RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF UKRAINE

of April 15, 2005 No. 4

About single questions of application by courts of Ukraine legislations on provision of pensions of the military personnel (except the military personnel of conscription service), faces of the commanding and ordinary structure of law-enforcement bodies and some other persons

Studying of court practice of application of the legislation on provision of pensions of the military personnel and some other persons showed that courts generally correctly solve cases of this category. At the same time in some cases mistakenly apply the current legislation owing to what there are questions which need explanation.

For the purpose of ensuring identical application by courts of Ukraine regulations of the legislation on provision of pensions of the military personnel and some other persons Plenum of the Supreme Court of Ukraine DECIDES:

1. Draw the attention of courts to need of consideration of civil cases about provision of pensions of the military personnel (except the military personnel of conscription service), faces of the commanding and ordinary structure of law-enforcement bodies and some other persons according to the law and in the terms established for this purpose.

In case of permission of such cases courts shall be guided: Law provisions of April 9, 1992 N2262-XII "About Provision of Pensions of the Military Personnel, Faces of the Commanding and Ordinary Structure of Law-enforcement Bodies and Some Other Persons" (with subsequent changes and amendments; further - the Law N2262-XII); resolutions of the Cabinet of Ministers of Ukraine of July 17, 1992 N393 "About Procedure for Calculation of Length of Service, Appointment and Pension Payment and the Monetary Assistance to Faces of Officers, to Ensigns, Warrant Officers, the Military Personnel of Extra Urgent Service and Military Service under the Contract, Faces of the Commanding and Ordinary Structure of Law-enforcement Bodies and Members of Their Families" (further - the resolution of the Cabinet of Ministers of Ukraine of July 17, 1992 N 393) and of April 6, 1998 N452 "About Streamlining of Additional Types of Cash Cover of the Military Personnel" (daleepostanovleniye of the Cabinet of Ministers of Ukraine of April 6, 1998 N 452); the order of the Minister of Defence of Ukraine of August 8, 1994 N205 "About Approval of the Regulations on Procedure for Appointment and Payment in the Ministry of Defence of Ukraine of National Pensions and the Help to the Military Personnel and Members of Their Families", and also similar orders of the ministries and departments which perform provision of pensions of the military personnel, persons who have pension entitlement according to the Law N2262-XII, and other regulatory legal acts concerning provision of pensions.

It must be kept in mind that to faces of officers, ensigns and warrant officers, the military personnel of extra urgent service and military service under the contract, persons having pension entitlement according to the Law N2262-XII, and members of their families pensions on conditions and on regulations, by the established Law of July 9, 2003 can be granted (at will) to N1058-IV "About Obligatory National Pension Insurance" (further - the Law N1058-IV). In case of calculation of pension by it considers the salary, and also all types of cash cover which they received before dismissal from service. In such cases provision of pensions is performed by bodies of the Pension fund of Ukraine.

According to Art. 7 of the Law N2262-XII military personnel, persons who have pension entitlement according to this Law and to members of their families which at the same time have the right to different national pensions are granted one pension at their choice. The request for purpose of the chosen pension can be performed after emergence of the right to its obtaining at any time.

2. According to Art. 66 of the Law N2262-XII the disputes connected both with refusal in award of pension and with violation of terms and understating of the amount of its payment, recalculation, payment and so forth are subject lately to judicial review.

As violation of the personal rights and freedoms of applicants in the field of management activity of pension bodies is subject of such disputes, cases concerning these disputes shall be considered by the rules established by hl. 31-A Code of civil procedure of Ukraine. Claims in which it is about the right and also about requirements concerning compensation of material or moral damage, are subject to consideration in accordance with general practice according to the procedure of claim production.

3. The group of people which have pension entitlement according to the Law N2262-XII is determined in preamble and Art. 4 of this Law, are exhaustive and is not subject to expansion.

Provision of pensions of the women accepted in voluntary procedure on active duty to positions of soldiers, sailors, sergeants and foremen and members of their families is performed on the bases established by the Law N2262-XII for the military personnel of extra urgent service and military service under the contract and members of their families.

