Problems of realization of the right to pension provision for certain categories of citizens in conditions of international political instability

Rukoleev Vitalii Aleksandrovich ORCID: 0000-0002-6879-9192 Assistant; Department of Constitutional and International Law; Ural State University of Economics 45 Narodnaya Volya str., room 750, Sverdlovsk region, Yekaterinburg, 620144, Russia v.a.rukoleev@bk.ru Other publications by this author

Zadorina Mariya Andreevna ORCID: 0000-0002-2531-8475 PhD in Law Associate Professor; Department of Constitutional and International Law; Ural State University of Economics 45 Narodnaya Volya str., room 750, Sverdlovsk region, Yekaterinburg, 620144, Russia zadorina@bk.ru

Introduction.

In the modern world, every welfare state strives to provide every citizen with a decent life. To achieve this goal, declarative statements in normative legal acts alone are not enough; systematic and comprehensive work is required to implement the constitutional principle of the welfare state, as well as to specify its norms in current legislation.

In particular, according to part 2 of Article 7 of the Constitution of the Russian Federation, the Russian state provides state support to senior citizens and establishes state pensions. According to I. I. Glotova and A. E. Berezhnaya, the pension provision of citizens reflects not only the level of socio-economic development of the state as a whole, but also "the degree of general well-being of the population" ^{[1, p. 43]}.

The topic of pension provision becomes particularly relevant in modern geopolitical conditions, when citizens of the former Soviet republics acquire citizenship of the Russian Federation, who, due to various circumstances, were forced to leave their permanent place of residence and move to the Russian Federation, as well as persons who acquire citizenship of the Russian Federation as part of an option or through the procedure of recognition as a citizen of the Russian Federation. Federation. For those of them who are older than working age, a pension often becomes the only source of livelihood. At the same time, for able-bodied citizens of the Russian Federation who previously worked in the territories of the states that were part of the USSR, the issue of exercising the right to an early old-age insurance pension is of particular importance. Moreover, one third of old-age insurance pensions in the Russian Federation are awarded ahead of schedule ^{[2, p. 50]}.

In recent years, the pension legislation of the Russian Federation has been developing dynamically. This is due to the increased interest of scientists in the field of pension provision. The novels are examined for their compliance with the constitutional principle of the welfare state and the principle of maintaining citizens' trust in the actions of the state. For example, V. A. Cherepanov in his scientific work criticized the main result of the pension reform in 2018 – raising the retirement age ^{[3, pp. 55-56]}. Other scientists analyze the issues of gender differentiation of retirement age ^{[4, pp. 39-53; 5, pp. 87-88; 6, pp. 67-68]}, pension accrual system ^{[7, pp. 38-47; 8, pp. 115-118]}, calculation of insurance length of service and work periods ^{[9, pp. 119-132; 10, pp. 133-142]}, as well as issues of formation of a funded pension ^{[11, pp. 31-37; 12, pp. 39-43]}. The problems of pension allocation are investigated and measures are proposed to solve them ^{[13, pp. 51-57]}. Special attention is paid to the problems of exercising the right to an early old-age insurance pension. The analysis of the legal literature demonstrates interest in relation to such categories of beneficiaries as medical workers ^{[14, pp. 28-34]}, coal industry workers ^{[15, pp. 11-14]}, teaching staff ^{[16, pp. 348-355]}, persons with family responsibilities ^{[17, pp. 97-112; 18, pp. 39-43]}. At the same time, the issues of early assignment of an insurance pension to citizens of the Russian Federation who have experience acquired in the territories of the former Soviet republics remain poorly understood.

The purpose of the work is to identify the problems of exercising the right to an early old–age insurance pension by citizens of the Russian Federation whose work was carried out in the territories of the states that were part of the USSR, as well as to formulate proposals to resolve problems in this area, taking into account the current international political situation.

The subject and methods of research.

The subject of the research is the norms of the legislation of the Russian Federation on pension provision, judicial practice, as well as the works of domestic legal scholars on this issue.

