Lietuviškai
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF
LITHUANIA
DECISION
ON THE PETITION OF THE SUPREME ADMINISTRATIVE
COURT OF LITHUANIA REQUESTING TO INVESTIGATE
WHETHER THE REPUBLIC OF LITHUANIA LAW ON THE
AMENDMENT OF ARTICLE 24 AND THE RECOGNITION OF
ARTICLES 23 AND 32 OF THE LAW ON SOCIAL INSURANCE
PENSIONS AS NO LONGER VALID IS NOT IN CONFLICT
WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA
13 May 2003
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,
pursuant to Item 1 of Paragraph 1 of Article 25, Item 2 of
the same article and Article 28 of the Law on the
Constitutional Court of the Republic of Lithuania, in the
procedural sitting of the Constitutional Court considered the
petition of the Supreme Administrative Court of Lithuania
requesting to investigate whether the 16 January 2003 Republic
of Lithuania Law on the Amendment of Article 24 and the
Recognition of Articles 23 and 32 of the Law on Social
Insurance Pensions as No Longer Valid was not in conflict with
Paragraphs 1 and 3 of Article 5, Article 23 and Paragraph 2 of
Article 30 the Constitution of the Republic of Lithuania as
well as the constitutional principle of a state under the rule
of law.
The Constitutional Court
has established:
I
The Supreme Administrative Court of Lithuania, the
petitioner, was investigating an administrative case. The said
court suspended the investigation of the case and applied to
the Constitutional Court with a petition requesting to
investigate whether the 16 January 2003 Republic of Lithuania
Law on the Amendment of Article 24 and the Recognition of
Articles 23 and 32 of the Law on Social Insurance Pensions as
No Longer Valid (Official Gazette Valstybės žinios, 2003, No.
12-437; hereinafter also referred to as the Law) was not in
conflict with Paragraphs 1 and 3 of Article 5, Article 23 and
Paragraph 2 of Article 30 the Constitution of the Republic of
Lithuania as well as the constitutional principle of a state
under the rule of law.
II
The request is based on these arguments.
1. On 16 January 2003, the Seimas adopted the Law on the
Amendment of Article 24 and the Recognition of Articles 23 and
32 of the Law on Social Insurance Pensions as No Longer Valid.
This law was adopted while taking into consideration the
Constitutional Court ruling of 25 November 2002 in which the
Constitutional Court recognised that Article 23 of the Republic
of Lithuania Law on State Social Insurance Pensions (wordings
of 21 December 1994, 21 December 2000 and 8 May 2001) 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 that was
bigger than established by the law 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
state under the rule of law.
2. Under Paragraph 3 of Article 23 of the Constitution, no
one may seize property in an arbitrary manner: property may
only be seized on the grounds of the law and only for the needs
of society and must be justly compensated for. The right to
receive pension is the right of possession; in regard of the
right to receive corresponding monetary payment in the form of
pension the guarantees provided for in Article 23 of the
Constitution must be applied; protection of private ownership
is a constitutional principle; the state has a duty to defend
and protect property from unlawful encroachment, while it must
do so by means of the law; when the principle of protection of
private ownership is guaranteed, the subjective right of the
owner to exact property from unlawful possession by others
acquires an important protective function.
In the opinion of the petitioner, after he has acquired
the right to receive pension, the person enjoys legitimate
expectation to receive the whole pension that belongs to him.
It was decided not to pay part of pensions by a law, which
later was recognised to be in conflict with the Constitution;
by the said law, the state had made an unlawful encroachment on
possession. Therefore, the state has a duty to take measures so
that the violated rights of ownership might be restored.
According to the petitioner, the decision of the issue of
the restoration of the violated rights of ownership ought to
have been made in the course of the adoption of the disputed
law.
The petitioner believes that the Law "to the extent that
this law does not provide as to how the violated right of
ownership is restored, which was violated by not paying the
full due pension" is in conflict with the Constitution.
3. Article 30 of the Constitution guarantees the right of
the person who thinks that his rights have been violated to
apply to court. The petitioner maintains that administration of
justice becomes problematic if a proper law in order to
administer justice is absent. It is a duty of the Seimas to
establish the means enabling one to protect the rights of
persons.
Since the disputed law does not establish that the part of
old age pension which was not paid on the grounds of the
provisions of the Law on Social Insurance Pensions, which were
recognised to be in conflict with the Constitution, then, in
the opinion of the petitioner, there is a vacuum of legal
regulation, in the presence of which courts have to decide a
question that is within the competence of the Seimas, while
this might be regarded as a violation of the principle of
separation of powers entrenched in Article 5 of the
Constitution. Therefore, the Seimas must establish how the
negative effects must be removed, which have occurred in the
course of the application of the law which was in conflict with
the Constitution.
The petitioner believes that the Law "to the extent that
this law does not does not provide for the procedure of
retrieving of the unpaid pensions" is in conflict with the
Constitution.
