U.no.151/2006

2. This decision shall generate legal effects from the date of its publication in the “Official Gazette of the Republic of Macedonia”.

3. The Constitutional Court of the Republic of Macedonia with its Resolution U.no.151/2006 of 2 May 2007 instigated proceedings for appraising the constitutionality of the articles of the Law noted in item 1 of the present Decision

The procedure was instigated since there was a well-founded question raised before the Court as to the concordance of the contested articles of the Law with Article 9 of the Constitution.

4. At its session the Court found that with Article 6 of the contested Law, in Article 72 after paragraph 3 a new paragraph 4 is added, which reads as follows:

“A widow who entered into matrimony with a pension user, that is, insuree who met the conditions for pension, older than 64 years of age, gains the right to a family pension in case the marriage lasted at least five years”.

Under Article 7 of the same Law, in Article 73 after paragraph 3 a new paragraph 4 is added, which reads as follows:

“A widower who has entered into matrimony with a pension user, that is, an insuree who met the terms for a pension, older than 62 years of age, gains the right to a pension in case the marriage lasted at least five years”.

5. Under Article 8 paragraph 1 line 3 of the Constitution, a fundamental value of the constitutional order of the Republic of Macedonia is the rule of law.

Under Article 9 of the Constitution of the Republic of Macedonia, citizens of the Republic of Macedonia are equal in their freedoms and rights, irrespective of their sex, race, colour of skin, national and social origin, political and religious beliefs, property and social status.

All citizens are equal before the Constitution and laws.

Namely, the right to equality which the Constitution expresses through the guarantee that citizens are equal irrespective of their sex, race, colour of skin, national and social origin, political and religious beliefs, property and social status, and that citizens are equal before the laws, is one of the most significant rights and as such is a fundamental value of the constitutional order of the Republic and by its essence it negates discrimination, privileges, special rates of any type and on any grounds.

Equality, irrespective of the social status is an obligation for the state in the normative setup of the relations in society not to allow for discrimination, or privileges on grounds of education, property status or age. The principle “all are equal before the law” specially obliges the legislator prohibiting it to include provisions in the law which differentiate between people.

Article 30 of the Constitution guarantees the right to property and the right to inheritance.

Article 34 of the Constitution defines that citizens have a right to social security and social insurance, determined by law and collective agreement, and under Article 35 paragraph 1 of the Constitution, the Republic provides for the social security of citizens in accordance with the principle of social justice.

Under Article 40 of the Constitution, the Republic provides special care and protection for the family. The legal relations in marriage, the family, and cohabitation are regulated by law.

Article 1 of the Law on Family (“Official Gazette of the Republic of Macedonia”, nos.80/1992, 9/1996, 38/2004, and 83/2004-filtered text) envisages that this Law regulates: the matrimony and family, the relations in matrimony and family, certain forms of special protection of the family, disturbed relations and violence in matrimony and family, adoption, guardianship, support, as well as the procedure before the court in matrimonial and family disputes.

Under Article 6 of the Law on Family, matrimony is legally regulated community of joint life of a man and a woman in which the interests of the spouses, family and society are realised. The relations between the spouses are based on free decision of the man and the woman to enter into matrimony, on their equality, mutual respect, and mutual assistance.

Starting from the constitutional determination, the legislator in the Law on Pension and Disability Insurance among other issues regulates the issue of the family pension, which is one of the basic rights in the pension system. Namely, the compulsory pension and disability insurance in case of demise of the insuree, that is, the pension user, provides for a family pension for the family members.

Article 70 of the Law on Pension and Disability Insurance defines the circle of family members that may realise the right to a family pension. Under the quoted provision of the Law, a family pension may be realised by the family members:

1) the spouse;
2) the children (born to the matrimony or outside it, or adopted, foster children supported by the insuree, grandchildren and other parentless children that were supported by the insuree) and
3) the parents (father and mother, stepfather and stepmother) and the adoptive parent, who was supported by the insuree.

Under paragraph 2 Article 70 of the Law, a family pension may be realised also by the spouse from a divorced marriage, if he/she has been rendered the right to support with a court decision.

From the analysis of paragraph 1 of the noted provision from the Law, it arises that when realising the right to a family pension for certain family members a condition that those persons were supported by the insuree is required.

The Law on Pension and Disability Insurance also defines that a family pension is realised only if the insuree has also met certain conditions in view of the accrued time, which is stipulated in Article 71 of the Law.

Under Article 71 of the Law on Pension and Disability Insurance, the family members gain the right to a family pension if the deceased insuree:

1) completed at least five years of insurance time or at least ten years of accrued time; or

2) met the conditions for an old-age or disability pension; or

3) was the user of an old-age or disability pension.

Article 71 paragraph 2 of the Law envisages that if the demise of the insuree occurred as the result of an injury at work or professional illness, the family members gain the right to a family pension, irrespective of the length of the accrued time of the insuree.

From the noted provisions of the Law, it clearly derives that the same regulate the general conditions for the exercise of the right to a family pension and they refer to the deceased insuree and in case the same are met the family members will exercise the right to a pension and also if they meet the special conditions of Articles 72-78 of the Law.

