Lietuviškai
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF
LITHUANIA
RULING
ON THE COMPLIANCE OF PARAGRAPH 2 OF ARTICLE 69 OF
THE REPUBLIC OF LITHUANIA LAW ON THE DIPLOMATIC
SERVICE, ITEM 9 OF PARAGRAPH 1 OF ARTICLE 4
(WORDING OF 16 MARCH 2000) OF THE REPUBLIC OF
LITHUANIA LAW ON STATE SOCIAL INSURANCE AND ITEM 5
OF PARAGRAPH 1 OF ARTICLE 2 (WORDING OF 16
DECEMBER 1999) AND ARTICLE 23 (WORDINGS OF 21
DECEMBER 1994, 21 DECEMBER 2000 AND 8 MAY 2001) OF
THE REPUBLIC OF LITHUANIA LAW ON STATE SOCIAL
INSURANCE PENSIONS WITH THE CONSTITUTION OF THE
REPUBLIC OF LITHUANIA
25 November 2002
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Armanas
Abramavičius, 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 Seimas of the Republic of
Lithuania, the party concerned, who was Jadvyga
Andriuškevičiūtė, the chief consultant to the Legal Department
of the Office of the Seimas,
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 29 October 2002
in its public hearing heard Case No. 41/2000 which originated
in a petition of the Higher Administrative Court requesting to
investigate whether Paragraph 2 of Article 69 of the Republic
of Lithuania Law on the Diplomatic Service, Item 9 of Paragraph
1 of Article 4 (wording of 16 March 2000) of the Republic of
Lithuania Law on State Social Insurance and Item 5 of Paragraph
1 of Article 2 (wording of 16 December 1999) of the Republic of
Lithuania Law on State Social Insurance Pensions to the extent
that they established the obligatory state social pensions
insurance for the spouses of diplomats to cover the period
which they spent abroad owing to the fact that they resided
together with the diplomat who was serving at a diplomatic
mission or consular institution of the Republic of Lithuania,
were in compliance with Article 52 of the Constitution of the
Republic of Lithuania.
The Constitutional Court
has established:
I
The petitioner, the Higher Administrative Court, was
investigating an administrative case. The said court suspended
the investigation of the case by its ruling and applied to the
Constitutional Court with a petition requesting to investigate
whether Paragraph 2 of Article 69 of the Republic of Lithuania
Law on the Diplomatic Service (Official Gazette Valstybės
žinios, 1999, No. 7-140), Item 9 of Paragraph 1 of Article 4
(wording of 16 March 2000; Official Gazette Valstybės žinios,
2000, No. 28-763) of the Republic of Lithuania Law on State
Social Insurance and Item 5 of Paragraph 1 of Article 2
(wording of 16 December 1999; Official Gazette Valstybės
žinios, 1999, No. 113-3283) of the Republic of Lithuania Law on
State Social Insurance Pensions to the extent that they
established obligatory state social pensions insurance for the
spouses of diplomats to cover the period which they spent
abroad owing to the fact that they resided together with the
diplomat who was serving at a diplomatic mission or consular
institution of the Republic of Lithuania, were in compliance
with Article 52 of the Constitution.
II
The request of the petitioner is based on the following
arguments.
Paragraph 2 of Article 23 (wording of 21 December 1994) of
the Law on State Social Insurance Pensions provides that
pensioners who are under 65 years of age and have the
obligatory state social pensions insurance period and the
insured income which does not exceed 1.5 minimal monthly salary
shall be paid full state social insurance old age pension. If
their insured income exceeds 1.5 minimal monthly salary, they
shall be paid only the basic part of the state social insurance
old age pension. Paragraph 1 of Article 40 of the same law
provides that if a person who has been awarded state social
insurance old age pension accrues an additional, but at least
three-year state social insurance period, while working under
employment contract, or on the basis of membership or service,
at his request the pension may be awarded according to the new
data from the moment of filing of the application. The
petitioner notes that it means that the pensioners pointed out
in the law have the right to choose whether (1) to refuse the
insured income and receive the full old age pension (the basic
one and the complementary part); (2) to work and to receive the
insured income for work or in other manner, which is larger
than 1.5 minimal monthly salary, while refusing the
complementary part of the old age pension; (3) to work and
receive the insured income which does not exceed 1.5 minimal
monthly salary, as well as the full old age pension. In cases
of the latter two situations, one acquires the right to
recalculation of the old age pension in the future.
In the opinion of the petitioner, the spouse of a diplomat
who receives the old age pension and who resides abroad
together with the diplomat serving at a diplomatic mission or
consular institution of the Republic of Lithuania does not have
such an opportunity to choose. Paragraph 2 of Article 69 of the
Law on the Diplomatic Service provides that the spouse of a
diplomat shall be insured by the state social pensions
insurance on an obligatory basis to cover the period which the
diplomat's spouse spent abroad owing to the fact that he
resided with the diplomat working at a diplomatic mission or
consular institution of the Republic of Lithuania.
Contributions for such persons are paid from the State Budget
of the Republic of Lithuania, while their size is calculated
from 0.5 amount of the diplomat's official salary. The law
provides for one exception only, i.e. the aforementioned
requirement is not applied upon the diplomat's spouse becoming
employed. No exceptions are provided for pensioners or their
individual categories.
The petitioner notes that analogous provisions providing
for obligatory state social insurance pensions insurance of the
spouse of the diplomat are entrenched in Item 9 of Paragraph 1
of Article 4 (wording of 16 March 2000) of the Law on State
Social Insurance and Item 5 of Paragraph 1 of Article 2
(wording of 16 December 1999) of the Law on State Social
Insurance Pensions. Upon obligatory insurance of the spouse of
the diplomat, in case the income from which the contributions
are calculated exceeds 1.5 minimal monthly salary, the
complementary part of the old age pension is not paid to him.
One does not take into consideration the resolve of the spouse
of the diplomat. According to the petitioner, the spouse of the
diplomat would receive the full old age pension only in case
that he did not reside together with the diplomat (the
obligatory insurance is only provided for to the spouse who
resides together with the diplomat). Therefore, the reception
of the full pension or part thereof also becomes dependent on
the place of residence of the pensioner, although the laws
regulating pensions do not provide for this directly.
Article 52 of the Constitution provides that the state
shall guarantee the right of citizens to old age pension,
therefore the petitioner doubts whether Paragraph 2 of Article
69 of the Law on the Diplomatic Service, Item 9 of Paragraph 1
of Article 4 (wording of 16 March 2000) of the Law on State
Social Insurance and Item 5 of Paragraph 1 of Article 2
(wording of 16 December 1999) of the Law on State Social
Insurance Pensions providing for obligatory state social
pensions insurance for the spouses of diplomats to cover the
period that they spent abroad owing to the fact that they
resided together with the diplomat who was serving at a
diplomatic mission or consular institution of the Republic of
Lithuania to the extent that this insurance is applied to the
diplomats' spouses who receive old age pensions, are in
compliance with Article 52 of the Constitution.
III
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from J. Andriuškevičiūtė, the chief consultant to the
Legal Department of the Office of the Seimas, the
representative of the party concerned, the Seimas.
It is noted in the explanations of the representative of
the party concerned that the state, while guaranteeing the
constitutional rights of citizens and implementing its duty to
take care of the citizens and residents of this country, has
established such a solidarity principle based system, when
able-bodied persons must pay contributions, while the persons
who cannot take care of themselves due to objective reasons are
entitled to assistance. It has become historically established
that the social assistance system based on the insurance
principle is called obligatory (in other countries-legal,
state) social insurance. Besides the obligatory social
insurance, there can function pension funds as well as private
(voluntary) insurance, thus the notion "obligatory insurance"
indicates the nature of this insurance and its difference from
private or pensions' funds' insurance.
