Recalculation of pensions for persons that were dismissed from the armed forces
- Author: Andriy Buzynnyi
- Standardized procedures: Legal representation in Ukrainian courts
Legal representation in relations with Ukrainian state authorities
- Date of publication: 07/08/12
As of today financial support of servicemen gradually increases though enlargement of monthly bonuses. In accordance with legislation the pension of person dismissed from armed forces is to be enlarged proportionally with increase of material support. However the Pension Fund of Ukraine is not in a hurry to recalculate pensions motivating its actions by the fact that increase of bonuses for servicemen based on orders of state body head is not a ground for pension recalculation. And this has become a mass problem.
Issues of pension recalculation is regulated by Art.63 of the law of Ukraine “On pension provision for persons dismissed from armed forces and other categories of persons” (hereinafter – the Law), Resolution of the Cabinet of Ministers of Ukraine number 45 dated 13.02.2008 (hereinafter – Resolution number 45), Resolution of Pension Fund of Ukraine Board number 3-1 dated 30.01.2007 (hereinafter resolution number 3-1). At the same time it should be noted that resolutions of the Cabinet of Ministers and Pension Fund contradict the Law.
Thus, the Law defined that one of grounds for recalculation of pensions for persons dismissed from military service is change of financial support amount.
At the same time the Cabinet of Ministers of Ukraine and Pension Fund regulated the issue of pensions recalculation in a slightly different way by providing that recalculation of pension may be based on: decision of the Cabinet of Ministers of Ukraine on change of financial support (Subsection 1 of the Resolution number 45); legal act which caused change of financial support amount (Subsection 24 of the Resolution number 3-1). Thus, the Cabinet of Ministers of Ukraine and Pension Fund amended grounds for recalculation of pensions for persons dismissed from military service.
The Cabinet of Ministers does not make any decisions on increase of bonus amount (motivating it by the fact that even though heads of state bodies make orders to enlarge bonuses they do not provide them for registration by the Ministry of Justice (explaining it by the fact that orders have nothing to do with citizens rights)). As the result orders cannot be enforced since they cannot be considered legal regulations without registration.
In 2011 due to orders of the Minister of Defense of Ukraine number 50 dated 28.01.2011 “On budget policies of the Ministry of Defense of Ukraine for 2011”, “On amendments to the order of the Minister of Defense of Ukraine number 50 dated 28.01.2011” dated 25.06.2011 bonuses for servicemen have been set at the level of 50% and 90% respectfully. The orders were not registered by the Ministry of Justice so calculation of pension amount is performed at the previous level of 10%.
Many pensioners personally tried to apply to the Pension Fund for pension recalculation. By only referring to abovementioned bylaws and without taking into consideration the Law the Pension Fund denies recalculation of pensions for pensioners.
Appeals against such denials do not always have any effect. However the wider such practice is the more attention of courts will be paid to examination of the issue: along with negative court decisions there are some positive ones. Based on decisions of the District administrative court of Kiev number 9/97 and 9/78 the claims about recalculation of pensions based on actual enlargement of bonuses for servicemen were satisfied and decision number 2/65 dated 24.06.2010 in a similar case was negative.
As the conclusion it should be pointed out that as of today the only real method for pensioners to have their pensions recalculated is litigation. Judicial practice on these issues is not extensive but presence of positive decisions allows us to say that grounds for recalculation are not unfounded. We shouldn’t forget that “a water drop can destroy a rock” and the more drops there are (which in our case are represented by claims for pension recalculation) the more chances there will be that courts will form a permanent practice recognizing such claims as lawful.