Case No. 14/07-17/08-25/08-39/08
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
RULING
ON THE COMPLIANCE OF PARAGRAPH 2 (WORDINGS OF 23 APRIL
2002 AND 7 JUNE 2007) OF ARTICLE 23 THE REPUBLIC OF
LITHUANIA LAW ON THE STATE SERVICE WITH THE
CONSTITUTION OF THE REPUBLIC OF LITHUANIA
11 December 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 secretaries of the hearing Daiva Pitrėnaitė and
Sigutė Brusovienė,
in the presence of the representative of the Seimas of the
Republic of Lithuania, the party concerned, who was Vytautas
Kurpuvesas, Chairman of the Seimas Committee on State
Administration and Local Authorities,
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 3 April 2009 heard constitutional justice case No.
14/07-17/08-25/08-39/08 subsequent to:
1) the petition (No. 1B-15/2007) of the Klaipėda Regional
Administrative Court, the petitioner, requesting to investigate
whether Paragraph 2 (wordings of 23 April 2002 and 7 June 2007)
of Article 23 of the Republic of Lithuania Law on the State
Service is not in conflict with Paragraph 1 of Article 23 and
Paragraph 1 of Article 48 of the Constitution of the Republic of
Lithuania and the constitutional principle of a state under the
rule of law;
2) the petition (No. 1B-18/2008) of the Vilnius Regional
Administrative Court, the petitioner, requesting to investigate
whether Paragraph 2 (wordings of 23 April 2002 and 7 June 2007)
of Article 23 of the Republic of Lithuania Law on the State
Service was not (is not) in conflict with Paragraph 1 of Article
23 of the Constitution of the Republic of Lithuania, the
provision "Each human being <
> shall have the right <
> to
receive fair pay for work" of Paragraph 1 of Article 48 thereof
and with the constitutional principle of a state under the rule
of law;
3) the petition (No. 1B-26/2008) of the Vilnius Regional
Administrative Court, the petitioner, requesting to investigate
whether Paragraph 2 (wording of 23 April 2002) of Article 23 of
the Republic of Lithuania Law on the State Service was not in
conflict with Paragraph 1 of Article 23 of the Constitution of
the Republic of Lithuania, the provision "Each human being <
>
shall have the right <
> to receive fair pay for work" of
Paragraph 1 of Article 48 thereof and with the constitutional
principle of a state under the rule of law;
4) the petition (No. 1B-44/2008) of the Vilnius Regional
Administrative Court, the petitioner, requesting to investigate
whether Paragraph 2 (wordings of 23 April 2002 and 7 June 2007)
of Article 23 of the Republic of Lithuania Law on the State
Service was not (is not) in conflict with Paragraph 1 of Article
23 of the Constitution of the Republic of Lithuania, the
provision "Each human being <
> shall have the right <
> to
receive fair pay for work" of Paragraph 1 of Article 48 thereof
and with the constitutional principle of a state under the rule
of law.
By the Constitutional Court Decision "On joining petitions
into one case" of 22 September 2009, petition No. 1B-15/2007 of
the Klaipėda Regional Administrative Court and petitions Nos. 1B-
18/2008, 1B-26/2008 and 1B-44/2008 were joined into one case and
it was given reference No. 14/07-17/08-25/08-39/08.
The Constitutional Court
has established:
I
1. The Klaipėda Regional Administrative Court, the
petitioner, was investigating an administrative case. By its
ruling, the court suspended the consideration of the case and
applied to the Constitutional Court with a petition (No. 1B-15/
2007) requesting to investigate whether Paragraph 2 (wording of
23 April 2002) of Article 23 of the Law on the State Service is
not in conflict with Paragraph 1 of Article 23 and Paragraph 1 of
Article 48 of the Constitution and the constitutional principle
of a state under the rule of law.
2. The Vilnius Regional Administrative Court, the
petitioner, was investigating an administrative case. By its
ruling, the court suspended the consideration of the case and
applied to the Constitutional Court with a petition (No. 1B-18/
2008) requesting to investigate whether Paragraph 2 (wordings of
23 April 2002 and 7 June 2007) of Article 23 of the Law on the
State Service was not (is not) in conflict with Paragraph 1 of
Article 23 of the Constitution, the provision "Each human being
<
> shall have the right <
> to receive fair pay for work" of
Paragraph 1 of Article 48 thereof and with the constitutional
principle of a state under the rule of law.
3. The Vilnius Regional Administrative Court, the
petitioner, was investigating an administrative case. By its
ruling, the court suspended the consideration of the case and
applied to the Constitutional Court with a petition (No. 1B-26/
2008) requesting to investigate whether Paragraph 2 (wording of
23 April 2002) of Article 23 of the Law on the State Service was
not in conflict with Paragraph 1 of Article 23 of the
Constitution, the provision "Each human being <
> shall have the
right <
> to receive fair pay for work" of Paragraph 1 of Article
48 thereof and with the constitutional principle of a state under
the rule of law.
4. The Vilnius Regional Administrative Court, the
petitioner, was investigating an administrative case. By its
ruling, the court suspended the consideration of the case and
applied to the Constitutional Court with a petition (No. 1B-44/
2008) requesting to investigate whether Paragraph 2 (wordings of
23 April 2002 and 7 June 2007) of Article 23 of the Law on the
State Service was not (is not) in conflict with Paragraph 1 of
Article 23 of the Constitution, the provision "Each human being
<
> shall have the right <
> to receive fair pay for work" of
Paragraph 1 of Article 48 thereof and with the constitutional
principle of a state under the rule of law.
II
1. The petition (No. 1B-15/2007) of the Klaipėda Regional
Administrative Court, the petitioner, requesting to investigate
whether Paragraph 2 (wording of 23 April 2002) of Article 23 of
the Law on the State Service is not in conflict with Paragraph 1
of Article 23 and Paragraph 1 of Article 48 of the Constitution
and the constitutional principle of a state under the rule of law
is substantiated by these arguments.
It is entrenched in Paragraph 1 of Article 48 of the
Constitution that each human being has the right to freely choose
a job, inter alia that he has the right to have proper, safe and
healthy conditions at work, the right to receive fair pay for
work and social security in the event of unemployment. The right
of a citizen to receive fair pay for work is one of the most
important prerequisites for the implementation of the right to
ownership, which is consolidated in Article 23 of the
Constitution, since, under the Constitution, a right appears in
regard to the person who has completed a commissioned task, to
demand that the whole remuneration for work (pay) which is due
according to the legal acts be paid to him. This right of the
person is guaranteed, protected and defended as the right of
ownership (Constitutional Court ruling of 13 December 2004).
Paragraph 2 of Article 23 of the Law on the State Service
creates preconditions to violate the provision of Paragraph 1 of
Article 48 of the Constitution whereby each human being has the
right to receive fair pay for work. When one takes account of the
relation of the right of every citizen to receive fair pay for
work with the right of ownership, such a legal situation would
mean that legal preconditions are also created for violation of
the constitutional right of ownership, i.e. Article 23 of the
Constitution.
2. The petitions (Nos. 1B-18/2008 and 1B-44/2008) of the
Vilnius Regional Administrative Court, the petitioner, requesting
to investigate whether Paragraph 2 (wordings of 23 April 2002 and
7 June 2007) of Article 23 of the Law on the State Service was
not (is not) in conflict with, and the petition (No. 1B-26/2008)
requesting to investigate whether Paragraph 2 (wording of 23
April 2002) of Article 23 of the Law on the State Service was not
in conflict with Paragraph 1 of Article 23 of the Constitution,
the provision "Each human being <
> shall have the right <
> to
receive fair pay for work" of Paragraph 1 of Article 48 thereof
and with the constitutional principle of a state under the rule
of law, are substantiated by the following arguments.
The provision "Each human being <
> shall have the right <
>
to receive fair pay for work" of Paragraph 1 of Article 48 of the
Constitution also means that, according to the Constitution, a
legal situation, where a state servant, who fulfilled the
assigned task, is not paid, is paid not in due time or is paid
less than it is due according to the laws and other legal acts
passed on the basis of the former, is impermissible. Under the
Constitution, there may not be any such situation where the state
servant who works during days off and holidays as well as at
night, in harmful, highly harmful and hazardous conditions, and
who performs duties beyond the scope of the normal work load or
additional assignments which exceed the established work time
would not be paid or where this work would be paid unjustly
(Constitutional Court ruling of 13 December 2004). Meanwhile, the
legal regulation entrenched in Paragraph 2 (wordings of 23 April
2002 and 7 June 2007) of Article 23 of the Law on the State
Service creates preconditions not to pay, or pay not the entire
sum to the state servant who works during days off and holidays
as well as at night, in harmful, highly harmful and hazardous
conditions, and who performs duties beyond the scope of the
normal work load or additional assignments which exceed the
established work time, since the sum of bonuses and additional
pays may not exceed 70 percent of the positional salary (the
amendment to Paragraph 2 of Article 23 of the Law on the State
Service, which was set forth in the wording of 7 June 2007, did
not create preconditions to avoid this), thus preconditions are
created for violation of the provision "Each human being <
>
shall have the right <
> to receive fair pay for work" of
Paragraph 1 of Article 48 of the Constitution. Taking account of
the fact that the constitutional right to receive fair pay for
work is one of the most important prerequisites for the
implementation of the constitutional right of ownership, it also
needs to be held that such a legal situation would mean that
legal prerequisites are also created for violation of the
constitutional right of ownership, i.e. also Paragraph 1 of
Article 23 of the Constitution, as well as the constitutional
principle of a state under the rule of law, which, among other
requirements, implies that human rights and freedoms, thus, also
the constitutional human right to receive fair pay for work, must
be secured.
III
1. By Ordinance of the Speaker of the Seimas No. 144 of 25
April 2007 and Ordinance of the Speaker of the Seimas No. 191 of
25 September 2008, Violeta Boreikienė, a Member of the Seimas,
was appointed to represent the Seimas, the party concerned.
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were received
from Violeta Boreikienė, a Member of the Seimas, in which it is
maintained that Paragraph 2 (wordings of 23 April 2002 and 7 June
2007) of the Law on the State Service was not (is not) in
conflict with the Constitution. The position of the
representative of the party concerned is substantiated by these
arguments.