J. Andriuškevičiūtė maintains that the purpose of state
social insurance is to provide persons with funds and services
that are needed for subsistence if they, due to the reasons
provided for in the law, cannot provide themselves from work or
other income, or if, due to the reasons provided for in the
law, incur additional expenses.
According to A. Andriuškevičiūtė, it is unreasonably
stated in the petition of the petitioner that the spouse of the
diplomat, who is insured by state social insurance pensions
insurance in an obligatory manner, loses the opportunity to
choose, which is enjoyed by other pensioners: to refuse the
insured income or to come to an agreement in the employment
contract about the remuneration of certain amount and to
receive, due to this, the insured income of one or other
amount. The representative of the party concerned notes that
the laws regulating the relations of state social insurance do
not single out pensioners-spouses of diplomats-in any manner.
According to A. Andriuškevičiūtė, the spouse of the diplomat
has an opportunity to choose as to what way of assistance
legitimised by the state to make use of: to receive the payment
of 0.5 official salary of the diplomat, which is provided for
his residence abroad, or to refuse it (i.e. whether to have the
insured income or not), whether to receive the established
pension or not.
J. Andriuškevičiūtė also notes that, under Article 23 of
the Law on State Social Insurance Pensions, the payment or
non-payment of the pension (part thereof) is linked with the
insured income of the person but not with the place of
residence of the person, therefore, the argument of the
petitioner that "the reception of the full pension or part
thereof becomes also dependent on the place of residence of the
pensioner" is, in the opinion of the representative of the
party concerned, groundless.
According to J. Andriuškevičiūtė, Paragraph 2 of Article
69 of the Law on the Diplomatic Service, Item 9 of Paragraph 1
of Article 4 (wording of 16 March 2000) of the Law on State
Social Insurance and Item 5 of Paragraph 1 of Article 2
(wording of 16 December 1999) of the Law on State Social
Insurance Pensions providing for obligatory state social
pensions insurance for the spouses of the diplomats to cover
the period which they spent abroad owing to the fact they
resided together with the diplomat who was serving at a
diplomatic mission or consular institution of the Republic of
Lithuania are in compliance with Article 52 of the
Constitution.
IV
In the course of the preparation of the case for the
judicial investigation, written explanations were received from
V. Blinkevičiūtė, Minister of Social Security and Labour of the
Republic of Lithuania, P. Koverovas, the state secretary of the
Ministry of Justice of the Republic of Lithuania, and Prof. G.
Dambrauskienė who works at the Department of Labour Law and
Social Security of the Faculty of Law, the Law University of
Lithuania.
V
At the Constitutional Court hearing, the representative of
the party concerned, the Seimas, who was J. Andriuškevičiūtė,
virtually reiterated the arguments set forth in the written
explanations.
The Constitutional Court
holds that:
I
1. The petitioner requests to investigate whether
Paragraph 2 of Article 69 of the Law on the Diplomatic Service,
Item 9 of Paragraph 1 of Article 4 (wording of 16 March 2000)
of the Law on State Social Insurance and Item 5 of Paragraph 1
of Article 2 (wording of 16 December 1999) of the Law on State
Social Insurance Pensions to the extent that they establish
obligatory state social pensions insurance for the spouses of
diplomats to cover the period which they spent abroad owing to
the fact that they resided together with the diplomat who was
serving at a diplomatic mission or consular institution of the
Republic of Lithuania are in compliance with Article 52 of the
Constitution.
2. On 29 December 1998, the Seimas adopted the Republic of
Lithuania Law on the Diplomatic Service Paragraph 2 of Article
69 whereof provides: "The obligatory state social insurance
pensions contributions shall be paid from the State Budget of
the Republic of Lithuania to cover the period which a
diplomat's spouse spent abroad owing to the fact that the
spouse of the diplomat resided together with the diplomat who
was serving at a diplomatic mission or consular institution of
the Republic of Lithuania. The size of the contributions shall
be calculated from 0.5 amount of the diplomat's official
salary. This requirement shall not be applied upon the
diplomat's spouse becoming employed."
On 16 March 2000, the Seimas adopted the Republic of
Lithuania Law on the Amendment of the Law on the Diplomatic
Service whereby the title of Article 69 and Paragraph 1 thereof
were amended. Paragraph 2 of Article 69 of the Law on the
Diplomatic Service which is disputed by the petitioner has not
been amended.
3. The Seimas amended and supplemented Paragraph 2 of
Article 4 of the Law on State Social Insurance by the 18 May
1999 Republic of Lithuania Law on the Amendment and Supplement
of Articles 2, 3, 4, 7, 26, 28, 30, 31, 32, 34, 35, 36, 38, 39,
40, 41, and 42 of the Law on State Social Insurance, by
establishing inter alia in Item 1 of the aforesaid paragraph
that, under the procedure established by this law, the persons
who work under diplomatic service or fixed-term diplomatic
service contracts as well as spouses of diplomats shall be
insured in an obligatory manner.
On 16 March 2000, the Seimas adopted the Republic of
Lithuania Law on the Amendment and Supplement of Articles 4, 7,
17, 26, 34, 35, and 44 of the Law on State Social Insurance
whereby Article 4 of the Law on State Social Insurance was set
forth in a new wording and Paragraph 1 thereof was inter alia
supplemented with Item 9 providing that state social insurance
shall be obligatory for "unoccupied spouses of diplomats to
cover the period which they spend abroad owing to the fact that
they reside together with the diplomat who is serving at a
diplomatic mission or consular institution of the Republic of
Lithuania".
4. The Seimas, by the Republic of Lithuania the Law on the
Amendment and Supplement of Articles 2, 5, 6, 8, 10, 13, 14,
45, and 52 of the Law on State Social Insurance Pensions and on
the Recognition of Articles 1 and 4 of the Law on the Amendment
and Supplement of Articles 2, 7, 12, 14, 17, 24, 26, 27, 28,
39, 40, 42, 43, 45, 49, and 51 of the Law on State Social
Insurance Pensions as Null and Void, which was adopted on 16
December 1999, set forth Article 2 of the Law on State Social
Insurance Pensions in a new wording and, along with the other
supplements, it established in Item 5 of Paragraph 1 of the
latter article that state social insurance shall be obligatory
for "unoccupied spouses of diplomats to cover the period which
they spend abroad owing to the fact that they reside together
with the diplomat who is serving at a diplomatic mission or
consular institution of the Republic of Lithuania".
On 20 November 2001, the Seimas adopted the Republic of
Lithuania Law on the Amendment and Supplement of Articles 2, 6,
8, 9, 13, 14, 15, 21, and 54 of the Law on Sate Social
Insurance Pensions, upon the amendment of Paragraph 1 of
Article 2 whereof the numbering of the items of the same
paragraph was changed, and Item 5 disputed by the petitioner
became Item 6.
