Case No. 09/06-30/06-01/07-30/08
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
RULING
ON THE COMPLIANCE OF PARAGRAPH 2 (WORDINGS OF 13 JULY
2000 AND 19 MAY 2005) OF ARTICLE 3, PARAGRAPH 5 (WORDING
OF 21 DECEMBER 2000) OF ARTICLE 11 AND PARAGRAPH 3
(WORDING OF 19 MAY 2005) OF ARTICLE 11 OF THE REPUBLIC
OF LITHUANIA LAW ON THE STATE PENSIONS OF OFFICIALS AND
SERVICEMEN OF THE INTERIOR, THE SPECIAL INVESTIGATION
SERVICE, STATE SECURITY, NATIONAL DEFENCE, THE
PROSECUTOR'S OFFICE, THE DEPARTMENT OF PRISONS AND OF
THE ESTABLISHMENTS AND STATE ENTERPRISES WHICH ARE
SUBORDINATE TO THE LATTER AND THAT OF PARAGRAPH 12
(WORDING OF 18 JANUARY 2007) OF ARTICLE 16 OF THE
REPUBLIC OF LITHUANIA LAW ON STATE PENSIONS OF OFFICIALS
AND SERVICEMEN WITH THE CONSTITUTION OF THE REPUBLIC OF
LITHUANIA
24 December 2008
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Armanas
Abramavičius, Toma Birmontienė, Pranas Kuconis, Kęstutis
Lapinskas, Zenonas Namavičius, Ramutė Ruškytė, Egidijus Šileikis,
Algirdas Taminskas, and Romualdas Kęstutis Urbaitis,
with the secretary of the hearingDaiva Pitrėnaitė,
in the presence of the representatives of the Seimas of the
Republic of Lithuania, the party concerned, who were Members of
the Seimas Vilija Blinkevičiūtė and Algirdas Sysas,
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 5 December 2008 heard constitutional justice case No.
09/06-30/06-01/07-30/08 subsequent to the petitions of the
Vilnius Regional Administrative Court, the petitioner, requesting
to investigate the following:
(1) whether Paragraph 2 of Article 3 of the Republic of
Lithuania Law on the State Pensions of Officials and Servicemen
of the Interior, the Special Investigation Service, State
Security, National Defence, the Prosecutor's Office, the
Department of Prisons and of the Establishments and State
Enterprises Which are Subordinate to the Latter is not in
conflict with the provisions of Article 23 of the Constitution of
the Republic of Lithuania whereby property shall be inviolable,
that the rights of ownership shall be protected by laws and that
property may be taken over only for the needs of society
according to the procedure established by law and shall be justly
compensated for, the provisions of Article 29 thereof whereby the
rights of the human being may not be restricted, nor may he be
granted any privileges on the ground of gender, race,
nationality, language, origin, social status, belief,
convictions, or views and the provisions of Article 52 thereof
whereby 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
(petition No. 1B-8/2006);
(2) whether Paragraph 5 (wording of 21 December 2000) of
Article 11 of the Republic of Lithuania Law on the State Pensions
of Officials and Servicemen of the Interior, the Special
Investigation Service, State Security, National Defence, the
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to the
Latter is not in conflict with the provisions of Article 23 of
the Constitution of the Republic of Lithuania whereby property
shall be inviolable, that the rights of ownership shall be
protected by laws and that property may be taken over only for
the needs of society according to the procedure established by
law and shall be justly compensated for, the provisions of
Article 52 thereof whereby 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 and with the principles of a just civil society and a
state under the rule of law which, according to the petitioner,
are enshrined in the Preamble to the Constitution of the Republic
of Lithuania (petition No. 1B-29/2006);
(3) whether Paragraph 2 of Article 3 of the Republic of
Lithuania Law on the State Pensions of Officials and Servicemen
of the Interior, the Special Investigation Service, State
Security, National Defence, the Prosecutor's Office, the
Department of Prisons and of the Establishments and State
Enterprises Which are Subordinate to the Latter (wordings of 13
December 1994 and 19 May 2005) is not in conflict with the
provisions of Article 23 of the Constitution of the Republic of
Lithuania whereby property shall be inviolable, that the rights
of ownership shall be protected by laws and that property may be
taken over only for the needs of society according to the
procedure established by law and shall be justly compensated for,
the provisions of Article 29 thereof whereby the rights of the
human being may not be restricted, nor may he be granted any
privileges on the ground of gender, race, nationality, language,
origin, social status, belief, convictions, or views, the
provisions of Article 52 thereof whereby 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 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 of the Republic
of Lithuania (petition No. 1B-78/2006);
(4) whether Paragraph 12 (wording of 18 January 2007) of
Article 16 of the Republic of Lithuania Law on State Pensions of
Officials and Servicemen is not in conflict with Paragraphs 1 and
2 of Article 23 of the Constitution of the Republic of Lithuania,
Article 29 thereof, the provision "each human being may <...>
receive <...> social security in the event of unemployment" of
Paragraph 1 of Article 48 thereof, Article 52 thereof and with
the constitutional principle of a state under the rule of law
(petition No. 1B-33/2008).
By the Constitutional Court Decision "On joining petitions
into one case" of 1 October 2007, petitions No. 1B-8/2006, No.
1B-29/2006 and No. 1B-78/2006 of the Vilnius Regional
Administrative Court were joined into one case and it was given
reference No. 09/06-30/06-01/07.
By the Constitutional Court Decision "On joining petitions
into one case" of 13 November 2008, also the petition No. 1B-33/
2008 of the Vilnius Regional Administrative Court was joined to
case No. 09/06-30/06-01/07; the case was given reference No. 09/
06-30/06-01/07-30/08.
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 (No. B1-8/
2006) requesting to investigate whether Paragraph 2 of Article 3
of the Law on the State Pensions of Officials and Servicemen of
the Interior, the Special Investigation Service, State Security,
National Defence, the Prosecutor's Office, the Department of
Prisons and of the Establishments and State Enterprises Which are
Subordinate to the Latter (hereinafter also referred to as the
Law on Pensions) is not in conflict with the provisions of
Article 23 of the Constitution whereby property shall be
inviolable, that the rights of ownership shall be protected by
laws and that property may be taken over only for the needs of
society according to the procedure established by law and shall
be justly compensated for, the provisions of Article 29 thereof
whereby the rights of the human being may not be restricted, nor
may he be granted any privileges on the ground of gender, race,
nationality, language, origin, social status, belief,
convictions, or views and the provisions of Article 52 thereof
whereby 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.
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 (No. 1B -29/
2006) requesting to investigate whether Paragraph 5 (wording of
21 December 2000) of Article 11 of the Law on the State Pensions
of Officials and Servicemen of the Interior, the Special
Investigation Service, State Security, National Defence, the
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to the
Latter is not in conflict with the provisions of Article 23 of
the Constitution whereby property shall be inviolable, that the
rights of ownership shall be protected by laws and that property
may be taken over only for the needs of society according to the
procedure established by law and shall be justly compensated for,
the provisions of Article 52 thereof whereby 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 and with the principles of a
just civil society and a state under the rule of law which,
according to the petitioner, are enshrined in the Preamble to the
Constitution.
3. 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 (No. 1B -78/
2006) requesting to investigate whether Paragraph 2 of Article 3
of the Law on the State Pensions of Officials and Servicemen of
the Interior, the Special Investigation Service, State Security,
National Defence, the Prosecutor's Office, the Department of
Prisons and of the Establishments and State Enterprises Which are
Subordinate to the Latter (wordings of 13 December 1994 and 19
May 2005) is not in conflict with the provisions of Article 23 of
the Constitution whereby property shall be inviolable, that the
rights of ownership shall be protected by laws and that property
may be taken over only for the needs of society according to the
procedure established by law and shall be justly compensated for,
the provisions of Article 29 thereof whereby the rights of the
human being may not be restricted, nor may he be granted any
privileges on the ground of gender, race, nationality, language,
origin, social status, belief, convictions, or views, the
provisions of Article 52 thereof whereby 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 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.
4. 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 (No. 1B-33/
2008) requesting to investigate whether Paragraph 12 (wording of
18 January 2007) of Article 16 of the Law on State Pensions of
Officials and Servicemen is not in conflict with Paragraphs 1 and
2 of Article 23 of the Constitution, Article 29, the provision
"each human being may <...> receive <...> social security in the
event of unemployment" of Paragraph 1 of Article 48 thereof,
Article 52 thereof and with the constitutional principle of a
state under the rule of law.
II
1. The petition (No. 1B-8/2006) of the Vilnius Regional
Administrative Court, the petitioner, requesting to investigate
whether Paragraph 2 of Article 3 of the Law on the State Pensions
of Officials and Servicemen of the Interior, the Special
Investigation Service, State Security, National Defence, the
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to the
Latter in which it is established that "officials and servicemen
who have been removed from the systems of the Interior, state
security, national defence and the prosecutor's office, the
Special Investigation Service, the Department of Prisons and the
establishments and state enterprises which are subordinate to the
latter due to their own fault (if that fault does not incur
criminal liability) shall be granted the state pension only in
the case where they have served for 20 years or more and they
have reached the age of retirement to the reserve (if such age
has not been establishedwhen they have reached the age of the
old age pension)" is not in conflict with the provisions of
Article 23 of the Constitution whereby property shall be
inviolable, that the rights of ownership shall be protected by
laws and that property may be taken over only for the needs of
society according to the procedure established by law and shall
be justly compensated for, the provisions of Article 29 thereof
whereby the rights of the human being may not be restricted, nor
may he be granted any privileges on the ground of gender, race,
nationality, language, origin, social status, belief,
convictions, or views and the provisions of Article 52 thereof
whereby 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
is based on the following arguments.
If one refers inter alia to the doctrinal provisions of the
Constitutional Court rulings of 12 March 1997, 25 November 2002
and 4 July 2003, a person, who has created certain values by his
work, including funds of social insurance, acquires the right to
pension as a form of the right to ownership, therefore, the right
to pension which is guaranteed by the state under Article 52 of
the Constitution must me defended together with the right to
ownership which, under Article 23 of the Constitution, may not be
seized (save cases when it is justly compensated for).
According to the petitioner, if one refers inter alia to the
doctrinal provisions of the Constitutional Court rulings of 4
March 2003 and 3 December 2003, Paragraph 2 of Article 3 of the
Law on Pensions which established a differentiated legal
regulation applied to certain groups of persons which are
distinguished by the same features violated the principles of
equality and non-discrimination of persons, since, while
groundlessly taking account only of the feature of age, it
discriminated the persons who were younger than 62 years and 6
months old and restricted their rights, because younger persons,
who had been removed from service due to their own fault before
they reached the age of the old age pension, did not acquire the
right to the state pension.
In addition, the fact that a person, who has not reached the
age of 62 years and 6 months does not receive a state pension on
the ground that he was removed from service due to his own fault
is a certain sanction applied for a service offence and it means
a repeated punishment because the removal from service itself is
an application of service liability. Therefore, if one does not
commit a deed of different nature (for example, material damage,
for which also material liability could be applied), additional
punishment is not justified with regard to the principle of a
state under the rule of law which is set forth in the Preamble to
the Constitution.
