Lietuviškai
Case No. 46/2001-48/2001-50/2001-2/2002-6/2002-18/2002
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF
LITHUANIA
RULING
ON THE COMPLIANCE OF PARAGRAPH 2 OF ARTICLE 11 (WORDING OF
21 DECEMBER 2000) AND PARAGRAPH 3 OF ARTICLE 13 OF THE REPUBLIC
OF LITHUANIA LAW ON THE STATE PENSIONS OF OFFICIALS AND
SERVICEMEN OF THE INTERIOR, THE SPECIAL INVESTIGATION SERVICE,
STATE SECURITY, NATIONAL DEFENCE, THE PROSECUTOR'S OFFICE, THE
DEPARTMENT OF PRISONS AND OF THE ESTABLISHMENTS AND STATE
ENTERPRISES WHICH ARE SUBORDINATE TO THE LATTER WITH THE
CONSTITUTION OF THE REPUBLIC OF LITHUANIA, ALSO ON THE
COMPLIANCE OF SECTION 2 OF ITEM 25 (WORDING OF 25 MAY 2001) OF
THE REGULATIONS FOR GRANTING AND PAYMENT OF STATE PENSIONS OF
OFFICIALS AND SERVICEMEN OF THE INTERIOR, THE SPECIAL
INVESTIGATION SERVICE, STATE SECURITY, NATIONAL DEFENCE, THE
PROSECUTOR'S OFFICE, THE DEPARTMENT OF PRISONS AND OF THE
ESTABLISHMENTS AND STATE ENTERPRISES WHICH ARE SUBORDINATE TO
THE LATTER AS APPROVED BY GOVERNMENT OF THE REPUBLIC OF
LITHUANIA RESOLUTION NO. 83 OF 20 JANUARY 1995 WITH THE
CONSTITUTION OF THE REPUBLIC OF LITHUANIA AND ON THE COMPLIANCE
OF ITEM 5 OF THE SAID REGULATIONS WITH PARAGRAPH 4 OF ARTICLE
16 OF THE REPUBLIC OF LITHUANIA LAW ON THE STATE PENSIONS OF
OFFICIALS AND SERVICEMEN OF THE INTERIOR, THE SPECIAL
INVESTIGATION SERVICE, STATE SECURITY, NATIONAL DEFENCE, THE
PROSECUTOR'S OFFICE, THE DEPARTMENT OF PRISONS AND OF THE
ESTABLISHMENTS AND STATE ENTERPRISES WHICH ARE SUBORDINATE TO
THE LATTER
4 July 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,
in the presence of:
the representative of the Seimas of the Republic of
Lithuania, the party concerned, who was Jadvyga
Andriuškevičiūtė, a senior consultant to the Legal Department
of the Office of the Seimas,
the representatives of the Government of the Republic of
Lithuania, the party concerned, who were Irina Kudrevičiūtė,
Head of the Law Application Department of the Legal Department
of the Ministry of Interior of the Republic of Lithuania,
Svetlana Černuševič, Head of the Pensions Division of the
Department of Social Insurance and Pensions of the Ministry of
Social Security and Labour of the Republic of Lithuania, and
Arūnas Sodonis, Assistant Head of the Law Application
Department of the Legal Department of the Ministry of 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 Law on the
Constitutional Court of the Republic of Lithuania, on 12 June
2003 in its public hearing heard Case No.
46/2001-48/2001-50/2001-2/2002-6/2002-18/2002 which originated
in these petitions:
1) the petition of 18 September 2001 of the Vilnius
Regional Administrative Court, a petitioner, requesting to
investigate as to whether Article 11 of the Republic of
Lithuania Law on the State Pensions of Officials and Servicemen
of the Interior, the Special Investigation Service, State
Security, National Defence, the Prosecutor's Office, the
Department of Prisons and of the Establishments and State
Enterprises Which are Subordinate to the Latter was not in
conflict with the principles of a just civil society and state
under the rule of law proclaimed in the Preamble to the
Constitution of the Republic of Lithuania, as well as Paragraph
1 of Article 48 and Article 52 of the Constitution of the
Republic of Lithuania, whether Item 25 of the Regulations for
Granting and Payment of State Pensions of Officials and
Servicemen of the Interior, the Special Investigation Service,
State Security, National Defence, the Prosecutor's Office, the
Department of Prisons and of the Establishments and State
Enterprises Which are Subordinate to the Latter as approved by
Government of the Republic of Lithuania Resolution No. 83 of 20
January 1995 was not in conflict with the principles of a just
civil society and state under the rule of law proclaimed in the
Preamble to the Constitution of the Republic of Lithuania, as
well as Paragraph 1 of Article 48 and Article 52 of the
Constitution of the Republic of Lithuania;
2) the petition of 9 October 2001 of the Vilnius Regional
Administrative Court, the petitioner, requesting to investigate
as to whether the first sentence of Paragraph 2 of Article 11
of the Republic of Lithuania Law on the State Pensions of
Officials and Servicemen of the Interior, the Special
Investigation Service, State Security, National Defence, the
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to
the Latter was not in conflict with the principles of a just
civil society and state under the rule of law proclaimed in the
Preamble to the Constitution of the Republic of Lithuania,
Paragraph 1 of Article 23 and Article 52 of the Constitution of
the Republic of Lithuania;
3) the petition of 31 October 2001 of the Vilnius Regional
Administrative Court, the petitioner, requesting to investigate
as to whether Paragraph 3 of Article 13 of the Republic of
Lithuania Law on the State Pensions of Officials and Servicemen
of the Interior, the Special Investigation Service, State
Security, National Defence, the Prosecutor's Office, the
Department of Prisons and of the Establishments and State
Enterprises Which are Subordinate to the Latter to the extent
which establishes that the payment of the pension shall be no
longer paid for a person who is no longer employed in these
institution, and who is convicted for an intentional crime is
not in conflict with Article 23 of the Constitution of the
Republic of Lithuania;
4) the petition of 13 November 2001 of the Vilnius
Regional Administrative Court, the petitioner, requesting to
investigate as to whether the provision of Paragraph 3 of
Article 13 of the Republic of Lithuania Law on the State
Pensions of Officials and Servicemen of the Interior, the
Special Investigation Service, State Security, National
Defence, the Prosecutor's Office, the Department of Prisons and
of the Establishments and State Enterprises Which are
Subordinate to the Latter that granted state pension of
officials and servicemen is no longer paid to the persons who
are convicted for commission of intentional crimes is not in
conflict with Paragraph 1 of Article 29 of the Constitution of
the Republic of Lithuania;
5) the petition of 4 December 2001 of the Vilnius Regional
Administrative Court, the petitioner, requesting to investigate
as to whether the provision "retired officials and servicemen
who, after granting of state pensions of officials or
servicemen for the service or disability pensions of officials
or servicemen, receive the income from which contributions of
state social pensions insurance are calculated and paid, or who
receive sickness (including those paid by the employer for the
days of sickness), maternity, maternity (paternity) or
unemployment benefits of the state social insurance
(hereinafter in this Article referred to as the insured
income), shall receive the part of the state pension of
officials or servicemen which amounts to 30 percent of the
pension" established in Paragraph 2 of Article 11 of the
Republic of Lithuania Law on the State Pensions of Officials
and Servicemen of the Interior, the Special Investigation
Service, State Security, National Defence, the Prosecutor's
Office, the Department of Prisons and of the Establishments and
State Enterprises Which are Subordinate to the Latter was not
in conflict with Paragraph 2 of Article 29 and Paragraph 1 of
Article 48 of the Constitution of the Republic of Lithuania;
6) the petition of 26 July 2002 of the Supreme
Administrative Court of Lithuania, the petitioner, requesting
to investigate as to whether Item 5 of the Regulations for
Granting and Payment of State Pensions of Officials and
Servicemen of the Systems of the Interior, the Special
Investigation Service, State Security, National Defence, the
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to
the Latter as approved by Government of the Republic of
Lithuania Resolution No. 83 "On the Approval of the Regulations
for Granting and Payment of State Pensions to Officials and
Servicemen of the Systems of the Interior, State Security,
National Defence and Prosecutor's Office, the Department of
Prisons and of the Establishments and State Enterprises Which
are Subordinate to the Latter 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 not in conflict with Item 1 of Paragraph 4 of Article
16 of the Republic of Lithuania Law on the State Pensions of
Officials and Servicemen of the Interior, the Special
Investigation Service, State Security, National Defence, the
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to
the Latter.
By the Constitutional Court decision of 23 October 2002,
these petitions of the Vilnius Regional Administrative Court
and the Supreme Administrative Court of Lithuania have been
joined into one case.
The Constitutional Court
has established:
I
1. The Vilnius Regional Administrative Court, the
petitioner, suspended the investigation of an administrative
case by its 18 September 2001 ruling and applied to the
Constitutional Court with a petition requesting to investigate
as to whether Article 11 of the Law on the State Pensions of
Officials and Servicemen of the Interior, the Special
Investigation Service, State Security, National Defence, the
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to
the Latter (hereinafter also referred to as the Law; Official
Gazette Valstybės žinios, 1994, No. 99-1958) was not in
conflict with the principles of a just civil society and state
under the rule of law proclaimed in the Preamble of the
Constitution, as well as with Paragraph 1 of Article 48 and
Article 52 of the Constitution, whether Item 25 of the
Regulations for Granting and Payment of State Pensions of
Officials and Servicemen of the Interior, the Special
Investigation Service, State Security, National Defence, the
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to
the Latter as approved by Government Resolution No. 83 of 20
January 1995 (hereinafter also referred to as the Regulations;
Official Gazette Valstybės žinios, 1995, No. 8-173) was not in
conflict with the principles of a just civil society and state
under the rule of law proclaimed in the Preamble of the
Constitution, as well as with Paragraph 1 of Article 48 and
Article 52 of the Constitution.
2. The Vilnius Regional Administrative Court, the
petitioner, suspended the investigation of an administrative
case by its 9 October 2001 ruling and applied to the
Constitutional Court with a petition requesting to investigate
as to whether the first sentence of Paragraph 2 of Article 11
of the Law was not in conflict with the principles of a just
civil society and state under the rule of law proclaimed in the
Preamble of the Constitution, as well as Paragraph 1 of Article
23 and Article 52 of the Constitution.
3. The Vilnius Regional Administrative Court, the
petitioner, suspended the investigation of an administrative
case by its 31 October 2001 ruling and applied to the
Constitutional Court with a petition requesting to investigate
as to whether Paragraph 3 of Article 13 of the Law to the
extent which establishes that the payment of a pension shall be
no longer paid for a person who is no longer employed in these
institution and who is convicted for an intentional crime, is
not in conflict with Article 23 of the Constitution.
4. The Vilnius Regional Administrative Court, the
petitioner, suspended the investigation of an administrative
case by its 13 November 2001 ruling and applied to the
Constitutional Court with a petition requesting to investigate
as to whether the provision of Paragraph 3 of Article 13 of the
Law that granted state pension of officials and servicemen is
no longer paid to the persons who are convicted for commission
of intentional crimes is not in conflict with Paragraph 1 of
Article 29 of the Constitution.
5. The Vilnius Regional Administrative Court, the
petitioner, suspended the investigation of an administrative
case by its 4 December 2001 ruling and applied to the
Constitutional Court with a petition requesting to investigate
as to whether the provision "retired officials and servicemen
who, after designation of state pensions of officials or
servicemen for the service or disability pensions of officials
or servicemen, receive the income from which contributions of
state social pensions insurance are calculated and paid, or who
receive sickness (including those paid by the employer for the
days of sickness), maternity, maternity (paternity) or
unemployment benefits of the state social insurance
(hereinafter in this Article referred to as the insured
income), shall receive the part of the state pension of
officials or servicemen which amounts to 30 percent of the
pension" established in Paragraph 2 of Article 11 of the Law
was not in conflict with Paragraph 2 of Article 29 and
Paragraph 1 of Article 48 of the Constitution.
6. The Supreme Administrative Court of Lithuania, the
petitioner, suspended the investigation of an administrative
case by its 26 July 2002 ruling and applied to the
Constitutional Court with a petition requesting to investigate
as to whether "Item 5 of the Regulations for Granting and
Payment of State Pensions of Officials and Servicemen of the
Interior, the Special Investigation Service, State Security,
National Defence, the Prosecutor's Office, the Department of
Prisons and of the Establishments and State Enterprises Which
are Subordinate to the Latter as approved by Government of the
Republic of Lithuania Resolution No. 83 'On the Approval of the
Regulations for Granting and Payment of State Pensions to
Officials and Servicemen of the Systems of the Interior, State
Security, National 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 not in conflict with Item 1 of
Paragraph 4 of Article 16 of the Republic of Lithuania Law on
the State Pensions of Officials and Servicemen of the Interior,
the Special Investigation Service, State Security, National
Defence, the Prosecutor's Office, the Department of Prisons and
of the Establishments and State Enterprises Which are
Subordinate to the Latter (13 December 1994. No. I-693)".
II
The requests of the petitioners are based on the following
arguments.
1. The 18 September 2001 ruling of the Vilnius Regional
Administrative Court states that the legal regulation
established by the Law, according to which an official retired
before the entry into force of the Law must choose either to
refuse the pension or the work, restricts the freedom of an
individual to choose work or business and violates the right of
the citizens to receive the pension guaranteed by the state,
and is in conflict with the principles of a just civil society
and state under the rule of law.
2. The 9 October 2001 ruling of the Vilnius Regional
Administrative Court states that the legal regulation
established by the Law, according to which the paid pension was
reduced down to 30 percent of its former size to officials who
had retired before the entry into force of the Law, violates
the principles of a just civil society and state under the rule
of law, the right to property and the duty of the state to
ensure the most favourable regime of implementation of the
right of ownership, to defend and protect ownership against
illegal encroaching upon it and the right of the citizens to
receive the pension guaranteed by the state.
3. The 31 October 2001 ruling of the Vilnius Regional
Administrative Court states that the pension of the official is
granted in case of certain interconnection of facts: (1)
specific service related to unfixed working hours, increased
risk of injury or death, etc; (2) work record of the
established length. In the opinion of the petitioner, not
granting of the pension of the official when an intentional
crime is committed by an official in service is justifiable
(the name of the official is discredited). However, the
petitioner doubts as to the termination of payment of the
granted pension to the official after his retirement (upon
termination of work relations) because the interconnection of
juridical facts, which served as the grounds for granting the
pension, persists. The petitioner notes that, according to
Paragraph 2 of Article 13, the pension of the official is
usually granted for the rest of his life, therefore the right
to permanent income from this pension should be regarded as
property. Article 23 of the Constitution stipulates the
principles of inviolability and legal protection of ownership,
thus, the court had doubts if Paragraph 3 of Article 13 of the
Law to the extent establishing that the payment of the pension
shall be no longer paid for a person who is convicted for an
intentional crime is not in conflict with Article 23 of the
Constitution.
4. The 13 November 2001 ruling of the Vilnius Regional
Administrative Court maintains that the provision of Paragraph
3 of Article 13 of the Law, according to which the payment of
the state pension of officials and servicemen shall be
discontinued to persons who have been convicted for commission
of intentional crimes, creates legal effects (termination of
the payment of the pension) to the persons who had been granted
the state pensions of officials and servicemen before the entry
into force of the Law on 1 January 1995 and who had committed
intentional crimes before that date, i.e. to the persons who
were not aware of the said provision of the Law before granting
of the pension and commission of an intentional crime. The
petitioner doubts as to the compliance of the said provision of
Paragraph 3 of Article 13 of the Law with the provision that
the law has no retroactive power. It is also noted in the
petition of the petitioner that the disputed provision of the
Law that the payment of state pension of officials and
servicemen shall be discontinued to persons who have been
convicted for commission of intentional crimes is not related
to the disappearance of previous record. Thus, according to the
indication of conviction for intentional crimes, this provision
of the Law creates an unequal status of persons convicted for
commission of intentional crimes if compared to other persons
who, under other laws of the Republic of Lithuania, are held
not convicted upon disappearance or abolishment of previous
record.