The methodological basis of the research was made up of general scientific (analysis, synthesis, induction, deduction, generalization), as well as special legal (formal legal) methods of scientific cognition.

The results of the study and their discussion.

The right to an early old-age insurance pension arises if a person has a threshold value for the individual pension coefficient and the duration of their work. The total number of work activities includes insurance and special experience. If the insurance record forms periods during which insurance premiums were accrued and paid, then special periods are periods of employment in certain types of work (industries, positions). The lists of such persons are approved by the Government of the Russian Federation, taking into account the provisions of Federal Law No. 400-FZ of December 28, 2013 "On Insurance Pensions" (Articles 30 and 31). And it is with the confirmation of the length of service that citizens have a lot of difficulties. In this regard, A. S. Nikolaev rightly notes that the failure to submit documents to the pension authority confirming the existence of a special length of service is a common reason for refusing to grant an early old–age insurance pension ^{[2, p. 51]}.

In some cases, the right to an early old-age insurance pension may arise when a person is recognized as disabled, as well as for women at birth and subsequent upbringing of children. In this case, the right to an early old-age insurance pension also acts as a guarantee of support for large families and one of the tools for solving demographic problems faced by the Russian Federation. After all, women of working age have the opportunity to devote more time to motherhood and child rearing, supporting the trend of having many children. In addition, when assigning an old-age insurance pension ahead of schedule, women can raise their grandchildren while their children are building a career. In this regard, it is not possible to agree with E. G. Azarova's opinion that an early old-age insurance pension is not a means of encouraging fertility ^{[17, p. 97]}.

It is important to note that the unemployed can equally claim an early retirement insurance pension. Moreover, regular cash payments are scheduled for the period before retirement age, but not earlier than two years before that age. As noted by E. G. Kopalkina, such measures are due to discrimination against pre-retirees, as well as ineffective employment promotion policies for this category of citizens ^{[19, pp. 70-71]}. It seems that the current shortage of personnel in the Russian labor market will be able to somewhat remedy this situation.

We should add that an early old-age insurance pension is awarded on an application basis. The digitalization of all spheres of public life has led to the fact that today it is possible to apply with a corresponding application not only to the territorial body of the Social Fund of the Russian Federation in person, by mail, through a multifunctional center, but also in electronic form using an information system – a single portal of state and municipal services (functions). The application is accompanied by documents confirming the duration of the work activity. The application is considered no later than ten working days from the date of its receipt with all necessary documents. The outcome of the review implies the appointment of a pension or a refusal to appoint it, which must be motivated, and the text of the response must contain explanations on the procedure for appealing the decision.

An analysis of judicial practice for 2020-2024 in cases related to the exercise of citizens' rights to pension provision has highlighted a number of problems faced by citizens of the Russian Federation (whose work was carried out in the territories of states that were part of the USSR) when exercising their right to an early old-age pension. Some of the difficulties faced by citizens are caused by the aggravation of international relations in the post-Soviet space.

