Lietuviškai
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF
LITHUANIA
RULING
ON THE COMPLIANCE OF PARAGRAPHS 1 AND 2 OF ARTICLE 7,
PARAGRAPH 6 AND ITEM 2 OF PARAGRAPH 9 OF ARTICLE 16 OF THE
REPUBLIC OF LITHUANIA LAW ON THE STATE PENSIONS OF OFFICIALS
AND SOLDIERS OF THE INTERIOR, THE SPECIAL INVESTIGATION
SERVICE, STATE SECURITY, DEFENCE AND OF THE PROSECUTOR'S OFFICE
(WORDING OF 2 MAY 2000) WITH THE CONSTITUTION OF THE REPUBLIC
OF LITHUANIA, AND ON THE COMPLIANCE OF ITEM 31.3 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
NOVEMBER 1998) 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 PARAGRAPH 1 OF ARTICLE 7 OF THE REPUBLIC OF LITHUANIA
LAW ON THE STATE PENSIONS OF OFFICIALS AND SOLDIERS OF THE
INTERIOR, THE SPECIAL INVESTIGATION SERVICE, STATE SECURITY,
DEFENCE AND OF THE PROSECUTOR'S OFFICE (WORDING OF 2 MAY 2000)
23 April 2002
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Judges of the Constitutional Court Egidijus
Jarašiūnas, Egidijus Kūris, Kęstutis Lapinskas, Zenonas
Namavičius, Augustinas Normantas, Jonas Prapiestis, Vytautas
Sinkevičius, and Stasys Stačiokas,
with the secretary of the hearing-Daiva Pitrėnaitė,
in the presence of:
the representative of the party concerned, the Seimas of
the Republic of Lithuania, who was Jadvyga Andriuškevičiūtė,
the chief consultant to the Legal Department of the Office of
the Seimas,
the representatives of the party concerned, the Government
of the Republic of Lithuania, who were Svetlana Černuševič,
Head of the Pensions' Division of the Department for Social
Insurance and Pensions at the Ministry of Social Security and
Labour of the Republic of Lithuania, and Arūnas Sodonis, Deputy
Head of the Division for Application of Law of the Law
Department at the Ministry of the Interior of the Republic of
Lithuania,
pursuant to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Article 1 of the Republic of
Lithuania Law on the Constitutional Court, on 10 April 2002 in
its public hearing heard Case No. 27/2000 which originated in a
petition of the petitioner, the Higher Administrative Court,
requesting to determine whether Paragraphs 1 and 2 of Article
7, Paragraph 6 and Item 2 of Paragraph 9 of Article 16 the
Republic of Lithuania Law on the State Pensions of Officials
and Soldiers of the Interior, the Special Investigation
Service, State Security, Defence and of the Prosecutor's Office
(wording of 2 May 2000) were in compliance with Paragraph 1 of
Article 29 of the Constitution of the Republic of Lithuania,
and whether Item 31.3 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 Paragraph 1 of Article 7 of the
Republic of Lithuania Law on the State Pensions of Officials
and Soldiers of the Interior, the Special Investigation
Service, State Security, Defence and of the Prosecutor's Office
(wording of 2 May 2000).
The Constitutional Court
has established:
I
The petitioner, the Higher Administrative Court, was
investigating an administrative case concerning recalculation
of the amount of the state pension of officials and soldiers
for service. The said court suspended the investigation of the
case by its order of 30 June 2000 and addressed the
Constitutional Court with a petition requesting to determine
whether Paragraphs 1 and 2 of Article 7, Paragraph 6 and Item 2
of Paragraph 9 of Article 16 of the Republic of Lithuania Law
on the State Pensions of Officials and Soldiers of the
Interior, the Special Investigation Service, State Security,
Defence and of the Prosecutor's Office (hereinafter also
referred to as the Law) (Official Gazette Valstybės žinios,
1994, No. 99-1958) were in compliance with Paragraph 1 of
Article 29 of the Constitution, and whether Item 31.3 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 (hereinafter
also referred to as the Regulations) (Official Gazette
Valstybės žinios, 1995, No. 8-173) 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 was in compliance with Paragraph 1 of Article 7 of the Law
on the State Pensions of Officials and Soldiers of the
Interior, the Special Investigation Service, State Security,
Defence and of the Prosecutor's Office.
II
The request of the petitioner is based on the following
arguments.