5. The petitioner, while requesting to investigate whether
Paragraph 2 of Article 69 of the Law on the Diplomatic Service,
Item 9 of Paragraph 1 of Article 4 (wording of 16 March 2000)
of the Law on State Social Insurance and Item 5 of Paragraph 1
of Article 2 (wording of 16 December 1999) of the Law on State
Social Insurance Pensions are in compliance with the
Constitution, points out that the disputed legal regulation
implies that if an unoccupied spouse of the diplomat is insured
in an obligatory manner by state social pensions insurance, and
if the income from which the insurance contributions are
calculated exceed 1.5 minimal monthly salary, on the basis of
Article 23 of the Law on State Social Insurance Pensions, the
spouse of the diplomat, an old age pensioner, is not paid the
complementary part of the old age pension. In the opinion of
the petitioner, according to such legal regulation, the spouse
of the diplomat, an old age pensioner, does not have an
opportunity to refuse the insured income and receive the full
old age pension, since he is insured by obligatory state social
pensions insurance, while calculating the amount of the
contributions from 0.5 official salary of the diplomat.
It needs to be noted that doubts arose for the Higher
Administrative Court, the petitioner, regarding the compliance
of the articles (paragraphs thereof) of the laws indicated by
it with the Constitution in the course of the investigation of
an administrative case in which it was being decided whether
the payment of part of the old age pension had been reasonably
terminated for a person who had been awarded the old age
pension and had been paid the basic as well as the
complementary part of the old age pension.
6. In the context of the case at issue, one has to
emphasise that the disputed provisions of Paragraph 2 of
Article 69 of the Law on the Diplomatic Service, Item 9 of
Paragraph 1 of Article 4 (wording of 16 March 2000) of the Law
on State Social Insurance and Item 5 of Paragraph 1 of Article
2 (wording of 16 December 1999) of the Law on State Social
Insurance Pensions and the provisions of Article 23 of the Law
on State Social Insurance Pensions concerning the payment of
pensions to the pensioners (including unoccupied spouses of
diplomats, who are old age pensioners) who have the insured
income are inseparable: the provisions of Article 23 of the Law
on State Social Insurance Pensions are applied to unoccupied
spouses of diplomats, old age pensioners, under which they are
paid not full awarded state social insurance old age pension,
as they are insured in an obligatory manner by state social
pensions insurance under Paragraph 2 of Article 69 of the Law
on the Diplomatic Service, Item 9 of Paragraph 1 of Article 4
(wording of 16 March 2000) of the Law on State Social Insurance
and Item 5 of Paragraph 1 of Article 2 (wording of 16 December
1999) of the Law on State Social Insurance Pensions. It also
needs to be noted that Paragraph 1 of Article 69 (wording of 16
March 2000) of the Law on the Diplomatic Service provides that
this Law, as well as the Laws on State Social Insurance, Health
Insurance and State Social Insurance Pensions and other
legislative acts shall establish social and health insurance of
a diplomat as well as state social pension insurance of his
spouse. Therefore, it is impossible to investigate the
provisions of Paragraph 2 of Article 69 of the Law on the
Diplomatic Service, Item 9 of Paragraph 1 of Article 4 (wording
of 16 March 2000) of the Law on State Social Insurance and Item
5 of Paragraph 1 of Article 2 (wording of 16 December 1999) of
the Law on State Social Insurance Pensions pointed out by the
petitioner and consider the compliance whereof with the
Constitution without prior examination of the legal regulation
established by Article 23 of the Law on State Social Insurance
Pensions and prior investigation of the compliance of the
respective provisions of the same article with the
Constitution.
7. It needs to be noted that Article 23 of the Law on
State Social Insurance Pensions regulating the payment of old
age pensions to pensioners who have the insured income has been
altered for more than once.
7.1. Upon the adoption of the Law on State Social
Insurance Pensions on 18 July 1994, Paragraph 2 of Article 23
thereof provided: "The pensioners who have the insured income
and who are under 65 years of age shall be paid only the basic
part of state social insurance old age pension which is
established by this Law, if they have the obligatory state
social pensions insurance period. If the pension is increased
due to the Deferred Application (Article 24), then only the
increased basic part of the pension shall be paid
respectively."
In the context of the case at issue, it needs to be noted
that under the then legal regulation, the pensioners who were
under 65 years of age and who had the obligatory state social
pensions insurance period and the insured income, were paid
only the basic part of old age pension but not the full state
social insurance old age pension, regardless of the amount of
the said income.
7.2. By the 21 December 1994 Republic of Lithuania Law "On
the Amendment and Supplement of the Republic of Lithuania Law
on State Social Insurance Pensions" Paragraph 2 of Article 23
of the Law on State Social Insurance Pensions was amended and
set forth as follows: "Pensioners who are under 65 years of age
and have the obligatory state social pensions insurance period
and the insured income which does not exceed 1.5 minimal
monthly salary shall be paid full state social insurance old
age pension. If their insured income exceeds 1.5 minimal
monthly salary, they shall be paid only the basic part of the
state social insurance old age pension."
Thus, under the legal regulation established by this
amendment of the Law on State Social Insurance Pensions, the
amount of the pension paid to the pensioners who were under 65
years of age and had the obligatory state social pensions
insurance period and who had the insured income, became
dependent on the amount of their insured income: if the insured
income did not exceed 1.5 minimal monthly salary, the said
pensioners were paid full state social insurance old age
pension; if the insured income exceeded 1.5 minimal monthly
salary, only the basic part of the old age pension was paid.
It needs to be noted that at the time of the adoption of
the Law on the Diplomatic Service, the wording of 21 December
1994 of Article 23 of the Law on State Social Insurance
Pensions was in force.
7.3. On 21 December 2000, the Seimas adopted the Law on
the Amendment of Articles 23 and 32 of the Law on State Social
Insurance Pensions, whereby Article 23 of the Law on State
Social Insurance Pensions was set forth in the following
wording:
"The pensioners who, after they have been awarded the
state social insurance old age pension, have income from which
obligatory contributions of state social pensions insurance are
calculated and paid, or who receive state social insurance
allowances of sickness (including those paid by the employer
during the days of sickness), of maternity, of maternity
(paternity) or of unemployment (hereinafter in this Article
referred to as the insured income), if they have the obligatory
state social pensions insurance period (Articles 19, 22 and
Paragraph 1 of Article 46), shall be paid the basic part of
state social insurance old age pension (Paragraph 1 of Article
20). Besides, they, if their insured income is less than 1.5
minimal monthly salary, shall be paid the part (comprised of
the sum of the amounts presented below) of the complementary
part (hereinafter in this Article referred to as the
complementary part) of the awarded old age pension:
1) 50 percent of the complementary part not exceeding LTL
100;
2) 20 percent of the complementary part which is from LTL
100.01 till LTL 200;
3) 10 percent of the complementary part which is from LTL
200.01 till LTL 300.
The part of the complementary part of the old age pension
which exceeds LTL 300 shall not be paid.
The pensioners who have the insured income who do not have
the state social pensions insurance period which is obligatory
for the old age pension, shall not be paid the state social
insurance old age pension.
The service time pensions awarded under the procedure
prior to the entry into effect of this Law (Paragraph 4 of
Article 45), shall be paid to the receivers of the said
pensions who have the insured income under the procedure of the
first and second paragraph of this Article."
Thus, these amendments of the law established such a legal
regulation under which the amount of the pension paid to
pensioners, already without taking account of their age, who
have the obligatory state social pensions insurance period and
have the insured income, depends on the amount of their insured
income, however, the awarded full state social insurance old
age pension is not paid to the pensioners who have the insured
income: if the insured income exceeds 1.5 minimal monthly
salary, only the basic part of old age pension is paid, while
if the insured income is less than 1.5 minimal monthly salary,
the part (of the amount established by the law) of the
complementary part of the pension is paid in addition to the
basic part of the pension.
