RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE REPUBLIC OF BELARUS

of October 24, 2024 No. 6

About court practice of hearing of cases, the citizens connected with the right to work pension

Having discussed results of generalization of court practice of hearing of cases, the citizens connected with the right to work pension, for the purpose of the correct and uniform application of the legislation on provision of pensions the Plenum of the Supreme Court of the Republic of Belarus DECIDES:

1. Draw the attention of courts that the Constitution of the Republic of Belarus to citizens guarantees right to social insurance on age, in case of disease, to disability, disabilities, losses of the supporter and in other cases provided by the law (Article 47).

The correct and timely hearing of cases, the citizens connected with the right to work pension, is important means of recovery and protection violated the rights and legitimate interests of citizens, interests of society and state, promotes strengthening of legality in the field of provision of pensions.

2. By hearing of cases, the citizens connected with the right to work pension, courts should be guided by the Constitution of the Republic of Belarus, the laws of the Republic of Belarus of April 17, 1992 No. 1596-XII "About provision of pensions", of April 17, 1992 No. 1597-XII "About procedure for enforcement of the Law of the Republic of Belarus "About provision of pensions", of January 31, 1995 No. 3563-XII "About bases of the national social insurance", of January 6, 1999 No. 230-Z "About the individual (personified) accounting in system of the national social insurance", of January 5, 2008 No. 322-Z "About professional pension insurance", the Regulations on procedure for confirmation and calculation of length of service for purpose of pensions approved by the resolution of Council of Ministers of the Republic of Belarus of December 24, 1992 No. 777, and also other acts of the legislation.

It must be kept in mind that provision of pensions of separate categories of citizens is performed on the basis or taking into account the regulatory legal acts providing special conditions, regulations and procedure for appointment and recalculation of pensions. The laws of the Republic of Belarus of December 17, 1992 No. 2050-XII "About provision of pensions of the military personnel, faces of the commanding and ordinary structure of law-enforcement bodies, the Investigative Committee, the State committee of judicial examinations, bodies and divisions on emergency situations and bodies of financial investigations", of January 6, 2009 No. 9-Z "About social protection of the citizens who were affected by catastrophic crash on the Chernobyl NPP, other radiation accidents" of June 1, 2022 No. 175-Z "About public service" belong to such regulatory legal acts, in particular.

Features of legal regulation of the relations regulated by the Law of the Republic of Belarus "About provision of pensions" can be established by the president of the Republic of Belarus.

If the international treaty of the Republic of Belarus establishes other rules, than those which contain in the Law of the Republic of Belarus "About provision of pensions" are applied the rules established by the international treaty.

3. To courts to mean that appointment and recalculation of work pensions is made by the bodies performing provision of pensions. Managements (departments) of work, employment and social protection of city, district executive committees, managements (departments) of social protection of local administrations of areas in the cities concern them.

Upon the demand of person who addressed for appointment or recalculation of pension, the employer and other interested persons (including in case of disagreement with the decision of the body performing provision of pensions) the question of appointment or recalculation of pension is solved the commission to destination pensions formed by district (city) executive and administrative organ. Powers of the commission and procedure for its work are determined by the Regulations on the Commission to destination pensions approved by the resolution of Council of Ministers of the Republic of Belarus of August 14, 1998 No. 1288.

The decision on refusal in award of pension based on discrepancy to the conditions provided by the Law of the Republic of Belarus "About provision of pensions" can be accepted only the commission to destination of pensions.

4. Draw the attention of courts that the claim to the decision of the body performing provision of pensions, or the commissions to destination of pensions can be filed a lawsuit after appeal of the decision in higher body on work, employment and social protection.

Permission of the claim is performed according to the procedure, provided by the civil procedural legislation for hearing of cases, arising from administrative legal relations. The court considers the claim with participation of the applicant (person who addressed with the claim) and the representative of the body performing provision of pensions, or the commissions to destination of pensions which solution is appealed.

5. Explain to courts that the citizen has the right to address for superannuation after emergence of pension entitlement without restriction with any term at any time if other is not provided by legal acts.

Day of the request for pension is day of reception of an application of the citizen (idea of the employer) of award of pension with all necessary documents by the body performing provision of pensions including when such application was submitted by the working citizen through the employer on place of employment.

In case of the direction of the statement (representation) with documents by means of mail service in the afternoon of the request for in the pension the date specified on calendar stamp of the place of their departure is considered.

The list of the documents necessary for purpose of pensions is established by appendix 2 to the Instruction about procedure for the request for pension and the organization of work and record keeping to destination and the pension payment approved by the resolution of the Ministry of Labour and Social Protection of the Republic of Belarus of July 8, 2019 No. 35.

