DETERMINATION OF THE CONSTITUTIONAL COURT OF THE RUSSIAN FEDERATION

of January 18, 2005 No. 7-O

At the request of the Supreme Court of the Russian Federation about check of constitutionality of article 7 of the Federal Law "About additional guarantees of social protection of judges and workers of offices of courts of the Russian Federation

Constitutional court of the Russian Federation as a part of the Chairman V. D. Zorkin, judges M. V. Baglaya, N. S. Bondar, G. A. Gadzhiyev, Yu. M. Danilov, L. M. Zharkova, G. A. Zhilin, S. M. Kazantsev, M. I. Kleandrov, A. L. Kononov, L. O. Krasavchikova, Yu. D. Rudkin, N. V. Seleznyov, V. G. Strekozov, O. S. Hokhryakova, B. S. Ebzeev, V. G. Yaroslavtsev,

having heard the conclusion of the judge O. S. Hokhryakova who was carrying out preliminary studying of request of the Supreme Court of the Russian Federation based on article 41 of the Federal constitutional Law "About the Constitutional Court of the Russian Federation" in plenary meeting established:

1. In the inquiry of the Supreme Court of the Russian Federation sent to the Constitutional Court of the Russian Federation Article 125 (part 4) Constitutions of the Russian Federation in connection with consideration of the case of the citizen V. I. Mukhina, the question of check of constitutionality of article 7 of the Federal Law of January 10, 1996 "Of additional guarantees of social protection of judges and workers of offices of courts of the Russian Federation" (with subsequent changes and amendments) according to which length of service as the judge of the Russian Federation in case of calculation of the years of service granting the right to resignation and receipt of all payment types and privileges joins operating time in courts and judicial authorities on positions which substitution requires the higher legal education, and also as the prosecutor, the investigator, the lawyer is raised if length of service in judgeship constitutes at least five years, except as specified early termination of powers of the judge on the bases provided by subitems 2 and 9 of Item 1 of article 14 of the Law of the Russian Federation "About the status of judges in the Russian Federation" (part one); operation of this article extends to the judges of the Russian Federation who retired or to pension before adoption of this Federal Law (part two).

As appears from request and the provided materials, V. I. Mukhin was dismissed from judgeship of the Supreme Court of the Russian Federation in July, 1991 based on article 31 Labour Code of RSFSR (at own will) at the age of 51 year and afterwards worked as the legal adviser, the CEO of law firm, and since February, 1999 is lawyer. By the time of dismissal from judgeship the years of service of its work as the judge constituted 19 years and 6 months.

In April, 2000 V. I. Mukhin addressed to the commission of the Supreme Court of the Russian Federation to destination to judges of the monthly perpetual maintenance with the statement for payment of such content to it according to the Law of the Russian Federation "About the status of judges in the Russian Federation". Refusing allowance of the application, the commission of the Supreme Court of the Russian Federation in the decision of June 1, 2000 referred to article 7 of the Federal law "About Additional Guarantees of Social Protection of Judges and Workers of Offices of Courts of the Russian Federation" and specified that provisions of this Article according to which the years of service granting the right to resignation and receipt of all payment types and privileges, including the monthly perpetual maintenance are determined extend to the judges who retired or to pension; V. I. Mukhin does not treat those as in resignation or from judgeship did not retire, and was dismissed at own will even before adoption of law of the Russian Federation "About the status of judges in the Russian Federation" and by the time of dismissal did not reach retirement age.

Basmanny district court of the city of Moscow where V. I. Mukhin addressed with the claim in which he asked to cancel the decision of the commission of the Supreme Court of the Russian Federation as illegal and to oblige her to draw up to it the monthly perpetual maintenance, the decision of April 20, 2001 refused grievance settlement for the same motives. The subsequent degrees of jurisdiction agreed with conclusions of Trial Court. According to the supervising claim of V. I. Mukhin the case is submitted to Presidium of the Supreme Court of the Russian Federation for consideration on the merits.

