24 September 1998 № J-71/98
The Constitutional Court of the Republic of Belarus comprising of the Presiding Officer - Chairman of the Constitutional Court G.A. Vasilevich, Deputy Chairman of the Court A.V. Maryskin and judges T.S. Boiko, G.A. Vorobei, K.I. Kenik, V.V. Podgrusha, A.A. Sarkisova, A.G. Tikovenko, R.I. Filipchik, V.I. Shabailov, V.Z. Shuklin
with the participation of litigants:
of the Supreme Economic Court of the Republic of Belarus which has made the proposal on the verification of the constitutionality of the enforceable enactments: L.G. Kozyreva - judge of the Supreme Economic Court of the Republic of Belarus; S.V. Lunev - Head of the sector of legislation of the department of legislation and international relations of the Supreme Economic Court of the Republic of Belarus;
of the Ministry of social protection of the Republic of Belarus: L.T. Bachilo - Deputy Minister - Head of the Fund of social protection of the population of the Ministry of social protection of the Republic of Belarus; N.V. Murashkevich - Deputy Head of the department of pension security of the Ministry of social protection of the Republic of Belarus;
of the Ministry of labour of the Republic of Belarus: V.I. Pavlov - First Deputy Minister of labour of the Republic of Belarus;
of the Fund of social protection of the population of the Ministry of social protection of the Republic of Belarus: L.A. Silutina - Head of the sector of the organization of personified accounting of the Fund of social protection of the population of the Ministry of social protection of the Republic of Belarus; A.S. Solodovchenko - Head of the sector of organizational and legal work and personnel of the Fund of social protection of the population of the Ministry of social protection of the Republic of Belarus; T.I. Dalidovich - main specialist of the sector of organizational and legal work and personnel of the Fund of social protection of the population of the Ministry of social protection of the Republic of Belarus;
of the Ministry of statistic and analysis of the Republic of Belarus: V.N. Nichiporovich - Minister of statistics and analysis of the Republic of Belarus; G.I. Gasuk - Deputy Minister of statistics and analysis of the Republic of Belarus; K.E. Kiselova - Deputy Head of the department of labour statistics of the Ministry of statistics and analysis of the Republic of Belarus; S.G. Melnikova - Deputy Head of the department of labour statistics of the Ministry of statistics and analysis of the Republic of Belarus
has considered in open Court session the case "On the conformity between the Constitution, laws of the Republic of Belarus and point 25 of the List of types of payments to which no dues on state social insurance are calculated approved by the Ministry of social protection and the Ministry of labour of 19 June 1996, sub-items 5.2, 5.3 of the Instruction on the procedure of collection and accounting of insurance dues to the Fund of social protection of the population of the Republic of Belarus approved by the Board of the Fund of social protection of the population of the Republic of Belarus of 12 April 1994, sections 9, 10, 11 of the Instruction on statistics of the size of the workers and wage approved by the Ministry of statistics and analysis of 19 December 1994".
The Court session was attended by: I.A. Mironichenko - Deputy Chairman of the Supreme Court of the Republic of Belarus; I.N. Zhdanovich - Deputy Chairman of the Supreme Economic Court of the Republic of Belarus; V.M. Valushko - Deputy Procurator-General of the Republic of Belarus; O.G. Sergeeva - Deputy Minister of justice of the Republic of Belarus.
The proceedings were brought by the Constitutional Court of 24 July 1998 on the proposal of the Supreme Economic Court of the Republic of Belarus on the grounds of Article 116 of the Constitution, 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.
Sub-items 5.2, 5.3 of the Instruction on the procedure of collection and accounting of insurance dues to the Fund of social protection of the Republic of Belarus approved by the Board of the Fund of social protection of the population of the Republic of Belarus of 12 April 1994 registrated in the Register of state registration of the enforceable enactments of the republican bodies of state government and the National Bank of 29 April 1994, registrated No. 341/12 (Bulletin of legal and normative information, 1994 No. 7); point 25 of the List of types of payments to which no dues on state social insurance are calculated approved by the Ministry of social protection of the Republic of Belarus and by the Ministry of labour of the Republic of Belarus of 19 June 1996, registrated in the Register of State registration of the enforceable enactments of the republican bodies of state government and the National Bank of 26 June 1996, registrated No. 1485/12 (Bulletin of legal and normative information, 1996, No. 8); sections 9, 10, 11 of the Instruction on statistics of the size of the workers and wage approved by the Ministry of statistics and analysis of the Republic of Belarus of 19 December 1994 in co-ordination with the Ministry of labour, Ministry of economic, Ministry of finance, the National Bank of the Republic of Belarus were subjects to examination.
