The Constitutional Court of the Republic of Belarus comprising the Presiding Officer − Chairman of the Constitutional Court of the Republic of Belarus P.P. Miklashevich, Deputy Chairman A.V. Maryskin, judges T.S. Boiko, S.Y. Danilyuk, L.G. Kozyreva, V.V. Podgrusha, L.M. Rjabcev, O.G. Sergeeva, A.G. Tikovenko, S.P. Chigrinov, V.Z. Shuklin, has examined the application of the public joint-stock company «Savings bank «Belarusbank» on revision of norms of the normative legal act establishing the one year term of action of the power of attorney on reception of money resources from a deposit of a person opened in a bank, to which pensions (allowances) are transferred by bodies of labour and social protection. 

Having analysed the provisions of the Constitution of the Republic of Belarus, the Civil Code of the Republic of Belarus (hereinafter is referred to as CC), the Banking Code of the Republic of Belarus (hereinafter is referred to as BC), the Law of the Republic of Belarus «On pension security» (hereinafter is referred to as the Law), other normative legal acts of the Republic of Belarus regulating the issues of pension security, the Constitutional Court has found the following. 

According to 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, loss of a bread-winner and in other instances specified by law. 

In the Law the procedure of realization by citizens of the constitutional right on reception of labour, social pensions and other payments is established by defining sources of payment of pensions, the organizations where for choice of pensioners pensions are transferred, and other conditions of their payment. 

So, in Article 8 of the Law it is stipulated that payment of labour pensions granted according to the Law, is carried out at the cost of resources of the Fund of social protection of the population of the Ministry of Labour and Social Protection of the Republic of Belarus. Payment of social pensions provided by the Law is carried out at the expense of resources of the republican budget.  

According to subpoints 6.35 and 6.49 of point 6 of the Regulation on the Ministry of Labour and Social Protection of the Republic of Belarus, approved by the Resolution of the Council of Ministers of the Republic of Belarus of 31 October 2001 № 1589, on the specified Ministry it is assigned also organizing the work on granting and paying pensions, allowances and other social payments; exercising control over realization of the legislation on social protection of the population, etc.  

In accordance with part four of Article 83 of the Law payment of pensions is carried out for choice of pensioners through mail service organizations, banks, organizations carrying out the activity on delivery of pensions.  

Peculiarities of payment of a pension (an alowance) through banks are established, in particular, by the Regulation on the order of payment of pensions (allowances) by transfer of them to accounts of persons in departments of the public joint-stock company «Savings bank «Belarusbank», approved by the Resolution of the Ministry of Labour and Social Protection of the Republic of Belarus of 3 October 2002 № 129 (further – the Regulation). In point 4 of the Regulation it is stipulated that transfer of a pension (an allowance) is carried out by a body on labour and social protection on the basis of the application of a pensioner (a recipient of an allowance) on transfer of his pension (allowance); the application is valid within three years from the day of its submission to the body on labour and social protection and is renewed by the pensioner (the recipient of an allowance) not later than one month before expiration of the term of its action.  

Payment of a pension (an allowance) by transfer to an account of a person has essential distinctions from other ways of its reception. In this case a citizen independently concludes with a bank a contract of a corresponding bank deposit. A condition of such deposit is keeping money resources, disposing them and receipting interest on them. Replenishment of the deposit is made by transfer to an account of a depositor both pensions and sums which have come to a deposit by paying cash money and (or) in a cashless order.  

Specified legal relations connected with conclusion of a contract of a bank deposit and opening an account of a person where money resources legally received by a citizen come, and also with the subsequent possession of them, using and disposing, confirm that the citizen has the property right to these money resources and are regulated by the civil and bank legislation of the Republic of Belarus. 

So, Article 773 of CC, Articles 181 and 185 of BC is stipulated the duty of a bank in which a deposit is opened to accept from a depositor money resources in a deposit, to provide their safety, to pay percents on the conditions and in the order, defined by a contract, and at a termination of the contract – to return them to the depositor. Money resources have a depersonalized character, and a depositor has the right to dispose of them: to give orders to a bank about transfer of money resources from his account to other bank accounts and (or) to other persons; to use other kinds of bank services according to the legislation of the Republic of Belarus and a contract of a bank deposit. According to Article 189 of BC the money resources which have come into an account of a depositor from other persons can be entered into a deposit if other is not stipulated in the contract of a bank deposit. 

