The Constitutional Court issued a ruling on pensions - Rossiyskaya Gazeta. Military pensioners for Russia and its armed forces Decision of the constitutional court of the Russian Federation pension

CONSTITUTIONAL COURT OF THE RUSSIAN FEDERATION

DEFINITION

AT THE REQUEST OF A GROUP OF DEPUTIES

OF THE STATE DUMA ON CONSTITUTIONALITY VERIFICATION

OF THE PROVISIONS OF THE FEDERAL LAW "ON LABOR PENSIONS

IN THE RUSSIAN FEDERATION" AND ARTICLE 7 OF THE FEDERAL LAW

"ON COMPULSORY PENSION INSURANCE

IN RUSSIAN FEDERATION"

The Constitutional Court of the Russian Federation composed of Chairman V.D. Zorkin, judges M.V. Baglaia, N.S. Bondar, G.A. Gadzhieva, Yu.M. Danilova, L.M. Zharkova, G.A. Zhilina, S.M. Kazantseva, M.I. Kleandrov, A.L. Kononova, L.O. Krasavchikova, Yu.D. Rudkina, A.Ya. Plums, V.G. Strekozova, O.S. Khokhryakova, B.S. Ebzeeva, V.G. Yaroslavtsev,

Having heard in the plenary session the conclusion of Judge S.M. Kazantsev, who, on the basis of Article 41 of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation", conducted a preliminary study of the request of a group of deputies of the State Duma,

Installed:

1. In its request to the Constitutional Court of the Russian Federation, a group of deputies of the State Duma requests that the provisions of Articles 2, 11, 12, 14, 15, 16, 17, and the Federal Law "On labor pensions in the Russian Federation". According to the applicants, these provisions cancel or diminish the previously established pension rights of citizens, and the concepts contained in them "state pension", "labor pension", "pension amounts", "conditions for calculating, indexing and paying pensions", "estimated pension capital" the rights of the majority of Russian citizens are infringed.

In addition, the request states that paragraph 1 of Article 7 of the Federal Law "On Compulsory Pension Insurance in the Russian Federation", which excludes certain categories of citizens from the category of insured persons, does not comply with Articles 17, 18, 20, and the Constitution of the Russian Federation.

2. A group of deputies of the State Duma dispute the constitutionality of a significant number of normative provisions (more than 200), while the request actually lacks the legal substantiation of their position with respect to the majority of the challenged norms, provided for by paragraph 8 of part two of Article 37 of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation".

Thus, the applicants do not indicate what, in their opinion, is the unconstitutionality of Article 2 of the Federal Law "On Labor Pensions in the Russian Federation", which precisely contains definitions of the basic concepts used in this Federal Law, and do not even specify whether all these concepts are unconstitutional. In proposing that part one of Article 3 of the said Federal Law be recognized as inconsistent with the Constitution of the Russian Federation, they only mention that, in accordance with the norm contained therein, all citizens of the Russian Federation who are insured in accordance with the Federal Law "On Compulsory Pension Insurance in the Russian Federation" have the right for a retirement pension. What is the unconstitutionality of the reference norm of Article 6 of the Federal Law "On Labor Pensions in the Russian Federation", which establishes that the procedure for financing labor pensions is determined on the basis of the Federal Law "On Compulsory Pension Insurance in the Russian Federation", is also not indicated in the request. Challenging the Federal Law "On labor pensions in the Russian Federation", which establishes the right to early assignment of a labor pension, the applicants do not specify which provisions of this article establish, in their opinion, more stringent conditions for granting a labor pension.

The request states that paragraph 1 of Article 7 of the Federal Law "On Compulsory Pension Insurance in the Russian Federation" and paragraph 2 of Article 11 of the Federal Law "On Labor Pensions in the Russian Federation", which indicate non-insurance periods of employment of citizens counted in the insurance period, the rights of citizens are limited: by paragraph 1 of Article 7 of the Federal Law "On Compulsory Pension Insurance in the Russian Federation" - since it does not include students, military personnel and other persons among the insured persons, and by paragraph 2 of Article 11 of the Federal Law "On Labor Pensions in the Russian Federation" , according to which the non-insurance periods indicated in this article are counted in the insurance period only if they preceded or were followed by periods of work or other activities during the period of which insurance premiums would be paid to the Pension Fund of the Russian Federation, - since, by virtue of the Law of the Russian Federation " On State Pensions in the Russian Federation", which was in force prior to the entry into force of the contested Federal Laws, such additional conditions were not required to include the same periods in the length of service. In addition, the Federal Law "On labor pensions in the Russian Federation", according to which the calculation of the insurance period required for acquiring the right to a labor pension, is carried out in a calendar order for all categories of pensioners, violates, according to the applicants, the constitutional rights of persons who worked in districts the Far North and equivalent areas, participants in the liquidation of the accident at the Chernobyl nuclear power plant, mothers of large families and citizens of other categories, in respect of which there was previously a preferential calculation of some non-insurance periods credited to seniority.

Thus, the applicants unreasonably equate the institutions of insurance experience and total length of service. Under the insurance experience, which is referred to, in particular, in the Federal Law "On Labor Pensions in the Russian Federation", as well as in paragraph 1 of Article 7 of the Federal Law "On Compulsory Pension Insurance in the Russian Federation", is understood to be taken into account when determining the right to employment pension - the total duration of periods of work and (or) other activities during which insurance premiums were paid to the Pension Fund of the Russian Federation, as well as other periods counted in the insurance period; its value does not affect the size of the labor pension. The concept of "general length of service" is used in the aforementioned Federal Laws to determine the procedure for calculating the estimated amount of the labor pension, the amount of the estimated pension capital and the length of service coefficient affecting the estimated amount of the labor pension, and is also taken into account in the early assignment of pensions to certain categories of citizens (paragraphs 2, and 4 Article 30 of the Federal Law "On labor pensions in the Russian Federation"). Consequently, the applicants are actually contesting the constitutionality of changing the procedure for accounting for the total work experience established by the Federal Law "On labor pensions in the Russian Federation" and not insurance (Article 11 and the Federal Law "On labor pensions in the Russian Federation", the Federal Law "On compulsory pension insurance in Russian Federation").

Thus, the request of a group of deputies of the State Duma regarding the verification of the constitutionality of the provisions of Articles 2, 11, and the Federal Law "On Labor Pensions in the Russian Federation" and Article 7 of the Federal Law "On Compulsory Pension Insurance in the Russian Federation" cannot be accepted by the Constitutional Court of the Russian Federation for consideration, since it does not meet the requirements of paragraph 8 of the second part of Article 37 of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation".

3. 15, 16, and the Federal Law "On Labor Pensions in the Russian Federation", respectively, the amount of old-age labor pensions, labor disability pensions, labor pensions for the loss of a breadwinner and the procedure for their calculation, as well as the procedure for determining, recalculating, indexing and adjustments to the size of labor pensions.

According to the applicants, the level of social security fixed by them does not guarantee every pensioner the right to an adequate standard of living for him and his family, which violates Articles 7 and (Part 1) of the Constitution of the Russian Federation and the International Covenant on Economic, Social and Cultural Rights; the human right to an "adequate standard of living", which is recognized by the states parties to the International Covenant on Economic, Social and Cultural Rights, corresponds to the obligation of the state to establish such a minimum pension that would be higher than the subsistence minimum and would be guaranteed by the federal budget, and not the budget of the Pension fund of the Russian Federation.

In other words, the applicants, in fact, propose a significant increase in the amount of the minimum pension, although they are not contesting the constitutionality of paragraph 8 of Article 14 and paragraph 4 of Article 15 similar to it and paragraph 4 of Article 16 of the Federal Law "On labor pensions in the Russian Federation", which stipulate that the sum of the basic part and the insurance part of the old-age labor pension (as well as for disability and loss of a breadwinner) cannot be less than 660 rubles per month, but the totality of the normative provisions of these articles (a total of 92 paragraphs).

The Constitution of the Russian Federation, in accordance with the goals of the welfare state, part 1) guaranteeing everyone social security in old age, in case of illness, disability, loss of a breadwinner, for raising children and in other cases established by law, part 1), defines the conditions and procedure for the implementation of this constitutional law, including the establishment of pensions, to the competence of the legislator. This corresponds to the International Covenant on Economic, Social and Cultural Rights, which, while fixing the obligation of the state to provide each person with an adequate standard of living, does not specify what measures should be taken to ensure such a standard.

Since the resolution of the issue of increasing the minimum amount of a labor pension does not apply to the powers of the Constitutional Court of the Russian Federation, provided for by Article 125 of the Constitution of the Russian Federation and Article 3 of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation", the request of a group of deputies of the State Duma regarding the verification of the constitutionality of the provisions Articles 14, 15, 16, and the Federal Law "On labor pensions in the Russian Federation", also cannot be accepted by the Constitutional Court of the Russian Federation for consideration.