5. The 4 December 2001 ruling of the Vilnius Regional
Administrative Court maintains that the legislator related the
amount of the paid state pension of the official with
possession of certain income by the disputed provision of the
Law. The court has doubts if a working person who is paid the
pension of the official is not discriminated on the grounds of
social status. Big reduction of the amount of the pension can
cause a compulsory decision of the pensioner to refuse the job.
Under Paragraph 1 of Article 48 of the Constitution, each human
being may freely choose a job and business. The petitioner has
doubts if the disputed provision of the Law does not restrict
the right of a working pensioner to freely choose a job and
business, who is paid the state pension of the official,
because of his social status. The petitioner also doubts if
loosing of a part of the pension only on the grounds of the
changed social status of the pensioner is not in conflict with
Paragraph 2 of Article 29 of the Constitution.
6. The 26 July 2002 ruling of the Supreme Administrative
Court of Lithuania notes that, under Paragraph 4 of Article 16
of the Law, the time periods specified in Items 1-6 of this
Paragraph, which had been prior to the day of the entry into
force of the Law (1 January 1995), are equalled to the time of
service on the grounds of which pensions are granted to the
persons working as officials or servicemen of the systems of
the interior, state security, national defence, prosecutor's
office, the Special Investigation Service, the Department of
Prisons and of the establishments and state enterprises which
are subordinate to the latter. Thus, under the Law, specified
time periods are included into the length of service of persons
admitted to work as officials and servicemen irrespective of
the fact whether they were admitted to service before or after
the entry into force of the Law. Item 5 of the Regulations as
approved by Government Resolution No. 83 of 20 January 1995
provides that the time period of service specified in Article
16 of the Law shall be included to officials and servicemen
admitted to the service in the systems of the interior, state
security, national defence, and prosecutor's office before the
day of the entry into force of the Law. In the opinion of the
petitioner, the circle of persons, whose service record could
include the time period specified in Item 1 of Paragraph 4 of
Article 16 of the Law, is thus narrowed, therefore the
petitioner doubts if Item 5 of the Regulations is not in
conflict with Item 1 of Paragraph 4 of Article 16 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-J. Andriuškevičiūtė, a senior consultant to the Legal
Department of the Office of the Seimas, and the representatives
of the party concerned-the Government-S. Černuševič, Head of
the Pensions Department of the Department of Social Insurance
and Pensions of the Ministry of Social Security and Labour, I.
Kudrevičiūtė, Head of the Law Application Division of the Legal
Department of the Ministry of the Interior, and A. Sodonis,
Assistant Head of the Law Application Division the Legal
Department of the Ministry of the Interior.
1. In the explanations of 29 November 2001, 14 January
2002, 28 May 2002, and 4 June 2003 of the representative of the
party concerned-the Seimas-J. Andriuškevičiūtė it is maintained
that the content of the rights of the owner is constituted by
the right to possess, use, and dispose of his property. The
state pension of officials and servicemen may be considered as
property only after it is granted and paid according to the
procedure established by the laws. Before that the recipient of
the pension may not be considered as the owner of pension. Only
the sum of the payment (pension, benefit) which is established
according to the law may be recognised as property of a person.
The legal provisions which regulate the amount of the pension
may not be considered as violating the right of ownership. If
the funds whose payment is not provided for by the law were
recognised as property of an individual, the concept of the
right of ownership would be denied in essence. The right to the
state pension of officials and servicemen arises on the grounds
of the law, therefore in its essence it differs from the
pension which is paid on the basis of agreement or other
insurance payments. The Law provides for certain conditions
upon fulfilment of which persons acquire the right to the state
pension of officials or servicemen, i.e. the state does not pay
insurance payments to the accounts of insurance companies,
funds dedicated to this purpose, or of concrete individuals. An
individual acquires the property right to the state pension of
officials or servicemen only upon its payment. It is not a
property right from the point of view of civil law. In the
opinion of J. Andriuškevičiūtė, the jurisprudence of the
Constitutional Court also permits to conclude that the pension
may be reduced according to the procedure established by laws.
After recognition that the pension, though it is property, may
be reduced, it is necessary to observe the constitutional
requirement that "property may only be seized for the needs of
society in accordance with the procedure established by law and
shall be justly compensated for", thus one is to conclude that
the pension is the property of a person from the moment when it
is paid out in the amount provided for by the law. Some
payments are allotted additionally under social insurance
guarantees which are the same for all residents and are paid
from the funds of the State Budget. State pensions of officials
or servicemen belong to this group of payments. The purpose of
the pension of officials or servicemen is to compensate the
income which has been lost due to termination of service
relationships. However, if an official or serviceman continues
his service or works, he possesses the income and, thus, the
state should not be obligated to provide him with social
assistance. The petitioner emphasised the reduction of the
amount of the pension related only with the remuneration for
the job. Paragraph 2 of Article 11 of the Law also provides for
reduction of the amount of the pension of officials or
servicemen who have retired from service and who receive
sickness, maternity, maternity (paternity) or unemployment
benefits of the state social insurance after granting of state
pensions for service of the officials or servicemen or state
disability pensions of officials or servicemen. Under Paragraph
1 of Article 11 of the Law, state pensions are not paid to the
officials and servicemen who are in service. This provision in
its essence does not differ from the rules established in
Paragraph 2 of Article 11 as it must indirectly be related to
the income. Paragraph 1 of Article 48 of the Constitution is
understood as the right of a person to decide himself whether
to work or not, whether to engage in business or not. Legal
acts establish certain requirements to a person who wishes to
work and they may not be assessed as restricting the right of
the person to freely choose a job and business. Analogous
assessment should be given to the provisions of the Law
limiting the amount of the pension according to the insured
income. While assessing the disputed provisions of the law and
the substatutory act, attention should be paid to the fact that
the rules on the payment of pensions for the officials and
servicemen permit a person to choose whether to remain in
service, or to receive the pension, but they do not allow him
to work and to receive the pension. Constitutional provisions
permit to maintain that the opportunity of the free choice of a
human being is not unlimited. An analysis of provisions of the
Constitution gives the grounds to maintain that the provisions
of the Constitution which consolidate the right of a human
being to work, pension and social assistance do not attempt to
guarantee absolute rights to a person, however, they
consolidate the guarantee that the state will not deny these
rights. According to the representative of the Seimas, the
provisions of Article 11 of the Law and Item 25 of the
Regulations safeguard "the interest of society". The state has
the right to establish additional special conditions for the
implementation of this right, but the extent of these
limitations should not deny the restricted rights in general.
The representative of the party concerned notes that the
legislator is empowered to establish which persons shall not be
granted pensions, while the state has established guarantees
for the implementation of these rights by laws. In the opinion
of the representative of the Seimas, the limitation of the
amount of pensions established in Article 11 of the Law and
Item 25 of the Regulations or not payment of these pensions in
cases specified in this article is not in conflict with Article
52 of the Constitution.
In the opinion of the representative of the party
concerned, the disputed provision of Paragraph 3 of Article 13
of the Law does not violate the protection of the right of
ownership consolidated in Article 23 of the Constitution,
because the state pension of officials or servicemen may be
considered property only after it is granted and paid according
to the procedure established by the laws. In the opinion of the
representative of the party concerned, the disputed provision
of Paragraph 3 of Article 13 of the Law is not in conflict with
Article 29 of the Constitution, because the legal status of
officials or servicemen both on and off duty is special, while
liability is applied for the behaviour discrediting the name of
the official or soldier on as well as off duty. According to
the representative of the party concerned J. Andriuškevičiūtė,
the provisions of Paragraph 1 of Article 29 of the Constitution
would be violated if the granting and payment of pensions of
officials or servicemen depended on the time of commission of
an intentional criminal deed, i.e. whether the crime was
committed while on service or after retirement.
2. In the explanations of the representative of the party
concerned-the Government-S. Černuševič it is maintained that
issues related to the right of a human being to freely choose a
job are the object of regulation of labour law, but not of the
law on pensions. In the opinion of the representative of the
party concerned, the disputed provisions of Article 11 of the
Law and Item 25 of the Regulations are not in conflict with
Paragraph 1 of Article 48 of the Constitution. All state
pensions including those of officials and servicemen are of
different kind than social insurance pensions which are based
on the principles of social insurance, and the granting and
payment of pensions of this kind are established by different
laws. Payment of state pensions from the funds of the State
Budget depends on the capabilities of the state to render state
support to persons who have not yet reached the age of the old
age pension or have not been recognised handicapped, therefore,
the legislator, taking account of real financial opportunities,
has the right to establish the manner of payment of the state
pensions of officials and servicemen to working recipients of
these pensions. The disputed provisions of Item 25 of the
Regulations only specify the implementation of the norm of the
Law, therefore, is not in conflict with Article 52 of the
Constitution. In the opinion of the representative of the party
concerned, only the received pension should be regarded as
property, therefore the disputed provisions of the Law are not
in conflict with the principles of a just civil society and
state under the rule of law consolidated in the Constitution.
3. In the explanations of the representative of the party
concerned-the Government-I. Kudrevičiūtė it is maintained that
the restriction of the rights to work, pensions and social
assistance in cases established by the law may not be
considered as the essential denial of these rights as these
rights are not absolute legal categories. The rights to work,
pensions and social assistance are not completely independent
from the state and, taking account of economic and social level
of the state, they may be restricted or not granted. The
disputed provisions of Article 11 of the Law and Item 25 of the
Regulations guarantee the interests of society. The state is
obligated to support only members belonging to certain
category, not all members of the society, and the ensuring of
this interest is really substantiated and lawful. In the
opinion of the representative of the party concerned, the
disputed provisions of Article 11 of the Law and Item 25 of the
Regulations do not violate the Constitution.
4. In the explanations of the representative of the party
concerned-the Government-A. Sodonis it is maintained that the
legislator has established a general rule that only the service
to the State of Lithuania shall be included in the time of
service that is required for granting the state pension of
officials and servicemen. The representative of the Government
notes that before the entry into force of the Law, the
relationships of state pensions of officials and servicemen
were regulated by Government Resolution No. 281 "On the
Procedure of Pension Maintenance of the Employees, Officials
and Servicemen of the Systems of the Interior, State Security,
National Defence, and the Department of the Security of the
Supreme Council" of 17 July 1991. While applying this
resolution, the time of service in corresponding services of
the USSR and its republics was also included into the time of
service. In order to protect the legitimate expectations of
officials and servicemen who continued or began their service
as of the restoration of the independence of Lithuania prior to
1 January 1995, the legislator established an exception to the
said general rule in Item 1 of Paragraph 4 of Article 16 of the
Law, i.e. that the time of service of these officials and
servicemen in corresponding services of other states shall be
equalled to the time of service required for granting of the
state pension of officials and servicemen. Therefore, in the
opinion of the representative of the party concerned, Item 1 of
Paragraph 4 of Article 16 of the Law is to be applied only to
the officials and servicemen who started their service before
the Law came into force. Thus, Item 5 of the Regulations is not
in conflict with Item 1 of Paragraph 4 of Article 16 of the
Law.
IV
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from L. Linkevičius, Minister of the National Defence
of the Republic of Lithuania, V. Blinkevičiūtė, Minister of
Social Security and Labour of the Republic of Lithuania, J.
Bernatonis, the then Minister of the Interior of the Republic
of Lithuania, V. Bulovas, Minister of the Interior of the
Republic of Lithuania, G. Švedas, Vice-minister of Justice of
the Republic of Lithuania, P. Koverovas, State Secretary of the
Ministry of Justice of the Republic of Lithuania, A.
Klimavičius, Prosecutor General of the Republic of Lithuania,
M. Laurinkus, Director General of the State Security
Department, A. Pocius, Deputy Director General of the said
department, V. Junokas, Director of the Special Investigation
Service, D. Prevelis, the then Director of the Board of the
State Social Insurance Fund, Č. Zabulėnienė, acting Director of
the Board of the State Social Insurance Fund, D. Žalimas, a
consultant of the Minister of National Defence of the Republic
of Lithuania.
V
At the Constitutional Court hearing the representatives of
the parties concerned-the Seimas and the Government-virtually
reiterated the arguments set forth in the written explanations.
The Constitutional Court
holds that:
I
1. On 13 December 1994 the Seimas adopted the Republic of
Lithuania Law on the State Pensions of Officials and Servicemen
of the Interior, State Security, National Defence, and the
Prosecutor's Office. This law came into force on 1 January
1995.
This law has been amended and/or supplemented for more
than once. The title of the Law was supplemented by words
"Special Investigation Service" by Article 1 of the 2 May 2002
Republic of Lithuania Law on the Supplement and Amendment of
the Title, Articles 1, 3, 6, 12, and 16 of the Law on the State
Pensions of Officials and Servicemen of the Interior, State
Security, National Defence, and the Prosecutor's Office. The
title of the Law was once again supplemented by Article 1 of
the 13 July 2002 Republic of Lithuania Law on the Supplement
and Amendment of the Title, Articles 1, 3, 6, 12, and 16 of the
Law on the State Pensions of Officials and Servicemen of the
Interior, the Special Investigation Service, State Security,
National Defence, and the Prosecutor's Office and set forth as
follows: "The Republic of Lithuania Law on the State Pensions
of Officials and Servicemen of the Interior, the Special
Investigation Service, State Security, National Defence, the
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to
the Latter".
2. The Law the provisions of which are disputed, regulates
the relationships of granting and payment of the state pensions
of officials and servicemen of the interior, the Special
Investigation Service, state security, national defence,
prosecutor's office, the Department of Prisons and of the
establishment and state enterprises which are subordinate to
the latter.
Under the Republic of Lithuania Law on State Pensions, the
state pension of officials and servicemen is one of the types
of state pensions. Beside this state pension, the Law on State
Pensions establishes the state pension of the President of the
Republic, state pensions of the first and second degree of the
Republic of Lithuania, state pensions of victims, scientists,
and judges. According to the Law on State Pensions, some of the
pensions established therein are granted and paid for special
merits to Lithuania (for example, state pensions of the first
and second degree of the Republic of Lithuania). The granting
and payment of other state pensions is related to the
corresponding service (for example, service in the systems of
the Interior, prosecutor's office, etc.) or work (for example,
scientific work), some other state pensions are of
compensational nature and are paid to persons who have been
recognised victims (for example, persons who became disabled
because of the aggression carried out on 11-13 January 1991 and
later events, participants of the resistance to the occupations
of 1940-1990, etc.).
The relationships of granting and payment of different
types of state pensions are also regulated by the Law on the
President of the Republic of Lithuania, the Law on the State
Pensions of Judges of the Republic of Lithuania, the Republic
of Lithuania Provisional Law on the State Pensions of
Scientists.
The Law on the State Pensions of Officials and Servicemen
of the Interior, the Special Investigation Service, State
Security, National Defence, the Prosecutor's Office, the
Department of Prisons and of the Establishments and State
Enterprises Which are Subordinate to the Latter establishes the
persons who have the right to receive the state pension of
officials and servicemen, the grounds for granting and payment,
conditions, and amounts of this pension.
Under the Law, the following persons have the right to the
state pension of officials and servicemen: officials of the
Ministry of the Interior, the police, the State Border Security
Service and other institutions of the Interior, officers of
service units, servicemen and non-commissioned officers of
reenlistee service of the interior, officials of the Special
Investigation Service, servicemen of professional military
service, officials of the system of the State Security
Department, officials of the prosecutor's office, officials of
the Department of Prisons and of the establishments and state
enterprises which are subordinate to the latter. In case of
death of these persons on duty or during the training for
reasons related to the service or training, their spouses and
children have the right to receive the state widows and orphans
pensions of officials and servicemen.
The state pension of officials and servicemen is granted
and paid to the said officials and servicemen upon their
retirement if they meet the conditions established by the Law.
Such conditions are of varied nature: the person has either
served a certain number of years, or has served a certain
number of years and reached the age of old age pension, or the
person is recognised disabled for reasons related to the
service, or has been dismissed from service because of health,
etc.
