Case No. 38/04-39/04
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
RULING
ON THE COMPLIANCE OF ARTICLE 4 (WORDINGS OF 2 JULY
2002, 4 NOVEMBER 2004, 19 MAY 2005 AND 8 JUNE 2006) OF
THE REPUBLIC OF LITHUANIA LAW ON THE STATE PENSIONS OF
JUDGES WITH THE CONSTITUTION OF THE REPUBLIC OF
LITHUANIA
22 October 2007
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Armanas
Abramavičius, Toma Birmontienė, Egidijus Kūris, Kęstutis
Lapinskas, Zenonas Namavičius, Ramutė Ruškytė, Vytautas
Sinkevičius, Stasys Stačiokas, and Romualdas Kęstutis Urbaitis,
with the secretary of the hearingDaiva Pitrėnaitė,
in the presence of the representative of the Seimas of
the Republic of Lithuania, the party concerned, who was Algirdas
Sysas, a Member of the Seimas,
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, in its public
hearing on 2 October 2007 heard constitutional justice case No.
38/04-39/04 subsequent to the petition of the Vilnius Regional
Administrative Court, the petitioner, requesting to investigate
the following:
1) whether Item 6 of Article 4 (wording of 2 July 2002)
of the Republic of Lithuania Law on the State Pensions of Judges
is not in conflict with Article 23, Paragraph 1 of Article 48 and
Article 52 of the Constitution of the Republic of Lithuania and
with the constitutional principle of a state under the rule of
law (petition No. 1B-47);
2) whether Item 6 of Article 4 (wording of 2 July 2002)
of the Republic of Lithuania Law on the State Pensions of Judges,
to the extent that it establishes that the state pension of
judges shall not be granted and the state pension which was
granted, shall not be paid if the person has the income from
which state social pension insurance contributions are calculated
and paid or if he receives state social insurance benefits of
sickness (including those paid by the employer during the days of
sickness), of maternity, of maternity (paternity) or of
unemployment, is not in conflict with Article 23, with the
provision that each human being may freely choose a job or
business of Paragraph 1 of Article 48, and with the provision
that the state shall guarantee to citizens the right to receive
an old age pension of Article 52 of the Constitution of the
Republic of Lithuania, and with the principle of a state under
the rule of law which, according to the petitioner, is enshrined
in the Preamble to the Constitution (Petition No. 1B-48).
By the Constitutional Court decision of 13 May 2005,
these petitions were joined into one case and it was given
reference number 38/04-39/04.
The Constitutional Court
has established:
I
1. The Vilnius Regional Administrative Court, the
petitioner, was investigating an administrative case. By its
ruling, the said court suspended the consideration of the case
and applied to the Constitutional Court with a petition
requesting to investigate whether Item 6 of Article 4 (wording of
2 July 2002) of the Law on the State Pensions of Judges
(hereinafter also referred to as the Law) is not in conflict with
Article 23, Paragraph 1 of Article 48 and Article 52 of the
Constitution and with the constitutional principle of a state
under the rule of law.
2. The Vilnius Regional Administrative Court, the
petitioner, was investigating an administrative case. By its
ruling, the said court suspended the consideration of the case
and applied to the Constitutional Court with a petition
requesting to investigate whether Item 6 of Article 4 (wording of
2 July 2002) of the Law, to the extent that it establishes that
the state pension of judges shall not be granted and the state
pension which was granted, shall not be paid if the person has
the income from which state social pension insurance
contributions are calculated and paid or if he receives state
social insurance benefits of sickness (including those paid by
the employer during the days of sickness), of maternity, of
maternity (paternity) or of unemployment, is not in conflict with
Article 23, with the provision that each human being may freely
choose a job or business of Paragraph 1 of Article 48, and with
the provision that the state shall guarantee to citizens the
right to receive an old age pension of Article 52 of the
Constitution, and with the principle of a state under the rule of
law which, according to the petitioner, is enshrined in the
Preamble to the Constitution.
II
1. The petition of the Vilnius Regional Administrative
Court, the petitioner, requesting to investigate whether Item 6
of Article 4 (wording of 2 July 2002) of the Law is not in
conflict with Article 23, Paragraph 1 of Article 48 and Article
52 of the Constitution and with the constitutional principle of a
state under the rule of law (petition No. 1B-47) is based on the
following arguments.
Under Item 6 of Article 4 (wording of 2 July 2002) of the
Law, the state pension of judges shall not be granted and the
state pension which was granted, shall not be paid if the person
has the income from which state social pension insurance
contributions are calculated and paid or if he receives state
social insurance benefits of sickness (including those paid by
the employer during the days of sickness), of maternity, of
maternity (paternity) or of unemployment.
The Vilnius Regional Administrative Court, the
petitioner, referring inter alia to the doctrinal provisions of
the Constitutional Court rulings of 25 November 2002 and 4 July
2003, doubts whether, under the Constitution, one may establish
such legal regulation that granting and payment of the state
pension of judges would be related to other income received by
the person. In the opinion of the petitioner, such legal
regulation established in Item 6 of Article 4 (wording of 2 July
2002) of the Law violates the right of the person to receive the
well-earned pension payments, thus, the person's constitutional
right of ownership is restricted. The disputed legal regulation,
according to the petitioner, also violates the right of a citizen
to receive a pension which is guaranteed in Article 52 of the
Constitution that implies legal certainty and creates a lawful
expectation of the person that upon reaching the required age and
having the required period of service, a pension of established
size will be paid which guarantees the corresponding income.
In addition, the right of each human being to freely
choose a job or business enshrined in Paragraph 1 of Article 48
of the Constitution implies the duty of the legislator to create
legal preconditions necessary for the implementation of this
right. In the opinion of the petitioner, the disputed legal
regulation restricts the said constitutional right, as well as
the right of the former judges who receive pensions to
participate in the economic activity.
2. The petition of the Vilnius Regional Administrative
Court, the petitioner, requesting to investigate whether Item 6
of Article 4 (wording of 2 July 2002) of the Law, to the extent
that it establishes that the state pension of judges shall not be
granted and the state pension which was granted, shall not be
paid if the person has the income from which state social pension
insurance contributions are calculated and paid or if he receives
state social insurance benefits of sickness (including those paid
by the employer during the days of sickness), of maternity, of
maternity (paternity) or of unemployment, is not in conflict with
Article 23, with the provision that each human being may freely
choose a job or business of Paragraph 1 of Article 48, with the
provision that the state shall guarantee to citizens the right to
receive an old age pension of Article 52 of the Constitution, and
with the principle of a state under the rule of law which,
according to the petitioner, is enshrined in the Preamble to the
Constitution (petition No. 1B-48) is essentially based on the
same arguments as the petition requesting to investigate whether
Item 6 of Article 4 (wording of 2 July 2002) of the Law is not in
conflict with Article 23, Paragraph 1 of Article 48 and Article
52 of the Constitution and with the constitutional principle of a
state under the rule of law (petition No. 1B-47).
In addition, it is stated that due to the legal
regulation established in Item 6 of Article 4 of the Law, the
person to whom a state pension is granted, as well as the person
who meets the conditions for receiving the state pension of
judges, has to choose whether to receive the state pension of
judges or to have the income from which state social pension
insurance contributions are calculated and paid and not to
receive the said pension; this fact, according to the petitioner,
does not permit such persons to freely choose a job or business.
III
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations from the
representative of the Seimas, the party concerned, who was the
Member of the Seimas A. Sysas were received, in which it is
stated that the disputed legal regulation is not in conflict with
Article 23, Paragraph 1 of Article 48 and Article 52 of the
Constitution, and with the constitutional principle of a state
under the rule of law. The position of the representative of the
party concerned is based on the following arguments.
1. The right to the state pension of judges appears on
the basis and under the conditions of the law, it is not the
right of ownership from the point of view of civil law. The
legislator may establish the conditions under which this pension
is granted and the cases in which it is not granted and paid.
Thus, the state pension of judges may be considered as ownership
only when it is granted and was paid under the procedure
established by laws; prior to that, the recipient of the pension
may not be considered as the owner of this pension.
2. Paragraph 1 of Article 48 of the Constitution
guarantees the right of a person to decide by himself whether to
work (to engage in business) or not. Legal acts establish certain
requirements for the person who wishes to work and they may not
be assessed as restricting the right of the person to freely
choose a job and business. Thus, also the disputed provision
which relates granting and payment of the state pensions of
judges with other income received by a person and which permits
the person to choose whether to work or to receive the pension
and which does not permit to work and to receive the pension at
the same time, is not to be assessed as violating the
constitutional right of a person to work, as well as the
constitutional right to the pension and social assistance, as the
Constitution does not guarantee the absolute rights of the person
but only that the corresponding rights are not denied. According
to the representative of the Seimas, the party concerned, the
state may establish additional (special) conditions for the
implementation of the said rights.
3. The state pensions of judges supplement the social
insurance guarantees which are the same for all residents and are
paid from the funds of the state budget. The purpose of such
pensions is to compensate the income which had been lost due to
termination of work, however, if a former judge continues to
work, he has income and the state does not have the duty to
provide him with social assistance.
IV
1. In the course of the preparation of the case for the
Constitutional Court hearing, written explanations from V.
Blinkevičiūtė, Minister of Social Security and Labour of the
Republic of Lithuania, G. Bužinskas, Minister of Justice of the
Republic of Lithuania, and R. Kaminskas, acting Director, Deputy
Director of the State Social Insurance Fund Board under the
Ministry of Social Security and Labour were received.
2. In the course of the preparation of the case for the
Constitutional Court hearing, the information from R. Bakšys,
Director of the National Courts Administration, regarding the
social guarantees of judges which are established and provided in
Lithuania and some other Member States of the European Union,
inter alia pensions, was received. From this information, it is
obvious that in Lithuania, the social (material) guarantees upon
expiry of the powers of the judge are established (and applied)
by following partially different principles than in most Member
States of the European Union.
V
At the hearing of the Constitutional Court, the
representative of the Seimas, the party concerned, who was A
Sysas, Chairman of the Committee on Social Affairs and Labour of
the Seimas, virtually repeated the arguments set forth in the
written explanations.
The Constitutional Court
holds that:
I
1. On 2 July 2002, the Seimas adopted the Law on the
State Pensions of Judges which came into force on 1 January 2003.
Article 4 (wording of 2 July 2002) of the Law inter alia
established the following:
"The state pension of judges shall not be granted and the
granted pension shall not be paid, if: <
>
6) the person has the income from which state social
pension insurance contributions are calculated and paid or if he
receives state social insurance benefits of sickness (including
those paid by the employer during the days of sickness), of
maternity, of maternity (paternity) or of unemployment."
2. It needs to be noted that the state pension of judges
was established for the first time namely by the said law; until
then such pension as the pension of judges had not been
established in the Republic of Lithuania.
3. The Vilnius Regional Administrative Court, the
petitioner, requests to investigate whether:
1) Item 6 of Article 4 (wording of 2 July 2002) of the
Law is not in conflict with Article 23, Paragraph 1 of Article 48
and Article 52 of the Constitution and with the constitutional
principle of a state under the rule of law (petition No. 1B-47);
2) Item 6 of Article 4 (wording of 2 July 2002) of the
Law, to the extent that it establishes that the state pension of
judges shall not be granted and the state pension which was
granted, shall not be paid if the person has the income from
which state social pension insurance contributions are calculated
and paid or if he receives state social insurance benefits of
sickness (including those paid by the employer during the days of
sickness), of maternity, of maternity (paternity) or of
unemployment, is not in conflict with Article 23, with the
provision that each human being may freely choose a job or
business of Paragraph 1 of Article 48, and with the provision
that the state shall guarantee to citizens the right to receive
an old age pension of Article 52 of the Constitution, and with
the principle of a state under the rule of law which, according
to the petitioner, is enshrined in the Preamble to the
Constitution (petition No. 1B-48).
4. It needs to be held that in both mentioned petitions,
the Constitutional Court is requested to investigate the
compliance of the same provisionthe provision "the state pension
of judges shall not be granted and the granted pension shall not
be paid, if: <
> (6) the person has the income from which state
social pension insurance contributions are calculated and paid or
if he receives state social insurance benefits of sickness
(including those paid by the employer during the days of
sickness), of maternity, of maternity (paternity) or of
unemployment" of Article 4 (wording of 2 July 2002) of the Law
with the Constitution.
5. The Vilnius Regional Administrative Court, the
petitioner, requests to investigate whether the disputed legal
regulation is not in conflict inter alia with the principle of a
state under the rule of law which, according to the petitioner,
is enshrined in the Preamble to the Constitution (petition No.
1B-48).
The Constitutional Court has held in its acts more than
once that the constitutional principles of justice and a state
under the rule of law may not be construed as those entrenched
only in the Preamble of the Constitution, nor identified only
with the striving for an open, just and harmonious civil society
and state under the rule of law proclaimed in the Preamble of the
Constitution; the investigation into the compliance of legal acts
(parts thereof) with the striving for an open, just and
harmonious civil society and state under the rule of law
proclaimed in the Preamble to the Constitution implies the
investigation into their compliance with the constitutional
principle of a state under the rule of law.
II
1. The provision of Article 4 (wording of 2 July 2002) of
the Law which is disputed by the Vilnius Regional Administrative
Court, the petitioner, is designed to regulate the relations
linked with one of the social (material) guarantees of a judge
with the state pension of judgesand it enshrines one of the
cases when the state pension of judges is not granted, and the
granted one is not paid.
Thus, the investigation of the compliance of the disputed
provision with the Constitution in the constitutional justice
case at issue implies the fact that, on the one hand, it must be
elucidated what requirements which stem from the Constitution
must be heeded by regulating the pensionary relations by legal
acts, and, on the other hand, it must be elucidated whether there
are any requirements which stem from the constitutional status of
the judge, which must be heeded by enshrining the social
(material) guarantees of the judge (which are to be applied when
the term of office of the judge is over (or when the powers of
the judge expired on other basis provided for in the
Constitution)) in legal acts, and if such requirements appear,
then what they are.
2. In the jurisprudence of the Constitutional Court, it
has been held (and universally recognized) more than once that
the official constitutional doctrine on any issue of the
constitutional legal regulation, is formulated "case after case",
by supplementing the elements (fragments) of the said doctrine,
revealed in the previous constitutional justice cases, adopted in
the acts of the Constitutional Court with other elements, which
are revealed in the acts of the Constitutional Court adopted in
the new cases of constitutional justice; when the Constitutional
Court considers new constitutional justice cases every time
subsequent to the petitions of petitioners, the official
constitutional doctrine formulated in the previous acts of the
Constitutional Court (on every individual issue on the
constitutional legal regulation, which is important to the
corresponding case) is every time supplemented with new
fragments; by formulating new official constitutional doctrinal
provisions the diversity and completeness of the legal regulation
entrenched in the Constitutionthe supreme legal actis revealed
(Constitutional Court rulings of 28 March 2006 and 9 May 2006;
decisions of 8 August 2006 and 21 November 2006; also
Constitutional Court rulings of 30 May 2003, 1 July 2004 and 13
December 2004; decision of 20 September 2005; ruling of 14 March
2006).
3. In the context of the constitutional justice case at
issue, it needs to be noted that the Constitutional Court has
investigated more than once whether the legal acts (paragraphs
thereof) which regulate the pensionary relations (including those
of state pensions) are not in conflict with legal acts of higher
power, inter alia (and first of all) with the Constitution. The
legal acts of the Constitutional Court adopted in the
corresponding constitutional justice cases, as well as other acts
of the Constitutional Court (inter alia adopted in the
constitutional justice cases, in which it was decided not only on
the compliance of the legal acts which regulate the pensionary
relations with legal acts of higher power, inter alia (and first
of all) the Constitution, but the legal acts which regulate other
relations of social security) (Constitutional Court rulings of 12
March 1997, 3 December 1997, 18 December 1997, 6 May 1998, 10
February 2000, 30 October 2001, 23 April 2002, 19 June 2002, 25
November 2002, 4 July 2003, 3 December 2003, 30 January 2004, 5
March 2004, 13 December 2004, 7 February 2005, 22 December 2006
and 26 September 2007) have formulated a broad official
constitutional doctrine of the socially oriented state and have
revealed the content of the constitutional provisions designed
for the pensionary welfare (and social security in general),
inter alia the fact what requirements which stem from the
Constitution must be heeded by regulating the relations of state
pensions (not only of judges) by legal acts.
In the context of the constitutional justice case at
issue, it also needs to be noted that the Constitutional Court
has also investigated more than once whether the legal acts
(parts thereof) which enshrine the functioning of the judicial
power and the status (inter alia the powers, guarantees) of
judges are not in conflict with legal acts of higher power, inter
alia (and first of all) with the Constitution. The acts of the
Constitutional Court (Constitutional Court rulings of 22 December
1994, 6 December 1995, 5 February 1999, 21 December 1999,
decision of 12 January 2000, rulings of 12 July 2001, 28 March
2006, 9 May 2006, 6 June 2006, 27 November 2006, decision of 8
August 2006, etc.) which were adopted in the corresponding
constitutional justice cases have formulated a broad official
constitutional doctrine of the judicial power which includes
inter alia the provisions designed for the social (material)
guarantees of judges.
In this context, it needs to be noted that, as the
Constitutional Court held in its ruling of 12 July 2001, the
Constitution does not provide that the Constitutional Court is
permitted not to consider certain laws and other legal acts; the
Constitutional Court must consider the compliance with the
Constitution of all the legal acts pointed out in Paragraph 1 of
Article 102 of the Constitution, thus including those whereby the
social (material) guarantees of judges of the courts of the
Republic of Lithuania, inter alia the state pensions of judges
are established. Such powers of the Constitutional Court stem
from the Constitution and are related to its constitutional duty
to ensure the supremacy of the Constitution in the legal system.