4. A group of deputies of the State Duma sees a violation of the right to social security, as well as equality of citizens, in the fact that for those who retired before the entry into force of the Federal Law "On labor pensions in the Russian Federation", the maximum pension (according to the applicants' calculations ) is limited to the amount of 1504 rubles, while with a later appointment of a pension, such a limit is not set; discrimination in the right to social security consists, according to them, in the fact that for persons receiving pensions in accordance with the Federal Law “On State Pension Provision”, there is a different calculation system than for pensioners provided in accordance with the contested Federal Law and indexation of pensions, allowing to pay a pension at a higher rate.

The request indicates that the regulatory provision regulating this issue is contained in the totality of the norms of Chapter 4 of the Federal Law "On Labor Pensions in the Russian Federation" (Articles 14 - and in its

CONSTITUTIONAL COURT OF THE RUSSIAN FEDERATION

DEFINITION

ON COMPLAINT OF CITIZEN YURI IVANOVICH SPESIVTSEV

FOR VIOLATION OF HIS CONSTITUTIONAL RIGHTS BY THE PROVISIONS

OF ARTICLE 12 PART ONE AND ARTICLE 133.1

LAW OF THE RUSSIAN FEDERATION "On STATE

PENSIONS IN THE RUSSIAN FEDERATION"

The Constitutional Court of the Russian Federation composed of Chairman M.V. Baglaia, judges N.S. Bondar, G.A. Gadzhieva, Yu.M. Danilova, L.M. Zharkova, G.A. Zhilina, V.D. Zorkina, S.M. Kazantsev, A.L. Kononova, Yu.D. Rudkina, N.V. Selezneva, A.Ya. Plums, V.G. Strekozova, O.S. Khokhryakova, B.S. Ebzeeva, V.G. Yaroslavtsev,

after hearing in plenary session the conclusion of Judge O.S. Khokhryakova, who, on the basis of Article 41 of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation", carried out a preliminary study of the complaint of citizen Yu.I. Spesivtseva,

installed:

1. Citizen Yu.I. Spesivtsev disputes the constitutionality of the provision of paragraph "a" of the first part of Article 12 of the Law of the Russian Federation of November 20, 1990 "On State Pensions in the Russian Federation" (with subsequent amendments and additions), which provides for the establishment of persons who worked in underground work, work with harmful conditions work and in hot shops, old-age pensions due to special working conditions, as well as article 133.1 of the same Law, which establishes the rule on the inclusion in the special length of service, taking into account which the old-age pension is established, the time of work that previously gave the right to a pension on preferential terms.

As follows from the complaint and the materials attached to it, Yu.I. Spesivtsev, who works at a plant that is part of the Mayak production association, from August 30, 1968 to January 11, 1976 (7 years and 4 months) was employed in production with especially harmful working conditions - he worked as a mechanic for instrumentation and automation of the OGP in shop No. 1.In accordance with the regulatory legal acts in force at that time, when performing work with harmful working conditions (according to the List of industries, workshops, professions and positions approved by the Council of Ministers of the USSR), workers were entitled to a pension on preferential terms, in particular men - upon reaching 50 years and with work experience of at least 20 years, if at least half of it was in these works(subparagraph "a" of paragraph 16 and paragraph one of paragraph 92 of the Regulations on the procedure for the appointment and payment of state pensions, approved by the Decree of the Council of Ministers of the USSR of August 4, 1956 N 1044). At the same time, as an exception to this rule, Decree of the Council of Ministers of the USSR of April 17, 1959 N 416-90 established that workers and employees directly involved in the production of highly toxic and especially harmful radioactive substances applicant), old-age pensions on preferential terms are assigned if there is a shorter work experience in these productions, in particular in men - six years old.

In November 1998, upon reaching the age of 50, Yu.I. Spesivtsev applied to the personnel department of the Mayak Production Association with an application for granting him an old-age pension on favorable terms, however, he was notified that the administration had no legal grounds for submitting his documents for the appointment of such a pension, since from January 1, 1992, in accordance with paragraph "a" of the first part of Article 12of the Law of the Russian Federation "On State Pensions in the Russian Federation", the condition for granting a pension in connection with special working conditions, including for persons who were employed in the production of highly toxic and especially harmful radioactive substances, is the presence of a longer special work experience - for men at least 10 years.

Considering the refusal unreasonable, Yu.I. Spesivtsev filed a lawsuit against the Mayak Production Association and the Committee for Social Protection of the Population of the Ozersk city administration to recover the unpaid pension and impose on the Mayak Production Association the obligation to draw up documents for the assignment of the appropriate pension.On December 1, 2000, by the decision of the magistrate of judicial district No. 1 of the city of Ozersk, his claim was also dismissed with reference to paragraph "a" of the first part of Article 12 of the Law of the Russian Federation "On State Pensions in the Russian Federation". The court decision states that the applicant's work experience with especially harmful working conditions (7 years and 4 months) gave him the right to a pension upon reaching the age of 50 only before the entry into force of the Law of the Russian Federation "On State Pensions in the Russian Federation" ; at the time of his application for a pension, Decree of the Council of Ministers of the USSR of April 17, 1959 N 416-90, establishing such a right, became invalid and, therefore, without 10 years of work experience in harmful working conditions, Yu.I. Spesivtsev is not entitled to demand a pension for him in connection with special working conditions upon reaching the age of 50.

By the definition of the Ozersk City Court of the Chelyabinsk Region of February 23, 2001, this decision was left unchanged, and the appeal of Yu.I. Spesivtseva - without satisfaction. The prosecutor's office of the Chelyabinsk Region and the Chelyabinsk Regional Court, to which the applicant complained, found no grounds to challenge the judgments rendered in his case.

In his complaint to the Constitutional Court of the Russian Federation Yu.I. Spesivtsev claims that the provisions of point "a" of the first part of Article 12 and Article 131.1 of the Law of the Russian Federation "On State Pensions in the Russian Federation", which deprived him of the right to retire upon reaching the age of 50 and the right to timely receive a full old-age pension in connection with special working conditions, violate its constitutionalrights and do not comply with Articles 1 (Part 1), 19 (Parts 1 and 2), 37 (Part 3), 55 (Parts 2 and 3) and 57 of the Constitution of the Russian Federation.

2. The Constitution of the Russian Federation guarantees everyone social security in old age, in case of illness, disability, loss of a breadwinner, for the upbringing of children and in other cases established by law (Article 39, Part 1). The constitutional right to social security also includes the right to receive a pension in cases and amounts specified by law.

The Law of the Russian Federation "On State Pensions in the Russian Federation", establishing the types of labor pensions and fixing as the general legal grounds for establishing an old-age pension the achievement of a retirement age of 60 years for men and 55 years for women, as well as the presence of a total length of service of at least 25 years for men and at least 20 years for women (Article 10), provided for the rightcertain categories of workers to receive an old-age pension due to special working conditions: for men - upon reaching the age of 50 and for women - upon reaching the age of 45, if they have worked, respectively, for at least 10 years and 7 years 6 months in underground work, in work with hazardous working conditions and in hot shops and their total length of service - at least 20 and 15 years (paragraph "a" of the first part of Article 12).

As follows from Article 27 of the Federal Law of December 17, 2001 "On Labor Pensions in the Russian Federation", which entered into force on January 1, 2002, the right to early appointment of an old-age labor pension under the specified conditions is preserved if the insured person has worked at underground work, at work with harmful working conditions and in hot shops, at leasthalf of the required period as of January 1, 2003, and in the case of granting an old-age labor pension in the period from January 1 to December 31, 2002 - on the day from which this pension is granted (subparagraph 1 of paragraph 1 and paragraph 3).

The introduction by the legislator of special rules for establishing an old-age pension for persons employed in underground work, work with harmful working conditions and in hot shops was due to the fact that long-term employment in such work is associated with an unavoidable adverse effect on the health of workers from harmful physical, chemical, biological and other factors. The criterion of particular hazard and high toxicity of radioactive substances was also decisive for a significant reduction - in accordance with the Decree of the Council of Ministers of the USSR of April 17, 1959 N 416-90 - the length of service required for the appointment of a pension on preferential terms for persons employed in production these substances (from 10 to 6 years for men).

In accordance with the Constitution of the Russian Federation, in the Russian Federation, as a social state, the labor and health of people are protected (Article 7) and everyone has the right to work in conditions that meet the requirements of safety and hygiene, and to protect health (Article 37, Part 3; Article 41, part 1). Within the meaning of these provisions, the state is obliged to take all necessary measures to reduce the negative consequences for the health of workers working in conditions of particular hazard, including by providing them with additional guarantees and compensations, which include, in particular, the opportunity to retire in old age at an earlier age and with a shorter total length of service.

The legal nature of this type of pension determined the peculiarities of acquiring the right to establish such a pension, as well as the nature and content of the state's obligations in relation to those citizens who acquired the right to receive it.

Within the meaning of the provisions of Articles 2, 10, 12, 13, 16, 88 and 92.1 of the Law of the Russian Federation "On State Pensions in the Russian Federation", the right to receive a pension in connection with special working conditions, this Law (as well as the previous regulatory legal acts of the Union SSR) associated with the employee's special length of service (total duration of a certain labor activity) - in this case, the length of service undergroundwork, work with harmful working conditions and in hot shops.

