DETERMINATION OF THE CONSTITUTIONAL COURT OF THE RUSSIAN FEDERATION

of November 2, 2006 No. 492-O

At the request of the Soviet district court of the city of Ryazan about check of constitutionality of provisions of the subitem 2 of Item 1 of Article 6, Item 1 of Article 7, the paragraph of the fourth Item 1 of Article 11 and Item 2 of article 14 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, 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 Soviet district court of the city of Ryazan based on article 41 of the Federal constitutional Law "About the Constitutional Court of the Russian Federation" in plenary meeting

established:

1. In request of the Soviet district court of the city of Ryazan constitutionality of provisions of the subitem 2 of Item 1 of Article 6, of Item 1 of Article 7, of the paragraph of the fourth Item 1 of Article 11 and Item 2 of article 14 of the Federal Law of December 15, 2001 "About mandatory pension insurance in the Russian Federation" (with subsequent changes and amendments) is disputed according to which the citizens who are independently providing themselves with work including lawyers, treat persons to whom mandatory pension insurance according to this Federal Law extends; these citizens are insurers on mandatory pension insurance, they shall be registered in territorial authorities of the insurer according to the procedure, stipulated in Clause the 11th this Federal Law, timely and in full to pay insurance premiums to the budget of the Pension Fund of the Russian Federation, to carry out other obligations, stipulated by the legislation the Russian Federation: registration of insurers-lawyers is performed in territorial authorities of the insurer in the place of their residence based on the lawyer of the statement for registration submitted in time no later than 30 days from the date of certification as the insurer and the copies of the certificate of the lawyer, identity documents of the insurer represented along with the statement and confirming its registration at the place of residence.

As appears from the provided materials, in production of the Soviet district court of the city of Ryazan there is case on the claim of management of the Pension Fund of the Russian Federation in the city of Ryazan on collection from the lawyer A. V. Kachanov of penalty for violation of registration term by it as the insurer on mandatory pension insurance. A. V. Kachanov since October, 2002 is the judge staying in resignation and receiving the monthly perpetual maintenance based on the Law of the Russian Federation "About the status of judges in the Russian Federation" on July 14, 2005 received the certificate of the lawyer, and on October 3 the same year was accepted in the Central city Bar. As in the stipulated in Clause 11 Federal Laws "About Mandatory Pension Insurance in the Russian Federation" term A. V. Kachanov was not registered in territorial authority of the Pension Fund of the Russian Federation as the insurer (the application for registration was submitted only on November 15, 2005), the deputy head of department of the Pension Fund of the Russian Federation in the city of Ryazan passed on November 30, 2005 the decision on attraction it to responsibility in the form of penalty in the amount of 10 000 rubles.

A. V. Kachanov, in turn, showed to management of the Pension Fund of the Russian Federation in the city of Ryazan counter claims - about cancellation of the decision on attraction it to responsibility for violation of term of registration as the insurer as illegal and unreasonable, and also about collection of 300 rubles transferred from its salary of the lawyer on financing of insurance and accumulative parts of work pension. In reasons for the requirements he, in particular, specified that, receiving the monthly perpetual maintenance for the account of means of the federal budget, he has no right to superannuation and therefore to enter legal relationship on mandatory pension insurance with organizations of the Pension Fund of the Russian Federation and shall not perform payment pro se of insurance premiums in the budget of the Pension Fund of the Russian Federation.

The Soviet district court of the city of Ryazan, having come to conclusion that the interconnected normative provisions of the subitem 2 of Item 1 of Article which are subject to application in case of permission of this case 6, of Item 1 of Article 7, of the paragraph of the fourth Item 1 of Article 11 and Item 2 of article 14 of the Federal law "About Mandatory Pension Insurance in the Russian Federation" - in the part providing obligation of the lawyers who are at the same time judges in resignation and receiving the monthly perpetual maintenance based on the Law of the Russian Federation "About the status of judges in the Russian Federation" to be registered as insurers in bodies of the Pension Fund of the Russian Federation and to pay pro se insurance premiums to 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, - there do not correspond Constitutions of the Russian Federation, suspended proceeedings and sent to the Constitutional Court of the Russian Federation inquiry for check of their constitutionality.

