27 November 1997 № J-60/97
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 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, G.B. Shishko
with the participation of representatives:
of the House of Representatives of the National Assembly of the Republic of Belarus: N.F. Kotenko - main specialist of the department on securing of the activities of the Commission on national security of the House of Representatives of the National Assembly of the Republic of Belarus, O.M. Lapkovsky - Deputy Chairman of the Commission on labour, social issues, health protection, physical training and sport of the House of Representatives of the National Assembly of the Republic of Belarus, Z.I. Pobyarzhin - Deputy Chairman of the Commission on labour, social issues, health protection, physical training and sport of the House of Representatives of the National Assembly of the Republic of Belarus, S.G. Shpakov - Deputy Chairman of the Commission on national security of the House of Representatives of the National Assembly of the Republic of Belarus;
of the Council of the Republic of the National Assembly the Republic of Belarus V.V. Bury - Head of the department of civil, social and economic legislation of law and expert management of the Secretariat of the Council of the Republic of the National Assembly of the Republic of Belarus;
of the specialists: N.V. Bozhko - Head of legal normative service of the management of law security and international co-operation of the Staff of the Minister of internal affairs of the Republic of Belarus, L.I. Marchenko - Deputy Head of the management of pensions and allowances of the Ministry of social defence of the Republic of Belarus, A.G. Chislov - senior officer of the section of legislation of the legal management of the Ministry of defence of the Republic of Belarus
has considered in open Court session the case "On interpretation of the Judgment of the Constitutional Court of the Republic of Belarus of 28 May 1996 "On the conformity between the Constitution and Article 88 of the Law of the Republic of Belarus "On pension security", Article 56 of the Law of the Republic of Belarus "On pension security of military personnel, persons of commanding staff and rank and file of the bodies of internal affairs".
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;
A.V. Ivanovsky - Deputy Procurator-General of the Republic of Belarus.
The Constitutional Court of the Republic of Belarus in its Judgment of 28 May 1996 found to be unconstitutional Article 88 of the Law of the Republic of Belarus "On pension security" and Article 56 of the Law of the Republic of Belarus "On pension security of military personnel, persons of commanding staff and rank and file of the bodies of internal affairs" in part of suspension of payment of labour pension for the period of confinement of a pensioner.
The Supreme Council and bodies of the executive were proposed to bring the laws and other enforceable enactments into line with the Judgment in question.
In connection with the multivalued understanding of the Judgment of the Court of 28 May 1996 the Constitutional Court of 13 October 1997 has brought the proceedings "On interpretation of the Judgment of the Constitutional Court of the Republic of Belarus of 28 May 1996 "On the conformity between the Constitution and Article 88 of the Law of the Republic of Belarus "On pension security", Article 56 of the Law of the Republic of Belarus "On pension security of military personnel, persons of commanding staff and rank and file of the bodies of internal affairs".
Having heard the representatives of the chambers of the Parliament of the Republic of Belarus, specialists, examined the materials of the case the Constitutional Court emphasizes the following.
The Judgment of the Constitutional Court of 28 May 1996 pointed out, in particular, that under Article 47 of the Constitution a citizen of the Republic of Belarus shall be guaranteed the right to social security in old age, in the event of illness, loss of fitness for work and loss of a bread-winner and in other instances specified in law. Article 22 of the Constitution stipulates that all shall be equal before the law and entitled without discrimination to equal protection of their rights and legitimate interests.
The Court emphasized that under Article 22 of the Universal Declaration of Human Rights everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality. Under Article 9 of the International Covenant on Civil and Political Rights ratified by the Republic of Belarus the States Parties to the present Covenant recognize the right of everyone to social security, including social insurance.
In this connection the Court emphasizes that the established by the legislation the right of citizens to get pensions which is depended on their labour and other socially useful activities, its content, duration and other factors exerting influence on the conditions and norms of pension security is the most important element of social security.
Article 4 of the Law "On pension security" envisages the labour pensions (old-age, disability pensions, pension in the event of loss of a bread-winner, long-service pension and pension for special services to the Republic) and social pensions.
The types of pension security of military personnel, persons of commanding staff and rank and file of the bodies of internal affairs are determined by Article 1 of the Law "On pension security of military personnel, persons of commanding staff and rank and file of the bodies of internal affairs".
The right to different types of pensions means also different character of the obligations of the state before those who pretend to get them.
The Correctional and Labour Code of the Republic of Belarus, the Instruction on the pay for work of the convicted, of persons who are in the corrective and labour establishments of the Ministry of internal affairs of the Republic of Belarus envisage the procedure of money stopped from wages of working convicted persons for the reimbursement of their maintenance costs, as well as payments on the writs of execution and other documents of execution.
However, with respect to the pensioners who are in the places of confinement and who are not engaged in labour activities the issues of the compensation of the means on their maintenance, as well as other payments are not regulated by the legislation. At the present moment the means assigned to the pay of pensions for the persons in question are reserved in the Fund of social security of population of the Ministry for social security of the Republic of Belarus and their maintenance in the places of confinement is carried out at the expense of budgetary funds.
The Constitutional Court emphasizes that social pensions are not directly connected with labour and other socially useful activities, shall be granted for the citizens who have no right to labour pension and therefore, the payment of social pension may have its peculiarities.
Based on the aforesaid and guided by Article 41 of the Law "On the Constitutional Court of the Republic of Belarus" and Article 77 of the Rules of Procedure of the Constitutional Court, the Court
EXPOUNDS:
While settling the issue of payment of labour pensions granted under the Law "On pension security" for the persons who are in the places of confinement, there is no exclusion of the right of the legislative body, other state bodies within their competence to envisage the procedure when at the expense of these pensions there may be compensated the maintenance of the costs for the persons in corrective and labour establishments, as well as reimbursed the damage caused by the offence and carried out payments on other obligations. The issue of pay of the pensions granted in accordance with the Law "On pension security of military personnel, persons of commanding staff and rank and file of the bodies of internal affairs" for the persons who are in the places of confinement may be settled in the same way. In case the maintenance costs of a pensioner who is in the places of confinement are outrun the rates of the granted pension, the legislation may determine the minimum pension reserved for the pensioner.
The issues of pay of social pensions for the persons who are in the places of confinement may be solved with the designated purpose of these pensions and the possibilities of the state taken into account.
The present Judgment shall be published in ten days period from the date of its adoption in "Narodnaya gazeta" and "Zvyazda", as well as in "Vedamastsi Natsiyanalnaga skhodu Respubliki Belarus".
Presiding Officer —
Chairman of the
of the