Legal relations connected with the acquisition of a special seniority (performing the specified work), as a rule, are completed before the retirement age. Having worked a certain period in production with especially harmful working conditions and acquiring thus, the special length of service required for the appointment of a pension on preferential terms, the employee can change his place of work or leave work altogether if he has the necessary general length of service. When making this or that decision, a citizen is guided by the norms that determine the duration of the special work experience and the legal consequences that occur if there is a length of service (general and special) required for the length of service, provided for by the legislation in force during this period.

According to Article 6 of the Law of the Russian Federation "On State Pensions in the Russian Federation", citizens can apply for a pension at any time after the right to it arises, regardless of the nature of their occupation at the time of application. With regard to old-age pension in connection with special working conditions, this means that a citizen who has the length of service (general and special) necessary for granting a pension, but who stopped working before reaching the appropriate retirement age, is assigned upon reaching this age.

However, the named legal grounds (length of service and age) cannot be considered as equivalent, since their role in the mechanism for the realization by citizens of the right to a labor pension is different. This conclusion is based on the fact that, as the Constitutional Court of the Russian Federation has repeatedly noted, pensions assigned to citizens in connection with labor or other activities that the legislator recognizes as socially useful are earned, deserved by previous work (Decrees of October 16, 1995 in the case of verification the constitutionality of Article 124 of the Law of the RSFSR "On State Pensions in the RSFSR", of June 15, 1998, the provisions of Articles 2, 5 and 6 of the Law of the Russian Federation "On the payment of pensions to citizens leaving for permanent residence outside the Russian Federation", determinations of March 1, 2001 on the complaint of citizen S.Ya. Bykhovsky to the violation of his constitutional rights by the provision of Article 1 of the Law of the Russian Federation "On pensions for persons who have served in the military, served in the internal affairs bodies, institutions and bodies of the penitentiary system, and their families", and on the complaints of citizens V.Ya. Martens and L.S. Stolpner about the violation of their constitutional rights by the provisions of Articles 4 and 117 of the Law of the Russian Federation "On State Pensions in the Russian Federation").

Based on this, the length of service in a complex set of legal facts, on the basis of which legal relations arise on pension provision and the right to a pension is realized in connection with special working conditions, is a basic legal fact, i.e. fact conferral(the same as the fact of disability or the fact of loss of a breadwinner), while the fact of reaching retirement age acts as a legally significant prerequisite that allows the citizen to realize the right to an old-age labor pension already existing for a citizen. The relevant legal position, according to which the right to receive a monthly life allowance for retired judges, is not related to the achievement by them at the time of retirement of a certain age, named in the Law of the Russian Federation "On the Status of Judges in the Russian Federation", is set out by the Constitutional Court of the Russian Federation in the Ruling of February 19, 2002 in the case of reviewing the constitutionality of certain provisions of Article 15 of the Law of the Russian Federation "On the Status of Judges in the Russian Federation", Article 2 of the Federal Law "On Amendments and Additions to the Law of the Russian Federation "On the Status of Judges in the Russian Federation" and part one of Article 7 of the Federal Law "On Additional Guarantees of Social Protection of Judges and Staff Workers courts of the Russian Federation.

3. As stated in Article 1 of the Law of the Russian Federation "On State Pensions in the Russian Federation", state pensions in the Russian Federation are established in accordance with this Law.

Fixing the right of persons who worked in underground work, work with harmful working conditions and in hot shops to retire due to special working conditions and regulating the main issues related to this type of pension provision, the legislator did not establish any rules in the said Law. on the preservation of the previously acquired right to a pension upon reaching the age of 50 for persons who were employed in specified works before its entry into force and already had, by the day the relevant norms came into force, the length of service giving them the right to an old-age pension on preferential terms (similar to those rules that were provided, in particular, by Article 127 of the Law of the USSR of May 15, 1990 "On Pensions for Citizens in the USSR" and are currently enshrined in Article 27 of the Federal Law of December 17, 2001 "On labor pensions in the Russian Federation").

Therefore, within the meaning of the provision of paragraph "a" of part one of Article 12 of the Law of the Russian Federation "On State Pensions in the Russian Federation" in conjunction with its Article 1, the requirement contained therein for the length of experience of underground work, work with harmful working conditions and in hot shops (at least 10 years) - as a condition determining the right to establish a pension in connection with special working conditions (old-age pensions on favorable terms) upon reaching the age of 50 and with a total length of service of at least 20 years, refers to all persons who worked in such jobs and to whom a pension was granted after the entry into force of this Law, regardless of whether they, in accordance with the previous legal regulation, have the right to establish a pension upon reaching the age of 50 or No.

The established law enforcement practice (confirmed by the letters received by the Constitutional Court of the Russian Federation in connection with the proceedings on this complaint from the Pension Fund of the Russian Federation, the Ministry of Labor and Social Development of the Russian Federation, the Ministry of the Russian Federation for Atomic Energy) also indicates that the bodies authorized to decide appointment of a pension in connection with special working conditions in accordance with paragraph "a" of the first part of Article12 of the Law of the Russian Federation "On State Pensions in the Russian Federation" proceed from the mandatory minimum ten years of work experience in hazardous working conditions for all applicants for the specified pension, including workers previously directly involved in the production of highly toxic and especially harmful radioactive substances.

Thus, by virtue of the prescription of paragraph "a" of the first part of Article 12 of the Law of the Russian Federation "On State Pensions in the Russian Federation" Yu.I. Spesivtsev, who, as of the date of entry into force of this Law, has 7 years and 4 months of work experience in the production of highly toxic and especially harmful radioactive substances and a total work experience of more than 20 years, as well as other citizens whose work experiencein the named production was less than 10, but more than 6 years, and the total length of service was not less than 20 years, but, as those who did not reach the age of 50 before January 1, 1992, did not exercise their right to establish a pension on preferential terms, lost the right to receive pensions upon reaching the age of 50, which they acquired in accordance with the previous regulatory legal acts.

4. The question of the constitutionality of the norms, by virtue of which citizens lose the rights acquired by them in accordance with the previous legislation, has already been the subject of consideration by the Constitutional Court of the Russian Federation, in particular in the case of checking the constitutionality of the provisions of the Federal Law "On Housing Subsidies to Citizens Leaving the Regions of the Extreme North and equated localities", which changed the conditions for providing housing subsidies to citizens who left these regions and localities before the entry into force of this Federal Law, increasing for them from 10 to 15 years the minimum required work experience (time of residence) in the regions of the Far North and localities equated to them, giving them the right to receive such a subsidy.

In the Ruling dated May 24, 2001 in this case, the Constitutional Court of the Russian Federation found these provisions inconsistent with Articles 1 (part 1), 19 (parts 1 and 2) and 55 (parts 2 and 3) of the Constitution of the Russian Federation to the extent that the requirement stipulated by them for a minimum 15-year work experience (time of residence) in the regions of the Far North and equated toin the localities, which gives the right to receive housing subsidies at the expense of the federal budget, was extended to citizens who, in accordance with the previous legislation, acquired such a right if they had at least 10 years of work experience in these districts and localities.

At the same time, the Constitutional Court of the Russian Federation confirmed the right of the legislator to make changes to the current legal regulation that have an adverse effect on the legal status of citizens, while ensuring compliance with constitutional requirements, in particular those arising from the principle of maintaining citizens' confidence in the law and the actions of the state.

According to the legal position formulated by the Constitutional Court of the Russian Federation, the introduction by the legislator of amendments to the conditions for acquiring the right to receive a housing subsidy relating to citizens who have already fulfilled the previously established requirements and, based on them, before the entry into force of the new regulation, who have committed legally significant actions, in essence, means the state’s refusal to fulfillment in specific legal relations of their public-legal obligations arising from the previously existing regulation andlaw enforcement acts that have taken place, which not only undermines confidence in the actions of the state, in the law, but also leads to a violation of the constitutional principle of equality, since in this case equal conditions for the exercise by citizens of their acquired right are not provided.

As stated in the Decree of May 24, 2001, the extension of the requirement of a minimum 15-year work experience (time of residence) in the regions of the Far North and in areas equivalent to them as a condition for acquiring the right to receive housing subsidies for persons who have already been granted such a right if there is at least 10 years of work experience in the indicated regions and localities and who, up toof the entry into force of the new legal regulation have already left the regions of the Far North and areas equated to them and were registered at the new place of residence as in need of better housing conditions, which means, in essence, giving retroactive effect to the law worsening the situation of citizens, and thereby cancellation for these persons of the right acquired by them in accordance with the previous legislation and implemented in specific legal relations, is incompatible with the requirements arising from Articles 1 (Part 1), 2, 18, 54 (Part 1), 55 (Parts 2 and 3) and 57 of the Constitution of the Russian Federation.