1.1. After the entry into force of the Law on the State
Service, which was adopted on 23 April 2002, the application of
the principle of dual limitation upon bonuses and additional pays
paid to state servants began, the essence of which is
establishment of a two-stage system of limitation of bonuses and
additional pays paid to state servants (the first stage
limitations on bonuses and additional pays; the second stage
limitations on the total amount of bonuses and additional pays).
The application of the principle of dual limitation upon
bonuses and additional pays began as from 1 July 2002 as a
measure, which was supposed to make a positive impact while
seeking to achieve the set objectives, inter alia: to avoid
possible abuse in paying additional pays of unlimited amount to
state servants; not to allow the appearance of unreasonably big
differences between the size of the average monthly remuneration
for work of state servants and the annual speed of the increase
of the said remuneration on the one hand, and, on the other hand,
the size of the average monthly remuneration for work of persons
working in the private sector and the annual speed of the
increase of the said remuneration; not to allow the appearance of
unreasonably big differences in remuneration for work among state
servants of categories 1-9 and state servants of categories 10-
20; to discipline the persons (heads of establishments) who admit
state servants to office and orient them so that they would
organise the work of their subordinates in a manner that state
servants work within routine procedure (receiving normal
workload) under established time and only in case of need would
they have to work during days off and holidays, at night, to
perform additional assignments, and to work more intensively
during a working day; to use in a rational manner the allocations
from state and municipal budgets.
1.2. The application of the principle of dual limitation
upon bonuses and additional pays in the state service was began
in establishing such limitation amounts the exceeding of which
was provided only for the future in 6 or 7 years' time. In the
course of discussions at the Seimas about the limitation amounts
one also assessed the experience of other countries in this area
(the information held at that time suggested that, as a rule, the
variable part (various additional pays) of the remuneration for
work in the state service does not exceed the stable part of the
remuneration for work (positional salary and bonuses for the time
of service for the state, qualification, grade (official rank),
etc.). If this proportion is violated, the employee partially
loses the motivation to work under normal regime during his
working time, to increase qualification, to seek career, he
begins to orient himself to additional pays for additional
assignments, etc.
1.3. The provisions of Articles 23, 25, and 26 of the Law on
the State Service, which establish the limitations upon the
bonuses and additional pays paid to state servants, must be
construed and implemented not in isolation and separately from
one another, but in a systemic (complex) manner and in relation
with one another. When one bears in mind the two-stage
limitations upon the payment of bonuses and additional pays to
state servants, which are established in the Law on the State
Service, in the course of the implementation of this law there
should not have occurred (should not occur) any such legal
situation where a state servant is commissioned by the head of
the establishment or by his immediate superior with performance
of work, where he is assigned to work during days off and
holidays as well as at night, to perform duties beyond the scope
of the normal work load or additional assignments which exceed
the established work time, by knowing in advance that this
servant would not be paid, that he would not be paid in due time,
or that he would be paid less than established by laws and legal
acts passed on the grounds of these laws.
According to V. Boreikienė, heads of statutory
establishments and other servants responsible for payment for
work, do not acquire the right not to implement laws and other
legal acts (norms thereof) properly due to their negative
approach to the limitations upon paid bonuses and additional
pays, especially as regards the top limit (70 percent of the
amount of the positional salary), and are not exempted from
responsibility as long as the corresponding law and/or legal act
(norms thereof) is not changed. While implementing the provisions
of the Law on the State Service regarding regulation of
remuneration for work in a systemic (complex) and consistent
manner, the heads of establishments, after they established
bonuses of certain amounts (the total sum of which was close to
their maximum limitation), were not allowed to create any such
conditions, where a possibility would appear not to pay a state
servant for the task assigned to him and carried out by him,
which was performed during days off and holidays as well as at
night, or for work performed overtime and on shifts. The heads of
establishments and other executives whose discretion was limited
(is limited) by the principle of dual limitation upon bonuses and
additional pays, the amounts of the two-stage limitations, and
the top limit of the sum of paid bonuses and additional pays (70
percent of the amount of the positional salary), were not allowed
(did not have the right) to assign additional tasks to their
subordinates, to obligate them to work more intensively during
the working time or to work during days off and holidays as well
as at night, when they knew in advance that they would not have
an opportunity to pay the total sum of additional pays (that
there would appear arrears of remuneration for work). From this
it is possible to draw a conclusion that the arrears of
remuneration for work mostly appeared (appear) due to the fact
that the heads of establishments and immediate superiors
implemented (implement) the provisions of the Law on the State
Service regarding the limitation of the paid bonuses and
additional pays in an unprincipled and non-systemic (non-complex)
manner. In addition, one should not reject the fact that the
heads of statutory establishments and immediate superiors, while
knowing how the provisions of the Law on the State Service
regarding the limitation of the paid bonuses and additional pays
must be implemented, made use (make use) of the possibility to
interpret (construe) these provisions for their own benefit.
1.4. It is noted in the explanations of V. Boreikienė that
from 2002 till 2008 the approach of the Seimas and the Government
towards the principle of dual limitation upon bonuses and
additional pays paid to state servants underwent changes. The
Seimas discussed draft (No. 3132) Law on Amending and
Supplementing Articles 4, 12, 16-1, 23, 26, 37 and 41 of the Law
on the State Service and Supplementing the Law with Articles 23-1
and 43-1, which was prepared by the Government and submitted to
the Seimas on 30 May 2008. The Seimas Committee on State
Administration and Local Authorities, which is the main committee
for consideration of this draft law, upon assessing the remarks
and suggestions submitted by other Seimas committees,
institutions accountable to the Government, trade unions
representing interests of state servants, and other interested
persons, prepared an improved draft law XP-3132 (2), which was
discussed at the committee sitting and was submitted to the
Seimas for consideration. In this improved draft law one suggests
that the overall limitation of bonuses and additional pays
provided for in Paragraph 2 of Article 23 of the Law on the State
Service be abandoned, that a new element of the remuneration for
work of a state servant"payment for work performed during days
off and holidays as well as at night, and for work performed
overtime and on shifts"be entrenched (by providing for amounts
of these payments in a separate article), that differentiated
limitations be established to state servants when they are paid
additional pays etc.
2. On 24 March 2009, Ordinance of the Speaker of the Seimas
No. PP-28 of 19 March 2009 was received at the Constitutional
Court, whereby V. Kurpuvesas, Chairman of the Seimas Committee on
State Administration and Local Authorities, was authorised to
represent the Seimas in the constitutional justice case at issue,
and, in addition, the same ordinance recognised Ordinance of the
Speaker of the Seimas No. 144 of 25 April 2007 and Ordinance of
the Speaker of the Seimas No. 191 of 25 September 2008 (regarding
the authorisation of V. Boreikienė, a Member of the Seimas, to
represent the Seimas at the Constitutional Court) as no longer
valid.
In his written explanations V. Kurpuvesas, Chairman of the
Seimas Committee on State Administration and Local Authorities,
the representative of the Seimas, the party concerned, virtually
assents to the explanations of V. Boreikienė, the former
representative of the Seimas, the party concerned, and,
alongside, he notes that in 2008 the Seimas adopted the Republic
of Lithuania Law on Amending and Supplementing Articles 4, 10,
16, 16-1, 17, 23, 26, 37, 41, 42 of the Law on the State Service,
on Supplementing the Law with Articles 23-1 and 43-1 and on
Amending Chapter II of Annex 3 Thereof.
IV
In the course of the preparation of the case for the
Constitutional Court hearing written explanations were received
from Rimantas Kairelis, State Secretary of the Ministry of Social
Security and Labour of the Republic of Lithuania, from Paulius
Koverovas, State Secretary of the Ministry of Justice of the
Republic of Lithuania, and from Osvaldas Šarmavičius, Director of
the Civil Service Department under the Ministry of the Interior
of the Republic of Lithuania.
V
At the Constitutional Court hearing V. Kurpuvesas, Chairman
of the Seimas Committee on State Administration and Local
Authorities, the representative of the Seimas, the party
concerned, virtually reiterated the arguments set forth in his
written explanations and answered to the questions given by the
justices of the Constitutional Court.
The Constitutional Court
holds that:
I
1. The Klaipėda Regional Administrative Court, the
petitioner, requests to investigate whether Paragraph 2 (wording
of 23 April 2002) of Article 23 of the Law on the State Service
is not in conflict with Paragraph 1 of Article 23 and Paragraph 1
of Article 48 of the Constitution and the constitutional
principle of a state under the rule of law (petition No. 1B-15/
2007).
It is clear from the arguments of the petition of the
Klaipėda Regional Administrative Court, the petitioner, that the
Constitutional Court is requested to investigate the compliance
of Paragraph 2 (wording of 23 April 2002) of Article 23 of the
Law on the State Service with inter alia not entire Paragraph 1
of Article 48 of the Constitution, but only with the provision
"Each human being <
> shall have the right <
> to receive fair
pay for work" of Paragraph 1 of Article 48 thereof.
2. The Vilnius Regional Administrative Court, the
petitioner, requests to investigate whether Paragraph 2 (wordings
of 23 April 2002 and 7 June 2007) of Article 23 of the Law on the
State Service was not (is not) in conflict with Paragraph 1 of
Article 23 of the Constitution, the provision "Each human being
<
> shall have the right <
> to receive fair pay for work" of
Paragraph 1 of Article 48 thereof and with the constitutional
principle of a state under the rule of law (petition No. 1B-18/
23).
3. The Vilnius Regional Administrative Court, the
petitioner, requests to investigate whether Paragraph 2 (wording
23 April 2002) of Article 23 of the Law on the State Service was
not in conflict with Paragraph 1 of Article 23 of the
Constitution, the provision "Each human being <
> shall have the
right <
> to receive fair pay for work" of Paragraph 1 of Article
48 thereof and with the constitutional principle of a state under
the rule of law (petition No. 1B-26/23).