The Constitutional Court also has such powers in the case where
the disputed legal regulation is designed to consolidate the
powers of the Constitutional Court itself, the procedure of cases
at the Constitutional Court and the common elements (which are
also typical for judges of other courts) and peculiarities (inter
alia powers, guarantees) of the status of justices of the
Constitutional Court.
4. Thus, while deciding subsequent to the petitions of
the Vilnius Regional Administrative Court, the petitioner,
whether the provision "the state pension of judges shall not be
granted and the granted pension shall not be paid, if: <
> (6)
the person has the income from which state social pension
insurance contributions are calculated and paid or if he receives
state social insurance benefits of sickness (including those paid
by the employer during the days of sickness), of maternity, of
maternity (paternity) or of unemployment" of Article 4 (wording
of 2 July 2002) of the Law is not in conflict with Article 23,
with Paragraph 1 of Article 48 (the provision that each human
being may freely choose a job or business), Article 52 (the
provision that the state shall guarantee to citizens the right to
receive an old age pension) of the Constitution, and with the
constitutional principle of a state under the rule of law, one
must also refer to the doctrinal provisions formulated in the
Constitutional Court acts adopted in the previous constitutional
justice cases, which describe the requirements which stem from
the Constitution and which must be heeded while regulating the
relations of the state pensions (not only the pensions of judges)
by legal acts, as well as to the doctrinal provisions which have
been formulated in the Constitutional Court acts adopted in the
previous constitutional justice cases, which describe the social
(material) guarantees of judges and which have been formulated in
the Constitutional Court acts adopted in the previous
constitutional justice cases.
5. It needs to be emphasized that the legal position of
the Constitutional Court in the corresponding constitutional
justice cases, without excluding the cases in which it is decided
whether the legal acts (parts thereof) which regulate the
relations of pensions (including the state pensions) are not in
conflict with legal acts of higher power, inter alia (and first
of all) with the Constitution, and the cases in which it is
decided whether the legal acts (parts thereof) which enshrine the
functioning of the judicial power and the status (inter alia the
powers, guarantees) of judges are not in conflict with legal acts
of higher power, inter alia (and first of all) with the
Constitution, has the significance of the precedent.
The Constitutional Court has held in its acts more than
once that the principle of a state under the rule of law which is
consolidated in the Constitution implies the continuity of
jurisprudence. The continuity of jurisprudence must be ensured
not only by the courts of general jurisdiction and specialized
courts (established under Paragraph 2 of Article 111 of the
Constitution), but also by the Constitutional Court
(Constitutional Court rulings of 28 March 2006 and 9 May 2006,
decisions of 8 August 2006 and 21 November 2006).
The concept of the provisions of the Constitution and
further construction and development of the official
constitutional doctrinal provisions formulated on the basis of
the said provisions in the acts of the Constitutional Court
adopted in new constitutional justice cases under certain
circumstances may imply not only revelation of new aspects of the
constitutional legal regulation necessary for the investigation
of the said constitutional justice cases and supplement of the
concept of the provisions of the Constitution provided in the
acts of the Constitutional Court adopted in the previous
constitutional justice cases with new elements (fragments), but
also reinterpretation of the official constitutional doctrinal
provisions formulated previously when the official constitutional
doctrine is corrected. Such reinterpretation of the concept of
the provisions of the Constitution and official constitutional
doctrinal provisions when the official constitutional doctrine is
corrected is an exclusive competence of the Constitutional Court.
However, when no amendments to the Constitution are made, due to
which it is necessary to reinterpret certain official
constitutional doctrinal provisions so that the official
constitutional doctrine would be corrected, this may be done only
if the necessity to diverge from the existing precedent and to
create a new one arises from the Constitution; in this field, the
Constitutional Court is not completely free, it is bound by its
own created precedents and formed official constitutional
doctrine on which the said precedents are based. The creation of
new court precedents and arguing (grounding) the court precedents
may not be rationally legally unreasoned volitional acts; the
Constitutional Court, referring to its already formed
constitutional doctrine and precedents, must ensure the
continuity of the constitutional jurisprudence (its consistency
and non-discrepancy) and the predictability of its decisions. It
may be possible to deviate from the Constitutional Court
precedents created while adopting decisions in constitutional
justice cases and new precedents may be created only in the cases
when it is unavoidably and objectively necessary,
constitutionally grounded and justified; likewise, the official
constitutional doctrinal provisions on which the precedents of
the Constitutional Court are based may not be reinterpreted so
that the official constitutional doctrine would be corrected when
it is not unavoidably and objectively necessary, constitutionally
grounded and justified; any change of the precedents of the
Constitutional Court or correction of the official constitutional
doctrine may not be determined by accidental (in the aspect of
law) factors (for instance, the correction of the official
constitutional doctrine may not be determined only by a change in
the composition of the Constitutional Court). The said necessity
to reinterpret certain official constitutional doctrinal
provisions so that the official constitutional doctrine would be
corrected may be determined only by the circumstances as the
necessity to increase possibilities for implementing the innate
and acquired rights of persons and their legitimate interests,
the necessity to better defend and protect the values enshrined
in the Constitution, the need to create better conditions in
order to reach the aims of the Lithuanian Nation declared in the
Constitution on which the Constitution itself is based, the
necessity to expand the possibilities of the constitutional
control in this country in order to guarantee constitutional
justice and to ensure that no legal act (part thereof) which is
in conflict with legal acts of greater power, would have the
immunity from being removed from the legal system. In addition,
it is impossible and constitutionally impermissible to
reinterpret the official constitutional doctrine so that the
official constitutional doctrine would be corrected, if by doing
so the system of values entrenched in the Constitution is
changed, the protection guarantees of the supremacy of the
Constitution in the legal system are reduced, the concept of the
Constitution as a single act and harmonious system is denied, the
guarantees of rights and freedoms of the person entrenched in the
Constitution are reduced and the model of separation of powers
enshrined in the Constitution is changed. Every case of such
reinterpretation of the official constitutional doctrine when the
official constitutional doctrine is corrected has to be properly
(clearly and rationally) argued in the corresponding act of the
Constitutional Court. However, under the Constitution, no
development of the official constitutional doctrineneither the
supplement of the conception of the provisions of the
Constitution provided in the acts of the Constitutional Court
adopted in the previous constitutional justice cases with new
elements (fragments) nor the reinterpretation of the official
constitutional doctrinal provisions formulated previously when
the official constitutional doctrine is correctedmay be or is
the grounds for reviewing the rulings, conclusions or decisions
or their argumentation (substantiation), which were adopted in
the previous constitutional justice cases by which corresponding
constitutional justice cases were finished (Constitutional Court
ruling of 28 March 2006, decisions of 8 August 2006 and 21
November 2006).
It is to be particularly emphasized that every case of
such reinterpretation of the official constitutional doctrine
when the official constitutional doctrine is corrected has to be
properly (clearly and rationally) argued in the corresponding act
of the Constitutional Court (Constitutional Court ruling of 28
March 2006, decisions of 8 August 2006 and 21 November 2006).
III
1. Article 52 of the Constitution establishes that the
state shall guarantee to citizens the right to receive old age
and disability pensions as well as social assistance in the event
of unemployment, sickness, widowhood, loss of the breadwinner,
and in other cases provided for by laws. This article of the
Constitution establishes the grounds for pensionary maintenance
and social assistance. In the Constitutional Court ruling of 3
December 2003, it was held that the legislator, while adopting
laws concerning pensionary maintenance, is bound by the norms and
principles of the Constitution. While deciding whether the legal
acts (parts thereof) which regulate the relations of pensions
(including the state pensions) are not in conflict with the legal
acts of higher power, inter alia (and first of all) with the
Constitution, not only the fact is of essential significance that
the constitutional right of a person to receive a pension is one
of the most important social rights, but also the fact that
certain requirements for the legislator and other law-making
subjects stem from Article 52 of the Constitution (while
construing it also in the context of other provisions of the
Constitution), and if such requirement are disregarded, this may
determine that the corresponding legal regulation may (and must)
be recognized as in conflict with the Constitution.
2. The said constitutional requirements are described
inter alia by these provisions of the official constitutional
doctrine (formulated inter alia in the constitutional justice
cases, in which it was decided on the compliance of the legal
acts (parts thereof) which regulate the relations of pensions
and/or other relations of social security with legal acts of
higher power, inter alia (and first of all) with the
Constitution). While implementing the constitutional principle of
public solidarity and by helping a person to protect himself from
the possible social risks and at the same time creating
preconditions for every member of the society to take care of his
own welfare (and not only to trust in the state social security),
the legislator must establish the old age and disability pensions
as well as social assistance in the event of unemployment,
sickness, widowhood, loss of the breadwinner by the law; in
addition, other pensions or social assistance than those
expressis verbis specified in Article 52 of the Constitution may
be established by the law. The grounds for pensionary
maintenance, the persons who are granted and paid pensions, the
conditions for granting and payment of pensions, as well as the
sizes of the pensions are established by law only (in the case of
the old age pension, the law must establish the age upon reaching
which a person has the right to receive the old age pension, the
grounds for granting and payment of this pension, its conditions
and sizes, while in the case of the disability pensionwhat is to
be considered as disability, as well as the grounds for granting
and payment of this pension, its conditions and sizes); it is not
permissible to establish the conditions of appearance of the
right of the person to the pension by means of a substatutory
act, as well as to limit or expand (in comparison with that
established by the law) the extent of this right. The provisions
of Article 52 of the Constitution, which guarantee the right of
the citizens to pensionary maintenance and social assistance,
oblige the state to establish sufficient means for the
implementation and legal protection of this right, thus, the law
has not only to establish the types of pensions and social
assistance which are specified in this article of the
Constitution, but also to guarantee the appropriate
implementation and legal protection of the right of a human being
to receive a pension or social assistance. Thus, the legislator
has the duty to establish such a legal regulation, which would
guarantee the accumulation of means that are necessary for
pensions and social assistance, as well as the payment of these
pensions and rendering of social assistance. That legal
regulation has to create preconditions to distribute (taking
account inter alia of the constitutional principle of solidarity
and the constitutional imperatives of social harmony and justice)
the corresponding burden which falls on the state among the
members of the society. In the aspect of the compliance with the
Constitution, one may not question the fact that in Lithuania
such pensionary system is chosen, in which the funds collected
from the obligatory state social insurance contributions are the
main source of funding the pensionary system (and the payment of
state social insurance contributions is related to the
established minimum size of the insured income received by the
person). On the other hand, the implementation of the duty to pay
the state social insurance contributions should not become too
much of a burden to the person and because of the fact that he
implements this duty, the person should not become the one who
needs social assistance; the fact how the person, while being
able to work and economically active, contributed to the
accumulation of the funds of the state social insurance, has to
be significant for the size of his own old age pension of the
state social insurance; a person, who by his contributions
contributed to the accumulation of the funds of the state social
insurance more, must have tangible benefit.
The state, while establishing by the law that the persons
who meet the conditions established by the law acquire the right
to a certain pension established in the law, at the same time
undertakes the obligation to grant and pay such pension, thus, it
must guarantee the corresponding pensionary maintenance for the
specified persons on such grounds and of such sizes which are
established in the law, while the persons who meet the conditions
established by the law have the right to require that the state
implement the obligation undertaken by the law, grant them the
corresponding pension and pay the payments of the established
size (by taking account of the reservation on the proportionate
and temporary reduction of pensions (when it is necessary for the
protection of constitutional values) in the event of an
extraordinary situation in the state which is specified in the
Constitutional Court rulings of 23 April 2002, 25 November 2002,
4 July 2003, 3 December 2003 and 26 September 2007); the
legislator must establish such legal regulation which would
ensure the payment of the corresponding pension to the persons
who meet the conditions established by the law. When the pension
established by a law, which is not in conflict with the
Constitution, is granted and paid, this right and legitimate
expectation acquired by the person are also to be linked to the
protection of the rights of ownership of this person (the right
to require to pay the payments of pensionary maintenance which
are established under the Constitution and the laws which are not
in conflict with the Constitution stems from Article 52 of the
Constitution, while under Article 23 of the Constitution, the
proprietary aspects of this right are defended).
3. In the context of the constitutional justice case at
issue, in which, as it has been mentioned, one disputes the
provision which is designed to regulate the relations linked to
the state pension of judges, it needs to be emphasized that,
under the Constitution, other pensions, which are not directly
named in the Constitution, may be established by the law; for
example, the peculiarities of the constitutional institute of the
state service determine inter alia the fact that the legislator
has the constitutional powers by means of a law to establish the
pensions and/or the kinds of social assistance which are granted
only to the state servants or separate groups of state servants,
the disregarding of which is objectively justified; the law may
also establish the pensions for service to the State of
Lithuania.
In this context, it needs to be mentioned that the
pensions which are not directly named in the Constitution and
which are called state pensions are established in the Republic
of Lithuania Law on State Pensions (state pensions of the
Republic of Lithuania of the first and second degree, state
pensions of victims, state pensions of officials and servicemen,
state pensions of scientists, state pensions of judges). It needs
also to be mentioned that formerly the Law on State Pensions also
established the state pension of the President of the Republic;
at present, instead of the said pension, the Republic of
Lithuania Law on the State Rent of the President establishes the
state rent of the President of the Republic (as well as the rent
of widows and orphans of the President of the Republic).
In some cases, state pensions (which, as it has been
mentioned, are not directly named in the Constitution) are
granted for a certain service, in other casesfor merits to the
State of Lithuania or as compensation to victims. While
establishing the persons who are granted and paid the state
pension, the basis and conditions for granting and payment of the
state pension, as well as the sizes of this pension, one must
heed the constitutional imperative of social harmony and the
principles of justice, reasonableness and proportionality;
granting and payment of the state pension does not have to become
a privilege. If the legislator, while by the law establishing the
grounds of such pensionary maintenance, the persons to whom such
pensions are granted and paid, the grounds and conditions for
granting and payment of these pensions, as well as the sizes of
these pensions, disregarded the Constitution (for example,
granted the state pensions to the persons who may not be granted
such pensions, established groundlessly big or small sizes of
such pensions or established groundless conditions of granting or
payment of such pensions), such pensionary maintenance could not
be protected under the Constitution. For example, while
establishing the state pension of officials and servicemen, one
may not establish the legal regulation, according to which the
person would be able to retire unreasonably early, or an
unreasonably short time period of service or work required in
order to receive such pension would be established, or the size
of the remuneration of the official or serviceman would not be
taken into consideration while establishing the size of the
granted pension, or the principles of justice, reasonableness and
proportionality would be violated in some other way; without
paying heed to the particularities of service of officials and
servicemen, particular type of duties and other important
circumstances, the granting and payment of such pension would
become a privilege, thus such pensionary maintenance could not be
guaranteed according to the Constitution (Constitutional Court
rulings of 4 July 2003 and 13 December 2004). In addition, state
pensions differ in their nature and character from state social
insurance pensions and are paid from the state budget; thus,
taking account of all significant circumstances and paying heed
to the Constitution, one may by the law establish the maximum
size of such pensions, as well as consolidate various ways for
the establishment of the maximum size of such pension. Certainly,
the legislator, taking account of the Constitution, may also
establish certain cases when the state pension is not granted to
the person (under the conditions provided for in the law); one
may, by the law, taking account of the Constitution, establish
also the cases when the granted state pension is no longer paid.
On the other hand, in the case of the state pensions which are
granted for certain service, for merits to the State of Lithuania
or as a compensation to victims, the provision regarding the
obligation undertaken by the state to grant and pay the
corresponding pension to the person who meets the conditions
established by the law and regarding the right of the said person
to require that the state implement such obligation undertaken by
the law, is also effective. However, the Constitution does not
prevent from reorganizing the system of pensionary maintenance
inter alia so that the pensions established by the laws which are
not directly specified in Article 52 of the Constitution would be
eliminated; in such case, the legislator would be obligated to
establish a just mechanism for compensation of the incurred
losses to the persons who had been granted and paid such pensions
as well as he would have to provide for a sufficient transition
time period during which the persons who have a respective job or
who perform respective service which entitles them to a
respective pension (i.e. the state pension) under the previous
regulation, would be able to prepare for these changes.
4. It has been mentioned that failure to pay heed to
these provisions which stem from the Constitution may determine
that the corresponding legal regulation may (and must) be
recognized as in conflict with the Constitution. It needs to be
noted that one did not avoid such legal regulation of pensionary
relations which was later recognized as being in conflict with
the Constitution. In the corresponding constitutional justice
cases, the legal position of the Constitutional Court (ratio
decidendi) has the significance of the precedent.
4.1. For example, the Constitutional Court Ruling "On the
compliance of Article 5 of the Republic of Lithuania Law on State
Social Insurance, Item 1 of Part 2 of Article 8 of the Republic
of Lithuania Law on State Social Insurance Pensions, and Item 1
of the 26 January 1996 Republic of Lithuania Government
Resolution No. 142 'On Partial Amendment of the 20 February 1995
Republic of Lithuania Government Resolution No. 266 "On Approving
the Rules of Forming of the Budget of the Republic of Lithuania
State Social Insurance Fund and Its Implementation"' with the
Constitution of the Republic of Lithuania" of 12 March 1997
recognized the legal regulation which linked the right of the
insured person to social maintenance with payment of the
obligatory state contributions of social insurance pensions (in
case of debts, the time period of accumulating of debts may be
included into the aforesaid social insurance period only upon
liquidation of such debts, even though the debts may have
appeared due to inappropriate action or failure to act
inappropriate implementation of dutiesof the employer or state
social insurance establishments) and the provision of the Law on
State Social Insurance Pensions that state social pension
insurance period means that a person must be obligatory insured
or insure himself by the state social pension insurance for a
time period not less than that established by the law were
recognized as not in conflict with the Constitution.
