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, judges T.S. Boiko, T.V. Voronovich, S.E. Danilyuk, V.P. Isotko, L.G. Kozyreva, V.V. Podgrusha, L.M. Ryabtsev, O.G. Sergeeva, A.G. Tikovenko, S.P. Chigrinov,

on the basis of part eight of Article 22 the Code of the Republic of Belarus on Judicial System and Status of Judges

in the exercise of the right to submit proposals on the need to make alterations and (or) addenda to acts of legislation to the President of the Republic of Belarus, houses of the National Assembly of the Republic of Belarus, the Council of Ministers of the Republic of Belarus, other state bodies within their competence

with participation of:

the Ministry of Labour and Social Protection of the Republic of Belarus represented by V.V. Koroleva, Deputy Minister of Labour and Social Protection of the Republic of Belarus;

the Ministry of Justice of the Republic of Belarus represented by A.S. Shpak, Head of the Main Department of Law-Making in the Field of State Construction of the Ministry of Justice of the Republic of Belarus,

in court session considered the appeal of Ms S.V. Kroshchuk who questioned the failure to grant parental leave to care for a child up to three years old (hereinafter – parental leave) to the father, other relative of the child in case of his mother’s enterprising as a self-employed entrepreneur.

It is noted in the appeal that the failure to grant a mentioned leave to the father of the child is based on the explanation of the Ministry of Labour and Social Protection of the Republic of Belarus. It follows that as far as the applicant (mother of the child) is a self-employed entrepreneur and she is not entitled to parental leave by virtue of the labour legislation, such leave may not be granted to the father either.

Having analysed the provisions of the Constitution of the Republic of Belarus (hereinafter – the Constitution), the Labour Code of the Republic of Belarus (hereinafter – the LC) and other legislative acts of the Republic of Belarus, opinions of state bodies and other organisations, the Constitutional Court of the Republic of Belarus found the following.

1. In accordance with the Constitution the Republic of Belarus is declared to be a social state based on the rule of law (part one of Article 1) where the individual, his rights, freedoms and guarantees to secure them are the supreme value and goal of the society and the State; the State shall assume responsibility before the citizen to create the conditions for free and dignified development of his personality (Article 2). The provision set out in Article 21 of the Constitution confers to the character of a social state. It deals with everyone’s right to a decent standard of living, including appropriate food, clothing, housing and a continuous improvement of conditions necessary to attain this. The provisions of Article 47 of the Constitution are also aimed to attain the said standard. This article guarantees to citizens of the Republic of Belarus the right to social security in cases stipulated by law.

The principle of everyone’s legal equality before the law, stipulated in Article 22 of the Constitution, as well as the principle of proportionality of restrictions imposed on personal rights and freedoms, which results from the provisions of part one of Article 23 of the Constitution, meet the requirements of the state based on the rule of law.

The Constitution provides for state protection of the institutes of the family, motherhood, fatherhood and childhood; parents or persons acting as parents have the right and are obliged to raise their children and to take care of their health, development and education (part one and three of Article 32).

Article 59 of the Constitution establishes that the State shall take all measures at its disposal to establish the domestic and international order necessary for the full exercise of the rights and freedoms of citizens of the Republic of Belarus that are specified by the Constitution.

Rules, similar to the mentioned constitutional provisions, are enclosed in the international instruments on human rights that are binding on the Republic of Belarus. These instruments include the Universal Declaration of Human Rights (articles 2, 7, 22, 25, 29), the International Covenant on Civil and Political Rights (article 23, 24, 26), the International Covenant on Economic, Social and Cultural Rights (articles 4, 9, 10), the UN Convention on the Rights of the Child. In particular, the preamble of the Convention recognises that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community.

2. The implementation of provisions on state assistance and protection of the family, motherhood, fatherhood and childhood, on guaranteeing the rights of citizens enshrined in the Constitution, laws and international obligations of the State, implies the adoption of a package of measures providing the specific categories of citizens with the conditions and mechanisms of the exercise of their rights, including proper legal regulation of corresponding relations.

Thus, according to part one of article 185 of the LC the employer shall grant parental leave to working women, regardless of their length of service, at their request, after the interruption in work due to childbirth. This leave is granted until the child reaches the age of three years. During this period parental leave allowance shall be paid monthly by the state. Its size and terms of payment shall be provided by law.

Parental leave falls into the category of social leaves (point 2 of part two of article 150 of the LC) and, as it follows from the mentioned provision of part one of article 185 of the LC, is granted by the employer to a working woman at her request.

The reference to the employer in part one of article 185 of the LC may suggest that social leave is granted to a person, having labour relations with the employer on the basis of a concluded labour contract, which follows directly from the definitions of the terms set out in article 1 of the LC.

Under part three of article 185 of the LC parental leave shall be granted instead of the child's mother to his working father or other relatives, actually caring for the child, and if there is an appointment of guardianship – to the guardian of the child. Thereat these persons retain the right to receive a monthly state allowance. A similar regulation is contained in article 271 of the LC that sets guarantees for fathers, other relatives of the child, guardians (custodians).

