On recognizing the refusal to appoint pension payments as illegal, forcing the appointment of pension payments for years of service
No. 6001-24-00-6ap/1801 dated January 08, 2025
Plaintiff: R.D.
Respondents: State Institution "Agency of the Republic of Kazakhstan for Financial Monitoring" (hereinafter referred to as the Agency), State Institution "Department of Economic Investigations of the Agency for Financial Monitoring of the Republic of Kazakhstan" (hereinafter referred to as the Department)
The subject of the dispute: the recognition of the refusal to assign pension payments as illegal, the coercion of the appointment of pension payments for years of service
Review of the plaintiff's cassation complaint PLOT:
By order of the Department dated March 2, 2021, the plaintiff was dismissed on the basis of subparagraph 4) of paragraph 1 of Article 80 of the Law of the Republic of Kazakhstan "On Law Enforcement Service" (hereinafter referred to as the Law "On Law Enforcement Service") in connection with staff reduction or reorganization of the law enforcement agency in case it is impossible to use in another position.
On November 30, 2023, the plaintiff applied to the Department for retirement benefits.
On December 7, 2023, the Department was denied pension payments. The refusal is motivated by the fact that the applicant does not have the required 12 years and 6 months of continuous service in law enforcement agencies.
R.D.'s application to the Agency was also dismissed on January 23, 2024 on the same grounds.
Having disagreed with the refusal to award a long-service pension, the plaintiff appealed to the court with the above requirements.
Judicial acts:
1st instance: the claim is satisfied. It was decided: to recognize the actions of the Department to refuse to assign pension payments for years of service as illegal; to oblige the Agency to assign pension payments to the plaintiff for years of service in law enforcement agencies within one month from the date of entry into force of the court decision.
Appeal: the decision of the court of first instance has been changed. Regarding the satisfaction of the claim to the Agency for challenging the refusal to appoint pension payments and the assignment of the obligation to appoint pension payments, it was canceled, in the specified part, the claim was denied.
Cassation: the decision of the appeal in this case is upheld.
Conclusions: the court of first instance, satisfying the claim in this part, then
That is, according to the main claim, he indicated that the plaintiff was not actually dismissed from the service, but continued to work in the same Department, and he did not have labor relations with other individuals and legal entities.
According to the Department's order dated April 26, 2012, the plaintiff was appointed chief specialist of the Department of Customs Control Organization of the Department of Customs Control Organization with dismissal from the post of chief specialist of the Department of inspections of the Department of customs Control of the same Department.
By order of the Department dated July 4, 2012, the plaintiff was appointed to the position of Acting Head of the Legal Support Department of the Customs Control Department with the dismissal of the chief specialist of the Customs Control Organization Department of the Customs Control Administration.
On September 11, 2012, the plaintiff was appointed to the position of Head of the Legal Support Department of the Department with the dismissal of the acting head of this department.
Thus, by order of the Customs Control Committee dated July 1, 2009, the captain of the Customs Service, the head of the Anti-smuggling Department, R.D., was awarded the next special rank of Major of the Customs Service.
The next regular rank of lieutenant colonel of the Customs Service was awarded to the plaintiff by order of the Customs Control Committee dated July 30, 2013, already as head of the Internal Security Department of the Customs Control Department.
Consequently, in the opinion of the court of first instance, the length of service should include the actual time of service from the date of assignment.
The plaintiff was promoted from the rank of major to the rank of lieutenant colonel of the Customs Service, despite having an administrative position in this time period from June 8 to September 27, 2012.
The conclusions of the court of appeal on the annulment of the decision of the court of first instance in this part are justified.
The plaintiff, taking into account a break of more than three months from April 6, 2002 to October 25, 2002, worked in internal affairs and customs authorities in various positions from January 17, 2000 to the day of his dismissal on March 2, 2021.