Under the Law, the state pension of officials and
servicemen is not granted and the granted one is no longer paid
to individuals who are convicted for commission of intentional
crimes.
The Law provides that the officials and servicemen who
acquire the right to the state pension of officials and
servicemen do not lose the right to other state pensions
providing the laws do not provide otherwise. According to the
valid laws, the said officials and servicemen also receive the
state social insurance pension provided they meet the
conditions required in order to receive these pensions.
It is noteworthy that the state pensions of officials and
servicemen are paid from the State Budget of the Republic of
Lithuania. The pensions to the officials and servicemen and
their families are granted and paid by the Ministry of the
Interior, the Special Investigation Service, the State Security
Department, the Ministry of National Defence, the Office of the
Prosecutor General or the Department of Prisons depending on
which of these institutions the recipient of the pension served
in last. Under the valid laws, the granting and payment of the
state pension of officials and servicemen is based neither on
contributions of social insurance, nor on any other special
payments. The state pension of officials and servicemen is
calculated and paid while taking account of the amount of
remuneration of the official or serviceman. Meanwhile, the
state social insurance old age pension and the state social
insurance disability pension, which are established in the
Republic of Lithuania Law on State Social Insurance Pensions,
are paid from the budget of the State Social Insurance Fund of
the Republic of Lithuania. The granting and payment of the
state social insurance old age pension, unlike the state
pensions (state pensions of officials and servicemen among
them), are based on social insurance contributions which are
paid by employers and employees themselves. Thus, in this case
the individual himself participates to some extent in the
creation of material preconditions for the payment of this
pension. The amounts of social insurance contributions are the
grounds for differentiation of amounts of state social
insurance old age pensions. Amounts of social insurance
disability pensions are not always directly related with the
payment of social insurance contribution.
3. The petitioner-the Vilnius Administrative Regional
Court:
a) by its ruling of 18 September 2001 requests to
investigate whether Article 11 of the Law (wording of 21
December 2000) is not in conflict with the principles of a just
civil society and state under the rule of law which are
consolidated in the Preamble of the Constitution, Paragraph 1
of Article 48 and Article 52 of the Constitution;
b) by its ruling of 9 October 2001 requests to investigate
whether the first sentence "retired officials and servicemen
who, after designation of state pensions of officials or
servicemen for the service or disability pensions of officials
or servicemen, receive the income from which contributions of
state social pensions insurance are calculated and paid, or who
receive sickness (including those paid by the employer for the
days of sickness), maternity, maternity (paternity) or
unemployment benefits of the state social insurance <...> shall
receive the part of the state pension of officials or
servicemen which amounts to 30 percent of the pension" of
Paragraph 2 of Article 11 of the Law (wording of 21 December
2000) is not in conflict with the principles of a just civil
society and state under the rule of law which are consolidated
in the Preamble of the Constitution, Paragraph 1 of Article 23
and Article 52 of the Constitution which consolidates the state
guaranteed right of citizens to receive old age and disability
pensions;
c) by its ruling of 4 December 2001 requests to
investigate whether the provision "retired officials and
servicemen who, after designation of state pensions of
officials or servicemen for the service or disability pensions
of officials or servicemen, receive the income from which
contributions of state social pensions insurance are calculated
and paid, or who receive sickness (including those paid by the
employer for the days of sickness), maternity, maternity
(paternity) or unemployment benefits of the state social
insurance, <...> shall receive the part of the state pension of
officials or servicemen which amounts to 30 percent of the
pension" of Paragraph 2 of Article 11 of the Law (wording of 21
December 2000) is not in conflict with Paragraph 2 of Article
29 and Paragraph 1 of Article 48 of the Constitution.
The petitioner-the Vilnius Administrative Regional Court:
a) by its ruling of 31 October 2001 requests to
investigate whether Paragraph 3 of Article 13 of the Law to the
extent establishing that the payment of the granted state
pension of officials and servicemen is no longer paid to a
person who is convicted for commission of an intentional crime
is not in conflict with Article 23 of the Constitution;
b) by its ruling of 13 November 2001 requests to
investigate whether the provision of Paragraph 3 of Article 13
of the Law that the granted state pension of officials and
servicemen is no longer paid to a person convicted for
commission of an intentional crime is not in conflict with
Paragraph 1 of Article 29 of the Constitution.
4. By its Resolution No. 83 of 20 January 1995, the
Government approved the Regulations for Granting and Payment of
State Pensions of Officials and Servicemen of the Systems of
the Interior, State Security, National Defence, and the
Prosecutor's Office. These regulations have been amended and/or
supplemented for more than once.
The title of these Regulations was amended by Item 1.4.1
of Government Resolution No. 861 "On the Partial Amendment of
Government of the Republic of Lithuania Resolution No. 83 'On
the Approval of the Regulations for Granting and Payment of
State Pensions to Officials and Servicemen of the Systems of
the Interior, State Security, National Defence and Prosecutor's
Office and the Establishment of the Time of Service Necessary
in Order to Receive a Respective Percentage Extra Pay for the
Years of Service' of 20 January 1995" of 18 July 2000 and they
were titled the Regulations for Granting and Payment of State
Pensions of Officials and Servicemen of the Interior, the
Special Investigation Service, State Security, National
Defence, the Prosecutor's Office, the Department of Prisons and
of the Establishments and State Enterprises Which are
Subordinate to the Latter.
The Vilnius Administrative Regional Court, the petitioner,
by its ruling of 18 September 2001 requests to investigate
whether Item 25 of the Regulations is not in conflict with
Paragraph 1 of Article 48, Article 52 of the Constitution, and
the constitutional principle of a state under the rule of law.
The Supreme Administrative Court of Lithuania, the
petitioner, by its ruling of 26 July 2002 requests to
investigate whether Item 5 of the Regulations is not in
conflict with Item 1 of Paragraph 4 of Article 16 of the Law.
5. Taking account of the specified object of investigation
and arguments set forth in the requests of the petitioners, the
Vilnius Administrative Regional Court and the Supreme
Administrative Court of Lithuania, the Constitutional Court
will not investigate the compliance of the whole legal
regulation of the state pensions system or its separate
elements with the Constitution except those aspects which the
petitioners have specified in their requests.
II
1. Article 52 of the Constitution provides: "The State
shall guarantee the right of citizens to receive old age and
disability pensions, as well as social assistance in the event
of unemployment, sickness, widowhood, loss of breadwinner, and
other cases provided for in laws."
Article 52 of the Constitution establishes the grounds for
pensionary maintenance and social assistance. According to this
article of the Constitution, the legislator must establish by
law the old age and disability pensions, as well as social
assistance in the event of unemployment, sickness, widowhood,
and loss of breadwinner.
Under the Constitution, other pensions or social
assistance than those specified in Article 52 of the
Constitution may be established by law (Constitutional Court
rulings of 23 April 2002 and 25 November 2002). Pensions for
certain service to the State of Lithuania may also be
established by law. While establishing such a pension for
service, the legislator is bound by the rules and principles of
the Constitution, as well as the striving for an open, just and
harmonious civil society and a state under the rule of law
which is consolidated in its Preamble.
According to the Constitution, the grounds for pensionary
maintenance, the persons who are granted and paid pensions, the
conditions for granting and payment of pensions, as well as the
amounts of the pensions are established by law only. While
adopting a law that establishes which persons are granted and
paid pensions for service, the grounds and conditions for
granting and payment of these pensions, as well as the amounts
of this pension, the legislator in every case must observe the
rules and principles of the Constitution, and the imperatives
of an open, just, harmonious civil society and state under the
rule of law which are consolidated in the Constitution. It
should be noted that if the legislator, while regulating the
pensionary maintenance of officials and servicemen, did not
observe the Constitution, such pensionary maintenance could not
be guaranteed under the Constitution.
In the context of the case under consideration it must be
noted that the legislator, while establishing which persons are
granted and paid pensions for service, the grounds and
conditions for granting and payment of these pensions, as well
as the amounts of this pension, is bound by the constitutional
imperative of social harmony, the principles of justice,
reasonableness and proportionality. If the legislator, while
establishing the pension for service of officials and
servicemen, did not take account of the specific character of
the service of officials and servicemen, the nature of concrete
duties and other important circumstances, the granting and
payment of such a pension would become a privilege.
It should be noted that the legislator, while establishing
the pension of officials and servicemen for service, may not
establish the legal regulation, according to which the person
would be able to retire unreasonably early, or an unreasonably
short time period of service or work required in order to
receive such pension would be established, or the amount of the
remuneration of the official or serviceman would not be taken
into consideration while establishing the amount of the granted
pension, or the principles of justice, reasonableness and
proportionality would be violated in some other way.
It must also be noted that the state pension of officials
and servicemen differs in its nature and character from state
social insurance pensions (thus, from the old age pension as
well). It has been mentioned that this pension is granted to
persons for their service to the State of Lithuania and is paid
from the State Budget. The indicated peculiarities imply that
the legislator is also empowered to establish the legal
regulation under which this pension is not granted to persons
who have not retired, or this pension is not paid to persons
who have retired from service and have been granted and paid
the state pension of officials and servicemen provided they
return back to the service for which the state pension of
officials and servicemen has been granted and paid.
The provision "the State shall guarantee" of Article 52 of
the Constitution inter alia means that, upon establishing by
law certain pensionary maintenance, the state is obligated to
guarantee it to the indicated persons on the grounds and by the
amounts which have been established by the law, while the
persons who meet the conditions provided by the law, have the
right to demand that the state grant and pay this pension to
them. Thus, the said provision of Article 52 of the
Constitution implies the duty of the legislator, when he
establishes by law a certain pension, to consolidate such legal
regulation which would ensure the payment of this pension to
the persons who meet the conditions established by the law.
While establishing the legal regulation according to which
the persons who meet the conditions provided by the law
(retirement from the service, time of service, age, etc.)
acquire the right to a certain pension for service established
in the law, the state alongside accepts the duty to grant and
pay this pension. The person who meets the conditions
established by the law has the right to demand that the state
fulfil the obligation undertaken by the law and pay the
payments of the established amount. It was held in the
Constitutional Court ruling of 10 February 2000 that if a law
establishes another pension which is not directly provided by
Article 52 of the Constitution, it must be guaranteed, under
the Constitution, to indicated persons on such bases and by
such amounts that are established by law. However, it should
also be emphasised that the legislator, while establishing such
a pension, is bound by the Constitution.
Alongside, it should be noted that there might occur such
an extreme situation in the state (economic crisis, natural
disaster etc.) when there is objective lack funds for the
payment of pensions. In such extraordinary cases the legal
regulation of pensionary relations may be corrected also by
reducing pensions to the extent that it is necessary to ensure
vitally important interests of society and protect other
constitutional values. The reduced pensions may only be paid on
a temporary basis, i.e. only when there is an extraordinary
situation in the sate (Constitutional Court rulings of 23 April
2002 and 25 November 2002). It needs to be noted that even in
such extraordinary cases it is not permitted that pensions be
reduced in violation of the balance between the interests of
the person and society; such reduction of pensions must be in
line with the constitutional principle of proportionality.
2. The Constitution shall be an integral act (Paragraph 1
of Article 6 of the Constitution). The principles and norms of
the Constitution compose a harmonious system. No provision of
the Constitution may be construed so that the content of
another constitutional provision would be distorted or denied,
since thus the essence of the whole constitutional regulation
would be distorted and the balance of values consolidated in
the Constitution would be disturbed.
The provisions of Article 52 of the Constitution should be
construed by taking account of other provisions of the
Constitution, while in the context of the case at issue it must
be done while taking into consideration of the constitutional
principle of a state under the rule of law, the provisions of
Articles 23, 29, Paragraph 1 of Article 48 of the Constitution.
3. The constitutional principle of the state under the
rule of law is a universal principle upon which the whole legal
system of Lithuania and the Constitution of the Republic of
Lithuania itself are based; the content of the principle of a
state under the rule of law is revealed in various provisions
of the Constitution and is construed inseparably from the
striving for an open, just and harmonious civil society which
is declared in the Preamble of the Constitution.
Alongside with other requirements, the principle of a
state under the rule of law consolidated in the Constitution
also implies that human rights and freedoms must be secured,
that all institutions implementing state power and other state
institutions must act while observing the law and in compliance
with the law, that the Constitution has the supreme legal power
and that laws, Government resolutions and other legal acts must
be in conformity with the Constitution.
Inseparable elements of the principle of a state under the
rule of law are the protection of legitimate expectations,
legal certainty and legal security. These principles inter alia
imply that the state must fulfil the undertaken obligations to
the person. If the protection of legitimate expectations, legal
certainty and legal security of the person were not ensured,
the confidence of the person in the state and law would not be
ensured (Constitutional Court rulings of 23 February 2000, 12
July 2001, 25 November 2002, 24 January 2003, and 4 March
2003). One of the essential elements of the constitutional
principle of the state under the rule of law is the principle
of legal security. It means the duty of the state to ensure
certainty and stability of legal regulation, to safeguard the
rights of participants of legal relations, as well as to
respect legitimate interests and legitimate expectations
(Constitutional Court rulings of 12 July 2001, 5 November 2002,
4 March 2003 and 17 March 2003).
It also needs to be noted that, according to the
Constitution, only those expectations of the person in
relationships with the state are protected and defended, which
arise from the Constitution itself or from the laws and other
legal acts that are not in conflict with the Constitution. Only
these expectations of the person in relationships with the
state are considered legitimate.
One of the elements of the principle of legitimate
expectations is the protection of rights which are acquired
under the Constitution as well as laws and other legal acts
which are not in conflict with the Constitution. It is
noteworthy in the context of the case under consideration that
persons who have acquired certain rights according to the law,
have the right to reasonably expect that these rights will be
maintained and implemented for the established time period.
Under this principle, legal regulation may only be altered
according to a previously established procedure. It needs to be
noted that, while changing legal regulation, it is necessary to
observe the norms and principles of the Constitution, and inter
alia the principle lex retro non agit, and that the rights and
legitimate expectations acquired by the person may not be
denied by changes in legal regulation.
It should also be noted in the context of the case under
consideration 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. Therefore, the 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 (Constitutional Court ruling
of 23 April 2002).
A person who meets the conditions established by the law
acquires the right to a pension established by the law. This
person may reasonably expect that this right will be protected
and defended by the state. When the pension established by the
law which is not in conflict with the Constitution is granted
and paid, this right and legitimate expectation acquired by the
person are also to be linked to the protection of the rights of
ownership of this person.
Alongside, it needs to be noted that the constitutional
protection of acquired rights and legitimate expectations does
not mean that the system of pensionary maintenance established
by law may not be reorganised. While reorganising this system,
the Constitution must be observed in every case. The system of
pensions may be reorganised only by law, only guaranteeing the
old age and disability pensions provided for by the
Constitution, as well as observing undertaken obligations by
the state, which are not in conflict with Constitution, to pay
corresponding payments to persons who meet the requirements
established by the law. If, while reorganising the pensionary
system, the pensions established by the laws which are not
directly specified in Article 52 of the Constitution were
eliminated, or the legal regulation of these pensions were
amended in essence, the legislator would be obligated to
establish a just mechanism for compensation of the existing
losses to the persons who had been granted and paid such
pensions.
In addition, it needs to be noted that the legislator,
while reorganising the system of pensions so that the bases for
pensionary maintenance, persons to whom the pension is granted
and paid, the conditions of granting and payment of pensions,
the amounts of pensionary maintenance are changed, must provide
for a sufficient transitional time period during which the
persons who have a corresponding job or perform corresponding
service which entitles them to a respective pension under the
previous regulation, would be able to prepare for these
changes.
4. Article 23 of the Constitution provides:
"Property shall be inviolable.
The rights of ownership shall be protected by laws.
Property may only be seized for the needs of society in
accordance with the procedure established by law and shall be
justly compensated for."
While construing the provisions of Article 23 of the
Constitution, the Constitutional Court has held for more than
once that the inviolability of property and protection of the
rights of ownership inter alia mean that the owner, as the
holder of subjective rights to property, has the right to
require that other persons not violate his rights, as well as
that the state have a duty to ensure the defence and protection
of the rights of ownership.
