Lietuviškai
Case No. 44/01
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF
LITHUANIA
RULING
ON THE COMPLIANCE OF ITEM 1 OF RESOLUTION OF THE SUPREME
COUNCIL OF THE REPUBLIC OF LITHUANIA NO. I-619 "ON APPLICATION
OF THE REPUBLIC OF LITHUANIA LAW ON INDIVIDUAL INCOME SECURITY"
OF 27 SEPTEMBER 1990, AS WELL AS ON THE COMPLIANCE OF ITEM
6.1.1 (WORDING OF 6 NOVEMBER 1996), ITEM 6.1.4 (WORDING OF 6
NOVEMBER 1996), ITEM 6.1.5 (WORDING OF 6 NOVEMBER 1996), ITEM 7
(WORDING OF 6 NOVEMBER 1996), AND ITEM 9 OF THE REGULATIONS ON
GRANTING THE SOCIAL ALLOWANCE AND PAYMENT THEREOF AS APPROVED
BY GOVERNMENT OF THE REPUBLIC OF LITHUANIA RESOLUTION NO. 808
"ON THE APPROVAL OF THE REGULATIONS ON GRANTING A SOCIAL
ALLOWANCE AND PAYMENT THEREOF" OF 5 JULY 1996, AS WELL AS ON
THE COMPLIANCE OF ITEM 5.1.1, ITEM 5.1.7 (WORDINGS OF 17 APRIL
2000 AND 14 JULY 2000), ITEM 5.1.8 (WORDINGS OF 17 APRIL 2000
AND 14 JULY 2000), ITEMS 5.4, 5.5.2 AND 9 OF THE REGULATIONS ON
GRANTING THE SOCIAL ALLOWANCE AND PAYMENT THEREOF AS APPROVED
BY GOVERNMENT OF THE REPUBLIC OF LITHUANIA RESOLUTION NO. 441
"ON THE APPROVAL OF THE REGULATIONS ON GRANTING THE SOCIAL
ALLOWANCE AND PAYMENT THEREOF" OF 17 APRIL 2000 WITH THE
CONSTITUTION OF THE REPUBLIC OF LITHUANIA AND PARAGRAPH 1 OF
ARTICLE 10 (WORDING OF 3 NOVEMBER 1994) OF THE REPUBLIC OF
LITHUANIA LAW ON INDIVIDUAL INCOME SECURITY
5 March 2004
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Armanas
Abramavičius, 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 representatives of the Government
of the Republic of Lithuania, the party concerned, who were
Aldona Karčiauskienė, the Head of Family Assistance Division at
the Ministry of Social Security and Labour of the Republic of
Lithuania, and Vida Marija Zabarauskienė, the Head of Law and
Personnel Division at the same Ministry,
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 24
February 2004 in its public hearing heard Case No. 44/01 which
originated in the petition of the Supreme Administrative Court
of Lithuania, the petitioner, requesting to investigate as to
whether:
1) Item 6.1.1 (wording of 6 November 1996), Item 6.1.4
(wording of 6 November 1996), Item 6.1.5 (wording of 6 November
1996), Item 7 (wording of 6 November 1996), and Item 9 of the
Regulations on Granting the Social Allowance and Payment
Thereof as approved by Government of the Republic of Lithuania
Resolution No. 808 "On the Approval of the Regulations on
Granting the Social Allowance and Payment Thereof" of 5 July
1996 to the extent that they established additional conditions
and limitations on receipt of the social allowance, in
comparison to Paragraph 1 of Article 10 of the Republic of
Lithuania Law on Individual Income Security, were not in
conflict with Article 5 and Item 2 of Article 94 of the
Constitution of the Republic of Lithuania as well as Paragraph
1 of Article 10 of the Republic of Lithuania Law on Individual
Income Security;
2) Item 7 (wording of 6 November 1996) of the Regulations
on Granting the Social Allowance and Payment Thereof as
approved by Government of the Republic of Lithuania Resolution
No. 808 "On the Approval of the Regulations on Granting the
Social Allowance and Payment Thereof" of 5 July 1996 to the
extent that it established limitations on receipt of the social
allowance for individual families that raise children at home
was not in conflict with Paragraph 2 of Article 38 and
Paragraph 1 of Article 39 of the Constitution of the Republic
of Lithuania;
3) Items 5.1.1, 5.1.7, 5.1.8, 5.4, 5.5.2, and 9 of the
Regulations on Granting the Social Allowance and Payment
Thereof as approved by Government of the Republic of Lithuania
Resolution No. 441 "On the Approval of the Regulations on
Granting the Social Allowance and Payment Thereof" of 17 April
2000 to the extent that they established additional conditions
and limitations on receipt of the social allowance, in
comparison to Paragraph 1 of Article 10 of the Republic of
Lithuania Law on Individual Income Security, are not in
conflict with Item 2 of Article 94 of the Constitution of the
Republic of Lithuania as well as Paragraph 1 of Article 10 of
the Republic of Lithuania Law on Individual Income Security;
4) Items 5.4 and 5.5.2 of the Regulations on Granting the
Social Allowance and Payment Thereof as approved by Government
of the Republic of Lithuania Resolution No. 441 "On the
Approval of the Regulations on Granting the Social Allowance
and Payment Thereof" of 17 April 2000 to the extent that they
established limitations on receipt of the social allowance for
individual families that raise children at home are not in
conflict with Paragraph 2 of Article 38 and Paragraph 1 of
Article 39 of the Constitution of the Republic of Lithuania.
The Constitutional Court
has established:
I
The Supreme Administrative Court of Lithuania, the
petitioner, investigated an administrative case. The court
suspended the investigation of the case by its ruling and
applied to the Constitutional Court with a petition requesting
to investigate as to whether:
1) Item 6.1.1 (wording of 6 November 1996), Item 6.1.4
(wording of 6 November 1996), Item 6.1.5 (wording of 6 November
1996), Item 7 (wording of 6 November 1996), and Item 9 of the
Regulations on Granting the Social Allowance and Payment
Thereof as approved by Government of the Republic of Lithuania
Resolution No. 808 "On the Approval of the Regulations on
Granting the Social Allowance and Payment Thereof" of 5 July
1996 (Official Gazette Valstybės žinios, 1996, No. 66-1583)-all
the Items to the extent that they established additional
conditions and limitations on receipt of the social allowance,
in comparison to Paragraph 1 of Article 10 of the Republic of
Lithuania Law on Individual Income Security-were not in
conflict with Article 5 and Item 2 of Article 94 of the
Constitution of the Republic of Lithuania and Paragraph 1 of
Article 10 of the Republic of Lithuania Law on Individual
Income Security;
2) Item 7 (wording of 6 November 1996) of the Regulations
on Granting the Social Allowance and Payment Thereof as
approved by Government of the Republic of Lithuania Resolution
No. 808 "On the Approval of the Regulations on Granting the
Social Allowance and Payment Thereof" of 5 July 1996 to the
extent that it established limitations on receipt of the social
allowance by individual families that raise children at home,
was not in conflict with Paragraph 2 of Article 38 and
Paragraph 1 Article 39 of the Constitution of the Republic of
Lithuania;
3) Items 5.1.1, 5.1.7, 5.1.8, 5.4, 5.5.2, and 9 of the
Regulations on Granting the Social Allowance and Payment
Thereof as approved by Government of the Republic of Lithuania
Resolution No. 441 "On the Approval of the Regulations on
Granting the Social Allowance and Payment Thereof" of 17 April
2000 (Official Gazette Valstybės žinios, 2000, No. 33-936)-all
the Items to the extent that they established additional
conditions and limitations on receipt of the social allowance,
in comparison to Paragraph 1 of Article 10 of the Republic of
Lithuania Law on Individual Income Security-are not in conflict
with Article 5 and Item 2 of Article 94 of the Constitution of
the Republic of Lithuania as well as Paragraph 1 of Article 10
of the Republic of Lithuania Law on Individual Income Security;
4) Items 5.4 and 5.5.2 of the Regulations on Granting the
Social Allowance and Payment Thereof as approved by Government
of the Republic of Lithuania Resolution No. 441 "On the
Approval of the Regulations on Granting the Social Allowance
and Payment Thereof" of 17 April 2000-both items to the extent
that they established limitations on receipt of the social
allowance by individual families that raise children at
home-are not in conflict with Paragraph 2 of Article 38 and
Paragraph 1 of Article 39 of the Constitution of the Republic
of Lithuania.
II
The petition of the petitioner is based on the following
arguments.
1. Paragraph 1 of Article 10 (wording of 3 November 1994)
of the Republic of Lithuania Law on Individual Income Security
(hereinafter also referred to as the Law) establishes that a
family whose income is lower than the one subject to the state
support shall be paid a social allowance. The said article
falls within Chapter III "Social Allowance" of the same law.
In the opinion of the petitioner, Paragraph 1 of Article
10 of the Law on Individual Income Security provides that the
only criterion for receipt of the social allowance is an amount
of family income; the Law provides for no other limitations or
additional conditions which could be a reason for not paying
the social allowance to the family whose income is lower than
the one subject to the state support.
2. The petitioner assumes that the additional conditions
and limitations established in Item 6.1.1 (wording of 6
November 1996), Item 6.1.4 (wording of 6 November 1996), Item
6.1.5 (wording of 6 November 1996), Item 7 (wording of 6
November 1996), and Item 9 of the Regulations on Granting the
Social Allowance and Payment Thereof as approved by Government
Resolution No. 808 "On the Approval of the Regulations on
Granting the Social Allowance and Payment Thereof" of 5 July
1996 as well as Items 5.1.1, 5.1.7, 5.1.8, 5.4, 5.5.2, and 9 of
the Regulations on Granting the Social Allowance and Payment
Thereof as approved by Government Resolution No. 441 "On the
Approval of the Regulations on Granting the Social Allowance
and Payment Thereof" of 17 April 2000, are not provided in the
Law on Individual Income Security: the allowance is granted and
paid to families (single persons), where spouses, one of the
spouses (single persons) inter alia are employed under an
employment contract, are registered at the labour exchange
office, the period of employment, the period of paying the
allowance, the requirements related to remuneration for work,
limitations of getting the allowance to individual families who
raise children, as well as to families whose members are owners
of individual enterprises, are established.
Therefore, the petitioner doubted whether Item 6.1.1
(wording of 6 November 1996), Item 61.4. (wording of 6 November
1996), Item 6.1.5 (wording of 6 November 1996), Item 7 (wording
of 6 November 1996), and Item 9 of the Regulations on Granting
the Social Allowance and Payment Thereof as approved by
Government Resolution No. 808 "On the Approval of the
Regulations on Granting the Social Allowance and Payment
Thereof" of 5 July 1996-all the items to the extent that they
established additional conditions and limitations on receipt of
the social allowance, in comparison with Paragraph 1 of Article
10 of the Republic of Lithuania Law on Individual Income
Security-as well as Items 5.1.1, 5.1.7, 5.1.8, 5.4, 5.5.2 and 9
of the Regulations on Granting the Social Allowance and Payment
Thereof as approved by Government Resolution No. 441 "On the
Approval of the Regulations on Granting the Social Allowance
and Payment Thereof" of 17 April 2000-all the items to the
extent that they established additional conditions and
limitations on receipt of the social allowance, in comparison
with Paragraph 1 of Article 10 of the Republic of Lithuania Law
on Individual Income Security-are (were) not in conflict with
Paragraph 1 of Article 10 of the Law on individual Income
Security.
3. The petitioner noted that under Item 2 of Article 94 of
the Constitution the Government has to execute laws and
resolutions of the Seimas concerning the implementation of laws
and that Article 5 of the Constitution consolidates the
principle of separation of powers.