The above legal positions, set out in the Decree that remains in force, are fully applicable in assessing the constitutionality of the provision of paragraph "a" of the first part of Article 12 of the Law of the Russian Federation "On State Pensions in the Russian Federation".This provision - to the extent that it extends the requirement stipulated by it for a minimum 10-year experience of underground work, work with harmful working conditions and in hot shops, giving the right to a pension in connection with special working conditions upon reaching 50 years of age and at total work experience of at least 20 years, for persons who, prior to the entry into force of this Law in accordance with the previous regulatory legal acts, have already acquired the right to this pension as having a work experience with especially harmful working conditions, namely in the production of highly toxic and especially harmful radioactive substances, for at least 6 years and a total work experience of at least 20 years, and thus thereby deprives them of the right to receive a pension due to special working conditions upon reaching the age of 50, - in essence, similar to the normative provision recognized in the Resolution of the Constitutional Court of the Russian Federation of May 24, 2001 as not consistent with the Constitution of the Russian Federation. A change in the conditions for establishing a pension in connection with special working conditions for this category of persons is in this case such a restriction of the constitutional right to social security that cannot be justified by the goals specified in Article 55 (part 3) of the Constitution of the Russian Federation, for the sake of achieving which it is allowed to limit the federal the law of the rights and freedoms of man and citizen.

Within the meaning of Article 125 (point "b" of part 2 and part 6) of the Constitution of the Russian Federation and the provisions of paragraph 3 of part one of Article 43, parts two and three of Article 79 and Article 87 of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation" specifying it, in their relationship, the Constitutional Court of the Russian Federation, having come to the conclusion that the appeal disputed the normative provisions that By essence are the same as those previously recognized by him as inconsistent with the Constitution of the Russian Federation, confirms by his decision in the form of a ruling that these provisions are also inconsistent with the Constitution of the Russian Federation and, as such, cannot have legal force and are not subject to application, and therefore further proceedings stops upon request.

5. According to Article 133.1 of the Law of the Russian Federation "On State Pensions in the Russian Federation", the time until January 1, 1992, underground work, work with harmful working conditions and in hot shops, as well as other work with difficult working conditions, which gave until January 1, 1992 the right to receive a pension on favorable terms, is counted in the special length of service, taking into account which the old-age pension on a par with the work specified in paragraphs "a" and "b" of Article 12 of this Law, respectively.

The said norm does not define the scope of the prescription of paragraph "a" of the first part of Article 12 of the Law of the Russian Federation "On State Pensions in the Russian Federation" on the minimum duration of work experience with harmful working conditions, giving the right to a pension due to special working conditions. Its intended purpose is to preserve for persons who, prior to the entry into force of this Law, worked in industries with harmful and difficult working conditions (according to Lists No. 1 and No. 2), pension benefits due to the presence of special seniority, and, therefore, as such, it does not have a discriminatory nature and cannot be considered as violating the constitutional right of citizens to pensions.

Based on the foregoing and guided by Articles 18 and 125 (parts 4 and 6) of the Constitution of the Russian Federation, as well as Article 6, paragraphs 2 and 3 of the first part of Article 43, parts one and two of Article 79, parts two and four of Article 87 and Article 100 of the Federal constitutional law "On the Constitutional Court of the Russian Federation", the Constitutional Court of the Russian Federation

defined:

1. The provision of paragraph "a" of part one of Article 12 of the Law of the Russian Federation "On State Pensions in the Russian Federation" - to the extent that it extends the requirement stipulated by it for a minimum 10-year experience of underground work, work with harmful working conditions and in hot workshops, which gives the right to an old-age pension due to special working conditions upon reaching 50 years of age and upon total work experience of at least 20 years, for persons who, prior to the entry into force of the said Law in accordance with the previous regulatory legal acts, acquired the right to such a pension, since they had at least 6 years of work experience in the production of highly toxic and especially harmful radioactive substances and a total work experience of at least 20 years - as similar to the provision previously recognized by the Constitutional Court of the Russian Federation that do not comply with the Constitution of the Russian Federation, its articles 1 (part 1), 19 (parts 1 and 2), 39 (part 1) and 55 (parts 2 and 3), becomes invalid and is not subject to application by courts, other bodies and official persons.

2. Complaint by citizen Yu.I. Spesivtsev in the part concerning the verification of the constitutionality of paragraph "a" of the first part of Article 12 of the Law of the Russian Federation "On State Pensions in the Russian Federation", is not subject to further consideration in a session of the Constitutional Court of the Russian Federation, since the resolution of the issue raised by the applicant does not require the issuance of the one provided for in Article 71 Federal Constitutional Law "On the Constitutional Court of the Russian Federation" final decision in the form of a resolution.

3. In accordance with the second part of Article 100 of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation", the case of citizen Yury Ivanovich Spesivtsev is subject to review in the prescribed manner, taking into account this Ruling.

4. Refuse to accept for consideration the complaint of citizen Yu.I. Spesivtsev in the part concerning the verification of the constitutionality of Article 133.1 of the Law of the Russian Federation "On State Pensions in the Russian Federation", since in this part it does not meet the requirements of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation", according to which the complaint can be recognized as admissible.

5. The ruling of the Constitutional Court of the Russian Federation on this complaint is final and not subject to appeal.

Chairman

Constitutional Court

Russian Federation

M.V.BAGLAI

Judge - secretary

Constitutional Court

Russian Federation

Yu.M.DANILOV

As of: 08.08.2005
Magazine: Directory of personnel officer
Year: 2005

Determination of the total length of service Calculation of the insurance period

Since January 1, 2002, labor pensions have been established in accordance with Federal Law No. 173-FZ of December 17, 2001 “On Labor Pensions in the Russian Federation” (hereinafter referred to as the Law on Labor Pensions).

The specified federal law distinguishes several types of length of service, which are used in the establishment of labor pensions.

To acquire the right to a pension, an insurance period of a certain duration is required, and for early old-age pensions assigned before reaching the age of 60 and 55 years (men and women, respectively), in addition to the insurance (or instead of the insurance period), it is necessary to have experience in the relevant types of work.

Determination of the total length of service

When determining the amount of the pension, the total length of service acquired as of January 1, 2002 is taken into account. In order to better understand the essence of the changes that have occurred in pension legislation in connection with the adoption of the Law on Labor Pensions, one should consider the features of calculating the total length of service.

In accordance with the new law, the labor pension can currently consist of two parts: basic and insurance. The size of the basic part of the labor pension does not depend on the length of service. A the insurance part of the labor pension is determined from the amount of the estimated pension capital, which can be roughly divided into two components.

One part of it is formed from the actual insurance pension contributions, which are paid from the earnings (income) of a citizen starting from January 1, 2002.

The second part of the pension capital is determined by assessing the pension rights of the insured persons, acquired as of January 1, 2002, by converting (converting) them into the estimated pension capital.

As for the assessment of pension rights, it is carried out on the basis of a conditional (or actual, if a citizen was a pensioner) pension (in the law this conditional pension is named: “estimated amount of labor pension”), calculated according to the norms of the old pension legislation, which a citizen could receive as of January 1, 2002, taking into account the available total length of service as of that date and average monthly earnings for 2000–2001. or for any 60 consecutive months up to January 1, 2002.

The procedure for assessing the pension rights of insured persons is set out in Art. 30 of the Law on labor pensions.

The formula for determining the estimated pension capital (conversion) is given in paragraph 1 of Art. thirty:

PC \u003d (RP - BCH) x T,
where RP is the estimated amount of the labor pension;
Warhead - 450 rubles. (the amount of the basic part of the old-age labor pension as of January 1, 2002);
T is the expected period of payment of the labor old-age pension, in 2002 equal to 144 months, thereafter this value increases annually by 6 months until it reaches 192 months, after which it increases annually by 12 months until it reaches 228 months (19 years) . In 2005, therefore, T is equal to 162 months.

As already mentioned, the RP is calculated based on the total length of service available as of January 1, 2002.

Periods of labor and other activities counted in the total length of service (according to paragraph 4 of article 30 of the Law on labor pensions):
- periods of work as a worker, employee (including work for hire outside the territory of Russia), a member of a collective farm or other cooperative organization; periods of other work in which the employee, not being a worker or employee, was subject to mandatory pension insurance; periods of work (service) in the paramilitary guards, special communications agencies or in the mine rescue unit, regardless of its nature; periods of individual labor activity, including in agriculture;
- periods of creative activity of members of creative unions of writers, artists, composers, cinematographers, theatrical figures, as well as writers and artists who are not members of the relevant creative unions;
- military and equivalent service;
- periods of temporary disability that began during the period of work, and the period of being on disability of groups I and II, received as a result of an injury associated with production, or an occupational disease;
- the period of stay in places of detention in excess of the period appointed during the review of the case;
- periods of receiving unemployment benefits, participation in paid work, moving in the direction of the employment service to another area and employment.

All these periods are counted in the total length of service in calendar order (one month of work and other activities for one month of experience).