Similar approaches have embodied in the Regulation. It is provided in it that payment of money resources from accounts of persons is carried out according to the bank legislation (point 13); to the sums of pensions (allowances) entered into accounts of persons in subdivisions of a bank, to pensioners (recipients of allowances) interest in the form of percents or in other form offered by a bank is added according to the bank legislation (point 3). 

Protection of the property right of a citizen on money resources placed in a deposit conforms to Article 44 of the Constitution which envisages that the state shall guarantee everyone the right of property; a proprietor shall have the right to possess, enjoy and dispose of assets either individually or jointly with others; property acquired in accordance with the law shall be protected by the state; the state shall encourage and protect the savings of citizens, shall guarantee conditions for the return of deposits. 

Norms of CC regulating, in particular, questions of representation and a power of attorney (Articles 183-190) are also based on the specified approaches. 

According to the civil legislation the term of validity of the power of attorney can not exceed three years (point 1 of Article 187 of CC). Thus, the civil legislation gives to a person the right within three years to define a term of validity of the power of attorney on reception of money resources from deposit. 

At the same time in Article 87 of the Law it is provided that the power of attorney on pension reception can be given out for a term not over one year. In point 17 of the Regulation the year term of action of a power of attorney on reception of money resources from an account of a pensioner in a bank is also established.  

In the answer to the request of the Constitutional Court the Ministry of Labour and Social Protection has specified that banks at pension payment should be guided by Article 87 of the Law defining the year term of action of a power of attorney (the letter of 18 June 2008 № 06-10/3349п). 

In the opinion of the Constitutional Court, the relations connected with reception of a pension (an allowance) by a power of attorney and relations on dispose of bank deposits on the basis of a power of attorney are various relations by their legal nature. They represent the relations regulated in the first case by the pension legislation and in the second – by the civil and bank legislation. 

Thus, it is possible to draw a conclusion that Article 87 of the Law regulates the questions arising in the process of issuing the power of attorney on reception of a pension in the organizations, carrying out the activity on pension delivery, as well as in mail service organizations. Legal relations on issuing the power of attorney on reception of the money resources kept in a deposit of a person inherently are civil-law ones and are regulated not by Article 87 of the Law but point 1 of Article 187 of CC. In this connection Article 87 of the Law defining the year term of a power of attorney may not and should not extend on instances of reception of money resources from a deposit of a citizen opened in a bank on which his pension (allowance) is transferred, as falling under action of norms of the civil and bank legislation. 

Taking into account the stated the Constitutional Court considers that point 17 of the Regulation in a part of the establishment of the year term of action of the power of attorney on reception of money resources from an account of a pensioner in a bank does not conform to norms of the civil and bank legislation of the Republic of Belarus. 

At the same time for an exception of possible negative consequences which can be caused by circumstances involving the termination of payment of pensions (allowances), with a view to protect economic interests of the state, to provide designed use of resources of social insurance on payment of pensions (allowances), to control over their expenditure, in the opinion of the Constitutional Court, in the Regulation both the year and other term of validity of the application of a pensioner (a recipient of an allowance) on transferring of a pension (allowance) to his account opened in a bank can be established.  

On the basis of the abovementioned, guiding by Articles 40, 116 of the Constitution of the Republic of Belarus, Articles 22, 24 of the Code of the Republic of Belarus on judicial system and status of judges, the Constitutional Court  

RULED: 

1. To propose to the Council of Ministers of the Republic of Belarus to consider the issue on perfection of norms of the pension legislation by stipulating in Article 87 of the Law of the Republic of Belarus «On pension security» the position that a term of validity of a power of attorney specified in it does not extend on instances of reception of money resources from a deposit of a citizen opened in a bank on which his pension (allowance) is transferred. 

2. To draw attention of the Ministry of Labour and Social Protection of the Republic of Belarus to necessity of modification of point 17 of the Position on the order of payment of pensions (allowances) by transfer of them to accounts of persons in departments of the public joint-stock company «Savings bank «Belarusbank», approved by the Resolution of the Ministry of Labour and Social Protection of the Republic of Belarus of 3 October 2002 № 129, defining the year term of action of the power of attorney on reception of money resources from a deposit of a person on which his pension (allowance) is entered, taking into account norms of the civil and bank legislation of the Republic of Belarus, as well as the approaches stated in the present decision. 

3. The present Decision shall come into legal force from the day of its adoption.  

4. To publish the present Decision in accordance with the legislation.