At the same time, in contrast to the rule of article 185 of the LC, granting parental leave to the mother of the child at her request, article 271 of the LC provides such leave to the child's father or other relatives at the discretion of the family. According to the latter granting of social parental leave to the person, caring actually for the child, does not depend either on the length of service or period of service for this employer. Moreover, granting of social parental leave to an authorised person when this person applies for it is not a right (as it was prior to January 26, 2008), but an obligation of the employer.

Granting of parental leave to the child's mother is subjected by the legislator to labour relations. The exercise of this right by the father or other relatives of the child entitled to parental leave is subjected similarly to the mother’s case, because the legislator uses the term ”working” in part one of article 271 of the LC and refers to the procedure and conditions of granting parental leave as provided in article 185 of the LC for working women-mothers.

3. Working women who have been entitled to parental leave, as well as working fathers, other working relatives or guardians of the child, actually caring for the child and enjoying the mentioned leave, are paid state allowance. Its size and terms of payment are provided by the Law of the Republic of Belarus ”On State Allowances for Families with Children” (hereinafter – the Law on State Allowances). The procedure for granting and paying state allowances to families with children is defined by the Regulation on granting and paying state allowances to families with children, approved by the resolution of the Council of Ministers of the Republic of Belarus of March 31, 2008 № 490 (hereinafter – the Regulation).

Under part one of point 27 of the Regulation parental leave allowance to care for a child up to three years old (hereinafter – parental leave allowance) shall be granted to working members of the family or other working relatives of the child in case when his mother goes back to work (service), study (when getting vocational, special secondary and higher education in the full-time form of education) and terminates to receive parental leave allowance as well as when the said persons formally request for parental leave.

The Constitutional Court pays attention to the fact that the choice of the person, who will actually care for the child and will therefore enjoy the right to social parental leave and state allowance, is determined in accordance with article 271 of the LC at the discretion of the family in the interests thereof with a view to care for children, create proper conditions for their development and education and thereby perform the constitutional duties assigned to the family.

4. The Constitution provides the citizens of the Republic of Belarus with the right to work as the worthiest means of an individual's self-assertion, that is, the right to choose profession, type of occupation and work in accordance with his vocation, capabilities, education and professional training, and with regard to social needs, and the right to healthy and safe working conditions (part one of Article 41).

A citizen may exercise its constitutional right to work through either free utilisation of abilities and property for entrepreneurial activities (part four of Article 13 of the Constitution) or, for example, being employed (Article 42 of the Constitution).

According to part two of point 1 of article 1 of the Civil Code of the Republic of Belarus, entrepreneurship is independent activity of legal entities and natural persons, carried out in public circulation on behalf of their own, at their own risk and under their own financial liability. This activity is aimed to systematically gain profit from use of property, sales of goods produced, processed or purchased by such persons for sale, as well as from work or services, if they are intended for sale to other persons and are not used for own consumption.

By virtue of the provisions of point 1 of article 22 of the mentioned Code, a citizen is entitled to engage oneself in entrepreneurial activities without forming a legal entity from the date of state registration as a self-employed entrepreneur.

Enterprising as a self-employed entrepreneur at one’s own risk and under own financial liability excludes the possibility (and necessity) to make a contract on carrying out this activity (only state registration as a self-employed entrepreneur and special permits (licenses) for particular activities are required).

At the same time, if the right to work is implemented through employment, the conditions of its implementation are established by the labour contract as an agreement between the employee and the employer (employers). According to it the employee agrees to perform certain work on one or more professions, occupations or positions with appropriate qualifications in staff list and to comply with internal labour schedule. At its turn, the employer agrees to provide the employee with work due to the labour contract, with working conditions prescribed in labour laws, local normative legal acts and the parties' agreement, to timely pay the employee’s wages (paragraph four of part one of article 1 of the LC).

The analysis of the provisions of articles 3 and 4 of the LC, defining the scope of the LC and terms of relations regulated thereby, allows to conclude that the LC rules do not cover relations connected with labour functions of a self-employed entrepreneur (only relations, that emerge between the self-employed entrepreneur as the employer and employees and are mediated by the labour contract, fall under the LC rules).

Enterprising as a self-employed entrepreneur is a way to implement the citizen’s constitutional right, guaranteed by the state, so it should not entail any negative consequences for the family of the self-employed entrepreneur, which, at its own discretion, appoints a family member or another relative of the child who will actually care for the child up to three years old and thus, will become entitled to social parental and to state allowance.

5. According to Article 22 of the Constitution all shall be equal before the law and have the right to equal protection of their rights and legitimate interests without any discrimination.

Article 23 of the Constitution permits the restriction of personal rights and freedoms only in the instances specified by law, in the interests of national security, public order, protection of the morals and health of the population as well as rights and freedoms of other persons.

The implementation of the abovementioned constitutional provisions stipulates the necessity to comply with the principle of proportionality of restrictions of personal rights and freedoms with a view to prevent the essence of the restricted right from distortion by the scope of restrictions and to ensure their compliance with the values and goals protected by the Constitution.

