14 July 2005 № D-187/2005
The Constitutional Court of the Republic of Belarus comprising of the Presiding Officer - Chairman of the Constitutional Court G.A. Vasilevich, judges T.S. Boiko, K.I. Kenik, A.A. Sarkisova, A.G. Tikovenko, R.I. Filipchik, G.B. Shishko, V.Z. Shuklin having examined applications of citizens concerning temporary disability allowance, found the following.
According to Article 1 of the Law of the Republic of Belarus "On bases of state social insurance" (hereinafter is also referred to as the Law) state social insurance is the system of pensions, allowances and other benefits for the citizens of the Republic of Belarus at the cost of state insurance funds in instances stipulated by the Law.
Part 1 of Article 11 of the Law prescribes that the conditions, rates and the procedure of awarding and realization of payments on state social insurance shall be specified in accordance with the legislation that regulates the issues of state social insurance in relation to the concrete insured event.
The procedure of securing temporary disability allowances (except for temporary disability allowance concerning occupational diseases and accidents) is specified in the Provision on procedure of securing with temporary disability allowance and maternity benefits adopted by Resolution of the Council of Ministers of the Republic of Belarus of 30 September 1997 No. 1290 (in wording of Resolution of the Council of Ministers of the Republic of Belarus of 4 April 2002 No. 421, with alterations and addenda of 12 December 2003 No. 1606 (hereinafter is also referred to as Provision).
Common procedure of calculation of temporary disability allowances is stipulated in part 31 of Provision, under which the allowances shall be calculated in accordance with average daily (per hour) earnings for 2 calendar months prior to the month of emerging temporary disability, maternity leave.
Individual entrepreneurs shall be given temporary disability allowance in a different way. According to part 1 of point 39 of Provision, for the individual entrepreneurs, members of farm enterprises, creative workers the allowances shall be calculated from the income (earnings), from which insurance premium for social insurance was paid for 12 calendar months prior to the month of emerging events of temporary disability, maternity. For the specified persons who work less than 12 calendar months the allowances shall be calculated from the income (earnings), from which insurance premium for social insurance was paid for the period from the date of state registration (if they are subject to a compulsory state social insurance) and from the date of registration as insurance premium payers in the bodies of the Fund of Social Protection of population of the Ministry of Labour and social protection of the Republic of Belarus (if they are subject to social insurance under condition of insurance premium payment) before the date of emerging events of temporary disability, maternity. Average daily payment shall be determined by way of dividing of income (earnings) from which insurance premium was paid for social insurance for the relevant period of time by the calendar days of this period.
The Constitutional Court also notes that Provision envisages different ways for specification of maximum rates of temporary disability allowances. Thus, point 44 of Provision specifies that maximum rate of allowances calculated in accordance with Provision, except or the allowances calculated in accordance with points 39 and 40 of Provision, for the calendar month of every place of work shall be set at the three times size of the average wage of the workers and employees in the Republic in the month preceding each month of temporary disability, maternity leave. At the same time, for the individual entrepreneurs according to part 3 of point 39 of Provision the rate of allowance on one event of temporary disability or maternity (except for the maternity benefits calculated at the minimum rate fixed in part 4 of point 27 of Provision) may not exceed 70% of the sum of insurance premium for social insurance paid during the period for calculation of the average daily income (earnings).
Thus, the procedure of calculation of the rate which is due to the payment of temporary disability allowance, as well as maximum rates of its payment for individual entrepreneurs are differ from the common procedure for calculation and payment of temporary disability allowance fixed for other working citizens.
At the same time, individual entrepreneurs, as well as other workers are subject to compulsory social insurance, except for those listed in part 7 of Provision when social insurance is voluntary.
Rates of compulsory insurance premium for pension insurance are stipulated in the Law of the Republic of Belarus "On compulsory insurance premium to the Fund of Social Protection of population of the Ministry of Labour and Social Protection of the Republic of Belarus" and shall be 29% - for employers; 24% - for employers engaged in agricultural production with the volume of more than 50% of the total volume of the production; 8% - for the lawyers of the bar; 30% - for natural persons who pay themselves compulsory insurance premium; 25% - for members of farm enterprises; 1% - for working citizens, except for members of farm enterprises (part 1 of Article 3).
The rate of compulsory insurance premium for the events of temporary disability, maternity, childbirth, baby care for three-year period, a day off per for the mother with a juvenile disabled child at the age before 18, death of the insured member or a member of his family (social insurance) for employers and natural persons who pay themselves compulsory insurance premium, as well as members of farm enterprises shall be 6% and for the lawyers of the bar - 2% (part 2 of Article 3 of the Law).
According to the part 81 of Provision on compulsory insurance premium and other payments to the Fund of Social Protection of population of the Ministry of Labour and Social Protection approved by Decree of the Resident of the Republic of Belarus of 5 June 2000 No. 318 (with alterations and addenda) the individual entrepreneurs shall pay compulsory insurance premium from the date of registration for the events:
retirement age, disablement and loss of a breadwinner (hereinafter is also referred to as retirement insurance) at the rate of 30% of the determined by them income, but no less than the amount of the premium calculated at the same rate from the size of the approved in the established order budget of the subsistence minimum in average per capita;
temporary disability, maternity, childbirth, baby care for three-year period, death of the insured member or a member of his family (hereinafter is also referred to as social insurance) at the rate of 6 % of the determined by them income, but no less than the amount of the premium calculated at the same rate from the size of the approved in the established order budget of the subsistence minimum in average per capita.
Thus, individual entrepreneurs alongside with employers and workers and other natural persons who pay themselves compulsory insurance premium to the state insurance funds shall participate in making funds of the state social insurance under conditions and in the way stipulated by the acts of legislation.
According to Article 47 of the Constitution citizens of the Republic of Belarus are guaranteed the right for social security in the old age in the case of disease, invalidity, disablement, loss of breadwinner and in other cases stipulated by the law.
The main principles of state social insurance stipulated in Article 2 of the Law "On bases of state social insurance" are: participation of employers, workers and natural persons who pay themselves compulsory insurance premium in making state insurance funds; distribution of means from able-bodied citizens to disabled ones, from working persons to unemployed; guarantee of pensions, benefits and other allowances in accordance with the legislation; equality of citizens of the Republic of Belarus regardless of social status, race and nationality, sex, language, occupation, place of living in the right for state social insurance; differentiation of conditions and scales of pensions, benefits and other allowances on the state social insurance.
The Constitutional Court deems part 39 of Provision to be incompatible with the principle of equality of the citizens of the Republic of Belarus in the right to state social insurance regardless of social status and occupation and is not in line with Articles 22 and 23 of the Constitution enshrining that all shall be equal before the law and have the right without discrimination to equal protection of their rights and legitimate interests; restrictions of personal rights and liberties shall be permitted only in the instances specified in law, in the interest of national security, public order, the protection of the morals and health of the population as well as rights and liberties of other persons.
On the grounds of above stated and guiding by the Articles 40, 116 of the Constitution, Article 7 of the Law "On the Constitutional Court of the Republic of Belarus" the Constitutional Court
RULED:
1. To propose the Council of Ministry of the Republic of Belarus for the purposes of realization of the regulations stipulated in Articles 22, 23 and 47 of the Constitution of the Republic of Belarus to secure equal approach to regulation of the procedure of calculation and payment of temporary disability allowances for all the persons who are subject to compulsory state social insurance irrespective of their occupation.
2. The present Decision shall come into legal force from the date of its adoption.
3. To publish the resent Decision in accordance with the legislation.
Presiding Officer —
Chairman of the
of the