It needs to be noted in the context of the case under
consideration that, upon establishment by law, that certain
persons have the right to the state pension of officials and
servicemen due to their job or service, though this pension is
paid from the State Budget, a duty arises to the state to
ensure that the persons who meet the requirements of the law
receive monetary payments of the established amount after this
pension is granted to them. It has been mentioned that the fact
that the law establishes the state pension of officials and
servicemen means that the state undertakes an obligation to pay
monetary payments of the established amount to persons for
their service to the State of Lithuania, if these persons meet
the requirements established by law (retirement from service,
service record, age, etc.). Thus a person, who meets these
conditions, is entitled to demand that the state fulfil this
obligation of property nature.
It has been mentioned that the Constitution is an integral
act, that its rules are interrelated and constitute a
harmonious system. While revealing the content of the
constitutional institution of the protection of the rights of
ownership, one has to take account not only of Article 23 of
the Constitution, bust also of other provisions of the
Constitution which reveal different aspects of this
constitutional concept of this right: the provision of
Paragraph 1 of Article 46 of the Constitution that Lithuania's
economy shall be based of the right of private ownership and
individual freedom of economic activity and initiative, Article
47 of the Constitution which inter alia provides that the
rights of exclusive ownership of the subterranean, as well as
internal waters, forests, parks, roads, archaeological and
cultural objects of state importance shall belong to the
Republic of Lithuania, also that in the Republic of Lithuania
foreign entities may acquire the ownership of land, internal
waters, forests, and parks subsequent to a constitutional law,
and that plots of land may belong to a foreign state for the
establishment of its diplomatic and consular missions, of the
provision of Paragraph 1 of Article 48 that each human being
shall have the right to receive just pay for work and social
security in the event of unemployment, the provision of
Paragraph 1 of Article 49 of the Constitution that each working
human being shall have the right to annual paid holidays, the
provision of Article 52 of the Constitution that the state
shall guarantee the right of citizens to receive old age and
disability pensions, as well as social assistance in the event
of unemployment, sickness, widowhood, loss of breadwinner, and
other cases provided for in laws, as well as of the provision
of Paragraph 3 of Article 42 of the Constitution that material
interests of an author that are related to scientific,
technical, cultural, and artistic work are protected and
defended by law, etc. The constitutional concept of the
protection of the rights of ownership is inseparable from the
provision of Article 18 of the Constitution that human rights
and freedoms are innate, from the principle of equality of
persons before the law, the court, and other state institutions
and officials which is consolidated in Article 29 of the
Constitution, from the right of the person whose constitutional
rights or freedoms are violated to apply to court, and the
provision that the law shall establish compensation for
material and moral damage inflicted on a person which are
consolidated in Article 30 of the Constitution, etc.
While relating the provisions of Article 23 of the
Constitution with the provisions of the aforementioned articles
of the Constitution, one should state that the constitutional
protection of the rights of ownership, which arise from the
Constitution and the laws that are not in conflict with the
Constitution, means the protection of the right to demand the
fulfilment of obligation of property nature to a person. For
instance, the requirements of a person to pay just remuneration
for work are defended not only under Paragraph 1 of Article 48
of the Constitution, but also under the provision of Paragraph
2 of Article 23 of the Constitution that the rights of
ownership shall be protected by laws, while the requirements of
a person to pay the payments of pensionary maintenance
established by law are defended not only under Article 52 of
the Constitution, but also under Article 23 of the
Constitution. It needs to be noted that in the latter case the
right to demand for the payments of pensionary maintenance
which are established by the Constitution or laws that are not
in conflict with the latter, arises also from Article 52 of the
Constitution, while under Article 23 of the Constitution the
proprietary aspects of this right are defended. The said
circumstance determines the specific character of the defence
of this acquired right according to Article 23 of the
Constitution. This specific character inter alia means that in
case a question arises as to the defence of the acquired right
under Article 23 of the Constitution, first of all it should be
established whether the requirement to pay the pension is based
on Article 52 of the Constitution and/or other norms of the
Constitution.
In the context of the case under consideration it needs to
be noted that the state has the duty to fulfil those
obligations of property nature which it has undertaken by law
while establishing such regulation, according to which a
person, who meets the conditions established by the law,
acquires the right to the state pension of officials and
servicemen. Under the Law, only the persons specified in the
Law have the right to receive the state pension of officials
and servicemen. This pension is granted and paid to the persons
retired from service if they have served a certain number of
years or have served a certain number of years and reached the
age for the old age pension, or have been recognised disabled
for reasons related to the service, or have been dismissed from
service for the reasons of health, etc. The duty of the state
to pay the state pension of officials and servicemen arises
from the obligation of the state, which is consolidated in the
Law, to pay the state pension of granted amount to a person who
meets the conditions established in the Law.
Thus, under Article 23 of the Constitution, the persons
who have been granted and paid the state pensions of officials
and servicemen have the right to demand that the payments be
paid further in the amounts which were granted and paid
earlier. It needs to be noted that the pensions granted and
paid under the Constitution may be reduced only in the event of
an extraordinary situation in the state when there is objective
insufficiency of funds that are necessary to pay the pensions.
In this case the granted and paid pensions may be reduced to
the extent necessary to ensure vitally important interests of
society, and to protect other constitutional values. It is also
noteworthy that the reduced pensions may only be paid
temporarily. Beside that, while implementing the reform of the
pensionary system, some pensions may be abolished, the amounts
of others may be reduced. In this case the legislator must
establish a just mechanism of compensations for persons that
have suffered some losses because of this amendment of the
regulation. Otherwise, the legal regulation, according to which
the payment of the granted and paid state pension of officials
and servicemen is no longer paid or reduced, ought to be
assessed as violating Paragraph 2 of Article 23 of the
Constitution which provides that the rights of ownership shall
be protected by laws.
It needs to be noted that the right of ownership is
defended by international legal acts as well. While
guaranteeing some other rights and freedoms beside those that
are established therein, Paragraph 1 of Article 1 of the First
Protocol of the European Convention for the Protection of Human
Rights and Fundamental Freedoms (hereinafter also referred to
as the First Protocol) provides that every natural or legal
person is entitled to the peaceful enjoyment of his
possessions, and that no one shall be deprived of his
possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law. Paragraph 2 of this article provides that
the preceding provisions shall not, however, in any way impair
the right of a state to enforce such laws as it deems necessary
to control the use of property in accordance with the general
interest or to secure the payment of taxes or other
contributions or penalties.
In the jurisprudence of the European Court of Human Rights
the defence of the right of every natural and legal person to
dispose of his property as established in Article 1 of the
First Protocol is applied not only to the objects of the right
of ownership which are expressis verbis specified by civil laws
of states, but also to economic interests (European Court of
Human Rights, case Tre Traktörer Aktiebolag v. Sweden of 7 July
1989, series A No. 159), to the economic rights which reflect
the relationships with clients and activity relations of a firm
(European Court of Human Rights, case Van Marle and others v.
Netherlands of 26 June 1986, series A No. 101), to rights of
claim of property nature (European Court of Human Rights, the
case Pressos Compania Naviera SA and others v. Belgium of 20
November 1995, series 4 No. 332), to claims to pay the expenses
which have accumulated in the course of fulfilment of
obligations under contract (European Court of Human Rights, the
case Raffineries Grecques Stran and Stratis Andreadis v. Greece
of 9 December 1994, series A No. 301-B), to the right to
pension that resulted from work (European Court of Human
Rights, the case Gaygusuz v. Austria of 16 September 1996,
Report 1996-IV), to the right to the old age pension (European
Court of Human Rights, the case Wessels-Bergervoet v.
Netherlands of 4 June 2002), etc. The European Court of Human
Rights has noted that, under the European Convention for the
Protection of Human Rights and Fundamental Freedoms, property
or possessions which belong to a person are defended as well as
legal demands (claims) on the basis of which the claimant may
argue that he has at least "a legitimate expectation" to
dispose of the property (European Court of Human Rights,
admissibility decision in Malhous v. Czech Republic of 13
December 2000, Reports on cases and decisions 2001-X). Upon
assessment of all circumstances of a case, the guarantees of
the right of every natural or legal person to dispose of his
property which are consolidated in Article 1 of the First
Protocol have been applied also in defence of economic
interests arising from the receiving of social benefits, as
well as stocks, real property, management of land, etc.
It also needs to be noted that, according to the
jurisprudence of the European Court of Human Rights (European
Court of Human Rights, admissibility decision in Schwengel v.
Germany of 2 March 2000, admissibility decision in Jankovic v.
Croatia of 12 October 2000, admissibility decision in
Skórkiewicz v. Poland of 1 June 1999), Article 1 of the First
Protocol of the European Convention for the Protection of Human
Rights and Fundamental Freedoms may not be referred to if a
special privilege of property nature which had been granted on
the basis of political motives was reduced or abolished.
While applying Article 1 of the First Protocol of the
European Convention of Human Rights and Fundamental Freedoms,
the jurisprudence of the European Court of Human Rights does
not deny the possibility of reorganisation of pensionary
maintenance and social security. Taking account of concrete
circumstances (European Court of Human Rights, admissibility
decision in Jankovic v. Croatia of 12 October 2000, Reports on
cases and decisions 2001-X), the European Court of Human Rights
has stated that the state, while regulating social policy, is
in possession of sufficiently broad opportunities to change
amounts of pensions. However, it is clear from the
jurisprudence of the European Court of Human Rights that it is
necessary to observe certain requirements while amending legal
regulation of this field. For instance, the European Court of
Human Rights has noted that the applied means must be in
conformity to the objective sought, that, taking account of
Paragraph 2 of Article 1 of the First Protocol, interference by
the state must ensure the balance between the general interest
of society and the requirement to protect fundamental rights of
the person (European Court of Human Rights, the case Sporrong
and Lönnroth v. Sweden of 23 September 1982, series A No. 52;
European Court of Human Rights, the case Spadea and Scalabrino
v. Italy of 28 September 1995, series A 315-B, and other
cases).
The jurisprudence of the European Court of Human Rights as
a source of construction of law is also important to
construction and applicability of Lithuanian law
(Constitutional Court rulings of 8 May 2000, 10 May 2001, 19
September 2002, 23 October 2002, and 24 March 2003).
5. Paragraph 1 of Article 48 of the Constitution provides:
"Each human being may freely choose a job and business, and
shall have the right to have proper, safe and healthy working
conditions, just pay for work, and social security in the event
of unemployment."
Paragraph 1 of Article 48 of the Constitution inter alia
provides that each human being may freely choose a job and
business. This freedom is one of the necessary conditions for
satisfying human vital needs, and of ensuring his appropriate
place in society. The constitutional freedom of each human
being to freely choose a job and business implies the duty of
the legislator to create legal preconditions for implementation
of this freedom. While creating them, the legislator is
empowered, while taking account of the nature of a job and
business, to establish the conditions of implementation of the
right to freely choose a job and business. While doing this, he
must observe the Constitution.
In its rulings of 30 June 2000 and 25 November 2002 the
Constitutional Court held that, under the Constitution, it is
impossible to establish the legal regulation according to which
a person, while implementing one constitutional right, would
lose the possibility to implement another constitutional right.
It is noteworthy in the context of the case under
consideration that, under the Constitution, it is not permitted
to establish any such legal regulation which would restrict the
opportunities to freely choose another job and business to
persons to whom the state guarantees the right to receive the
state pension of officials and servicemen granted under the
law, though these persons meet the conditions established to
those who wish to work or engage in business.
6. Article 29 of the Constitution provides:
"All persons shall be equal before the law, the court, and
other State institutions and officials.
The human being may not have his rights restricted, nor
may be granted any privileges on the grounds of gender, race,
nationality, language, origin, social status, beliefs,
convictions, or views."
Paragraph 1 of Article 29 of the Constitution consolidates
formal equality of all persons, Paragraph 2 of this article
consolidates the principle of non-discrimination and not
granting of privileges to persons. The constitutional principle
of equality of persons before the law means an innate human
right to be treated equally with the others.
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 obliges to
legally assess the homogeneous facts in the same manner and
prohibits to arbitrary assess the facts, which are the same in
essence, in a different manner. It also needs to be noted that,
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.
While assessing whether an established different legal
regulation is a grounded one, particular legal circumstances
must be taken into account. First of all, differences of legal
situation of subjects and objects to which different legal
regulation is applied must be considered; secondly, one has to
take into account the conformity of legal acts according to
their hierarchy, scope of regulation, etc. (Constitutional
Court ruling of 28 February 1996). The compliance of a concrete
legal norm with Article 29 of the Constitution may be assessed
only by taking into account of all significant circumstances.
The principle of equality of all persons which is
consolidated in Article 29 of the Constitution includes the
prohibition both of discrimination and privileges.
Discrimination is most often understood as restriction of human
rights according to gender, race, nationality, language,
origin, social status, religion, convictions, opinions or other
indications. However, differentiated legal regulation when it
is applied to certain groups of persons which are distinguished
by the same signs, and in case one strives for positive and
socially meaningful goals, is not regarded as discrimination or
privileges. It has been noted in the conclusion of the
Constitutional Court of 24 January 1995 that so-called
"positive discrimination" may not be interpreted as granting of
privileges. Special requirements or certain conditions are not
attributed to discriminative restrictions as well, if their
establishment is related to peculiarities of regulated
relationships.
III
On the compliance of Paragraph 2 of Article 11 (wording of
21 December 2000) of the Republic of Lithuania Law on the State
Pensions of Officials and Servicemen of the Interior, the
Special Investigation Service, State Security, National
Defence, the Prosecutor's Office, the Department of Prisons and
of the Establishments and State Enterprises Which are
Subordinate to the Latter with Article 23, Paragraph 2 of
Article 29, Paragraph 1 of Article 48, and Article 52 of the
Constitution, as well as the constitutional principle of a
state under the rule of law.
1. Article 11 of the Law (wording of 13 December 1994)
established: "State pensions shall not be paid to the officials
and servicemen on service except widowhood pensions. State
pensions of officials and servicemen shall be paid to retired
officials and servicemen in the amounts established by this law
irrespective of their received income. State pensions of
officials and servicemen shall not be paid to pensioners who
are fully supported by the State."
2. The Seimas amended Article 11 by the Law on the
Amendment of Article 11 of the Law on the State Pensions of
Officials and Servicemen of the Interior, the Special
Investigation Service, State Security, National Defence, the
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to
the Latter and set it forth as follows:
"Article 11. Payment of the pension to the pensioners who
are on service or working
State pensions shall not be paid to the officials and
servicemen on service except widowhood pensions.
Retired officials and servicemen who, after granting of
state pensions of officials or servicemen for service or
disability pensions of officials or servicemen, receive the
income from which contributions of state social pensions
insurance are calculated and paid, or who receive sickness
(including those paid by the employer for the days of
sickness), maternity, maternity (paternity) or unemployment
benefits of the state social insurance <...>, shall receive the
part of the state pension of officials or servicemen which
amounts to 30 percent of the pension. The payable 30 percent
shall be calculated from the computed state pension of
officials and servicemen (Article 7 and 9 of this Law). In
cases when the amount of the computed state pension of
officials and servicemen (Article 7, 9 and Paragraph 7 of
Article 16 of this Law) must be limited according to the
procedure established in Paragraph 3 of Article 3 of the Law on
State Pensions, the payable 30 percent shall be calculated from
the limited amount of the state pension of officials and
servicemen.
Pensions for the years of service and disability pensions
which were granted to respective officials and servicemen
according to the procedure that was valid until 1 January 1995
shall also be paid under the procedure established in Paragraph
2 of this article irrespective of the fact whether they have
been recalculated according to this law (Paragraph 10 of
Article 16), or have not been recalculated (Paragraph 2 of
Article 16) if the recipients of these pensions had the insured
income after granting of pensions.
A recipient of the state pension of officials or
servicemen must inform the institution which pays him his
pension about the insured income within 10 days from the day of
occurrence of this income. In case one does not timely inform
about this income and due to this the pension is overpaid, the
surplus payment of the pension shall be recovered from the
recipient of the pension according to the procedure established
in the Law on the State Social Insurance Pensions and other
laws.