2. The petition (No. 1B-29/2006) of the Vilnius Regional
Administrative Court, the petitioner, requesting to investigate
whether Paragraph 5 (wording of 21 December 2000) of Article 11
of the Law on the State Pensions of Officials and Servicemen of
the Interior, the Special Investigation Service, State Security,
National Defence, the Prosecutor's Office, the Department of
Prisons and of the Establishments and State Enterprises Which are
Subordinate to the Latter in which it is established that "state
pensions of officials and servicemen shall not be paid to
pensioners who are fully supported by the State" is not in
conflict with the provisions of Article 23 of the Constitution
whereby property shall be inviolable, that the rights of
ownership shall be protected by laws and that property may be
taken over only for the needs of society according to the
procedure established by law and shall be justly compensated for,
the provisions of Article 52 thereof whereby 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 and with the principles of a
just civil society and a state under the rule of law which,
according to the petitioner, are enshrined in the Preamble to the
Constitution, is based on the following arguments.
By the legal regulation enshrined in Paragraph 5 (wording of
21 December 2000) of Article 11 of the Law on Pensions, one
essentially denies the right of person to the acquired property
which may not be limited without specifying the necessity to
limit it, and, at the same time, violates the right of the person
to receive a part of his ownershipthe well-earned pension
payments, which, while establishing a certain pension by a law
under Article 52 of the Constitution, must be secured to the
persons who meet the corresponding conditions established in the
law. The petitioner also noted that the provision enshrined in
Paragraph 3 (wording of 19 May 2005) of Article 11 of the Law on
Pensions is analogous to the disputed provision.
3. The petition (No. 1B-78/2006) of the Vilnius Regional
Administrative Court, the petitioner, requesting to investigate
whether Paragraph 2 of Article 3 of the Law on the State Pensions
of Officials and Servicemen of the Interior, the Special
Investigation Service, State Security, National Defence, the
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to the
Latter (wordings of 13 December 1994 and 19 May 2005) is not in
conflict with the provisions of Article 23 of the Constitution
whereby property shall be inviolable, that the rights of
ownership shall be protected by laws and that property may be
taken over only for the needs of society according to the
procedure established by law and shall be justly compensated for,
the provisions of Article 29 thereof whereby the rights of the
human being may not be restricted, nor may he be granted any
privileges on the ground of gender, race, nationality, language,
origin, social status, belief, convictions, or views, the
provisions of Article 52 thereof whereby 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 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, is based
virtually on the same arguments as petition No. 1B-8/2006.
4. The petition (No. 1B-33/2008) of the Vilnius Regional
Administrative Court, the petitioner, requesting to investigate
whether Paragraph 12 (wording of 18 January 2007) of Article 16
of the Law on State Pensions of Officials and Servicemen in which
it is established that "customs officials who worked in mobile
groups or customs posts in the customs or who performed
operational activity and/or pre-trial investigation, shall be
granted pensions of officials and servicemen only if they have
acquired the right to this pension after coming into force of the
Law No. X-1027 on Amending and Supplementing the Title and
Articles 1, 3, 6, 12 and 16 of the Law on the State Pensions of
Officials and Servicemen of the Interior, the Special
Investigation Service, State Security, National Defence, the
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to the
Latter" is not in conflict with Paragraphs 1 and 2 of Article 23
of the Constitution, Article 29 thereof, the provision "each
human being may <...> receive <...> social security in the event
of unemployment" of Paragraph 1 of Article 48 thereof, Article 52
thereof and with the constitutional principle of a state under
the rule of law, is based on the following arguments.
Under the legal regulation enshrined in Paragraph 12
(wording of 18 January 2007) of Article 16 of the Law on State
Pensions of Officials and Servicemen, customs officials are
virtually differentiated according to the only criteriondate (19
January 2007) of coming into force of the Law on Amending and
Supplementing the Title and Articles 1, 3, 6, 12 and 16 of the
Law on the State Pensions of Officials and Servicemen of the
Interior, the Special Investigation Service, State Security,
National Defence, the Prosecutor's Office, the Department of
Prisons and of the Establishments and State Enterprises Which are
Subordinate to the Latter. Such criterionthe date of coming into
force of the lawis not the difference of such nature and such
extent that such different treatment of customs officials would
be objectively justified.
Due to such differentiation of the customs officials, they
are not granted the state pensions of officials and servicemen,
they are not guaranteed social security in the event of
unemployment, and at the same time one violates their rights of
ownership, as well as the constitutional principle of a state
under the rule of law, which, in addition to other requirements,
implies that one must ensure the rights and freedoms of a human
being, thus, also the acquired right of a human being to receive
the state pension of officials and servicemen.
III
In the course of preparation of the case for the
Constitutional Court hearing, written explanations from the
representatives of the Seimas, the party concerned, who were
Members of the Seimas J. Čekuolis, A. Sysas and V. Blinkevičiūtė,
were received in which it is stated that the disputed legal
regulation is not in conflict with Articles 23 and 29, Paragraph
1 of Article 48, and Article 52 the Constitution and with the
constitutional principle of a state under the rule of law.
1. In the written explanations of J. Čekuolis, a Member of
the Seimas, a representative of the Seimas, the party concerned,
regarding petitions No. 1B-08/2006 and No. 1B-78/2006 of the
Vilnius Regional Administrative Court, the petitioner, it is
stated that the state pension of officials and servicemen may be
considered as their property only when the state pension is
granted according to the procedure established by laws and is
paid. The legislator has the right to establish the conditions
upon which the state pension is granted, as well as cases when
this pension is not granted and paid and these provisions may not
be considered as violation of the right of ownership. In
addition, in the opinion of J. Čekuolis, such legal regulation
which is applied to certain groups of persons which are
distinguished by the same features, if by doing that one seeks to
attain positive and significant objectives, is not be regarded as
discrimination or a privilege. In this case, special requirements
and certain conditions are linked namely to the peculiarities of
certain regulated relations. In addition, according to J.
Čekuolis, state pensions of officials and servicemen are paid
from the state budget, they have no signs of the state social
insurance and they are not linked to state social insurance
contributions, therefore, the legislator may establish additional
conditions for a person, meeting of which would enable him to
acquire the right to additional pension.
2. The position set forth in the written explanations of A.
Sysas, a Member of the Seimas, a representative of the Seimas,
the party concerned, regarding petition No. 1B-29/2006 of the
Vilnius Regional Administrative Court, the petitioner, is
virtually based on the same arguments. A. Sysas points out that
state pensions of officials and servicemen are granted
additionally, together with the same guarantees of social
insurance established for all residents and are paid from funds
of the state budget. The state pension of officials and
servicemen is granted and paid only in cases established by the
law if there are all necessary conditions to receive it;
otherwise, such pension is not granted, and the granted one is
not paid. In the opinion of A. Sysas, if the state pension of
officials and servicemen were paid to a person, who is fully
supported by the state, one would distort the essence and purpose
of the pension itself.
3. The position set forth in the written explanations of A.
Sysas, a Member of the Seimas, a representative of the Seimas,
the party concerned, regarding petition No. 1B-33/2008 of the
Vilnius Regional Administrative Court, the petitioner, is based
on the doctrinal provisions of the Constitutional Court ruling of
23 April 2002 whereby the legal regulation under which the size
of the state pension of officials and servicemen for service
depended on the time of the retirement of the person (prior to or
after the entry of the law into force). By this legal regulation
one does not violate the principle of equal rights of persons,
since, while establishing such legal regulation, the legislator
took account of the changed social, legal, economic and other
conditions. Therefore, according to A. Sysas, the disputed
provision of Paragraph 12 of Article 16 of the Law on State
Pensions of Officials and Servicemen does not include
incompliance, either.
4. In the written explanations of V. Blinkevičiūtė, a Member
of the Seimas, a representative of the Seimas, the party
concerned, it is stated that the legislator, while establishing
the right of a person to an additional state pension, and not
only to the social old age pension, must establish also the
conditions for granting such pension, i.e. to require impeccable
service from a person, who seeks to receive this pension. If one
does not meet the requirements established for the service, the
legislator has the right to establish either additional
conditions for granting the state pension or that the state
pension is not granted. In case of removal of the official from
service due to his own fault the state pension is not revoked,
only the following condition is established: the pension is
granted upon reaching a corresponding age, as the legislator did
not want to leave officials and servicemen who served for quite a
long time and whose offences were not gross (when the offence
does not incur criminal liability) without additional pensionary
maintenance, therefore, he related the conditions for granting
state pensions with the age when the persons are recognised as
incapable for work and when they need the support from the state
most. If one did not take account of the circumstances of removal
of the official from service, the situation of these persons
would be the same as the situation of officials and servicemen
who observe laws.
In the opinion of V. Blinkevičiūtė, the pensions are
lawfully not paid for the officials who receive full support from
the state, as the state pensions are paid from the funds of the
state budget and these persons are to be considered as an
additional social guarantee. Those who have been convicted to
deprivation of freedom are also supported from the same budget
because their food, clothing and bed are financed from the funds
of the state budget.
V. Blinkevičiūtė also states that the officials who worked
in the customs system before the entry into force (on 19 January
2007) of the Law on Amending and Supplementing the Title and
Articles 1, 3, 6, 12 and 16 of the Law on the State Pensions of
Officials and Servicemen of the Interior, the Special
Investigation Service, State Security, National Defence, the
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to the
Latter (No. X-1027), which was adopted by the Seimas on 18
January 2007, did not have the right to the state pension,
therefore, the officials who left service before the entry of
this law into force are not granted this pension.
IV
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations from R.
Čiupaila, Minister of the Interior of the Republic of Lithuania,
and R. Kairelis, State Secretary of the Ministry of Social
Security and Labour of the Republic of Lithuania, were received.
V
At the Constitutional Court hearing, the Members of the
Seimas V. Blinkevičiūtė and A. Sysas, the representatives of the
Seimas, the party concerned, virtually reiterated the arguments
set forth in their written explanations.
The Constitutional Court
holds that:
I
1. On 22 December 1994, the Seimas adopted the Republic of
Lithuania Law on State Pensions which, according to Paragraph 1
of Article 16 thereof, came into force on 1 January 1995.
