Case No. 26/06
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
RULING
ON THE COMPLIANCE OF ARTICLE 30 (WORDING OF 19 MAY
2005) AND PARAGRAPH 4 (WORDING OF 19 MAY 2005) OF
ARTICLE 32 OF THE REPUBLIC OF LITHUANIA LAW ON STATE
SOCIAL INSURANCE PENSIONS WITH THE CONSTITUTION OF THE
REPUBLIC OF LITHUANIA
2 September 2009
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 sittingDaiva Pitrėnaitė,
in the presence of:
the representatives of the Seimas of the Republic of
Lithuania, the party concerned, who were Dalius Alfonsas
Barakauskas, a Member of the Seimas, and Jadvyga
Andriuškevičiūtė, the Head of Labour and Social Law Unit of the
Legal Department of the Office of the Seimas,
pursuant to Articles 102 and 105 of the Constitution of the
Republic of Lithuania and Article 1 of the Law on the
Constitutional Court of the Republic of Lithuania, in its public
hearing on 18 August 2008 heard constitutional justice case No.
26/06 subsequent to the petition (No. 1B-25/2006) of the Vilnius
Regional Administrative Court, the petitioner, requesting to
investigate as to whether the provisions of Paragraphs 2 and 4
(wording of 19 May 2005) of Article 32 of the Republic of
Lithuania Law on State Social Insurance Pensions to the extent
that, according to the petitioner, "in relation to the persons,
who, according to the previous legal regulation, upon recognising
a minimum loss of 40 percent of capacity to work, were granted
and paid the disability pension of Group III, the legal
regulation was established, according to which the lowest margin
of claim for the pension for lost capacity to work in the event
that the health status of these persons does not change
(improve), is the loss of 45 percent of capacity to work", are
not in conflict with Article 52 of the Constitution of the
Republic of Lithuania and the constitutional principle of a state
under the rule of law.
The Constitutional Court
has established:
I
The Vilnius Regional Administrative Court, the petitioner,
was investigating an administrative case. By its ruling the said
court suspended the consideration of the case and applied to the
Constitutional Court with a petition requesting to investigate as
to whether provisions of Paragraphs 2 and 4 (wording of 19 May
2005) of Article 32 of the Republic of Lithuania Law on State
Social Insurance Pensions to the extent that, according to the
petitioner, "in relation to the persons, who, according to the
previous legal regulation, upon recognising a minimum loss of 40
percent of capacity to work, were granted and paid the disability
pension of Group III, the legal regulation was established,
according to which the lowest margin of claim for the pension for
lost capacity to work in the event that the health status of
these persons does not change (improve), is the loss of 45
percent of capacity to work", is not in conflict with Article 52
of the Constitution of the Republic of Lithuania and the
constitutional principle of a state under the rule of law.
II
The petition of the Vilnius Regional Administrative Court,
the petitioner, is based on the following arguments.
The provisions of Paragraphs 2 and 4 (wording of 19 May
2005) of Article 32 of the Law on State Social Insurance
Pensions, under which, according to the petitioner, one
established the lowest limit of 45 percent of lost capacity to
work, instead of 40 (as established in the legal regulation,
which was valid by 1 July 2005), in the presence of which it is
possible to claim the state social insurance pension for lost
capacity to work, violate the rights of the persons who due to
the changed legal regulation lost the state social insurance
disability pension which had been previously granted and paid,
although their health status remained unchanged, i.e. the
established level of their lost capacity to work remained the
same.
The petitioner refers to the provisions of the official
constitutional doctrine, as formulated in the Constitutional
Court rulings, inter alia the one stating that one of the
essential elements of the principle of a state under the rule of
law which is entrenched in the Constitution is the principle of
legal security, that by amendments to the legal regulation the
legitimate interests and legitimate expectations of a person may
not be violated, 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, and has doubts whether Paragraphs 2 and
4 (wording of 19 May 2005) of Article 32 of the Law on State
Social Insurance Pensions to the extent that, according to the
petitioner, in relation to the persons, who, according to the
previous legal regulation, upon recognising the minimum loss of
40 percent of capacity to work, were granted and paid the
disability pension of Group III, one established the legal
regulation, according to which the lowest margin of claim for the
pension for lost capacity to work in the event that the health
status of these persons does not change (improve), is the loss of
45 percent of capacity to work, is not in conflict with Article
52 of the Constitution of the Republic of Lithuania and the
constitutional principle of a state under the rule of law.
III
In the course of preparation of the case for the
Constitutional Court hearing, written explanations were received
from the representatives of the Seimas, the party concerned, who
were D. A. Barakauskas, a Member of the Seimas, and Jadvyga
Andriuškevičiutė, the Head of Labour and Social Law Unit of the
Legal Department of the Office of the Seimas, which state that
Paragraphs 2 and 4 (wording of 19 May 2005) of Article 32 of the
Law on State Social Insurance Pensions (to the extent indicated
by the petitioner) are not in conflict with the Constitution. The
position of the representatives of the party concerned is based
on the following arguments.
1. According to D. A. Barakauskas, the representative of the
Seimas, the party concerned, since 1 July 2005 the procedure for
establishing disability (incapacity) has seen fundamental
changes, therefore one may not state that the degree of loss of
vocational capacity to work, which was set according to the
previous procedure for establishing disability (incapacity), is
identical to the level of capacity to work, which is set
according to the new procedure for establishing disability
(incapacity). In the opinion of D. A. Barakauskas, the principle
of legitimate expectations was not violated, because there exist
no grounds to claim the guarantees which were applied upon
establishing the disability of Group III, in the event that it is
not established that the person is partially capable of working.
D. A. Barakauskas believes that the provisions of Paragraphs 2
and 4 (wording of 19 May 2005) of Article 32 of the Law on State
Social Insurance Pensions are not in conflict with Article 52 of
the Constitution, because the said article consolidates the
discretion of the legislator to establish by law the cases of
payment of benefits, which are indicated in this article.
2. According to J. Andriuškevičiūtė, the representative of
the Seimas, the party concerned, Paragraphs 2 and 4 (wording of
19 May 2005) of Article 32 of the Law on State Social Insurance
Pensions did not establish any new rules of calculation or size
of state social insurance disability (lost capacity to work)
pensions, they were simply harmonised with each other alongside
paying heed to the criteria of setting a level of disability or
capacity to work, which are listed in the Law on the Social
Integration of Persons with Incapacities (wording of 11 May
2004).
In order not to violate the constitutional principle of a
state under the rule of law and to ensure protection of the
legitimate expectations, Articles 29, 30, 31 and 32 (wording of
11 May 2004) of the Law on the Social Integration of Persons with
Incapacities established the continuity (preservation) of the
rights of persons with incapacities that were acquired by 1 July
2005 for the entire period of the established disability.
Therefore, in the opinion of J. Andriuškevičiūtė, a conclusion is
to be drawn that, according to the legal regulation that was
valid by 1 July 2005, disability was set for a limited period
and, upon the expiry of the period of the disability, the
disability could be established upon a new procedure, having made
a new assessment of the health status of the person and the level
of his capacity to work. According to the representative of the
Seimas, when establishing the level of capacity to work, it is
not the health impairment that is of special importance, but the
personal functions that were changed because of the impairment,
which determine his capacity to work, to implement a previously
acquired vocational competence, or to acquire new vocational
competence, or to do work requiring lower vocational competence.
J. Andriuškevičiūtė also indicated that the right to the
state social insurance disability (lost capacity to work) pension
is only one of the rights established to the person with
incapacities, which are aimed at his integration into society;
the Law on the Social Integration of Persons with Incapacities
(wording of 11 May 2004) provides also for other measures that
create preconditions for persons with incapacities to compensate
their incapacity, for example, provision of services of
vocational rehabilitation, meeting special needs, etc. The
entirety of these measures creates preconditions for the
implementation of the right (which is the guaranteed by the
state, under Article 52 of the Constitution) of the citizens to
receive old age and disability pensions as well as social support
in the event of unemployment, sickness, widowhood, loss of
breadwinner, and in other cases provided for by laws.
Having considered the aforementioned arguments the
representative of the Seimas, the party concerned, concludes that
the rights of persons with incapacities were not limited or
revoked before the expiry of the period for which they have been
set for, therefore, by the established legal regulation one
protected the legitimate interests of persons with incapacities
and the Constitution was not violated.
IV
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were received
from Petras Baguška, the Minister of Justice of the Republic of
Lithuania, Rimantas Kairelis, the State Secretary of the Ministry
of Social Security and Labour of the Republic of Lithuania, Audra
Mikalauskaitė, Vice-minister of the Social Security and Labour of
the Republic of Lithuania, Nora Ribokienė, Vice-minister of
Health of the Republic of Lithuania, Irmantas Jarukaitis, Deputy
Director General of the European Law Department under the
Ministry of Justice of the Republic of Lithuania, Eduardas
Šablinskas, the President of the Dispute Commission under the
Ministry of Social Security and Labour, Zdislavas Skvarciany,
Director of the Disability and Work Capacity Assessment Office
under the Ministry of Social Security and Labour, Algimantas
Čepas, Director of the Institute of Law, as well as Prof. Habil.
Dr. Arvydas Virgilijus Matulionis, Director of the Social
Research Institute.
V
At the Constitutional Court hearing, D. A. Barakauskas and
J. Andriuškevičiūtė, the representatives of the Seimas, the party
concerned, virtually reiterated the arguments set forth in their
written explanations and provided additional explanations.
At the Constitutional Court hearing the specialists, who
were Eglė Čaplikienė, the Head of the Equal Opportunities
Division of the Equal Opportunities and Social Integration
Department of the Ministry of Social Security and Labour, and
Vytautas Radavičius, the Head of the Specialised Medical Services
Division of the Personal Health Department of the Ministry of
Health, took the stand and answered the questions that were
raised.
The Constitutional Court
holds that:
I
1. Article 32 "Calculation and Amount of the State Social
Insurance Pension in Case of Lost Capacity to Work" (wording of
19 May 2005) of the Law on State Social Insurance Pensions
established the following:
"1. The state social insurance pension for lost capacity to
work shall be calculated for those entitled to this pension by
summing up the basic and additional parts of the pension for lost
capacity to work. When calculating the additional part of the
pension for lost capacity to work, the period of receipt of
unemployment social insurance benefits (by 1 January 2005
unemployment allowances) (Item 2 of Paragraph 2 of Article 8)
shall be included in the period of the state social pension
insurance, and unemployment social insurance benefits (by 1
January 2005unemployment allowances) received during the period
of unemployment as included in the aforementioned periodin a
person's insured income (Article 14), where this is of benefit to
the person. The same provision shall also apply where a person
received the unemployment social insurance benefit in the year of
retirement due to the loss of capacity to work.
2. For the persons who have lost 75-100 percent of their
capacity to work and have the obligatory period of state social
pension insurance for the pension for lost capacity to work, the
basic part of the pension for lost capacity to work shall be
equal to 1.5 basic pensions, and for the persons who have lost
60-70 percent of their capacity to workto the basic pension.
Where a person's period of insurance is shorter than the
obligatory period of insurance, the basic part of his pension for
lost capacity to work shall be calculated by multiplying the
amount of 1.5 basic pensions for the persons who have lost 75-100
percent of their capacity to work and the amount of the basic
pension for the persons who have lost 60-70 percent of their
capacity to work by the period of insurance acquired by them and
dividing by the obligatory period of insurance.
3. The supplementary part of the pension for lost capacity
to work shall be calculated for the persons who have the period
of state social pension insurance acquired while working under an
employment contract or on the basis of membership or service, in
the same manner as the supplementary part of the state social
insurance old-age pension (Article 24), by including in the
period of insurance:
1) a person's entire period of state social pension
insurance acquired while working under an employment contract or
on the basis of membership or service (Paragraphs 2 and 3 of
Article 8 as well as Paragraph 1 and Items 1-9 of Paragraph 2 of
Article 54);
2) the number of years left until a person attains the age
for the old-age pension established for him (Articles 21 and 57).
If the person's period of state social pension insurance acquired
while working under an employment contract or on the basis of
membership or service is shorter than the obligatory period of
state social pension insurance for the pension for lost capacity
to work (Article 31), the period of insurance shall not include
the total number of years left until the age for the old-age
pension, but a proportionately smaller part thereof, which shall
be obtained by multiplying the number of the years left until the
age for the old-age pension by the period of state social pension
insurance acquired by the person while working under an
employment contract or on the basis of membership or service and
dividing it by the period of insurance obligatory for the pension
for lost capacity to work
4. The state social insurance pension for lost capacity to
work for the persons who have lost 45-55 percent of their
capacity to work shall be calculated in the same manner as for
the persons who have lost 60-70 percent of their capacity to work
and shall then be reduced by 50 percent."
2. Thus, Article 32 (wording of 19 May 2005) of the Law on
State Social Insurance Pensions, inter alia Paragraphs 2 and 4
thereof, the compliance of which with the Constitution (to the
corresponding extent) is disputed by the petitioner is aimed at
regulating the relations, linked to the calculation of the
pension for lost capacity to work and setting the amount of this
pension to the persons who are entitled thereto.
3. The Vilnius Regional Administrative Court, the
petitioner, requests to investigate, as to whether the provisions
of Paragraphs 2 and 4 (wording of 19 May 2005) of Article 32 of
the Law on State Social Insurance Pensions to the extent that,
according to the petitioner, "in relation to the persons, who,
according to the previous legal regulation, upon recognising a
minimum loss of 40 percent of capacity to work, were granted and
paid the disability pension of Group III, the legal regulation
was established, according to which the lowest margin of claim
for the pension for lost capacity to work in the event that the
health status of these persons does not change (improve), is the
loss of 45 percent of capacity to work", are not in conflict with
Article 52 of the Constitution and the constitutional principle
of a state under the rule of law.
The doubts of the petitioner concerning the compliance of
the aforementioned provisions of Article 32 (wording of 19 May
2005) of the Law on State Social Insurance Pensions with the
Constitution appeared due to fact that, according to the
petitioner, the persons, in the respect of whom the loss of 40
percent of capacity to work is established, are not granted the
pension for lost capacity to work, although according to the
previous legal regulation such persons were granted the
disability pension. According to the petitioner, by the legal
regulation entrenched in Paragraphs 2 and 4 (wording of 19 May
2005) of Article 32 of the Law on State Social Insurance
Pensions, one increased the lowest limit of lost capacity to work
from 40 to 45 percent of lost capacity to work, therefore the
persons to whom the lost capacity to work of 40 percent was
established according to the previous legal regulation were
granted and paid the disability pension of Group III, lost the
right to receive the pension for lost capacity to work, which is
provided for in the law at present.
4. Although the Vilnius Regional Administrative Court, the
petitioner, requests to investigate inter alia the compliance of
Paragraph 2 (wording of 19 May 2005) of Article 32 of the Law on
State Social Insurance Pensions with the Constitution and
indicates that this paragraph consolidates "the lowest level, in
the presence of which one may aspire to the pension for lost
capacity to work", however, the aforementioned Paragraph 2
(wording of 19 May 2005) of Article 32 of the Law on State Social
Insurance Pensions did not (and does not) establish the minimum
level of lost capacity to work that is necessary in order to
receive the pension for lost capacity to work. This paragraph
regulated (and regulates) only the relations of calculation of
the pension for lost capacity to work of the persons who lost a
major capacity (75-100 and 60-70 percent) to work. Thus Paragraph
2 (wording of 19 May 2005) of Article 32 of the Law on State
Social Insurance Pensions, which is disputed by the petitioner,
was (and is) aimed at calculation of the pension for lost
capacity to work of the persons who lost 60-100 percent of their
capacity to work, and it did not (and does not) entrench the
minimum level of lost capacity to work that is necessary in order
to be eligible for the pension for lost capacity to work. It
means that the petitioner requests to investigate the compliance
of the provision of Paragraph 2 (wording of 19 May 2005) of
Article 32 of the Law on State Social Insurance Pensions, which
the court will not need to apply in the case examined by it, with
the Constitution.
