U.no.216/2007

On the basis of Article 110 of the Constitution of the Republic of Macedonia and Article 71 of the Book of Procedures of the Constitutional Court of the Republic of Macedonia (»Official Gazette of the Republic of Macedonia«, no.70/1992), at its session held on 13 February 2008, the Constitutional Court of the Republic of Macedonia passed the following

1. NO PROCEDURE IS INITIATED for the appraisal of the constitutionality of Article 154 of the Law on Pension and Disability Insurance (»Official Gazette of the Republic of Macedonia«, nos. 80/1993, 3/1994, 14/1995, 71/1996, 32/1997, 24/2000, 96/2000, 50/2001, 85/2003, 50/2004, 4/2005, 84/2005, 101/2005, 70/2006 and 153/2007).

2. Vesel Ramizi from Kumanovo submitted and initiative to the Constitutional Court of the Republic of Macedonia to instigate a procedure for the appraisal of the constitutionality of the provision in the Law noted in item 1 of the present resolution.

According to the submitter of the initiative, the gaining of the right to pension and its use could not be separated, that is, the old-age pension was a vested right and no one, under no conditions whatsoever, as such conditions do not exist in the Constitution, could restrict the payment of the pension to a pensioner in case he/she is employed or while he/she carries out an activity irrespective of the length of the working hours, in per cents noted in the contested provision, in a lump sum, without any support. Therefore, the contested provision of the Law violated the provision in Article 54 of the Constitution under which the freedoms and rights of the individual and citizen may be restricted only in cases defined by the Constitution, violated the constitutional principle of equality of citizens before the Constitution and laws under which acts freedoms and rights of the individual and citizen are recognised and guaranteed by the international pact for economic, social and cultural rights; violated the right to property and its protection since with the non-payment of the pension the pensioner was deprived of part of his/her means without any constitutional ground; violated the right to work, to free choice of employment and availability of every job to all under equal conditions, and violated the right to appropriate remuneration that is earned by work.

As a result of what has been noted, it is proposed that the Constitutional Court of the Republic of Macedonia initiate a procedure for the appraisal of the constitutionality of the contested provision and repeal it.

3. At its session the Court found that under Article 154 paragraph 1 of the Law on Pension and Disability Insurance, a pension-user, while being employed or while carrying out an activity with full working hours in the Republic of Macedonia or working abroad, shall be paid 30% of the pension.

Pursuant to paragraph 2 of this article, a pension-user of paragraph 1 of this article working half of the full working hours shall be paid 50% of the pension, and for a work less than half of the full working hours he/she shall be paid 70% of the pension.

Under paragraph 3 of the same article, if the user of a disability, that is, family pension fails to appear at a compulsory checkup the payment of his/her pension shall cease. If the pension-user fails to appear at a compulsory checkup owing to justified reasons (hospital treatment in the country or abroad) the payment of the pension shall not be stopped until the completion of the treatment, that is, the appearance at the compulsory checkup.

4. Under the basic provisions of the Constitution, the Republic of Macedonia is, inter alia, a social state, while humanity, social justice and solidarity are set down as fundamental values of the constitutional order of the Republic of Macedonia.

With a view to realising these constitutional presuppositions, Article 34 of the Constitution guarantees the right of citizens to social security and social insurance which are laid down by law and by a collective agreement.

Under Article 35 paragraph 1 of the Constitution, the Republic provides for the social protection and social security of citizens in line with the principle of social justice.

From the noted constitutional provisions it derives that the Constitution proclaims and defines the general principle of the right of citizens to social security and social insurance which is left to be regulated by law and by a collective agreement. The Constitution also proclaims the care of the Republic for social protection and social security of citizens, which is exercised on the basis of the principle of social justice. Accordingly, the proclamation of these constitutional principles derives from the social character of the state, while the types of rights from social insurance, the manner, procedure and the conditions for the exercise of these rights of citizens are reserved for the legislative power which governs the relevant relations important for the exercise of the social security of citizens.

Pension and disability insurance as an element of the right to social insurance is the subject of regulation by the Law on Pension and Disability Insurance.

This Law regulates the compulsory pension and disability insurance of employed workers and of natural persons performing an activity, the bases of the capital financed pension insurance, as well as the special conditions under which certain categories of insurees exercise their rights from the pension and disability insurance (Article 1).

Pursuant to Article 3 of this Law, with the compulsory pension and disability insurance on ground of employment, and on the principle of social justice and generation solidarity, are exercised rights in case of old age, general working disability or professional working disability, demise and corporal damage.

