Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of Item 8 of the Regulations of
Granting and Payment of State Pensions to
Officials and Soldiers of the Systems of Internal
Affairs, State Security, Defence and Prosecutor's
Office approved by Government of the Republic of
Lithuania Resolution No. 83 "On the Approval of
the Regulations of Granting and Payment of State
Pensions to Officials and Soldiers of the Systems
of Internal Affairs, State Security, Defence and
Prosecutor's Office and the Establishment of the
Time of Service Necessary in Order to Receive a
Respective Percentage Extra Pay for the Years of
Service" of 20 January 1995 with the Constitution
of the Republic of Lithuania and Paragraph 4 of
Article 16 of the Republic of Lithuania Law on
Pensions of Officials and Soldiers of Internal
Affairs, State Security, Defence and Prosecutor's
Office
Vilnius, 30 October 2001
The Constitutional Court of the Republic of Lithuania,
composed of the Judges of the Constitutional Court Egidijus
Jarašiūnas, Egidijus Kūris, Zigmas Levickis, Augustinas
Normantas, Vladas Pavilonis, Jonas Prapiestis, Vytautas
Sinkevičius, Stasys Stačiokas, and Teodora Staugaitienė,
with the secretary of the hearing-Daiva Pitrėnaitė,
in the presence of:
the representatives of the party concerned-the Government
of the Republic of Lithuania-Rytis Paukštė, an advisor to the
Department of Law and Law Enforcement of the Office of the
Government, and Vytas Rimkus, Head of the Division of Law,
Staff and Internal Investigation of the Special Investigation
Service,
pursuant to Paragraph 1 of Article 102 of the Constitution
of the Republic of Lithuania and Paragraph 1 of Article 1 of
the Republic of Lithuania Law on the Constitutional Court, on 2
October 2001 in its public hearing conducted the investigation
of Case No. 10/2000 subsequent to the petition submitted to the
Court by the petitioner-the Higher Administrative
Court-requesting to investigate if Item 8 of the Regulations of
Granting and Payment of State Pensions to Officials and
Soldiers of the Systems of Internal Affairs, State Security,
Defence and Prosecutor's Office approved by Government of the
Republic of Lithuania Resolution No. 83 "On the Approval of the
Regulations of Granting and Payment of State Pensions to
Officials and Soldiers of the Systems of Internal Affairs,
State Security, Defence and Prosecutor's Office and the
Establishment of the Time of Service Necessary in Order to
Receive a Respective Percentage Extra Pay for the Years of
Service" of 20 January 1995 was in compliance with Article 94
of the Constitution of the Republic of Lithuania and Article 16
of the Republic of Lithuania Law on Pensions of Officials and
Soldiers of Internal Affairs, State Security, Defence and
Prosecutor's Office.
The Constitutional Court
has established:
I
The Higher Administrative Court was investigating an
administrative case concerning execution of a decision of the
Supreme Commission for Settling Administrative Disputes. By its
ruling of 9 March 2000, the said court suspended the
investigation of the case and appealed to the Constitutional
Court with a petition requesting the investigation into the
compliance of Item 8 of the Regulations of Granting and Payment
of State Pensions to Officials and Soldiers of the Systems of
Internal Affairs, State Security, Defence and Prosecutor's
Office (Official Gazette Valstybės žinios, 1995, No. 8-173;
hereinafter also referred to as the Regulations) approved by
Government Resolution No. 83 "On the Approval of the
Regulations of Granting and Payment of State Pensions to
Officials and Soldiers of the Systems of Internal Affairs,
State Security, Defence and Prosecutor's Office and the
Establishment of the Time of Service Necessary in Order to
Receive a Respective Percentage Extra Pay for the Years of
Service" of 20 January 1995 with Article 94 of the Constitution
and Article 16 of the Law on Pensions of Officials and Soldiers
of Internal Affairs, State Security, Defence and Prosecutor's
Office (Official Gazette Valstybės žinios, 1994, No. 99-1958;
hereinafter also referred to as the Law).
II
The request of the petitioner is based on the following
arguments.
Paragraph 4 of Article 16 of the Law points out the time
periods which had been prior to the Law coming into force, and
which were equalled to the time of service on the grounds of
which pensions are granted to individuals engaged as officials
or soldiers of internal affairs, state security, defence and
prosecutor's office of the Republic of Lithuania. Meanwhile,
Item 8 of the Regulations provides: "In the cases not provided
for in these Regulations the time of service on the grounds of
which state pensions are granted to the officials and soldiers
shall be established by the Government of the Republic of
Lithuania on the respective proposal of the Ministry of
Internal Affairs, the Department of State Security of the
Republic of Lithuania, the Ministry of Defence and the Office
of the Prosecutor General of the Republic of Lithuania."
