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CONCLUSION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS

of October 27, 1995 No. Z-18/95

About compliance of the Constitution and to the laws of the Republic of Belarus of the Presidential decree of the Republic of Belarus of September 1, 1995 No. 350 "About some questions of regulation of labor activity and provision of pensions of citizens"

Constitutional court of the Republic of Belarus as a part of the chairman - the chairman of the Constitutional Court Tikhini V. G., the vice-chairman of Court Fadeyev V. A., Vasilevich G. A. judges., Kenik K. I., Pastukhova M. I., Podgrusha V. V., Seredy N. M., Tishkevich S. I., Filipchik R. I.

with participation of representatives

The chairman of the Supreme Council of the Republic of Belarus which made the offer: Bulakhova D. P. - the Commission chairman of the Supreme Council of the Republic of Belarus by the legislation; Yurkevich G. I. - chief specialist of Legal management of the Secretariat of the Supreme Council of the Republic of Belarus;

President of the Republic of Belarus: Maryskina A. V. - chief of state legal department of Administration of the President of the Republic of Belarus; Sosnova A. V. - Minister of work of the Republic of Belarus;

the expert - Kuryleva O. S., Candidate of Law Sciences, the associate professor of civil process and labor right of law department of the Belarusian state university

N350 "About Some Questions of Regulation of Labour Activity and Provision of Pensions of Citizens" considered in open session case "About compliance of the Constitution and to the laws of the Republic of Belarus of the Presidential decree of the Republic of Belarus of September 1, 1995.

Took part in judicial session: Dolgalev V. B. is the deputy prime minister of the Republic of Belarus, Ptashnik V. I. - Acting First Deputy Chairman of the Supreme Court of the Republic of Belarus, Kiselyov A. I. - the First Deputy Chairman of Supreme Economic Court of the Republic of Belarus, Yurevich V. B. is the deputy attorney general of the Republic of Belarus, Bochkova G. V. is the deputy minister of justice of the Republic of Belarus.

Proceeedings are initiated on September 11, 1995 according to the proposal of the Chairman of the Supreme Council of the Republic of Belarus based on part one of article 127 of the Constitution, article 5 of the Law "About the Constitutional Court of the Republic of Belarus".

Check the Presidential decree of the Republic of Belarus of September 1, 1995 was subject to N350 "About Some Questions of Regulation of Labour Activity and Provision of Pensions of Citizens" (Zbor of the decree ў Prezidenta of i pastano ў Kabineta Ministra ў Respubliki Belarus, 1995, N 25, the Art. 611) with amendments and changes made by Presidential decrees of the Republic of Belarus of October 11, 1995 N419 and of October 20, 1995 N437.

In Item 1 of the Decree of September 1, 1995 N350 in initial edition heads of the ministries and other central governing bodies, local executive committees, companies, associations, organizations and organizations irrespective of patterns of ownership were recommended to renew the employment contracts signed sine die with the workers who reached generally established retirement age or receiving pension (except receivers of pensions in connection with disability or loss of the supporter before achievement of age by them: men - 60 years, women - 55 years), on terminal employment contracts or to transfer these persons to contractual form of hiring. It was provided that in case of refusal the worker from renewal of the employment contract or transfer into contractual form of hiring employment relationships between the employer and the worker stop.

According to Item 2 of the Decree the operating payment procedure of the granted pension remained in complete size behind separate categories of the working pensioners.

Item 3 of the Decree determined that to the working pensioners and persons who are in resignation except called in Item 2 of the Decree, and also to persons who are engaged in business activity, payment to the granted pension is made in the amount of 50 percent.

By item 4 of the Decree it is suspended number of legal acts of the Republic of Belarus in the part concerning provision of pension (material) providing, and suspension extended to the period which passed since enforcement of these legal acts.

This Decree was enacted from the moment of its signing, i.e. since September 1, 1995.

In the offer in the Constitutional Court on check of compliance of the Presidential decree of the Republic of Belarus of September 1, 1995 the Chairman of the Supreme Council М.И.Гриб specified to N350 of the Constitution and the laws that the Constitution and the laws of the Republic of Belarus do not provide such powers of the President as cancellation, change and suspension of operation of the laws and that, having accepted this Decree, the President violated requirements of Articles 6, of 7, of 79, of 83, of 99, 100 Constitutions of the Republic of Belarus.

The presidential decree of October 11, 1995 N419 to the Decree of September 1, 1995 N350 made additions according to which the list of persons having the right to pension in complete size is expanded. Item 1 of the Decree of September 1, 1995 is stated to N437 by the presidential decree of October 20, 1995 in the following edition: "To employers till January 1, 1996 to sign contracts with earlier accepted workers who reached retirement age (the man - 60 years, the woman - 55 years) and having the right to full pension, and also with the persons which did not reach the specified age, but receiving work pensions (except disability pensions and on the occasion of loss of the supporter), monthly contents of the judges who retired or monthly allowances of the cabinet ministers of the Republic of Belarus who retired.

Further contracts are signed with the specified employee categories in case of their hiring or in case of the circumstances provided in part one of this Item.

The procedure and conditions of the conclusion of contracts, and also specific minimum compensation for deterioration in legal status of the worker in connection with the conclusion of the contract are established by the Cabinet of Ministers of the Republic of Belarus.

In case of refusal of the worker to sign the contract the employment contract stops for cause of failure of the worker from further work in connection with change of essential working conditions (Item 6 parts one of Article 29 of the Labor code of the Republic of Belarus)".

N437 Items 2 and 3 of the Decree of September 1, 1995 N350 are acknowledged as the decree of October 20, 1995 voided since November 1, 1995, and the item 4 is cancelled. The decree became effective from the date of its signing.

Having heard agents of the parties, the expert opinion, having studied case papers, having analyzed regulations of the Constitution, the laws, international legal and other regulations, the Constitutional Court came to conclusion that separate provisions of the Presidential decree of the Republic of Belarus of September 1, 1995 of N350 "About Some Questions of Regulation of Labour Activity and Provision of Pensions of Citizens" with the subsequent amendments and changes do not correspond to the Constitution and the Laws of the Republic of Belarus proceeding from the following.

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