DETERMINATION OF THE CONSTITUTIONAL COURT OF THE RUSSIAN FEDERATION

of April 12, 2005 No. 184-O

According to the claim of the citizen Yefimov Vladimir Alekseevich to violation of its constitutional rights part three of article 2 of the Law of the Russian Federation "About provision of pensions of persons passing military service, service in law-enforcement bodies, the Public fire service, drug trafficking monitoring bodies and psychotropic substances, organizations and bodies of criminal executive system, and their families

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, L. O. Krasavchikova, S. P. Mavrin, N. V. Melnikov, Yu. D. Rudkin, N. V. Seleznyov, A.YA. Plums, V. G. Strekozov, O. S. Hokhryakova, B. S. Ebzeev, V. G. Yaroslavtsev,

having heard the conclusion of the judge V. G. Yaroslavtsev who was carrying out preliminary studying of the claim of the citizen V. A. Yefimov based on article 41 of the Federal constitutional Law "About the Constitutional Court of the Russian Federation" in plenary meeting established:

1. The citizen V. A. Yefimov in 1988 discharged from military service in inventory of the Armed Forces of the Russian Federation and receiving long-service pension based on the legislation on provision of pensions of the military personnel in 1998 was condemned to imprisonment for making of especially serious crime and is deprived by the court verdict of military rank "major reserve officer". From now on the Pskov regional military commissariat payment of the specified pension to it is stopped with reference to part by third of article 2 of the Law of the Russian Federation of February 12, 1993 "About provision of pensions of persons passing military service, service in law-enforcement bodies, the Public fire service, drug trafficking monitoring bodies and psychotropic substances, organizations and bodies of criminal executive system, and their families" (with subsequent changes and amendments) as it as deprived of military rank, lost the right to long-service pension and its provision of pensions shall be performed in accordance with general practice, the work pensions established for appointment to citizens.

In the claim in the Constitutional Court of the Russian Federation V. A. Yefimov disputes constitutionality of the regulation applied in its case according to which pensions to the former military personnel and other persons listed in this regulation deprived in the procedure for military or special ranks established by the legislation and also to their families are appointed on the bases established by the Federal Law "About Work Pensions in the Russian Federation" in the presence they have rights to provision of pensions according to the called Federal Law.

According to the applicant, this regulation allowing bodies of the Russian Defense Ministry and to courts of law to interpret it as providing the termination of payment to the citizens discharged from military service of the long-service pensions which are earlier granted to them because they are deprived by court of military rank, contradicts Articles 19 (part 1), 39 and 55 (part 2) Constitutions of the Russian Federation.

2. The constitution of the Russian Federation guarantees everyone social security on age, in case of disease, 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 determined by the law.

The law of the Russian Federation "About provision of pensions of persons passing military service, service in law-enforcement bodies, the Public fire service, drug trafficking monitoring bodies and psychotropic substances organizations and bodies of criminal executive system, and their families" is the special law regulating provision of pensions of the categories of citizens specified in it taking into account specifics of passing of military and other service by them as type of labor activity. The called Law provides for them pension entitlement in case of dismissal from service before achievement of generally established retirement age, but only under certain conditions, in particular to the corresponding length of service, and in case of dismissal on reaching age limit of stay on service, to the state of health or in connection with organizational and regular actions, - period of service and general working life in the sizes established by this Law. Availability at person of military or special rank as indivisible element of the status of the serviceman or person serving in law enforcement agencies belongs to such conditions, besides.

2.1. As appears from part three of article 2 of the Law of the Russian Federation "Of provision of pensions of persons passing military service, service in law-enforcement bodies, the Public fire service, drug trafficking monitoring bodies and psychotropic substances, organizations and bodies of criminal executive system, and their families" it resolves only the issues connected with appointment to persons to whom operation of this Law extends and which in the procedure established by the legislation are deprived of military or special ranks, and also to their families of these or those types of work pensions. It does not contain any instructions concerning the termination of payment to the corresponding persons of earlier granted pensions, including long-service pensions.

That circumstance that this regulation is interpreted as providing the termination of payment of earlier granted long-service pensions to the citizens deprived by the court verdict of military or special rank for the crimes committed after dismissal from military or law-enforcement service demonstrates only its wrong application and does not specify availability in it provisions unconstitutional in essence.

2.2. Punishment in the form of deprivation of military, honorary or special title or the class rank is fixed by regulations of the General part of the Criminal Code of the Russian Federation. The court in case of its appointment applies directly Articles 44, 45 and 48 UK Russian Federation according to which this penalty can be imposed in addition to main type of criminal penalty to the person having such rank and who committed especially serious or serious crime. According to part two of article 71 UK of the Russian Federation and part three of article 16 WICK of the Russian Federation this punishment is performed independently by the court which pronounced sentence, and requirements of sentence - the official who gave the rank.

