REMOVING THE LIMITATION ON THE MAXIMUM SIZE OF MILITARY PENSIONS: COURT PRACTICE

The Law of Ukraine "On pension provision of persons discharged from military service and certain other persons", which regulates the norms and procedure of pension provision of citizens of Ukraine from the number of persons who were in military service, part 7 of Article 43 of Chapter V "Calculation of pensions" states that "the maximum amount of the pension (taking into account allowances, increases, additional pension, targeted cash assistance, pension for special services to Ukraine, indexation and other pension supplements established by law, except for supplements to certain categories of persons who have special services to the Motherland) cannot exceed ten subsistence minimums established for persons who have lost their capacity to work."

Analyzing the judicial practice and the requests of our Clients, the Pension Fund of Ukraine is in such a situation that military pensioners, who held high positions and received correspondingly high financial support, HAVING THE RIGHT TO A DECENT PENSION, in connection with illegal actions by the PFU authorities, actually receive a limited pension in the maximum amount, which is ten subsistence minimums, established for persons who have lost their ability to work (as of today, this amount is UAH 20,930).

A similar situation exists both for military pensioners who have just received a military pension and for the category of pensioners who have gone through the "thorny path" regarding the obligation of the Main Directorates of the Pension Fund to recalculate on the basis of updated certificates on the amount of monetary support as of 01.04. 2019 (for military personnel) and from 01.12.2019 (for policemen), where at the stage of implementation of court decisions that have entered into force, the PFU authorities illegally limit the actual amount of a pensioner's pension and pay UAH 20,930.

It should be noted that the limitation of the maximum amount of the pension, appointed on the basis of the Law of Ukraine "On pension provision of persons released from military service and certain other persons" dated 09.04.1992 № 2262-XII, by ten subsistence minimums established for persons who lost capacity for work, first enacted by the Law of Ukraine "On Measures for Legislative Support of Reforming the Pension System" № 3668-VI, which entered into force on October 1, 2011.

However, the above-mentioned actions of the PFU bodies are illegal, since the decisions of the Constitutional Court of Ukraine, namely:

• dated 20.12.2016 № 7-рп/2016 in case № 1-38/2016, where the decisive part of the said decision – recognized as not in accordance with the Constitution of Ukraine (are unconstitutional), the provisions of the Law of Ukraine "On pension provision of persons released from military service service, and some other persons" dated April 9, 1992 № 2262-XII with amendments, namely: the seventh part of Article 43, according to which the maximum amount of pension (taking into account allowances, increases, additional pension, targeted cash assistance, pension for special merits to Ukraine, indexation and other pension supplements established by law, except for supplements to certain categories of persons who have special merits to the Motherland) may not exceed ten subsistence minimums established for persons who have lost work capacity.
• dated 12.10.2022 № 7-р(ІІ) /2022 in case № 3-102/2021 (231/21, 415/21), where the decisive part of the said decision is recognized as not in accordance with the Constitution of Ukraine (are unconstitutional), prescriptions of Article 2 of the Law of Ukraine "On Measures for Legislative Support of Reforming the Pension System" dated July 8, 2011 № 3668-VI with amendments extending their effect to the Law of Ukraine "On Pension Support of Persons Discharged from Military Service and Certain Other Persons" dated April 9, 1992 No. 2262-XII.

Lawyers of the "Prikhodko&Partners" law firm have analyzed the judicial practice on this issue, where the courts of both the appeal and cassation instances come to the same conclusion that the actions of the PFU bodies are illegal and oblige them to pay the pension without limiting its maximum amount , example:

• ruling of the Sixth Administrative Court of Appeal dated 03/10/2023 in case № 640/8234/22, dated 07/03/2023 in case № 640/12268/22, ruling of the Third Administrative Court of Appeal dated 09/03/2023 in case № 160/8186/22, ruling of the Eighth Administrative Court of Appeal dated 09.03.2023 in case № 380/6750/22, dated 08.03.2023 in case № 380/8632/22, the decision of the Seventh Administrative Court of Appeal dated 03.07.2023 in case № 600/3033/22-a, ruling of the First Administrative Court of Appeal dated 06.03.2023 in case № 200/4799/22, ruling of the Second Administrative Court of Appeal dated 02.03.2023 in case № 520/27114/21, ruling of the Supreme Court as part of the collegium of the Administrative Court of Cassation dated 29.06.2022 in case № 640/19118/18, dated February 17, 2022 in case № 640/11168/20.

Therefore, in order to restore justice and receive adequate pension provision in accordance with the requirements of current legislation, I advise you to contact the lawyers of the Prikhodko&Partners Law Office, who will oblige the PFU authorities to pay your pension in full through the court.