The petitioner doubted whether the Government did not
exceed its constitutional powers by setting additional
conditions and limitations on receipt of the social allowance,
in comparison to Paragraph 1 of Article 10 (wording of 3
November 1994) of the Law on Individual Income Security, and
due to the said reason whether the provisions of Item 6.1.1
(wording of 6 November 1996), Item 61.4 (wording of 6 November
1996), Item 6.1.5 (wording of 6 November 1996), Item 7 (wording
of 6 November 1996), and Item 9 of the Regulations on Granting
the Social Allowance and Payment Thereof as approved by
Government Resolution No. 808 "On the Approval of the
Regulations on Granting the Social Allowance and Payment
Thereof" of 5 July 1996, as well as Items 5.1.1, 5.1.7, 5.1.8,
5.4, 5.5.2, and 9 of the Regulations on Granting the Social
Allowance and Payment Thereof as approved by Government
Resolution No. 441 "On the Approval of the Regulations on
Granting the Social Allowance and Payment Thereof" of 17 April
2000 are (were) not in conflict with Article 5 and Item 2 of
Article 94 of the Constitution.
4. Paragraph 2 of Article 38 of the Constitution provides
that the state shall protect and take care of the family,
motherhood, fatherhood, and childhood, and Paragraph 1 of
Article 39 inter alia provides that the state shall take care
of families that are raising and bringing up children at home
and shall render them support in accordance with the procedure
established by law.
According to the petitioner, limitations on receipt of the
social allowance by individual families that raise children at
home are established in Item 7 (wording of 6 November 1996) of
the Regulations on Granting the Social Allowance and Payment
Thereof as approved by Government Resolution No. 808 "On the
Approval of the Regulations on Granting the Social Allowance
and Payment Thereof" of 5 July 1996, as well as Items 5.4 and
5.5.2 of the Regulations on Granting the Social Allowance and
Payment Thereof as approved by Government Resolution No. 441
"On the Approval of the Regulations on Granting the Social
Allowance and Payment Thereof" of 17 April 2000.
Therefore, the petitioner doubted whether Item 7 (wording
of 6 November 1996) of the Regulations on Granting the Social
Allowance and Payment Thereof as approved by Government
Resolution No. 808 "On the Approval of the Regulations on
Granting the Social Allowance and Payment Thereof" of 5 July
1996 as well as Items 5.4 and 5.5.2 of the Regulations on
Granting the Social Allowance and Payment Thereof as approved
by Government Resolution No. 441 "On the Approval of the
Regulations on Granting the Social Allowance and Payment
Thereof" of 17 April 2000 are not in conflict with Paragraph 2
of Article 38 and Paragraph 1 of Article 39 of the
Constitution.
III
In the course of preparation of the case for the
Constitutional Court hearing explanations were received from R.
Melnikienė, the Vice-minister of Social Security and Labour of
the Republic of Lithuania, which were prepared by the
representatives of the Government, the party concerned, who
were A. Karčiauskienė and V. M. Zabarauskienė.
1. The Vice-minister pointed out that according to Item 1
of Supreme Council of the Republic of Lithuania Resolution No.
I-619 "On Application of the Republic of Lithuania Law on
Individual Income Security" of 27 September 1990 (Official
Gazette Valstybės žinios, 1990, No. 30-712), the payment of the
social allowance defined in Chapter III is started upon the
implementation of the income declaration; the payment of the
social allowance to certain categories of residents may start
earlier upon separate resolution of the Government. Item 3 of
the said Resolution of the Supreme Council assigns the Ministry
of Social Security inter alia with the task to prepare rules of
calculation and payment of the social allowance.
The Vice-minister noted that the Minister of Social
Security by his Order No. 8 of 15 January 1992 (not published
officially) approved the Regulations of Granting the Social
Allowance and Payment Thereof in which he inter alia defined
the criteria of granting and receiving the social allowance.
The social allowance which is paid to the family amounts to 90
percent in difference between the amount of the family income
subject to state support and average monthly family income. As
the provision concerning the income declaration has not been
enforced yet, the social allowance established by Article 10 of
the Law is granted and paid under substatutory legal
acts-Government resolutions.
In the Vice-minister's opinion, as long as one fails to
implement the general declaration of income and property of
residents, no legal possibility exists to find out the actual
income of the family. The calculation is only made of the
family income from labour and other payments (pensions,
allowances, compensations), that cannot be a basis for finding
out the true personal income needed to grant the social
allowance. Therefore, according to the Vice-minister, while
enforcing the legal acts that regulate the declaration of
income and property of residents and said Supreme Council
Resolution No. I-619 of 27 September 1990, on 5 July 1996, the
Government adopted Resolution No. 808 "On the Approval of the
Regulations on Granting the Social Allowance and Payment
Thereof". Items 6.1.1, 61.4, 6.1.5, 7, and 9 of the Regulations
of Granting the Social Allowance and Payment Thereof define
what conditions are to be fulfilled in order to calculate the
income received by a family. In this way the provision of
Article 1 of the Law on Individual Income Security specifying
the notion of income is detailed. The Vice-minister conceded
that the criteria for deciding an issue of granting the social
allowance, as set forth in Items 6.1.1, 6.1.4, 6.1.5, 7, and 9
of the Regulations of Granting the Social Allowance and Payment
Thereof, are formulated in a legally improper way. However, in
her opinion, this is not a sufficient basis for recognising the
said items of the Regulations of Granting the Social Allowance
and Payment Thereof as being in conflict with Paragraph 1 of
Article 10 of the Law on Individual Income Security, as well as
Article 5 and Item 2 of Article 94 of the Constitution.
The Vice-minister stated also that Items 5.1.1, 5.1.7,
5.1.8, 5.4, 5.5.2, and 9 of the Regulations of Granting the
Social Allowance and Payment Thereof as approved by Government
Resolution No. 441 "On the Approval of the Regulations on
Granting the Social Allowance and Payment Thereof" of 17 April
2000 are not in conflict with Paragraph 1 of Article 10 of the
Law on Individual Income Security, as well as Article 5 and
Item 2 of Article 94 of the Constitution, either.
2. The Vice-minister stated that in Lithuania the social
assistance system is comprised of allowances, compensations,
tax relief, employment security for parents, assistance in
getting housing, provision of food for pupils at comprehensive
schools free of charge, etc. Allowances are paid according to
two principles: (1) in support of families that raise children,
irrespective of their income, (2) in support of families, whose
income does not reach the established level of income to be
supported by the state (principle of income evaluation).
Monetary social assistance irrespective of family income
is rendered to families that raise children, as well as to
children who have lost guardianship of their parents. In
accordance with the Republic of Lithuania Law on State
Allowance to Families That Raise Children they are paid various
types of allowances.
While applying the principle of income evaluation, the
monetary social assistance is rendered to the families that due
to objective reasons have not enough funds to meet their
minimum subsistence requirements. Such families are paid the
social allowance provided for in Item 7 of the Regulations on
Granting the Social Allowance and Payment Thereof as approved
by Government Resolution No. 808 "On the Approval of the
Regulations on Granting the Social Allowance and Payment
Thereof" of 5 July 1996, as well as Items 5.4 and 5.5.2 of the
Regulations on Granting the Social Allowance and Payment
Thereof as approved by Government Resolution No. 441 "On the
Approval of the Regulations on Granting the Social Allowance
and Payment Thereof" of 17 April 2000.
In the opinion of the Vice-minister, Item 7 of the
Regulations on Granting the Social Allowance and Payment
Thereof as approved by Government Resolution No. 808 "On the
Approval of the Regulations on Granting the Social Allowance
and Payment Thereof" of 5 July 1996 as well as Items 5.4 and
5.5.2 of the Regulations on Granting the Social Allowance and
Payment Thereof as approved by Government Resolution No. 441
"On the Approval of the Regulations on Granting the Social
Allowance and Payment Thereof" of 17 April 2000, are not in
conflict with Paragraph 2 of Article 38 and Paragraph 1 of
Article 39 of the Constitution.
IV
In the course of the preparation of the case for the
Constitutional Court hearing additional written explanations,
answers to the additional questions submitted to the
representatives by the party concerned, the Government, were
received from A. Karčiauskienė, the representative of the
Government.
1. A. Karčiauskienė additionally explained that the basic
obligations of the Republic of Lithuania in social assistance
field and principles of organising the social assistance are
entrenched in Article 52 of the Constitution, as well as the
Republic of Lithuania Law on the Bases of the State Social
Assistance System, the Law on Individual Income Security, and
Government resolutions. According to the representative of the
party concerned, social assistance is social, economic, legal
and organisational measures which are aimed at ensuring the
essential living conditions to the persons (families) who have
not enough income from labour, social insurance or other income
due to objective reasons that are beyond their control; social
assistance cannot ensure long-term economic and social
growth-it only helps the human being to survive under extreme
circumstances. When providing social assistance, the principle
of social solidarity is followed, according to which the State
accepts an obligation to take care of each human being who is
incapable of taking care of himself due to objective reasons.
A. Karčiauskienė also noted that a need for social assistance
and its amount depend upon a demographic and economic situation
of the State, the scale of suitability of the environment for
people who have disability to live in, the economic capacity of
the society and prevailing conception of social justice which
determines re-distribution of income, as well as technical
possibility to re-distribute such income.
2. According to the representative of the party concerned,
in 1990, having taken the minimum consumption basket as the
basis and having applied the statistical normative method, the
applied minimum standard of living (MSL) was established. The
minimum consumption set which comprises the basic groups of
personal needs was defined. The value of the said minimum
consumption basket amounted to 55.4 percent of the average
actual national consumption level of that time. After the
increase of prices, in 1991 the applied MSL was indexed for 4
times; this absolutely complied with the rate of inflation (the
applied MSL increased by 5 times when the prices increased by
4.8 times). However, when in 1992 the prices increased by 12.6
times, the applied MSL increased by 3.2 times only. Its actual
value reduced by 75 percent in 1992. A. Karčiauskienė stated
that upon the change of the actual consumption level the
previous minimum normative consumption set in 1992 lost its
meaning; the applied MSL became an indicator with which the
amount of social benefit (pregnancy allowances for women who
study; one-time birth grants; family allowances; allowances for
families that raise 3 or more children; allowances for children
of servicemen performing actual military service; child care
allowances; student grants for orphans; housing allowances for
orphans and children who lost parental care; funeral
allowances) is linked.
3. Moreover, A. Karčiauskienė explained that the
reckonable MSL has been applied since 1993. Similar to the
applied MSL, the latter is based on meeting the minimum
consumption needs, however, the previously applied statistical
normative method was substantially modified in respect of the
reckonable MSL: the basis of the reckonable MSL is the value of
the minimum set of food products (the number and composition of
the food products in the set is established in accordance with
the data of the norms of food products' consumption by adults
and the norms of rational nutrition of children, which were
submitted in the surveys of household budgets). According to
the representative of the party concerned, the reckonable MSL
is not subject to official approval by the Government: each
quarter it is defined by the experts at the Ministry of Social
Security and Labour who follow the results of household
budgets' survey performed by the Department of Statistics. The
value of the food products of the reckonable MSL is the basis
for setting the absolute poverty line, as well as for setting
the amount of income to be supported by the state which is
linked with meeting the minimum needs for food products.
4. A. Karčiauskienė noted that the amount of the said
allowance has to be synchronised with the minimum remuneration
amount and the minimum consumption needs. In the opinion of the
representative of the party concerned, should the amount of the
social allowance exceed the minimum remuneration amount, no
stimulus to work would remain. However, the amount of the
social allowance together with the supported income of
individuals may not be less than the expenditure which ensures
that the minimum needs for food products are met.
According to the representative of the party concerned,
the social allowance which ensures the minimum income needed
for nutrition is the last support provided to the residents who
are not able to get income themselves due to objective reasons
(members of the family who are able to work are engaged in an
active search for work through the national territorial labour
exchange offices), as well as those who do not receive or who
receive insufficient support from other sources, especially
from the social security system.
In the opinion of A. Karčiauskienė, if the support was
given to all residents whose income is lower than the
established income to be supported by the state, the residents
would no longer be interested to search for the income to earn
their living themselves, and when illegal employment spreads,
where it becomes impossible to find out the income of
residents, one would abuse the support. On the other hand,
having checked the living conditions and having made a
statement about the check of the household, municipalities have
a right to grant by their own decision social allowances to
other residents who need them.