As you can see, this list lacks many periods that, at first glance, were included in the total length of service when calculating pensions under the old legislation (according to the Law of the Russian Federation of November 20, 1990 No. 340-1 “On State Pensions in the Russian Federation”). For example, among them there is no period of study, a period of childcare, a period of residence of wives (husbands) of military servicemen under contract, together with their husbands (wives) in areas where they could not work in their specialty due to the lack of employment opportunities, the period of residence abroad of wives (husbands) of employees of Soviet institutions and international organizations, etc. In addition, as mentioned above, when calculating the total length of service for assessing the pension rights of insured persons, the preferential procedure for calculating the length of service that existed earlier (for example, the period of participation in hostilities during the war years was counted in the length of service in a triple amount, work in the rear - in a double amount, military service by conscription - in a double amount, etc.).

However, it seems so only at first glance.

Recall that from February 1, 1998 to January 1, 2002 in the Russian Federation there were two procedures for calculating (calculating) pensions, which operated in parallel with each other: using the individual pensioner coefficient (IPC; in accordance with the Federal Law of 07.21.97 113-FZ “On the procedure for calculating and increasing state pensions”) and without applying the individual pensioner coefficient.

If a citizen had the right to both methods of calculating pensions (and only non-working pensioners had such a right, since pensions were not paid to working pensioners using the ICP), then he could choose any of them.

When determining the individual coefficient of a pensioner, not all periods of labor and other socially useful activities that were taken into account when calculating a pension without an ICP were included in the length of service. Therefore, ceteris paribus, the length of service when calculating a pension with an ICP was, as a rule, less than when calculating a pension without an ICP.

When determining the ICP, the length of service included only periods of work, military and equivalent service, and some other periods listed in the law. In particular, there was no study among them (i.e., the periods of study were not included in the length of service when calculating the pension with the ICP). At the same time, all periods were counted in the length of service in calendar order (one month of work - for one month of experience). Meanwhile, when calculating a pension without an ICP, not only all types of work, but also periods of other socially useful activities provided for by law, including the time of the same study, periods of stay with husbands (wives) in remote garrisons, etc. e. In the cases established by law, the relevant periods were included in the length of service on a preferential basis.

As already noted, a citizen could choose in what order his pension would be calculated - with the use of the ICP or without the use of the ICP and, accordingly, whether the relevant periods would be included in his total length of service, including using, in established cases, the preferential procedure for calculating the length of service or not. In most cases, the size of the pension with the use of the ICP was higher even without including all these other periods in the seniority, so non-working pensioners, as a rule, ! chose the option of calculating the pension using the ICP. This is due to the fact that the old-age pension without the use of the ICP could not exceed the maximum amount, which, with a total length of service equal to that required for the appointment of a full pension, was set at the level of three minimum pension amounts. The maximum size of the preferential pension under List No. 1 was set by Decree of the Government of the Russian Federation No. 537 of July 18, 2002 (particularly harmful and dangerous work) at 3.5 times the minimum old-age pension.

The minimum old-age pension as of December 31, 2001 was 185 rubles. 32 kop. In addition to the maximum pension, a compensation payment of 100 rubles was still due. So consider for yourself what the maximum pension could be. Pensions with the use of the ICP were not formally limited by the maximum size. We will not present detailed calculations. Our goal is to briefly recall the previous legislation.

The formula for determining the RP (the estimated amount of the labor pension), set out in paragraph 2 of Art. 30 of the Law on Labor Pensions, taking into account the provisions of paragraph 4 of this article, actually reproduces the previously existing formula for determining the amount of a pension using the ICP. Moreover, this formula, according to the new law, is applied regardless of whether a citizen works or not.

As already mentioned, two options for calculating the total length of service were used only to determine the amount of the pension. When calculating the total length of service giving the right to a pension, it included all periods of labor and other activities.

Calculation of insurance experience

According to the new pension law, the right to an old-age pension (in addition to reaching the appropriate age) is associated with the presence of insurance (and not general labor) experience of a certain duration.

Insurance experience - taken into account when determining the right to a labor pension, the total duration of periods of work and (or) other activities during which insurance premiums were paid to the Pension Fund of the Russian Federation, as well as other periods counted in the insurance experience

The law divides the periods that can be taken into account when determining the right to a labor pension into two types.

Firstly, these are periods of work and other activities during which insurance premiums were paid to the Pension Fund of the Russian Federation (Article 10 of the Law on Labor Pensions).

According to paragraph 2 of Art. 29 of the Law on Labor Pensions, the payment of contributions to state social insurance before January 1, 1991, the single social tax (contribution) and the single tax on imputed tax for certain types of activities that took place in the period before entry by virtue of the federal law in question.

Secondly, these are other periods counted in the insurance period. During these periods, the payment of insurance premiums (and other payments equated to them) to the Pension Fund was not made, however, by virtue of the law, they are counted in the insurance period under certain conditions.

The list of such other periods is exhaustively given in Art. 11 of the Law on labor pensions:
1) the period of military service, as well as other service equivalent to it, provided for by the Law of the Russian Federation of February 12, 1993 No. trafficking in narcotic drugs and psychotropic substances, institutions and bodies of the penitentiary system, and their families”;
2) the period of receipt of state social insurance benefits during the period of temporary incapacity for work;
3) the period of care of one of the parents for each child until he reaches the age of 1.5 years, but not more than 3 years in total;
4) periods of receiving unemployment benefits, participation in paid public works and moving to another area for employment by the direction of the state employment service;
5) the period of detention of persons unreasonably brought to criminal responsibility, unreasonably repressed and subsequently rehabilitated, and the period of serving the sentence by these persons in places of deprivation of liberty and exile;
6) the period of care provided by an able-bodied person for a disabled person of group I, a disabled child or a person who has reached the age of 80 years.

At the same time, these periods are included in the length of service if they were preceded and (or) followed by periods of work and (or) other activities (regardless of their duration), for which insurance premiums were paid to the Pension Fund of the Russian Federation.

As we can see, this list also lacks many periods that were previously included in the total length of service when determining the right to a pension.

Accordingly, according to the general rules, periods of labor and other activities not specified in Art. 10 and 11 of the Law on Labor Pensions cannot be included in the length of service. It does not matter when these periods were in time - before January 1, 2002 (ie, before the entry into force of the Law on Labor Pensions) or later than this date. Necessary! remember that under the old pension legislation, the right to a full old-age pension on a general basis, for example, a woman arose if she had 20 years of total work experience. A pension, of course, could be assigned even with 5 years of service - the so-called pension for incomplete service, but its size was very small, regardless of the amount of earnings that a person could receive during this period of work. According to the Law on Labor Pensions, the right to an old-age labor pension under general conditions arises upon the presence of 5 years of insurance experience. And if during these 5 years a citizen is able to form a sufficient estimated pension capital due to high incomes and, accordingly, large insurance pension contributions, then the insurance part of the pension will be quite high.

It is unlikely that even without including periods of study and other activities not specified in Art. 10 and 11 of the Law on Labor Pensions, a citizen during his entire career will not gain 5 years of insurance experience.

For example, a woman can be counted in the insurance period for the period of caring for a child until they reach the age of 1.5 years, and if there is more than one child, then 3 years. So, in order to acquire the right to a pension, she only has to work for 3.5 years, or 2 years, respectively.

Another issue is when a citizen applies for an early old-age pension (Articles 27 and 28 of the Law on Labor Pensions) from an earlier age. Such early pensions can be assigned in connection with long-term work in certain harmful (dangerous) professions (positions, industries) or in certain areas (for example, in the regions of the Far North).

To acquire the right to early retirement, you need to have much more experience than 5 years.

For example, in order to acquire the right to an early appointment of an old-age labor pension upon reaching the age of 50 in connection with work in the Far North, a woman must have at least 15 calendar years of work in the regions of the Far North or at least 20 calendar years of work in areas equivalent to them and , in addition, - an insurance period of at least 20 years (see subparagraph 6, paragraph 1, article 28 of the Law on Labor Pensions).

Under such conditions, without including various periods, such as studies, in the insurance period (required 20 years), the right to an early retirement pension in some cases may not arise.

After the entry into force of the Law on labor pensions, the norms of pension legislation have already been repeatedly considered in the Constitutional Court of the Russian Federation, which made a number of very important decisions. Without knowledge of these decisions, the correct assignment and calculation of labor pensions in a number of cases is impossible.

In addition, you should also know the relevant explanations of the federal ministries responsible for uniformity in the practice of applying pension legislation.

With regard to our issue, first of all, we need NAK No. 9,
2005 to get acquainted with the following decisions of the Constitutional Court of the Russian Federation: the decision of the Constitutional Court dated 05.11.02 No. 320-O “On the complaint of citizen Spesivtsev Yuri Ivanovich about the violation of his constitutional rights by the provisions of paragraph “a” of the first part of Article 12 and Article 133.1 of the Law of the Russian Federation “On state pensions in the Russian Federation”, by the ruling of the Constitutional Court of the Russian Federation dated March 6, 2003 No. 107-O “At the request of the Sormovsky District Court of the city of Nizhny Novgorod to verify the constitutionality of subparagraph 2 of paragraph 1, paragraphs 2 and 3 of Article 27 and paragraphs 1 and 2 of Article 31 of the Federal of the Law “On Labor Pensions in the Russian Federation”, Resolution of the Constitutional Court of the Russian Federation dated January 29, 2004 No. Duma, as well as the State Assembly (Il Tumen) of the Republic of Sakha (Yakutia), the Duma of the Chukotka Autonomous Okrug and complaints from a number of citizens.