4.2. The Constitutional Court Ruling "On the compliance
of Part 4 of Article 11 of the Republic of Lithuania Law on State
Pensions, Item 2 of Part 3 of Article 8 of the Republic of
Lithuania Law on the Legal Status of Victims of the Occupations
of 1939-1990 with the Constitution of the Republic of Lithuania
and on the compliance of Items 9 and 12 of the List 'The 1939-
1990 Occupations Repressive Structures, Services and Positions
for Serving in Which Persons Shall not be Awarded State Pensions
for Victims' as approved by 3 July 1998 Government of the
Republic of Lithuania Resolution No. 829 'On the Approval of the
List of the 1939-1990 Occupations Repressive Structures, Services
and Positions for Serving in Which Persons Shall not be Awarded
State Pensions for Victims' with the Constitution of the Republic
of Lithuania and Part 4 of Article 11 of the Republic of
Lithuania Law on State Pensions" of 10 February 2000 recognized
that such legal regulation established in the Law on State
Pensions, under which state pensions for victims shall not be
granted to individuals which during the corresponding period
served or worked in the other institutions (structures) not
indicated by the law, and that the Government shall approve the
list of the services and positions of the said institutions
(structures) for serving in which persons shall not be granted
state pensions for victims (thus, it is not approved by the law)
was in conflict with the Constitution.
4.3. The Constitutional Court Ruling "On the compliance
of Item 8 of the Regulations of Granting and Payment of State
Pensions to Officials and Soldiers of the Systems of Internal
Affairs, State Security, Defense and Prosecutor's Office approved
by Government of the Republic of Lithuania Resolution No. 83 'On
the Approval of the Regulations of Granting and Payment of State
Pensions to Officials and Soldiers of the Systems of Internal
Affairs, State Security, Defense and Prosecutor's Office and the
Establishment of the Time of Service Necessary in Order to
Receive a Respective Percentage Extra Pay for the Years of
Service' of 20 January 1995 with the Constitution of the Republic
of Lithuania and Paragraph 4 of Article 16 of the Republic of
Lithuania Law on Pensions of Officials and Soldiers of Internal
Affairs, State Security, Defense and Prosecutor's Office" of 30
October 2001 recognized that such legal regulation established by
the legal act of the Government, under which the Government
established powers for itself also to adopt decisions to equal
(to include into the time of service) such actual time periods of
service or learning on the grounds of which state pensions are
granted to the officials or soldiers without having the powers to
do that established in the law, as in conflict with the
Constitution.
4.4. The Constitutional Court Ruling "On the compliance
of Paragraphs 1 and 2 of Article 7, Paragraph 6 and Item 2 of
Paragraph 9 of Article 16 of the Republic of Lithuania Law on the
State Pensions of Officials and Soldiers of the Interior, the
Special Investigation Service, State Security, Defense and of the
Prosecutor's Office (wording of 2 May 2000) with the Constitution
of the Republic of Lithuania, and on the compliance of Item 31.1
of the Regulations of Granting and Payment of State Pensions to
Officials and Soldiers of the Internal Affairs, State Security,
Defense and Prosecutor's Office (wording of 20 November 1998)
approved by Government of the Republic of Lithuania Resolution
No. 83 'On the Approval of the Regulations of Granting and
Payment of State Pensions to Officials and Soldiers of the
Systems of Internal Affairs, State Security, Defense and
Prosecutor's Office and the Establishment of the Time of Service
Necessary in order to Receive a Respective Percentage Extra Pay
for the Years of Service' of 20 January 1995 Paragraph 1 of
Article 7 of the Republic of Lithuania Law on the State Pensions
of Officials and Soldiers of the Interior, the Special
Investigation Service, State Security, Defense and of the
Prosecutor's Office (wording of 2 May 2000)" of 23 April 2002
recognized that such legal regulation established by a legal act
of the Government, under which, the size of the state pension of
the officials and soldiers for service and the procedure of
recalculation of this size were different from those established
in the law, as being in conflict with the Constitution;
meanwhile, the corresponding provisions of the law, under which,
the size of the state pension of the officials and soldiers for
service, according to the petitioner of the said constitutional
case at issue, the Higher Administrative Court, depended on the
time of retirement of the person (prior to or after the law came
into force), were recognized as not violating the constitutional
principle of equality of all persons before the law, because
while establishing such legal regulation, the legislator took
account of the changed social, legal, economic and other
conditions (the implemented reforms of the institutions of law
and order, the changed monetary unit of this country etc.), as
well as took into consideration the fact that the post which the
official or soldier used to hold might have been changed,
abolished etc.
4.5. The Constitutional Court Ruling "On the compliance
of the Republic of Lithuania Law on the Amendment and
Supplementation of Articles 7, 11, 15 of the Law on State
Pensions, Paragraphs 1 and 4 of Article 7 of the Republic of
Lithuania Law on State Pensions and Paragraph 2 of Article 20 of
the Law on the President of the Republic of Lithuania with the
Constitution of the Republic of Lithuania" of 19 June 2002
recognized the legal regulation established by the law which
linked the establishment (granting and payment) of the pension of
the President of the Republic to the former President of the
Republic with the retirement of the former President of the
Republic from the state service (this pension could be
established (granted and paid) to the former President of the
Republic only if he is not included in any other state service)
and thus denied the constitutional-social guarantee for the
President of the Republic as the Head of State to receive the
pension of the President of the Republic upon expiry of the
powers of the President of the Republic as well as the
exceptional constitutional status of the President of the
Republic as the Head of State, as being in conflict with the
Constitution. On the other hand, it was held in the said
Constitutional Court ruling that the legislature may, without
violating the Constitution, establish the financing of a former
President of the Republic while taking account of the
constitutional grounds upon which the powers of the President of
the Republic were terminated and whether the same person was re-
elected or newly elected President of the Republic; under the
Constitution, the legislature has a duty to establish such a size
of this pension, such conditions of its granting and payment
which would be in line with the dignity of the President of the
Republic as the Head of State and his individual, exceptional
legal status.
4.6. The Constitutional Court Ruling "On the compliance
of Paragraph 2 of Article 69 of the Republic of Lithuania Law on
the Diplomatic Service, Item 9 of Paragraph 1 of Article 4
(wording of 16 March 2000) of the Republic of Lithuania Law on
State Social Insurance and Item 5 of Paragraph 1 of Article 2
(wording of 16 December 1999) and Article 23 (wordings of 21
December 1994, 21 December 2000 and 8 May 2001) of the Republic
of Lithuania Law on State Social Insurance Pensions with the
Constitution of the Republic of Lithuania" of 25 November 2002
recognized the legal regulation established by the law which does
not permit that the persons, who have the obligatory state social
pension insurance period and who have the insured income, receive
the full granted old age pension, as being in conflict with the
Constitution. Such legal regulation not only violated the right
of the old age pensioners of state social insurance to receive
pension, but also the right to choose a job or business, as well
as the right of ownership.
4.7. The Constitutional Court Ruling "On the compliance
of Paragraph 2 (wording of 21 December 2000) of Article 11 and
Paragraph 3 of Article 13 of the Republic of Lithuania Law on the
State Pensions of Officials and Servicemen of the Interior, the
Special Investigation Service, State Security, National Defense,
the Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises which are Subordinate to the
Latter with the Constitution of the Republic of Lithuania, also
on the compliance of Section 2 (wording of 25 May 2001) of Item
25 of the Regulations for Granting and Payment of State Pensions
of Officials and Servicemen of the Interior, the Special
Investigation Service, State Security, National Defense, the
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises which are Subordinate to the
Latter as Approved by Government of the Republic of Lithuania
Resolution No. 83 of 20 January 1995 with the Constitution of the
Republic of Lithuania, also on the compliance of Item 5 of the
said regulations with Paragraph 4 of Article 16 of the Republic
of Lithuania Law on the State Pensions of Officials and
Servicemen of the Interior, the Special Investigation Service,
State Security, National Defense, the Prosecutor's Office, the
Department of Prisons and of the Establishments and State
Enterprises which are Subordinate to the Latter" of 4 July 2003
recognized the provision of the Law on the State Pensions of
Officials and Servicemen of the Interior, the Special
Investigation Service, State Security, National Defense, the
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to the
Latter, whereby the retired officials and servicemen who, after
granting of state pensions of officials or servicemen for the
service or disability pensions of officials or servicemen,
receive the income from which contributions of state social
pension insurance are calculated and paid, or who receive
sickness (including those paid by the employer for the days of
sickness), maternity, maternity (paternity) or unemployment
benefits of the state social insurance, shall receive the part of
the state pension of officials or servicemen which amounts to 30
percent of the pension, as being in conflict with the
Constitution (violating inter alia the right of a person to
receive a pension, the right to choose a job or business and the
right of ownership) (it also recognized the analogous legal
regulation (which particularised this provision) established by a
legal act of the Government as being in conflict with the
Constitution). The provision of the said law that the granted
state pension of officials and servicemen shall not be further
paid to persons convicted for commission of intentional crimes
was also recognized as being in conflict with the Constitution
(as this provision meant that the person to whom the state
pensions of officials and servicemen is granted and paid and who
has already been punished by the court for conviction of
intentional crime, is punished for the same crime for the second
time by applying to him the sanction of property nature which,
according to its strictness, was likened to criminal punishment).
Also the legal regulation of calculation of the time of service
necessary in order to receive a respective percentage extra pay
for the years of service established by the legal act of the
Government was recognized as being in conflict with the
Constitution, since by means of the said regulation, the
Government narrowed the circle of persons who have the right to
such percentage extra pay (in comparison with the circle of
persons established in the law).
4.8. The Constitutional Court Ruling "On the compliance
of the provisions of the Republic of Lithuania Law on the State
Social Insurance Pensions, the Republic of Lithuania Law on the
State Pensions, and the Republic of Lithuania Law 'On the
Amendment and Supplement the Republic of Lithuania Law on the
State Social Insurance Pensions' with the Constitution of the
Republic of Lithuania, as well as on the compliance of Item 84 of
the Regulations of Granting and Payment of State Social Insurance
Pensions as approved by Government of the Republic of Lithuania
Resolution No. 1156 of 18 November 1994 with the Constitution of
the Republic of Lithuania and Paragraph 4 (wording of 18 July
1994) of Article 45 of the Republic of Lithuania Law on the State
Social Insurance Pensions" of 3 December 2003 recognized the
provision of the Law on the State Social Insurance Pensions,
whereby the persons who had reached the age entitling to an old
age pension and older disabled who, after granting of a state
social insurance disability pension, received income from which
the obligatory state social pension insurance contributions were
calculated and paid, or who received state social insurance
sickness benefits (including those paid by the employer for the
days of sickness), motherhood, motherhood (fatherhood) or
unemployment benefits, if they had the obligatory state social
pension insurance period entitling to a disability pension,
should be paid the basic part of the granted state social
insurance disability pension, but not the whole granted and
previously paid state social insurance disability pension, as
well as the part "prior to entry into force of this law" of the
provision that a service time pension shall be recalculated into
a state social insurance old age pension only if its recipient
had reached the age entitling to an old age pension established
by this law prior to the entry into force of this law, as being
in conflict with the Constitution. However, the legal regulation
established in the Law on State Pensions, under which, the size
of the state pension of officials and servicemen together with
state social insurance pension granted to the same person may not
exceed a certain maximum amount (namely 1.5 amount of the
statistical average monthly salary in the economy of the country,
which is paid in the quarter before last that precedes the month
when state pension is paid as published by the Department of
Statistics at the Government of the Republic of Lithuania) was
recognized as being not in conflict with the Constitution.
However, the legal regulation established in the said law which
limited the size of the granted and paid state pension together
with the state social insurance pension (in comparison with the
one which had been established by the prior legal regulation) was
recognized as being in conflict with the Constitution (as
violating the right of a person to receive a pension, the right
of ownership). The legal regulation established by the legal act
of the Government, whereby an additional condition was introduced
which had not been established in the law, i.e. a service time
pension was to be recalculated into a state social insurance old
age pension only if the persons had reached the age entitling to
an old age pension prior to granting of this pension but not
later than before a certain date (1 January 1995) (upon
establishing such a condition, the Government narrowed the circle
of persons to whom a service time pension shall be recalculated
into a state social insurance old age pension), was recognized as
being in conflict with the Constitution. In addition, the legal
regulation established in the Law on the State Social Insurance
Pensions which related the right of persons to receive a state
social insurance old age pension with the necessity to have the
minimal obligatory state social pension insurance period
established by the law in order to receive an old age pension
(they had to be obligatory insured or to insure themselves by the
state social pension insurance for a time period established by
this law) was recognized as being not in conflict with the
Constitution. The legal regulation established in the said law
which enshrined the rule of recalculation of the state social
insurance old age pension, under which the previously granted
state social insurance old age pensions are recalculated by
applying the coefficient of the insured income of a person which
is not bigger than 5, but at the same time it left valid the
previously established rule of non-reduction of recalculated
pension, under which, a person, to whom the pension was
recalculated applying the coefficient not bigger than 5 of the
insured income, may not be paid a smaller pension comparing to
the size of a pension which had been granted and paid before the
entry into force of the Law, was recognised as being not in
conflict with the Constitution.
5. The legal position of the Constitutional Court which
is enshrined in the discussed jurisprudence of the Constitutional
Court, in the constitutional justice cases in which it is decided
whether the legal acts (parts thereof) regulating the pension
relations (including state pensions) are not in conflict with the
legal acts of higher power, inter alia (and first of all) with
the Constitution, is also linked with other provisions of the
Constitution, inter alia with the constitutional concept of human
rights (economic, social, cultural, civil and political, as well
as personal rights) and their protection, including judicial
protection. In addition, as the Constitutional Court has held in
its acts more than once, the Constitution protects and defends
the acquired rights as well. Social rights are not only the
social obligations of the state of the program nature, but also
the individual rights, judicial defence whereof is guaranteed for
the persons also in the cases when incomprehensiveness,
insufficient certainty, and lack of legal clarity of the legal
regulation is to be assessed as a legal gap. The official
constitutional doctrine of human rights is also based on the
principle provision that under the Constitution, one may not
establish any such legal regulation whereby a person, while
implementing one constitutional right, would lose the possibility
to implement another constitutional right (Constitutional Court
rulings of 30 June 2000, 25 November 2002 and 4 July 2003). Thus,
under the Constitution, it is not permitted to establish any such
legal regulation under which an opportunity for the person, who
has been granted and paid the old age pension, would be
restricted, due to this, to freely choose an occupation and
business, although he meets the conditions provided for by law so
that he would have a certain occupation or conduct certain
business; the legal regulation under which the person cannot
freely choose an occupation and business due to the fact that
upon the implementation of this right he would not be paid the
granted old age pension or part thereof which was paid until
then, also must be considered as a restriction of an opportunity
to freely choose an occupation or business. This provision is to
be applied mutatis mutandis to other kinds of pensions, inter
alia the state pensions provided for in the Law on State
Pensions.
6. It needs also to be emphasized that the social
orientation of the State of Lithuania which is consolidated in
the Constitution obliges the state to pay heed to the guarantees
of pensions (inter alia state pensions) and other social
(material) guarantees which, by the way, stem not only from
Article 52 of the Constitution, but also from other provisions of
the Constitution, or, for example, from Paragraph 2 of Article
30, Articles 38, 39, 41, 48, Paragraph 1 of Article 51 and
Article 146 thereof, the imperative of reality, thus, it obliges
to revise once established (and applied) social (material)
guarantees, in particular if they are linked with certain
periodic payments (such as pensions), to revise (increase their
sizes) in particular if economic or social situation undergoes
such changes so that the said established (and applied)
guarantees depreciate a lot, moreover, if they become nominal in
general (in this case, one must also have in mind the reservation
regarding the proportionality and temporary reduction of the
payments when it is necessary for the protection of other
constitutional values which is specified in this and other
Constitutional Court rulings).
IV
1. In the context of the constitutional justice case at
issue, in which, as it was mentioned, one disputes the provision
which is designed to regulate the relations linked with the state
pension of judges, one needs to take account also of the official
constitutional doctrine of judicial power, which inter alia
includes the provisions designed for the social (material)
guarantees of judges.
2. Paragraph 1 of Article 30 of the Constitution provides
that the person whose constitutional rights or freedoms are
violated shall have the right to apply to court. Article 109 of
the Constitution inter alia provides that in the Republic of
Lithuania, justice shall be administered only by courts
(Paragraph 1); that while administering justice, the judge and
courts shall be independent (Paragraph 2); and that when
considering cases, judges shall obey only the law (Paragraph 3).
Paragraph 1 of Article 102 of the Constitution 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 the acts of the President of the Republic and the
Government are not in conflict with the Constitution or laws,
Paragraph 1 of Article 104 thereof provides that while in office,
justices of the Constitutional Court shall be independent of any
other state institution, person or organisation, and shall follow
only the Constitution of the Republic of Lithuania. Under
Paragraph 1 of Article 5 of the Constitution, the judiciary shall
execute the state powerjudicial powerwhich is an all-sufficient
state power. The Court is the only one from the state powers
which is formed not on the political, but on the professional
basis (Constitutional Court rulings of 21 December 1999, 12 July
2001, conclusion of 31 March 2004, rulings of 28 March 2006, 9
May 2006, 6 June 2006 and decision of 8 August 2006).
The courts that under the Constitution implement judicial
power in Lithuania are to be attributed not to one, but to two or
more (if that, while heeding the Constitution, is established in
certain laws) systems of the courts. Under the Constitution and
laws, at present in Lithuania there are three systems of courts:
(1) the Constitutional Court executes constitutional judicial
control (in addition to other provisions of the Constitution
(including those which are designed for judicial power and judges
in general) a separate chapter (VIII) of the Constitution is
designated to the Constitutional Court); (2) the Supreme Court of
Lithuania, the Court of Appeal of Lithuania, regional courts and
local courts, specified in Paragraph 1 of Article 111 of the
Constitution, constitute the system of courts of general
jurisdiction; (3) under Paragraph 2 of Article 111 of the
Constitution, for the consideration of administrative, labour,
family and cases of other categories, specialised courts may be
established; one system of specialised courts, namely,
administrative courts, which is composed of the Supreme
Administrative Court of Lithuania and regional administrative
courts, is established and is functioning at present
(Constitutional Court rulings of 13 December 2004, 16 January
2006, 28 March 2006, 9 May 2006, 6 June 2006 and 27 November
2006).