The Supreme Economic Court in its proposal has pointed out that there are contradictions in sub-items 5.2, 5.3 of the Instruction on the procedure of collection and accounting of insurance dues to the Fund of social protection of the population of the Republic of Belarus similar to those contained in certain laws. In the Law "On pension security" as an object of imposition by insurance dues the fund of pay for work is indicated and in the Law "On the rates of obligatory insurance dues to the Fund of social protection of the population of the Ministry of social protection of the Republic of Belarus" - wage fund. According to the opinion of the Supreme Economic Court these notions are different.
The Supreme Economic Court has also emphasized that the Instruction on statistics of the size of workers and wage is not registrated in the Register of state registration of the Republic of Belarus, as it was envisaged by resolution of the Council of Ministers of the Republic of Belarus of 13 May 1993 No. 316 which approved the Provision on the procedure of state registration of the enforceable enactments of the ministries, state committees and departments which was effective at the moment of adoption the given Instruction. In this connection the Supreme Economic Court considers that the Instruction on statistics of the size of workers and wage is invalid and therefore the transfer of the provisions of the Instruction in question to the List of types of payments, to which no dues on state social insurance are calculated (point 25), is not based on the normative base.
Having heard Mrs T.S. Boiko - judge-speaker, representatives of the litigants, studied the materials of the case, analysed the provisions of the Constitution of the Republic of Belarus, laws and other enforceable enactments, the Constitutional Court emphasizes the following.
1. Under Article 1 of the Constitution the Republic of Belarus is a social state. Article 47 of the Constitution enshrines, in particular, that 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.
For the ensuring of social rights of the citizens of the Republic of Belarus fixed and guaranteed by the Constitution in the Republic under the resolution of the Supreme Council of the Republic of Belarus of 10 June 1993 on the basis of the Pension fund and the Fund of social insurance there was established the Fund of social protection of the Republic of Belarus (at present - the Fund of social protection of the population of the Ministry of social protection of the Republic of Belarus). The resolution in question has approved the Order of paying of insurance dues by employers, persons who are dealing with entrepreneurial activities and citizens to the Fund of social protection of the population of the Republic of Belarus (hereafter - the Order of paying insurance dues) which is currently effective.
Money resources of the Fund of social protection of the population of the Ministry of social protection of the Republic of Belarus (hereafter - the Fund of social protection) shall be formed on the whole at the expense of obligatory insurance dues. Obligatory insurance dues and taxes and levies are obligatory payments of monetary funds from payers in the rates specified in law. At the present time the rates of the given dues are established by the Law "On the rates of obligatory insurance dues to the fund of social protection of the population of the Ministry of social protection of the Republic of Belarus".
The analysis of the content of the norms of the procedure of registration of payers of obligatory insurance dues, the order and terms of their paying, responsibility which is applied to the payers of the dues signifies on the similarity of the dues with tax payments and their purpose character - with levies.
Money resources of the Fund of social protection are owned by the state and included in the financial and credit system of the Republic of Belarus. Under part two of Article 132 of the Constitution a unified fiscal, tax, credit and currency policy shall be pursued in the territory of the Republic of Belarus. In this connection the Constitutional Court considers that while establishing obligatory insurance dues the lawmaker shall secure the same approach as while regulating tax relations. Therefore, the determination of the most important elements of obligatory insurance dues, such as the circle of payers, object, composition of object, rates of payments, benefits, shall be carried out on the legislative level.
2. The Instruction on the procedure of collection and accounting of insurance dues to the Fund of social protection of the population of the Republic of Belarus (hereafter - the Instruction on the procedure of collection and accounting of insurance dues) has been approved by the Board of the Fund of social protection of the population of the Republic of Belarus. The right to approve the given Instruction in co-ordination with the ministries and departments concerned was granted by point 8 of the Order of paying of insurance dues.
The verifying sub-item 5.2 of the Instruction on the procedure of collection and accounting of insurance dues establishes that insurance dues shall be calculated on all types of payment for work from which under the Law "On pension security" the pension is calculated, as well as on the sums of author's fee paid for the members of creative unions and other creative workers who are not members of creative unions and rewards for executed work under the contract agreements and contracts of agency. The given sub-item of the Instruction on the procedure of collection and accounting of insurance dues determines that insurance shall be calculated on all types of pay for work from which under the Law "On pension security" the pension is calculated, as well as on the sums of author's fee paid for the members of creative unions and other creative workers who are not members of creative unions and rewards for executed work under the contract agreements and contracts of agency. The given sub-item of the Instruction on the procedure of collection and accounting of insurance dues practically repeats the provisions of point 3 of the Order of paying of insurance dues where the calculation of insurance dues on all types of pay for work is also envisaged and from which under the Law "On pension security" the pension is calculated, as well as on the sums of author's fee paid for the members of creative unions and other creative workers who are not members of creative unions and rewards for executed work under the contract agreements and contracts of agency.