5. It is obvious from the petition of the petitioner and the
material of the administrative case, in which one decided to
apply to the Constitutional Court, that in the administrative
case one solves a dispute concerning the establishment of the
level of capacity to work, which is related to an accident at
work. According to the previous legal regulation, the disability
group (Group III) was established to J. R., whose application was
examined by the Vilnius Regional Administrative Court, the
petitioner, upon assessing the loss of his vocational capacity to
work and establishing the degree of loss of vocational capacity
to work (40 percent). Having consolidated the new legal
regulation, according to which the person may be entitled to the
pension for lost capacity to work, if he has not more than 55
percent of capacity to work (i.e. if the person has lost not less
than 45 percent of capacity to work), the capacity to work of 60
percent (lost capacity to work of 40 percent) was established to
J. R. and he was deprived of the right to the pension for lost
capacity to work.
For this reason the Constitutional Court in this
constitutional justice case will examine whether the provision
"The state social insurance pension for lost capacity to work to
the persons, who lost 45-55 percent of capacity to work, shall be
calculated in the same manner as to the persons, who lost 60-70
percent of capacity to work <
>" of Paragraph 4 (wording of 19
May 2005) of Article 32 of the Law on State Social Insurance
Pensions to the extent that it establishes that the pension for
lost capacity to work is calculated to the persons, when they
have lost at least 45 percent of capacity to work, is not in
conflict with Article 52 of the Constitution and the
constitutional principle of the state under the rule of law.
II
1. It has been mentioned that the petitioner has doubts
concerning the compliance of the legal regulation entrenched in
Paragraph 4 (wording of 19 May 2005) of Article 32 of the Law on
State Social Insurance Pensions and grounds this doubt on the
increase of the minimum level of lost capacity to work, which is
consolidated in the Law on State Social Insurance Pensions
(wording of 19 May 2005), and upon establishing which the person
becomes entitled to the pension for lost capacity to work
(previouslydisability pension). Therefore, when deciding in this
constitutional justice case whether the legal regulation (to the
respective extent) which is disputed by the petitioner and which
is set forth in Paragraph 4 (wording of 19 May 2005) of Article
32 of the Law on State Social Insurance Pensions is not in
conflict with the Constitution, it is necessary to find out, on
the one hand, what model of establishing disability (inter alia
the bases and conditions of acquiring the right to the disability
pension) was consolidated prior to 1 July 2005, when the Law on
State Social Insurance Pensions (wording of 19 May 2005) and the
Republic of Lithuania Law on the Social Integration of Persons
with Incapacities (wording of 11 May 2004) came into force (when
inter alia the bases of social integration of the disabled and
the system of disability pensions were reorganised, and the model
of establishment of lost capacity to work (the level of capacity
to work) was entrenched instead of the model of establishing the
disability), and, on the other hand, what model of establishing
the lost capacity to work (level of capacity to work) (inter alia
the bases and conditions of acquisition of the right to the
pension for lost capacity to work) was (and is) consolidated in
the laws of the Republic of Lithuania after the Law on State
Social Insurance Pensions (wording of 19 May 2005) came into
force on 1 July 2005.
2. When the independent State of Lithuania was restored on
11 March 1990 and creation of the national legal system began,
the regulation of relations linked to establishment of person's
disability, granting the disability pensions for a certain period
was based on the model of establishing disability which had been
formed during the previous period of time.
It should be mentioned that by the Republic of Lithuania Law
on Improvement of Providing Residents with Pensions of 28 July
1990, which was adopted by the Supreme Council of the Republic of
Lithuania and which came into force (with a certain exception) on
1 January 1991, and which with certain amendments and supplements
is still valid at present, one established the bases and
conditions for providing pensions, inter alia the size of
disability pensions for certain categories of people.
On 23 October 1990, the Supreme Council adopted the Republic
of Lithuania Law on the Bases of State Social Assistance System,
which came into force (with a certain exception) on 1 January
1991 and is still valid. Article 3 of this law inter alia
provides that in cases established by law, the social security
shall apply to the disabled.
On 28 November 1991, the Supreme Council adopted the
Republic of Lithuania on the Social Integration of the Disabled,
which came into force (with certain exceptions) on 15 December
1991. Article 1 (wordings of 28 November 1991 and 22 October 1998
with subsequent amendments and supplements made by 4 November
2004) of this law indicated that the Law on the Social
Integration of the Disabled regulates inter alia the
establishment of disability. Paragraph 1 (wording of 28 November
1991) of Article 4 "Establishment of Disability" of the Law on
the Social Integration of the Disabled inter alia sets forth that
the disability shall be established: 1) for children who are
under 16 years of ageby commissions of medical and social
experts from state institutions of treatment and prevention as
well as from specialised institutions whose bylaws shall be
approved by the Ministry of Health; 2) for individuals who are 16
years of age and olderby state commissions of medical and social
expertise (hereinafter referred to also as SCMSE) whose bylaws
shall be approved by the Government. Pursuant to Paragraph 2
(wording of 28 November 1991) of Article 4 of this law, the
aforementioned commissions had the right to adopt decisions on
the fact of disability, its character, cause, time of origin,
group, term, and degree of the person's loss of general or
vocational capacity to work, the means for the medical,
vocational and social rehabilitation of the disabled, the
conditions and character of the development, training and work of
the disabled, the necessity of permanent nursing of the disabled,
and special compensational means for the disabled.
On 19 July 1994, the Seimas adopted the Republic of
Lithuania Law on the Health System, which came info force (with
certain exceptions) on 17 August 1994. Paragraph 1 (wording of 19
July 1994) of Article 5 of this law provided that the purposes of
health activities are inter alia protection of the persons
against disability (Item 2).
On 1 December 1998, the Seimas adopted the Republic of
Lithuania Law on Amending the Law on the Health System, which
came into force on 23 December 1998. By this law the Law on the
Health System (wording of 19 July 1994 with subsequent amendments
and supplements) was amended and set forth in a new wording.
Paragraph 1 (wording of 1 December 1998) of Article 27 of the Law
on the Health System established that in case of a long-term and
permanent loss of capacity to work the medical and social
examination shall be carried out upon the procedure established
by the Ministry of Health and the Ministry of Social Security and
Labour.
3. On 18 July 1994, the Seimas adopted the Law on State
Social Insurance Pensions, which came into force on 1 January
1995. This law was aimed at regulation of the relations linked to
the state social insurance pensions, inter alia disability
pensions.
Article 4 (wording of 18 July 1994) of the Law on State
Social Insurance Pensions established: "According to this law one
shall grant the state social insurance old-age, disability,
survivors' and orphans' (loss of breadwinner) pensions."
Pursuant to Paragraph 1 (wording of 18 July 1994) of Article
27 of this law, the person could become eligible to the state
social insurance disability pension, when he was rated as a
disabled, if on the day of establishing the disability he had the
obligatory period of state social pension insurance as defined by
laws. An exception was set forth to this general rule. For
example, pursuant to Paragraph 1 (wording of 18 July 1994) of
Article 28 of this law, it was established that the persons who
are less than 23 years of age and who are rated as the disabled
or as the one with more severe group of disability during the
period of state social pension insurance, are granted the right
to receive the state social insurance disability pension while
considering that they meet the requirements of the minimum and
compulsory insurance period in order to become eligible to the
disability pension.
Article 25 "Definition of Disability" of the Law on State
Social Insurance Pensions defined that "disability is a full or
partial loss of capacity to work, which is permanent or remaining
upon the expiry of the period of payment of illness benefit and
which restricts person's possibilities to engage in an activity
that generates income".
Thus, pursuant to Article 25 of this law, the disability is
associated with a certain long-term loss of person's capacity to
work, which restricts the person's possibility to engage in an
activity that generates income. It means that the purpose of the
disability pension, as consolidated in the Law on State Social
Insurance Pensions, was a respective compensation to the person
for the income lost due to the loss of his capacity to work.
In this context one should note that a broader notion of the
disability was presented in the Law on the Social Integration of
the Disabled. Paragraph 1 (wording of 28 November 1991) of
Article 3 of this law established that "disability is the
condition of an individual, as established by competent
institutions, which due to a congenital or acquired physical or
mental defect, totally or partially incapacitates the individual
from taking care of his private or social life, from enjoying his
rights and from fulfilling his duties."
4. Paragraph 1 (wording of 18 July 1994) of Article 26 of
the Law on State Social Insurance Pensions established that,
having taken into account the level of lost capacity to work,
three groups of disability are set forth for the purposes of
calculation of pensions (Paragraph 2 (wording of 18 July 1994) of
this law established that groups of disability, the causes, the
time of appearance and the period of the disability are set by
the SCMSE in accordance with the bylaws that are approved by the
Government).
Paragraph 2 (wordings of 28 November 1991 and 22 October
1998) of Article 3 of the Law on the Social Integration of the
Disabled established that "according to the degree of
manifestation, disability shall be divided into three groups (I,
II and III). The loss of general or vocational capacity to work
shall be expressed in percentage <
>". Item 1 (wording of 22
October 1998) of Paragraph 3 of Article 4 of this law prescribed
that commissions establishing disability shall adopt decision
inter alia concerning the establishment of the degree of general
and vocational loss of capacity to work.
These laws did not disclose the content of the notions "loss
of general capacity to work" and "loss of vocational capacity to
work" that are used in the Law on the Social Integration of the
Disabled (wordings of 28 November 1991 and 22 October 1998), and
they did not establish as to what particular level of lost
capacity to work is associated with the respective group of
disability. Moreover, they did not consolidate the minimum degree
of lost capacity to work, in the event of which the person could
become eligible to the state social insurance disability pension,
and they did not include provisions regulating the periods of
establishing the disability, inter alia the criteria of
differentiating these periods.
The aforementioned relations (to a certain extent) were
regulated by a sub-statutory legal actthe Procedure for
Establishing the Long-term and Permanent Loss of Capacity to Work
(Disability) (hereinafter referred to as the Procedure for
Establishing the Disability), which was approved by Item 1.1 of
Resolution No. 226/49 "On the Approval of the Procedure for
Establishing the Long-Term and Permanent Loss of Capacity to Work
(Disability)" of the Minister of Health and the Minister of
Social Security and Labour of 28 April 2000.
5. The Procedure for Establishing the Disability (wording of
28 April 2000 with subsequent amendments) established that SCMSE
passes an individual decision on the person's capacity to work by
taking into account the course of illness, prognosis of capacity
to work, employment possibilities and other social factors (Item
10); the reasons of disability, inter alia common illnesses,
occupational disease, may be established (Item 38).
Capacity to work is "a person's ability and possibility to
do work that does not require special knowledge, qualification
and skills" (Item 15); vocational capacity to work is "a person's
ability and possibility to perform a job under his profession
that requires special knowledge, qualification, work experience
(skills). When assessing the vocational capacity to work one
takes into account also the ability and possibilities of the
person to do, by using the acquired knowledge, qualification and
skills, a job of similar profession and to learn a new
profession" (Item 16). Item 12 (wording of 28 April 2000) of the
Procedure for Establishing the Disability established inter alia
that the loss of vocational capacity to work is expressed in
percentage.
In Item 28 of the Procedure for Establishing the Disability
(wording of 28 April 2000 with subsequent amendments) one
presented a list of states of organism of a person, due to which
the disability of Group I is established, in Item 31a list of
states of organism of a person, due to which the disability of
Group II is established, and in Item 33a list of states of
organism of a person, due to which the disability of Group III is
established.
It was established in Item 32 of the Procedure for
Establishing the Disability (wording of 28 April 2000 with
subsequent amendments) that "the disability of Group III shall be
established to the persons: 32.1. who, due to the state of their
organism, face a loss of vocational qualification or it becomes
lost, and capacity to work becomes lower by one third (1/3); 32.
2. in case of certain states of organism, where vocational factor
is not taken into account (anatomic defects, etc.)", and in Item
33 one presented a list of states of organism of a person, due to
which the disability of Group III is established.
It should be noted that in Chapter V (Items 32-33) of the
Procedure for Establishing the Disability (wording of 28 April
2000 with subsequent amendments) that regulated the establishment
of the disability of Group III, there was not a single social
criterion indicated, which should be taken into account when
establishing the disability of Group III to the person.
Item 35 of the Procedure for Establishing the Disability
(wording of 28 April 2000 with subsequent amendments) prescribed
inter alia that in the course of establishing the degree of loss
of vocational capacity to work, its size is set to be
proportionate to the disability as follows: Group Iloss of
vocational capacity to work of 90-100 percent, Group II65-100
percent, Group III30-60 percent. This item also prescribed that
the SCMSE establishes to the person, who suffered from several
events insured against, a general percentage of lost capacity to
work and indicates the level of lost capacity to work per every
event individually, however, the general percentage of lost
capacity to work of the person, who suffered from several events,
may not exceed 100 percent (Item 35.9 (wording of 25 May 2004)).
Thus, the person, to whom one established the level of lost
vocational capacity to work of 30 percent, was entitled to the
state social insurance disability pension (disability of Group
III).
In this context it should be noted that the Procedure for
Establishing the Disability (wording of 28 April 2000 with
subsequent amendments) did not contain any provisions
consolidating a requirement in the course of establishing the
group of disability, when the disability cause is a common
illness (not a occupational disease) to establish the degree of
the loss of capacity to work; it did not establish that the
degree (size) of the loss of capacity to work should be adjusted
to the respective group of disability, moreover, it did not
establish the minimum degree of the loss of capacity to work, in
the presence of which the person used to acquire the right to
obtain the disability group (save the exception, where this is
caused by the reduced vocational capacity to work (capacity to
work becomes reduced by at least 1/3)).
Item 36 (wording of 28 April 2000) of the Procedure for
Establishing the Disability established that the disability may
be established for a limited and unlimited period.
According to Item 37 (wording of 28 April 2000) of the
Procedure for Establishing the Disability, the disability for an
unlimited period was established in the following cases: during
the primary inspection due to very serious illnesses or traumas,
anatomical or psychical defects, and in cases where the clinical
prognosis and that of capacity to work of the person raise no
doubts (Item 37.1); in cases of changing processes, where the
disabled person was under observation for at least 4 years and,
upon applying measures of medical, vocational and social
rehabilitation, permanent and irreversible morphological and
functional changes occurred in his organism (Item 37.2.); when,
in the event that no changes of the type as indicated in Item
37.2. are present, the issue of establishing the disability for a
limited period is decided individually during every repeated
examination, however, for no longer than 10 years (Item 37.3);
and for the persons who reached the age of pension, except the
cases where the disability group was established for the purposes
of rehabilitation (Item 37.4).
According to Item 36 (wording of 28 April 2000) of the
Procedure for Establishing the Disability, the issue of
establishing a limited period of disability was decided
individually; in case of predicting an efficient rehabilitation,
a group of disability could be established for the period of 6
months or one year, and in case of not predicting an efficient
rehabilitation, a group of disability could be established for
two years.
6. It should be noted that the Procedure for Establishing
the Disability (wording of 28 April 2000 with subsequent
amendments) did not contain any provisions that separately
regulate the period, for which the deadlines of disability are to
be set in the course of indicating the level of loss of
vocational capacity to work and the group of disability.
Thus, the periods of disability as indicated in Items 36 and
37 of the Procedure for Establishing the Disability (wording of
28 April 2000 with subsequent amendments) are to be applied inter
alia in cases of accidents (incapacitation at work) and
occupational disease.
7. The disability for the person for a limited or unlimited
period prior to the model of establishing the lost capacity to
work (level of capacity to work), which was consolidated in the
laws that came into force on 1 July 2005, had to be established
according to medical and social criteria. Paragraph 3 (wording of
28 November 1991) of Article 3 of the Law on the Social
Integration of the Disabled established that medical and social
criteria of disability are regulated by the Ministry of Health
and the Ministry of Social Security. Having amended the Law on
the Social Integration of the Disabled and having set it forth in
a new wording of 22 October 1998, Paragraph 5 of Article 3
established that medical and social criteria of disability and
disability of full incapacity are regulated by the Ministry of
Health and the Ministry of Social Security and Labour.
Thus, the content of the provision of the Law on the Social
Integration of the Disabled (wording of 28 November 1991) from
the aspect that medical and social criteria were assigned to be
regulated by the ministries as indicated in the law, remained
unchanged and was valid till 1 July 2005.
