Case No. 06/2008-18/2008-24/2010
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
RULING
ON THE COMPLIANCE OF ARTICLES 5 AND 6 OF THE REPUBLIC
OF LITHUANIA LAW ON THE STATE PENSIONS OF JUDGES,
PARAGRAPH 3 (WORDING OF 8 DECEMBER 2009) OF ARTICLE 3
OF THE REPUBLIC OF LITHUANIA LAW ON STATE PENSIONS,
AND ITEM 1 OF PARAGRAPH 2 OF ARTICLE 1 AND PARAGRAPH
4 OF ARTICLE 16 OF THE REPUBLIC OF LITHUANIA
PROVISIONAL LAW ON RECALCULATION AND PAYMENT OF
SOCIAL PAYMENTS WITH THE CONSTITUTION OF THE REPUBLIC
OF LITHUANIA
29 June 2010
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Armanas
Abramavičius, Toma Birmontienė, Pranas Kuconis, Kęstutis
Lapinskas, Zenonas Namavičius, Ramutė Ruškytė, Egidijus Šileikis,
Algirdas Taminskas, and Romualdas Kęstutis Urbaitis,
with the secretary of the hearingDaiva Pitrėnaitė,
in the presence of the representatives of the Seimas of the
Republic of Lithuania, the party concerned, who were Julius
Sabatauskas and Algirdas Sysas, Members of the Seimas, and Ona
Buišienė, a senior advisor of the Legal Department of the Office
of the Seimas,
pursuant to Articles 102 and 105 of the Constitution of the
Republic of Lithuania and Article 1 of the Law on the
Constitutional Court of the Republic of Lithuania, in its public
hearing on 15 June 2010 heard constitutional justice case No.
06/2008-18/2008-24/2010 subsequent to the petitions of the
Vilnius Regional Administrative Court, the petitioner, requesting
to investigate whether:
1) Article 5 and Paragraphs 1 and 2 of Article 6 of the
Republic of Lithuania Law on the State Pensions of Judges, to the
extent that the maximum nine-year term of the office of the
Constitutional Court justice is not regarded to be a sufficient
independent basis for granting the state pension of judges of the
maximum amount, are not in conflict with Article 52, Paragraph 1
of Article 103, and Paragraph 1 of Article 104 of the
Constitution of the Republic of Lithuania and the constitutional
principle of a state under the rule of law, also whether the
provision of Paragraph 3 of Article 6 of the same law whereby the
sum of the state pension of judges and the pensions granted under
other laws (state pensions and state social insurance pensions)
may not exceed per person the amount of 1.5 of the average
monthly remuneration for work in the economy of the country, as
announced by the Department of Statistics, for the quarter before
the last quarter preceding the month for which the state pension
of judges is paid, is not in conflict with Article 52, Paragraph
1 of Article 104, and Paragraph 2 of Article 109 of the
Constitution of the Republic of Lithuania, as well as the
constitutional principle of a state under the rule of law
(petition No. 1B-06/2008);
2) Paragraph 2 of Article 6 of the Republic of Lithuania Law
on the State Pensions of Judges is not in conflict with Articles
23 and 52 of the Constitution of the Republic of Lithuania and
the constitutional principle of a state under the rule of law
(petition No. 1B-20/2008);
3) Item 1 of Paragraph 2 of Article 1 of the Republic of
Lithuania Provisional Law on Recalculation and Payment of Social
Payments, to the extent that it is established that this law is
applied to the persons who receive the state pensions that are
granted and paid under the Republic of Lithuania Law on the State
Pensions of Judges, whether Paragraph 4 of Article 16 of the same
law, to the extent that it does not provide for compensation of
the reduced state pensions of judges, and whether Article 1 of
the Republic of Lithuania Law on the Amendment of Articles 3, 6,
8, and 15 of the Law on State Pensions, to the extent that after
amending Article 3 of the Republic of Lithuania Law on State
Pensions, Paragraph 3 (wording of 8 December 2009) thereof
prescribed that the size of the state pension of judges as well
as the sum total of the size of this pension and other state
pensions and state social insurance pensions granted to the same
person may not exceed per person the amount of 1.3 of the average
monthly remuneration for work in the economy of the country, as
announced by the Department of Statistics under the Government of
the Republic of Lithuania, for the quarter before the last
quarter preceding the month for which the state pension is paid,
are not in conflict with Articles 23 and 52 of the Constitution
of the Republic of Lithuania and the constitutional principle of
a state under the rule of law (petition No. 1B-25/2010).
By the Constitutional Court decision of 24 May 2010 the said
petitions were joined into one case and it was given reference
No. 06/2008-18/2008-24/2010.
The Constitutional Court
has established:
I
1. 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 requesting to
investigate whether Article 5 and Paragraphs 1 and 2 of Article 6
of the Law on the State Pensions of Judges, to the extent that
the maximum nine-year term of the office of the Constitutional
Court justice is not regarded to be a sufficient independent
basis for granting the state pension of judges of the maximum
amount, is not in conflict with Article 52, Paragraph 1 of
Article 103, and Paragraph 1 of Article 104 of the Constitution
and the constitutional principle of a state under the rule of
law, also whether the provision of Paragraph 3 of Article 6 of
the same law whereby the sum of the state pension of judges and
the pensions granted under other laws (state pensions and state
social insurance pensions) may not exceed per person the amount
of 1.5 of the average monthly remuneration for work in the
economy of the country, as announced by the Department of
Statistics, for the quarter before the last quarter preceding the
month for which the state pension of judges is paid, is not in
conflict with Article 52, Paragraph 1 of Article 104, and
Paragraph 2 of Article 109 of the Constitution as well as 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 requesting to
investigate whether Paragraph 2 of Article 6 of the Law on the
State Pensions of Judges is not in conflict with Articles 23 and
52 of the Constitution and 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 requesting to
investigate whether Item 1 of Paragraph 2 of Article 1 of the
Provisional Law on Recalculation and Payment of Social Payments,
to the extent that it is established that this law is applied to
the persons who receive the state pensions that are granted and
paid under the Law on the State Pensions of Judges, whether
Paragraph 4 of Article 16 of the same law, to the extent that it
does not provide for compensation of the reduced state pensions
of judges, and whether Article 1 of the Law on the Amendment of
Articles 3, 6, 8, and 15 of the Law on State Pensions, to the
extent that after amending Article 3 of the Law on State
Pensions, Paragraph 3 (wording of 8 December 2009) thereof
prescribed that the size of the state pension of judges as well
as the sum total of the size of this pension and other state
pensions and state social insurance pensions granted to the same
person may not exceed per person the amount of 1.3 of the average
monthly remuneration for work in the economy of the country, as
announced by the Department of Statistics under the Government of
the Republic of Lithuania, for the quarter before the last
quarter preceding the month for which the state pension is paid,
are not in conflict with Articles 23 and 52 of the Constitution
and the constitutional principle of a state under the rule of
law.
II
1. The petition of the Vilnius Regional Administrative
Court, the petitioner, requesting to investigate whether Articles
5 and 6 of the Law on the State Pensions of Judges are not in
conflict with the Constitution (petition No. 1B-06/2008), is
substantiated by the following arguments.
The petitioner notes that in the jurisprudence of the
Constitutional Court the independence of judges is construed as
one of the essential principles of a democratic state under the
rule of law and as a necessary condition of protection of human
rights and freedoms, and it is emphasised that the state has a
duty to ensure such social (material) maintenance for judges
which would be in conformity with the status of the judges when
they are in office, as well as after expiry of the term of their
office; under the Constitution, the social (material) guarantees
established to judges must be such so that they would be in line
with the constitutional status of the judge and his dignity.
Under Item 3 of Paragraph 2 of Article 6 of the Law on the State
Pensions of Judges, the persons who were in the office of a
justice of the Constitutional Court for the maximum nine-year
term established in the Constitution as well as the persons who
gained a five-year and longer (up to 10 years) work record as a
judge in other courts (no matter of what court system and which
court level, thus, in the courts of the lowest level as well) are
granted the minimum pension of only 10 percent of the amount of
the remuneration for work of the judge, which is provided for in
the Law on the State Pensions of Judges, the fact which, in the
opinion of the petitioner, is not in line with the imperative
stemming from the Constitution and formulated in the
jurisprudence of the Constitutional Court to differentiate the
social (material) guarantees of judges, when establishing such
guarantees, according to the court system and the court level
where the judge works, as well as with the principles of justice,
reasonableness, and proportionality that arise from the
constitutional principle of a state under the rule of law. Under
Article 103 of the Constitution, justices of the Constitutional
Court are appointed for a single nine-year term of office,
therefore, according to the petitioner, the said maximum term of
the office of the Constitutional Court justice should be
recognised as a sufficient independent basis for granting the
maximum state pension of judges. Neither Article 5 and Paragraphs
1 and 2 of Article 6 of the disputed law, nor other articles of
this law provide that the maximum nine-year term of the office of
the Constitutional Court justice is a sufficient independent
basis for granting the state pension of judges of such a size
which would be in line with a special status of the
Constitutional Court in the constitutional system of judicial
power, consequently, in the opinion of the petitioner, in this
way, one levels and at the same time diminishes the social
(material) guarantee of the independence of the judge of this
court, entrenched in Paragraph 1 of Article 104 of the
Constitution, and disregards the constitutional imperative to
differentiate the social (material) guarantees of judges, when
establishing such guarantees, according to the court system and
the court level where the judge works.
By invoking the official constitutional doctrine, the
petitioner also notes that the social (material) guarantee of the
judgethe state pension of judgesis protected not only under the
provisions of Article 109 of the Constitution concerning the
independence of the judge and courts, but under Article 52 of the
Constitution as well. Therefore, the fact that, under the
regulation established in the disputed law, the maximum nine-year
term of the office of the Constitutional Court justice is not a
sufficient independent basis for granting the state pension of
judges of the maximum size and that only the state pension of
judges of the minimum size established in this law may be granted
is not in conformity with the provision of the official
constitutional doctrine that when establishing the bases for
granting of the state pension, as well as the sizes of this
pension, one must pay heed to the principles of justice,
reasonableness, and proportionality that stem from the
constitutional principle of a state under the rule of law and
which must be invoked in implementation of the rights of citizens
guaranteed in Article 52 of the Constitution.
In its petition the petitioner also maintains that,
according to the official constitutional doctrine, one must
establish such legal regulation which would ensure the
independence of the judge and courts, thus, also the social
(material) guarantees of the judge not only during the term of
his office, but also upon expiry of his powers; these guarantees
must be real and not nominal. Therefore, in the opinion of the
petitioner, the provision of Paragraph 3 of Article 6 of the
disputed law, whereby the sum of the granted state pension of
judges and the pensions granted under other laws may not exceed
per person the amount of 1.5 of the average monthly remuneration
for work in the economy of the country, denies the expectations
grounded on the constitutional principles of justice,
reasonableness, and proportionality that the pension will in
reality depend upon the amount of the remuneration of the judge
and diminishes the guarantee of the independence of judges itself
upon expiry of powers of the judge.
The petitioner also notes that, according to the official
constitutional doctrine, the social (material) guarantees of the
judge may depend only upon the circumstances related with the
constitutional status of the judge and may not be treated as
replacing other social (material) guarantees which are ensured to
a former judge on other bases. However, under the norm of
disputed Paragraph 3 of Article 6 of the Law on the State
Pensions of Judges, the size of the actually paid state pension
of judges depends upon the pensions and amounts thereof the
person receives under other laws, therefore, as it is maintained
by the petitioner, only a certain part of the granted sum of the
state pension of judges is received in reality; this fact, in the
opinion of the petitioner, obviously shows this guarantee of the
independence of the judge to be merely nominal and, therefore,
not fulfilling the function attributed to it by the Constitution.
2. The petition of the Vilnius Regional Administrative
Court, the petitioner, requesting to investigate whether
Paragraph 2 of Article 6 of the Law on the State Pensions of
Judges is not in conflict with the Constitution (petition No. 1B-
20/2008), is substantiated by the following arguments.
The petitioner notes that the imperative of the
constitutional protection of the remuneration of the judge and
his other social (material) guarantees arises from the principle
of the independence of the judge and courts, which is entrenched
in the Constitution (inter alia Article 109 thereof). In the
jurisprudence of the Constitutional Court it is emphasised that
the state has a duty to ensure such social (material) maintenance
for judges which would be in conformity with the status of the
judges when they are in office, as well as after expiry of the
term of their office, as well as to establish to judges such
social (material) guarantees which would be in line with the
constitutional status of the judge and his dignity and which
would be real and not nominal. In the opinion of the petitioner,
disputed Paragraph 2 of Article 6 of the Law on the State
Pensions of Judges, wherein granting of the state pensions of
judges and payment thereof are linked to a five-year interval of
work record and to a fixed percent of the average remuneration
for work received by the judge according to the corresponding
five-year interval of work record, violates the right of the
person to receive payments of his well-earned pension according
to an exact interval of his work record guaranteed under Article
52 of the Constitution. At the same time, in the opinion of the
petitioner, disputed Paragraph 2 of Article 6 of the said law
violates the guarantees of the protection of ownership rights,
which are entrenched in Article 23 of the Constitution, as
pension payments constitute part of one's ownership.
In addition, the petitioner points out that the disputed
legal regulation also violates the constitutional principle of
the protection of legitimate expectations and that of justice,
since a five-year interval of work record as a judge established
by Paragraph 2 of Article 6 of the Law on the State Pensions of
Judges, without differentiating the size of the granted pension
according to each year of work record as a judge, unreasonably
limits the possibility of a person who has a longer work record
as a judge (e.g., 13 years) than the minimum of the interval of
work record to receive the well-earned pension.
3. The petition of the Vilnius Regional Administrative
Court, the petitioner, requesting to investigate whether Item 1
of Paragraph 2 of Article 1 and Paragraph 4 of Article 16 of the
Provisional Law on Recalculation and Payment of Social Payments
and Article 1 of the Law on the Amendment of Articles 3, 6, 8,
and 15 of the Law on State Pensions are not in conflict with the
Constitution (petition No. 1B-25/2010), is substantiated by the
following arguments.