1. Article 7 of the Law provides that the state pension of
officials and soldiers for service shall be calculated and paid
on the basis of the remuneration for work valid in the month of
the payment of the pension for the post which the official or
soldier used to hold prior to his retirement. This remuneration
includes the official salary, as well as the extra pays for the
rank, length of service and the category when these extra pays
are paid under procedure established by laws (Paragraph 1). 1
percent of the salary pointed out in Paragraph 1 of this
article shall be paid for every year of service which is
included into the time of service for which pension is granted
(Paragraph 2). Paragraph 6 of Article 16 of the Law provides
that in the course of the calculation of the state pensions for
officials and soldiers the percentages pointed out in
Paragraphs 2 and 3 of Article 7 and Paragraph 1 of Article 9 of
this law shall be increased by 1.8 times for the years of
service which had been prior to this law going into effect and
included into the time of service for which pension is granted.
When the time of service is equalled to 20 years under
Paragraph 2 of Article 9 of this law, this rule is applied only
to the years of service which had been prior to this law coming
into force. Item 2 of Paragraph 2 of Article 16 of the Law
provides that, while recalculating the pensions which had been
granted to officials and soldiers before this law came into
force, the state pensions of officials and soldiers shall be
calculated on the basis of this law, i.e. the provisions of
Article 7 of the Law are also applied.
In the opinion of the petitioner, under Paragraphs 1 and 2
of Article 7, Paragraph 6 of Article 16 and Item 2 of Article 9
of the Law, while recalculating the pensions which had been
granted to officials and soldiers prior to the Law coming into
force, one must take account of the remuneration for work,
which is valid in the month of the recalculation and payment of
this pension, for the post held by the official or soldier at
the time of his retirement. However, some posts may have been
abolished, the character and extent of certain posts may have
been changed, therefore, at the time of the payment of the
pension the existing remuneration for work may be not adequate
for the functions performed by the retired person. Thus, the
amount of the pension depends on the time of the retirement of
the official or soldier. The petitioner doubts if this does not
violate the constitutional principle of equality of all persons
before the law.
2. The petitioner maintains that the Law establishes the
same procedure for calculation of the state pension for service
for those who retired prior to the Law coming into force and
those who retired after the Law had come into force. The amount
of the pension is calculated on the basis of the same amount of
the remuneration for work. 1.8 percent of the calculated
remuneration for work is paid for every year of service, which
is included into the time of service for which pension is
granted, prior to the Law coming into force. 1 percent of the
calculated remuneration for work is paid for every year of
service, which was included into the time of service for which
pension is granted, after the Law had come into force. In the
opinion of the petitioner, the officials and soldiers who
retired before the Law came into force are in a better
situation if compared to those who retired after the Law had
come into force. The petitioner maintains that from this aspect
Paragraphs 1 and 2 of Article 7, Paragraph 6 and Item 2 of
Paragraph 9 of Article 16 of the Law are also in conflict with
Paragraph 1 of Article 29 of the Constitution.
3. In the opinion of the petitioner, under the procedure
established in Paragraph 1 of Article 7 of the Law the amount
of the state pensions of officials and soldiers is calculated
if this pension is granted after the Law came into force. The
same procedure under the Law must be applied also in the course
of recalculation of the state pensions of officials and
soldiers that had been granted before the Law came into force.
Meanwhile, Item 31.3 of the Regulations provides that
while recalculating the pensions of the years of service and of
disablement for the officials and soldiers of the interior who
retired in the period from 1 July 1991 till 31 December 1994,
the officials and soldiers of the system of defence who retired
as of 25 April 1990, the officials and soldiers of the systems
of state security and prosecutor's office who retired as of the
day of the creation of these establishments, the remuneration
for work, on the basis of which the pension is calculated, is
established by multiplying the coefficient which was determined
in the month of retirement to calculate the remuneration by the
minimal monthly salary of LTL 65 valid in December 1994, and by
adding the extra pay for the years of service, the extra pay
for the category and the coefficient to calculate the
remuneration for the official's rank, which was valid in
December 1994, by applying the provisions of Items 4 and 5 of
Government Resolution No. 907 "On the Indexation of the
Remuneration for Work and other Payments" of 28 September 1994
(Official Gazette Valstybės žinios, 1994, No. 77-1444). While
recalculating the pensions granted on the basis of the
remuneration for work which existed, according to the dates
pointed out in Items 31 and 31.3, until 31 November 1991, one
applies minimal sizes of the coefficient schemes to calculate
the official salaries in accordance with respective posts as
well as the coefficients depending on the special rank, which
are approved by various governmental resolutions, as well as
one calculates the extra pays for the category and the years of
service.
