18 July 2001 № D-127/2001
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 bases of Article 40, part one of Article 116 of the Constitution of the Republic of Belarus, Article 18 of the Law of the Republic of Belarus "On status of deputy of the House of Representatives, member of the Council of the Republic of the National Assembly of the Republic of Belarus" complaint of a deputy of the House of Representatives of the National Assembly of the Republic of Belarus on verification of the conformity between the Constitution, international legal acts and part one of Article 21 of the Law of the Republic of Belarus "On bases of service in state staff" and point 12 of ruling of Plenum of the Supreme Court of the Republic of Belarus of 29 March 2001 No. 2 "On some issues of application by the courts of law of labour legislation".
Application has specified that in accordance with part one of Article 21 of the Law "On bases of service in state staff" one of the grounds for termination of service in state staff shall be reaching by public servant of pension age and the presence of the right to full old-age pension, if state body reserved no labour relations with him.
According to point 12 of ruling of Plenum of the Supreme Court of the Republic of Belarus of 29 March 2001 No. 2 termination of service in state staff due to reaching pension age and the presence of the right to full old-age pension shall be independent grounds for termination of the labour contract at the initiative of an employer irrespective of the term to which it has been concluded. In the opinion of the deputy of the House of Representatives the specified norms of the Law "On bases of service in state staff" and ruling of Plenum of the Supreme Court are clearly at variance with the provisions of the Constitution, Laws "On veterans", "On pension security", Edict of the President of the Republic of Belarus of 9 September 1997 No. 16 "On some measures on regulation of material and social security of public servants and persons equated with them", international legal acts - Universal Declaration of Human Rights, International Covenant on Economic, Social and Cultural Rights, ILO Convention No. 111 "On Discrimination in the sphere of Employment and Occupation", ILO Recommendation No. 162 "Concerning Older Workers" and other.
Those provisions are not in line with the approaches of the Constitutional Court of the Republic of Belarus stated in its Judgment of 23 September 1994 "On the conformity between the Constitution of the Republic of Belarus and the norms of the Labour Code which envisage possibility of cancellation of the labour contract due to reaching by an employee of pension age". Having analysed provisions of the Constitution, laws, other enforceable legal acts of the Republic of Belarus, international legal acts, the Constitutional Court found the following.
Under Article 41 of the Constitution citizens of the Republic of Belarus shall be guaranteed the right to work as a worthiest means of an individual's self-assertion, that is the right to choose of one's profession, type of occupation and work in accordance with one's vocation, capabilities, education and vocational training, and having regard to social needs. Article 39 of the Constitution shall give the citizens, in accordance with their capabilities and vocational training, the right to equal access to any post in state bodies. Service in state staff under Article 1 of the Law "On bases of service in state staff" is a type of labour activities carrying out by citizens on vocational basis in the specifying by that Law state bodies which shall secure the performance of state functions. Article 3 of the Law in question stipulates that relations connected with service in state staff shall not be regulated by that Law, and are regulated by labour, pension and other legislation of the Republic of Belarus.
In accordance with Article 5 of the Labour Code that Code shall be applied to labour relations and to other connected with them relations of certain categories of employees (servicemen, public servants etc.) in instances and within the limits specified in special legislative acts which shall determine their legal status. Based on the aforecited provisions of laws, norms of labour legislation shall be applied to public servants in instances, if relations connected with service in state staff are not regulated by special legislation. Under Article 21 of the Law "On bases of service in state staff" service in state staff shall be terminated in instances as follows: public servant has reached pension age and has the right to full old-age pension, if state body reserved no labour relations with him; resignation of a public servant; cancellation of the contract under the grounds envisaged therein. Service in state staff may be also terminated in other instances specified in labour legislation.
Plenum of the Supreme Court of the Republic of Belarus in its ruling of 29 March 2001 No. 2 "On some issues of application by the courts of law of labour legislation" has explained that reaching by a public servant of pension age and the presence of the right to full old-age pension shall be the ground for termination of service in state staff in accordance with part one of Article 21 of the Law of the Republic of Belarus "On bases of service in state staff". Termination of service in state staff due to reaching pension age and due to the presence of the right to full old-age pension shall be independent grounds for termination of the labour contract at the initiative of an employer irrespective of the term of the contract. The given norm of the Law "On bases of service in state staff" shall signify that, as compared with employees to whom the Labour Code and other labour legislation are applied in full, for public servants special legislation shall stipulate additional grounds for termination of service in state staff. Peculiarities of regulation of the work of public servants shall be also enshrined in the Law in part of: establishment of limitations for service in state staff which shall take into account individual peculiarities (Article 9); specification of their official duties (Article 10) and rights (Article 11), limitations connected with service in state staff (Article 12), liability (Article 17) etc. Article 15 of the Law shall envisage contract form of employment of public servants, and the Labour Code shall not contain such a type of a contract. At the same time, the Law in question shall specify special, as compared with other employees, guarantees of legal and social protection of public servants. In essence, relations of public servant with state staff, arising as a result of beginning work therein, are labour legal relations since they meet all the features characterizing those relations: entering staff of state body, performance of the specified labour function, subordination to office labour regulations.
However, public service, which shall have their tasks to putting into effect state policy, preparation, adoption, execution and control within their powers over decisions of state bodies, securing effective activities of state bodies, ensuring the rights and lawful interests of citizens and legal entities, shall presuppose special legal status of public servants, their service only to the state and to the people, possibility for exercise of organizational and executive and administrative measures, giving them special state legal and authoritative powers for the performance of state functions.
