Supreme Court Expressed Legal Position as for Rate of Increase in Pensions of Combat Veterans – Pilot Case

Supplementary payment and increase in pension provided by laws of Ukraine “On the Status of War Veterans, and Guarantees of Their Social Protection” and “On Improving Material Status of War Veterans and Disabled Veterans” (25 % of subsistence minimum for individuals, who lost their labor ability, and targeted monetary assistance in the form of 40 UAH) paid within pension by pension body, are an additional social guarantee, particularly, for military servicemen, and are directly linked with their special legal status and particular conditions of their service. Therefore, they may not be decreased by the Government and shall be paid by the Main Department of the Pension Fund independently and completely pursuant to amounts fixed with these legislative acts, they shall not be taken into account while re-calculation of pension payment held pursuant to the Resolution of the Cabinet of Ministers of Ukraine No. 103 of 21 February 2018 “On the Recalculation of Pensions for Persons Dismissed from Military Service and Some Other Categories of Individuals”.

The Supreme Court represented by a panel of judges of the Administrative Cassation Court noted this fact in pilot case under the claim of an individual, getting increase in pension and additional payment pursuant to noted laws of Ukraine, to the Main Department of the Pension Fund of Ukraine in Ivano-Frankivsk oblast.

The essence of the dispute consists of appealing the defendant’s actions as for decreasing the rate of additional payments provided for combat veterans since
5 January 2018. The plaintiff demanded to oblige the defendant to hold the recalculation of pension since 5 January 2018 taking into account and paying
100 % of increasing in pension at the rate of 25 % of subsistence minimum for individuals, who lost their labor ability, and targeted monetary assistance for combat veteran in the form of 40 UAH, to pay the discrepancy between the factually received sum of pension and the appropriate payment since 5 January 2018.

To justify his claim, the plaintiff noted that taking into account the rate of pensions pursuant to item 2 of the Resolution of the Cabinet of Ministers of Ukraine
No. 103 (as for the payment of recalculated pensions since 1 January 2018 at the rate of 50 % of increasing), the Main Department of the Pension Fund, in fact, reduced the payment of increasing in pension and supplementary pension set by laws.

The Supreme Court noted that pursuant to the current legislation (as of the period of appearing the disputable legal relations) while performing the recalculation of pension on the grounds of Part 4 of Article 63 of the Law of Ukraine “On the Pension Coverage of Persons Dismissed from Military Service, and Some Other Persons”, due to the adoption of the Resolution No. 103 and the Resolution
No. 704 of 30 August 2017 “On Monetary Support of Military Servicemen, Persons of Ordinary and Commanding Staff, and Some Other Persons” by the Cabinet of Ministers of Ukraine, following types of financial support shall be taken into account: basic salary, salary for military (special) rank and percentage allowance for the length of service at the moment of appearing the right to recalculation of pension according to relevant or similar position and military (special) rank.

Taking into account the Judgment of the Constitutional Court of Ukraine
No. 12-рп/98 of 9 July 1998 and formed approaches to the interpretation of the term “legislation” in it, the Supreme Court put emphasis on differences of increasing in pensions, which are: a) set by law; b) determined by law. The first group (set by law) – pursuant to the contents of item 2 of the Resolution No. 103 of the Cabinet of Ministers of Ukraine was taken into account while gradual increasing in pensions (since 1 January 2018 – 50 %; since 1 January 2019 till
31 December 2019 – 75 %; since 1 January 2020 – 100 % of the sum of increasing in pension determined as of 1 March 2018). At the same time, the second group (determined by law) was not covered with regulatory impact of item 2 of the Resolution No. 103 of the Cabinet of Ministers of Ukraine. Thus, their rate (of increasing, supplementary pension, targeted monetary assistance, pensions for special service for Ukraine, which are not determined by law) was not changed.

Thus, in 2018 additional payments to pension provided with legislation were overwhelmed by the Resolution No. 103; at the same time, the noted resolution did not concern the increasing determined by the law. Therefore, the Resolution of the Cabinet of Ministers of Ukraine No. 103 did not have impact on increasing in pension at the rate of 25 % of subsistence minimum for individuals, who lost their labor ability (363 UAH), and monthly targeted monetary assistance for living
(40 UAH) established for the plaintiff, as on those provided by the law.

The Supreme Court remarked that the legal regulation, pursuant to which the re-calculation of the plaintiff’s pension has been held and its payment is conducted, did not cover the additional payment and increasing in pension provided by the laws of Ukraine “On the Status of War Veterans, and Guarantees of Their Social Protection” and “On Improving Material Status of War Veterans and Disabled Veterans” (25 % of subsistence minimum for individuals, who lost their labor ability, and targeted monetary assistance in the form of 40 UAH) paid within pension by relevant pension body, and in this case – by the defendant.

Due to the abovementioned, the Court concluded that the defendant while performing calculation and payment of increasing in pension and the assistance for the plaintiff had observed the requirements of the law regulating the disputable relationship; therefore, the defendant had not violated the plaintiff’s rights.

Follow the link, to see the judgment of the Supreme Court of 9 December 2019 in the case No. 300/1695/19 (administrative proceedings No. Пз/9901/19/19) – http://www.reyestr.court.gov.ua/Review/86360472.