7.4. On 8 May 2001, the Seimas adopted the Republic of
Lithuania Law on the Amendment of Articles 23 and 32 of the Law
on State Social Insurance Pensions whereby Article 23 of the
Law on State Social Insurance Pensions was set forth as
follows:
"The pensioners who, after they have been awarded the
state social insurance old age pension, have income from which
obligatory contributions of state social pensions insurance are
calculated and paid, or who receive state social insurance
allowances of sickness (including those paid by the employer
during the days of sickness), of maternity, of maternity
(paternity) or of unemployment (hereinafter in this Article
referred to as the insured income), if they have the obligatory
state social pensions insurance period (Articles 19, 22 and
Paragraph 1 of Article 46), shall be paid full awarded state
social insurance old age pension when their insured income does
not exceed 1 minimal monthly salary. If the insured income of
the said persons exceeds 1 minimal monthly salary but does not
exceed 1.5 minimal monthly salary, they shall be paid the basic
part of state social insurance old age pension (Paragraph 1 of
Article 20) and the part (comprised of the sum of the amounts
presented below) of the complementary part (hereinafter in this
Article referred to as the complementary part) of the awarded
old age pension:
1) 50 percent of the complementary part not exceeding LTL
100;
2) 20 percent of the complementary part which is from LTL
100.01 till LTL 200;
3) 10 percent of the complementary part which is from LTL
200.01 till LTL 300.
The part of the complementary part which exceeds LTL 300
shall not be paid.
If the insured income of the persons specified in the
first paragraph of this Article exceeds 1.5 minimal monthly
salary, they shall be paid the basic part of state social
insurance old age pension.
The pensioners who have the insured income and who do not
have the state social pensions insurance period, which is
obligatory for the old age pension, shall not be paid the state
social insurance old age pension.
The service time pensions awarded under the procedure
prior to the entry into effect of this Law (Paragraph 4 of
Article 45), shall be paid to the receivers of the said
pensions who have the insured income under the procedure of the
first and second paragraph of this Article."
In the context of the case at issue, it needs to be noted
that these amendments of the law established the legal
regulation whereby the amount of the pension paid to
pensioners, without taking account of their age, who have the
obligatory state social pensions insurance period and have the
insured income, depends on the amount of their insured income:
(1) the full awarded state social insurance old age pension is
paid when the insured income does not exceed 1 minimal monthly
salary; (2) if the insured income exceeds 1 minimal monthly
salary but does not exceed 1.5 minimal monthly salary, the part
of the amount, established in the law, of the complementary
part of the pension is paid in addition to the basic part of
the pension; (3) if the insured income exceeds 1.5 minimal
monthly salary, only the basic part of old age pension is paid.
7.5. In the context of the case at issue, while summing up
the provisions of Article 23 (wordings of 21 December 1994, 21
December 2000, and 8 May 2001) of the Law on Sate Social
Insurance Pensions, it needs to be noted that the restrictions
were established therein which do not permit that the
pensioners, who have the obligatory state social pensions
insurance period and have the insured income, thus, including
the pensioners who were awarded the old age pension and who
were paid the basic and complementary parts of old age pension,
receive full awarded state social insurance old age pension.
8. In the context of the case at issue, it needs to be
noted that the notion of the insured income is defined in
Article 13 of the Law on State Social Insurance Pensions.
Article 13 (wording of 16 December 1999) of the Law on State
Social Insurance Pensions inter alia provided that the full
income from which contributions of state social pensions
insurance were paid by unoccupied spouses of diplomats to cover
the period which they reside abroad together with the diplomat
serving at a diplomatic mission or consular institution of the
Republic of Lithuania, shall be considered their insured
income.
On 20 November 2001, the Seimas adopted the Law on the
Amendment and Supplement of Articles 2, 6, 8, 9, 13, 14, 15,
21, and 54 of the Law on Sate Social Insurance Pensions whereby
Article 13 was inter alia supplemented with the provision that
the insured income for the insurance period of the state social
pensions insurance of unoccupied spouses of diplomats to cover
the period which they reside abroad together with the diplomat
serving at a diplomatic mission or consular institution of the
Republic of Lithuania, shall be considered the sums from which
contributions of state social pensions insurance were either
paid or had to be paid for them into the State Social Insurance
Fund Budget.
9. In the case at issue, the Constitutional Court will
investigate the compliance of the provisions of Paragraph 2 of
Article 69 of the Law on the Diplomatic Service, Item 9 of
Paragraph 1 of Article 4 (wording of 16 March 2000) of the Law
on State Social Insurance, Item 5 of Paragraph 1 of Article 2
(wording of 16 December 1999) and Article 23 (wordings of 21
December 1994, 21 December 2000, and 8 May 2001) of the Law on
State Social Insurance Pensions concerning the restrictions
which do not permit that the pensioners, who have the
obligatory state social pensions insurance period and have the
insured income and who were awarded and paid the basic and
complementary parts of old age pension, not receive full
awarded state social insurance pension, with the Constitution.
II
1. Article 52 of the Constitution provides: "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."
1.1. Under the Constitution, every citizen has the right
to social security. Social security is entrenched in the
Constitution in various aspects. The pensions and social
assistance indicated in Article 52 thereof are one of the forms
of social security.
1.2. The formula "the State shall guarantee" employed in
Article 52 of the Constitution means that the (old age and
disability) pensions and types of social assistance (in the
event of unemployment, sickness, widowhood, loss of
breadwinner) enumerated in the same article have to be provided
for by law, and also that other pensions and types of social
assistance (not indicated in Article 52 of the Constitution)
may be provided for by law as well.
The provisions of Article 52 of the Constitution, while
guaranteeing the right to social assistance to citizens,
obligate the state to establish sufficient measures of the
implementation and legal protection of this right. Thus, not
only must the types of pensions and social assistance indicated
in this article of the Constitution be established by law but
also proper implementation and legal protection of the human
right to receive pension and social assistance must be ensured.
The provisions of Article 52 of the Constitution presuppose a
duty of the legislator to establish the legal regulation which
would ensure the accumulation of funds necessary for pensions
and social assistance and which would ensure the payment of
these pensions and rendering of social assistance.
1.3. The old age pension is one of the types of pensions
that are pointed out expressis verbis in Article 52 of the
Constitution. In the context of the case at issue, it needs to
be noted that, under Article 52 of the Constitution, the law
must establish the age upon reaching which the person has the
right to receive an old age pension, also the grounds,
conditions and amounts of the awarding and payment of this
pension. The legislator, while establishing this by law, must
pay heed to the norms and principles of the Constitution.
1.4. One must also pay attention to the fact that the
collecting of the funds necessary to pay old age pensions and
the awarding of these pensions are, as a rule, based on social
insurance. The payment of social insurance contributions
presupposes the right of the person to receive an old age
pension of corresponding amount, and this amount may not not
depend on the paid contributions of social insurance. It needs
to be noted that Article 9 of the International Covenant on
Economic, Social, and Cultural Rights provides: "The States
Parties to the present Covenant recognize the right of everyone
to social security including social insurance."
1.5. Under the Constitution, the state, as the
organisation of the entire society, has an obligation to take
care of its members in the event of old age, disablement,
unemployment, sickness, widowhood, loss of breadwinner, and
other cases provided for by the Constitution and laws.
In its ruling of 12 March 1997, the Constitutional Court
held that measures of social protection express the idea of
public solidarity and that they help a person to protect
himself from possible social hazards.
In a civil society the principle of solidarity does not
deny personal responsibility for one's destiny, therefore the
legal regulation of social assistance must be such so as to
create preconditions and incentives for every member of society
to take care of one's own welfare by oneself, but not to rely
solely on the social assistance guaranteed by the state.