5. The representative of the party concerned noted that
according to Article 52 of the Constitution the law should
provide for the types of social support specified in it (in
case of unemployment, sickness, widowhood, loss of
breadwinner), moreover, the law should provide for other types
of social assistance (other than those specified in Article 52
of the Constitution). Still the ways and content of legal
regulation depend upon the variety of social life. A.
Karčiauskienė paid attention to the fact that the Law on
Individual Income Security was adopted as far back as 1990,
therefore it is important to take account of the legal
environment, as well as social, political, and economic
circumstances of that time which had influence upon the legal
regulation of social assistance granted to persons; the said
period is linked to the huge changes of restructuring various
spheres of public life, and first of all the economic system in
which the interests of the state used to prevail until then.
Under such circumstances the legislator had to set an
absolutely new legal regulation and to introduce new legal
notions. For this particular reason the Supreme Council by Item
1 of Resolution No. I-619 "On Application of the Republic of
Lithuania Law on Individual Income Security" of 27 September
1990 established that payment of the social allowance defined
in Chapter III of the Law starts upon the implementation of the
income declaration; that the payment of the social allowance to
certain categories of residents may begin even earlier upon a
separate resolution of the Government.
According to A. Karčiauskienė, due to the reason that the
general declaration of income has not been implemented
completely, while enforcing the said Supreme Council Resolution
of 27 September 1990, on 5 July 1996, the Government adopted
Resolution No. 808 "On the Approval of the Regulations on
Granting the Social Allowance and Payment Thereof". Items
6.1.1, 6.1.4, 6.1.5, 7, and 9 of the Regulations on Granting
the Social Allowance and Payment Thereof as approved by the
said Government Resolution particularise about the provision of
Article 1 of the Law on Individual Income Security which
defines the notion of income and sets the conditions which must
be in place for the calculation of the income received by the
family to be possible. In the opinion of the representative of
the party concerned, the criteria which are the basis for
deciding the issue of granting the social allowance as listed
in Items 6.1.1, 6.1.4, 6.1.5, 7, and 9 of the Regulations on
Granting the Social Allowance and Payment Thereof, are
formulated in a legally improper way, however, this sole fact
does not constitute a sufficient basis for recognising the said
items of the Regulations on Granting the Social Allowance and
Payment Thereof as being in conflict with Paragraph 1 of
Article 10 of the Law on Individual Income Security, as well as
Article 5 and Item 2 of Article 94 of the Constitution.
V
In the course of the preparation of the case for the
Constitutional Court hearing written explanations were received
from the specialists (institutions) who were V. Česnuitytė, a
lecturer at the Social Policy Department of the Social Work
Faculty, the Law University of Lithuania, Dr. R. Lazutka, a
senior scientific worker at the Social Research Institute, as
well as from the Free Market Institute.
VI
1. At the Constitutional Court hearing, the
representatives of the Government, the party concerned, who
were A. Karčiauskienė and V. M. Zabarauskienė, virtually
reiterated the arguments set forth in the written explanations
by R. Melnikienė, the Vice-minister of Social Security and
Labour, and the additional written explanations by A.
Karčiauskienė.
2. The specialists, V. Česnuitytė, Dr. R. Lazutka, and Dr.
L. Žalimienė, a senior scientific worker at the Social Research
Institute, also spoke at the Constitutional Court hearing.
The Constitutional Court
holds that:
I
1. Under the Constitution, the State of Lithuania is
socially oriented. The social orientation of the state is
reflected in various provisions of the Constitution which
consolidate economic, social and cultural, as well as civil and
political rights of a human being, the relations between the
society and the state, the bases of social assistance and
social security, the principles of organisation and regulation
of the national economy, the bases of organisation and activity
of state institutions, etc.
2. In this context one should note that Article 52 of the
Constitution reads: "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."
While construing the provisions of Article 52 of the
Constitution, the Constitutional Court has held that in
accordance with the Constitution each citizen has a right to a
social security. Article 52 of the Constitution defines
pensions and social assistance-these are among the forms of the
social security (Constitutional Court ruling of 25 November
2002).
The Constitutional Court has also held that the provisions
of Article 52 of the Constitution express the social character
of the state, while the social maintenance, i.e. contribution
of the society to maintenance of such its members who are
incapable of providing themselves from work or other means or
who are not sufficiently provided due to important reasons
provided by law, is recognised as having the status of a
constitutional value. The measures of social protection express
the idea of public solidarity; they help a person to protect
himself from possible social hazards. The provisions of Article
52 of the Constitution guaranteeing citizens' right to social
maintenance, obligate the state to establish sufficient
measures to implement and protect the said rights
(Constitutional Court rulings of 12 March 1997, 3 December
1997, 25 November 2002, and 3 December 2003).
On the other hand, the principle of solidarity in the
civil society does not deny personal responsibility for one's
own fate. Therefore, the legal regulation of the social
security should be such as to create preconditions for each
member of the society to take care for one's own welfare, but
not to rely solely on the social security guaranteed by the
state (Constitutional Court rulings of 12 March 1997, 11
November 2002, and 3 December 2003). The right of a person to
social assistance and to social security at large is to be
interpreted in accordance with the imperatives of social
harmony and justice which are entrenched in the Constitution,
as well as constitutional principles of equal rights of persons
and proportionality. Social assistance given to a person should
not become a privilege, it should not create preconditions for
a person not to strive for a higher income, not to search for
possibilities to ensure to oneself and one's family by one's
own effort the living conditions that are in line with human
dignity. Thus the Constitution does not prohibit the legislator
from setting by law such bases or conditions of giving social
assistance and amount of social assistance as to encourage each
person's attempts to take care of one's own or one's family
welfare by one's own efforts first of all and to contribute to
the welfare of the entire society. The legislator has a broad
discretion to differentiate social assistance. However,
respective legal regulation should be established solely by the
law, and this should be done in compliance with the
Constitution.
The legal regulation of the social assistance relations is
one of the most important guarantees of the constitutional
right to social assistance. The formula "the State shall
guarantee" in Article 52 of the Constitution inter alia means
that various types of social assistance are guaranteed for the
persons on the bases and by the amounts that are established in
laws (Constitutional Court ruling of 23 April 2002). Separate
types of social assistance, persons who are granted social
assistance, bases, conditions of granting and paying the social
assistance, amounts thereof, according to the Constitution, may
be set solely by the law (Constitutional Court rulings of 6 May
1998, 10 February 2000, 30 October 2000, and 3 December 2003).
Substatutory legal acts, and thus Government resolutions, may
only set the procedure (procedures) of implementation of the
laws that regulate social assistance relations.
In its rulings of 3 December 1997, 6 May 1998, and 30
October 2001, the Constitutional Court held that it is
impossible to establish conditions of emerging of person's
right to the social assistance, as well as to limit the scope
of this right, by the substatutory regulation of the relations
which are defined in Article 52 of the Constitution.
3. Paragraph 2 of Article 38 of the Constitution reads:
"The State shall protect and take care of family, motherhood,
fatherhood, and childhood."
Paragraph 1 of Article 39 of the Constitution reads: "The
State shall take care of families that are raising and bringing
up children at home and shall render them support in accordance
with the procedure established by law."
When systematically explaining the provisions of Paragraph
1 of Article 38 and Paragraph 1 of Article 39 of the
Constitution in needs to be noted that they are to be linked
with Paragraph 1 of Article 38 of the Constitution which
provides that the family shall be the basis of society and the
state. The provisions of Paragraphs 1 and 2 of Article 38 of
the Constitution express an obligation of the state to
establish, by means of laws and other legal acts, the legal
regulation which might ensure that the family, as well as
motherhood, fatherhood and childhood as constitutional values
would be fostered and protected in all ways possible
(Constitutional Court ruling of 13 June 2000). Paragraphs 1 and
2 of Article 38 of the Constitution consolidate the most
general constitutional principles.
The provision of Paragraph 1 of Article 39 of the
Constitution that the state shall take care of families that
are raising and bringing up children at home and shall render
them support in accordance with the procedure established by
law implies that the family, motherhood, fatherhood and
childhood are fostered and protected constitutional values. In
this context it needs to be noted that in accordance with
Paragraph 6 of Article 38 of the Constitution parents have the
right and duty to support their children till they come of age.
The Constitution does not expressis verbis establish any
bases, conditions, terms and amounts of giving support to the
families that raise and bring up children at home. These are to
be established by the legislator in compliance with the norms
and principles of the Constitution. It needs to be stressed
that resources of the society and the State must be taken into
account when regulating by laws the relations of assistance
given to the families that raise and bring up children at home.
The legislator has a broad discretion in this field. However,
it is inadmissible to link the assistance rendered by the state
to a family with such circumstances (conditions) which
artificially aggravate the receipt of such assistance.
II
1. The principles of support to residents are established
by the international (European) legal acts also.
2. Paragraph 1 of Article 13 of the European Social
Charter (revised) inter alia provides:
"With a view to ensuring the effective exercise of the
right to social and medical assistance, the Parties undertake:
1. to ensure that any person who is without adequate
resources and who is unable to secure such resources either by
his own efforts or from other sources, in particular by
benefits under a social security scheme, be granted adequate
assistance, and, in case of sickness, the care necessitated by
his condition;
2. to ensure that persons receiving such assistance shall
not, for that reason, suffer from a diminution of their
political or social rights;
3. to provide that everyone may receive by appropriate
public or private services such advice and personal help as may
be required to prevent, to remove, or to alleviate personal or
family want; <...>"
Article 16 of the European Social Charter (revised)
establishes that with a view to ensuring the necessary
conditions for the full development of the family, which is a
fundamental unit of society, the Parties undertake to promote
the economic, legal and social protection of family life inter
alia by social and family benefits.
Recommendation No. R(2000)3 of the Committee of Ministers
of the Council of Europe "On the Right to the Satisfaction of
Basic Material Needs of Persons in Situations of Extreme
Hardship" of 19 January 2000 recommends to the Governments of
the member states to implement in their law and practice inter
alia the following principles: "Member states should recognise
in their law and practice, a right to the satisfaction of basic
material needs of any person in a situation of extreme
hardship" (Principle 1); "The right to the satisfaction of
basic human material needs should contain as a minimum the
right to food, clothing, shelter and basic medical care"
(Principle 2); "The right to the satisfaction of basic human
material needs should be enforceable, every person in a
situation of extreme hardship being able to invoke it directly
before the authorities and, if need be, before the courts"
(Principle 3).
3. European (Communities) Council Recommendation
92/441/EEC "On common criteria concerning sufficient resources
and social assistance in social protection system" of 24 June
1992 inter alia states that "[it] requires the encouragement of
solidarity with regard to the least privileged and most
vulnerable people" and that "people with insufficient,
irregular and uncertain resources are unable to play an
adequate part in the economic and social life of the society in
which they live and to become successfully integrated
economically and socially". The member states are recommended
inter alia "to recognise the basic right of a person to
sufficient resources and social assistance to live in a manner
compatible with human dignity as a part of a comprehensive and
consistent drive to combat social exclusion" and to recognise
this right inter alia according to the following principles: it
is to be the right based on respect for human dignity; every
person who does not have access individually or within the
household in which he or she lives to sufficient resources is
to have access to such right subject to active availability for
work or for vocational training with a view to obtaining work
in the case of those persons whose age, health and family
situation permit such active availability, or, where
appropriate, subject to economic and social integration
measures in the case of other persons; the same efforts should
be made to integrate the poorest citizens into the systems of
general rights. The member states are recommended inter alia to
fix the amount of resources considered sufficient to cover
essential needs with regard to respect for human dignity,
taking account of living standards and price levels in the
Member State concerned, for different types and amounts of
household; to adjust or supplement amounts to meet specific
needs; to establishing arrangements for periodic review of
these amounts, based on these indicators, in order that needs
continue to be covered.
