RECOMMENDATIONS OF THE SUPREME ADMINISTRATIVE COURT OF UKRAINE

of August 23, 2007 No. 07.2-10/1

About some questions of practice of hearing of cases connected with recalculation of pensions to some categories of persons of public service and to scientific (scientific and pedagogical) workers

For the purpose of the correct and identical application of the legislation by administrative courts by hearing of cases, the pensions to some categories of persons of public service connected with recalculation and to scientific (scientific and pedagogical) workers the presidium of the Supreme administrative court of Ukraine considers necessary to provide to administrative courts of Ukraine such recommendations.

Item 1.1 of the Regulations on management of the Pension fund of Ukraine in areas, the cities and areas in the cities approved by the resolution of board of the Pension fund of Ukraine of 30.04.2002 of N8-2 and registered in the Ministry of Justice of Ukraine 21.05.2002 under N442/6730, of management of the Pension fund of Ukraine in areas, the cities and areas in the cities are the bodies of the Pension fund of Ukraine subordinated according to head departments of this fund in the Autonomous Republic of Crimea, areas, the cities of Kiev and Sevastopol which together with these managements form system of bodies of the Pension fund of Ukraine.

According to Item 2.1 of the specified Provision the main objectives of bodies of the Pension fund of Ukraine, in particular ensuring appointment and pension payment is.

Considering stated, the Pension fund of Ukraine and its bodies, in understanding of Item 7 parts one of article 3 of the Code of administrative legal proceedings of Ukraine, are subjects of powers of authority, and disputes with the assistance of these bodies and physical persons on appointment and pension payment are public as arise with the participation of subject of powers of authority which realizes the imperious managerial functions provided to it by the current legislation in disputable legal relationship, and answer the definition of administrative case given in Item of 1 part one of article 3 of the specified Code.

1.1. It is appointed and listed to persons who according to the Law of Ukraine "About public service" of 16.12.93 N3723-XII have the right to award of pension based on regulations of the specified Law.

If person is dismissed from public service before enforcement of the Law of Ukraine "About public service" and did not receive the status of the government employee, the rule of article 37-1 of the specified Law do not extend to it.

1.2. According to part two of article 33 of the Law of Ukraine "About public service" 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 accomplishment of obligations of temporarily absent workers and so forth).

1.3. 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 and from which according to the laws of Ukraine insurance premiums in Fund of obligatory national social insurance of Ukraine for unemployment case, Social Insurance Fund on temporary disability were levied Social Insurance Fund from labor accidents and occupational diseases of Ukraine and the Pension fund of Ukraine) 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.

1.4. As financial support (on improvement, for the solution of social questions and so forth) is one-time payment and is not specified in the list of the components of the salary provided by part two of article 33 of the Law of Ukraine "About public service", it does not join in earnings which are considered in case of recalculation of pension to government employees.

1.5. 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 and were dismissed from service after their implementation.

1.6. According to part six of article 37 of the Law of Ukraine "About public service" the disability pension is granted to government employees who during stay in public service are recognized as disabled people of I and II groups irrespective of the disability reason in the sizes provided by parts two and the fifth article 37 of the Law of Ukraine "About public service" namely 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. For each complete year of work more than 10 years in public service pension increases by one percent of earnings, but it is no more than 90 percent of salary, without limiting restriction of the size of pension.

After the termination by persons of public service in the presence of years of service of public service 10 years and the insurance years of service established for award of pension on disability there are at least, the disability pension is granted according to the Law of Ukraine "About obligatory national pension insurance" (part five of article 37 of the Law of Ukraine "About public service".

1.7. In case of increase in the pay level of work of the working government employees courts should consider that in the Law of Ukraine "About public service" till 04.02.2003 (dates of official publication of the Law of Ukraine "About introduction of amendments to the Law of Ukraine "About public service" of 16.01.2003 N432-IV did not contain regulations on recalculation of pensions in case of increase in the pay level of work of the working government employees.

From 04.02.2003 the specified recalculation is performed, proceeding from wages amounts on which collection on compulsory 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 is charged.

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