For example, a citizen filed a lawsuit against a branch of the Pension Fund in a constituent entity of the Russian Federation. The claim contained demands for the defendant's obligation to include in the insurance record for the establishment of an old-age pension periods of work in the territory of the Ukrainian SSR and the Estonian SSR, periods of child care, as well as periods of service in the ranks of the Soviet Army. It follows from the case file that on March 10, 2020, the person applied to the pension authority for an old-age insurance pension. All necessary documents (military ID, workbooks) were attached to the application. According to the calculations of the citizen, the insurance experience was 12 years, 02 months, and 16 days. By a decision of the pension authority dated June 18, 2020, he was denied an old–age insurance pension, as there was no length of service required to establish regular cash payments (2020 - 11 years). As of March 13, 2020, the citizen's insurance record was 8 years, 02 months, and 8 days. The court found that the arguments about not including the period of service in the Soviet Army in the insurance record were not substantiated. The specified period is included in the length of service of the person, which is confirmed by the decision of the pension authority and the data on the length of service. The non-inclusion of periods of work in the territory of the Estonian SSR in the insurance period is explained by the fact that the employer did not transfer salary deductions to the pension authority. The court also refused to include periods of child care in the insurance period. The claims of the person were satisfied by the court regarding the inclusion of periods of work in the territory of the Ukrainian SSR in the insurance record. As noted in the court's decision, the person provided the defendant with a work record in confirmation of the insurance record. However, the pension authority requested clarifying certificates for the periods of work in the territory of the Ukrainian SSR. The pension authority has sent information requests to employers, but has not received any responses. A few months later, after the decision was made to refuse to grant a pension, the responses to the appeals were received. On July 27, 2020, a pension was awarded to the person. The court considered the actions of the pension authority as unlawful. He formulated the position according to which the failure of the competent authorities of Ukraine to provide responses to requests for information about a person's work does not indicate the unreliability of the information recorded in the workbook, until proven otherwise. The court ordered the pension authority to pay the person money from the moment he applied for an old-age insurance pension (Decision of the Borisoglebsky City Court of the Voronezh Region dated September 29, 2020 in case No. 2-719/2020).

It is worth noting that after 2022, the situation with obtaining information has only worsened. Foreign authorities and organizations of individual states located in the post-Soviet space began to almost completely ignore requests for clarification of information about the work of citizens of the Russian Federation on their territory. At the same time, without clarifying this information, the Social Fund of the Russian Federation refuses to include the relevant work periods in the length of service, forcing citizens to go to court.

For example, a citizen at the age of 50 applied to the department of the Social Fund for a constituent entity of the Russian Federation with an application for an early old-age insurance pension. In the appeal, she stated that she is the mother of a disabled child, raised him until the age of 8, and has at least 15 years of insurance experience. By the decision of the pension authority, she was denied an early insurance pension due to the lack of insurance experience of at least 15 years. Due to the failure to provide other supporting documents, except for a duplicate workbook, the pension authority did not count the periods of work preceding the issuance of this document. The citizen filed a lawsuit with the court to declare illegal the refusal to grant an early insurance pension and the obligation of the pension authority to set off the disputed periods of work in the length of service. As documents confirming the existence of insurance and special experience, she attached a duplicate workbook issued by the Lviv Fire Repair and Construction Trust (Lviv, Ukraine), which contains records of the previous (disputed) periods of the plaintiff's work. The court examined the submitted documents, listened to the arguments of the parties and third parties, and then decided in favor of the plaintiff. It is important to note that the court rejected "the defendant's arguments that a duplicate workbook cannot be considered admissible evidence due to the fact that the previous entries are not stamped by the organizations where the plaintiff worked," since on the first page of the duplicate workbook and at the place of the plaintiff's work record in the trust there is a seal of the employer (Decision Kirovo-Chepetsky District Court of the Kirov region dated October 05, 2023 in case No. 2-1366/2023).

Another example. A citizen who has reached the age of 57 has applied to the branch of the Pension and Social Insurance Fund for a constituent entity of the Russian Federation with a request for an early old-age insurance pension. In June 2022, the pension authority decided to withdraw. It follows from the case file that the pension authority did not include the following periods in the person's work experience: from July 1984 to October 1984, work as an electric welder at LLC "N"; from October 1984 to November 1986, conscription in the Soviet Army; from March 1989 to August 1993 and from From January 1997 to October 1997, he worked as a kindergarten teacher at LLC "N". In July 2022, he again applied to the pension authority with a similar statement. The pension authority issued a decision to refuse to grant an early old-age insurance pension, citing the lack of the required length of service required for certain types of work. The decision states that the citizen has a special experience of 04 months and 23 days, and it takes 7 years and 06 months. In January 2023, the pension Authority changed the previously issued decision on a commission basis. The citizen was credited with his work experience as an electric welder of LLC "N". The period of conscription in the ranks of the Soviet Army and work as a kindergarten teacher at LLC "N" remained outside the special length of service as before. Regarding the latter, the pension authority provided a comment, which implies that the fact of the person's work in the production of clay bricks has not been confirmed. The question of whether the conditions and nature of the work of a person in the profession of "sadchik" correspond to the production of clay bricks, tiles and ceramic blocks, which subsequently gives the right to early retirement, has not been resolved. The court has appointed an expert examination to answer the question. The expert opinion of the Main Directorate for Labor and Employment of the subject of the Russian Federation reflects a positive response. The court has no doubts about the validity of the research results, which is why they were accepted and used as the basis for the court decision. Having studied the materials submitted by the citizen, the court considered it permissible to include in the length of service the period of service in the ranks of the Soviet Army. Thus, the court satisfied most of the claims made by the citizen (the Decision of the Shadrinsky District Court of the Kurgan region dated July 14, 2023 in case No. 2-440/2023).