III
1. On 27 September 1990, the Supreme Council adopted the
Law on Individual Income Security, Article 10 of which
established: "Social allowance (SA) shall be paid to a family
whose income per capita is lower than income subject to the
State support (ISSS). The allowance shall be computed according
to the principle adverse to income tax, i.e. income which is
smaller than income liable to support, shall not be subject to
taxation and social security benefit shall be added thereto.
When computing social allowance the paid off compensations
shall be included in the real income."
2. On 3 November 1994, the Seimas adopted the Republic of
Lithuania Law "On Amendment to the Republic of Lithuania Law on
Individual Income Security", by which it inter alia amended
Article 10 of the Law on Individual Income Security (wording of
27 September 1990) and set it forth as follows:
"A family whose income is lower than that subject to the
State support shall be paid a social allowance.
Social allowance to the family shall amount to 90 percent
of a difference between an amount of family income subject to
the State support and an average monthly income of the family.
Upon the motion of the Ministry of Social Security and
Labour the Government of the Republic of Lithuania shall adopt
the amount of income subject to the State support."
The Law "On Amendment to the Republic of Lithuania Law on
Individual Income Security" was published in the official
gazette Valstybės žinios on 17 November 1994 and became
effective on the same day.
On 15 December 1994, the Seimas adopted the Republic of
Lithuania Law "On Supplementing the Law 'On Amendment to the
Republic of Lithuania Law on Individual Income Security'" by
which it supplemented the Law "On Amendment to the Republic of
Lithuania Law on Individual Income Security" of 3 November 1994
with Article 4 and established that the said law becomes
effective from 1 January 1995.
3. The petitioner does not specify the wording of
Paragraph 1 Article 10 of the Law on Individual Income Security
with which, in his opinion, Item 6.1.1 (wording of 6 November
1996), Item 6.1.4 (wording of 6 November 1996), Item 6.1.5
(wording of 6 November 1996), Item 7 (wording of 6 November
1996), and Item 9 of the Regulations on Granting the Social
Allowance and Payment Thereof as approved by Government
Resolution No. 808 "On the Approval of the Regulations on
Granting the Social Allowance and Payment Thereof" of 5 July
1996, a well as Items 5.1.1, 5.1.7, 5.1.8, 5.4, 5.5.2, and 9 of
the Regulations on Granting the Social Allowance and Payment
Thereof as approved by Government Resolution No. 441 "On the
Approval of the Regulations on Granting the Social Allowance
and Payment Thereof" of 17 April 2000 (to the extent that they,
in the opinion of the petitioner, established additional
conditions and limitations on receipt of the social allowance,
in comparison to Paragraph 1 of Article 10 of the Republic of
Lithuania Law on Individual Income Security), are in conflict.
It is clear from the content of the petition that the
petitioner doubts as to the compliance of the aforesaid items
of the Regulations on Granting the Social Allowance and Payment
Thereof approved by the said Government resolutions (to the
extent specified by the petitioner) with Paragraph 1 of Article
10 (wording of 3 November 1994) of the Law on Individual Income
Security.
4. On 1 July 2003, the Seimas adopted the Republic of
Lithuania Law on Monetary Social Assistance to Families
(Persons Living Alone) With Low Income, by Item 1 of Article 27
whereof, upon coming into effect of this law inter alia
Paragraphs 1 and 2 of Article 10 (wording of 3 November 1994)
of the Law on Individual Income Security become no longer
valid. According to Article 28 of the Law on Monetary Social
Assistance to Families (Persons Living Alone) With Low Income
this law (except Article 26) had to become effective from 1
January 2004.
On 11 December 2003, the Seimas adopted the Law on
Amendment to Articles 26 and 28 of the Law on Monetary Social
Assistance to Families (Persons Living Alone) With Low Income,
by Article 2 whereof Article 28 of the Law on Monetary Social
Assistance to Families (Persons Living Alone) With Low Income
was amended, and which established that the said law comes into
effect from 1 April 2004.
Thus, although Paragraphs 1 and 2 of Article 10 (wording
of 3 November 1994) of the Law on Individual Income Security
were recognised as the ones that are going to be no longer
valid as of 1 April 2004, they are still in force during the
investigation of the case at issue.
5. It was already mentioned that Article 10 of the Law on
Individual Income Security (wording of 27 September 1990) inter
alia established that social allowance shall be paid to a
family whose income per capita is lower than that subject to
the state support, while Paragraph 1 of Article 10 (wording of
3 November 1994) of the Law provides that a family whose income
is lower than that subject to the State support shall be paid a
social allowance.
The legal regulation established in Paragraph 1 of Article
10 (wording of 3 November 1994) of the Law is to be construed
within the context of other provisions of the Law.
5.1. The notions "income" and "income subject to support"
used in Paragraph 1 (and other articles (parts thereof) of the
Law) of Article 10 (wordings of 27 September 1990 and 3
November 1994) of the Law are defined in Article 1 of the Law;
although Article 1 (wording of 27 September 1990) of the Law
was amended by the Law "On Amendment to the Republic of
Lithuania Law on Individual Income Security" which was adopted
on 3 November 1994, the definitions of the notions "income" and
"income subject to support" were not changed.
5.1.1. Section 4 of Article 1 (wordings of 27 September
1990 and 3 November 1994) of the Law defines the notion
"income" as follows:
"income is nominal income of the entire family (work
remuneration, bonuses included, honoraria, pensions,
scholarships, allowances, income from subsidiary personal
farming and individual activity, income from personal property,
interest, dividends, etc.), as well as monetary estimation of
income in kind which is received at the place of employment
free of charge or on easy terms according to the current retail
prices".
5.1.2. Section 5 of Article 1 (wordings of 27 September
1990 and 3 November 1994) of the Law defines the notion "income
subject to support" as follows:
"income subject to support shall be calculated per each
member of a family upon deduction of compulsory refunds from
income, social allowance paid off according to this law,
compensational disbursements (except cases provided in this
law), as well as other income from any type of insurance,
except allowance for a temporary incapacity to work".
5.2. The legal regulation established in Paragraph 1 of
Article 10 (wording of 3 November 1994) of the Law is to be
evaluated in accordance with the aim of the Law as defined in
its preamble as well. It inter alia reads: "The law defines the
principles of individual income support while taking account of
the minimum standard of living and dynamics of prices. <...>"
Thus the purpose of the social allowance specified in
Article 10 of the Law is to bring closer the income of the
families that have not sufficient income to the income subject
to the state support as established in accordance with the
minimum standard of living. Granting the said social allowance
and payment thereof is linked with the income of a family
(resident)-it is lower than the income subject to the state
support which is established in accordance with the minimum
standard of living.
5.3. The notion "minimum standard of living" is defined in
Section 3 of Article 1 (wordings of 27 September 1990 and 3
November 1994) of the Law: "minimum standard of living (MSL) is
the sum of monthly income of a family per each person per month
which ensures to everyone a socially acceptable minimum level
of satisfaction of needs which corresponds to the need of
nutrition of the organism according to physiological norms, as
well as minimum needs for clothing, footwear, furniture,
household, sanitary and hygiene means, housing, as well as
utility, domestic, transport, communication, cultural and
educational services".
Chapter II "Minimum Standard of Living and Income
Indexation" of the Law inter alia establishes that the minimum
standard of living shall be approved by the Supreme Council of
the Republic of Lithuania upon the motion of the Government not
less than every five years (Paragraph 1 of Article 2); that the
basis of indexation is the cumulative index of consumption
prices which is calculated and announced by the Department of
Statistics under the Government of the Republic of Lithuania
not less than every quarter (Article 3); that the minimum
standard of living shall be indexed usually at the same
frequency as the Department of Statistics calculates and
announces the index of consumption prices, but not less than
once a year, and that the minimum standard of living shall be
indexed by the Ministry of Social Security (Article 4). It
needs to be noted that articles (parts thereof) of Chapter II
of the Law have not been amended.
5.4. The bases of calculation of the social allowance
defined in Article 10 (wording of 27 September 1990) of the Law
were established in Articles 11 and 12 (wording of 27 September
1990) of the Law. The calculation of the allowance amount was
linked with the income subject to the State support which is
defined by taking account of the minimum standard of living.
The Law "On Amending the Republic of Lithuania Law on
Individual Income Security" of 3 November 1994 recognised inter
alia Articles 11 and 12 (wording of 27 September 1990) of the
Law on Individual Income Security as no longer valid.
It should be noted that having recognised Articles 11 and
12 (wording of 27 September 1990) of the Law on Individual
Income Security that established the bases of the calculation
of the social allowance amount defined in Article 10 (wording
of 27 September 1990) of the Law as no longer valid, while not
correcting the content of the notions "income", "income subject
to support", and "minimum standard of living" as defined in
Article 1 of the Law, as well as its purpose as defined in the
preamble of the Law, the principal link between the social
allowance and the minimum standard of living established in
Article 10 remained valid: the purpose of the social allowance
is still to bring the income of families (residents) which have
not sufficient income closer to the income subject to state
support which is established according to the minimum standard
of living.
6. The legal regulation established in Paragraph 1 of
Article 10 (wording of 3 November 1994) of the Law is also to
be construed within the context of the Republic of Lithuania
Law on Bases of the State Social Assistance System. This law
was adopted by the Supreme Council on 23 October 1990; on 21
May 1991, it was amended by the Republic of Lithuania Law "On
Amending Article 10 of the Republic of Lithuania Law on Bases
of the State Social Assistance System".
According to Article 1 of the Law on the Bases of the
State Social Assistance System, state social assistance is a
system of social economic measures established by the state
which provides finances and services necessary for living to
the residents of the Republic who are incapable of providing
themselves from work or other means or who are not sufficiently
provided due to important reasons provided by law. Article 4 of
the said law provides that the system of state social
assistance is comprised of: (a) compulsory (state) social
insurance; (b) social maintenance and social aid (assistance)
from state funds, and Paragraph 1 of Article 7 establishes that
social maintenance and social aid (assistance) from state funds
are applied when it becomes necessary to ensure or improve
maintenance of certain groups of residents during pursuit of
demographic, defence, ecological or other policy. Under Article
8 of this law, the social maintenance level established by the
state may not be lower than the minimum standard of living
except the cases where the law provides otherwise.
Paragraph 2 of Article 7 of the Law on the Bases of the
State Social Assistance System provides that social maintenance
and social aid (assistance) are regulated inter alia by the Law
on Individual Income Security.
It needs to be noted that allowances and benefits which
support the income of individuals, are (were) established in
other laws also. Some of such allowances and payments are
linked with income of individuals whose income is supported,
others are not directly linked with the income of the said
individuals.
IV
1. On 27 September 1990, the Supreme Council adopted
Resolution No. I-619 "On Application of the Republic of
Lithuania Law on Individual Income Security".
Item 1 of the said Resolution of the Supreme Council inter
alia provides:
"<...> The payment of the social allowance established in
Chapter III of the Law begins upon the implementation of the
income declaration. The payment of the social allowance to
certain categories of individuals may begin even earlier upon a
separate resolution of the Government. <...>"
Item 3 of the said Resolution of the Supreme Council
commissions the Ministry of Social Security with drafting the
rules of calculation and payment of compensations amounting to
the lost income until 31 December 1990, and of the social
allowance until 1 September 1991.
2. Prior to the confirmation of the Regulations on
Granting the Social Allowance and Payment Thereof by Government
Resolution No. 808 "On the Approval of the Regulations on
Granting the Social Allowance and Payment Thereof" of 5 July
1996, Item 6.1.1 (wording of 6 November 1996), Item 6.1.4
(wording of 6 November 1996), Item 6.1.5 (wording of 6 November
1996), Item 7 (wording of 6 November 1996), and Item 9 of which
are being disputed in this case, the relations of granting
social allowances and payment thereof to certain categories of
residents were regulated by Government resolutions and
substatutory legal acts of the ministerial level. These
substatutory legal acts established bases and conditions of
granting social allowances and payment thereof, amounts of the
social allowances, as well as procedure (procedures) of
granting social allowances and payment thereof.