The state pensions of officials and servicemen shall not
be paid to pensioners who are fully supported by the State."
The Law on Amendment of Article 11 of the Law on the State
Pensions of Officials and Servicemen of the Interior, the
Special Investigation Service, State Security, National
Defence, the Prosecutor's Office, the Department of Prisons and
of the Establishments and State Enterprises Which are
Subordinate to the Latter came into force on 1 January 2001.
2.1. The Vilnius Regional Administrative Court, the
petitioner:
a) by its ruling of 18 September 2001 requests to
investigate whether Article 11 of the Law (wording of 21
December 2000) is not in conflict with the principles of a just
civil society and state under the rule of law consolidated in
the Preamble of the Constitution, and Paragraph 1 of Article 48
and Article 52 of the Constitution;
b) by its ruling of 9 October 2001 requests to investigate
whether the sentence "Retired officials and servicemen who,
after granting of state pensions of officials or servicemen for
the service or disability pensions of officials or servicemen,
receive the income from which contributions of state social
pensions insurance are calculated and paid, or who receive
sickness (including those paid by the employer for the days of
sickness), maternity, maternity (paternity) or unemployment
benefits of the state social insurance <...>, shall receive the
part of the state pension of officials or servicemen which
amounts to 30 percent of the pension" of Paragraph 2 of Article
11 of the Law (wording of 21 December 2000) is not in conflict
with the principles of a just civil society and state under the
rule of law consolidated in the Preamble of the Constitution,
Paragraph 1 of Article 23 and Article 52 of the Constitution
which consolidates the right of citizens to receive old age and
disability pensions guaranteed by the State;
c) by its ruling of 4 December 2001 requests to
investigate whether the provision "retired officials and
servicemen who, after granting of state pensions of officials
or servicemen for the service or disability pensions of
officials or servicemen, receive the income from which
contributions of state social pensions insurance are calculated
and paid, or who receive sickness (including those paid by the
employer for the days of sickness), maternity, maternity
(paternity) or unemployment benefits of the state social
insurance <...>, shall receive the part of the state pension of
officials or servicemen which amounts to 30 percent of the
pension" of Paragraph 2 of Article 11 of the Law (wording of 21
December 2000) is not in conflict with Paragraph 2 of Article
29 and Paragraph 1 of Article 48 of the Constitution.
2.2. Although the Vilnius Regional Administrative Court,
the petitioner, by its ruling of 18 September 2001 requests to
investigate whether entire Article 11 of the Law (wording of 21
December 2000) is not in conflict with the Constitution, it is
clear from the arguments of the ruling that the petitioner has
doubts as to the compliance of not whole Article 11 of the Law
(wording of 21 December 2000), but of the provision "retired
officials and servicemen who, after granting of state pensions
of officials or servicemen for the service or disability
pensions of officials or servicemen, receive the income from
which contributions of state social pensions insurance are
calculated and paid, or who receive sickness (including those
paid by the employer for the days of sickness), maternity,
maternity (paternity) or unemployment benefits of the state
social insurance <...>, shall receive the part of the state
pension of officials or servicemen which amounts to 30 percent
of the pension" of Paragraph 2 of Article 11 of the Law
(wording of 21 December 2000) with Article 52, Article 23,
Paragraph 1 of Article 48, Paragraph 2 of Article 29 of the
Constitution, and the constitutional principle of a state under
the rule of law.
2.3. The Vilnius Regional Administrative Court, the
petitioner, by its rulings of 18 September 2001 and 4 December
2001 requests to investigate whether the provision "retired
officials and servicemen who, after granting of state pensions
of officials or servicemen for the service or disability
pensions of officials or servicemen, receive the income from
which contributions of state social pensions insurance are
calculated and paid, or who receive sickness (including those
paid by the employer for the days of sickness), maternity,
maternity (paternity) or unemployment benefits of the state
social insurance <...>, shall receive the part of the state
pension of officials or servicemen which amounts to 30 percent
of the pension" of Paragraph 2 of Article 11 of the Law
(wording of 21 December 2000) is not in conflict with the
principles of a just civil society and state under the rule of
law which are consolidated in the Preamble of the Constitution.
In the Preamble to the Constitution the striving for an
open, just, and harmonious civil society and a state under the
rule of law is declared. The values and striving which are
consolidated in the Constitution manifest themselves in its
norms and principles. The striving for an open, just,
harmonious civil society and state under the rule of law is to
be construed inseparably from the norms and principles of the
Constitution, and from the constitutional principle of a state
under the rule of law, which embodies the striving consolidated
in the Preamble of the Constitution, among them (Constitutional
Court rulings of 23 February 2000, 18 October 2001, 12 July
2001 and 4 March 2003).
The Constitutional Court will investigate whether the
provision of Paragraph 2 of Article 11 of the Law (wording of
21 December 2000) which is disputed by the petitioner is not in
conflict with the constitutional principle of a state under the
rule of law.
2.4. Subsequent to the petitions of the Vilnius Regional
Administrative Court, the petitioner, the Constitutional Court
will investigate whether the provision of Paragraph 2 of
Article 11 of the Law (wording of 21 December 2000) "retired
officials and servicemen who, after granting of state pensions
of officials or servicemen for the service or disability
pensions of officials or servicemen, receive the income from
which contributions of state social pensions insurance are
calculated and paid, or who receive sickness (including those
paid by the employer for the days of sickness), maternity,
maternity (paternity) or unemployment benefits of the state
social insurance <...>, shall receive the part of the state
pension of officials or servicemen which amounts to 30 percent
of the pension" is not in conflict with the Constitution.
3. It has been mentioned that Article 11 of the Law
(wording of 13 December 1994) established that state pensions
of officials and servicemen shall be paid to retired officials
and servicemen in the amounts established by the Law
irrespective of their received income.
It has also been mentioned that the provision of Paragraph
2 of Article 11 of the Law (wording of 21 December 2000)
established that retired officials and servicemen who, after
granting of state pensions of officials or servicemen for the
service or disability pensions of officials or servicemen,
receive the income from which contributions of state social
pensions insurance are calculated and paid, or who receive
sickness (including those paid by the employer for the days of
sickness), maternity, maternity (paternity) or unemployment
benefits of the state social insurance, shall receive the part
of the state pension of officials or servicemen which amounts
to 30 percent of the pension.
It needs to be noted that, according to Paragraph 1 of
Article 11 of the Law (wording of 21 December 2000), the state
pension of officials and servicemen is not paid to the
officials and servicemen in service, except the widowhood
pension. This inter alia means that, under the law, to the
retired officials and servicemen who had been granted and paid
the state pension of officials and servicemen this pension is
not paid upon their returning to service.
In the opinion of the petitioner, under the legal
regulation established by the disputed provision of Paragraph 2
of Article 11 of the Law (wording of 21 December 2000), the
amount of the paid pension, which had been granted according to
the previously valid legal regulation, to the above mentioned
retired officials and servicemen was limited. Thus, the Vilnius
Regional Administrative Court has doubts as to the
constitutionality of the disputed provision.
4. While deciding whether the disputed provision of
Paragraph 2 of Article 11 of the Law (wording of 21 December
2000) is not in conflict with Articles 52, 23, Paragraph 1 of
Article 48, Paragraph 2 of Article 29 of the Constitution, and
the constitutional principle of a state under the rule of law,
it needs to be noted that it consolidated the rule that the
retired officials and servicemen who, after granting of state
pensions of officials or servicemen for the service or
disability pensions of officials or servicemen receive the
corresponding income or receive corresponding benefits, shall
be paid not the whole pension of officials and servicemen of
the established amount, but only a part of it in the amount of
30 percent of its size.
Comparing this legal regulation with the legal regulation
provided by Article 11 of the Law (wording of 13 December
1994), one is to hold that the amount of granted, and in the
cases when this pension had been granted and paid, the amount
of the paid pension as well, was reduced to these retired
officials and servicemen.
5. It has been held in this Constitutional Court ruling
that the provision "the State shall guarantee" of Article 52 of
the Constitution inter alia means that, upon establishing by
law certain pensionary maintenance, the state is obligated to
guarantee it to the indicated persons on such grounds and by
such amounts which have been established by the law, while the
persons who meet the conditions provided by the law, have the
right to require that the state grant and pay this pension to
them. Thus, the said provision of Article 52 of the
Constitution implies the duty of the legislator, while he
establishes a certain pension by law, to consolidate the legal
regulation which would ensure the payment of this pension to
persons who meet the conditions established by law.
It has been held in this Constitutional Court ruling that
pensions granted and paid under the Constitution may be reduced
only in the event of an extraordinary situation in the state
when there is objective insufficiency of funds necessary to pay
the pensions. In this case the granted and paid pensions may be
reduced to the extent necessary to ensure vitally important
interests of society and to protect other constitutional
values. It needs also to be noted that the reduced pensions may
only be paid temporarily. Beside that, while implementing the
reform of the pensionary system, some pensions may be
abolished, the amounts of others may be reduced. In this case
the legislator must establish a just mechanism of compensations
for the persons who have suffered some losses because of this
change in the regulation.
Otherwise, if one established the legal regulation
according to which the payment of the granted and paid state
pension of officials and servicemen is no longer paid or
reduced, one would violate the provision of Article 52 of the
Constitution that the state shall guarantee the pensions in
cases provided by the law.
It has been mentioned that a person who meets the
conditions established by the law in order to receive the state
pension of officials and servicemen, has the right to receive
this pension. If a person has been granted and paid the state
pension of officials and servicemen, it must be paid further.
Upon the establishment in the disputed provision of Paragraph 2
of Article 11 of the Law (wording of 21 December 2000) that
respective persons are paid not the whole pension, but only its
part in the amount of 30 percent, the amount of the granted and
till then paid state pension of officials and servicemen was
reduced. This legal regulation violates the provision of
Article 52 of the Constitution that the state shall guarantee
the right to receive pensions and social assistance in cases
provided for by the law.
Taking account of the arguments set forth, one is to
conclude that the disputed provision "retired officials and
servicemen who, after granting of state pensions of officials
or servicemen for the service or disability pensions of
officials or servicemen, receive the income from which
contributions of state social pensions insurance are calculated
and paid, or who receive sickness (including those paid by the
employer for the days of sickness), maternity, maternity
(paternity) or unemployment benefits of the state social
insurance <...>, shall receive the part of the state pension of
officials or servicemen which amounts to 30 percent of the
pension" of Paragraph 2 of Article 11 of the Law (wording of 21
December 2000) is in conflict with Article 52 of the
Constitution.
6. It has been mentioned that before the entry into force
of the disputed provision of Paragraph 2 of Article 11 of the
Law (wording of 21 December 2000), according to Article 11 of
the Law (wording of 13 December 1994) the state pensions of
officials and servicemen were paid to the retired officials and
servicemen in the amount established by law irrespective of the
received income. The disputed provision of Paragraph 1 of
Article 11 of the Law limited the rights of these persons to
receive the whole state pension of officials or servicemen in
the established amount.
It has been held in this ruling of the Constitutional
Court that, under Article 23 of the Constitution, the persons
who have been granted and paid the state pensions of officials
and servicemen have the right to demand that the payments be
paid further in the amounts which were granted and paid
earlier. It needs to be noted that the pensions granted and
paid under the Constitution may be reduced only in the event of
an extraordinary situation in the state when there is objective
insufficiency of funds necessary to pay the pensions. In such
case the granted and paid pensions may be reduced to the extent
necessary to ensure vitally important interests of society and
to protect other constitutional values. It is also noteworthy
that reduced pensions may only be paid temporarily. Beside
that, while implementing the reform of the pensionary system,
some pensions may be abolished, the amounts of others may be
reduced. In this case the legislator must establish a just
mechanism of compensations for persons who have suffered some
losses because of this change in the regulation. Otherwise, the
legal regulation, according to which the payment of the granted
and paid state pension of officials and servicemen is no longer
paid or reduced, ought to be assessed as violating Paragraph 2
of Article 23 of the Constitution which stipulates that the
rights of ownership shall be protected by laws.
The legal regulation which has been established by the
disputed provision of Paragraph 2 of Article 11 of the Law
(wording of 21 December 2000) not only violates the acquired
property right of the person to the state pension of officials
and servicemen which is guaranteed by the state, but also does
not protect his right to claim that the pension of the
established amount be paid further, which is based on the
person's service to the State of Lithuania, when the person has
fulfilled all conditions established by the law and when this
pension has been granted and paid. Thus, having held that the
disputed provision of Paragraph 2 of Article 11 of the Law
(wording of 21 December 2000) violates Article 52 of the
Constitution, one is also to hold that this provision is not in
line with the defence and protection of the right of ownership
which is consolidated in Article 23 of the Constitution.
Taking account of the arguments set forth, one is to
conclude that the provision "retired officials and servicemen
who, after granting of state pensions of officials or
servicemen for the service or disability pensions of officials
or servicemen, receive the income from which contributions of
state social pensions insurance are calculated and paid, or who
receive sickness (including those paid by the employer for the
days of sickness), maternity, maternity (paternity) or
unemployment benefits of the state social insurance <...>,
shall receive the part of the state pension of officials or
servicemen which amounts to 30 percent of the pension" of
Paragraph 2 of Article 11 (wording of 21 December 2000) of the
Law on the State Pensions of Officials and Servicemen of the
Interior, the Special Investigation Service, State Security,
National Defence, the Prosecutor's Office, the Department of
Prisons and of the Establishments and State Enterprises Which
are Subordinate to the Latter is in conflict with Article 23 of
the Constitution.
7. It has been held in this Ruling of the Constitutional
Court that, under the Constitution, it is impossible to
establish any such legal regulation according to which a
person, while implementing one constitutional right, would lose
an opportunity to implement another constitutional right. The
legal regulation which would restrict the freedom to freely
choose a job and business to persons to whom the pension, which
is guaranteed by the state under the law, has been granted and
paid, though these persons meet the conditions established to
those who wish to work or engage in business, is in conflict
with Paragraph 1 of Article 48 of the Constitution.
The relationships which are regulated by the part of the
disputed provision of Paragraph 2 of Article 11 of the Law
(wording of 21 December 2000), according to which retired
officials and servicemen who, after granting of state pensions
of officials or servicemen for the service or disability
pensions of officials or servicemen, receive the income from
which contributions of state social pensions insurance are
calculated and paid, or who receive sickness (including those
paid by the employer for the days of sickness), maternity,
maternity (paternity) or unemployment benefits of the state
social insurance, shall receive the part of the state pension
of officials or servicemen which amounts to 30 percent of the
pension, are not related to the implementation of the
constitutional freedom of a person to choose a job or business
of the person. Thus, this legal regulation cannot restrict the
freedom of the person to choose a job or business which is
consolidated in Paragraph 1 of Article 48 of the Constitution.
Disputed Paragraph 2 of Article 11 of the Law (wording of
21 December 2000) inter alia establishes that retired officials
and servicemen who, after granting of the state pensions of
officials or servicemen for the service or disability pensions
of officials or servicemen, receive the income from which
contributions of the state social pensions insurance are
calculated and paid shall receive the part of the state pension
of officials or servicemen which amounts to 30 percent of the
pension. This legal regulation creates a situation in which a
person, who has been granted and paid the state pension of
officials and servicemen, must choose: either to receive the
whole granted state pension of officials or servicemen, or to
have some income from which contributions of the state social
pensions insurance are calculated and paid and to receive part
of the state pension of officials and servicemen which amounts
only to 30 percent of its size.
Thus, the legal regulation consolidated in disputed
Paragraph 2 of Article 11 of the Law (wording of 21 December
2000), according to which the person who has been granted and
paid the state pension of officials and servicemen must choose
either to receive the whole granted state pension of officials
or servicemen, or to have some income from which contributions
of the state social pensions insurance are calculated and paid
and to receive part of the state pension of officials and
servicemen which amounts only to 30 percent of its size,
restricts the freedom to choose a job or business which is
established in Paragraph 1 of Article 48 of the Constitution,
although the said person meets the conditions established by
the law which are necessary in order to have a certain job or
engage in certain business.