4. The Vilnius Regional Administrative Court, the
petitioner, requests to investigate whether Paragraph 2 (wordings
of 23 April 2002 and 7 June 2007) of Article 23 of the Law on the
State Service was not (is not) in conflict with Paragraph 1 of
Article 23 of the Constitution, the provision "Each human being
<
> shall have the right <
> to receive fair pay for work" of
Paragraph 1 of Article 48 thereof and with the constitutional
principle of a state under the rule of law (petition No. 1B-44/
2008).
5. Disputed Paragraph 2 (wording of 23 April 2002) of
Article 23 of the Law on the State Service prescribed: "The sum
of bonuses and additional pays may not exceed 70 percent of the
positional salary", whereas Paragraph 2 (wording of 7 June 2007)
of Article 23 of the Law on the State Service prescribed: "The
sum of bonuses and additional pays may not exceed 70 percent of
the positional salary. The bonuses established in Items 1 and 5
of Paragraph 1 of Article 25 of this Law shall not be included in
this sum."
6. It is clear from the arguments of the petitions of the
Klaipėda Regional Administrative Court and the Vilnius Regional
Administrative Court, the petitioners, and from the materials of
the cases that these courts investigated the administrative cases
regarding adjudication of part of remuneration for work of a
certain category of state servants, i.e. officials of the
interior service system, for work performed during days off and
holidays as well as at night and for performing additional
assignments which exceeded the established work time.
7. Although the petitioners request to investigate whether
Paragraph 2 (wordings of 23 April 2002 and 7 June 2007) of
Article 23 of the Law on the State Service was not (is not) in
conflict with Paragraph 1 of Article 23 of the Constitution, the
provision "Each human being <
> shall have the right <
> to
receive fair pay for work" of Paragraph 1 of Article 48 thereof
and with the constitutional principle of a state under the rule
of law, it is clear from the arguments of the petitions and the
material of the administrative cases that they have doubts as
regards the compliance of the said legal regulation with the
Constitution in the aspect that it was not allowed that the
officials of the interior service system be paid fairly for the
work performed during days off and holidays as well as at night
and for performing additional assignments which exceeded the
established work time.
8. In this context in needs to be noted that the legal
regulation (established in disputed Paragraph 2 (wordings of 23
April 2002 and 7 June 2007) of Article 23 of the Law on the State
Service) of remuneration for work of other state servants, save
officials of the interior service system, inter alia that of
remuneration for work paid for the work performed during days off
and holidays as well as at night and for performing additional
assignments which exceeded the established work time, is not the
matter of investigation in the constitutional justice case at
issue.
II
1. On 8 July 1999, the Seimas adopted the Republic of
Lithuania Law on the State Service, which came into force on 30
July 1999.
The Law on the State Service (wording of 8 July 1999) laid
down the basic principles of the state service, the status of a
state servant and the legal basis for the management of the state
service (Article 1).
Article 31 of this law prescribed that the remuneration for
work of a state servant shall be comprised of the positional
salary (Item 1), a bonus for the length of service (Item 2), and
additional pays (Item 3).
The same law established limitations upon the amount of the
bonus for the length of service and additional pays paid to a
state servant: the amount (sum) of the bonus for the length of
service could not exceed 30 percent of the positional salary
(Paragraph 3 of Article 33), whereas the amount (sum) of
additional pays could not exceed 50 percent of the positional
salary (Paragraph 2 of Article 34).
2. It needs to be noted that the Law on the State Service
(wording of 8 July 1999) has been amended and/or supplemented
more than once, however, the limitation upon the constituent
elements of the remuneration for work of a state servantthe
amount (sum) of bonuses and the amount (sum) of additional pays
persisted, whereas no limitation upon the total amount (sum) of
the bonuses and additional pays was established in this law. Such
legal regulation was in force till 1 July 2002.
3. On 29 August 2000, the Seimas adopted the Republic of
Lithuania Law on Amending and Supplementing the Law on the State
Service, which came into force on 7 September 2000. Article 27 of
the said law amended and supplemented Article 33 (wording of 8
July 1999) of the Law on the State Service and set it forth in a
new wording. Article 33 (wording of 29 August 2000) of the Law on
the State Service established bonuses paid to statutory state
servants for the grade (official rank), class, rank,
qualification category (Item 2 of Paragraph 1 of Article 33,
Paragraph 2 of Article 33). Under the legal regulation
established in this article, it was also established that the
amount (sum) of the bonuses for the grade (official rank), class,
rank, qualification category could not exceed 30 percent of the
amount of the positional salary (save a bonus for diplomatic
rank) (Paragraph 5 of Article 33).
4. On 23 April 2002, the Seimas adopted the Republic of
Lithuania Law on Amending the Law on the State Service by Article
1 whereof it amended the Law on the State Service (wording of 8
July 1999 with subsequent amendments and supplements). On the
same day the Republic of Lithuania Law on Implementing the Law on
Amending the Law on the State Service was adopted, under
Paragraph 1 of Article 1 whereof the said Law on the State
Service (wording of 23 April 2002) came into force (with certain
exceptions) on 1 July 2002.
The Law on the State Service (wording of 23 April 2002) laid
down the basic principles of the state service, the status of a
state servant, responsibility, remuneration, social and other
guarantees as well as the legal basis for the management of the
state service (Article 1).
5. In the context of the constitutional justice case at
issue it needs to be noted that Paragraph 2 (wording of 23 April
2002) of Article 23 of the Law on the State Service was
entrenched in Chapter VI "Remuneration for Work" of the Law on
the State Service.
6. Article 23 (wording of 23 April 2002) of the Law on the
State Service prescribed:
"Article 23. Remuneration for Work
1. Remuneration for work of a state servant shall comprise:
1) positional salary;
2) bonuses;
3) additional pays.
2. The sum of bonuses and additional pays may not exceed 70
percent of the positional salary."
Thus, Paragraph 1 (wording of 23 April 2002) of Article 23
of the Law on the State Service enumerated the following
constituent parts of remuneration for work of state servants:
positional salary, bonuses, additional payments. In this context
it needs to be mentioned that, under Paragraph 1 (wording of 23
April 2002) of Article 23 of the Law on the State Service, the
positional salary shall be determined for the category of the
position and shall be the same for all positions in the same
category. Paragraph 2 (wording of 23 April 2002) of Article 23 of
the Law on the State Service established the limitation upon the
total amount (sum) of bonuses and additional payments paid to
state servantsthe sum of the bonuses and additional payments
could not exceed 70 percent of the positional salary.
7. The types of bonuses and additional payments paid to
state servants and the conditions of payment thereof were
established in Articles 25 and 26 of the Law on the State
Service.
8. Article 25 (wording of 23 April 2002) of the Law on the
State Service prescribed:
"Article 25. Bonuses
1. State servants shall be paid the following bonuses:
1) for the length of service to the State of Lithuania
(hereinafter referred to as the 'length of service');
2) for the qualification class or qualification category;
3) for the grade (official rank);
4) for the diplomatic rank.
2. Bonuses for the length of service shall be 3 percent of
the positional salary for every three years of service for the
State of Lithuania. The sum of this bonus may not exceed 30
percent of the positional salary.
3. A bonus for the third qualification class shall be 15
percent, for the second qualification class30 percent, and for
the first qualification class50 percent of the positional
salary.
4. The bonus specified in Item 2 of Paragraph 1 of this
Article shall be awarded until the next assessment of the state
servant. The state servant who is assessed under procedure
established in Paragraph 13 of Article 22 of this Law shall be
awarded a bonus until the next assessment of the state servant.
5. The bonus specified in Item 2 of Paragraph 1 of this
Article shall not be paid to state servants of political
(personal) confidence.
6. Bonuses for the grade (official rank) or qualification
category may only be paid to statutory state servants in
accordance with the procedure laid down in the statutes.
Statutory state servants shall not be paid a bonus for the
qualification class, except state servants whose service is
regulated by the Law on the Diplomatic Service.
7. Bonuses referred to in Items 2, 3 and 4 of Paragraph 1 of
this Article shall not exceed 55 percent of the positional
salary."
Thus, under the legal regulation established in Article 25
(wording of 23 April 2002) of this law, bonuses could be paid to
state servants for the length of service, the qualification class
or category, the grade (official rank) and the diplomatic rank.
This article provided for limitations upon the amount of the
bonuses paid to state servants. The total amount (sum) of the
bonuses paid to state servants for the qualification class or
category, the grade (official rank), and the diplomatic rank
could not exceed 55 percent of the positional salary (Paragraph 7
of Article 25), whereas the total amount (sum) of the bonus paid
to state servants for the length of service could not exceed 30
percent of the positional salary (Paragraph 2 of Article 25). It
needs to be noted that bonuses for the official rank and the
qualification category could be paid only to statutory state
servants (Paragraph 6 of Article 25).
9. Article 26 (wording of 23 April 2002) of the Law on the
State Service prescribed:
"Article 26. Additional Pays
1. State servants shall be paid the following additional
pays:
1) for work during days off, on holidays and at night;
2) for work in harmful, highly harmful and hazardous
conditions;
3) for activities exceeding the scope of the normal work
load or for performing additional assignments which exceed the
established work time. Additional assignments for a state servant
shall be formulated in writing.
2. The additional pay specified in Item 3 of Paragraph 1 of
this Article may not be paid for a period exceeding one year
after it was granted, except for state servants of political
(personal) confidence. If a state servant has to work in the
conditions referred to in Item 3 of Paragraph 1 of this Article
for more than one year, such conditions shall be considered to
have become permanent. In this case, the issue of amending the
job description shall have to be settled.
3. The additional pays specified in Items 1, 2 and 3 of
Paragraph 1 of this Article shall not exceed 60 percent of the
positional salary."
Thus, according to the legal regulation established in
Article 26 (wording of 23 April 2002), additional payments could
be paid to state servants for work during days off, on holidays
and at night, for work in harmful, highly harmful and hazardous
conditions, and for activities exceeding the scope of the normal
work load or for performing additional assignments which exceed
the established work time.
Paragraph 3 of Article 26 of the said law established the
limitation upon the total amount (sum) of additional payments
paid to state servantsthe additional payments could not exceed
60 percent of the positional salary.