As for departmental acts, here you need to know NAC No. 9,
2005 clarification of the Ministry of Labor of Russia dated 10/17/03 No. 4 “On some issues of establishing labor pensions in accordance with Articles 27, 28, 30 of the Federal Law “On labor pensions in the Russian Federation”, approved. Decree of the Ministry of Labor of Russia dated October 17, 2003 No. 70 (issued on the basis of the above rulings of the Constitutional Court), and a letter from the Ministry of Health and Social Development of Russia signed by the Minister of NAC No. 9,
2005 M. Yu. Zurabova dated 04.06.04 No. MZ-637 to the Pension Fund of the Russian Federation “On the procedure for applying the provisions of the resolution of the Constitutional Court of the Russian Federation dated January 29, 2004 No. 2-P”.

In this article, we will not analyze in detail the indicated decisions of the Constitutional Court, let the readers familiarize themselves with them if necessary. In addition, we will not analyze all possible cases of calculating the length of service, taking into account these decisions. We will show only the general principles for calculating the length of service, which can now be applied in determining the right to a pension and the amount of a pension.

The essence of the mentioned decisions of the Constitutional Court is that if a citizen has acquired some pension rights during the period of validity of the relevant regulatory legal act in which these rights were enshrined, then he can use these acquired rights when assigning a pension, even if at the time of such appointment, these acts formally ceased to be valid and new legislation is in force. And this applies to both the issue of acquiring the right to a pension, and the issue of calculating the size of the pension.

So, for example, in paragraph 1 of the operative part of the resolution of the Constitutional Court of the Russian Federation dated January 29, 2004 No. 2-P, it is indicated: the norm of paragraph 4 of Art. 30 of the Law on labor pensions, by virtue of which - in conjunction with paragraph 2 of Art. 31 of the same law (and in this paragraph, in particular, it is said that from the date of entry into force of the Law on labor pensions, the Law of the Russian Federation “On state pensions in the Russian Federation” and the Federal law “On the procedure for calculating and increasing state pensions” become invalid) - the preferential (multiple) procedure for calculating the total length of service is excluded and the inclusion of certain non-insurance periods in the total length of service is canceled when calculating the estimated amount of the labor pension in order to assess the pension rights of insured persons as of January 1, 2002 by converting (transforming) them into the calculated retirement! capital, according to its constitutional and legal meaning in the system of norms, cannot serve as a basis for worsening the conditions for exercising the right to pension provision, including the amount of pension that the insured person was counting on before the new legal regulation was put into effect (regardless of whether he developed a general or special full or partial work experience).

In this regard, the Ministry of Health and Social Development of the Russian Federation in its letter to the Pension Fund of the Russian Federation dated 04.06.04 No. MZ-637 reported the following:

“When establishing a pension before January 1, 2002, the norms of the Law of the Russian Federation of November 20, 1990 No. 340-I “On State Pensions in the Russian Federation” were applied. These norms provided for both preferential calculation of general and special length of service when exercising the right to a pension, including determining its size without applying the individual coefficient of the pensioner, and the calendar calculation of the specified length of service when determining its size using the individual coefficient of the pensioner.

The Federal Law “On Labor Pensions in the Russian Federation” does not provide for preferential calculation of the insurance period when determining the right to a labor pension, as well as the total length of service when assessing the pension rights of insured persons by converting it into the estimated pension capital as of January 1, 2002.

The Constitutional Court of the Russian Federation, by Resolution No. 2-P of January 29, 2004, established that the norms of the Federal Law “On Labor Pensions in the Russian Federation” “in their constitutional and legal meaning in the system of norms cannot serve as a basis for worsening the conditions for exercising the right to pension provision, including the amount of pension that the insured person was counting on before the new legal regulation came into effect (regardless of whether he had worked out a general or special length of service in full or in part)”.

Taking into account the above, when determining the right to a labor pension, the calculation of the insurance period and (or) length of service in the relevant types of work that took place before the entry into force of the Federal Law “On Labor Pensions in the Russian Federation” can be carried out according to the norms of the Code in force on December 31, 2001. legal regulation (regardless of the length of service on the specified date) ... "

Thus, if, when calculating the insurance period and length of service in the relevant types of work, strictly according to the norms of the Law on Labor Pensions and regulatory legal acts adopted for the purpose of its implementation, the citizen does not have enough of the necessary length of service (insurance and (or) length of service) to acquire the right to a pension on the relevant types of work), then the corresponding periods of labor and other activities before January 1, 2002 can be counted in the length of service if these periods were counted in the corresponding length of service in accordance with the norms of the previous pension legislation.

For example, a woman studied at the institute for 5 years. Then she worked for a year at a research institute, got married, and was a housewife for a long time. In 1990, she went abroad with her diplomat husband, where she lived for 15 years and did not work. Upon arrival in Russia, she also did not work. Having reached the age of 55 in 2005, she applied for an old-age labor pension. Strictly according to the norms of the Law on labor pensions, she gains only one year of insurance experience, in connection with which she does not seem to have the right to a labor pension. But taking into account the above-mentioned decisions of the Constitutional Court and the clarifications of the ministries, her insurance period may include the period of study and the period of residence abroad (the period of residence is not more than 10 years, as provided for by the previous pension legislation), if these periods were before January 1, 2002. She meets the specified conditions, and thus, the woman gains 5 years of insurance experience, and she acquires the right to a pension.

With regard to the total length of service used to assess the pension rights of insured persons by converting (transforming) into the estimated pension capital, a similar principle applies here.

In accordance with paragraph 2 of the clarification of the Ministry of Labor of Russia dated October 17, 03 No. 4, when assessing the pension rights of an insured person in accordance with Art. 30 of the Law on Labor Pensions, the estimated amount of the labor pension (i.e., the amount of the conditional pension that a citizen could receive on December 31, 2001, taking into account the length of service on the specified date and the corresponding earnings - “RP”), at the request of the citizen, can be calculated based on provided for by the legislation in force before the entry into force of the Law on Labor Pensions, the amount of the pension calculated without applying the pensioner's individual coefficient (including the rules for calculating the total length of service, special length of service and average monthly earnings of a pensioner) and determined taking into account the duration of the total length of service of this citizen as of as of January 1, 2002 and his average monthly earnings for 2000-2001. or for any 60 consecutive months up to January 1, 2002.

Thus, if it is beneficial for a citizen, then when assessing pension rights, the estimated amount of a labor pension (RP) may not be determined in the manner set forth in paragraph 2 of Art. 30 of the Law on Labor Pensions (similar, as mentioned above, to the calculation of pensions using the ICP according to the norms of the previous legislation, when various periods of socially useful activity are not included in the total length of service), but in the manner previously provided for determining the amount of a pension without applying IKP. In the second case, the total length of service includes periods of study, periods of residence of wives (husbands) of military personnel in remote garrisons, periods of residence of wives of diplomats, etc. one and a half months of service).

However, it must be remembered that in this case all the restrictions established by the previous legislation for determining the amount of the pension are applied, including the restrictions on the maximum amount of the pension. And the maximum amount can be applied only if, as of January 1, 2002, the citizen has worked out a length of service that previously gave the right to a full old-age pension (i.e., if the pension on a general basis is 25 and 20 years, respectively, for men and women ). If there is no such length of service, then “RP” will be calculated according to the rules in force earlier for calculating a pension for incomplete service (in proportion to the length of service). Therefore, in the vast majority of cases, the second option for calculating “RP” will be unprofitable.

ON REFUSAL TO ACCEPT A COMPLAINT FOR CONSIDERATION

OF CITIZEN FOKIN VALERY VASILIEVICH FOR VIOLATION OF ITS

CONSTITUTIONAL RIGHTS BY ARTICLE 29, PARAGRAPH 1 AND REGULATIONS

ARTICLE 30 OF THE FEDERAL LAW "ON LABOR PENSIONS

IN RUSSIAN FEDERATION"

According to the Applicant, the contested norms do not allow including the periods of study in secondary and higher educational institutions, the period of conscripted military service on a preferential basis into the total length of service necessary for determining the estimated amount of the labor pension, as was provided for by the legislation in force earlier; as well as to calculate the estimated pension capital by increasing the expected period of payment of an old-age labor pension by the number of years missing in the appointment of an early pension to the generally established retirement age, which worsens his pension provision, limits the right to judicial protection and is contrary to Articles 19 (parts 1 and ), 46 (parts 1 and ), 55 (parts 2 and ), 118 (part 1) and 123 (part 3) of the Constitution of the Russian Federation.

2. The Constitutional Court of the Russian Federation, having studied the submitted materials, finds no grounds for accepting this complaint for consideration.

