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The decision of the Constitutional Court of the Russian Federation from March, 18th, 2004 N 6 - P on the case of check of constitutionality of a part of second article 6 of the Law of the Russian Federation About provision of pensions of the persons passing military service, service in law-enforcement bodies, the State fire service, bodies on control over a turn of narcotics and psychotropic substances, establishments and bodies criminally - executive system, and their families in connection with inquiries of the Sovereign Court of the Russian Federation and Petty-bourgeois district court of a city of Moscow

the Name of the Russian Federation

the Constitutional Court of the Russian Federation as a part of chairm N. V.Seleznev, judges M.V.Baglaja, Ju. M.Danilov, L. M.Zharkovoj, G.A.Zhilin, V.D.Zorkina, S. M.Kazantsev, M.I.Kleandrova, the Island With. Hohrjakovoj,

with participation of the representative of the Sovereign Court of the Russian Federation - judges of the Sovereign Court of the Russian Federation V.I.Nechaeva, representatives of the State Duma - the constant representative of the State Duma in the Constitutional Court of the Russian Federation of E. B.Mizulinoj and the deputy of the State Duma of Ampere-second. Kulikova, the plenipotentiary of the Federation Council in the Constitutional Court of the Russian Federation of Ju.A.Sharandina and the plenipotentiary of the President of the Russian Federation in the Constitutional Court of the Russian Federation of M.A.Mitjukova, being guided by article 125 (point and parts 2 and a part 4) Constitutions of the Russian Federation, the subparagraph and point 1 and point 3 of a part of the first, parts of third and fourth article 3, articles 36, 74, 84, 85, 86, 101, 102 and 104 Federal constitutional laws About the Constitutional Court of the Russian Federation

has considered in a public meeting case about check of constitutionality of a part of second article 6 of the Law of the Russian Federation About provision of pensions of the persons passing military service, service in law-enforcement bodies, the State fire service, bodies on control over a turn of narcotics and psychotropic substances, establishments and bodies criminally - executive system, and their families .

the Occasion to a legal investigation were inquiries of the Sovereign Court of the Russian Federation and Petty-bourgeois district court of a city of Moscow. The basis to a legal investigation was the found out uncertainty of a question on, a leah corresponds to the Constitution of the Russian Federation a statute challenged in them.

Considering that both inquiries concern the same subject, the Constitutional Court of the Russian Federation, being guided by article 48 of the Federal constitutional law About the Constitutional Court of the Russian Federation Has connected affairs by these inquiries in one manufacture.

Having heard the message of the judge - lecturer O.S.Hohrjakovoj, an explanation of representatives of the parties, performance of the representatives invited in session: from the Ministry of Defence of the Russian Federation - M.Ja.Konovalova, from Federal Agency of security of the Russian Federation - M.R.Charyeva, from the State customs committee of the Russian Federation - A.A.Naumov, having investigated the presented documents and other materials, the Constitutional Court of the Russian Federation

has established:

1. According to a part of second article 6 of the Law of the Russian Federation from February, 12th, 1993 About provision of pensions of the persons passing military service, service in law-enforcement bodies, the State fire service, bodies on control over a turn of narcotics and psychotropic substances, establishments and bodies criminally - executive system, and their families (with the subsequent changes and additions) to pensioners from among the persons specified in article 1 of the given Law, at their receipt on military service or on service in law-enforcement bodies, in the State fire service, in bodies on control over a turn of narcotics and psychotropic substances or establishments and bodies criminally - executive system (including in any other states) payment of the appointed pensions for the period of service stops.

With inquiries about check of constitutionality of the named norm as article 125 (point and Parts 2) Constitutions of the Russian Federation the Sovereign Court of the Russian Federation was converted into the Constitutional Court of the Russian Federation and as article 125 (a part 4) Constitutions of the Russian Federation - Petty-bourgeois district court of a city of Moscow in which manufacture there are affairs under claims of some citizens to management of Federal Agency of security of the Russian Federation on the city of Moscow and Moscow Region about collecting of the long-service pension appointed it on military service. Referring to challenged norm the pension department of management has suspended to claimants payment of pensions in connection with their receipt on service in bodies of tax police.