It should be noted that neither the Instruction on
Establishment of the Disability as approved by Order No. 1-4031
of the Minister of Health of 9 December 1991 and Order No. 13-
2229 of the Minister of Social Security of 5 December 1991, which
entrenched inter alia the criteria of establishment of disability
groups, nor the Procedure for Establishing the Disability as
approved by Order No. 226/49 of the Minister of Health and the
Minister of Social Security and Labour of 28 April 2000, which
established the list of states of organism of a person, due to
which the respective group of disability (Group I, II or III) was
established, indicate as to which criteria are medical and which
are social, whereas Chapter V of the aforementioned Procedure
(wording of 28 April 2000) which, as already mentioned, regulated
establishment of the disability of Group III, only provided a
list of states of organism that are the basis for establishing
the disability of Group III.
8. Summing up the legal regulation entrenched in the Law on
State Social Insurance Pensions (wording of 18 July 1994 with
subsequent amendments and/or supplements) and the Law on the
Social Integration of the Disabled (wordings of 28 November 1991
and 22 October 1998), which was valid by 1 July 2005, in the
context of the constitutional justice case at issue it should be
noted that Paragraph 1 (wording of 18 July 1994) of Article 26 of
the Law on State Social Insurance Pensions established that,
having considered the degree of the loss of capacity to work,
three groups of disability are established for the purposes of
pensions' calculation. Paragraph 2 (wordings of 28 November 1991
and 22 October 1998) of Article 3 of the Law on the Social
Integration of the Disabled provided that "according to the
degree of manifestation, disability shall be divided into three
groups (I, II and III)".
The aforementioned laws did not entrench as to how the level
of loss of vocational capacity to work, in the course of its
establishment, should be harmonised with the group of disability.
This was set forth in a sub-statutory legal actthe Procedure for
Establishing the Disability (wording of 28 April 2000 with
subsequent amendments) as approved by the order of the Minister
of Health and the Minister of Social Security and Labour (Item 35
of this Procedure indicates that when establishing the degree of
loss of vocational capacity to work, its size is adjusted inter
alia as follows: Group III30-60 percent. Thus the person, to
whom the degree of loss of vocational capacity to work was
established to be 30 percent, had the right to become entitled to
the state social insurance disability pension (disability of the
Group III)).
In the event that the disability was caused by a common
illness (not an occupational disease), neither laws, nor the
Procedure for Establishing the Disability (wording of 28 April
2000 with subsequent amendments) established how the level (size)
of loss of capacity to work must be adjusted to the respective
group of disability, moreover, the minimum degree of loss of
capacity to work, in the event of establishment of which the
person could become eligible to the state social insurance
disability pension (except Group III of disabilityin cases where
it was established for the persons, whose vocational
qualification was reduced or lost due to their state of organism,
the capacity to work was reduced by at least 1/3) was not
consolidated.
Alongside, it should be noted that for the purposes of
establishing the disability of Group III (when one does not take
into account the vocational factor) the Procedure for
Establishing the Disability (wording of 28 April 2000 with
subsequent amendments) indicated only the list of states of
organism of a person, due to which the disability of Group III is
established, and it did not provide for a single social
criterion, although Paragraph 5 (wording of 22 October 1998) of
Article 3 of the Law on the Social Integration of the Disabled
established that medical and social criteria of disability must
be regulated by the Ministry of Health and the Ministry of Social
Security and Labour.
The laws (the Law on the Social Integration of the Disabled
(wordings of 28 November 1991 and 22 October 1998) and the Law on
State Social Insurance Pensions (wording of 18 July 1994) did not
contain any provisions regulating the periods of establishing the
disability, inter alia the criteria of differentiating these
periods. The Procedure for Establishing the Disability (wording
of 28 April 2000 with subsequent amendments) as approved by the
order of the ministers defined the criteria, according to which
the disability group is established for an unlimited and limited
period (6 months, one or two years).
9. On 19 May 2005, the Seimas adopted the Republic of
Lithuania Law on Amending the Law on State Social Insurance
Pensions (pursuant to Article 2 thereof this law became valid on
1 July 2005), by Article 1 of which it amended the Law on State
Social Insurance Pensions (wording of 18 July 1994 with
subsequent amendments and/or supplements) and set it forth in a
new wording.
10. Article 4 (wording of 19 May 2005) of the State Social
Insurance Pensions inter alia provides:
"1. As of 1 July, the following state social insurance
pensions shall be established:
1) Old-age pension;
2) Pension for lost capacity to work;
3) Survivor's and orphan's pension.
2. In accordance with the procedure laid down by this Law,
until the expiry of the term of payment or until the granting of
state social insurance old-age or pension for lost capacity to
work in replacement thereof, the following pensions shall
continue to be paid:
<
>
1) Disability pensions granted prior to 1 July 2005 <
>"
Thus, in this law the pension for lost capacity to work was
consolidated in replacement of the disability pension and it
established that previously granted pensions shall continue to be
paid for the respective period as defined in the law.
11. It should be noted that despite the fact that Paragraph
3 (wording of 19 May 2005) of Article 41 of the aforementioned
law inter alia provides that "state social insurance pensions
shall be granted for lifetime or for a period during which the
recipient of the pension remains entitled, under this Law, to the
pension granted", however, the period for which the person, under
this law, remains entitled to receive the granted pension for
lost capacity to work is not established in this law.
12. The right to receive the state social insurance pension
for lost capacity to work is provided for in Article 28
"Entitlement to the State Social Insurance Pension for Lost
Capacity to Work" of the Law on State Social Insurance Pensions.
Article 28 (wording of 19 May 2005) of the Law on State Social
Insurance Pensions provides that "the persons who, in accordance
with the procedure laid down by the Law on the Social Integration
of Persons with Incapacities, have been established a level of
capacity to work and who are rated as incapable or partially
capable of working <
> shall be entitled to the social insurance
pension for lost capacity to work where these persons fulfil the
conditions established in Articles 30 and 31 of this Law".
Paragraph 1 (wording of 19 May 2005) of Article 29
"Establishment of a Level of Capacity to Work and Percentage of
Lost Capacity to Work" of the Law on State Social Insurance
Pensions inter alia provides that a person's level of capacity to
work, reason thereof, time of occurrence, time limit and
percentage of the person's lost capacity to work shall be
established by the Disability and Work Capacity Assessment Office
under the Ministry of Social Security and Labour (hereinafter
also referred to as the Disability and Work Capacity Assessment
Office).
Article 30 "Conditions of the Granting of the Pension for
Lost Capacity to Work" (wording of 19 May 2005) of the Law on
State Social Insurance Pensions provides that the person to whom
a level of capacity to work is established for the first time and
who is rated as incapable or partially capable of working shall
become entitled to the state social insurance pension for lost
capacity to work, provided on the day of rating him as incapable
or partially capable of working he has the minimum period of
state social pension insurance for the pension for lost capacity
to work (Paragraph 1); the person not entitled to the state
social insurance pension for lost capacity to work under the
condition indicated in Paragraph 1 of this article shall become
entitled to it where he has the minimum period of state social
pension insurance for the pension for lost capacity to work on
the day of rating him as incapable or partially capable of
working after a repeated examination or on the day of application
for the pension (Paragraph 2).
Article 31 "Minimum and Obligatory Period of State Social
Pension Insurance for the Pension for Lost Capacity to Work" of
the Law on State Social Insurance Pensions (wording of 19 May
2005) establishes inter alia the minimum state social pension
insurance period in order to become entitled to the pension for
lost capacity to work, which should be attained by the persons
who are rated as incapable or partially capable of working.
According to Paragraph 1 (wording of 19 May 2005) of Article 31
of this law, the minimum period of 2 months of the state social
pension insurance period in order to become eligible for the
pension for lost capacity to work is established to the persons
up to 22 years of age who are rated as incapable or partially
capable of working.
Thus, the person is entitled to the state social insurance
pension for lost capacity to work in case the following
conditions are in place: 1) the established (under the Law on the
Social Integration of Persons with Incapacities) level of
person's capacity to work is such that the person is rated as
incapable or partially capable of working; 2) the person has
attained the state social pension insurance period as defined by
the law (in certain cases the minimum period of 2 months).
13. Having consolidated the model of establishing the lost
capacity to work (level of capacity to work) (since 1 July 2005),
the laws consolidate (consolidated) also a notion of the level of
capacity to work and the minimum level of lost capacity to work
which is necessary in order to become eligible to the pension for
lost capacity to work.
According to Article 2 (wording of 11 May 2004) of the Law
on the Social Integration of Persons with Incapacities, the level
of capacity to work is "the person's ability to carry out the
previously obtained vocational competence and to acquire new
vocational competence, or to do the work that needs lower
vocational competence" (Paragraph 3); the person with
incapacities is "the person to whom, upon the procedure
established in this law, the level of incapacity or the level of
capacity to work of lower than 55 percent, and/or the necessity
of meeting the special needs is established" (Paragraph 8);
special support measures are "the measures of meeting the special
need, which are intended to ensure equal training, vocational and
social possibilities, as well as a possibility of a full-fledged
integration into society, to the person with incapacitiesthe
recipient of such measures" (Paragraph 11).
14. After the model of establishment of the lost capacity to
work (level of capacity to work) was consolidated, the capacity
to work under Paragraph 4 (wording of 11 May 2004) of Article 20
of the Law on the Social Integration of Persons with Incapacities
is established upon assessing the state of health of the person
and his possibilities to do the work under the held
qualification, to acquire new qualification or to do the work
that does not require vocational qualification after all possible
measures of medicinal and vocational rehabilitation as well as
the special measures were applied.
Paragraph 7 (wording of 11 May 2004) of Article 20
"Establishment of the Level of Capacity to Work" of the Law on
the Social Integration of Persons with Incapacities provides:
"Capacity to work is assessed in percentage and its level is
established by intervals of 5 points, i.e.:
1) if the established capacity to work of the person is 0-25
percent, the person is rated as incapable of working;
2) if the established capacity to work of the person is 30-
55 percent, the person is rated as partially incapable of
working;
3) if the established capacity to work of the person is 60-
100 percent, the person is rated as capable of working."
Thus, in the aforementioned law it is established how the
level of capacity to work is linked with the percentage of the
lost capacity to work, moreover, the law establishes that the
person enjoys the right to the pension for lost capacity to work,
if he has acquired the state social pension insurance period as
defined in the law, and the level of capacity to work established
to him does not exceed 55 percent (i.e. the person has lost at
least 45 percent of the capacity to work), and special needs may
be established for the person in order to ensure equal rights in
all spheres of life, inter alia his vocational activity.
15. Paragraph 8 (wording of 11 May 2004) of Article 20 of
the Law on the Social Integration of Persons with Incapacities
provides that the criteria and procedure for establishing the
level of capacity to work is defined by the Ministry of Social
Security and Labour together with the Ministry of Health.
When vocational rehabilitation is not possible due to severe
functional disorders of the person's organism or is not
reasonable due to the person's age, the level of capacity to work
is established according to medicinal criteria (Paragraph 5
(wording of 11 May 2004) of Article 20 of the Law on the Social
Integration of Persons with Incapacities).
16. Thus, when establishing the level of capacity to work of
the person who has the state social pensions insurance period as
provided for in the law, one assesses the state of health of the
person and his possibilities to do the work under his current or
other vocational qualification, as well as to do other work that
does not require vocational qualification. It should be noted
that the aforementioned assessment is carried out when the
measures of medicinal and vocational rehabilitation, as well as
special assistance have been applied, save the cases where
vocational rehabilitation is not possible due to severe
functional disorders of the person's organism or is not
reasonable due to the person's age.
17. On 21 March 2005, the Minister of Social Security and
Labour and the Minister of Health issued Order No. A1-78/V179 "On
the Approval of the Inventory Schedule of Criteria for
Establishment of the Level of Capacity to Work and the Inventory
Schedule of the Procedure for Establishment of the Level of
Capacity to Work" (which came into force on 1 July 2005), by Item
1 of which the Inventory Schedule of Criteria for Establishment
of the Level of Capacity to Work and the Inventory Schedule of
the Procedure for Establishment of the Level of Capacity to Work
were approved.
Item 3 (wording of 21 March 2005) of the Inventory Schedule
of Criteria for Establishment of the Level of Capacity to Work
provides:
"3. The level of a person's capacity to work is established
upon assessing the following criteria:
3.1. medicinal, i.e. persons basic capacity to work (Annex
1);
3.2. functional (Annex 2);
3.3. vocational and other criteria that affect the person's
capacity to work and possibilities of getting a job (Annex 2)."
Annex 1 to the Inventory Schedule of Criteria for
Establishment of the Level of Capacity to Work submits a list of
illnesses with respectively assigned percentage of the basic
capacity to work. This list indicates the percent of the basic
capacity to work (quite oftenin a certain interval) that are
assigned to particular illnesses (health disorders) (for example,
Item 15.2 (wording of 16 June 2005) of Annex 1 of the Inventory
Schedule of Criteria for Establishment of the Level of Capacity
to Work): "Illnesses of peripheral nervous system, neuromuscular
copula and muscles: <
> 15.2. average functional disorder
80-50%.").
It is obvious from the Inventory Schedule of Criteria for
Establishment of the Level of Capacity to Work that, when
deciding upon the establishment of the level of capacity to work,
one assesses first of all the person's basic capacity to work
(medicinal criteria), by taking into account the state of health
of the person and all illnesses or traumas that affect his
capacity to work, as well as functional disorders related thereto
(Item 4 (wording of 21 March 2005)). The basic capacity to work
is assessed in percents: from 0 to 25 percent, from 30 to 55
percent, from 60 to 100 percent (Item 9 (wording of 2 May 2006)).
It should be noted that the Inventory Schedule of Criteria
for Establishment of the Level of Capacity to Work prescribes
that one must assess all illnesses or traumas that affect a
person's capacity to work, as well as functional disorders
related thereto (Items 5 and 6 (wording of 21 March 2005 as
amended on 22 May 2009).
The functional criteria (related to the respective number of
hours that the person is capable of working) (Item 11 (wording of
21 March 2005)), vocational and other criteria that affect the
person's capacity to work and his possibilities of getting a job
(education, vocational qualification, work experience and skills
that may be applied by the person in his place of work, age,
adjustment of physical, vocational and informational environment
of the person) (Item 12 (wording of 2 May 2006)).
Functional, vocational and other criteria that affect the
person's capacity to work and his possibilities of getting a job
are treated as circumstances of average favour to the work, not
favourable to work and favourable to work (Items 13-15 (wording
of 21 March 2005 as amended on 2 May 2009). Where, in the course
of assessment of the level of person's capacity to work, the
circumstances unfavourable to work comprise the majority and the
conditions unfavourable for work are established to the person,
the percentage of his basic capacity to work is multiplied by
coefficient 0.7 (Item 17 (wording of 21 march 2005)). Where, in
the course of assessment of the level of a person's capacity to
work, the circumstances of average favour for work comprise the
majority and the circumstances of average favour for work are
established to the person, the percentage of his basic capacity
to work are multiplied by coefficient 1 (Item 18 (wording of 21
March 2005)). Where, in the course of assessment of the level of
a person's capacity to work, the favourable circumstances for
work comprise the majority and the favourable conditions for work
are established to the person, the percentage of his basic
capacity to work are multiplied by coefficient 1.3 (Item 19
(wording of 21 March 2005)).
Alongside, it should be noted that in the course of
assessing the level of capacity to work of the person who
successfully completed the programme of vocational
rehabilitation, one condition favourable for work is added (Item
21 (wording of 2 May 2006)).
The level of capacity to work is assessed only according to
the medicinal criteria, irrespective of the functional,
vocational and other criteria (unless the person himself request
to do so), in cases where the person's basic capacity to work
amounts from 0 to 15 percent (Item 24 (wording of 21 March
2005)).
Thus, in the context of the constitutional justice case at
issue, one should note that pursuant to the legal regulation
established in the Inventory Schedule of Criteria for
Establishment of the Level of Capacity to Work (wording of 21
March 2005 with subsequent amendments), the level of the person's
capacity to work is established by assessing not only the state
of organism of the person (medicinal criteria), but other factors
(criteria), too (save one reservationwhen the person's basic
capacity to work amounts from 0 to 15 percent).
