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 Chairwoman O.G. Sergeeva, judges T.S. Boiko, T.V. Voronovich, S.Y. Danilyuk, V.P. Isotko, L.G. Kozyreva, A.V. Maryskin, V.V. Podgrusha, A.G. Tikovenko, S.P. Chigrinov

Having heard the reporting judge V.V. Podgrusha, having analyzed the provisions of the Constitution of the Republic of Belarus (hereinafter – the Constitution), the Law of the Republic of Belarus “On Making Alterations and Addenda to the Law of the Republic of Belarus “On Pension Provision” and other legislative acts of the Republic of Belarus, the Constitutional Court of the Republic of Belarus found the following:

The Law of the Republic of Belarus “On Making Alterations and Addenda to the Law of the Republic of Belarus “On Pension Provision” (hereinafter – the Law) was adopted by the House of Representatives of the National Assembly of the Republic of Belarus on October 2, 2012, approved by the Council of the Republic of the National Assembly of the Republic of Belarus on October 10, 2012 and submitted for signing by the President of the Republic of Belarus.

The Law establishes the legal regulation of the procedure and conditions of increase of the old age pension in case of continue to work without state pension, issue of definition of pensionable earnings, including pension calculation to the persons, who worked outside the Republic of Belarus, and also pension payment by power of attorney. 

While reviewing the constitutionality of the Law the Constitutional Court proceeds from the following.

1. According to part one of Article 1 and part one of Article 2 of the Constitution the Republic of Belarus is a social state based on the rule of law in which the individual, his rights, freedoms and guarantees to secure them are the supreme value and goal of the society and the State.

According to part three of Article 21 of the Constitution the State shall guarantee the rights and freedoms of citizens of Belarus that are enshrined in the Constitution and laws, and specified by the State's international obligations.

The declaration in the Constitution that safeguarding the rights and freedoms of citizens of the Republic of Belarus shall be the supreme goal of the State means the necessity of appropriate implementation of the provisions of the Constitution, that enshrine the rights and freedoms of citizens and its guarantees.

One of the main social rights of citizens of the Republic of Belarus is the right enshrined in Article 47 of the Constitution. It is the right to social provision in old age, in case of sickness, disability, incapability to work, loss of breadwinner and other cases, prescribed by the law. 

The Republic of Belarus as a participant State of International Covenant on Economic, Social and Cultural Rights recognizes the right of everybody to social security (Article 9) and the right to an adequate standard of living, shall take appropriate measures ensuring the implementation of these rights, recognizing the importance in this regard of international cooperation, based on free consent (point 1 of Article 11). According to point 1 of Article 2 of the mentioned Covenant each State Party to the Covenant undertakes to take steps, to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognized in the mentioned Covenant by all appropriate means, including particularly the adoption of legislative measures. A similar approach was enshrined in the Charter of Social Rights and Guarantees of the Citizens of Independent States and the Charter of the Elderly, adopted by the Interparliamentary Assembly of States – members of the Commonwealth of Independent States.

From the mentioned constitutional provisions as well as provisions of the international treaties, namely from the social obligations of the Republic of Belarus to its citizens and legal requirements of individuals corresponding to them, follows the obligation of the State to establish procedure and conditions of pension security on the basis of available economic resources. This procedure and conditions would really and efficiently compensate the natural (age-related) incapability for work and impossibility of self-provision to relevant persons to the extent that guarantees their overall financial security at a level necessary to meet basic needs.

The constitutional right to social provision and social protection includes the right of citizens to provision at old age, including through the appointment of labor pensions to the entitled persons (old age pension, disability pension, long-service pension, etc.). Old age pension as a kind of labor pension is assigned in connection with previous labor activities of the person and it is one of the forms of social protection. These factors determine the content and nature of the obligation of the State regarding the citizens who acquired the right to receive the mentioned pension.

2. The Article 23¹ of the Law “On Pension Provision” is stated in new wording (according to point 2 of Article 1 of the considered Law), providing for an increase of the rate of pension on 6, 8, 10 and 12 percent of earnings from which the pension is calculated – for each full first, second, third and fourth years of work respectively, and on 14 percent of the earnings – for full fifth and every following year of work – in case of continue to work without receiving state pension after the right to the old age pension on a common basis. In case of continue to work without receiving pension for a period less than a year, the earnings, from which the pension is calculated, are increased on 1 percent for each full two months of partial year of work. This pension increase is added to the above mentioned one. 

The legislator provided that the term “work without receiving state pension that gives the right to increase the pension” means periods of work, entrepreneurial, creative, and other activities for which payment of compulsory insurance contributions was made to the Social Security Population Fund of the Ministry of Labor and Social Protection of the Republic of Belarus in accordance with the legislation on social insurance.

The Constitutional Court notes that the considered Law establishes increase of the rate of old age pension at the same way as by the Edict by the President of the Republic of Belarus of March 18, 2012 No. 136 “On Measures on Improvement of Pension Provision of Citizens” (hereinafter – Edict No. 136).

The considered Law makes appropriate alterations and addenda to the Law “On Pension Provision” that testifies to harmonization of the provisions of legislative acts that regulate the same relations and to implementation of the constitutional principle of the rule of law and the principle of legal certainty.

According to the Constitutional Court, the legislative approach that establishes the new mechanism of increase of the rate of old age pension takes into account the current demographic and economic situation in the Republic of Belarus. It allows individuals, who have the right to the state old age pension, to continue the active period of labor activities, to obtain remuneration in this period. Later, while receiving a pension, such persons are guaranteed the right to increase of pension rate and thus allow them to secure more dignified standard of living. This responses to the character of social State that is obliged to take all measures at its disposal to establish the domestic order necessary for the full exercise of the rights and freedoms of the citizens of the Republic of Belarus that are specified by the Constitution (part one of Article 59 of the Constitution).