Taking account of the arguments set forth, one is to
conclude that the provision "retired officials and servicemen
who, after granting of state pensions of officials or
servicemen for the service or disability pensions of officials
or servicemen, receive the income from which contributions of
the state social pensions insurance are calculated and paid
<...> shall receive the part of the state pension of officials
or servicemen which amounts to 30 percent of the pension" of
Paragraph 2 of Article 11 (wording of 21 December 2000) of the
Law on the State Pensions of Officials and Servicemen of the
Interior, the Special Investigation Service, State Security,
National Defence, the Prosecutor's Office, the Department of
Prisons and of the Establishments and State Enterprises Which
are Subordinate to the Latter is in conflict with Paragraph 1
of Article 48 of the Constitution.
8. It has been mentioned that the protection of legitimate
expectations, legal certainty and legal security are
inseparable elements of the principle of a state under the rule
of law. These principles are also related to the duty of the
state to fulfil the obligations that it has undertaken.
Under the legal regulation which is consolidated by the
disputed provision of Paragraph 2 of Article 11 of the Law
(wording of 21 December 2000), the retired officials or
servicemen who, after granting of state pensions of officials
or servicemen for the service or disability pensions of
officials or servicemen, receive the income from which
contributions of the state social pensions insurance are
calculated and paid, or who receive sickness (including those
paid by the employer for the days of sickness), maternity,
maternity (paternity) or unemployment benefits of the state
social insurance, are paid not the whole granted state pension
of officials or servicemen but the part amounting to 30 percent
of the said pension.
The disputed provision of Paragraph 2 of Article 11 of the
Law (wording of 21 December 2000) consolidates the legal
regulation which reduces the amount of the granted and paid
state pension of officials and servicemen. It has been
mentioned 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.
It has been also held in this ruling of the Constitutional
Court that the said legal regulation is in conflict with
Articles 52 and 23 of the Constitution. Having held this, one
is also to hold that this legal regulation violates the
legitimate expectations arising from the Constitution and the
law.
It has been mentioned that the protection of legitimate
expectations is an element of the principle of a state under
the rule of law. Thus, the disputed provision of Paragraph 2 of
Article 11 of the Law (wording of 21 December 2000) is in
conflict with the constitutional principle of a state under the
rule of law.
Taking account of the arguments set forth, one is to
conclude that the provision "retired officials and servicemen
who, after granting of state pensions of officials or
servicemen for the service or disability pensions of officials
or servicemen, receive the income from which contributions of
state social pensions insurance are calculated and paid, or who
receive sickness (including those paid by the employer for the
days of sickness), maternity, maternity (paternity) or
unemployment benefits of the state social insurance <...>,
shall receive the part of the state pension of officials or
servicemen which amounts to 30 percent of the pension" of
Paragraph 2 of Article 11 (wording of 21 December 2000) of the
Law on the State Pensions of Officials and Servicemen of the
Interior, the Special Investigation Service, State Security,
National Defence, the Prosecutor's Office, the Department of
Prisons and of the Establishments and State Enterprises Which
are Subordinate to the Latter is in conflict with the
constitutional principle of a state under the rule of law.
9. It has been held in this Constitutional Court ruling
that the provision of Paragraph 2 of Article 11 of the Law
(wording of 21 December 2000) that the retired officials and
servicemen who, after granting of state pensions of officials
or servicemen for the service or disability pensions of
officials or servicemen, receive the income from which
contributions of state social pensions insurance are calculated
and paid, or who receive sickness (including those paid by the
employer for the days of sickness), maternity, maternity
(paternity) or unemployment benefits of the state social
insurance receive the part of the state pension of officials or
servicemen which amounts to 30 percent of the pension is in
conflict with Article 23 and 52 of the Constitution, the
constitutional principle of a state under the rule of law,
while the provision of Paragraph 2 of Article 11 of the Law
(wording of 21 December 2000) that the retired officials and
servicemen who, after granting of state pensions of officials
or servicemen for the service or disability pensions of
officials or servicemen, receive the income from which
contributions of the state social pensions insurance are
calculated and paid receive the part of the state pension of
officials or servicemen which amounts to 30 percent of the
pension is in conflict with Paragraph 1 of Article 48 of the
Constitution. Having held this, the Constitutional Court in
this case will not investigate whether the disputed provision
of Paragraph 2 of Article 11 of the Law (wording of 21 December
2000) is not in conflict with Article 29 of the Constitution.
IV
On the compliance of the provision of Paragraph 3 of
Article 13 of the Law on the State Pensions of Officials and
Servicemen of the Interior, the Special Investigation Service,
State Security, National Defence, the Prosecutor's Office, the
Department of Prisons and of the Establishments and State
Enterprises Which are Subordinate to the Latter that the
granted state pension of officials and servicemen shall not be
further paid to persons convicted for commission of intentional
crimes with Articles 23 and 29 of the Constitution.
1. The Vilnius Regional Administrative Court, a
petitioner, by its ruling of 31 October 2001 requests to
investigate whether Paragraph 3 of Article 13 of the Law to the
extent which establishes that the payment of the state pension
of officials and servicemen shall be no longer paid for a
person convicted for commission of an intentional crime is not
in conflict with Article 23 of the Constitution.
The Vilnius Regional Administrative Court, a petitioner,
by its ruling of 13 November 2001 requests to investigate
whether the provision of Paragraph 3 of Article 13 of the Law
that the granted state pension of officials and servicemen
shall not be further paid to persons convicted for commission
of intentional crimes is not in conflict with Paragraph 1 of
Article 29 of the Constitution.
2. Paragraph 3 of Article 13 of the Law on the State
Pensions of Officials and Servicemen of the Interior, the
Special Investigation Service, State Security, National
Defence, the Prosecutor's Office, the Department of Prisons and
of the Establishments and State Enterprises Which are
Subordinate to the Latter provides: "The state pension of
officials and servicemen shall not be granted and the payment
of the granted pension shall be no longer paid for persons
convicted for commission of intentional crimes."
3. The provision of Paragraph 3 of Article 13 of the Law
that the granted state pension of officials and servicemen
shall not be further paid to persons convicted for commission
of intentional crimes means that the payment of the granted
pension of officials and servicemen to the person, which was
paid until then, is terminated.
Thus, under the disputed provision of Paragraph 3 of
Article 13 of the Law, the basis for termination of the payment
of granted pension that was paid until then is conviction for
commission of an intentional crime.
4. Crimes are violations of law by which people's
constitutional rights and freedoms and other constitutional
values are violated in the most grossest manner. One of the
means for protection of rights and freedoms of the human being
as well as other constitutional values is criminal liability
for criminal deeds (Constitutional Court ruling of 10 June
2003).
In a state under the rule of law the legislator has the
right as well as the duty to prohibit, by means of law, the
deeds whereby essential damage is inflicted on the interests of
persons, society or the state or it is threatened that such
damage will occur, and to establish, by means of law, sanctions
for commission of such deeds.
5. It needs to be noted that the provision of Paragraph 3
of Article 13 of the Law whereby the payment of the granted
pension is terminated for the person convicted for an
intentional crime is a sanction of property nature, which, by
its strictness, amounts to criminal punishment.
6. Paragraph 5 of Article 31 of the Constitution provides:
"No one may be punished a second time for the same crime."
The provision of Paragraph 5 of Article 31 of the
Constitution reflects the legal principle non bis in idem: the
person may not be punished a second time for the same violation
of law (Constitutional Court ruling of 7 May 2001).
7. Paragraph 3 of Article 13 of the Law has established
the legal regulation whereby in cases when a person has been
granted and paid the state pension of officials and servicemen,
after he is convicted for commission of an intentional crime,
the payment of such pension to him is terminated, i.e. after
this person has already been convicted for commission of the
intentional crime.
The legal regulation established in Paragraph 3 of Article
13 of the Law means that the person who has been granted and
paid the state pension of officials and servicemen, and who has
already been convicted by court for commission of an
intentional crime, is punished a second time for the same crime
by applying a sanction of property nature against him
(termination of the state pension of officials and servicemen
which was granted to him and paid until them), which, by its
strictness, amounts to criminal punishment. Such legal
regulation violates Paragraph 5 of Article 31 of the
Constitution.
8. It has already been held in this Ruling of the
Constitutional Court that the reduction of the granted state
pension of officials and servicemen which was paid until then
is in conflict with Articles 23 and 52 of the Constitution.
Meanwhile, under the legal regulation established in disputed
Paragraph 3 of Article 13 of the Law, the payment of the state
pension of officials and servicemen which was granted and paid
to the person is terminated altogether.
9. Taking account of the arguments set forth, one is to
conclude that the provision of Paragraph 3 of Article 13 of the
Law on the State Pensions of Officials and Servicemen of the
Interior, the Special Investigation Service, State Security,
National Defence, the Prosecutor's Office, the Department of
Prisons and of the Establishments and State Enterprises Which
are Subordinate to the Latter that the granted state pension of
officials and servicemen shall not be further paid to persons
convicted for commission of intentional crimes is in conflict
with Article 23, Paragraph 5 of Article 31 and Article 52 of
the Constitution.
10. Having held that that the provision of Paragraph 3 of
Article 13 of the Law that the granted state pension of
officials and servicemen shall not be further paid to persons
convicted for commission of intentional crimes is in conflict
with Article 23, Paragraph 5 of Article 31 and Article 52 of
the Constitution, in this case the Constitutional Court will
not investigate whether the disputed provision of Paragraph 3
of Article 13 of the Law is not in conflict with Paragraph 1 of
Article 29 of the Constitution.
V
On the compliance of Item 25 (wording of 25 May 2001) of
the Regulations for Granting and Payment of State Pensions of
Officials and Servicemen of the Interior, the Special
Investigation Service, State Security, National Defence, the
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to
the Latter with Paragraph 1 of Article 48, Article 52 of the
Constitution and the constitutional principle of a state under
the rule of law.
1. It was established in Item 25 (wording of 20 January
1995) of the Regulations for Granting and Payment of State
Pensions of Officials and Servicemen of the Systems of the
Interior, State Security, National Defence, and the
Prosecutor's Office: "The officials and servicemen in service
shall not be paid the sate pension of officials and servicemen,
save the pensions of widows and orphans. The amount of the
state pension of officials and servicemen of the officials and
servicemen who repeatedly retired from service, who were
granted the pension prior to 31 December 1994, shall be
computed on the grounds of the new dismissal data. If the
repeatedly computed pension for these persons is smaller than
the one granted until 1 January 1995, the previously granted
pension computed under the procedure established by Article 16
of the law shall be paid."
2. By its Resolution No. 612 "On the Partial Amendment of
Government of the Republic of Lithuania Resolution No. 83 'On
the Approval of the Regulations for Granting and Payment of
State Pensions to Officials and Servicemen of the Systems of
the Interior, State Security, National Defence, the
Prosecutor's Office and the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to
the Latter and the Establishment of the Time of Service
Necessary in Order to Receive a Respective Percentage Extra Pay
for the Years of Service' of 20 January 1995" of 25 May 2001
the Government partially amended Item 25 of the Regulations for
Granting and Payment of State Pensions to Officials and
Servicemen of the Systems of the Interior, State Security,
National 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 and
set forth Item 25 thereof as follows:
"The officials and servicemen in service shall not be paid
the sate pension of officials and servicemen, save the pensions
of widows and orphans.
The officials and servicemen who have retired from
service, who have the insured income (the income considered
insured income is pointed out in Paragraph 2 of Article 11 of
the Law) after they have been granted either the state pension
of officials or servicemen for service, or the state disabled
pension of officials or servicemen, at that month shall be paid
the part of the state pension of officials or servicemen which
amounts to 30 percent of the pension. When the person had the
insured income in the course of not the entire month but only
part of it, the payable 30 percent are to be calculated for
only the period of the month during which the recipient of the
pension had the insured income. For the rest of the period of
the month during which the recipient of the pension did not
have the insured income, the respective part for the given
month of the granted pension is to be paid. The entire granted
pension is paid for the periods when the person, while working
under employment contract, on the basis of membership or
service, temporarily did not have the insured income because he
was not subject to receive the said income (at the time of
holidays without pay, or sickness, when he is not subject to
receive a sickness benefit, etc.). In cases when the amount of
the calculated state pension of the official or serviceman must
be limited under the procedure established in Paragraph 3 of
Article 3 of the Law on State Pensions, the payable 30 percent
are to be calculated from the pension of limited amount which
has to be paid to the official or serviceman. If the official
or serviceman receives, together with the state pension, the
state social insurance pension, the payable 30 percent are
calculated from the state pension of limited amount, the size
of which is established from the last quarter but one preceding
the month for which the state pension is paid by subtracting
the state social insurance pension of the given month, granted
and indexed under procedure established in the Law of State
Social Insurance Pensions from the 1.5 amount sum of the
minimum monthly salary in the economy of this country,
announced by the Department of Statistics under the Government
of the Republic of Lithuania. Under the same procedure and
conditions the pensions for service and disabled pensions
granted prior to 1 January 1995 are to be paid (without taking
into consideration whether they have been recalculated under
Article 16 of the Law), if the recipients of these pensions
received the insured income at that month, by taking account of
the number of calendar days of the period during which they had
the insured income. The recipient of the pension of the
official or serviceman must, within 10 days of the reception of
the income of the occurrence of the other circumstances, inform
the institution which pays the pension about his insured income
and other circumstances (conviction, amount of the state social
insurance pension, changes in the amount, etc.) which influence
the amount and payment of the pension. The recipient of the
pension confirms the fact of the reception of the insured
income upon presenting his social insurance certificate, and
the person who does not have it produces his labour record
book. The fact of reception of sickness, maternity, maternity
(paternity), unemployment benefits is proved by respective
certificates issued by the employer, territorial divisions of
the Board of the State Social Insurance Fund or the labour
exchange, indicating the period of the payment of the said
benefits. In case of failure to duly inform about this income
or other circumstances and due to this there is overpayment in
the pension, the sum of the overpaid pension shall be exacted
from the recipient of the pension under the procedure
established in Paragraph 4 of Article 11 of the Law, Paragraph
2 of Article 42 of the Law on State Social Insurance Pensions
(Official Gazette Valstybės žinios, 1994, No. 59-1153; 1999,
No. 66-2115) and Item 75 of Government of the Republic of
Lithuania Resolution No. 1156 'On the Approval of the
Regulations for Granting and Paying of State Social Insurance
Pensions' of 18 November 1994 (Official Gazette Valstybės
žinios, 1994, No. 91-1781).
The amount of the state pension of officials and
servicemen of the officials and servicemen who repeatedly
retired from service, who were granted the pension prior to 31
December 1994, shall be computed on the grounds of the new
dismissal data. If the repeatedly computed pension for these
persons is smaller than the one granted until 1 January 1995,
the previously granted pension computed under the procedure
established by Article 16 of the law shall be paid."
3. The Vilnius Regional Administrative Court, the
petitioner, by its ruling of 18 September 2001 requests to
investigate whether Item 25 of the Regulations is not in
conflict with the constitutional principles of a just,
harmonious civil society and state under the rule of law
entrenched in the Preamble to the Constitution as well as with
Paragraph 1 of Article 48, Article 52 of the Constitution.
Although the petitioner requests to investigate whether
entire Item 25 of the Regulations is not in conflict with the
Constitution, however, it is clear from the arguments set forth
in the ruling that the petitioner doubts as to the compliance
of not entire Item 25 of the Regulations but of the provision
"the officials and servicemen who have retired from service,
who have the insured income (the income considered insured
income is pointed out in Paragraph 2 of Article 11 of the Law)
after they have been either granted either the state pension of
officials or servicemen for service or the state disabled
pension of officials or servicemen, at that month shall be paid
the part of the state pension of officials or servicemen which
amounts to 30 percent of the pension" of Section 2 of the same
item with the Constitution. The Constitutional Court will
investigate the compliance of only this provision with the
Constitution.
