16 July 2001 № D-126/2001
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 G.A. Vorobei, K.I. Kenik, A.A. Sarkisova, A.G. Tikovenko, R.I. Filipchik, G.B. Shishko, Shuklin V.Z., having examined on the basis of Article 40, part one of Article 116 of the Constitution of the Republic of Belarus complaint of members of families of officers who perished (dead) while carrying out their military service duties on the fact that for those citizens, unlike parents of statutory period servicemen, parents and wives of servicemen who perished (dead) while carrying out soldier's duty in the countries where military operations took place, there have been awarded no monthly benefits.
There have been also examined the complaint of the Republican association of family members of servicemen who perished in Afghanistan, - "Memory and duty" concerning more low norms for calculation of pension as a result of loss of a bread-winner for family members of servicemen in comparison with calculation of pensions for family members of civilian persons. Having analysed effective legislation of the Republic of Belarus in the specified sphere, the Constitutional Court found the following. 1. Social security of persons whose bread-winners perished (dead) while carrying out military service duties or official functions shall differ in the circle of persons and in the rate of material support.
Thus, according to Article 36 of the Law of the Republic of Belarus "On pension security of servicemen, commanding staff and the rank and file of the bodies of internal affairs" monthly benefit in the rate of three minimum wages shall be awarded: firstly, mother and father of a statutory period serviceman perished or dead in peace-time while carrying out military service duties; secondly, for mother and father and for the newly unmarried wife of a serviceman from among officers, warrant officers, extended-servicemen, commanding staff and the rank and file of the bodies of internal affairs and bodies of financial investigations, workmen and office workers who perished (dead) while carrying out soldier's duty or official functions in Afghanistan or in the countries where military operations took place under the list specified by the Ministry of Defence of the Republic of Belarus.
The specified benefit shall be paid irrespective of the wage (cash security) at the working place (employment). At the same time, the Law shall not envisage awarding monthly benefit for the members of families of perished (dead) servicemen from among officers, warrant officers, extended-servicemen, commanding staff and the rank and file of the bodies of internal affairs and bodies of financial investigations whose death is connected with carrying out military (official) service duties in peace-time, as well as for the wives of perished (dead) servicemen of a statutory period while carrying out military service duties.
According to Edict of the President of the Republic of Belarus of 12 April 2000 No. 11 "On additional measures on improvement of pension security for invalids, participants of the Great Patriotic war and for some other categories of citizens" and to analogous norms of the Law "On pension security of servicemen, commanding staff and the rank and file of the bodies of internal affairs" with amendments made by the Law of 22 June 2001 parents, children-invalids from childhood and wives (newly unmarried) of servicemen, commanding staff and the rank and file of the bodies of internal affairs and bodies of financial investigations whose death is connected with carrying out military service (official) duties, as well as persons who shall receive pension in the event of loss of a bread-winner who perished (dead) while carrying out military service (official) duties the awarded pensions shall be raised up to 100 per cent of minimum rate of old-age pension. The given increase shall be made for the persons who have no monthly benefit under the legislation on pension security of servicemen.
At the same time, according to the norms of Article 68 of the Law of the Republic of Belarus "On pension security", in the wording of the Law of 22 June 2001 as for the categories of persons specified in the Edict pensions shall be raised up to 100 per cent of minimum rate of old-age pension, and for those who receive monthly benefit on the grounds of the Law "On pension security of servicemen, commanding staff and the rank and file of the bodies of internal affairs" - up to 50 per cent of minimum rate of old-age pension.
As it follows from the abovementioned legal norms, citizens whose bread-winners (officers) perished (dead) while carrying out soldier's duty or official functions in Afghanistan or in the countries where military operations took place, shall have the right to receive simultaneously benefits and, by receiving pension under the Law "On pension security", - the right to increase that pension up to 50 per cent of minimum rate of old-age pension; as for the citizens whose bread-winners (officers) perished (dead) while carrying out military service (official) duties in peace-time in case of receiving by them pension - shall have only the right to its increasing up to 100 per cent of minimum rate of old-age pension. In the opinion of the Constitutional Court, effective legislation contains groundless differences in the field of social protection of citizens whose bread-winners perished (dead) while carrying out military service (official) duties, and those differences should be ruled out. 2. Constitution shall guarantee citizens of the Republic of Belarus 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 (Article 47).
Pensions in the event of loss of a bread-winner shall be awarded in the rates fixed by the Laws "On pension security" and "On pension security of servicemen, commanding staff and the rank and file of the bodies of internal affairs". Article 38 of the Law "On pension security" shall specify that pensions in the event of loss of a bread-winner shall be awarded for each disable member of the family in the rate of 40 per cent of average monthly earnings of a bread-winner (Article 56), but not less than 100 per cent of minimum old-age pension. As for the children who lost both parents (those who have neither father nor mother) or for the children of the dead single mother pension for each child shall be awarded in the rate of 50 per cent of the earnings of bread-winners (Article 56), but not less than double minimum scale of old-age pension. According to Article 411 of the Law in the event of loss of a bread-winner there shall be fixed one of the listed additional amounts to the pension for care: invalids of I group - 100 per cent of minimum rate of old-aged pension; for the pensioners who reached 80 years age, for children-invalids at the age of under 18 and for the invalids from childhood of II group, as well as for single pensioners who are in need of outside assistance under the conclusion of medical and rehabilitation commissions or medical and consultative commissions, - 50 per cent of minimum rate of old-age pension.
Article 36 of the Law "On pension security of servicemen, commanding staff and the rank and file of the bodies of internal affairs" stipulates that pensions in the event of loss of a bread-winner shall be awarded in the following rates: a) for the families of servicemen and commanding staff and the rank and file of the bodies of internal affairs and the bodies of financial investigations perished (dead) while carrying out military service duties or those who dead as a result of the reasons specified in point "a" of Article 21 of the Law in question, - 40 per cent of the earnings of a bread-winner for each disable member of the family.
The same rate of pension, irrespective of the reasons of death, shall be awarded the families of pensioners who were invalids of war on the day of death (point "a" of Article 21), and to the children who lost both parents (those who have neither father nor mother) or for the children of the dead single mother; b) for the families of servicemen, commanding staff and the rank and file of the bodies of internal affairs who dead as a result of the reasons specified in point "b" of Article 21 of the Law, - 30 per cent of the earnings of a bread-winner for each disable member of the family. Additional amounts to the pensions in the event of loss of a breadwinner has not be envisaged.
The Constitutional Court, based on the analysis of the specified norms of the Constitution and the laws of the Republic of Belarus, deems that legal norms concerning social protection of citizens who lost a bread-winner shall be brought into line with Article 22 of the Constitution under which all shall be equal before the law and entitled without discrimination to equal protection of their rights and legitimate interests.
Guided by Article 40, part one of Article 116 of the Constitution, Articles 7, 11, 36, 38, 40, 401 of the Law "On the Constitutional Court of the Republic of Belarus" the Constitutional Court
RULED:
1. To propose the Council of Ministers of the Republic of Belarus to rule out in the established procedure the specified in that Decision differences on the beginning of new budget year at the latest: in legal regulation of the issues of social security of citizens whose bread-winners perished (dead) due to carrying out military service (official) duties; in establishing norms for fixation of the rates of pensions in the event of loss of a bread-winner - serviceman or a person from commanding staff and the rank and file of the bodies of internal affairs and of the pensions in the event of loss of a bread-winner - civilian person.
2. The present Decision shall come into legal force from the date of its adoption.
3. To publish the present Decision in accordance with effective legislation.
Presiding Officer —
Chairman of the
of the