10. Under the Law on the State Service (wording of 23 April
2002) state servants were grouped into career state servants
(Paragraph 5 of Article 2 defined them as state servants
recruited for an indefinite term to office and having an
opportunity to realise their right to career development in the
civil service in accordance with the procedure laid down in the
Law on the State Service), statutory state servants (Paragraph 6
of Article 2 defined them as state servants whose service is
regulated by a statute approved by the law or by the Law on the
Diplomatic Service providing for special conditions of
recruitment to the state service, performance of duties,
responsibility as well as other conditions related to specific
features of the service and/or having public administrative
powers in respect of persons who are not subordinate to them),
state servants of political (personal) confidence (Paragraph 6 of
Article 2 defined them as state servants recruited for a term of
office of the appointing state politician or the appointing
collegiate state institution or for a term specified in other
laws) and heads of establishments (Paragraph 7 of Article 2
defined them as state servants recruited on the basis of
competition or political (personal) confidence to head a state or
municipal institution or establishment).
11. Under Paragraph 1 (wording of 23 April 2002) of Article
4 of the Law on the State Service, the Law on the State Service
shall apply to state servants without reservation, except for
statutory state servants. Under Paragraph 2 (wording of 23 April
2002) of Article 4 of the Law on the State Service, the
provisions of the Law on the State Service shall apply to
statutory state servants in so far as their status is not
regulated by the statutes or the Law on the Diplomatic Service,
except for the procedure of remuneration laid down in the Law on
the State Service. In this context it needs to be noted that the
procedure for remuneration for work of state servants, which is
also applied to statutory state servants, was established in
Chapter VI "Remuneration for Work" of the Law on the State
Service (wording of 23 April 2002).
Article 4 (wording of 23 April 2002) of the Law on the State
Service has been amended and supplemented more than once,
however, the content of Paragraph 2 thereof in the aspect that
the procedure for remuneration for work established in the Law on
the State Service (wording of 23 April 2002) is also applied to
statutory state servants without reservations has remained
unchanged.
12. In the context of the constitutional justice case at
issue, summing up the legal regulation established in the Law on
the State Service (wording of 23 April 2002) it needs to be held
that it entrenched not only the limitations upon the amount of
the bonuses paid to state servants (the total amount (sum) of the
bonus for the length of service could not exceed 30 percent of
the positional salary (Paragraph 2 of Article 25), the total
amount (sum) of the bonuses for the qualification class or
qualification category, for the grade (official rank), for the
diplomatic rank could not exceed 55 percent of the positional
salary (Paragraph 7 of Article 25)), not only the limitation upon
the amount of the additional pays paid to state servants (the
total amount (sum) of the additional pays paid to state servants
for work during days off, on holidays and at night, for work in
harmful, highly harmful and hazardous conditions, and for
activities exceeding the scope of the normal work load or for
performing additional assignments which exceed the established
work time could not exceed 60 percent of the positional salary
(Paragraph 3 of Article 26)), but also the limitation upon the
total amount (sum) of bonuses and additional paysthe sum of the
bonuses and additional pays could not exceed 70 percent of the
positional salary (Paragraph 2 of Article 23).
13. On 7 June 2007, the Seimas adopted the Republic of
Lithuania Law on Amending and Supplementing Articles 3, 4, 8, 9,
18, 19, 20, 21, 22, 23, 25, 38, 41, 43, 44, 49, 50 and the Annex
of the Law on the State Service and Supplementing the Law with
Articles 22-1, 48-1, 50-1, which came into force (with certain
exceptions) on 1 October 2007.
13.1. Article 11 of the said law supplemented Paragraph 2
(wording of 23 April 2002) of Article 23 of the Law on the State
Service. Paragraph 2 (wording of 7 June 2007) of Article 23 of
the Law on the State Service was set it forth as follows:
"The sum of bonuses and additional pays may not exceed 70
percent of the positional salary. The bonuses established in
Items 1 and 5 of Paragraph 1 of Article 25 of this Law shall not
be included in this sum."
13.2. Article 12 of the aforementioned law supplemented
Paragraph 1 of Article 25 (wording of 13 July 2004) of the Law on
the State Service with Item 5. Paragraph 1 of Article 25 (7 June
2007) of the Law on the State Service inter alia prescribed: "The
following bonuses shall be paid to state servants: <
> 5) one-
time bonus of the amount of the positional salary."
13.3. Thus, under the legal regulation established in
Paragraph 2 of Article 23 (wording of 7 June 2007) of the Law on
the State Service, the bonus for the length of service was no
longer included into the sum of the bonuses and additional pays
paid to state servants, which could not exceed 70 percent of the
positional salary (Item 1 (wording of 23 April 2002) of Paragraph
1 of Article 25 of the Law on the State Service) and the one-time
bonus of the amount of the positional salary was no longer
included into that sum, either (Item 5 (wording of 7 June 2007)
of Paragraph 1 of Article 25 of the Law on the State Service),
however, the provision that the total amount (sum) of other
bonuses and additional pays may not exceed 70 percent of the
positional salary remained intact.
14. As mentioned, it is clear from the arguments of the
petitions of the Klaipėda Regional Administrative Court and the
Vilnius Regional Administrative Court, the petitioners, and from
the materials of the cases, which were submitted to the
Constitutional Court, that the said administrative courts
considered complaints of officials of the internal service system
regarding adjudication of part of remuneration for work performed
during days off and holidays as well as at night and for
performing additional assignments which exceeded the established
work time.
15. On 29 April 2003, the Seimas adopted the Republic of
Lithuania Law on the Approval of the Statute of the Internal
Service which came into force on 1 May 2003. By Article 1 of this
law the Statute of the Internal Service (hereinafter also
referred to as the Statute) was approved.
The Statute (wording of 29 April 2003) laid down the
principles of the internal service, the status of the officers of
the internal service system, recruitment to and dismissal from
the service, enrolment and training at establishments of
professional training in the field of internal affairs,
responsibility of the officers, incentives, social and other
guarantees, peculiarities of activities of the trade unions in
statutory institutions of internal affairs, as well as
peculiarities of recruitment of other state servants to the
service in statutory institutions of internal affairs (Article
1).
16. Section 7 "Remuneration for Work and Other Allowances"
of the Statute of the Internal Service inter alia established the
constituent parts of remuneration for work of officials of the
internal service, the limitation upon the amount (sum) of the
bonuses and the limitation upon the amount (sum) of the
additional pays paid to these officials.
The Statute (wording of 29 April 2003) established
(establishes) types of the bonuses paid to officials of the
system of the internal service. The bonuses for the ranks held
(Article 35), the qualification categories (Article 36) and the
length of service (Article 37) could be paid to officials of the
system of the internal service. The total amount (sum) of the
bonuses for a qualification category and the rank could not
exceed 55 percent of the positional salary (Paragraph 6 of
Article 36).
The Statute (wording of 29 April 2003) established the types
of additional pays paid to officials of the system of the
internal service. It was established that additional pays shall
be paid to officials of the system of the internal service for
work during days off, on holidays and at night (Item 1 of
Paragraph 1 of Article 38), for work in harmful, highly harmful
and hazardous conditions (Item 2 of Paragraph 1 of Article 38),
and for activities exceeding the scope of the normal work load or
for performing additional assignments which exceed the
established work time (Item 3 of Paragraph 1 of Article 38). The
total amount (sum) of the bonuses paid to officials of the system
of the internal service could not exceed 60 percent of the
positional salary (Paragraph 5 of Article 38).
It needs to be noted that the specified articles (parts
thereof) of the Statute repeat the provisions of the Law on the
State Service (wording of 23 April 2002), which regulate the
types of the bonuses and additional pays paid to state servants,
and which regulate the limitation upon the amount (sum) of the
bonuses and the amount (sum) of the additional pays paid to them.
In the context of the constitutional justice case at issue
it also needs to be noted that the Statute did not establish any
limitation upon the total amount (sum) of the bonuses and
additional pays paid to officials of the system of the internal
service. It has been mentioned that the procedure for
remuneration for work of officials of the system of the internal
service was established in Chapter VI "Remuneration for Work" of
the Law on the State Service (wording of 23 April 2002). Thus,
inter alia Paragraph 2 of Article 23 of the said chapter had to
be applied with regard to officials of the system of the internal
service without reservations, i.e., the total amount (sum) of the
bonuses and additional pays paid to these officials and other
state servants could not exceed 70 percent of the positional
salary.
17. Articles 29 and 30 (wording of 23 April 2002) of the
Statute established the limitations upon the working time of
officials of the system of the internal service, inter alia upon
the overtime work, the work performed by the officials during
days off and on holidays, and also they established the cases
when overtime work is obligatory.
Article 29 of the Statute inter alia prescribed:
"Article 29. Officer's Working Hours
1. Standard working hours of officers, except the officers
indicated in paragraphs 3-5 of this Article may not exceed 40
hours per week (the period of 7 days). If there are the grounds
indicated in Article 30 of this Statute, the head of an
establishment of internal affairs may by his own decision
instruct to work for a longer period than the standard working
time per week.
2. An officer may not be instructed to work more than 8
hours of overtime per day. The duration of the shift, including
overtime, may not exceed 24 hours. The duration of the shift
shall comprise the time allotted to instruct and arm officers,
and to account for the results of service. Overtime of one
officer may not exceed 250 hours.
3. Officers performing certain duties and working in shifts
in the establishments of internal affairs which carry out
uninterrupted functions may, by the decision of the head of the
central institution of internal affairs, be assigned to the shift
lasting longer than 24 hours, which exceeds the standard working
time of 40 hours per week (the period of 7 days) as fixed in
Paragraph 1 of this Article, but not exceeding the standard
working time of 48 hours per week (the period of 7 days). The
work of such officers, which does not exceed the standard working
time of 48 hours each week (the period of 7 days) shall not be
considered as overtime. The list of the positions of the officers
referred to in this paragraph, as well as the peculiarities of
accounting of working and rest time of the said officers shall be
set out by the Government.
4. It shall be allowed to instruct the officers referred to
in Paragraph 3 of this Article to work overtime only in the cases
laid down in Article 30 of this Statute. In such cases the
duration of the shift together with overtime may not exceed 26
hours, whereas the overtime of one officer in a year may not
exceed 164 hours."
