On the assignment of the obligation to resume the payment of a pension for years of service
No. 6001-23-00-6ap/1282 dated 11/23/2023
Plaintiff: Z.V.
Respondent: "Police Department of the Ministry of Internal Affairs of the Republic of Kazakhstan" (Department)
The subject of the dispute: on the assignment of the obligation to resume payment of a superannuation pension through the Ministry of Internal Affairs of the Republic of Kazakhstan (MVD RK) from the date of termination in connection with departure for permanent residence in the Russian Federation from November 27, 2019 at the place of residence and permanent registration in the Russian Federation
Review of the defendant's cassation complaint PLOT:
Z.V. appealed to the court with the above-mentioned claim, arguing that in connection with leaving for permanent residence in the Russian Federation (RF), the Department stopped paying him a pension for years of service. When contacting the Pension Service Center of the Main Directorate of the Ministry of Internal Affairs of the Russian Federation for the Moscow Region (Central Office of the Ministry of Internal Affairs of the Russian Federation for the Moscow Region) He was also denied a pension. The plaintiff asked the court to oblige the Department to resume his pension payments, which were unreasonably terminated due to his departure for permanent residence in another country.
Judicial acts:
1st instance: the claim is partially satisfied. It is essentially decided:
to oblige to resume payment of the pension to the plaintiff for years of service through the Ministry of Internal Affairs of the Republic of Kazakhstan from the date of termination in connection with departure for permanent residence in the Russian Federation from December 1, 2019 at the place of residence and permanent registration in the Russian Federation;
to refuse to impose the obligation to pay a pension from November 27 to December 1, 2019.
Appeal: the court's decision remains unchanged.
Cassation: judicial acts are cancelled. The claim was denied.
Conclusions: the plaintiff is a citizen of the Russian Federation and has been permanently residing in the Moscow region since 2018. Prior to that, he was a citizen of the Republic of Kazakhstan, where he received a pension for years of service, awarded upon dismissal from the fire service.
Due to the departure of the plaintiff for permanent residence in Russia, pension payments to him were terminated on December 1, 2019.
On December 19, 2019, the plaintiff's pension case was sent to his place of residence in Russia. At the same time, the Central Office of the Ministry of Internal Affairs of the Russian Federation for the Moscow region returned the pension file to the Department on January 28, 2020, refusing to pay a pension for years of service.
The plaintiff challenged this decision of the Central Office of the Ministry of Internal Affairs of the Russian Federation in the Moscow region in court. By the decision of the T. District Court of the city of Moscow dated June 8, 2021, the plaintiff's claims to declare illegal the refusal to pay him a pension were left without satisfaction. By the appellate ruling of the judicial board for civil cases of the Moscow City Court dated July 11, 2022, the decision of the court of first instance remained unchanged.
On September 16, 2022, the plaintiff applied to the Department for the resumption of pension payments, to which he received a response dated September 19, 2022, stating that the plaintiff must provide an identity document (identity card, certificate of a stateless person, residence permit of a foreigner, passport of a citizen of Kazakhstan).
Disagreeing with the termination of pension payments, the plaintiff appealed to the court.
The local courts, partially satisfying the claim, came to the conclusion that the pension of the same type is absent in the legislation of the Russian Federation. In this regard, by applying the provisions of the Agreement on Guarantees of the Rights of Citizens of the CIS Member States in the field of Pensions dated March 13, 1992 (the 1992 Agreement), the Department was obliged to continue paying the pension to the plaintiff for the length of service assigned at the place of former residence.
However, the conclusions of the local courts do not comply with the requirements of the law and contradict the circumstances established in the case.
Thus, by virtue of Article 3 of the Law of the Republic of Kazakhstan "On Pension Provision in the Republic of Kazakhstan"1 (Law) The legislation of the Republic of Kazakhstan on pension provision is based on the Constitution of the Republic of Kazakhstan and consists of this Law and other regulatory legal acts of the Republic of Kazakhstan.