On 13 December 1994, the Seimas adopted the Law on the State
Pensions of Officials and Servicemen of the Interior, State
Security, National Defence, and the Prosecutor's Office which
came into force on 1 January 1995. This law established the
persons who had the right to receive the state pension of
officials and servicemen and it established the grounds and
conditions for granting and paying this pension, and sizes
thereof. When amending and/or supplementing this law, the circle
of officials who had the right to receive the state pension of
officials and servicemen was steadily expanded, and in some
cases, the title of the law was also amended: inter alia by
Article 1 of the Republic of Lithuania Law on Amending and
Supplementing the Title and Articles 1, 3, 6, 12 and 16 of the
Law on the State Pensions of Officials and Servicemen of the
Interior, State Security, National Defence, and the Prosecutor's
Office which was adopted by the Seimas on 2 May 2000 and which
came into force on 1 June 2000, the law was titled as the
Republic of Lithuania Law on the State Pensions of Officials and
Servicemen of the Interior, the Special Investigation Service,
State Security, National Defence, and the Prosecutor's Office,
and the circle of persons who had the right to receive the state
pension of officials and servicemen was expanded by including the
officials of the Special Investigation Service; by Article 1 of
the Republic of Lithuania Law on Amending and Supplementing the
Title and Articles 1, 3, 6, 12 and 16 of the Law on the State
Pensions of Officials and Servicemen of the Interior, State
Security, National Defence, and the Prosecutor's Office, which
was adopted by the Seimas on 13 July 2000 and which came into
force on 1 September 2000, the said law was named as the Republic
of Lithuania Law on the State Pensions of Officials and
Servicemen of the Interior, the Special Investigation Service,
State Security, National Defence, the Prosecutor's Office, the
Department of Prisons and of the Establishments and State
Enterprises Which are Subordinate to the Latter, and the circle
of persons who had the right to receive the state pension of
officials and servicemen was expanded by including the officials
of the Department of Prisons and the establishments and state
enterprises which are subordinate to it.
2. Article 1 of the Republic of Lithuania Law on the State
Pensions of Officials and Servicemen of the Interior, the Special
Investigation Service, State Security, National Defence, the
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to the
Latter, which was adopted by the Seimas on 19 May 2005 and which
came into force on 1 July 2005, amended the Law on Pensions and
set it forth in a new wording.
Article 1 of the Law on Amending and Supplementing the Title
and Articles 1, 3, 6, 12 and 16 of the Law on the State Pensions
of Officials and Servicemen of the Interior, State Security,
National Defence, and the Prosecutor's Office which was adopted
by the Seimas on 18 January 2007 and came into force on 19
January 2007 titled the Law on Pensions (wording of 19 May 2005
with subsequent amendments and supplements) as the Republic of
Lithuania Law on State Pensions of Officials and Servicemen.
Under this law, in addition to officials of the Ministry of
the Interior, the police, the State Border Security Service and
other institutions of the Interior, officers of service units,
servicemen and non-commissioned officers of reenlistee service of
the Interior, officials of the Special Investigation Service,
servicemen of professional military service, officials of the
system of the State Security Department, officials of the
prosecutor's office, officials of the Department of Prisons and
of the establishments and state enterprises which are subordinate
to the latter, also the officials who worked in mobile groups or
customs posts in the customs system or who performed operational
activity and/or pre-trial investigation, acquired the right to
receive the state pension of officials and servicemen.
3. Upon their retirement, officials and servicemen specified
in the Law on Pensions and the Law on State Pensions of Officials
and Servicemen are granted the state pension of officials and
servicemen if they meet the following conditions established in
these laws: the person has either served a certain number of
years in the services specified in the law, or has served in
those services for a certain number of years and reached the age
of the old age pension, or the person is recognised as a person
with incapacity for work for reasons related to the service, or
has been dismissed from service because of health after having
served for a certain number of years, etc.
Officials and servicemen who acquire the right to the state
pension of officials and servicemen, do not lose the right to
other pensions if the laws do not provide otherwise. Under the
legal regulation which is effective at present, the said
officials and servicemen receive also the pension of social
insurance when they meet the conditions for receiving this
pension. Granting and payment of the state pension of officials
and servicemen are not linked with any other special
contributions.
4. The Vilnius Regional Administrative Court, the
petitioner, requests to investigate whether Paragraph 2 of
Article 3 of the Law on the State Pensions of Officials and
Servicemen of the Interior, the Special Investigation Service,
State Security, National Defence, the Prosecutor's Office, the
Department of Prisons and of the Establishments and State
Enterprises Which are Subordinate to the Latter is not in
conflict with the provisions of Article 23 of the Constitution
whereby property shall be inviolable, that the rights of
ownership shall be protected by laws and that property may be
taken over only for the needs of society according to the
procedure established by law and shall be justly compensated for,
the provisions of Article 29 thereof whereby the rights of the
human being may not be restricted, nor may he be granted any
privileges on the ground of gender, race, nationality, language,
origin, social status, belief, convictions, or views and the
provisions of Article 52 thereof whereby 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 (petition No. 1B-8/2006).
The petitioner did not specify the wording of Paragraph 2 of
Article 3 of the Law on the State Pensions of Officials and
Servicemen of the Interior, the Special Investigation Service,
State Security, National Defence, the Prosecutor's Office, the
Department of Prisons and of the Establishments and State
Enterprises Which are Subordinate to the Latter whose compliance
with the Constitution he disputes, however, it is obvious from
the arguments of the petition and the material of the case that
the petitioner requests to investigate the compliance of
Paragraph 2 (wording of 13 July 2000) of Article 3 of this law
with the Constitution.
5. The Vilnius Regional Administrative Court, the
petitioner, requests to investigate whether Paragraph 2 of
Article 3 of the Law on the State Pensions of Officials and
Servicemen of the Interior, the Special Investigation Service,
State Security, National Defence, the Prosecutor's Office, the
Department of Prisons and of the Establishments and State
Enterprises Which are Subordinate to the Latter (wordings of 13
December 1994 and 19 May 2005) is not in conflict with the
provisions of Article 23 of the Constitution whereby property
shall be inviolable, that the rights of ownership shall be
protected by laws and that property may be taken over only for
the needs of society according to the procedure established by
law and shall be justly compensated for, the provisions of
Article 29 thereof whereby the rights of the human being may not
be restricted, nor may he be granted any privileges on the ground
of gender, race, nationality, language, origin, social status,
belief, convictions, or views, the provisions of Article 52
thereof whereby 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
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-78/2006).
In this petition, the petitioner specified the wording of 13
December 1994 of the Law on the State Pensions of Officials and
Servicemen of the Interior, State Security, National Defence and
the Prosecutor's Office and the wording of 19 May 2005 of the Law
on Pensions, however, it is obvious from the arguments of the
petition that the petitioner requests to investigate the
compliance only of Paragraph 2 of Article 3 of the Law on
Pensions (wording of 19 May 2005) with the Constitution.
6. The Vilnius Regional Administrative Court, the
petitioner, requests to investigate whether Paragraph 5 (wording
of 21 December 2000) of Article 11 of the Law on the State
Pensions of Officials and Servicemen of the Interior, the Special
Investigation Service, State Security, National Defence, the
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to the
Latter is not in conflict with the provisions of Article 23 of
the Constitution whereby property shall be inviolable, that the
rights of ownership shall be protected by laws and that property
may be taken over only for the needs of society according to the
procedure established by law and shall be justly compensated for,
the provisions of Article 52 thereof whereby 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 and with the principles of a
just civil society and a state under the rule of law which,
according to the petitioner, are enshrined in the Preamble to the
Constitution (petition No. 1B-29/2006).
Even though the petitioner requests to investigate the
compliance of Paragraph 5 of Article 11 of the Law on Pensions
(wording of 21 December 2000) with the Constitution, it is
obvious from the arguments presented by the petitioner that he
also disputes the compliance of Paragraph 3 of Article 11 of the
Law on Pensions (wording of 19 May 2005).
7. It needs to be noted that in his petitions Nos. 1B-29/
2006 and 1B-78/2006, the Vilnius Regional Administrative Court,
the petitioner, requests to investigate the compliance of the
disputed legal provisions inter alia with the constitutional
principle of a state under the rule of law which, according to
the petitioner, is enshrined in the Preamble to the Constitution.
The Constitutional Court has held in its acts more than once that
the constitutional principle of a state under the rule of law may
not be construed as one entrenched only in the Preamble to 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 a
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.
8. Therefore, it is obvious from the arguments of the
petition of the Vilnius Regional Administrative Court, the
petitioner, that the petitioner requests to investigate the
following:
- the compliance of Paragraph 2 (wording of 13 July 2000) of
Article 3 of the Law on the State Pensions of Officials and
Servicemen of the Interior, the Special Investigation Service,
State Security, National Defence, the Prosecutor's Office, the
Department of Prisons and of the Establishments and State
Enterprises Which are Subordinate to the Latter and the
compliance of Paragraph 2 of Article 3 of the Law on the State
Pensions of Officials and Servicemen of the Interior, the Special
Investigation Service, State Security, National Defence, the
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to the
Latter (wording of 19 May 2005) with Articles 23, 29 and 52 of
the Constitution and with the constitutional principle of a state
under the rule of law;
- the compliance of Paragraph 5 (wording of 21 December
2000) of Article 11 of the Law on the State Pensions of Officials
and Servicemen of the Interior, the Special Investigation
Service, State Security, National Defence, the Prosecutor's
Office, the Department of Prisons and of the Establishments and
State Enterprises Which are Subordinate to the Latter and the
compliance of Paragraph 3 of Article 11 of the Law on the State
Pensions of Officials and Servicemen of the Interior, the Special
Investigation Service, State Security, National Defence, the
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to the
Latter (wording of 19 May 2005) with Articles 23 and 52 of the
Constitution, and with the constitutional principle of a state
under the rule of law;
- the compliance of Paragraph 12 (wording of 18 January
2007) of Article 16 of the Law on State Pensions of Officials and
Servicemen with Paragraphs 1 and 2 of Article 23 of the
Constitution, Article 29 thereof, the provision "each human being
may <...> receive <...> social security in the event of
unemployment" of Paragraph 1 of Article 48 thereof, Article 52
thereof and with the constitutional principle of a state under
the rule of law.
II
1. Article 52 of the Constitution provides: "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."
2. In its jurisprudence the Constitutional Court has
formulated a broad official constitutional doctrine of pensionary
maintenance.
3. Under the Constitution, the grounds for pensionary
maintenance, the persons who are granted and paid pensions, the
conditions for granting and payment of pensions, as well as the
sizes of the pensions are established by law only. The
legislator, while adopting laws concerning pensionary
maintenance, is bound by the norms and principles of the
Constitution (Constitutional Court rulings of 4 July 2003, 3
December 2003 and 22 October 2007). The constitutional right of a
person to receive a pension is one of the most important social
rights. Certain requirements for the legislator stem from Article
52 of the Constitution (when it is construed also in the context
of other provisions of the Constitution), and if such
requirements are disregarded, this may determine that the
corresponding legal regulation may be recognised as being in
conflict with the Constitution (Constitutional Court ruling of 22
October 2007).
3.1. The old age and disability pensions are the types of
pensions that are expressis verbis specified in Article 52 of the
Constitution. However, under the Constitution, it is permitted
that also other pensions or social assistance, and not only those
expressis verbis specified in Article 52 of the Constitution, may
be established by means of a law (Constitutional Court rulings of
23 April 2002, 25 November 2002, 4 July 2003 and 22 October
2007).