18. Item 1 of the Inventory Schedule of the Procedure for
Establishment of the Level of Capacity to Work (wording of 21
March 2005) indicates that this description inter alia regulates
the establishment of the period of the level of capacity to work.
Item 31 of this inventory schedule (wording of 21 March 2005 as
amended on 2 May 2006) inter alia provides that the level of
capacity to work may be established for an unlimited period in
cases where the level of capacity to work is set due to accident
(mutilation) at work or occupational disease (Item 31.6).
The level of capacity to work is set for a limited period:
1) for the period of 6 months; 2) for the period of one year; 3)
for the period of two years; 4) until the end of the programme of
vocational rehabilitation; 5) until the date of attaining the age
of eligibility to the old-age pension, save the cases where the
level of capacity to work is established due to accident
(mutilation) at work or occupational disease (Items 31.1.-31.5.).
The periods of setting the level of capacity to work, which
are established for 6 months, one or two years, may be extended
for the periods not exceeding 6 years, and after 6 years the
period of the set level of capacity to work is indicated to be
until the age of eligibility to the old-age pension (Item 33
(wording of 21 March 2005)).
It should be noted that there exist no criteria which should
be followed by the Disability and Work Capacity Assessment Office
when it decides during the primary inspection on setting an
unlimited or limited period of the level of capacity to work; as
well as there exist no criteria which would define the cases
where the level of capacity to work is set for a limited period
of six months, and where it should be one or two years; one does
separately regulate the extension (repeated establishment) of the
previously established period of validity of the level of
capacity to work to the persons to whom the disability reason
"since childhood" was established before they reached the age of
18 years.
Alongside, it should be emphasised that neither the Law on
the Social Integration of Persons with Incapacities (wording of
11 May 2004), nor the Law on State Social Insurance Pensions
(wording of 19 May 2005) includes provisions regulating the
establishment of the periods of the level of capacity to work,
inter alia the criteria, according to which these periods are
differentiated.
19. It should be noted that Paragraph 3 (wording of 11 May
2004) of Article 20 of the Law on the Social Integration of
Persons with Incapacities provides that the level of capacity to
work due to accident at work or occupational disease is
established for the persons irrespective of their age upon the
procedure defined by the Government of the Republic of Lithuania
or its authorised institution. The Minister of Social Security
and Labour and the Minister of Health, on 3 January 2005, by
Order No. A1-1/V-2 "On the Approval of the Rules for Establishing
the Level of Capacity to Work Related to Accidents at Work or
Consequences of Occupational Diseases" (which came into force on
1 July 2005) approved the Rules for Establishing the Level of
Capacity to Work Related to Accidents at Work or Consequences of
Occupational Diseases. Item 11 of these rules provides that the
Disability and Work Capacity Assessment Office, upon establishing
to the person the level of capacity to work related with an
accident at work or consequences of occupational disease,
establishes alongside the level of lost capacity to work, which
is calculated by deducting the percentage of the level of
capacity to work established to the person from 100 percent.
Thus, in the event of accident at work and occupational
disease, the level of capacity to work is established to the
persons who are insured under the social insurance against
accidents at work (i.e. the person's capacity to work under his
current vocational competence, to acquire the new vocational
competence or to do the work that requires lower vocational
competence are assessed) and the level of the lost capacity to
work, irrespective of their age, is defined. The degree (size) of
the lost vocational capacity to work is not established under the
model of establishing the lost capacity to work (level of
capacity to work).
20. As mentioned, the person becomes eligible to the pension
for lost capacity to work if he has lost at least 45 percent of
the capacity to work. The Law on the Social Integration of
Persons with Incapacities (wording of 11 May 2004) and other
legal acts contain no provisions establishing other minimum level
of lost capacity to work that is necessary in order to become
eligible to the pension for lost capacity to work.
It is to held that, according to the valid legal regulation,
in order to become eligible to the pension for lost capacity to
work the minimum level of the lost capacity to work (at least 45
percent of the lost capacity to work) is necessary, which is
applicable also to the persons to whom the level of capacity to
work is established due to accidents at work or consequences of
occupational disease, inter alia to the persons to whom,
according to the legal regulation that was valid by 1 July 2005,
the minimum level of lost vocational capacity to work of 30
percent was established and they were rated as the disabled of
Group III and assigned a disability pension.
21. Summing up the legal regulation established in the Law
on State Social Insurance Pensions (wording of 19 May 2005), the
Law on the Social Integration of Persons with Incapacities
(wording of 11 May 2004) and Order No. A1-78/V179 "On the
Approval of the Inventory Schedule of Criteria for Establishment
of the Level of Capacity to Work and the Inventory Schedule of
the Procedure for Establishment of the Level of Capacity to Work"
of the Minister of Social Security and Labour and the Minister of
Health of 21 March 2005, it should be noted that upon
consolidation of the model of establishing the lost capacity to
work (level of capacity to work), the person acquires the right
to the pension for lost capacity to work, when he has the minimum
state social pensions insurance period as defined in the law and
the level of capacity to work not exceeding 55 percent is
established to him (when the person has lost at least 45 percent
of capacity to work). The level of the person's capacity to work,
its reason, time period and percentage of the person's lost
capacity to work are defined by the Disability and Work Capacity
Assessment Office. In the course of establishing the level of the
person's capacity to work one assesses the state of health of the
person in percentage, which is indicated in the sub-statutory
legal act (basic capacity to work), as well as other factors
(functional, vocational and other criteria) that affect the
person's capacity to work and his ability to get a job. The level
of capacity to work is established for a limited or unlimited
period. The level of capacity to work is established to the
persons due to accident at work or occupational disease,
irrespective of their age. The level of capacity to work due to
accident at work or occupational disease is established to the
person and then the level of lost capacity to work is calculated
by deducting the percentage of the level of capacity to work
established to the person from 100 percent.
22. Having compared the legal regulation that is established
in the Law on the Social Integration of Persons with Incapacities
(wording of 11 May 2004) and the Law on State Social Insurance
Pensions (wording of 19 May 2005), which came into force on 1
July 2005, with the one that is set forth in the Law on the
Social Integration of the Disabled (wordings of 28 November 1991
and 22 October 1998 with subsequent amendments and supplements
made by 4 November 2004) and the Law on State Social Insurance
Pensions (wording of 18 July 1994 with subsequent amendments
and/or supplements made by 15 February 2005), which was valid by
1 July 2005, in the context of the constitutional justice case at
issue, in the aspects of inter alia the establishment of
disability (lost capacity to work) and appearance of the right to
receive the disability (lost capacity to work) pension, it is
obvious that:
- according to the legal regulation that came into force as
from 1 July 2005, the laws consolidated the pension for lost
capacity to work instead of the previous disability pension;
- according to the legal regulation that came into force as
from 1 July 2005, the person becomes entitled to the pension for
lost capacity to work, where the level of capacity to work
established to him does not exceed 55 percent, as entrenched in
the law. According to the previous legal regulation that was
valid by 1 July 2005, neither the law, nor sub-statutory legal
acts established the minimum level of lost capacity to work, in
the event of which the person could become eligible to the
disability pension, save the cases where the reason of disability
was the occupational disease, reduction of vocational
qualification (the degree of lost vocational capacity to work was
entrenched only in the order of the Minister of Health and the
Minister of Social Security and Labour);
- the Law on the Social Integration of Persons with
Incapacities (wording of 11 May 2004) established that the level
of capacity to work is related to the percentage of the lost
capacity to work, according to the previous legal regulation that
was valid by 1 July 2005, these relations were not regulated by
the law: they were regulated only by the order of the Minister of
Health and the Minister of Social Security and Labour, which
indicated that the level of lost vocational capacity to work is
linked to the disability inter alia as follows: the loss of
vocational capacity to work of 30-60 percentGroup III;
- according to the legal regulation that came into force on
1 July 2005, the level of capacity to work is established
according to the criteria and upon the procedure that are
consolidated in the legal acts of the Minister of Health and the
Minister of Social Security and Labour, first of all, according
to the established medicinal criteria (a person's basic capacity
to work as assessed in the percentage of the basic capacity to
work, which is adjusted upon assessment of other factors
(functional, vocational and other criteria)); pursuant to the
legal regulation that was valid by 1 July 2005, the disability
groups were established only according to the medicinal and
social criteria that were set by a sub-statutory legal act
without defining which criteria are medicinal and whichsocial,
whereas in the course of establishing the disability of Group III
(when no account is taken of the vocational factor), one provided
only a list of states of a person's organism, which are the
reason for establishing the disability of Group III, and did not
indicate a single social criterion;
- according to the legal regulation that came into force on
1 July 2005, the level of capacity to work and the pension for
lost capacity to work is granted to the persons (if they are
ensured under the state social insurance) until they reach the
age of becoming entitled to the old-age pension; pursuant to the
previous legal regulation that was valid by 1 July 2005, the
disability pension could also be granted to the persons who
reached the age of becoming entitled to the old-age pension.
It is to be held that, upon reorganisation of the
fundamentals of the social integration of the disabled, the
system of disability pensions and the establishment of the
disability, the model of establishing the disability (having
consolidated it in the legal acts as the model of establishment
of the lost capacity to work (level of capacity to work))
acquired new characteristics.
23. In the context of the constitutional justice case at
issue it should be noted that the person who suffered from an
accident at work or occupational disease (if it results in the
loss of capacity to work), in certain cases becomes entitled also
to damage compensation as per the Republic of Lithuania
Provisional Law on Damage Compensation in Accident at Work or
Occupational Disease Cases (wording of 1 July 1997), which came
info force on 1 September 1997.
Paragraph 8 (wording of 1 July 1997) of Article 2 of this
law established inter alia that loss of the capacity to work
denotes temporary or total loss of occupational capacity to work
due to an accident at work or becoming ill with an occupational
disease. The lost capacity to work is expressed in percentage.
Paragraph 1 (wording of 1 July 1997) of Article 12 "Single
Compensation for Loss of Capacity to Work" of this law provides:
"If the victim has sustained the loss of up to 20 percent
(inclusively) of his capacity to work, he shall be paid 10
percent of the amount of his 24-month work pay, subject to
compensation, in a single compensation payment; if the victim has
sustained the loss of more than 20 percent, but less than 30
percent of his capacity to work, he shall be paid a 20 percent of
the amount of his 24-month work pay, subject to compensation, in
a single compensation payment."
Paragraph 1 (wording of 1 July 1997) of Article 13 "Periodic
Compensation for Loss of the Capacity to Work" of this law
provides: "In the event it is established that the victim has
suffered a loss of 30 percent or more in his capacity to work, he
shall be paid periodic compensation for loss of the capacity to
work."
The periodic compensation for the lost capacity to work is
paid until the end of the time period of loss of the capacity to
work, established by the SCMSE (Article 15 (wording of 1 July
1997)); the periodic compensation for the lost capacity to work
is paid until the end of the period of loss of the capacity to
work as established by the Disability and Work Capacity
Assessment Office (Article 15 (wording of 19 May 2005)).
On 19 May 2005, the Seimas adopted the Republic of Lithuania
Law on Amending and Supplementing the Law on Sickness and
Maternity Social Insurance, the Law on Accident at Work and
Occupational Diseases Social Insurance, the Provisional Law on
Damage Compensation in Accident at Work or Occupational Disease
Cases, as well as the Law on Amending and Supplementing the Law
on State Social Insurance, which came into force on 1 July 2005.
Paragraph 5 (wording of 19 May 2005) of Article 12 of the
Provisional Law on Damage Compensation in Accident at Work or
Occupational Disease Cases provides: "Should any changes occur in
the percentage of the lost capacity to work of the victim, who
has been paid a single compensation payment for loss of the
capacity to work, but they do not exceed the amounts indicated in
this law, and the newly calculated single compensation payment
for the loss of the capacity to work is bigger than the
previously received one, the difference between the calculated
and already paid compensation for the lost capacity to work shall
be paid."
Thus, according to the Provisional Law on Damage
Compensation in Accident at Work or Occupational Disease Cases
(wording of 1 July 1997 with subsequent amendments and/or
supplements), the persons who were recognised as those with lost
capacity to work due to accident at work or becoming ill with an
occupational disease, are entitled to the single compensation
payment for the loss of the capacity to work, if they lost less
than 30 percent of the capacity to work, or to the periodic
compensation payment for the loss of the capacity to work, if
they lost 30 and more percent of the capacity to work.
24. In the context of the constitutional justice case at
issue it should be noted that, in the course of reorganisation of
the system of disability pensions, certain guarantees to the
persons who, according to the previous legal regulation, were
granted and paid the state social insurance disability pensions,
were established both in of the Law on State Social insurance
Pensions (wording of 19 May 2005), which was set forth in a new
wording, and in the Law on the Social Integration of Persons with
Incapacities (wording of 11 May 2004).
Paragraph 2 (wording of 11 May 2004) of Article 30
"Preservation of Rights of Persons under 18 Years of Age" of the
Law on the Social Integration of Persons with Incapacities
provides: "The persons under 18 years of age, who were rated as
the disabled according to the procedure that was applied before
the date of coming into force of this Law, shall be paid benefits
(pensions, allowances and compensations) that are not smaller
than those established in the legal acts that were valid by 30
June 2005, until the moment that the incapacity level becomes
established to them, and they are entitled to not lower
guarantees and concessions than those established in the legal
acts that were valid by 30 June 2005."
Article 31 "Preservation of Rights of the Persons who
Attained the Age of Becoming Eligible to Old-Age Pension"
(wording of 11 May 2004) of the Law on the Social Integration of
Persons with Incapacities provides:
"1. The persons who attained the age of becoming eligible to
the old-age pension prior of the date of coming into force of
this Law and who were rated as the disabled upon the procedure
that was valid prior to the date of coming into force of this
Law, until the expiry of the established period of disability
shall be paid benefits (pensions, allowances and compensations)
that are not smaller than those established in the legal acts
that were valid by 30 June 2005, until the moment that the
disability becomes established to them, and they are entitled to
not lower guarantees and concessions than those established in
the legal acts that were valid by 30 June 2005.
2. The persons who attained the age of becoming eligible to
the old-age pension prior of the date of coming into force of
this Law and who were rated as the disabled for an unlimited
period upon the procedure that was valid prior to the date of
coming into force of this Law, shall be paid benefits (pensions,
allowances and compensations) that are not smaller than those
established in the legal acts that were valid by 30 June 2005,
and they are entitled to not lower guarantees and concessions
than those established in the legal acts that were valid by 30
June 2005."
Article 32 "Preservation of Rights of the Persons who have
not Attained the Age of Becoming Eligible to Old-Age Pension"
(wording of 11 May 2004) of the Law on the Social Integration of
Persons with Incapacities provides:
"1. In order to preserve the rights of the persons, who have
not attained the age of becoming eligible to the old-age pension
prior of the date of coming into force of this Law and to whom a
group of disability was established, a transitional period is set
from 1 July 2005 to 30 June 2007.
2. Upon the procedure established by the Ministry of Social
Security and Labour, until 30 June 2007 the level of capacity to
work must be established to all persons of the age from 18 years
to the age of becoming eligible to the old-age pension, who were
rated as the disabled upon the procedure that was valid prior to
the date of coming into force of this Law.
3. The persons who have not attained the age of becoming
eligible to the old-age pension and who were rated as the
disabled of Group I, II or III, during the transitional period,
until the moment that the level of capacity to work becomes
established to them, are treated equal to the persons who, upon
the procedure defined in this Law, are rated as incapable or
partially capable of working on the basis of the certificates of
disability that were issued upon the procedure that was valid
prior to the date of coming into force of this Law.
4. The persons who have not attained the age of becoming
eligible to the old-age pension and who were rated as the
disabled upon the procedure that was valid prior to the date of
coming into force of this Law, during the transitional period,
until the moment that the level of capacity to work becomes
established to them, shall be paid benefits (pensions, allowances
and compensations) that are not smaller than those established in
the legal acts that were valid by 30 June 2005, and they are
entitled to not lower guarantees and concessions than those
established in the legal acts that were valid by 30 June 2005.