The petitioner points out that, on 9 December 2009, the
Seimas adopted the Provisional Law on Recalculation and Payment
of Social Payments, in Item 1 of Paragraph 2 of Article 1 whereof
it is prescribed that this law is applied to the persons who
receive the state pensions that are granted and paid under inter
alia the Law on the State Pensions of Judges. Paragraph 4 of
Article 16 of the disputed law establishes an obligation to the
Government till 1 July 2010 to prepare and approve the inventory
schedule of the procedure for compensation of the reduced state
social insurance pensions of old age and of lost capacity to
work. Thus, according to the petitioner, having reduced the state
pensions of judges, the compensation thereof is not provided for
in the disputed law.
The doubts of the petitioner regarding the compliance of the
disputed provisions of the Provisional Law on Recalculation and
Payment of Social Payments with the Constitution are
substantiated by the provisions of the official constitutional
doctrine that the judge must be not only of high professional
qualification and impeccable reputation, but also materially
independent and feel secure as to his future; the social
(material) guarantees of the principle of the independence of the
judge that arise from the Constitution mean that the state has a
duty to ensure such social (material) maintenance for judges
which would be in conformity with the status of judges when they
are in office, as well as after expiry of the term of their
office; under the Constitution, the social (material) guarantees
established to judges must be such so that they would be in line
with the constitutional status of the judge and his dignity; the
social (material) guarantees of judges which are established
(applied) to judges upon expiry of their powers (in particular,
if they are linked with certain periodic payments such as
pensions) could become (in case the economic or social situation
becomes changed) not only unreal, but also nominal, thus,
fictitious, if they were applied to the judges whose powers have
already expired such as were established at the said time, but
which, with respect to these judges, would not be reviewed in a
corresponding way, while other judges of the courts of the same
system and the same level, whose powers will expire later, would
be established bigger corresponding guarantees (in case the
economic or social situation becomes changed). The Vilnius
Regional Administrative Court notes that the requirements for the
social (material) guarantees of judges are also entrenched in
international documents.
The petitioner also notes that inseparable elements of the
principle of a state under the rule of law are the protection of
legitimate expectations, legal certainty, and legal security and
that these principles imply that the state must fulfil the
undertaken obligations to the person. One of the elements of the
principle of the protection of legitimate expectations is the
protection of rights that are acquired under the Constitution as
well as laws and other legal acts which are not in conflict with
the Constitution. Under the official constitutional doctrine, the
persons who have been granted and paid the state pension of
judges have the right to demand that the payments be paid further
to them in the amounts which were granted and paid previously.
Thus, it is not permitted to deny the acquired rights and
legitimate interests of the person by the changes of the legal
regulation.
In the opinion of the petitioner, the reduction of pensions
of judges without having established any mechanism of
compensation, thereby ignoring the Constitutional Court rulings,
violates the principle of a state under the rule of law as well
as the main elements thereof: the protection of legitimate
expectations, legal certainty, and legal security as well as the
constitutional principles of proportionality and justice. The
petitioner maintains that the right to demand the payments of
pensionary maintenance that are established in the Constitution
and laws arises from Article 52 of the Constitution, while
proprietary aspects of this right are protected under Article 23
thereof, and notes that the disputed legal regulation
unreasonably limits the right of the person to receive his well-
earned and granted pension. Therefore, the Vilnius Regional
Administrative Court has doubts as regards the compliance of such
legal regulation with Articles 23 and 52 of the Constitution and
the constitutional principle of a state under the rule of law.
The doubts of the Vilnius Regional Administrative Court
regarding the compliance of the provision of the Law on the
Amendment of Articles 3, 6, 8, and 15 of the Law on State
Pensions, whereby the maximum size of the state pension
established in the Law on State Pensions as well as the sum of
the size of this pension and state pensions and state social
insurance pensions granted to the same person was reduced per
person from the amount of 1.5 of the average monthly remuneration
for work in the economy of the country, as announced by the
Department of Statistics, for the quarter before the last quarter
preceding the month for which the state pension is paid to 1.3 of
this amount, with the Constitution is substantiated by the
provisions of the official constitutional doctrine of the
independence of the judge and courts as well as other provisions
related with the legal regulation of the state pensions of
judges. The petitioner also notes that the general law (Law on
State Pensions) may not amend the special law (Law on the State
Pensions of Judges) and that the state pension of judges was
reduced twice, i.e. both by the disputed Law on the Amendment of
the Law on State Pensions and the Provisional Law on
Recalculation and Payment of Social Payments. Thus, the
petitioner doubts whether the Law on the Amendment of Articles 3,
6, 8, and 15 of the Law on State Pensions, to the extent that the
maximum size of the state pension of judges as well as the size
of the sum of this pension and other pensions granted to the same
person were reduced, is not in conflict with the Constitution.
III
1. In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were received
from the representatives of the Seimas, the party concerned, who
were Julius Sabatauskas and Raimondas Šukys, Members of the
Seimas, and Ona Buišienė, a senior advisor of the Legal
Department of the Office of the Seimas, wherein it is maintained
that Article 5 and Paragraphs 1 and 2 of Article 6 of the Law on
the State Pensions of Judges are not in conflict with Article 52,
Paragraph 1 of Article 103, and Paragraph 1 of Article 104 of the
Constitution and the constitutional principle of a state under
the rule of law, and that Paragraph 3 of Article 6 of the same
law is not in conflict with Article 52, Paragraph 1 of Article
104, and Paragraph 2 of Article 109 of the Constitution and the
constitutional principle of a state under the rule of law. The
position of the representatives of the Seimas, the party
concerned, is substantiated by the following arguments.
1.1. Article 5 of the Law on the State Pensions of Judges,
which is disputed by the petitioner, entrenches a summing method
of calculation of the person's work record as a judge (in various
court systems, as a judge of an international court). This
summing method enables to calculate the total duration of the
work record as a judge (irrespective of the court system and the
court level), which, among other things, has influence on the
percentage of the state pension of judges being calculated. If
the maximum size of the state pension of judges were linked only
with the term of office in a concrete court system, court, or
court level, this would create preconditions to level the social
guarantees of those judges who consistently and continuously
worked as judges (e.g., for 20 years and more) in various court
systems and pursued the professional career of a judge. The
provision that justices of the Constitutional Court are
"appointed for a single nine-year term of office" of Paragraph 1
of Article 103 of the Constitution does not allow to assess it as
entrenching an independent basis of social maintenance of the
Constitutional Court justice for granting the pension of judges
of the maximum size, since this provision entrenches the term of
powers of the judge. The Constitutional Court, which, under the
Constitution, executes the constitutional judicial control, is
considered to be part of the court system (the Constitution
provides for the constitutional purpose, peculiarities of
competence, the procedure for formation, limitations of
activities thereof, etc.). Therefore, the legal regulation of the
size of the state pension of the Constitutional Court justices
whose powers have expired cannot be separated from the context of
the whole system of courts as judicial power, also from that of
the social guarantees of the whole corps of judges and other
persons who have the right to receive state pensions.
1.2. The calculation of the size of the state pension of
judges is regulated in Paragraphs 1 and 2 of Article 6 of the Law
on the State Pensions of Judges. The following provisions
entrench the criteria for calculation of the state pensions of
judges: first, the work record as a judge is differentiated
according to its duration; second, the state pension of judges is
calculated from the average remuneration for work received in
last 5 years before the termination of holding the office of the
judge; and, third, judges are granted a certain percentage
amounts of the state pension. The whole of all these criteria has
influence on the size of the state pension of judges granted to
the judge. Out of the said criteria, namely the average
remuneration for work determines the size of the state pension
granted to the judge, since the average remuneration for work of
judges in different court systems and court levels
(correspondingly of a higher and lower level) differs due to the
base sizes of the remuneration (positional salary) coefficient
that is established to judges and which has influence on the
average remuneration.
1.3. Paragraph 3 of Article 6 (which is disputed by the
petitioner) of the Law on the State Pensions of Judges entrenches
limitation upon the size of the state pension paid to judges.
Such limitation is not only entrenched with regard to granting
the state pension of judges, but it is also applied in the whole
system of state pensions. The said limitation is grounded on
peculiarities of state pensions and differences (in the nature,
purpose) thereof from the state social insurance old age pension
as well as other state social insurance pensions. The state
pension of judges, as one of the types of state pensions, does
not replace the state social insurance pension. The source of
payment of the state pension of judges (pensions of other types
of state pensions as well) is the funds of the State Budget. The
constitutional principle of responsible governance obligates the
Seimas to plan and use the funds of the State Budget responsibly
and rationally. When planning and using the funds of the State
Budget, account is taken of the indicators of the economic and
financial system of the country, therefore, the Seimas may
entrench a criterion which would reflect the state of the economy
of the country and would express certain limitation such as "the
sum total of state pensions and state social insurance pensions
may not exceed per person the amount of 1.5 of the average
monthly remuneration for work in the economy of the country" and
which would balance not only the system of all the state pensions
paid from the State Budget, but also the system of state social
insurance, the fact which would be in conformity with the
constitutional imperative of social harmony as well as the
principles of justice, reasonableness, and proportionality.
2. In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were received
from the representatives of the Seimas, the party concerned, who
were A. Sysas, a Member of the Seimas, and Ona Buišienė, a senior
advisor of the Legal Department of the Office of the Seimas,
wherein it is maintained that Paragraph 2 of Article 6 of the Law
on the State Pensions of Judges is not in conflict with Articles
23 and 52 of the Constitution and the constitutional principle of
a state under the rule of law. The position of the
representatives of the Seimas, the party concerned, is
substantiated by the following arguments.
2.1. The state pension of judges constitutes one type of the
state pensions, and it is linked with the status of the judge.
Receipt of this pension is linked not with social insurance
pension contributions of an established size. This pension does
not replace the state social insurance pension, it is neither the
primary, nor the main pension, and it is not a privilege, either.
The source of payment of the state pension of judges (as well as
of other types of state pensions) is the funds of the State
Budget.
2.2. The criteria for differentiation of the size of the
state pensions of judges are common to judges of the all court
systems. The size of the pension calculated to the judge is
determined not by the criterion of the work record, which was
indicated by the petitioner, alone, but by the whole of the
specified criteria: the work record, the average remuneration for
work received in last 5 years before the termination of holding
the office of the judge, and the percentage amount. When
establishing, by means of the law, the conditions for granting
and payment of the state pensions of judges (also when choosing
the criteria), the Seimas enjoys broad discretion. The criterion
of the person's work record as a judge (the application of a
five-year interval of the work record as a judge) is chosen
seeking to differentiate the state pensions of judges not only
according to the work record, but also according to the
professional career of judges. By entrenching the criterion of
the work recorda five-year interval of the person's work record
as a judgethe Seimas took into account the institute of
promotion of judges (which, among other things, entrenches
differentiated requirements to the persons who seek to become
judges and heads of courts of certain court systems and court
levels), which is regulated in the Republic of Lithuania Law on
Courts. This law, besides other requirements, also entrenches the
requirement to the judge who seeks a career in a certain court
system and court level to have the minimum five-year work record.
Therefore, in the opinion of the representatives of the party
concerned, there is no basis to maintain that a five-year
interval of the work record as a judge, which is established by
such legal regulation in order to differentiate the size of the
state pension of judges, violates the principles of legitimate
expectations and justice.
2.3. The conditions for granting and payment of the state
pension of judges as well as the establishment of the size of
this pension by taking into account the constitutional legal
status of the judge cannot be opposed to legitimate expectations
and the rights of ownership of other persons who, under laws,
have the right to receive state pensions of other types. When
establishing the conditions for granting and payment of the state
pension as well as sizes of the state pension to the groups of
these persons, a criterion of dignity is applied to them, as well
as to the persons who have the right to receive the state pension
of judges, and the rights of those persons are also protected by
the aspect of ownership. The Constitutional Court has held more
than once that the protection of legitimate expectations, legal
certainty, and legal security are inseparable from the principle
of a state under the rule of law. Thus, the legal regulation of
the state pensions of judges is implemented systemically, by also
taking account of the available financial resources of the state,
which are allocated to ensure the functioning of the whole system
of state pensions.
3. In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were received
from the representative of the Seimas, the party concerned, who
was Ingrida Valinskienė, a Member of the Seimas, wherein it is
maintained that Item 1 of Paragraph 2 of Article 1 and Paragraph
4 of Article 16 of the Provisional Law on Recalculation and
Payment of Social Payments as well as Article 1 of the Law on the
Amendment of Articles 3, 6, 8, and 15 of the Law on State
Pensions are not in conflict with Articles 23 and 52 of the
Constitution and the constitutional principle of a state under
the rule of law. The position of the representative of the
Seimas, the party concerned, is substantiated by the following
arguments.
3.1. The legislator, while establishing which persons are
granted and paid the state pension, the grounds and conditions
for granting and payment of the state pension, as well as the
sizes of this pension, is bound by the constitutional imperative
of social harmony and the principles of justice, reasonableness
and proportionality. Granting and payment of the state pension
must not become a privilege, therefore, a conclusion is to be
made that having entrenched an exception in the Provisional Law
on Recalculation and Payment of Social Payments and having
prescribed that this law is not applied to the persons who
receive the state pensions granted and paid under the Law on the
State Pensions of Judges, one would establish a regulation which
would apparently violate the principles entrenched in the
Constitution. Under the doctrine formulated by the Constitutional
Court, the Constitution does not protect and defend any such
rights acquired by the person which are privileges as to their
content; defence and protection of privileges would mean that one
violates the constitutional principles of equal rights of persons
and justice, as well as the imperative of harmonious society
enshrined in the Constitution, thus, also the constitutional
principle of a state under the rule of law. It needs to be noted
that the disputed norms of the law entrench a proportional
protection of the material needs of the persons who receive the
lowest payments of social protection and income from work.
3.2. Under Paragraph 4 of Article 16 of the Provisional Law
on Recalculation and Payment of Social Payments, compensation of
other payments, as well as of the state pensions of judges, is
not provided for. Such regulation is established on the basis of
the constitutional principle of a state under the rule of law,
which implies various requirements for the legislator and other
law-making entities. One of such requirements is a duty to
establish in legal acts requirements based on provisions of
general character, having assessed that the differentiated legal
regulation must be grounded only on objective differences of the
situation of subjects of public relations regulated by respective
legal acts. It needs to be noted that, under the Constitution,
the legislator, when passing a law or other legal act the
implementation of which requires funds, must provide for the
funds necessary for the implementation of such a law or other
legal act. Under the Constitution, the legislator may not create
any such legal situation where upon passing of law or other legal
act the implementation of which requires funds, such funds are
not allocated or the allocation thereof is not sufficient. When
establishing the disputed regulation, account was also taken of
the economic and social situation of the country of that time,
therefore, the legislator followed the doctrine formulated by the
Constitutional Court that legal acts may not require impossible
things (lex non cogit ad impossibilia). If such compensation of
the reduced payments were established, such regulation could not
be implemented in reality; moreover, legal preconditions would be
created for emergence of the expectations that would be
impossible to be properly satisfied and the fulfilment of which
could cause an even more difficult economic situation in the
country, and the funds necessary for the compensation would
become a burden also to those persons the payments to whom have
been reduced.