The applicant considers that assignment on this category of citizens of the specified obligations contradicts requirements of Articles 19 (parts 1 and 2), 35 (parts 1 and 2), 39 (part 1) and 55 Constitutions of the Russian Federation as the current legislation does not provide possibility of obtaining in addition to the monthly perpetual maintenance of the judge in resignation of the corresponding insurance coverage estimated taking into account the amounts of insurance premiums of the budget of the Pension Fund of the Russian Federation paid by them.

2. The law of the Russian Federation "About the status of judges in the Russian Federation", determining the status of the judge in resignation, including the guarantees of provision of material (social) security caused by this status, determines that pension in accordance with general practice or not the taxable monthly perpetual maintenance in the amount of eighty percent of the salary working on the corresponding judgeship is paid to the judge staying in resignation having length of service in judgeship at least 20 years at its choice, and having length of service in judgeship less than 20 years and reached age 55 (for women - 50) years the size of the monthly perpetual maintenance is estimated in proportion to the number of the complete years fulfilled in judgeship; the judge who reached age of 60 years (the woman - 55 years), in case of length of service by legal profession at least 25 years, including at least 10 years of work as the judge, has the right, having retired, to receive the monthly perpetual maintenance in complete size; the judges staying in resignation who became disabled people owing to military injury have the right to the monthly perpetual maintenance and disability pension (Item 5 of Article 15, paragraph two of Item 1 of Article 19).

Follows from the given legislative provisions that the monthly perpetual maintenance is paid instead of the pension provided in accordance with general practice, including work pension, and appointment to his judge in resignation excludes simultaneous receipt of any types of pension by it, except disability pension owing to military injury. At the same time one of conditions of purpose of the monthly perpetual maintenance is long implementation of the related professional activity (availability of length of service), i.e. accomplishment of the same requirement what is provided by the legislator as condition of acquisition of right by separate categories of citizens of the right to provision of pensions.

Payment of the monthly perpetual maintenance to judges in resignation as well as payment to citizens of pensions for the state provision of pensions, is made at the expense of the funds allocated from the federal budget.

Thus, the monthly perpetual maintenance appointed to the judge staying in resignation, in fact, is the payment similar to pension, kind of the state social (pension) security.

3. Question of constitutionality of the regulations of the Federal Law "About Mandatory Pension Insurance in the Russian Federation" providing distribution of mandatory pension insurance on such categories of persons which are independently providing themselves with work as the individual entrepreneurs and lawyers receiving pensions on the state provision of pensions namely the pensions granted according to the procedure and on the conditions established by 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" and assignment of obligation on them to pay pro se insurance premiums to 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 was already subject of consideration of the Constitutional Court of the Russian Federation. In Determination of May 24, 2005 of N223-O on requests of the magistrate judge of judicial site N2 of the city of Kaluga and the magistrate judge of judicial site N4 of Sovetsky district of the city of Nizhny Novgorod about check of constitutionality of provisions of the subitem 2 of Item 1 of Article 6, of Item 1 of Article 7 and Item 2 of article 14 of the Federal law "About Mandatory Pension Insurance in the Russian Federation", and also provisions of Item 2 of Article 14 and Items 1-3 of article 28 of the called Federal Law the Constitutional Court of the Russian Federation specified to claims of citizens I. A. Starodubov and V. N. Shishov to violation of their constitutional rights the following.

Reference to number of persons which are subject to mandatory pension insurance, individual entrepreneurs and lawyers and assignment of obligation on them on payment of insurance premiums - taking into account the purpose of mandatory pension insurance, the social and legal nature and purpose of insurance premiums - in itself cannot be considered as not consistent with requirements of the Constitution of the Russian Federation; the citizens who are independently providing themselves with work are subject to the same social risk in connection with loss occurrence, as well as persons working according to the employment contract, and payment of insurance premiums provides forming of their pension rights, acquisition of the right to work pension by them.

At the same time, providing participation in mandatory pension insurance of individual entrepreneurs and lawyers to whom pension on the state provision of pensions is already paid, and establishing obligation of these persons to pay pro se insurance premiums to the Pension Fund of the Russian Federation, the legislator shall guarantee them sales opportunity of the pension rights acquired within system of mandatory pension insurance, on equal terms with other insured persons.