Pension and disability insurance rights are defined in Article 5 of the Law, as follows:

1) right to an old-age pension;
2) right to a disability pension;
3) professional rehabilitation and rights to appropriate pecuniary remunerations;
4) right to a family pension;
5) right to a pecuniary remuneration for corporal damage;
6) right to a lowest amount of pension.

The right to an old-age pension and the right to a disability pension are personal rights that the insuree acquires on grounds of work, on the basis of the principle of social justice and generation solidarity.

A condition for the exercise of these rights is termination of the employment owing to the insuree’s coming to a certain age, conditioned by the realisation of minimum length of service that is general disability for employment of the insuree or decreased, that is, ceased working ability. Thus, the pension insurance in the cases noted is actually providing social security for citizens after the termination of their employment or after the termination of the performance of an activity or of another legally defined manner of providing means for living.

With Article 1 of the Law on Changing and Supplementing the Law on Pension and Disability Insurance (“Official Gazette of the Republic of Macedonia”, no.70/2006), the list of insurees with compulsory pension and disability insurance, defined in Article 11 of the Law, is supplemented with a new item 13, under which the employed workers or natural persons carrying out an activity are added to the persons that are compulsorily insured on grounds of a pension and disability insurance, after the exercise of the right to an old-age or disability pension on grounds of a decreased, that is, ceased working ability. The noted supplement to the Law created a legal ground for the users of an old-age or disability pension on grounds of a decreased, that is, ceased working ability to be included within the circle of insurees with compulsory pension and disability insurance, in case they become employed or carry out an activity.

Article 3 of this Law supplements the Law on Pension and Disability Insurance with a new Article 33-a, which defines the conditions under which this category of insurees acquire the right to a pension that depends on the length of work engagement, which pension is added to the last monthly amount of the pension prior to the termination of employment made as a pension-user.

Article 12 of the noted Law on Changing and Supplementing the Law on Pension and Disability Insurance changed Article 154 of the Law, so that instead of the former solution under which the payment of a pension to a pension-user while being employed or while performing an activity in the Republic of abroad shall be stopped, the legislator set down a new solution, under which a pension-user, while being employed or while performing an activity with full working hours in the Republic of Macedonia or working abroad, shall be paid 30% of the pension; if he/she works half of the full working hours he/she shall be paid 50% of the pension, and for work less than half of the full working hours he/she shall be paid 70% of the pension, which legal solution is being challenged with the initiative. The Law on Changing and Supplementing the Law on Pension and Disability Insurance (“Official Gazette of the Republic of Macedonia”, no.153/2007), supplemented this Article with a new paragraph 3, under which if a user of a disability, that is, family pension fails to appear at a compulsory checkup the payment of his/her pension shall be stopped. If the pension-user fails to appear at the compulsory checkup owing to justified reasons (hospital treatment in the country or abroad) the payment of the pension shall not be stopped until the completion of the treatment, that is, the appearance at the compulsory checkup.

According to the Court, the legal solution under which, a pensioner, while being employed, shall have the payment of his/her pension reduced by a certain per cent as he/she earns for existence in another manner (with new working engagement, for which he/she is compulsorily insured on grounds of a pension and disability insurance), does not violate the principle of social justice defined in Article 8 paragraph 1 line 8 of the Constitution.

This for a reason that there is no constitutional obstacle for the pension-users to ensure their social security in another manner, that is, with a new working engagement to earn corresponding incomes, which has been normatively governed by the legislator with the noted change in the Law on Pension and Disability Insurance. Hence, the Court found the statements in the initiative that the noted legal solution violated the right to work, free choice of work and availability of each job to all under equal conditions to be unfounded.

On the other hand, according to the Court, the fact that the right to social security and social insurance guaranteed to citizens by the Constitution is defined by law and collective agreement does not mean that the right to social security and social insurance once acquired may not undergo changes in the direction of its rest, restriction or complete loss, under certain conditions and circumstances set down by law and collective agreement. In this sense, what should be taken into consideration is that with its Resolution U.no.10/1997 the Constitutional Court assessed that the interim restriction of the right to use a pension, defined in Article 154 of the Law on Pension and Disability Insurance (“Official Gazette of the Republic of Macedonia”, nos.80/93, 3/94, 14/95, 71/96), prior to its change which is now contested, with which it was envisaged to temporarily stop the payment of the pension if the user is employed or performs an activity, does not infringe upon the already vested rights, which means that they are neither transferred nor taken away, but, as the law itself envisaged in Article 6 paragraph 3, their use is temporarily restricted in the cases stipulated by law, as a result of which the Court did not initiate a procedure for the appraisal of the constitutionality of the noted legal solution.