Under Article 72 of the Law, a widow acquires the right to a pension if:

1) until the demise of the spouse the widow had turned 45 years of age;

2) until the demise of the spouse the widow was unable to work or such disability occurred within one year from the demise of the spouse;

3) following the demise of the spouse one child or more children remained who have the right to a family pension from that spouse, while the widow exercises the parental duties towards the children;

4) until the demise of the spouse she had turned 40 years of age, when she turns 45 years of age – or if at that age she became unable to work.

Under paragraph 2 of this article in the Law, the widow who in the course of the usage of the right on grounds of exercising the parental duty (paragraph 1 item 3) becomes unable to work or turns 45 years of age permanently keeps the right to a family pension. The widow who lost the right to a family pension on grounds of exercising parental duty after turning 40 years of age, gains the right to a family pension when she turns 45 years of age (paragraph 3).

Under paragraph 4 of Article 72 of this Law, that is, Article 6 of the Law on Changing and Supplementing the Law on Pension and Disability Insurance, which paragraph is being disputed with the initiative, a widow who entered into matrimony with a user of a pension, that is, an insuree who met the conditions for a pension, older than 64 years of age, acquires the right to a family pension in case the marriage lasted at least five years.

From the analysis of the cited legal provision of Article 72 in the Law, it arises that the same defines the special conditions under which the widow acquires the right to a family pension in case of demise of the spouse.

Furthermore, Article 73 of the Law governs the special conditions under which the widower may exercise the right to a family pension. Namely, the widower acquires the right to a family pension if:

1) until the demise of the spouse he had turned 55 years of age;

2) until the demise of the spouse he had been unable to work or such inability occurred within one year from the date of demise of the spouse;

3) following the demise of the spouse one child or more children were left who had the right to a family pension from that spouse, while the widower exercises the parental duties towards those children; and

4) by the demise of the spouse he had turned 50 years of age, when he turns 55 years of age, or if at such age he became unable to work.

Under paragraph 2 of Article 73 of the Law, the widower who, during the use of the right on a ground of parental duty, becomes unable to work or turns 55 years of age, permanently keeps the right to a family pension.

Under paragraph 3 of the same article in the Law, the widower who has lost the right to a family pension on a ground of exercising parental duty after turning 50 years of age, gains the right to a family pension when he turns 55 years of age.

Under paragraph 4 of Article 73 of the Law, that is, Article 7 of the Law on Changing and Supplementing the Law, a widower who entered into matrimony with a pension user, that is, an insuree who met the conditions for a pension, older than 62 years of age, acquires the right to a family pension in case the marriage lasted at least five years.

Under Article 78 paragraph 1 of the Law, the right to a family pension belongs first of all to the spouse and to the children of the insuree, that is, the pension user.

Starting from the constitutional principle that the Republic safeguards the social welfare and social security of citizens pursuant to the principle of social justice, pension and disability insurance as part of the social security is regulated with the Law on Pension and Disability Insurance. Namely, this Law governs the compulsory pension and disability insurance of employed workers and natural persons performing an activity, the grounds for the capital financed pension insurance, as well as the special conditions under which certain categories of insurees exercise their rights from pension and disability insurance. Hence, it is the right of the legislator to govern a legal solution providing greater welfare and security for the insurees, but also for those who have the right, based on this law, to a family pension.

Within the frameworks of this empowerment when dimensioning the rights, but not the restriction of the right to acquire a family pension, as has been done in the contested articles of the Law, according to the Court, the legislator exceeded its authority, in the sense that it included provisions (as the disputed ones) in the law with which a differentiation between people is made, that is, between the insurees and their spouses.

Starting from the understanding of the constitutional guarantee for the equality of citizens in their rights irrespective of the length of the matrimony, according to the Court this special condition regulated in the contested legal provisions violates the principle of equality, as one of the fundamental civil and political freedoms and rights of the citizen. Hence, when regulating and envisaging both the general and the special conditions for acquiring the right to a family pension, the Constitution obliges the legislator to have the same apply equally to all citizens finding themselves in such a situation. However, in this concrete case, by rendering the special condition in the challenged legal provisions for the acquisition of the right to a family pension, the legislator exceeds its constitutional authority and restricts the right to acquire a family pension of the spouse of the insurees who are with the same status (matrimony) irrespective of the length of the marriage.

Given what has been noted, the Court assessed that in this concrete case the challenged provisions of Articles 6 and 7 of the Law on Changing and Supplementing the Law on Pension and Disability Insurance are not in accordance with Article 9 of the Constitution of the Republic of Macedonia.

6. On the basis of the aforementioned, the Court decided as in item 1 of the present Decision.

7. The Court passed the present decision in the following composition: the President of the Court Mr Mahmut Jusufi, and the judges: Mrs Liljana Ingilizova-Ristova, Mrs Mirjana Lazarova Trajkovska, Mrs Vera Markova, Mr Branko Naumoski, and Mr Igor Spirovski.

U.no.151/2006
20 June 2007
S k o p j e

PRESIDENT
of the Constitutional Court of
the Republic of Macedonia
Mahmut Jusufi