3. The function of administration of justice determines
an exceptional constitutional status of the judge which is
revealed by various constitutional provisions that consolidate
not only independence of judges and courts while administrating
justice (Paragraph 2 of Article 109 of the Constitution), but
also non-possibility for the judge to hold any other elected or
appointed office, to work in any business, commercial, or other
private establishments or enterprises, to receive any
remuneration other than the remuneration established for the
judge and payment for educational or creative activities; to take
part in the activities of political parties and other political
organizations (Article 113 of the Constitution), the prohibition
to interfere with the activity of the judge and the inviolability
of the person of the judge (Article 114 of the Constitution),
etc. Under Article 104 of the Constitution, the limitations on
work and political activities which are established for court
judges shall apply also to justices of the Constitutional Court
(Paragraph 3), justices of the Constitutional Court shall have
the same rights concerning the inviolability of their person as
shall Members of the Seimas (Paragraph 4).
4. It needs to be emphasized that independence of courts
and the judge is an inseparable element of the constitutional
status of the judge. In its acts the Constitutional Court has
formulated a broad official constitutional doctrine of
independence of the judge and courts in which the constitutional
imperative of independence of the judge and courts is construed
in the context of the constitutional principle of a state under
the rule of law (which, as the Constitutional Court has held in
its acts more than once, integrates various values consolidated
in and protected and defended by the Constitution, and upon which
the entire legal system of Lithuania and the Constitution itself
are based). The independence of the judge and courts is not an
end in itself, but one of the essential principles of a
democratic state under the rule of law and a necessary condition
of protection of human rights and freedoms. While administering
justice, the courts must ensure the implementation of law which
is expressed in the Constitution and the laws and legal acts
which are not in conflict with the Constitution.
The independence of the judge and courts is indivisible
(Constitutional Court ruling of 21 December 1999). One of the
important aspects of the independence of the judge entrenched in
the Constitution is that while administering justice all judges
have equal legal status in the aspect that no different
guarantees of independence of the judge while administering
justice (deciding cases) may be established. While administering
justice, no judge is, nor may be subordinate to any other judge
or to the President of any court (inter alia of the court where
he works or of the court of higher level); on the other hand, the
principle of the equal legal status of judges does not mean that
the material and social guarantees of judges may not be
differentiated under clear, ex ante known criteria, which are not
related to the implementation of justice while deciding cases
(for example, under the term of a person's position as a judge)
(Constitutional Court ruling of 9 May 2006 and Constitutional
Court decision of 8 August 2006). The principle of the equal
legal status of judges which stems from the Constitution also may
not be construed as not permitting to additionally pay the
judgesthe heads of courts (their deputies, heads of divisions,
etc.) which implement additional functions for the carried out
organizational work: supplementary work must be paid for
additionally.
In the jurisprudence of the Constitutional Court it is
also emphasized that the independence of the judge or courts is
not a privilege, but one of the most important obligations of
judges and courts, which stems from the right of a person, who
thinks that his rights or freedoms guaranteed in the Constitution
are violated, to an independent and impartial arbiter of the
dispute who would solve the emerged legal dispute under the
Constitution and laws in essence (Constitutional Court rulings of
6 December 1995, 21 December 1999, 12 July 2001 and 9 May 2006).
The independence of the judge is inter alia ensured by
consolidating self-governance of the judiciary, meaning that the
judiciary is all-sufficient, and its financial and technical
provision, inviolability of the term of office of the judge
(whereby one seeks to ensure that the judge, irrespective of the
political forces in power, would remain independent and would not
be forced to adjust according to the possible changes of
political forces), and the inviolability of the person of the
judge, by establishing the social (material) guarantees of the
judge.
5. In this context of the social (material) guarantees of
the judge, one is to note that as the Constitutional Court held
in its ruling of 12 July 2001, the judge, who is obligated to
consider conflicts arising in society, as well as those between a
person and the state, must be not only highly professionally
qualified and of impeccable reputation but also materially
independent and feel secure as to his future. The constitutional
imperative of the protection of judges' salaries and other social
guarantees arises form the principle of independence of judges
and courts established in the Constitution (inter alia Article
109 thereof). By this principle one attempts to protect the
judges administering justice from any influence of the
legislative power and the executive, as well as from that of
other state establishments and officials, political and public
organisations, commercial economic structures, and other legal
and natural persons. In its ruling of 12 July 2001, the
Constitutional Court also noted that the state has a duty to
establish such salaries for judges which would be in conformity
with the status of the judiciary and judges, with the functions
exercised by them and their responsibility.
The social (material) guarantees of the principle of
independence of the judge which stem from the Constitution (which
are actually consolidated in law of other democratic states, as
well as in various international acts) mean that the state has
the duty to ensure such social (material) maintenance for the
judge which would comply with his status while being in office as
well as upon expiry of his term of office, i.e. the term of
powers (Constitutional Court ruling of 21 December 1999). Under
the Constitution, the material and social guarantees established
to judges, must be such so that they would be in line with the
constitutional status of the judge and his dignity
(Constitutional Court decision of 8 August 2006).
Thus, one is to hold that the legislator must establish
such legal regulation which would ensure independence of judges
and courts, inter alia the social (material) guarantees of the
judge not only when he is in office, but also upon expiry of his
powers. While doing so, the legislator must heed the norms and
principles of the Constitution. When the powers of the judge are
over, the social (material) guarantees of the judge may be varied
ones, inter alia the payments paid periodically, as well as one-
time payments, etc. The constitutional base of establishment of
such guarantees is the exceptional constitutional status of the
judge which is determined by the function of administration of
justice, therefore, they may only depend upon the circumstances
which are linked with the constitutional status of the judge, but
they may not be considered as replacing other social (material)
guarantees which must be ensured to the former judge on a
different basis, including those which are common to all the
working persons. It needs also to be emphasized that the social
(material) guarantees of the judge, upon expiry of his powers,
must be real and not only nominal.
6. It needs to be noted that, as it has been held in this
Constitutional Court ruling, one also may, by means of a law and
heeding the Constitution, establish certain cases when the state
pension is not granted to the person (under the conditions
provided for in the law) and/or when the granted state pension is
no longer paid.
Thus, if the legislator enshrines such social (material)
guarantee of the judge upon expiry of his powers of the judge as
the pension of the judge, he, heeding the Constitution, may also
establish the cases when the pension of the judge (which is
related to the constitutional status of the judge) is not granted
to the former judge and/or when the granted state pension of
judges is no longer paid for the former judge.
It needs to be noted in particular that all such cases
must be grounded on the Constitution; while establishing, by
means of a law, cases when the pension of the judge is not
granted to the former judge, one must take account inter alia of
the grounds of expiry of the constitutional powers of the judge.
Otherwise, one would disregard the constitutional principle of
independence of the judge and courts which implies the social
(material) guarantees of the judge upon expiry of his powers, and
Article 109 of the Constitution would be violated.
Article 109 of the Constitution would be equally violated
if one could not constitutionally reason why the former judge is
no longer paid the granted state pension of judges.
7. In the context of the constitutional justice case at
issue, in which, as it has been mentioned, one disputes the
provision which is designed to regulate the relations linked to
the state pension of judges, it needs to be noted that if the
legislator enshrines such social (material) guarantee of the
judge upon expiry of his powers, as the pension of the judge,
this guarantee is defended not only under Article 109 of the
Constitution, but also under Article 52 of the Constitution.
8. It needs to be noted that under Paragraph 4 of Article
111 of the Constitution, the formation and competence of courts
shall be established by the Law on Courts. Thus, the Constitution
not only obliges the legislator to establish by the law the
establishment and competence of all the courts of the Republic of
Lithuania (thus, also the status, formation, execution of powers
(activity) and the guarantees for the courts of general
jurisdiction, the status of the judges of these courts, etc.)
specified in Paragraph 1 of Article 111 of the Constitution, but
also expressis verbis consolidates the title of this lawthe Law
on Courts; such constitutional legal regulation does not mean in
itself that certain relations related to the said relations may
not be regulated by other laws as well (Constitutional Court
rulings of 28 March 2006 and 9 May 2006, decision of 8 August
2006). This imperative of the legal regulation regarding the
legal regulation of courts of general jurisdiction, which arises
from the Constitution, is also to be applied mutatis mutandis to
the legal regulation regarding the legal regulation of
specialised courts established under Paragraph 2 of Article 111
of the Constitution (Constitutional Court ruling of 28 March
2006, decision of 8 August 2006). Because of the fact that
judges, in view of their office, may not be attributed to state
servants (or officers) (inter alia due to the fact that it is not
permitted to demand that they implement a certain policy)
(Constitutional Court rulings of 6 December 1995, 21 December
1999, and 9 May 2006, decision of 8 August 2006), the legal
regulation whereby the relations of remuneration of judges of all
courts specified in Paragraph 1 of Article 111 of the
Constitution and of the specialised courts established under
Paragraph 2 of Article 111 of the Constitution would be
established precisely in the Law on Courts (which, as mentioned,
is expressis verbis specified in Paragraph 4 of Article 111 of
the Constitution) would be in compliance with the Constitution;
on the basis of the arguments analogous to those that the
relations of remuneration of judges of all courts specified in
Paragraph 1 of Article 111 of the Constitution and of the
specialised courts established under Paragraph 2 of Article 111
of the Constitution should be established precisely in the Law on
Courts, the relations of remuneration of justices of the
Constitutional Court are to be regulated in the Law on the
Constitutional Court (which, under Paragraph 2 of Article 102 of
the Constitution, establishes the status of the Constitutional
Court and the procedure for the execution of its powers)
(Constitutional Court decision of 8 August 2006).
These provisions are to be applied mutatis mutandis also
to other social (material) guarantees of judges.
9. It needs to be noted that the Constitutional Court has
considered constitutional justice cases in which it was disputed
whether the provisions of the laws and legal acts of the
Government which are designed for certain social (material)
guarantees of judges, precisely the remuneration of judges, were
not in conflict with the Constitution. The requirements for the
legal regulation of the relations concerning the remuneration of
judges which stem from the Constitution (the provisions of the
official constitutional doctrine which, while construing the
Constitution, were formulated in the acts of the Constitutional
Court which were adopted in the corresponding constitutional
justice cases) are mutatis mutandis to be applied also to other
social (material) guarantees of judges which are determined by
the constitutional principle of independence of the judge and
courts.
9.1. The constitutional notion "remuneration of judges"
includes all the payments paid for the judge from the state
budget (Constitutional Court decisions of 12 January 2000 and 8
August 2006). In this context, it needs to be noted that under
Paragraph 1 of Article 113 of the Constitution, salaries received
by judges are referred to by the notion "remuneration of judges",
however, in other legal acts (inter alia those which were
disputed in the constitutional justice cases considered at the
Constitutional Court), by comparing judges with state politicians
and other state officials, a different notion is employed
"remuneration for work of judges"; such an imprecise use of the
notion in the law may be treated as one of the preconditions to
deny the specific character and protection of salaries of judges
enshrined in the Constitution; the legislator is obligated in the
law to refer to the remuneration received by judges by employing
the notion "remuneration of judges" pointed out in the
Constitution (Constitutional Court rulings of 12 July 2001 and 28
March 2006, decision of 8 August 2006).
9.2. Under the Constitution, the remuneration of judges
must be established by means of a law, their sizes, as well as
the material and social guarantees established to judges must be
such so that they would be in line with the constitutional status
of the judge and his dignity (Constitutional Court decision of 8
August 2006). The Constitution prohibits reduction of
remuneration and other social guarantees of judges; any attempts
to reduce the remuneration of the judge or his other social
guarantees, or limitation of financing of courts are treated as
encroachment upon the independence of judges and courts
(Constitutional Court rulings of 6 December 1995 and 21 December
1999, decision of 12 January 2000, rulings of 12 July 2001 and 28
March 2006, decision of 8 August 2006). As every person, a judge
has the right to defend his rights, legitimate interests and
legitimate expectations (Constitutional Court ruling of 12 July
2001).
On the other hand, when the economic and financial
situation of the country deteriorates considerably, when due to
particular circumstances (economic crisis, natural disasters,
etc.), an extremely difficult economic and financial situation
has occurred in the state, due to objective reasons, there may be
not enough funds in order to implement the functions of the state
and to satisfy the public interests, thus, also to ensure the
material and financial needs of courts. Under such circumstances,
the legislator may change the legal regulation which establishes
the salaries to various persons, and to consolidate the legal
regulation on the salaries which would be less favourable to
these persons, if it is necessary in order to ensure the vital
interests of society and the state and to protect other
constitutional values. However, also in such cases the legislator
must keep the balance between the rights and legitimate interests
of the persons, to whom the less favourable legal regulation is
established and the interests of society and the state, i.e. to
pay heed to the requirements of the principle of proportionality.
In addition, in case of a difficult economic and financial
situation, usually the financing from the budget to all the
institutions which implement state powers, as well as the
financing of various spheres which are financed from the
resources of the budgets of the state and municipalities, should
be revised and reduced. If one established a certain legal
regulation, whereby in case of considerable deterioration of the
economic and financial situation of this country it would not be
permitted to reduce the financing of courts only, nor to reduce
the remuneration of judges only, it would mean that courts are
groundlessly singled out from among other institutions which
implement the state power, and the judgesfrom among other
persons, which participate in implementing the powers of
corresponding state institutions. Such consolidation of the
exceptional situation of courts (judges) would not be in line
with the requirements of an open, fair and harmonious civil
society and the imperatives of justice. It is possible to worsen
the financial and material conditions for the functioning of
courts and to reduce the remuneration of judges only by law and
it is possible to do so only temporarily, for the period of time
when the economic and financial condition of the state is
extremely difficult; by such reduction of the remuneration no
conditions should be created for other state power institutions
and their officials to violate the independence of courts. Even
in the case of the extremely difficult economic and financial
situation of the state, neither the financing of courts, nor
remuneration of judges may be reduced to the extent that the
courts would not be able to implement their constitutional
function and obligationto administer justiceor the possibility
of the courts to do that would be restricted (Constitutional
Court ruling of 28 March 2006).
10. It has been mentioned that one of the important
aspects of the independence of the judge entrenched in the
Constitution is that while administering justice all judges have
equal legal status in the aspect that no different guarantees of
independence of the judge while administering justice (deciding
cases) may be established, however, the principle of the equal
legal status of judges does not mean that the material and social
guarantees of judges may not be differentiated under clear, ex
ante known criteria, which are not related to the administration
of justice while deciding cases (for example, under the term of
the person's position as a judge).
The equal status of judges while administering justice
which stems from the Constitution is to be construed while taking
account of the fact that under the Constitution, the system of
courts of general jurisdiction, as a system of institutions, is
comprised of four-level courts: the first (lowest) levellocal
courts, the second levelregional courts, the third levelthe
Court of Appeal of Lithuania, the fourth (highest) levelthe
Supreme Court of Lithuania. The legislator, while heeding the
Constitution, has discretion to establish as many local and
regional courts as he deems necessary, and to establish such a
quantitative composition, which, to his mind, is necessary in
order to administer justice properly and in time, as well as to
determine such territorial boundaries of the activity of
corresponding local and regional courts, which, in his opinion,
are necessary in order to administer justice properly and in time
(Constitutional Court ruling of 28 March 2006). This provision is
also applicable to the specialized courts established under
Paragraph 2 of Article 111 of the Constitution. Moreover, while
construing the equal status of judges while administering justice
which stems from the Constitution, one must take account of the
fact that, under the Constitution, courts are attributed not to
one, but to two or more (if that, while heeding the Constitution,
is established in corresponding laws) systems of courts (at
present, as mentioned, there are three systems of courts).
The attribution of courts not to one but to several (at
the momentthree) systems of courts which arises from the
Constitution, as well as division of the system of the courts of
general jurisdiction and specialized courts established under
Paragraph 2 of Article 111 of the Constitution into levels imply
that the legislator has the powers to differentiate the social
(material) guarantees of judges (remunerations, as well as
guarantees which are established (applied) to the judges upon
expiry of their powers). It has been mentioned that the judiciary
is formed on the professional basis. It is universally recognized
(not only in Lithuania) that the dominant principle of formation
of the corps of judges of courts of higher level is the principle
of professional career of judges, when the judges are promoted
after they have been dismissed from previous office and appointed
as judges of courts of higher level (even though it may not be
made absolute so that one would not create preconditions for the
system of courts to become too closed, to become subjected to the
routine, etc.) (Constitutional Court ruling of 9 May 2006). The
professional career of judges is inseparably related to the
institute of promotion of judges which is consolidated in
Paragraph 4 of Article 112 of the Constitution. While deciding on
the promotion of judges, one assesses inter alia their
qualificationprofessional preparation (Constitutional Court
ruling of 9 May 2006). Thus, the implementation of the principle
of the professional career of judges (as mentioned, without
making it absolute) is one of the conditions permitting to ensure
that the persons the professional qualification of whom are of as
high professional qualification as possible, would be appointed
as judges of courts of higher levels, thus, also to ensure that
justice would be implemented in the way it is provided for by the
Constitution, that the human rights and freedoms, other
constitutional values would be protected and defended properly,
and that the law expressed in the Constitution, the laws and
other legal acts which are not in conflict with the Constitution
would be implemented. Thus, judges must have material incentives
to seek the professional career. Thus, the legislator not only
may but also must differentiate social (material) guarantees of
judges according to the fact where in establishing such
guarantees account is taken of the court system and the court
level where the judge works; the constitutional concept of the
judiciary, as the state power formed on the professional basis,
implies inter alia that if the remunerations of the judges of
courts of different levels, as well as the guarantees which are
established (applied) for the judges upon expiry of their powers
would be made totally equal, one would not only disregard that,
under the Constitution, courts are attributed not to one, but to
several (at the momentthree) systems of courts, in addition,
that the system of courts of general jurisdiction, as a system of
institutions, is comprised of four-level courts, and that the
specialized courts (at presentadministrative courts) established
under Paragraph 2 of Article 111 of the Constitution may also be
divided into levels, but also there would be no material
incentives (even if there were other incentives) for the judges
to seek the professional career.