4. When deciding whether the disputed provision of Section
2 of Item 25 of the Regulations is not in conflict with the
Constitution, one is to note that it sets down a rule that the
officials and servicemen who have retired from service, who
have the insured income (the income considered insured income
is pointed out in Paragraph 2 of Article 11 of the Law) after
they have been granted either the state pension of officials or
servicemen for service, or the state disabled pension of
officials or servicemen, at that month shall be paid the part
of the state pension of officials or servicemen which amounts
to 30 percent of the pension. Virtually identical legal
regulation has been established in the provision "retired
officials and servicemen who, after designation of state
pensions of officials or servicemen for the service or
disability pensions of officials or servicemen, receive the
income from which contributions of state social pensions
insurance are calculated and paid, or who receive sickness
(including those paid by the employer for the days of
sickness), maternity, maternity (paternity) or unemployment
benefits of the state social insurance <...> shall receive the
part of the state pension of officials or servicemen which
amounts to 30 percent of the pension" of Paragraph 2 of Article
11 of the Law.
5. It has been held in this Ruling of the Constitutional
Court that:
1) the provision "retired officials and servicemen who,
after granting of state pensions of officials or servicemen for
the service or disability pensions of officials or servicemen,
receive the income from which contributions of state social
pensions insurance are calculated and paid, or who receive
sickness (including those paid by the employer for the days of
sickness), maternity, maternity (paternity) or unemployment
benefits of the state social insurance <...>, shall receive the
part of the state pension of officials or servicemen which
amounts to 30 percent of the pension" of Paragraph 2 of Article
11 of the Law (wording of 21 December 2000) is in conflict with
Article 52 of the Constitution and the constitutional principle
of a state under the rule of law;
2) the provision "retired officials and servicemen who,
after granting of state pensions of officials or servicemen for
the service or disability pensions of officials or servicemen,
receive the income from which contributions of state social
pensions insurance are calculated and paid <...>, shall receive
the part of the state pension of officials or servicemen which
amounts to 30 percent of the pension" of Paragraph 2 of Article
11 of the Law (wording of 21 December 2000) is in conflict with
Paragraph 1 of Article 48 of the Constitution.
Having held this, one is to hold that the provision "the
officials and servicemen who have retired from service, who
have the insured income (the income considered insured income
is pointed out in Paragraph 2 of Article 11 of the Law) after
they have been either granted the state pension of officials or
servicemen for service, or the state disabled pension of
officials or servicemen, at that month shall be paid the part
of the state pension of officials or servicemen which amounts
to 30 percent of the pension" of Section 2 of Item 25 of the
Regulations (wording of 25 May 2001) is in conflict with
Article 52, Paragraph 1 of Article 48 of the Constitution as
well as the constitutional principle of a state under the rule
of law.
VI
On the compliance of Item 5 of the Regulations for
Granting and Payment of State Pensions of Officials and
Servicemen of the Interior, the Special Investigation Service,
State Security, National Defence, the Prosecutor's Office, the
Department of Prisons and of the Establishments and State
Enterprises Which are Subordinate to the Latter with Item 1 of
Paragraph 4 of Article 16 of the Law on the State Pensions of
Officials and Servicemen of the Interior, the Special
Investigation Service, State Security, National Defence, the
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to
the Latter.
1. After the restoration of the independent State of
Lithuania on 11 March 1990, the system of the interior was
reformed. In the course of the reform, one attempted to further
ensure public order and security of society. On 21 March 1990,
the Supreme Council of the Republic of Lithuania adopted an
appeal to employees of institutions of the interior asking that
every citizen of the Republic of Lithuania, irrespective of his
nationality or world-view, who has work experience in
institutions of the interior, who is ready to swear loyalty to
Lithuania and serve it, should continue to conscientiously
perform his duties. In the appeal of the Supreme Council it was
said that "the social guarantees for employees of the interior
will be preserved: pensions will be paid regardless of the fact
in which state the service has been performed, the acquired
official rank will be retained, the minimum salary of the
official will exceed the minimum salary in the Republic."
The time of service of officials and servicemen necessary
to receive the state pension of officials and soldiers had been
established, before the adoption of the Law, by Government
Resolution No. 490 "On the Pensionary Maintenance of Officials
and Servicemen of the System of the Interior" of 25 June 1992
and Government Resolution No. 865 "On the Pensionary
Maintenance of Officials and Servicemen of the System of
National Defence" of 19 November 1992. Under Items 1.1.3 of the
said resolutions, the period of service necessary to receive a
pension for the years of service includes the time of service
in the armed forces of the USSR and other states, the USSR
Border Guard and the system of the interior.
2. On 13 December 1994, the Law on the State Pensions of
Officials and Servicemen of the Interior, State Security,
National Defence, and the Prosecutor's Office which went into
effect on 1 January 1995. This law provided as to what persons
the state pension of officials and servicemen is granted and
paid, also the grounds and conditions for granting and paying
of these pensions as well as the amounts of these pensions.
Paragraph 4 of Article 16 of the Law inter alia provided:
"To the persons admitted to service as officials and
servicemen of the interior, state security, national defence
and prosecutor's office of the Republic of Lithuania, the
following periods that had been prior to the entry into effect
of this Law shall be equalled to the time of service necessary
to grant the pension:
1) actual time period of service in the armed forces,
border guard service, the interior and other services (save the
service in extermination squads and battalions) of other
states-under procedure established by the Government of the
Republic of Lithuania."
The formula "under procedure established by the Government
of the Republic of Lithuania" means, inter alia, that by the
aforesaid law the Government was commissioned to establish a
procedure under which the periods that had been prior to the
entry of the Law into effect during which the said persons
actually served in the armed forces, border guard service, the
interior and other services (save the service in extermination
squads and battalions) of other states would be equalled to the
time of service necessary to grant the pension of officials and
servicemen to these persons.
3. By Government Resolution No. 83 "On the Approval of the
Regulations for Granting and Payment of State Pensions to
Officials and Servicemen of the Systems of the Interior, State
Security, National Defence and Prosecutor's Office and the
Establishment of the Time of Service Necessary in Order to
Receive a Respective Percentage Extra Pay for the Years of
Service" of 20 January 1995 the Regulations for Granting and
Payment of State Pensions to Officials and Servicemen of the
Systems of the Interior, State Security, National Defence and
Prosecutor's Office were approved. Item 5 of these regulations
provides: "The time period of service specified in Article 16
of the law shall be included to officials and servicemen
admitted to the service in the systems of the interior, state
security, national defence, and prosecutor's office before the
day of the entry into force of the law."
These regulations have been amended and/or supplemented
for many a time, but Item 5 thereof has remained unchanged.
4. The Supreme Administrative Court of Lithuania, the
petitioner, requests to investigate whether "Item 5 of the
Regulations for Granting and Payment of State Pensions of
Officials and Servicemen of the Interior, the Special
Investigation Service, State Security, National Defence, the
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to
the Latter as approved by Government of the Republic of
Lithuania Resolution No. 83 'On the Approval of the Regulations
for Granting and Payment of State Pensions to Officials and
Servicemen of the Systems of the Interior, State Security,
National 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 not in conflict with Item 1 of Paragraph 4 of
Article 16 of the Republic of Lithuania Law on the State
Pensions of Officials and Servicemen of the Interior, the
Special Investigation Service, State Security, National
Defence, the Prosecutor's Office, the Department of Prisons and
of the Establishments and State Enterprises Which are
Subordinate to the Latter (13 December 1994. No. I-693)".
In the opinion of the petitioner, after it was established
in Item 5 of the Regulations for Granting and Payment of State
Pensions of Officials and Servicemen of the Interior, State
Security, National Defence, and the Prosecutor's Office as
approved by Government of the Republic of Lithuania Resolution
No. 83 of 20 January 1995 that the time of service pointed out
in Item 1 of Paragraph 4 (wording of 13 December 1994) of
Article 16 of the Law on the State Pensions of Officials and
Servicemen of the Interior, State Security, National Defence,
and the Prosecutor's Office is included to the officials and
servicemen adopted into service in the structures specified in
the Law until the day of entry into effect of the said law,
i.e. 1 January 1995, the circle of persons, whose service
record could include the time period specified in Item 1 of
Paragraph 4 of Article 16 of the Law, is thus narrowed if
compared with that provided for in the Law.
5. While deciding whether Item 5 of the Regulations is not
in conflict with Item 1 of Paragraph 4 (wording of 13 December
1994) of Article 16 of the Law on the State Pensions of
Officials and Servicemen of the Interior, State Security,
National Defence, and the Prosecutor's Office, it is necessary
to elucidate for which persons the periods that had been before
the entry of the said law into effect are, under Item 1 of
Paragraph 4 (wording of 13 December 1994) of Article 16 of the
said law, equalled to the time of service necessary for
granting the pension.
6. The formula "the persons admitted to service as
officials and servicemen of the interior, state security,
national defence and prosecutor's office of the Republic of
Lithuania" includes all the officials and servicemen admitted
to service in the institutions of the Republic of Lithuania
which are indicated by the Law irrespective of whether they
were admitted to service before the Law went into effect on 1
January 1995 or after it went into effect.
7. If one compares the legal regulation established in
Item 5 of the Regulations for Granting and Payment of State
Pensions of Officials and Servicemen of the Interior, State
Security, National Defence, and the Prosecutor's Office as
approved by Government Resolution No. 83 of 20 January 1995
with that established in Paragraph 4 of Article 16 (wording of
13 December 1994) of the Law on the State Pensions of Officials
and Servicemen of the Interior, State Security, National
Defence, the Prosecutor's Office, one notices that Item 5 of
the said regulations establishes an additional condition for
the persons to whom the time of service indicated in Paragraph
4 of Article 16 of the Law is included, which is not provided
for in the Law, i.e. they had to be admitted to service prior
to the day of entry into effect of the said law. After such a
condition had been established, the Regulations narrowed the
circle of persons to whom the time of service indicated in
Paragraph 4 (wording of 13 December 1994) of Article 16 of the
Law is included.
Thus, in Item 5 of the Regulations the Government
established the legal regulation which competes with the
provision of Paragraph 4 (wording of 13 December 1994) of
Article 16 of the Law whereby to the persons admitted to
service as officials and servicemen of the interior, state
security, national defence and prosecutor's office of the
Republic of Lithuania the actual time period of service in the
armed forces, border guard service, the interior and other
services (save the service in extermination squads and
battalions) of other states, which had been prior to the entry
into effect of this law, shall, under procedure established by
the Government, be equalled to the time of service necessary to
grant the pension.
8. The Constitutional Court has stated in its rulings for
more than once that under the Constitution the Government
Resolution is a substatutory legal act, it cannot be in
conflict with the law, change the content of the norms of the
law, it may not contain any such legal norms which would
compete with those of the law. The Government can only
establish the legal regulation which is in conformity with
laws. The procedure established by the Government may not
contain any legal norms establishing different legal regulation
than that established in the law and competing with norms of
laws.
9. Taking account of the arguments set forth above, one is
to conclude that Item 5 of the Regulations for Granting and
Payment of State Pensions of Officials and Servicemen of the
Interior, State Security, National Defence, and the
Prosecutor's Office, as approved by Government Resolution No.
83 "On the Approval of the Regulations for Granting and Payment
of State Pensions to Officials and Servicemen of the Systems of
the Interior, State Security, National 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 is in conflict with the
provision of Paragraph 4 (wording of 13 December 1994) of
Article 16 of the Law on the State Pensions of Officials and
Servicemen of the Interior, State Security, National Defence
and the Prosecutor's Office that to the persons admitted to
service as officials and servicemen of the interior, state
security, national defence and prosecutor's office of the
Republic of Lithuania the actual time period of service in the
armed forces, border guard service, the interior and other
services (save the service in extermination squads and
battalions) of other states, which had been prior to the entry
into effect of this law, shall, under procedure established by
the Government, be equalled to the time of service necessary to
grant the pension.
10. The provision "to the persons admitted to service as
officials and servicemen of the interior, state security,
national defence and prosecutor's office of the Republic of
Lithuania, the following periods that had been prior to the
entry into effect of this Law shall be equalled to the time of
service necessary to grant the pension" of the 13 December 1994
Law on the State Pensions of Officials and Servicemen of the
Interior, State Security, National Defence, and the
Prosecutor's Office has been amended and/or supplemented more
than once.
By Paragraph 2 of Article 6 of the Republic of Lithuania
Law on the Supplement and Amendment of the Title, Articles 1,
3, 6, 12, and 16 of the Law on the State Pensions of Officials
and Servicemen of the Interior, State Security, National
Defence, and the Prosecutor's Office, which was adopted on 18
April 2000, the aforementioned provision of Paragraph 4
(wording of 13 December 1994) of Article 16 of the Law on the
State Pensions of Officials and Servicemen of the Interior,
State Security, National Defence, and the Prosecutor's Office
was supplemented with the words "the Department of Prisons and
of the establishments and state enterprises which are
subordinate to the latter". By Article 1 of the Law on the
Supplement and Amendment of the Title, Articles 1, 3, 6, 12,
and 16 of the Law on the State Pensions of Officials and
Servicemen of the Interior, the Special Investigation Service,
State Security, National Defence, and the Prosecutor's Office
the title of the Law on the State Pensions of Officials and
Servicemen of the Interior, State Security, National Defence,
and the Prosecutor's Office was amended and titled the Republic
of Lithuania Law on the State Pensions of Officials and
Servicemen of the Interior, State Security, National Defence,
the Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to
the Latter.
By Paragraph 2 of Article 6 of the Republic of Lithuania
Law on the Supplement and Amendment of the Title, Articles 1,
3, 6, 12, and 16 of the Law on the State Pensions of Officials
and Servicemen of the Interior, State Security, National
Defence, and the Prosecutor's Office, which was adopted on 2
May 2000, in the provision "to the persons admitted to service
as officials and servicemen of the interior, state security,
national defence, prosecutor's office and the Department of
Prisons and of the establishments and state enterprises which
are subordinate to the latter, the following periods that had
been prior to the entry into effect of this Law shall be
equalled to the time of service necessary to grant the pension"
of the Law on the State Pensions of Officials and Servicemen of
the Interior, State Security, National Defence, the
Prosecutor's Office and the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to
the Latter (wording of 18 April 2000) the words "Special
Investigation Service" were entered, the words "the Department
of Prisons and of the establishments and state enterprises
which are subordinate to the latter" were crossed out and this
provision was set forth as follows: "to the persons admitted to
service as officials and servicemen of the interior, the
Special Investigation Service, state security, national
defence, and prosecutor's office, the following periods that
had been prior to the entry into effect of this law, shall be
equalled to the time of service necessary to grant the
pension". By Article 1 of the Law on the Supplement and
Amendment of the Title, Articles 1, 3, 6, 12, and 16 of the Law
on the State Pensions of Officials and Servicemen of the
Interior, State Security, National Defence, and the
Prosecutor's Office, the title of the Law on the State Pensions
of Officials and Servicemen of the Interior, State Security,
National Defence, and the Prosecutor's Office was changed-it
was titled the Republic of Lithuania Law on the State Pensions
of Officials and Servicemen of the Interior, the Special
Investigation Service, State Security, National Defence, and
the Prosecutor's Office.
