Court/Judicial body:Constitutional Court of the Russian Federation
Date: June 27, 2005 CRC
Provisions:Convention on the Rights of the Child (General reference)
Other international provisions: ILO Convention No 155 concerning Equal Opportunities and Equal Treatment for Men and Women Workers: Workers with Family Responsibilities ( Article 1(2): Convention’s application to men and women in economic activities; Article 3(1): Effective equality of opportunities and treatment for men and women; Article 4: Measures creating effective equality in labour relations; Article 9: Application of the Convention)
Domestic provisions: Constitution of the Russian Federation ( Article 7(2): Social guarantees; Article 19: Prohibition of discrimination; Article 38(1): Family protection; 38(2): Care for children as equal right and obligation of both parents; 39(1): Right to social security; 39(2): Guaranteed state pensions and social allowances) Federal Law “On labour pensions in the Russian Federation” ( Article 28(1): Retirement before the generally prescribed age) Federal Law “On state allowances to the citizens who have children” ( Article 13: Allowance of child care for 18 moths is granted to either mother or father) Labour Code of the Russian Federation ( Article 256: Right to child-rearing leave is granted to mother or father; Article 262: Additional 3 days to one of the parents nursing a handicapped child)
Background: A father who had raised his disabled child through the age of eight years applied for a retirement pension at the age of 55, which was 5 years before the retirement age for men established by law in the Russian Federation. His request was denied because the Federal Law “On labour pensions in the Russian Federation” ( Article 28, paragraph 1, sub-paragraph 1) provides the right to apply for early retirement benefits only for mothers who raised their disabled child but not fathers.
Issue and resolution: Discrimination; disability; social assistance. The Court found that the Federal Law provision in question which does not ensure the same rights and same social guarantees to men and women in labour relations violates international commitments, including the Convention on the Rights of the Child, and is inconsistent with the Constitution of the Russian Federation.
Court reasoning: The Court found that the right to a pension is a key element of public social security under Article 39(2) of the Constitution. As indicated in a prior Constitutional Court decision, differences in rules for acquiring pension rights are lawful only if they can be objectively justified in pursuit of a constitutionally significant purpose. That is, there must be a good reason to have different rules for different groups of people; otherwise, equality must be prioritised and the rules must be the same. In this case, differentiating between mothers and fathers caring for disabled children is unjustifiable and runs contrary to the Constitution’s goal of creating equal opportunities for men and women with respect to social welfare programs. As a result, Article 28(1) of the Federal Law “On labour pensions in the Russian Federation” providing for early retirement benefits only for mothers of disabled children is inconsistent with the Constitution.
Excerpt citing CRC and other relevant human rights as translated by CRIN 2. According to the provisions of the Constitution, in the Russian Federation the labour and health of people shall be protected; a guaranteed minimum wage and salaries shall be established; State support shall be ensured to the family, mothers, fathers and children, to disabled persons and to the elderly; the system of social services shall be developed; state pensions, allowances and other social security guarantees shall be established ( Article 7, paragraph 2). Moreover, motherhood and childhood, and the overall institution of the family shall be protected by the State. In addition, child care and responsibility for upbringing shall be equally the right and obligation of both parents ( Article 38, parts 1 and 2). Thus, in order to realize established Constitutional standards, national law on labour and pensions establishes and describes certain social guarantees and benefits for employees who have children, including children with disabilities. These provisions are or should be consistent with the best interests of the child principle and give priority to child protection and care as is necessary for the child’s well-being in all spheres of public life, which in particular arises from the Convention on the Rights of Child (adopted by the UN General Assembly on 20 November, 1989). The provisions should also be consistent with ILO Convention No. 155 concerning Equal Opportunities and Equal Treatment for Men and Women Workers: Workers with Family Responsibilities (ratified by the Russian Federation on 13 February, 1998), which states that in terms of employment and social security, national legislation should take into account the needs of men and women workers with responsibilities in relation to other members of their immediate family who clearly need their care or support. If these employees with family responsibilities are engaged or wish to engage in employment, they should be allowed to do so without being subject to discrimination and, to the extent possible, without conflict between their employment and family responsibilities ( Article 1, paragraph 2; Article 3, paragraph 1; Article 4; Article 9). Thus, in establishing specific measures for social guarantees, benefits and protections for workers with family responsibilities, the federal legislature cannot make any differentiations or exceptions between men and women. As a result, both parents must be treated equally in granting social welfare guarantees, benefits and protection.
CRIN comments: CRIN believes that this judgment is consistent with the CRC and that, as recognised by the Court, the best interests of children should be considered in all decisions that affect them. In addition, Article 18 of the CRC recognises that “both parents have common responsibilities for the upbringing and development of the child” and mandates that “States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities.” In line with these provisions, the Court sees mothers and fathers caring for disabled children as equals, and requires that legislation and social benefits treat them as such.
Citation: Решения Конституционного Суда РФ от 27.06.2005 N 231
Link to Full Judgment: http://www.ksrf.ru/Decision/Pages/default.aspx