3.3. In its ruling of 3 December 2003, the Constitutional
Court noted that state pensions differ in their nature and
character from state social insurance old age pensions.
These pensions are granted to persons for their service or merits
to the State of Lithuania as well as a compensation to victims
and are paid from the State Budget. The Constitutional Court
emphasised that state pensions are not a privilege. The state
pays these pensions by taking account of the resources of its
budget funds and its financial capability. These peculiarities of
state pensions imply the fact that the legislator, while taking
account of all significant circumstances and paying heed to the
Constitution, may establish the maximum size of such pensions or
entrench various ways for establishment of the size of such a
pension and he is under no obligation to compensate receivers of
these pensions for the loss.
IV
At the Constitutional Court hearing, the representatives of
the Seimas, the party concerned, who were J. Sabatauskas and A.
Sysas, Members of the Seimas, and Ona Buišienė, a senior advisor
of the Legal Department of the Office of the Seimas, virtually
reiterated the arguments set forth in their written explanations
and answered to the questions of justices.
The Constitutional Court
holds that:
I
1. On 8 December 2009, the Seimas adopted the Law on the
Amendment of Articles 3, 6, 8, and 15 of the Law on State
Pensions.
The petitioner requests inter alia to investigate whether
Article 1 of the Law on the Amendment of Articles 3, 6, 8, and 15
of the Law on State Pensions, to the extent that after amending
Article 3 of the Law on State Pensions, Paragraph 3 (wording of 8
December 2009) thereof prescribed that the size of the state
pension of judges as well as the sum total of the size of this
pension and other state pensions and state social insurance
pensions granted to the same person may not exceed per person the
amount of 1.3 of the average monthly remuneration for work in the
economy of the country, as announced by the Department of
Statistics under the Government of the Republic of Lithuania, for
the quarter before the last quarter preceding the month for which
the state pension is paid, is not in conflict with Articles 23
and 52 of the Constitution and the constitutional principle of a
state under the rule of law.
While taking account of the fact that Article 1 of the Law
on the Amendment of Articles 3, 6, 8, and 15 of the Law on State
Pensions amended inter alia Paragraph 3 (wording of 12 December
2006) of Article 3 of the Law on State Pensions, it needs to be
held that the petitioner doubts whether Paragraph 3 (wording of 8
December 2009) of Article 3 of the Law on State Pensions, to the
extent that it is prescribed that the size of the state pension
of judges as well as the sum total of the size of this pension
and other state pensions and state social insurance pensions
granted to the same person may not exceed per person the amount
of 1.3 of the average monthly remuneration for work in the
economy of the country, as announced by the Department of
Statistics under the Government of the Republic of Lithuania, for
the quarter before the last quarter preceding the month for which
the state pension is paid, is not in conflict with Articles 23
and 52 of the Constitution and the constitutional principle of a
state under the rule of law.
2. Thus, the Vilnius Regional Administrative Court, the
petitioner, in the constitutional justice case at issue, requests
investigation into whether:
- Article 5 and Paragraphs 1 and 2 of Article 6 of the Law
on the State Pensions of Judges, to the extent that the maximum
nine-year term of the office of the Constitutional Court justice
is not regarded to be a sufficient independent basis for granting
the state pension of judges of the maximum amount, are not in
conflict with Article 52, Paragraph 1 of Article 103, and
Paragraph 1 of Article 104 of the Constitution and the
constitutional principle of a state under the rule of law;
- the provision of Paragraph 3 of Article 6 of the Law on
the State Pensions of Judges that the sum of the state pension of
judges and the pensions granted under other laws (state pensions
and state social insurance pensions) may not exceed per person
the amount of 1.5 of the average monthly remuneration for work in
the economy of the country, as announced by the Department of
Statistics, for the quarter before the last quarter preceding the
month for which the state pension of judges is paid is not in
conflict with Article 52, Paragraph 1 of Article 104, and
Paragraph 2 of Article 109 of the Constitution and the
constitutional principle of a state under the rule of law;
Paragraph 2 of Article 6 of the Law on the State Pensions of
Judges is not in conflict with Articles 23 and 52 of the
Constitution and the constitutional principle of a state under
the rule of law;
- Item 1 of Paragraph 2 of Article 1 of the Provisional Law
on Recalculation and Payment of Social Payments, to the extent
that it is established that this law is applied to the persons
who receive the state pensions that are granted and paid under
the Law on the State Pensions of Judges, and Paragraph 4 of
Article 16 of the Provisional Law on Recalculation and Payment of
Social Payments, to the extent that it does not provide for
compensation of the reduced state pensions of judges, are not in
conflict with Articles 23 and 52 of the Constitution and the
constitutional principle of a state under the rule of law;
- Paragraph 3 (wording of 8 December 2009) of Article 3 of
the Law on State Pensions, to the extent that it is prescribed
that the size of the state pension of judges as well as the sum
total of the size of this pension and other state pensions and
state social insurance pensions granted to the same person may
not exceed per person the amount of 1.3 of the average monthly
remuneration for work in the economy of the country, as announced
by the Department of Statistics under the Government of the
Republic of Lithuania, for the quarter before the last quarter
preceding the month for which the state pension is paid, is not
in conflict with Articles 23 and 52 of the Constitution and the
constitutional principle of a state under the rule of law.
3. It needs to be noted that the Constitutional Court will
investigate whether Articles 5 and 6 of the Law on the State
Pensions of Judges are not in conflict with the Constitution.
Other provisions of the Law on the State Pensions of Judges are
not the matter of investigation in the constitutional justice
case at issue.
4. In this context it needs to be noted that, under the
Constitution, the Constitutional Court must ensure the supremacy
of the Constitution in the legal system. The Constitutional Court
administers constitutional justice while investigating whether
the laws and other acts of the Seimas, the acts of the President
of the Republic and the Government are not in conflict with the
Constitution. The Constitution does not provide that the
Constitutional Court is permitted not to consider certain laws or
other legal acts. Thus, the Constitutional Court has the powers
to and must investigate the compliance with the Constitution of
all the legal acts pointed out in Paragraph 1 of Article 102 of
the Constitution, inter alia including those whereby the social
(material) guarantees of judges of all courts of the Republic of
Lithuania are established.
The Constitutional Court has more than once decided
questions of the compliance with the Constitution of the legal
regulation of activities of judges and courts and relations of
remuneration of judges as well as of pensionary maintenance of
judges (Constitutional Court rulings of 6 December 1995, 18 April
1996, 19 December 1996, 5 February 1999, 21 December 1999, 22
October 2007, and decision of 12 January 2000). While construing
the Constitution in these as well as other rulings and decisions
of the Constitutional Court, the constitutional doctrine of the
independence of the judge and courts as well as of the protection
of the social (material) guarantees ensuring this independence
was formulated.
II
1. In the constitutional justice case at issue, one requests
to investigate the compliance of the corresponding provisions of
the Law on the State Pensions of Judges, the Law on State
Pensions, and the Provisional Law on Recalculation and Payment of
Social Payments with inter alia the constitutional principle of a
state under the rule of law.
1.1. The Constitutional Court has held more than once that
the constitutional principle of a state under the rule of law is
a universal principle, upon which the entire legal system of
Lithuania and the Constitution itself are based, that the
constitutional principle of a state under the rule of law is to
be construed inseparably from the striving for an open, just, and
harmonious civil society and a state under the rule of law, which
is declared in the Preamble to the Constitution, and that the
content of the aforementioned constitutional principle reveals
itself in various provisions of the Constitution. The essence of
the constitutional principle of a state under the rule of law is
the rule of law. The constitutional imperative of the rule of law
means that the freedom of state power is limited by law, to which
all the entities of legal relations, including the law-making
entities, must obey. It needs to be emphasised that the
discretion of all the law-making entities is limited by the
supreme lawthe Constitution. All the legal acts, decisions of
all the state and municipal institutions and officials must be in
compliance with and not contradicting to the Constitution.
The constitutional principle of a state under the rule of
law is especially capacious; it comprises a range of various
interrelated imperatives. The constitutional principle of a state
under the rule of law must be followed both in law-making and
implementation of law (Constitutional Court rulings of 6 December
2000, 13 December 2004, 16 January 2006, 13 August 2007, and
decision of 20 April 2010). The compliance of each institute of
law with the Constitution must be evaluated according to how this
institute is in compliance with the constitutional principle of a
state under the rule of law (Constitutional Court rulings of 11
May 1999, 13 December 2004, and decision of 20 April 2010).
1.2. The Constitutional Court has held more than once that
inseparable elements of the principle of a state under the rule
of law are the protection of legitimate expectations, legal
certainty and legal security. The constitutional principles of
the protection of legitimate expectations, legal certainty, and
legal security imply a duty of the state to guarantee the
certainty and stability of legal regulation, to safeguard the
rights of persons, as well as to respect legitimate interests and
legitimate expectations (Constitutional Court rulings of 12 July
2001, 5 November 2002, 4 March 2003, 17 March 2003, 24 December
2008, and decision of 20 April 2010). These principles inter alia
imply that the state must fulfil all its undertaken obligations
to the person. As it has been held by the Constitutional Court
more than once, if the protection of legitimate expectations,
legal certainty, and legal security were not ensured, the trust
of the person in the state and law would not be secured.
1.3. When establishing the legal regulation of the relations
of pensions, it is obligatory to pay heed to the constitutional
principle of a state under the rule of law, inter alia the
requirements of proportionality, justice, and reasonableness.
The Constitutional Court has held that the constitutional
principle of proportionality, as one of the elements of the
constitutional principle of a state under the rule of law, means
that the measures provided for in a law must be in line with the
legitimate objectives which are important to the society, that
these measures must be necessary in order to reach these
objectives, and that these measures must not restrain the rights
and freedoms of the person clearly more than necessary in order
to reach these objectives (Constitutional Court ruling of 11
December 2009 and decision of 20 April 2010).
In its rulings the Constitutional Court has held more than
once that justice is one of the basic objectives of law, as the
means of regulation of social relations. It is one of basic moral
values and one of basic foundations of a state under the rule of
law. It may be implemented by ensuring certain equilibrium of
interests and by escaping fortuity and arbitrariness, instability
of social life, and conflict of interests (Constitutional Court
rulings of 22 December 1995, 6 December 2000, 17 March 2003, 17
November 2003, 3 December 2003, 24 December 2008, and decision of
20 April 2010).
1.4. Under the Constitution, the State of Lithuania is
socially oriented, thus, the sate is under constitutional
obligation and it must undertake the burden of fulfilment of
certain commitments. The Constitutional Court has held that the
social solidarity principle entrenched in the Constitution
implies that the burden of fulfilment of certain obligations to
certain extent should be distributed also among members of
society, however, such distribution should be constitutionally
reasoned, it cannot be disproportionate, it cannot deny the
social orientation of the sate and the obligations to the state,
which arise from the Constitution (Constitutional Court rulings
of 7 June 2007, 26 September 2007, and decision of 20 April
2010).
1.5. The constitutional principle of a state under the rule
of law is also inseparable from the principle of equal rights of
persons consolidated inter alia in Article 29 of the Constitution
(Constitutional Court rulings of 14 April 2006 and 22 March
2010).
The Constitutional Court has held more than once that the
constitutional principle of equality of persons must be followed
in the course of both enactment of laws and their application;
the constitutional principle of equality of persons before the
law means an innate human right to be treated equally with the
others (Constitutional Court rulings of 2 April 2001, 23 April
2002, 4 March 2003, 4 July 2003, 3 December 2003, 10 November
2005, 24 December 2008, 3 February 2010, 22 March 2010, and
decision of 20 April 2010) and obliges to legally assess the
homogenous facts in the same manner and prohibits to arbitrarily
assess the facts, which are the same in essence, in a different
manner (decision of 20 April 2010).
As the Constitutional Court has held, the constitutional
principle of equality of rights of persons in itself does not
deny an opportunity to establish diverse and differentiated legal
regulation by means of legislation with respect to certain
persons which belong to different categories, if there exist
differences between these persons of such character, which
objectively justify such differentiated regulation.
Differentiated legal regulation, when it is applied to certain
groups of persons which are distinguished by the same signs, and
in case it strives for positive and socially meaningful goals, or
if the establishment of certain limitations or conditions is
linked with peculiarities of regulated social relations, in
itself is not to be regarded as discrimination (Constitutional
Court rulings of 11 November 1998, 13 May 2005, 31 May 2006, 2
March 2009, 29 April 2009, and decision of 20 April 2010).
The Constitutional Court has held more than once that the
constitutional principle of equality of all persons before the
law would be violated when a certain group of people to which the
legal norm is ascribed, if compared to other addressees of the
same legal norm, were treated differently, even though there are
not any differences in their character and extent between these
groups that such an uneven treatment would be objectively
justified. While assessing whether an established different legal
regulation is a grounded one, particular legal circumstances must
be taken into account. First of all, differences of the legal
situation of subjects and objects to which different legal
regulation is applied must be considered (Constitutional Court
rulings of 28 February 1996, 13 November 1997, 4 July 2003, 24
December 2008, 2 March 2009, 8 June 2009, and decision of 20
April 2010). The compliance of a concrete legal norm with Article
29 of the Constitution may be assessed only by taking into
account all significant circumstances (Constitutional Court
rulings of 4 July 2003, 24 December 2008, 2 March 2009, 8 June
2009, and decision of 20 April 2010).
2. It has been mentioned that, in the constitutional
justice case at issue, the Vilnius Regional Administrative Court,
the petitioner, requests to investigate the compliance of the
disputed provisions of the Law on the State Pensions of Judges,
the Law on State Pensions, and the Provisional Law on
Recalculation and Payment of Social Payments with inter alia
Article 52 of the Constitution.
2.1. Article 52 of the Constitution prescribes: "The State
shall guarantee to citizens the right to receive old age and
disability pensions as well as social assistance in the event of
unemployment, sickness, widowhood, loss of the breadwinner, and
in other cases provided for by laws."