According to Item 2 of article 3 of the Federal law "About the State Provision of Pensions in the Russian Federation" to persons having at the same time the right to different pensions in accordance with the legislation of the Russian Federation one pension at their choice is established if other is not provided by the Federal Law. The right at the same time to two pensions (pension on the state provision of pensions and work pension) is provided to limited circle of the citizens needing the increased social protection which disabled people owing to military injury, participants of the Great Patriotic War and some other categories of citizens treat. Therefore, to individual entrepreneurs and lawyers - military pensioners if only they are not among persons having the right at the same time to two pensions, now work pension namely its basic and insurance speak rapidly, it can be established and be paid instead of pension on the state provision of pensions.

Distribution on individual entrepreneurs and lawyers of military pensioners of mandatory pension insurance is intended to guarantee, thus, to them possibility of acquisition of right to receipt of work pension, implementation of the choice of pension. Meanwhile payment of insurance premiums in the form of fixed payment in the amount of, determined by Items 2 and 3 of article 28 of the Federal law "About Mandatory Pension Insurance in the Russian Federation" (i.e. 150 rubles a month from which 100 rubles go for financing of insurance part of pension and 50 rubles - accumulative), - thus that the current legislation does not provide transfer from the federal budget in the Pension Fund of the Russian Federation of means for forming of the settlement pension capital upon transition of the military pensioner to work pension, - in most cases does not allow to provide purpose of work pension it in the amount of, exceeding their military pension. Thereby establishment of obligation of individual entrepreneurs and lawyers - military pensioners to enter legal relationship on mandatory pension insurance and to pay insurance premiums to the budget of the Pension Fund of the Russian Federation as the guarantee providing them possibility of the choice of pension loses any sense as the choice as such in similar cases obviously is not supposed.

Individual entrepreneurs and lawyers - military pensioners, performing owing to instructions of the subitem 2 of Item 1 of Article 6, of Item 1 of Article 7, of Item 2 of Article 14 and Items 1-3 of article 28 of the Federal law "About Mandatory Pension Insurance in the Russian Federation" payment of insurance premiums for financing of insurance part of work pension, cannot expect also some increase to the military pension taking into account the amounts which are saved up on their individual personal account in the Pension Fund of the Russian Federation as the current legislation does not contain regulations which would allow payment to such persons if they reached generally established retirement age and have necessary insurance years of service, in addition to pension on the state provision of pensions and insurance part of work pension, - the right to its obtaining can be exercised only by persons having the right to simultaneous receipt of two pensions. At the same time individual entrepreneurs and lawyers who after establishment of work pension by it continue labor (entrepreneurial) activity have the right to annual recalculation of insurance part of work pension taking into account the insurance premiums (Item 3 of article 17 of the Federal law "About Work Pensions in the Russian Federation") which arrived on their individual personal account, and, therefore, payment of insurance premiums, including fixed payment, allows them to increase the size of the received pension. Thereby individual entrepreneurs and lawyers - the military pensioners performing payment of insurance premiums on an equal basis with the individual entrepreneurs and lawyers receiving work pension are put in comparison with them in the worst position.

Meanwhile, as follows from the legal line item expressed by the Constitutional Court of the Russian Federation in the Resolution of December 23, 1999 to N18-P on the case of check of constitutionality of separate provisions of the Federal Laws on rates of insurance premiums in the state social off-budget funds equal to obligation of citizens in execution of burden on forming of the budget of the Pension Fund of the Russian Federation assume also the equal rights to receipt of the corresponding insurance coverage taking into account the amounts of insurance premiums paid by them. The constitutional court of the Russian Federation in the decisions repeatedly specified that 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 (Article 19, part 1; Article 55, part 3, Constitutions of the Russian Federation). Distinctions in the conditions of acquisition by separate categories of citizens of pension entitlement and realization of the pension rights are admissible if they are objectively justified, reasonable and pursue constitutionally the significant aims, and legal means used for achievement of these purposes are proportional to them; in the field of provision of pensions respect for the principle of the equality guaranteeing protection against all forms of discrimination when implementing the rights and freedoms means, in addition, to impose ban the distinctions which do not have objective and reasonable justification in the pension rights of persons belonging to the same category (prohibition of the different treatment of persons who are in identical or similar situations).