3.2. The Republic of Lithuania Law on State Pensions
established the 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) which are not
directly named in Article 52 of the Constitution. Some state
pensions are granted and paid for particular merits to Lithuania
(for example, state pensions of the Republic of Lithuania of the
first and second degree), while granting and payment of other
state pensions are linked to certain service (for example,
service in the systems of the Interior, the prosecutor's office,
etc.) or to work (for example, scientific work), while other
state pensions are of compensatory nature and are paid to
persons, who are recognised as victims (for example, to persons
the who became invalids as a result of the aggression perpetrated
on 11-13 January 1991 and subsequent events, participants of the
opposition (resistance) to the Soviet occupations of 1940-1990,
etc.). The legislator, while establishing which persons are
granted and paid the state pension, the grounds and conditions
for granting and payment of the state pension, as well as the
amounts of this pension, is bound by the constitutional
imperative of social harmony, the principles of justice,
reasonableness and proportionality (Constitutional Court rulings
of 4 July 2003 and 3 December 2003).
3.3. In the context of this constitutional justice case at
issue, it needs to be noted that the peculiarities of the
constitutional institute of the state service determine inter
alia that the legislator enjoys constitutional powers to
establish by the law the pensions and/or types of social
assistance granted solely to the state servants or individual
groups of state servants, the grouping of which is objectively
reasonable; the pensions for serving the State of Lithuania may
be established by the law as well (Constitutional Court ruling of
13 May 2004).
It needs to be emphasised that granting and payment of the
state pension should not become a privilege as the Constitution
does not protect and defend such rights acquired by a person that
are privileges as to their content; defence and protection of
privileges would mean that one violates the constitutional
principles of equal rights of persons and of justice, as well as
the imperative of harmonious society which is enshrined in the
Constitution, therefore, also the constitutional principle of a
state under the rule of law (Constitutional Court ruling of 13
December 2004). If the legislator, while establishing, by means
of a law, 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, if he granted the state pensions to the persons who may
not be granted such pensions, if he established groundlessly big
or small sizes of such pensions or if he 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 for service, one may not establish
any such 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; if one fails to heed the
peculiarities of service of officials and servicemen, and
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, 13 December 2003 and 22 October 2007).
3.4. The Constitutional Court has held more than once that
the provision "the state shall guarantee" of Article 52 of the
Constitution inter alia means that, upon establishing by law
certain pensionary maintenance, the state is obligated to
guarantee it to the indicated persons on such grounds and by such
amounts which have been established by the law, while the persons
who meet the conditions provided by the law have the right to
require that the state grant and pay this pension to them. Thus,
the said provision of Article 52 of the Constitution implies the
duty of the legislator, while he establishes a certain pension by
law, to consolidate the legal regulation which would ensure the
payment of this pension to persons who meet the conditions
established by law (Constitutional Court rulings of 23 April
2002, 4 July 2003, 3 December 2004 and 13 December 2004).
While establishing the legal regulation according to which
the persons who meet the conditions provided by the law
(retirement from the service, time of service, age, etc.) acquire
the right to a certain pension for service established in the
law, the state alongside accepts the duty to grant and pay this
pension. The person who meets the conditions established by the
law has the right to demand that the state fulfil the obligation
undertaken by the law and pay the payments of the established
amount (Constitutional Court rulings of 4 July 2003, 3 December
2003 and 13 December 2004). It was held in the Constitutional
Court ruling of 10 February 2000 that if a law establishes
another pension which is not directly provided by Article 52 of
the Constitution, the said pension must be guaranteed, under the
Constitution, to indicated persons on such bases and by such
amounts that are established by law. However, it should also be
emphasised that the legislator, while establishing such a
pension, is bound by the Constitution (Constitutional Court
ruling of 4 July 2003).
Therefore, the state has the duty to fulfil those
obligations of property nature which it has undertaken by law
while establishing such regulation, according to which a person,
who meets the conditions established by the law, acquires the
right to a certain pension (Constitutional Court ruling of 3
December 2003), inter alia the right to the state pension of
officials and servicemen (Constitutional Court ruling of 4 July
2003). Thus, a person, who meets these conditions, is entitled to
demand that the state fulfil this obligation of property nature
(Constitutional Court ruling of 4 July 2003).
3.5. After the types of pensions, the persons entitled to
the pension, the bases of granting and payment of pensions, their
amounts, and the conditions have been established by laws, a duty
arises for the state to follow the constitutional principles of
protection of legitimate expectations and legal certainty in the
area of pensionary maintenance relations (Constitutional Court
ruling of 4 July 2003). 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 (Constitutional Court rulings of 4 July
2003, 3 December 2003, 13 December 2004 and 22 October 2007).
4. In the context of the constitutional justice case at
issue, it needs to be noted that Article 52 of the Constitution
in which the basis for pensionary maintenance and social support
are established is to be construed inseparably from Article 23 of
the Constitution in which the right of the person to ownership is
defended.
Under Article 23 of the Constitution, the persons who have
been granted and paid the state pensions of officials and
servicemen have the right to demand that the payments be paid
further in the amounts which were granted and paid earlier
(Constitutional Court rulings of 4 July 2003 and 3 December
2003).
It needs to be noted that the constitutional protection of
the rights of ownership, which arise from the Constitution and
the laws that are not in conflict with the Constitution, means
the protection of the right to demand the fulfilment of
obligation of property nature to a person. In the latter case the
right to demand for the payments of pensionary maintenance which
are established by the Constitution or laws that are not in
conflict with the latter, arises from Article 52 of the
Constitution, while under Article 23 of the Constitution the
proprietary aspects of this right are defended (Constitutional
Court rulings of 4 July 2003, 3 December 2003, 13 December 2004
and 22 October 2007). The said circumstance determines the
specific character of the defence of this acquired right
according to Article 23 of the Constitution. This specific
character inter alia means that in case a question arises as to
the defence of the acquired right under Article 23 of the
Constitution, first of all it should be established whether the
requirement to pay the pension is based on Article 52 of the
Constitution and/or other norms of the Constitution
(Constitutional Court ruling of 4 July 2003).
Alongside, it should be noted that there might occur such an
extreme situation in the state (economic crisis, natural disaster
etc.) when there is objective lack of funds for the payment of
pensions. In such extraordinary cases the legal regulation of
pensionary relations may be corrected also by reducing pensions
to the extent that it is necessary to ensure vitally important
interests of society and protect other constitutional values. The
reduced pensions may only be paid on a temporary basis, i.e. only
when there is an extraordinary situation in the sate
(Constitutional Court rulings of 23 April 2002, 25 November 2002,
4 July 2003 and 3 December 2003). It needs to be noted that even
in such extraordinary cases it is not permitted that pensions be
reduced in violation of the balance between the interests of the
person and society; such reduction of pensions must be in line
with the constitutional principle of proportionality
(Constitutional Court rulings of 4 July 2003 and 3 December
2003).
5. It needs to be noted that state pensions differ in their
nature and character from old age pensions of the state social
insurance, as well as from other pensions of the state social
insurance. The state pensions are granted to persons for their
service or merits to the State of Lithuania, as well as the
compensation to victims specified in the law, and are paid from
the State Budget (Constitutional Court rulings of 3 December
2003, 4 July 2003 and 22 October 2007). The purpose of the state
pension of officials and servicemen is inter alia to compensate
for a difficult, responsible, often risky and dangerous service
by a person for the state. Such peculiarities of the state
pensions permit the legislator, taking account of all the
significant circumstances and heeding the norms and principles of
the Constitution, to establish the corresponding conditions for
granting of this pension. The receipt of these pensions is linked
not to the social insurance contributions of pensions of the
established size, but to the corresponding status of the person
(service, merits or other circumstances upon which granting of
the state pension depends).
The Constitutional Court has held that the constitutional
imperative of loyalty of the state service to the State of
Lithuania raises special requirements (Constitutional Court
rulings of 13 December 2004 and 13 August 2007). The status of
officials and servicemen to whom the state pension of officials
and servicemen is granted according to the Law on Pensions also
determines certain obligations to the state which are bigger than
those of other state servants and their more severe
responsibility. The officials and servicemen must perform their
service faultlessly and not abuse the empowerments established
for them in laws, not discredit, by their behaviour, the name,
honour and dignity of the official and serviceman when in and out
of office.
6. In the context of the constitutional justice case at
issue, it needs to be noted that the peculiarities of the status
of officials and servicemen and the pensions granted to them
imply that the legislator may establish such legal regulation
whereby granting the state pension of officials and servicemen
for the officials and servicemen who were dismissed from service
because of the fact that they had violated the requirements which
are raised for their service, is linked to additional conditions
of granting and payment of the pension. The legislator, taking
account of the particularity of the state service, may also
establish that the officials who inter alia grossly violated the
Constitution or laws, breached their oath or committed an
intentional crime shall not be granted the state pension of
officials and servicemen.
It is also permitted that, by the law, taking account of the
Constitution, the cases when the granted state pension is no
longer paid be established (Constitutional Court ruling of 22
October 2007). In this constitutional justice case, it needs to
be noted that, while taking account of the Constitution, the
legislator also may establish, by means of a law, the cases when
the granted state pension of officials and servicemen is lo
longer paid.
This discretion of the legislator is not absolute, the
legislator is bound by the imperatives which stem from the
Constitution, inter alia the constitutional imperative of social
harmony, the principles of justice, reasonableness,
proportionality and legal clarity which stem from it.
7. The Constitution shall be an integral act (Paragraph 1 of
Article 6 of the Constitution). The norms and principles of the
Constitution constitute a harmonious system, it is not permitted
to construe any provision of the Constitution so that the content
of any other constitutional provision might be distorted or
denied, since thus the essence of the entire constitutional
regulation would be distorted, the balance of values entrenched
in the Constitution would be disturbed.
Therefore, the provisions of Article 52 of the Constitution
are also to be construed while taking account also of other
provisions of the Constitution, inter alia the provisions of
Article 29 of the Constitution, Paragraph 1 of Article 48
thereof, and of the constitutional principle of a state under the
rule of law.
8. The Constitutional Court has held more than once that the
constitutional principle of a state under the rule of law inter
alia means that that human rights and freedoms must be secured,
that all institutions implementing state power as well as other
state institutions must act on the grounds of law and in
compliance with law, that the Constitution has the supreme legal
power and that other legal acts must be in compliance with the
Constitution.
8.1. Inseparable elements of the principle of a state under
the rule of law are the protection of legitimate expectations,
legal certainty and legal security. These principles inter alia
imply that the state must fulfil the undertaken obligations to
the person. If the protection of legitimate expectations, legal
certainty and legal security of the person were not ensured, the
confidence of the person in the state and law would not be
ensured (Constitutional Court rulings of 23 February 2000, 12
July 2001, 25 November 2002, 24 January 2003 and 4 March 2003).