3. The Government powers to establish by separate
resolutions that certain categories of individuals are to be
paid the social allowance defined in Chapter III of the Law on
Individual Income Security earlier, i.e. without waiting for
the implementation of the income declaration, originated from
Supreme Council Resolution No. I-619 "On Application of the
Republic of Lithuania Law on Individual Income Security" (Item
1) of 27 September 1990.
The fact that the Government originates its powers to
establish by separate resolutions that certain categories of
residents are to be paid the social allowance defined in
Chapter III of the Law on Individual Income Security earlier,
i.e. without waiting for the implementation of the income
declaration, from Supreme Council Resolution No. I-619 "On
Application of the Republic of Lithuania Law on Individual
Income Security" of 27 September 1990 is confirmed by the
explanations given in this case to the Constitutional Court by
the representative of the party concerned-the Government who
was A. Karčiauskienė, as well as by R. Melnikienė, the
Vice-minister of the Social Security and Labour.
4. It needs to be noted that is not clear from the formula
"upon the implementation of the income declaration" of Item 1
of the said Supreme Council Resolution whether it refers to an
introduction of the general regular income declaration (where
all the residents have to declare their income on a regular
basis), or to an introduction of some partial income
declaration (where only certain categories of residents have to
declare their income on a regular basis or where certain cases
are established when all the residents have to declare their
income).
Still, it is obvious that the legislator in the said
resolution linked the right of families (residents) to the
social allowance defined in Chapter III of the Law with the
income declaration of residents, in other words, by its
substatutory act-the Supreme Council Resolution-the legislator
restricted the implementation of the provision of Article 10
(wording of 27 September 1990) of the Law on Individual Income
Security.
5. In this context it should be noted that the laws
gradually introduced partial income declaration by defining
which specific categories of residents have to declare their
income on a regular basis or in which specific cases all the
residents have to declare their income. The general income
declaration has not been introduced yet. Taking account of the
fact that the laws have not introduced the general income
declaration on a regular basis yet, of the fact that the sole
criterion of establishing which residents shall be paid the
social allowance defined in Article 10 (wording of 3 November
1994) of the Law on Individual Income Security is that the
family income is lower than the one subject to the state
support, as well as of the fact that the legal regulation
established in Item 1 of Supreme Council Resolution No. I-619
"On Application of the Republic of Lithuania Law on Individual
Income Security" of 27 September 1990 which stipulates that the
social allowance provided for in Chapter III of the Law is
started to be paid upon the implementation of the income
declaration, while certain categories of residents may be paid
the social allowance earlier upon the separate Government
resolution, has not been revoked or amended, it is to be held
that: (1) the legislator continues to link the right of the
individuals to the social allowance provided for in Chapter III
of the Law with their income declaration, thus the
implementation of the provision of Item 1 of Article 10
(wording of 3 November 1994) of the Law is restricted by a
substatutory legal act of the legislator, i.e. the Supreme
Council resolution; (2) the powers which were vested in the
Government by the Supreme Council Resolution of 27 September
1990 to establish by separate resolutions the cases where
certain categories of residents are to be paid the social
allowance provided for in Chapter III of the Law have not been
revoked yet.
6. Supreme Council Resolution No. I-619 "On Application of
the Republic of Lithuania Law on Individual Income Security" of
27 September 1990 upon which the Government grounds its powers
to establish by separate resolutions that payment of the social
allowance defined in Chapter III of the Law on Individual
Income Security to certain categories of individuals begins
earlier, i.e. without waiting for implementation of the income
declaration, and, namely, upon Government Resolution No. No.
808 "On the Approval of the Regulations on Granting the Social
Allowance and Payment Thereof" of 5 July 1996 which confirmed
the Regulations on Granting the Social Allowance and Payment
Thereof, as well as Resolution No. 441 "On the Approval of the
Regulations on Granting the Social Allowance and Payment
Thereof" of 17 April 2000 which replaced the former and which
confirmed the Regulations on Granting the Social Allowance and
Payment Thereof, were adopted prior to the entry of the
Constitution into effect.
When deciding whether the items of the Regulations on
Granting the Social Allowance and Payment Thereof which were
confirmed by the Government resolutions, and which were
indicated by the petitioner, are not in conflict with the
Constitution and Paragraph 1 of Article 10 (wording of 3
November 1994) of the Law on Individual Income Security, it is
important to clarify the relation of the said Supreme Council
Resolution which remained in force upon the coming into force
of the Constitution, with the Constitution.
7. A fundamental requirement of a democratic state under
the rule of law is the principle of the supremacy of the
Constitution entrenched in Paragraph 1 of Article 7 of the
Constitution which provides that any law or other act, which is
inconsistent with the Constitution, shall be invalid; this
principle in various aspects is also entrenched in Paragraph 2
of Article 5 which provides that the scope of power shall be
limited by the Constitution; Paragraph 1 of Article 6 which
provides that the Constitution shall be an integral and
directly applicable act, Paragraph 2 of Article 6 which
provides that everyone may defend his rights on the grounds of
the Constitution, Paragraph 1 of Article 30 which provides that
the person whose constitutional rights or freedoms are violated
shall have the right to apply to court, Paragraph 1 of Article
102 which provides that the Constitutional Court shall decide
whether the laws and other acts of the Seimas are not in
conflict with the Constitution and whether acts of the
President of the Republic and the Government are not in
conflict with the Constitution or laws, Paragraph 1 of Article
110 which provides that a judge may not apply a law, which is
in conflict with the Constitution, etc. All the provisions of
the Constitution are to be construed in accordance with the
principle of supremacy of the Constitution. In its ruling of 24
December 2002 the Constitutional Court held that "the principle
of the supremacy of the Constitution means that the
Constitution rests in the exceptional, highest, place in the
hierarchy of legal acts, that no legal act may be in conflict
with the Constitution, that no one is permitted to violate the
Constitution, that the constitutional order must be protected,
that the Constitution itself consolidates the mechanism
permitting to determine whether legal acts (parts thereof) are
not in conflict with the Constitution. In this respect, the
principle of the supremacy of the Constitution, which is
established in the Constitution, is inseparably linked with the
constitutional principle of a state under the rule of law,
which is a universal constitutional principle upon which the
entire Lithuanian legal system and the Constitution itself are
based. Violation of the principle of the supremacy of the
Constitution would mean that the constitutional principle of a
state under the rule of law is violated as well."
8. Article 8 of the Constitution also provides:
"In Lithuania, the Seimas, the President of the Republic
and the Government, and the Judiciary, shall execute State
power.
The scope of power shall be limited by the Constitution.
State institutions shall serve the people."
Article 5 of the Constitution, as well as other articles
(parts thereof) of the Constitution, consolidates the principle
of separation of powers. When construing the constitutional
principle of separation of powers, in its rulings the
Constitutional Court has held more than once that legislative,
executive and judicial powers are to be separated, sufficiently
independent, but still they should be balanced; that each state
institution has an established competence that meets its
purpose; that specific content of the competence of the
institution depends upon the place of the specific branch of
power within the general system of branches of power and its
relationship with other branches of power, upon the place of
the institution among other institutions and the relationship
of its own powers with those of other institutions; that, after
the powers of a concrete state institution have been directly
established in the Constitution, a state institution may not
take over such powers from another institution, transfer or
waive them, and that such powers may not be changed or
restricted by the law.
The constitutional principle of separation of powers
determines the absence of delegated legislation in Lithuania
(Constitutional Court rulings of 26 October 1995, 19 December
1996, and 3 June 1999). Therefore, according to the
Constitution the Seimas has no right inter alia to assign the
Government with implementation of the constitutional competence
of the Seimas, and the Government may not accept and execute
such assignment.
9. According to Item 2 of Article 67 of the Constitution
the Seimas shall pass laws.
The Seimas is the representation of the Nation. It
implements the legislative power in the state. The Seimas, in
compliance with the procedure established in the Constitution
and the Statute of the Seimas, may adopt any law
(Constitutional Court ruling of 22 July 1994). When passing
laws, the Seimas is bound by the Constitution.
A law passed by the Seimas is a primary legal act adopted
under the procedure prescribed in the Constitution and the
Statute of the Seimas (Constitutional Court rulings of 19
January 1994, 26 October 1995, and 29 May 1997). A law can be
amended or its validity can be nullified only upon the adoption
of another law or recognition of it as contradictory to the
Constitution by the Constitutional Court. The laws should not
be in conflict with the Constitution and constitutional laws.
All the other legal acts shall be substatutory. They are
acts of application of laws and may not replace laws, amend the
content of the norms of laws, and they may not establish any
such legal regulation that would compete with that of laws.
In its Ruling of 26 October 1995 the Constitution Court
held that the laws establish rules of general nature, while
substatutory legal acts may particularise them and regulate the
procedure of their implementation.
In its ruling of 30 December 2003, the Constitutional
Court held that "the constitutional principle of a state under
the rule of law implies also a hierarchy of legal acts, inter
alia the fact that substatutory legal acts cannot be in
conflict with laws, constitutional laws, and the Constitution,
that substatutory legal acts must be adopted on the basis of
laws, that a substatutory legal act is an act of application of
legislative norms irrespective of whether this act is of
one-time (ad-hoc) application, or of permanent validity."
The Seimas has an authority to pass also resolutions
concerning the implementation of laws specified in Item 2 of
Article 94 of the Constitution. In these resolutions
assignments to other state institutions to take legal and/or
organizational actions to ensure implementation of laws may be
formulated. However, it needs to be stressed that resolutions
of the Seimas concerning the implementation of laws are
substatutory legal acts; they may not provide for any such
legal regulation that would compete with that established in
laws. Otherwise they would not meet the constitutional concept
of Seimas' resolutions on the implementation of laws as
substatutory legal acts.
10. According to Item 2 of Article 94 of the Constitution
the Government shall execute laws and resolutions of the Seimas
concerning the implementation of laws, as well as the decrees
of the President of the Republic.
The Constitutional Court in its rulings has held more than
once that the acts of the Government are substatutory acts.
They are acts of application of laws and may not replace laws,
be in conflict with laws, amend the content of norms of laws,
and they may not establish any such legal regulation that would
compete with that of laws. The constitutional principle of a
state under the rule of law implies also a hierarchy of legal
acts.
The Government substatutory acts-resolutions-are passed on
the basis of the Constitution and laws (Constitutional Court
ruling of 13 December 2003). According to the provision of Item
2 of Article 94 of the Constitution that the Government
executes laws and resolutions of the Seimas concerning the
implementation of laws, the Government's duty to adopt
substatutory acts necessary for the implementation of laws
originates directly from the Constitution. Moreover, when it
sees that in order to implement laws substatutory acts are
needed to be adopted, the legislator may assign the Government
with such duty in a law or resolution of the Seimas concerning
the implementation of laws. Thus the duty of the Government to
adopt substatutory acts that are needed for implementation of
laws originates from the Constitution, and, upon the assignment
of the legislator, also from laws and resolutions of the Seimas
concerning the implementation of laws (Constitutional Court
ruling of 30 October 2001). The Government is not obliged to
specify in the substatutory acts which particular laws,
resolutions of the Seimas or decrees of the President of the
Republic it implements by adopting a substatutory legal act; it
is important that the Government adopt a substatutory legal
acts without exceeding its own powers, and that these
substatutory acts be not in conflict with the Constitution and
laws (Constitutional Court ruling of 18 December 2001).
11. In its ruling of 29 October 2003, the Constitutional
Court held: "Upon restoration of the independent State of
Lithuania on 11 March 1990, the creation of the national legal
system was started. On 11 March 1990, the Supreme Council
adopted the provisional Basic Law of the Republic of Lithuania.
Until 2 November 1992, when the Constitution of the Republic of
Lithuania, which was adopted by the Nation in the referendum on
25 October 1992, came into effect, the national legal system
used to be created and developed on the basis of the
Provisional Basic Law. The creation and development of the
national legal system is a gradual process".