Applicants specify that unlike article 57 of the same Law according to which to the pensioners gone to work or having the income of employment by enterprise activity, the pensions appointed according to the given Law, are paid completely, a part the second articles 6 provides stay of payment of pension at receipt of the pensioner on military or other service specified in it; thereby the right of citizens to reception of the appointed pension depending on a source of their additional income that will not be co-ordinated with positions of articles 19 (a part 2), 39 (a part 1) and 55 (parts 2 and 3) Constitutions of the Russian Federation is limited.

Besides, according to applicants, in infringement of requirements of article 19 (a part 1) Constitutions of the Russian Federation guaranteeing equality of all before the law and court, pensioners from among the persons specified in article 1 of the Law of the Russian Federation About provision of pensions of the persons passing military service, service in law-enforcement bodies, the State fire service, bodies on control over a turn of narcotics and psychotropic substances, establishments and bodies criminally - executive system, and their families at returning to service appear in unequal position in comparison with other persons on whom its action also extends. In particular, in spite of the fact that provision of pensions of employees of tax police also is made on norms and in the order established by the named Law, its article 6, the Law of the Russian Federation About federal bodies of tax police similar restriction on payment of the appointed pension for them it is not provided; Is not present in the federal legislation and direct instructions on necessity of stay of payment of a long-service pension in case of receipt of the pensioners receiving pensions in the area of the Ministry of Defence of the Russian Federation, the Ministry of Internal Affairs of the Russian Federation and Federal Agency of security of the Russian Federation, on service in bodies of tax police.

Applicants also assert that the challenged norm puts pensioners from among the persons passing military service, service in law-enforcement bodies, the State fire service, bodies on control over a turn of narcotics and psychotropic substances, establishments and bodies criminally - executive system, in unequal position and with the pensioners receiving labour pensions on the basis of the Federal law from December, 17th, 2001 About labour pensions in the Russian Federation As payment of labour pension, including to working pensioners, is made in the established size without any restrictions; meanwhile the long-service pension inherently also is labour pension, and realisation by the citizen of a constitutional law on free work (article 37, a part 1, Constitutions of the Russian Federation) should not form the basis for restriction of its constitutional law on provision of pensions.

the Arguments resulted by applicants in a substantiation of the position, bear that constitutionality of a part of second article 6 of the Law of the Russian Federation About provision of pensions of the persons passing military service, service in law-enforcement bodies, the State fire service, bodies on control over a turn of narcotics and psychotropic substances, establishments and bodies criminally - executive system, and their families It is challenged by them with reference to stay of payment of the long-service pensions appointed according to the given Law, and, hence, only in this part - owing to requirements of article 74 of the Federal constitutional law About the Constitutional Court of the Russian Federation - the norm containing in it is a subject of consideration of the Constitutional Court of the Russian Federation on the present business.

2. According to the Constitution of the Russian Federation in the Russian Federation as the social state which policy is directed on creation of the conditions providing worthy life and free development of the person, work and health of people is protected, the state pensions, grants and other guarantees of social protection are established; to everyone social security on age, in case of illness, physical inability, loss of the supporter, for education of children and in other cases established by the law (articles 7 and 39, a part 1) is guaranteed.

the List of cases (social risks) with which the Constitution of the Russian Federation connects the right to social security, is not settling. Carrying an establishment of such cases to sphere of regulation by the law, the Constitution of the Russian Federation thereby confirms a state duty to guarantee to citizens social security at approach not only named in its article 39, but also other social risks recognised as the legislator as the basis for its granting.

the Constitutional law on social security includes also the right to pension reception in the cases defined by the law and the sizes. Thus the Constitution of the Russian Federation directly does not provide concrete conditions and an order of granting of pensions, - the state pensions and social benefits, according to its article 39 (a part 2), are established by the law.

Fixing in the law legal grounds of purpose of pensions, the sizes of pensions, an order of their calculation and payment, the federal legislator has the right to define as the general rules of purpose and payment of pensions, and to establish features (condition) of buying reception of pensions by separate categories of persons. However such differentiation in legal regulation of provision of pensions should be carried out by the legislator with observance of the Constitution of the Russian Federation, including the principle of equality of all guaranteed by its article 19 before the law and court and equalities of the rights and freedom of the person and the citizen which extends not only on Constitutions of the Russian Federation directly mentioned in the text of the right and freedom, but also on other rights connected with them got on the basis of the law.