3. Parts one, two and five of Article 57 of the Law “On Pension Provision” are stated in new wording (in accordance with point 5 of Article 1 of the considered Law). These alterations do not cover the provision that the periods of work as well as entrepreneurial, creative and other activities (during which the employee was subject to the state social insurance, and for him, as well as byhim, incases provided by the law on state social insurance, compulsory insurance contributions were paid) are included in the pensionable length of service. At the same time the legislator established that 40 percent of the republican average monthly wage in the corresponding months will be taken into account instead of missing earnings for the periods, stipulated in part two of Article 51 of the Law (from October 1, 2012).

In cases if pensionable length of service is less than one calendar month, earnings for pension are calculated by dividing earnings for calendar days of work experience by the number of days and multiplying the sum achieved by 30.

Thus, through the harmonization of the provisions of the Law “On Pension Provision” with the provisions of the Edict No. 136 a single approach is established concerning the periods of activities taken to determine the earnings to calculate pension (with payment of insurance contributions and without it).

4. The new wording of Article 61 of the Law “On Pension Provision” (point 7 of Article 1 of the Law) determines the order of pensions calculations for persons who worked outside the Republic of Belarus.

According to the Constitutional Court the mentioned changes are aimed at the implementation of the principle of social justice, because they allow to take into account, while calculating pensions for persons who worked outside the Republic of Belarus, not only the actual earnings in the Republic of Belarus, but also their income for work outside the Republic of Belarus. At the same time it is based on the real work activities of a citizen (including outside the Republic of Belarus), as well as on proper performance of duties on self-payment of compulsory insurance contributions by him. 

5. Excluding from the Law “On Pension Provision” of Articles 62 (point 8 of Article 1 of the Law), which regulate the procedure of pension calculation for citizens of the Republic of Belarus – migrants from other states who have not worked in the Republic of Belarus, is determined by the changes to Article 51 of the mentioned Law. Such legal regulation is based on the goals and directions of the reform of pension system, oriented to the need to pay of insurance contributions to the Social Security Population Fund of the Ministry of Labor and Social Protection. And by that it was secured as much as possible earnings account of a person who applied for a pension.

The Constitutional Court notes that the pension provision of the citizens of the Republic of Belarus – migrants from other states will be realized in accordance with Articles 1 and 5 of the mentioned Law, and on the basis of treaties on social provision of the Republic of Belarus with other states, and this treaties have priority over the norms of the Law.

6. New wording of Article 87 of the Law “On Pension Provision”, providing for the payment of pensions by power of attorney and procedure of its official registration, is caused by the necessity of realisation of the Decision of the Constitutional Court of November 6, 2008 “On Duration of Validity of Power of Attorney to Receive Money from Deposit of Individual, Opened in Bank to which Pension (Benefit) is Transferred to”.

7. Article 2 of the Law sets forth that pensions assigned from September 1, 1998 till October 1, 2012 are to be reviewed according to Article 23¹ of the Law “On Pension Provision” under stipulated conditions, prescribed in this Article. The Constitutional Court considers that the Article 2 conforms with the principle of retroactivity of the Law, enshrined in part six of Article 104 of the Constitution. The increase of old age pensions by reason of continue to work after achievement of general retirement age without pension is aimed at strengthening of pension provision of the citizens of the Republic of Belarus. It is based on the use of legislative mechanism, providing for more effective social protection of citizens who continued to work without receiving state pension.

The Constitutional Court considers that in general the Law is aimed at implementation of constitutional principles and rules, achievement of the aims of the social welfare State, among which is protection of the most vulnerable segments of the population, including pensioners. The Constitutional Court also proceeds from its legal position set out in its Decision of October 11, 2010 “On Conformity to the Constitution of the Republic of Belarus of the Law of the Republic of Belarus “On the Budget of the State Extrabudgetary Fund of Social Protection of the Population of the Ministry of Labor and Social Protection of the Republic of Belarus for 2011”. According to this legal position the pension provision is one of the main social guarantees as it affects the interests of the whole of the population, as non-working (pensionable persons) and working (future pensioners). Realisation of the right of citizens to social security becomes possible through constitutional safeguarding and consistent use of legal mechanisms.

The Law is adopted by the House of Representatives of the National Assembly of the Republic of Belarus within competence in accordance with point 2 of part one of Article 97 of the Constitution, approved by the Council of the Republic of the National Assembly of the Republic of Belarus in accordance with point 1 of part one of Article 98 of the Constitution.

In view of the foregoing the Constitutional Court concludes that the Law is in conformity with the Constitution as to the content of its rules, form of the act and procedure of its adoption.

Guided by parts one, seven of Article 116 of the Constitution of the Republic of Belarus, parts eight, thirteen, fourteen of Article 24 of the Code of the Republic of Belarus on Judicial System and Status of Judges, subpoint 1.1 of point 1 and point 3 of the Decree by the President of the Republic of Belarus of June 26, 2008 No. 14 “On Certain Measures to Improve the Activities of the Constitutional Court of the Republic of Belarus”, the Constitutional Court of the Republic of Belarus

1. To recognize the Law of the Republic of Belarus “On Making Alterations and Addenda to the Law of the Republic of Belarus “On Pension Provision” to be conforming to the Constitution of the Republic of Belarus.

2. The present decision shall come into force since the date of its adoption.

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

Presiding Officer –
Petr P. Miklashevich,