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On the review of subparagraph 8) of paragraph 1 of Article 208 of the Social Code of the Republic of Kazakhstan dated April 20, 2023 for compliance with the Constitution of the Republic of Kazakhstan
Regulatory Resolution of the Constitutional Court of the Republic of Kazakhstan dated February 7, 2025 No. 66-NP
The Constitutional Court of the Republic of Kazakhstan, composed of Chairman Azimova E.A., judges Eskendirov A.K., Zhakipbaev K.T., Zhatkanbayeva A.E., Kydyrbaeva A.K., Musin K.S., Nurmukhanov B.M., Ongarbaev E.A., Podoprigora R.A. and Udartseva S.F., with the participation of:
the subject of the appeal, T.S. Sagandykov, and his representative– lawyer L.A. Yemelyanova.,
representatives:
Ministry of Labor and Social Protection of the Population of the Republic of Kazakhstan – First Vice Minister Sarbasov A.A.,
Ministry of Justice of the Republic of Kazakhstan – Director of the Department of Legislation Suleimenov D.A.,
The Prosecutor General's Office of the Republic of Kazakhstan – Advisor to the Prosecutor General Adamova T.B.,
The Office of the Mazhilis of the Parliament of the Republic of Kazakhstan – Chief Consultant of the Department of Legislation Duisenova A.B.,
Office of the Senate of the Parliament of the Republic of Kazakhstan – Deputy Head of the Legislation Department N.A. Sartayeva,
D.T. Abdrakhmanova, Deputy Head of the Department of Legal, Organizational and Analytical Work at the National Center for Human Rights.,
Institute of Parliamentarism – Executive Director of Candidate of Law Sciences Kanatov A.K.,
considered in an open meeting an appeal for verification of compliance with the Constitution of the Republic of Kazakhstan of subparagraph 8) of paragraph 1 of Article 208 of the Social Code of the Republic of Kazakhstan dated April 20, 2023 (hereinafter referred to as the Code).
Having listened to the speaker, Judge of the Constitutional Court of the Republic of Kazakhstan A.E. Zhatkanbayeva and the participants of the meeting, having studied the materials of the constitutional proceedings, having analyzed the norms of the current law of the Republic of Kazakhstan and certain foreign countries, the Constitutional Court of the Republic of Kazakhstan
installed:
The Constitutional Court of the Republic of Kazakhstan (hereinafter referred to as the Constitutional Court) has received an application for consideration of compliance with paragraph 2 of Article 14, paragraphs 1 and 2 of Article 27 and paragraph 1 of Article 39 of the Constitution of the Republic of Kazakhstan (hereinafter referred to as the Constitution, Basic Law) of subparagraph 8) of paragraph 1 of Article 208 of the Code, according to which, when calculating the length of service for When age-related pension payments are made, only the time of a non-working mother's care for young children is counted, but not more than until each child reaches the age of 3 years, within a total of 12 years.
It follows from the case file that the court refused to establish the fact of child care in the period from March 20, 1997 to February 26, 1998, with subsequent clarification until January 1, 1998, in order to include in the work record and receive pension payments taking into account the specified period, with reference to the norm appealed by the applicant.
In the opinion of the subject of the appeal, this provision of the Code, which provides for the inclusion in the length of service of caring for young children only for a non-working mother, contradicts the principle of equal rights of mother and father and is discriminatory in relation to one of the parents.
When verifying the constitutionality of the norm of the Code indicated by the subject of the appeal, the Constitutional Court proceeds from the following.
1. In accordance with the Constitution, the Republic of Kazakhstan establishes itself as a democratic, secular, legal and social state in which a citizen of the Republic of Kazakhstan is guaranteed a minimum wage and pension, social security based on age, in case of illness, disability, loss of breadwinner and on other legitimate grounds (article 1, paragraph 1 of Article 28 of the Constitution). These guarantees are implemented, inter alia, taking into account the constitutional principle of equality of all before the law and the court and the prohibition of discrimination (article 14 of the Constitution).
The State's approach to the family, children, and parents is defined in article 27 of the Constitution: caring for and raising children is a natural right and responsibility of parents, while marriage and family, motherhood, fatherhood, and childhood are protected by the State.
The Republic of Kazakhstan is a party to the Convention on the Rights of the Child, adopted by resolution No. 44/25 of the United Nations General Assembly on November 20, 1989 (ratified by Resolution of the Supreme Council of the Republic of Kazakhstan dated June 8, 1994). According to the Convention, States parties shall make every possible effort to ensure that the principle of the common and equal responsibility of both parents for the upbringing and development of the child is recognized, and the best interests of the child are the subject of their primary concern. In addition, States Parties shall take all necessary legislative, administrative, social and educational measures to protect the child, including from neglect or neglect (art. 18, para. 1, art. 19, para. 1).
In this regard, the Constitutional Court draws attention to the following provisions of the Constitution: human rights and freedoms are recognized and guaranteed in accordance with the Constitution and taking into account generally recognized principles and norms of international law. They determine the content and application of laws and other regulatory legal acts (paragraphs 1 and 2 of Article 12).
Based on these constitutional norms, the legislator outlined in the Code the principles of state policy in the field of social protection, including equality and the inadmissibility of restrictions on human and civil rights in the field of social protection (Articles 3 and 4 of the Code).
Thus, along with the State-guaranteed protection of motherhood, fatherhood and childhood, the care of a child by both parents remains an integral part of the State social policy.
2. Pension provision as an important element of social protection is aimed at creating conditions for further financial stability and full-fledged life activity of an individual upon reaching a certain age.