The petitioner points out that the Government is not
entitled to include the time periods not pointed out in the Law
into the time of service of officials. Therefore, the
petitioner doubts whether Item 8 of the Regulations is in
compliance with Article 16 of the Law and Article 94 of the
Constitution.
III
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from the representatives of the party concerned-the
Government-R. Paukštė and V. Rimkus.
The representatives of the party concerned pointed out
that individual articles of the Law commissioned the Government
to adopt respective legal acts, e.g., Paragraph 2 of Article 12
provides that the Government shall approve the regulations of
granting and payment of state pensions to the officials and
soldiers, Item 1 of Paragraph 4 of Article 16 points out that
the Government shall establish the actual time of service in
the armed forces, frontier-guard service, system of interior
and other services of other states, Item 6 of Paragraph 4 of
Article 16 provides for a duty of the Government to establish
that the time of learning in some schools of other states is to
be included in the time of service on the grounds of which
pension is granted, Paragraph 7 of Article 16 commissions the
Government to draft a system of requalification of the
officials and soldiers transferred to the reserve. Thus
conditions were created to implement the Law.
In the opinion of the representatives of the party
concerned, the Government had a duty, which was established in
Article 16 of the Law, to provide in the Regulations as to what
time of service must be established, and under what procedure,
in order to grant state pensions to the officials and soldiers.
To this extent the Government was entitled to decide questions
on the inclusion of the time periods which had not been pointed
out in the Law. This is established in Item 8 of the
Regulations.
According to R. Paukštė and V. Rimkus, Item 8 of the
Regulations must be applied only in the cases when questions
arise as to the time periods which the Government is, under the
Law, entitled to equal to the time of service (to include them
into the time of service). Therefore, while assessing it from
this aspect, it may be considered a proper accomplishment of
the commissioning for the Government pointed out in the Law.
In the opinion of the representatives of the party
concerned, Item 8 of the Regulations is worded not precisely
enough, however, these inaccuracies may not be recognised as
sufficient grounds to assess Item 8 of the Regulations as being
in conflict with Article 94 of the Constitution or Article 16
of the Law.
IV
At the Constitutional Court hearing the representatives of
the party concerned-the Government-R. Paukštė and V. Rimkus
virtually reiterated the arguments set forth in the written
explanations.
The Constitutional Court
holds that:
I
1. By its Resolution No. 83 "On the Approval of the
Regulations of Granting and Payment of State Pensions to
Officials and Soldiers of the Systems of Internal Affairs,
State Security, Defence and Prosecutor's Office and the
Establishment of the Time of Service Necessary in Order to
Receive a Respective Percentage Extra Pay for the Years of
Service" of 20 January 1995, the Government approved the
Regulations of Granting and Payment of State Pensions to
Officials and Soldiers of the Systems of Internal Affairs,
State Security, Defence and Prosecutor's Office.
It was provided in Item 8 of the Regulations (wording of
20 January 1995): "In the cases not provided for in these
Regulations the time of service on the grounds of which state
pensions are granted to the officials and soldiers shall be
established by the Government of the Republic of Lithuania on
the respective proposal of the Ministry of Internal Affairs,
the Department of State Security of the Republic of Lithuania,
the Ministry of Defence and the Office of the Prosecutor
General of the Republic of Lithuania."
2. The petitioner requests the investigation into the
compliance of Item 8 of the Regulations (wording of 20 January
1995) with Article 94 of the Constitution.
It is clear from the motives of the petitioner, that it
doubts as to the compliance of Item 8 of the Regulations
(wording of 20 January 1995) with not entire Article 94 of the
Constitution but only with Item 2 of the said article.
3. The petitioner requests the investigation into the
compliance of Item 8 of the Regulations (wording of 20 January
1995) with Article 16 of the Law on Pensions of Officials and
Soldiers of Internal Affairs, State Security, Defence and
Prosecutor's Office.
It is clear from the motives of the petitioner, that it
doubts as to the compliance of Item 8 of the Regulations
(wording of 20 January 1995) with not entire Article 16 of the
said law but only with Paragraph 4 of the said article.