Article 30 of the Statute prescribed:
"Article 30. Cases when Overtime Work is Obligatory
1. An officer must obey the order or instruction of the
superior, who has the right to appoint to the position, to work
overtime when it is necessary:
1) to rescue people's lives or health;
2) to prevent natural disasters, fires, accidents or
calamities, and to eliminate their consequences;
3) to prevent mass riots or to stop them;
4) to ensure public order during mass events;
5) to fulfil an official task the fulfilment of which,
because of its peculiarities, may not be suspended or terminated;
6) to reinforce the guard of the state border;
7) to prepare for the armed national defence;
8) to strengthen the protection of strategic objects;
9) to ensure the security of official foreign guests;
10) in other cases provided for by laws.
2. In the cases referred to in Paragraph 1 of this Article,
the head of an establishment of internal affairs may instruct
officers to work during days off and on public holidays."
18. When the legal regulation established in Article 30
(wording of 29 April 2003) of the Statute is construed together
with the legal regulation established in Article 29 thereof, it
needs to be noted that the head of an establishment of internal
affairs was allowed, while heeding the norms of working time
established in Article 29 of the Statute, to instruct an official
of the system of the internal service to work overtime, to work
during days off and on holidays, whereas the official of the
system of the internal service was obliged to carry out the
instruction made by the head of the establishment. When Articles
29 and 30 of the Statute are construed together with Paragraph 2
of Article 23 (wordings of 23 April 2002 and 7 June 2007) of the
Law on the State Service it becomes clear that even in the
situations when an official of the system of the internal
service, while carrying out the instruction made by the head of
the establishment, had to work overtime, to work during days off
and on holidays, the total amount (sum) of the bonuses and
additional pays to be paid to him could not exceed 70 percent of
the positional salary.
19. On 18 November 2008, the Seimas adopted the Republic of
Lithuania Law on Amending and Supplementing Articles 4, 10, 16,
16-1, 17, 23, 26, 37, 41, 42 of the Law on the State Service, on
Supplementing the Law with Articles 26-1 and 43-1 and on Amending
Annex 3 to Chapter II Thereof. Article 6 of the said law amended
Article 23 (wording of 7 June 2007) of the Law on the State
Service and set it forth as follows:
"Article 23. Remuneration for Work
Remuneration for work of a state servant shall comprise:
1) positional salary;
2) bonuses;
3) additional pays;
4) payment for work performed during days off, on holidays
and at night, as well as for work performed overtime and on
shifts."
This article no longer contained the disputed provision of
Paragraph 2 (wording of 23 April 2002) of Article 23 of the Law
on the State Service, which used to prescribe: "The sum of
bonuses and additional pays may not exceed 70 percent of the
positional salary", and the disputed provision of Paragraph 2
(wording of 7 June 2007) of Article 23 of the Law on the State
Service, which used to prescribe: "The sum of bonuses and
additional pays may not exceed 70 percent of the positional
salary. The bonuses established in Items 1 and 5 of Paragraph 1
of Article 25 of this Law shall not be included in this sum."
22. By his Decree No. 1K-1610 "On Referring the Republic of
Lithuania on Amending and Supplementing Articles 4, 10, 16, 16-1,
17, 23, 26, 37, 41, 42 of the Law on the State Service, on
Supplementing the Law with Articles 26-1 and 43-1 and on Amending
Annex 3 to Chapter II Thereof adopted by the Seimas of the
Republic of Lithuania Back to the Seimas of the Republic of
Lithuania for Reconsideration" of 27 November 2008, the President
of the Republic referred the said law back to the Seimas for
reconsideration. It was held in Decree of the President of the
Republic No. 1K-1610 of 27 November 2008 that upon abolishment of
the limitation upon the sum of the bonuses and additional pays
paid to state servants, the sum of the bonuses and additional
pays paid to state servants might see a considerable increase and
even exceed the amount of the positional salary. Due to this the
regulation of remuneration for work of state servants, which was
inconsistent and not transparent event at that point, would have
become even more distorted.
The President of the Republic suggested that the Seimas:
"supplement, by means of Article 6 of the Law, the amended
Article 23 of the Republic of Lithuania Law on the State Service
with the following Paragraph 2:
'2. The sum of bonuses and additional pays may not exceed 70
percent of the positional salary. The payment for work performed
during days off, on holidays and at night, as well as for work
performed overtime and on shifts and the bonuses established in
Items 1 and 5 of Paragraph 1 of Article 25 of this Law shall not
be included in this sum.';
amend, by means of Article 7 of the Law, the amended
Paragraph 3 of Article 23 of the Republic of Lithuania Law on the
State Service, and set it forth as follows:
'3. The amount of the additional pays shall be established
by the person who admits the state servant to office. The sum of
the additional pays specified in Items 1 and 2 of Paragraph 1 of
this Article may not exceed 60 percent of the positional salary,
whereas the amount of the additional payment specified in Items 3
and 4 of Paragraph 1 may not exceed 20 percent of the positional
salary.'
21. On 9 December 2008, the Seimas, having considered the
amendments to the said law suggested in the decree of the
President of the Republic, adopted the Republic of Lithuania Law
on Amending and Supplementing Articles 4, 10, 16, 16-1, 17, 23,
26, 37, 41, 42 of the Law on the State Service, on Supplementing
the Law with Articles 26-1 and 43-1 and on Amending Annex 3 to
Chapter II Thereof, which came into force (with certain
exceptions) on 1 January 2009. Article 6 of this law amended and
supplemented Article 23 (wording of 7 June 2007) the Law on the
State Service, and this article was set forth as follows:
"Article 23. Remuneration for Work
1. Remuneration for work of a state servant shall comprise:
1) positional salary;
2) bonuses;
3) additional pays;
4) payment for work performed during days off, on holidays
and at night, as well as for work performed overtime and on
shifts.
2. The sum of bonuses and additional pays may not exceed 70
percent of the positional salary. The payment for work performed
during days off, on holidays and at night, as well as for work
performed overtime and on shifts and the bonuses established in
Items 1 and 5 of Paragraph 1 of Article 25 of this Law shall not
be included in this sum."
Thus, the payment to state servants, inter alia officials of
the system of the internal service, for work during days off, on
holidays and at night, and for performing additional assignments
which exceed the established work time, which used to be, under
the legal regulation established in Paragraph 1 (wording of 23
April 2002) of Article 26 of the Law on the State Service, a part
of the additional pays paid to them, became, under the legal
regulation established in Paragraph 1 (wording of 9 December
2008) of Article 23 of the Law on the State Service, a
constituent part of the remuneration for work of state servants,
inter alia officials of the system of the internal service.
In the context of the constitutional justice case at issue
it needs to be noted that the formula "additional assignments
which exceed the established work time" employed in Item 3
(wording of 23 April 2002) of Paragraph 1 of Article 26 of the
Law on the State Service and the formula "overtime work" employed
in Item 4 (wording of 9 December 2008) of Paragraph 1 of Article
23 of the Law on the State Service are virtually identical as
regards their content.
Having compared Paragraph 2 (wording of 23 April 2002) of
Article 23 of the Law on the State Service, which prescribed:
"The sum of bonuses and additional pays may not exceed 70 percent
of the positional salary", and Paragraph 2 (wording of 7 June
2007) of Article 23 of the same law, which prescribed: "The sum
of bonuses and additional pays may not exceed 70 percent of the
positional salary. The bonuses established in Items 1 and 5 of
Paragraph 1 of Article 25 of this Law shall not be included in
this sum", with Paragraph 2 (wording of 9 December 2008) of
Article 23 of the Law on the State Service, which prescribed:
"The sum of bonuses and additional pays may not exceed 70 percent
of the positional salary. The payment for work performed during
days off, on holidays and at night, as well as for work performed
overtime and on shifts and the bonuses established in Items 1 and
5 of Paragraph 1 of Article 25 of this Law shall not be included
in this sum", it is clear that as regards the aspect disputed by
the petitioner, the legal regulation has undergone essential
changes. The legal regulation entrenched in Article 23 (wording
of 9 December 2008) of the Law on the State Service (differently
from the legal regulation entrenched in Article 23 (wordings of
23 April 2002 and 7 June 2007) of the Law on the State Service)
did not provide that payment for inter alia work during days off,
on holidays and at night, as well as for work overtime is
included into the total amount (sum) limiting the bonuses and
additional pays.
The legal regulation established in Article 23 (wording of 9
December 2008) of the Law on the State Service is not disputed by
the petitioners. Thus, the legal regulation established in this
article is not a matter of investigation in the constitutional
justice case at issue.
22. On 17 July 2009, the Seimas adopted the Republic of
Lithuania Law on Amending Article 25 and Annex 1 of the Law on
the State Service which came into force (with certain exceptions)
on 31 July 2009.
Articles 1 and 2 of this law amended Paragraph 3 of Article
25 (wording of 7 June 2007) of the Law on the State Service
temporarily, from 1 August 2009 till 31 December 2010, the
amounts of bonuses for the qualification class paid to state
servants were reduced.
III
1. As mentioned, the petitioners doubt whether Paragraph 2
(wordings of 23 April 2002 and 7 June 2007) of Article 23 of the
Law on the State Service, in the aspect that it was not allowed
that the officials of the interior service system be paid fairly
for the work performed during days off and holidays as well as at
night and for performing additional assignments which exceeded
the established work time, was not in conflict with Paragraph 1
of Article 23 of the Constitution, the provision "Each human
being <
> shall have the right <
> to receive fair pay for work"
of Paragraph 1 of Article 48 thereof and with the constitutional
principle of a state under the rule of law.
2. The essential feature of the concept of the state service
is that the state service is understood as the service to the
State of Lithuania and the civil Nation, i.e. as a system of the
relations between the state and the persons who are commissioned
(entrusted) with discharging certain state functions in ensuring
execution of public administration and rendition of public
services so that the public interest of the entire state
communitythe civil Nationcould be guaranteed (Constitutional
Court ruling of 20 March 2007).