1.6. In the context of the case at issue, it needs to be
noted that it is impossible to construe the solidarity
principle as establishing the discretion of the legislator to
regulate the awarding and payment of old age pensions so that
the amounts of old age pensions, when the system of old age
pensions is based on social insurance, while creating the
material preconditions of payment of such pensions, will not or
will insignificantly depend on the amounts of contributions
that have been paid. The amounts of social insurance
contributions are the basis for the differentiation of the
amounts of old age pensions.
2. The Constitution shall be an integral and directly
applicable act (Paragraph 1 of Article 6 of the Constitution),
the principles and norms of the Constitution constitute a
harmonious system. It is not permitted to construe a provision
of the Constitution in the manner so that the content of
another constitutional provision would be denied or distorted,
since this way the essence of the entire constitutional
regulation would be distorted and the balance of constitutional
values would be disturbed.
The provision of Article 52 of the Constitution that the
state shall guarantee the right to receive an old age pension
is to be construed while taking account of the other provisions
of the Constitution, while in the context of the case at issue,
of the constitutional principle of a law-governed state, of the
right of the human being to freely choose a job and business,
and of the provisions of Article 23 of the Constitution on the
inviolability of property and the protection of the rights of
ownership.
2.1. The constitutional principle of a law-governed state
is a universal principle upon which the entire Lithuanian legal
system as well as the Constitution itself are based. The
content of the principle of a law-governed state is revealed in
various provisions of the Constitution and is to be construed
inseparably from the striving for an open, just, and harmonious
civil society, which is proclaimed in the Preamble to the
Constitution. Along with the other requirements, the principle
of a law-governed state, which is entrenched in the
Constitution, also implies that one must ensure human rights
and freedoms, that all institutions implementing state
authority and other state institutions must act on the basis of
law and in compliance with law, that the Constitution has the
supreme legal power and that all legal acts must be in
conformity with the Constitution. Inseparable elements of the
principle of a law-governed state are protection of legitimate
expectations, legal certainty and legal security. In case
protection of legitimate expectations, legal certainty and
legal security were not ensured, the confidence of the person
in the state and law would not be ensured.
In its ruling of 12 July 2001, the Constitutional Court
held that one of essential elements of the principle of a
law-governed state established in the Constitution is the
principle of legal security, which means the duty of the state
to ensure the certainty and stability of legal regulation, to
protect the rights of entities of legal relations, including
the acquired rights, and to respect legitimate interests and
legitimate expectations.
In its ruling of 23 April 2002, the Constitutional Court
held that 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.
In the context of the case at issue, it needs to be noted
that, while following the constitutional principle of a
law-governed state, if the person had been awarded and paid an
old age pension, then the said pension must be continued to be
paid, i.e. it is not permitted to stop its payment or to reduce
the amount of the pension paid.
It has been mentioned that the formula "the State shall
guarantee" employed in Article 52 of the Constitution
presupposes a duty of the legislator to establish the legal
regulation which would ensure the accumulation of the funds
necessary to pay the pensions and the payment of pensions.
However, there may occur such an extreme situation in the state
(economic crisis, natural disaster etc.) when it is impossible
to accumulate enough funds for the payment of the pensions. In
such extraordinary cases the legal regulation of pensionary
relations may be corrected also by reducing old age pensions to
the extent that it is necessary to ensure vitally important
interests of society and protect other constitutional values.
The diminished old age pensions may be paid only on a temporary
basis, i.e. only when there is an extraordinary situation in
the sate. It needs to be noted that even in such extraordinary
cases it is not permitted that old age pensions be reduced in
violation of the balance between the interests of the person
and society, which is entrenched in the Constitution; the
reduction of old age pensions must be in line with the
constitutional principle of proportionality.
2.2. In Paragraph 1 of Article 48 of the Constitution it
is inter alia established that every person may freely choose
an occupation or business. This freedom is one of the
conditions for satisfying necessary vital needs of a human
being and ensuring his position in the society. The
Constitutional freedom of every human being to choose an
occupation or business presupposes the duty of the legislator
to create legal preconditions to implement this freedom. While
creating the said preconditions, the legislator has the powers
to establish, while taking account of the nature of business,
the conditions of the implementation of the right to freely
choose an occupation or business. While doing this, he must pay
heed to the Constitution.
In its ruling of 30 June 2000, the Constitutional Court
held that, under the Constitution, no legal regulation may be
established under which a person, while implementing one his
constitutional right, would lose an opportunity to implement
another constitutional right.
In the context of the case at issue, it needs to be noted,
that under the Constitution it is not permitted to establish
the legal regulation under which an opportunity for the person
who has been awarded and paid old age pension, would be
restricted, due to this, to freely choose an occupation and
business, although he meets the conditions provided for by law
so that he would have a certain occupation or conduct certain
business. The legal regulation under which the person cannot
freely choose an occupation and business due to the fact that
upon the implementation of this right he would not be paid the
awarded old age pension or part thereof which was paid until
then, also must be considered as a restriction of an
opportunity to freely choose an occupation or business.
2.3. Article 23 of the Constitution provides:
"Property shall be inviolable.
The rights of ownership shall be protected by law.
Property may only be seized for the needs of society
according to the procedure established by law and must be
adequately compensated for."
The inviolability of property and the protection of the
rights of ownership mean inter alia that the owner as the
possessor of the rights to property has the right to demand
that other persons do not violate his rights, also, it means
that the state has a duty to ensure the protection and
safeguarding the rights of ownership.
In the context of the case at issue it needs to be noted
that in the case that the collection of funds necessary to pay
pensions and the payment of the pensions themselves are based
on social insurance (on social insurance contributions), the
human being, to a certain extent, takes part in the creation of
the material preconditions of payment of these pensions. While
establishing the amounts of old age pensions by law, one is to
take into consideration the fact as to the amount of
contributions that had been paid when the material
preconditions for the payment of these pensions are created.
The person who meets the conditions established by law in
order to receive the old age pension, and who has been awarded
and paid this pension, has the right to a monetary payment of a
respective amount, i.e. the right to possession. Under Article
23 of the Constitution, this right must be protected and
safeguarded.
It needs to be noted that the old age pension is linked
with possession in the jurisprudence of the European Court of
Human Rights as well (European Court of Human Rights, Judgment
in the case Wessels-Bergervoet v. Netherlands of 4 June 2002).
III
On the compliance of Article 23 (wordings of 21 December
1994, 21 December 2000, and 8 May 2001) of the Law on State
Social Insurance Pensions with Articles 23, 48 and 52 of the
Constitution and the constitutional principle of a law-governed
state.
1. It has been mentioned that Paragraph 2 of Article 69 of
the Law on the Diplomatic Service, Item 9 of Paragraph 1 of
Article 4 (wording of 16 March 2000) of the Law on State Social
Insurance and Item 5 of Paragraph 1 of Article 2 (wording of 16
December 1999) of the Law on State Social Insurance Pensions
are inseparable from the legal regulation established in
Article 23 (wordings of 21 December 1994, 21 December 2000, and
8 May 2001) of the Law on State Social Insurance Pensions.
2. In Article 23 (wordings of 21 December 1994, 21
December 2000, and 8 May 2001) of the Law on State Social
Insurance Pensions the payment of state social insurance old
age pensions for pensioners who have the insured income, is
established.