4. By Item 1.1 of Government Resolution No. 861 "On the
Partial Amendment of Government of the Republic of Lithuania
Resolution No. 83 'On the Approval of the Regulations of
Granting and Payment of State Pensions to Officials and
Soldiers of the Systems of Internal Affairs, State Security,
Defence and Prosecutor's Office and the Establishment of the
Time of Service Necessary in Order to Receive a Respective
Percentage Extra Pay for the Years of Service' of 20 January
1995" of 18 July 2000 (Official Gazette Valstybės žinios, 2000,
No. 61-1862) the title of the Government Resolution was changed
and worded as follows: "On the Approval of the Regulations of
Granting and Payment of State Pensions to Officials and
Soldiers of the Systems of Internal Affairs, State Security,
Defence and Prosecutor's Office as well as the Special
Investigation Service, the Department of Prisons and the
Establishments and State Enterprises which are under the
Jurisdiction of the Said Department, and the Establishment of
the Time of Service Necessary in Order to Receive a Respective
Percentage Extra Pay for the Years of Service". By Item 1.4.1
of the said resolution the title of the Regulations was also
changed: they were entitled the Regulations of Granting and
Payment of State Pensions to Officials and Soldiers of the
Systems of Internal Affairs, State Security, Defence and
Prosecutor's Office as well as the Special Investigation
Service, the Department of Prisons and the Establishments and
State Enterprises which are under the Jurisdiction of the Said
Department.
By Item 1.4.3 of the Government Resolution of 18 July
2000, Item 8 of the Regulations was set forth as follows: "In
the cases not provided for in these Regulations the time of
service on the grounds of which state pensions are granted to
the officials and soldiers shall be established by the
Government of the Republic of Lithuania on the respective
proposal of the Ministry of Internal Affairs, the Ministry of
Justice, the Special Investigation Service of the Republic of
Lithuania, the Department of State Security of the Republic of
Lithuania, the Ministry of Defence and the Office of the
Prosecutor General of the Republic of Lithuania."
If one compares the legal regulation established in Items
8 of the Regulations of the wordings of 20 January 1995 and 18
July 2000, it is evident that they are different only in that
Item 8 of the Regulations of the wording of 18 July 2000 points
out two additional institutions, i.e. the Ministry of Justice
and the Special Investigation Service, on the proposals of
which the Government establishes the time of service on the
grounds of which state pensions are granted to the officials
and soldiers. The legal regulation of Item 8 of the Regulations
(wording of 13 December 1995) has not been changed in any other
aspect.
5. On 13 December 1994, the Seimas enacted the Law on
Pensions of Officials and Soldiers of Internal Affairs, State
Security, Defence and Prosecutor's Office. It was provided in
Paragraph 4 of Article 16 thereof:
"The following time periods, which had been prior to
coming of this Law into force, are equalled to the time of
service on the grounds of which pensions are granted to the
individuals engaged as officials or soldiers of internal
affairs, state security, defence and prosecutor's office of the
Republic of Lithuania:
1) the actual time of service in the armed forces,
frontier-guard service, system of interior and other services
of other states (with the exception of service in death squads
and battalions)-under the procedure established by the
Government of the Republic of Lithuania;
2) the time of service in the police (militia), the
systems of internal service, state security, defence and
prosecutor's office of the Republic of Lithuania on the basis
of the Law on Employment Contract in the case that subsequently
this post was attributed to the post of the official;
3) the time of service as chiefs of professional fire
fighting subunits, as firefighters, firefighters-drivers on the
grounds of the Law on Employment Contract in the case that
subsequently these employees were attributed to officials of
militarised fire fighting service.
4) from 25 April 1990 till 23 August 1991 one day of the
service in structural subunits of the Department of Defence is
considered as three days of service;
5) the officials and soldiers who began their service in
the system of defence prior to 31 December 1991-80% of their
employment period that they had had until that time;
6) the time of learning in higher, special secondary
schools and schools of further learning of the police (internal
affairs), of state security and those of defence of the
Republic of Lithuania. The time of learning in analogous
schools of other states may, under the procedure established by
the Government of the Republic of Lithuania, be included in the
time of service on the grounds of which pension is granted.
Half of the time of learning in other higher schools, schools
of further education and special secondary schools shall also
be included in the time of service on the grounds of which
pension is granted in the case that the individuals, after they
had finished them, were at once appointed officials."
6. Paragraph 4 of Article 16 of the Law was amended by
Article 1 of the Republic of Lithuania Law on the Amendment of
the Law on Pensions of Officials and Soldiers of Internal
Affairs, State Security, Defence and Prosecutor's Office of 9
July 1996 (Official Gazette Valstybės žinios, 1996, No.
68-1640) and by Article 3 of the Republic of Lithuania Law on
the Supplement of Articles 9, 10 and 16 of the Law on Pensions
of Officials and Soldiers of Internal Affairs, State Security,
Defence and Prosecutor's Office of 1 July 1998 (Official
Gazette Valstybės žinios, 1998, No. 62-1777).