The Constitutional Court
holds that:
1. On 16 January 2003, the Seimas adopted the Law on the
Amendment of Article 24 and the Recognition of Articles 23 and
32 of the Law on Social Insurance Pensions as No Longer Valid
wherein it is established:
"Article 1. Recognition of Article 23 as No Longer Valid
Article 23 shall be recognised as no longer valid.
Article 2. Amendment of Paragraph 3 of Article 24
The second sentence shall be deleted from Paragraph 3 of
Article 24 and shall be set forth as follows:
'After the payment of the pension is postponed for the
period of less of one year, the pension shall be paid for the
months of the last not full postponement year, but shall not be
increased.'
Article 3. Recognition of Article 32 as No Longer Valid
Article 32 shall be recognised as no longer valid.
Article 4. Application of Article 3 of This Law
The provisions of Article 3 of this Law shall be
applicable as of 1 January 2003."
2. The petitioner requests to investigate whether the Law
on the Amendment of Article 24 and the Recognition of Articles
23 and 32 of the Law on Social Insurance Pensions as No Longer
Valid is not in conflict with Paragraphs 1 and 3 of Article 5,
Article 23 and Paragraph 2 of Article 30 the Constitution as
well as the constitutional principle of a state under the rule
of law. It is clear from the arguments of the petition that the
petitioner had doubts whether the Law on the Amendment of
Article 24 and the Recognition of Articles 23 and 32 of the Law
on Social Insurance Pensions as No Longer Valid is not in
conflict with Paragraphs 1 and 3 of Article 5, Article 23 and
Paragraph 2 of Article 30 the Constitution as well as the
constitutional principle of a state under the rule of law to
the extent that the aforesaid law does not establish that one
must pay and how one must pay the part of awarded and paid old
age pension the payment of which was discontinued on the
grounds of the Law on Social Insurance Pensions.
3. Prior to the entry into effect of the law disputed by
the petitioner, Article 23 (wording of 8 May 2001) of the Law
on State Social Insurance Pensions established inter alia the
legal regulation under which, while taking account of the
insured income, pensioners were paid not the full awarded old
age pension: (1) if the insured income exceeded 1 minimal
monthly salary but did not exceed 1.5 minimal monthly salary,
the part of the amount, established in the law, of the
complementary part of the pension was paid in addition to the
basic part of the pension; (2) if the insured income exceeded
1.5 minimal monthly salary, only the basic part of the old age
pension was paid.
In Paragraph 3 of Article 24 of the Law on State Social
Insurance Pensions (wording of 8 May 2001) inter alia reference
used to be made to Article 23 under which, as mentioned, while
taking account of the amount of their insured income, the
pensioners were paid not the full awarded old age pension.
Article 32 of the Law on State Social Insurance Pensions
(wording of 8 May 2001) used to establish inter alia the
provisions under which invalids, while taking account of the
amount of their insured income, were paid not the full awarded
old age pension.
4. In its ruling of 25 November 2002, the Constitutional
Court inter alia recognised that Article 23 (wording of 8 May
2001) of the Law on State Social Insurance Pensions to the
extent that it provided 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 was in
conflict 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, as well as the
constitutional principle of a state under the rule of law.
5. Article 1 of the law disputed by the petitioner
recognised Article 23 of the Law on State Social Insurance
Pensions (wording of 8 May 2001) as no longer valid; Article 2
of the Law altered Paragraph 3 of Article 24 of the Law on
State Social Insurance Pensions, by deleting from it the
provision "while paying the pension, one shall take account of
the insured income of the pensioner and of his age (Article 23)
during the period for which the pension is paid"; Article 3 of
the Law recognised Article 32 of the Law on State Social
Insurance Pensions as no longer valid; Article 4 of the Law
prescribes as to from what date the provisions of Article 3 of
the said law become applicable, which is as of 1 January 2003.
Thus, by the law disputed by the petitioner the Seimas
recognised the articles (provisions thereof) of the Law on
State Social Insurance Pensions which were in conflict with the
Constitution and which restricted the right of the pensioners
who had insured income of certain amount to receive the full
awarded and previously paid old age pension as no longer valid.
By the law disputed by the petitioner one removed the
provisions of the Law on State Social Insurance Pensions which
were in conflict with the Constitution from the legal system.
6. The petitioner grounds his doubts as to the compliance
of the Law with Paragraphs 1 and 3 of Article 5, Article 23 and
Paragraph 2 of Article 30 the Constitution as well as the
constitutional principle of a state under the rule of law on
the fact that the said law does not establish how one must
restore the right of ownership, which used to be violated by
failing to pay the full pension. In the opinion of the
petitioner, this ought to have been provided for in the
disputed law; as this has not been provided for, the disputed
law, in the opinion of the petitioner, is in conflict with the
constitution to the extent that the Law does not establish that
one must pay and how one must pay the part of awarded and paid
old age pension the payment of which was discontinued on the
grounds of the Law on Social Insurance Pensions.