The Constitutional Court has held more than once that Article
52 of the Constitution sets the bases of pensionary maintenance
and social support. The Constitutional Court has also held that,
under the Constitution, also other pensions or social assistance
than those specified in Article 52 of the Constitution may be
established by law (Constitutional Court rulings of 23 April
2002, 25 November 2002, 4 July 2003, 30 January 2004, 13 December
2004, 22 October 2007, 24 December 2008, 2 September 2009, and
decision of 20 April 2010). Under the Constitution, the grounds
for pensionary maintenance, the persons who are granted and paid
pensions, the conditions for granting and payment of pensions, as
well as the sizes of the pensions are established by law only
(Constitutional Court rulings of 4 July 2003, 3 December 2003, 13
December 2004, 22 October 2007, 24 December 2008, 2 September
2009, and decision of 20 April 2010). The legislator, while
adopting laws concerning pensionary maintenance, is bound by the
norms and principles of the Constitution (Constitutional Court
rulings of 4 July 2003, 3 December 2003, 22 October 2007, 24
December 2008, 2 September 2009, and decision of 20 April 2010).
The formula "the state shall guarantee" as employed in
Article 52 of the Constitution means inter alia that pensions and
various types of social assistance are guaranteed to the persons
on the bases and in the amounts that are established in laws,
while the persons who meet the conditions provided for by the law
have the right to demand that the state grant and pay this
pension to them; after the types of pensions, the persons
entitled to the pension, the bases of granting and payment of
pensions, their amounts, and the conditions have been established
by laws, a duty arises for the state to follow the constitutional
principles of the protection of legitimate expectations and legal
certainty in the area of the relations of pensionary maintenance;
even in exceptional cases (for example, when due to an economic
crisis, natural disaster, etc. there is an objective lack of
funds which are necessary for the payment of pensions) the
reduced (by paying heed to the constitutional principle of
proportionality) pensions can be paid only on a temporary basis
(i.e. only as long as there is a corresponding extraordinary
situation in the state) (decision of 20 April 2010).
The Constitutional Court has held more than once that due to
the social orientation of the State of Lithuania consolidated in
the Constitution the state is generally obligated to respect the
imperative of substantiality of guarantees of social (material)
character, thus, it is obligated to respectively revise (increase
the sizes) of social (material) guarantees once established (and
applied), if the economic and social situation changes so that
those established (and applied) guarantees depreciate
considerably, let alone if they generally become nominal
(herewith making an exception regarding a proportionate and
provisional reduction of payments, whenever necessary for the
protection of other constitutional values).
2.2. The types of pensions expressis verbis specified in
Article 52 of the Constitution are old age and disability
pensions. It has been mentioned that, under the Constitution, the
law may establish also other pensions, not only those which are
expressis verbis specified in Article 52 of the Constitution. For
instance, peculiarities of the constitutional institute of the
state service determine inter alia the fact that the legislator
enjoys the constitutional powers to establish by the law the
pensions and/or types of social assistance granted solely to the
state servants or individual groups of state servants, the
grouping of which is objectively justified; the pensions for
serving the State of Lithuania may be established by the law as
well (Constitutional Court rulings of 13 December 2004, 22
October 2007, 24 December 2008, and decision of 20 April 2010).
The pensions which are not directly named in Article 52 of
the Constitution are at present established inter alia in the Law
on State Pensions. For instance, under the Law on State Pensions,
in the Republic of Lithuania, the following state pensions are
established: state pensions of the Republic of Lithuania of the
first and second degree, state pensions of victims, state
pensions of officials and servicemen, state pensions of
scientists, and state pensions of judges.
In this context it needs to be noted that state pensions
differ in their nature and character from state social insurance
old age pensions, as well as from other state social insurance
pensions: they are paid from the State Budget; they are granted
to persons for their service or merits to the State of Lithuania,
as well as a compensation to victims specified in the law
(Constitutional Court rulings of 3 December 2003, 4 July 2003, 22
October 2007, 24 December 2008, and decision of 20 April 2010);
the receipt of these pensions is linked not with the social
insurance pension contributions of an established size, but with
a corresponding status of the person (service, merits or other
circumstances upon which granting of the state pension depends);
peculiarities of state pensions permit the legislator, taking
account of all the significant circumstances and heeding the
norms and principles of the Constitution, to establish the
corresponding conditions for granting of these pensions
(Constitutional Court rulings of 22 October 2007, 24 December
2008, and decision of 20 April 2010); by means of the law, the
legislator may establish the maximum size of such pensions, as
well as entrench various ways for establishment of the maximum
size of such a pension; by paying heed to the Constitution, the
legislator may also establish certain cases when the state
pension is not granted to the person (under the conditions
provided for in the law); taking account of the Constitution, the
legislator may establish, by means of the law, also the cases
when the granted state pension is no longer paid; on the other
hand, in the case of the state pensions which are granted for
certain service, for merits to the State of Lithuania, or as a
compensation to victims, the provision regarding the obligation
undertaken by the state by the law to grant and pay the
corresponding pension to the person who meets the conditions
established by the law and regarding the right of the said person
to demand that the state fulfil such an obligation undertaken by
the law, is also effective (Constitutional Court ruling of 22
October 2007 and decision of 20 April 2010).
2.3. The state, in establishing by the law that the persons
who meet the conditions established by the law acquire the right
to a certain pension established in the law, at the same time
undertakes the obligation to grant and pay such a pension, thus,
it must guarantee the corresponding pensionary maintenance for
the specified persons on such grounds and of such sizes which are
established in the law, while the persons who meet the conditions
established by the law have the right to demand that the state
fulfil the obligation undertaken by the law, grant them the
corresponding pension, and pay the payments of the established
size; the legislator must establish such legal regulation which
would ensure the payment of the corresponding pension to the
persons who meet the conditions established by the law
(Constitutional Court ruling of 22 October 2007). When the
pension established by a law, which is not in conflict with the
Constitution, is granted and paid, this right and legitimate
expectation acquired by the person are also to be linked with the
protection of the rights of ownership of this person
(Constitutional Court rulings of 4 July 2003, 3 December 2003, 13
December 2004, 22 October 2007, 24 December 2008, and decision of
20 April 2010).
The constitutional protection of the rights of ownership,
which arise from the Constitution and the laws that are not in
conflict with the Constitution, means the protection of the right
to demand the fulfilment of obligation of property nature to a
person. In this case the right to demand for the payments of
pensionary maintenance which are established in the Constitution
and the laws that are not in conflict with the latter arises from
Article 52 of the Constitution, while the proprietary aspects of
this right are defended under Article 23 thereof (Constitutional
Court rulings of 4 July 2003, 3 December 2003, 22 October 2007,
24 December 2008, and decision of 20 April 2010).
2.4. The Constitutional Court has also held more than once
that after the types of pensions, the persons entitled to the
pension, the bases of granting and payment of pensions, the
conditions, and the sizes of pensions have been established by
laws, a duty arises for the state to follow the constitutional
principles of the protection of legitimate expectations and legal
certainty in the area of the relations of pensionary maintenance.
The persons who have been granted and paid a pension established
by the Constitution or the law, under Article 23 of the
Constitution, have the right to demand that the payments be paid
further to them in the amounts which were granted and paid
previously (Constitutional Court rulings of 4 July 2003, 3
December 2003, 24 December 2008, 2 September 2009, and decision
of 20 April 2010).
The Constitutional Court has noted more than once that the
constitutional protection of acquired rights and legitimate
expectations does not mean that the system of pensionary
maintenance established by the law may not be reorganised. While
reorganising this system, the Constitution must be observed in
every case. The system of pensions may be reorganised only by the
law, only guaranteeing the old age and disability pensions
provided for in the Constitution, as well as observing the
undertaken obligations by the state, which are not in conflict
with the Constitution, to pay the corresponding monetary payments
to the persons who meet the requirements established by the law.
If, while reorganising the system of pensions, the pensions that
are established by the laws and which are not directly specified
in Article 52 of the Constitution were eliminated, or the legal
regulation of these pensions were changed in essence, the
legislator would be obligated to establish a fair mechanism for
compensation of the incurred losses to the persons who had been
granted and paid such pensions. The legislator, while
reorganising the system of pensions so that the bases of
pensionary maintenance, the persons to whom the pension is
granted and paid, the conditions for granting and payment of
pensions, the amounts of pensionary maintenance are changed, must
provide for a sufficient transitional time period during which
the persons who have a corresponding job or perform corresponding
service which entitles them to a respective pension under the
previous regulation, would be able to prepare for these changes
(Constitutional Court rulings of 4 July 2003, 13 December 2004,
22 October 2007, 24 December 2008, and decision of 20 April
2010).
3. In the constitutional justice case at issue, the Vilnius
Regional Administrative Court, the petitioner, requests
investigation into whether the corresponding provisions of the
Law on the State Pensions of Judges are not in conflict with
inter alia Paragraph 1 of Article 103, Paragraph 1 of Article
104, and Paragraph 2 of Article 109 of the Constitution.
In its acts the Constitutional Court has formulated a broad
official constitutional doctrine of the independence of the judge
and courts, wherein the constitutional imperative of the
independence of the judge and courts is construed in the context
of the constitutional principle of a state under the rule of law
(which, as the Constitutional Court has held in its acts more
than once, integrates various values consolidated in and
protected and defended by the Constitution and which grounds the
whole system of Lithuanian law and the Constitution itself)
(Constitutional Court ruling of 22 October 2007).
3.1. Article 109 of the Constitution prescribes:
"In the Republic of Lithuania, justice shall be administered
only by courts.
While administering justice, the judge and courts shall be
independent.
When considering cases, judges shall obey only the law.
The court shall adopt decisions in the name of the Republic
of Lithuania."
The courts that under the Constitution execute judicial
power in Lithuania are to be attributed not to one, but to two or
more (if this, while heeding the Constitution, is established in
certain laws) systems of the courts. Under the Constitution and
laws, at present in Lithuania there are three systems of courts:
1) the Constitutional Court executes constitutional judicial
control (in addition to other provisions of the Constitution
(including those which are designed for judicial power and judges
in general), a separate chapter (VIII) of the Constitution is
designated to the Constitutional Court); 2) the Supreme Court of
Lithuania, the Court of Appeal of Lithuania, regional courts and
local courts, specified in Paragraph 1 of Article 111 of the
Constitution, constitute the system of courts of general
jurisdiction; 3) under Paragraph 2 of Article 111 of the
Constitution, for the consideration of administrative, labour,
family, and cases of other categories specialised courts may be
established; one system of specialised courts, namely,
administrative ones, which is composed of the Supreme
Administrative Court of Lithuania and regional administrative
courts, is established by laws and is functioning at present
(Constitutional Court rulings of 13 December 2004, 16 January
2006, 28 March 2006, 9 May 2006, 6 June 2006, 27 November 2006,
and 22 October 2007).
3.2. The function of administration of justice determines an
exceptional constitutional status of the judge which is disclosed
by various constitutional provisions that consolidate not only
the independence of the judge and courts while administrating
justice (Paragraph 2 of Article 109 of the Constitution), but
also impossibility for the judge to hold any other elected or
appointed office, to work in any business, commercial, or other
private establishments or enterprises, to receive any
remuneration other than the remuneration established for the
judge and payment for educational or creative activities, or to
take part in the activities of political parties and other
political organisations (Article 113 of the Constitution), the
prohibition to interfere with the activity of the judge, the
inviolability of the person of the judge (Article 114 of the
Constitution), etc. Under Article 104 of the Constitution, the
limitations on work and political activities which are
established for court judges apply also to justices of the
Constitutional Court (Paragraph 3) and justices of the
Constitutional Court have the same rights concerning the
inviolability of their person as Members of the Seimas (Paragraph
4). It needs to be emphasised that the independence of the judge
and courts is not an end in itself, but one of the essential
principles of a democratic state under the rule of law and a
necessary condition for protection of human rights and freedoms.
While administering justice, the courts must ensure the
implementation of law which is expressed in the Constitution and
the laws and legal acts that are not in conflict with the
Constitution (Constitutional Court ruling of 22 October 2007).
3.3. The independence of the judge and courts is indivisible
(Constitutional Court rulings of 21 December 1999 and 22 October
2007). One of the important aspects of the independence of the
judge entrenched in the Constitution is that, while administering
justice, all judges have equal legal status, inter alia in the
aspect that no different guarantees of the independence of the
judge while administering justice (deciding cases) may be
established; while administering justice, no judge is, nor may be
subordinate to any other judge or to the President of any court
(inter alia of the court where he works or of the court of a
higher level or instance); on the other hand, the principle of
the equal legal status of judges does not mean that the material
and social guarantees of judges may not be differentiated under
clear, ex ante known criteria, which are not related to the
administration of justice while deciding cases (for example,
under the term of a person's work as a judge) (Constitutional
Court rulings of 9 May 2006, 22 October 2007, and decision of 8
August 2006). The principle of the equal legal status of judges
which stems from the Constitution also may not be construed as
not permitting to additionally pay the judgesthe heads of courts
(their deputies, heads of divisions, etc.) which implement
additional functions for the carried out organisational work:
supplementary work must be paid for additionally (Constitutional
Court ruling of 22 October 2007).
3.4. The Constitutional Court has noted more than once that
the independence of the judge and courts is not a privilege, but
one of the most important obligations of judges and courts, which
stems from the right of the person, who believes that his rights
or freedoms guaranteed in the Constitution are violated, to an
impartial arbiter of the dispute who would solve the emerged
legal dispute under the Constitution and laws in essence
(Constitutional Court rulings of 6 December 1995, 21 December
1999, 12 July 2001, 9 May 2006, and 22 October 2007). The
independence of the judge is inter alia ensured by consolidating
self-governance of the judiciary, meaning that the judiciary is
full-fledged power, and its financial and technical provision,
and by establishing the inviolability of the term of powers of
the judge (whereby one seeks to ensure that the judge,
irrespective of the political forces in power, would remain
independent and would not be forced to adjust according to the
possible changes of political forces) and the inviolability of
the person of the judge, as well as by establishing the social
(material) guarantees of the judge (Constitutional Court ruling
of 22 October 2007).
