Тел: 8(0462) 675-281
CHILDREN OF WAR
According to Article 6 of the Law of Ukraine “On Social Protection of Children of War”, persons who belong to the category of people who have the status of “children of war” must be paid a monthly pension supplement in the amount of 30% of the minimum old-age pension. Today, this amount is about 200 hryvnias per month.
But as often happens in our “rule of law” state, this law is not implemented. Since the entry into force of the Law, that is, from January 1, 2006, the Pension Fund of Ukraine must automatically recalculate the pension and pay a supplement in the amount of 30% of the minimum old-age pension. But, unfortunately, reality is far from the legal norm. Article 7 of the Law stipulates that the financial support of state social guarantees (pension supplements) is carried out at the expense of the State Budget of Ukraine. Governments change, but from year to year the actual financing of this supplement from the State Budget in the amounts stipulated by the Law is not carried out.
For the period from January 2006 to January 2011, the state did not pay children of the war almost 6,000 thousand hryvnias. Of course, this is a lot of money for our Ukrainian pensioner.
But in fact, many pensioners, primarily from rural areas, did not even know that they were entitled to such supplements. Most of them learned completely by accident that such benefits and supplements were provided for them by the Law.
It was after the public and some political forces began to speak out about the problems of children of war, that pensioners who do not receive the additional payments and benefits prescribed by the Law
began to appeal to the courts en masse in the last year or two. Although not many manage to achieve justice.
And even in those cases where the courts satisfied the claims, it was only partially. Recently, there has been almost no case where the claims of children of war were fully satisfied.
As a rule, the courts obliged the Pension Fund to transfer money only for the last 12 months preceding the date of filing the claim. And since July 2010, claims are accepted for consideration only for the last 6 months, in the rest of the claims the claim is left without consideration with reference to the statute of limitations.
The situation was also complicated by a change in the procedure for considering such cases. Until February 2010, they were considered in the administrative procedure. Later, the Verkhovna Rada adopted a Law, which stipulated that such social cases should be considered in the civil procedure. In September 2010, the Constitutional Court declared these provisions unconstitutional and again obliged the courts to consider such cases in the administrative procedure.
So what should citizens who have the status of “children of war” and who were not credited with the corresponding monetary allowance to their pensions do?
It is necessary to remember that before going to court, you must contact the relevant department of the Pension Fund of Ukraine at your place of residence and get a response that the PFU Department pays you a supplement in a much smaller amount than established by law.
After that, you must apply to the court within a month with a statement of claim. It should be noted that these cases can be considered in court without the participation of the plaintiff.
As the practice and experience of the Chernihiv Public Committee for the Protection of Human Rights show, in general, these claims are considered by the courts and satisfied. But I would like to remind you once again that the claims are usually satisfied in part – within the last 6 months. This is due to the statute of limitations, although everything is quite individual and at the discretion of the court.
But even after receiving a decision of the district court in its favor, the problems are not yet fully resolved. Even when the decision of the court of first instance (district court) partially satisfies the claim, the district administration of the PFU automatically and in almost all cases without exception appeals it, and the case is sent to the appellate instance for review. I would like to note that although legally everything is legal, in fact this is an abuse of rights by the pension fund and a deliberate delay in the process of resolving the case on the merits. For example, this has led to the fact that at present several thousand cases of “children of war” have accumulated in the Chernihiv region Court of Appeal, and it is unknown when their consideration will be completed.
After the case is considered in the appellate court, the decisions of the district court, as a rule, remain in force and are subject to execution, that is, the court obliges the PFU management to recalculate the pension by age and make the appropriate payments.
So no matter how much our pensioners would like to receive state-guaranteed pension supplements as soon as possible, this does not work. As a rule, a citizen’s claim must go through two instances: the first (district court) and the appellate court. And after the procedure is completed, the person is credited with a pension supplement in the amount of 30% of the minimum pension by age.