The constitutional court of the Russian Federation came to conclusion that assignment on individual entrepreneurs and lawyers - military pensioners of obligation to pay pro se insurance premiums to 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, in case of absence in the operating normative legal regulation of the proper legal mechanism guaranteeing provision to them in addition to the pension relying on the state provision of pensions, the corresponding insurance coverage taking into account paid amounts of insurance premiums cannot be acknowledged objectively justified and necessary from the point of view of the purposes and values protected by the Constitution of the Russian Federation and will not be approved with the requirements following from Articles 19 (parts 1 and 2), 39 (part 1) and 55 (part 3) Constitutions of the Russian Federation. Such regulation leads to unreasonable financial encumbrance of individual entrepreneurs and lawyers - military pensioners, to illegal deprivation of their part legally earned, than also Article 35 is violated (parts 1 and 2) Constitutions of the Russian Federation.

The constitutional court of the Russian Federation recognized the interconnected normative provisions of the subitem 2 of Item 1 of Article 6, of Item 1 of Article 7, of Item 2 of Article 14 and Items 1-3 of article 28 of the Federal law "About Mandatory Pension Insurance in the Russian Federation" in that part in what they assign obligation to the individual entrepreneurs and lawyers who are military pensioners to pay insurance premiums to 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, the courts which voided and not subject to application, other bodies and officials as not corresponding to Articles 19 (parts 1 and 2), 35 (parts 1 and 2), 39 (part 1) and 55 (part 3) Constitutions of the Russian Federation.

At the same time in Determination of May 24, 2005 N223-O is noted that in the conditions of the operating normative legal regulation the purpose of ensuring realization by these persons of the right to work pension and the choice of the most profitable to itself of option of provision of pensions can be reached by means of provision of possibility of the voluntary introduction by it in legal relationship on mandatory pension insurance with organizations of the Pension Fund of the Russian Federation which is regulated by article 29 of the Federal law "About Mandatory Pension Insurance in the Russian Federation".

4. The monthly perpetual maintenance paid to the judges staying in resignation on the purpose and the legal nature is similar to the long-service pension granted according to the procedure and on the conditions provided by 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" that predetermines need of identical approach in case of the solution of question of recognition of persons receiving the specified state provision of pensions, insurers on mandatory pension insurance and payment by them pro se insurance premiums in the budget of the Pension Fund of the Russian Federation.

Therefore, the legal line items expressed by the Constitutional Court of the Russian Federation in Determination of May 24, 2005 to N223-O, fully are applicable also in case of assessment of constitutionality of provisions of the subitem 2 of Item 1 of Article 6, of Item 1 of Article 7, of the paragraph of the fourth Item 1 of Article 11 and Item 2 of article 14 of the Federal law "About Mandatory Pension Insurance in the Russian Federation" in that their part in what they oblige the lawyers who are at the same time judges in resignation and receiving the monthly perpetual maintenance to pay pro se insurance premiums to the budget of the Pension Fund of the Russian Federation in the form of fixed payment.

5. According to the Federal Law "About Mandatory Pension Insurance in the Russian Federation" the citizens who are independently providing themselves with work including lawyers, are among insured persons, i.e. persons to whom mandatory pension insurance extends, and at the same time are recognized insurers on mandatory pension insurance (the subitem 2 of Item 1 of Article 6, Item 1 of Article 7).

The normative content of concept "insurers" directly does not establish this Federal Law, - it reveals in the Federal Law "About Bases of Compulsory Social Insurance": these are the organizations of any form of business, and also the citizens obliged according to the Federal Laws on specific types of compulsory social insurance and the legislation of the Russian Federation on taxes and fees to pay insurance premiums and (or) taxes, and in some cases, established by the Federal Laws, to pay separate types of insurance coverage (Item 2 of Article 6).