5. The persons who have not attained the age of becoming
eligible to the old-age pension and who were rated as the
disabled for an unlimited period, the level of capacity to work
shall be established on the basis of the certificates of
disability that were issued upon the procedure that was valid
prior to the date of coming into force of this Law and the
provisions of Article 3 of this chapter, save the cases where the
person with disabilities applies to the Office on his own with
the request to establish the level of capacity to work."
Paragraph 1 (wording of 19 May 2005) of Article 53 "Payment,
Increase and Indexation of the State Social Insurance Disability
Pensions" of the Law on State Social Insurance Pensions provides:
"The state social insurance disability pensions shall be
further paid as from 1 July 2005 until the period of granting and
paying these pensions expires or until they are replaced upon the
procedure defined in this Law by the state social insurance old-
age pension or pension for lost capacity to work. Upon approving
a new, higher level of the basic state social insurance pension
or a new, bigger insured income of the current year, the further
paid disability pensions for Group I shall be increased just as
the pension for lost capacity to work that are granted to the
persons who have lost 75-100 percent of capacity to work,
disability pensions for Group IIjust as the pension for lost
capacity to work that are granted to the persons who have lost
60-70 percent of capacity to work, disability pensions for Group
IIIjust as the pension for lost capacity to work that are
granted to the persons who have lost 45-55 percent of capacity to
work. The disability pensions that have not been re-calculated
according to this Law since 1 January 1995 shall be further
indexed upon the procedure as per Article 52 of this Law."
Paragraph 1 of Article 3 of the Law on Amending the Law on
State Social Insurance Pensions that was adopted by the Seimas on
19 May 2005 provides: "The persons who acquired the right to
receive the state social insurance disability pensions prior to 1
July 2005 but applied for their granting within 12 months from
the indicated date, shall be granted these pensions upon the
procedure that was valid by 1 July 2005."
Thus, summing up the legal regulation that was established
in the Law on State Social Insurance Pensions (wording of 19 May
2005) and the Law on the Social Integration of Persons with
Incapacities (wording of 11 May 2004), it is to be held that: 1)
to the persons under 18 years of age and the persons who have
attained the age of becoming eligible to the old-age pension,
who, according to the previous legal regulation, were rated as
disabled for a limited period, these pensions are paid in not
smaller amount than established in the legal acts that were valid
prior to 30 June 2005 until the expiry of the established period
of disability (Paragraph 2 of Article 30 and Paragraph 1 of
Article 31 of the Law on the Social Integration of Persons with
Incapacities (wording of 11 May 2004)); 2) the persons who have
attained the age of becoming eligible to the old-age pension and
who were rated as disabled for an unlimited period, shall be
continued to be paid the disability pension (Paragraph 2 (wording
of 11 May 2004) of Article 31 of the Law on the Social
Integration of Persons with Incapacities); 3) the persons who
have not attained the age of becoming eligible to the old-age
pension shall be paid until the disability pensions the expiry of
the transitional period as defined in the law (30 June 2007),
until which the level of capacity to work must be established
(Paragraphs 2 and 4 (wording of 11 May 2004) of Article 32 of the
Law on the Social Integration of Persons with Incapacities); 4)
the disability pensions shall be paid until the expiry of the
period of granting and paying these pensions (Paragraph 1
(wording of 19 May 2005) of Article 53 of the Law on State Social
Insurance Pensions).
It means that payment of the disability pensions that were
granted and paid for the limited period was guaranteed under this
legal regulation until the expiry of the disability period
established to the person. The law indicates the end of the so-
called transitional period30 June 2007.
III
1. It has been mentioned that in this case the petitioner
disputes the compliance (to the indicated extent) of the
provision "The state social insurance pension for lost capacity
to work for the persons who have lost 45-55 percent of their
capacity to work shall be calculated in the same manner as for
the persons who have lost 60-70 percent of their capacity to work
<
>" of Paragraph 4 (wording of 19 May 2005) of Article 32 of the
Law on State Social Insurance Pensions with Article 52 of the
Constitution and the constitutional principle of a state under
the rule of law.
2. 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 support in the event of unemployment,
sickness, widowhood, loss of the breadwinner, and in other cases
provided for by laws."
3. In its rulings the Constitutional Court has held more
than once that the Constitution is an integral act; the norms and
principles of the Constitution constitute a harmonious system; it
is not permitted to construe any provision of the Constitution
only literally, 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 and the
balance of the constitutional values would be disturbed.
4. When construing Article 52 of the Constitution, in its
rulings the Constitutional Court has held more than once that the
State of Lithuania is socially oriented and every citizen has the
right to social security; the social maintenance, i.e.
contribution of society to maintenance of such its members who
are incapable of providing themselves from work or other means or
who are not sufficiently provided, is recognised as having the
status of a constitutional value; the measures of social
protection express the idea of social solidarity, they help a
person to protect himself from possible social hazards.
5. The content of legal regulation of the relations of
social security, social maintenance, and social support are
affected by various factors inter alia resources of the state and
society, as well as material and financial possibilities. In the
course of regulation of the aforementioned relations the
legislator, while paying heed to the Constitution, has a wide
discretion.
The Constitutional Court has held that the legislator has a
wide discretion to choose and consolidate in laws a model of
provision of social support, inter alia various forms thereof
(state, private, mixed, etc.) (rulings of 7 February 2005 and 29
April 2008), as well as discretion to choose a system of pensions
(ruling of 26 September 2007).
6. The Constitutional Court has held in its rulings more
than once that the constitutional right of a person to receive a
pension is one of the most important social rights (rulings of 22
October 2007 and 24 December 2008).
The old-age and disability pensions are the types of
pensions that are expressis verbis indicated in Article 52 of the
Constitution. The Constitutional Court has held more than once
that under the Constitution, other provisions or social support
than those expressis verbis specified in Article 52 of the
Constitution may also be established by law.
7. The legislator, when adopting laws on the pensionary
maintenance is bound by the rules and principles of the
Constitution (Constitutional Court rulings of 4 July 2003, 3
December 2003, 22 October 2007, and 24 December 2008). According
to the Constitution, the bases of pensionary maintenance, the
persons who are granted and paid the pensions, the conditions of
granting and paying the pensions, as well as the amounts of the
pensions are established only by law.
In its ruling of 5 March 2004, the Constitutional Court held
that separate types of social support, the persons who are
granted social support, the grounds, conditions of granting and
paying the social support, amounts thereof, according to the
Constitution, may be set solely by the law.
The Constitutional Court has held more than once that the
principle of social solidarity in the civil society does not deny
personal responsibility for one's own fate, therefore the legal
regulation of social security should be such as to create
preconditions for each member of society to take care of one's
own welfare, but not to rely solely on the social security
guaranteed by the state. In its ruling of 5 March 2004, the
Constitutional Court held that the social support should not
create preconditions for a person not to strive for a higher
income, not to search for possibilities to ensure to oneself and
one's family by one's own effort the living conditions that are
in line with human dignity, and social support should not become
a privilege.
8. The Constitutional Court has held more than once that the
provisions of Article 52 of the Constitution guaranteeing the
right to social maintenance obligate the state to establish
sufficient measures for implementation and legal protection of
the said right.
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. In
order to ensure the actual payment of the granted pension to the
persons who meet the conditions established by law, the
legislator has the duty to establish the accumulation of funds
necessary for pensions and social support.
9. The Constitutional Court has held more than once that
after the types of pensions, the persons entitled to the pension,
the bases of granting and payment of pensions, their amounts, and
the conditions have been established by laws, a duty arises for
the state to follow the constitutional principles of protection
of legitimate expectations and legal certainty in the area of
pensionary maintenance relations.
The persons who have been granted and paid a pension
established by the law or the Constitution, under Article 23 of
the Constitution have the right to demand that the payments be
paid further to them in the amounts which were granted and paid
previously (Constitutional Court ruling of 3 December 2003).
10. It has been mentioned that Article 52 of the
Constitution expressis verbis provides for the old-age pension
and disability pension.
In the context of the case at issue, Article 52 of the
Constitution, which sets the bases of pensionary maintenance and
social support, should be construed together with Article 53 of
the Constitution, which inter alia establishes the duty of the
state to take care of people's health, the provision of Paragraph
2 of Article 21 of the Constitution, which consolidates
protection of human dignity, Paragraph 1 of Article 48 of the
Constitution, according to which each human being may freely
choose a job or business, and has the right to have proper, safe
and healthy conditions at work, to receive inter alia social
security in the event of unemployment; Article 52 of the
Constitution is also to be construed with the constitutional
principle of a state under the rule of law, as well as with other
norms and principles of the Constitution.
11. Paragraph 1 of Article 53 of the Constitution provides:
"The State shall take care of people's health and shall
guarantee medical aid and services for the human being in the
event of sickness. The procedure for providing medical aid to
citizens free of charge at State medical establishments shall be
established by law."
When construing these provisions of the Constitution, the
Constitutional Court has held that the health of a human being
and of society is one of the most important values of society
(Constitutional Court rulings of 11 July 2002 and 29 September
2005), that protection of people's health is a constitutionally
important objective, a public interest, whereas looking after
people's health is to be treated as a state function
(Constitutional Court rulings of 14 January 2002, 26 January
2004, and 29 September 2005)
In the context of the constitutional justice case at issue,
it is to be noted that the state has the duty to protect human
beings from threats to health (to reduce dangers to health and in
certain cases, as far as possible, to prevent them), to improve
ability of a person and society to overcome dangers to health,
and to ensure availability of medical services in case of
illness.
It should be noted that the right of a person to healthy
environment is a necessary condition of dignified life and
enjoyment of many other constitutional rights.
12. The Constitution consolidates the duty of the state to
ensure protection and defence of human dignity. When construing
Article 21 of the Constitution, the Constitutional Court has
held: dignity is an integral characteristic of a human being as
the greatest social value; each member of society enjoys innate
dignity (Constitutional Court ruling of 29 December 2004); the
inborn human rights are inborn opportunities of an individual
which ensure his human dignity in the spheres of social life
(Constitutional Court rulings of 9 December 1998, 29 December
2004, and 19 August 2006). The fact that the legislator, while
regulating relations linked with implementation of human rights
and freedoms, must guarantee their proper protection constitutes
one of the conditions of ensuring human dignity as a
constitutional value. State institutions and officials have a
duty to respect human dignity as a special value; violation of
human rights and freedoms can infringe human dignity as well
(Constitutional Court ruling of 29 December 2004).
In the context of the constitutional justice case at issue
it should be noted that the state must create such system of
social maintenance (inter alia consolidate such model of granting
and paying disability pensions), which would assist in
maintaining conditions of living in line with human dignity, and,
if necessary, provide a person with the necessary social
security.
13. According to Paragraph 1 of Article 48 of the
Constitution, each human being has the right inter alia to have
proper, safe and healthy conditions at work, and to receive
social security in the event of unemployment.
The constitutional right to proper, safe and healthy working
conditions means inter alia that every employee has the right to
such working conditions (work environment, work character, the
time of work and rest, tools of work, etc., are to be regarded as
working conditions) which would not exert negative influence on
his life, health, and which would be in line with the
requirements of safety and hygiene (Constitutional Court rulings
of 9 April 2002 and 29 April 2008). The provision of Paragraph 1
of Article 48 of the Constitution, under which each human being
shall have the right to have proper, safe and healthy conditions
at work, implies also the duty of the state to establish the
legal regulation, under which the legal preconditions to
implement this right would be created; while doing so, the state
must also establish the effective mechanisms of the
implementation control of this right (Constitutional Court ruling
of 29 April 2008).
At the same time, this constitutional right implies the duty
of the employer to ensure the suitability, safety and healthiness
of working conditions. A human right to proper, safe and healthy
conditions at work, which stems from the Constitution, inter alia
Paragraph 1 of Article 48, does not deny also the duty of every
employee to follow the requirements of safety at work
(Constitutional Court ruling of 29 April 2008).
14. The constitutional principle of a state under the rule
of law, as noted many times by the Constitutional Court, implies
various requirements to the legislator, other legislating
entities, inter alia that the legal regulation established in
laws and other legal acts should be clear, harmonious,
comprehensible, non-contradictory, the formulations of the legal
acts must be precise.
15. The legislator, by assisting a person to protect himself
from various social hazards and at the same time creating
preconditions for each member of society to take care of his own
welfare (and not to rely solely on the state social security),
must establish by law a clear, harmonious legal regulation,
according to which the conditions would be created to implement
inter alia the right to receive disability pension, which is
expressis verbis indicated in Article 52 of the Constitution.
The right to disability pension is one of the forms of
social protection. In the context of the constitutional justice
case at issue it should be noted that, as already held by the
Constitutional Court, the Constitution does not prevent usage of
other words or formulas in laws and other legal acts than those
used in the text of the Constitution. Treating the requirement to
describe the same phenomena in laws and other legal acts always
in the same words and formulas unreservedly would mean not only
seeking to artificially restrict and stop the development of
language, inter alia legal terminology, when not only words
(formulas) describing the same phenomena, which are different
from the text of the Constitution, are used in the laws and other
legal acts, but new terms (formulas) in general, which had not
been created yet at the time of drawing the text of the
Constitution, but it might also provoke to correct the text of
the Constitution according to the terminology (words, formulas)
entrenched in the laws and other legal acts also in such cases,
when the intervention into the text of the Constitution, which as
the supreme law must be a permanent act, is not legally necessary
(Constitutional Court rulings of 16 January 2006, 19 August 2006
and 5 July 2007).
Thus, what is expressis verbis consolidated in Article 52 of
the Constitution as the term (formula) "disability pension",
which the persons are entitled to, may be referred to in laws in
another term (formula), if only this term (formula) does not deny
(distort) the constitutional notion of this pension.
16. In the context of the constitutional justice case at
issue, when construing Article 52 of the Constitution together
with the provision of Paragraph 1 of Article 53 of the
Constitution, according to which the state inter alia takes care
of people's health, the provision of Paragraph 2 of Article 21 of
the Constitution, which consolidates the protection of human
dignity, as well as with Paragraph 1 of Article 48 of the
Constitution, according to which each person may freely choose a
job or business, and has the right to have proper, safe and
healthy conditions at work, to receive social security in the
event of unemployment, and taking account of the constitutional
principles of proportionality and equality of persons, as well as
the imperative of social harmony that is entrenched in the
Constitution, it is to be held that the state has a
constitutional duty to ensure the creation of such social
protection system (inter alia a system of social support and
disability pension) so that a person who, due to health disorders
(caused by illness, accident, occupational disease, innate health
disorders, etc.), permanently or temporarily did not acquire or
lost a possibility to earn the living from work or business
income, or where such possibilities significantly diminished, in
the cases provided by law would receive social support and/or
disability pension.
17. The legislator, by taking account of various factors,
inter alia resources of the state and society, the material and
financial possibilities, has a wide discretion also to regulate
the relations linked to granting the social support and/or
disability pension to a person who, due to health disorders
(caused by illness, accident, occupational disease, innate health
disorders, etc.), permanently or temporarily did not acquire or
lost a possibility to earn the living from work or business
income, or where such possibilities significantly diminished.
At the same time it should be noted that when the legislator
regulates relations linked to granting the social support and/or
disability pension to a person who, due to health disorders
(caused by illness, accident, occupational disease, innate health
disorders, etc.), permanently or temporarily did not acquire or
lost a possibility to earn the living from work or business
income, or where such possibilities significantly diminished, the
legislator must pay heed to the norms and principles of the
Constitution, inter alia the duty of the state to ensure the
citizens' right to receive disability pension or social support
in case of illness, which is entrenched in Article 52 of the
Constitution, the duty of the state to take care of people's
health, which is entrenched in Paragraph 1 of Article 52 of the
Constitution, the requirement to protect human dignity, which is
entrenched in Paragraph 2 of Article 21, the duty of the state to
ensure proper, safe and healthy conditions at work, to receive
social security in the event of unemployment, which is entrenched
in Paragraph 1 of Article 48, the constitutional principle of a
state under the rule of law (inter alia the constitutional
principle of equal rights of the persons and that of
proportionality), as well as other norms and principles of the
Constitution.
