A lawsuit is a hopeless affair

19.10.2013, 12:28 | Gazeta.RU
Dmitry Gudkov, Deputy of the State Duma, suggested in his Twitter filing lawsuits against the State, if the decision to transfer the Russians’ savings to the PFR in 2014 is taken.

He wrote: “By the way, I suggest that everyone take their savings from the Pension Fund and transfer them to non-governmental pension funds. This can be done until 2014. We go to courts afterwards!”

One-year suspension of receipt of new savings to non-governmental pension funds is planned for 2014; the savings part of the pension of the funds’ clients is transferred to the Pension Fund of Russia. This will economize the budget funds (approx. 240 billion roubles that were planned for transfer to the Pension Fund from the federal budget may be replaced by the Russians’ pension savings).

D.Gudkov explained to Gazeta.Ru that, if the client’s funds are transferred to non-governmental pension funds, the client will have at his disposal the agreement of transfer of the savings part of the pensions and will automatically be considered an investor and the owner of the funds. Therefore, the State, by transferring the money of the non-governmental pension funds’ clients to the PFR, to the distribution system, will breach constitutional rights and approximately a dozen of normative acts.

The experts are having difficulties evaluating the number of possible lawsuits. According to InvestFunds, non-governmental pension funds accumulate 887,6 billion roubles of pensions savings of the Russian citizens. 6,7 million persons are registered in the non-governmental pension insurance system.

The clients of non-governmental pension funds are even now “much preoccupied by the Government’s suggestion on withdrawal of the pensions savings in 2014”, Konstantin Ugriumov, head of the National Pension Funds Association, told Gazeta.Ru.

He says: “The non-governmental pension funds keep attending to calls and requests of citizens, who ask for explanations on the fate of their savings”.

In particular, the State may breach the Article 32 of the Law “On compulsory pension insurance”. According to that Article, citizens may place their money with non-governmental pension funds. Advocate Marina Krasnobaeva of “Yukov and Partners” explains that the law fixes the citizens’ right to choose the fund.

She says to Gazeta.Ru: “The Article directly stipulates that a citizen may deposit his money with either a governmental or non-governmental fund. This means that the citizen’s money deposited with a non-governmental pension fund cannot be withdrawn”.

Besides, the very NGPF also contains Articles 10, 12 and 14, which explain what a pension agreement is and that the citizen expresses his will to transfer his pension money, that the NGPFs are obliged to accept that money and how they are obliged to place those. These are the norms that allow the NGPFs to accept the funds and dispose of them. M.Krasnobaeva points out that the citizen decides whether or not he trusts the pension fund.

However, it is very likely that the law itself and the by-laws will be adopted in such a way that no actual breaches of the law are committed. At best, the NGPF clients, when they come to court, may hope that a number of provisions of the law be ruled unconstitutional.

Advocate Tatiana Starikova, Head of the Private Practice of the Law Firm "YUST", believes: “And that even if the Constitutional Court takes the position that the State violated their constitutional rights by deciding to transfer a part of the savings to the PFR. But the way to the Constitutional Court is long and complicated, and may easily take several years. The person will have to pass the courts of the first instance, of appeal, of cassation and of supervision. The courts of all instances, in all likelihood, will not take the claimant’s side”.

Igor Kostikov, the head of the Society of protection of rights of the financial services’ consumers, also believes that there are virtually no chances to win a lawsuit against the State.

He says: “The Government in this case (deciding to transfer the pension savings to the PFR – Gazeta.Ru) has the right of the legislative leadership and acts within the legal field. At best, the deputies will manage to postpone the adoption of it for some time. But it will pass through the State Duma, since the majority of the lower chamber supports the authorities”.

The Society is prepared for advising the citizens on the matters of filing separate lawsuits. Mikhail Anshakov told Gazeta.Ru that the Society of protection of consumers’ rights has the same intentions.

If the citizens file lawsuits, those have to be private. Filing the so-called class action suits (very common in the USA, for example), according to Tatiana Starikova, is not enabled by the Russian procedural legislation.