8.2. One of the essential elements of the constitutional
principle of the state under the rule of law is the principle of
legal security which means the duty of the state to ensure
certainty and stability of legal regulation, to safeguard the
rights of participants of legal relations, as well as to respect
legitimate interests and legitimate expectations (Constitutional
Court rulings of 12 July 2001, 5 November 2002, 4 March 2003 and
17 March 2003).
8.3. The Constitutional Court has held more than once that
one of the elements of the principle of legitimate expectations
is the protection of rights which are acquired under the
Constitution as well as laws and other legal acts which are not
in conflict with the Constitution. It needs to be noted that,
according to the Constitution, only those expectations of the
person in relationships with the state are protected and
defended, which arise from the Constitution itself or from the
laws and other legal acts that are not in conflict with the
Constitution. Only these expectations of the person in
relationships with the state are considered legitimate
(Constitutional Court rulings of 4 July 2003, 3 December 2003 and
13 December 2004). It also needs to be noted that the imperative
of the balance between the constitutional values, the
constitutional requirements of legal certainty and legal
security, the protection of the acquired rights, which is
enshrined in the Constitution, and the presumption of
constitutionality and legitimacy of legal acts pre-determines
inter alia the fact that the Constitution generally does not
prevent from protecting and defending in certain special cases
also such acquired rights of the person arising from the legal
acts recognised later as being in conflict with the Constitution
(substatutory legal acts-as being in conflict with the
Constitution and/or the laws), which, if not defended or
protected, would result in greater harm to the person, other
persons, society or the state, than the harm inflicted in case of
total non-defence or non-protection or partial defence or
protection of the said rights (Constitutional Court ruling of 13
December 2004).
The Constitutional Court has more than once also held that
persons who have acquired certain rights according to the law,
have the right to reasonably expect that these rights will be
maintained and implemented for the established time period. In
the context of the constitutional justice case at issue, it needs
to be noted that a person who meets the conditions established by
the law acquires the right to a pension established by the law.
This person may reasonably expect that this right will be
protected and defended by the state. It has already been
mentioned that when the pension established by the law which is
not in conflict with the Constitution is granted and paid, this
right and legitimate expectation acquired by the person are also
to be linked to the protection of the rights of ownership of this
person (Constitutional Court rulings of 4 July 2003, 13 December
2004 and 22 October 2007).
8.4. It also needs to be noted that the constitutional
protection of acquired rights and legitimate expectations does
not mean that the system of pensionary maintenance established by
law may not be reorganised. While reorganising this system, the
Constitution must be observed in every case. The system of
pensions may be reorganised only by law, only guaranteeing the
old age and disability pensions provided for by the Constitution,
as well as observing undertaken obligations by the state, which
are not in conflict with Constitution, to pay corresponding
payments to persons who meet the requirements established by the
law. If, while reorganising the pensionary system, the pensions
established by the laws which are not directly specified in
Article 52 of the Constitution were eliminated, or the legal
regulation of these pensions were amended in essence, the
legislator would be obligated to establish a fair mechanism for
compensation of the existing losses to the persons who had been
granted and paid such pensions. It also needs to be noted that
the legislator, while reorganising the system of pensions so that
the bases for pensionary maintenance, persons to whom the pension
is granted and paid, the conditions of granting and payment of
pensions, the amounts of pensionary maintenance are changed, must
provide for a sufficient transitional time period during which
the persons who have a corresponding job or perform corresponding
service which entitles them to a respective pension under the
previous regulation, would be able to prepare for these changes
(Constitutional Court ruling of 4 July 2003).
8.5. One of the essential elements of the principle of a
state under the rule of law which is enshrined in the
Constitution is legal certainty and legal clarity. The
Constitutional Court has held more than once that the
constitutional principle of a state under the rule of law implies
various requirements for the legislator, other law-making
entities, inter alia the fact that the requirements established
in legal acts must be based on the provisions of general type
(legal norms and principles) which can be applied in regard to
all the specified subjects of respective legal relations; the
differentiated legal regulation must be based only on objective
differences of the situation of subjects of public relations
regulated by respective legal acts; the legal regulation
established in laws and other legal acts must be clear, easy to
understand, consistent, formulas in the legal acts must be
precise, consistency and internal harmony of the legal system
must be ensured, the legal acts may not contain any provisions,
which at the same time regulate the same public relations in a
different manner; when setting legal limitations, one must pay
heed to the requirement of reasonableness and the principle of
proportionality, according to which the established legal
measures have to be necessary in a democratic society and
suitable for achieving legitimate and universally important
objectives (there must be a balance between the objectives and
the measures), they may not restrict the rights of the person
more than it is necessary in order to achieve the said
objectives; when legally regulating public relations it is
compulsory to pay heed to the requirements of natural justice
comprising inter alia the necessity to ensure the equality of
persons before the law, the court and state institutions and
officials, etc.
In the context of the constitutional justice case at issue,
it needs to be noted that the legislator, when regulating the
relations linked to granting of the state pension of officials
and servicemen, must use such formulas which would be consistent,
clear and understandable to the participants of legal relations.
Otherwise, one would create preconditions to improperly implement
the right of officials and servicemen to receive the state
pension of officials and servicemen.
8.6. It also needs to be noted that the constitutional
principle of a state under the rule of law is inseparable from
the principle of justice, and vice versa. The Constitutional
Court has held in its rulings more than once that justice is one
of the basic objectives of law, as the means of regulation of
social relations. It is one of basic moral values and one of
basic foundations of a state under the rule of law. It may be
implemented by ensuring certain equilibrium of interests, by
escaping fortuity and arbitrariness, instability of social life
and conflict of interests (Constitutional Court ruling of 3
December 2003).
9. In the context of the constitutional justice case at
issue, it needs to be noted that the Constitutional Court has
held more than once that the legislator, while establishing which
persons are granted and paid the state pension, the grounds and
conditions for granting and payment of the state pension, as well
as the amounts of this pension, must follow the constitutional
principle of equality of all persons (Constitutional Court ruling
of 26 September 2007).
10. Article 29 of the Constitution provides:
"All persons shall be equal before the law, the court, and
other State institutions and officials.
The rights of the human being may not be restricted, nor may
he be granted any privileges on the ground of gender, race,
nationality, language, origin, social status, belief,
convictions, or views."
The norms of Article 29 of the Constitution enshrine the
principle of equality of all persons. Paragraph 1 of Article 29
of the Constitution enshrines a formal equality of all persons,
while Paragraph 2 of this article enshrines the principle of non-
discrimination and not granting of privileges to persons. The
constitutional principle of equality of all persons before the
law requires that in law the main rights and duties be
established equally to all (Constitutional Court rulings of 18
April 1994, 30 December 2000 and 23 September 2008).
The Constitutional Court has held that this principle must
be followed in the course of enactment of laws and their
application. The constitutional principle of equality of all
persons means an innate human right to be treated equally with
the others (Constitutional Court rulings of 2 April 2001, 23
April 2002, 4 July 2003 and 3 December 2003) and obliges to
legally assess the homogeneous facts in the same manner and
prohibits to arbitrary assess the facts, which are the same in
essence, in a different manner; on the other hand, this principle
does not deny a possibility to provide in a law for different
legal regulation in respect to certain categories of persons who
are in different situations (Constitutional Court rulings of 23
April 2002, 4 July 2003, 3 December 2003 and 26 September 2007).
The variety of social life may determine the manner and content
of legal regulation (Constitutional Court ruling of 4 July 2003).
However, the constitutional principle of equality of all persons
before the law would be violated when a certain group of people
to which the legal norm is ascribed, if compared to other
addressees of the same legal norm, were treated differently, even
though there are not any differences in their character and
extent between these groups that such an uneven treatment would
be objectively justified (Constitutional Court rulings of 20
November 1996, 30 December 2003, 13 December 2004 and 26
September 2007).
While assessing whether an established different legal
regulation is a grounded one, particular legal circumstances must
be taken into account. First of all, differences of legal
situation of subjects and objects to which different legal
regulation is applied must be considered (Constitutional Court
rulings of 28 February 1996, 13 November 1997 and 4 July 2003).
The compliance of a concrete legal norm with Article 29 of the
Constitution may be assessed only by taking into account all
significant circumstances (Constitutional Court ruling of 4 July
2003).
In the context of the constitutional justice case at issue,
it needs to be noted that while establishing the conditions for
granting and payment of the state pension of officials and
servicemen and other conditions, the legislator must heed the
requirement which stems from Article 29 of the Constitution that
officials and servicemen, whose legal situation is the same, when
there are no differences of such nature and such extent among
them that different treatment of such officials and servicemen
would be objectively justified, would be treated equally.
Different conditions for granting of the state pension of
officials and servicemen may be established taking account of the
differences of the legal situations and peculiarities of the
legal situation of officials and servicemen, inter alia different
grounds of their dismissal from service.
11. Paragraph 1 of Article 48 of the Constitution provides:
"Each human being may freely choose a job or business, and shall
have the right to have proper, safe and healthy conditions at
work, to receive fair pay for work and social security in the
event of unemployment."
Paragraph 1 of Article 48 of the Constitution inter alia
enshrines the right of each human being to social security in the
event of unemployment. If due to certain reasons a person cannot
take care of his welfare, a duty appears for the state to
establish such legal regulation, under which social support would
be ensured for the person in the event of unemployment; the
legislator may choose and enshrine in the laws the model of
provision of the said support, inter alia various forms thereof,
however, one may not establish any such legal regulation which
would create preconditions for such situation to appear, where a
person, who has lost his job due to certain reasons, would not
receive the corresponding social support. In this context it
needs to be noted that a duty arises for the legislator to
regulate the legal relations of social support also in such way
that preconditions would be created for each member of society to
take care of his own welfare by himself, and not only to rely on
the state social security.
III
On the compliance of Paragraph 2 (wording of 13 July 2000)
of Article 3 of the Law on the State Pensions of Officials and
Servicemen of the Interior, the Special Investigation Service,
State Security, National Defence, the Prosecutor's Office, the
Department of Prisons and of the Establishments and State
Enterprises Which are Subordinate to the Latter and Paragraph 2
of Article 3 of the Law on the State Pensions of Officials and
Servicemen of the Interior, the Special Investigation Service,
State Security, National Defence, the Prosecutor's Office, the
Department of Prisons and of the Establishments and State
Enterprises Which are Subordinate to the Latter (wording of 19
May 2005) with Articles 23, 29 and 52 of the Constitution, and
with the constitutional principle of a state under the rule of
law.
1. Article 3 (wording of 13 July 2000) of the Law on
Pensions established:
"The state pension of officials and servicemen shall be
granted and paid to officials and servicemen who left service,
and who are specified in Article 1 of this law:
(1) who have served in the systems of the Interior, state
security, national defence, the Special Investigation Service,
the Department of Prisons and the establishments and state
enterprises which are subordinate to the latter for 20 years or
more;
(2) who have served in the prosecutor's office for 20 years
and more and who have reached the age of the old age pension
which is established by the Law on State Social Insurance
Pensions;
(3) who have been recognised as persons with incapacity for
work for reasons related to the service;
(4) who have been dismissed from service due to their
health, when there is a conclusion from the departmental central
medicine expertise commission, or who were recognised as persons
with incapacity for work for reasons which are not linked to
service and who have served in the systems of the Interior, state
security, national defence, the prosecutor's office, the Special
Investigation Service, the Department of Prisons and the
establishments and state enterprises which are subordinate to the
latter for 5 years and more;
(5) who have reached the age of retirement to the reserve
(if such age has not been establishedwhen they have reached the
age of the old age pension) established by laws or statutes and
who have served in the systems of the Interior, state security,
national defence, the prosecutor's office, the Special
Investigation Service, the Department of Prisons and the
establishments and state enterprises which are subordinate to the
latter for 5 years and more.
