DETERMINATION OF THE CONSTITUTIONAL COURT OF THE RUSSIAN FEDERATION

of May 12, 2005 No. 182-O

According to the claim of the citizen Ozhgibesova Svetlana Vladimirovna to violation of its constitutional rights provisions of Items 1-3 of article 28 of the Federal law "About Mandatory Pension Insurance in the Russian Federation"

Constitutional court of the Russian Federation as a part of the Chairman V. D. Zorkin, judges N. S. Bondar, G. A. Gadzhiyev, Yu. M. Danilov, L. M. Zharkova, G. A. Zhilin, S. M. Kazantsev, M. I. Kleandrov, A. L. Kononov, S. P. Mavrin, N. V. Melnikov, L. O. Krasavchikova, Yu. D. Rudkin, N. V. Seleznyov, A.YA. Plums, 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 the claim of the citizen S. V. Ozhgibesova based on article 41 of the Federal constitutional Law "About the Constitutional Court of the Russian Federation" in plenary meeting established:

1. The citizen S. V. Ozhgibesova asks to check constitutionality of provisions of article 28 of the Federal Law of December 15, 2001 "About mandatory pension insurance in the Russian Federation" (taking into account the changes made to it by article 14 of the Federal Law of May 29, 2002 "About modification and amendments in part the second the Tax Code of the Russian Federation and to separate legal acts of the Russian Federation"), providing that the insurers specified in the subitem 2 of Item 1 of article 6 of this Federal Law, in particular individual entrepreneurs pay the amounts of insurance premiums of the budget of the Pension Fund of the Russian Federation in the form of fixed payment which size per month is established proceeding from the cost of insurance year which is annually approved by the Government of the Russian Federation (Items 1 and 2); the minimum size of fixed payment on financing of insurance and accumulative parts of work pension is established in the amount of 150 rubles a month and is obligatory for payment, at the same time 100 rubles go for financing of insurance part of work pension, 50 rubles - for financing of funded portion of work pension (Item 3).

From the claim and the provided materials follows that the declarant in May, 1998 was registered as the individual entrepreneur, but entrepreneurial activities did not perform during 2000-2001, and also the first half of 2002 based on economic inexpediency, and from the second half of 2002 and in 2003 - in connection with the birth of the child and need of care of it. However the Arbitration Court of the Perm region the decision of August 2, 2004 met requirements of management of the Pension Fund of the Russian Federation for the Industrial district of the city of Perm about collection from it based on instructions of Items 1-3 of article 28 of the Federal law "About Mandatory Pension Insurance in the Russian Federation" (in edition of May 29, 2002) shortages on insurance premiums in the form of fixed payment in the budget of the Pension Fund of the Russian Federation for 2003 in the amount of 1800 rubles, also penalty fee in the amount 62 rubles 19 kopeks.

In the claim in the Constitutional Court of the Russian Federation the declarant claims that the normative provisions applied in its case violate its constitutional rights and there do not correspond to Articles 19, of 34, of 37, 38 and 39 Constitutions of the Russian Federation. According to the declarant, assigning to women - individual entrepreneurs obligation to pay insurance premiums for the period during which business activity in connection with the birth of the child and care of it them was not performed these regulations illegally limit freedom of work, the right to free use of the capabilities and property for the entrepreneurial and other not prohibited by the law economic activity, put them in unequal position in comparison with the women working according to the employment contract as neither from the insurer-employer, nor the law demands payment of insurance premiums for the periods of maternity leave and child care leave before achievement of age from the woman by it one and a half years. Besides, collection from the woman - the individual entrepreneur of insurance premiums for the specified period leads to the fact that she, without having other income, except the benefits paid in connection with the birth of the child, is forced to pay them at the expense of these benefits, losing thereby part of the amounts relying in connection with the birth of the child.

2. The constitution of the Russian Federation, setting freedom of work, the right of everyone to freely choose kind of activity and profession, the right to free use of the capabilities and property for the entrepreneurial and other not prohibited by the law economic activity (Article 34, part 1; Article 37, part 1), guarantees everyone also social security on age, in case of disease, disability, loss of the supporter, for education of children and in other cases established by the law (Article 39, part 1).

The constitutional right on social security includes also the right to pension in the cases and the sizes established by the law which implementation is guaranteed in the Russian Federation by creation of systems of compulsory and voluntary pension insurance, and also the state provision of pensions.

