29 March 2006 № J-194/2006
The Constitutional Court of the Republic of Belarus, comprising of the Presiding Officer — Chairman of the Constitutional Court G.A. Vasilevich, Deputy Chairman A.V. Maryskin, judges T.S. Boiko, K.I. Kenik, V.V. Podgrusha, A.A. Sarkisova, A.G. Tikovenko, R.I. Filipchik, V.Z. Shuklin
with participation of representatives:
of the House of Representatives of the National Assembly of the Republic of Belarus — A.V. Krasutsky, Deputy Head of Standing Commission on foreign affairs and relations with CIS; R.L. Korop, member of Standing Commission on health protection, physical training, family and youth affairs; V.I. Shokov, member of Standing Commission on labour, social protection, veteran and invalid affairs;
of the Council of Ministers of the Republic of Belarus — A.P. Morova, Minister of Labour and Social Protection of the Republic of Belarus;
has examined in open Court session the case "On the conformity between the Constitution, other laws of the Republic of Belarus, international treaties of the Republic of Belarus and Resolution of the Council of Ministers of the Republic of Belarus of 18 December 1992 No. 758 "On conditions of awarding pensions for certain categories of workers of aviation of air test crew" in part of pension security of air stewards/stewardesses of civil aviation".
The Court session was attended by: V.N. Vyshkevich — Deputy Chairman of the Supreme Court of the Republic of Belarus; L.G. Kozyreva — Deputy Chairman of the Supreme Economic Court of the Republic of Belarus; A.V. Ivanovsky — Deputy Procurator-General of the Republic of Belarus; O.E. Kravtsov — Deputy Minister of Justice of the Republic of Belarus.
The proceedings were brought by the Constitutional Court of the Republic of Belarus of 3 January 2006 as a result of the proposal of the House of Representatives of the National Assembly of the Republic of Belarus on the grounds of Article 116 of the Constitution of the Republic of Belarus, Articles 5 and 6 of the Law "On the Constitutional Court of the Republic of Belarus" and Article 43 of the Rules of Procedure of the Constitutional Court of the Republic of Belarus.
The subject to verification was Resolution of the Council of Ministers of the Republic of Belarus of 18 December 1992 No. 758 "On conditions of awarding pensions for certain categories of workers of aviation of air test crew" with further alterations and addenda (Collection of Resolutions (CP) of the Republic of Belarus, 1992, No. 35, art. 644; 1993, No. 28, art. 545; 1994, No. 10, art. 165; Collection of Decrees, Edicts of the President and Resolutions of the Government of the Republic of Belarus, 1996, No. 36, art. 984; National register of legal acts of the Republic of Belarus, 1999, No. 44, 5/874; 2002, No. 82, 5/10802; 2003, No. 94, 5/12923; 2004, No. 52, 5/13954 (hereinafter is also referred to as Resolution No. 758).
The House of Representatives of the National Assembly of the Republic of Belarus has proposed the Constitutional Court to produce the judgment on the conformity between the Constitution of the Republic of Belarus and Laws of the Republic of Belarus "On pension security", "On procedure of enforcement of the Law of the Republic of Belarus "On pension security" and Resolution No. 758 in part of regulation of the issue on pension security of air stewards/stewardesses of civil aviation.
The proposal specifies that with respect to the air stewards/stewardesses there are the conditions for awarding long service pensions that are differ from those conditions for awarding pensions as regards other categories of workers of aviation, including flight personnel (air crew) and air test crew. Air Code of the Republic of Belarus of 1999 shall refer air stewards/stewardesses to the members of the crew of the aircraft which shall consist of flight crew (captain, other persons of flight staff and cabin crew (flight (board) operators, stewards/stewardesses). Resolution No. 758 stipulates the same procedure and terms for awarding pensions for flight operators as for the members of the flight crew, at the same time, there are other procedure and terms for awarding pension as for the second member of cabin crew - steward/stewardess.