Officials and servicemen who have been removed from the
systems of the Interior, state security, national defence and the
prosecutor's office, the Special Investigation Service, the
Department of Prisons and the establishments and state
enterprises which are subordinate to the latter due to their own
fault (if that fault does not incur criminal liability) shall be
granted the state pension only in the case where they have served
for 20 years or more and they have reached the age of retirement
to the reserve (if such age has not been establishedwhen they
have reached the age of the old age pension) established by
laws."
2. The conditions which must be met by the officials and
servicemen in order to receive the state pension of officials and
servicemen are established in Article 3 (wording of 13 July 2000)
of the Law on Pensions. Under Paragraph 1 of this article, the
state pension of officials and servicemen is granted only to
those officials and servicemen who left service (save those who,
under Paragraph 2 of this article, were removed from service due
to their own fault (if this fault does not incur criminal
liability)), if they, before leaving service, had served for a
corresponding number of years or who had served for the
corresponding number of years and had reached the age of the old
age pension established by laws (applied only to officials who
have served in the prosecutor's office) or recognised as persons
with incapacity for work for reasons related to the service, etc.
The conditions for granting the state pension of officials
and servicemen which are established in Paragraph 2 of this
article are applied to those officials and servicemen who were
removed from service due to their own fault if this fault does
not incur criminal liability.
In the context of the constitutional justice case at issue
it needs to be noted that while comparing the conditions for
granting the state pension to officials who served in the systems
of the Interior, state security, national defence, the
prosecutor's office, the Special Investigation Service, the
Department of Prisons and the establishments which are
subordinate to the latter and who were removed from service due
to their own fault, if this fault does not incur criminal
liability, with the conditions for granting the state pensions of
officials and servicemen to the said officials who left service,
it is obvious that an additional condition in order to receive
the pensionthe requirement that these officials must reach the
age of retirement to the reserve (if such age has not been
establishedwhen they have reached the age of the old age
pension) established by lawsis established for the officials and
servicemen who were removed from service due to their own fault,
if this fault does not incur criminal liability.
3. In this context it needs to be noted that an official or
serviceman, who has served for 20 years or more and who was
removed from service due to his own fault if this fault does not
incur criminal liability, however, who has not reached the age of
retirement to the reserve (if such age has not been established
when he has reached the age of the old age pension) established
by laws, acquires the right to receive the state pension of
officials and servicemen upon reaching the age of retirement to
the reserve (if such age has not been establishedwhen he has
reached the age of the old age pension) established by laws.
4. It also needs to be noted that while construing Paragraph
2 (wording of 13 July 2000) of Article 3 of the Law on Pensions
which is disputed by the petitioner in a systemic manner together
with Paragraph 3 (wording of 18 May 2004) of Article 13 of this
law, it is obvious that officials and servicemen who were removed
from service due to the fact that they were convicted of
commission of an intentional crime shall not be granted the state
pension of officials and servicemen in general.
5. Having compared the legal regulation established in
Paragraphs 1 and 2 of Article 3 (wording of 13 July 2000) of the
Law on Pensions, it is obvious that the conditions for granting
the state pensions of officials and servicemen are differentiated
according to the grounds of discontinuation of service of
officials and servicemen.
6. It has been mentioned that the Vilnius Regional
Administrative Court, the petitioner, requests to investigate the
compliance of Paragraph 2 (wording of 13 July 2000) of Article 3
of the Law on Pensions with Articles 23, 29 and 52 of the
Constitution and with the constitutional principle of a state
under the rule of law.
The petitioner grounds the incompliance of the disputed
provisions with Articles 23 and 52 of the Constitution on the
doctrinal provisions of the Constitutional Court whereby a
person, who created certain values by his work, including the
funds of social insurance, acquires the right to pension as a
form of property.
While deciding whether the provision which is disputed by
the petitioner is not in conflict with Articles 23 and 52 of the
Constitution, it needs to be noted that, as it has been mentioned
in this ruling:
- state pensions differ in their nature and character from
old age pensions of the state social insurance, as well as from
other pensions of the state social insurance, and they are paid
from the state budget and not from the fund of social insurance;
- while establishing other pensions that are not expressis
verbis specified in Article 52 of the Constitution, the
legislator may also establish certain conditions in order to
receive these pensions;
- under Paragraph 2 (wording of 13 July 2000) of Article 3
of the Law on Pensions, the relations linked to non-payment of
the granted and paid state pension are not regulated; on the
contrary, this paragraph regulates the relations when these
pensions are granted and paid to officials and servicemen who
have been removed from service due to their own fault, if that
fault does not incur criminal liability.
Therefore, by the legal regulation established in Paragraph
2 (wording of 13 July 2000) of Article 3 of the Law on Pensions,
one does not violate the imperatives which stem from Articles 23
and 52 of the Constitution.
7. It has also been mentioned that the Vilnius Regional
Administrative Court, the petitioner, substantiates the
incompliance of the disputed provision with Article 29 of the
Constitution by the fact that the legal regulation which
enshrines the condition that a person, who seeks to acquire the
right to the state pension, must have reached a certain age is
discriminative with regard to younger people.
While deciding whether the provision disputed by the
petitioner is not in conflict with Article 29 of the
Constitution, it needs to be noted that, as it has been held in
this ruling, taking account of the peculiarities of the state
service and of granting the state pension, the legislator may
establish such legal regulation whereby granting the state
pension for officials and servicemen who were dismissed from
service because of the fact that they had violated the
requirements raised for their service is related to additional
conditions for granting and payment of the pension.
It needs to be noted that this additional condition is
applied to all those, who were removed from service due to their
own fault, if this fault does not incur criminal liability.
Therefore, in this respect, these persons are treated equally.
Thus, by the legal regulation established in Paragraph 2
(wording of 13 July 2000) of Article 3 of the Law on Pensions,
one does not deviate from the imperatives which are enshrined in
Article 29 of the Constitution.
8. It has also been mentioned that the Vilnius Regional
Administrative Court, the petitioner, substantiates the
incompliance of the disputed provision with the constitutional
principle of a state under the rule of law by the fact that the
legal regulation established in Paragraph 2 (wording of 13 July
2000) of Article 3 of the Law on Pensions means a repeated
punishment of officials and servicemen who were removed from
service due to their own fault, if this fault does not incur
criminal liability.
It needs to be noted that, as it has been mentioned in this
Constitutional Court ruling, under the legal regulation enshrined
in Paragraph 2 (wording of 13 July 2000) of Article 3 of the Law
on Pensions, the officials and servicemen who were removed from
service due to their own fault, if this fault does not incur
criminal liability, do not lose the right to receive the state
pension of officials and servicemen. The state pension of
officials and servicemen is granted to them either at the time of
their removal from service, if they have reached the age of
retirement to the reserve (if such age has not been established
when they have reached the age of the old age pension)
established by laws or later, upon reaching the age of retirement
to the reserve (if such age has not been establishedwhen they
have reached the age of the old age pension). Therefore, by such
legal regulation the constitutional principle of a state under
the rule of law is not violated.
9. Taking account of the arguments set forth, one is to draw
a conclusion that Paragraph 2 (wording of 13 July 2000) of
Article 3 of the Law on Pensions was not in conflict with
Articles 23, 29 and 52 of the Constitution and with the
constitutional principle of a state under the rule of law.
10. As it has been mentioned, the petitioner requests to
investigate not only the compliance of Paragraph 2 (wording of 13
July 2000) of Article 3 of the Law on Pensions, but also the
compliance of Paragraph 2 of Article 3 of the Law on Pensions
(wording of 19 May 2005) with the Constitution, and with the
constitutional principle of a state under the rule of law.
11. Paragraph 2 of Article 3 of the Law on Pensions (wording
of 19 May 2005) established: "Officials and servicemen who have
been removed from the systems of the Interior, state security,
national defence and the prosecutor's office, the Special
Investigation Service, the Department of Prisons and the
establishments and state enterprises which are subordinate to the
latter due to their own fault (if that fault does not incur
criminal liability) shall be granted the state pension only in
the case where they have served for 20 years or more and they
have reached the age of retirement to the reserve (if such age
has not been establishedwhen they have reached the age of the
old age pension)."
It needs to be noted that the legal regulation enshrined in
Paragraph 2 of Article 3 of the Law on Pensions (wording of 19
May 2005) is analogous to the legal regulation which was
contained in Paragraph 2 (wording of 13 July 2000) of Article 3
of the Law on Pensions.
12. Having held in this ruling that Paragraph 2 (wording of
13 July 2000) of Article 3 of the Law on Pensions was not in
conflict with Articles 23, 29 and 52 of the Constitution and with
the constitutional principle of a state under the rule of law,
one is to hold, while following the same arguments, that
Paragraph 2 of Article 3 of the Law on Pensions (wording of 19
May 2005) was not in conflict with Articles 23, 29 and 52 of the
Constitution, and with the constitutional principle of a state
under the rule of law.
IV
On the compliance of Paragraph 5 (wording of 21 December
2000) of Article 11 of the Law on the State Pensions of Officials
and Servicemen of the Interior, the Special Investigation
Service, State Security, National Defence, the Prosecutor's
Office, the Department of Prisons and of the Establishments and
State Enterprises Which are Subordinate to the Latter and
Paragraph 3 of Article 11 of the Law on the State Pensions of
Officials and Servicemen of the Interior, the Special
Investigation Service, State Security, National Defence, the
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to the
Latter (wording of 19 May 2005) with Articles 23 and 52 of the
Constitution, and with the constitutional principle of a state
under the rule of law.
1. Paragraph 5 (wording of 21 December 2000) of Article 11
of the Law on Pensions prescribed: "State pensions of officials
and servicemen shall not be paid to pensioners who are fully
supported by the State."
2. The provision which is disputed by the petitioner that
the granted state pension of officials and servicemen shall not
be paid to pensioners who are fully supported by the state also
means that when a person starts being fully supported by the
state, the payment of the granted state pension of officials and
servicemen which has been paid until then is terminated, or one
does not start to pay the granted state pension of officials and
servicemen, if it was granted, but not started to be paid yet.
The legal regulation enshrined in Paragraph 5 (wording of 21
December 2000) of Article 11 of the Law on Pensions also implies
that paying the state pensions of officials and servicemen, which
was terminated for the persons who receive full support from the
state, has to be renewed to these persons upon losing such
support.