The petitioner maintains that the Law and the Regulations
define the remuneration for work, on the basis of which the
pension is calculated, in a different manner: the Law specifies
that in order to calculate the pension, one must base himself
on the remuneration for work valid in the month of the payment
of the pension, while the Regulations have established a rule
that one must base himself on the remuneration for work which
was in the month of the retirement. The petitioner doubts
whether Item 31.3 of the Regulations is in compliance with
Paragraph 1 of Article 7 of the Law.
III
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from the representative of the party concerned, the
Seimas, who was J. Andriuškevičiūtė, the chief consultant to
the Law Department of the Office of the Seimas, and the
representatives of the party concerned, the Government, who
were S. Černuševič, Head of the Pensions' Division of the
Department for Social Insurance and Pensions at the Ministry of
Social Security and Labour, and A. Sodonis, Deputy Head of the
Division for Application of Law of the Law Department at the
Ministry of the Interior.
1. In the opinion of J. Andriuškevičiūtė, one must decide
as to the conformity of the Law with the Constitution by
assessing not individual provisions of the Law but by revealing
the essence of their entirety and relation to the Constitution.
When one takes account of the time period of the years of
service, the procedure of granting and recalculation of
pensions for officials and soldiers for service, which is
provided for by the Law, does not violate but in fact ensure
the implementation of the norms-principles entrenched in
Paragraph 1 of Article 29 of the Constitution. In attempt to
ensure that the persons who held posts of officials and
soldiers in different periods have the right to social
guarantees, a modified procedure for calculation of their
pensions for service was established. Without the detailing of
peculiarities of the rights of those entities, it would have
been impossible to establish a single general rule of granting
state pensions for officials and soldiers for service.
The representative of the party concerned points out that
while assessing the provisions of Paragraph 1 of Article 7 of
the Law, one has to note that certain posts which the person
used to hold previously were abolished. It is impossible to
establish as to what existing posts may be analogous to those
which had in fact been held previously, therefore, without the
establishment of peculiarities of granting of state pensions to
officials and soldiers, the pensions provided for in the Law
would not have been granted, thus the succession of rights of
the said persons, which were valid until 1 January 1995, would
not have been secured.
In the opinion of J. Andriuškevičiūtė, the rules
established in Item 31.3 of the Regulations are not
discriminatory, they attempt to determine the impact of the
period of service and remuneration in different periods on the
amount of state pensions of officials and soldiers in as
objective a manner as possible. Alongside, one has to assess
the circumstances (e.g. the introduction of the litas, changes
of the names of the posts and their functions), which played an
important role for making such rules to appear.
Paragraph 2 of Article 12 of the Law provides that the
institutions, while granting and paying state pensions of
soldiers and officials for service, shall follow this law and
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. Thus the
legislature has specified that the Government is entitled to
establish the rules for granting and payment of pensions.
In the opinion of the representative of the party
concerned, the norms worded in Article 29 of the Constitution
are not a strict dogma, they ought to be assessed as general
rules and universal principles. In law, the principle of
equality of persons before the law does not mean that the same
rule must be applied to all persons: it obligates to legally
assess the homogenous facts in the same manner and prohibits to
arbitrarily assess the facts, which are the same in essence, in
a different manner.
J. Andriuškevičiūtė maintains that the provisions of
Article 7 of the Law establishing the procedure of calculation
of state pensions of officials and soldiers for service attempt
to consolidate the officials' and soldiers' right to a pension
which existed in various periods. It is difficult to notice
discrimination of the rights of officials and soldiers in the
disputed provisions of the Law, they ought to be assessed as
ensuring differentiation of persons which has been conditioned
by objective reasons.
2. The representative of the party concerned, the
Government, S. Černuševič maintains that the disputed
provisions of the Law are not discriminatory, they are
applicable to all the persons listed in Article 1 of the Law on
the same bases, under the same conditions and the same
procedure. 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 (Article 52). However, the
Constitution does not regulate the issues of granting and
payment of state pensions: it does not provide as to whom and
under what conditions they may be granted and paid. The nature
of state pensions is of different character than social
insurance or benefit pensions: their granting and payment is
established by individual laws. Such a right of the legislature
is enshrined in the Constitution. The ways and content of legal
regulation are determined by the diversity of social life. In
the opinion of the representative of the party concerned, there
is no legal basis to maintain that disputed Paragraphs 1 and 2
of Article 7, Paragraph 6 and Item 2 of Paragraph 9 of Article
16 of the Law deny the constitutional principle of equality of
persons before the law.