4. According to Articles 1, of 2, 12 Laws N2262-XII the right to life pension is acquired for long service by military personnel and other persons who have pension entitlement according to this Law, in the presence on the date of dismissal from service of the established period of service: 20 years and bolshena basis of the item "and" of Art. 12 of the Law N2262-XII. The military personnel who leaves the Armed Forces of Ukraine in connection with reforming of the last have the right to this pension in the presence of 15 years of period of service and provided that it performed 45 years (item 11 of Art. 1 of the Law of June 15, 2004 of N1763-IV "About the State Guarantees of Social Protection of the Military Personnel Who Leaves from Service in connection with Reforming of the Armed Forces of Ukraine, and Members of Their Families"; далееЗакон N1763-IV).

The exception of this rule is established by the item of Art. 12 of the Law N2262-XII (in edition of the Law of July 4, 2002 N51-IV which took effect on August 6, 2002) for military personnel and persons who have pension entitlement according to this Law, before dismissed from service. Based on this Law since August 6, 2002 irrespective of the bases and time of dismissal pension can be granted to them provided that to these persons 45 years were performed (and to disabled people войнынезависимо from age) and that they have general working life of 25 calendar years and more from which 12 calendar years there are at least and six months the military service or service in law-enforcement bodies or in the state fire protection constitutes.

Pensions are granted and paid to military personnel and persons who have pension entitlement according to the Law N2262-XII only after their dismissal from service.

In case of repeated acceptance of pensioners from among military personnel and persons who receive pension according to the Law N2262-XII on military service in the Armed Forces of Ukraine formed according to the laws of Ukraine other military forming and the Public special service of transport on service in law-enforcement bodies, bodies and divisions of civil protection, tax police, and also criminal executive system of Ukraine pension payment for the period of their service stops. In case of the following dismissal of these persons from service payment of pensions to them is performed taking into account general length of service on the date of the last dismissal (the p. 2 of Art. 2 of the Law N2262-XII).

Military personnel and persons who have pension entitlement according to the Law N2262-XII and became disabled people during passing of service by them, or not later than three months after dismissal from service or if disability came after this term, but owing to wound, contusions, mutilations or diseases got during service (Art. 18 of the Law N2262-XII) acquire pension entitlement on disability. Members of families of such military personnel, and also persons who died died or were gone bezvest, have pension entitlement which is appointed in case of loss of the supporter.

Disability pensions to the military personnel and persons who have pension entitlement according to this Law and also to members of their families in case of loss of the supporter are appointed irrespective of duration of service.

5. According to the p. 2 of Art. 5 and the item of Art. 12 of the Law N2262-XII to the military personnel and persons who have pension entitlement according to this Law, but were deprived of military or special ranks or are dismissed from service in connection with condemnation for the intentional crime committed with use of the official capacity or for making of corruption act, and pension is granted to members of their families in accordance with general practice, established by the Law N1058-IV.

6. By hearing of cases of the specified category courts shall consider that according to the p. 3 of Art. 43 of the Law N2262-XII (in edition of the Law of June 15, 2004 N1769-IV "About introduction of amendments to article 43 of the Law of Ukraine "About provision of pensions of the military personnel, faces of the commanding and ordinary structure of internal affairs and some other persons" which took effect on January 1, 2005; further - the Law N1769-IV) to faces of officers, ensigns and warrant officers, the military personnel of extra urgent service and military service under the contract, and also persons who have pension entitlement according to the Law N2262-XII and to members of their families of pension also awards in the sizes established by the legislation are charged proceeding from the amount of cash cover on the last established post before dismissal taking into account the corresponding salaries on position, military (special) rank, percentage length-of-service allowance, monthly additional types of cash cover (the allowance, surcharge, increase).

The list of monthly additional types of cash cover of the military personnel established by the resolution of the Cabinet of Ministers of Ukraine of April 6, 1998 N 452, is not exhaustive as other regulatory legal acts enter other monthly allowances, surcharges and increases which are also monthly additional types of cash cover and also shall be enlisted in case of pension accrual, however only to those persons who received them during service and were dismissed from it after their introduction.