18. Alongside, it should be noted that the legislator may
not establish any such legal regulation that would create
preconditions for a situation, where a person who, due to health
disorders (caused by illness, accident, occupational disease,
innate health disorders, etc.), permanently or temporarily did
not acquire or lost a possibility to earn the living from work or
business income, or where such possibilities significantly
diminished, would not receive the respective social support and/
or disability pension.
It has been mentioned that the human right (which is
entrenched in the Constitution) to get a pension implies a duty
to the legislator to regulate the legal relations of social
protection so that preconditions and incentives are created for
every member of society to take care of his own welfare, and not
to solely rely on the state social security.
In the context of the constitutional justice case at issue
it is to be noted that one may not establish also any such legal
regulation, where acquisition of the right to receive disability
pension or maintaining such right, which is guaranteed under the
Constitution to the person who, due to health disorders (caused
by illness, accident, occupational disease, innate health
disorders, etc.), permanently or temporarily did not acquire or
lost a possibility to earn the living from work or business
income, or where such possibilities significantly diminished,
would be associated with the constitutionally unreasoned
conditions, subjective decisions of any institutions or
officials, or other circumstances that do not induce the persons
to take care of their health.
19. It has been mentioned that, under Article 52 of the
Constitution, the right to disability pension is guaranteed to
such persons and on such bases that are provided for by laws. The
regulation (which is set by laws) of social support relations, is
one of the most important guarantees of the constitutional right
to disability pension.
The law must establish the age upon reaching which a person
has the right to receive the old age pension, the grounds for
granting and payment of this pension, its conditions and sizes,
while in the case of the disability pensionwhat is to be
considered as disability, as well as the grounds for granting and
payment of this pension, its conditions and sizes (Constitutional
Court rulings of 3 December 2003 and 22 October 2007).
The sub-statutory legal regulation of relations of social
protection and social assistance may comprise the establishment
of respective procedures, as well as the legal regulation based
on laws, where the need to provide more details about and
particularise the legal regulation in sub-statutory legal acts is
objectively caused by the necessity in the law-making process to
lean upon special knowledge and special (professional) competence
in a certain area (Constitutional Court rulings of 7 February
2005 and 5 May 2007). However, as the Constitutional Court has
held more than once in its rulings, it is not allowed to
establish the conditions of appearance of the right of a person
to social support, as well as to limit the extent of this right,
by means of a sub-statutory legal regulation.
20. It has been held in this ruling that the person's right
to get a disability pension, which is expressis verbis entrenched
in Article 52 of the Constitution, may be described by another
term (formula), if only by such term (formula) one does not deny
(distort) the constitutional concept of this pension. Disability
should be associated first of all with such changes (temporal or
permanent) of state of the person's health, due to which the
person temporarily or permanently did not acquire or lost a
possibility to earn the living from work or business income, or
where such possibilities significantly diminished.
It should be noted that disability is associated also with
such health disorders (which last for a longer period), due to
which the person temporarily or permanently did not acquire or
lost possibility to earn the living from work or business income,
or where such possibilities significantly diminished. It means
that in the course of regulation of relations linked to granting
the disability pension to a person, having taken account of the
grounds established in the law and various factors, first of all
of the type of the person's health impairment (disorder), the
disability pension may be granted and paid temporarily (for a
certain period) or permanently. The period of paying the
disability pension that is granted to the person (inter alia the
minimum and the maximum periods, the criteria differentiating
these periods) is one of the conditions of payment of the
disability pension, therefore it must be established by law.
The legislator may differentiate the conditions of granting
and paying the disability pension (including the time periods of
disability and of payment of the disability pension) and their
amounts on various grounds, by taking into account inter alia the
state of health of a person, other factors, and in the event of
pension amountthe participation of the person in the insurance
against respective social hazards.
The constitutional requirements of legal certainty, legal
security and protection of legitimate expectations imply that
conditions of granting and paying the disability pension
(including the period (term) of payment of the pensions that is
granted to the person), which are to be established by law, must
be clear, non-discriminatory, whereas the established period
(term) of paying the disability pension, during which the granted
pension is paid, must be neither unreasonably short, nor changed
too often. Otherwise, human dignity and human health may become
undermined and the imperatives that originate from Paragraph 1 of
Article 53 and Article 21 of the Constitution may be disregarded.
In the course of the regulation of pensionary relations,
certain requirements originate from Article 52 of the
Constitution (when construed together with the constitutional
principle of a state under the rule of law and in the context of
other provisions of the Constitution) not only to the legislator
but to other law-making entities as well, where the disregard
thereof may cause a situation where respective legal regulation
(legal acts and/or parts thereof) may be (and must be) recognised
to be in violation of the Constitution. The constitutional
principle of a state under the rule of law implies various
requirements for the legislator and other law-making entities,
inter alia the requirements that the law-making entities pass
legal acts only without exceeding their powers (Constitutional
Court rulings of 13 December 2004 and 16 January 2006).
The Constitutional Court has held more than once that all
subjects of law-making should heed the hierarchy of legal acts,
which stem from the Constitution; the Constitution prohibits the
regulation of those legal relations by means of legal acts of
lower power, which should be regulated only by means of legal
acts of higher power.
Government resolutions, sub-statutory legal acts of
ministries (ministers) or other state institutions (their heads)
may not replace or distort the legal regulation, which is
established in laws.
The Constitutional Court has held in its rulings that sub-
statutory legal acts may only set the procedure of implementation
of the laws that regulate social protection and social assistance
relations (Constitutional Court rulings of 5 March 2004 and 7
February 2005).
21. It has been mentioned that the Constitutional Court has
held more than once that provisions of Article 52 of the
Constitution that guarantee the right to social maintenance,
obligate a state to establish sufficient measures of
implementation and legal protection of this right.
It has been mentioned that, as already held by the
Constitutional Court more than once, after the types of pensions
have been established in laws, the persons who are entitled to a
pension, grounds for granting and paying pensions, the
conditions, and amounts of pensions, a duty appears to the state
to follow the constitutional principles of protection of
legitimate expectations and legal certainty in the sphere of
pensionary maintenance relations.
The principle of protection of legitimate expectations
implies the duty of the state, of the institutions implementing
state power, as well as of other state institutions to follow the
obligations undertaken by the state.
The Constitutional Court has held more than once that this
principle also means the protection of acquired rights, i.e.
persons have the right reasonably to expect that the rights
acquired by them under valid laws or other legal acts that are
not in conflict with the Constitution will be maintained for the
established period and could be implemented in reality.
At the same time it should be noted that the Constitutional
Court has held more than once that one of the elements of the
principle of protection of legitimate expectations is the
protection of rights that were acquired under the Constitution,
as well as the laws and other legal acts that are not in conflict
with the Constitution. It has also been held in the
Constitutional Court rulings that the imperative of the balance
among 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
determine 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, which arise from
the legal acts which were later recognised as being in conflict
with the Constitution (sub-statutory legal actsas being in
conflict with the Constitution and/or 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 rulings of 13 December 2004, 20 February 2008, and 24
December 2008).
When deciding whether the acquired rights of persons which
originated during the period of validity of the legal act, which
was later recognised to be in conflict with the Constitution
(sub-statutory legal actsas being in conflict with the
Constitution and/or laws), must be defended and protected, and if
soto what extent, in each case one must ascertain whether the
failure to defend and protect such acquired rights would result
in violation of other values that are protected by the
Constitution, whether the balance among the values that are
enshrined in, as well as protected and defended by the
Constitution, becomes not violated.
The Constitutional Court has held more than once that having
not ensured the protection of legitimate expectations, legal
certainty and legal security of a person, one would not guarantee
the person's trust in the state and law.
While regulating the implementation of the rights and
freedoms of the person entrenched in the Constitution, the
legislator cannot deny legitimate expectations of the person, as
the principles of legal regulation and, first of all, the
constitutional principle of a state under the rule of law, which
are entrenched in the Constitution, prohibit unreasonable
aggravation of the legal situation of a person, as well as denial
of the acquired rights and ignoring of legitimate interests of a
person (Constitutional Court ruling of 4 March 2003).
It has been mentioned that the Constitutional Court has held
more than once that after establishment in laws the types of
pensions, persons who are entitled to a pension, grounds for
granting and paying pensions, conditions, and amounts of
pensions, a duty appears to a state to follow the constitutional
principles of protection of legitimate expectations and legal
certainty in the sphere of pensionary maintenance relations.
It is to be held that if the disability pension was granted
and paid to a person under the law, it must be continued to be
paid. The persons who meet the conditions that are established in
the law have the right to demand that the state grant and pay
this pension to them.
22. 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
(Constitutional Court rulings of 4 July 2003, 3 December 2003,
and 24 December 2008).
In the course of reorganising the system of pensionary
maintenance, the Constitution must be heeded in every case: the
system of pensionary maintenance established by law may be
reorganised only if this is done by law and while guaranteeing
inter alia the old age and disability pensions provided for by
the Constitution, as well as heeding the obligations undertaken
by the state, which are not in conflict with the Constitution, to
pay corresponding monetary payments to persons, who meet the
requirements established by law (Constitutional Court rulings of
4 July 2003, 3 December 2003, 13 December 2004, and 24 December
2008).
In the context of the constitutional justice case at issue
it needs to be held that dynamism of labour (economic) activity,
progress of work technologies and medicine imply that the legal
regulation that sets the grounds and conditions of origination of
this pension, granting the disability pensions, inter alia the
establishment of disability, is subject to change, however, while
reorganising the conditions of granting and paying disability
pensions, one may not deny the person's right to social security
(inter alia the disability pension).
It is held in the Constitutional Court ruling of 22 November
2007: "<
> the Constitution protects and defends the acquired
rights, therefore, the correction of the social policy, the
reorganisation of the system of social guarantees or of
individual social guarantees of the state should be
constitutionally grounded; if in the course of reorganisation of
the system of social guarantees or the structure of individual
social guarantees the extent of social guarantees is reduced, let
alone certain social guarantees disappear, a mechanism of just
compensation of incurred losses should be established to the
individuals to whom those social guarantees were reasonably
established, and if <
> the necessity to establish a respective
social guarantee arises from the Constitution, such social
guarantee generally may not be subject to cancellation prior to
the consolidation of the other one instead."
According to the Constitution, the legislator has the right
to reorganise the established system of disability pensionary
maintenance by changing the grounds of the pensionary
maintenance, the persons to whom the pension is granted and paid,
the conditions of granting and paying the pension, if one follows
the requirements arising from Article 52 of the Constitution and
the constitutional principle of a state under the rule of law
(inter alia the constitutional principles of protection of
legitimate expectations, legal certainty and legal security).
The Constitutional Court has held more than once that the
persons who have acquired certain rights under the law, have the
right to reasonable expect that these rights shall be maintained
and implemented for the established period, therefore, when
changing the legal regulation one must follow the norms and
principles of the Constitution, inter alia the principle lex
retro non agit.
IV
1. In the context of the constitutional justice case at
issue it is to be noted that certain relations linked to social
support to the person, protection of human health, and human
disability are regulated in international documents as well.
For example, the United Nations Universal Declaration of
Human Rights (1948) provides that everyone has the right to a
standard of living adequate for the health and well-being of
himself and of his family, including food, clothing, housing and
medical care and necessary social services, and the right to
security in the event of unemployment, sickness, disability,
widowhood, old age or other lack of livelihood in circumstances
beyond his control (Paragraph 1 of Article 25); everyone, as a
member of society, has the right to social security and is
entitled to realisation, through national effort and
international co-operation and in accordance with the
organisation and resources of each State, of the economic, social
and cultural rights indispensable for his dignity and the free
development of his personality (Article 22).
Article 12 of the United Nations International Covenant on
Economic, Social and Cultural Rights (1966), which became valid
for Lithuania on 20 February 1992, consolidates the right of
everyone to the enjoyment of the highest attainable standard of
physical and mental health (Paragraph 1); whereas the states must
take steps to achieve the creation of conditions which would
assure to all medicinal service and medicinal attention in the
event of sickness (Item d of Paragraph 2); the States Parties to
the present Covenant recognise the right of everyone to social
security, including social insurance (Article 9).
Part I of the European Social Charter (revised) (hereinafter
referred to as the Charter), which became valid for Lithuania
(with certain exceptions) on 1 August 2001, inter alia
consolidates that everyone has the right to benefit from any
measures enabling him to enjoy the highest possible standard of
health attainable (Item 11); anyone without adequate resources
has the right to social and medical assistance (Item 13); all
workers have the right to safe and healthy working conditions
(Item 3). Article 11 "The right to protection of health" of Part
II of the Charter inter alia enshrines the obligations of the
Parties to take appropriate measures designed to remove as far as
possible the causes of ill-health (Item 1); to prevent as far as
possible epidemic, endemic and other diseases, as well as
accidents (Item 3). Article 12 "The right to social security" of
the Charter sets forth that with a view to ensuring the effective
exercise of the right to social security, the Parties of the
Charter undertake inter alia to establish or maintain a system of
social security, to endeavour to raise progressively the system
of social security to a higher level.
The aforementioned legal acts do not indicate as to what
particular measures are to be taken by the states to implement
the requirements on social support to a person and protection of
person's health that are consolidated in these documents. By its
own legal acts every state sets forth the measures that implement
the above-mentioned requirements.
2. In certain aspects relations linked to social protection,
inter alia disability pensions, are subject to regulation by EU
law.
According to Article 137 of the Treaty Establishing the
European Community, the Community shall support and complement
the activities of the Member States inter alia in the field of
social security and social protection of workers (Paragraph 1),
however, the provisions adopted by the Community shall not affect
the right of Member States to define the fundamental principles
of their social security systems and must not significantly
affect the financial equilibrium thereof (Paragraph 4).
According to Article 42 of the Treaty Establishing the
European Community, the Council shall adopt such measures in the
field of social security as are necessary to provide freedom of
movement for workers, and to this end it shall make arrangements
to secure for migrant workers and their dependants: a)
aggregation, for the purpose of acquiring and retaining the right
to benefit and of calculating the amount of benefit, of all
periods taken into account under the laws of the several
countries; b) payment of benefits to persons resident in the
territories of Member States.
On 14 June 1971, the Council adopted Regulation (EEC) No.
1408/71 on the application of social security schemes to employed
persons and to members of their families moving within the
Community, which applies to all legislation concerning various
branches of social security, inter alia invalidity benefits,
including those intended for the maintenance or improvement of
earning capacity (Paragraph 1 of Article 4).
On 29 April 2004, the European Parliament and the Council
adopted Regulation (EC) No. 883/2004 on the coordination of
social security systems. According to Paragraph 1 of Article 3 of
the Regulation, it shall apply to all legislation concerning
various branches of social security, inter alia invalidity
benefits. This Regulation sets forth that it is necessary to
subject persons moving within the Community to the social
security scheme of only one single Member State in order to avoid
overlapping of the applicable provisions of national legislation
and the complications which could result therefrom; for
invalidity benefits, a system of coordination should be drawn up
which respects the specific characteristics of national
legislation, in particular as regards recognition of invalidity
and aggravation thereof.
The Court of Justice of the European Communities has held
more than once that even if it is obvious that the Community law
does not withdraw a competence of the Member States to manage
their social security systems, and, in the event that legal norms
are not harmonised at the Community level, conditions of granting
benefits under the social security system must be established in
legal acts of each Member State, however, this does not deny the
fact that while enjoying this competence the Member States must
heed the Community law (inter alia Judgement of the Court of
Justice of the European Communities of 23 October 2003 in the
case C-56/01 Patricia Inizan v. Caisse primaire d'assurance
maladie des Hauts-de-Seine, Judgement of 18 March 2004 in the
case C-8/02 Ludwig Leichtle v. Bundesanstalt für Arbeit,
Judgement of 16 May 2006 in the case C-372/04 Yvonne Watts v.
Bedford Primary Care Trust and Secretary of State for Health).
3. To sum it up, it is to be noted that the Member States,
while following the Community law, must themselves establish the
principles and structure of the social security system, inter
alia the conditions of granting benefits under social security
system, however, in order to ensure the free movement of persons
within the Community, the Community takes measures to co-ordinate
the national systems of social security.