If in the cases described above, disputes were resolved by the courts of first instance, and the decisions themselves were not appealed by the parties, then the following example demonstrates the opposite. The main thing that I would like to draw attention to is how the substantive law norms are applied by courts in different ways. So, a citizen at the age of 55 applied to the department of the Social Fund for the subject of the Russian Federation with an application for an early old-age insurance pension. The text of the judicial act states that the insurance record of the citizen is 26 years 04 months 16 days, and the special record is 5 years 01 months 5 days. The special length of service, according to the citizen, is formed by the addition of work at the Black Sea Shipbuilding Plant (Nikolaev, Ukraine) from November 01, 1985 to April 14, 1988 as a ship's painter and from April 15, 1988 to December 05, 1990 as a painter. This is confirmed by the entries in the workbook. The citizen believes that during these periods she was engaged in work with the use of harmful substances not lower than the 3rd hazard class. By the decision of the pension authority, the disputed periods of work are not counted in the special length of service. The defendant explained in court that employment in jobs with the use of harmful substances not lower than the 3rd hazard class has not been documented. Based on the results of the assessment and research of the arguments and evidence presented by the parties, the court satisfied the citizen's claims. The court's position was that the current political situation does not allow for actions to be taken to verify the nature of the plaintiff's work during the disputed period, to obtain supporting or refuting documents. Attempts to obtain information by the pension authority were made by sending requests for information to the competent authorities and organizations of Ukraine. At the same time, the norms of current legislation make it possible to define a work record as the main document confirming work experience. Hence, the plaintiff had the right to an early old-age insurance pension in accordance with paragraph 2 of Part 1 of Article 30 of Federal Law No. 400-FZ of December 28, 2013 "On Insurance Pensions". This was the conclusion reached by the court of first instance (Decision of the Leninsky District Court of Magnitogorsk dated June 29, 2023 in case No. 2-936/2023). The Court of Appeal did not agree with these conclusions. The new version of the act highlights the incorrect application of substantive law by the court of first instance. The entries entered in the plaintiff's employment record do not contain information specifying the nature of her work. The plaintiff had to provide certificates from the employer or archival authorities specifying the nature of the plaintiff's work or other documents. The higher judicial authority noted that the current political situation did not exempt her from proving the disputed circumstances (Appeal ruling of the Chelyabinsk Regional Court of September 19, 2023 in case No. 2-936/2023). The cassation instance upheld the decision. The definition includes a correlation between the concepts of "painter" and "painter engaged in work with the use of harmful substances not lower than the 3rd hazard class." Work involving the adverse effects of various factors, namely the latter, presupposes early retirement provision (Definition of the Seventh Court of Cassation of General Jurisdiction dated November 30, 2023 in case No. 88-21330/2023). The citizen filed a cassation appeal to the Supreme Court of the Russian Federation. During the verification of the legality of the decisions of the appellate and cassation instances, the reasons for their cancellation and restoration of the legal force of the decision of the court of first instance were found. The Judicial Board for Civil Cases of the Supreme Court of the Russian Federation considered a formal approach to the consideration of this case by the Court of Appeal and Cassation. The interpretation of the law by the lower courts in the context of the plaintiff's strict obligation to prove the circumstances relevant to the proper resolution of the dispute has led to a violation of the objectives and meaning of civil proceedings and the right to fair and competent judicial protection. The refusal to take into account the specifics of the political situation affecting the situation of a citizen creates a clear bias in favor of the rights and legitimate interests of the pension authority (Ruling of the Judicial Board for Civil Cases of the Supreme Court of the Russian Federation dated June 17, 2024 in case No. 48-KG24-5-K7).