3. Provision of pensions of the citizens passing military service as officers, ensigns, warrant officers or military service under the contract as soldiers, sailors, sergeants and foremen in Armed forces of the Russian Federation, other armies, military (special) formations and the bodies which are carrying out functions on maintenance of defence of the country and security of the state, created according to the legislation of the Russian Federation, persons of ordinary and commanding structure of law-enforcement bodies, the State fire service, public prosecutor`s workers, employees of customs bodies of the Russian Federation, employees of tax police, bodies on control over a turn of narcotics and psychotropic substances, employees of establishments and bodies criminally - executive system (further - persons, Passing military and law-enforcement service) it is made now on the basis of special laws - the Federal law from December, 15th, 2001 About the state provision of pensions in the Russian Federation and the Law of the Russian Federation About provision of pensions of the persons passing military service, service in law-enforcement bodies, the State fire service, bodies on control over a turn of narcotics and psychotropic substances, establishments and bodies criminally - executive system, and their families which establish kinds of pensions, the conditions defining the right to their reception, the sizes of pensions, purpose and payment rules and provide that financing of pensions is carried out at the expense of means of the federal budget.

Duties of military service and service in law enforcement bodies are connected with performance of specific problems of defence of the country and law and order protection in the conditions interfaced to risk for life and health, the raised physical and emotional loadings, any adverse effect of other factors. The persons who have selected with the professional work military service, service in law enforcement bodies, should correspond its medical and is professional - to psychological requirements, to have necessary physical and vocational training. Special character of such service causes not only a presentation of increased requirements to persons supposed to it and an establishment in this connection legislative restrictions of their rights and freedom (including age limit of abiding on service), but also predetermines a state duty - owing to articles 1 (a part 1), 2, 7, 37 (parts 1 and 3), 39 (parts 1 and 2), 41 (a part 1), 45 (a part 1), 59 and 71 (points in m t ) Constitutions of the Russian Federation - to guarantee it the raised social protection, including corresponding to their special status and character of service provision of pensions.

Realizing the given constitutional duty of the state, the federal legislator has established for the persons drawing military duty and service in law enforcement bodies, additional guarantees and privileges on provision of pensions, in particular the right to long-service pension reception (article 5 of the considered Law, article 4 and 5 Federal laws About the state provision of pensions in the Russian Federation ).

the Long-service pension, according to article 13 of the considered Law, is appointed irrespective of age at presence at date of dismissal from service of a period of service on military and (or) law-enforcement service of 20 years and more (point and ) ; At the same time, in an exception of the general rule, such pension can be appointed and to the persons who do not have a full period of service if they are dismissed from service in connection with achievement of age limit of abiding on service, either on a state of health, or in connection with organizational - regular actions, have reached at date of dismissal 45 - summer age and have the general seniority not less than 25 calendar years of which not less than 12 years and six months the military service and (or) law-enforcement service (makes point ) .

the Long-service pension is given, as it follows from article 2 of the Federal law About the state provision of pensions in the Russian Federation with a view of indemnification to citizens of the earnings (income) lost in connection with the termination by them of service at achievement of a period of service established by the law. With reference to the persons passing military and law-enforcement service, purpose of a long-service pension irrespective of achievement of generally established pension age it urged to create, besides, conditions for their adaptation to civil life, to contribute in transition in other spheres of employment, without supposing thus essential decrease in a standard of living in connection with change of a kind of activity and a trade.

the Length of service, representing itself as an independent legal ground of purpose of pension to the persons passing military and law-enforcement service, in character is spetsialnym the seniority got in the course of service. Achievement of pension of a period of service demanded for purpose releases from necessity of continuation of service, but does not attract a duty to stop it. As it is underlined in the Decision of the Constitutional Court of the Russian Federation from June, 6th, 1995 on the case of check of constitutionality of paragraph 2 of a part of seventh article 19 of the Law of RSFSR About militia dismissal in connection with presence of the period of service granting the right to pension, is a side benefit established taking into account specificity of service and reflecting socially defensible legal differentiation.

Thus, the long-service pension - in system of operating standard legal regulation of provision of pensions - is the state guarantee of material maintenance of the persons passing military and (or) law-enforcement service, maintenance of a corresponding material prosperity, their social status at ostavlenii services at will of the citizen or owing to the objective circumstances interfering its continuation, including in cases when the citizen any more does not respond those increased requirements which are shown to the persons passing corresponding service.