3. While deciding whether the provision of Paragraph 5
(wording of 21 December 2000) of Article 11 of the Law on
Pensions is not in conflict with Articles 23 and 52 of the
Constitution, it needs to be noted that, as it has been mentioned
in this Constitutional Court ruling:
- while establishing such legal regulation according to
which the persons who meet the conditions provided by the law
(retirement from service, time of service, age, etc.) acquire the
right to a certain pension for service established in the law,
the state alongside accepts the duty to grant and pay this
pension. The person who meets the conditions established by the
law has the right to demand that the state fulfil the obligation
undertaken by the law and pay the payments of the established
amount;
- a duty arises for the state to fulfil those obligations of
property nature which it has undertaken by law, therefore, when
the pension established in the law which is not in conflict with
the Constitution is granted and paid, it must continued to be
paid, while 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 laws
which are not in conflict with it stems from Article 52 of the
Constitution, while under Article 23 of the Constitution, the
aspects of this right are defended;
- cases, when the granted state pension of officials and
servicemen is no longer paid may be established by the legislator
by means of a law only following the Constitution.
4. It has been mentioned that non-payment of the state
pension of officials and servicemen is conditioned by the fact
that a corresponding person is fully supported by the state.
Therefore, full support of the state is an essential condition,
upon which it depends whether the granted state pension of
officials and servicemen will be paid or not.
The legal regulation enshrined in Paragraph 5 (wording of 21
December 2000) of Article 11 of the Law on Pensions and in other
articles of this law does not reveal in what meaning the
formulation "full support of the state" is used. The meaning of
the formulation "full support of the state" which is used in this
law and which is the ground not to pay the state pension of
officials and servicemen is not clear upon assessment of other
laws in which similar formulations are used as well.
Thus, in this provision the content of the disputed ground
full support of the statefor non-payment of pension is not
revealed enough.
In the context of the constitutional justice case at issue,
it needs to be noted that in itself the formulation "full support
of the state" which is used in the meaning of the legal
regulation enshrined in this law, especially when its content is
unclear, may not be the ground for suspension of the granted and
paid state pension of officials and servicemen, i.e. the ground,
upon existence of which a person loses the right to the
corresponding monetary payment which, under the Constitution,
inter alia Article 52 thereof, must be protected and defended.
It needs to be held that the formulation "full support of
the state" used in the disputed provision of Paragraph 5 (wording
of 21 December 2000) of Article 11 of the Law on Pensions is to
be assessed as undefined and unclear.
5. In this Constitutional Court ruling it has been mentioned
that the Constitutional Court has held that one of the essential
elements of the principle of a state under the rule of law which
is enshrined in the Constitution is legal certainty and legal
clarity. The imperative of legal certainty and legal clarity
implies certain obligatory requirements for the legal regulation:
it must be clear and harmonious, legal norms must be formulated
precisely, they may not contain ambiguities (Constitutional Court
rulings of 30 May 2003 and 26 January 2004). In this
constitutional justice case it needs to be noted that the notions
(formulations) which are linked to the implementation of the
constitutional human rights and their restriction must be clear,
defined and understandable.
In this Constitutional Court ruling it has also been
mentioned that the legislator may establish certain cases when
the granted pension is not paid, however, while establishing such
cases, he must heed the Constitution, inter alia the requirement
of proportionality which stems from the Constitution. In this
constitutional justice case at issue it is to be noted that if
the legislator does not properly reveal the content of the
disputed provision, it is impossible to assess whether one
followed the requirement of proportionality and whether one did
not violate the right of a person and his legitimate expectation
(which are to be related to the protection of the rights of
ownership of this person) to receive the granted and paid state
pension of officials and servicemen while limiting payment of the
granted state pension of officials and servicemen to the
pensioners who receive full support of the state, i.e. whether
the ground"full support of the state"of non-payment of the
state pension of officials and servicemen which is enshrined in
the disputed Paragraph 5 (wording of 21 December 2000) of Article
11 of the Law on Pensions was established while heeding the
Constitution.
6. Taking account of the arguments set forth, one is to draw
a conclusion that Paragraph 5 (wording of 21 December 2000) of
Article 11 of the Law on Pensions was in conflict with the
constitutional principle of a state under the rule of law.
7. Having held that Paragraph 5 (wording of 21 December
2000) of Article 11 of the Law on Pensions was in conflict with
the constitutional principle of a state under the rule of law, in
this case the Constitutional Court will not investigate whether
disputed Paragraph 5 (wording of 21 December 2000) of Article 11
of the Law on Pensions was not in conflict with Articles 23 and
52 of the Constitution.
8. As it has been mentioned, the Vilnius Regional
Administrative Court, the petitioner, requests to investigate not
only the compliance of Paragraph 5 (wording of 21 December 2000)
of Article 11 of the Law on Pensions, but also the compliance of
Paragraph 3 of Article 11 of the Law on Pensions (wording of 19
May 2005) with Articles 23 and 52 of the Constitution and with
the constitutional principle of a state under the rule of law.
9. Paragraph 3 of Article 11 of the Law on Pensions (wording
of 19 May 2005) established the following: "State pensions of
officials and servicemen shall not be paid to pensioners who are
fully supported by the State."
It needs to be noted that the legal regulation enshrined in
Paragraph 3 of Article 11 of the Law on Pensions (wording of 19
May 2005) is analogous to the legal regulation which was
established in Paragraph 5 (wording of 21 December 2000) of
Article 11 of the Law on Pensions.
10. Having held in this ruling that Paragraph 5 (wording of
21 December 2000) of Article 11 of the Law on Pensions was in
conflict with the constitutional principle of a state under the
rule of law, one is to hold, while following the same arguments,
that also Paragraph 3 of Article 11 of the Law on Pensions
(wording of 19 May 2005) was in conflict with the constitutional
principle of a state under the rule of law.
11. In this ruling it has been mentioned that, on 18 January
2007, the Seimas adopted the Law on Amending and Supplementing
the Title and Articles 1, 3, 6, 12 and 16 of the Law on the State
Pensions of Officials and Servicemen of the Interior, the Special
Investigation Service, State Security, National Defence, the
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to the
Latter, whereby the title of the Law on Pensions was amended and
it was titled as the Law on State Pensions of Officials and
Servicemen.
By this law, one did not amend Paragraph 3 of Article 11 of
the Law on Pensions (wording of 19 May 2005).
Having held in this ruling that Paragraph 3 of Article 11 of
the Law on Pensions (wording of 19 May 2005) was in conflict with
the constitutional principle of a state under the rule of law,
following the same arguments it needs to be held that also
Paragraph 3 of Article 11 of the Law on State Pensions of
Officials and Servicemen is in conflict with the constitutional
principle of a state under the rule of law.
V
On the compliance of Paragraph 12 (wording of 18 January
2007) of Article 16 of the Law on State Pensions of Officials and
Servicemen with Paragraphs 1 and 2 of Article 23 of the
Constitution, Article 29 thereof, the provision "each human being
may <...> receive <...> social security in the event of
unemployment" of Paragraph 1 of Article 48 thereof, Article 52
thereof and with the constitutional principle of a state under
the rule of law.
1. Paragraph 12 (wording of 18 January 2007) of Article 16
of the Law on State Pensions of Officials and Servicemen
provides: "Customs officials who worked in mobile groups or
customs posts in the customs or who performed operational
activity and/or pre-trial investigation, shall be granted the
pensions of officials and servicemen only if they have acquired
the right to this pension after coming into force of the Law No.
X-1027 on Amending and Supplementing the Title and Articles 1, 3,
6, 12 and 16 of the Law on the State Pensions of Officials and
Servicemen of the Interior, the Special Investigation Service,
State Security, National Defence, the Prosecutor's Office, the
Department of Prisons and of the Establishments and State
Enterprises Which are Subordinate to the Latter."
2. It has been mentioned that on 18 January 2007, the Seimas
adopted the Law on Amending and Supplementing the Title and
Articles 1, 3, 6, 12 and 16 of the Law on the State Pensions of
Officials and Servicemen of the Interior, the Special
Investigation Service, State Security, National Defence, the
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to the
Latter which came into force on 19 January 2007. By this law, the
Law on Pensions was inter alia supplemented by the provision
whereby the customs officials who worked in mobile groups or
customs posts in the customs system, or who performed operational
activity and/or pre-trial investigation, acquired the right to
receive the state pension of officials and servicemen (Article
1).
The conditions for granting the state pensions of officials
and servicemen were established inter alia in Paragraph 1 of
Article 3 of the Law on Pensions of Officials and Servicemen:
"The state pension of officials and servicemen shall be
granted and paid to officials and servicemen who left service,
who are specified in Article 1 of this law:
(1) who have served in the systems of the Interior, state
security, national defence, the Special Investigation Service,
the Department of Prisons, the establishments and state
enterprises which are subordinate to the latter and the customs
system (who worked in customs mobile groups or customs posts or
who performed operational activity and/or pre-trial
investigation) for 20 years or more;
(2) who have served in the prosecutor's office for 20 years
and more and who have reached the age of the old age pension
which is established by the Law on State Social Insurance
Pensions;
(3) who have been recognised as persons with incapacity for
work or partial capacity for work for reasons related to the
service;
(4) who have been dismissed due to their health, when there
is a conclusion from the departmental central medicine expertise
commission, or who were recognised as persons with incapacity for
work or partial capacity for work for reasons which are not
linked to service and who have served in the systems of the
Interior, state security, national defence, the prosecutor's
office, the Special Investigation Service, the Department of
Prisons, the establishments and state enterprises which are
subordinate to the latter and the customs system (who worked in
customs mobile groups or customs posts or who performed
operational activity and/or pre-trial investigation) for 5 years
and more;
(5) who have reached the age of retirement to the reserve
(if such age has not been establishedwhen they have reached the
age of the old age pension) established by laws or statutes and
who have served in the systems of the Interior, state security,
national defence, the prosecutor's office, the Special
Investigation Service, the Department of Prisons, the
establishments and state enterprises which are subordinate to the
latter and the customs system (who worked in customs mobile
groups or customs posts or who performed operational activity
and/or pre-trial investigation) for 5 years and more."
While construing Paragraph 1 (wording of 18 January 2007) of
Article 3 of the Law on State Pensions of Officials and
Servicemen together with Paragraph 12 of Article 16 of this law,
it needs to be noted that only those customs officials who worked
in mobile groups or customs posts in the customs system or who
performed operational activity and/or pre-trial investigation and
who meet the conditions established in Paragraph 1 (wording of 18
January 2007) of Article 3 of this law, as well as who left
service after coming into force of the Law on Amending and
Supplementing the Title and Articles 1, 3, 6, 12 and 16 of the
Law on the State Pensions of Officials and Servicemen of the
Interior, the Special Investigation Service, State Security,
National Defence, the Prosecutor's Office, the Department of
Prisons and of the Establishments and State Enterprises Which are
Subordinate to the Latter, i.e. after 19 January 2007, acquired
the right to the state pension of officials and servicemen. Those
former customs officials who worked in customs mobile groups or
customs posts in the customs system or who performed operational
activity and/or pre-trial investigation, who left service prior
to 19 January 2007, did not acquire this right even though they
meet the conditions established in Article 3 (wording of 18
January 2007) of the Law on State Pensions of Officials and
Servicemen.
