On recognition as illegal and cancellation of the decision on refusal to assign pension payments based on age
No. 6001-23-00-6ap/1615 dated 12/12/2023
Plaintiff: Z.M.
Respondent: Russian State Institution "Department of the Labor and Social Protection Committee of the Ministry of Labor and Social Protection of the Population of the Republic of Kazakhstan" (hereinafter referred to as the Department)
Interested party: Russian State Institution "Committee of Labor and Social Protection of the Ministry of Labor and Social Protection of the Population of the Republic of Kazakhstan" (hereinafter referred to as the Committee)
The subject of the dispute: on the recognition of the illegal and cancellation of the decision on the refusal to assign pension payments based on age
Review of the defendant's cassation complaint PLOT:
On September 10, 2003, Z.M. acquired the citizenship of the Republic of Kazakhstan.
Upon reaching retirement age, in 2005, Z.B. applied to the branch of the NAO "Government for Citizens State Corporation" (hereinafter – NAO) for an old-age pension and a state basic pension payment.
When applying for pension payments, the plaintiff was notified of the need to report all changes involving changes in the amount of pensions or benefits paid, as well as changes in residence (including travel outside the Republic of Kazakhstan), personal data, bank details to the branch of the State Corporation.
According to the conclusion of the Migration Service Department of the Police Department (hereinafter referred to as the Department) dated December 12, 2021, the plaintiff registered the loss of citizenship of the Republic of Kazakhstan in connection with crossing the state border on June 5, 2003 with a passport of a citizen of the Russian Federation.
Since February 1, 2022, pension payments to the plaintiff have been suspended, and a request has been sent to the Pension Fund of the Russian Federation.
On May 13, 2022, by a ruling of the specialized interdistrict administrative court of the city of A., a mediation agreement was approved to invalidate the Office's conclusion on the loss of the plaintiff's citizenship.
On June 3, 2022, the plaintiff was issued a new identity card of a citizen of the Republic of Kazakhstan.
On June 9, 2022, the plaintiff applied to the Department for the restoration of pension payments.
On June 27, 2022, the appealed decision of the Department denied the resumption of pension payments by age to the plaintiff.
On September 28, 2022, the plaintiff filed a complaint with the Committee against this decision.
By a letter from the Committee dated October 7, 2022, the complaint was denied.
Having disagreed with this refusal, the plaintiff appealed to the court with this claim.
Judicial acts:
1st instance: the claim is satisfied. It was decided to declare illegal and cancel the decision of the Department on the refusal to assign age-related pension payments dated June 27, 2022.
By a private definition dated January 5, 2023, the violations of legislation committed by the Department were brought to the attention of the Minister of Labor and Social Protection of the Population of the Republic of Kazakhstan for appropriate response measures.
Appeal: the court's decision and ruling are upheld.
Cassation: judicial acts are cancelled. A new decision was made in the case to dismiss the claim.
Conclusions: the local courts, satisfying the plaintiff's claims, were motivated by the fact that the defendant had incorrectly applied and interpreted the norms of law, there were no grounds for termination of pension payments and refusal to resume pension payments to the plaintiff.
These conclusions of the local courts do not comply with the circumstances and requirements of the law established in the case.
In accordance with the requirements of paragraphs 1,3 of Article 10 of the Constitution of the Republic of Kazakhstan, the citizenship of the Republic of Kazakhstan is acquired and terminated in accordance with the law, is uniform and equal, regardless of the grounds for its acquisition.
The citizenship of another State is not recognized for a citizen of the Republic.
According to paragraph 1 of Article 2 of the Law "On Pension Provision" (hereinafter referred to as the Law), which was in force at the time of the dispute, citizens of the Republic of Kazakhstan have the right to pension provision in accordance with the procedure established by the legislation of the Republic of Kazakhstan.
In accordance with article 12 of the Law, the state basic pension payment and age pension payments are assigned for life and are carried out upon the month of death or departure for permanent residence outside the Republic of Kazakhstan inclusive.
The procedure for granting State basic pension payments from budgetary funds, as well as the appointment and implementation of age-related pension payments during the contested period, was regulated by the Rules for the Provision of State basic Pension Payments from Budgetary Funds, as well as the Appointment and Implementation of age-related pension payments, State disability benefits, survivor benefits, and State special Benefits approved by the Government of the Russian Federation. by order of the Minister of Health and Social Development of the Republic of Kazakhstan
No. 223 dated April 14, 2015 (hereinafter referred to as the Rules).
At the time of the contested decisions, the Department was guided by subparagraph 9) of paragraph 64 of the Rules, according to which the payment of pensions and benefits is suspended from the first day of the month following the month of receipt in the event that the fact of receiving pension payments of the Republic of Kazakhstan is revealed.
The reason for the suspension of payment was information received by the Department from the Department of the Pension Fund of the Russian Federation (hereinafter referred to as the Pension Fund) dated June 23, 2020 No. 07/5608 stating that the plaintiff is a recipient of a pension in the Russian Federation.
According to the information of the Pension Fund dated June 24, 2022, Z.M. was registered with the Pension Fund Department from June 1, 1994 to December 31, 2020 and was the recipient of an old-age insurance pension.
On the territory of the Russian Federation, Z.B. is registered at his place of residence. Due to the establishment of the fact of non-residence at the specified address, the payment of Z.M.'s pension has been suspended since January 1, 2021, and terminated since July 1, 2021.
It should be noted that starting from September 29, 2022, subparagraph 9) of paragraph 64 of the Rules was supplemented and provided that the resumption of payments is made from the date of suspension, but no more than three years before applying for the resumption of payments, subject to repayment of overpaid amounts of pensions and benefits in the CIS member states.
According to the NAO, during the period of double pension receipt in the Republic of Kazakhstan, the plaintiff was paid a refund pension in the amount of KZT 12,052,040, no information was provided to the court on the reimbursement of this amount or the refund of the overpayment in the Russian Federation.
In these circumstances, taking into account the establishment of the fact of double pension provision, which is not disputed by the plaintiff, the judicial board concludes that the defendant's actions to suspend pension payments to the plaintiff are lawful.
In accordance with paragraph 65 of the Rules, a branch of a State Corporation, based on a decision of the authorized body in accordance with annex 47 to these Rules, shall terminate the payment of pensions or benefits from the first day of the month following the month of receipt of information on the identification of the fact that the applicant provided false information that led to an unjustified appointment.
The specified paragraph of the Rules has been amended as follows since September 29, 2022: upon termination of payment of pensions and benefits due to the identification of the fact that the applicant provided false information, which led to an unjustified initial appointment, a new appointment procedure is carried out in accordance with the procedure provided for in these Rules.
Taking into account that the plaintiff, at the time of applying for a pension in the Republic of Kazakhstan, was already a recipient of a pension in the Russian Federation, the judicial board considers that the initial assignment of a pension to him was unjustified.
Accordingly, the defendant's arguments that the payment of the former pension to the plaintiff could not be resumed, but was subject to appointment only after undergoing a new procedure, are legitimate and justified.
By virtue of the first part of Article 10 of the CPC, when exercising administrative discretion, the administrative body and the official ensure a fair balance of interests between the participant in the administrative procedure and the company.
At the same time, an administrative act or an administrative action (inaction) must be proportionate, that is, appropriate, necessary and proportionate.
Local courts have incorrectly applied the norms of substantive law, along with judicial acts, a private definition is subject to cancellation.
Considering that the case does not require the collection and additional verification of evidence, the judicial board considers it necessary to reverse the decision of the court of first instance and the decision of the court of appeal and make a new decision to dismiss the claim.
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