The principle of the equal legal status of judges which
stems from the Constitution implies that the judges of the same
system of courts and the judges of the courts of the same level
are equal not only according to their powers while administering
justice (deciding cases) and their non-subordination to any other
judge or president of any court (inter alia the court in which
they work, as well as of the court of higher level or instance),
the responsibility and immunities, restrictions of their
activities and limitation of their remuneration provided for in
Article 113 of the Constitution, but also according to the fact
that equal amount of their work must be ensured; thus, the judges
of the same system of courts and the judges of the courts of the
same level must be paid for the corresponding work
correspondingly, without discriminating any of them and without
applying privileges to any of them, and the corresponding social
(material) guaranteesnon-discriminatory and not to be equated to
privilegesmust be established for them.
It needs also to be noted that, as it has been mentioned,
the social (material) guarantees of judges may be differentiated
(while heeding the Constitution) under the criteria, which are
not related to the administration of justice while deciding
cases, for example, under the duration of a person's position as
a judge. However, this does not at all mean that the criterion of
the duration of a person's position as a judge may be replaced by
other, essentially different criterion: for example, if the laws
establish a certain calendar date (naming it directly, or
relating to any legal fact, such as, for example, coming into
force of any legal act) and if the person begins to work as a
judge from that date or his powers expire, certain social
(material) guarantees which are established (applied) to him
would be different from those which are established (applied) to
other judges of courts of the same system and of the courts of
the same level (of the courts of general jurisdiction and
specialized courts established under Paragraph 2 of Article 111
of the Constitution). Thus, one may not differentiate (also by
applying law) the remunerations of the judges of the courts of
the same system and of the same level according to the fact when
the remunerations of certain sizes of judges were established
(inter alia according to the fact, whether the person began to
work as a judge of the corresponding court before establishing
the remuneration of a certain size of the judge of that court, or
afterwards). Thus, under the Constitution, one may not establish
such legal regulation (neither common, nor individual) that with
regard to the persons who are appointed as judges of a certain
court a different (smaller or bigger) remuneration would be
established than that of the judges who already work in the said
court; if such practice of the application of law came into
being, one could not ground it constitutionally.
The provision that, as it has been mentioned, the social
(material) guarantees of judges may be differentiated (heeding
the Constitution) under the duration of a person's position as
judge may not be construed as meaning that, purportedly, the
criterion of the duration of a person's position as a judge is
the only criterion of the said differentiation. In the case of
the remuneration of judges, as well as in the case of social
(material) guarantees of judges upon expiry of the powers (so,
also in the case of the pensions of judges) of the judge, one
must take account of the fact that the attribution not to one but
to several (at the momentthree) systems of courts stems from the
Constitution, as well as of the fact that the systems of courts
of general jurisdiction and of specialized courts established
under Paragraph 2 of Article 111 of the Constitution, as systems
of institutions, are of several levels.
It has been held in this Constitutional Court ruling that
the principle of the equal legal status of judges may not be
construed as not permitting to additionally pay the judgesthe
heads of courts (their deputies, heads of divisions, etc.) which
implement additional functions for the carried out organizational
work. However, it needs to be emphasized that the said
constitutional principle hardly implies that in the corresponding
court the activity of the judgesheads of courts (their deputies,
chairmen of the divisions, etc.) who implement additional
functions may be limited only to such organizational work which
is not related to the administration of justice, i.e. with the
decision of cases, and that they may receive the remuneration of
the judge only for such organizational work.
11. The principled provision that one may not
differentiate (also by applying law) the remunerations of the
judges of the courts of the same system and of the same level
according to the fact when the remunerations of certain sizes of
judges were established (inter alia according to the fact whether
the person began to work as a judge of the corresponding court
before establishing the remuneration of a certain size of the
judge of that court, or afterwards), is mutatis mutandis
applicable also to other social (material) guarantees of judges,
inter alia those which are established (applied) to the judges
upon expiry of their powers. They may not be reduced, let alone
altogether denied also in the case when their system is
reorganized. In addition, the imperative of the reality of the
social (material) guarantees of judges stems from the
Constitution. The social (material) guarantees of judges which
are established (applied) to the judges upon expiry of their
powers (in particular, if they are linked with certain periodic
payments such as pensions) could become (in case the economic or
social situation becomes changed) already not only unreal, but
also nominal, thus, fictitious, if they were applied to the
judges, whose powers have already expired, such as were
established at the said time, but which, with respect to these
judges, would not be reviewed in a corresponding way, while other
judges of the courts of the same system and the same level, whose
powers will expire later, would be established bigger
corresponding guarantees (in case the economic or social
situation becomes changed). In this context, it needs to be noted
that the provision of review of the social (material) guarantees
of judges is applicable not only in respect of judges, but also
in respect of other members of society: it has been held in this
Constitutional Court ruling that the social orientation of the
State of Lithuania which is consolidated in the Constitution
obliges the state to heed the social (material) guarantees and
other guarantees which, by the way, stem not only from Article 52
of the Constitution, but also from other provisions of the
Constitution (inter alia from Paragraph 2 of Article 30, Articles
38, 39, 41, Paragraph 1 of Article 51 and Article 146 thereof),
the imperative of reality, thus, it obliges to revise once
established (and applied) guarantees of social (material) nature
(to increase their sizes) in particular if the economic or social
situation becomes changed so that the said established (and
applied) guarantees depreciate considerably, let alone become
nominal in general (in this case, one must also have in mind the
reservation regarding the proportionality and temporary reduction
of payments when it is necessary for the protection of other
constitutional values which is specified in this and other
Constitutional Court rulings).
12. The establishment (and application) of the social
(material) guarantees upon expiry of their powers must be based
on the Constitution. In this context, it needs to be noted that
the Constitution establishes the grounds for dismissal of from
office. For example, under Article 115 of the Constitution, the
judges of courts of general jurisdiction and specialized courts
established under Paragraph 2 of Article 111 of the Constitution
shall be dismissed from office according to the procedure
established by law in the following cases: of their own will
(Item 1); upon expiry of the term of powers or upon reaching the
pensionable age established by law (Item 2); due to the state of
health (Item 3); upon the election to another office or upon
their transfer, with their consent, to another place of work
(Item 4); when by their behaviour they discredit the name of the
judge (Item 5); upon coming into effect of court judgements
convicting them (Item 6); under Article 108 of the Constitution,
the powers of a justice of the Constitutional Court shall cease:
upon the expiry of the term of powers (Item 1); upon his death
(Item 2); upon his resignation (Item 3); when he is incapable to
hold office due to the state of his health (Item 4); when the
Seimas removes him from office in accordance with the procedure
for impeachment proceedings (Item 5). Under Articles 74 and 116
of the Constitution, the President and justices of the Supreme
Court, the President and judges of the Court of Appeal, and under
Article 74 of the Constitutionthe President and justices of the
Constitutional Court who have grossly violated the Constitution
or breached their oath, or if it transpires that a crime has been
committed, may be removed from office by the Seimas according to
the procedure for impeachment proceedings.
The Constitution entrenches the final list of the grounds
for dismissal of judges from office (i.e. discontinuation of
powers) and that this list may not be expanded by laws or other
legal acts (Constitutional Court ruling of 27 November 2006).
On the other hand, it is obvious that the powers of the
judges may discontinue (expire) on various constitutional
grounds.
12.1. It needs to be emphasized that the Constitution
does not oblige the legislator to establish such legal regulation
that the time of the expiry of powers of the judges which is
established in the Constitution or laws would coincide with the
time period when the judge reaches the pensionable age
established in the law: one may, by means of a law, establish
also such legal regulation whereby the time of powers of the
judge may expire before he reaches the pensionable age
established in the law, as well as such legal regulation whereby
the time of powers of the judge may expire after he reaches the
pensionable age established in the law. While establishing the
social (material) guarantees of judges upon expiry of their
powers, one heed this. In this context, it needs to be noted that
two legal factsexpiry of the term of powers of judges and the
fact that the judge reaches pensionable age established by lawin
Item 2 of Article 115 of the Constitution are considered as
alternative, thus, equal grounds for discontinuation of the
powers of the judge; it also needs to be mentioned that in
Article 108 of the Constitution, discontinuation of the powers of
a justice are not related with any age in general, as well as
with pensionable age established by law, but only with one of the
specified alternativeswith the expiry of the term of nine years
which is established in the Constitution itself (taking account
of the reservation provided for in Paragraphs 2, 3 and 4 of
Article 7 of the Republic of Lithuania Law "On the Procedure for
Entry into Force of the Constitution of the Republic of
Lithuania" which is a constituent part of the Constitution).
12.2. In the context of different grounds (their
peculiarities) of discontinuation of the powers of judges which
are established in the Constitution, the Constitutional Court
investigated the compliance of the legal regulation whose
constituent part was a provision whereby the judges of the local
courts shall be appointed to office for five years for the first
time, with the Constitution and has not recognized this provision
as being in conflict with the Constitution (Constitutional Court
rulings of 21 December 1999 and 9 May 2006). This term is to be
construed as the "term of powers" of the judge, upon expiry of
which provided the person has proved by his performance and
conduct to be fitting for the work of a judge, the question of
his appointment for the longer term of powers as pointed out in
the law is decided (Constitutional Court ruling of 21 December
1999).
The Constitutional Court has held that "the principle of
independence of judges entrenched in the Constitution implies
only such legislative regulation of the term of powers of the
judge that when appointing a judge, he would know the term of
powers (until the time established by law or until he reaches the
pensionable age established by law)", "the term of powers of the
judge may not depend on the future decisions of the state power
institutions that have appointed him, which would be grounded on
free discretion", that "the legal regulation when the possibility
to extend the term of powers of judges upon their expiry
(irrespective of the term for which the powers of the judge are
extended and of the level of court the powers of whose judge are
extended) is provided may create preconditions for other persons
to try to influence the judge directly or indirectly in order
that he, when seeking extension of his powers, would make certain
decisions in his investigated cases; such legal regulation is to
be assessed as enabling someone to induce the judge to consider
cases and adopt decisions in them not only by obeying the law, as
required by the Constitution (Paragraph 3 of Article 109), but
also by heeding the fact how the decisions adopted in his
considered cases will influence the possibility to extend his
powers in the future", as well as that "creates preconditions for
a judge to adopt the decisions in his investigated cases, which
would correspond not the concept of justice of the judge himself,
but the concept of justice of other persons" (Constitutional
Court ruling of 9 May 2006). The legal regulation, when the
possibility is provided to extend the powers of judges upon
expiry of their term, save the exceptions allowed by the
Constitution itself, was assessed as incompatible with the
Constitution, and corresponding provision of the Law on Courts
was recognized as in conflict with the Constitution
(Constitutional Court ruling of 9 May 2006). However, the
Constitutional Court has also held that the Constitution does not
in essence prevent such legal regulation established by law,
where a judge, despite the fact that his powers have expired or
he reached the pensionable age established by law, may still hold
his office for a certain period of time until the consideration
of certain cases, the consideration of which was not finished at
the time (on the day) when the term of powers of that judge
expired or when he reached the pensionable age established by
law, is finished (final decisions therein will be adopted); such
exceptional legal regulation would be constitutionally grounded,
since, otherwise, i.e. without establishing such legal
regulation, the decision of corresponding casesadministration of
justicewould slow down and thus preconditions would be created
to injure the rights and legitimate interests of persons and
certain constitutional values would be violated; such a judge
must be dismissed, when the corresponding legal fact to which the
extension of powers of the judge is related happensthe
consideration of corresponding cases is finished (Constitutional
Court ruling of 9 May 2006). At the time when the consideration
of said cases is not yet finished, the said judge is a full-
fledged judge: while administering justice (deciding cases), he
has the same powers as other judges of the corresponding court,
his status as a judge is indivisible, the same restrictions of
activity and limitation of remuneration which stem from the
Constitution are applied to him, he has the same responsibility
and immunities as other judges. Thus, he has the same workload
(inter alia because of the fact that in the said court, the
position of the judge who must carry out an important
constitutional functionto administer justiceis not yet vacant)
as other judges of the corresponding court, and he must be paid
the same remuneration as other judges of the corresponding court,
he also has the same social (material) guarantees which the
judges of the corresponding court have. It also needs to be noted
that the judge whose powers are extended on the said ground, as
this exception is permitted by the Constitution itself, at that
time may not be applied those social (material) guarantees of the
judge which are established (and applied) to judges upon
discontinuation of their powers.
12.3. The fact that under the Constitution, before expiry
of their powers and reaching the pensionable age established by
law, the judges may be dismissed from office due to the state of
health, may not be the ground not to apply them the social
(material) guarantees which are related with the status of the
judge upon discontinuation of their powers that are established
(and applied) for the judges whose powers discontinued upon
reaching the pensionable age established by law or upon expiry of
their powers. Even though the legislator has certain discretion
to establish the social (material) guarantees for such judges
(dismissed from office due to the state of health before expiry
of their powers and reaching the pensionable age established by
law) upon discontinuation of their powers, he does not have
discretion to establish such legal regulation that in the aspect
of the social (material) guarantees upon discontinuation of the
powers of the judge, the status of the judges who were dismissed
from office due to the state of health before expiry of their
powers and reaching the pensionable age established by law would
be opposed against the status of the judges who were dismissed
from office upon reaching the pensionable age established by law
or upon expiry of their powers.
It needs to be emphasized that the said ground of
discontinuation of the powers of the judge is linked not with the
free decision of the judge himself no longer to work as a judge,
no longer to seek the career of the judge, but with the fact that
because of the reason which does not depend on himthe state of
healthhe cannot hold office and his powers must be discontinued
beforehand. While establishing the social (material) guarantees
of judges upon discontinuation of their powers, the legislator
may not disregard this condition.
12.4. Differently are to be assessed the legal situations
when judges, before expiry of their powers and reaching the
pensionable age established by the law, are dismissed from office
of their own will (they resign), as well as when judges are
dismissed from office when they are elected to another office or
are transferred, with their consent, to another place of work.
Such grounds of discontinuation of the powers of the judge are
related with the free decision of the judge no longer to work as
a judge, no longer to seek the career of the judge (at all or
temporarily). Thus, the legislator has discretion to establish
whether the social (material) guarantees of judges upon
discontinuation of their powers for such persons (who are
dismissed from office of the judge of their own will, who have
resigned, as well as those who are dismissed from office after
electing them to another office or when they are transferred,
with their consent, to another place of work) are linked only
with discontinuation of the powers of judges of these persons, or
whether they are linked with other legal facts.
12.5. In this Constitutional Court ruling, it has been
held that if the legislator, enshrines such guarantee of social
(material) character of the judge (upon expiry of the powers of
the judge) as the pension of the judge, the legislator, heeding
the Constitution, may also establish the cases when the pension
of the judge (which is related to the constitutional status of
the judge) is not granted to the former judge and/or when the
granted state pension of judge is no longer paid to the former
judge. It has also been held that while establishing the cases
when the pension of the judge is not granted to the former judge,
one must take account of the grounds of discontinuation of the
constitutional powers of the judge.
In the Constitutional Court ruling of 27 November 2006 it
was held that "the judge's behaviourboth related to the direct
performance of his office and to his activity, which is not
linked to his office should not raise any doubts about his
impartiality and independence; the judge must discharge his
duties and behave so that by his behaviour he would not discredit
the name of the judge". It needs to be noted that while
establishing the social (material) guarantees of the judge upon
discontinuation of his powers, one must take account of the fact
that the Constitution also provides for such grounds of
discontinuation of the powers of the judge as coming into effect
of a court judgment convicting the judge, removal of the judge
from office according to the procedure for impeachment
proceedings for gross violation of the Constitution or breach of
oath, upon coming into light that there was a committed crime, as
well as that by his behaviour, the judge discredited the name of
the judge. Thus, the law must establish such legal regulation
that if the judge is dismissed from office on the said grounds,
he loses the corresponding social (material) guarantees of the
judge which are established (applied) to him upon expiry of his
term of office, which are related with the constitutional status
of the judge and his dignity.
It needs also to be noted that, as the Constitutional
Court held in its ruling of 27 November 2006, while establishing
the procedures for dismissal of a judge from office by the Law on
Courts (taking account of inter alia the ground (particularities
thereof) of the dismissal), in all cases one must heed the
principle of independence of the judge and court, the presumption
of innocence, the requirements of the proper legal process and
other imperatives entrenched in the Constitution.
13. Disregarding of the provisions which stem from the
Constitution may determine that the corresponding legal
regulation may (and must) be recognized as being in conflict with
the Constitution. It needs to be noted that one did not avoid
such legal regulation of the pensionary relations which was later
recognized as being in conflict with the Constitution. The legal
position of the Constitutional Court has the significance of the
precedent in the corresponding constitutional justice cases.