Thus, the petitioner requests to investigate not something
that is established in the disputed law, but something that
there is not in the disputed law but what, in the opinion of
the petitioner, ought to be established.
7. In its decision of 6 May 2003, the Constitutional Court
held that if the laws (parts thereof) do not establish certain
legal regulation, the Constitution Court enjoys the
constitutional powers to investigate the compliance of these
laws (parts thereof) with the Constitution in the cases when
due to the fact that the said legal regulation has not been
established in particularly those laws (parts thereof) the
principles and/or norms of the Constitution might be violated.
In the cases when the petitioner disputes the fact that the law
or another disputed legal act (part thereof) indicated by the
petitioner has not established certain legal regulation, but
the said legal regulation under the Constitution (or under the
laws, too, in case one disputes a substatutory legal act of the
Seimas, the Government or the President of the Republic) need
not be established in that particular disputed legal act (part
thereof), the Constitutional Court holds that in the case on
the request of the petitioner the matter of investigation is
absent.
8. It has been mentioned that the law disputed by the
petitioner recognised the articles (provisions thereof) of the
Law on State Social Insurance Pensions which were in conflict
with the Constitution and which restricted the right of the
pensioners who had insured income of certain amount to receive
the full awarded and previously paid old age pension as no
longer valid.
It needs to be noted that the disputed law was adopted,
while taking into consideration the Constitutional Court ruling
of 25 November 2002. By the said law one removed the provisions
of the Law on State Social Insurance Pensions which were in
conflict with the Constitution from the legal system.
The disputed law is not designated to regulate the
relations linked with the payment of the unpaid part of the
pension. There is not any duty for the legislator, which would
follow from the Constitution, to establish additional legal
regulation in those particular laws (parts thereof) which
recognised the legal acts (parts thereof) that were in conflict
with the Constitution as no longer valid. The argument that it
is the disputed law that ought to have established that one
must pay and how one must pay the part of awarded and paid old
age pension the payment of which was discontinued on the
grounds of the Law on Social Insurance Pensions, is a
groundless one.
Under the Constitution, the law disputed by the petitioner
need not (contrary to the opinion of the petitioner) regulate
the relations linked with the payment of the part of the unpaid
pension. On the other hand, it does not mean that the
legislator, in general, cannot regulate by means of law the
relations of pensions from the aspect pointed out by the
petitioner.
9. It has been mentioned that the petitioner requests to
investigate not something that is established in the disputed
law, but something that there is not in the disputed law but
what, in the opinion of the petitioner, ought to be
established. Thus the matter of the investigation is absent in
the petition of the petitioner.
The fact that in the case on the request of the petitioner
the matter of investigation is absent means that the petition
is not within the jurisdiction of the Constitutional Court.
Under Item 2 of Paragraph 1 of Article 69 of the Law on
the Constitutional Court, the Constitutional Court shall refuse
to consider petitions to investigate the compliance of a legal
act with the Constitution, if the consideration of the petition
does not fall under the jurisdiction of the Constitutional
Court.
10. It needs to be noted that the decisions of the
Constitutional Court on issues ascribed to its competence by
the Constitution shall be final and not subject to appeal
(Paragraph 2 of Article 107 of the Constitution). The
Constitution prescribes that a law (or part thereof) of the
Republic of Lithuania or other act (or part thereof) of the
Seimas, act of the President of the Republic, act (or part
thereof) of the Government may not be applied from the day of
official promulgation of the decision of the Constitutional
Court that the act in question (or part thereof) is in conflict
with the Constitution (Paragraph 1 of Article 107).
Under Article 107 of the Constitution, the power of
decisions of the Constitutional Court on the compliance of
legal acts with the Constitution is prospective. Paragraph 4 of
Article 72 of the Law on the Constitutional Court provides that
decisions based on legal acts which have been recognised as
being in conflict with the Constitution or laws must not be
executed if they had not been executed prior to the appropriate
Constitutional Court ruling went into effect.
Conforming to Article 28 and Item 2 of Paragraph 1 of
Article 69 of the Law on the Constitutional Court of the
Republic of Lithuania, the Constitutional Court of the Republic
of Lithuania has adopted the following
decision:
To refuse to investigate the petition of the Supreme
Administrative Court of Lithuania requesting to investigate
whether the Republic of Lithuania Law on the Amendment of
Article 24 and the Recognition of Articles 23 and 32 of the Law
on Social Insurance Pensions as No Longer Valid is not in
conflict with Paragraphs 1 and 3 of Article 5, Article 23 and
Paragraph 2 of Article 30 the Constitution of the Republic of
Lithuania as well as the constitutional principle of a state
under the rule of law.
This decision of the Constitutional Court of the Republic
of Lithuania is final and not subject to appeal.
The decision is promulgated in the name 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