption-related offense (Article 5 of the Law of Ukraine “On pension provision for persons discharged from military service and some other persons”).

Despite this, a number of concerns should be expressed regarding these government initiatives.
1. In terms of its legal nature, reducing the amount of a person’s pension for committing a crime is characteristic of legal responsibility. After all, such a measure involves depriving a person of certain values belonging to him or her, thus restricting his/her constitutional rights. Since this instrument is used in connection with the commission of a criminal offense, there is a question of its reflection in a criminal law.

At present, the Criminal Code of Ukraine does not reference such type of punishment or other criminal law measure as reduction in the pension amount. If we look, for example, at the legislation of the Federal Republic of Germany, we can see that reduction of pension or deprivation of pension is recognized as a form of punishment for committing a disciplinary offense by an official, and the decision to apply it is made by court (paragraph 5 of the Federal Disciplinary Statute of Germany of July 9, 2001).

Given the provisions of Articles 41, 46, 48, and 55 of the Constitution of Ukraine, which guarantee the protection of property rights, social protection of individuals, an adequate standard of living, and judicial protection of their rights, it seems that the implementation of such a measure requires mandatory amendments not only to pension legislation, but also to criminal legislation, which should define the grounds, conditions, and procedure for its application. It is not enough to simply amend Article 374 of the Criminal Procedure Code of Ukraine by referencing the decision to pay a reduced pension in a court verdict.

This would also correspond to the provisions of the Criminal Code of Ukraine, which specifies that a court decides on the application to a person of criminal law measures envisioned under this Code.
2. The possibility of reducing the amount of pension prior to issuance of a court’s verdict in the case, i.e., in respect of a person who is suspected or accused of committing certain crimes, is dubious. First of all, this contradicts the principle of the presumption of innocence, according to which a person is considered innocent of committing a criminal offense until found guilty by a court verdict that has entered into force. It is impossible to apply responsibility measures to a person who has not been legally declared guilty. Furthermore, the Criminal Procedure Code of Ukraine (Article 131) contains an exhaustive list of precautionary measures for safeguarding the criminal proceedings that may be applied to a suspect or an accused person to prevent evasion of criminal prosecution, and there is no such measure as reduction of pension.
3. The referenced draft laws also raise other questions. In particular, if the law were to limit pensions as a form of social protection now, then would it be possible to raise the issue of deprivation of other social benefits and assistance in the future? How humane is it to limit the pension amounts for people with disabilities, including those who are completely unable to work? Couldn’t the state also wish to apply such a measure to persons who commit crimes other than those envisioned by draft law №10355? And isn’t the selective application of this measure only to persons who have committed certain crimes (as opposed to any crimes) represents discrimination prohibited by the Constitution of Ukraine? Isn’t this measure also discriminatory given that it will be impossible to apply it to some people who are already receiving a minimum pension? What is the purpose of this measure at large, other than punishment, since it is obviously impossible to correct the convicts or prevent them from committing new criminal offenses by reducing their pensions?