The Constitutional Court pays attention to the divergence of the terms used in sub-item 5.2 of the Instruction on the procedure of collection and accounting of insurance dues and in the legislation on state social insurance for the determination of the objects of imposition of obligatory insurance payments. The term "all types of pay for work" is used in sub-item 5.2 of the Instruction which is under consideration. Enforceable enactments equally with "types of pay for work" contained terms "fund of pay for work", "wage", at present - "fund of wage", "earnings". The usage in legislation of different terms for determination of virtually the same objects leads in practice to the multivalued interpretation of the content of relevant provisions of the enforceable enactments. The Constitutional Court considers that enforceable enactments regulating the issues of establishment of obligatory insurance dues, their rates, the procedure of collection, calculation and paying shall contain uniform terminology.
Under part two of Article 7 of the Law "On the basis of state social insurance" and under circumstances of paying of insurance dues state social insurance is applied to entrepreneurs, workers who work under contract agreement, members of peasant (farm) economies, creative workers, foreigners and stateless persons who are working in the Republic of Belarus. That is after the adoption of the given norm the paying of insurance dues to the Fund of social protection for the specified category of payers has become voluntary.
Guided by Articles 7 and 137 of the Constitution, the Constitutional Court has come to the conclusion that sub-item 5.2 of the Instruction on the procedure of calculation and accounting of insurance dues under verification in regard to the obligatory calculation of insurance payments on the sums of author's fee paid for the members of creative unions and for the creative workers who are not members of creative unions, as well as remuneration for executed work under the contract agreements and contracts of agency is not in compliance with the norms of the Law "On the basis of the state social insurance", whereas at present state social insurance is applied to this category of payers only in instance of paying by them of insurance dues.
The Constitutional Court considers that such a position has become possible because the effective enforceable enactments are not reconsidered in due time in connection with the adoption of the act of more high legal force and are not being brought into line with it. In spite of relevant instructions contained in the transitional provisions of the Law "On the basis of state social insurance" the Order of paying of insurance dues, Instruction on the procedure of collection and pay of insurance dues had not been brought into line with this Law.
The Constitutional Court emphasizes that verifying sub-item 5.2 of the Instruction on the procedure of collection and accounting of insurance dues for the determination of all types of pay for work to which insurance dues are calculated refers to the Law "On pension security". The same norm is contained in point 3 of the Order of paying of insurance payments. Part 1 of Article 58 of the Law "On pension security" for determination of the types of payments which are included to the earnings refers in its turn to the effective rules of calculation of insurance dues. The Constitutional Court deems the presence of these mutual referable provisions is inadmissible in the legislation.
Sub-item 5.3 of the Instruction on the procedure of collection and accounting of insurance dues under verification establishes that insurance dues shall be calculated on all types of earnings (income) determined by the employer in question in accordance with the effective legislation without exemption of deductions and taxes from it. Moreover the resources of financing of the specified payments, items and types of documents (pay-sheets, personal accounts, etc.), documents under which there were settled up earnings (income) accounts and forms of payments (monetary, natural, securities, etc.) are of no concern.
Whereas the application of the provisions contained in sub-item 5.3 of the Instruction on the procedure of collection and accounting of insurance dues shall be carried out in accordance with the effective legislation, the Constitutional Court considers that there are no grounds to find this sub-item to be unconstitutional.
3. The verifying sections 9, 10, 11 of the Instruction on statistics of the size of the workers and wage under verification (hereafter - Instruction on statistics) the determination is given to the composition of the wage fund, wage in money and natural forms respectively.
The Law "On the rates of obligatory insurance dues to the Fund of social protection of the population of the Ministry of social protection of the Republic of Belarus" wage fund and earnings have been fixed as the objects of obligatory insurance dues, however the compositions of these objects have not been determined, as well as the issue on benefits on the objects in question has not been regulated, there is no fixation of which payments shall or shall not be inserted in the wage fund or in the earnings to which no insurance dues are calculated. The specified Law contains no instructions for relevant state bodies on regulation of the given issues in by-laws as, for example, it has been done in the laws on budget for 1997, 1998 concerning the object for imposition on emergency tax.