Thus, by specifying peculiarities and limitations while regulating that type of labour activities, the lawmaker has come from the principle of securing high effectiveness of activities of state bodies through which servants on behalf of the state shall exercise by that bodies of authoritative powers. Those limitations shall be allowed by the Constitution of the Republic of Belarus and by international legal acts. According to point 2 of Article 1 of ILO Convention No. 111 "On Discrimination in the sphere of Employment and Occupation" any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination. Point 5 of ILO Recommendation No. 162 "Concerning Older Workers" shall stipulate that older workers should, without discrimination by reason of their age, enjoy equality of opportunity and treatment with other workers, in particular, as regards access, taking account of their personal skills, experience and qualifications, to employment of their choice in both the public and private sectors; however, in exceptional cases age limits may be set because of special requirements, conditions or rules of certain types of employment (sub-item "b"). Point 22 of the same Recommendation shall also specify the possibility to determine in legislative and in other provisions mandatory age for the termination of labour relations. ILO Convention No. 158 "On Termination of Employment at the Initiative of the Employer" shall envisage that, in so far as necessary, measures may be taken by the competent authority or through the appropriate machinery in a country, after consultation with the organisations of employers and workers concerned, where such exist, to exclude from the application of this Convention or certain provisions thereof categories of employed persons whose terms and conditions of employment are governed by special arrangements which as a whole provide protection that is at least equivalent to the protection afforded under the Convention. ILO Recommendation No. 119 "On Termination of Labour Relations at the Initiative of the Employer" shall be applied to all branches of economic activity and all categories of workers, provided that the following may be excluded from its scope: public servants engaged in the administration of the State to the extent only that constitutional provisions preclude the application to them of one or more provisions of this Recommendation (sub-item "d" of point 18).
Certain limitations for being in state staff are also established in the laws in other countries. For example, in Russian Federation according to Article 25 of the Federal Law of 31 July 1995 "On bases of public service of Russian Federation" age-limit for holding public office in public service - 60 years. At the same time, it is assumed the possibility for prolongation by decision of the head of the relevant state body of being in public service of public servants who hold higher, main and leading public posts of public service and who reached age-limit for public service. Prolongation of being in public service of a public servant who reach the age of 65 shall be inadmissible.
With the aforestated taken into account, the Constitutional Court has come to the conclusion that the lawmaker, by specifying in the Law "On bases of service in state staff" additional, as compared with labour legislation, grounds for termination service in state staff, due to reaching pension age and the presence for public servant of the right to full old-age pension included, has proceeded from the principle of securing effectiveness of activities of state bodies, safeguarding state security, protection of the rights and lawful interests of citizens and legal entities. Moreover, it follows from the meaning of Article 21 of the Law that the specified ground for dismissal shall be the right and not the obligation of state body to terminate labour relations with public servant.
State body, the leader of which is entitled to determine the capacity of public servant to perform his official duties, to take decision in each concrete case on reservation or termination of labour relations with public servant who reached pension age and who has the right to full pension, shall have the right to reserve with him labour relations.
The Constitutional Court pays attention to the fact that Judgment of the Constitutional Court of 23 September 1994 "On the conformity between the Constitution of the Republic of Belarus and the norms of the Labour Code which envisage possibility of cancellation of the labour contract due to reaching by an employee of a pension age" has touched upon the issue on inadmissibility according general rule of cancellation of a labour contract due to reaching by an employee of pension age and the presence of the right to full old-age pension. As for the norms of the special law which shall regulate relations arising in connection with public service, there may take place peculiarities and limitations. The Constitutional Court emphasizes that limitations specified in the law shall be compensated by granting public servant certain privileges and advantages as compared with regulations of the rights of other employees concerning length of leave, payment of service benefit in case of dismissal in higher rates, preferential procedure for calculation of the scale of pensions etc.
Thus, the provision of part one of Article 21 of the Law "On bases of service in state staff" under which reaching by public servant of pensions age and the presence of the right to full old-age pension shall be the ground for termination of service in state staff, in the opinion of the Constitutional Court, shall not be at variance with the Constitution, the laws of the Republic of Belarus, international legal acts. Under the same grounds point 12 of ruling of Plenum of the Supreme Court of the Republic of Belarus of 29 March 2001 No. 2 "On some issues of application by the courts of law of labour legislation" shall be in conformity with the Constitution. The Constitutional Court notices that according to the effective legislation there shall be concluded the contract with all public servants for the term from 1 to 15 years.
In connection with preparation of draft law on public service it should be envisaged in the new law more guarantees for public servants while terminating service in state staff due to reaching pension age, in particular, to take into account attitude to work, capability of public servant to performance of official duties, as well as time period after the conclusion of the contract.
On the basis of the abovestated and guided by Articles 40, 116 of the Constitution of the Republic of Belarus, Articles 7, 36, 38, 40, 401 of the Law "On the Constitutional Court of the Republic of Belarus" the Constitutional Court
RULED:
1. To note the conformity with the Constitution and with international legal acts of the provision of Article 21 of the Law "On bases of service in state staff" which shall regulate peculiarities for termination of service in state staff due to reaching by public servant of pensions age and the presence of the right to full old-age pension, if state body reserved no labour relations with him, as well as of the explanation made on the grounds of the specified Law and which is contained in point 12 of ruling of Plenum of the Supreme Court of the Republic of Belarus of 29 March 2001 No. 2 "On some issues of application by the courts of law of labour legislation".
2. To propose the National Assembly of the Republic of Belarus by elaborating and adopting new draft law on public service to envisage more guarantees for public servants while terminating service in state staff due to reaching pension age.
3. The present Decision shall come into legal force from the date of its adoption.
4. To publish the present Decision in accordance with effective legislation.
Presiding Officer —
Chairman of the
of the