S. Černuševič notes that the indexation mechanism of state
pensions of officials and soldiers pointed out in Paragraph 1
of Article 7 of the Law is to be applied to all pensions, i.e.
to those granted after the Law had come into force, those which
had been granted before the Law came into force, and those
recalculated under the Law. The indexation procedure pointed
out in Items 9 and 31.3 of the Regulations is in compliance
with the procedure established in the Law.
3. The representative of the party concerned, the
Government, A. Sodonis maintains that, in the opinion of the
Government, as well as under Paragraph 1 of Article 7 of the
Law and Item 31.3 of the Regulations, the coefficient of the
official salary which was in the month of the retirement of the
official must be multiplied by the monthly base salary which is
valid in the month the payment of the pension. Under the
Regulations, the remuneration for work is calculated by
multiplying the coefficient of the official salary by the
amount of the minimal monthly salary, which is valid in the
month of the calculation of the pension, but not by the amount
which was valid in the month of the retirement of the official
or soldier, therefore, there are no contradictions between Item
31.3 of the Regulations and Paragraph 1 of Article 7 of the Law
in this respect.
A. Sodonis points out that the coefficients of the
official salaries of the officials and soldiers who had retired
before the Law went into effect were lower than the
coefficients of the official salaries of the persons who
retired after the Law had gone into effect. The legislature
compensated it by the 1.8-time increase of the portion of the
remuneration for work, which serves the basis for the pension.
In the opinion of A. Sodonis, the disputed provisions of
the Law are in compliance with the Constitution, while Item
31.3 of the Regulations is in conformity with Paragraph 1 of
Article 7 of the Law.
IV
In the course of the preparation of the case for the
Constitutional Court hearing, explanations were received from
A. Klimavičius, Prosecutor General of the Republic of
Lithuania, A. Abramavičius, an advisor to the President of the
Republic of Lithuania, Head of the Law Department, J. Gečas,
Vice-minister of Defence, G. Švedas, Vice-minister of Justice,
J. Liaudanskas, Vice-minister of the Interior, A. Balzaris,
Deputy Director General of the State Security Department, Ž.
Pacevičius, First Deputy Director of the Special Investigation
Service, V. Buiko, Deputy Director for the Security and
Superintendence of the Department of Prisons under the Ministry
of Justice of the Republic of Lithuania, Assoc. Prof. Dr. G.
Dambrauskienė, Head of the Department of Labour and Social
Security, Law Faculty, the Law University of Lithuania.
V
At the Constitutional Court hearing, the representative of
the party concerned, the Seimas, who was J. Andriuškevičiūtė,
and the representatives of the party concerned, the Government,
who were S. Černuševič and A. Sodonis, virtually reiterated the
arguments set forth in their written explanations presented to
the Constitutional Court.
The Constitutional Court
holds that:
I
On the compliance of Paragraphs 1 and 2 of Article 7,
Paragraph 6 and Item 2 of Paragraph 9 of Article 16 of the Law
on the State Pensions of Officials and Soldiers of the
Interior, the Special Investigation Service, State Security,
Defence and of the Prosecutor's Office (wording of 2 May 2000)
with Paragraph 1 of Article 29 of the Constitution.
1. Paragraphs 1 and 2 of Article 7 of the Law provide:
"1. The state pension of officials and soldiers for
service shall be calculated and paid on the basis of the
remuneration for work valid in the month of the payment of the
pension for the post which the official or soldier used to hold
prior to his retirement. This remuneration shall include the
official salary, as well as the extra pays for the rank, length
of service and the category when these extra pays are paid
under procedure established by laws.
2. 1 percent of the salary pointed out in Paragraph 1 of
this article shall be paid for every year of service which is
included into the time of service for which pension is
granted."
Paragraph 6 of Article 16 of the Law provides: "In the
course of the calculation of the state pensions for officials
and soldiers the percentages pointed out in Paragraphs 2 and 3
of Article 7 and Paragraph 1 of Article 9 of this Law shall be
increased by 1.8 times for the years of service which had been
prior to this Law going into effect and included into the time
of service for which pension is granted. When the time of
service is equalled to 20 years under Paragraph 2 of Article 9
of this law, this rule shall be applied only to the years of
service which had been prior to this Law coming into force."