7. Draw the attention of courts that according to the item of 2 section II "Final provisions" of the Law N1769-IV of person which were granted pensions according to the Law N2262-XII earlier since January 1, 2005 have the right to recalculation of these pensions and payment to them of 50% of the amount of the transferred pension, and since January 1, 2006 - 100% of this amount. If owing to recalculation on the provisions of the law of N1769-IV the size of pension or its part paid during the period from January 1, 2005 to January 1, 2006 decreases, pension is paid in earlier established size.

According to the addition made by the Law of December 16, 2004 N2255-IV "About Introduction of Amendments to Some Laws of Ukraine concerning Social Protection of the Military Personnel" (further - the Law N2255-IV) in the item of 2 section II "Final provisions" of the Law N1769-IV, to persons who were involved in other fighting preceding the mentioned wars, and also wives of the died (died) specified persons the pensions granted earlier are recalculated and paid to the faces carried in the procedure established by the law to number of veterans of war which corresponding status is provided to them for participation in the Great Patriotic War of 1941-1945 and in war with imperialistic Japan in August - September, 1945 and since January 1, 2005 in 100% - m the size of the transferred pension.

8. According to Art. 63 of the Law N2262-XII and item 8 of the resolution of the Cabinet of Ministers of Ukraine of July 17, 1992 N393 recalculation of earlier granted pensions to the military personnel and persons who have pension entitlement in connection therewith the Law is performed in connection with change (which happened after their dismissal from service) the amount of cash cover proceeding from which pensions are calculated.

In case of increase in the size of salaries of monetary pay (official pay rate and salary on military (special) rank) are subject to recalculation both percentage length-of-service allowance, and other additional types of cash cover which were considered in case of calculation of pension and which size is determined percentage of the specified salaries of cash cover (for classiness, work with classified documents, conditions of service and so forth), including after entry into force since January 19, 2000 of the resolution of the Cabinet of Ministers of Ukraine of January 8, 2000 by N12 "About Introduction of Amendments to the Resolution of the Cabinet of Ministers of Ukraine of July 17, 1992 N393".

Draw the attention of courts that the legislation concerning provision of pensions which was effective till January 1, 2005, did not provide possibilities of recalculation of earlier granted pensions in connection with introduction after dismissal of the military personnel and persons who have pension entitlement according to the Law N2262-XII, new monthly additional types of cash cover which they did not receive during service, and also awards. The law N1769-IV which took effect on January 1, 2005 has no retroactive force therefore requirements concerning recalculation of pension taking into account the new monthly additional types of cash cover and awards implemented after dismissal from service lately, i.e. till January 1, 2005, are not subject to satisfaction.

To the dismissed from service military personnel and persons having pension entitlement according to the Law N2262-XII which gives the next military (special) ranks during their stay in inventory or in resignation earlier granted pensions taking into account the new given military (special) ranks are not re-read.

9. Courts should mean that since January 1, 2006 the Law N2255-IV which provides change of edition of the p. 3 of Art. 63 of the Law N2262-XII becomes effective and the new procedure for recalculation of earlier granted pensions is entered. By it, in particular, it is determined that all pensions granted according to the Law N2262-XII are subject to recalculation in connection with change of the size at least of one of types of cash cover of the corresponding categories of the military personnel and persons who have pension entitlement according to this Law, or in connection with input for the specified categories of persons of new monthly additional types of cash cover (allowances, surcharges, increases) and awards in the sizes established by the legislation. Recalculation of pensions is performed at the time of emergence of the right to such recalculation and performed in the terms established in the p. 2 of Art. 51 of the Law N2262-XII.

The Item of 2 section II "Final provisions" of the Law N2255-IV provides obligatory recalculation of the pensions granted earlier according to the Law N2262-XII taking into account changes of the sizes and input of new types of cash cover which took place or were entered after purpose of pensions from which the last are calculated to the corresponding categories of the military personnel and persons having pension entitlement according to the Law N2262-XII. This Law has also no retroactive force.