According to Article 11 and Item 2 of article 14 of the Federal law "About Mandatory Pension Insurance in the Russian Federation" registration of insurers is obligatory and is performed in territorial authorities of the insurer (Pension Fund of the Russian Federation). In particular, according to Item 1 of article 11 lawyers shall be registered in the place of their residence in territorial authorities of the Pension Fund of the Russian Federation as the insurers paying insurance premiums, in time no later than 30 days from the date of certification of the lawyer (the paragraph the fourth). Violation of the stipulated in Clause 11th term of registration by the insurer attracts recovery of penalty in the amount of five thousand rubles, and violation of registration term by the insurer more than for 90 days - in the amount of 10 thousand rubles (Item 1 of article 27 of the called Federal Law).

As appears from the given legislative provisions, registration of lawyers in territorial authorities of the Pension Fund of the Russian Federation is performed as insurers, i.e. persons obliged to pay pro se insurance premiums. Therefore, the registration requirement in this quality concerns to lawyers who shall perform payment of insurance premiums for mandatory pension insurance, and the purpose of registration is ensuring inclusion of the specified category of citizens in system of mandatory pension insurance and provision of possibility of acquisition and realization of the right to work pension.

Registration as insurers of the citizens having the status of the lawyer - in case of absence at them initially to pay to obligation insurance premiums - is deprived of legal sense; assignment of obligation to be registered as the insurer in bodies of the insurer without the purpose of payment of insurance premiums attracts unjustified encumbrance of specified persons.

Thus, as lawyers from among the judges in resignation receiving the monthly perpetual maintenance do not perform duty on payment of insurance premiums for mandatory pension insurance, they have also no obligation to perform requirements, stipulated in Article 11 and Item 2 of article 14 of the Federal law "About Mandatory Pension Insurance in the Russian Federation", i.e. to be registered in bodies of the Pension Fund of the Russian Federation as insurers.

It, however, does not exclude possibility of establishment of certain organizational and accounting rules and mandatory requirements for this category of persons to provide timely obtaining by bodies of the Pension Fund of the Russian Federation of the necessary information confirming the status of the particular person (the status of the judge in resignation; receiving the monthly perpetual maintenance) and absence of obligations at it on payment of insurance premiums for mandatory pension insurance.

Proceeding from stated and being guided by Item 3 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 Russian Federations

determined:

1. The interconnected normative provisions of the subitem 2 of Item 1 of Article 6, of Item 1 of Article 7, of the paragraph of the fourth Item 1 of Article 11, of Item 2 of article 14 of the Federal law "About Mandatory Pension Insurance in the Russian Federation" - in that part in what they assign obligation to the judges in resignation receiving the monthly perpetual maintenance according to the Law of the Russian Federation "About the status of judges in the Russian Federation", working as lawyers to pay insurance premiums to 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, in case of absence in the operating normative legal regulation of the proper legal mechanism guaranteeing provision of the corresponding insurance coverage by it taking into account paid amounts of insurance premiums and increase by that of the received retirement benefits - void and cannot be applied by courts, other bodies and officials, as not corresponding to Articles 19 (parts 1 and 2), 35 (parts 1 and 2), 39 (part 1) and 55 (part 3) Constitutions of the Russian Federation.

2. Normative provisions of the subitem 2 of Item 1 of Article 6, of Item 1 of Article 7, of the paragraph of the fourth Item 1 of Article 11, of Item 2 of article 14 of the Federal law "About Mandatory Pension Insurance in the Russian Federation" on the constitutional legal to sense in system of the operating normative legal regulation do not assume obligation of the lawyers having the status of the judge in resignation and receiving the monthly perpetual maintenance according to the Law of the Russian Federation "About the status of judges in the Russian Federation" to be registered in territorial authorities of the Pension Fund of the Russian Federation as insurers.

It does not exclude possibility of establishment of certain organizational and accounting rules and mandatory requirements for this category of persons timely obtaining by bodies of the Pension Fund of the Russian Federation of the necessary information confirming the status of the particular person and lack of obligations at it on payment of insurance premiums for mandatory pension insurance was provided.

3. 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 provisions revealed in this Determination based on the legal line items of the Constitutional Court of the Russian Federation expressed to them in Determination of May 24, 2005 by N223-O, is obligatory and excludes any other their interpretation in law-enforcement practice.

4. Recognize request of the Soviet district court of the city of Ryazan not subject to further review in meeting of the Constitutional Court of the Russian Federation 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.

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

6. 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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