Summarizing the results of the study, it is possible to identify the key problems in the realization of the right to an early old–age insurance pension by citizens of the Russian Federation whose work was carried out in the territories of the states that were part of the USSR: ignoring requests from organizations and authorities of the former Soviet republics for information on the duration, nature and working conditions of persons living in in Russia, in the territories of the former Soviet Union; difficulties in confirming the existence of special work experience associated with the adverse effects of various factors due to the reorganization or liquidation of the employer organization; absence (loss) of work experience documents.

More than ten years ago, N. N. Oleinik and V. K. Letunovsky stated that the law enforcement practice on pension provision issues demonstrates many problems in this area ^{[20, p. 131]}. And, as you can see, this thesis does not lose its relevance at the present time. Citizens en masse resort to defending their rights and legitimate interests in court. According to the calculations of the authors of this work, over the past five years, judicial authorities have annually issued more than 8,5 thousand decisions on cases of early old-age insurance pension to citizens of the Russian Federation whose work was carried out in the territories of the states that are part of the USSR. Due to the lack of unity of approaches in resolving such cases, it is often not possible to defend legitimate claims for such regular cash payments. The degree of satisfaction of citizens' demands is at a low level ^{[21, p. 246]}. The results of the analysis of judicial practice do not give this thesis an evaluative value. Errors in the application (interpretation) of the norms of pension legislation made by employees of pension authorities lead to difficulties in exercising the right to early appointment of an old-age insurance pension. It is important to mention here that they are unleashing insurmountable bureaucratic red tape, as well as avoiding the obligation to request the necessary documents from authorities and organizations, shifting this burden onto the citizens themselves.

Conclusion.

Thus, despite the efforts being made to improve pension legislation, difficulties still exist in confirming special seniority associated with the adverse effects of various factors and, in general, in exercising the right to early retirement insurance by certain categories of citizens. To resolve them, it is proposed to focus efforts on optimizing procedures aimed at improving the implementation of the right under discussion.

Firstly, in case of absence (loss) of work experience documents, it is necessary to develop adequate mechanisms for their restoration. This means simplifying the procedure for contacting archival authorities, recalculating seniority and wages, as well as expanding the range of exceptions when citizens can use witness testimony to verify the duration, nature and conditions of work or clarify any inaccuracies in the documents provided. Especially when it comes to the length of service acquired during the period of employment in the territories of the former Soviet republics, regardless of the existence of international social security agreements based on the principle of territoriality. In the context of international political instability, it is necessary to provide for the possibility of remote participation in the judicial process of persons in such categories of cases. Including in cases where the absence (loss) of work experience documents is associated with environmental disasters, terrorist attacks and other actions caused by the aggravation of international relations between the states of the former Soviet Union.

Secondly, to provide for a simplified correction of inaccuracies made in documents on work experience in an out-of-court and judicial manner.

Thirdly, to initiate negotiations on the preparation of an international treaty regulating information interaction between the States of the former Soviet republics in the field of pension provision. If it is impossible to reach a consensus against the background of the current political situation, recognize a citizen's work record (including its duplicate) as the main document confirming work experience.

Fourthly, it is necessary to systematically conduct information campaigns aimed at raising citizens' awareness of methods for determining the amount of pensions and documents, the content of which leads to the desired value. This will reduce the number of appeals from citizens and, as a result, the burden on pension and judicial authorities.