Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of Item 4 of the "Conditions
Under Which Persons are Insured by State Funds and
of Compensation Payment upon Their Injury or Death
in the Line of Duty" approved by 5 December 1991
Government of the Republic of Lithuania Resolution
No. 530 with Article 25 of the Republic of
Lithuania Law on the Voluntary Service for
Protection of the Country
Vilnius, 6 May 1998
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Egidijus
Jarašiūnas, Kęstutis Lapinskas, Zigmas Levickis, Augustinas
Normantas, Vladas Pavilonis, Jonas Prapiestis, Pranas Vytautas
Rasimavičius, Teodora Staugaitienė, and Juozas Žilys,
the secretary of the hearing-Daiva Pitrėnaitė,
the party concerned-Kazimieras Pečiulis, the Chief
Jurisconsult at the Labour Relations Division of the Ministry
of Social Security and Labour, the representative of the
Government,
pursuant to Part 1 of Article 102 of the Constitution of
the Republic of Lithuania and Part 1 of Article 1 of the Law on
the Constitutional Court of the Republic of Lithuania, on 26
April 1998 in its public hearing conducted the investigation of
Case No. 18/97 subsequent to the petition submitted to the
Court by the petitioner-the Civil Cases College of the Vilnius
Regional Court-requesting to investigate whether Item 4 of the
"Conditions Under Which Persons are Insured by State Funds and
of Compensation Payment upon Their Injury or Death in the Line
of Duty" approved by 5 December 1991 Government of the Republic
of Lithuania Resolution No. 530 was in compliance with Article
25 of the Republic of Lithuania Law on the Voluntary Service
for Protection of the Country.
The Constitutional Court
has established:
I
On 27 August 1997, by its decision Vilnius City District
Court No. 3 rejected an action concerning adjudgement of the
benefit which is provided for by Article 25 of the Law on the
Voluntary Service for Protection of the Country, while
satisfied in part the claim concerning damage compensation.
On 21 October 1997, the petitioner-the Civil Cases College
of the Vilnius Regional Court-was investigating a civil case
subsequent to the appeals of the plaintiffs, as well as that of
the state enterprise Vilniaus aerouostas, concerning the
decision of Vilnius City District Court No. 3. By its
interlocutory ruling, the Regional Court suspended the
investigation of the case and appealed to the Constitutional
Court with the petition requesting to investigate whether Item
4 of the "Conditions Under Which Persons are Insured by State
Funds and of Compensation Payment upon Their Injury or Death in
the Line of Duty" (hereinafter referred to as the Conditions;
Official Gazette Valstybės žinios, No. 8-212, 1992) approved by
5 December 1991 Government Resolution No. 530 was in compliance
with Article 25 of the Law on the Voluntary Service for
Protection of the Country (Official Gazette Valstybės žinios,
No. 4-106, 1991).
II
The petitioner grounds his request on the following
arguments.
Part 1 of Article 25 of the Law on the Voluntary Service
for Protection of the Country provides that in the event that a
volunteer dies while performing his service duties, his family
shall be paid a one-time compensation equivalent to the
ten-year salary of the deceased. The law does not provide for
reservations as for the cases when the compensation may not be
paid. On 5 December 1991, by Resolution No. 530 the Government
established the "Conditions Under Which Persons are Insured by
State Funds and of Compensation Payment upon Their Injury or
Death in the Line of Duty". Item 4 of the said Conditions
regulates the events not insured against when insurance sums
and compensations are not to be paid.
The Law on the Voluntary Service for Protection of the
Country does not provide for any situations or conditions under
which the compensation may not be paid. However, Item 4 of the
Conditions does not consider the situation when an insured
person suffered form intoxication by alcohol as an event
insured against. Thereby a mandatory norm was created by a
substatutory act, which bars the way to implementation of the
right provided for in the law. Therefore the petitioner doubts
if the norms of Item 4 of the Conditions are in compliance with
Article 25 of the Law on the Voluntary Service for Protection
of the Country.
III
In the course of preparation of the case for judicial
investigation, an explanation of A. Nazarovas, the secretary of
the Ministry of Social Security and Labour, the representative
of the party concerned, was received. He maintains that the Law
on the Voluntary Service for Protection of the Country and the
Law on the Service for Protection of the Country do not provide
for situations under which compensations are not to be paid
when soldiers of professional military service die in the line
of duty. The events not insured against are established by Item
4 of the Conditions.