3.5. In this context it also needs to be noted that the
judge, who is obligated to consider conflicts arising in society,
as well as those between a person and the state, must be not only
highly professionally qualified and of impeccable reputation, but
also materially independent and feel secure as to his future
(Constitutional Court rulings of 12 July 2001 and 22 October
2007). The constitutional imperative of the constitutional
protection of remuneration and other social (material) guarantees
of judges arises from the principle of the independence of the
judge and courts established in the Constitution (inter alia
Article 109 thereof). By this principle one attempts to protect
the judges administering justice from any influence of the
legislative and executive power as well as from that of other
state establishments and officials, political and public
organisations, commercial economic structures, and other legal
and natural persons. In its rulings of 12 July 2001 and 22
October 2007, the Constitutional Court also noted that the state
has a duty to establish such remuneration for judges which would
be in conformity with the status of the judiciary and the judge,
with the functions exercised by them and their responsibility.
3.6. The social (material) guarantees of the principle of
the independence of the judge that stem from the Constitution
(which are actually consolidated in law of other democratic
states, as well as in various international acts) mean that the
state has a duty to ensure such social (material) maintenance for
the judge which would be in conformity with his status while
being in office as well as upon expiry of his term of office
(Constitutional Court rulings of 21 December 1999 and 22 October
2007). Under the Constitution, the material and social guarantees
established to judges must be such so that they would be in line
with the constitutional status of the judge and his dignity
(Constitutional Court decision of 8 August 2006 and ruling of 22
October 2007).
It needs to be noted that the legislator must establish such
legal regulation which would ensure the independence of the judge
and courts, inter alia the social (material) guarantees of the
judge, not only when he is in office, but also upon expiry of his
powers; while doing so, the legislator must heed the norms and
principles of the Constitution; upon expiry of powers of the
judge, the social (material) guarantees of the judge may be
varied ones, inter alia the payments paid periodically, as well
as one-time payments, etc.; the constitutional base of
establishment of such guarantees is an exceptional constitutional
status of the judge which is determined by the function of
administration of justice, therefore, they may depend only upon
the circumstances which are related with the constitutional
status of a judge, but they may not be considered as replacing
other social (material) guarantees that must be ensured to the
former judge on different bases, including those which are common
to all the working persons; the social (material) guarantees of
the judge, upon expiry of his powers, must be real and not only
nominal (Constitutional Court ruling of 22 October 2007).
The Constitutional Court has held that if the legislator
enshrines such a social (material) guarantee of the judge upon
expiry of his powers as the pension of the judge, this guarantee
is defended not only under Article 109 of the Constitution, but
also under Article 52 thereof (Constitutional Court ruling of 22
October 2007).
3.7. In the context of the constitutional justice case at
issue it needs to be noted that the legislator, while regulating
the relations connected with the state pension of judges, must
establish, by means of a law, the grounds and conditions for
granting this pension. The legislator may establish, by means of
a law, the maximum size of the state pension of judges as well as
entrench various ways for establishment of the maximum size of
such a pension. While doing so, the legislator must not violate
the norms and principles of the Constitution. In this context it
needs to be noted that the legislator, while entrenching, by
means of a law, the maximum size of the pension as well as ways
for establishment of this size, must heed inter alia the fact
that the state pension of judges is a social (material) guarantee
of the judge upon expiry of his powers, stemming from the
Constitution, which is defended not only under Article 109 of the
Constitution, but also under Article 52 thereof, that this social
(material) guarantee must be in line with the constitutional
status of the judge and his dignity, and that such a
constitutional social (material) guarantee of the judge must be
real and not only nominal. Otherwise, one would deny the essence
and purpose of the state pension of judges as a social (material)
guarantee of the judge upon expiry of his powers, stemming from
the Constitution, and thereby would create preconditions to
deviate from the requirements arising from the Constitution,
inter alia Paragraph 2 of Article 109 thereof, as well as from
the constitutional principle of a state under the rule of law.
3.8. It has been mentioned that the guarantees of social
(material) nature of judges, inter alia the social guarantees
upon expiry of powers of the judge, may be differentiated
according to the duration of a person's work as a judge. In the
context of the constitutional justice case at issue it needs to
be noted that the size of the social (material) guarantees upon
expiry of powers of the judge may be differentiated according to
the duration of a person's work as a judge as well. However, the
legal regulation under which the size of the social (material)
guarantees of judges upon expiry of their powers is
differentiated according to the duration of a person's work as a
judge must not deviate from the constitutional concept of this
social (material) guarantee of judges. In this context it needs
to be noted that such legal regulation, under which the size of
the said social (material) guarantee of the judges would be the
same or similar for the judges who received the remuneration of
equal or similar amount, but whose duration of work in courts
differs considerably, or the size of the said social (material)
guarantee would differ considerably for the judges who received
the remuneration of equal or similar amount, but whose duration
of work in courts differs little, would not be in conformity with
the constitutional concept of the social (material) guarantee of
judges upon expiry of powers of the judge, inter alia the
requirements of Paragraph 2 of Article 109 of the Constitution,
as well as the imperatives of justice, proportionality, and
reasonableness that stem from the constitutional principle of a
state under the rule of law.
3.9. The attribution of courts (which arises from the
Constitution) not to one but to several (at the momentthree)
systems of courts, as well as the division of the system of
courts of general jurisdiction and specialised courts established
under Paragraph 2 of Article 111 of the Constitution, as a system
of institutions, into levels imply that the legislator has the
powers to differentiate the social (material) guarantees of
judges (remunerations, as well as the guarantees which are
established (applied) to judges upon expiry of their powers). It
needs to be noted that the judiciary is formed on the
professional basis. It is universally recognized (not only in
Lithuania) that the dominant principle of formation of the corps
of judges of courts of a higher level is the principle of
professional career of judges, under which judges are promoted
after they have been dismissed from previous office and appointed
as judges of courts of a higher level (even though this principle
may not be made absolute so that one would not create
preconditions for the system of courts to become too closed, to
become subjected to the routine, etc.) (Constitutional Court
rulings of 9 May 2006, 22 October 2007, and 20 February 2008).
The professional career of judges is inseparably related to the
institute of promotion of judges which is consolidated in
Paragraph 4 of Article 112 of the Constitution. While deciding on
the promotion of judges, one assesses inter alia their
qualificationprofessional preparation (Constitutional Court
rulings of 9 May 2006 and 22 October 2007). Thus, implementation
of the principle of the professional career of judges (as
mentioned, without making it absolute) is one of the conditions
permitting to ensure that the persons of as high professional
qualification as possible would be appointed as judges of courts
of higher levels, thus, also to ensure that justice would be
administered in the way it is provided for in the Constitution,
that the human rights and freedoms, other constitutional values
would be protected and defended properly, and that the law
expressed in the Constitution and in the laws and other legal
acts which are not in conflict with the Constitution would be
implemented. Therefore, judges must also have material incentives
to seek the professional career. Thus, the legislator not only
may but also must differentiate the social (material) guarantees
of judges, when establishing such guarantees, according to the
court system and the court level where the judge works; the
constitutional concept of the judiciary, as the state power
formed on the professional basis, implies inter alia that if the
remuneration of judges of courts of different levels, as well as
the guarantees which are established (applied) to judges upon
expiry of their powers would be made totally equal, one would not
only disregard the fact that, under the Constitution, courts are
attributed not to one, but to several (at the momentthree)
systems of courts, in addition, that the system of courts of
general jurisdiction, as a system of institutions, is comprised
of four-level courts, and that specialised courts (at present
administrative courts), established under Paragraph 2 of Article
111 of the Constitution, may be also divided into levels, but
also there would be no material incentives (even if there were
other incentives) for judges to seek the professional career
(Constitutional Court ruling of 22 October 2007).
Thus, the fact that the social (material) guarantees of
judges may be differentiated (heeding the Constitution) according
to the duration of a person's work as a judge may not be
construed as meaning that, purportedly, the criterion of the
duration of a person's work as a judge is the only criterion of
the said differentiation. In the case of the remuneration of
judges, as well as in the case of the social (material)
guarantees of judges upon expiry of their powers (so, also in the
case of the pensions of judges), one must take account of the
fact that, under the Constitution, the courts are attributed not
to one but to several (at the momentthree) systems of courts, as
well as of the fact that the systems of courts of general
jurisdiction and of specialised courts established under
Paragraph 2 of Article 111 of the Constitution, as systems of
institutions, are of several levels.
3.10. As mentioned, the courts, which, under the
Constitution, execute judicial power in Lithuania, are to be
attributed not to one, but to two or more (if that, while heeding
the Constitution, is established in certain laws) systems of
courts. Under the Constitution and laws, at present in Lithuania
there are three systems of courts: 1) the Constitutional Court
executes constitutional judicial control; 2) the Supreme Court of
Lithuania, the Court of Appeal of Lithuania, regional courts and
local courts, specified in Paragraph 1 of Article 111 of the
Constitution, constitute the system of courts of general
jurisdiction; 3) under Paragraph 2 of Article 111 of the
Constitution, for the consideration of administrative, labour,
family, and cases of other categories specialised courts may be
established. One system of specialised courts, namely,
administrative ones, which is composed of the Supreme
Administrative Court of Lithuania and regional administrative
courts, is established by laws and is functioning at present
(Constitutional Court rulings of 13 December 2004, 16 January
2006, 28 March 2006, 9 May 2006, and 6 June 2006).
3.11. The Constitutional Court executes constitutional
judicial control. The Constitutional Court is the institution of
constitutional justice. When deciding under its competence on the
compliance of legal acts (parts thereof) of lower power with
legal acts of higher power, inter alia (and, first of all) with
the Constitution, as well as when exercising its other
constitutional powers, the Constitutional Courtan individual and
independent courtadministers constitutional justice and
guarantees the supremacy of the Constitution in the legal system
as well as constitutional legitimacy.
Paragraph 1 of Article 102 of the Constitution prescribes
that the Constitutional Court shall decide whether the laws and
other acts of the Seimas are not in conflict with the
Constitution and whether the acts of the President of the
Republic and the Government are not in conflict with the
Constitution and laws. In addition, the Constitution (inter alia
Chapter VIII "The Constitutional Court" thereof) also provides
for other powers of the Constitutional Court, consolidates the
legal power and consequences of the Constitutional Court
decisions, establishes the bases and guarantees for execution of
powers (activity) of the Constitutional Court, etc.
3.12. It needs to be noted that, in its ruling of 6 June
2006, the Constitutional Court held that the presumption that,
purportedly, the Constitutional Court is not a court and does not
execute state power is not in line with the concept of power and
the powers of the Constitutional Court established in the
Constitution at all. The fact that, under the Constitution, the
Constitutional Court has the powers to recognise legal acts of
other institutions implementing state powerthe Seimas, the
President of the Republic, and the Governmentas being in
conflict with legal acts of higher power, first of all, with the
Constitution, and, thus, to abolish the legal power of these acts
and to remove these legal acts from the Lithuanian legal system
for good, as well as the fact that only the Constitutional Court
has the constitutional powers to officially construe the
Constitutionto provide the concept of the provisions of the
Constitution, which is binding on all the law-making and law-
applying institutions as well as on the Seimas, the
representation of the Nation, obviously testify that the
Constitutional Court may not be an institution not implementing
state power.
3.13. Certain aspects of the Constitutional Court and of the
constitutional status of justices thereof are entrenched in
Paragraph 1 of Article 103 and Paragraph 1 of Article 104 of the
Constitution.
3.14. Paragraph 1 of Article 104 of the Constitution
prescribes that, while in office, justices of the Constitutional
Court shall be independent of any other state institution, person
or organisation, and shall follow only the Constitution.
3.15. In the context of the constitutional justice case at
issue it needs to be noted that justices of the Constitutional
Court differ from other judges of courts of general and
specialised competence also in the aspect of the term of their
powers. Under Paragraph 1 of Article 103 of the Constitution,
justices of the Constitutional Court are appointed for a single
nine-year term of office. Under the Constitution, the term of
powers of judges of courts of general competence and of
specialised courts is established by the Law on Courts. In this
context it needs to be mentioned that, under the Law on Courts
currently in force, judges of courts of general competence and
administrative courts are appointed till they reach the age of 65
years. It has been mentioned that justices of the Constitutional
Court are appointed for a single nine-year term of office. It has
also been mentioned that, while regulating the relations of the
social (material) guarantees of judges upon expiry of powers of
the judge, inter alia when differentiating these guarantees,
account must be taken of the fact the attribution of courts are
not to one but to several (at presentthree) systems of courts
stems from the Constitution; a separate system of courts is
comprised of the Constitutional Court, characterised by its own
peculiarities, inter alia the aspect of the term of the office of
Constitutional Court justices.
In the context of the constitutional justice case at issue it
needs to be noted that the legislator, while regulating the
relations of the social (material) guarantees of judges upon
expiry of the term of their office, must also take account of the
fact that justices of the Constitutional Court differ from judges
of other courts in regard to their constitutional status, inter
alia the term of their powers. Otherwise, one would deviate from
the constitutional concept of such social (material) guarantees,
under which the social (material) guarantees of judges, when
establishing them, must be differentiated taking account of inter
alia the specificity of a court system as well as peculiarities
of the status of judges of a court system.
3.16. In this context one needs to mention the doctrine
formulated in the Constitutional Court ruling of 22 October 2007
that the principled provision that one may not differentiate
(also by applying law) the remuneration of the judges of the
courts of the same system and of the same level according to the
fact when the remuneration of a certain size of judges was
established (inter alia according to the fact whether the person
began to work as a judge of the corresponding court before
establishing the remuneration of a certain size of the judge of
that court, or afterwards), is mutatis mutandis applicable also
to other social (material) guarantees of judges, inter alia those
which are established (applied) to judges upon expiry of their
powers; they may not be reduced, let alone altogether denied,
also in the case when their system is reorganised. It also needs
to be mentioned that the imperative of the reality of the social
(material) guarantees of judges stems from the Constitution. The
social (material) guarantees of judges which are established
(applied) to judges upon expiry of their powers (in particular,
if they are linked with certain periodic payments such as
pensions) could become (in case the economic or social situation
becomes changed) already not only unreal, but also nominal, thus,
fictitious, if they were applied to the judges, whose powers have
already expired, such as were established at the said time, but
which, with respect to these judges, would not be reviewed in a
corresponding way, while other judges of the courts of the same
system and the same level, whose powers will expire later, would
be established bigger corresponding guarantees (in case the
economic or social situation becomes changed) (Constitutional
Court ruling of 22 October 2007).