6. To courts to mean that according to the Item "and" of article 4 of the Law of the Republic of Belarus "About provision of pensions" work retirement pensions, on disability, on the occasion of loss of the supporter, for long service, for special merits before the republic are appointed.

Emergence of the right to work pension requires availability of conditions, stipulated by the legislation about provision of pensions, concerning age of the citizen, duration of length of service, length of service with payment of compulsory insurance premiums (insurance years of service), the special years of service and other circumstances determining pension entitlement.

It is necessary to consider that "About provision of pensions" preferential terms on age and years of service for purpose of work pensions for work with special working conditions (Articles 12, of 13, of 15), in connection with employment separate types of professional activity (Article 47-49, 49-2), and also to certain categories of citizens are established by the Law of the Republic of Belarus (Article 17-22-1).

7. Explain to courts that availability or lack of conditions for purpose of work pensions is established by the bodies performing appointment and recalculation of pensions (the body performing provision of pensions or the commission to destination of pensions), in case of decision making about purpose of pensions or about refusal in their appointment. Check of correctness of establishment of these conditions is performed by courts in case of permission on the substance of claims to such decisions.

In case establishment of the facts having legal value for purpose of pensions is not within the competence of the specified bodies, such facts can be determined by court according to the procedure of special proceeding including to the request of the citizen for award of pension. Treat their number, for example, the fact of receipt of the salary for the specific period in certain size, the fact of the related relations.

8. To courts to mean that owing to part one of article 51 of the Law of the Republic of Belarus "About provision of pensions" the periods of work and other activities proceeding since July 1, 1998 are set off in length of service for superannuation only on condition of payment during these periods of compulsory insurance premiums in the budget of state non-budgetary fund of social protection of the population of the Republic of Belarus (further - the budget of fund).

If average monthly actual earnings (income) from which compulsory insurance premiums for calendar year are paid (or less calendar year in the cases provided by part one of article 51 of the Law of the Republic of Belarus "About provision of pensions") were lower than the minimum wage established by the legislation, these periods are set off in length of service using correction coefficient. The correction coefficient is calculated by division of average monthly actual earnings (income) of the citizen into the arithmetic-mean size of minimum wage for the corresponding period of payment of compulsory insurance premiums.

9. Draw the attention of courts that duration of the insurance years of service necessary for purpose of work retirement pensions or for long service, is provided by part one of article 5 of the Law of the Republic of Belarus "About provision of pensions".

For emergence of the right to work pensions on disability or on the occasion of loss of the supporter duration of insurance years of service is not established by the law. However the disabled person or the supporter shall be among insured persons according to the legislation on the national social insurance.

In cases when the disabled person or the supporter did not treat insured persons, the right to work pension does not arise, but the social pension can be granted (article 72 of the Law of the Republic of Belarus "About provision of pensions").

10. Courts should consider that the periods specified in article 51 of the Law of the Republic of Belarus "About provision of pensions", proceeding later achievements of generally established retirement age by the pensioner and also after appointment to it old-age pension or long-service pensions, are set off in length of service only on condition that the pensioner did not receive national pension for these periods.

Receipt of additional funded pension by the citizen based on the agreement of supplementary accumulative pension insurance according to provisions of the Presidential decree of the Republic of Belarus of September 27, 2021 No. 367 "About voluntary insurance of additional funded pension" does not influence calculation of length of service as such pension does not belong to state.

11. Draw the attention of courts that purpose of work pensions according to Articles 12, of 13, of 15, 47-49, 49-2 of the Law of the Republic of Belarus "About provision of pensions" requires availability of special length of service.

In such cases it is necessary to understand employment duration with special working conditions as special years of service and employment certain types of professional activity, granting the right to work retirement pension for work with special working conditions or work pension for long service till January 1, 2009 (subitem 1.8 of Item 1 of article 1 of the Law of the Republic of Belarus "About professional pension insurance").

Condition of inclusion in special years of service of the periods of work with special working conditions and employment as separate types of professional activity is direct employment of the worker this work or types of activity during full time.

Employment duration during which the worker can be considered busy full time is established by acts of the legislation depending on specifics of the performed work or the performed professional activity (for example, part two of Item 23 of the Regulations on procedure for carrying out certification of workplaces under the terms of the work approved by the resolution of Council of Ministers of the Republic of Belarus of February 22, 2008 No. 253).