13.1. The Constitutional Court Ruling "On the compliance
of the Government of the Republic of Lithuania Resolution No.465
'On Partial Amendment to the Government of the Republic of
Lithuania Resolution No.124 "On the Remuneration of Officers of
the Courts of the Republic of Lithuania, the State Arbitration,
the Prosecutor's Office, and the Department of State Control" of
3 March 1993' adopted on 31 March 1995, with the Constitution of
the Republic of Lithuania, Part 1 of Article 46 of the Law on
Courts of the Republic of Lithuania, Part 1 of Article 4 of the
Law of the Republic of Lithuania on the Prosecutor's Office, the
Law of the Republic of Lithuania on State Control, and the Law of
the Republic of Lithuania 'On the Official Salaries of Judges of
the Courts of the Republic of Lithuania, Officers of the
Prosecutor's Office, the State Arbiters, and Officers of the
Department of State Control'" of 6 December 1995 recognized the
legal regulation established by a Government legal act, under
which the Government assumed the obligations to approve the sizes
of the bonuses of inter alia the President of the Lithuanian
Supreme Court and which established the powers of the Minister of
Justice to approve the sizes of the bonuses of the Chairpersons
and judges of the Court of Appeals of Lithuania, district and
local courts and the Economic Court of the Republic of Lithuania
as being in conflict with the Constitution (inter alia with
Article 109 thereof). However, taking account of the then legal
regulation established in the legal acts, the provisions of the
said Government resolution that additional official payments
shall be approved to the chairpersons and judges of the Court of
Appeal of Lithuania, district and area courts and the Economic
Court of the Republic of Lithuania were recognised as being not
in conflict with the Constitution.
The Constitutional Court was applied regarding the
construction of the provisions of the Constitutional Court ruling
of 21 December 1999. In its Decision "On the construction of the
21 December 1999 Ruling of the Constitutional Court of the
Republic of Lithuania" of 12 January 2000, the Constitutional
Court inter alia construed that the statement "any attempts to
reduce the salary or other social guarantees of a judge or cut
the budget of the judiciary are interpreted as infringement on
the judicial independence" means any attempts to reduce the
remuneration or other social guarantees of a judge during his or
her judicial service are prohibited, as well as that the notion
"judge's remuneration" employed in the statement "judges'
remuneration must not be reduced during his or her judicial
service" includes all payments paid to a judge from the State
budget.
13.2. The Constitutional Court Ruling "On the compliance
of Paragraphs 1 and 2 of Article 4, Paragraphs 1 and 3 of Article
5, Item 1 of Paragraph 3, Paragraphs 4, 5 and 6 of Article 7 of
the Republic of Lithuania Law on Remuneration for Work of State
Politicians, Judges and State Officials, as well as Chapter II of
the Appendix to the same law, Appendix 6 to the Republic of
Lithuania Law on the Approval of the Financial Indices of the
2000 State Budget and the Budgets of Local Governments, Article 9
of the Republic of Lithuania Law on Amending the Law on the
Approval of the Financial Indices of the 2000 State Budget and
the Budgets of Local Governments, Government of the Republic of
Lithuania Resolution No. 499 'On the Temporary Experimental
Procedure for Remuneration for Work to Heads and Other Officials
of State Power, State Administration and Law Enforcement Bodies'
of 29 November 1991, Government of the Republic of Lithuania
Resolution No. 666 'On Remuneration for Work of Judges of Courts,
Officials and Other Employees of the Prosecutor's Office and the
State Security Department of the Republic of Lithuania' of 24
June 1997, Government of the Republic of Lithuania Resolution No.
1494 'On the Partial Amendment of Government of the Republic of
Lithuania Resolution No. 689 "On Remuneration for Work of Chief
Officials and Officers of Law and Order Institutions and of Law
Enforcement and Control Institutions' of 30 June 1997"' of 28
December 1999 with the Constitution of the Republic of Lithuania"
of 12 July 2001 recognized the legal regulation established by
the law which establishes in what manner the official salaries of
judges are to be computed as well as the legal regulation which
established extra pay for judges for the years served for the
State of Lithuania as being not in conflict with the
Constitution. It also recognized the provision of the law that
the judges whose remuneration ("official salary") received before
coming into force of this law if it was bigger than the
remuneration for work established in this law shall, upon this
law going into effect, had to be paid the remuneration for work
that they had been paid until then and it shall not be increased
for a certain period of time, as being not in conflict with the
Constitution. However, the legal regulation established by the
law which consolidated the reduction of remuneration ("official
salary") of the judges, if they were paid more than established
in this law, was recognized as being in conflict with the
Constitution. It needs to be noted that no statement (let alone
the entirety of the statements) of the Constitutional Court
ruling of 12 July 2001 may be construed as meaning that,
purportedly, one may establish different (smaller or bigger)
remunerations for the persons who are appointed as the judges of
any court than the remunerations of the judges who already work
in the said court. Thus, one may not construe, purportedly, there
is an exception of such principled provision, under which, the
remunerations of the judges of the same system of courts and the
same level may be differentiated according to the fact when the
judge's remuneration of a certain size was established (inter
alia according to the fact, whether the person started to work as
a judge of the corresponding court before establishing the
remuneration of a certain size for the judge of the said court,
or afterwards), because such an exception would deny the
principled provision itself together with the principle of the
equal status of judges which stems from the Constitution. One
also may not construe that, purportedly, other social (material)
guarantees of judges (inter alia established (applied) upon
expiry of the powers of the judge) may be differentiated
according to the fact when these guarantees were established
(inter alia according to the fact whether the powers of a certain
judge had terminated before establishing a certain guarantee, or
afterwards).
13.3. The Constitutional Court Ruling "On the compliance
of Item 2 of Paragraph 1 of Article 62, Paragraph 4 (Wording of
11 July 1996) of Article 69 of the Republic of Lithuania Law on
the Constitutional Court and Paragraph 3 (wording of 24 January
2002) of Article 11, Paragraph 2 (wording of 24 January 2002) of
Article 96 of the Republic of Lithuania Law on Courts with the
Constitution of the Republic of Lithuania" of 28 March 2006
recognized the provision of the Law on Courts that during the
judge's tenure it shall be prohibited to reduce his remuneration
with the exception of cases provided by this law, or any other
social guarantees, as well as the provision of the Law on Courts
that when the economic and financial situation of the country
deteriorates considerably, the Seimas may review the financial
and material conditions for the functioning of the courts, as
being not in conflict with the Constitution. It needs to be noted
that the second specified provision is exactly the "case provided
by this law" mentioned in the first provision. On the other hand,
the case mentioned in the Constitutional Court ruling was
construed as such, when the economic and financial situation of
the state is very severe (and not that the state faces some
temporary problems which may be solved without resorting to
extreme measureswithout reviewing the financial and material
conditions for the functioning of the courts).
13.4. In the Constitutional Court Decision "On dismissing
the legal proceedings in the case subsequent to the petition of
the Third Vilnius City Local Court, the petitioner, requesting to
investigate as to whether Paragraph 3 (wording of 24 January
2002) of Article 11 of the Republic of Lithuania Law on Courts is
not in conflict with Paragraph 2 of Article 5, Paragraphs 2 and 3
of Article 109, Paragraph 1 of Article 114 of the Constitution of
the Republic of Lithuania and the constitutional principle of a
state under the rule of law, whether the Republic of Lithuania
Law on Remuneration for Work of State Politicians, Judges and
State Officials (wording of 29 August 2000 with subsequent
amendments and supplements) is not in conflict with Article 5,
Paragraph 1 of Article 30, Paragraphs 2 and 3 of Article 109 and
Paragraph 1 of Article 114 of the Constitution of the Republic of
Lithuania and the constitutional principle of a state under the
rule of law, and whether Item 1 of Government of the Republic of
Lithuania Resolution No. 1494 'On the Partial Amendment of
Government of the Republic of Lithuania Resolution No. 689 "On
Remuneration for Work of Chief Officials and Officers of Law and
Order Institutions and of Law Enforcement and Control
Institutions" of 30 June 1997' of 28 December 1999 is not in
conflict with Article 1, Paragraph 1 of Article 5, Paragraphs 2
and 3 of Article 109 and Paragraph 1 of Article 114 of the
Constitution of the Republic of Lithuania and the constitutional
principle of a state under the rule of law" of 8 August 2006, the
overall legal regulation of the relations concerning remuneration
of judges was assessed as not exhaustive, not sufficiently
defined, lacking legal clarity, messy, chaotic and having legal
gaps. It was held that such legal situation occurred precisely
because of the fact that the legislator had not carried out his
constitutional duty and had not corrected the legislative
regulation of remuneration of judges so that it would be in
compliance with the Constitution (inter alia its official
construction presented in the Constitutional Court ruling of 12
July 2001), that it would be completely clear and harmonious (so
that it would be impossible to interpret it in a diverse manner,
nor to apply its provisions in a diverse manner) but also that it
would not induce inter alia self-governance institutions of
judicial power to decide the questions which, under the
Constitution, are only within the competence of the legislator
the Seimas (even though, such decisions had been adopted). In the
said Constitutional Court decision, it was also held that the
time period during which the legislative regulation had to be
regulated so that it would be in compliance with the Constitution
(inter alia its official construction presented in the
Constitutional Court ruling of 12 July 2001) had become too long
and this created pre-conditions for appearance of instability in
the professional corps of judges and in the court system, and,
ultimately, it created pre-conditions for decreasing of public
trust in the judicial power.
In this context, it needs to be noted that the overall
legal regulation of the relations concerning remuneration of
judges, regardless of certain amendments which were made later
(which were not revised in the Constitutional Court decision of 8
August 2006), have remained virtually unchanged. It is
universally known that since 1 January 2000, the remuneration for
work factually received by the judges was reduced and since then
it has never been increased at all; in addition, in courts,
judges may not be paid any other payments which are related to
work (while, for example, they can be paid to state servants or
persons who work under employment contracts). It is also
universally known that since 2000 the social and economic
situation of the state has changed in essence in the direction
that the remuneration of the judges (not of all the levels),
which once undoubtedly complied with the constitutional status of
the judge and his dignity, eventually has lost its value. Such
freezing of the remuneration of the judges may actually be
equalled to the reduction of the remuneration of the judges.
14. It needs to be noted that the remuneration of judges
regarding which there exists comprehensive constitutional
jurisdiction, and other social (material) guarantees of judges
regarding which only some fragments of such jurisdiction exist,
are interrelated things: the remuneration of judges makes part of
the system of the social (material) guarantees of judges, thus,
the same general principles as for the institute which is
explicitly enshrined in the Constitution are to be applied for
its protection and defence (these principles ground the
protection and defence of all social (material) guarantees of
judges in general).
It was mentioned that the legal position of the
Constitutional Court, in the corresponding constitutional justice
cases, without excluding the cases in which it is decided whether
the legal acts (parts thereof) which enshrine the functioning and
status of judges (inter alia powers, guarantees) are not in
conflict with legal acts of higher power, inter alia (and, first
of all) with the Constitution, has the significance of the
precedent.
V
1. The requirements for the social (material) guarantees
are also enshrined in the international documents.
2. For example, the Recommendations of the Committee of
Ministers of the Council of Europe of 13 October 1994 inter alia
consolidated the principle that the status and remuneration of
judges has to be commensurate with the dignity of their
profession and burden of responsibilities.
3. Item 6 (which regulates the remuneration and social
welfare of judges) of the European Charter on the Statute of
Judges approved on the Initiative of the Council of Europe on 10
July 1998 provides that "judges exercising judicial functions in
a professional capacity are entitled to remuneration, the level
of which is fixed so as to shield them from pressures aimed at
influencing their decisions and more generally their behaviour
within their jurisdiction, thereby impairing their independence
and impartiality", that "remuneration may vary depending on
length of service, the nature of the duties which judges are
assigned to discharge in a professional capacity, and the
importance of the tasks which are imposed on them, assessed under
transparent conditions", that "the statute provides a guarantee
for judges acting in a professional capacity against social risks
linked with illness, maternity, invalidity, old age and death",
as well as that "the statute ensures that judges who have reached
the legal age of judicial retirement, having performed their
judicial duties for a fixed period, are paid a retirement
pension, the level of which must be as close as possible to the
level of their final salary as a judge".
4. Article 13 (which regulates the remuneration and
retirement of judges) of the Universal Charter of the Judge
(adopted by the Central Council of the International Association
of Judges on 17 November 1999) establishes that "the judge must
receive sufficient remuneration to secure true economic
independence", that "the remuneration must not depend on the
results of the judges work and must not be reduced during his or
her judicial service", that "the judge has a right to retirement
with an annuity or pension in accordance with his or her
professional category", as well as that "after retirement a judge
must not be prevented from exercising another legal profession
solely because he or she has been a judge".
VI
1. It has been mentioned that in this constitutional
justice case one disputes the provision "the state pension of
judges shall not be granted and the granted pension shall not be
paid, if: <
> (6) the person has the income from which state
social pension insurance contributions are calculated and paid or
if he receives state social insurance benefits of sickness
(including those paid by the employer during the days of
sickness), of maternity, of maternity (paternity) or of
unemployment" of Article 4 (wording of 2 July 2002) of the Law.
2. The disputed provision is to be construed also in the
context the legal regulation established in other articles
(paragraphs thereof) of the Law, as well as in other laws, inter
alia the Republic of Lithuania Law on Courts, the Law on State
Pensions.
2.1. Under Article 100 (wording of 2 July 2002) of the
Law on Courts, pensions for judges shall be established by the
Republic of Lithuania Law on the State Social Insurance Pensions,
the Law on State Pensions and the Law on the State Pensions for
Judges. This Article is in Chapter XI "Judges' Social Guarantees"
of the Law on Courts. Thus, the legislator considers the state
pension of judges as one of the social guarantees of judges.
2.2. Under the Law on State Pensions, the state pension
of judges is one kind of state pensions; under Paragraph 3
(wording of 2 July 2002 and 12 December 2006) of Article 1 of
this law, the state pensions of judges (as well as some other
state pensions) shall be granted "in compliance with special
laws".
Namely such law establishing the special legal regulation
is the Law on the State Pensions of Judges. It has been mentioned
that the state pension of judges has been established for the
first time namely by this law and that, until then, in the
Republic of Lithuania, such pensions as pensions of judges had
not been established.
2.3. The Law on the State Pensions of Judges establishes
what persons have the right to receive the state pension of
judges, as well as it establishes the grounds and conditions for
granting and payment of this pension. The Law also regulates
other relations linked to granting and payment of the state
pensions of judges.
2.3.1. Under Paragraph 1 of Article 1 of the Law, the
following shall be entitled to the state pension of judges:
justices of the Constitutional Court, justices of the Supreme
Court of Lithuania, judges of the Court of Appeal of Lithuania,
judges of the Supreme Administrative Court of Lithuania, judges
of the courts of general jurisdiction and specialized courts of
Lithuania and the judges of any international court, who are
appointed or elected from Lithuania, who, according to Article 3
of the Law, at the time of application regarding granting of the
state pension of judges: must be citizens of the Republic of
Lithuania permanently living in the Republic of Lithuania (Item
1); must be of the age of the old age pension established by the
Law on State Social Insurance Pensions (Item 2); must no longer
work as judges (Item 3) must have not less than a five-year
period of service as a judge (Item 4). Under Paragraph 1 of
Article 8 of the Law, one may apply regarding the granting of the
state pension of judges at any time from the day of appearance of
the right to receive such pension, and under Paragraph 6 of this
article, the state pension of judges is granted for life.
It needs to be noted that under Paragraph 2 of Article 12
of the Law, Item 1 of Article 3 of the Law (it is not a matter of
investigation in the constitutional justice case at issue) had to
become null and void as from the day when Lithuania joined the
European Union. The Republic of Lithuania became a Member State
of the European Union on 1 May 2004.
2.3.2. Under Paragraph 2 of Article 1 of the Law, the
persons who acquire the right to the state pension of judges and
who have the right to other state pensions established in the Law
on the State Pensions and special laws, shall be granted and paid
only one state pension, at their choice, provided other laws do
not establish otherwise.
In this context, it needs to be noted that under
Paragraph 1 (wording of 4 November 1999) of Article 3 of the Law
on State Pensions, in the case of a person entitled to draw
several state pensions, only one of them shall be paid to him at
his choice, with the exception of the state widow's and orphan's
pension, which may also be paid only one in conjunction with one
of the state pensions.
2.3.3. Under Article 5 of the Law, the period of service
of judges which is necessary in order to receive the state
pension of judges includes the time since 11 March 1990, during
which the person worked as a judge in the courts which function
in the territory of Lithuania (the Constitutional Court, the
courts of general jurisdiction and the specialized courts) or as
a judge of any international court, who is appointed or elected
from Lithuania; if the person gained the period of service of a
judge while working as a judge in different courts and at
different time, his gained period of service of a judge in order
to receive the state pension of judges shall be summed up under
the procedure established in the Regulations of Granting and
Payment of the State Pensions of Judges.
In this context, it needs to be mentioned that the
Regulations of Granting and Payment of the State Pensions of
Judges were approved by the Government by its Resolution No. 68
"On Approving the Regulations of Granting and Payment of the
State Pensions of Judges" of 21 January 2003 which came into
effect on 25 January 2003.
2.3.4. Under Paragraph 1 of Article 6 of the Law, for the
persons who have the right to receive the state pension of judges
and who meet the established conditions and who have gained not
less than a twenty-year period of service as a judge, the state
pension of judges shall be calculated from the average
remuneration received in last 5 years (before they terminated
holding the office of the judge); 45 percent of this amount shall
be granted. Paragraph 2 of this article establishes the size of
the state pension of judges which is granted to the persons who
have the right to receive the state pension of judges and who
meet the conditions established by the Law, but who have not
gained the twenty-year period of service as a judge: for the
persons who have gained a fifteen-year or longer period of
service as a judge, the state pension of judges shall be
calculated from the average remuneration received in last 5 years
(before they finished holding the office of the judge); 35
percent of this size shall be granted (Item 1); for the persons
who have gained a ten-year or longer period of service as a
judge, the state pension of judges shall be calculated from the
average remuneration received in last 5 years (before they
finished holding the office of the judge); 20 percent of this
size shall be granted (Item 2); for the persons who have gained a
five-year or longer period of service as a judge, the state
pension of judges shall be calculated from the average
remuneration received in last 5 years (before they finished
holding the office of the judge); 10 percent of this size shall
be granted (Item 3).