Kazakhstan's pension system provides for monthly payments to retired citizens in the form of state basic pension payments, age-related pension payments (or retirement benefits) and payments from retirement savings.
The amount of age pension payments in accordance with the current legislation of the Republic of Kazakhstan is determined individually and is proportional to the length of service, which, in addition to work experience, military service and study period, includes time spent on the implementation of certain social functions. Among them, the legislator includes caring for a certain group of people, including people with disabilities, the elderly, young children and others.
Caring for a young child requires special care and protection, which are necessary for his normal physical, mental, moral and psychological development. During this period of the child's life, due to objective circumstances, the parent may be limited in the exercise of his right to work.
Such circumstances, due to the fulfillment of parental duties, should be taken into account when developing compensatory mechanisms within the framework of state policy in the field of social protection, since the Constitution establishes the provisions on the model of the welfare state adopted by the Republic of Kazakhstan, guaranteeing the protection of marriage and family, motherhood, fatherhood and childhood.
3. In accordance with subparagraph 7) of paragraph 3 of Article 61 of the Constitution, the Parliament of the Republic of Kazakhstan, exercising legal regulation of relations in the field of pension provision, has wide discretion in determining the grounds and conditions for awarding pensions.
At the same time, the legislative measures taken should be based, among others, on the principles of equality and the inadmissibility of restrictions on human and civil rights in the field of social protection (article 3 of the Code).
The Constitutional Court has repeatedly noted that, under equal conditions, subjects of law should be in an equal legal position (regulatory resolutions No. 21-NP of July 14, 2023, No. 49-NP of July 23, 2024, and others). In the present case, this position concerns parental rights and responsibilities for the care and upbringing of a child.
The state policy for the protection of motherhood and fatherhood should take into account the principles of the marriage and family legislation of the Republic of Kazakhstan (equality of rights of spouses in the family, resolution of family issues by mutual consent (paragraph 2 of Article 2 of the Code of the Republic of Kazakhstan dated December 26, 2011 "On Marriage (Matrimony) and Family"). Accordingly, labor legislation assigns to the employer the obligation to provide parental leave until the child reaches the age of three years at the choice of the parents themselves – the mother or father of the child, as well as the parent raising the child alone (subparagraphs 1) and 2) of paragraph 1 of Article 100 of the Labor Code of the Republic of Kazakhstan dated November 23, 2015).
The legislator uses a similar approach when calculating the length of service of a parent's participation in the pension system when providing a state basic pension payment, including the time spent caring for young children of a non-working mother or a non-working father when they provide such actual care (subparagraph 5) of paragraph 2 of Article 206 of the Code).
The Constitutional Court considers that pension legislation should provide a citizen, as a participant in solidary social legal relations, with confidence in the stability of his officially recognized status and guarantees for the exercise of rights conditioned by this status. Another approach does not comply with the requirements of article 39 of the Basic Law and leads to discrimination, which is prohibited by paragraph 2 of article 14 of the Constitution.
In the state policy in the field of social protection, the equality of everyone in the exercise of their rights and freedoms is based on the prohibition of any discrimination based on origin, social, official and property status, gender, race, nationality, language, attitude to religion, beliefs, place of residence, age, health status, including disability, or under any other circumstances, when the state provides social protection measures to citizens based on a differentiated approach, taking into account their labor contribution, the cause and degree of disability., as well as the need for social protection (articles 4 and paragraph 2 of Article 6 of the Code).
In this regard, the Constitutional Court believes that when calculating the length of service for the assignment of pension payments by age, it is necessary to take into account the time of caring for a young child and an unemployed father, provided that he actually takes care of him. There is no reasonable justification for a different approach from the standpoint of the above-mentioned constitutional provisions.
The Constitutional Court also draws attention to the need for additional elaboration of the provisions of the Code, which establish the maximum period of time for parents to take into account the time spent caring for young children when calculating their length of service in the pension system and work experience only within 12 years in total, taking into account the norms of the Constitution and the principles of state social, family and demographic policy.
Based on the above, guided by paragraph 3 of Article 72 and paragraph 3 of Article 74 of the Constitution of the Republic of Kazakhstan, subparagraph 3) paragraph 4 of article 23, articles 55-58, 62, paragraph 4 of article 63, paragraph 4 of Article 64 and subparagraph 2) Paragraph 1 of Article 65 of the Constitutional Law of the Republic of Kazakhstan dated November 5, 2022 "On the Constitutional Court of the Republic of Kazakhstan", the Constitutional Court of the Republic of Kazakhstan
Decides:
1. To recognize subparagraph 8) of paragraph 1 of Article 208 of the Social Code of the Republic of Kazakhstan in accordance with the Constitution of the Republic of Kazakhstan in conjunction with the provisions of Article 4, paragraph 2 of Article 6, subparagraph 5) of paragraph 2 of Article 206 of this Code and subparagraphs 1) and 2) of paragraph 1 of Article 100 of the Labor Code of the Republic of Kazakhstan in the following interpretation: The length of service for the appointment of age-related pension payments is calculated as the time of direct care for young children.
2. This regulatory resolution comes into force from the date of its adoption, is generally binding throughout the territory of the Republic of Kazakhstan, final and not subject to appeal.
3. To publish this regulatory resolution in Kazakh and Russian in periodicals that have received the right to officially publish legislative acts, the unified legal information system and on the Internet resource of the Constitutional Court of the Republic of Kazakhstan.
Constitutional Court of the Republic of Kazakhstan
© 2012. RSE na PHB "Institute of Legislation and Legal Information of the Republic of Kazakhstan" of the Ministry of Justice of the Republic of Kazakhstan
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