The Instruction on statistics is intended for the guidance while making accounting on work by enterprises, amalgamations, establishments, collective farms and by other organizations irrespective of their form of ownership. The given Instruction has been published in "Natsionalnaya economicheskaya gazeta" (1995, No. 3).
Instruction on statistics has been used for the determination of the composition of wage fund, wage in money and natural forms while calculating obligatory insurance dues to the Fund of social protection and while determining the composition of the wage for the taxation purposes. Thus resolution of the Government of the Republic of Belarus of 11 June 1996 No. 384 "On the measures of realization of the law of the Republic of Belarus "On the budget of the Republic of Belarus for 1996" established that in 1996 emergency tax shall be calculated of the wage fund, determining in accordance with the Instruction on statistics of the size of the population and of wage. Analogous references to the Instruction in question are contained in other resolutions of the Government - of 26 May 1997 No. 580 and of 27 February 1998 No. 310 which have been adopted on behalf of the legislative body.
The Constitutional Court considers that the composition of the objects for calculation of obligatory insurance dues (composition of wage fund, composition of earnings) shall also be determined by the lawmaker in the specified by him order.
At the same time the Constitutional Court emphasizes that the Instruction on statistics is not registered in the List of state registration of enforceable enactments of republican bodies of state government and the National Bank though it has all the features of an enforceable enactment of interdepartmental nature.
Article 14 of the Law "On the Cabinet of Ministers of the Republic of Belarus" established that enforceable enactments of the ministries and other central bodies of government of the Republic of Belarus adopted within their competence concerning enterprises, organizations and establishments of other form of ownership or of other subordination or citizens are binding if these enactments have been registered by the Ministry of justice of the Republic of Belarus. Analogous provision are contained in Article 12 of the effective Law "On the Council of Ministers of the Republic of Belarus and subordinated to it state bodies".
The Ministry on statistics and analysis within its competence and in accordance with the legislation shall make in the established procedure orders and instructions on the issues on statistics binding for all ministries, other central bodies of government, local executive and administrative bodies, as well as for the subjects of management in the territory of the Republic of Belarus (sub-point 7.2 of the Provision on the Ministry of statistics and analysis of the Republic of Belarus, approved by resolution of the Government of the Republic of Belarus of 18 January 1996 No. 46).
At the approval of the Instruction on statistics it was effective the Provision on the procedure of state registration of enforceable enactments of the ministries, state committees and departments approved by resolution of the Council of Ministers of the Republic of Belarus of 13 May 1993 No. 316 under which enforceable enactments of the ministries, state committees and departments concerning the rights, freedoms and obligations of the citizens or which are of the interdepartmental character irrespective of their validity (permanent and temporary) and the character of the information they contain were subjects to state registration. Moreover under point 10 of the aforementioned Provision enforceable enactments of the ministries, state committees and departments had come into force from the day of their state registration, if an enforceable enactment itself does not envisage other term.
The analogous requirements are contained in effective resolution of the Council of Ministers of the Republic of Belarus of 1 April 1998 No. 512 "On state registration of enforceable enactments of republican bodies of state government and the National Bank".
With aforesaid taken into account the Constitutional Court considers that the Instruction on statistics of the size of workers and wage is subject to state registration.
4. The verifying point 25 of the List of types of payments to which the dues on state social insurance are not calculated (hereafter - the List) establishes that the dues of state social insurance shall not be calculated to the sums of material assistance for the workers which are paying out from the means of an employer, to the cost of free or privilege vouchers (vouchers for treatment and meals at a sanatorium) and to other payments for the purpose of social protection of the workers on the main working place within the limits which do not exceed in the aggregate 15 minimum wages annually (for each worker at the moment of calculation).
The specified List was approved at 24 of June 1994 by the resolution of the state committee of the Republic of Belarus on labour and social protection of population and the Fund of social protection of population of the Republic of Belarus. At present the List is effective in new wording of 19 of June 1996. The bodies which took part in the approval of the List shall ground their rights to its adoption on the references to point 8 of the Order of payment of insurance dues which granted the Fund of social protection the right to approve the Instruction on the procedure of collection and accounting of insurance dues and references to sub-item 5.4 of the given Instruction envisaged that the List of types of payments to which insurance dues are not calculated shall be approved by the State committee on labour of the Republic of Belarus.