Item 2 of Paragraph 2 of Article 16 of the Law provides
that to the officials and soldiers to whom the pension was
granted prior to the Law coming into force the same procedure
shall be applied for recalculation of the granted pension as in
the case of the calculation of the state pension of officials
and soldiers under this Law (together with the annex pointed
out in Paragraph 7 of this Article), with the exception of the
pension of a loss of the breadwinner.
2. The petitioner maintains that, under Paragraphs 1 and 2
of Article 7, Paragraph 6 of Article 16 and Item 2 of Article 9
of the Law, the amount of the state pension of officials and
soldiers for service depends on the time of the retirement of
the person, i.e. prior to or after the Law coming into force.
The petitioner doubts whether the fact that the amount of the
state pension of officials and soldiers for service depends on
the time of the retirement of the person does not violate the
constitutional principle of equality of persons before the law.
In the opinion of the petitioner, under the Law, the
officials and soldiers who retired before the Law came into
force are in a better situation if compared to the situation of
the officials and soldiers who retired after the Law had come
into force. The petitioner doubts whether from this aspect,
too, the legal regulation of the calculation and recalculation
of the state pension of the officials and soldiers for service
is in compliance with the constitutional principle of equality
of persons before the law.
3. The norms entrenched in Paragraphs 1 and 2 of Article
7, Paragraph 6 and Item 2 of Paragraph 9 of Article 16 of the
Law regulate the relations arising in the course of the
calculation of the state pension of the officials and soldiers
for service, which is granted after the Law went into effect,
as well as in the course of the recalculation of the said
pension which had been granted before the Law went into effect.
The said provisions of the Law are interrelated. It is clear
from the arguments set forth in the petition that the
petitioner doubts as to the compliance of the legal regulation,
established in Paragraphs 1 and 2 of Article 7, Paragraph 6 and
Item 2 of Paragraph 9 of Article 16 of the Law, under which the
state pension of the officials and soldiers for service is
calculated and recalculated, with Paragraph 1 of Article 29 of
the Constitution.
Subsequent to the petition of the petitioner, the
Constitutional Court will consider whether Paragraphs 1 and 2
of Article 7, Paragraph 6 and Item 2 of Paragraph 9 of Article
16 of the Law were in compliance with the principle of equality
of persons before the law, which is enshrined in Article 29 of
the Constitution.
4. The bases of pensionary maintenance and social
assistance are enshrined in Article 52 of the Constitution,
wherein it is established 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. Under this article of the Constitution, not only the
pensions and social assistance pointed out in the said article
but also other pensions or different social assistance,
including the state pension of the officials and soldiers for
service, may be provided for. Under Article 52 of the
Constitution, the relations of pensionary maintenance and
social assistance are regulated by laws only.
The formula "the state shall guarantee" as employed in
Article 52 of the Constitution means inter alia that pensions
and various types of social assistance are guaranteed for the
persons on the bases and by the amounts that are established in
laws.
After the types of pensions, the persons entitled to the
pension, the bases of granting and payment of pensions, their
amounts, and the conditions have been established by laws, a
duty arises for the state to follow the constitutional
principles of the protection of legitimate expectations and
legal certainty in the area of pensionary maintenance
relations. Therefore amendments of the established legal
regulation deteriorating the pensionary maintenance are
possible only when there appears a special situation in the
state and only when it is necessary to protect other
constitutional values. This can be done by law only, without
violating the Constitution.
5. In the course of the regulation of pensionary
maintenance by laws, the other constitutional principles ought
to be followed as well, including the principle of equality of
persons before the law enshrined in Article 29 of the
Constitution, which provides:
"All persons shall be equal before the law, the court, and
other State institutions and officers.
A person may not have his rights restricted in any way, or
be granted any privileges, on the basis of his or her sex,
race, nationality, language, origin, social status, religion,
convictions, or opinions."
The constitutional principle of equality of persons means
an inborn human right to be treated equally with the others.
Paragraph 1 of Article 29 of the Constitution establishes a
formal equality of all persons, while in Paragraph 2 thereof
the principle of non-discrimination of and not granting
privileges to persons is consolidated (Constitutional Court
ruling of 2 April 2001).
In its rulings, the Constitutional Court has held for many
a time that this principle must be followed both in passing of
laws and in their application. The said principle obligates to
legally assess the homogenous facts in the same manner and
prohibits to arbitrarily assess the facts, which are the same
in essence, in a different manner. On the other hand, the
constitutional principle of equality of persons before the law
does not deny a possibility to provide in a law for different
legal regulation in respect to certain categories of persons
who are in different situations. The variety of social life may
determine the manner and content of legal regulation.