2.1. The Federal Law "About Work Pensions in the Russian Federation" enacted since January 1, 2002 determines that the citizens of the Russian Federation insured according to the Federal Law "About Mandatory Pension Insurance in the Russian Federation" in case of observance have the right to work pension them the conditions provided by this Federal Law (Article part one 3).

Determining in the Federal Law "About Mandatory Pension Insurance in the Russian Federation" the group of people to whom mandatory pension insurance extends, the legislator included in their number also persons which are independently providing itself with work including individual entrepreneurs, and fixed that they are insurers on mandatory pension insurance and shall pay pro se to the budget of the Pension Fund of the Russian Federation insurance premiums (the subitem 2 of Item 1 of Article 6, Item 1 of Article 7, Item 2 of Article 14).

According to the Federal Law "About Work Pensions in the Russian Federation" in case of determination of the right to work pension the insurance years of service of citizens which as it is specified in its Article 2, are understood as the total duration of the periods of work and (or) other activities, during which insurance premiums were paid to the Pension Fund of the Russian Federation, and also other periods which are set off in insurance years of service are considered. The pension insurance years of service which availability is one of appointment conditions to insured person of work pension can consist, thus, not only of the periods of work and (or) other, including entrepreneurial, activities during which insurance premiums were paid to the Pension Fund of the Russian Federation, - in it can be offset and the separate periods when the related activity was not performed and insurance premiums were not paid (so-called not insurance periods).

Others, i.e. not insurance, the periods which are subject to offsetting in insurance years of service on an equal basis with the periods of work and (or) other activities are listed in article 11 of the Federal law "About Work Pensions in the Russian Federation". The period of care of one of parents of each child before achievement of age of one and a half years by it, but no more than three years in total, in particular, concerns to them (the subitem 3 Items 1). This period according to Item 2 of this Article is set off in insurance years of service if it was preceded and (or) it was followed by the periods of work and (or) other activities (irrespective of their duration) specified in article 10 of the called Federal Law. And for offsetting in insurance years of service to insured person of the period of child care before achievement of age of one and a half years by it the law does not require that this period directly preceded or directly followed the period of work and (or) other activities.

For compensation of payment of insurance premiums for the period of child care before achievement of age of one and a half years by it to the Pension Fund of the Russian Federation allocates funds from the federal budget in the amount provided by the Federal Law; the amount of the funds of the federal budget allocated for compensation to the Pension Fund of the Russian Federation for each insured person joins in the settlement pension capital of insured person from which insurance part of its work pension is estimated (article 17 of the Federal law "About Mandatory Pension Insurance in the Russian Federation" and the Federal Law of March 21, 2005 "About the funds of the federal budget allocated to the Pension Fund of the Russian Federation for compensation of payment of insurance premiums for the period of child care before achievement of age by it one and a half years and the period of passing of military service").

Instructions of article 11 of the Federal law "About Work Pensions in the Russian Federation" on offsetting in insurance years of service of the period of child care before achievement of age of one and a half years by it and about conditions of such offsetting extend to all persons insured according to the Federal Law "About Mandatory Pension Insurance in the Russian Federation" including persons having the status of individual entrepreneurs - any exceptions concerning this category are not established by this Federal Law. Determining procedure for assignment of the federal budget for compensation to the Pension Fund of the Russian Federation for each insured person in connection with offsetting in insurance years of service of this person of the period of child care before achievement of age of one and a half years and calculation of amount of these means by it, the federal legislator does not provide special regulations and conditions of compensation in relation to individual entrepreneurs.

Therefore, the challenged provisions of article 28 of the Federal law "About Mandatory Pension Insurance in the Russian Federation" providing collection from individual entrepreneurs of insurance premiums in the budget of the Pension Fund of the Russian Federation in the form of fixed payment and establishing the minimum size of fixed payment on financing of insurance and accumulative parts of work pension, obligatory for payment cannot be interpreted as limiting the right of this category of insured persons to offsetting in insurance years of service of the period of child care before achievement of age by it one and a half years (but no more than three years in total) or establishing others, worsening their situation, sales terms of this right how they are determined by the existing pension legislation for persons working according to the employment contract.