The Supreme Court of the Russian Federation in the request in the Constitutional Court of the Russian Federation asks to check compliance of article 7 of the Federal law "About Additional Guarantees of Social Protection of Judges and Workers of Offices of Courts of the Russian Federation" to requirements of Articles 19 (parts 1 and 2) and 39 (part 1) of the Constitution of the Russian Federation and brings the following arguments into reasons for the line item.

The federal legislator connects acquisition of the status of the judge in resignation not with age, and only with the resignation bases established by the law, in particular with the termination of powers of the judge in connection with submission of the written application by it about resignation. Judges, whose powers were stopped before enforcement of the Law of the Russian Federation "About the status of judges in the Russian Federation" in connection with the expiration of powers or retirement on the bases compatible to the status of the judge, have the right to the monthly perpetual maintenance in case of achievement by them, including after leaving from judicial position, 50ili 55-year age (respectively for women and men) and in the presence at them length of service in judgeship at least 10 years that confirmed also the Constitutional Court of the Russian Federation in the Resolution of February 19, 2002 on the case of check of constitutionality of separate provisions of article 15 of the Law of the Russian Federation "About the status of judges in the Russian Federation", article 2 of the Federal Law "About modification and amendments in the Law of the Russian Federation "About the status of judges in the Russian Federation" and parts one of article 7 of the Federal law "About Additional Guarantees of Social Protection of Judges and Workers of Offices of Courts of the Russian Federation". The disputed legislative provisions interfere with purpose of the monthly perpetual maintenance to the judges who left from judgeship under article 31 Labour Code of RSFSR (at own will) before enforcement of the Law of the Russian Federation "About the status of judges in the Russian Federation", thus that dismissal from judgeship cannot be will at own recognized as the basis not compatible to the status of the judge.

2. The constitution of the Russian Federation guarantees justice implementation by independent and just trial; the status of the judge in the Russian Federation is for this purpose determined, irremovability and immunity of judges is proclaimed, their proper material security is provided (Articles 119, 120, 121, 122 and 124).

The constitutional status of the judge as it is noted in the Resolution of the Constitutional Court of the Russian Federation of February 19, 2002, includes also provision to it in the future special status of the judge in resignation that also serves as guarantee of proper implementation of justice, gives the grounds for presentation to judges of high requirements and allows to keep trust to their competence, independence and impartiality. The judge's right to resignation, as well as provision to it at the expense of the state of the material and social security corresponding to its high status "About the status of judges in the Russian Federation" carries the Law of the Russian Federation to number of guarantees of ensuring independence of judges (Article 9).

2.1. According to article 15 of the Law of the Russian Federation "About the status of judges the Russian Federation" resignation of the judge honourable departure or honourable removal of the judge from position is recognized; each judge has the right to resignation at own will irrespective of age; the judge is considered retired or removed if its powers are stopped on the bases provided by subitems 1, of 2, of 4, of 5, of 9, of the 11 and 12 Item 1 of article 14 of this Law.

The federal legislator, determining the status of the judge in resignation, determined that behind person staying in resignation the rank of the judge, guarantee of security of person, belonging to judicial community, and also the right to other guarantees and privileges remains (Items 1, 3, 4 and 5 Article 15, paragraphs two, the third, fourth Item 1, items 4 and the 5th Articles 19, paragraph two of Item 2 and item 4 of article 20 of the Law of the Russian Federation "About the status of judges in the Russian Federation").

So, him in resignation compensation on acquisition of travel documents on all types of public transport of the city, suburban and local message at the expense of means of the federal budget is paid to the judge after leaving or removal; medical attendance of the judge and members of his family, including providing with medicines, and sanatorium treatment of the judge, his spouse (spouse) and minor children is also paid at the expense of means of the federal budget; the judge who retired or at least 20 years removed with length of service in judgeship or become the disabled person during work and wished to move to the permanent residence to other area, is provided with well-planned housing in the form of the certain apartment or the house at the expense of means of the federal budget.