3. It has been mentioned that the Vilnius Regional
Administrative Court, the petitioner, substantiates the
incompliance of the disputed provision with Paragraphs 1 and 2 of
Article 23 of the Constitution, Article 29 thereof, the provision
"each human being may <...> receive <...> social security in the
event of unemployment" of Paragraph 1 of Article 48 thereof,
Article 52 thereof and with the constitutional principle of a
state under the rule of law by the fact that the officials who
worked in the customs system are differentiated while taking
account of the date of coming into force of the law, meanwhile,
according to the petitioner, this is not a difference of such
nature and of such extent that the unequal treatment of the
customs officials would be reasonably justified.
4. In this Constitutional Court ruling it has been held
that:
- the legislator may establish also other pensions or social
assistance than those expressis verbis specified in Article 52 of
the Constitution, inter alia state pensions;
- state pensions differ in their nature and character from
old age pensions of the state social insurance, and they are paid
from the state budget;
- the peculiarities of the state pensions permit the
legislator, while taking account of all the significant
circumstances and heeding the norms and principles of the
Constitution, to establish the corresponding conditions for
granting of this pension.
5. In the context of the constitutional justice case at
issue, it needs to be noted that the discretion of the
legislator, while establishing granting of the state pensions, is
broader than while regulating other pensions, inter alia old age
pensions or disability pensions. The conditions for granting
state pensions may be very different and depend on the
peculiarities of the state service, economic resources of the
state, etc. In this context it also needs to be noted that the
legislator, while enjoying his discretion, was allowed to choose
whether or not to establish that the state pension of officials
and servicemen would be granted to the officials who held a
certain office in the customs systems, as well as under what
conditions this pension is granted.
6. In this Constitutional Court ruling it has also been
mentioned that one of the elements of the principle of legitimate
expectations is the protection of rights which are acquired under
the Constitution as well as laws and other legal acts which are
not in conflict with the Constitution. When the pension
established by a law, which is not in conflict with the
Constitution, is granted and paid, the said pension must be
continued to be paid, while 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.
In the context of the constitutional justice case at issue,
it needs to be noted that the customs officials who worked in
mobile groups or customs posts in the customs system or who
performed operational activity and/or pre-trial investigation,
who left service prior to the entry into force of the Law on
Amending and Supplementing the Title and Articles 1, 3, 6, 12 and
16 of the Law on the State Pensions of Officials and Servicemen
of the Interior, the Special Investigation Service, State
Security, National Defence, the Prosecutor's Office, the
Department of Prisons and of the Establishments and State
Enterprises Which are Subordinate to the Latter, under the then
valid legal regulation could not have any legitimate expectations
to receive the state pension of officials and servicemen, as the
right to receive the state pension of officials and servicemen
was acquired only by those officials who held certain positions
in the customs system on the day of coming into force of the law,
i.e. 19 January 2007 and/or later.
The status of the customs officials who work in mobile
groups or customs posts in the customs system or who perform
operational activity and/or pre-trial investigation differs from
the status of the former officials who left service prior to the
entry into force of the Law on Amending and Supplementing the
Title and Articles 1, 3, 6, 12 and 16 of the Law on the State
Pensions of Officials and Servicemen of the Interior, the Special
Investigation Service, State Security, National Defence, the
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to the
Latter in that the officials who worked before the entry into
force of the said law did not have legitimate expectations to
receive the state pension of officials and servicemen.
7. The Vilnius Regional Administrative Court, the
petitioner, substantiates the incompliance of Paragraph 12
(wording of 19 January 2007) of Article 16 of the Law on State
Pensions of Officials and Servicemen by the fact, that under the
Constitution, one must guarantee the human rights and freedoms,
therefore, also the acquired right to receive the state pension
of officials and servicemen.
In this context, it needs to be noted that, as it has been
mentioned, the legislator, while enjoying broad discretion, had
the right to establish that the state pension of officials and
servicemen would be granted to the officials who still hold
certain positions in the customs systems after the entry into
force of the Law on Amending and Supplementing the Title and
Articles 1, 3, 6, 12 and 16 of the Law on the State Pensions of
Officials and Servicemen of the Interior, the Special
Investigation Service, State Security, National Defence, the
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to the
Latter.
It also needs to be noted that, while establishing granting
of the state pensions of officials and servicemen, the legislator
may establish (although he is under no obligation to do that)
that these pensions will be granted also to the persons who used
to work in the corresponding service previously, but who no
longer work there after the entry into force of the law whereby
the state pension of officials and servicemen is established for
a certain category of officials and servicemen.
8. In this context it needs to be noted that it is obvious
from the travaux préparatoires of the Law on Amending and
Supplementing the Title and Articles 1, 3, 6, 12 and 16 of the
Law on the State Pensions of Officials and Servicemen of the
Interior, the Special Investigation Service, State Security,
National Defence, the Prosecutor's Office, the Department of
Prisons and of the Establishments and State Enterprises Which are
Subordinate to the Latter that one of the purposes of this law
was to restructure the system of granting of the state pensions
of officials and servicemen so that service in the customs would
become more attractive and that specialists of high qualification
would be motivated to continue in office.
In the context of this constitutional justice case at issue
it needs to be noted that the legislator, while seeking to
restructure the system of state pensions of officials and
servicemen and to motivate the specialists of high qualification
in the customs system to continue in office, sought to ensure
proper functioning of the customs system. For this purpose, such
legal regulation was established whereby the state pension of
officials and servicemen is granted to officials who were still
working in mobile groups or customs posts in the customs system
or who performed operational activity and/or pre-trial
investigation after coming into force of the Law on Amending and
Supplementing the Title and Articles 1, 3, 6, 12 and 16 of the
Law on the State Pensions of Officials and Servicemen of the
Interior, the Special Investigation Service, State Security,
National Defence, the Prosecutor's Office, the Department of
Prisons and of the Establishments and State Enterprises Which are
Subordinate to the Latter.
9. Taking account of the intentions of the legislator to
motivate specialists of high qualification to continue in office
in the customs system, it needs to be held that the amendments of
the Law on Pensions, which establish the right to receive the
state pension for officials and servicemen who held certain
positions in the customs system, were designed for the officials
who held certain positions in the customs system on the day of
coming into force of the Law on Pensions and/or later, and in
this aspect, such officials differ from the persons who used to
work in the customs system before and who left service prior to
the entry of the said amendments of the Law on Pensions into
force.
10. Therefore, by the legal regulation established in
Paragraph 12 of Article 16 of the Law on State Pensions of
Officials and Servicemen one does not deviate from the principle
of equal rights of persons which is enshrined in Article 29 of
the Constitution, and one does not violate the requirements which
stem from Paragraphs 1 and 2 of Article 23 of the Constitution,
Article 52 thereof and the constitutional principle of a state
under the rule of law.
11. It has been mentioned that the Vilnius Regional
Administrative Court, the petitioner, disputes the compliance of
Paragraph 12 (wording of 18 January 2007) of Article 16 of the
Law on State Pensions of Officials and Servicemen with the
provision "each human being may <...> receive <...> social
security in the event of unemployment" of Paragraph 1 of Article
48 of the Constitution.
In this context, it needs to be noted that the relations of
social security which appear in the event of unemployment are not
regulated in Paragraph 12 (wording of 18 January 2007) of Article
16 of the Law on State Pensions of Officials and Servicemen. The
norm which is disputed by the petitioner regulates the relations
of different nature than those enshrined in the provision "each
human being may <...> receive <...> social security in the event
of unemployment" of Paragraph 1 of Article 48 of the
Constitution, therefore, there is no ground to state that
Paragraph 12 (wording of 18 January 2007) of Article 16 of the
Law on State Pensions of Officials and Servicemen is in conflict
with the provision "each human being may <...> receive <...>
social security in the event of unemployment" of Paragraph 1 of
Article 48 of the Constitution.
12. Taking account of the arguments set forth, one is to
draw a conclusion that Paragraph 12 (wording of 18 January 2007)
of Article 16 of the Law on State Pensions of Officials and
Servicemen is not in conflict with Paragraphs 1 and 2 of Article
23 of the Constitution, Article 29 thereof, the provision "each
human being may <...> receive <...> social security in the event
of unemployment" of Paragraph 1 of Article 48 thereof, Article 52
thereof, and with the constitutional principle of a state under
the rule of law.
Conforming to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Articles 1, 53, 54, 55 and 56 of
the Law on the Constitutional Court of the Republic of Lithuania,
the Constitutional Court of the Republic of Lithuania has passed
the following
ruling:
1. To recognise that Paragraph 2 (wording of 12 July 2000)
(Official Gazette Valstybės žinios, 2000, No. 64-1923) of Article
3 of the Republic of Lithuania Law on the State Pensions of
Officials and Servicemen of the Interior, the Special
Investigation Service, State Security, National Defence, the
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to the
Latter was not in conflict with the Constitution of the Republic
of Lithuania.
2. To recognise that Paragraph 2 of Article 3 of the
Republic of Lithuania Law on the State Pensions of Officials and
Servicemen of the Interior, the Special Investigation Service,
State Security, National Defence, the Prosecutor's Office, the
Department of Prisons and of the Establishments and State
Enterprises Which are Subordinate to the Latter (wording of 19
May 2005) (Official Gazette Valstybės žinios, 2005, No. 71-2558)
was not in conflict with the Constitution of the Republic of
Lithuania.
3. To recognise that Paragraph 5 (wording of 21 December
2000) (Official Gazette Valstybės žinios, 2000, No. 111-3579) of
Article 11 of the Republic of Lithuania Law on the State Pensions
of Officials and Servicemen of the Interior, the Special
Investigation Service, State Security, National Defence, the
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to the
Latter was in conflict with the constitutional principle of a
state under the rule of law.
4. To recognise that Paragraph 3 of Article 11 of Republic
of Lithuania Law on the State Pensions of Officials and
Servicemen of the Interior, the Special Investigation Service,
State Security, National Defence, the Prosecutor's Office, the
Department of Prisons and of the Establishments and State
Enterprises Which are Subordinate to the Latter (wording of 19
May 2005) (Official Gazette Valstybės žinios, 2005, No. 71-2558)
was in conflict with the constitutional principle of a state
under the rule of law.
5. To recognise that Paragraph 3 (Official Gazette Valstybės
žinios, 2005, No. 71-2558; 2007, No. 8-314) of Article 11 of the
Republic of Lithuania Law on State Pensions of Officials and
Servicemen is in conflict with the constitutional principle of a
state under the rule of law.
6. To recognise that Paragraph 12 (wording of 18 January
2007) (Official Gazette Valstybės žinios, 2007, No. 8-314) of
Article 16 of the Republic of Lithuania Law on State Pensions of
Officials and Servicemen is not in conflict with 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
Pranas Kuconis
Kęstutis Lapinskas
Zenonas Namavičius
Egidijus Šileikis
Algirdas Taminskas
Romualdas Kęstutis Urbaitis