3.17. The Constitution also prohibits reduction of the
remuneration and other social guarantees of judges; any attempts
to reduce the remuneration of the judge or his other social
(material) guarantees, or limitation upon financing of courts are
treated as encroachment upon the independence of judges and
courts (Constitutional Court rulings of 6 December 1995 and 21
December 1999, decision of 12 January 2000, rulings of 12 July
2001 and 28 March 2006, and decision of 8 August 2006). As every
person, a judge has the right to defend his rights, legitimate
interests, and legitimate expectations (Constitutional Court
rulings of 12 July 2001 and 22 October 2007).
On the other hand, when there is an essential change in the
economic and financial situation of the state and when due to
special circumstances (economic crisis, natural disaster, etc.)
an extremely difficult economic and financial situation has
occurred in the state, due to objective reasons, there may be not
enough funds in order to fulfil the functions of the state and to
satisfy the public interests, thus, also to ensure the material
and financial needs of courts. Under such circumstances, the
legislator may change the legal regulation which establishes the
remuneration as well as pensions to various persons and entrench
the legal regulation on the remuneration as well as pensions
which would be less favourable to these persons, if it is
necessary in order to ensure the vital interests of society and
the state and to protect other constitutional values. However,
also in such cases the legislator must keep the balance between
the rights and legitimate interests of the persons, to whom the
less favourable legal regulation is established, and the
interests of society and the state, i.e. to pay heed to the
requirements of the principle of proportionality. Consequently,
in case of an extremely difficult economic and financial
situation of the state, the remuneration of judges and the state
pensions of judges may be reduced as well. If one established
such legal regulation, whereby in case of an extremely difficult
economic and financial situation of the country it would not be
permitted to reduce the financing of courts only, nor to reduce
the remuneration and pensions of judges only, it would mean that
courts are groundlessly singled out from among other institutions
which implement state power, and judgesfrom among other persons
that participate in implementing powers of the corresponding
institutions of state power. The consolidation of such an
exceptional situation of courts (judges) would not be in line
with the requirements of an open, fair and harmonious civil
society and of the imperatives of justice. It is possible to
worsen the financial and material conditions for the functioning
of courts that are provided for by laws and to reduce the
remuneration of judges and the state pensions of judges only by
means of a law, and it is possible to do so only temporarily, for
the period of time when the economic and financial condition of
the state is extremely difficult; by such reduction of the
remuneration and the state pensions of judges no conditions
should be created for other institutions of state power and their
officials to violate the independence of courts (rulings of 26
March 2006 and 22 October 2007).
3.18. In the context of the constitutional justice case at
issue it needs to be noted that the legislator, while regulating
the relations of the social (material) guarantees of judges upon
expiry of powers of the judge, provides for such a procedure for
calculation of these social (material) guarantees under which the
size of the social (material) guarantees, inter alia the state
pensions and retirement benefits of judges, is linked with the
remuneration received by the judge. It has been mentioned that in
case of an extremely difficult economic and financial situation
in the state, the remuneration of judges may be reduced
temporarily. However, if one established such legal regulation
whereby the size of the said social (material) guarantees of the
judge would be calculated on the basis of the remuneration of
judges temporarily reduced due to an extremely difficult economic
and financial situation in the state, this would not be in line
with the imperatives of equal rights of persons and justice that
stem from the Constitution, inter alia the constitutional
principle of a state under the rule of law.
3.19. It needs to be noted that the correction of the legal
regulation, by means of which old age pensions are reduced to a
great extent due to the fact that, upon occurrence of an extreme
situation (economic crisis, etc.), the economic and financial
situation becomes changed so that the accumulation of the funds
necessary for the payment of old age pensions is not secured, is
an essential amendment to the legal regulation of these pensions.
Thus, the legislator, upon occurrence of an extreme situation
when inter alia due to an economic crisis it is impossible to
accumulate the amount of the funds necessary to pay state
pensions, must, while reducing state pensions to a large extent,
provide for a mechanism of just compensation of incurred losses
to the persons to whom such pensions were granted and paid,
whereby, after the said extreme situation is over, the state
would undertake an obligation to such persons to compensate them,
in a fair manner and within a reasonable time, the losses
incurred by them due to the reduction of the state pension
(Constitutional Court decision of 20 April 2010).
The Constitutional Court has also held that state pensions
in their nature and character are different from state social
insurance old age pensions, as well as from other state social
insurance pensions, and these peculiarities imply that when there
is an extremely difficult economic and financial situation in the
state and due to this there emerges a necessity to temporarily
reduce the pensions in order to secure the vitally important
interests of society and the state and to protect other
constitutional values, the legislator may reduce these pensions
to a greater extent than old age and disability pensions. The
aforesaid peculiarities also imply that the losses incurred due
to the reduction of state pensions may be compensated to a
smaller extent than the losses incurred due to the reduction of
old age or disability pensions (Constitutional Court decision of
20 April 2010).
These official constitutional doctrinal provisions are
mutatis mutandis also applicable to reduction of the state
pensions of judges.
3.20. It needs to be noted that the Constitutional Court has
construed that the constitutional concept of the State Budget,
inter alia the constitutional institute of a budget year, implies
that when there is an extreme situation in the state (economic
crisis, etc.) due to which the economic and financial situation
in the state has changed to the extent that inter alia the
accumulation of the funds necessary for the payment of
remuneration for work of officials and state servants of the
institutions that are funded from the state and municipal budgets
(other employees who are remunerated for work from funds of the
state and municipal budgets) or of the funds necessary for the
payment of pensions is not secured and, due to this, the legal
regulation has to be corrected by reducing the remunerations and
pensions of the said persons, the reduction of the remunerations
and pensions is allowed for no longer than one budget year. From
the constitutional institute of a budget year, a duty arises for
the legislator, in the course of deliberating and approving the
State Budget for the next year, to reassess the actual economic
and financial situation in the state and to decide whether the
said situation is still a particularly grave one, inter alia
whether the collection of the State Budget revenue is still
disordered to the extent that, due to this, the state is unable
to fulfil the obligations undertaken by it and, due to this,
whether also for the next budget year one has to establish the
legal regulation whereby the reduced remuneration and pensions
will have to be paid (decision of 20 April 2010).
III
1. On 22 December 1994, the Seimas adopted the Republic of
Lithuania Law on State Pensions, which came into force on 1
January 1995. Article 1 of this law established the following
state pensions: the state pension of the President of the
Republic, state pensions of the Republic of Lithuania of the
first and second degree, state pensions of victims, and state
pensions of officials and servicemen. Article 3 (wording of 22
December 1994) of the Law on State Pensions prescribed that a
person who has the right to receive several state pensions is
paid only one of them at his choice, with the exception of the
state survivor's and orphan's pension, which may also be paid
only one in conjunction with one of the state pensions, also that
state social insurance pensions are paid irrespective of the fact
whether state pensions are paid, provided laws do not establish
otherwise.
2. On 4 July 1995, the Seimas adopted the Republic of
Lithuania Law "On the Supplement and Amendment of the Law on
State Pensions" by Article 2 whereof it supplemented Article 3
(wording of 22 December 1994) of the Law on State Pensions by the
following Paragraph 3: "The size of the state pensions
established in Items 3-5 of Article 1 of this law in conjunction
with the state social insurance pension may not exceed per person
one and a half of the average monthly remuneration for work of
the state sector and employees of joint-stock and closed joint-
stock companies, as announced by the Department of Statistics
under the Government of the Republic of Lithuania, for the month
before the last month preceding the payment of the pension.
Limitation of the size of the pension shall be applied by the
institution paying the state pension."
Thus, such legal regulation entrenched limitation upon the
size of the state pensions established in Items 3-5 of Article 1
of the Law on State Pensions in conjunction with the state social
insurance pension per person, which had not existed in Article 3
(wording of 22 December 1994) of this law.
3. By Article 2 of the Republic of Lithuania Law on the
Amendment and Supplement of Articles 2, 3, 5, 8, 10, 11, 12, 13,
and 14 of the Law on State Pensions, adopted on 4 November 1997,
the Seimas amended Article 3 of the Law on State Pensions and set
it forth in the following way:
"Article 3. The Right to Choose the Type of a State Pension.
In the case of a person entitled to draw several state
pensions, only one of them shall be paid to him at his choice,
with the exception of the state survivor's and orphan's pension,
which may also be paid only one in conjunction with one of the
state pensions.
At the choice of a person entitled to the state survivor's
pension for a deceased recipient of the state pension indicated
in Items 1 and 3 of Paragraph 1 of Article 1 of this law and the
state social insurance survivor's pension, he shall be granted
and paid the state survivor's pension or state social insurance
survivor's pension.
The size of the state pensions established in Items 3-5 of
Paragraph 1 of Article 1 of this law, taken each separately or in
conjunction with the state social insurance pension, may not
exceed per person one and a half of the average monthly
remuneration for work of employees of the economy of the Republic
of Lithuania, as announced by the Department of Statistics under
the Government of the Republic of Lithuania, for the month before
the last month preceding the payment of the pension. Limitation
of the size of the pension shall be applied by the institution
paying the state pension."
4. In Article 1 of the Republic of Lithuania Law on the
Amendment of Article 3 of the Law on State Pensions, adopted on
20 February 2001, the Seimas decided to cross out the word "one
and a half" in Paragraph 3 of Article 3 of the Law on State
Pensions, also instead of the word "month" to enter the word
"quarter", instead of the words "payment of the pension" to enter
the words "the month for which the state pension is paid",
instead of the words "of employees of the economy of the Republic
of Lithuania, as announced" to enter the words "in the economy of
the country, as announced", before the word "remuneration" to
enter the words and the figure "the amount of 1.5" and to set
forth this paragraph in the following way: "The size of the state
pensions established in Items 3-5 of Paragraph 1 of Article 1 of
this law, taken each separately or in conjunction with the state
social insurance pension, may not exceed per person the amount of
1.5 of the average monthly remuneration for work in the economy
of the country, as announced by the Department of Statistics
under the Government of the Republic of Lithuania, for the
quarter before the last quarter preceding the month for which the
state pension is paid. Limitation of the size of the pension
shall be applied by the institution paying the state pension."
5. By means of the Republic of Lithuania Law on the
Amendment and Supplement of Articles 1 and 3 of the Law on State
Pensions, adopted on 2 July 2002, the Seimas entrenched one more
type of state pensionsthe state pension of judgesand amended
Paragraph 3 of Article 3 of the Law on State Pensions by setting
it forth in the following way: "The size of each of the state
pension established in Items 3-6 of Paragraph 1 of Article 1 of
this law as well as the sum total of the size of this pension and
the state pensions and state social insurance pensions granted to
the same person under Paragraph 1 of this Article may not exceed
per person the amount of 1.5 of the average monthly remuneration
for work in the economy of the country, as announced by the
Department of Statistics under the Government of the Republic of
Lithuania, for the quarter before the last quarter preceding the
month for which the state pension is paid. Limitation of the size
of the pension shall be applied by the institution paying the
state pension."
This law came into force on 1 January 2003.
6. On 2 July 2002, the Seimas also adopted the Law on the
State Pensions of Judges, which came into force on 1 January
2003.
6.1. Article 1 "The Right to the State Pension of Judges" of
this law prescribes:
"1. Justices of the Constitutional Court of the Republic of
Lithuania (hereinafterthe Constitutional Court), justices of the
Supreme Court of Lithuania, judges of the Court of Appeal of
Lithuania, judges of the Supreme Administrative Court of
Lithuania, judges of other courts of general jurisdiction and
specialised courts of Lithuania (hereinaftercourts of general
jurisdiction and specialised courts), and the judges of any
international court appointed or elected from Lithuania who meet
the conditions of Article 3 of this law shall be entitled to the
state pension of judges.
2. The persons who acquire the right to the state pension of
judges and who have the right to other state pensions established
in the Law on State Pensions and special laws, shall be granted
and paid only one state pension, at their choice, provided other
laws do not establish otherwise."
6.2. Article 3 "Conditions for Granting the State Pension of
Judges" of this law prescribes:
"The state pension of judges shall be granted to the persons
who served as justices of the Constitutional Court, judges of
courts of general jurisdiction and specialised courts, and judges
of any international court appointed or elected from Lithuania,
provided they meet the following conditions:
1) at the time of application regarding granting the state
pension of judges they must be citizens of the Republic of
Lithuania permanently living in the Republic of Lithuania;
2) must be of the age of the old age pension established by
the Republic of Lithuania Law on State Social Insurance Pensions;
3) must no longer work as judges;
4) must have not less than a five-year work record as a
judge."
6.3. Article 5 "Work Record of Judges Necessary to Receive
the State Pension of Judges" of the Law on the State Pensions of
Judges, which is disputed in the constitutional justice case at
issue, prescribes:
"The work record of judges which is necessary in order to
receive the state pension of judges includes the period since 11
March 1990, during which the person worked as a judge in the
courts which function in the territory of Lithuania (the
Constitutional Court, courts of general jurisdiction and
specialised courts) or as a judge of any international court
appointed or elected from Lithuania. If the person gained his
work record as a judge while working as a judge in different
courts and at different time, his gained work record as a judge
in order to receive the state pension of judges shall be summed
up under the procedure established in the Regulations for
Granting and Payment of the State Pensions of Judges
(hereinafterthe Regulations) approved by the Government."
The said article entrenched the procedure for calculation of
the work record of judges in order to receive the state pension
of judges.
6.4. Article 6 "The Size of the State Pension of Judges" of
the Law on the State Pensions of Judges, which is disputed in the
constitutional justice case at issue, prescribes:
"1. For the persons who have the right to receive the state
pension of judges and who meet the conditions set out in Article
3 of this law and who have gained not less than a twenty-year
work record as a judge, the state pension of judges shall be
calculated from the average remuneration for work received in
last 5 years (before they finished holding the office of the
judge) and 45 percent of this amount shall be granted.
2. For the persons who have the right to receive the state
pension of judges and who meet the conditions set out in Article
3 of this law, but who have not gained the twenty-year work
record as a judge, the state pension of judges of the following
size shall be granted:
1) for the persons who have gained a fifteen-year or longer
work record as a judge, the state pension of judges shall be
calculated from the average remuneration for work received in
last 5 years (before they finished holding the office of the
judge) and 35 percent of this size shall be granted;
2) for the persons who have gained a ten-year or longer work
record as a judge, the state pension of judges shall be
calculated from the average remuneration for work received in
last 5 years (before they finished holding the office of the
judge) and 20 percent of this size shall be granted;
3) for the persons who have gained a five-year or longer
work record as a judge, the state pension of judges shall be
calculated from the average remuneration for work received in
last 5 years (before they finished holding the office of the
judge) and 10 percent of this size shall be granted.