The legal relations of state service are legal relations
between a state servant and the state, which acts as the employer
of the said person; still, despite similarities, the legal
relations of state service are not identical to labour relations,
which arise between the employee, who is not a state servant, and
the employer (irrespective of whether the relations arise in
state institutions, municipal institutions, or other enterprises,
establishments, and organisations); state servants are a special
social group, the specifics of which are determined by the
purpose of the state service and its social significance;
therefore, the legal status of state servants, and implementation
of the rights and freedoms enjoyed by them under the Constitution
and laws, must bear some important characteristics
(Constitutional Court rulings of 13 December 2004 and 20 March
2007).
The unity of the system of state service does not deny a
possibility to regulate certain relations of state service in a
differentiated manner; a differentiated legal regulation of the
relations of state service is based on particularities of state
(municipal) institutions and functions performed by them, the
place of the said institutions in the system of all the
institutions through which state functions are performed, as well
as on powers established to them, the professional skills
necessary to respective state servants and other important
factors (Constitutional Court rulings of 13 December 2004 and 20
March 2007).
3. In the context of the constitutional justice case at
issue one is to mention these provisions of the official
constitutional doctrine, which were formulated in the
Constitutional Court rulings of 12 July 2001, 13 December 2004
and 20 March 2007, wherein the constitutional concept of the
state service is construed inter alia together with the provision
"Each human being <
> shall have the right <
> to receive fair
pay for work" of Paragraph 1 of Article 48 of the Constitution:
- the right to receive fair pay for work which is entrenched
in Paragraph 1 of Article 48 of the Constitution implies that the
human being must receive fair compensation for work, which would
guarantee the working person and members of his family a normal
subsistence level; the right of every human being to receive fair
pay for work which is entrenched in Paragraph 1 of Article 48 of
the Constitution must be guaranteed to a state servant to the
extent no less than other employees, however, due to the nature
of the state service as a specific labour activity, certain
peculiarities of its implementation are permissible;
- the diverse character of the state service implies that
state servants can perform various work and tasks; state servants
can discharge duties during days off and holidays as well as at
night, they can work in harmful, highly harmful and hazardous or
other conditions which deviate from the routine work; under the
Constitution, there may not be any such situation where the state
servant who works during days off and holidays as well as at
night, in harmful, highly harmful and hazardous conditions, and
who performs duties beyond the scope of the normal work load or
additional assignments which exceed the established work time
would not be paid or where this work would be paid unjustly.
3.1. The opportunity to regulate the relations of the state
service in a differentiated manner also implies an opportunity to
regulate the relations of payment for work of state servants
differently and to establish inter alia different systems of
payment for work of state servants to different groups
(distinguished according to clear and objective criteria) of
state servants.
It was held in the Constitutional Court ruling of 20 March
2007 that the possibility to choose various systems of
remuneration for work and the peculiarities of the relations of
the state service, in comparison with the labour relations, also
imply a possibility to regulate the relations of payment for work
for state servants in a different manner than those of other
employees, inter alia to establish different systems of payment
for work of state servants (as well as of other employees of the
institutions whose activity is remunerated from the budget) and
other working persons.
As mentioned, the unity of the system of state service does
not deny a possibility to regulate certain relations of state
service, inter alia the relations of payment for work of state
servants, in a differentiated manner. The differences in the
amount of the remuneration for work paid to various groups of
state servants depend on a great many objective peculiarities of
the state service, as, for instance, the character of the
corresponding functions ascribed to a state institution, the
complexity and extent of the functions attributed to the state
servant, the responsibility for execution of these functions,
peculiarities of the taken posts, a state servant's professional
level, qualification etc.
3.2. It needs to be noted that the legislator has broad
discretion in choosing and consolidating in laws a certain system
of payment for work of state servants; such system when a salary
of a fixed size is established or such system when the minimum or
maximum salaries are established for the corresponding position
or such system when the remuneration for work is regulated while
applying the coefficient on the basis of which a certain
established value is taken are not impossible; such remuneration
for work may be composed of several constituent parts
(Constitutional Court ruling of 20 March 2007).
The Constitutional Court has also noted that clear criteria
on the basis of which the size of payment for work (remuneration
for work) is established in regard to the state servants are an
essential element of the right of each citizen to receive just
pay for work, and they must be established by the law; the budget
must provide for funds for remuneration for work of the state
servants (Constitutional Court rulings of 13 December 2004, 20
March 2007).
3.3. The legislator, while taking account of the
peculiarities of payment for work, has discretion to establish
various systems of payment for work of state servants, to
establish constituent parts of remuneration for work, to
establish limitations upon one or several constituent parts (or
the sum thereof) of the remuneration for work, however, while
regulating the relations of payment for work of state servants
one must heed the norms and principles of the Constitution, inter
alia the human right stemming from Paragraph 1 of Article 48 of
the Constitution to receive fair pay for work.
3.4. The right to receive fair pay for work entrenched in
Paragraph 1 of Article 48 of the Constitution is inseparable from
the constitutional principles of equal rights, justice, and a
state under the rule of law.
The Constitutional Court has also held more than once that:
- the right to fair pay for work guaranteed in the
Constitution is directly related to the principle of equality of
all persons before the law, the court, and other state
institutions; it is prohibited to diminish one's remuneration for
work on the basis of one's sex, race, nationality, citizenship,
political convictions, one's attitude towards religion, and other
circumstances not related to the professional characteristics of
the employee, if the functions of work of the employee, the scope
of his work etc. have not been changed;
- the constitutional right to fair pay for work is linked
also with one of the elements of the constitutional principle of
a state under the rule of law, i.e. with the constitutional
principle of protection of legitimate expectations; in cases when
a certain remuneration for work has been established for a state
servant (or other employee) by legal acts, then this remuneration
must be paid throughout the duration of the established time;
state servants (and other employees) have the right to reasonably
expect that the rights acquired under the valid legal acts will
be retained for the established period of time and will be
implemented in reality; the legal regulation may be changed only
by following the procedure established in advance and by not
violating the principles and norms of the Constitution; it is
necessary inter alia to follow the principle lex retro non agit;
it is not permitted to deny the legitimate interests and
legitimate expectations of the person by the changes of the legal
regulation;
- the constitutional principle of protection of legitimate
expectations does not mean that the wage paid to the state
servants from the funds of the State Budget or municipal budget
may not be reduced at all, however, this may be done only in
exceptional cases and only if it necessary in order to protect
the values consolidated in the Constitution; even in such
exceptional cases the wage may not be reduced in violation of the
balance entrenched in the Constitution between the interests of a
person and those of the society; the wage may not be reduced only
to separate categories of employees who are remunerated for their
work from the funds of the state budget or municipal budget; the
reduction of the wage must be in line with the constitutional
principle of proportionality.
3.5. In its acts (rulings of 28 March 2006 and 22 October
2007, decision of 13 November 2007) the Constitutional Court has
noted: both the Government which has the powers, under the
Constitution, to execute the state budget, and the Seimas which,
under the Constitution, approves the state budget by a law, may
not decide not to react to such essential change of economic and
financial condition of the state, when due to special
circumstances (economic crisis, natural calamity, etc.) a
particularly difficult economic and financial situation occurs in
the state; in such cases, due to objective reasons there may be
lack of funds for the execution of state functions and for the
satisfaction of public interests; under such circumstances
respective legal regulation may be subject to change; it goes
without saying, upon emerging of a particularly difficult
economic and financial situation in the state there may be
difficulties in collecting the revenue provided for in the law on
the state budget (and in municipal budgets), thus, the required
funds are not obtained for financing respective needs provided
for in the law on the state budget (and municipal budgets); in
such cases (but, certainly, not exclusively such cases) the state
budget may be amended before the end of the budget year; such an
option is expressis verbis provided for in Paragraph 2 of Article
132 of the Constitution; while revising the state budget (and
municipal budgets) the expenses (appropriations) may be reduced.
The Constitutional Court has also held the following: in
case of a difficult economic and financial situation, usually the
financing from the budget to all the institutions which implement
state powers, as well as the financing of various spheres which
are financed from the resources of the budgets of the state and
municipalities, should be revised and reduced (Constitutional
Court rulings of 28 March 2006 and 22 October 2007, decision of
15 January 2009); when due to an extremely difficult economic and
financial situation in the state the legislator adopts a decision
to reduce the remuneration for work of officials and other state
servants (employees) of the institutions that are funded from
state and municipal budgets, the legislator must ascertain that
the economic and financial situation of the state is so difficult
that it calls for a necessity to reduce the remuneration for work
of the said officials and state servants (employees)
(Constitutional Court decision of 15 January 2009); such
reduction of the remuneration for work must be temporary and
grounded upon the circumstances of the extremely difficult
economic and financial situation in the state, as, for instance,
the collection of the state budget revenue is disordered to the
extent that due to this the state is unable to perform the
obligations undertaken by it, and such situation in the state is
not short-termed (Constitutional Court decision of 15 January
2009); under such circumstances, the legislator may change the
legal regulation which establishes the salaries to various
persons, and consolidate the legal regulation on the salaries
which would be less favourable to these persons, if it is
necessary in order to ensure the vital interests of society and
the state and to protect other constitutional values
(Constitutional Court rulings of 28 March 2006 and 22 October
2007, decision of 15 January 2009); however, also in such cases
the legislator must keep the balance between the rights and
legitimate interests of the persons, to whom the less favourable
legal regulation is established and the interests of society and
the state, i.e. the legislator must pay heed to the requirements
of the principle of proportionality (Constitutional Court rulings
of 28 March 2006 and 22 October 2007, decision of 15 January
2009).
3.6. It needs to be noted that the right to receive fair pay
for work is a constitutional human right (Paragraph 1 of Article
48 of the Constitution).
In its rulings the Constitutional Court has held more than
once that, according to the Constitution, it is permitted to
limit the human rights and freedoms, including freedom of
economic activity, in case the following conditions are observed:
this is done by law; the limitations are necessary in a
democratic society in order to protect the rights and freedoms of
other persons and the values entrenched in the Constitution as
well as the constitutionally important objectives; the
limitations do not deny the nature and essence of the rights and
freedoms; the constitutional principle of proportionality is
followed.