On 18 April 2000, the Seimas changed the title of the Law
by Article 1 of the Republic of Lithuania Law on the Supplement
as well as Amendment of the Title, and of Articles 1, 3, 6, 12,
and 16 of the Law on Pensions of Officials and Soldiers of
Internal Affairs, State Security, Defence and Prosecutor's
Office (Official Gazette Valstybės žinios, 2000, No. 36-986)
and by Article 6 thereof supplemented Paragraph 4 of Article 16
of the Law.
On 2 May 2000, the Seimas supplemented the title of the
Law by Article 1 of the Republic of Lithuania Law on the
Supplement as well as Amendment of the Title, and of Articles
1, 3, 6, 12, and 16 of the Law on Pensions of Officials and
Soldiers of Internal Affairs, State Security, Defence and
Prosecutor's Office (Official Gazette Valstybės žinios, 2000,
No. 41-1167) as well as by Article 6 thereof supplemented
Paragraph 4 of Article 16 of the Law.
On 13 July 2000 the Seimas supplemented the title of the
Law on Pensions of Officials and Soldiers of Internal Affairs,
State Security, Defence and Prosecutor's Office by Article 1 of
the Republic of Lithuania Law on the Supplement as well as
Amendment of the Title, and of Articles 1, 3, 6, 12, and 16 of
the Law on Pensions of Officials and Soldiers of Internal
Affairs, State Security, Defence, the Special Investigation
Service and Prosecutor's Office (Official Gazette Valstybės
žinios, 2000, No. 64-1923): this law was entitled the Republic
of Lithuania Law on Pensions of Officials and Soldiers of
Internal Affairs, State Security, Defence and Prosecutor's
Office as well as the Special Investigation Service, the
Department of Prisons and the Establishments and State
Enterprises which are under the Jurisdiction of the Said
Department. By Article 6 of the law of 13 July 2000 Paragraph 4
of Article 16 of the Law was also supplemented and amended.
On 10 October 2000, the Seimas supplemented Item 2 of
Paragraph 4 of Article 16 of the Law by Article 2 of the
Republic of Lithuania Law on the Supplement of Articles 1 and
16 of the Law on Pensions of Officials and Soldiers of Internal
Affairs, State Security, Defence and Prosecutor's Office as
well as the Special Investigation Service, the Department of
Prisons and the Establishments and State Enterprises which are
under the Jurisdiction of the Said Department (Official Gazette
Valstybės žinios, 2000, No. 92-2860).
7. Paragraph 4 of Article 16 of the Law (wording of 10
October 2000) provides:
"The following time periods, which had been prior to
coming of this Law into force, are equalled to the time of
service on the grounds of which pensions are granted to the
individuals engaged as officials or soldiers of internal
affairs, state security, defence and the system of prosecutor's
office, as well as the Special Investigation Service, the
Department of Prisons and the establishments and state
enterprises, which are under the jurisdiction of the said
department:
1) the actual time of service in the armed forces,
frontier-guard service, system of interior and other services
of other states (with the exception of service in death squads
and battalions)-under the procedure established by the
Government of the Republic of Lithuania;
2) the time of service in the police (militia), the State
Frontier-guard Service, the systems of internal service, state
security, defence and prosecutor's office on the basis of the
Law on Employment Contract in the case that subsequently this
post was attributed to the post of the official;
3) the time of service as chiefs of professional fire
fighting subunits, as firefighters, firefighters-drivers on the
grounds of the Law on Employment Contract in the case that
subsequently these employees were attributed to officials of
militarised fire fighting service.
4) one day of the service in structural subunits of the
Department of Defence from 25 April 1990 till 23 August 1991
and in the system of the State Security Department under the
Government of the Republic of Lithuania from 26 March 1990 till
23 August 1991 is considered as three days of service;
5) the individuals who began their service in the system
of defence prior to 31 December 1991-80% of their employment
period that they had had until that time;
6) the time of learning in higher, special secondary
schools and schools of further learning of the police (internal
affairs), of state security and those of defence of the
Republic of Lithuania. The time of learning in analogous
schools of other states may, under the procedure established by
the Government of the Republic of Lithuania, be included in the
time of service on the grounds of which pension is granted.
Half of the time of learning in other higher schools, schools
of further education and special secondary schools shall also
be included in the time of service on the grounds of which
pension is granted in the case that the individuals, after they
had finished them, were at once appointed officials."