2.3.5. Paragraph 1 of Article 7 of the Law provides that
the state pensions of judges shall be granted and paid by the
National Courts Administration. Under Paragraph 4 of this
article, the receivers of the state pensions must inform the
National Courts Administration about the circumstances which have
influence for paying the state pension of judges not later than
in 10 days after the day of appearance of such circumstances; if
one does not inform about such circumstances and, thus, the
pension is overpaid, the size of the overpaid pension shall be
exacted from the receiver of the pension without restricting to
any term, upon the decision of the head of the National Courts
Administration under the procedure established by Article 9 of
the Law.
2.3.6. The sum of the calculated state pension of judges
and other pensions (state pensions and state social insurance
pensions) granted under other laws for one person may not exceed
per person the amount of 1.5 monthly average salaries in the
national economy as announced by the Department of Statistics for
the quarter before the last quarter preceding the month for which
the pension is paid; limitation of the size of the pension shall
be applied by the institution paying the state pension (i.e. the
National Courts Administration) (Paragraph 3 of Article 6 of the
Law).
In this context, one is to mention that also Paragraph 3
(wordings of 2 July 2002 and 12 December 2006) of Article 3 of
the Law on State Pensions, under which, the size of the state
pension specified in Items 3-6 of Paragraph 1 of Article 1 of the
Law on State Pensions as well as the sum total of the amount of
this pension and the state pensions and state social insurance
pensions granted to the same person may not exceed per person the
amount of 1.5 monthly average salaries in the national economy as
announced by the Department of Statistics at the Government of
the Republic of Lithuania for the quarter before the last quarter
preceding the month for which inter alia the state pension of
judges is paid.
2.3.7. Article 4 (wording of 2 July 2002) of the Law
established the cases when the state pension of the judge is not
granted and the granted pension is not paid: upon expiry of
powers of the judge according to the procedure for impeachment
proceedings (Item 1); the judge is dismissed from the office of
the judge because by his behaviour he discredited the name of the
judge (Item 2); upon coming into effect of court judgements
convicting him (without taking account of the exemption from
serving the punishment, later expiry or quashing of conviction)
(Item 3); the person receives a pension from another state (Item
4); the person worked or served in the structures enumerated in
Items 1-8 of Paragraph 4 of Article 11 of the Law on State
Pensions (in this case, the person's right to receive the state
pension of the judge is established while taking account of the
list of services and posts approved under the procedure
established in Paragraph 5 of Article 11 of the Law on State
Pensions) (Item 5); the person has the income from which state
social pension insurance contributions are calculated and paid or
if he receives state social insurance benefits of sickness
(including those paid by the employer during the days of
sickness), of maternity, of maternity (paternity) or of
unemployment (Item 6).
In this context, it needs to be noted that Items 1-8 of
Paragraph 4 (wording of 13 June 2000) of Article 11 of the Law on
State Pensions, to which reference is made in Item 5 of Article 4
(wording of 2 July 2002) of the Law on the State Pensions of
Judges, enumerate the corresponding structures of the regimes
which occupied Lithuania (Soviet structures and those of the Nazi
Germany), while under Paragraph 5 (wording of 13 June 2000) of
Article 11 of the Law on the State Pensions, the list of the
corresponding services and posts shall be approved by the
Government.
It needs also to be mentioned that the Constitutional
Court Ruling "On the compliance of Part 4 of Article 11 of the
Republic of Lithuania Law on State Pensions, Item 2 of Part 3 of
Article 8 of the Republic of Lithuania Law on the Legal Status of
Victims of the Occupations of 1939-1990 with the Constitution of
the Republic of Lithuania and on the compliance of Items 9 and 12
of the List 'The 1939-1990 Occupations Repressive Structures,
Services and Positions for Serving in Which Persons Shall not be
Awarded State Pensions for Victims' as approved by 3 July 1998
Government of the Republic of Lithuania Resolution No. 829 'On
the Approval of the List of the 1939-1990 Occupations Repressive
Structures, Services and Positions for Serving in Which Persons
Shall not be Awarded State Pensions for Victims' with the
Constitution of the Republic of Lithuania and Part 4 of Article
11 of the Republic of Lithuania Law on State Pensions" of 10
February 2000 recognized Paragraph 4 of Article 11 of the Law on
State Pensions (wording of 4 November 1997) to the extent that
state pensions for victims shall not be granted to individuals
listed in Paragraphs 1 and 2 of this article if during the period
of 1939-1990 they served or worked in the other institutions
(structures) clearly not indicated by the law as in conflict with
Article 52 of the Constitution, and to the extent that it
established that the Republic of Lithuania shall approve the list
of the services and positions of the other institutions
(services) not indicated in the law for serving in which persons
shall not be granted state pensions for victimsas in conflict
with Articles 5 and 52 of the Constitution. It needs also to be
noted that the Constitutional Court Ruling "On the compliance of
the Republic of Lithuania Law on the Amendment and
Supplementation of Articles 7, 11, 15 of the Law on State
Pensions, Paragraphs 1 and 4 of Article 7 of the Republic of
Lithuania Law on State Pensions and Paragraph 2 of Article 20 of
the Law on the President of the Republic of Lithuania with the
Constitution of the Republic of Lithuania" of 19 June 2002
recognized that the Law on the Amendment and Supplementation of
Articles 7, 11, 15 of the Law on State Pensions (Article 2 of
which set forth Article 11 of the Law on State Pensions in a new
wordingwording of 13 June 2000) according to the procedure of
its signing and promulgation conflicted with Paragraph 2 of
Article 71 of the Constitution. Afterwards, Paragraphs 4 and 5 of
Article 11 of the Law on the State Pensions have not been amended
or supplemented.
2.3.8. Article 10 of the Law establishes one more case
when the person is not paid the granted state pension of judges:
the pension shall continue to be paid to the recipient of the
state pension of judges, to whom this pension has been granted,
after he has moved abroad, if the period of service of the person
as a judge in the courts of the Republic of Lithuania is not
shorter than 20 years (Paragraph 1); if the period of service as
a judge of the receiver of pension who has moved to live abroad
permanently is shorter than 20 years, the state pension of judges
shall be paid: the amount of the pension will be that granted in
the month of leaving (correspondingly limited under the procedure
established by Paragraph 3 of Article 6 of the Law) and it will
be paid for 6 months in advance and then it will be no longer
paid (Paragraph 2).
In this context, it also needs to be noted that under
Paragraph 1 of Article 43 (wording of 1 July 2005) of the Law on
the State Social Insurance Pensions, when a pensioner moves to
permanently reside in another state, the granted pension shall be
paid to him, inter alia provided the pensioner has acquired at
least the minimum state social pension insurance period required
for the pension of an appropriate type while working in
Lithuanian enterprises, institutions or organisations.
3. Summing up, one needs to hold that the Law on the
State Pensions of Judges which was adopted by the Seimas on 2
July 2002 and which came into force on 1 January 2003 enshrined
such legal regulation (also when it is construed in the context
of other laws), whereby the state pension of judges (one of the
kinds of state pensions) is considered as one of the social
(material) guarantees upon expiry of the powers of the judge,
which is related with the constitutional status of the judge.
This pension could be granted to a person after he had reached
the pensionable age established in the Law on State Social
Insurance Pensions and when his powers of the judge had expired,
in addition, this person had to have gained not less than a five-
year period of service; if a former judge moved abroad to live
there permanently and his period of service in the courts of the
Republic of Lithuania was shorter than 20 years, the payment of
the state pension of judges to the said person, even though he
met all the conditions in order to receive the state pension of
judges established in this law, had to be discontinued. The
persons who had the right to the state pension of judges and the
right to other state pensions, had to choose, which of these
pensions had to be paid (save the state pension of widows and
orphans which, according to the laws, could be paid together with
one of the state pensions). In addition, it enshrined the maximum
sum of all the pensions received by the person (when the person
had to receive not one but several pensions granted under various
laws), which could not exceed 1.5 amount of the statistical
average monthly salary in the economy of the country, which was
paid in the quarter before last that had preceded the month when
state pension was paid, as published by the Department of
Statistics at the Government of the Republic of Lithuania; thus,
even though the principled provision was declared that the size
of the state pension of judges depends on the period of service
of the judge and on the average of the payment for work of the
judge received during the last 5 years, before expiry of holding
the office of the judge (the persons who have gained not less
than a twenty-year period of service as a judge, shall be granted
the state pension of judges of 45 percent of the average payment
for work, who have gained a fifteen-year or longer period of
service as a judge35 percent, who have gained a ten-year or
longer period of service as a judge20 percent, and who have
gained a five-year or longer period of service as a judge10
percent), this provision was "neutralized", as virtually the size
of the paid state pension of judges depended on the fact of what
pensions and of what size the person had to receive according to
other laws. Thus, the state pension of judges was (and is) one of
the integrated elements (as the size of the paid state pension of
judges was (and is) related to other social guarantees of the
person who receives this pension) of the system of social
guarantees of the person who receives this pension.
4. Even though, as it was mentioned, the disputed
provision "the state pension of judges shall not be granted and
the granted pension shall not be paid, if: <
> (6) the person has
the income from which state social pension insurance
contributions are calculated and paid or if he receives state
social insurance benefits of sickness (including those paid by
the employer during the days of sickness), of maternity, of
maternity (paternity) or of unemployment" of Article 4 (wording
of 2 July 2002) of the Law is to be construed also in the context
of the legal regulation established in other articles (paragraphs
thereof) of the Law, as well as in other laws, the said other
legal regulation is not a matter of investigation in the
constitutional justice case at issue inter alia in the aspect of
the compliance of the corresponding provisions with the
Constitution. No statement of this Constitutional Court ruling
which is designed to construe the said overall legal regulation,
may in itself be interpreted as expressing the position that the
corresponding provisions of the laws (inter alia the Law on the
State Pension of Judges) comply with the Constitution.
5. It needs to be held that the legal regulation
enshrined in Article 4 (wording of 2 July 2002) of the Law was
designed for two legal situations: (1) the former judge is not
granted the state pension of judges; (2) the granted state
pension of judges is not paid to the former judge. Items 1, 2 and
5 of Article 4 (wording of 2 July 2002) of the Law established
the grounds when the state pension of judges is not granted, and
Items 3, 4 and 6 thereofwhen this pension is not granted, and if
it was granted, then it is not paid. In the context of the
constitutional justice case at issue, it needs to be noted that
the provision which is disputed by the Vilnius Regional
Administrative Court, the petitioner, is designed for the
following legal situations: (1) the state pension of judges shall
not be granted to the former judge even though he meets all the
conditions established in the Law, but he has the income from
which state social pension insurance contributions are calculated
and paid or if he receives state social insurance benefits of
sickness (including those paid by the employer during the days of
sickness), of maternity, of maternity (paternity) or of
unemployment; (2) the former judge who had been granted the state
pension of judges is no longer paid this pension, because he has
the income from which state social pension insurance
contributions are calculated and paid or if he receives state
social insurance benefits of sickness (including those paid by
the employer during the days of sickness), of maternity, of
maternity (paternity) or of unemployment.
6. Item 6 of Article 4 (wording of 2 July 2002) of the
Law was amended as follows:
- Article 1 of the Third Section of the Republic of
Lithuania Law on Amending the Provisional Law on the State
Pensions of Scientists, the Law on the State Pensions, the Law on
the State Pensions of Judges, the Law on Early Payment of State
Social Insurance Old-Age Pensions and the Law on Monetary Social
Assistance for Low-Income Families (Single Residents), which was
adopted by the Seimas on 4 November 2004 and which came into
force on 1 January 2005, established: "The state pension of
judges shall not be granted and the granted pension shall not be
paid, if: <
> (6) the person has the income from which state
social pension insurance contributions are calculated and paid or
if he receives state social insurance benefits of sickness
(including those paid by the employer during the days of
sickness), of maternity, of maternity (paternity) or social
insurance payments of unemployment";
- Article 1 of the Fifth Section of the Republic of
Lithuania Law on Amending and Supplementing the Law on the Social
Integration of the Disabled, the Law on State Pensions, the
Provisional Law on the State Pensions of Scientists, the Law on
Early Payment of State Social Insurance Old-Age Pensions, the Law
on the State Pensions of Judges, the Law on the Accumulation of
Pensions and the Law on the Status of the Signatories of the Act
of the Independence of Lithuania, which was adopted by the Seimas
on 19 May 2005 and which came into force on 1 July 2005,
established: "The state pension of judges shall not be granted
and the granted pension shall not be paid, if: <
> (6) the person
has the income from which state social pension insurance
contributions are calculated and paid or if he receives state
social insurance benefits of sickness (including those paid by
the employer during the days of sickness), of maternity, of
maternity (paternity), of professional rehabilitation or social
insurance payments of unemployment";
- Article 1 of the Republic of Lithuania Law on Amending
Article 4 of the Law on the State Pensions of Judges, which was
adopted by the Seimas on 8 June 2006 and which came into force on
1 July 2006, established: "The state pension of judges shall not
be granted and the granted pension shall not be paid, if: <
> (6)
the person has the income from which state social pension
insurance contributions are calculated and paid or if he receives
state social insurance benefits of sickness (including those paid
by the employer during the days of sickness), of maternity, of
maternity (paternity), of professional rehabilitation or social
insurance payments of unemployment".
7. While comparing the legal regulation established in
Item 6 (wording of 2 July 2002) of Article 4 of the Law with the
legal regulation established in Item 6 (not only the wording of 2
July 2002, but also of 4 November 2004, 19 May 2005 and 8 June
2006) of Article 4 of the Law, it is obvious that even though the
disputed legal regulation has been amended (because other legal
acts, which regulated the relations linked with those which were
regulated under the said article, were amended), Item 6 of
Article 4 of the Law has always enshrined (and still enshrines)
the general rule that if the person has the income from which
state social pension insurance contributions are calculated and
paid or if he receives certain social payments, he shall not be
granted the state pension of judges, and the granted state
pension of judges shall not be paid.
VII
On the compliance of the provision "the state pension of
judges shall not be granted and the granted pension shall not be
paid, if: <
> (6) the person has the income from which state
social pension insurance contributions are calculated and paid or
if he receives state social insurance benefits of sickness
(including those paid by the employer during the days of
sickness), of maternity, of maternity (paternity) or of
unemployment" of Article 4 (wording of 2 July 2002) of the Law on
the State Pensions of Judges with Article 23, Paragraph 1 of
Article 48 and Article 52 of the Constitution, and with the
constitutional principle of a state under the rule of law.
1. It has been mentioned that the Constitutional Court is
requested to investigate the compliance of the provision "the
state pension of judges shall not be granted and the granted
pension shall not be paid, if: <
> (6) the person has the income
from which state social pension insurance contributions are
calculated and paid or if he receives state social insurance
benefits of sickness (including those paid by the employer during
the days of sickness), of maternity, of maternity (paternity) or
of unemployment" of Article 4 (wording of 2 July 2002) of the Law
with Article 23, Paragraph 1 of Article 48 and Article 52 of the
Constitution, and with the constitutional principle of a state
under the rule of law.
2. The provision disputed by the Vilnius Regional
Administrative Court, the petitioner, established the cases of
non-granting of the state pension of judges and non-payment of
the granted state pension of judges. It has been mentioned that
this provision is designed for the following legal situations:
(1) the state pension of judges is not granted to the former
judge even though he meets all the conditions established in the
Law, but he has the income from which state social pension
insurance contributions are calculated and paid or if he receives
state social insurance benefits of sickness (including those paid
by the employer during the days of sickness), of maternity, of
maternity (paternity) or of unemployment; (2) the former judge
who had been granted the state pension of judges is no longer
paid this pension, because he has the income from which state
social pension insurance contributions are calculated and paid or
if he receives state social insurance benefits of sickness
(including those paid by the employer during the days of
sickness), of maternity, of maternity (paternity) or of
unemployment.
3. It has been mentioned that if the legislator
consolidates such social (material) guarantee of the judge upon
expiry of his powers of the judge as the pension of the judge,
he, heeding the Constitution, may also establish the cases when
the pension of the judge (which is related to the constitutional
status of the judge) is not granted to the former judge and/or
when the granted state pension of judges is no longer paid for
the former judge; while establishing by the law the cases when
the pension of the judge is not granted to the former judge, one
must take account of the constitutional grounds of the expiry of
powers of the judge; otherwise, one would create preconditions to
deviate from the constitutional principle of independence of the
judge and courts and to violate Article 109 of the Constitution;
Article 109 of the Constitution would be violated if one could
not constitutionally substantiate why the former judge is not
continued to be paid the state pension.
It has also been mentioned that if the legislator
consolidates such social (material) guarantee of the judge upon
expiry of his powers, as the pension of the judge, this guarantee
is defended not only under Article 109 of the Constitution, but
also under Article 52 of the Constitution.
4. While deciding subsequent to the petition of the
Vilnius Regional Administrative Court, the petitioner, whether
the disputed provision was not in conflict with the Constitution,
one needs to note that this provision enshrines two alternative
cases when the state pension of the judge is not granted for the
former judge, and when the granted state pension of judges is not
continued to be paid to the former judge, and these cases are
grounded on the fact that the former judge who meets all the
conditions established in the Law: (1) has the corresponding
income which is insured by the state social pension insurance,
namely the income from which state social pension insurance
contributions are calculated and paid; (2) or receives certain
payments, namely state social insurance benefits of sickness
(including those paid by the employer during the days of
sickness), of maternity, of maternity (paternity) or of
unemployment.
It needs to be noted that the first of the specified
alternative conditions is linked to the income of the former
judge, received from the occupational (active economic) activity,
when the former judge participates in the labour market on
certain grounds.
It this context, it needs to be mentioned that under the
Republic of Lithuania Law on State Social Insurance and other
laws, state social pension insurance contributions, in certain
cases, were (and are) paid only from a certain part of the income
received from the existing (active economic) activity, as well as
the cases were (and are) established when such contributions may
be not paid even though the person receives the income from the
existing (active economic) activity.