The legislature, while establishing the procedure of
calculation and recalculation of state pensions for the
officials and soldiers for service, differentiates this
procedure while taking account of different conditions of
service, the formerly in force legal regulation of pensionary
maintenance, the held post, the period of service, the
category, the education etc.
Under Paragraph 6 and Item 2 of Paragraph 9 of Article 16
of the Law, the amount of state pensions of the officials and
soldiers for service, regardless of the fact whether they
retired prior to or after the Law coming into force, must be
calculated on the basis of the same procedure established in
the Law. Under Paragraph 1 of Article 7 of the Law, the amount
of state pensions of the officials and soldiers for service in
all cases must be calculated on the basis of the remuneration
of the officials and soldiers valid in the month of the payment
of the pension for the post which the official or soldier was
holding at the time of his retirement. The official salary
together with the extra pays for the rank, period of service
and category are included into the said remuneration, when the
extra pays are paid under the procedure provided for by laws.
By the provisions of the Law that 1.8 percent of the
remuneration amount pointed out in Paragraph 1 of Article 7 of
the Law shall be paid for every year of service served before
the Law went into effect, which is included into the time of
service for which pension is granted, while 1 percent of the
said remuneration amount shall be paid for every year of
service served after the Law had gone into effect, which is
included into the time of service for which pension is granted,
the legislature took account of the changed social, legal,
economic etc. conditions (the implemented reforms of the
institutions of law and order, the changed monetary unit of
this country etc.). Alongside, the legislature took into
consideration the fact that the post which the official or
soldier used to hold might have been changed, abolished etc.
Under the Law, the state pension of officials and soldiers
for service is granted for all persons listed in Article 1 of
the Law on the same bases, under the same conditions and the
same procedure. The principles and procedure of calculation of
the amount of the state pension of the officials and soldiers
for service as established in the Law are the same for all
persons who are entitled to this pension. The norms of the Law
which establish the procedure of calculation and recalculation
of state pensions of the officials and soldiers for service do
not contain any provisions consolidating inequality of the
persons entitled to the said pensions.
6. Taking account of the arguments set forth, one is to
conclude that Paragraphs 1 and 2 of Article 7, Paragraph 6 and
Item 2 of Paragraph 9 of Article 16 of the Law are in
compliance with Article 29 of the Constitution.
II
On the compliance of Item 31.3 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 November 1998)
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 Paragraph 1 of Article 7 of
the Law on the State Pensions of Officials and Soldiers of the
Interior, the Special Investigation Service, State Security,
Defence and of the Prosecutor's Office (wording of 2 May 2000).
1. Item 31.3 of the Regulations provides:
"While recalculating the pensions of the years of service
and of disablement for the officials and soldiers of the
interior who retired in the period from 1 July 1991 till 31
December 1994, the officials and soldiers of the system of
defence who retired as of 25 April 1990, the officials and
soldiers of the systems of state security and prosecutor's
office who retired as of the day of the creation of these
establishments, the remuneration for work, on the basis of
which the pension is calculated, is determined by multiplying
the coefficient, which was established in the month of
retirement to calculate the remuneration, by the minimal
monthly salary of LTL 65 valid in December 1994, and by adding
the extra pay for the years of service, the extra pay for the
category and the coefficient to calculate the remuneration for
the official's rank, which was valid in December 1994, while
applying the provisions of Items 4 and 5 of Government
Resolution No. 907 'On the Indexation of the Remuneration for
Work and other Payments' of 28 September 1994 (Official Gazette
Valstybės žinios, 1994, No. 77-1444).
While recalculating the pensions granted on the basis of
the remuneration for work which existed, according to the dates
pointed out in Items 31 and 31.3, until 31 November 1991, one
applies minimal sizes of the coefficient schemes to calculate
the official salaries in accordance with respective posts as
well as the coefficients depending on the special rank, which
are approved by various resolutions of the Government of the
Republic of Lithuania, as well as one calculates the extra pays
for the category and the years of service."
2. Paragraph 1 of Article 7 of the Law provides that the
state pension of officials and soldiers for service shall be
calculated and paid on the basis of the remuneration for work
valid in the month of the payment of the pension for the post
which the official or soldier used to hold prior to his
retirement. This remuneration shall include the official
salary, as well as the extra pays for the rank, length of
service and the category when these extra pays are paid under
procedure established by laws.