8. If one compares the legal regulation established in
Paragraph 4 of Article 16 of the Law of the wordings of 13
December 1994 and 10 October 2000, it is evident that they
differ only in that the 10 October 2000 wording of the Law
additionally provides that
a) the time periods pointed out in this paragraph are
equalled to the time of service (they are included into the
time of service) on the grounds of which state pensions are
granted to the officials and soldiers also for the individuals
engaged as officials and soldiers in the Special Investigation
Service, the Department of Prisons and the establishments and
state enterprises which are under the jurisdiction of the said
department;
b) the time periods pointed out in this paragraph are
equalled to the time of service (they are included into the
time of service) on the grounds of which state pensions are
granted to the officials and soldiers for the individuals who
were engaged not as officials and soldiers of prosecutor's
office (as used to be in Paragraph 4 of Article 16 of the Law)
but as officials and soldiers of the system of prosecutor's
office;
c) additionally, the time periods in the State
Frontier-guard Service, which had been prior to coming of this
Law into force, are equalled to the time of service on the
grounds of which state pensions are granted to the officials
and soldiers on the basis of the Law on Employment Contract for
the individuals engaged as officials and soldiers in the
Special Investigation Service, the Department of Prisons and
the establishments and state enterprises which are under the
jurisdiction of the said department in the case that
subsequently this post was attributed to the post of the
official;
d) the proportions of inclusion of the service or working
days into the time of service are established not only for the
individuals who served or worked in structural subunits of the
Department of Defence from 25 April 1990 till 23 August 1991
but also for those who served or worked in the system of the
State Security Department under the Government of the Republic
of Lithuania from 26 March 1990 till 23 August 1991;
e) the size of the possessed employment period is
established not only for the officials and soldiers who began
their service in the system of defence prior to 31 December
1991 but also for the individuals who began their work in that
system prior to the aforementioned date.
The legal regulation established in Paragraph 4 of Article
16 of the Law (wording of 13 December 1994) has not been
changed in any other aspect.
9. Subsequent to the petition of the petitioner, the
Constitutional Court will consider whether Item 8 of the
Regulations (wording of 20 January 1995) is in compliance with
Item 2 of Article 94 of the Constitution and Paragraph 4 of
Article 16 of the Law (wording of 13 December 1994), as well as
whether Item 8 of the Regulations (wording of 18 July 2000) is
in compliance with Item 2 of Article 94 of the Constitution and
Paragraph 4 of Article 16 of the Law (wording of 10 October
2000).
II
On the compliance of Item 8 of the Regulations of Granting
and Payment of State Pensions to Officials and Soldiers of the
Systems of Internal Affairs, State Security, Defence and
Prosecutor's Office (wording of 20 January 1995) with Paragraph
4 of Article 16 of the Law on Pensions of Officials and
Soldiers of Internal Affairs, State Security, Defence and
Prosecutor's Office (wording of 13 December 1994) and on the
compliance of Item 8 of the Regulations of Granting and Payment
of State Pensions to Officials and Soldiers of the Systems of
Internal Affairs, State Security, Defence and Prosecutor's
Office as well as the Special Investigation Service, the
Department of Prisons and the Establishments and State
Enterprises which are under the Jurisdiction of the Said
Department (wording of 18 July 2000) with Paragraph 4 of
Article 16 of the Law on Pensions of Officials and Soldiers of
Internal Affairs, State Security, Defence and Prosecutor's
Office as well as the Special Investigation Service, the
Department of Prisons and the Establishments and State
Enterprises which are under the Jurisdiction of the Said
Department (wording of 10 October 2000).
1. In the opinion of the petitioner, Paragraph 4 of
Article 16 of the Law contains a final list of the time periods
which had been prior to the Law coming into force and which are
equalled to the time of service on the grounds of which state
pensions are granted to the officials and soldiers for the
individuals engaged as officials and soldiers of internal
affairs, state security, defence and prosecutor's office. As,
under the Constitution, the Government does not have the right
to change any norms of laws, then, in the opinion of the
petitioner, the Law does not grant the right to the Government
to equal other time periods, i.e. those not pointed out in the
Law, which had been prior to the Law coming into force, to the
time of service of the said individuals. The petitioner doubts
whether Item 8 of the Regulations is in compliance with
Paragraph 4 of Article 16 of the Law.
2. While construing the content of Paragraph 4 of Article
16 of the Law, one must note that the said paragraph
establishes the time periods which had been prior to the Law
coming into force and which are equalled to the time of service
(they are included into the time of service) on the grounds of
which state pensions are granted to the officials and soldiers
for the individuals engaged as officials and soldiers of
internal affairs, state security, defence and prosecutor's
office.
In addition, Paragraph 5 of Article 16 of the Law provides
that the period of service provided for in Article 28 of the
Republic of Lithuania Law on the State Security Department
(Official Gazette Valstybės žinios, 1994, No. 99-1959) shall be
included into the time of service of officials of the State
Security Department on the grounds of which pensions are
granted.