4. According to a part of first article 6 of the considered Law to the persons specified in its article 1, having the right to provision of pensions, pensions are appointed and paid after their dismissal from service. On sense of the given norm in its interrelations with positions of article 13, a part of first article 14 and article 53 of the same Law, dismissal with service is a necessary condition as long-service pension purposes, and payment of the appointed pension. Concretising this condition, a part the second articles 6 of the considered Law provides that payment of the appointed pension stops, if the pensioner enlists again or on service in law-enforcement bodies, in the State fire service, in bodies on control over a turn of narcotics and psychotropic substances, or establishments and bodies criminally - executive system.

Hence, unlike the right to reception of the labour old-age pension, which realisation the legislator does not connect with that, the citizen continues the labour activity or not (this pension is appointed and paid in the full size, including in work), the right to long-service pension reception can be realised the citizens passing military and (or) law-enforcement service, only under a condition ostavlenija them of corresponding service with which account the given pension is appointed.

Giving to the persons passing military and (or) law-enforcement service, the right to reception of a long-service pension at the expense of means of the federal budget irrespective of age at the termination of service and simultaneously fixing a rule about stay of payment of this pension at their returning to military or law-enforcement service, the federal legislator started with specificity and character of such service, and also pursued the aim not only to guarantee to the specified persons corresponding material maintenance in case of need to leave service (as a rule, higher, than at the persons receiving labour old-age pensions on system obligatory pensionogo of insurance) but also to stimulate their transition in other spheres of employment to contribute in timely rotation of shots on military and law-enforcement service.

Such regulation cannot be regarded as not compatible to the principle of equality guaranteed by article 19 of the Constitution of the Russian Federation. The given constitutional principle as marked the Constitutional Court of the Russian Federation in the decisions, in particular in the Decision from December, 27th, 1999 on the case of check of constitutionality of point 3 of article 20 of the Federal law About the higher and poslevuzovskom vocational training does not interfere with the legislator at realisation of legal regulation to establish distinctions in legal status of the persons belonging to different in conditions and a kind of activity to categories, including to enter the special rules, realisations of the labour law concerning conditions and the rights in the field of provision of pensions if these distinctions are objectively justified, proved and correspond konstitutsionno to the significant purposes and requirements.

the Considered Law provides to the persons passing military and (or) law-enforcement service and having the right to a long-service pension, equal legal conditions of realisation of the granted right - according to a part of its first article 6, articles 53 and to 57 all these persons at the service termination guarantee purpose of a long-service pension from the date of dismissal from service, but not earlier than day to which the monetary contentment is paid at dismissal, and also its payment in the full size irrespective of presence at the pensioner of earnings or other income (except for extra charges to the pension, provided for idle pensioners).

the Pensioners who come back on military or law-enforcement service and have again got the status of the military man (law enforcement officer), also are in equal position - a monetary contentment paid to it, other kinds of maintenance are established including proceeding from a period of service available for them on military and (or) law-enforcement service, and the increase in the size of a relying monetary contentment provided taking into account a period of service in a certain measure compensates stay of payment of a long-service pension. In particular, according to the Federal law About the status of military men to the military men passing military service under the contract, the extra charge is monthly paid for a period of service to icon settings of the monetary maintenance which size increases in process of increase in a period of service - it makes 70 % of the icon setting of the monetary maintenance at a period of service of 25 years and more (article 13 point 6). In case of service continuation the corresponding period also is subject to offset in a length of service, and at the subsequent dismissal pension payment renews proceeding from that period of service which they have got at date of last dismissal.

Operating legal regulation of material maintenance of the persons who have left from military service or service in law enforcement bodies, at achievement of a length of service leaves basically on their discretion the question decision, to continue service (including anew arriving on it under the contract after dismissal) or, having left on reaching a length of service and the contract expiry of the term, to go to work, be engaged in other activity which has been not connected with military or law-enforcement service.