3. It was provided in Paragraph 2 (wording of 21 December
1994) of Article 23 of the Law on State Social Insurance
Pensions: "Pensioners who are under 65 years of age and have
the obligatory state social pensions insurance period and the
insured income which does not exceed 1.5 minimal monthly salary
shall be paid full state social insurance old age pension. If
their insured income exceeds 1.5 minimal monthly salary, they
shall be paid only the basic part of the state social insurance
old age pension."
Thus, by this legal regulation restrictions were
established on awarding and paying the state social insurance
old age pension for pensioners who were under 65 years of age
and had the obligatory state social pensions insurance period
and the insured income which exceeded 1.5 minimal monthly
salary. Under the said legal regulation, such pensioners are
paid not the full old age pension that has been awarded to
them, but only the basic part of the old age pension.
4. It has been held in this Ruling of the Constitutional
Court that the provisions of Article 52 of the Constitution
guaranteeing the right to social assistance to citizens,
obligate the state to establish sufficient measures of the
implementation and legal protection of this right. The law must
establish the age upon reaching which the person has the right
to receive the old age pension, as well as to provide for the
grounds, conditions and amounts of the awarding and payment of
this pension. While establishing this, the legislator must pay
heed to the norms and principles of the Constitution.
It has also been held in this Ruling of the Constitutional
Court that the person who meets the conditions established by
law in order to receive the old age pension, and who has been
awarded and paid this pension, has the right to a monetary
payment of a respective amount, i.e. the right to possession.
Under Article 23 of the Constitution, this right must be
protected and safeguarded.
It has been mentioned that if the person had been awarded
and paid the old age pension, then the said pension must be
continued to be paid, i.e. it is not permitted to stop its
payment or to reduce the amount of the pension paid.
Paragraph 2 (wording of 21 December 1994) of Article 23 of
the Law on State Social Insurance Pensions inter alia provided
that pensioners who were under 65 years of age and had the
obligatory state social pensions insurance period and the
insured income which exceeded 1.5 minimal monthly salary shall
be paid only the basic part of the state social insurance old
age pension.
Thus, by the legal regulation established in Paragraph 2
(wording of 21 December 1994) of Article 23 of the Law on State
Social Insurance Pensions, the right of pensioners who were
under 65 years of age and had the obligatory state social
pensions insurance period and the insured income which exceeded
1.5 minimal monthly salary, who were awarded and paid the old
age pension (both the basic and complementary parts), to
receive the full old age pension which had been awarded and
paid until then. The said provision of the law violates the
right of such persons to a monetary payment of corresponding
amount, i.e. the right to possession.
5. Taking account of the arguments set forth, one is draw
a conclusion that Paragraph 2 (wording of 21 December 1994) of
Article 23 of the Law on State Social Insurance Pensions to the
extent that it provided that pensioners who were under 65 years
of age and had the obligatory state social pensions insurance
period and whose insured income exceeded 1.5 minimal monthly
salary shall be paid not the full state social insurance old
age pension which had been awarded and paid until then
conflicted with Articles 23 and 52 of the Constitution.
6. It has been held in this Ruling of the Constitutional
Court that under the Constitution it is not permitted to
establish the legal regulation under which for the person that
has been awarded and paid the old age pension, an opportunity
would be restricted due to this to freely choose an occupation
and business, although he meets the conditions provided for by
law so that he would have a certain occupation or conduct
certain business.
It has been mentioned that under Paragraph 2 (wording of
21 December 1994) of Article 23 of the Law on State Social
Insurance Pensions, pensioners who are under 65 years of age
and have the obligatory state social pensions insurance period
and have the insured income are paid not the full old age
pension but only the basic part of the old age pension, in case
their insured income exceeds 1.5 minimal monthly salary.
In this context it needs to be noted that, under Article
13 (wording of 16 December 1999) of the Law on State Social
Insurance Pensions, it is inter alia held that the insured
income of persons shall be considered their entire income from
which contributions of state social pensions insurance are
paid.
The insured income also includes the income that the
persons receive as remuneration for work, as well as income
from business.
Thus, by the legal regulation established in Paragraph 2
(wording of 21 December 1994) of Article 23 of the Law on State
Social Insurance Pensions, a legal situation has been created
when the person has to choose whether to have a bigger insured
income and receive only the basic part of the old age pension,
or to receive the full awarded old age pension and to have the
insured income of the amount of no more than 1.5 minimal
monthly salary. In such a case an opportunity to freely choose
business, due to this, is restricted for the person who was
awarded and paid the old age pension, even though he meets the
conditions established in the law so that he would have a
certain occupation or conduct certain business.
7. Taking account of the arguments set forth, one is to
draw a conclusion that Paragraph 2 (wording of 21 December
1994) of Article 23 of the Law on State Social Insurance
Pensions to the extent that pensioners who were under 65 years
of age and had the obligatory state social pensions insurance
period and had the insured income were paid not the full old
age pension which had been awarded and paid until then, in case
their insured income exceeded 1.5 minimal monthly salary,
conflicted with the provision of Paragraph 1 of Article 48 of
the Constitution that every person may freely choose an
occupation or business.
8. It has been mentioned that, while following the
constitutional principle of a law-governed state, if the person
had been awarded and paid an old age pension, then the said
pension must be continued to be paid, i.e. it is not permitted
to stop its payment or to reduce the amount of the pension
paid.
Under Paragraph 2 (wording of 21 December 1994) of Article
23 of the Law on State Social Insurance Pensions, pensioners
who are under 65 years of age and have the obligatory state
social pensions insurance period, if their insured income
exceeds 1.5 minimal monthly salary, shall be paid not the full
old age pension but only the basic part of the old age pension.
When the relations of old age pensions are regulated by
such legal provisions, one disregards the principles of the
protection of legitimate expectations, of legal certainty and
legal security. Thus the constitutional principle of a
law-governed state is violated.
9. Taking account of the arguments set forth, one is to
conclude that Paragraph 2 (wording of 21 December 1994) of
Article 23 of the Law on State Social Insurance Pensions to the
extent that it provided that pensioners who were under 65 years
of age and had the obligatory state social pensions insurance
period and whose insured income exceeded 1.5 minimal monthly
salary shall be paid not the full state social insurance old
age pension which had been awarded and paid until then
conflicted with the constitutional principle of a law-governed
state.
10. Article 23 (wording of 21 December 2000) of the Law on
State Social Insurance Pensions provided:
"The pensioners who, after they have been awarded the
state social insurance old age pension, have income from which
obligatory contributions of state social pensions insurance are
calculated and paid, or who receive state social insurance
allowances of sickness (including those paid by the employer
during the days of sickness), of maternity, of maternity
(paternity) or of unemployment (hereinafter in this Article
referred to as the insured income), if they have the obligatory
state social pensions insurance period (Articles 19, 22 and
Paragraph 1 of Article 46), shall be paid the basic part of
state social insurance old age pension (Paragraph 1 of Article
20). Besides, they, if their insured income is less than 1.5
minimal monthly salary, shall be paid the part (comprised of
the sum of the amounts presented below) of the complementary
part (hereinafter in this Article referred to as the
complementary part) of the awarded old age pension:
1) 50 percent of the complementary part not exceeding LTL
100;
2) 20 percent of the complementary part which is from LTL
100.01 till LTL 200;
3) 10 percent of the complementary part which is from LTL
200.01 till LTL 300.
The part of the complementary part of the old age pension
which exceeds LTL 300 shall not be paid.
The pensioners who have the insured income and who do not
have the state social pensions insurance period, which is
obligatory for the old age pension, shall not be paid the state
social insurance old age pension.