In connection with the change in the procedure for calculating labor pensions, including old-age pensions, from the date of entry into force of the Federal Law "On labor pensions in the Russian Federation", i.e. Since January 1, 2002, the legislator in Article 30 of this Federal Law has established for insured persons the transformation of their pension rights by converting them into estimated pension capital according to a certain formula, the constituent element of which is the estimated amount of labor pension calculated in accordance with the established procedure. For persons whose pension was assigned before the specified date, the recalculation of the size of labor pensions established in accordance with the norms of the Law of the Russian Federation "On State Pensions in the Russian Federation" can be carried out according to the rules provided for in paragraphs 3, 4 and 6 of Article 30 of the Federal Law "On Labor pensions in the Russian Federation". At the same time, in paragraph 2 of this article, contrary to the applicant's assertion, there are several options for determining the estimated amount of the labor pension of insured persons as of January 1, 2002, which allows these persons to choose the most favorable option for calculating the amount of pension and does not prevent the exercise of acquired pension rights.

In particular, the provision of paragraph 3 of Article 30 of the Federal Law "On labor pensions in the Russian Federation" establishes a calendar procedure for calculating the total length of service, while the estimated amount of the pension is not subject to limitation. Paragraph 4 of Article 30 of the contested Federal Law provides for the possibility of calculating the estimated amount of the pension in the manner established by the legislation of the Russian Federation as of December 31, 2001. This norm reproduces not only the procedure for calculating the total length of service, including the inclusion of periods of study in higher and secondary educational institutions, but also the provision on limiting the amount of a pension to a certain amount (paragraph forty).

As for the third paragraph of paragraph 5 of Article 30 of the Federal Law "On Labor Pensions in the Russian Federation" in its original version, this provision, which established the specifics of calculating the estimated pension capital of citizens who were employed in certain types of work with special working conditions, and granted them the right the choice of the type of work experience, taking into account which the conversion of pension rights was carried out in order to calculate the size of the insurance part of the labor pension, including the length of service in the relevant types of work, was aimed at realizing their right to pension provision on the most favorable conditions for them, and therefore cannot be regarded as violating the constitutional rights of citizens (Determination of the Constitutional Court of the Russian Federation of March 29, 2016 N 594-O).

Thus, the contested provisions of Article 30 of the Federal Law "On Labor Pensions in the Russian Federation" fix the procedure for exercising the right of insured persons to pension provision based on the most favorable option for calculating the amount of pension chosen by them, are aimed at taking into account their interests, as well as at preserving the rights acquired prior to the entry into force of the said Federal Law, and therefore cannot be regarded as violating the rights of citizens.

At the same time, Article 30 of the Federal Law "On labor pensions in the Russian Federation" acted in a systemic connection with other provisions of this Federal Law, including its Article 17, which provides for a guarantee of indexation of the amount of pensions, paragraphs 1 and (in their mutual connection) Article 29 , fixing the preservation of a higher pension, determined in accordance with the previous legislation, as well as with Article 12.1 of the Federal Law of July 17, 1999 N 178-FZ "On State Social Assistance", which establishes the procedure and conditions for the payment of social supplements in the event that the total amount of material support for a pensioner is less than the subsistence minimum for a pensioner in a constituent entity of the Russian Federation.

Consequently, there are no grounds to believe that the applicant's constitutional rights were violated by the challenged provisions.

The resolution of the issue of assessing the pension rights of V.V. Fokin with the simultaneous use of various methods provided for by law, in particular, calculating the length of service according to one rule, and determining the estimated amount of a labor pension according to others, requires amendments to the current legal regulation and does not fall within the competence of the Constitutional Court of the Russian Federation.

Based on the foregoing and guided by paragraph 2 of Article 43, part one of Article 79, and the Federal Constitutional Law "On the Constitutional Court of the Russian Federation", the Constitutional Court of the Russian Federation

Defined:

1. Refuse to accept for consideration the complaint of citizen Fokin Valery Vasilyevich, since it does not meet the requirements of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation", according to which the complaint to the Constitutional Court of the Russian Federation is recognized as admissible.

2. The ruling of the Constitutional Court of the Russian Federation on this complaint is final and not subject to appeal.

Chairman

Constitutional Court

Russian Federation

PENSION FUND OF THE RUSSIAN FEDERATION

On the application of decisions of the Constitutional Court of the Russian Federation
taking into account the definition of 02.11.2006 N 409-O

The Pension Fund of the Russian Federation, for information and use in protecting the interests of the PFR, sends the ruling of the Constitutional Court of the Russian Federation of November 2, 2006 N 409-O "On the refusal to satisfy the petition of the Minister of Health and Social Development of the Russian Federation for an official clarification of the ruling of the Constitutional Court of the Russian Federation of April 4, 2006 N 89-O" and reports the following.

In its petition, the Ministry of Health and Social Development of Russia asked for an explanation of the procedure for the entry into force of the decision of the Constitutional Court of the Russian Federation (its actions in time) and its execution, i.e. how to apply the ruling of the Constitutional Court of the Russian Federation of 04.04.2006 N 89-O - from the moment it enters into force or from the date of entry into force of the Federal Law of 08.22.2004 N 122-FZ (from January 1, 2005), constitutional and legal the meaning of the norms of which was revealed by the Constitutional Court of the Russian Federation.

The Constitutional Court of the Russian Federation with reference to a number of definitions (dated 14.01.99 N 4-O, dated 05.02.2004 N 78-O, dated 27.05.2004 N 211-O, dated 09.06.2005 N 220-O, dated 12.05.2006 N 135-O, etc.), which express legal positions regarding the issues raised in the petition of the Ministry of Health and Social Development of Russia, actually confirmed the position of the Pension Fund of the Russian Federation, set out in letter N GB-09-26/11530 dated October 28, 2005 and brought to information of the territorial bodies of the FIU.

The said letter of the PFR concerned the organization of the activities of the PFR bodies for the implementation of decisions of the Constitutional Court of the Russian Federation of December 23, 2004 N 19-P, of April 12, 2005 N 164-O, N 165-O, of May 12, 2005 N 182-O, N 183- О , N 210-О , N 211-О , N 212-О , N 213-О , N 223-О dated 24.05.2005, as well as Decree of the Government of the Russian Federation dated 09.26.2005 N 582, and the legal position of the Fund was argued by the fact that the decisions of the Constitutional Court of the Russian Federation come into force from the moment of their announcement, and the new legal regulation (interpretation) of the normative provisions of the Federal Law "On Compulsory Pension Insurance in the Russian Federation", revealed by the Constitutional Court of the Russian Federation, is applied from this date, and the recovery arrears on insurance premiums in the form of a fixed payment for past periods (until the entry into force of the decisions of the Constitutional Court of the Russian Federation) should be made by the territorial bodies of the PFR in full in accordance with applicable law.

In particular, the Constitutional Court of the Russian Federation stated the following:

"The legal consequence of the decision of the Constitutional Court of the Russian Federation on the recognition of an act or its individual provisions as unconstitutional, including taking into account the meaning given to them by the established law enforcement practice, is the loss of their force from the moment the decision is proclaimed, i.e. for the future." At the same time, the Constitutional Court of the Russian Federation emphasized that "the ruling under consideration came into force from the date of its adoption - April 4, 2006".

Also, the Constitutional Court of the Russian Federation pointed out that "as follows from part three of Article 79 and part two, the decision of the Constitutional Court of the Russian Federation has only in relation to cases of citizens who have applied to the Constitutional Court of the Russian Federation, associations of citizens (organizations), as well as in with respect to outstanding decisions made prior to its adoption.

The above legal positions fully apply to the procedure for the entry into force and execution of decisions in which the Constitutional Court of the Russian Federation, without recognizing the act or its individual provisions as contradictory, reveals their constitutional and legal meaning.

This conclusion of the Constitutional Court of the Russian Federation equally applies to decisions made on the issue of paying insurance premiums in the form of a fixed payment by certain categories of individual entrepreneurs (lawyers), - the rulings of the Constitutional Court of the Russian Federation dated April 12, 2005 N 164-O, 165-O ; dated May 12, 2005 N 182-O, 183-O, 210-O, 211-O, 212-O, 213-O; dated May 24, 2005 N 223-O.

Taking into account the legal position of the Constitutional Court of the Russian Federation, when preparing arguments for protecting the interests of the PFR in the judicial authorities on the issue of the legal consequences of decisions of the Constitutional Court of the Russian Federation, the territorial bodies of the PFR should keep in mind the following.

1. By decisions made in the order of constitutional proceedings.

From the position of the Constitutional Court of the Russian Federation, formulated in a number of definitions (for example, dated 04.12.2000 N 243-O, dated 05.02.2004 N 78-O), as well as in the definition dated 02.11.2006 N 409-O, it follows that " retroactively, as follows from the third part of Article 79 and the second part of Article 100 of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation", the decision of the Constitutional Court of the Russian Federation has in relation to cases of citizens who applied to the Constitutional Court of the Russian Federation citizens, associations of citizens (organizations), and also in relation to unexecuted decisions made before its adoption.

