RESOLUTION OF THE PLENUM OF THE SUPREME ADMINISTRATIVE COURT OF UKRAINE

of December 19, 2011 No. 8

About court practice of the decision by administrative courts of the disputes arising in connection with application of article 6 of the Law of Ukraine "About social protection of children of war"

For ensuring the correct and identical application by administrative courts of article 6 of the Law of Ukraine of November 18, 2004 "About social protection of children of war" (further - the Law on social protection of children of war the Law of November 18, 2004 No. 2195-IV) concerning increase to pension or monthly perpetual monetary pay or the government public assistance which is paid instead of pension the Plenum of the Supreme administrative court of Ukraine Decides No. 2195-IV:

1. Courts need to consider that article 6 of the Law on social protection of children of war (taking into account the Solution of the Constitutional Court of Ukraine of May 22, 2008 No. 10rp/2008) establishes increase for 30 percent of minimum pension on age to pension or monthly perpetual monetary pay or the government public assistance which is paid instead of pension (further - increase to pension), for children of war.

2. According to instructions of article 1 of the Law of November 18, 2004 No. 2195-IV the child of war is person who is citizen of Ukraine and who for the period of the end (on September 2, 1945) of World War II was less than 18 years old. That is citizens of Ukraine who were born in the period from September 3, 1927 to September 2, 1945 belong to category of children of war.

For confirmation of the status of the child of war at the claimant courts need to establish birth date and belonging to citizenship of Ukraine.

Taking into account that the Law on social protection of children of war does not provide issue to children of war of the documents confirming their status for establishment of the right to increase to pension courts shall request except the documents stated above from data on receipt by the claimant of pension or monthly perpetual monetary pay or the government public assistance which is paid instead of pension which grant the right to increase to pension. Lack of stamp on the pension certificate or the temporary certificate of bodies of work and social protection of the population of availability at the claimant of the status of the child of war as it is determined by the order of the Ministry of Labour and Social Policy of Ukraine of April 5, 2006 No. 107 "About the Procedure for the certificate of the right of the personality to privileges according to the Law of Ukraine "About social protection of children of war", cannot be the basis for leaving without movement and return of the action for declaration.

Considering provisions of part two of article 8 KAS of Ukraine concerning use of the principle of supremacy of law according to provisions of article 17 of the Law of Ukraine of February 23, 2006 No. 3477-IV "About accomplishment of decisions and application of practice of the European Court of Human Rights", courts also shall apply practice of the European Court of Human Rights as source of law.

4. Defendants in cases on actions for declaration of children of war concerning the increase to pension established by the Law of November 18, 2004 No. 2195-IV are the relevant organs of the Pension fund of Ukraine performing charge and pension payment and the government public assistance. Such bodies form in accordance with the established procedure head departments of Fund in the Autonomous Republic of Crimea, areas, the cities of Kiev and Sevastopol, managements in areas, the cities and areas in the cities.

According to 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 April 30, 2002 No. 8-2, local authority of the Pension fund provides timely and in full financing and pension payment, directly appoints (performs recalculation) and pays pensions and other payments according to the current legislation. Therefore, is proper defendant in cases concerning implementation of recalculation of increase to pensions in claims of faces referred to category of children of war. Therefore attraction to participation in such cases as codefendant or the third party of other bodies, including the State Treasury of Ukraine, is wrong.

At the same time courts should consider that such disputes belong to jurisdiction of administrative courts irrespective of the method of protection of the violated right elected by the claimant including method about collection of outstanding amounts of the specified increase to pension or the public assistance.

5. Cases concerning such disputes are in detail jurisdictional to local general courts as administrative courts (item 4 of part one of article 18 KAS of Ukraine) which according to part one of article 21 of the Law of July 7, 2010 No. 2453-VI "About judicial system and the status of judges" are district, district in the cities, city and gorrayonny courts.

Courts should consider that according to the regulation stated above such cases are jurisdictional to local general courts as administrative courts irrespective of the status of the defendant.

6. Courts should mean that, proceeding from instructions of part two of article 19 KAS of Ukraine, territorial cognizance of such cases is determined at choice of the claimant. That is depending on the choice of the claimant consideration of such cases belongs to powers of general courts as administrative courts at the place of residence (stay, stays) the claimant or on the location of the defendant.

7. The state social support of children of war in the form of increase to pension, the stipulated in Clause 6 Laws of November 18, 2004 No. 2195-IV, by the legal nature is separate source of the income of children of war and the pension constituting them or monthly perpetual monetary pay or the government public assistance is not.

Therefore courts need to consider that during resolution of disputes in claims of children of war circulation periods in court are determined by rules of article 99 KAS of Ukraine. Instructions of article 87 of the Law of Ukraine "About provision of pensions" and article 46 of the Law of Ukraine "About obligatory national pension insurance" which fixed terms of payment added, but uncollected pension amounts lately, do not extend to these legal relationship and therefore cannot be applied by courts by consideration of the specified disputes.

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