In the said ruling the Constitutional Court noted that the
principle of the supremacy of the Constitution implies also a
duty of the legislator and other lawmaking subjects to revise
legal acts which were passed before the entry into effect of
the Constitution, while taking account of norms and principles
of the Constitution, and to ensure a harmonious hierarchical
system of legal acts which regulate the same relationships.
Therefore, upon coming into effect of the Constitution,
the state institutions which have powers to adopt legal
decisions, may do this only by paying heed to the Constitution.
Within the context of the case at issue it should be noted
that only such Government powers to issue legal acts may be
recognized as being in compliance with the Constitution, which
originate from the Constitution or laws and resolutions of the
Seimas concerning the implementation of laws which are not in
conflict with the Constitution, as well as decrees of the
President of the Republic which are not in conflict with the
Constitution.
12. It was already mentioned that according to the
Constitution certain types of the social assistance, persons to
whom social assistance is granted, the bases and conditions of
granting social assistance and payment thereof, as well as the
amount of assistance may be established only by the law and
that substatutory acts, thus the Government resolutions also,
may establish only the procedure (procedures) of implementation
of the laws that regulate the social assistance relations, and
that the substatutory regulation of the relations specified in
Article 52 of the Constitution may not establish any conditions
of appearance of a person's right to the social assistance, nor
restrict the scope of such right.
13. It was already mentioned that Paragraph 1 of Article
10 (wording of 3 November 1994) of the Law on Individual Income
Security specifies the sole criterion according to which it is
defined which residents are paid the social allowance, namely
the fact that the family income is lower than that subject to
the state support.
It was held in this Ruling of the Constitution Court that
the substatutory regulation of relations specified in Article
52 of the Constitution may not establish conditions of
appearance of a person's right to the social assistance, nor
restrict the scope of such right; that resolutions of the
Seimas concerning the implementation of laws which are
specified in Item 2 of Article 94 of the Constitution may not
establish any such legal regulation which would compete with
the one established in the law; that the Seimas, according to
the Constitution, has no right to assign the Government inter
alia with implementation of the constitutional competence of
the Seimas, and the Government cannot accept and execute such
assignment.
According to Item 1 of Supreme Council Resolution No.
I-619 "On Application of the Republic of Lithuania Law on
Individual Income Security" of 27 September 1990, the social
allowance established in Chapter III of the Law is started to
be paid upon the implementation of the income declaration; to
certain categories of residents the social allowance may start
to be paid even earlier upon a separate resolution of the
Government.
It was held in this Ruling of the Constitutional Court
that by such legal regulation the legislator linked the right
of families (residents) to the social allowance defined in
Chapter III of the Law with the income declaration, and thus
restricted the implementation of the provision of Paragraph 1
of Article 10 (wording of 3 November 1994) of the Law by a
substatutory act-the resolution of the Supreme Council. It was
also held that the legal regulation established in Item 1 of
the Supreme Council Resolution of 27 September 1990 which has
been adopted prior to the entry of the Constitution into
effect, and which has not been amended or nullified after the
entry of the Constitution into effect, inter alia means that
the Government has powers to establish by separate resolutions
the cases where certain categories of residents are paid the
social allowance defined in Chapter III of the Law.
Thus, the provisions "the payment of the social allowance
established in Chapter III of the Law begins upon the
implementation of the income declaration. The payment of the
social allowance to certain categories of residents may begin
even earlier upon a separate resolution of the Government" of
Item 1 of Supreme Council Resolution No. I-619 "On Application
of the Republic of Lithuania Law on Individual Income Security"
of 27 September 1990 compete with the legal regulation
established in Paragraph 1 (wording of 3 November 1994) of
Article 10 of the Law on Individual Income Security.
By the same it is to be held that such legal regulation is
not in line with the provisions of Article 52 and Item 2 of
Article 94 of the Constitution, and the constitutional
principle of separation of powers.
14. It is to be noted that as it was held in this Ruling
of the Constitutional Court the principle of supremacy of the
Constitution implies the duty of the legislator and other
lawmaking subjects to revise legal acts which were passed
before the entry of the Constitution into effect, while taking
account of norms and principles of the Constitution, and to
ensure a harmonious hierarchical system of legal acts which
regulate the same relationships. Therefore, according to the
Constitution, the Seimas had a duty to revise the provisions
"the payment of the social allowance established in Chapter III
of the Law begins upon the implementation of the income
declaration. The payment of the social allowance to certain
categories of residents may begin even earlier upon a separate
resolution of the Government" of Item 1 of Supreme Council
Resolution No. I-619 "On Application of the Republic of
Lithuania Law on Individual Income Security" of 27 September
1990 with regard to their compliance with the Constitution and
to nullify them or amend them so that they become in line with
the Constitution. This has not been done. The fact that the
provisions "the payment of the social allowance established in
Chapter III of the Law begins upon the implementation of the
income declaration. The payment of the social allowance to
certain categories of residents may begin even earlier upon a
separate resolution of the Government" of Item 1 of Supreme
Council Resolution No. I-619 "On Application of the Republic of
Lithuania Law on Individual Income Security" of 27 September
1990 remained in force after the Constitution had gone into
effect, is not in compliance with the principle of supremacy of
the Constitution. When the said provisions are left in force
after the Constitution had gone into effect, one deviates from
the constitutional principle of a state under the rule of law.
15. Taking account of the arguments set forth, a
conclusion is to be made that the provisions "The payment of
the social allowance established in Chapter III of the Law
begins upon the implementation of the income declaration. The
payment of the social allowance to certain categories of
residents may begin even earlier upon a separate resolution of
the Government" of Item 1 of Supreme Council Resolution No.
I-619 "On Application of the Republic of Lithuania Law on
Individual Income Security" of 27 September 1990 are in
conflict with Article 52 and Item 2 of Article 94 of the
Constitution, the constitutional principle of a state under the
rule of law, the constitutional principle of separation of
powers, as well as Paragraph 1 of Article 10 (wording of 3
November 1994) of the Law on Individual Income Security.
V
On the compliance of Item 6.1.1 (wording of 6 November
1996), Item 6.1.4 (wording of 6 November 1996), Item 6.1.5
(wording of 6 November 1996), Item 7 (wording of 6 November
1996), and Item 9 of the Regulations on Granting the Social
Allowance and Payment Thereof as approved by Government
Resolution No. 808 "On the Approval of the Regulations on
Granting the Social Allowance and Payment Thereof" of 5 July
1996 with Article 5 and Item 2 of Article 94 of the
Constitution, and Paragraph 1 of Article 10 (wording of 3
November 1994) of the Law on Individual Income Security.
1. By its Resolution No. 808 "On the Approval of the
Regulations on Granting the Social Allowance and Payment
Thereof" of 5 July 1996, the Government confirmed the
Regulations on Granting the Social Allowance and Payment
Thereof.
By its Resolution No. 1284 "On Partial Amendment to the
Republic of Lithuania Government Resolution No. 808 'On the
Approval of the Regulations on Granting the Social Allowance
and Payment Thereof' of 5 July 1996" of 6 November 1996, the
Government amended the Regulations on Granting the Social
Allowance and Payment Thereof which were approved by Government
Resolution No. 808 "On the Approval of the Regulations on
Granting the Social Allowance and Payment Thereof" on 5 July
1996.
One more amendment to the Regulations on Granting the
Social Allowance and Payment Thereof which were approved by
Government Resolution No. 808 "On the Approval of the
Regulations on Granting the Social Allowance and Payment
Thereof" of 5 July 1996 was made by Government Resolution No.
170 "On Recognising Item 16 of the Regulations on Granting the
Social Allowance and Payment Thereof which were approved by
Government Resolution No. 808 'On the Approval of the
Regulations on Granting the Social Allowance and Payment
Thereof' of 5 July 1996 as No Longer Valid" of 28 February
1997, which recognised Item 16 of the said Regulations as no
longer valid.
The Government, by its Resolution No. 441 "On the Approval
of the Regulations on Granting the Social Allowance and Payment
Thereof" of 17 April 2000, confirmed the Regulations on
Granting the Social Allowance and Payment Thereof. Item 2 of
the said Resolution recognised Government Resolution No. 808
"On the Approval of the Regulations on Granting the Social
Allowance and Payment Thereof" of 5 July 1996 (with subsequent
amendments) as no longer valid.
1.1. Item 6 (wording of 6 November 1996) of the
Regulations on Granting the Social Allowance and Payment
Thereof which were approved by Government Resolution No. 808
"On the Approval of the Regulations on Granting the Social
Allowance and Payment Thereof" of 5 July 1996 used to provide:
"The allowance shall be granted and paid to families
(single persons) in case:
6.1. the spouses, one of the spouses (single persons):
6.1.1. are (is) employed full time under an employment
contract and within a 3-month period, the income during which
needs to be calculated, have (has) worked at least two thirds
of the work-time established in the work schedule of the
enterprise, institution or organization (including the period
of temporary inability to work, downtime which occurred due to
a reason other than the employee's fault, annual vacations and
other period during which the employee did not work due to
justifiable reasons and which is remunerated by the average
salary or a part thereof) and their (his) calculated salary was
not less than the minimum monthly salary or the minimum hourly
remuneration in proportion to the working time or the task
performed.
Where the person has worked for the period less than 2
months, the allowance to his family (to him) shall be granted
and income shall be calculated according to the second section
of Item 25 of the Regulations;
6.1.2. are (is) performing actual military service (except
the compulsory one) upon the procedure established in the
Republic of Lithuania Law on National Defence;
6.1.3. are (is) a full-time students (student) at state
(municipal) educational establishments;
6.1.4. are (is) unemployed, who receive (receives) the
unemployment allowance, while during the period of
training-training allowance; are (is) registered at the labour
exchange office and engaged in public works or works supported
by the Employment Fund according to a contract which was
concluded for the period no shorter than 2 months;
6.1.5. are (is) registered at the labour exchange office
and the period of payment of the unemployment allowance (within
the period of training-the training allowance) established in
the Republic of Lithuania Law on Assistance to the Unemployed
has expired; the period of validity of the contract concerning
public works or works supported by the Employment Fund which
was concluded for the period no shorter than 2 months has
expired, and the unemployed person has not terminated it by his
own choice. The allowance to their families (single persons)
shall be granted and paid for no longer than 6 months from the
date of finishing the payment of the unemployment allowance
(within the period of training-the training allowance) or
termination of the contract on public works or works supported
by the Employment Fund. Where the person is registered at the
labour exchange office anew, the allowance shall not be granted
to the family (it shall be terminated);
6.1.6. have (has) reached the age limit for the
old-age-pension;
6.1.7. are (is) disabled;
6.1.8. have (has) been commissioned for at least a month
to an in-patient treatment institution or had (has) been
recognized by the doctors consultative commission as unable to
work;
6.2. one of the spouses is employed or unemployed due to
the reasons listed in Items 6.1.2, 6.1.3, 6.1.7, or 6.1.8 of
these Regulations, and the other spouse or the single person
nurses a family member or a relative who is a disabled person
belonging to I or II group, a disabled child or a sick person,
and who needs constant nursing according to a conclusion of the
doctors consultative commission or the commission on
determining the disability, or who was recognized as incapable
by court;
6.3. one of the spouses is employed or unemployed due to
the reasons listed in Items 6.1.2-6.1.8 of the Regulations, and
the other spouse or a single person is:
6.3.1. not working pregnant woman (70 calendar days prior
to delivery) who has submitted a certificate from the medical
institution;
6.3.2. a person, instead of pension who receives monthly
compensations upon the procedure established by the Republic of
Lithuania Law on State Social Insurance Pensions or the
Republic of Lithuania Law on Social Assistance (Social)
Pensions."