3. In the opinion of the petitioner, Item 31.3 of the
Regulations provides for a different procedure of recalculation
of state pensions of the officials and soldiers for service
granted prior to the Law coming into force from that provided
for in the Law. The petitioner points out that the Law and the
Regulations define the remuneration for work in a different
manner, on the basis of which the pension is calculated: the
Law specifies that in order to calculate the pension, one must
base himself on the remuneration for work valid in the month of
the payment of pension (Paragraph 1 of Article 7), while the
Regulations have established that one must base himself on the
remuneration for work which was in the month of the retirement
(Item 31.3). The petitioner requests to determine whether Item
31.3 of the Regulations is in compliance with Paragraph 1 of
Article 7 of the Law.
4. It has been held in this Ruling of the Constitutional
Court that the provisions of Paragraphs 1 and 2 of Article 7,
Paragraph 6 and Item 2 of Paragraph 9 of Article 16 of the Law
are interrelated. Therefore the Constitutional Court will
consider whether Item 31.3 of the Regulations is in compliance
with Paragraphs 1 and 2 of Article 7, Paragraph 6 and Item 2 of
Paragraph 9 of Article 16 of the Law.
5. Under Paragraph 1 of Article 7 of the Law, the amount
of the state pension of the officials and soldiers for service
is determined by the fact that the said amount is calculated
and paid on the basis of the remuneration for work valid in the
month of the payment of the pension for the post held by the
official or soldier at the time of his retirement. The said
remuneration includes the official salary, as well as the extra
pays for the rank, the period of service and the category, when
the said extra pays are paid under procedure provided for by
laws. The remuneration for work pointed out in Paragraph 1 of
Article 7 of the Law is a basic index on the grounds of which
the state pensions of the officials and soldiers for service
granted before the Law went into effect are recalculated (Item
2 of Paragraph 9 of Article 16 of the Law).
Under Item 31.3 of the Regulations, the amount of the
state pension of the officials and soldiers for service is
determined by the fact that the said amount is calculated and
paid on the basis of the remuneration for work, which is
determined by multiplying the coefficient of calculation of the
salary, which was valid in the month of the retirement, by the
minimal salary of LTL 65 that was valid in December 1994. To
this remuneration for work one also adds the extra pay for the
years of service, the extra pay for the category and the
coefficient of calculation of the salary for the rank of the
official, which was valid in December 1994, while applying the
provisions of Items 4 and 5 of Government Resolution No. 907
"On the Indexation of the Remuneration for Work and Other
Payments" of 28 September 1994.
Thus Item 31.3 of the Regulations virtually established
the amount of the state pension of the officials and soldiers
for service granted before the Law went into effect and the
procedure of recalculation of this amount. It needs to be noted
that the amount of the state pension of the officials and
soldiers for service granted before the Law went into effect
and the procedure of recalculation of this amount as
established in Item 31.3 of the Regulations are different form
the amount of the state pension of the officials and soldiers
for service granted before the Law went into effect and the
procedure of recalculation of this amount which are established
in Paragraphs 1 and 2 of Article 7, Paragraph 6 and Item 2 of
Paragraphs 2 of Article 16 of the Law.
Taking account of the arguments set forth, one is to draw
a conclusion that Item 31.3 of the Regulations conflicts with
Paragraphs 1 and 2 of Article 7, Paragraph 6 and Item 2 of
Article 9 of Article 16.
6. As it was mentioned, under Article 52 of the
Constitution, the persons who are to be granted the state
pension of the officials and soldiers for service, the bases,
conditions, and amounts of granting and payment of this pension
must be established by a law.
It needs to be noted that the persons entitled to the
state pension of the officials and soldiers for service, the
bases, conditions, and amounts of granting and payment of this
pension are established in the Law. The Law also provides for
the procedure of recalculation of the state pension of the
officials and soldiers for service granted before the Law went
into effect. The provision of Paragraph 2 of Article 12 of the
Law that in the course of granting and payment of the state
pension of the officials and soldiers for service one shall
follow this law and 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 the Government, means that the Government is
obligated to establish a procedure for granting and payment of
state pensions of the officials and soldiers without changing
the legal regulation established in the Law.
It has been held in this Ruling of the Constitutional
Court that the procedure of recalculation of the state pension
of the officials and soldiers for service, which had been
granted before the Law came into effect, the amount of the
pension subject to recalculation as provided for in Item 31.3
of the Regulations are different from the procedure of
recalculation of the said pension and its amount which are
established in the Law. Item 31.3 of the Regulations virtually
provides for the amount of the state pension of the officials
and soldiers for service granted before the Law came into
effect and the procedure of recalculation of this amount. Under
Article 52 of the Constitution, the amount of the pension must
be established by a law only but not by a substatutory act,
i.e. the Regulations approved by the Government resolution.