The Law does not contain any other norms establishing as
to what time periods which had been prior to the Law coming
into force are equalled to the time of service on the grounds
of which pensions are granted to the officials and soldiers for
the individuals engaged as officials and soldiers of internal
affairs, state security, defence and prosecutor's office.
3. Under Article 52 of the Constitution, 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. In its ruling of 12 March 1997,
the Constitutional Court held that "the provisions of Article
52 of the Constitution which guarantee citizens the right to
social maintenance obligate the state to establish sufficient
measures to implement and protect the said right".
One of the guarantees ensuring a proper realisation of the
right to social maintenance is the legal force of the legal
acts whereby the social maintenance rendered by the state is
regulated. The relations pointed out in Article 52 of the
Constitution must be regulated by the law.
Under Item 2 of Article 67 of the Constitution, the Seimas
shall enact laws. All other legal acts must be adopted on the
grounds of laws and may not be in conflict with them, i.e. they
must be substatutory legal acts. In its rulings the
Constitutional Court held that a legal act adopted by the
Government is a substatutory legal act, it may not be in
conflict with the law, or change the content of norms of the
law, and it may not contain any legal norms that would compete
with those of the law (Constitutional Court rulings of 19
January 1994, 16 March 1994, 15 July 1994, 26 October 1995, 29
May 1997, 3 December 1997, 6 May 1998, 15 March 2000, 5 April
2000).
The provision of Article 52 of the Constitution means that
the Constitution guarantees pensions and various types of
social maintenance for the entities, as well as on the bases
and sizes, which are provided for in the law. It is only the
law that may establish the bases on the grounds of which state
pensions are granted as well as the sizes of such pensions and
conditions of their granting and payment (Constitutional Court
ruling of 10 February 2000).
In its rulings of 3 December 1997 and 6 May 1998, the
Constitutional Court held that one is not permitted to
establish any conditions of appearance of the right to social
assistance of individuals and to limit the extent of this right
by a substatutory regulation of the relations pointed out in
Article 52 of the Constitution.
Thus, after it has been established in Paragraph 4 of
Article 16 of the Law as to what time periods which had been
prior to the Law coming into force are equalled to the time of
service on the grounds of which state pensions are granted to
the officials and soldiers for the individuals engaged as
officials and soldiers of internal affairs, state security,
defence and prosecutor's office, one is not permitted to
establish by a substatutory act any such legal regulation
whereby the bases to receive these pensions, the sizes of these
pensions, the conditions of their granting and payment would be
changed, and whereby the individuals who are not entitled to
these pensions would be pointed out. Alongside, it needs to be
held that one is not permitted to extend the extent of the said
right by a substatutory legal regulation if compared with that
established in the Law. Otherwise the hierarchy of legal acts
and harmony of the legal system would be disturbed.
Thus, one is not permitted to establish by a substatutory
act such legal regulation which would establish different time
periods, i.e. those that had been prior to the Law coming into
force and that are not pointed out in the Law, which might be
equalled to the time of service on the grounds of which state
pensions are granted to the officials and soldiers for the
individuals engaged as officials and soldiers of internal
affairs, state security, defence and prosecutor's office.
4. Under Item 1 of Paragraph 4 of Article 16 of the Law,
for the individuals engaged as officials or soldiers of
internal affairs, state security, defence and prosecutor's
office the actual time of service, which had been prior to the
Law coming into force, in the armed forces, frontier-guard
service, system of interior and other services of other states
(with the exception of service in death squads and battalions)
is equalled, under the procedure established by the Government,
to the time of service on the grounds of which pensions are
granted.
Under Item 6 of Paragraph 4 of Article 16 of the Law, for
the individuals engaged as officials or soldiers of internal
affairs, state security, defence and prosecutor's office the
time of learning, which had been prior to the Law coming into
force, in higher, special secondary schools and schools of
further learning of the police (internal affairs), of state
security and those of defence of the Republic of Lithuania is
equalled to the time of service on the grounds of which
pensions are granted to the officials and soldiers. The time of
learning in analogous schools of other states may, under the
procedure established by the Government, be included in the
time of service on the grounds of which pension is granted.
Thus Items 1 and 6 of Paragraph 4 of Article 16 of the Law
contain a commissioning of the legislator for the Government to
establish the procedure whereby the time periods which had been
prior to the Law coming into force and during which the said
individuals in fact served in the armed forces, frontier-guard
service, system of interior and other services of other states
(with the exception of the service in death squads and
battalions) are equalled to the time of service on the grounds
of which state pensions are granted to the officials and
soldiers for the said individuals, as well as to establish the
procedure whereby the time periods which had been prior to the
Law coming into force and during which the said individuals
studied in schools of other states which are analogous to
higher, special secondary schools and schools of further
learning of the police (internal affairs), of state security
and those of defence of the Republic of Lithuania may be
included in the time of service on the grounds of which
pensions are granted to the said individuals.