It should be mentioned that social security systems of
European countries are of great variety and in the European
countries' law one may note the following types of disability:
disability due to sickness that results in the incapacity to work
for a longer period; disability due to partial or total loss of
capacity to work; disability due to partial or total loss of
vocational capacity to work. There exist also mixed types of
these disabilities.
V
On the compliance of Paragraph 4 (wording of 19 May 2005) of
Article 32 of the Law on State Social Insurance Pensions with
Article 52 of the Constitution and the constitutional principle
of a state under the rule of law.
1. It has been mentioned that, pursuant to the petition of
the petitioner, the Constitutional Court will investigate as to
whether the provision "The state social insurance pension for
lost capacity to work to the persons, who lost 45-55 percent of
capacity to work, shall be calculated in the same manner as to
the persons, who lost 60-70 percent of capacity to work <
>" of
Paragraph 4 (wording of 19 May 2005) of Article 32 of the Law on
State Social Insurance Pensions to the extent that it establishes
that the pension for lost capacity to work is calculated to the
persons, when they have lost at least 45 percent of capacity to
work, is not in conflict with Article 52 of the Constitution and
the constitutional principle of the state under the rule of law.
2. Paragraph 4 (wording of 19 May 2005) of Article 32
"Calculation and Amount of the State Social Insurance Pension in
Case of Lost Capacity to Work" of the Law on State Social
Insurance Pensions provides: "The state social insurance pension
for lost capacity to work for the persons who have lost 45-55
percent of their capacity to work shall be calculated in the same
manner as for the persons who have lost 60-70 percent of their
capacity to work and shall then be reduced by 50 percent."
3. Article 32 (wording of 19 May 2005) of the Law on State
Social Insurance Pensions is aimed at regulating the relations
that are linked to the calculation of the pension for lost
capacity to work and establishment of amount of this pension to
the persons who are entitled to this pension, rather than setting
the conditions of becoming eligible to such pension.
4. It has been mentioned in this ruling of the
Constitutional Court that the right to receive the state social
insurance pension for lost capacity to work is enshrined in
Article 28 "Entitlement to the State Social Insurance Pension for
Lost Capacity to Work" (wording of 19 May 2005) of the Law on
State Social Insurance Pensions, which provides: "The persons
who, in accordance with the procedure laid down by the Law on the
Social Integration of Persons with Incapacities, have been
established a level of capacity to work and who are rated as
incapable or partially capable of working <
> shall be entitled
to the social insurance pension for lost capacity to work where
these persons fulfil the conditions established in Articles 30
and 31 of this Law."
Thus, Article 28 (wording of 19 May 2005) of the Law on
State Social Insurance Pensions provides for two conditions for
receiving the pension for lost capacity to work: the person, in
accordance with the procedure laid down by the Law on the Social
Integration of Persons with Incapacities, must be established
such level of capacity to work that results in rating him as
incapable or partially capable of working, and this person must
fulfil the conditions established in Articles 30 and 31 of this
law.
5. It has been mentioned that Article 30 "Conditions of the
Granting of the Pension for Lost Capacity to Work" (wording of 19
May 2005) of the Law on State Social Insurance Pensions provides:
"1. The person for whom a level of capacity to work is
established for the first time and who is rated as incapable or
partially capable of working shall become entitled to the state
social insurance pension for lost capacity to work, provided on
the day of rating him as incapable or partially capable of
working he has the minimum period of state social pension
insurance for the pension for lost capacity to work.
2. The person not entitled to the state social insurance
pension for lost capacity to work under the condition indicated
in Paragraph 1 of this Article shall become entitled to it where
he has the minimum period of state social pension insurance for
the pension for lost capacity to work on the day of rating him as
incapable or partially capable of working after a repeated
examination or on the day of application for the pension."
Thus, this article provides only for two conditions of
receiving the pension for lost capacity to work: 1) the level of
capacity to work is established to the person and he is rated as
incapable or partially capable of working; 2) the person must
have the minimum period of state social pension insurance for the
pension for lost capacity to work.
6. In has been held in this Constitutional Court ruling that
in the course of regulation of relation that are linked to the
disability pension, the law must establish as to what is to be
considered as disability, as well as the grounds for granting and
payment of this pension, its conditions and sizes, as well as
that the period (term) of paying the disability pension that was
granted to the person, is one of the conditions of payment of the
disability pension.
It has been also held in this Constitutional Court ruling
that pursuant to Article 52 of the Constitution and the
constitutional principle of a state under the rule of law, the
period (term) of payment the disability pension should be
established solely by the law, as well.
It has been mentioned that the formula "period of payment of
pension" is used in Paragraph 3 (wording of 19 May 2005) of
Article 41 of the Law on State Social Insurance Pensions, which
inter alia provides that "state social insurance pensions shall
be granted for lifetime or for a period during which the
recipient of the pension remains entitled, under this Law, to the
pension granted", however, the period for which the person, under
this law, remains entitled to receive one of the granted pensions
of state social insurancethe pension for lost capacity to work
is not defined in this law.
In this context it is to be noted that Article 30 (wording
of 19 May 2005) of the Law on State Social Insurance Pensions is
aimed at defining the conditions for granting the pension for
lost capacity to work, however, it does not consolidate the
period (term) for which the person is paid the pension for lost
capacity to work.
Thus, neither Article 30 (wording of 19 May 2005) of the Law
on State Social Insurance Pensions, nor other articles of this
law contain any provisions consolidating the period (term) for
which pensions for lost capacity to work are paid.
Having taken into account the fact that Article 30 (wording
of 19 May 2005) of the Law on State Social Insurance Pensions is
aimed at defining the conditions of granting the pension for lost
capacity to work, the legislator should have established the
period of payment of the pension for lost capacity to work as one
of the conditions of payment of this pension namely in this
article. If the period of payment of disability (lost capacity to
work) pension were established by a sub-statutory act, one would
violate the requirements that stem from Article 52 of the
Constitution and the constitutional principle of a state under
the rule of law.
Having failed to entrench the period (term) for which the
person is paid the pension for lost capacity to work in Article
30 (wording of 19 May 2005) of the Law on State Social Insurance
Pensions, one violates the imperatives that originate from
Article 52 of the Constitution and the constitutional principle
of a state under the rule of law.
It should be noted that the Vilnius Regional Administrative
Court, the petitioner, does not request to investigate the
compliance of Article 30 (wording of 19 May 2005) of the Law on
State Social Insurance Pensions with the Constitution, still the
legal regulation established in this article interferes in the
disputed legal regulation. The Constitutional Court has held more
than once that having established the fact that provisions of a
law, the compliance of which with the Constitution is not
disputed by the petitioner, are in conflict with the
Constitution, where such provisions interfere in the relations
regulated by the disputed law, the Court must state this fact.
7. Having taken into account the said arguments, one is to
draw a conclusion that Paragraph 1 (wording of 19 May 2005) of
Article 30 of the Law on State Social Insurance Pensions to the
extent that it does not consolidate the period of payment of the
pension for lost capacity to work, is in conflict with Article 52
of the Constitution and the constitutional principle of a state
under the rule of law.
8. It has been mentioned that Articles 28 and 30 of the Law
on State Social Insurance Pensions (wording of 19 May 2005)
provide for two conditions for receiving the pension for lost
capacity to work. According to Article 28 (wording of 19 May
2005) of the Law on State Social Insurance Pensions, a level of
capacity to work must be established to the person upon the
procedure laid down by the Law on the Social Integration of
Persons with Incapacities, due to which he is rated as incapable
or partially capable of working, and this person must fulfil the
conditions established in Articles 30 and 31 of this law. It has
been mentioned that Article 31 "Minimum and Obligatory Period of
State Social Pension Insurance for the Pension for Lost Capacity
to Work" (wording of 19 May 2005) of the Law on State Social
Insurance Pensions establishes inter alia the minimum state
social pension insurance period in order to become entitled to
the pension for lost capacity to work, which should be attained
by the persons who are rated as incapable or partially capable of
working; the minimum period of 2 months of the state social
pension insurance period in order to become eligible for the lost
capacity to work is established to the persons up to 22 years of
age who are rated as incapable or partially capable of working.
It is to be noted that from the case that was investigated
by the Vilnius Regional Administrative Court, the petitioner, in
which the decision was made to apply to the Constitutional Court,
it becomes clear that the doubts of the petitioner are to be
associated solely with one condition of origination of the right
to receive the pension for lost capacity to work, namely the
establishment of the minimum level capacity to work, due to which
the person becomes rated as partially capable of working under
the Law on the Social Integration of Persons with Incapacities.
9. It has been mentioned that the level of capacity to work
is regulated by Article 20 "Establishment of the Level of
Capacity to Work" (wording of 11 May 2004) of the Law on the
Social Integration of Persons with Incapacities.
Paragraph 7 (wording of 11 May 2004) of this article
provides:
"Capacity to work is assessed in percentage and its level is
established by intervals of 5 points, i.e.:
1) if the established capacity to work of the person is 0-25
percent, the person is rated as incapable of working;
2) if the established capacity to work of the person is 30-
55 percent, the person is rated as partially incapable of
working;
3) if the established capacity to work of the person is 60-
100 percent, the person is rated as capable of working."
It is to be held that, according to Paragraph 7 (wording of
11 May 2004) of Article 20 of the Law on the Social Integration
of Persons with Incapacities, the person is rated as partially
capable of working and has the right to the pension for lost
capacity to work if the capacity to work established to him does
not exceed 55 percent (i.e. he must lose at least 45 percent of
his capacity to work).
10. It has been mentioned that disputed Paragraph 4 (wording
of 19 May 2005) of Article 32 of the Law on State Social
Insurance Pensions provides: "The state social insurance pension
for lost capacity to work for the persons who have lost 45-55
percent of their capacity to work shall be calculated in the same
manner as for the persons who have lost 60-70 percent of their
capacity to work and shall then be reduced by 50 percent."
It has been held in this ruling that, according to Paragraph
4 (wording of 19 May 2005) of Article 32 of the Law on State
Social Insurance Pensions, the pension of lost capacity to work
is calculated to the person if he has lost at least 45 percent of
his capacity to work (i.e. not more than 55 percent of capacity
to work are established to him).
Paragraph 7 (wording of 11 May 2004) of Article 20 of the
Law on the Social Integration of Persons with Incapacities
consolidates the requirement to have the capacity to work that
does not exceed 55 percent (i.e. the lost capacity to work must
comprise at least 45 percent), in the event of establishment of
which the person becomes eligible to the pension for lost
capacity to work, and according to Article 32 (wording of 19 May
2005) of the Law on State Social Insurance Pensions, the pension
for lost capacity to work is calculated to the person who has
lost at least 45 percent of his capacity to work (i.e. not more
than 55 percent of capacity to work are established to him).
Thus, the legal regulation that is defined in the Law on
State Social Insurance Pensions and disputed in this case is
inseparable from the provisions of Paragraph 7 (wording of 11 May
2004) of Article 20 of the Law on the Social Integration of
Persons with Incapacities.
Therefore, in the course of investigation whether by the
legal regulation which is established in Paragraph 4 (wording of
19 May 2005) of Article 32 of the Law on State Social Insurance
Pensions (to a certain extent) one did not violate Article 52 of
the Constitution and the constitutional principle of a state
under the rule of law, one must also asses the legal regulation
which is established in Article 20 (wording of 11 May 2004) of
the Law on the Social Integration of Persons with Incapacities in
the aspect of its compliance with Article 52 of the Constitution
and the constitutional principle of a state under the rule of
law, namely, one must assess the fact whether the provision
"Capacity to work is assessed in percentage and its level is
established by intervals of 5 points, i.e. <...> 2) if the
established capacity to work of the person is 30-55 percent, the
person is rated as partially incapable of working; <...>" of
Paragraph 7 (wording of 11 May 2004) of this article to the
extent that it establishes that the person is rated partially
capable of working if not more than 55 percent of capacity to
work are established to him, is not in conflict with Article 52
of the Constitution and the constitutional principle of a state
under the rule of law.
11. When deciding whether the provision "Capacity to work is
assessed in percentage and its level is established by intervals
of 5 points, i.e. <...> 2) if the established capacity to work of
the person is 30-55 percent, the person is rated as partially
incapable of working; <...>" of Paragraph 7 (wording of 11 May
2004) of Article 20 of the Law on the Social Integration of
Persons with Incapacities to the extent that it establishes that
the person is rated partially capable of working if not more than
55 percent of capacity to work are established to him, is not in
conflict with Article 52 of the Constitution and the
constitutional principle of a state under the rule of law, it is
to be noted that, as already held in this Constitutional Court
ruling, the legislator enjoys a wide discretion, while heeding
the Constitution, to choose the model of providing social
assistance and enshrine it in laws (Constitutional Court rulings
of 7 February 2005 and 29 April 2008), as well as discretion to
choose the pensions system (Constitutional Court ruling of 26
September 2007).
12. It has been mentioned that before consolidating the
model of establishing the lost capacity to work (level of
capacity to work) in the Law on the Social Integration of Persons
with Incapacities (wording of 11 May 2004), which came into force
on 1 July 2005, the level of vocational capacity to work was
consolidated solely in the Procedure for Establishing the
Disability as approved by the order of the Minister of Health and
the Minister of Social Security and Labour (wording of 28 April
2000 with subsequent amendments), which established that the
level of vocational capacity to work and its size are associated
with disability inter alia as follows: loss of vocational
capacity to work of 30-60 percentGroup III.
It has been mentioned in this ruling that, as already held
by the Constitutional Court more than once, one of the elements
of the principle of protection of legitimate expectations is the
protection of rights that were acquired under the Constitution,
as well as laws and other legal acts that are not in conflict
with the Constitution; it has also been held that the imperative
of the balance among 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 determine 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 (sub-
statutory legal actsas being in conflict with the Constitution
and/or 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 rulings of 13 December 2004, 20
February 2008, and 24 December 2008).
It has been mentioned that in the Procedure for Establishing
the Disability as approved by the order of the Minister of Health
and the Minister of Social Security and Labour (wording of 28
April 2000 with subsequent amendments) one consolidated the
requirement to have the minimum level of lost vocational capacity
to work of 33 percent in the event of establishing of which the
person could become eligible to the disability pension.
It is to be held that the acquired rights of the person who
had gained the right to the disability pension under the sub-
statutory legal act must be protected and defended.
It has been mentioned that the Law on the Social Integration
of Persons with Incapacities (wording of 11 May 2004)
consolidates the level of 45 percent of lost capacity to work, in
the event of establishing of which the person may become eligible
to the pension for lost capacity to work.
It has been held in this ruling that the minimum level of
lost capacity to work, which is established according to the
valid legal regulation, in order to become eligible to the
pension for lost capacity to work (45 percent of lost capacity to
work) is applicable also to the persons to whom the level of
capacity to work is established due to accidents at work or
consequences of occupational diseases, inter alia to the persons
to whom the disability pension was granted and paid on the basis
of establishment of the minimum level of the lost capacity to
work30 percentby 1 July 2005.
It is to be mentioned that, according to the Provisional Law
on Damage Compensation in Accident at Work or Occupational
Disease Cases (wording of 1 July 1997 with subsequent amendments
and/or supplements), the persons to whom the loss of capacity to
work was established due to accident at work or becoming ill with
an occupational disease, in certain cases are entitled to the
periodic compensation for the lost capacity to work, if they have
lost 30 or more percent of the capacity to work.
13. It has been mentioned that while reorganising the system
of pensionary maintenance, the Constitution must be observed in
every case: the system of pensions may be reorganised, if it is
done only by law, and only guaranteeing inter alia the disability
pensions provided for by the Constitution, as well as observing
the obligations undertaken by the state, which are not in
conflict with the Constitution, to pay corresponding payments to
persons who meet the requirements established by the law.
It has been mentioned that during the reorganisation of the
disability pensions system, which took place in 2005, the Law on
State Social Insurance Pensions (wording of 19 May 2005) which
was set forth in a new wording, as well as the Law on the Social
Integration of Persons with Incapacities (wording of 11 May 2004)
established certain guarantees to the persons to whom the state
social insurance disability pensions were granted and paid
according to the previous legal regulation.