12. In case of permission of the claims connected with determination of the length of service granting pension entitlement on age for work with special working conditions or long-service pension, courts should consider that the special years of service are estimated only for the work periods till January 1, 2009.

Since January 1, 2009 persons occupied with performance of work with special working conditions and separate types of professional activity are subject to professional pension insurance. The work periods during which fees on professional pension insurance were paid join in professional years of service of the worker.

In case of failure to pay such fees the work periods in professional years of service are not set off, but can be included in length of service for superannuation.

13. Draw the attention of courts that the work pension according to Articles 12, of 13, of 15, 47-49, 49-2 of the Law of the Republic of Belarus "About provision of pensions" can be granted to workers for whom fees on professional pension insurance were paid if till January 1, 2009 they developed at least a half of the complete length of service with special working conditions and employment separate types of professional activity required for award of pension on age for work with special working conditions or long-service pension.

Persons which are subject to professional pension insurance at whom special length of service till January 1, 2009 constitutes less than a half of the complete years of service necessary for award of pension on age for work with special working conditions or long-service pension can exercise the right to professional pension according to the Law of the Republic of Belarus "About professional pension insurance".

14. Courts need to mean that the corresponding lists of the productions, works, professions, positions and indicators granting the right to such pension, the Republic of Belarus approved by Council of Ministers are applied to calculation of special length of service in case of award of pension on age for work with special working conditions according to the Items "and" and "b" of part one of Article 12 and article 13 of the Law of the Republic of Belarus "About provision of pensions".

Depending on the period in which work with special working conditions was performed the List No. 1 and the List No. 2, approved by the resolution of Council of Ministers of the USSR of August 22, 1956 No. 1173 are applied; The List No. 1 and the List No. 2, approved by the resolution of the Cabinet of Ministers of the USSR of January 26, 1991 No. 10; The List No. 1 and the List No. 2, the Republic of Belarus approved by the resolution of Council of Ministers of May 25, 2005 No. 536.

15. Draw the attention of courts that the work periods from January 1 to December 31, 1992 according to the List No. 1 and the List No. 2, the approved resolution of the Cabinet of Ministers of the USSR of January 26, 1991 No. 10; since January 1, 1993 according to the List No. 1 and the List No. 2, the approved resolution of Council of Ministers of the Republic of Belarus of May 25, 2005 No. 536, can be included in special length of service only in case of confirmation of special working conditions by results of the carried-out certification of workplaces under the terms of work (further - certification).

According to the paragraph the eighth parts two of article 17 of the Law of the Republic of Belarus of June 23, 2008 No. 356-Z "About labor protection" the obligation on ensuring carrying out certification is assigned to the employer. The procedure for its carrying out is established by the Regulations on procedure for carrying out certification of workplaces under the terms of work approved by the resolution of Council of Ministers of the Republic of Belarus of February 22, 2008 No. 253.

In cases when because of the employer certification is not carried out, the periods of work can be included in special years of service taking into account the conclusion about the actual employment of the worker prepared by bodies of state examination of working conditions in the conditions provided by the lists specified in part one of this Item. In the absence of the conclusion not certified work periods do not join in special years of service.

16. Courts should consider that owing to parts two and the fourth article 10-1 of the Law of the Republic of Belarus "About labor protection" state examination of working conditions is carried out by officials of management of protection and state examination of working conditions of the Ministry of Labour and Social Protection, managements (departments) of state examination of working conditions of committees on work, employment and social protection regional and Minsk city executive committees (further - officials of bodies of state examination of working conditions) which prepare the conclusions by results of the carried-out expertizes.

The conclusions of officials of bodies of state examination of working conditions can be appealed according to the procedure of subordination. The conclusion of the Chief state expert of the Republic of Belarus under the terms of work can be appealed in court.

17. Considering the requirements connected with confirmation of length of service and the size of earnings, courts should consider that according to the Law of the Republic of Belarus "About the individual (personified) accounting in system of the national social insurance" since January 1, 2003 concerning each insured person Social Security Fund of the population of the Ministry of Labour and Social Protection (further - Fund) opens the individual personal account containing the data necessary for appointment and recalculation of pension.

The periods of work and other activities, and also the earnings size for pension purposes since January 1, 2003 can be confirmed based on data of individual personal account. In case of disagreement with contents of the data entered in individual personal account insured person has the right to demand from the employer of their refining and (or) amendment, and in case of refusal - to address to bodies of Fund and (or) with the corresponding claim in court.