By Paragraph 2 of Article 6 of the Republic of Lithuania
Law on the Supplement and Amendment of the Title, Articles 1,
3, 6, 12, and 16 of the Law on the State Pensions of Officials
and Servicemen of the Interior, the Special Investigation
Service, State Security, National Defence, and the Prosecutor's
Office, which was adopted on 13 July 2000, in the provision "to
the persons admitted to service as officials and servicemen of
the interior, the Special Investigation Service, state
security, national defence and prosecutor's office the
following periods that had been prior to the entry into effect
of this law shall be equalled to the time of service necessary
to grant the pension" of Paragraph 4 of Article 16 (wording of
2 May 2000) of the Law on the State Pensions of Officials and
Servicemen of the Interior, the Special Investigation Service,
State Security, National Defence, and the Prosecutor's Office
the words "the Department of Prisons and of the establishments
and state enterprises which are subordinate to the latter" were
entered and this provision was set forth as follows: "to the
persons admitted to service as officials and servicemen of the
interior, state security, national defence, prosecutor's
office, the Special Investigation Service, and the Department
of Prisons and of the establishments and state enterprises
which are subordinate to the latter, the following periods that
had been prior to the entry into effect of this law shall be
equalled to the time of service necessary to grant the
pension". By Article 1 of Law on the Supplement and Amendment
of the Title, Articles 1, 3, 6, 12, and 16 of the Law on the
State Pensions of Officials and Servicemen of the Interior, the
Special Investigation Service, State Security, National
Defence, and the Prosecutor's Office, the title of the Law on
the State Pensions of Officials and Servicemen of the Interior,
the Special Investigation Service, State Security, National
Defence, and the Prosecutor's Office was changed-it was titled
the Republic of Lithuania Law on the State Pensions of
Officials and Servicemen of the Interior, the Special
Investigation Service, State Security, National Defence, the
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to
the Latter.
By the aforesaid amendments and supplements to the
provision "to the persons admitted to service as officials and
servicemen of the interior, state security, national defence
and prosecutor's office of the Republic of Lithuania, the
following periods that had been prior to the entry into effect
of this Law shall be equalled to the time of service necessary
to grant the pension" of Paragraph 4 of Article 16 of the 13
December 1994 Law on the State Pensions of Officials and
Servicemen of the Interior, State Security, National Defence,
and the Prosecutor's Office and its subsequent wordings the
established rule, by which under procedure established by the
Government to the persons admitted to service as officials and
servicemen in the institutions (systems) indicated in this
provision, the actual time period of service in the armed
forces, border guard service, the interior and other services
(save the service in extermination squads and battalions) of
other states is equalled to the time of service necessary to
grant the pension regardless of the fact whether these persons
were admitted to service before the entry into effect of the
said law on 1 January 1995, or after it has gone into effect,
has remained unchanged.
11. By Item 1.4.1 of Government Resolution No. 861 "On the
Partial Amendment of Government of the Republic of Lithuania
Resolution No. 83 'On the Approval of the Regulations for
Granting and Payment of State Pensions to Officials and
Servicemen of the Systems of the Interior, State Security,
National Defence and Prosecutor's Office and the Establishment
of the Time of Service Necessary in Order to Receive a
Respective Percentage Extra Pay for the Years of Service' of 20
January 1995" of 18 July 2000, the title of the regulations as
approved by Government Resolution No. 83 of 20 January 1995 was
changed: they were titled the Regulations for Granting and
Payment of State Pensions of Officials and Servicemen of the
Interior, the Special Investigation Service, State Security,
National Defence, the Prosecutor's Office, the Department of
Prisons and of the Establishments and State Enterprises Which
are Subordinate to the Latter.
12. The Constitutional Court has held that in cases when a
Government resolution containing legal norms which are in
conflict with the law was adopted prior to the adoption of the
law, such a Government Resolution must be coordinated with the
norms of the subsequently adopted law (Constitutional Court
rulings of 5 April 2000 and 19 February 2002).
13. In this Constitutional Court Ruling it was held that
Item 5 of the Regulations for Granting and Payment of State
Pensions of Officials and Servicemen of the Systems of the
Interior, State Security, National Defence, and the
Prosecutor's Office as approved by Government Resolution No. 83
"On the Approval of the Regulations for Granting and Payment of
State Pensions to Officials and Servicemen of the Systems of
the Interior, State Security, National 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 is in conflict with the
provision of Paragraph 4 (wording of 13 December 1994) of
Article 16 of the Law on the State Pensions of Officials and
Servicemen of the Interior, State Security, National Defence
and the Prosecutor's Office that to the persons admitted to
service as officials and servicemen of the interior, state
security, national defence and prosecutor's office of the
Republic of Lithuania the actual time period of service in the
armed forces, border guard service, the interior and other
services (save the service in extermination squads and
battalions) of other states, which had been prior to the entry
into effect of this law, shall, under procedure established by
the Government, be equalled to the time of service necessary to
grant the pension.
Also, it must be held that although the aforesaid
regulations have been amended for many a time, Item 5 thereof
has remained unchanged.
Having held this, one is to hold that Item 5 of the
Regulations for Granting and Payment of State Pensions of
Officials and Servicemen of the Systems of the Interior, State
Security, National Defence, and the Prosecutor's Office as
approved by Government Resolution No. 83 "On the Approval of
the Regulations for Granting and Payment of State Pensions to
Officials and Servicemen of the Systems of the Interior, State
Security, National 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 is in conflict with:
1) the provision of Paragraph 4 of Article 16 (wording of
18 April 2000) of the Law on the State Pensions of Officials
and Servicemen of the Interior, State Security, National
Defence, the Prosecutor's Office, the Department of Prisons and
of the Establishments and State Enterprises Which are
Subordinate to the Latter that to the persons admitted to
service as Republic of Lithuania officials and servicemen of
the interior, state security, national defence, prosecutor's
office and the Department of Prisons and of the establishments
and state enterprises which are subordinate to the latter the
actual time period of service in the armed forces, border guard
service, the interior and other services (save the service in
extermination squads and battalions) of other states, which had
been prior to the entry into effect of this law, shall, under
procedure established by the Government, be equalled to the
time of service necessary to grant the pension.
2) the provision of Paragraph 4 of Article 16 (wording of
2 May 2000) of the Law on the State Pensions of Officials and
Servicemen of the Interior, the Special Investigation Service,
State Security, National Defence, and the Prosecutor's Office,
that to the persons admitted to service as Republic of
Lithuania officials and servicemen of the interior, state
security, national defence, and prosecutor's office the actual
time period of service in the armed forces, border guard
service, the interior and other services (save the service in
extermination squads and battalions) of other states, which had
been prior to the entry into effect of this law, shall, under
procedure established by the Government, be equalled to the
time of service necessary to grant the pension.
On the grounds of the same arguments, one is to hold that
Item 5 of the Regulations for Granting and Payment of State
Pensions of Officials and Servicemen of the Systems of the
Interior, State Security, National Defence, and the
Prosecutor's Office, as approved by Government Resolution No.
83 "On the Approval of the Regulations for Granting and Payment
of State Pensions to Officials and Servicemen of the Systems of
the Interior, State Security, National 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, and which by Item 1.4.1
of Government Resolution No. 861 "On the Partial Amendment of
Government of the Republic of Lithuania Resolution No. 83 'On
the Approval of the Regulations for Granting and Payment of
State Pensions to Officials and Servicemen of the Systems of
the Interior, State Security, National Defence and Prosecutor's
Office and the Establishment of the Time of Service Necessary
in Order to Receive a Respective Percentage Extra Pay for the
Years of Service' of 20 January 1995" of 18 July 2000 were
titled the Regulations for Granting and Payment of State
Pensions of Officials and Servicemen of the Interior, the
Special Investigation Service, State Security, National
Defence, the Prosecutor's Office, the Department of Prisons and
of the Establishments and State Enterprises Which are
Subordinate to the Latter, is in conflict with the provision of
Paragraph 4 of Article 16 (wording of 13 July 2000) of the Law
on the State Pensions of Officials and Servicemen of the
Interior, the Special Investigation Service, State Security,
National Defence, the Prosecutor's Office, the Department of
Prisons and of the Establishments and State Enterprises Which
are Subordinate to the Latter that to the persons admitted to
service as officials and servicemen of the system of the
interior, state security, national defence, prosecutor's
office, the Special Investigation Service, and the Department
of Prisons and of the establishments and state enterprises
which are subordinate to the latter the actual time period of
service in the armed forces, border guard service, the interior
and other services (save the service in extermination squads
and battalions) of other states, which had been prior to the
entry into effect of this law, shall, under procedure
established by the Government, be equalled to the time of
service necessary to grant the pension.
Conforming to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Articles 1, 53, 54, 55 and 56 of
the Law on the Constitutional Court of the Republic of
Lithuania, the Constitutional Court of the Republic of
Lithuania has passed the following
ruling:
1. To recognise that the provision "retired officials and
servicemen who, after granting of state pensions of officials
or servicemen for the service or disability pensions of
officials or servicemen, receive the income from which
contributions of state social pensions insurance are calculated
and paid, or who receive sickness (including those paid by the
employer for the days of sickness), maternity, maternity
(paternity) or unemployment benefits of the state social
insurance <...>, shall receive the part of the state pension of
officials or servicemen which amounts to 30 percent of the
pension" of Paragraph 2 of Article 11 (wording of 21 December
2000) of the Republic of Lithuania Law on the State Pensions of
Officials and Servicemen of the Interior, the Special
Investigation Service, State Security, National Defence, the
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to
the Latter is in conflict with Article 23, Article 52 of the
Constitution of the Republic of Lithuania and the
constitutional principle of a state under the rule of law.
2. To recognise that the provision "retired officials and
servicemen who, after granting of state pensions of officials
or servicemen for the service or disability pensions of
officials or servicemen, receive the income from which
contributions of state social pensions insurance are calculated
and paid <...>, shall receive the part of the state pension of
officials or servicemen which amounts to 30 percent of the
pension" of Paragraph 2 of Article 11 (wording of 21 December
2000) of the Republic of Lithuania Law on the State Pensions of
Officials and Servicemen of the Interior, the Special
Investigation Service, State Security, National Defence, the
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to
the Latter is in conflict with Paragraph 1 of Article 48 of the
Constitution of the Republic of Lithuania.
3. To recognise that Paragraph 3 of Article 13 of the
Republic of Lithuania Law on the State Pensions of Officials
and Servicemen of the Interior, the Special Investigation
Service, State Security, National Defence, the Prosecutor's
Office, the Department of Prisons and of the Establishments and
State Enterprises Which are Subordinate to the Latter that the
granted state pension of officials and servicemen shall not be
further paid to persons convicted for commission of intentional
crimes is in conflict with Article 23, Paragraph 5 of Article
31 and Article 52 of the Constitution of the Republic of
Lithuania.
4. To recognise that the provision "the officials and
servicemen who have retired from service, who have the insured
income (the income considered insured income is pointed out in
Paragraph 2 of Article 11 of the law) after they have been
granted either the state pension of officials or servicemen for
service, or the state disabled pension of officials or
servicemen, at that month shall be paid the part of the state
pension of officials or servicemen which amounts to 30 percent
of the pension" of Section 2 of Item 25 (wording of 25 May
2001) of the Regulations for Granting and Payment of State
Pensions of Officials and Servicemen of the Interior, the
Special Investigation Service, State Security, National
Defence, the Prosecutor's Office, the Department of Prisons and
of the Establishments and State Enterprises Which are
Subordinate to the Latter as approved by Government of the
Republic of Lithuania Resolution No. 83 of 20 January 1995 is
in conflict with Paragraph 1 of Article 48 and Article 52 of
the Constitution as well as the constitutional principle of a
state under the rule of law.
5. To recognise that Item 5 of the Regulations for
Granting and Payment of State Pensions of Officials and
Servicemen of the System of the Interior, State Security,
National Defence, and the Prosecutor's Office as approved by
Government of the Republic of Lithuania Resolution No. 83 "On
the Approval of the Regulations for Granting and Payment of
State Pensions to Officials and Servicemen of the Systems of
the Interior, State Security, National 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 is in conflict with the
provision of Paragraph 4 (wording of 13 December 1994) of
Article 16 of the Republic of Lithuania Law on the State
Pensions of Officials and Servicemen of the Interior, State
Security, National Defence and the Prosecutor's Office that to
the persons admitted to service as officials and servicemen of
the interior, state security, national defence and prosecutor's
office of the Republic of Lithuania the actual time period of
service in the armed forces, border guard service, the interior
and other services (save the service in extermination squads
and battalions) of other states, which had been prior to the
entry into effect of this law, shall, under procedure
established by the Government, be equalled to the time of
service necessary to grant the pension.
6. To recognise that Item 5 of the Regulations for
Granting and Payment of State Pensions of Officials and
Servicemen of the Systems of the Interior, State Security,
National Defence, and the Prosecutor's Office as approved by
Government of the Republic of Lithuania Resolution No. 83 "On
the Approval of the Regulations for Granting and Payment of
State Pensions to Officials and Servicemen of the Systems of
the Interior, State Security, National 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 is in conflict with the
provision of Paragraph 4 (wording of 18 April 2000) of Article
16 of the Republic of Lithuania Law on the State Pensions of
Officials and Servicemen of the Interior, State Security,
National Defence, the Prosecutor's Office, the Department of
Prisons and of the Establishments and State Enterprises Which
are Subordinate to the Latter that to the persons admitted to
service as officials and servicemen of the interior, state
security, national defence and prosecutor's office of the
Republic of Lithuania the actual time period of service in the
armed forces, border guard service, the interior and other
services (save the service in extermination squads and
battalions) of other states, which had been prior to the entry
into effect of this law, shall, under procedure established by
the Government, be equalled to the time of service necessary to
grant the pension.
7. To recognise that Item 5 of the Regulations for
Granting and Payment of State Pensions of Officials and
Servicemen of the Systems of the Interior, State Security,
National Defence, and the Prosecutor's Office as approved by
Government of the Republic of Lithuania Resolution No. 83 "On
the Approval of the Regulations for Granting and Payment of
State Pensions to Officials and Servicemen of the Systems of
the Interior, State Security, National 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 is in conflict with the
provision of Paragraph 4 (wording of 2 May 2000) of Article 16
of the Republic of Lithuania Law on the State Pensions of
Officials and Servicemen of the Interior, the Special
Investigation Service, State Security, National Defence and the
Prosecutor's Office that to the persons admitted to service as
officials and servicemen of the interior, state security,
national defence and prosecutor's office of the Republic of
Lithuania the actual time period of service in the armed
forces, border guard service, the interior and other services
(save the service in extermination squads and battalions) of
other states, which had been prior to the entry into effect of
this law, shall, under procedure established by the Government,
be equalled to the time of service necessary to grant the
pension.
8. To recognise that Item 5 of the Regulations for
Granting and Payment of State Pensions of Officials and
Servicemen of the Systems of the Interior, State Security,
National Defence, and the Prosecutor's Office as approved by
Government of the Republic of Lithuania Resolution No. 83 "On
the Approval of the Regulations for Granting and Payment of
State Pensions to Officials and Servicemen of the Systems of
the Interior, State Security, National 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, and which by Item 1.4.1
of Government of the Republic of Lithuania Resolution No. 861
"On the Partial Amendment of Government of the Republic of
Lithuania Resolution No. 83 'On the Approval of the Regulations
for Granting and Payment of State Pensions to Officials and
Servicemen of the Systems of the Interior, State Security,
National Defence and Prosecutor's Office and the Establishment
of the Time of Service Necessary in Order to Receive a
Respective Percentage Extra Pay for the Years of Service' of 20
January 1995" of 18 July 2000 were titled the Regulations for
Granting and Payment of State Pensions of Officials and
Servicemen of the Interior, the Special Investigation Service,
State Security, National Defence, the Prosecutor's Office, the
Department of Prisons and of the Establishments and State
Enterprises Which are Subordinate to the Latter, is in conflict
with the provision of Paragraph 4 of Article 16 (wording of 13
July 2000) of the Republic of Lithuania Law on the State
Pensions of Officials and Servicemen of the Interior, the
Special Investigation Service, State Security, National
Defence, the Prosecutor's Office, and the Department of Prisons
and of the Establishments and State Enterprises Which are
Subordinate to the Latter that to the persons admitted to
service as officials and servicemen of the system of the
interior, state security, national defence, prosecutor's
office, the Special Investigation Service, and the Department
of Prisons and of the establishments and state enterprises
which are subordinate to the latter the actual time period of
service in the armed forces, border guard service, the interior
and other services (save the service in extermination squads
and battalions) of other states, which had been prior to the
entry into effect of this law, shall, under procedure
established by the Government, be equalled to the time of
service necessary to grant the pension.
This Constitutional Court ruling is final and not subject
to appeal.
The ruling 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