The Chernihiv Public Committee for the Protection of Human Rights and a number of public organizations – partners of the Initiative “Strengthening the Legal Capacities of the Poor” of the International Renaissance Foundation, operating in Luhansk, Kherson, Odesa, Mykolaiv, Dnipropetrovsk, Kyiv, Khmelnytskyi, Chernihiv, Volyn, Rivne, Lviv regions, addressed the President and Prime Minister of Ukraine, as heads of state, with a letter in which they expressed their concern about the problem of systematic violation by executive authorities of the current legislation in the field of social payments to such a category of the population as “children of war.” In particular, the letter, based on numerous appeals from citizens regarding state social support for “children of war,” emphasizes that the bodies of the Pension Fund of Ukraine deliberately delay legal proceedings in these categories of cases through unfounded and completely hopeless appeals and cassation appeals of court decisions in these cases. As a result, the bodies of the Pension Fund of Ukraine bear an additional burden, which consists in the expenditure of working time of lawyers of the Pension Fund of Ukraine on the preparation of appeals and cassation complaints in these cases, payment of their labor, payment of business trips to courts of appeal and cassation instances, payment of court costs, etc. Also, the above actions delay the entry into force of decisions, and therefore the actual restoration of the violated right of “children of war.” On the other hand, employees of the judicial system spend their working time and, accordingly, state funds on the adoption, consideration and issuance of decisions on similar lawsuits, in relation to which they take an unambiguous legal position.
I would like to emphasize that persons with the social status of “child of war” are not asking
for anything, but are only trying to restore their violated rights and receive at least the small pension supplements that the State guaranteed them. Instead, pensioners are forced to go to court, lose time, health, and in light of these realities, generally lose faith in the rule of law.
Citizens who consider their rights violated or who have difficulties in exercising their rights can apply for
free
legal assistance to the Chernihiv Public Committee for the Protection of Human Rights. Address: Chernihiv, 14000, Gorkogo St. 57/1. Pre-registration by phone: (022) 612-532.
Viktor Tarasov,
Executive Director
Chernihiv Public Committee for the Protection of Human Rights
(First, we submit a request to the Pension Fund)
Pension Fund of Ukraine Office
in ______________________________
Address: _________________________
Applicant:
Full name:
Address:
APPLICATION
on providing information
I,___________________, born on ___, in accordance with Article 1 of the Law of Ukraine No. 2195-IV of November 18, 2004 “On Social Protection of Children of War” is a child of war.
According to Article 6 of the Law of Ukraine “On Social Protection of Children of War”, with On January 1, 2007, I should be paid a monthly social allowance in the amount of 30 percent of the minimum old-age pension.
In connection with the above, I ask you to calculate the social state allowance due to me – as a child of war – in the amount of 30 percent of the minimum old-age pension for 2007-2011 and ensure its payment.
In addition, I ask you to inform me of the amount of monthly social allowance in accordance with the Law of Ukraine “On Social Protection of Children of War”, which was paid to me for the period from 01.01.2007 to 31.12.2007, from 01.01.2008 to 31.12.2008, from 01.01.2009 to 31.12.2009 and from 01.01.2010 to 31.12.2010, 01.01.2011 to ___________ year.
Signature
Date
(After receiving the response to the request, we submit an application to the court
for the renewal of the terms and a statement of claim)
__________________________________________________
Name of the district court where the claim is filed)
_____________________________ (address)
Plaintiff: Full name of the person
Address
Defendant:
Pension Fund of Ukraine Office
in ___________________________________
Address ______________________________
on renewal of the missed deadline for applying to the administrative court
In accordance with Article 99 of the Code of Administrative Procedure of Ukraine, a six-month period is established for applying to the administrative court for the protection of the rights, freedoms and interests of a person, which is calculated from the day when the person learned or should have learned about the violation of his rights, freedoms or interests.
The Pension Fund of Ukraine Administration made my payments independently. I am not a specialist in the field of social protection, I am not obliged to check the calculations of the defendant, which is a body authorized to perform the functions of state administration, and I did not conduct such a check. At the same time, I believed that the administration acts in accordance with the requirements of the law. In addition, the administration makes all payments in general, without demarcation and I did not know for sure what amount was paid to me as social assistance as a child of war.
