On September 27, 2011 the Constitutional Court of the Republic of Belarus took a decision “On the legislative definition of the term “able-bodied person” as used in point “e” of part two of article 51 of the Law of the Republic of Belarus “On Pension Provision” (a reporting judge – Valentina V. Podgrusha). The Court was requested by the Ministry of Justice of the Republic of Belarus on the possibility of including a period of caring for a disabled (group I), senile who has reached the age of 80, in a record of work if cared by a person with limited ability to work.

Since the Law on pension security does not reveal the meaning of the term “able-bodied person”, it shall be determined in practice with other rules of the Law, in particular those contained in part three of article 35 of the Law and determining the disabled family members who are entitled to a loss-of-breadwinner pension. On this basis it is stated that the able-bodied persons, as used in point “e” of part two of article 51 of the Law, should qualify as persons of working age (men – from 16 to 60 years, women – from 16 to 55 years) who are not disabled.

Having analysed the provisions of the Constitution of the Republic of Belarus, the Law on pension security and other legislative acts of the Republic of Belarus, the Constitutional Court noted that while safeguarding the right to old age pension and providing its exercise upon reaching of a generally established pension age, the legislator does not relate the citizens’ entitlement to old age pension with their ability or disability to work.

The establishment of disability does not always mean that a person loses his ability to work. As it is shown in several provisions of the laws “On the Prevention of Disability and Rehabilitation of the Disabled”, “On the Employment of the Population of the Republic of Belarus” and the Labour Code of the Republic of Belarus which are aimed at work rehabilitation of the disabled and regulation of their work distinctions.

The Constitutional Court concluded that the selective approach in including a period of the said care in a record of work subject to a person’s ability to work (when this period is not included in a record of work either upon reaching of a generally established pension age or if the person is a disabled with limited ability to work) is in conflict with legal equality principles and prohibition of discrimination on the grounds of age or disability and social justice.

Thus, the Constitutional Court found the existence of a legal gap in the rule of point “e” of part two of article 51 of the Law on pension security and recognised the need to eliminate it by the definition of the term “able-bodied person” as used in the said point.

The Council of Ministers of the Republic of Belarus is submitted a proposal to prepare a relevant draft law.