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Decision of Economic Court of the Commonwealth of Independent States

of September 4, 1996 No. C-1/11-96

Economic Court of the Commonwealth of Independent States in structure:

the chairman - the Chairman of Economic Court Dashuk L. A.,

judges of Economic Court of the Apostle D.D., Begaliyev M. A., Bekenova R. A., Vylkova I. K., Kerimbayeva A. Sh., Makhmudova L. Sh., Miroshnik V. I., Safiullina D. N., Simonyana G.V., Tolibov H.,

in case of Madudina T. I. secretary.,

with participation:

General adviser of Economic Court Borovtsov V. A., having considered case on requests of the Council of Ministers of Defense of the State Parties of the Commonwealth of Independent States and the Ministry of Defence of the Russian Federation on interpretation in proceeding in open court, established:

In the request interpretation of provisions of the Agreement between the State Parties of the Commonwealth of Independent States on social and legal guarantees of the military personnel, persons discharged from military service and members of their families from February 14, 1992 asks Economic Court to give the Council of Ministers of Defense of the State Parties of the Commonwealth of Independent States; Safeguards agreements of the rights of citizens of the State Parties of the Commonwealth of Independent States in the field of provision of pensions of March 13, 1992; Agreements on procedure for provision of pensions of the military personnel and their families and national insurance of the military personnel of the State Parties of the Commonwealth of Independent States of May 15, 1992 regarding compulsory national insurance of the military personnel and members of their families living in the territory of the State Parties of the Agreement for the purpose of permission of matters of argument in case of collision of regulations of the national legal system of the State Parties of the Commonwealth with the regulations containing in interstate (intergovernmental) agreements.

The Ministry of Defence of the Russian Federation handled similar request about interpretation of the Agreement on procedure for provision of pensions of the military personnel and their families and national insurance of the military personnel of the State Parties of the Commonwealth of Independent States of May 15, 1992.

Number of the documents testimonial of ambiguous understanding by subjects of execution of provisions of the specified agreements is provided to reasons for requests.

Having heard the judge-speaker Begaliyev M. A., General adviser of Economic Court Borovtsov V. A., having researched and having estimated the documents which are available in case, the Economic Court came to the following conclusions.

Follows from context of all case papers that the provisions of the specified agreements determining by what legislation of the state (the state where the military personnel served, or the state in which military personnel and members of their families live) provision of pensions of the military personnel and members of their families, compulsory national insurance of the military personnel and also at the expense of what financial resources of the state payment of insurance sums and lump-sum allowance to military personnel or members of families of the died military personnel shall be performed is performed are ambiguously interpreted.

And in article 1 of the Agreement of the May 15, 1992 which is based on the first of the called Agreements it is provided in article 1 of the Agreement of March 13, 1992 that provision of pensions of the military personnel and members of their families is performed according to the legislation of the State Parties of the listed agreements in the territory of which specified persons live.

The court recognizes that provision of pensions is understood as all complex of the relations between the state and the serviceman (the member of his family), including determination of the group of people, having the right to pension, calculation of the years of service necessary for award of pension, appointment, calculation, payment, recalculation of pensions. The State Parties of the specified agreements made the single withdrawal of the general rule, the stipulated in Clause 1 Agreement of May 15, 1992, having provided in article 2 of the same Agreement that in length of service for purpose of pensions to the military personnel the service in armed forces and other military forming according to the procedure, established by the legislation of the state in the territory of which the military personnel served is set off. Therefore, all other questions of provision of pensions are regulated by the legislation of the state in which person which is subject to provision of pensions lives. From this it follows that expenses on pension payment are made from the budget of that state in the territory of which the pensioner lives.

The court believes that the Agreement of February 14, 1992 and the Agreement of May 15, 1992 unambiguously determine that the level of the rights and privileges of the military personnel and members of their families, including the rights to provision of pensions provided to these persons by the State Parties of the Commonwealth cannot be lower, than the level established earlier for the corresponding categories of persons by the legislation of USSR. Therefore the State Parties of the mentioned agreements have no right to establish in the legislation rules which would worsen situation of the military personnel and members of their families in the field of provision of pensions in comparison with the provision provided by legal and other acts of the former USSR. If in the state where the serviceman or members of his family lives, the regulation regulating provision of pensions of this category of persons is not accepted, providing these persons with pensions is performed on conditions, on regulations and according to the procedure, acting in the USSR. The same rule shall be applied also in that case when in the state the similar act exists, but in it there is no regulation of the rights of this or that category of the military personnel (members of their families). Relying on article 1 of the Agreement of May 15, 1992, the Court considers that compulsory national insurance of the military personnel is made by the rules containing in the legislation of the state in the territory of which the serviceman lives. This principle logically follows from the nature of the relations developing in the course of compulsory national insurance as the serviceman, but not members of his family is subject to insurance. Therefore irrespective of in the territory of what State Party the member of the family of the insured serviceman lives, payment to this member of the family of insurance sums or lump-sum allowance for the died serviceman is made by the rules existing in the state where the serviceman was insured. In particular, by the specified rules it is determined whether this family member has the right to the corresponding payments, what amount of these payments, terms during which they shall be made procedure for the request for their obtaining, etc.

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