It needs to be noted that Items 2, 3, 4 and 5 of Paragraph
4 of Article 16 of the Law do not provide for any commissioning
for the Government to adopt any substatutory acts necessary for
the implementation of the Law.
5. While deciding whether Item 8 of the Regulations is in
compliance with Paragraph 4 of Article 16 of the Law, one must
elucidate the content of the formula "under the procedure
established by the Government" employed in Items 1 and 6 of
this paragraph.
5.1. Item 2 of Article 94 of the Constitution provides
that the Government shall implement laws and resolutions of the
Seimas concerning the implementation of laws, as well as the
decrees of the President of the Republic, while Item 7 of the
said article stipulates that the Government shall discharge
other duties prescribed to the Government by the Constitution
and other laws.
Under the provision of Item 2 of Article 94 of the
Constitution, the Government implements laws, thus the duty of
the Government to adopt substatutory acts necessary for
implementation of laws stems directly from the Constitution.
Besides, the legislator, considering that it is necessary
to adopt substatutory acts so as to implement laws, may
establish such a duty for the Government either by the law or
by a Seimas resolution concerning implementation of laws.
Thus, the duty of the Government to adopt substatutory
acts which are necessary so as to implement laws stems from the
Constitution, while in case there is a commissioning by the
Seimas to do so, it also stems from the laws and Seimas
resolutions concerning implementation of laws.
5.2. The formula "under the procedure established by the
Government" as used in Items 1 and 6 of Paragraph 4 of Article
16 of the Law means that it is the Government itself that must
establish the said procedure. It may not commission any other
institution to establish this procedure. Taking account of the
fact that under Paragraph 1 of Article 95 of the Constitution
the Government shall resolve the affairs of State
administration at its sittings by adopting resolutions which
must be passed by a majority vote of all members of the
Government, the aforementioned formula means that the said
procedure must by established by a Government resolution. This
resolution must be of normative content. It must not contain
any provisions whereby, not on the basis of common norms, for
individual persons certain time periods might be equalled to
the time of service (might be included into the time of
service) on the grounds of which state pensions are granted to
the officials and soldiers.
5.3. In its ruling of 28 June 2001, the Constitutional
Court held that the Government was bound by the resolutions
which it had adopted previously and that it had to observe its
resolutions. Thus, the procedure adopted by the Government is
mandatory not only for other entities but also for the
Government itself. Until the established procedure has not been
changed, the Government may not adopt decisions otherwise than
under the procedure established by the Government.
Implementing the commissioning of the legislator to
establish a certain procedure, the Government may establish
only such legal regulation which is in conformity with laws.
The procedure established by the Government may not contain any
legal norms which would provide for a different legal
regulation than established in the laws, nor any norms
competing with norms of laws.
6. As it was mentioned, under Items 1 and 6 of Paragraph 4
of Article 16 of the Law, the Government is empowered to
establish the procedure whereby the time periods of actual
service in the armed forces, frontier-guard service, system of
interior and other services (with the exception of the service
in death squads and battalions) of other states are equalled to
the time of service on the grounds of which state pensions are
granted to the officials and soldiers, and whereby the time of
"learning in analogous schools of other states" may be included
in the time of service on the grounds of which state pensions
are granted to the officials and soldiers.
The formula "in the cases not provided for in these
Regulations" of Item 8 of the Regulations means that in this
item the Government established powers for itself also to adopt
decisions to equal (to include into the time of service) such
actual time periods of service or learning on the grounds of
which state pensions are granted to the officials or soldiers,
which are provided in neither the Regulations nor Paragraph 4
of Article 16 of the Law.
Thus, by the disputed legal regulation the Government
accomplished the commissioning of the legislator provided for
in Article 16 of the Law in an improper manner, as it undertook
more powers than it had been granted by the legislator and
intervened in the competence of the legislator.
7. Taking account of the arguments set forth, one is to
conclude that Item 8 of the Regulations of Granting and Payment
of State Pensions to Officials and Soldiers of the Systems of
Internal Affairs, State Security, Defence and Prosecutor's
Office (wording of 20 January 1995) conflicts with Paragraph 4
of Article 16 of the Law on Pensions of Officials and Soldiers
of Internal Affairs, State Security, Defence and Prosecutor's
Office (wording of 13 December 1994).