1.2. Item 7 (wording of 6 November 1996) of the
Regulations used to provide:
"The allowance shall be granted and paid solely to
families which raise children, where:
7.1. one of the parents raise at home a child younger than
3 years of age who does not attend a pre-school children
educational establishment, and there is no other parent or the
other parent is employed or unemployed due to the reasons
listed in Items 6.1.2-6.1.8 and Item 6.2 of these Regulations;
7.2. a mother (when the father is employed or unemployed
due to the reasons listed in Items 6.1.2-6.1.8 and Item 6.2 of
the Regulations) or a father (when there is no mother or when
she submits a medical conclusion that she is unable to nurse a
child due to her state of health):
7.2.1. raises a child younger than 14 years of age or a
disabled child younger than 16 years of age and works part
time, while the calculated salary is not less than the minimum
monthly salary or the minimum hourly remuneration in proportion
to the working time or the task performed;
7.2.2. raises at home 3 or more children younger than 16
years of age, where at least one of them is younger than 8
years of age and at least one of the children of pre-school age
does not attend a pre-school children educational establishment
or school (certificate issued by a regional pediatrician or by
the municipality certifying the fact must be submitted);
7.2.3. raises at home a child of pre-school age according
to the doctors recommendation (approved certificate which was
issued by a medical institution);
7.2.4. raises at home a child (children) younger than 16
years of age and has a peace of land with total agricultural
area is from 2 to 3.5 hectare;
7.3. children from 16 to 18 years of age:
7.3.1. are employed (limitations established in Item 6.1.1
do not apply);
7.3.2. are full-time students at a state (municipal)
educational establishments;
7.3.3. are registered at the labour exchange office."
1.3. Item 9 of the Regulations used to provide:
"The allowance is granted in case the persons specified in
Items 6-8 of these Regulations are not owners of individual
enterprises, founders of stock (close stock) companies, do not
hold the controlling share portfolio, as well as have not
acquired a patent."
Item 8 (wording of 6 November 1996) of the Regulations
which is referred to in Item 9 of the Regulations used to
provide:
"Social allowance shall be granted and paid solely to the
children in families which have a personal farm with the total
agricultural area from 2 to 3.5 hectare in the following cases:
8.1. the parents (one of the parents, when there is no
other parent, when the parent is employed or unemployed due to
the reasons listed in Items 6 and 7 of the Regulations) are
employed at an enterprise engaged in agricultural activity and
their (his) salary within the 3-month period, the income during
which needs to be calculated, is not less than one minimum
monthly salary approved by the Government of the Republic of
Lithuania;
8.2. the parents (one of the parents, when there is no
other parent, when the parent is employed or unemployed due to
the reasons listed in Items 6 and 7 of these Regulations) are
unemployed, registered at the labour exchange office as those
who search for a job and do not receive an unemployment
(training) allowance. The allowance to the families is paid for
the period no longer than 6 months."
1.4. All the disputed items of the Regulations on Granting
the Social Allowance and Payment Thereof (to the extent that,
in the opinion of the petitioner, they established additional
conditions and limitations on receipt of the social allowance,
in comparison to Paragraph 1 of Article 10 (wording of 3
November 1994) of the Law on Individual Income Security) which
were adopted by Government Resolution No. 808 "On the Approval
of the Regulations on Granting the Social Allowance and Payment
Thereof" of 5 July 1996, were specified in the chapter
"Beneficiaries of the Social Allowance" of the Regulations.
2. It was already mentioned that Paragraph 1 of Article 10
(wording of 3 November 1994) of the Law on Individual Income
Security indicates the sole criterion of defining which
individuals shall be paid the social allowance, namely, the
fact that the family income is lower than the income subject to
the state support.
In this Ruling of the Constitution Court it was held that
the substatutory legal regulation of relations indicated in
Article 52 of the Constitution may not establish conditions of
appearance of a person's right to the social assistance, and to
limit the scope of such right; that various types of social
assistance are guaranteed to the persons and on such bases
which are established by the law, that certain types of social
assistance, persons who are granted social assistance, bases
and conditions of granting the social assistance and payment
thereof, the amount of social assistance may, under the
Constitution, be established only by the law, that substatutory
acts, thus Government resolutions as well, may establish only
the procedure (procedures) of the implementation of laws which
regulate social assistance relations.
3. Disputed Item 6.1.1 (wording of 6 November 1996), Item
6.1.4 (wording of 6 November 1996), Item 6.1.5 (wording of 6
November 1996), Item 7 (wording of 6 November 1996), and Item 9
of the Regulations on Granting the Social Allowance and Payment
Thereof which were adopted by Government Resolution No. 808 "On
the Approval of the Regulations on Granting the Social
Allowance and Payment Thereof" of 5 July 1996 established not
the procedure of granting and paying of the social allowance,
but the conditions of receipt of such allowances and the
persons who had the right to get the social allowance, as well
as the range of persons eligible for receiving the social
allowance was reduced in comparison to the range established in
Paragraph 1 of Article 10 (wording of 3 November 1994) of the
Law on Individual Income Security.
On the other hand, as it was already mentioned, the
Constitution does not prohibit the legislator from
establishing, by the law, such bases and conditions of granting
the social assistance, and amounts of the social assistance, so
as to encourage attempts, first of all, to take care of one's
own or one's family welfare by one's own efforts first of all
and to contribute to the welfare of the entire society. The
fact that the legislator has a broad discretion to
differentiate the social assistance has also been mentioned.
However, only the laws may link the granting of the social
assistance with the attempts of a person, who claims to receive
the social assistance, to take care of one's own or one's
family welfare by one's own efforts first of all. In the case
at issue this was established by a substatutory act-the
Government resolution.
The said legal regulation which was established by a
substatutory legal act-the Government resolution-competes with
the one established in the law; the substatutory legal
regulation virtually changes the one established by the law.
This is not in line with the provision of Paragraph 2 of
Article 5 of the Constitution which provides that the scope of
powers shall be limited by the Constitution, as well as
provisions of Article 52 and Item 2 of Article 94 of the
Constitution.
4. Taking account of the arguments set forth, one is to
draw a conclusion that Item 6.1.1 (wording of 6 November 1996),
Item 6.1.4 (wording of 6 November 1996), Item 6.1.5 (wording of
6 November 1996), Item 7 (wording of 6 November 1996), and Item
9 of the Regulations on Granting the Social Allowance and
Payment Thereof as approved by Government Resolution No. 808
"On the Approval of the Regulations on Granting the Social
Allowance and Payment Thereof" of 5 July 1996, all the items to
the extent that they established additional conditions and
limitations on receipt of the social allowance, in comparison
to Paragraph 1 of Article 10 (wording of 3 November 1994) of
the Republic of Lithuania Law on Individual Income Security,
were in conflict with Paragraph 2 of Article 5, Article 52, and
Item 2 of Article 94 of the Constitution of the Republic of
Lithuania, as well as Paragraph 1 of Article 10 (wording of 3
November 1994) of the Law on Individual Income Security.
VI
On the compliance of Item 5.1.1, Item 5.1.7 (wordings of
17 April 2000 and 14 July 2000), 5.1.8 (wordings of 17 April
2000 and 14 July 2000), Items 5.4, 5.5.2, and 9 of the
Regulations on Granting the Social Allowance and Payment
Thereof as approved by Government Resolution No. 441 "On the
Approval of the Regulations on Granting the Social Allowance
and Payment Thereof" of 17 April 2000 with Article 5 and Item 2
of Article 94 of the Constitution, and Paragraph 1 of Article
10 (wording of 3 November 1994) of the Law on Individual Income
Security, as well as on the compliance of Item 7 (wording of 6
November 1996) of the Regulations on Granting the Social
Allowance and Payment Thereof as approved by Government
Resolution No. 808 "On the Approval of the Regulations on
Granting the Social Allowance and Payment Thereof" of 5 July
1996, and Items 5.4 and 5.5.2 of the Regulations on Granting
the Social Allowance and Payment Thereof as approved by
Government Resolution No. 441 "On the Approval of the
Regulations on Granting the Social Allowance and Payment
Thereof" of 17 April 2000 with Paragraph 2 of Article 38 and
Paragraph 1 of Article 39 of the Constitution.
1. By its Resolution No. 441 "On the Approval of the
Regulations on Granting the Social Allowance and Payment
Thereof" of 17 April 2000 the Government approved the
Regulations on Granting the Social Allowance and Payment
Thereof.
By its Resolution No. 836 "On Partial Amendment to
Government of the Republic of Lithuania Resolution No. 441 'On
the Approval of the Regulations on Granting the Social
Allowance and Payment Thereof' of 17 April 2000" of 14 July
2000, the Government made amendments to the Regulations on
Granting the Social Allowance and Payment Thereof which were
confirmed by Government Resolution No. 836 "On the Approval of
the Regulations on Granting the Social Allowance and Payment
Thereof" of 17 April 2000; amendments inter alia were made to
Item 5.1.7 (wording of 17 April 2000), and Item 5.1.8 (wording
of 17 April 2000) of the said regulations, the compliance of
which with the Constitution and Paragraph 1 of Article 10
(wording of 3 November 1994) of the Law on Individual Income
Security is disputed by the petitioner.
On 9 October 2003, the Government adopted Resolution No.
1251 "On Assignment of Powers While Implementing the Republic
of Lithuania Law on Monetary Social Assistance to Families
(Persons Living Alone) with Low Income", Item 3 of which
recognised inter alia Government Resolution No. 441 "On the
Approval of the Regulations on Granting the Social Allowance
and Payment Thereof" of 17 April 2000 (with subsequent
amendments) as no longer valid from 1 January 2004.
By its Resolution No. 1683 "On Amendment to Government of
the Republic of Lithuania Resolution No. 1251 'On Assignment of
Powers While Implementing the Republic of Lithuania Law on
Monetary Social Assistance to Families (Persons Living Alone)
with Low Income' of 9 October 2003" of 24 December 2003, the
Government changed the date from which Government Resolution
No. 441 "On the Approval of the Regulations on Granting the
Social Allowance and Payment Thereof" of 17 April 2000 (with
subsequent amendments) inter alia is recognised as no longer
valid, and resolved that it shall be no longer effective from 1
April 2004.
Thus, although Government Resolution No. 441 "On the
Approval of the Regulations on Granting the Social Allowance
and Payment Thereof" of 17 April 2000 and the Regulations on
Granting the Social Allowance and Payment Thereof (with
subsequent amendments) which were approved by this Resolution
are recognised as the ones that shall be no longer effective
from 1 April 2004, during the investigation of the case they
are still in force.
1.1. Item 5 (wording of 17 April 2000) of the Regulations
on Granting the Social Allowance and Payment Thereof which were
approved by Government Resolution No. 441 "On the Approval of
the Regulations on Granting the Social Allowance and Payment
Thereof" of 17 April 2000, provides:
"The allowance shall be granted and paid to a family
(person living alone) in case:
5.1. the adult members of the family (person living
alone):
5.1.1. are (is) employed under an employment contract and
within the 3 months period, the income during which needs to be
calculated, had worked at least two thirds of the maximum
working time established in the Republic of Lithuania Law on
Human Safety at Work (Official Gazette Valstybės žinios, 1993,
No. 55-1064) (including the period of temporary inability to
work, downtime which occurred due to a reason other than the
employee's fault, annual vacations and other period during
which the employee was not at work due to justifiable reasons
and which is remunerated according to the procedure established
by the law), and their calculated salary is not less than the
minimum hourly remuneration or the minimum monthly salary in
proportion to the working time or the task performed.
When member(s) of the family which had no right to the
social allowance starts (start) to work, the family acquires
the right to receive the allowance from the entire calendar
month worked off. The allowance is granted where the calculated
salary of member(s) of family who started to work for the said
month is not less than the minimum hourly remuneration or the
minimum monthly salary in proportion to the working time or the
task performed; <...>
5.1.7. are (is) unemployed, and receive the unemployment
allowance, while during the period of training-training
allowance;
5.1.8. are (is) unemployed whose period of payment of the
unemployment allowance or the training allowance has expired.
