Recognition of illegal actions in refusing to enroll in the work record for the appointment of pension payments, collection of court costs for the payment of state fees and representative services

The court incorrectly determined the range of circumstances relevant to the case. The conclusions set out in the contested judicial act do not correspond to the actual circumstances of the case. Senior warrant officer of the reserve A. She appealed to the court with a statement to the command of the state institution "Committee for National Security of the Republic of Kazakhstan" (hereinafter – KNB) on the recognition of illegal actions, expressed in non-recognition and refusal to enroll in the work experience of the period of being unemployed in the Karachay Employment Center of the Bryansk region of the Russian Federation (hereinafter - KNB). – The Center), in inducing, when forming documents for the appointment of pension payments, a decision to exclude from the work record, to recognize and record the time of registration as unemployed from June 18 to November 9, 1993 in the work record, assigning the obligation to include it in the work record for the appointment of pension payments from the Center, as well as on the recovery of court costs for the payment of the state fee in the amount of 556 tenge and the services of a representative in the amount of 70,000 tenge. By the decision of the military court of the Almaty garrison of February 28, 2014, A.'s application was denied. By the decision of the Appellate Judicial Board for Civil and administrative Cases of the Military Court of the Republic of Kazakhstan dated May 6, 2014 (hereinafter referred to as the Appeals board), the decision of the court of first instance remained unchanged. By the decision of the Cassation Judicial Board of the Military Court of the Republic of Kazakhstan dated July 31, 2014 (hereinafter referred to as the Cassation Board), the decision of the court of first instance and the decision of the appeals board were changed. It was decided to oblige the National Security Committee to include in A.'s work experience the period of being unemployed in the Center from June 18 to November 9, 1993.

 

The rest of the judicial acts remained unchanged. In the petition, the representative of the National Security Committee, I., asked to cancel the judicial act disputed by way of supervision and to take a new decision in the case to dismiss A.'s application on the following grounds. The Cassation Board, satisfying the applicant's claims for inclusion in the length of service of the period of being unemployed, was guided by the Regulations on the Economic Court of the Commonwealth of Independent States (hereinafter – CIS), approved by the Agreement of the CIS Heads of State dated March 13, 1992 (hereinafter – Agreement), as well as the decision of the Economic Court of the CIS dated April 7, 2005 "On interpretation of the Agreement on Guarantees of the Rights of Citizens of the CIS member States in the field of pension Provision" dated March 13, 1992 (hereinafter referred to as the Decision). However, the cassation board did not take into account that by the above-mentioned Agreement and Decision, employment in the territory of the former USSR includes the period of employment prior to the entry into force of the Agreement, that is, until March 13, 1992, whereas the Cassation board ordered the National Security Committee to include in the length of service the period from June 18 to November 9, 1993, when the applicant was She was unemployed and registered at the Center. In the response to the petition A. She asked to keep in force the judicial act disputed by way of supervision, and to refuse the petition of the National Security Committee, pointing out that she was unemployed in the Russian Federation, and according to the norms of Russian legislation, the period of unemployment refers to work experience and is subject to offset when calculating work experience. Having studied the case materials, the Supervisory Judicial Board for Civil and Administrative Cases of the Supreme Court of the Republic of Kazakhstan decided to cancel the contested judicial act on the following grounds. It follows from the case file that on the basis of the order of the commander of military unit No. 2... On December 26, 2012, Senior Warrant Officer A. was dismissed on the basis of subparagraph 4) of paragraph 1 of Article 26 of the Law of the Republic of Kazakhstan "On Military Service and the status of military personnel", that is, for health reasons, based on the conclusion of the military medical commission on the recognition of limited military service.