On the grounds of the same arguments, one is to conclude
that Item 8 of the Regulations of Granting and Payment of State
Pensions to Officials and Soldiers of the Systems of Internal
Affairs, State Security, Defence and Prosecutor's Office as
well as the Special Investigation Service, the Department of
Prisons and the Establishments and State Enterprises which are
under the Jurisdiction of the Said Department (wording of 18
July 2000) conflicts with Paragraph 4 of Article 16 of the Law
on Pensions of Officials and Soldiers of Internal Affairs,
State Security, Defence and Prosecutor's Office as well as the
Special Investigation Service, the Department of Prisons and
the Establishments and State Enterprises which are under the
Jurisdiction of the Said Department (wording of 10 October
2000).
III
On the compliance of Item 8 of the Regulations of Granting
and Payment of State Pensions to Officials and Soldiers of the
Systems of Internal Affairs, State Security, Defence and
Prosecutor's Office (wording of 20 January 1995) and Item 8 of
the Regulations of Granting and Payment of State Pensions to
Officials and Soldiers of the Systems of Internal Affairs,
State Security, Defence and Prosecutor's Office as well as the
Special Investigation Service, the Department of Prisons and
the Establishments and State Enterprises which are under the
Jurisdiction of the Said Department (wording of 18 July 2000)
with Item 2 of Article 94 of the Constitution.
1. Item 2 of Article 94 of the Constitution provides that
the Government shall "implement laws and resolutions of the
Seimas concerning the implementation of laws, as well as the
decrees of the President of the Republic".
2. It has been held in this Ruling of the Constitutional
Court that the formula "in the cases not provided for in these
Regulations" means that in this item the Government established
powers for itself also to adopt decisions to equal (to include
into the time of service) such actual time periods of service
or learning on the grounds of which state pensions are granted
to the officials or soldiers, which are provided in neither the
Regulations nor Paragraph 4 of Article 16 of the Law.
It has also been held in this Ruling of the Constitutional
Court that Item 8 of the Regulations (wording of 20 January
1995) conflicts with Paragraph 4 of Article 16 of the Law
(wording of 13 December 1994), and that Item 8 of the
Regulations (wording of 18 July 2000) conflicts with Paragraph
4 of Article 16 of the Law (wording of 10 October 2000).
After it has been held that in the course of the
accomplishment of the commissioning established in Paragraph 4
of Article 16 of the Law the Government exceeded the powers
granted for it and that Item 8 of the Regulations conflicts
with Paragraph 4 of Article 16 of the Law, it needs to be held,
alongside, that the provision of Item 2 of Article 94 of the
Constitution that the Government shall implement laws is also
violated by the legal regulation established in Item 8 of the
Regulations.
3. Taking account of the arguments set forth, one is to
conclude that Item 8 of the Regulations of Granting and Payment
of State Pensions to Officials and Soldiers of the Systems of
Internal Affairs, State Security, Defence and Prosecutor's
Office (wording of 20 January 1995) conflicts with Item 2 of
Article 94 of the Constitution, and that Item 8 of the
Regulations of Granting and Payment of State Pensions to
Officials and Soldiers of the Systems of Internal Affairs,
State Security, Defence and Prosecutor's Office as well as the
Special Investigation Service, the Department of Prisons and
the Establishments and State Enterprises which are under the
Jurisdiction of the Said Department (wording of 18 July 2000)
conflicts with Item 2 of Article 94 of the Constitution.
Conforming to Article 102 of the Constitution of the
Republic of Lithuania and Articles 53, 54, 55 and 56 of the
Republic of Lithuania Law on the Constitutional Court, the
Constitutional Court of the Republic of Lithuania has passed
the following
ruling:
To recognise that Item 8 of the Regulations of Granting
and Payment of State Pensions to Officials and Soldiers of the
Systems of Internal Affairs, State Security, Defence and
Prosecutor's Office (wordings of 20 January 1995 and 18 July
2000) approved by Government of the Republic of Lithuania
Resolution No. 83 "On the Approval of the Regulations of
Granting and Payment of State Pensions to Officials and
Soldiers of the Systems of Internal Affairs, State Security,
Defence and Prosecutor's Office and the Establishment of the
Time of Service Necessary in Order to Receive a Respective
Percentage Extra Pay for the Years of Service" of 20 January
1995 conflicts with Item 2 of Article 94 of the Constitution of
the Republic of Lithuania and Paragraph 4 of Article 16 of the
Republic of Lithuania Law on Pensions of Officials and Soldiers
of Internal Affairs, State Security, Defence and Prosecutor's
Office (wordings of 13 December 1994 and 10 October 2000).
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated on behalf of the Republic of
Lithuania.