10. According to Art. 51 of the Law N2262-XII recalculation of pensions is performed from the 1st following after month in which there came circumstances which pull change of the size of pension. If at the same time the pensioner acquired the right to increase in pension, the difference in it can be paid to it no more than in 12 months lately.

11. Annual term for pension payment is calculated from day of the address of the pensioner or receipt in pension body of the documents necessary for award of pension, and for payment of difference of pension lately - from the 1st following in what the pensioner addressed with the petition to transfer pension or in pension body the documents necessary for such recalculation arrived.

Day of the request for pension day of adoption of the statement for award of pension with all documents which the applicant shall submit is considered, and in case of statement peresylaniye with documents by mail - the date specified in postage stamp of the place of sending the statement.

If not all necessary documents are enclosed to the application for award of pension, the pension body shall explain to the applicant or report to him in writing about what documents he shall file in addition. In case of submission of such documents before the termination of three months from day of receipt of explanation (message) on need of provision of additional documents day of the request for pension day of adoption of the statement for award of pension or the date specified in postage stamp of the place of sending this statement is considered.

12. By hearing of cases of the specified category courts need to consider features of provision of pensions of persons discharged from military service in connection with reforming of the Armed Forces of Ukraine, N1763-IV established by the Law of June 15, 2004 (is valid from July 8, 2004). Operation of this Law is extended to the military personnel discharged from military service for the same reason after January 1, 2004 (item 2 of Art. 3 of the Law N1763-IV).

According to item 11 of Art. 1 of the Law N1763-IV for the specified category of the military personnel provided that it performed 45 years, and in the presence of period of service of 15 years pension is calculated in the amount of 40% of cash cover with increase in this size by 2% for each next year of period of service, but it is no more than 50% of the amount of the corresponding cash cover. At the same time pensions are calculated in the amount of and the procedure determined in the Law N2262-XII.

13. Increase in long-service pensions is provided in Art. 15 of the Law N2262-XII. In particular, to faces of officers, ensigns, warrant officers, the military personnel of extra urgent service and military service under the contract, persons who have pension entitlement according to this Law and are veterans of war or persons to whom operation of the Law of October 22, 1993 of N3551-XII "About the Status of Veterans of War, Guarantees of Their Social Protection" extends, long-service pensions raise in the corresponding percent from the size of minimum pension on age. Such increase is performed proceeding from the size of minimum pension on age - 19 UAH 91 kopeks, the Cabinet of Ministers of Ukraine established by the resolution of January 3, 2002 by N1 "About Increase in the Sizes of Pensions and Other Social Payments to Separate Categories of Pensioners Which Financing Is Performed at the expense of Means of the Government Budget" which action since October 1, 2003 N1350 "About Increase in Level of Provision of Pensions of the Military Personnel, Faces of the Commanding and Ordinary Structure of Law-enforcement Bodies and Some Other Persons" is extended to specified persons by the resolution of the Cabinet of Ministers of Ukraine of August 27, 2003.

14. By hearing of cases of the specified category courts need to consider that according to Art. 55 of the Law N2262-XII of pension amount, added to pensioners from among the military personnel, to persons having pension entitlement according to this Law, and members of their families and not received by them timely, are paid lately no more than in three years before the address with the statement for its obtaining, and the pension amounts which are not received timely because of body which grants or pays pension, are paid without restriction with any term lately.

15. In case of violation by pension bodies of the rights and freedoms of the applicants connected with provision of pensions the last have the right to compensation of the moral and material damage caused to them in the procedure established by the legislation based on Art. 17 of the Law of December 20, 1991 of N2011-XII "About Social and Legal Protection of the Military Personnel and Members of Their Families".

16. The trial chamber on civil cases and Military judicial board of the Supreme Court of Ukraine, Appeal Courts should study and generalize regularly practice of hearing of cases of the specified category and to timely take necessary measures for elimination of the found shortcomings of activity of the courts.

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