The case of V.P. v. the Republic of Belarus. Opinions of the Committee on the Elimination of Discrimination against Women dated June 28, 2021 Communication No. 131/2018.
In 2018, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to the Republic of Belarus.
As seen from the text of the Opinions, the author claimed that the rejection of her application for an old-age pension violated the provisions of article 11 (paragraph 1 "e") The Convention, since it entails indirect discrimination against women, since women are more likely to have breaks from work due to the fact that they are the ones who usually take care of children and people with disabilities and, therefore, cannot obtain the insurance experience required by law. The author clarified that according to information received from representatives of the Ministry of Labor and Social Protection of the Republic of Belarus, in 2015, women accounted for 99 percent of those caring for children under the age of 3. She argued that although domestic legislation established equal requirements for men and women, women were placed in less favourable conditions. It is much more difficult for women to obtain the required insurance experience, especially in conditions where care activities, although recognized at the state level as socially significant, are not included in it (paragraph 3.1 of the Opinions).
The Committee's legal position: The Convention on the Elimination of All Forms of Discrimination against Women prohibits any distinction, exclusion or restriction based on gender that is aimed at weakening or nullifying the recognition, enjoyment or exercise by women, regardless of their marital status, on the basis of equality of men and women, human rights and fundamental freedoms in political, economic, social, cultural and civil or any other field. Indirect discrimination is related to the existence of laws, policies or practices that at first glance seem neutral, but have disproportionately serious consequences for the enjoyment of the rights enshrined in the Convention, as evidenced by the prohibited grounds for discrimination (paragraph 7.4 of the Considerations).
The Committee notes that the right to social security is crucial for ensuring human dignity. The exercise of the right to social security has significant financial implications for States, but the latter must ensure that this right is exercised at least at the minimum necessary level. In particular, they must ensure access to social security programs that guarantee the minimum required level of benefits without discrimination. States should provide non-contributory benefits, social services and other assistance to all elderly persons who, upon reaching the retirement age established by national laws, have not had time to make all their contributions to the pension fund or for any other reason do not enjoy the right to receive a social insurance pension or other social security or social security benefits They do not have any other sources of income. When designing programmes that do not require pre-payment of contributions, account should also be taken of the fact that women are more likely than men to be in poverty, often forced to care for a child alone, and that they are most often the ones who do not receive payments from funded pensions (paragraph 7.5 of the Considerations) (See.: The case of Ciobanu v. the Republic of Moldova (CEDAW/C/74/D/104/2016), paragraph 7.6.).
The Committee notes that States parties have considerable discretion in taking measures that they deem necessary to ensure that everyone can exercise the right to social security, in particular to ensure that pension systems are effective, reliable and accessible to all. Therefore, States may set requirements or conditions that applicants must meet in order to be eligible to participate in social security programs or receive a pension or other benefits, but these conditions must be reasonable, proportionate and transparent. In general, adequate information on these conditions should be made available to the public in a timely manner in order to ensure predictable access to retirement pensions, especially in cases where measures taken by participating States are regressive and do not provide for any transitional measures to compensate for their negative consequences (paragraph 7.6 of the Considerations).
The Committee believes that States should review restrictions on access to social security programmes to ensure that they do not discriminate against women either in law or in practice. In particular, States should take into account the fact that, due to the persistence of stereotypes and other structural reasons, women spend much more time than men doing unpaid work, including caring for children with and without disabilities. States should take measures to eliminate factors that prevent women from making equal contributions to social security schemes in which payments are linked to contributions, or take such factors into account when developing pension formulas, for example, to ensure that time spent caring for children, including both children with disabilities and children without disabilities, is taken into account disability, as well as adult dependents, especially women (paragraph 7.7 of the Considerations).
The Committee considers that if the communication contains relevant information indicating, prima facie, the existence of a legislative provision that, although formulated neutrally, may de facto affect a much higher percentage of women than men, then the State party must prove that such a situation does not constitute indirect discrimination on the basis of sex (para. 7.10 Considerations).
The Committee's assessment of the factual circumstances of the case: it was noted that the author had reached retirement age, but could not claim an old-age pension in accordance with the new requirements, since she did not have the necessary insurance experience (paragraph 7.8 of the Considerations).
The Committee stressed that the State party had introduced both funded and non-funded pension schemes. Of these, the latter is due solely to age, while participation in the former also requires making contributions to the pension insurance fund for a certain period of time. The Committee noted that the length of time during which such deductions were required was the same for men and women. According to domestic legislation, periods of care for children and people with disabilities, periods of education and military service are not counted in the insurance record. In this regard, the Committee recalled the author's argument that the exclusion of caregiving activities from the insurance record constitutes discrimination against women, since they more often carry out such activities due to the influence of cultural stereotypes affecting the distribution of family roles between representatives of different sexes (paragraph 7.9 of the Considerations).
The Committee has taken into account the statistical data provided by the State party. These data showed that the average duration of activity that is not counted in the insurance record is approximately the same for men and women (in the period 2012-2017 - 4.3 years and, respectively, 4.5 years). In addition, in 2017, the vast majority of women of retirement age received an old-age pension (96.7%, while for men this figure was 89.4%). The proportion of women of retirement age who were denied an old-age pension was generally very small and only slightly exceeded the corresponding proportion of men. The author of the communication did not dispute the reliability of the statistical data provided by the State party. In addition, the Committee noted that the State party has introduced a number of special pension regimes with less stringent requirements for the length of insurance experience, in particular for mothers of several children and for mothers of children with disabilities. The Committee recognized this attempt to protect the most vulnerable groups of the population from the negative impact of increased requirements for insurance experience. In view of the above, it could not be argued that the legislative framework itself creates a discriminatory environment that is more burdensome for women. It remained for the Committee to consider whether the application of pension standards in the case of the author of the communication was in accordance with the requirements of the Convention (paragraph 7.11 of the Views).
The Committee immediately noted that at the time the author reached retirement age, her insurance record was only 12 years, 10 months and 24 days. Between 1998 and 2009, the author took care of her children until her youngest son turned 14. The Committee took note of the author's argument that she had to extend her maternity leave beyond the statutory three years because her son was often ill. However, the author did not specify the nature of her son's illnesses, which forced her to refrain from seeking paid work for such a long time. Moreover, although the author, noting that she could not find a job after 2009, did not explain why she applied for employment assistance only in 2016 and why, having received such assistance in June 2016, she refused it a few months later, on October 25, 2016. She also did not indicate whether she had tried to challenge in court the refusals of private employers to hire her (paragraph 7.12 of the Considerations).
Although the changes in pension legislation certainly affected the author's personal situation, it cannot be concluded, in the Committee's opinion, that the author was unable to meet the requirements of any of the existing funded pension schemes solely through the fault of the State party. The author did not provide sufficient justification for the fact that she was denied an old-age pension on the grounds that the domestic legislative framework and practice are disproportionately unfavorable for women.
The Committee's conclusions: the introduction of changes to the domestic legislative framework and requirements for the appointment of an old-age pension, as well as the consequences of these changes for the author, did not constitute a violation of the provisions of article 2 (paragraphs "b" - "d" and "f") or article 11 (paragraph 1 "e"), considered in conjunction with Article 1 of the Convention on the Elimination of All Forms of Discrimination against Women.