GENERALIZATION OF THE SUPREME ADMINISTRATIVE COURT OF UKRAINE

of December 25, 2006

Court practice of hearing of cases, the pensions to some categories of government employees connected with recalculation and to scientific (scientific and pedagogical) workers

Generalization of court practice of hearing of cases, the pensions to some categories of government employees connected with recalculation and to scientific (scientific and pedagogical) workers, is carried out by Management of the legislation and generalization of court practice together with Trial chamber from hearing of cases, connected with disputes over passing of public service, the Supreme administrative court of Ukraine on accomplishment of the work plan of the Supreme administrative court of Ukraine for the II half-year 2006.

Cases on disputes on appointment, recalculation of pensions to government employees, including prosecutors, judges, military personnel, employees of law-enforcement bodies, Tax Service, local self-government, prosecutor's office, other bodies, to workers of offices of courts and scientific (scientific and pedagogical) workers belong to cases which are connected with passing of public service, in particular.

About recognition of the right and recalculation of the pensions granted based on the Law of Ukraine "About public service"

Based on the Law of Ukraine "About public service" of 16.12.93 N3723-XII (further - the Law of Ukraine "About public service") pensions are granted and transferred to persons who have the right to award of pension according to regulations of the specified Law. According to requirements of part two of article 9 of the Law of Ukraine "About public service" if another is not provided by the laws of Ukraine, the provisions of the law of Ukraine "About public service" perform legal regulation of provision including provision of pensions, government employees who work in local government bodies, bodies of prosecutor's office, courts and so forth.

In case of permission of the specified category of disputes courts are guided also by regulations:

- The law of Ukraine "About provision of pensions" of 05.11.91 N1788-XII (further - the Law of Ukraine "About provision of pensions");

- resolutions of the Cabinet of Ministers of Ukraine "About streamlining of structure and payment terms of work of workers of the office of executive bodies, bodies of prosecutor's office, courts and other bodies" of 09.03.2006 N268;

- resolutions of the Cabinet of Ministers of Ukraine "About some questions of enhancement of determination of the sizes of earnings for pension accrual" of 31.05.2000 N865 (further - the resolution of the Cabinet of Ministers of Ukraine of 31.05.2000 N 865);

- resolutions of the Cabinet of Ministers of Ukraine "About remuneration Payment procedure for long service to officials of bodies of the State Tax Service who have special ranks" of 12.09.97 N1013;

- resolutions of the Cabinet of Ministers of Ukraine "About increase in official pay rates of workers of the office of executive bodies, bodies of prosecutor's office, courts and other bodies" of 06.08.2003 N1207 and so forth.

According to the paragraph of 1 Item 1 of the Regulations on the Pension fund of Ukraine approved by the Presidential decree of Ukraine of 01.03.2001 of N121/2001, in edition of Presidential decrees of Ukraine of 12.01.2004 of N34/2004, of 31.08.2005 of N1224/2005, the Pension fund of Ukraine is the central executive body which performs management and management of solidary system of obligatory national pension insurance, performs collection, accumulation and accounting of insurance premiums, grants pensions and prepares documents for their payment, provides timely and in full financing and pension payment, the help on burial, other social payments which according to the legislation are performed at the expense of means of the Pension fund of Ukraine exercises control of target use of means of the Pension fund of Ukraine.

Considering stated, the Pension fund of Ukraine, management of the Pension fund of Ukraine in the Autonomous Republic of Crimea, areas, the cities of Kiev and Sevastopol, and also managements and departments of the Pension fund of Ukraine in areas, the cities and areas in the cities (the cities with district division) are subjects of powers of authority, decisions, actions or divergence of which are appealed by cases on provision of pensions of government employees.

The analysis of court practice permits to make the conclusion that, as a rule, courts by hearing of cases of the correct category apply regulations of substantive and procedural law, consider that persons who reached the retirement age established by the legislation have the right to pension of government employees, in the presence of insurance years of service for men - there is at least 25 years, for women - there is at least 20 years, including years of service of public service - there is at least 10 years and which for the period of achievement of retirement age worked at positions of government employees, and also persons who have at least than 20 years of length of service on the positions referred to categories of positions of government employees - irrespective of place of employment for the period of achievement of retirement age.