When the rights and freedoms of a person, inter alia the
human right to receive fair pay for work, are limited, one is not
allowed to violate the constitutional principle of
proportionality as one of the elements of the constitutional
principle of a state under the rule of law, which also means that
the measures provided for in the law must be in line with the
legitimate objectives which are important to society, and that
these measures do not have to restrain the rights and freedoms of
a person clearly more than necessary in order to reach these
objectives.
It has been mentioned that wages of state servants may be
temporarily reduced when a particularly difficult economic and
financial situation occurs in the state, however, in such a case
one must heed the requirements of the principle of
proportionality. It needs to be emphasised that the
constitutional principle of proportionality is inseparable from
other norms and principles of the Constitution, inter alia the
constitutional principles of equal rights and justice.
In this context the constitutional principle of
proportionality inter alia means that when there is a
particularly difficult economic and financial situation in the
state and when due to this there is a necessity to temporarily
reduce the wages of state servants in order to secure vitally
important interests of society and the state and to protect other
constitutional values, the legislator is under obligation to
establish a uniform and non-discriminatory scale of reduction of
wages of state servants whereby with respect to all categories of
state servants (and other employees financed from the funds of
the state and municipal budgets) the wages would be reduced in a
manner not violating the proportions of the amounts of the wages
established with regard to different categories of state servants
prior to the occurrence of the particularly difficult economic
and financial situation in the state.
While taking account of this, it needs to be noted that the
constitutional institute of the state service implies a certain
hierarchical system of state servants and differentiated amounts
of wages paid to the servants. The proportions of the differences
in the amounts of wages of state servants depend on a number of
objective peculiarities of the state service, as, for instance,
the character of the corresponding functions ascribed to a state
institution, the complexity and extent of the functions
attributed to the state servant, the responsibility for execution
of these functions, peculiarities of the taken posts, a state
servant's professional level, qualification etc. Thus, the
Constitution does not tolerate any such situations where the
wages of state servants, when there is a difficult economic and
financial situation in the state, are reduced disproportionately,
inter alia in a manner, where the amount of the wage of a state
servant of high qualification, who performs a complex job, is
made more similar to the wage of a state servant of lower
qualification, who performs a less complex job, or where the
former wage is equalised with the latter, or where wages of state
servants of certain groups are reduced by taking account of not
the entire remuneration for work received, but only of individual
constituent parts of the remuneration for work of state servants,
etc. In such situations not only the constitutional principles of
proportionality, equal rights and justice would be denied, but
also one would deviate from the constitutional concept of the
state service as well as the provision of Paragraph 1 of Article
48 of the Constitution consolidating the human right to receive
fair pay for work.
Alongside, it needs to be noted that the constitutional
principles of a state under the rule of law, justice and
proportionality do not mean that it is not allowed to establish
the limit upon the amount of the wage of a state servant below
which it would not be permitted to reduce the wage established
for state servants (and other employees whose work is remunerated
from the funds of the state and municipal budgets) even when
there is a particularly difficult economic and financial
situation in the state. It needs to be noted that while
establishing this limit one has to take account of the
circumstance that, under the Constitution, it is not allowed to
establish any such legal regulation whereby the wage of a state
servant becomes reduced to an amount, where the minimal socially
acceptable needs and the living conditions compatible with human
dignity would not be secured.
4. The constitutional right of each human being to receive
fair pay for work entrenched in Paragraph 1 of Article 48 of the
Constitution is to be construed together with the right
(entrenched in the same paragraph) of each human being to have
proper, safe and healthy conditions at work.
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, 29 April 2008 and 2 September 2009). Alongside,
this constitutional right implies the duty of the employer to
secure proper, safe and healthy working conditions. It needs to
be noted that 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 rulings of 29 April 2008 and 2 September
2009).
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, 29 September 2005 and 2 September 2009); the state has the
duty to protect human beings from threats to healthto reduce
dangers to health whereas in certain cases, as far as possible,
to prevent them (Constitutional Court ruling of 2 September
2009).
In the context of the constitutional justice case at issue
it needs to be noted that heads of establishments must organise
the work of the establishment so that one would follow the
limitations established by the legislator upon the state
servants' work, in cases when normal working conditions are
deviated from, inter alia during days off and on holidays as well
as at night, also when duties are performed beyond the scope of
the normal work load or when additional assignments are done
while exceeding the established work time.
5. The Constitutional Court has held more than once that
that the Constitution is an integral act, that all its provisions
are interrelated and constitute a harmonious system. In its
ruling of 13 December 2004, the Constitutional Court held the
following: the right of every citizen to receive fair pay for
work entrenched in Paragraph 1 of Article 48 of the Constitution
is a precondition for implementation of many other constitutional
rights, inter alia it is one of the most important preconditions
for implementation of the right of ownership entrenched in
Article 23 Constitution; a right appears in regard to the person
who has completed a commissioned task, to demand that the whole
remuneration for work (pay) which is due according to the legal
acts be paid to him, and that it be paid in due time, thus, the
remuneration for work of state servants must also be paid within
the time established by laws; this right of the person is
guaranteed, protected and defended as the right of ownership;
according to the Constitution, a legal situation, where a state
servant, who fulfilled the assigned task, is not paid, is paid
not in due time or is paid less than it is due according to the
laws and other legal acts passed on the basis of the former, is
impermissible.
IV
On the compliance of Paragraph 2 (wordings of 23 April 2002
and 7 June 2007) of Article 23 of the Law on the State Service
with Paragraph 1 of Article 23 of the Constitution, the provision
"Each human being <
> shall have the right <
> to receive fair
pay for work" of Paragraph 1 of Article 48 thereof and with the
constitutional principle of a state under the rule of law.
1. It has been mentioned that Paragraph 2 (wording of 23
April 2002) of Article 23 of the Law on the State Service
prescribed:
"Article 23. Remuneration for Work
1. Remuneration for work of a state servant shall comprise:
1) positional salary;
2) bonuses;
3) additional pays.
2. The sum of bonuses and additional pays may not exceed 70
percent of the positional salary."
2. Disputed Paragraph 2 (wording of 23 April 2002) of
Article 23 of the Law on the State Service established the
limitation upon the total amount (sum) of bonuses and additional
payments paid to state servantsthe sum of the bonuses and
additional payments could not exceed 70 percent of the positional
salary. It has been mentioned that, under Paragraph 2 (wording of
23 April 2002) of Article 4 of the Law on the State Service, the
procedure for remuneration for work established in the Law on the
State Service (wording of 23 April 2002) is applied to statutory
state servants, inter alia to officers of the system of the
internal service, without reservations.
3. It has also been mentioned that, under Paragraph 7
(wording of 23 April 2002) of Article 25 of the Law on the State
Service and Paragraph 6 (wording of 29 April 2003) of Article 36
of the Statute of the Internal Service, the total amount (sum) of
the bonuses paid to officers of the system of the internal
service for a qualification category and the rank could not
exceed 55 percent of the positional salary. Under Paragraph 2
(wording of 23 April 2002) of Article 25 of the Law on the State
Service the total amount (sum) of the bonus paid to officers of
the system of the internal service for the length of service
could not exceed 30 percent of the positional salary. Under
Paragraph 3 (wording of 23 April 2002) of Article 26 of the Law
on the State Service and Paragraph 5 (wording of 29 April 2003)
of Article 38 of the Statute of the Internal Service, the total
amount (sum) of the additional pays paid to officers of the
system of the internal service, inter alia for work during days
off, on holidays and at night, and for performing additional
assignments which exceed the established work time, could not
exceed 60 percent of the positional salary.
4. In this ruling inter alia it has been held that heads of
establishments must organise the work of the establishment so
that one would follow the limitations established by the
legislator upon the state servants' work, in cases when normal
working conditions are deviated from, inter alia during days off
and on holidays as well as at night, also when duties are
performed beyond the scope of the normal work load or when
additional assignments are done while exceeding the established
work time.
Thus, the limitation upon the total amount (sum) of bonuses
and additional pays established in Paragraph 2 (wording of 23
April 2002) of Article 23 of the Law on the State Service implies
that also heads and other executives of a statutory establishment
of the internal service had to organise the work of the
establishment inter alia so that one would heed the limitation
upon the payment for work, which is established in Paragraph 2 of
Article 23 of this law, in cases when work was done during days
off and on holidays as well as at night, or when additional
assignments were done while exceeding the established work time.
5. It has been mentioned that, under the Constitution, the
legislator, while taking account of the peculiarities of payment
for work, has discretion to establish various systems of payment
for work of state servants, to establish constituent parts of
remuneration for work, to establish limitations upon one or
several constituent parts (or the sum thereof) of the
remuneration for work.
6. Taking account of the arguments set forth, one is to draw
a conclusion that, in itself, Paragraph 2 (wording 23 April 2002)
of Article 23 of the Law on the State Service was not in conflict
with Paragraph 1 of Article 23 of the Constitution, the provision
"Each human being <
> shall have the right <
> to receive fair
pay for work" of Paragraph 1 of Article 48 thereof and with the
constitutional principle of a state under the rule of law.
7. It has been mentioned that, under the legal regulation
established in Articles 29 and 30 (wording of 29 April 2003) of
the Statute of the Internal Service, the head of an establishment
of internal affairs was allowed to instruct officials of the
system of the internal service to work overtime, to work during
days off and on holidays, whereas the latter were obliged to
carry out the order or instruction made by the head of the
establishment.
When the legal regulation, which is established in Article
23 (wording of 23 April 2002) of the Law on the State Service and
which is disputed by the petitioners, is assessed together with
the legal regulation established in Articles 29 and 30 (wording
of 29 April 2003) of the Statute of the Internal Service, it
needs to be held that there might have been such situations,
where additional pays should have been paid to officers of the
system of internal service for work during days off, on holidays
and at night, and for performing additional assignments which
exceeded the established work time in the amounts which, together
with the sum of other bonuses and additional pays to be paid to
them, exceeded the limit established upon the bonuses and
additional pays in Paragraph 2 (wording of 23 April 2002) of
Article 23 of the Law on the State Service.
It is also clear from the arguments of the petitions
submitter to the Constitutional Court by the Klaipėda Regional
Administrative Court and the Vilnius Regional Administrative
Court, the petitioners, as well as from the material of the
cases, that the said situations are likely to occur.
