U.no.83/2009

On the basis of Articles 110 and 112 of the Constitution of the Republic of Macedonia and Article 70 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 15 September 2010, the Constitutional Court of the Republic of Macedonia took the following

1. Article 72 paragraph 1 items 1 and 4 and paragraphs 2 and 3 and Article 73 paragraph 1 items 1 and 4 and paragraphs 2 and 3 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50/2001, 85/2003, 50/2004, 4/2005, 84/2005, 101/2005, 70/2006, 153/2007, 152/2008, 161/2008 and 81/2009) SHALL BE REPEALED.

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

3. Upon the initiative submitted by Stamen Filipov from Skopje, the Constitutional Court of the Republic of Macedonia with its Resolution U.no.83/2009 of 23 June 2010 instigated proceedings for appraising the constitutionality of the provisions of the Law noted in item 1 of this Decision, as there was a question raised as to their accordance with the Constitution.

4. At its session the Court found that the content of the challenged provisions in Article 72 of the Law is defined in the 1993 Law on Pension and Disability Insurance (“Official Gazette of the Republic of Macedonia”, no.80/1993), the content of Article 73 paragraph 1 item 1 is defined in the 1993 Law, of item 4 in the 1993 and 1997 Law (“Official Gazette of the Republic of Macedonia”, nos.80/1993 and 32/1997), and of Article 73 paragraphs 2 and 3 in the 1995 Law (“Official Gazette of the Republic of Macedonia”, no.14/1995).

The challenged Article 72 paragraph 1 of the Law defines that:
“A widow shall gain the right to a family pension if:
1) she has reached 45 years of age until the demise of her spouse;
2) she has reached 40 years of age until the demise of her spouse, when she reached 45 years of age – or if she became unable to work at that age”;

The challenged paragraph 2 of the same Article of the Law envisages that: “The widow who while using the right on grounds of carrying out parental care (paragraph 1 item 3) becomes incapable of working or reaches 45 years of age shall retain permanently the right to a family pension.”

The challenged paragraph 3 of the same Article of the Law defines that: “A widow who has lost the right to a family pension on grounds of carrying out a parental duty after turning 45 years of age shall gain the right to a family pension when she turns 45 years of age.”

The challenged Article 73 paragraph 1 of the Law envisages that:
“A widower shall gain the right to a family pension if:
1) he has reached 55 years of age until the demise of his spouse;
4) the widower who has gained the right to a family pension on grounds of carrying out parental duty after turning 50 years of age shall gain the right to a family pension when he turns 55 years of age”.

The challenged paragraph 2 of the same Article of the Law envisages that: “A widower who while using the right on grounds of parental duty becomes incapable of working or turns 55 years of age shall retain permanently his right to a family pension.”

The challenged paragraph 3 of the same Article of the Law stipulates that: “A widower who has lost his right to a family pension on grounds of carrying out parental duty after turning 50 years of age shall gain the right to a family pension when he turns 55 years of age.”

5. Pursuant to Article 8, paragraph 1, lines 3 and 8 of the Constitution, the rule of law and humanism, social justice and solidarity are the fundamental values of the constitutional order of the Republic of Macedonia.

Under Article 9 of the Constitution, the 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 belief, property and social status (paragraph 1); citizens are equal before the Constitution and laws (paragraph 2).

Under Article 34 of the Constitution, citizens have a right to social security and social insurance, defined by law and collective agreement.

Under Article 35 of the Constitution, the Republic provides for the social protection and social security of citizens in accordance with the principle of social justice (paragraph 1); the Republic guarantees the right of assistance to citizens who are infirm or unfit for work.

Pursuant to Article 40 paragraph 1 of the Constitution, the Republic provides particular care and protection for the family.

From the said constitutional provisions it arises that humanism, social justice and solidarity are the fundamental values of the legal order of the Republic of Macedonia and that these values are operationalised in a way that the Constitution defines a right of the citizens to social security and social insurance and an obligation for the Republic to provide for the social security of the citizens on the basis of the principle of social justice and to an extent defined, inter alia, by law, whereby the Republic is required to take particular care for the citizens who are incapable of working, as well as for the family. Within these frameworks, the legislator is obliged to provide for the citizens the principle of equality on grounds of, inter alia, sex, and to realise the fundamental value of the rule of law.

The contested legal provisions define different age for women (45 years of age) and men (55 years of age) to gain the right to family pension in same situation (a deceased spouse-pension insure), whereby the difference is not based on an objective difference between the husband and wife, their biological or functional difference with regard to the work as a ground for gaining pension, in which case there could be envisaged different conditions to gain the right to a pension which has been done indeed for personal pension (64 years for a man, 62 years for a woman), but the difference is based on nothing else but that the spouse of the deceased male insuree is a woman, that is on nothing else but that the spouse of the deceased female insure is a man. In addition, the 10-year difference to gain the right to a family pension (55 years for a widower, 45 years for a widow), which is unexplainably big, is also a ground to believe that there is no objective reason for the existence of a difference between a widow and a widower in the gaining of the right to a family pension. Therefore, the Court found that such provisions question the principle of equality of the citizens on grounds of sex defined in Article 9 of the Constitution, and the social and legal certainty of the citizens defined in Articles 8, 34 and 35 of the Constitution.

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

7. The Court took the present decision with a majority vote in the following composition: Dr Trendafil Ivanovski, President of the Court, and the judges: Dr Natasha Gaber-Damjanovska, Mr Ismail Darlishta, Mrs Liljana Ingilizova-Ristova, Mrs Vera Markova, Mr Branko Naumoski, Mr Igor Spirovski, Dr Gzime Starova and Dr Zoran Sulejmanov. (U.no.83/2009)