The cases that served as the reason for the applicants to appeal to the Constitutional Court of the Russian Federation are, in any case, subject to review by the competent authorities. Such a review is carried out regardless of the expiration of the deadlines for applying to these bodies and regardless of whether there are grounds for review provided for by acts other than the Federal Constitutional Law "On the Constitutional Court of the Russian Federation". This legal regulation is aimed at encouraging the legal activity of citizens who contribute to the elimination of unconstitutional norms from the current legislation (determination of the Constitutional Court of the Russian Federation of 14.01.99 N 4-O).

With regard to persons who are participants in constitutional proceedings, court decisions that have not been executed before the announcement of the decision of the Constitutional Court of the Russian Federation, as well as other decisions based on unconstitutional norms or norms, the constitutional legal meaning of which has been revealed, are not subject to execution and must be reviewed in cases stipulated by federal law (part two of Article 79 of the Federal Constitutional Law No. 1-FKZ of July 21, 1994 "On the Constitutional Court of the Russian Federation").

Revision of court decisions that have not entered into legal force can be carried out as part of a cassation appeal within 10 days from the date of the decision by the court in final form ().

Decisions of the courts that have entered into legal force, but not executed before the announcement of the decision of the Constitutional Court of the Russian Federation, may be reviewed by way of supervision, within a year from the date of their entry into legal force (part two of Article 376 of the Civil Procedure Code of the Russian Federation), as well as due to newly discovered circumstances within three months from the date of establishing the grounds for revision (). In this case, the date of official publication of the decision of the Constitutional Court of the Russian Federation may serve as the beginning of the calculation of the period for establishing the circumstances that are the basis for the revision.

At the same time, the Constitutional Court of the Russian Federation specifically emphasized that “decisions of the Constitutional Court of the Russian Federation are not only a substantive and legal basis for reviewing previously adopted judicial acts, but also an official reason for initiating a case on newly discovered circumstances only in relation to those persons who acted applicants in a case considered by the Constitutional Court of the Russian Federation".

2. Judgments made against persons who are not participants in constitutional proceedings.

As follows from the position of the Constitutional Court of the Russian Federation (determinations of 14.01.99 N 4-O, of 02.11.2006 N 409-O), for citizens who were not participants in constitutional proceedings, but whose cases were also resolved on the basis of acts recognized as unconstitutional or the constitutional and legal meaning of the norms of which was revealed, the provision of part three of Article 79 of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation" applies, according to which court decisions based on such acts are not subject to execution and must be reviewed in accordance with the federal law cases, i.e. using substantive legal grounds and procedural institutions fixed by other legislation.

This applies to both decisions that have not entered into force, and decisions that have entered into legal force, but not executed or partially executed. Such a revision, however, cannot be carried out without the proper expression of the will of the interested parties and taking into account the requirements of industry legislation.

At the same time, it should be borne in mind that in this case, the sectoral legislation is the Civil Procedure Code of the Russian Federation or the Arbitration Procedure Code of the Russian Federation, the norms of which provide for the grounds for reviewing court decisions (acts) that have entered into force, due to newly discovered circumstances.

According to the position of the Constitutional Court of the Russian Federation, in the presence of material and procedural prerequisites, as well as possible obstacles (for example, the fact of the expiration of the limitation period or the fact of missing the deadline for resuming the case due to newly discovered circumstances), they are established for review of decisions at the request of a citizen or an authorized official of the by the court competent for such review, subject to the general rules of procedure. To protect the rights of applicants in these cases, all judicial procedures provided for by sectoral legislation can be used. Revision of judicial decisions in connection with the recognition of a norm as unconstitutional is possible, in particular, both in the order of judicial supervision and on newly discovered circumstances.

At the same time, the Constitutional Court of the Russian Federation, in Ruling No. 135-O of May 12, 2006, emphasizes that “giving all decisions of the Constitutional Court of the Russian Federation such a value that would require the obligatory review of all decisions, court rulings, rulings of the presidium of the court due to newly discovered circumstances of the supervisory authority that have entered into legal force (which the applicant actually insists on) would lead to a violation of the principle of legal certainty, which assumes that the judicial act issued at the final resolution of the case does not raise doubts.This could also lead to a violation of the balance of constitutionally protected values , which is unacceptable by virtue of both the Constitution of the Russian Federation and the Convention for the Protection of Human Rights and Fundamental Freedoms."

3. By decisions of law enforcement agencies other than courts.

It should be noted that the Constitutional Court of the Russian Federation in Resolution No. 9-P of June 25, 2001 "On the case of checking the constitutionality of the Decree of the President of the Russian Federation of September 27, 2000 No. 1709 "On measures to improve the management of state pension provision in the Russian Federation" in connection with a request from a group of deputies of the State Duma" established that the Pension Fund of the Russian Federation performs, in fact, the functions of an insurer that carries out operational management of the funds of compulsory (state) pension insurance, and ensures the appointment and timely payment of state pensions. Consequently, the Pension Fund of the Russian Federation is endowed with public powers to ensure the constitutional right to a state pension, including the power to assign these pensions.

Federal Law No. 167-FZ dated December 15, 2001 "On Compulsory Pension Insurance in the Russian Federation" secured the special legal capacity of the Pension Fund of the Russian Federation, its rights and obligations in the field of compulsory pension insurance as a state institution, including the vesting of public authorities.

Thus, the Pension Fund of the Russian Federation, by virtue of its status and the functions it performs, is a law enforcement body that operates in accordance with the powers defined by law, which do not include the power to give official clarifications and interpret the current legislation, which imposes on it the obligation application of the law on the basis of its literal meaning.

Consequently, decisions made by the Pension Fund of the Russian Federation refer to "decisions of law enforcement agencies other than courts".

We note that in connection with the adoption of the decision of the Constitutional Court of the Russian Federation, all law enforcement decisions adopted on the basis of norms recognized in it as unconstitutional or the constitutional and legal meaning of which was revealed, including decisions made not only by judicial, but also "other law enforcement agencies." Such a revision cannot be carried out without the proper expression of the will of the interested parties and taking into account the requirements of industry legislation.

At the same time, the sectoral legislation of the Pension Fund of the Russian Federation is the legislation on compulsory pension insurance, in particular, the norms of the Federal Laws of December 15, 2001 N 167-FZ "On Compulsory Pension Insurance in the Russian Federation" and of December 17, 2001 N 173-FZ "On labor pensions in the Russian Federation". The provisions of these Federal laws provide for the right of the territorial bodies of the PFR to make decisions, in particular, on the collection of arrears on insurance premiums, penalties and fines; on the establishment or refusal to establish a labor pension, on the payment of the specified pension, on deductions from this pension and on the recovery of overpaid amounts of such a pension that can be appealed.

According to paragraph 7 of Article 18 of the Federal Law of December 17, 2001 N 173-FZ "On labor pensions in the Russian Federation", the decisions of the territorial bodies of the Pension Fund of the Russian Federation on the establishment or refusal to establish a labor pension, on the payment of the specified pension, on deductions from this pension and on the recovery of excessive of the paid amounts of such pension can be appealed to a higher pension body (in relation to the body that made the relevant decision) and (or) to the court.

In addition, the Supreme Court of the Russian Federation in paragraph 1 of the Decree of the Plenum dated December 20, 2005 N 25 "On some issues that arose with the courts when considering cases related to the exercise by citizens of the right to labor pensions" indicated that "by virtue of paragraph 1 of part 1 of Article 22 of the Civil Procedure Code of the Russian Federation and paragraph 7 of Article 18 of the Federal Law "On Labor Pensions in the Russian Federation" cases on disputes between citizens and the body providing pensions on the establishment or refusal to establish a labor pension, on the payment of this pension, on deductions from of this pension and on the recovery of overpaid amounts of such a pension, as well as on other disputes related to the appointment and payment of labor pensions, are under the jurisdiction of courts of general jurisdiction.

Thus, law enforcement decisions in cases of citizens who have not applied to the judicial authorities are subject to review from the date of re-submission of an application for the establishment (recalculation) of the specified pension (which corresponds to the provisions of Article 19 of the Federal Law of December 17, 2001 N 173-ФЗ, according to which "labor the pension is assigned from the date of applying for the specified pension .., but in all cases not earlier than from the day the right to the specified pension arises") or an application for review of the decision to refuse early assignment of a pension to the pension provision authority, but not earlier than the date of entry into force decisions of the Constitutional Court of the Russian Federation.

At the same time, we draw your attention to the fact that a rule similar to the rule of paragraph 7 of Article 18 of the Federal Law of December 17, 2001 N 173-FZ, providing for the right of a citizen to appeal against decisions of the territorial bodies of the PFR, is contained in paragraph 8 of Article 25.1 of the Federal Law of December 15, 2001 N 167-FZ, according to which, in the decision on the recovery of arrears on insurance premiums, penalties and fines, incl. the period during which the payer of insurance premiums for compulsory pension insurance has the right to appeal the said decision to a higher body of the insurer or to an arbitration court.

First Deputy
Chairman of the board
A.V. Kurtin

Electronic text of the document
prepared by CJSC "Kodeks" and checked against:
Legislation for an accountant
No. 11, 2007