14. The following has been held in this ruling: 1) to the
persons who have attained the age of becoming eligible to the
old-age pension and who were rated as disabled for an unlimited
period, the disability pension shall continue to be paid
(Paragraph 2 (wording of 11 May 2004) of Article 31 of the Law on
the Social Integration of Persons with Incapacities); 2) the
persons under 18 years of age, the persons who were rated as
disabled according to the procedure that was applied before the
date of coming into force of this law, shall be paid pensions
that are not smaller than those established in the legal acts
that were valid by 30 June 2005 until the end of the period
(Paragraph 2 (wording of 11 May 2004) of Article 30 and Paragraph
1 of Article 31 of the Law on the Social Integration of Persons
with Incapacities); 3) to the persons who have not attained the
age of becoming eligible to the old-age pension the disability
pensions shall be paid until the expiry of the transitional
period as defined in the law (30 June 2007), until which the
level of capacity to work must be established (Paragraphs 2 and 4
(wording of 11 May 2004) of Article 32 of the Law on the Social
Integration of Persons with Incapacities); 4) the disability
pensions shall be paid until the expiry of the period of granting
and paying these pensions (Paragraph 1 (wording of 19 May 2005)
of Article 53 of the Law on State Social Insurance Pensions).
It has been mentioned that the purpose of the disability
pension, as consolidated in the Law on State Social Insurance
Pensions (wording of 18 July 1994), was a respective compensation
to the person for the income lost due to the loss of his capacity
to work.
It has been mentioned that, according to the legal
regulation that came into force as from 1 July 2005, the level of
capacity to work is established according to the criteria and
upon the procedure that are consolidated in the legal acts of the
Minister of Health and the Minister of Social Security and
Labour, first of all, according to the established medicinal
criteria (the basic person's capacity to work as assessed in the
percentage of the basic capacity to work, which is adjusted upon
assessment of other factors (functional, vocational and other
criteria)); it is also established that one must assess all
illnesses or traumas that affect his capacity to work, as well as
functional disorders related thereto.
It should be mentioned in this context that, as it is
obvious from the material collected in the case, having
reorganised the model of establishing the disability (lost
capacity to work), the number of recipients of the pension210.7
thousand at the end of the year 2006increased to 213.8 thousand
(at the end of the year 2007) (data of the Department of
Statistics under the Government of the Republic of Lithuania,
www.stat.gov.lt).
15. It has been mentioned that, according to the
Constitution, the legislator has the right to reorganise the
established system of disability pensionary maintenance by
changing the grounds of pensionary maintenance, the persons to
whom the pension is granted and paid, the conditions for granting
and paying the pension, provided one follows the requirements
arising from Article 52 of the Constitution and the
constitutional principle of a state under the rule of law (inter
alia the constitutional principles of protection of legitimate
expectations, legal certainty and legal security).
It has been mentioned that the Constitution protects the
acquired rights; the principle of protection of legitimate
expectations means the protection of acquired rights, i.e.
persons have the right to reasonably expect that the rights
acquired by them will be preserved for the established period and
could be implemented in reality under valid laws or other legal
acts which are not in conflict with the Constitution, and in
certain special casesunder legal acts (inter alia sub-statutory
legal acts) that are later recognised as being in conflict with
the Constitution and/or laws, as well.
It has been held in this ruling that if the disability
pension was granted and paid to the person under the law, it must
be continued to be paid, i.e. one may not terminate its payment
during the established period. The persons who fulfil the
conditions defined in the law have the right to demand that the
state grant and pay this pension to them.
It has been mentioned that, according to the legal
regulation that was valid by 1 July 2005, disability pensions
were granted and paid for a limited and unlimited periods.
The person to whom the disability pension was granted and
paid for an unlimited period, acquired the legitimate expectation
that the pension which was granted to him would be paid for
unlimited period all the time. It has been mentioned that to the
persons who have attained the age of becoming eligible to the
old-age pension and who were rated as disabled for an unlimited
period, according to Paragraph 2 (wording of 11 May 2004) of
Article 31 of the Law on the Social Integration of Persons with
Incapacities that came into force on 1 July 2005, the disability
pension shall continue to be paid.
In the context of the constitutional justice case at issue
it should be mentioned that the person to whom the disability
pension was granted for a limited period, acquired the legitimate
expectation that the pension which was granted to him would be
paid until the expiry of the established period. Such person may
not have legitimate expectation to receive the disability pension
upon the expiry of the established period of payment of the
pension, he may not reasonably expect that if the disability
pension was granted and paid to him for a specific period, it
would continue to be granted and paid upon the expiry of the
established period of payment of this pension. Such expectations
may not be considered legitimate and, under the Constitution,
they are not protected and defended by the state.
It has also been mentioned that during the reorganisation of
the disability pensions system that took place on 1 July 2005,
the Law on State Social Insurance Pensions (wording of 19 May
2005) and the Law on the Social Integration of Persons with
Incapacities (wording of 11 May 2004) established that the
persons to whom, according to the previous legal regulation,
disability was established for a limited period, shall be paid
the disability pensions until the expiry of that period: the
disability pensions to the persons who have not attained the age
of becoming eligible to the old-age pension shall be paid until
expiry of the transitional period as defined in the law (30 June
2007)the date, when the level of capacity to work must be
established to them (Paragraphs 2 and 4 (wording of 11 May 2004)
of Article 32 of the Law on the Social Integration of Persons
with Incapacities); the persons under 18 years of age and the
persons who have attained the age of becoming eligible to the old
age pension, to whom the disability was established under the
previous legal regulation for a limited period, until the expiry
of this period shall be paid these pensions in no smaller amount
than those established in the legal acts that were valid by 30
June 2005 (Paragraph 2 of Article 30 and Paragraph 1 of Article
31 of the Law on the Social Integration of Persons with
Incapacities (wording of 11 May 2004)).
It has also been mentioned that the Procedure for
Establishing the Disability (wording of 28 April 2000 with
subsequent amendments) established that the term of disability,
which is established for a limited period, is 6 months, one year,
and two years. Therefore, a conclusion should be drawn that
according to the legal regulation, which was valid by 1 July
2005, for the disability pensions the maximum period of validity
of disability group could be 2 years. Thus, the disability
pensions that were granted for a limited period could be granted
for the period not exceeding 2 years. Thus, the person to whom
the disability pension was granted for the period of 2 years
acquired the legal expectation that the pension which was granted
to him would be paid until the expiry of the period of the
validity of the disability group, which could not exceed 2 years.
16. Therefore, by establishing the transitional period, the
legislator related it to objective criteriathe expiry of the
term of validity of the disability group, establishment of the
level of capacity to work, which could be established only upon
the expiry of validity of the disability group (payment of the
disability pension)as well as with a certain period which did
not exceed the maximum period of validity of the established
disability group (payment of the disability pension) as
established upon the procedure that was valid by 1 July 2005. In
such case the persons to whom disability was established for the
limited period till 1 July 2005 according to the previous legal
regulation and to whom the state social insurance disability
pensions were granted and paid, retained the acquired rights
(inter alia the right to the disability pension) during the
entire period of payment of the disability pension granted to
them.
Taken into account the fact that the payment of the
disability pensions that were granted and paid to these persons
for a limited period was guaranteed until the very end of the
period of validity of the established disability group, it is to
be held that in respect of these persons the rights acquired by
them to receive the disability pension granted to them for the
specified period, were retained, and their legitimate expectation
that the pension granted to them would be paid until the expiry
of the period of validity of the established group of disability
was not violated.
17. Thus, the legal regulation entrenched in Paragraph 7
(wording of 11 May 2004) of Article 20 of the Law on the Social
Integration of Persons with Incapacities, according to which one
establishes (established) that the level of capacity to work not
exceeding 55 percent entitles to the state social insurance
pension for lost capacity to work, may not be assessed as
violating the imperatives that stem from the constitutional
principle of a state under the rule of law, or as denying the
right of a person that stems from the Constitution, inter alia
its Article 52, to receive the disability pension.
Taking account of the aforementioned arguments, one is to
draw a conclusion that the provision "Capacity to work is
assessed in percentage and its level is established by intervals
of 5 points, i.e. <...> 2) if the established capacity to work of
the person is 30-55 percent, the person is rated as partially
incapable of working; <...>" of Paragraph 7 (wording of 11 May
2004) of Article 20 of the Law on the Social Integration of
Persons with Incapacities to the extent that it is established
that a person is rated as partially capable of working if not
more than 55 percent of capacity to work are established to him,
is not in conflict with Article 52 of the Constitution and the
constitutional principle of a state under the rule of law.
18. It has been mentioned that Paragraph 4 (wording of 19
May 2005) of Article 32 of the Law on State Social Insurance
Pensions provides: "The state social insurance pension for lost
capacity to work for the persons who have lost 45-55 percent of
their capacity to work shall be calculated in the same manner as
for the persons who have lost 60-70 percent of their capacity to
work and shall then be reduced by 50 percent."
19. It has also been mentioned that Paragraph 4 (wording of
19 May 2005) of Article 32 of the Law on State Social Insurance
Pensions, which is disputed by the petitioner, regulated (and
regulates) the calculation of the state social insurance pension
for lost capacity to work. This paragraph of Article 32 (wording
of 19 May 2005) of the Law on State Social Insurance Pensions
specifies concrete levels (expressed in percentage) of lost
capacity to work, upon establishing which and upon recognising
the person as incapable or partially capable of working as per
procedure defined in the Law on the Social Integration of Persons
with Incapacities the pension for lost capacity to work is
calculated.
It has been mentioned that, according to Paragraph 4
(wording of 19 May 2005) of Article 32 of the Law on the Social
Integration of Persons with Incapacities, the pension for lost
capacity to work is calculated to the person if he has lost at
least 45 percent of his capacity to work (i.e. not more than 55
percent of capacity to work are established to him), and
Paragraph 7 (wording of 11 May 2004) of Article 20 of the Law on
the Social Integration of Persons with Incapacities consolidates
the requirement to have the capacity to work that does not exceed
55 percent (i.e. the lost capacity to work must comprise at least
45 percent), in the event of establishment of which the person
becomes eligible to the pension for lost capacity to work.
Thus, these laws entrench the same level of capacity to
worknot exceeding 55 percentand the same level of lost capacity
to workat least 45 percent, in the event of establishment of
which the person becomes eligible to the pension for lost
capacity to work.
20. It has been held in this ruling that the provision
"Capacity to work is assessed in percentage and its level is
established by intervals of 5 points, i.e. <...> 2) if the
established capacity to work of the person is 30-55 percent, the
person is rated as partially incapable of working; <...>" of
Paragraph 7 (wording of 11 May 2004) of Article 20 of the Law on
the Social Integration of Persons with Incapacities to the extent
that it establishes that the person is rated partially capable of
working if not more than 55 percent of capacity to work are
established to him, is not in conflict with Article 52 of the
Constitution and the constitutional principle of a state under
the rule of law.
21. Therefore, having held in this ruling that the provision
"Capacity to work is assessed in percentage and its level is
established by intervals of 5 points, i.e. <...> 2) if the
established capacity to work of the person is 30-55 percent, the
person is rated as partially incapable of working; <...>" of
Paragraph 7 (wording of 11 May 2004) of Article 20 of the Law on
the Social Integration of Persons with Incapacities to the extent
that it establishes that the person is rated partially capable of
working if not more than 55 percent of capacity to work are
established to him, is not in conflict with Article 52 of the
Constitution and the constitutional principle of a state under
the rule of law, one should hold also that the provision "The
state social insurance pension for lost capacity to work to the
persons, who lost 45-55 percent of capacity to work, shall be
calculated in the same manner as to the persons, who lost 60-70
percent of capacity to work <
>" of Paragraph 4 (wording of 19
May 2005) of Article 32 of the Law on State Social Insurance
Pensions to the extent that it establishes that the pension for
lost capacity to work is calculated to the persons, when they
have lost at least 45 percent of capacity to work, is not in
conflict with Article 52 of the Constitution and the
constitutional principle of a state under the rule of law.
22. It has been mentioned that the establishment of a long-
term and permanent loss of capacity to work (disability) was
regulated by the Procedure for Establishing the Disability, which
was approved by Item 1.1 of Resolution No. 226/49 "On the
Approval of the Procedure for Establishing the Long-Term and
Permanent Loss of Capacity to Work (Disability)" of the Minister
of Health and the Minister of Social Security and Labour of 28
April 2000.
The criteria for establishing the level of capacity to work
are regulated by Order No. A1-78/V179 "On the Approval of the
Inventory Schedule of Criteria for Establishment of the Level of
Capacity to Work and the Inventory Schedule of the Procedure for
Establishment of the Level of Capacity to Work" of the Minister
of Social Security and Labour and the Minister of Health of 21
March 2005, by Item 1 of which the Inventory Schedule of Criteria
for Establishment of the Level of Capacity to Work and the
Inventory Schedule of the Procedure for Establishment of the
Level of Capacity to Work were approved.
According to Article 105 of the Constitution, the
Constitutional Court considers and adopts a decision whether the
laws and other acts adopted by the Seimas are not in conflict
with the Constitution (Paragraph 1), and whether acts of the
President and acts of the Government are not in conflict with the
Constitution and laws (Paragraph 2).
Assessing the compliance of legal acts of the ministers, in
which one entrenches the procedure for establishing the
disability and lost capacity to work (level of capacity to work),
as well as of any other legal acts adopted by ministers, with the
Constitution and/or laws is not subject to the Constitutional
Court competence.
However, in its decision of 20 September 2005 the
Constitutional Court held that, under the Constitution, such
legal situations are impermissible where it would not be possible
to verify in a court whether legal acts (parts thereof), inter
alia legal acts issued by ministers, other legal acts of lower
power, as well as legal acts issued by municipalities, whose
control as regards their compliance with the Constitution does
not fall within the jurisdiction of the Constitutional Court, are
not in conflict with the Constitution and laws.
In its ruling of 24 October 2007, the Constitutional Court
held that at present the legal regulation is established by the
Law on the Proceedings of Administrative Cases and other laws
whereby decision on the compliance of the legal acts passed by
other subjects of law-making (thus, those passed not by the
Seimas, the President of the Republic or the Government and not
adopted by referendum) with legal acts of greater power, inter
alia (and, first of all) with the Constitution, is attributed to
the jurisdiction of administrative courts; if the administrative
court recognises such legal act as being in conflict with the
Constitution (other legal act of greater power), then, under the
Constitution and laws, such decision of the said court has erga
omnes impact on the whole practice of the application of
corresponding legal acts (parts thereof).
Thus, an assessment of the compliance of legal acts issued
by ministers with the Constitution and/or laws is the competence
of a respective (competent) administrative court. This court is
bound by the doctrinal provisions of the Constitutional Court,
inter alia the fact that by a sub-statutory act one may not
establish conditions of appearance of a person's right to the
disability pension, and limit or expand the scope of this right
(in comparison to the one established by 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 the provision "The state social
insurance pension for lost capacity to work to the persons who
lost 45-55 percent of capacity to work shall be calculated in the
same manner as to the persons who lost 60-70 percent of capacity
to work <
>" of Paragraph 4 (wording of 19 May 2005, Official
Gazette Valstybės žinios, 2005, No. 71-2555) of Article 32 of the
Republic of Lithuania Law on State Social Insurance Pensions to
the extent that it establishes that the pension for lost capacity
to work, is calculated to the persons, when they have lost at
least 45 percent of capacity to work is not in conflict with the
Constitution of the Republic of Lithuania.
2. To recognise that Article 30 (wording of 19 May 2005,
Official Gazette Valstybės žinios, 2005, No. 71-2555) of the
Republic of Lithuania Law on State Social Insurance Pensions to
the extent that it does not establish the periods of payment of
the pension for lost capacity to work, is in conflict with
Article 52 of the Constitution of the Republic of Lithuania and
the constitutional principle of a state under the rule of law.
This ruling of the Constitutional Court is final and not
subject to appeal.
The ruling is promulgated in the name of Republic of
Lithuania.
Justices of the Constitutional Court:
Armanas Abramavičius
Toma Birmontienė
Pranas Kuconis
Kęstutis Lapinskas
Zenonas Namavičius
Ramutė Ruškytė
Egidijus Šileikis
Algirdas Taminskas
Romualdas Kęstutis Urbaitis