3. The sum of the state pension of judges calculated
according to the procedure established in Paragraphs 1 and 2 of
this article and the pensions granted under other laws (state and
state social insurance pensions) may not exceed per person the
amount of 1.5 of the average monthly remuneration for work in the
economy of the country, as announced by the Department of
Statistics, for the quarter before the last quarter preceding the
month for which the state pension of judges is paid. Limitation
of the size of the pension shall be applied by the institution
paying the state pensions of judges."
6.4.1. Thus, Paragraph 1 of Article 6 of the Law on the
State Pensions of Judges prescribes the maximum size of the state
pension of judges and the procedure for calculation thereof. The
maximum size of the state pension of judges is 45 percent of the
remuneration for work of a judge calculated from the average
remuneration of a judge received in last 5 years before
termination of holding the office of the judge. The right to
receive the state pension of judges of the maximum size is
acquired by the persons who have gained not less than a twenty-
year work record as a judge and who meet the conditions set out
in Article 3 of the said law.
6.4.2. Paragraph 2 of Article 6 of the Law on the State
Pensions of Judges prescribes the procedure for calculation of
the state pension of the judges who have not gained a twenty-year
work record as a judge, but who meet the conditions set out in
Article 3 of this law, and entrenches the percentage amounts of
the state pension of judges granted to a judge (35 percent, 20
percent, and 10 percent of the average remuneration for work of
the judge, calculated from the remuneration received in last 5
years before termination of holding the office of the judge),
which depend on the duration of the person's work record as a
judge. For instance, under Paragraph 2 of Article 6 of this law:
- the judge who has gained the work record as a judge from 5
to 10 years is granted the state pension of judges of the amount
of 10 percent of his received average remuneration for work;
- the judge who has gained the work record as a judge from
10 to 15 years is granted the state pension of judges of the
amount of 20 percent of his received average remuneration for
work;
- the judge who has gained the work record as a judge from
15 to 20 years is granted the state pension of judges of the
amount of 35 percent of his received average remuneration for
work.
6.4.3. The legal regulation entrenched in Paragraph 3 of
Article 6 of the Law on the State Pensions of Judges inter alia
sets limitation upon the size of the calculated state pension of
judges in conjunction with state social insurance pensions and
other state pensions for one person.
6.5. The Law on the State Pensions of Judges has been
amended and supplemented more than once, however, Articles 5 and
6 thereof, the compliance of which with the Constitution is
disputed in the constitutional justice case at issue, have not
been amended or supplemented.
7. In the context of the constitutional justice case at
issue it needs to be noted that, on 22 October 2007, the
Constitutional Court adopted the Ruling "On the compliance of
Article 4 (Wordings of 2 July 2002, 4 November 2004, 19 May 2005,
and 8 June 2006) of the Republic of Lithuania Law on the State
Pensions of Judges with the Constitution of the Republic of
Lithuania", wherein inter alia the legal regulation, whereby the
state pension of judges inter alia is not granted and the granted
pension is not paid, if the person has the income from which
state social insurance contributions are calculated and paid, or
if he receives state social insurance benefits of sickness
(including those paid by the employer during the days of
sickness), of maternity, of paternity, of maternity (paternity),
and of professional rehabilitation, or state social insurance
payments of unemployment, which is established in Article 4
(wording of 8 June 2006) of the Law on the State Pensions of
Judges, was recognised as being in conflict with the
Constitution.
8. On 8 December 2009, the Seimas adopted the Law on the
Amendment of Articles 3, 6, 8, and 15 of the Law on State
Pensions, whereby inter alia the maximum size of the state
pension, established in Paragraph 3 of Article 3 of the Law on
State Pensions, as well as the maximum size of the sum total of
the size of this pension and other state pensions and state
social insurance pensions granted to the same person were reduced
per person from the amount of 1.5 to 1.3 of the average monthly
remuneration for work in the economy of the country, as announced
by the Department of Statistics under the Government of the
Republic of Lithuania, for the quarter before the last quarter
preceding the month for which the state pension is paid. This
amendment of the law came into force on 1 January 2010.
Thus, such legal regulation entrenched limitation upon the
size of the calculated state pensions established in Items 1-5 of
Paragraph 1 of Article 1 of the Law on State Pensions both of
each separately and in conjunction with other state pensions and
the state social insurance pension per person.
In this context it needs to be noted that the Law on the
State Pensions of Judges has not been correspondingly amended,
i.e. Paragraph 3 of Article 6 of this law, not amended since the
adoption of the law, wherein it is established that the sum of
the state pension of judges and the pensions granted under other
laws (state pensions and state social insurance pensions) may not
exceed per person the amount of 1.5 of the average monthly
remuneration for work in the economy of the country, as announced
by the Department of Statistics, for the quarter before the last
quarter preceding the month for which the state pension of judges
is paid, is valid at present.
9. On 9 December 2009, the Provisional Law on Recalculation
and Payment of Social Payments was adopted, which, with the
exception of Article 16 thereof, came into force on 1 January
2010 and remains valid until 31 December 2011.
In the Preamble to the Provisional Law on Recalculation and
Payment of Social Payments, it is established that the Seimas,
while holding that the forecasts for the Budgets of the State and
the State Social Insurance Fund suggest a constantly increasing
deficit, determined by the crisis hitting the economy, pointed to
the necessity to stabilise the growth of deficit of the Budgets
of the State and the State Social Insurance Fund, to balance
flows of money, to protect groups of socially sensitive persons,
and to ensure timely payments during the period of economic
crisis; also that taking account of the principle of solidarity
and the fact that the state pensions, rents, and compensations,
paid from the Budget of the Republic of Lithuania, are, as a
rule, as additional payments, paid in conjunction with state
social insurance pensions, it is sought, by means of the law, to
reduce the expenditures of the State Budget for these additional
payments.
In Paragraph 1 of Article 1 of the Provisional Law on
Recalculation and Payment of Social Payments, it is established
that this law prescribes: the procedure for recalculation of
social payments (state pensions, other payments enumerated in
Items 1-4 of Paragraph 2 of this article, and state social
insurance pensions) and for payment thereof to the persons who
receive insured income; the procedure for recalculation of social
insurance benefits of maternity, paternity, maternity
(paternity), and unemployment, also payments of maternity
(paternity) and the procedure for establishment of a new maximum
size of remuneration subject to compensation for calculation of
social insurance benefits; as well as the conditions for payment
of the child benefit and the sizes thereof.
Under Item 1 of Paragraph 2 of Article 1 of the aforesaid
law, this law is applied inter alia to the persons who receive
the state pensions granted and paid under the Law on State
Pensions, the Republic of Lithuania Law on the State Pensions of
Officials and Servicemen, the Law on the State Pensions of
Judges, and the Republic of Lithuania Provisional Law on the
State Pensions of Scientists.
Thus, the Provisional Law on Recalculation and Payment of
Social Payments is applied to the persons who receive inter alia
the state pensions granted and paid according to the Law on the
State Pensions of Judges.
Paragraph 4 of Article 16 of the Provisional Law on
Recalculation and Payment of Social Payments, the compliance
whereof with the Constitution is disputed in the constitutional
justice case at issue, sets a proposal to the Government, till 1
July 2010, to prepare and approve the inventory schedule of the
procedure for compensation of the reduced state social insurance
pensions of old age and of lost capacity to work.
IV
On the compliance of Article 5 and Paragraphs 1 and 2 of
Article 6 of the Law on the State Pensions of Judges with Article
52, Paragraph 1 of Article 103, and Paragraph 1 of Article 104 of
the Constitution and the constitutional principle of a state
under the rule of law as well as on the compliance of Paragraph 2
of Article 6 of this law with Article 23 of the Constitution.
1. It has been mentioned that the Vilnius Regional
Administrative Court, the petitioner (petition No. 1B-06/2008),
has doubts whether the provisions of Paragraphs 1 and 2 of
Article 6 of the Law on the State Pensions of Judges, to the
extent that the maximum nine-year term of the office of the
Constitutional Court justice is not regarded to be a sufficient
independent basis for granting the state pension of judges of the
maximum size, are not in conflict with the Constitution.
1.1. It has been mentioned that the attribution of courts
not to one but to several (at the momentthree) systems of
courts, which arises from the Constitution, among them to the
system of general jurisdiction, as well as the division of the
system of specialised courts, which are established under
Paragraph 2 of Article 111 of the Constitution, as a system of
institutions, into levels imply that the legislator has the
powers to differentiate the social (material) guarantees of
judges (remunerations, as well as the guarantees which are
established (applied) to judges upon expiry of their powers).
Thus, the legislator not only may but also must differentiate the
social (material) guarantees of judges, when establishing such
guarantees, according to the court system and the court level
where the judge works.
It has been mentioned that justices of the Constitutional
Court differ from other judges of courts of general and
specialised jurisdiction also in the aspect of the term of their
powers. For instance, under the Constitution, the term of the
office of judges of courts of general jurisdiction and
specialised courts is established by the Law on Courts. In this
context it needs to be noted that, under the Law on Courts that
is currently in force, judges of courts of general jurisdiction
and administrative courts are appointed until they reach the age
of 65 years. It has been mentioned that, under Paragraph 1 of
Article 103 of the Constitution, justices of the Constitutional
Court are appointed for a single nine-year term of office. It has
also been mentioned that, while regulating the relations of the
social (material) guarantees of judges upon expiry of the term of
office of the judge, inter alia when differentiating these
guarantees, account must be taken of the fact stemming from the
Constitution that courts are attributed not to one but to several
(at presentthree) systems of courts, out of which a separate
system is comprised of the Constitutional Court, characterised by
its own peculiarities, inter alia the aspect of the term of
office of justices of the Constitutional Court.
It has also been mentioned that the legislator, while
regulating the relations of the social (material) guarantees of
judges upon expiry of the term of their office, must also take
account of the fact that justices of the Constitutional Court
differ from judges of other courts in regard to their
constitutional status, inter alia the term of their powers.
Otherwise, one would deviate from the constitutional concept of
such social (material) guarantees, under which the social
(material) guarantees of judges, when establishing them, must be
differentiated by taking account of the specificity of a court
system as well as peculiarities of the status of judges of a
court system.
1.2. It has been mentioned that Paragraph 1 of Article 6 of
the Law on the State Pensions of Judges establishes the maximum
size of the state pension of judges and the procedure for
calculation thereof. The maximum size of the state pension of
judges is 45 percent of the remuneration for work of the judge
calculated from the remuneration of the judge received in last 5
years before termination of holding the office of the judge. The
right to receive the state pension of judges of the maximum size
is acquired by the persons who have gained not less than a
twenty-year work record as a judge and who meet the conditions
set out in Article 3 of the said law.
1.3. In assessing the legal regulation established in
Paragraph 1 of Article 6 of the Law on the State Pensions of
Judges in the aspect of its compliance with the Constitution, it
needs to be noted that, under the Constitution, it is permitted,
by means of the law, to establish the maximum size of the state
pension of judges. Thus, there is not any legal basis to maintain
that the legal regulation established in Paragraph 1 of Article 6
of the Law on the State Pensions of Judges, in the aspect whereby
inter alia it establishes the maximum size of the state pension
of judges, i.e. 45 percent of the received average remuneration
for work of a judge, is not in line with the requirements
stemming from the Constitution.
Alongside, it needs to be noted that, under the legal
regulation established in Paragraph 1 of Article 6 of the Law on
the State Pensions of Judges, the maximum state pension of judges
may be granted only to the persons who have acquired not less
than a twenty-year work record as a judge. It has been mentioned
that, under Paragraph 1 of Article 103 of the Constitution,
justices of the Constitutional Court are appointed for a single
nine-year term of office. Thus, the legal regulation established
in Paragraph 1 of Article 6 of the Law on the State Pensions of
Judges does not include the persons who were justices of the
Constitutional Court for the entire nine-year term of office
established in the Constitution and who have only a nine-year
work record as a justice of the Constitutional Court.
1.4. Thus, when entrenching in Paragraph 1 of Article 6 of
the Law on the State Pensions of Judges the procedure for
calculation of the state pensions of judges and the maximum size
of these pensions, no account was taken of the specific
constitutional status of the Constitutional Court as an
independent court system, inter alia of the fact that justices of
the Constitutional Court are appointed for a single nine-year
term of office, therefore, the requirement that stems from the
Constitution, inter alia Paragraph 2 of Article 109 thereof, to
differentiate the social (material) guarantees of judges, when
establishing such guarantees, according to the court system where
the judge works, is violated and the imperative of justice that
arises from the constitutional principle of a state under the
rule of law is denied.
1.5. Taking account of the arguments set forth, one is to
draw a conclusion that Paragraph 1 of Article 6 of the Law on the
State Pensions of Judges, to the extent that in establishing the
maximum size of the state pension of judges no account was taken
of peculiarities of separate court systems, is in conflict with
Paragraph 2 of Article 109 of the Constitution and the
constitutional principle of a state under the rule of law.
1.6. It has been mentioned that Paragraph 2 of Article 6 of
the Law on the State Pensions of Judges establishes the procedure
for calculation of the state pension of the judges who have not
gained a twenty-year work record as a judge, but who meet the
conditions set out in Article 3 of this law, and entrenches the
percentages of the state pension of judges granted to a judge (35
percent, 20 percent, and 10 percent of the average remuneration
for work of the judge, calculated from the remuneration received
in last 5 years before termination of holding the office of the
judge), which depend on the duration of the person's work record
as a judge. Under Paragraph 2 of Article 6 of this law:
- the judge who has gained the work record as a judge from 5
to 10 years is granted the state pension of judges of the amount
of 10 percent of his received average remuneration for work;
- the judge who has gained the work record as a judge from
10 to 15 years is granted the state pension of judges of the
amount of 20 percent of his received average remuneration for
work;
- the judge who has gained the work record as a judge from
15 to 20 years is granted the state pension of judges of the
amount of 35 percent of his received average remuneration for
work.
While construing Paragraph 2 of Article 6 of the Law on the
State Pensions of Judges, it needs to be noted that the legal
regulation established therein also means that the persons who
were justices of the Constitutional Court for the entire nine-
year term of office provided for in the Constitution and who have
only a nine-year work record as a justice of the Constitutional
Court as well as the persons who have gained the work record from
five to ten years of work in other courts (no matter of what
court system and of which court level, thus, in a court of the
lowest level as well) are granted the state pension of judges by
applying the lowest percentage of the state pension, i.e. 10
percent of the average remuneration for work received by the
judge.