IV
In the course of preparation of the case for judicial
investigation, an explanation of the specialist-T. Birmontienė,
Director of the Lithuanian Centre for Human Rights-was
received. She maintains that situations when state social
support is to be rendered must be regulated by the law but not
by substatutory legal acts. The law merely commissioned the
Government to establish the procedure of paying of
compensations, but never to restrict insurance payments. The
Government groundlessly restricted the right of individuals to
get social support and limited constitutional social guarantees
for individuals, therefore the disputed norm contradicts
Articles 7 and 52 of the Constitution.
In addition, an explanation of H. Žebrauskas, a lecturer
at the Department of Civil Law and Economic Analysis at the Law
Academy of Lithuania, was received wherein it is pointed out
that, by confirming the disputed norm of the Conditions, the
Government violated the constitutional principle of legal
protection of social rights of individuals.
V
In the court hearing, the representative of the party
concerned K. Pečiulis virtually reiterated the arguments set
forth in the explanation of the secretary of the Ministry of
Social Security and Labour. He recognised the contradictoriness
of the law and the norms of the substatutory act, both of which
regulated the contested relations.
The Constitutional Court
holds that:
1. Article 25 of the 17 January 1991 Law on the Voluntary
Service for Protection of the Country provides:
"1. Provided a volunteer died while performing official
assignments, in the course of 5 years, under the procedure
established by the Government, his family shall be paid
benefits the total sum whereof must amount to the sum of
10-year (120 months) remuneration which the said volunteer had
received in his latest working place.
2. A volunteer who died while performing official
assignments shall be buried at the expense of the state."
By Resolution No. 530 of 5 December 1991, in fulfilling
the resolution of 11 December 1990 of the Supreme
Council-Reconstituting Seimas, the Government confirmed the
"Conditions Under Which Persons are Insured by State Funds and
of Compensation Payment upon Their Injury or Death in the Line
of Duty". The officials and volunteers of the voluntary service
for protection of the country shall be insured (for the time of
their training and service) under sub-Item 7 of Item 1 of the
Conditions. This item also lists other categories of persons
who are to be insured: the officials of the Ministry of
Internal Affairs, those of the Republic and local governments
police service, as well as those of other offices of internal
affairs, as well as the officials of the Ministry of National
Defence, officers in active military service, re-enlistees who
have not retired from service, soldiers in active military
service, the officials of the State Security Department, etc.
The Conditions provide that the health and life of the
aforementioned persons shall be insured. The Conditions also
define as to what shall be regarded as events insured against.
These are such events which occur when the insured person is
performing professional duties, when he is going to or from
work, or at the time when the person was not at work provided
the court or investigation establishes that these events are
linked with his duties, as well as when they occur during the
time of studies or exercise of the insured person and which
either harm the health of or cause the death to the insured
person. These are: trauma due to an accident, or an attempt on
the life and health of the insured person, as well as any other
instant event when against his will a physical force (chemical,
thermal, that of poisonous gases, or any other physical effect)
acts against the body of the insured person; accidental acute
poisoning through food (as well as getting infected through
food with infectious diseases which are pointed out in the
acute infectious intestine diseases list approved by the
Ministry of Health), medicines, poisonous plants, as well as
acute or chronic poisoning through chemical substances;
negative consequences due to either erroneous diagnosing or the
application of measures of treatment and prophylaxis (medical
injections among them) after the events insured against;
getting of a foreign body into respiratory organs, anaphylactic
shock, drowning or freezing of the insured person.
However, upon the death or injury of the insured person,
compensation is paid or damages suffered are compensated not in
all cases. Item 4 of the Conditions prescribes:
"Events shall not be attributed to the events insured
against and insurance sums and compensations shall not be paid
in the case that:
the insured person has suffered from his own deed wherein
the investigation or the court established signs of intentional
crime, or in the case that this deed is linked with an
administrative transgression of law;
the insured person has suffered in the state of
intoxication through alcohol, narcotics or toxic substances;
the insured person has suffered while driving a means of
transport or any other auto-vehicle without a corresponding
certificate, or upon giving over to another person to drive a
means of transport who was intoxicated through alcohol,
narcotics or toxic substances or who had not any corresponding
certificate;
the insured person has committed suicide, or has attempted
to commit suicide or has injured himself intentionally;
either the health of the insured person has broken down or
he has died due to disease or war."