Taking account of the arguments set forth, one is to
conclude that Item 31.3 of the Regulations is in conflict with
Article 52 of the Constitution.
7. Under Item 2 of Article 94 of the Constitution, the
Government of the Republic of Lithuania shall implement laws
and resolutions of the Seimas concerning the implementation of
laws, as well as the decrees of the President of the Republic.
In its rulings the Constitutional Court has held for many
a time that a legal act adopted by the Government is a
substatutory legal act, it may not conflict with a law, change
the content of the norms of the law, it may not contain any
legal norms which would compete with those of the law. The
Government may only establish such legal regulation which would
be in conformity with the laws. The procedure established by
the Government may not contain any legal norms establishing a
different legal regulation than provided for in the law and
competing with the norms of laws.
It has been held in this Ruling of the Constitutional
Court that by the norms of Item 31.3 of the Regulations the
Government established a different procedure of recalculation
of the state pension of the officials and soldiers for service,
which had been granted before the Law came into effect and a
different amount of the pension subject to recalculation from
those established in the Law. According to Article 52 of the
Constitution, the persons who are to be granted the state
pension of the officials and soldiers for service, the bases,
conditions, and amounts of granting and payment of this pension
must be established by a law. By the norms of Item 31.3 of the
Regulations, the Government created new legal norms competing
with the norms of the Law.
Taking account of the arguments set forth, one is to
conclude that Item 31.3 of the Regulations conflicts with Item
2 of Article 94 of the Constitution.
8. Paragraphs 1 and 2 of Article 5 of the Constitution
provide:
"In Lithuania, the powers of the State shall be exercised
by the Seimas, the President of the Republic and the
Government, and the Judiciary.
The scope of powers shall be defined by the Constitution."
These provisions of the Constitution express the principle
of separation of powers. The Constitutional Court has noted for
many a time that the constitutional principle of separation of
powers means that the legislative, executive and judicial
powers must be separated, sufficiently independent, however,
they must also be balanced; that every institution of authority
is assigned with the competence which corresponds to its
purpose; that the content of the competence of the institution
depends on the place of the corresponding power in the system
of powers, on its relation with the other powers, on the place
of the institution among the other institutions of authority
and on the relation of the powers of the said institution with
the powers of other institutions; that after the Constitution
had directly established the powers of a particular state
institution of authority, no state institution may take over
such powers from another institution or transfer or waive them,
and that such powers may not be amended or restricted by a law.
It has been held in this Ruling of the Constitutional
Court that the Government, establishing by Item 31.3 of the
Regulations a different procedure of recalculation of the state
pension of the officials and soldiers for service, which had
been granted before the Law went into effect, and a different
amount of the pension subject to recalculation from those
provided for in the Law, interfered with the competence of the
legislature and violated Article 52 and Item 2 of Article 94 of
the Constitution. Having held this, one is to draw a conclusion
that Item 31.3 of the Regulations also violates the
constitutional principle of separation of powers, thus
Paragraphs 1 and 2 of Article 5 of the Constitution as well.
Taking account of the arguments set forth, one is to
conclude that Item 31.3 of the Regulations conflicts with
Paragraphs 1 and 2 of Article 5 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:
1. To recognise that Paragraphs 1 and 2 of Article 7,
Paragraph 6 and Item 2 of Paragraph 9 of Article 16 the
Republic of Lithuania Law on the State Pensions of Officials
and Soldiers of the Interior, the Special Investigation
Service, State Security, Defence and of the Prosecutor's Office
(wording of 2 May 2000) are in compliance with the Constitution
of the Republic of Lithuania.
2. To recognise that Item 31.3 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 November 1998)
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 Paragraphs 1 and 2 of Article 7, Paragraph 6 and
Item 2 of Article 9 of Article 16 of the Republic of Lithuania
Law on the State Pensions of Officials and Soldiers of the
Interior, the Special Investigation Service, State Security,
Defence and of the Prosecutor's Office (wording of 2 May 2000).
3. To recognise that Item 31.3 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 November 1998)
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 Paragraphs 1 and 2 of Article 5, Article 52 and
Item 2 of Article 94 of the Constitution of the Republic of
Lithuania.
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated on behalf of the Republic of
Lithuania.