The Ministry of Labour and Social Protection proceeds from the fact that women who are self-employed entrepreneurs do not belong to the category of working women, who are covered by article 185 of the LC. Therefore, they are not entitled to social parental leave. The Ministry draws a conclusion that these mothers may not transfer their right to the working father, other relatives or guardian of the child, actually caring for him. According to the Ministry, the working father, other relatives or guardian of the child, actually caring for him shall not be entitled either to parental leave nor parental leave allowance. Such understanding and application of articles 185 and 271 of the LC is also based on the rules of the Law on State Allowances and the Regulation, providing state allowances to the father or another relative of the child, actually caring for him, in case when his mother goes back to work (service) earlier (before the termination of parental leave), study and terminates to receive parental leave allowance and when the said persons formally request for parental leave.

The right of the father, other relative of the child, actually caring for the child up to three years old, to be granted social parental leave is understood to be derived from the right of the child's mother to such social leave. The Constitutional Court believes that this approach to understanding of the right to social parental leave, used in law-enforcement practice, is unlawful. Certain interdependent characteristics of the leaves (in particular, inadmissibility of simultaneous social parental leaves granted to the child’s mother and father) do not depend on the fact that the father's right to this leave may be exercised in case when the mother has such right and refuses to exercise it. The right of the working father, other relative of the child, actually caring for him, to social parental leave is a separate right. Its exercise is guaranteed by the provisions of the Constitution and the Labour Code.

Granting of the mentioned leave to the father, other relative of the child, actually caring for him, which might be subjected to the status of his mother (if she performs the labour contract, then the leave shall be granted to the father, other relative of the child; but if she works as a self-employed entrepreneur – the leave shall not be granted), shows that there is some kind of discrimination against the working father, other relative of the child which is prohibited by Article 22 of the Constitution, article 14 of the LC and international legal acts binding on the Republic of Belarus.

It should also be born in mind that in case of granting parental leave to the working father, other relative of the child, actually caring for him, these persons retain their place of work (position), parental leave is included in their total years of service as well as in the length of occupational work, professional job, office in accordance with legislation. While taking parental leave these persons are entitled to part-time work and to state allowance as well. The failure to grant parental leave to the father, other relative of the child, actually caring for him, on the grounds that his mother is a self-employed entrepreneur, turns to be a known possibility to treat these persons unfairly in comparison with other people employed, exercising their right to parental leave on the basis of article 271 of the LC.

In order to ensure effective mechanisms for state protection and assistance to the family, motherhood, fatherhood and childhood the Constitution and acts of legislation based on it both form the basis for creating conditions to certain categories of individuals. These conditions ensure a decent life and performance of social functions related, inter alia, to motherhood and fatherhood. Fulfilling its constitutional duty to protect these institutions the State shall ensure granting of social parental leave as well as payment of state allowance in connection with birth of children and their raising.

In its turn, the legislator shall provide for legal regulation, which takes into account the objectives of social policy including demographic one at the specific historical stage of the state development. It shall, above all, create favourable social conditions to the family, mothers and fathers, caring for children, with the best possible view of the family in order for they may perform an important function of raising their children of tender years.

The Constitutional Court finds that the failure to grant parental leave to the working father, other relative of the child on the grounds that his mother is a self-employed entrepreneur, is not based on constitutional principles and rules that attribute the Republic of Belarus to a social state based on the rule of law. Such failure follows from the gap in the regulation of relations in this field and in practice leads to violation of the rights and legitimate interests of citizens.

According to the provisions of articles 1, 2, 13, 21-23, 32 of the Constitution this gap shall be filled through clarifying legal provisions which would definitely imply that the working father, other relative of the child, actually caring for him up to three years old, should be entitled to social parental leave and to state allowance in case when the child’s mother is a self-employed entrepreneur.

In view of the foregoing and being guided by part one of Article 116 of the Constitution, articles 22 and 24 of the Code of the Republic of Belarus on Judicial System and Status of Judges, the Constitutional Court of the Republic of Belarus

RULED:

1. In order to comply with the constitutional principles of legal equality, proportionality of restrictions of the rights and freedoms of citizens, rules guaranteeing the right to work and social security, non-discrimination in employment and related relations, as well as with a view to ensure social justice and effective mechanisms to protect the family, motherhood, fatherhood and childhood, to recognise the need to fill the gap in legal regulation of relations on granting parental leave to care for the child up to three years old by legislating the right of the working father, other relatives of the child, actually caring for him, to be granted the specified parental leave in case when the child’s mother is a self-employed entrepreneur.

2. Propose to the Council of Ministers of the Republic of Belarus to prepare a draft law introducing the relevant alterations and addenda to the Labour Code of the Republic of Belarus, the Law of the Republic of Belarus “On State Allowances for Families with Children” and submit it under the established procedure to the House of Representatives of the National Assembly of the Republic of Belarus.

3. The present decision shall come into force from the date of its adoption.

4. To publish the present decision in accordance with legislation.

Presiding Officer –
P.P. Miklashevich,
Chairman of the Constitutional Court
Republic of Belarus