Starting from the specified date, A. was excluded from the list of personnel of the unit. In substantiation of his claims, A. points out that the National Security Committee unreasonably did not include in the length of service the period of being unemployed and registered at the Center, since under Russian law the period of being unemployed is included in the length of service when calculating a pension. The courts of the first and appellate instances, rejecting A.'s application, motivated their conclusion by the fact that the current pension legislation of the Republic of Kazakhstan does not provide for the inclusion in the length of service of the period of being unemployed. The Cassation Board, disagreeing with the conclusions of the courts of first instance and appeal, concluded that paragraph 2 of Article 6 of the Agreement stipulates that work experience is taken into account for citizens of the States parties to the Agreement acquired in the territory of any of these States, as well as in the territory of the former USSR. Since A. From June 18 to November 9, 1993, she was unemployed and registered at the Center, then the norms of the pension legislation of the Russian Federation should apply to her, according to which the period of being unemployed is included in her work experience.

Meanwhile, the supervisory judicial board of the Supreme Court of the Republic of Kazakhstan considered that the conclusions of the cassation board regarding the satisfaction of A.'s application for inclusion in the work record of the period of being unemployed did not meet the requirements of the law, for the following reasons. According to article 11 of the Law of the Republic of Kazakhstan "On Pension Provision in the Republic of Kazakhstan" dated June 20, 1997 (hereinafter referred to as the Law), which was in force at the time of the applicant's dismissal, an exhaustive list of grounds for calculating the length of service for pension payments has been determined. The period of registration of a citizen as unemployed is not included in the list of Article 11 of the Law. Article 1 of the Agreement establishes that pension provision for citizens of the States Parties to this Agreement and their family members is carried out in accordance with the legislation of the State in whose territory they reside. The cassation board's reference to the norms of the said Agreement is unjustified, since paragraph 2 of article 6 of the Agreement stipulates that in order to establish the right to a pension, including pensions on preferential grounds and for long service, citizens of the States parties to the Agreement are considered to have work experience acquired in the territory of any of these states, as well as in the territory of the former USSR. prior to the entry into force of this Agreement, that is, before March 13, 1992.

However, A. was unemployed from June 18 to November 9, 1993, that is, after the Agreement came into force. It should also be noted that from the advisory opinion of the CIS Economic Court of November 29, 2012 "On the interpretation of paragraph 2 of Article 6 of the Agreement on Guarantees of the Rights of Citizens of the CIS member States in the field of pension provision", the term "seniority" means a special length of service calculated in accordance with the domestic legislation of the member States in years of service. Considering that the provisions of the Law in force at the time of A.'s dismissal and the current version of the Law of the Republic of Kazakhstan "On Pension Provision in the Republic of Kazakhstan" dated June 21, 2013 do not provide for the enrollment of citizens in the status of unemployed, respectively, the conclusions of the cassation board oblige the National Security Committee to include in the length of service of A. the period of stay as unemployed, are unreasonable and contrary to the requirements of the pension legislation of the Republic of Kazakhstan.  In such circumstances, the supervisory judicial board of the Supreme Court of the Republic of Kazakhstan considers that the cassation board incorrectly determined the range of circumstances relevant to the case, the conclusions set out in the contested judicial act do not correspond to the actual circumstances of the case, and also violated the norms of substantive law, which, according to subparagraphs 1), 3), 4) of the first part Articles 364, subparagraph 1) of Article 365 of the CPC entail the cancellation of the contested judicial act in the appealed part. The Supervisory Judicial Board for Civil and Administrative Cases of the Supreme Court of the Republic of Kazakhstan amended the decision of the Cassation Judicial Board of the Military Court of the Republic of Kazakhstan dated July 31, 2014, canceling the application for forcing the State Security Committee to include the period of A.'s stay as unemployed in the work record. In the cancelled part, the decision of the military court of the Almaty garrison dated February 28, 2014 and the decision of the Appellate Judicial Board for Civil and Administrative Cases of the Military Court of the Republic of Kazakhstan dated May 6, 2014 remained in force. The rest of the resolution of the Cassation Judicial Board of the Military Court of the Republic of Kazakhstan dated July 31, 2014 remained unchanged.

 

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