18. In case of permission of the claims connected with refusal in inclusion in years of service of the periods of work till January 1, 2003, courts have the right to use written proofs and other evidentiary facts. The documents issued by employers or their legal successors, the archive and other bodies having data on work of the applicant (orders of the employer, employment contracts, personal accounts and others), data on payment of compulsory insurance premiums in the budget of fund, the testimony of witnesses can be carried to them, in particular.

Testimony is subject to assessment in total with other produced evidence from the point of view of reliability and sufficiency for permission of case.

19. In case of pronouncement by court of the decision on recognition of the claim to refusal in appointment or recalculation of the pension proved in motivation part of the decision it is specified what specifically requirements of the legislation on provision of pensions are violated, determined by court what facts and other circumstances formed the basis for grievance settlement.

The substantive provisions of the decision shall contain specifying on specific actions which shall be made for elimination of the allowed violation (for example, about assignment on the body performing appointment and recalculation of pensions of obligation to consider question of appointment or recalculation of pension taking into account the facts determined by court).

20. To courts to mean that the obligation on timely document creation about length of service, the earnings, results of certification necessary for appointment and recalculation of pension, and to their timely submission to the bodies performing provision of pensions is assigned to employers. In case of untimely or incomplete execution of such documents, and also submission of the documents containing false information, employers bear liability for the damage caused to the pensioner (to part one and the second article 76 of the Law of the Republic of Belarus "About provision of pensions").

In case of the solution of question of availability of damage to courts it is necessary to find out whether the right of the pensioner to pension in accordance with the established procedure is confirmed, whether the damage caused to the pensioner in the form of uncollected pension was consequence of guilty actions of the employer. The fault of the employer can consist, in particular, in failure to provide of safety of documents on earnings and the citizen's years of service, in entering into the service record of the worker of the wrong or incomplete data on work, in violation of the stipulated by the legislation term of document creation by the employer for award of pension, in non-presentation in accordance with the established procedure of reliable data in bodies of Fund for inclusion in individual personal account of the citizen.

21. Owing to article 90 of the Law of the Republic of Belarus "About provision of pensions" the pensioner has the right to payment of the added pension amounts for last time.

At the same time pension amounts which were not timely demanded by the pensioner can be collected by court no more than in three years before the request for receipt of pension.

In cases when pension amounts were not paid because of the body performing provision of pensions they are collected for last time without restriction with any term.

It is necessary to consider that the pension amounts which were not demanded or not paid timely are subject to collection from the body performing provision of pensions.

22. Explain to courts that excessively paid amounts of pension can be collected from the pensioner with bad faith from its party (for example, submission of documents with obviously false information). Collection of such amounts is made by court in the claim of the body performing provision of pensions according to provisions of Article 971 of the Civil code of the Republic of Belarus.

Superficially received pension amounts are collected for the entire period of their payment if the claim was made within the term of limitation period, stipulated in Clause 197 Civil codes of the Republic of Belarus.

23. In case of identification allowed by employers or the bodies performing appointment and recalculation of pensions, legality violations establishment of other shortcomings of their activities courts need to react by removal of private determinations.

Judicial board on civil cases of the Supreme Court of the Republic of Belarus, regional (To the Minsk city) to courts to generalize and analyze court practice of application of the legislation on provision of pensions, to timely eliminate miscarriages of justice, to take measures for their prevention.

24. "About change of resolutions of the Plenum of the Supreme Court of the Republic of Belarus" to state Item 2 of the resolution of the Plenum of the Supreme Court of the Republic of Belarus of December 23, 2021 to No. 11 in the following edition:

"2. Explain to courts that the resolution of the Plenum of the Supreme Court of the Republic of Belarus of December 10, 1993 "About practice of application by courts of the legislation by hearing of cases on release of property from arrest (exception of the inventory)" is applied No. 12 in the part which is not contradicting the legislation.".

25. Recognize invalid:

the resolution of the Plenum of the Supreme Court of the Republic of Belarus of June 24, 1999 No. 6 "About practice of consideration by courts of the cases connected using the pension legislation";

item 4 of the resolution of the Plenum of the Supreme Court of the Republic of Belarus of December 22, 2005 No. 13 "About modification and amendments in some resolutions of the Plenum of the Supreme Court of the Republic of Belarus";

Item 3 of the resolution of the Plenum of the Supreme Court of the Republic of Belarus of June 27, 2013 No. 6 "About introduction of amendments to some resolutions of the Plenum of the Supreme Court of the Republic of Belarus".

Chairman of the Supreme Court of the Republic of Belarus

V. O. Sukalo

Secretary Plenuma, judge of the Supreme Court of the Republic of Belarus

I. V. Tylets

 

 

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