5. It needs to be held that the disputed provision made
the granting and payment of the state pension of the judge (which
is a social (material) guarantee of the judge upon expiry of his
powers, which is related to the constitutional status of the
judge) dependent on the fact whether the former judge receives
other income specified in the disputed provision.
6. While deciding whether the disputed provision, to the
extent that it establishes that the state pension of the judge is
not granted for the former judge because of the fact that the
former judge who meets all the conditions established in the Law,
has the corresponding income insured by the state social pension
insurance, namely the income from which state social pension
insurance contributions are calculated and paid, or he received
certain payments, namely state social insurance benefits of
sickness (including those paid by the employer during the days of
sickness), of maternity, of maternity (paternity) or of
unemployment, it needs to be noted that the said two sources of
income are of different nature.
6.1. Such linking of the granting of the state pension of
the judge with the income received by the former judge specified
in the disputed provision may not be grounded on the provisions
of the Constitution which enshrine the grounds of the expiry of
the powers of the judge which, as it has been mentioned, must be
heeded while establishing by the law the cases when the state
pension of the judge is not granted for the former judge.
Due to such legal regulation, granting the state pensions
of judges becomes dependent on the circumstance which is not
constitutionally grounded. Thus, this social (material) guarantee
of the judge which, upon expiry of his powers, is linked to the
constitutional status of the judge, is virtually denied. It is
not in line with the constitutional principle of independence of
the judge and courts which, as it has been mentioned, implies the
social (material) guarantees of the judge upon expiry of his
powers.
Taking account of the arguments set forth, a conclusion
is to be made that the provision of Article 4 (wording of 2 July
2002) of the Law that the state pension of judges shall not be
granted if the person has the income from which state social
pension insurance contributions are calculated and paid or if he
receives state social insurance benefits of sickness (including
those paid by the employer during the days of sickness), of
maternity, of maternity (paternity) or of unemployment was in
conflict with Articles 52 and 109 of the Constitution, and with
the constitutional principle of a state under the rule of law.
6.2. It was mentioned that, under the Constitution, one
may not establish any such legal regulation, under which an
opportunity for the person who has been granted and paid old age
pension, would be restricted due to this to freely choose an
occupation and business, although he meets the conditions
provided for by law so that he would have a certain occupation or
conduct certain business; the legal regulation under which the
person cannot freely choose an occupation and business due to the
fact that upon the implementation of this right he would not be
paid the granted old age pension or part thereof which was paid
until then, also must be considered as a restriction of an
opportunity to freely choose an occupation or business; this
provision is to be applied mutatis mutandis to other kinds of
pensions, inter alia the state pensions provided for in the Law
on State Pensions.
It has also been mentioned that the Constitutional Court
recognized such legal regulation established by the law which did
not allow to pay the full state social insurance old age pension
which had been granted (and paid) until then for the pensioners
who had the obligatory state social pension insurance period
which was necessary for the old age pension and who had the
insured income as in conflict with the Constitution (as violating
inter alia the right of a person to choose an occupation or
business) (Constitutional Court ruling of 25 November 2002); the
provision of the law that persons who had reached the age
entitling to an old age pension and older disabled who, after
granting of a state social insurance disability pension, received
income from which the obligatory state social pension insurance
contributions were calculated and paid should be paid the basic
part of the granted state social insurance disability pension and
not the whole granted and previously paid state social insurance
disability pension should be paid was also recognized as being in
conflict with the Constitution (Constitutional Court ruling of 3
December 2003). Also the provision of the law that the retired
officials and servicemen who, after granting of state pensions of
officials or servicemen for the service or disability pensions of
officials or servicemen, receive the income from which
contributions of state social pension insurance are calculated
and paid, shall receive the part of the state pension of
officials or servicemen which amounts only to 30 percent of the
pension was recognized as being in conflict with the Constitution
(as violating inter alia the right of a person to choose an
occupation or business) (Constitutional Court ruling of 4 July
2003).
The legal position of the Constitutional Court in these
constitutional justice cases, as it has been mentioned more than
once in this Constitutional Court ruling, has the significance of
the precedent.
The first alternative condition which is enshrined in the
provision disputed by the Vilnius Regional Administrative Court,
the petitioner, with which non-granting of the state pension to
the former judge is linkednamely the fact that, even though he
complies with all the conditions established in the Law, he has
the income from which state social pension insurance
contributions are calculated and paid and which is linked with
the income of the former judge from the occupational (active
economic) activity, when the former judge participates in the
labour market, makes the said person choose whether to engage in
the active economic activity (to work, inter alia to engage in
business) and not to receive the state pension of judges, or to
receive this pension and not to engage in the active economic
activity (not to work, inter alia not to engage in business).
Such legal regulation means that one violates the right
of each human being (thus, also the former judge) to freely
choose a job or business which is enshrined in Paragraph 1 of
Article 48 of the Constitution.
In this aspect, the fact that, as it has been mentioned,
under other laws, in certain cases, state social pension
insurance contributions are paid only from a certain part of the
income received from the occupational (active economic) activity,
as well as cases were (and are) established that one is permitted
not to pay such contributions even though the person receives the
income from the occupational (active economic) activity, is of no
significance.
Taking account of the arguments set forth, a conclusion
is to be drawn that the provision of Article 4 (wording of 2 July
2002) of the Law that the state pension of judges shall not be
granted if the person has the income from which state social
pension insurance contributions are calculated and paid was not
only in conflict with Articles 52 and 109 of the Constitution and
with the constitutional principle of a state under the rule of
law, but also with Paragraph 1 of Article 48 of the Constitution.
7. While deciding, whether the disputed provision, to the
extent that it enshrines that the granted state pension of the
judge is not continued to be paid to the former judge because of
the fact that the former judge who meets all the conditions
established in the Law, has the corresponding income insured by
the state social pension insurance, namely the income from which
state social pension insurance contributions are calculated and
paid, or he received certain payments, namely state social
insurance benefits of sickness (including those paid by the
employer during the days of sickness), of maternity, of maternity
(paternity) or of unemployment, one must also take account of the
fact that the said two sources of income are of different nature.
7.1. On the grounds of the arguments which are analogous
to those, upon which it has been held in this Constitutional
Court ruling that the provision of Article 4 (wording of 2 July
2002) of the Law that the state pension of judges shall not be
granted if the person has the income from which state social
pension insurance contributions are calculated and paid was in
conflict with Paragraph 1 of Article 48 of the Constitution, one
is also to hold that also the provision of this article (wording
of 2 July 2002) that the granted state pension of the judge is
not continued to be paid to the former judge because of the fact
that the former judge who meets all the conditions established in
the Law, has the income from which state social pension insurance
contributions are calculated and paid, was in conflict with
Paragraph 1 of Article 48 of the Constitution.
It also needs to be held that this provision is in
conflict with Articles 52 and 109 of the Constitution, and with
the constitutional principle of a state under the rule of law as
well.
7.2. It has been mentioned that if it was not possible to
ground constitutionally, why the former judge is not continued to
be paid the granted state pension of judges, one would violate
Article 109 of the Constitution; in addition, such social
(material) guarantee of the judge upon expiry of the powers of
the judge, as the pension of the judge, is also defended under
Article 52 of the Constitution.
It needs to be held that there are no constitutional
arguments, which would ground the fact that under Article 4
(wording of 2 July 2002) of the Law, the granted state pension of
judges is not paid if the person receives state social insurance
benefits of sickness (including those paid by the employer during
the days of sickness), of maternity, of maternity (paternity) or
of unemployment, especially when the Constitution defends both
the social (material) guarantees of the judge upon expiry of his
powers and such payments which are specified herein (namely state
social insurance benefits of sickness (including those paid by
the employer during the days of sickness), of maternity, of
maternity (paternity) or of unemployment). They may not be
opposed.
Taking account of the arguments set forth, a conclusion
is to be drawn that the provision of Article 4 (wording of 2 July
2002) of the Law whereby the granted state pension of judges is
not continued to be paid for the former judge because of the fact
that the former judge who meets all the conditions established in
the Law, receives state social insurance benefits of sickness
(including those paid by the employer during the days of
sickness), of maternity, of maternity (paternity) or of
unemployment was in conflict with Articles 52 and 109 of the
Constitution and with the constitutional principles of a state
under the rule of law.
8. Summing up the conclusions drawn, it needs to be held
that the provision "the state pension of judges shall not be
granted and the granted pension shall not be paid, if: <
> (6)
the person has the income from which state social pension
insurance contributions are calculated and paid or if he receives
state social insurance benefits of sickness (including those paid
by the employer during the days of sickness), of maternity, of
maternity (paternity) or of unemployment" of Article 4 (wording
of 2 July 2002) of the Law was in conflict with Articles 52 and
109 of the Constitution and with the constitutional principle of
a state under the rule of law, and the provision "the state
pension of judges shall not be granted and the granted pension
shall not be paid, if: <
> (6) the person has the income from
which state social pension insurance contributions are calculated
and paid" was also in conflict with Paragraph 1 of Article 48 of
the Constitution.
9. It needs to be noted that, as mentioned, Item 6 of
Article 4 (wording of 2 July 2002) of the Law has been amended;
at present, it is not set forth in its primary wordingthe
wording of 2 July 2002.
It needs also to be noted that, as it has been mentioned,
even though the disputed legal regulation has been amended, Item
6 (not only the wording of 2 July 2002, but also the wordings of
4 November 2004, 19 May 2005 and 8 June 2006) of Article 4 of the
Law has always enshrined (and still enshrines) the general rule
that if the person has the income from which state social pension
insurance contributions are calculated and paid or if he receives
certain social payments, he shall not be granted the state
pension of judges, and the granted state pension of judges is not
paid.
10. On the grounds of the arguments which are analogous
to those, upon which the conclusion has been drawn in this
Constitutional Court ruling that the provision "the state pension
of judges shall not be granted and the granted pension shall not
be paid, if: <
> (6) the person has the income from which state
social pension insurance contributions are calculated and paid or
if he receives state social insurance benefits of sickness
(including those paid by the employer during the days of
sickness), of maternity, of maternity (paternity) or of
unemployment" of Article 4 (wording of 2 July 2002) of the Law
was in conflict with Articles 52 and 109 of the Constitution and
with the constitutional principle of a state under the rule of
law, a conclusion is also to be drawn that the provision "the
state pension of judges shall not be granted and the granted
pension shall not be paid, if: <
> (6) the person has the income
from which state social pension insurance contributions are
calculated and paid or if he receives state social insurance
benefits of sickness (including those paid by the employer during
the days of sickness), of maternity, of maternity (paternity) or
social insurance payments of unemployment" of Article 4 (wording
of 4 November 2004) of the Law, as well as the provision "the
state pension of judges shall not be granted and the granted
pension shall not be paid, if: <
> (6) the person has the income
from which state social pension insurance contributions are
calculated and paid or if he receives state social insurance
benefits of sickness (including those paid by the employer during
the days of sickness), of maternity, of maternity (paternity), of
professional rehabilitation or social insurance payments of
unemployment" of Article 4 (wording of 19 May 2005) of the Law
were also in conflict with Articles 52 and 109 of the
Constitution, and with the constitutional principle of a state
under the rule of law.
On the grounds of the same arguments, a conclusion is to
be drawn that the provision "the state pension of judges shall
not be granted and the granted pension shall not be paid, if: <
>
(6) the person has the income from which state social pension
insurance contributions are calculated and paid or if he receives
state social insurance benefits of sickness (including those paid
by the employer during the days of sickness), of maternity, of
maternity (paternity), of professional rehabilitation or social
insurance payments of unemployment" of Article 4 (wording of 8
June 2006) of the Law is in conflict with Articles 52 and 109 of
the Constitution, and with the constitutional principle of a
state under the rule of law.
11. On the grounds of the arguments which are analogous
to those, upon which the conclusion has been drawn in this
Constitutional Court ruling that the provision "the state pension
of judges shall not be granted and the granted pension shall not
be paid, if: <
> (6) the person has the income from which state
social pension insurance contributions are calculated and paid"
of Article 4 (wording of 2 July 2002) of the Law was in conflict
with Paragraph 1 of Article 48 of the Constitution, a conclusion
is to be drawn that also the provision "the state pension of
judges shall not be granted and the granted pension shall not be
paid, if: <
> (6) the person has the income from which state
social pension insurance contributions are calculated and paid"
of Article 4 (wording of 4 November 2004) of the Law, as well as
the provision "the state pension of judges shall not be granted
and the granted pension shall not be paid, if: <
> (6) the person
has the income from which state social pension insurance
contributions are calculated and paid" of this article (wording
19 May 2005) were in conflict with Paragraph 1 of Article 48 of
the Constitution.
On the grounds of the same arguments, a conclusion is to
be drawn that the provision "the state pension of judges shall
not be granted and the granted pension shall not be paid, if: <
>
(6) the person has the income from which state social pension
insurance contributions are calculated and paid" of Article 4
(wording of 8 June 2006) of the Law is in conflict with Article
48 of the Constitution.
12. Having held that the provision "the state pension of
judges shall not be granted and the granted pension shall not be
paid, if: <
> (6) the person has the income from which state
social pension insurance contributions are calculated and paid or
if he receives state social insurance benefits of sickness
(including those paid by the employer during the days of
sickness), of maternity, of maternity (paternity) or of
unemployment" of Article 4 (wording of 2 July 2002) of the Law
was in conflict with Articles 52 and 109 of the Constitution and
with the constitutional principle of a state under the rule of
law, and that the provision "the state pension of judges shall
not be granted and the granted pension shall not be paid, if: <
>
(6) the person has the income from which state social pension
insurance contributions are calculated and paid" was also in
conflict with Paragraph 1 of Article 48 of the Constitution, the
Constitutional Court will not further investigate the compliance
of the disputed legal regulation with Article 23 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 recognize that the provision "the state pension of
judges shall not be granted and the granted pension shall not be
paid, if: <
> (6) the person has the income from which state
social pension insurance contributions are calculated and paid or
if he receives state social insurance benefits of sickness
(including those paid by the employer during the days of
sickness), of maternity, of maternity (paternity) or of
unemployment" of Article 4 (wording of 2 July 2002) (Official
Gazette Valstybės žinios, 2002, No. 73-3088) of the Republic of
Lithuania Law on the State Pensions of Judges was in conflict
with Articles 52 and 109 of the Constitution of the Republic of
Lithuania and with the constitutional principle of a state under
the rule of law, and that the provision "the state pension of
judges shall not be granted and the granted pension shall not be
paid, if: <
> (6) the person has the income from which state
social pension insurance contributions are calculated and paid"
was also in conflict with Paragraph 1 of Article 48 of the
Constitution of the Republic of Lithuania.
2. To recognize that the provision "the state pension of
judges shall not be granted and the granted pension shall not be
paid, if: <
> (6) the person has the income from which state
social pension insurance contributions are calculated and paid or
if he receives state social insurance benefits of sickness
(including those paid by the employer during the days of
sickness), of maternity, of maternity (paternity) or social
insurance payments of unemployment" of Article 4 (wording of 4
November 2004) (Official Gazette Valstybės žinios, 2004, No. 171-
6299) of the Republic of Lithuania Law on the State Pensions of
Judges was in conflict with Articles 52 and 109 of the
Constitution of the Republic of Lithuania and with the
constitutional principle of a state under the rule of law, and
that the provision "the state pension of judges shall not be
granted and the granted pension shall not be paid, if: <
> (6)
the person has the income from which state social pension
insurance contributions are calculated and paid" was also in
conflict with Paragraph 1 of Article 48 of the Constitution of
the Republic of Lithuania.
3. To recognize that the provision "the state pension of
judges shall not be granted and the granted pension shall not be
paid, if: <
> (6) the person has the income from which state
social pension insurance contributions are calculated and paid or
if he receives state social insurance benefits of sickness
(including those paid by the employer during the days of
sickness), of maternity, of maternity (paternity), of
professional rehabilitation or social insurance payments of
unemployment" of Article 4 (wording of 19 May 2005) (Official
Gazette Valstybės žinios, 2005, No. 71-2554) of the Republic of
Lithuania Law on the State Pensions of Judges was in conflict
with Articles 52 and 109 of the Constitution of the Republic of
Lithuania and with the constitutional principle of a state under
the rule of law, and that the provision "the state pension of
judges shall not be granted and the granted pension shall not be
paid, if: <
> (6) the person has the income from which state
social pension insurance contributions are calculated and paid"
was also in conflict with Paragraph 1 of Article 48 of the
Constitution of the Republic of Lithuania.
4. To recognize that the provision "the state pension of
judges shall not be granted and the granted pension shall not be
paid, if: <
> (6) the person has the income from which state
social pension insurance contributions are calculated and paid or
if he receives state social insurance benefits of sickness
(including those paid by the employer during the days of
sickness), of maternity, of maternity (paternity), of
professional rehabilitation or state social insurance payments of
unemployment" of Article 4 (wording of 8 June 2006) (Official
Gazette Valstybės žinios, 2006, No. 72-2686) of the Republic of
Lithuania Law on the State Pensions of Judges is in conflict with
Articles 52 and 109 of the Constitution of the Republic of
Lithuania and with the constitutional principle of a state under
the rule of law, and that the provision "the state pension of
judges shall not be granted and the granted pension shall not be
paid, if: <
> (6) the person has the income from which state
social pension insurance contributions are calculated and paid"
is also in conflict with Paragraph 1 of Article 48 of the
Constitution of the Republic of Lithuania.
This ruling of the Constitutional Court 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
Toma Birmontienė
Egidijus Kūris
Kęstutis Lapinskas
Zenonas Namavičius
Ramutė Ruškytė
Vytautas Sinkevičius
Stasys Stačiokas
Romualdas Kęstutis
Urbaitis