The petitioner that was investigating the case at law
regarding the benefit payments after the death of a volunteer
who during an accident was drunk had doubts whether the
provisions of Item 4 of the Conditions were in compliance with
the aforesaid provision of the law wherein neither situations
nor conditions under which benefits may not be paid are
provided for.
2. The voluntary service for protection of the country is
a constituent part of the country defence system. This service
operates permanently and is formed on a voluntary basis. The
voluntary service for protection of the country prepares
specialists for the defence of the country, protects important
objects of the state and economy, helps to do away with the
effects of ecological catastrophes and natural calamities; in
case of need it helps the state border guard units to protect
the state border, and it helps the police to ensure the public
order, as well as to maintain the public peace and security; in
case of threat to state security, it accomplishes territorial
protection of the country, and carries out state assignments
according to respective Government resolutions.
In performing his duties, the volunteer must be ready to
accomplish a task commissioned to him. Quite often, even in the
time of peace, this is linked with a certain risk for one's
life or health. Therefore, the sense of duty, discipline,
respect for military traditions of the country are infused by
corresponding means of education and instruction. The
fulfilment of duties by the volunteer is absolutely
incompatible with alcoholism. A drunk volunteer not only
violates service discipline but also, being drunk, may perform
deeds which cause drastic effects. The volunteers must observe
the requirements of the regulations. The volunteers are
responsible for crimes committed in service, break of oath,
violations of discipline under the laws and the Discipline
Regulation of the Service for Protection of the Country.
One of the objectives of the voluntary service for
protection of the country is the protection of important state
objects of economy. The order of accomplishment of this service
is regulated by the Guard Duty Regulation. The said regulation
provides for the rights and duties of sentry soldiers. For
instance, a sentry of the post must: vigilantly guard and
protect his post, even though under a threat to his life, until
his shift; strictly accomplish his duties and never let go of
his weapon even for an instance; unconditionally carry out the
orders of the guard chief, assistant guard chief and the
corporal of the guard, as it is only they who have the right to
either relieve or remove him form the post, etc. A sentry of
the post is an inviolable person. His rights and personal
dignity are protected by the law. He is subordinate to the
persons who are strictly defined. Everyone must unquestionably
fulfil the demands of a sentry of the post. In the situations
defined by the Guard Duty Regulation, he is entitled to use his
weapon.
The peculiarities of the voluntary service for protection
of the country condition the social guarantees for the
volunteers. One of such guarantees is benefits for the family
of the volunteer who died while performing his duties, which
are provided for by Article 25 of the Law on the Voluntary
Service for Protection of the Country. Besides, Part 3 of
Article 24 of the Law on the Voluntary Service for Protection
of the Country establishes special additional social
guarantees. They are applied in the cases provided for by the
16 January 1991 Republic of Lithuania Law "On Additional Social
Guarantees for the Families of Persons who Suffered in the
Struggle for the Freedom of the Republic of Lithuania Against
the Aggression Accomplished on 11-13 January 1991 and
Subsequent Events".
The benefits the total sum whereof must amount to the sum
of 10-year (120 months) remuneration which the volunteer had
received in his latest working place as provided for by Part 1
of Article 25 of the Law on the Voluntary Service for
Protection of the Country are, in fact, compensation. The
legislator, in thereby establishing compensation (which is
referred to as benefit by the legal norm) payment after the
volunteer's death, linked the appearance of the right to the
said compensation with only one condition: "provided a
volunteer died while performing official assignments". In other
words, under the law, benefits are to be paid in every case
when the cause of a volunteer's death was performance of
official assignments. By the legal norm, the Government was
commissioned to establish the procedure of the payment of this
benefit.
3. By approving the Conditions by Resolution No. 530 of 5
December 1991, the Government was implementing the 11 December
1990 Resolution of the Supreme Council-Reconstituting Seimas of
the Republic of Lithuania which obligated the Government to
review and establish the procedure of providing officers of the
procurator's office, those of the systems of internal affairs
and national defence with apartments, as well as the procedure
of paying wages and extra pays and compensations, along with
that of granting other social guarantees. Therefore in the
Conditions whereby the implementation of the norms is being
ensured one had to particularise the procedure of insurance of
persons by state funds against the death or injury in the line
of duty.