Other would mean establishment of such distinction in the conditions of acquisition of rights of the pension rights between the insured persons which are in similar situation (performing child care before achievement of age by it one and a half years) which has no objective and reasonable justification and is not compatible to requirements of Articles 19 (parts 1 and 2) and 39 (part 1) and 55 (part 3) of the Constitution of the Russian Federation. The constitutional court of the Russian Federation in the decisions repeatedly specified that from the interconnected provisions of Articles 19 and 39 (part 1) of the Constitution of the Russian Federation follows the principle of equality in conditions of receipt of work pensions, and the legislator, performing based on Articles 39 (part 2), 71 (Item "in"), 72 (the part Items, "zh" 1) and 76 (parts 1 and 2) of the Constitution of the Russian Federation regulation of conditions and procedure for provision of specific types of provision of pensions, and also determining the organization-legal mechanism of its realization, it is connected including need of observance of the constitutional concepts of justice and equality and requirements to restrictions of the rights and freedoms of citizens owing to which distinctions in the conditions of acquisition of right to pension are admissible if they are objectively justified, reasonable pursue constitutionally the significant aims, and the legal means used for achievement of these purposes are proportional to them (resolutions of June 3, 2004 N 11-P on the case of check of constitutionality of provisions of subitems 10, of the 11 and 12 Item 1 of Article 28 and Items 1 and 2 of article 31 of the Federal law "About Work Pensions in the Russian Federation", of December 23, 2004 N 19-P on the case of check of constitutionality of the subitem 8 of Item 1 of article 238 of the Tax Code of the Russian Federation, etc.).

2.2. Thus, the normative provisions of Items 1-3 of article 28 of the Federal law "About Mandatory Pension Insurance in the Russian Federation" challenged by the declarant (in edition of May 29, 2002) in interrelation with provisions of its Article 17, and also Articles 2, of 3, 10 and 11 Federal Laws "About Work Pensions in the Russian Federation" on the constitutional legal to the sense revealed by the Constitutional Court of the Russian Federation in this Determination do not assume collection from the individual entrepreneur of insurance premiums in the form of fixed payment for the period during which business activity by it was not performed in connection with child care before achievement of age by it one and a half years, and, therefore, these regulations, as such, its constitutional rights are not violated.

Check of legality and justification of law-enforcement decisions in the matter of the declarant 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 enters competence of Arbitration Courts.

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. Normative provisions of Items 1-3 of article 28 of the Federal law "About Mandatory Pension Insurance in the Russian Federation" (in edition of May 29, 2002) in interrelation with provisions of its Article 17, and also Articles 2, of 3, 10 and 11 Federal Laws "About Work Pensions in the Russian Federation" do not assume collection from the individual entrepreneur of the amounts of insurance premiums of the budget of the Pension Fund of the Russian Federation in the form of fixed payment on financing of insurance and accumulative parts of work pension for the period during which business activity by it was not performed in connection with child care before achievement of age by it one and a half years.

Owing to article 6 of the Federal constitutional Law "About the Constitutional Court of the Russian Federation" the constitutional and legal sense of provisions of Items 1-3 of article 28 of the Federal law "About Mandatory Pension Insurance in the Russian Federation" (in edition of May 29, 2002) revealed in this Determination is obligatory and excludes any other their interpretation in law-enforcement practice.

2. Recognize the claim of the citizen Ozhgibesova Svetlana Vladimirovna of the Russian Federation which is not subject to further review in meeting of the Constitutional Court as permission of the question raised by the declarant does not require pronouncement of the stipulated in Article 71 Federal constitutional Law "About the Constitutional Court of the Russian Federation" of the final decision in the form of the resolution.

3. The law-enforcement decisions in the matter of the citizen Ozhgibesova Svetlana Vladimirovna based on provisions of Items 1-3 of article 28 of the Federal law "About Mandatory Pension Insurance in the Russian Federation" (in edition of May 29, 2002) in the interpretation dispersing from their constitutional and legal sense revealed in this Determination are subject to revision in accordance with the established procedure if for this purpose there are no other obstacles.

4. Determination of the Constitutional Court of the Russian Federation according to this claim is final, is not subject to appeal and does not require confirmation by other bodies and officials.

5. This Determination is subject to publication in "Russian Federation Code" and "the Bulletin of the Constitutional Court of the Russian Federation".

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