Any others, in addition to the fact of deprivation military (special, honourable) does not include ranks, criminal consequence in law, including the termination of payment to earlier granted pension, the penal statute in content of this punishment. The termination of payment to person deprived according to the court verdict of military or special rank of the long-service pension which is earlier granted to it actually becomes the additional punishment which is not provided by the penal statute that owing to part one of article 3 UK of the Russian Federation according to which crime of act, and also its punishability and other criminal consequence in law are determined only by the Criminal Code of the Russian Federation, inadmissibly.

2.3. The legal line item according to which the citizen's rights in the field of provision of pensions are derivative of its labor or other socially useful activity is expressed in resolutions of the Constitutional Court of the Russian Federation of October 16, 1995 on the case of check of constitutionality of article 124 of the Law RSFSR "About national pensions in RSFSR" and of June 15, 1998 on the case of check of constitutionality of provisions of Articles 2, 5 and 6 Laws of the Russian Federation "About pension payment to the citizens leaving on permanent residence of the Russian Federation"; old-age pensions, for long service and other pensions granted in connection with labor or other socially useful activity are earned, deserved by prior work, military service, accomplishment of other obligations, significant for society, that predetermines content and nature of obligations of the state in relation to those citizens who acquired the right to such pensions. It follows from this that the state shall pay them pensions irrespective of whether they according to the court verdict serve custodial sanction, live in the territory of Russia or leave on permanent residence of the Russian Federation, - the citizen's right to receipt of the pension relying it owing to the legal nature of the pensions having character labor cannot contact such conditions.

As specified the Constitutional Court of the Russian Federation, deprivation of citizens of work pension during stay them in places of detention, including by suspension of pension payment for serving of this punishment, and the termination of charge or payment of work pensions to the citizens who left on permanent residence of the Russian Federation is equal, represents restriction of their right to social insurance guaranteed by Article 39 (part 1) Constitutions of the Russian Federation. Such restrictions owing to Article 55 (part 3) Constitutions of the Russian Federation can be established by the Federal Law, but only in that measure in what it is necessary for the purpose of protection of bases of the constitutional system, morality, health, the rights and legitimate interests of other persons, ensuring defense of the country and safety of the state. As the provisions of the pension laws fixing them did not meet these requirements, they were recognized as the Constitutional Court of the Russian Federation not corresponding to the Constitution of the Russian Federation.

Owing to the given legal line items of the Constitutional Court of the Russian Federation it cannot be regarded as corresponding to Article 55 (part 3) Constitutions of the Russian Federation restriction of the right of citizens for receipt of the earned, deserved long-service pension by the termination of its payment only on the ground that they are deprived by the court verdict of military or special rank for the crimes committed after dismissal from military or law-enforcement service.

2.4. Thus, part three of article 2 of the Law of the Russian Federation "About provision of pensions of persons passing military service, service in law-enforcement bodies, the Public fire service, drug trafficking monitoring bodies and psychotropic substances, organizations and bodies of criminal executive system, and their families" without providing possibility of restriction of the right to work pension as effect of deprivation of military rank according to the court verdict, cannot be considered as allowing the termination of payment to citizens of long-service pension in connection with deprivation by their court verdict of military or special rank for the crimes committed after dismissal from military or law-enforcement service and purpose of the specified pension.

Proceeding from stated and being guided by Item 2 parts one of Article 43, part one of Article 79 and article 100 of the Federal constitutional Law "About the Constitutional Court of the Russian Federation", the Constitutional Court of the Russian Federation determined:

1. The part three of article 2 of the Law of the Russian Federation "About provision of pensions of persons passing military service, service in law-enforcement bodies, the Public fire service, drug trafficking monitoring bodies and psychotropic substances organizations and bodies of criminal executive system, and their families" cannot be considered as the payments to citizens of long-service pension establishing or allowing the termination in connection with deprivation by their court verdict of military or special rank for the crimes committed after dismissal from military or law-enforcement service and purpose of such pension.

Owing to article 6 of the Federal constitutional Law "About the Constitutional Court of the Russian Federation" the constitutional and legal sense of the specified legislative provision revealed in this Determination based on the legal line items stated by the Constitutional Court of the Russian Federation in the resolutions keeping the force is obligatory and excludes any other its interpretation in law-enforcement practice.

2. Recognize the claim of the citizen Yefimov Vladimir Alekseevich of the Russian Federation which is not subject to further review in meeting of the Constitutional Court as permission of the questions raised by the applicant 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 Yefimov Vladimir Alekseevich based on part three of article 2 of the Law of the Russian Federation "About provision of pensions of persons passing military service, service in law-enforcement bodies, the Public fire service, drug trafficking monitoring bodies and psychotropic substances organizations and bodies of criminal executive system, and their families" in the interpretation dispersing from its 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 and is not subject to appeal.

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

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