The judge staying in resignation having the corresponding length of service in the judgeship having the right to receive at the choice instead of the pension granted in accordance with general practice, the monthly perpetual maintenance which is regulated by Item 5 of Article 15, paragraphs to the second, third and fourth Item 1 of Article 19, article 2 of the Federal Law of June 21, 1995 "About modification and amendments in the Law of the Russian Federation "About the status of judges in the Russian Federation" and article 7 of the Federal law "About Additional Guarantees of Social Protection of Judges and Workers of Offices of Courts of the Russian Federation".

According to Item 6 of article 15 of the Law of the Russian Federation "About the status of judges in the Russian Federation" the judge is considered staying in resignation until observes requirements about prohibition to be engaged in the activities specified in Item 3 of article 3 of this Law keeps citizenship of the Russian Federation and does not allow acts, it discrediting and by that belittling authority of judicial authority.

Thus, in resignation the legislator connects with acquisition of the status of the judge not only the right instead of pension of the monthly perpetual maintenance (in the presence of necessary for these years of service of judicial work and work on legal professions), but also other guarantees and privileges, and also obligation of observance of the requirements and restrictions established by the law.

2.2. Introduction by the Law of the Russian Federation "About the status of judges in the Russian Federation" institute of resignation of the judge and fixing of the list of the bases of the termination of powers of the judge in it which grant to it the right to be considered retired or removed (i.e. that circumstance that the legislator connects receipt of the status of the judge in resignation only with the resignation bases established by the law), in itself does not mean that the legal status of all former judges whose powers were stopped before adoption of this Law on the similar (similar) bases compatible to the status of the judge and that they are equated to judges in resignation, including in case of the solution of question of the right to the monthly perpetual maintenance thereby changes. It does not follow and from the legal line item expressed by the Constitutional Court of the Russian Federation in the Resolution of February 19, 2002.

The general (main) principle of operation of the law in time is its distribution on the relations which arose after its introduction in action, and only the legislator has the right to extend new regulations to the facts and consequence in law generated by them which arose before introduction of the relevant standards in action, i.e. to give to the law retroactive effect. At the same time establishment of rules of action in time and around persons of the new regulations affirming or changing the rights of the citizens providing for them guarantees and privileges shall be performed by it with observance of the requirements of the Constitution of the Russian Federation including following from the principle of equality (Article 19, parts 1 and 2) which guarantees to citizens protection against all forms of discrimination in case of realization of the rights and freedoms, including right to social insurance.

In the field of provision of pensions respect for the principle of equality means in addition prohibition to enter such distinctions in the pension rights of persons belonging to the same category which have no objective and reasonable justification (prohibition of the different treatment of persons who are in identical or similar situations). Criteria (signs) which are the cornerstone of establishment of special regulations of provision of pensions shall be determined proceeding from the differentiation purpose in legal regulation pursued at the same time, i.e. criteria and consequence in law of differentiation - to be appreciably interdependent (The resolution of the Constitutional Court of the Russian Federation of June 3, 2004 N 11-P on the case of check of constitutionality of provisions of articles 28 and 31 of the Federal law "About Work Pensions in the Russian Federation").

The federal legislator, resolving issue of distribution on the judges who left judicial position before enforcement of the Law of the Russian Federation "About the status of judges in the Russian Federation", the regulations determining the status of the judge in resignation, including establishing the right instead of the pension granted in accordance with general practice, the monthly perpetual maintenance (Item 5 of Article 15 and Item 1 of Article 19), gave opportunity of receipt of the monthly perpetual maintenance to those judges who retired from this position (irrespective of leaving time) or in connection with the expiration of powers; action of paragraphs of the first and third Item 5 of Article 15 is extended also to the judges transferred to work in the state organizations and who retired from this work and also to the persons who were working for positions of the state arbitrator and retired from this position (Item 2 of the Resolution of the Supreme Council of the Russian Federation of June 26, 1992 "About procedure for enforcement of the Law of the Russian Federation "About the status of judges in the Russian Federation", article 2 of the Federal Law of June 21, 1995 "About modification and amendments in the Law of the Russian Federation "About the status of judges in the Russian Federation").