As at the citizens having necessary for purpose of pension a period of service on military and (or) law-enforcement service, equality of possibilities in a choice is saved (to continue service or to leave it and to receive pension relying by it), the various legal consequences connected with such free choice caused by differentiation in rules of payment of a long-service pension to persons, dropped out from military service or services in law enforcement bodies, and again arrived (come back) on service after dismissal, in a part, concerning the rights to reception of the appointed long-service pension, cannot be considered as breaking the equality guaranteed by article 19 of the Constitution of the Russian Federation, and limiting the right to the work freedom, fixed by article 37 (a part 1) Constitutions of the Russian Federation. Distinctions in the conditions of realisation by citizens of the right to reception of a labour old-age pension and a long-service pension are not in this case discrimination in character and caused by specificity of military both law-enforcement service and the special status of persons, its bearing.

Granting to the persons passing military and (or) law-enforcement service, the rights to receive a long-service pension which is appointed and paid to them irrespective of age under condition of the service termination, is directed including on protection against risk of loss or decrease in professional work capacity as a result of long service; the long-service pension is appointed without restriction by any term and paid in the full size in any other labour activity, as well as to all other pensioners. Owing to it challenged position cannot be considered and as a limiting constitutional law of such persons on social security (article 39, a part 1, Constitutions of the Russian Federation).

5. The considered Law, as appears from its name and the maintenance, defines conditions and an order of provision of pensions of the persons passing military service, service in law-enforcement bodies, the State fire service, bodies on control over a turn of narcotics and psychotropic substances, establishments and bodies criminally - executive system, and these categories of citizens - on literal sense of article 1 of the given Law - limit a circle of persons on which its action extends.

At the same time action of the considered Law is extended by a number of acts to the citizens serving in other law enforcement bodies. So, federal laws About Office of Public Prosecutor of the Russian Federation (Article 44 point 2) and About service in customs bodies of the Russian Federation (article 50 point 1) is provided that provision of pensions of public prosecutors and inspectors, employees of customs bodies and members of their families is carried out on conditions and on norms which are established by the legislation of the Russian Federation for the persons passing military service, service in law-enforcement bodies and their families. The similar rule was fixed by article 17 of the Law of the Russian Federation About federal bodies of tax police (it is recognised by the become invalid Federal law from June, 30th, 2003 in connection with abolition of Federal Agency of tax police of the Russian Federation) concerning employees of tax police.

Writs of the named federal laws, concerning provision of pensions of employees of customs bodies, public prosecutors and inspectors of Office of Public Prosecutor, employees of tax police, send not to separate positions of the considered Law, and to the norms established by it and conditions in aggregate, i.e. to the Law as a whole, and any withdrawals from the general rule of purpose fixed by its article 6 and payments of pensions for the specified persons are not provided.

That circumstance that after acceptance of these federal laws has not been brought in the considered Law respective alterations and additions and that in its article 6 (as well as in other articles) is absent the mention of the persons serving in other law enforcement bodies which provision of pensions also is carried out on norms of the given Law, does not mean that concerning pensioners from among persons who served in tax police, customs bodies, establishments and bodies of Office of Public Prosecutor, or concerning the pensioners who have arrived on service in these law enforcement bodies, the rule about stay of payment of the appointed long-service pension does not operate, - it equally extends on all citizens serving in law enforcement bodies, including bodies of tax police, customs bodies, bodies and establishments of Office of Public Prosecutor.

Proceeding from stated and being guided by parts of first and second article 71, articles 72, 74, 75, 79, 87, 100 and 104 Federal constitutional laws About the Constitutional Court of the Russian Federation the Constitutional Court of the Russian Federation

has decided:

1. To recognise position of a part of second article 6 of the Law of the Russian Federation from February, 12th, 1993 About provision of pensions of the persons passing military service, service in law-enforcement bodies, the State fire service, establishments and bodies criminally - executive system, and their families (With the subsequent changes and additions) according to which to pensioners from among the persons specified in article 1 of the given Law, at their receipt on military service or on service in law-enforcement bodies, in the State fire service, in bodies on control over a turn of narcotics and psychotropic substances, or establishments and bodies criminally - executive system (including in any other states) payment of the appointed long-service pensions for the period of service stops, not contradicting the Constitution of the Russian Federation.

2. The present Decision is definitive, is not subject to the appeal, comes into force immediately after intoning, operates directly and does not demand acknowledgement by other bodies and officials.

3. According to article 78 of the Federal constitutional law About the Constitutional Court of the Russian Federation The present Decision is subject to immediate publication in and Meeting of the legislation of the Russian Federation . The decision should be published also in the Bulletin of the Constitutional Court of the Russian Federation .

the Constitutional Court
the Russian Federation