Acts of the Constitutional Court
DECISION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS
18 February 2009 № D-314/2009
18 February 2009 № D-314/2009
On the term of validity a power of attorney to return cash assets from a personal bank deposit where a pension is transferred
The Constitutional Court of the Republic of Belarus comprising the Presiding Officer - Chairman of the Constitutional Court of the Republic of Belarus P.P. Miklashevich, Deputy Chairman A.V. Maryskin, judges T.S. Boiko, S.Y. Danilyuk, V.P. Isotko, L.G. Kozyreva, V.V. Podgrusha, O.G. Sergeeva, A.G. Tikovenko, S.P. Chigrinov, V.Z. Shuklin in pursuance of part eight of Article 22 of the Code of the Republic of Belarus on Judicial System and Status of Judges considered part three of point 98 of the Instructions on Notarial Actions Procedure approved by the Resolution of the Ministry of Justice of the Republic of Belarus of October 23, 2006 No 63 (as in force in the Resolution of November 14, 2008 No 67) (hereinafter – the Instructions).
In part three of point 98 of the Instructions it has been established that a power of attorney to receive a pension shall not be granted for a term exceeding one year.
According to part four of Article 83 of the Law of the Republic of Belarus “On Pension Security” of April 17, 1992 pensions shall be paid at the option of pensioners through the post offices, banks, organisations delivering pensions.
By virtue of part one of Article 87 of the named Law the pension may be paid under a power of attorney granted for a term not above one year.
The issues of pension payment through the banks under a power of attorney, including its limiting term of validity were considered by the Constitutional Court.
Therefore on 6 November 2008 the Constitutional Court of the Republic of Belarus having considered the petition of the Joint Stock Company “Belarusbank Savings Bank” adopted the decision “On the term of validity of a power of attorney to return cash assets from a personal bank deposit where a pension is transferred”.
In the mentioned decision the Constitutional Court formulated its legal position which point was that as the relations regarding the term of validity of a power of attorney to return a personal bank deposit where a pension is transferred, are regulated by civil legislation rather than pension one the setting of the limiting term of a power of attorney in pension legislation and by-laws should conform to civil and bank legislative requirements. The Constitutional Court found as necessary to stipulate in Article 87 of the Law “On Pension Security” the provision providing that the term of a power of attorney specified therein shall not cover the instances of returning the personal bank deposits where the pension is transferred and to propose to the Council of Ministers of the Republic of Belarus to consider the issue of pension legislation norms improvement with a view to remedy non-compliance of legal regulation.
Confirming its legal position the Constitutional Court believes that part three of point 98 of the Instructions, providing for one year term of validity of a power of attorney to draw a pension may not cover the instances of granting the power of attorney to return a personal bank deposit, where a pension is transferred.
In view of the foregoing pursuant to Article 40, part one of Article 116 of the Constitution of the Republic of Belarus, Articles 22 and 24 of the Code on Judicial System and Status of Judges of the Republic of Belarus the Constitutional Court
RULED:
1. With a view to protect the rights and legitimate interests of the citizens to clarify the norm of part three of point 98 of the Instructions on Notarial Actions Procedure approved by the Resolution of the Ministry of Justice of the Republic of Belarus of October 23, 2006 No 63 (as in force in the Resolution No. 67 of November 14, 2008) as related to setting the term of validity of a power of attorney to return cash assets from a personal bank deposit, where a pension is transferred.
2. To propose to the Ministry of Justice of the Republic of Belarus in accordance with the existing procedure to make respective alterations and addenda to point 98 of the Instructions pursuant to civil and banking legislation and the present decision.
3. The present Decision shall come into legal force from the date of its adoption.
4. To publish the present Decision in accordance with legislation.
Presiding Officer-
Chairman of the Constitutional Court
of the Republic of Belarus
P.P.Miklashevich