According to subparagraph 3) of paragraph 1 of Article 212 of the Social Code of the Republic of Kazakhstan (hereinafter - The Social Code), which entered into force on July 1, 2023, law enforcement officers with a total work experience of twenty-five years or more are eligible for retirement benefits, of which at least twelve years and six months are continuous military service, service in special state and law enforcement agencies, state courier service., and dismissed upon reaching the age limit established by the legislation of the Republic of Kazakhstan for military service, service in special state and law enforcement agencies, to the state courier service, either for staff reduction or health reasons, or during the liquidation of a law enforcement agency.
Similar norms were contained in subparagraph 3) of paragraph 1 of Article 64 of the Law of the Republic of Kazakhstan "On Pension Provision".
In accordance with paragraphs 1 and 5 of Article 41 of the Law "On Law Enforcement Service", the length of law enforcement service is calculated in accordance with the procedure established by the legislation of the Republic of Kazakhstan in order to calculate the length of service that entitles to a pension, provide additional leave for service, pay a lump sum upon dismissal of an employee, as well as submit for awarding honorary titles of the Republic Kazakhstan and awarding departmental insignia of a law enforcement agency.
The length of service in law enforcement is considered continuous if no more than three months have passed from the date of the employee's dismissal to the date of his admission to law enforcement service, provided that he does not have an employment relationship with other individuals and legal entities during the specified period.
In addition, in accordance with paragraph 4 of Article 24 of this Law, the length of service in a special rank or class rank is calculated from the date on which the employee is awarded the appropriate special or military rank, class rank, while the length of service includes the actual time of service in positions, as well as service in the cases provided for in Article 44 of this Law.
Thus, according to the norms of the Social Code, the Law of the Republic of Kazakhstan "On Pension Provision" and Rules No. 734, one of the conditions for awarding a long-service pension is the presence of at least twelve years and six months of continuous military service, service in special state and law enforcement agencies, and the state courier service.
The plaintiff's service in the customs authorities was carried out from August 15, 2005 to June 8, 2012. Then there was a break from service in the Department, unrelated to service in law enforcement agencies (more than 3 months) from June 8, 2012 to September 26, 2012. Further service in the customs authorities, in the state revenue and financial monitoring authorities from September 27, 2012 to March 2, 2021.
By order of the Department dated April 26, 2012, the plaintiff was appointed Chief specialist of the Department of Customs Control Organization of the Department of Customs Control Organization, with dismissal from the post of chief specialist of the Department of inspections of the Department of customs Control of the same Department.
At the same time, by order of the Department dated June 8, 2012, Major of the Customs Service R.D. The right to hold special titles has been abolished and the assignment of regular special titles and seniority in special ranks has been discontinued since May 19, 2012 in accordance with the Decree of the Government of the Republic of Kazakhstan "On approval of the list of positions of internal affairs bodies, the penal enforcement system, the State Fire service and Customs authorities of the Republic of Kazakhstan, which are awarded special titles and the corresponding marginal special ranks" dated May 19, 2012, No. 643.
By order of the Department dated July 4, 2012, the plaintiff was appointed to the position of Acting Head of the Legal Support Department of the Customs Control Department with the dismissal of the chief specialist of the Customs Control Organization Department of the Customs Control Administration.
On September 11, 2012, the plaintiff was appointed to the post of head of the Department's Legal Support Department with the dismissal of the acting head of this department, and on September 27, 2012, he was appointed to the post of head of the Internal Security Department.
The listed positions in the plaintiff's service after June 8, 2012, until September 27, 2012, were administrative and did not relate to the law enforcement service.
That is, during the passage of the customs service, the plaintiff's experience in law enforcement was interrupted for more than three months due to his presence in administrative positions.
That is, after the end of the specified break, the plaintiff does not have the necessary experience of 12 years and 6 months of continuous service in law enforcement agencies.
The above-mentioned legislation does not contain a provision stating that the length of service in administrative positions in customs authorities, which is not related to service in law enforcement agencies, is counted in the length of service when a pension is awarded.
These and other arguments of the courts are set out in detail in the contested judicial act.
In the above circumstances, it is legitimate to refuse to award a long-service pension.
Since the circumstances of the case were established correctly, and the rules of law were applied correctly by the court of appeal, the collegium did not find any grounds for canceling or changing the judicial act.
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