In that sense, the Court also assessed that the interim restriction of the use of the full amount of the pension in case when the pension-user becomes employed, that is, performs an activity from which he/she shall earn an additional income, as a solution defined in the existing Article 154 of the Law the contents of which is challenged with the initiative, does not infringe upon the already vested right to pension, that is, does not transfer or take away the already vested right to pension, but only restricts its use in cases and under conditions set down by law, whereby the social security of the citizen is not questioned and the principle of social justice is not violated. This especially since with the noted solution the legislator, on the one hand, guarantees the pensioner, during his/her new working engagement, the payment of part of the pension, which is personal and material right gained in the system of pension and disability insurance with which social security is ensured, and on the other hand enables him/her normative presuppositions for earning an additional income with a new working engagement, whereby the pensioner’s material situation and social security will be improved, both during the time of realisation of the income, and additionally with the increase in the amount of the pension after certain period of work. Therefore, according to the Court, the solution in the Law under which the payment of the full amount of the pension is restricted in certain cases does not go beyond the constitutional frameworks under which the legislator governs the sphere of pension and disability insurance, taking care of the social security and social justice of insurees, as well as of the provision of a sustainable and stable pension system that is based on the principle of social justice and generation solidarity.

When it comes to the issue about a violation of the old-age pension as a vested right which is called upon by the submitter of the initiative, the Court assessed that the right to use the pension as a vested right of the users of an old-age pension is not violated with the contested legal solution, while the decreased payment of the pension due to the new employment or performance of another activity of the user with which he/she earns an income and improves his/her social security is in the function of providing a sustainable and stable pension system which is built in accordance with the economic conditions in the Republic, and which is based on the principle of social justice and generation solidarity, as a result of which the Court did not raise the question of concordance of the noted legal solution with the Constitution of the Republic of Macedonia.

In view of the determination of the amount of pension that is realised in the noted cases, expressed in per cents with regard to the full amount of the pension determined prior to the new employment, that is, performance of an activity, the Court found that it is a legitimate right of the legislator to determine the same, taking care of the suitability of the solution within the frameworks of the social and economic conditions in the Republic and the Constitutional Court is not competent to judge the justification of the noted amount, as a result of which, according to the Court, the statements in the initiative that the percents are determined voluntarily, without scientific and expert researches and arguments are unfounded.

The Court assessed that the statements in the initiative that the contested provision of the Law violated Article 54 of the Constitution, under which freedoms and rights of the individual and citizen may be restricted only in cases defined in the Constitution, are unfounded.

Namely, pursuant to Article 54 of the Constitution, freedoms and rights of the individual and citizen may be restricted only in the cases set down in the Constitution, and these are during states of war and emergency. The restriction of freedoms and rights may not discriminate on grounds of sex, race, colour of skin, language, religion, national and social origin, property and social status. The restriction of freedoms and rights may not be applied to the right to life, the interdiction of torture, to inhuman and degrading treatment and punishment, to the legal determination of punishable offences and sentences, as well as to the freedom of conviction, conscience, thought, public expression of thought and confession.

From the analysis of the contested legal provision it derives that the same does not deal at all with restricting or losing the rights from the pension and disability insurance based on the sex, race, colour of skin, language, religion, national and social origin, property and social status, and the right to social security and social insurance does not belong in the corps of freedoms and rights the restriction of which is constitutionally prohibited. The acquisition and use of the pension, as one of the forms through which the right to social security of citizens is ensured, belongs to the corps of rights that derive from the sphere of working relations, which may be restricted or lost, but under circumstances and conditions defined by the Constitution or law and by a collective agreement. The Constitution has given the right to the legislator to govern, inter alia, the procedure in which the rights from pension and disability insurance are exercised, and within these frameworks also the procedure for termination or restriction of those rights. That means that the procedure for exercise, restriction and loss of the rights from this field is defined by law and collective agreements. Hence, the Court assessed that the contested legal provision does not violate Article 54 of the Constitution, where a constitutional mechanism is envisaged for the protection of the constitutionally guaranteed basic freedoms and rights of the individual and citizen, as a result of which is did not raise the question of the agreement of the noted legal solution with the Constitution of the Republic of Macedonia.

5. On the basis of what has been stated, the Court decided as in item 1 of the present Resolution.

6. The Court passed the present resolution in the following composition: the President of the Court Dr Trendafil Ivanovski, and the judges: Mrs Liljana Ingilizova-Ristova, Mrs Vera Markova, Mr Branko Numoski and Dr Zoran Sulejmanov.

U.no.216/2007
13 February 2008
S k o p j e

PRESIDENT
of the Constitutional Court of
the Republic of Macedonia
Dr Trendafil Ivanovski