The norm of Article 25 of the Law on the Voluntary Service
for Protection of the Country is an imperative one. It is
established therein that the right to the benefits (i.e.
compensation) appears when a volunteer died while performing
official assignments. The law does not provide for any other
conditions.
Meanwhile, the disputed item of the Conditions determines
all the situations when compensations for the officials and
volunteers of the voluntary service for protection of the
country may not be paid. These are the cases when the insured
persons suffered in the state of intoxication through alcohol,
narcotics or toxic substances, when the signs of intentional
crime have been established in their deeds etc. Thereby the
same relations have been regulated by a substatutory act in a
different way than by the law.
The Constitutional Court has assessed the problems of
interrelation of the law and the substatutory act for many a
time. For instance, it noted in its ruling of 19 January 1994,
that the norms of the law are being implemented by a
substatutory act, however, such a legal act may not replace the
law itself nor create new legal rules of general nature that in
their power would compete with the norms of the law. One may
not change or condition the norms of the law, as well as their
content, by a Government resolution. Otherwise, the
constitutional principle of supremacy of laws in respect to
substatutory acts would be violated.
4. The Government resolution whereby the Conditions were
approved was adopted prior to the enforcement of the present
Constitution. Article 2 of the Republic of Lithuania Law "On
the Procedure for the Enforcement of the Constitution of the
Republic of Lithuania" provides that laws, other legal acts, or
parts thereof which were in effect on the territory of the
Republic of Lithuania prior to the adoption of the Constitution
of the Republic of Lithuania, shall be effective provided they
do not contradict the Constitution and this Law. By this norm
the legislator, as well a the executive, is obligated to review
prior adopted acts while taking account of the norms of the
Constitution, and to ensure a harmonious hierarchical system of
the legal acts that regulate the same relations.
Article 52 of the Constitution provides that the State
shall guarantee the right of citizens to old age and disability
pension, as well as to social assistance in the event of
unemployment, sickness, widowhood, loss of breadwinner, and
other cases provided by law. By this constitutional norm the
legal regulation of social maintenance for citizens is
guaranteed. Therefore one may not establish conditions for the
right of persons to social support, nor restrict the scope of
the said right by a substatutory act.
It goes without saying, the constitutional status of
social rights of its own accord does not deny the right of the
legislator to establish certain conditions to or limitations of
the appearance of the aforesaid rights. The Government may only
particularise and concretise the conditions which are
established by the law. In the disputed case there was not any
necessary legal regulation. The Government regulated those
relations by a substatutory act. Thereby the constitutional
principle of legal protection of social rights of individuals
was violated.
The Constitutional Court also notes that the provisions of
some sub-items of the disputed item of the Conditions are
formulated vaguely, while in wording other sub-items one
disregarded the causality doctrine which is recognised in law.
The Constitutional Court held so in its 3 December 1997 ruling
"On the compliance of Item 4 of the 'Conditions under Which
Persons are Insured by State Funds and of Compensation Payment
upon Their Injury or Death in the Line of Duty' approved by 5
December 1991 Government Resolution No. 530 with Article 48 of
the Republic of Lithuania Law on the Police".
On the grounds of the motives set forth it is to be
concluded that Item 4 of the "Conditions under Which Persons
are Insured by State Funds and of Compensation Payment upon
Their Injury or Death in the Line of Duty" approved by 5
December 1991 Government Resolution No. 530 in the scope
whereby the events not insured against are being established
for officials and volunteers of the voluntary service for
protection of the country (for the time of their training and
service) contradicts Article 25 of the Law on the Voluntary
Service for Protection of the Country.
Conforming to Article 102 of the Constitution of the
Republic of Lithuania and Articles 53, 54, 55 and 56 of the Law
of the Republic of Lithuania on the Constitutional Court, the
Constitutional Court has passed the following
ruling:
To recognise that Item 4 of the "Conditions under Which
Persons are Insured by State Funds and of Compensation Payment
upon Their Injury or Death in the Line of Duty" approved by 5
December 1991 Government of the Republic of Lithuania
Resolution No. 530 in the scope whereby the events not insured
against are being established for officials and volunteers of
the voluntary service for protection of the country (for the
time of their training and service) contradicts Article 25 of
the Republic of Lithuania Law on the Voluntary Service for
Protection of the Country.
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated on behalf of the Republic of
Lithuania.