The Constitutional Court of the Republic of Belarus comprising the Presiding Officer – Chairman of the Constitutional Court 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, L.M. Riabtsev, A.G. Tikovenko, S.P. Chigrinov

on the basis of part one of Article 116 of the Constitution of the Republic of Belarus, 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”

in open court session in the exercise of obligatory preliminary review considered the constitutionality of the Law of the Republic of Belarus “On Making Alterations and Addenda to Certain Laws of the Republic of Belarus”.

Having heard the reporting judge O.G. Sergeeva, having analysed 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 Certain Laws of the Republic of Belarus” 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 Certain Laws of the Republic of Belarus” (hereinafter – the Law) was adopted by the House of Representatives of the National Assembly of the Republic of Belarus on April 17, 2013, approved by the Council of the Republic of the National Assembly of the Republic of Belarus on April 18, 2013 and submitted for signing by the President of the Republic of Belarus.

The Law makes alterations and addenda to the Law of the Republic of Belarus “On State Service in the Republic of Belarus” (hereinafter – the Law on State Service) and alterations to the Law of the Republic of Belarus “On Employment of the Population of the Republic of Belarus” (hereinafter – the Law on Employment). They specify the legal regulation of offset of a term of state service, guarantees of the state employee’s rights in connection with liquidation of the state body, reduction in number of workers or staff (redundance), as well as payment of scholarships to individuals directed to professional training, retraining and advanced training, and unemployment benefits (Articles 1 and 2). The Article 3 of the Law stipulates the procedure of payment of dismissal wage to state employees, dismissed in connection with liquidation of the state body, reduction in number of workers or staff, as well as payment of the mentioned scholarship and unemployment benefit from the date of entry into force of this Law. Article 4 of the Law specifies the term of its entry into force.

1. With a view to harmonise certain provisions of the Law on State Service with the provisions of the Edict of the President of the Republic of Belarus of May 21, 2012 No. 237 “On Certain Issues of the State Inspectorate on Wildlife Protection under the President of the Republic of Belarus” (hereinafter – Edict No. 237) the wording of points 1.1.1, 1.1.2, 1.2.1 and 1.2.2 of point 1 of Article 44 of the Law, that provide for legal regulation of relations connected with setoff of state service record, is specified.

The mentioned rules of point 1 of Article 44 of the Law on State Service are supplemented with the provisions according to which the period (no more than 10 years) of previous work that is not connected with state service or military service (service) is included in state service record of persons appointed on public positions in central office of the State inspectorate on wildlife protection under the President of the Republic of Belarus, and a period of no more than 5 years for persons appointed on state positions of regional or inter-district inspections on wildlife protection of this State inspectorate (point 2 of Article 1 of the Law).

Addenda to the mentioned rules of Article 44 of the Law on State Service are based on the right of citizens of the Republic of Belarus to equal access to any office in state bodies in accordance with their abilities and professional training, which is stipulated in Article 39 of the Constitution.

Harmonisation of certain rules of the Law on State Service with the rules of the Edict No. 237 responds to the principle of legal certainty according to which the legal regulation of public relations ought to be precise and consistent, clear and unambiguous. This principle is based on the principle of supremacy of law which is specified in part one of Article 7 of the Constitution.

2. Alterations, made by Articles 1 and 2 of the Law, specify (in particular, by exclusion of certain provisions) the rules of Articles 47 and 51 of the Law on State Service and Articles 22, 23 and 24 of the Law on Employment in part of dismissal wage to state employees, dismissed in connection with liquidation of the state body, reduction in number of workers or staff, as well as scholarships paid to unemployed, assigned by a state employment service to professional training, retraining or advanced training (hereinafter – retraining), and unemployment benefits. These provisions concern the mentioned above unemployed, former state employees and citizens that were dismissed from military service, internal affairs bodies, Investigation Committee of the Republic of Belarus, bodies of financial investigation of the State Control Committee of the Republic of Belarus, bodies and units on emergency situations in connection with liquidation of the state body, reduction in number of workers or staff, for health or other legitimate reasons without the right to a pension (hereinafter – servicemen (servants)).

It is specified that dismissal wage to state employees dismissed in connection with liquidation of the state body, reduction in number of workers or staff is paid according to labor legislation; unemployment benefit and scholarship are paid at registration of such state employees as unemployed in accordance with the Law on Employment (subpoints 1.1, 1.2 and 1.3 of point 1 of Article 47, stated by the Law in new wording). In addition, the rules of the Law on Employment specifying rates of unemployment benefit and scholarships for servicemen (servants) are excluded (points 2 and 3 of Article 2 of the Law).

Thus the Law establishes approaches unified with other categories of workers by excluding the provisions on higher rates of payments to the mentioned categories of state employees and servicemen (servants) at payment of dismissal wage or assignment of scholarships in case of assigning of an unemployed to professional training, retraining or advanced training by a state employment service.

While assessing the constitutionality of these provisions of the Law, the Constitutional Court notes that according to Article 41 of the Constitution citizens of the Republic of Belarus shall be guaranteed the right to work; if a person is unemployed for reasons which are beyond his control, he shall be guaranteed training in new specialisations and upgrading of his qualifications with regard to social needs, and to an unemployment benefit in accordance with the law (parts one and two).