Due to that the House of Representatives deems that Resolution No. 758 with alteration made by Resolution of the Council of Ministers of the Republic of Belarus of 15 August 2003 No. 1074 (hereinafter is also referred to as Resolution No. 1074) is not in line with the norms of the Law of the Republic of Belarus "On procedure of enforcement of the Law of the Republic of Belarus "On pension security". Resolution No. 758, in the opinion of the House of Representatives, shall create unequal conditions for pension security of members of the crews of aircrafts and that is not in line with Article 22 of the Constitution of the Republic of Belarus enshrining the equality of all before the law.
Having heard the judge-speaker, Mrs. K.I. Kenik, representatives as litigants, specialits, witness, having analyzed the provisions of the Constitution of the Republic of Belarus, international treaties of the Republic of Belarus, Laws of the Republic of Belarus "On pension security" and "On procedure of enforcement of the Law of the Republic of Belarus "On pension security", other normative legal acts, legislation of the USSR, practice of their application, having evaluated positions of the state bodies and scientists, having studied other materials, the Constitutional Court found the following.
Under Article 47 of the Constitution citizens of the Republic of Belarus shall be guaranteed the right to social security in old age, in the event of illness, disability, loss of fitness for work and loss of a bread-winner and in other instances specified in law. In accordance with Article 4 of the Law of the Republic of Belarus of 17 April 1992 "On pension security" (hereinafter is also referred to as Law "On pension security") under the given Law the labour pensions shall be awarded: age pension, disability pension, survivor's pension, long service pension, pension for special service before the republic. Article 46 of the Law "On pension security" stipulates that the long service pension shall be fixed with respect to certain categories of citizens (Article 47-492) who are engaged in the works that may cause disablement or loss of suitableness before the pension age. The Law "On pension security" shall refer, in particular, certain categories of the workers of aviation and air test crew to the categories of citizens engaged in works in question.
Article 47 of the Law "On pension security" stipulates four categories of workers of aviation and air test crew who shall have the right to long service pension: 1) workers of flight and air test crew; 2) workers who carry out air traffic operation and who have the certificate of an air traffic control officer; 3) engineering staff of aviation; 4) air stewards/stewardesses. In addition, for each of the category there are stipulated different grounds, conditions and procedure for awarding long service pension and calculation of its scale. In particular, air stewards/stewardesses shall have the right to such a pension in the presence of the following grounds: men — at the age of 55 and with the occupational life of not less than 25 years, where not less than 15 years — as the air steward; women — at the age of 45 and with the occupational life of not less than 20 years, where not less than 10 years — as the air stewardess (point "g" of Article 47).
Paragraph three of point "a" of Article 47 of the Law "On pension security" specifies that the list of posts of workers of air crew, procedure of calculation of periods of service for awarding them pensions, as well as the procedure of awarding and payment of pensions for the workers of air test crew shall be subject to approval under the procedure prescribed by the Council of Ministers of the Republic of Belarus; point "b" of the given Article specifies that the list of posts and works of engineering staff of aviation shall be subject to approval under the procedure prescribed by the Council of Ministers of the Republic of Belarus.
Regulations of the mentioned points of Article 47 of the Law "On pension security" are realized by the Council of Ministers in Resolution No. 758 which approved: Provision on procedure of awarding and payment of long service pensions for the workers of air test crew; List of posts of air crew, the work of whom shall grant the right to long service pension (regardless of departmental subordination of enterprises, establishments and organizations); Procedure of calculation of periods of service for awarding pensions for the workers of air crew, as well as List of posts of engineering staff of aviation, the work of whom shall grant the right to long service pension.
By evaluating the relevant provisions of Resolution No. 758, the Constitutional Court is proceeding from the fact that the Law "On pension security" shall entrust the Council of Ministers to ensure additional legal regulation only with respect to the workers of air crew, air test crew and engineering staff (points "a", "b" of Article 47).