The service time pensions awarded under the procedure
prior to the entry into effect of this Law (Paragraph 4 of
Article 45), shall be paid to the receivers of the said
pensions who have the insured income under the procedure of the
first and second paragraph of this Article."
Article 23 (wording of 21 December 2000) of the Law on
State Social Insurance Pensions established inter alia the
legal regulation under which the amount of the paid pension for
pensioners, without taking into consideration their age, who
have the obligatory state social pensions insurance period and
who had the insured income, depends on the amount of their
insured income, however, the full awarded state social
insurance pension is not paid to the pensioners who have the
insured income: if the insured income exceeds 1.5 minimal
monthly salary, only the basic part of the old age pension is
paid, while if the insured income is less than 1.5 minimal
monthly salary, the part of the amount, established in the law,
of the complementary part of the pension is paid in addition to
the basic part of the pension.
11. In the context of the case at issue, one has to note
that, if one compares the provisions of Article 23 (wording of
21 December 2000) of the Law on State Social Insurance Pensions
with the provisions of Paragraph 2 (wording of 21 December
1994) of Article 23 of the Law on State Social Insurance
Pensions, it becomes clear that the restrictions not permitting
that the persons, who have the obligatory state social pensions
insurance period and who have the insured income receive, the
full awarded old age pension are also established in Article 23
(wording of 21 December 2000) of the Law on State Social
Insurance Pensions.
In addition, Article 23 (wording of 21 December 2000) of
the Law on State Social Insurance Pensions even more broadens
the circle of the pensioners, who have the obligatory state
social pensions insurance period and who have the insured
income, and who are paid not the full awarded old age pension:
the payment of the full old age pension is restricted to all
pensioners who have the obligatory state social pensions
insurance period and who have the insured income, regardless of
their age. Article 23 (wording of 21 December 2000) of the Law
on State Social Insurance Pensions also treats the notion of
insured income more broadly. The insured income includes the
income from which obligatory contributions of state social
pensions insurance are calculated and paid, as well as
allowances of sickness (including those paid by the employer
during the days of sickness), of maternity, of maternity
(paternity) or of unemployment.
12. It has already been held in this Ruling of the
Constitutional Court that Paragraph 2 (wording of 21 December
1994) of Article 23 of the Law on State Social Insurance
Pensions to the extent that it provided that pensioners who
were under 65 years of age and had the obligatory state social
pensions insurance period and whose insured income exceeded 1.5
minimal monthly salary shall be paid not the full state social
insurance old age pension which had been awarded and paid until
then conflicted with Article 23 of the Constitution, the
provision of Paragraph 1 of Article 48 thereof that every
person may freely choose an occupation or business, and the
constitutional principle of a law-governed state.
Taking account of the same arguments, one is to draw a
conclusion that Article 23 (wording of 21 December 2000) of the
Law on State Social Insurance Pensions to the extent that it
provided that pensioners who had the obligatory state social
pensions insurance period which was necessary for the old age
pension and who had the insured income after they had been
awarded the old age pension shall be paid not the full state
social insurance old age pension which had been awarded and
paid until then conflicted with Article 23 of the Constitution,
the provision of Paragraph 1 of Article 48 thereof that every
person may freely choose an occupation or business, and the
constitutional principle of a law-governed state.
13. It needs to be noted that the Law on the Amendment of
Articles 23 and 32 of the Law on State Social Insurance
Pensions, whereby Article 23 of the Law on State Social
Insurance Pensions was set forth in a new wording, was adopted
on 21 December 2000, it was published in the official gazette
Valstybės žinios on 29 December 2000, while it came into force
on 1 January 2001. Thus, a legal situation was created in which
an unreasonably short time period was established for old age
pensioners to decide as to which option established in the law
to choose: whether to have the insured income and receive not
the full awarded old age pension, or to receive the full
awarded old age pension, and not to have any insured income.
Such a legislative practice is unacceptable in a democratic
law-governed state.
14. Article 23 (wording of 8 May 2001) of the Law on State
Social Insurance Pensions provides:
"The pensioners who, after they have been awarded the
state social insurance old age pension, have income from which
obligatory contributions of state social pensions insurance are
calculated and paid, or who receive state social insurance
allowances of sickness (including those paid by the employer
during the days of sickness), of maternity, of maternity
(paternity) or of unemployment (hereinafter in this Article
referred to as the insured income), if they have the obligatory
state social pensions insurance period (Articles 19, 22 and
Paragraph 1 of Article 46), shall be paid full awarded state
social insurance old age pension when their insured income does
not exceed 1 minimal monthly salary. If the insured income of
the said persons exceeds 1 minimal monthly salary but does not
exceed 1.5 minimal monthly salary, they shall be paid the basic
part of state social insurance old age pension (Paragraph 1 of
Article 20) and the part (comprised of the sum of the amounts
presented below) of the complementary part (hereinafter in this
Article referred to as the complementary part) of the awarded
old age pension:
1) 50 percent of the complementary part not exceeding LTL
100;
2) 20 percent of the complementary part which is from LTL
100.01 till LTL 200;
3) 10 percent of the complementary part which is from LTL
200.01 till LTL 300.
The part of the complementary part which exceeds LTL 300
shall not be paid.
If the insured income of the persons specified in the
first paragraph of this Article exceeds 1.5 minimal monthly
salary, they shall be paid the basic part of state social
insurance old age pension.
The pensioners who have the insured income and who do not
have the state social pensions insurance period, which is
obligatory for the old age pension, shall not be paid the state
social insurance old age pension.
The service time pensions awarded under the procedure
prior to the entry into effect of this Law (Paragraph 4 of
Article 45), shall be paid to the receivers of the said
pensions who have the insured income under the procedure of the
first and second paragraph of this Article."
Thus, Article 23 (wording of 8 May 2001) of the Law on
State Social Insurance Pensions established inter alia the
legal regulation under which the amount of the paid pension for
pensioners, without taking into consideration their age, who
have the obligatory state social pensions insurance period and
who have the insured income, depends on the amount of their
insured income: (1) if the insured income does not exceed 1
minimal monthly salary, the full awarded state social insurance
old age pension is paid; (2) if the insured income exceeds 1
minimal monthly salary but does not exceed 1.5 minimal monthly
salary, the part of the amount, established in the law, of the
complementary part of the pension is paid in addition to the
basic part of the pension; (3) if the insured income exceeds
1.5 minimal monthly salary, only the basic part of the old age
pension is paid.
15. In the context of the case at issue, it needs to be
noted that if one compares the provisions of Article 23
(wording of 8 May 2001) of the Law on State Social Insurance
Pensions with the provisions of Paragraph 2 (wording of 21
December 1994) of Article 23 of the Law on State Social
Insurance Pensions, it becomes clear that the restrictions not
permitting that the persons, who have the obligatory state
social pensions insurance period and who have the insured
income, receive the full awarded old age pension are also
established in Article 23 (wording of 8 May 2001) of the Law on
State Social Insurance Pensions. Under Article 23 (wording of 8
May 2001) of the Law on State Social Insurance Pensions, the
payment of the full awarded old age pension is restricted for
all pensioners, regardless of their age, who have the
obligatory period of state social insurance pensions and who
have the insured income exceeding 1 minimal monthly salary.
16. It has already been held in this Ruling of the
Constitutional Court that Paragraph 2 (wording of 21 December
1994) of Article 23 of the Law on State Social Insurance
Pensions to the extent that it provided that pensioners who
were under 65 years of age and had the obligatory state social
pensions insurance period and whose insured income exceeded 1.5
minimal monthly salary shall be paid not the full state social
insurance old age pension which had been awarded and paid until
then conflicted with Article 23 of the Constitution, the
provision of Paragraph 1 of Article 48 thereof that every
person may freely choose an occupation or business, and the
constitutional principle of a law-governed state.
