Applied to the court with a claim to oblige to calculate the time of service at a discount
The plaintiff K. The defendant declared the actions of the Almaty Regional Department of internal affairs (hereinafter referred to as the department) illegal and applied to the court with a claim to oblige the Kapal District Department of internal affairs to calculate the preferential time of service from September 08, 1989 to June 03, 1997. The claim was satisfied by the decision of the Taldykorgan City Court of Almaty region dated May 19, 2016. In this decision, the Department is obliged to apply the preferential conditions for the years of K.'s service in Kapal District of Taldykorgan region from September 08, 1989 to June 03, 1997 and calculate 1 month at the rate of 1.5 months. By the decision of the Judicial Board of the Almaty regional court for civil cases dated October 11, 2016, the decision of the court of first instance was left unchanged. In his protest, the prosecutor general of the Republic of Kazakhstan indicated that the conclusions of local courts on the satisfaction of the application contradict the norms of substantive law, and asked for a new decision to cancel them and leave the application unsatisfied. After hearing the conclusion of the prosecutor in the case in support of the protest, the opinions of representatives of the Ministry of internal affairs of the Republic of Kazakhstan in support of the protest, studying the evidence collected in the case and the arguments of the protest, the Cassation judicial board came to the conclusion that the disputed judicial acts are subject to cancellation on the following grounds. The grounds for Cassation review of judicial acts that have entered into legal force, specified in parts 3 and 5 of Article 434 of this code, in cases where the decision adopted in accordance with subparagraph 3) of Part 6 of Article 438 of the code violates the sequence of interpretation and application of legal norms by courts.
According to paragraphs 4, 5 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated January 15, 2016 No. 1" on the right to access justice and the powers of the Supreme Court of the Republic of Kazakhstan to review judicial acts", the uniformity of judicial practice is achieved not only by normative resolutions adopted by the Supreme Court, but also by The contested judicial acts violate the established uniform system of application and interpretation of the rule of law and contradict the court decisions previously adopted throughout the Republic. When the court of first instance decided to satisfy K.'s application, the resolution of the Cabinet of Ministers of the Republic of Kazakhstan dated August 23, 1993 No. 429 (hereinafter referred to as resolution 429) was in force when he served in the Kapal District Department of internal affairs of Taldykorgan region from 1989 to 1997, so that each month of his service during this period was subject to a one-month equalization. At the same time, Article 8 of the resolution of the Government of the Republic of Kazakhstan dated August 26, 2008 No. 803 (hereinafter referred to as resolution 803) stipulates that the years of service for the appointment of a pension accrued under the old law prior to the entry into force of this regulation are not subject to revision. This conclusion of the court was agreed by the Judicial Board of the Almaty regional court for civil cases. Circumstances significant for the correct resolution of the case under Part 2 of Article 73 of the APC are determined by the court taking into account the norms of material and procedural law, which are subject to application on the basis of claims and objections of the parties and other persons participating in the case. However, this requirement of the law was not complied with by local courts and therefore was not properly guided by the requirements of the current substantive law when considering and resolving a dispute. Judging by the case documents, K. In September 1989, he was employed in the Department of internal affairs of Kapal District of Taldykorgan region, and until June 1997, he worked in various positions, namely, in 1989-1993 - militia, in 1993-1995 – unit commander, in 1995-1996 – head of the Temporary Detention Center, in 1996-1997-investigator.
By the decree of the president of the Republic of Kazakhstan dated April 22, 1997, Taldykorgan region was reduced, it was annexed to the Almaty region, and by the decree of the president of the Republic of Kazakhstan dated May 23, 1997, the Kapal District of the Almaty region was reduced, and its territory was annexed to the Aksu district. In accordance with subparagraph 3) of Part 1 of Article 80 of the law of the Republic of Kazakhstan" on law enforcement activities " K. By a separate order of the head of the Department No. 5 dated July 05, 2012, he was dismissed from the position of senior investigator, that is, from the rank of major, according to the results of the Military Medical Commission, due to poor health. In accordance with Article 62 of the law of the Republic of Kazakhstan" on pension provision in the Republic of Kazakhstan " (in force in the event of a dispute, hereinafter referred to as the law), the years of service of law enforcement officers are calculated in accordance with the procedure determined by the Government of the Republic of Kazakhstan.
Article 63 of this law specifies that the amount of money taken into account for pension provision of law enforcement officers is set on the date of dismissal, and Article 66 of this law provides that for the appointment of pension payments for years of service, with the exception of cases established by the legislation of the Republic of Kazakhstan, the years of Service are calculated by calendar years. According to the resolution of the Cabinet of Ministers of the Republic of Kazakhstan dated August 23, 1993 No. 429" on approval of the regulations on the procedure for calculating the years of Service, assigning and paying pensions and benefits to military personnel, senior and ordinary personnel of internal affairs bodies and their families", Kapal District of Taldykorgan region is assigned to places with severe climate conditions, the years of service in it are calculated with a discount and 1 month of Service is equated to 1.5 months. In the note to the resolution, it is stated that the benefits in the Republic of Kazakhstan will be valid for the regions until the revision of the districts that received the benefits. "On approval of the rules for calculating the years of Service, assigning one-time benefits and paying them ""by the resolution of the Government of the Republic of Kazakhstan dated August 26, 1998 No. 803 No. 429 "" on approval of the rules for military personnel, law enforcement officers, as well as persons whose rights to receive military or special ranks, class ranks and wear uniforms have been abolished since January 1, 2012." Therefore, this Resolution No. 803 excluded from the number of districts where benefits are applied for years of service in Aksu district (formerly Kapal District) of Almaty region. The adoption by Paragraph 2 of Part 2 of Article 40 of the law of the Republic of Kazakhstan" on normative legal acts " (in force in the event of a dispute) of a new normative legal act, the provisions of which contradict the previously issued normative legal Act, ceases to apply the old act. In this regard, the Judicial Board of the Supreme Court for civil cases concludes that the length of service of K. was considered correct by the department in the calendar calculation due to the cancellation of the calculation of periods of service in Kapal district during his release from the internal affairs body, that is, in preferential conditions. In addition, Article 8 of Resolution No. 803 states that the years of service for the appointment of a pension, calculated in accordance with the previously applied laws, before the entry into force of this regulation, are not subject to revision. According to the case documents, when the Resolution No. 429 was canceled, that is, on August 26, 1998, K. did not have enough age and work experience to retire. In this regard, the years of his work until 1998 were not taken into account. However, K. did not submit to the court evidence confirming the conduct of such an account in accordance with Article 72 of the APC. In this case, that is, when the head of the Department dismissed K. from office and retired, he correctly calculated his seniority according to the rules approved by the current Government Resolution No. 803. Therefore, the Cassation judicial board considers that judicial acts adopted by local courts are subject to annulment due to the fact that they are illegal, contradict the circumstances of the case and the norms of substantive law. On the basis of the above, the judicial board for civil cases of the Supreme Court of the Republic of Kazakhstan canceled the judicial acts of local courts, made a new decision on the case and dismissed the claim of the plaintiff K. The protest of the prosecutor general of the Republic of Kazakhstan was satisfied.
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