The law of Ukraine "About introduction of amendments to the Law of Ukraine "About public service" of 16.01.2003 N432-IV the Law of Ukraine "About public service" is added with the article 37-1 "Procedure and Conditions of Recalculation of Pensions of Government Employees". According to Final provisions of the Law of Ukraine "About introduction of amendments to the Law of Ukraine "About public service" of 16.01.2003 N432-IV, this Law becomes effective from day of its publication (04.02.2003 - "Uryadovy of hens' єр", 2003, 02, N 21), and the procedure for recalculation of pensions provided by this Law extends to pensioners to whom pension of government employees is granted from day of enforcement of the Law of Ukraine "About public service" (28.12.93).

Thus, if person is exempted from public service before enforcement of the Law of Ukraine "About public service" (i.e. in 28.12.93) and never had the status of the government employee, the requirement of article 37-1 of the specified Law does not extend to it. Neuchteniye of requirements of the given regulations has the investigation cancellation of decisions of the courts of the first and appeal instances.

It is possible to give complaint case as example (...) in management of the Pension fund of Ukraine in Primorsky district of Odessa about recognition of pension entitlement of the government employee and implementation of its recalculation.

So, (...) appealed to Seaside district court of Odessa with the specified claim in which specified that it has general working life 32 years, including 30 years of years of service in customs authorities which left 13.11.93.

The decision of Seaside district court of Odessa left without changes determination of Appeal Court of Odessa region, the claim (...) it is satisfied. Obliged management of the Pension fund of Ukraine to appoint in Primorsky district of Odessa (...) pension of the government employee from 01.01.94 in the amount of, the stipulated in Article 37 Laws of Ukraine "About public service" to carry out recalculation of this pension and its payment taking into account increase in the sizes of the salary of the working government employees based on article 37-1 of the Law of Ukraine "About public service".

Having checked arguments of the writ of appeal of management of the Pension fund of Ukraine, the board of judges of the Supreme administrative court of Ukraine came to conclusion that the writ of appeal is subject to partial satisfaction, decisions of the courts of the first and appeal instances - cancellation with adoption of the new decision which (...) grievance settlement it is refused, considering that the claimant it was discharged from office 13.11. 93, i.e., before enforcement of the Law of Ukraine "About public service" and never had the status of the government employee but therefore requirements of article 37-1 of the specified Law of it do not extend.

The salary of government employees consists of official pay rates, awards, surcharge for ranks, length-of-service allowances in public service and other allowances (for high achievements in work and accomplishment of especially important work, for fulfillment of duties of temporarily absent workers and so forth) (part two of article 33 of the Law of Ukraine "About public service".

Pension to government employees is granted in the amount of 80 percent from the amounts of their salary on which insurance premiums for obligatory national pension insurance are assessed, without limiting restriction of the size of pension, and to persons who for the period of the address about award of pension are not government employees, - in the amount of 80 percent of the salary of the working government employee of the corresponding position and rank on the last place of employment in public service.

In case of increase in the size of the salary (official pay rates, awards, surcharges for ranks, length-of-service allowances in public service and other allowances which were established and actually turned out the government employee to retirement) the working government employee, and also in connection with finding by person of the right to provision of pensions of the government employee under this Law respectively performs recalculation of earlier granted pensions.

The sizes of official pay rates, allowances, surcharges and financial support of government employees it is determined by the Cabinet of Ministers of Ukraine.

Recalculation of pension is performed, proceeding from wages amounts on which insurance premiums for obligatory national pension insurance of the working government employee of the corresponding position and rank at the time of emergence of the right to recalculation of pension are assessed.

The amount of payments (except official pay rates, allowances for rank or qualification classes, the class rank or special ranks, length of service) which join in earnings for pension accrual according to the Law of Ukraine "About public service", is determined at choice of the one who addressed for pension, for the last 24 calendar months of work which grants the right to this type of pension, in a row before the request for pension or for any 60 calendar months of such work in a row before the request for pension irrespective of availability of breaks during this period at this work (item 1 of the resolution of the Cabinet of Ministers of Ukraine of 31.05.2000 of N 865).

Allowances belong to additional types of cash cover and are taken into consideration in case of pension accrual only to persons who received such allowances in the time spent for public service but were exempted from service after their implementation. At the same time it is necessary to pay attention that courts of the first and appellate instance not always consider the specified provision in case of decision making that is the basis for their cancellation.

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