I was not notified of the payments due to me as a child of war, therefore I became aware of the fact that my rights were violated only after receiving a response from the Pension Fund of Ukraine in ________________________. Based on the above and guided by Art. 100 of the Code of Administrative Procedure of Ukraine,
I REQUEST:
to restore the missed deadline for applying to the court for protection of violated rights, freedoms and interests for the period from 01.01.2007 to ____________ (this date should be 6 months before filing a claim, for example, if you applied to the court on 01.01.2011, then you must indicate accordingly 06/1/2010)
Attachments:
1. Copy of the letter on the provision of information.
2. Copy of the response of the PFU management in ______________________
3. Copy of the statement and attachments for the defendant.
_________________ y.
Signature
_____________________________________
_____________________________________
(Name of the district court where the claim is filed)
______________________________ (address)
Plaintiff:
Full name _________________
Address_________________________
Defendant:
Pension Fund of Ukraine Office
__________________________________
Address: __________________
tel.: _______________
ADMINISTRATIVE CLAIM
on the obligation to pay monthly state social assistance to children of war
In accordance with Article 1 of the Law of Ukraine “On Social Protection of Children of War” dated 18.11.2004 (hereinafter referred to as the Law), I am a child of war. According to Article 6 of the Law, from 01.01.2006 I must be paid monthly social state assistance in the amount of 30 percent of the minimum old-age pension.
The minimum old-age pension, in accordance with Article 28 of the Law of Ukraine “On Compulsory State Pension Insurance”, is set at the cost of the subsistence minimum for persons who have lost their ability to work.
In accordance with clause 2.1. of the Resolution of the Board of the Pension Fund of Ukraine “On Approval of Regulations on the Management of the Pension Fund of Ukraine in the Autonomous Republic of Crimea, Regions, Cities of Kyiv and Sevastopol, Regulations on the Management of the Pension Fund of Ukraine in Districts, Cities and Districts in Cities” dated April 30, 2002 No. 8-2, the main task of the bodies of the Pension Fund of Ukraine is to ensure timely and full financing and payment of pensions, funeral benefits and other payments, which, in accordance with the legislation, are made at the expense of the Fund’s funds and other sources specified by the legislation. Thus, the payment of the pension supplement was to be made by the defendant.
I, ___________________, sent a written application to the defendant with a request for the actually made payments and with a demand to calculate the social state assistance due to me – as a child of the war – in the amount of 30 percent of the minimum old-age pension for 2007-2011 and ensure its payment.
Despite the fact that according to Part 2 of Article 19 of the Constitution of Ukraine, state authorities and local self-government bodies, their officials are obliged to act only on the basis, within the limits of their powers and in the manner provided for by the Constitution and laws of Ukraine, the defendant, acting as a body of government authority, denied me my guaranteed right under Article 6 of the Law, referring to the provisions of the Resolution of the Cabinet of Ministers of Ukraine dated May 28, 2008 (the Pension Fund Administration’s response is attached).
I believe that the defendant’s refusal is illegal, since in accordance with Part 2 of Article 3 of the Law, state social guarantees for children of war established by this law cannot be limited or canceled by other regulatory legal acts.
Thus, the defendant’s refusal to recalculate and pay me social state assistance provided for by Article 6 of the Law, is unlawful and contrary to the Constitution and laws of Ukraine, violates my rights to social protection.
According to the Law of Ukraine “On the State Budget for 2007”, the subsistence minimum for persons who have lost their working capacity is: from January 1 – 380 hryvnias, from April 1 – 406 hryvnias, from October 1 – 411 hryvnias.
According to the Law of Ukraine “On the State Budget for 2008”, the subsistence minimum for persons who have lost their working capacity is: from January 1 – 470 hryvnias, from April 1 – 481 hryvnias, from July 1 – 481 hryvnias, from October 1 – 498 hryvnias.
According to the Law of Ukraine “On the State Budget of Ukraine for 2009” – the subsistence minimum for persons who lost working capacity, is: from January 1 – 498 UAH, from November 1 – 573 UAH.
According to the Law of Ukraine “On the State Budget of Ukraine for 2010”, the subsistence minimum for persons who have lost working capacity is: from January 1 – 695 UAH, from April 1 – 706 UAH, from July 1 – 709 UAH, from October 1 – 723 UAH, from December 1 – 734 UAH.
According to the Law of Ukraine “On the State Budget of Ukraine for 2011”, the subsistence minimum for persons who have lost working capacity is: from January 1 – 750 UAH, from April 1 – 764 UAH, from October 1 – 784 UAH, from December 1 – 800 UAH.
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