Thereby the objective impossibility in connection with retirement age or disability or the expiration of powers to remain on judgeship acts as criterion of distribution on the former judges of the right to the monthly perpetual maintenance. It concerns also to the judges transferred to work in other state bodies and who retired from this work, as as notes also the Supreme Court of the Russian Federation in the request, such transfer of judges into other work in the past (during existence of USSR) were made, as a rule, without personal wishes of the translated persons.

Established by the legislator on the basis of the specified criterion of distinction in volume of the pension rights of the called categories of the judges and judges dismissed under article 31 Labour Code of RSFSR which termination of powers was caused by their subjective desire to leave judgeship before the expiration of powers and before emergence of circumstances with which sales opportunity of the right to provision of pensions is connected cannot be regarded as not having objective and reasonable reasons and not compatible to requirements of the constitutional principle of equality and equality when implementing right to social insurance.

Therefore, provisions of article 7 of the Federal law "About Additional Guarantees of Social Protection of Judges and Workers of Offices of Courts of the Russian Federation" according to which the rules of determination of length of service established by this Article as the judge in case of calculation of the years of service granting the right to resignation and receipt of all payment types and privileges extend to the judges of the Russian Federation who retired or to pension before adoption of this Federal Law do not break the equalities of all before the law and court and equality of rights and freedoms of man and citizen, and also the right of everyone to social security guaranteed by the Constitution of the Russian Federation that testifies to lack of uncertainty in question of compliance of the Constitution of the Russian Federation of the called legislative provisions. Owing to article 36 of the Federal constitutional Law "About the Constitutional Court of the Russian Federation" it is the basis for refusal in acceptance of request of the Supreme Court of the Russian Federation to consideration.

3. The applicant, believing that the same right to receive at their choice instead of pension the monthly perpetual maintenance what judges whose powers are stopped based on the written application about resignation use shall be granted to the judges, before introduction of institute of resignation who left judgeship at own will before the age granting the right to provision of pensions, actually puts question of modification of the operating legal regulation.

Permission of this question does not belong to powers of the Constitutional Court of the Russian Federation as they are determined by article 125 of the Constitution of the Russian Federation and article 3 of the Federal constitutional Law "About the Constitutional Court of the Russian Federation", and is prerogative of the federal legislator. Federal legislator, considering various life situations by which dismissal of the judge at own will before the expiration of powers could be caused and approach of the right to provision of pensions, and also duration of length of service it is direct in judgeships and other socially important circumstances, have the right, including based on the legislative initiative of the Supreme Court of the Russian Federation (Article 104, part 1, of the Constitution of the Russian Federation), to equate the specified category of the former judges to judges in resignation, having provided for them possibility of obtaining instead of pension of the monthly perpetual maintenance.

Proceeding from stated and being guided by Items 1 and 2 of part one of Article 43 and part one of article 79 of the Federal constitutional Law "About the Constitutional Court of the Russian Federation", the Constitutional Court of the Russian Federation determined:

1. Refuse acceptance to consideration of request of the Supreme Court of the Russian Federation as it does not meet the requirements of the Federal constitutional Law "About the Constitutional Court of the Russian Federation" according to which the address to the Constitutional Court of the Russian Federation is recognized admissible and as permission of the question raised by the applicant to the Constitutional Court of the Russian Federation not subordinated.

2. Determination of the Constitutional Court of the Russian Federation on this request is final and is not subject to appeal.

3. This Determination is subject to publication in "the Messenger of the Constitutional Court of the Russian Federation".

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