When Does a Prosecutor Acquire the Right to a Pension for Years of Service?

After working in the prosecution service for many years, a man applied to the Pension Fund of Ukraine in October 2016 for a pension for years of service. However, the Pension Fund refused to grant the pension, referring to the Law of 2 March 2015, which repealed certain provisions concerning special pension benefits under the legislation governing the prosecution service.

The man challenged the refusal before the court. He argued that he had accumulated sufficient qualifying service under the legislation governing the Prosecutor’s Office to be entitled to a pension for years of service and that the Pension Fund’s refusal was therefore unlawful.

The courts established that the Pension Fund had not actually examined whether the claimant had acquired the right to a pension under the relevant provisions of the Law of Ukraine “On the Prosecutor’s Office”. Instead, the Pension Fund had immediately refused the application on the basis that the relevant pension provisions had been repealed.

An important principle in pension disputes is that the applicable legislation must be determined with reference to the legally relevant circumstances and the time when the pension right arose or was exercised. Legislative amendments do not automatically eliminate rights that may have already arisen under previously applicable legislation.

This principle is closely connected with the general rule that legislation normally does not have retroactive effect unless otherwise provided in accordance with the Constitution and law.

Accordingly, the Pension Fund should have established when the claimant acquired the relevant right to a pension for years of service. If the statutory conditions for acquiring that right had been satisfied before the legislative changes of 2 March 2015 became applicable, it was necessary to assess the claimant’s pension entitlement with due regard to the legislation governing that earlier period.

The courts emphasised that the proceedings did not require them to decide directly whether the claimant was ultimately entitled to the pension for years of service. Instead, the key issue was whether the Pension Fund had properly considered his application.

It was established that the Pension Fund had failed to conduct the necessary assessment because it had not determined whether the claimant had acquired the relevant pension right and, if so, when that right had arisen.

For this reason, the court ordered the Pension Fund to properly reconsider the claimant’s application and issue a reasoned decision based on an assessment of all legally relevant circumstances.

The practical significance of this case is that the Pension Fund cannot refuse a former prosecutor’s application for a pension for years of service merely by referring to the subsequent repeal or amendment of pension provisions.

Before making a decision, the Pension Fund must establish when the person acquired the relevant pension right, which legislation applied at that time and whether the statutory qualifying service and other requirements were satisfied.

Therefore, if a former prosecutor is refused a pension for years of service because the relevant statutory provisions were subsequently amended or repealed, it is necessary to examine the person’s service record and determine the date on which the pension entitlement may have arisen. A refusal that does not contain such an assessment may be challenged before an administrative court.