The Constitutional Court considers that the rules of Articles 1 and 2 of the Law are consistent with the constitutional provisions on guarantees of the right to work, the responsibility of the State to undertake the necessary social measures supporting unemployed persons.

Herewith the Constitutional Court considers that the legislator (on the basis of point 2 of part one of Article 97 and point 1 of part one of Article 98 of the Constitution), taking into account the financial possibilities of the State, has the right to change legal regulation in part of establishing differences, preferences or their exclusion. Moreover, the Constitutional Court draws attention that international human rights instruments establish the obligation of every state to take steps individually to the maximum of its available resources with a view to achieving progressively the full realisation of the recognised rights by all appropriate means, including particularly the adoption of legislative measures (Article 2 of International Covenant on Economic, Social and Cultural Rights).

3. Article 3 of the Law regulates the issues of payment of dismissal wages, scholarships and unemployment benefits in connection with the entry into force of the Law. This regulation of public relations responds to the principle of legal certainty and promotes clarity, precision and consistency of legal norms and unambiguity of their implementation.

At the same time the Constitutional Court draws attention to the following. According to part one of Article 3 of the Law the remaining part of dismissal wage to state employees, dismissed in connection with liquidation of the state body, reduction in number of workers or staff, in the amount exceeding the amount of the dismissal wage, specified by labor legislation, not paid before the entry into force of the Law, is not to be paid.

The Article 48 of the Labour Code of the Republic of Belarus specifies that employees at the termination of the employment contract on the mentioned above reasons are paid dismissal wage in the amount no less than three times the average monthly wage; the amount of dismissal wage can be increased on the terms and conditions, stipulated by a collective agreement.

According to subpoint 1.3 of point 1 of Article 51 of the Law on State Service the amount of a dismissal wage depends on the record of state service. It can be from three average monthly wages (with a record up to 5 years) to four – six average monthly wages (with a bigger one).

At the same time the Law on State Service specifies that immediately at the dismissal the mentioned dismissal wage is paid in the amount not exceeding three monthly wages, and the remaining part – after three months and only to persons applied for employment assistance to a state employment service, and if they can not be employed.

Part two of Article 3 of the Law specifies that scholarships and unemployment benefits to unemployed from amongst state employees and servicemen (servants), assigned before the entry into force of the Law, are paid in the amount, specified by the appropriate articles of the Law on Employment since the day of entry into force of the Law.

So, Article 3 of the Law excludes the right of a person, who received at the dismissal a dismissal wage in the amount of three average monthly wages, to the remaining part of the dismissal wage in the presence of conditions, specified in the Law on State Service. It is also proposed to implement the right to scholarships and unemployment benefits, assigned before the entry into force of the Law, by payment of such benefits and scholarships in the amount, specified in the Law on Employment, taking into account the alterations made by the Law.

In the Decision of December 18, 2008 the Constitutional Court noted that personal rights and legal obligations of legal relations participants, emerged due to legal rules, are not always implemented (executed) at all at ones. The constitutional principles of guarantees of human rights and mutual responsibility of the State and a citizen cause the requirement of full implementation of personal rights and legal responsibilities. This raises the necessity of regulation on a certain period of time of relations, emerged before a normative legal act loses its legal force.

The Constitutional Court reaffirms the conclusion stated in that decision that at the termination of a right, the implementation of which has already begun, the legislator ought to prescribe the possibility and procedure for full implementation of this personal right. It draws attention on the necessity to ensure state guaranteed rights while changing legal regulation of such rights.

According to the Constitutional Court the provisions of the Constitution, guaranteeing the rights of citizens of Belarus, specified in the Constitution and laws, which are a basis for implementation of human and citizen’s rights in the Republic of Belarus as a social, based on the rule of law State (part one of Article 1 of the Constitution), suppose predictability of legislation policy. The Constitutional Court in the Message “On Constitutional Legality in the Republic of Belarus in 2012” stated that reasonable stability and predictability of legal regulation are important guarantees of provision of rights, freedoms and legitimate interests of individuals. In this connection the change of previously established rules ought to be implemented in such a way, that confidence of individuals to the law and actions of the State is preserved, participants of appropriate relations can be sure in constancy of their officially recognised legal status and acquired rights in reasonable limits, as well as respect and implementation of these rights, which are based on existing legislation.

The procedure of adoption of the Law is in accordance with the Constitution, according to which draft laws on fundamental concepts and principles of exercise of the rights, freedoms and duties of citizens, on principles regulating labour and employment are considered by the House of Representatives of the National Assembly of the Republic of Belarus (point 2 of part one of Article 97) and submitted to the Council of the Republic of the National Assembly of the Republic of Belarus for approval or refusal (point 1 of part one of Article 98). The Houses of the National Assembly of the Republic of Belarus while adopting the Law acted in the frames of their competence, specified in Articles 97 – 100 of the Constitution.

The Constitutional Court considers 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

RULED:

 1. To recognise the Law of the Republic of Belarus “On Making Alterations and Addenda to Certain Laws of the Republic of Belarus” 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 – P.P. Miklashevich,
Chairman of the Constitutional Court of the Republic of Belarus