Having analyzed the norms of the Order of payment of insurance dues, laws "On the basis of state social insurance", "On the rates of obligatory insurance dues to the Fund of social protection of population" of the Ministry of social protection of the Republic of Belarus and other enforceable enactments, the Constitutional Court ruled that the Board of the Fund of social protection had no right to determine the types of payment to which insurance dues are not calculated, as well no right to delegate these powers to the State committee on labour of the Republic of Belarus.
On the basis of the results of the verification of the constitutionality of sub-items 5.2, 5.3 of the Instruction on the procedure of collection and accounting of insurance dues to the Fund of social protection of population of the Republic of Belarus, point 25 of the List of types of payments to which the dues on state social insurance are not calculated, sections 9, 10, 11 of the Instruction on statistics of the size of workers and wage, the Constitutional Court considers that whereas the issues of the composition of the objects of insurance dues (privileges on the object) involve the constitutional rights of the citizens such as the right of property (Articles 15 and 44 of the Constitution), the right to social security (Article 47 of the Constitution) and constitutional duty of the citizens to take part in funding of public expenditure through the payment of state taxes, dues and other payments (Article 56 of the Constitution), then the regulation of these issues shall be carried out on the basis of legislative enactments, not on the basis of the acts of ministries and other republican bodies of state government.
With the real possibilities of preparation and adoption of relevant enforceable enactments and in order to exclude the gaps in legal regulation, the Constitutional Court under Article 9 of the Law "On the Constitutional Court of the Republic of Belarus" considers it necessary to determine the term during which the examined norms which were found to be unconstitutional and are valid so that the lawmaker and other bodies of state power within their competence could bring these norms into line with the present Judgment.
On the ground of the abovesaid and guided by Article 116 of the Constitution, Articles 5, 6, 34, 38, 40 and 43 of the Law "On the Constitutional Court of the Republic of Belarus" the Constitutional Court
RULED:
1. To find sub-item 5.2 of the Instruction on the procedure of collection and accounting of insurance dues to the Fund of social protection of population of the Republic of Belarus to be at variance with the Constitution and laws of the Republic of Belarus with respect to the obligatory calculation of insurance dues to the sums of author's fee paid for the members of creative unions other creative workers who are not members of creative unions and rewards for executed work under the contract agreements and commission contracts whereas this part of sub-item envisages the obligatory calculation of insurance dues for creative workers and persons who are not working under the contract agreements and commission contracts, as under part two of Article 7 of the Law "On the basis of state social insurance" state social insurance is extended to this category of payers in case of their paying of insurance dues only.
To consider sub-item 5.2 of the Instruction on the procedure of collection and accounting of insurance dues to the Fund of social protection of the Republic of Belarus in the specified part to be invalid from the day of enactment of the Law "On the basis of state social insurance" i.e. since 1 April 1995.
2. To find sub-item 5.5 of the Instruction on the procedure of collection and accounting of insurance dues to the Fund of social protection of population of the Republic of Belarus to be in compliance with the Constitution and laws of the Republic of Belarus.
3. To find point 25 of the List of types of payments to which no dues on state social insurance are calculated to be at variance with the Constitution and laws of the Republic of Belarus on the ground that the regulation of the contained in it issues has not been related in prescribed manner to the competence of the ministries and other republican bodies of state government.
Having regard that the budget of the Fund of social protection of population of the Ministry of social protection of the Republic of Belarus shall be approved by the Government of the Republic of Belarus for the calendar year, as a rule, at the end of current year, to consider point 25 of the List of types of payment to which no dues on state social insurance are calculated to be invalid since 1 January 1999.
4. To find sections 9, 10, 11 of the Instruction on statistics of the size of workers and wage to be at variance with the Constitution and laws of the Republic of Belarus, as far as the Instruction had not passed state registration and thereby it was violated the established in legislation the order of coming into effect of the enforceable enactments of the republican bodies of state government.
Sections 9, 10, 11 of the Instruction on statistics of the size of workers and wage for determination of the composition of the wage fund, wage in money and natural forms while calculating obligatory insurance dues to the Fund of social protection of population of the Ministry of social protection of the Republic of Belarus are not subjects to application since 1 January 1999.
5. To propose the National Assembly of the Republic of Belarus till 31 December 1998 to regularize the legislation regulating state social insurance the present Judgment taking into account.
6. To publish the present Judgment in ten days term from the day of passing in "Narodnaya gazeta" and "Zvyazda", as well as in "Vedamasti Natsiyanalnaya skhodu Respubliki Belarus".
7. The present Judgment shall come into force from the day of proclamation, is final and subject to no appeal or protest.
Presiding Officer —
Chairman of the
of the