8. In this context it needs to be noted that neither Article
23 (wording of 23 April 2002) of the Law on the State Service,
nor other articles (parts thereof) of Chapter VI "Remuneration
for Work" (wording of 23 April 2002) of the same law, which
provides that the procedure for remuneration for work of state
servants is also applied to statutory state servants, contained
any provisions whereby it could have been possible to compensate
the servants of the system of the internal service for work
during days off, on holidays and at night, and for performing
additional assignments which exceeded the established work time,
when the sum of the bonuses and additional pays to be paid to
them exceeded the limit established in Paragraph 2 (wording of 23
April 2002) of Article 23 of the Law on the State Service. Thus,
it needs to be held that due to the absence of such provisions in
Chapter VI "Remuneration for Work" (wording of 23 April 2002) of
the Law on the State Service there appeared preconditions for
such situations to occur, where it was impossible to compensate
the servants of the system of the internal service for work
during days off, on holidays and at night, and for performing
additional assignments which exceeded the established work time,
when the sum of the bonuses and additional pays to be paid to
them exceeded the limit established in Paragraph 2 (wording of 23
April 2002) of Article 23 of the Law on the State Service.
9. It has been mentioned that, under the Constitution, inter
alia Paragraph 1 of Article 48 thereof, there may not be any such
situation where the state servant who works during days off and
holidays as well as at night, in harmful, highly harmful and
hazardous conditions, and who performs duties beyond the scope of
the normal work load or additional assignments which exceed the
established work time would not be paid or where this work would
be paid unjustly.
10. The Constitutional Court has held more than once that a
legal gap, inter alia legislative omission, always means that the
legal regulation of corresponding social relations is established
neither explicitly, nor implicitly, neither in the said legal act
(part thereof), nor any other legal acts, even though there
exists a need for legal regulation of these social relations,
while the said legal regulation, in case of legislative omission,
must be established, while heeding the imperatives of the
consistency and inner uniformity of the legal system stemming
from the Constitution and taking account of the content of these
social relations, precisely in that legal act (precisely in that
part thereof), since this is required by a certain legal act of
higher power, inter alia the Constitution itself (Constitutional
Court decisions of 8 August 2006, 5 November 2008, rulings of 2
March 2009 and 22 June 2009).
11. Thus, under the Constitution, inter alia Paragraph 1 of
Article 48 thereof, and the constitutional principle of a sate
under the rule of law, Chapter VI "Remuneration for Work"
(wording of 23 April 2002) of the Law on the State Service, which
was applied to officers of the system of the internal service
without reservations, should have established the legal
regulation whereby it might have been possible to pay justly to
officers of the system of the interior for the work during days
off and holidays as well as at night, and for additional
assignments which exceeded the established work time, when the
sum of the bonuses and additional pays to be paid to them
exceeded the limit established in Paragraph 2 (wording of 23
April 2002) of Article 23 of the Law on the State Service.
12. Taking account of the arguments set forth, one is to
draw a conclusion that Chapter VI "Remuneration for Work"
(wording of 23 April 2002) of the Law on the State Service, to
the extent that it did not establish the legal regulation whereby
it might have been possible to pay justly to officers of the
system of the interior for the work during days off and holidays
as well as at night, and for additional assignments which
exceeded the established work time, when the sum of the bonuses
and additional pays to be paid to them exceeded the limit
established in Paragraph 2 (wording of 23 April 2002) of Article
23 of the Law on the State Service, was in conflict with the
provision "Each human being <
> shall have the right <
> to
receive fair pay for work" of Paragraph 1 of Article 48 of the
Constitution and with the constitutional principle of a state
under the rule of law.
13. It has been mentioned that by Article 11 of the Republic
of Lithuania Law on Amending and Supplementing Articles 3, 4, 8,
9, 18, 19, 20, 21, 22, 23, 25, 38, 41, 43, 44, 49, 50 and the
Annex of the Law on the State Service and Supplementing the Law
with Articles 22-1, 48-1, 50-1, which was adopted by the Seimas
on 7 June 2007, Paragraph 2 (wording of 23 April 2002) of Article
23 of the Law on the State Service was supplemented with the
second sentence and this paragraph (which is also disputed in the
constitutional justice case at issue) was set forth as follows:
"The sum of bonuses and additional pays may not exceed 70
percent of the positional salary. The bonuses established in
Items 1 and 5 of Paragraph 1 of Article 25 of this Law shall not
be included in this sum."
It was also mentioned that, under the legal regulation
established in Paragraph 2 (wording of 7 June 2007) of Article 23
of the Law on the State Service, the bonus for the length of
service was no longer included into the sum of the bonuses and
additional pays paid to state servants, inter alia officers of
the system of the internal service, which could not exceed 70
percent of the positional salary (Item 1 (wording of 23 April
2002) of Paragraph 1 of Article 25 of the Law on the State
Service) and the one-time bonus of the amount of the positional
salary was no longer included into that sum, either (Item 5
(wording of 7 June 2007) of Paragraph 1 of Article 25 of the Law
on the State Service).
14. After the legal regulation established in Paragraph 2
(wording of 23 April 2002) of Article 23 of the Law on the State
Service is compared with the legal regulation established in
Paragraph 2 (wording of 7 June 2007) of Article 23 of the Law on
the State Service, it needs to be held that the legal regulation
established in Paragraph 2 (wording of 7 June 2007) Article 23 of
the Law on the State Service in the aspect disputed by the
petitioner remained virtually the same.
15. After it has been held in this ruling that, in itself,
Paragraph 2 (wording 23 April 2002) of Article 23 of the Law on
the State Service was not in conflict with Paragraph 1 of Article
23 of the Constitution, the provision "Each human being <
> shall
have the right <
> to receive fair pay for work" of Paragraph 1
of Article 48 thereof and with the constitutional principle of a
state under the rule of law, on the grounds of the same arguments
one is also to hold that, in itself, the legal regulation
established in Paragraph 2 (wording of 7 June 2007) of Article 23
of the Law on the State Service was not in conflict with
Paragraph 1 of Article 23 of the Constitution, the provision
"Each human being <
> shall have the right <
> to receive fair
pay for work" of Paragraph 1 of Article 48 thereof and with the
constitutional principle of a state under the rule of law,
either.
16. After the legal regulation established in Chapter VI
"Remuneration for Work" (wording of 23 April 2002) of the Law on
the State Service is compared with the legal regulation
established in Chapter VI "Remuneration for Work" (wording of 7
June 2007) of the Law on the State Service, it needs to be held
that the legal regulation established in Chapter VI "Remuneration
for Work" (wording of 7 June 2007) of the Law on the State
Service in the aspect disputed by the petitioner virtually
remained the same. Chapter VI "Remuneration for Work" (wording of
7 June 2007) of the Law on the State Service also did not
establish the legal regulation whereby it might have been
possible to pay justly to officers of the system of the interior
for the work during days off and holidays as well as at night,
and for additional assignments which exceeded the established
work time, when the sum of the bonuses and additional pays to be
paid to them exceeded the limit established in Paragraph 2
(wording of 7 June 2007) of Article 23 of the Law on the State
Service.
17. After it has been held in this ruling that Chapter VI
"Remuneration for Work" (wording of 23 April 2002) of the Law on
the State Service, to the extent that it did not establish the
legal regulation whereby it might have been possible to pay
justly to officers of the system of the interior for the work
during days off and holidays as well as at night, and for
additional assignments which exceeded the established work time,
when the sum of the bonuses and additional pays to be paid to
them exceeded the limit established in Paragraph 2 (wording of 23
April 2002) of Article 23 of the Law on the State Service, was in
conflict with the provision "Each human being <
> shall have the
right <
> to receive fair pay for work" of Paragraph 1 of Article
48 of the Constitution and with the constitutional principle of a
state under the rule of law, on the grounds of the same arguments
one is also to hold that Chapter VI "Remuneration for Work"
(wording of 7 June 2007) of the Law on the State Service, to the
extent that it did not establish the legal regulation whereby it
might have been possible to pay justly to officers of the system
of the interior for the work during days off and holidays as well
as at night, and for additional assignments which exceeded the
established work time, when the sum of the bonuses and additional
pays to be paid to them exceeded the limit established in
Paragraph 2 (wording of 7 June 2007) of Article 23 of the Law on
the State Service, was in conflict with the provision "Each human
being <
> shall have the right <
> to receive fair pay for work"
of Paragraph 1 of Article 48 of the Constitution and with the
constitutional principle of a state under the rule of law.
Conforming to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Articles 1, 53, 54, 55 and 56 of
the Law on the Constitutional Court of the Republic of Lithuania,
the Constitutional Court of the Republic of Lithuania has passed
the following
ruling:
1. To recognise that Chapter VI "Remuneration for Work"
(wording of 23 April 2002; Official Gazette Valstybės žinios, No.
45-1708) of the Republic of Lithuania Law on the State Service,
to the extent that it did not establish the legal regulation
whereby it might have been possible to pay justly to officers of
the system of the interior for the work during days off and
holidays as well as at night, and for additional assignments
which exceeded the established work time, when the sum of the
bonuses and additional pays to be paid to them exceeded the limit
established in Paragraph 2 (wording of 23 April 2002) of Article
23 of the Law on the State Service, was in conflict with the
provision "Each human being <
> shall have the right <
> to
receive fair pay for work" of Paragraph 1 of Article 48 of the
Constitution of the Republic of Lithuania and with the
constitutional principle of a state under the rule of law.
2. To recognise that Chapter VI "Remuneration for Work"
(wording of 7 June 2007; Official Gazette Valstybės žinios, No.
69-2723) of the Republic of Lithuania Law on the State Service,
to the extent that it did not establish the legal regulation
whereby it might have been possible to pay justly to officers of
the system of the interior for the work during days off and
holidays as well as at night, and for additional assignments
which exceeded the established work time, when the sum of the
bonuses and additional pays to be paid to them exceeded the limit
established in Paragraph 2 (wording of 7 June 2007) of Article 23
of the Law on the State Service, was in conflict with the
provision "Each human being <
> shall have the right <
> to
receive fair pay for work" of Paragraph 1 of Article 48 of the
Constitution of the Republic of Lithuania and with 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 the 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