Taking account of the same arguments, one is to draw a
conclusion that Article 23 (wording of 8 May 2001) of the Law
on State Social Insurance Pensions to the extent that it
provides that pensioners who have the obligatory state social
pensions insurance period which is necessary for the old age
pension and who have the insured income exceeding 1 minimal
monthly salary after they have been awarded the old age pension
shall be paid not the full state social insurance old age
pension which was awarded and paid until then conflicts with
Article 23 of the Constitution, the provision of Paragraph 1 of
Article 48 thereof that every person may freely choose an
occupation or business, and the constitutional principle of a
law-governed state.
IV
On the compliance of Paragraph 2 of Article 69 of the Law
on the Diplomatic Service, Item 9 of Paragraph 1 of Article 4
(wording of 16 March 2000) of the Law on State Social Insurance
and Item 5 of Paragraph 1 of Article 2 (wording of 16 December
1999) of the Law on State Social Insurance Pensions with
Article 52 of the Constitution.
1. Paragraph 2 of Article 69 of the Law on the Diplomatic
Service provides: "The obligatory state social insurance
pensions contributions shall be paid from the State Budget of
the Republic of Lithuania to cover the period which a
diplomat's spouse spent abroad owing to the fact that the
spouse of the diplomat resided together with the diplomat who
was serving at a diplomatic mission or consular institution of
the Republic of Lithuania. The size of the contributions shall
be calculated from 0.5 amount of the diplomat's official
salary. This requirement shall not be applied upon the
diplomat's spouse becoming employed."
Item 9 of Paragraph 1 of Article 4 (wording of 16 March
2000) of the Law on State Social Insurance provides that state
social insurance shall be obligatory for "unoccupied spouses of
diplomats to cover the period which they reside together with
the diplomat who is serving at a diplomatic mission or consular
institution of the Republic of Lithuania".
Item 5 of Paragraph 1 of Article 2 (wording of 16 December
1999) of the Law on State Social Insurance Pensions provided
that state social insurance shall be obligatory for "unoccupied
spouses of diplomats to cover the period which they reside
abroad together with the diplomat who is serving at a
diplomatic mission or consular institution of the Republic of
Lithuania".
Thus Paragraph 2 of Article 69 of the Law on the
Diplomatic Service, Item 9 of Paragraph 1 of Article 4 (wording
of 16 March 2000) of the Law on State Social Insurance and Item
5 of Paragraph 1 of Article 2 (wording of 16 December 1999) of
the Law on State Social Insurance Pensions establish inter alia
the obligatory state social insurance for unoccupied spouses of
diplomats to cover the period which they reside abroad together
with the diplomat who is serving at a diplomatic mission or
consular institution of the Republic of Lithuania.
2. Under Paragraph 2 of Article 28 of the Law on the
Diplomatic Service, the period which the spouse of a diplomat
has spent abroad owing to the fact that he resided together
with the diplomat, who served at a Republic of Lithuania
diplomatic mission or consular institution, shall be counted
into the diplomat spouse's period of state social insurance,
provided the established social insurance of Lithuania
contributions have been paid to cover that period. Thus, the
disputed provisions of the laws guarantee state social
insurance, by state funds, for unoccupied spouses of diplomats
to cover the period which they reside abroad together with the
diplomat, who is serving at a diplomatic mission or consular
institution of the Republic of Lithuania so that the period
spent abroad might be included into the state social insurance
period of the spouse of the diplomat. It is this period on
which depends the right of the spouses of the diplomats to the
state social insurance old age pension.
Thus, in itself the legal regulation established in
Paragraph 2 of Article 69 of the Law on the Diplomatic Service,
Item 9 of Paragraph 1 of Article 4 (wording of 16 March 2000)
of the Law on State Social Insurance and Item 5 of Paragraph 1
of Article 2 (wording of 16 December 1999) of the Law on State
Social Insurance Pensions does not violate or restrict the
right of the person to an old age pension which is entrenched
in Article 52 of the Constitution.
3. Taking account of the arguments set forth, one is to
draw the following conclusions:
1) Paragraph 2 of Article 69 of the Law on the Diplomatic
Service is in compliance with Article 52 of the Constitution;
2) Item 9 of Paragraph 1 of Article 4 (wording of 16 March
2000) of the Law on State Social Insurance is in compliance
with Article 52 of the Constitution;
3) Item 5 of Paragraph 1 of Article 2 (wording of 16
December 1999) of the Law on State Social Insurance Pensions
was in compliance with Article 52 of the Constitution.
Conforming to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Articles 1, 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 Paragraph 2 of Article 69 of the
Republic of Lithuania Law on the Diplomatic Service is in
compliance with the Constitution of the Republic of Lithuania.
2. To recognise that Item 9 of Paragraph 1 of Article 4
(wording of 16 March 2000) of the Republic of Lithuania Law on
State Social Insurance is in compliance with the Constitution
of the Republic of Lithuania.
3. To recognise that Item 5 of Paragraph 1 of Article 2
(wording of 16 December 1999) of the Republic of Lithuania Law
on State Social Insurance Pensions was in compliance with the
Constitution of the Republic of Lithuania.
4. To recognise that Paragraph 2 (wording of 21 December
1994) of Article 23 of the Republic of Lithuania Law on State
Social Insurance Pensions to the extent that it provided that
pensioners who were under 65 years of age and had the
obligatory state social pensions insurance period and whose
insured income exceeded 1.5 minimal monthly salary shall be
paid not the full state social insurance old age pension which
had been awarded and paid until then conflicted with Article
23, the provision of Paragraph 1 of Article 48 that every
person may freely choose an occupation or business, and Article
52 of the Constitution of the Republic of Lithuania, as well as
the constitutional principle of a law-governed state.
5. To recognise that Article 23 (wording of 21 December
2000) of the Republic of Lithuania Law on State Social
Insurance Pensions to the extent that it provided that
pensioners who had the obligatory state social pensions
insurance period which was necessary for the old age pension
and who had the insured income after they had been awarded the
old age pension shall be paid not the full state social
insurance old age pension which had been awarded and paid until
then conflicted with Article 23, the provision of Paragraph 1
of Article 48 that every person may freely choose an occupation
or business, and Article 52 of the Constitution of the Republic
of Lithuania, as well as the constitutional principle of a
law-governed state.
6. To recognise that Article 23 (wording of 8 May 2001) of
the Republic of Lithuania Law on State Social Insurance
Pensions to the extent that it provides that pensioners who
have the obligatory state social pensions insurance period
which is necessary for the old age pension and who have the
insured income exceeding 1 minimal monthly salary after they
have been awarded the old age pension shall be paid not the
full state social insurance old age pension which was awarded
and paid until then conflicts with Article 23, the provision of
Paragraph 1 of Article 48 that every person may freely choose
an occupation or business, and Article 52 of the Constitution
of the Republic of Lithuania, as well as the constitutional
principle of a law-governed state.
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated on behalf of the Republic of
Lithuania.
Justices of the Constitutional Court: Armanas Abramavičius
Egidijus Jarašiūnas
Egidijus Kūris
Kęstutis Lapinskas
Zenonas Namavičius
Augustinas Normantas
Jonas Prapiestis
Vytautas Sinkevičius
Stasys Stačiokas