The right to receive the allowance remains until the
registration at the national territorial labour exchange office
becomes terminated or the unemployed person(s) becomes (become)
registered anew; <...>
5.4. the mother or father (guardian) raises at home a
child younger than 3 years of age who does not attend a
pre-school educational establishment;
5.5. the mother (father, when there is no mother or she is
not able to take care of the child due to important
reasons-illness, disability, service of punishment, etc.):
<...>
5.5.2. who has 3 or more children under 16 years of age
and raises at home at least one child younger than 8 years of
age who do not attend a pre-school educational establishment or
school <...>."
1.2. Item 5 (wording of 14 July 2000) provides:
"The allowance shall be granted and paid to a family
(person living alone) in case:
5.1. the adult members of the family (person living
alone): <...>
5.1.7. are (is) unemployed, receive the unemployment
allowance, and during the period of training-training
allowance; are (is) registered at the state territorial labour
exchange office and engaged in public works or works supported
by the Employment Fund under a contract which was made for the
period no shorter than 2 months;
5.1.8. are (is) unemployed, registered at the state
territorial labour exchange office and the period of payment of
the unemployment allowance (within the period of training-the
training allowance) established in the Republic of Lithuania
Law on Assistance to the Unemployed has expired; the period of
validity of the contract concerning public works or works
supported by the Employment Fund which was concluded for the
period no shorter than 2 months has expired, and the unemployed
person has not terminated it by his own choice. The allowance
to their families (person living alone) shall be granted and
paid for no longer than 6 months from the date of finishing the
payment of the unemployment allowance or termination of the
contract on public works or works supported by the Employment
Fund. Where the person is registered at the labour exchange
office anew, the allowance shall not be granted to the family
(it shall be terminated);
The families of the persons listed in Items 5.1.7. and
5.1.8 shall not be granted the allowance and payment thereof
shall be terminated where upon the established order they
refuse to take a proposed job, training courses, public works
or works supported by the Employment Fund <...>".
1.3. Item 9 of the regulations provides:
"9. The allowance shall not be granted to the family
(person living alone), where at least one member of the family
(person living alone) is the owner of an individual (private)
enterprise or holds a patent.
The family (persons living alone) acquires a right to the
allowance in case the owner of an individual (private) company,
where the latter is not active, meets the requirements set
forth in Item 5.1.9."
1.4. All the disputed items of the Regulations on Granting
the Social Allowance and Payment Thereof (to the extent that in
the opinion of the petitioner, they established additional
conditions and limitations on receipt of the social allowance,
in comparison to Paragraph 1 of Article 10 of the Law on
Individual Income Security) which were adopted by Government
Resolution No. 441 "On the Approval of the Regulations on
Granting the Social Allowance and Payment Thereof" of 17 April
2000, were specified in Chapter II "Requirements Concerning
Receipt of the Social Allowance" of the Regulations.
2. It was already mentioned that Paragraph 1 of Article 10
(wording of 3 November 1994) of the Law on Individual Income
Security indicates the sole criterion of defining which
individuals shall be paid the social allowance, namely the fact
that the family income is lower than the income subject to the
state support.
In this Ruling of the Constitution Court it was held that
the substatutory legal regulation of the relations indicated in
Article 52 of the Constitution may not establish conditions of
appearance of a person's right to social assistance, and to
limit the scope of such right; that various types of social
assistance are guaranteed to such persons and on such bases
which are established by the law; that, under the Constitution,
certain types of social assistance, the persons who are granted
social assistance, the bases and conditions of granting social
assistance and payment thereof, the amounts of social
assistance may be established only by the law; that
substatutory acts, thus Government resolutions also, may
establish only the procedure (procedures) of the implementation
of laws which regulate social assistance relations.
3. Disputed Item 5.1.1, Item 5.1.7 (wordings of 17 April
2000 and 14 July 2000), Item 5.1.8. (wordings of 17 April 2000
and 14 July 2000), Items 5.4, 5.5.2, and 9 of the Regulations
on Granting the Social Allowance and Payment Thereof which were
confirmed by Government Resolution No. 441 "On the Approval of
the Regulations on Granting the Social Allowance and Payment
Thereof" of 17 April 2000 established not the procedure of
granting and paying the social allowance, but the conditions of
receipt of such allowances and the persons who have the right
to get the social allowance, while the range of persons
eligible for receiving social allowance was reduced in
comparison to the range established in Paragraph 1 of Article
10 (wording of 3 November 1994) of the Law on Individual Income
Security.
On the other hand, as it was already mentioned, the
Constitution does not prohibit the legislator from
establishing, by mans of the law, such bases and conditions of
granting social assistance, and the amounts of social
assistance, so as to encourage, first of all, attempts to take
care of one's own or one's family welfare by one's own efforts
and to contribute to the welfare of the entire society. The
fact that the legislator has a broad discretion to
differentiate social assistance has also been mentioned.
However, only the laws may link the granting of social
assistance with the person's attempts, who claims to receive
the social assistance, to take care of one's own or one's
family welfare by one's own efforts first of all. In the case
at issue this was established by a substatutory act-the
Government resolution.
The aforesaid legal regulation, which was established by a
substatutory legal act, the Government resolution, competes
with the one established in the law; the substatutory legal
regulation virtually changes the one established by law. This
is not in line with the provision of Paragraph 2 of Article 5
of the Constitution that the scope of powers shall be limited
by the Constitution, as well as the provisions of Article 52
and Item 2 of Article 94 of the Constitution.
4. Taking account of the arguments set forth, one is to
draw a conclusion that Item 5.1.1, Item 5.1.7 (wordings of 17
April 2000 and 14 July 2000), Item 5.1.8. (wordings of 17 April
2000 and 14 July 2000), Items 5.4, 5.5.2, and 9 of the
Regulations on Granting the Social Allowance and Payment
Thereof which were adopted by Government Resolution No. 441 "On
the Approval of the Regulations on Granting the Social
Allowance and Payment Thereof" of 17 April 2000, all the items
to the extent that they established additional conditions and
limitations on receipt of the social allowance, in comparison
to Paragraph 1 of Article 10 (wording of 3 November 1994) of
the Republic of Lithuania Law on Individual Income Security,
are in conflict with Paragraph 2 of Article 5, Article 52, and
Item 2 of Article 94 of the Constitution, as well as Paragraph
1 of Article 10 (wording of 3 November 1994) of the Law on
Individual Income Security.
5. The petitioner requests to investigate whether Item 7
(wording of 6 November 1996) of the Regulations on Granting the
Social Allowance and Payment Thereof which were confirmed by
Government Resolution No. 808 "On the Approval of the
Regulations on Granting the Social Allowance and Payment
Thereof" of 5 July 1996, to the extent that it established
limitations on receipt of the social allowance to individual
families that raise children at home, and Items 5.4 and 5.5.2
of the Regulations on Granting the Social Allowance and Payment
Thereof which were confirmed by Government Resolution No. 441
"On the Approval of the Regulations on Granting the Social
Allowance and Payment Thereof" of 17 April 2000, to the extent
that both items established limitations on receipt of the
social allowance to individual families that raise children at
home, are not in conflict with Paragraph 2 of Article 38 and
Paragraph 1 of Article 39 of the Constitution.
It was held inter alia in this Ruling of the
Constitutional Court that Item 7 (wording of 6 November 1996)
of the Regulations on Granting the Social Allowance and Payment
Thereof which were confirmed by Government Resolution No. 808
"On the Approval of the Regulations on Granting the Social
Allowance and Payment Thereof" of 5 July 1996, to the extent
that it established additional conditions and limitations on
receipt of the social allowance, in comparison to Paragraph 1
of Article 10 (wording of 3 November 1994) of the Law on
Individual Income Security, was in conflict with Paragraph 2 of
Article 5, Article 52, and Item 2 of Article 94 of the
Constitution, as well as Paragraph 1 of Article 10 (wording of
3 November 1994) of the Law on Individual Income Security, and
that Items 5.4 and 5.5.2 of the Regulations on Granting the
Social Allowance and Payment Thereof which were confirmed by
Government Resolution No. 441 "On the Approval of the
Regulations on Granting the Social Allowance and Payment
Thereof" of 17 April 2000, both items to the extent that they
established additional conditions and limitations on receipt of
the social allowance, in comparison to Paragraph 1 of Article
10 (wording of 3 November 1994) of the Law on Individual Income
Security, are in conflict with Paragraph 2 of Article 5,
Article 52, and Item 2 of Article 94 of the Constitution, as
well as Paragraph 1 of Article 10 (wording of 3 November 1994)
of the Law on Individual Income Security.
Having held this, in this case the Constitutional Court
will not examine whether Item 7 (wording of 6 November 1996) of
the Regulations on Granting the Social Allowance and Payment
Thereof which were adopted by Government Resolution No. 808 "On
the Approval of the Regulations on Granting the Social
Allowance and Payment Thereof" of 5 July 1996 and Items 5.4 and
5.5.2 of the Regulations on Granting the Social Allowance and
Payment Thereof which were confirmed by Government Resolution
No. 441 "On the Approval of the Regulations on Granting the
Social Allowance and Payment Thereof" of 17 April 2000 are not
in conflict with Paragraph 2 of Article 38 and Paragraph 1 of
Article 39 of the Constitution.
Conforming to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Articles 1, 53, 54, 55 and 56 of
the 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 provisions "the payment of the
social allowance established in Chapter III of the Law begins
upon the implementation of the income declaration. The payment
of the social allowance to certain categories of residents may
begin even earlier upon a separate resolution of the
Government" of Item 1 of Supreme Council of the Republic of
Lithuania Resolution No. I-619 "On Application of the Republic
of Lithuania Law on Individual Income Security" of 27 September
1990 are in conflict with Article 52 and Item 2 of Article 94
of the Constitution of the Republic of Lithuania, the
constitutional principle of a state under the rule of law, the
constitutional principle of separation of powers, as well as
Paragraph 1 of Article 10 (wording of 3 November 1994) of the
Republic of Lithuania Law on Individual Income Security.
2. To recognize that Item 6.1.1 (wording of 6 November
1996), Item 6.1.4 (wording of 6 November 1996), Item 6.1.5
(wording of 6 November 1996), Item 7 (wording of 6 November
1996), and Item 9 of the Regulations on Granting the Social
Allowance and Payment Thereof as confirmed by Government of the
Republic of Lithuania Resolution No. 808 "On the Approval of
the Regulations on Granting the Social Allowance and Payment
Thereof" of 5 July 1996, all the items to the extent that they
established additional conditions and limitations on receipt of
the social allowance, in comparison to Paragraph 1 of Article
10 (wording of 3 November 1994) of the Republic of Lithuania
Law on Individual Income Security, were in conflict with
Paragraph 2 of Article 5, Article 52, and Item 2 of Article 94
of the Constitution of the Republic of Lithuania, as well as
Paragraph 1 of Article 10 (wording of 3 November 1994) of the
Republic of Lithuania Law on Individual Income Security.
3. To recognize that Item 5.1.1, Item 5.1.7 (wordings of
17 April 2000 and 14 July 2000), Item 5.1.8. (wordings of 17
April 2000 and 14 July 2000), Item 5.4, Item 5.5.2, and Item 9
of the Regulations on Granting the Social Allowance and Payment
Thereof which were confirmed by Government of the Republic of
Lithuania Resolution No. 441 "On the Approval of the
Regulations on Granting the Social Allowance and Payment
Thereof" of 17 April 2000, all the items to the extent that
they established additional conditions and limitations on
receipt of the social allowance, in comparison to Paragraph 1
of Article 10 of the Republic of Lithuania Law on Individual
Income Security, are in conflict with Paragraph 2 of Article 5,
Article 52, and Item 2 of Article 94 of the Constitution of the
Republic of Lithuania, as well as Paragraph 1 of Article 10
(wording of 3 November 1994) of the Republic of Lithuania Law
on Individual Income Security.
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 Kūris
Kęstutis Lapinskas
Zenonas Namavičius
Augustinas Normantas
Jonas Prapiestis
Vytautas Sinkevičius
Stasys Stačiokas