According to paragraph 3 of article 4 of the Constitution, international treaties ratified by the Republic have priority over its laws. The procedure and conditions for the operation of international treaties to which Kazakhstan is a party are determined by the legislation of the Republic.
Paragraph 4 of article 68 of the Law stated that pension payments for years of service are paid for the current month and are carried out on the month of death or departure for permanent residence outside the Republic of Kazakhstan inclusive.
With regard to this dispute, the termination of pension payments for years of service upon departure for permanent residence outside Kazakhstan is conditioned by the provisions of the Agreement on the Procedure for Pension Provision and State Insurance of Employees of the Internal Affairs Bodies of the CIS Member States dated December 24, 1993 (1993 Agreement), to which Russia and Kazakhstan are parties.
It follows from article 1 of this Agreement that pension provision for employees of the internal affairs bodies of the Parties, as well as pension provision for their families, is carried out on the terms, standards and in accordance with the procedure established or to be established by the legislation of the Parties in whose territory they permanently reside.
The interpretation of article 1 of the 1993 Agreement was given by the CIS Economic Court in decision No. 01-1/7-03 of May 13, 2004. According to paragraph 2 of this decision, when a pensioner changes his place of residence, his right to pension provision remains in accordance with the principle of territoriality set out in the 1992 Agreement, as well as in the 1993 Agreement, and is carried out on the basis of the national legislation of the State at the newly chosen place of residence.
At the same time, the States parties to the 1993 Agreement, when reorganizing the system of internal affairs bodies (transferring individual services and divisions to other ministries and departments or creating independent bodies), must independently determine which bodies provide pensions to pensioners who have arrived on their territory, or in order to avoid conflicts of national legislation, use the mechanism provided for in article 6 of the 1993 Agreement, through the conclusion of bilateral or multilateral agreements.
The Law of the Russian Federation "On Pension provision for persons who have served in military service, service in internal affairs Bodies, the State Fire Service, bodies for the Control of Trafficking in Narcotic Drugs and Psychotropic Substances, institutions and bodies of the penal enforcement system, troops of the National Guard of the Russian Federation, and their Families" dated February 12, 1993 (The Law of the Russian Federation) A long-service pension is provided for persons who have served in the State Fire Service, including those dismissed from service upon reaching the age limit for service.
From the content of Article 13 of the Law of the Russian Federation, it can be seen that the conditions for the appointment and payment of a retirement pension to employees of the State Fire Service are similar to the conditions for awarding a pension to the plaintiff (age limit, seniority, grounds for dismissal).
According to Article 11 of the Law of the Russian Federation, the Ministry of Internal Affairs of the Russian Federation has been designated as the federal state body responsible for pension provision for persons dismissed from the State Fire Service of the Russian Federation.
The obligation of the Ministry of Internal Affairs of the Russian Federation to provide pensions to persons dismissed from the fire service of the CIS member states is not specified in this provision, but is provided for by the current 1993 Agreement, which, by virtue of Part 4 of Article 15 of the Constitution of the Russian Federation, takes precedence over the Law of the Russian Federation.
In view of the above, the judicial board concludes that the notice of termination of the plaintiff's pension payment was issued by the defendant in accordance with the Law and does not interfere with the plaintiff's right to pension provision under the legislation of the State of actual residence.
The plaintiff has not fully exercised the right to appeal against judicial acts rendered by the courts of the Russian Federation. In this regard, the collegium finds the reference to judicial acts of the Russian Federation untenable.
The denunciation of the 1992 Agreement does not terminate the plaintiff's pension rights, since he applied for a retirement pension in the Russian Federation before the adoption of Federal Law No. 175-FZ of June 11, 2022 (paragraph 2 of Article 13 of the 1992 Agreement).
Thus, the local courts made an erroneous interpretation of the norms of substantive law, which led to an incorrect resolution of the case and this is the basis for the cancellation of judicial acts appealed by the cassator.
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