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Lawyer practicing pension law. Specializes in the field of recalculation of pensions of military personnel, persons affected by the accident at the Chernobyl nuclear power plant, confirmation of seniority and crediting of preferential seniority.
Article 56 of the Chernobyl Law: what is worth knowing?
Table of Contents:
- The content of Part 2 of Article 56: what is the essence of the norm?
- Who is the recalculation for?
- What is the problem with the application of Article 56 in practice?
- The most common violations
- Legal position: what does the law say?
- Case law: how are the rights of pensioners protected?
- Rights protection algorithm
Pension provision for citizens affected by the Chernobyl disaster is regulated by special legislation establishing enhanced social guarantees. The key norm in matters of pension recalculation is part two of Article 56 of the Law of Ukraine “On the Status and Social Protection of Citizens Affected by the Chernobyl Disaster”.
It is this norm that determines the special procedure for calculating the additional payment for overtime for Chernobyl survivors who were awarded a pension before October 1, 2017. In practice, this is not about establishing or confirming the length of service, but about the correct amount of the monetary supplement to the pension, which directly affects the amount of monthly payments.
The content of Part 2 of Article 56: what is the essence of the norm?
Part 2 of Article 56 provides that pensioners from among the victims of the Chernobyl disaster have their pension increased by 1% of their earnings for each year of work in excess of the established length of service, but not above the maximum amount determined by law.
That is, the law establishes:
- a guaranteed right to a supplement for each year of overtime service;
- a clear percentage increase mechanism;
- the mandatory application of the special Chernobyl norm.
This supplement is an integral part of the pension, and not additional social assistance, therefore its size should be determined exclusively according to the rules of a special law.
Who is the recalculation for?
Recalculation of the overtime supplement in accordance with Part 2 of Article 56 applies to persons who:
- have the status of victims of the Chernobyl disaster (categories 1–4);
- receive a pension assigned until October 2017;
- have overtime service that has already been taken into account when assigning a pension.
The date of assignment of the pension is of key importance, since after the 2017 pension reform, the mechanism for determining the supplement was changed, and the Pension Fund authorities began to apply general rules instead of special ones.
What is the problem with the application of Article 56 in practice?
Despite clear regulatory regulation, in practice, Chernobyl pensioners are massively faced with the incorrect application of Part 2 of Article 56. The main problem is that the Pension Fund authorities are actually changing the mechanism for determining the amount of the overtime supplement, which directly affects the total amount of the pension.
The most common violations
Replacing a special norm with a general one
Instead of applying the special Chernobyl regulation, the PFU bodies are guided by the norms of the general pension legislation. As a result:
- the supplement is calculated not from earnings, but from minimum indicators;
- a different percentage mechanism is applied;
- the increased social protection of Chernobyl survivors is actually leveled.
This approach contradicts the basic principle of law: the special norm has priority over the general one.
Reducing the percentage of increase
Part 2 of Article 56 directly establishes an increase in the pension by 1% of earnings for each year of overtime work. However, in practice there are cases when:
- the percentage is reduced;
- internal instructions of the PFU are applied;
- formulas not provided for by law are used.
This leads to a systematic underestimation of the amount of the supplement.
For example, if there are 15 years of overtime work, the pension should be increased by 15% of the corresponding earnings. Instead, other coefficients are applied that reduce the increase by several times.
Legal position: what does the law say?
The special law has priority over the general pension legislation. This means that when determining the components of the Chernobyl pension, the provisions of Law No. 796-XII are applicable.
The overtime supplement:
- is a mandatory component of the pension;
- cannot be canceled or reduced by by-laws;
- cannot be limited by the norms relating to general pensions.
The law directly guarantees the right to an appropriate calculation mechanism, and any deviations from it are a violation of social rights.
Case law: how are the rights of pensioners protected?
Administrative courts consistently side with pensioners in disputes regarding the recalculation of the overtime supplement. Case law is based on the following principles:
- The supplement is part of the pension provision, not a benefit.
- Changing the calculation mechanism cannot worsen the pensioner's situation.
- The PFU is obliged to apply special provisions of the Chernobyl legislation.
- Reducing the amount of the supplement is unlawful.
The courts recognize the actions of the PFU bodies as unlawful and oblige them to:
- recalculate the pension;
- restore the correct amount of the supplement;
- repay the debt for past periods.
Rights protection algorithm
If a pensioner has had his overtime bonus reduced, he should:
- Submit an application to the PFU body for recalculation in accordance with Part 2 of Article 56.
- Receive a written response with calculations.
- Check the correctness of the applied percentage increase.
- In case of violations, apply to the administrative court.
Claims usually include:
- recognition of the PFU's actions as unlawful;
- obligation to recalculate;
- recovery of the unpaid amount of pension.
Part 2 of Article 56 of the Chernobyl legislation guarantees a special procedure for determining the amount of the overtime bonus for persons who retired before 2017. This is not about the crediting of the length of service, but about the correct financial calculation of the pension component.
Incorrect application of the norms leads to a reduction in pension payments, but such actions can be successfully challenged in court. Judicial practice confirms the priority of special Chernobyl legislation and provides a real mechanism for restoring the violated rights of pensioners.
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