List of posts of workers of air crew, the work of whom shall grant the right to long service pension, that was approved by Resolution No. 758, has referred, in particular, the members of flight crews of aircrafts and other aircrafts to the members of flight personnel, and after amending Resolution No. 1074 - the members of flight crews of aircrafts and other aircrafts, flight (board) operators.
As a result of enforcement of the Law "On pension security" (since 1 January 1993), long service pension for the workers of air crew and flight (board) operators were awarded in accordance with the given Law and under conditions specified by Resolution No. 758.
At the same time, as for the air stewards/stewardesses who were also members of the flight crew of aircraft, the right to long service pension, conditions and procedure of its awarding are stipulated in point "g" of Article 47 of the Law "On pension security" that is the norm of direct effect and needs no additional regulation of conditions and procedure of awarding and calculation of scale of pension for air stewards/stewardesses. Thus, air stewards/stewardesses were specified as a separate category of workers of aviation, the pension security of whom is stipulated directly in the law. Whereas the Council of Ministers was not granted the right to specify conditions for pension security of air stewards/stewardesses, then Resolution No. 758 that regulates the conditions for pension security of air crew, did not cover air stewards/stewardesses.
Under Article 40 of the Air Code of the Republic of Belarus of 1999, that was elaborated on the basis of the provisions of the Convention on international civil aviation, crew of aircraft of the Republic of Belarus shall consist of flight crew (captain, other persons of air crew) and cabin crew (air stewards/stewardesses and flight (board) operators). Thus, after the enforcement of the specified Code, there have been emerged formal grounds with respect to the air stewards/stewardesses to raise the issue to be under the conditions of pensions security fixed for air crew, moreover, Resolution No. 758 used the same notion — "crew of aircraft", and air stewards/stewardesses were referred thereto under the Air Code. In addition, according to the information of the State Aviation committee of the Republic of Belarus, in 1992, before the adoption of the Law of the Republic of Belarus "On pension security" on governmental level there have been regulated that the issue on referring of air stewards/stewardesses to air crew may be subject to coordination while elaborating the Air Code of the Republic of Belarus. It has been emerged a clear collision between the given Code and the pension legislation in part of usage of terms and notions. According to Article 141 of the Air Code the Council of Ministers was entrusted before 1 January 2000 to bring the legislative acts into line with the Code in question. However, the specified collision has been preserved for a long period of time, and that also entailed the number of complaints of citizens — former air stewards/stewardesses on revision of their pension security the provisions of the Air Code taking into account.
Resolution No. 1074 made a specification of the given List, according to which instead of previous notion "members of aircraft crew", where air stewards/stewardesses were formally within this category, it was specified the notion "members of air crews" (i.e. captain, other persons of flight staff". Moreover, the list was added by the category of flight (board) operators, with respect to whom since 1959 the Union legislation stipulated the same procedure and conditions as for air crew. This alteration of legislation did not apply to the conditions of pension security of air stewards/stewardesses, seeing that the relevant conditions for awarding them pensions that are stipulated directly in the Law "On pension security" were subject to no alteration.
The circumstance that flight (board) operators who like air stewards/stewardesses are referring not to air crew but to the cabin crew, were included by Resolution No. 1074 in the list of posts of workers of flight staff, and that was one of the grounds for contesting the legality of Resolution No. 758, may not exert influence on the procedure and conditions of awarding pensions for air stewards/stewardesses, since the Law "On pension security" stipulates for them an independent legal regulation of pension security of favourable nature as regards the age and special record of work (point "g" of Article 47 of the Law).
Previously effective legislation on pension security of workers of civil aviation, in particular, Resolution of the Council of Ministers of the USSR of 20 December 1958 No. 1372 "On long service pensions for workers of flight-and-lift civil air staff and auronautics" referred flight (board) operators, who were subject to long service pension equally with the flight personnel, also to flight-and-lift air staff.
By pension legislation air stewards/stewardesses were not referred to flight personnel and were secured by old-age pension for the work under special working conditions according to List No. 1 of productions, divisions, professions and posts at underground workings, under harmful dangerous conditions, in hot departments that shall give the right to state preferential pension approved by Resolution of the Council of Ministers of the USSR of 22 August 1956 No. 1173 (hereinafter is also referred to as List No. 1). Calculation of scales of those pensions was subject to general norms envisaged for old-age pension.
Law of the USSR of 15 May 1990 "On pension security of citizens in the USSR" and then the Law of the Republic of Belarus "On pension security" stipulated pension security of air stewards/stewardesses the same as for the workers of the flight personnel, by awarding long service pensions. However, with respect to air stewards/stewardesses on the legislative level there were specified the conditions for awarding long service pensions that are differ from those conditions for awarding pensions for other categories of workers of aviation, including flight personnel and air test crew, as well as the previous procedure of their pension security according to List No. 1. Thus, the right to long service pension for air stewards/stewardesses shall be granted: women — at the age of 45 and with the occupational life of not less than 20 years, where not less than 10 years as the air stewardess, men — at the age of 55 and with the occupational life of not less than 25 years, where not less than 15 years as the air steward. Occupational life and length of service as air stewards/stewardesses shall be calculated in calendar order, and the scale of pension — under general grounds specified for labour pensions. At the same time, air stewards/stewardesses preserve the right to long service pension under List No. 1 (Article 15 of the Law "On pension security").
The Law "On pension security", by stipulating the common provisions on scales of pensions, makes exclusion for the workers of air crew and air test crew, whereas point "a" of Article 47 of the given Law entrusts the Council of Ministers to determine the procedure of awarding and payment of pensions for workers of air test crew (Article 50). Consequently, the pensions for flight personnel shall be calculated under the fixed norms in percent to the corrected, due to increase of average wages of industrial and office workers in the republic, factual earnings specifying according to Articles 57, 58 and 70 of the Law "On pension security". Moreover, earnings that are not higher than 130 per cent of average wages of industrial and office workers in the republic that is applicable for correction of factual wage of a pensioner (Article 70 of the Law) shall be taken into account in full, and the earnings within the limits from 130 till 400 per cent of average wage of industrial and office workers in the republic that is applicable for correction of factual wage of a pensioner, shall be taken into account at the rate of 10 per cent. Such a sum shall be considered to be the earnings for calculation of the pension (point 2 of Resolution No. 758).
This shall mean that the pension for the workers of flight personnel shall be calculated without application of Article 56 of the Law "On pension security" on limitation of earnings. Owing to this, pensions of workers of flight personnel are higher than old age and other long service pensions, for air stewards/stewardesses included.
Previously legislation did not granted and does not grant air stewards/stewardesses the right to calculation their pensions in accordance with the procedure stipulated for the workers of air crew and air test crew. The scale of labour pensions for air stewards/stewardesses like for other categories of workers is connected with the length of service and the amount of earnings for the calculation of pension and shall be calculated under Article 56 of the Law "On pension security".
Thus, the Law "On pension security" shall not grant the Council of Ministers the right to stipulate other in comparison with the given Law procedure and conditions for pension security of air stewards/stewardesses, therefore, Resolution No. 758 was not intended for regulation of pension security of air stewards/stewardesses, as well as was not subject to application while awarding them pensions.
The Constitutional Court emphasizes that paragraph two of Article 5 of the Law "On procedure of enforcement of the Law of the Republic of Belarus "On pension security" entrusted the Council of Ministers till 1 December 1992 to elaborate and approve the lists and enumerations of works, professions, posts and indicators that give the right to pension for the work under special working conditions and long service pensions, as well as procedure and conditions for awarding long service pensions in accordance with Articles 47 and 49 of the Law "On pension security". The specified regulations that make references to the Law "On pension security" shall be correlated only with the normative provisions of points "a" and "b" of the Article in question that contain concrete regulations with respect to the competences of the Council of Ministers. Therefore, provisions of paragraph two of Article 5 of the Law "On procedure of enforcement of the Law of the Republic of Belarus "On pension security" shall be subject to no broad interpretation. Moreover, the given Article underlines not the concretization of the relevant instructions to the Council of Ministers, but the time period for their fulfillment. Due to that it had not be the Council of Ministers that could resolve the issue on the procedure and conditions for awarding pensions with respect to air stewards/stewardesses.
At the same time, the Constitutional Court emphasizes that the position stated in the proposal of the House of Representatives on the necessity of finding fair approaches towards solution of issues of pensions security of workers of aviation that are referring to cabin crew of aircraft is noteworthy, however, it is possible by way of improvement of pension legislation. The analysis of the legislation on pension security of workers of aviation made by the Constitutional Court signifies that stipulation of more soft conditions for pension security of air stewards/stewardesses is possible only by way of alteration of the Law "On pension security". The Constitutional Court deems that the character of labour and responsibility of air crew has its own specification and differs from the nature of work and responsibility of cabin crew, and this fact is rather evident. As for the correlation of conditions of work and responsibility of flight (board) operators and air stewards/stewardesses who, as it is noted by the State Aviation committee, like other members of air crew have the same influence thereon of environment, then the given issue due to its not so obvious character must be settled by those state bodies within the competence of which there is the specification of the procedure and conditions for pension security.
In this situation the Constitutional Court may only pointed out that there are no obstacles for referring air stewards/stewardesses to the category of workers of aviation, flight personnel, with respect to whom there is a favourable calculation of the scale of pension, however, settlement of those issues is in the competence of the law maker.
In the proceedings the Constitutional Court made no consideration of the constitutionality of the Law "On pension security", since the subject for consideration on the given case was Resolution of the Council of Ministers of the Republic of Belarus of 18 December 1992 No. 758 "On conditions of awarding pensions for certain categories of workers of aviation of air test crew". Under Article 11 of the Law "On the Constitutional Court of the Republic of Belarus", the Constitutional Court shall have the right to deliver decisions only as regards the acts grounded on the act under verification or those that reproduce certain provisions thereof, even if they were not mentioned in the proposal, however, in this particular case, the act under verification is grounded on the Law "On pension security".
Grounded on the abovestated and guided by part one, four and seven of Article 116 of the Constitution, Articles 5, 6, 9, 34, 38, 40 and 43 of the Law "On the Constitutional Court of the Republic of Belarus", the Constitutional Court
RULED:
1. To find Resolution of the Council of Ministers of the Republic of Belarus of 18 December 1992 No. 758 "On conditions of awarding pensions for certain categories of workers of aviation of air test crew" (with further alterations and addenda) in part of pension security of air stewards/stewardesses of civil aviation to be in line with the Constitution of the Republic of Belarus, international treaties of the Republic of Belarus and Laws of the Republic of Belarus "On pension security" and "On procedure of enforcement of the Law of the Republic of Belarus "On pension security".
To emphasize that in case of necessity the competent state bodies shall have the right to change approaches towards pension security of air stewards/stewardesses by way of the relevant correction of pension legislation.
2. To pay attention of norm making bodies to the fact that contrary to the requirements of the Constitution (Article 59), of the Law "On normative legal acts of the Republic of Belarus" in the legislation there are contradictions, ambiguous wordings and definitions, and that is especially inadmissible, if it involves the rights, freedoms and obligations of citizens, since it gives rise to the complaints and applications of citizens, as well as shall not promote the establishment of constitutional order.
3. To publish the present Judgment within the time period fixed by the legislation in newspapers "Zvyazda" and "Narodnaya gazeta", as well as in National register of legal acts of the Republic of Belarus and in "Vesnik Kanstytutsijnaga Suda Respubliki Belarus".
4. The present Judgment shall come into legal force from the day of its adoption, is final and subject to no appeal or protest.
Presiding Officer —
Chairman of the Constitutional Court
of the