Thus, when entrenching in Paragraph 2 of Article 6 of the
Law on the State Pensions of Judges the procedure for calculation
of the state pensions of the judges who have not gained a twenty-
year work record as a judge as well as the sizes of granting
these pensions, no account was taken of the specific
constitutional status of the Constitutional Court as an
independent court system, inter alia of the fact that justices of
the Constitutional Court are appointed for a single nine-year
term of office, therefore, the requirement that stems from the
Constitution, inter alia Paragraph 2 of Article 109 thereof, to
differentiate the social (material) guarantees of judges, when
establishing such guarantees, according to the court system where
the judge works is violated and the imperative of justice that
arises from the constitutional principle of a state under the
rule of law is denied.
2. It has been mentioned that the Vilnius Regional
Administrative Court, the petitioner (petition No. 1B-20/2008),
requests investigation into the compliance of Paragraph 2 of
Article 6 of the Law on the State Pensions of Judges with the
Constitution also in the aspect that, by linking granting of the
state pension of judges and payment thereof to a five-year
interval of work record and to a fixed percent of the average
remuneration for work received by the judge, one violates the
right of the person to receive the payments of his well-earned
pension.
2.1. It has also been mentioned that the guarantees of
social (material) nature of judges, inter alia the social
guarantees upon expiry of powers of the judge, may be
differentiated according to the duration of the person's work as
a judge.
It has been mentioned that the size of the social (material)
guarantees upon expiry of powers of the judge may be
differentiated according to the duration of the person's work as
a judge as well. However, the legal regulation, under which the
size of the social (material) guarantees of judges upon expiry of
their powers is differentiated according to the duration of the
person's work as a judge, must not deviate from the
constitutional concept of this social (material) guarantee of
judges. In this context it needs to be noted that such legal
regulation, under which the size of the said social (material)
guarantee would be the same or similar for the judges who
received the remuneration of equal or similar amount, but whose
duration of work in courts differs considerably, or the size of
the said social (material) guarantee would differ considerably
for the judges who received the remuneration of equal or similar
amount, but whose duration of work in courts differs little,
would not be in conformity with the constitutional concept of the
social (material) guarantee of judges upon expiry of powers of
the judge, inter alia the requirements of Paragraph 2 of Article
109 of the Constitution, as well as the imperatives of justice,
proportionality, and reasonableness that stem from the
constitutional principle of a state under the rule of law.
2.2. It has been mentioned that under Paragraph 2 of Article
6 of the Law on the State Pensions of Judges:
- the judge who has gained the work record as a judge from 5
to 10 years is granted the state pension of judges of the amount
of 10 percent of his received average remuneration for work;
- the judge who has gained the work record as a judge from
10 to 15 years is granted the state pension of judges of the
amount of 20 percent of his received average remuneration for
work;
- the judge who has gained the work record as a judge from
15 to 20 years is granted the state pension of judges of the
amount of 35 percent of his received average remuneration for
work.
2.3. In this context it needs to be noted that the legal
regulation entrenched in Paragraph 2 of Article 6 of the Law on
the State Pensions of Judges creates preconditions for appearance
of such legal situations where the judges, whose average
remuneration for work, on the basis of which the state pension of
judges is calculated, is equal or similar, but the duration of
their work record as a judge differs considerably, will be
granted the state pension of judges of the same or similar
amount. For example, the judge who has gained a nine-year work
record as a judge may be granted the state pension of judges of
the same or similar amount as the judge who has gained a five-
year work record as a judge.
In addition, such legal regulation creates preconditions for
appearance of such legal situations where the judge, whose
duration of the work record as a judge differs insignificantly
from the duration of the work record of other judge, will be
granted a considerably smaller state pension of judges than the
judge whose work record as a judge is slightly longer (provided,
of course, the average remuneration for work received by these
judges, on the basis of which the state pension of judges is
calculated, is the same or similar). For example, under the legal
regulation established in Paragraph 2 of Article 6 of the Law on
the State Pensions of Judges, the judge who has gained a
fourteen-year work record as a judge is granted the pension of
the size of 20 percent of the average remuneration for work
received by the judge, whereas the judge who has gained already a
fifteen-year work record as a judgethe pension of the size of 35
percent of the average remuneration for work received by the
judge.
2.4. Thus, the legal regulation established in Paragraph 2
of Article 6 of the Law on the State Pensions of Judges, which,
on the one hand, creates preconditions to make totally equal
sizes of the state pensions of the judges who have gained the
work record as a judge of a considerably different duration and
which, on the other hand, creates preconditions to grant the
state pension of judges of a considerably different size to the
judges the duration of whose work record as a judge differs
insignificantly, is not in line with the constitutional concept
of the state pension of judges as a social (material) guarantee
of judges upon expiry of their powers, inter alia the provisions
of Paragraph 2 of Article 109 of the Constitution and the
requirements of justice, proportionality, and reasonableness
stemming from the constitutional principle of a state under the
rule of law.
2.5. Taking account of the arguments set forth, one is to
draw a conclusion that Paragraph 2 of Article 6 of the Law on the
State Pensions of Judges is in conflict with Paragraph 2 of
Article 109 of the Constitution and the constitutional principle
of a state under the rule of law.
3. Having held in the constitutional justice case at issue
that Paragraphs 1 and 2 of Article 6 of the Law on the State
Pensions of Judges are in conflict with Paragraph 2 of Article
109 of the Constitution and the constitutional principle of a
state under the rule of law, the Constitutional Court will not
further investigate whether Paragraphs 1 and 2 of Article 6 of
the Law on the State Pensions of Judges are not in conflict with
Article 52, Paragraph 1 of Article 103, and Paragraph 1 of
Article 104 of the Constitution, and whether Paragraph 2 of
Article 6 of the Law on the State Pensions of Judges is not in
conflict with Article 23 of the Constitution.
4. It needs to be noted that in the constitutional justice
case at issue the petitioner disputes inter alia the compliance
of Article 5 of the Law on the State Pensions of Judges with
Article 52, Paragraph 1 of Article 103, and Paragraph 1 of
Article 104 of the Constitution as well as with the
constitutional principle of a state under the rule of law.
4.1. Article 5 of the Law on the State Pensions of Judges
prescribes that the work record of judges which is necessary in
order to receive the state pension of judges includes the period
since 11 March 1990, during which the person worked as a judge in
the courts which function in the territory of Lithuania (the
Constitutional Court, courts of general jurisdiction and
specialised courts) or as a judge of any international court
appointed or elected from Lithuania, while, if the person has
gained the work record of a judge while working as a judge in
different courts and at different time, his gained work record as
a judge, in order to receive the state pension of judges, is
summed up according to the procedure established by the
Regulations for Granting and Payment of the State Pensions of
Judges approved by the Government.
4.2. The petitioner disputes the legal regulation
established in the aforesaid article to the extent that it is not
established therein that the maximum nine-year term of the office
of the Constitutional Court justice is a sufficient independent
basis to grant the state pension of judges of such a size which
would be in line with a special status of the Constitutional
Court in the constitutional system of judicial power.
4.3. In this context it needs to be noted that Article 5
"Work Record of Judges Necessary to Receive the State Pension of
Judges" of the Law on the State Pensions of Judges does not
regulate the sizes of the state pensions of judges, but only
provides for the procedure for calculation of the work record of
judges. Thus, the legal regulation entrenched in Article 5 of the
Law on the State Pensions of Judges is virtually different and it
is not related with the aspect indicated by the petitioner;
consequently, investigation into the constitutionality of the
said article in the aspect indicated by the petitioner would
become meaningless. Thus, it needs to be held that in this part
of the case the matter of investigation is absent.
4.4. The absence of the matter of investigation in the
petition of the petitioner means that the petition is not within
the jurisdiction of the Constitutional Court (Constitutional
Court decisions of 6 May 2003 and 13 May 2003, ruling of 13 May
2004, decision of 8 August 2006, rulings of 20 December 2007 and
20 March 2008).
4.5. Item 2 of Paragraph 1 of Article 69 of the Law on the
Constitutional Court prescribes that, by its decision, the
Constitutional Court shall refuse to consider petitions to
investigate the compliance of a legal act with the Constitution,
if the consideration of the petition does not fall under the
jurisdiction of the Constitutional Court.
Under Paragraph 3 of Article 69 of the Law on the
Constitutional Court, in the event that the grounds for refusal
to consider a petition have been established after the
commencement of the investigation of the case during the hearing
of the Constitutional Court, a decision to dismiss the case shall
be adopted.
4.6. Taking account of the arguments set forth, the part of
this constitutional justice case concerning the request of the
Vilnius Regional Administrative Court, the petitioner, to
investigate whether Article 5 of the Law on the State Pensions of
Judges, to the extent that the maximum nine-year term of the
office of the Constitutional Court justice is not regarded to be
a sufficient independent basis for granting the state pension of
the judge of the maximum amount, is not in conflict with Article
52, Paragraph 1 of Article 103, and Paragraph 1 of Article 104 of
the Constitution and the constitutional principle of a state
under the rule of law, is to be dismissed.
V
On the compliance of the provision of Paragraph 3 of Article
6 of the Law on the State Pensions of Judges with Article 52,
Paragraph 1 of Article 104, and Paragraph 2 of Article 109 of the
Constitution and the constitutional principle of a state under
the rule of law and on the compliance of Paragraph 3 (wording of
8 December 2009) of Article 3 of the Law on State Pensions with
Articles 23 and 52 of the Constitution and the constitutional
principle of a state under the rule of law.
1. Paragraph 3 of Article 6 of the Law on the State Pensions
of Judges prescribes that the sum of the state pension of judges
and the pensions granted under other laws (state and state social
insurance pensions) may not exceed per person the amount of 1.5
of the average monthly remuneration for work in the economy of
the country, as announced by the Department of Statistics, for
the quarter before the last quarter preceding the month for which
the state pension of judges is paid. Limitation of the size of
the pension is applied by the institution paying the state
pensions of judges.
1.1. It has been mentioned that the social (material)
guarantees of the principle of the independence of the judge,
which stem from the Constitution (which are actually consolidated
in law of other democratic states, as well as in various
international acts) mean that the state has a duty to ensure such
social (material) maintenance for judges which would be in
conformity with their status when they are in office as well as
upon expiry of the term of their office. The social (material)
guarantees established to judges, under the Constitution, must be
such so that they would be in line with the constitutional status
of the judge and his dignity.
It has also been mentioned that, in its ruling of 22 October
2007, the Constitutional Court held that the legislator must
establish such legal regulation which would ensure the
independence of the judge and courts, inter alia the social
(material) guarantees of the judge, not only when he is in
office, but also upon expiry of his powers; while doing so, the
legislator must heed the norms and principles of the
Constitution; upon expiry of powers of the judge, the social
(material) guarantees of the judge may be varied ones, inter alia
the payments paid periodically, as well as one-time payments,
etc.; the constitutional ground for establishment of such
guarantees is an exceptional constitutional status of the judge
which is determined by the function of administration of justice,
therefore, they may depend only upon the circumstances which are
related with the constitutional status of the judge, but they may
not be treated as replacing other social (material) guarantees
which must be ensured to the former judge on a different basis,
including those which are common to all the working persons; the
social (material) guarantees of the judge, upon expiry of his
powers, must be real and not only nominal.
It has been mentioned that the Constitutional Court has held
that if the legislator enshrines such a social (material)
guarantee of the judge upon expiry of his powers as the pension
of the judge, this guarantee is defended not only under Article
109 of the Constitution, but also under Article 52 thereof.
It has also been mentioned that the legislator, while
regulating the relations connected with the state pension of
judges, must establish, by means of a law, the grounds and
conditions for granting this pension. The legislator may
establish, by means of a law, the maximum size of the state
pension of judges as well as entrench various ways for
establishment of the maximum size of such a pension. While doing
so, the legislator must not violate the norms and principles of
the Constitution. In this context it needs to be noted that the
legislator, when entrenching, by means of a law, the maximum size
of the pension as well as ways for establishment of this size,
must heed inter alia the fact that the state pension of judges is
a social (material) guarantee of the judge upon expiry of his
powers that stems from the Constitution and which is defended not
only under Article 109 of the Constitution, but also under
Article 52 thereof, that this social (material) guarantee must be
in line with the constitutional status of the judge and his
dignity, and that such a constitutional social (material)
guarantee of the judge must be real and not only nominal.
Otherwise, one would deny the essence and purpose of the state
pension of judges as a social (material) guarantee of the judge
upon expiry of his powers that stem from the Constitution, and
thereby would create preconditions to deviate from the
requirements arising from the Constitution, inter alia Paragraph
2 of Article 109 thereof and the constitutional principle of a
state under the rule of law.
1.2. It has been mentioned that Paragraph 3 of Article 6 of
the Law on the State Pensions of Judges sets limitation upon the
size of the calculated state pension of judges in conjunction
with the state social insurance pension and other state pensions
per person.
This provision entrenches the maximum sum of all the
pensions received by the person (in the event when the person is
entitled to receive not one but several pensions granted under
different laws) which may not exceed the amount of 1.5 of the
average monthly remuneration for work in the economy of the
country, as announced by the Department of Statistics, for the
quarter before the last quarter preceding the month for which the
state pension of judges is paid. Consequently, although
Paragraphs 1 and 2 of Article 6 of the Law on the State Pensions
of Judges entrench the legal regulation, under which the size of
the state pension of judges depends upon the person's work record
as a judge and the average remuneration for work of the judge
received in last 5 years before termination of holding the office
of the judge (the persons who have gained not less than a twenty-
year work record as a judge are granted the state pension of
judges of the amount of 45 percent of the average remuneration
for work, the persons who have gained a fifteen-year or longer
work record as a judgethe pension of the amount of 35 percent of
the average remuneration for work, the persons who have gained a
ten-year or longer work record as a judgethe pension of the
amount of 20 percent of the average remuneration for work, and
the persons who have gained a five-year or longer work record as
a judgethe pension of the amount of 10 percent of the average
remuneration for work), this legal regulation is "neutralised",
since the size of the state pension of judges actually paid in
conjunction with other pensions is limited by the amount of 1.5
of the average monthly remuneration for work in the economy of
the country, as announced by the Department of Statistics, i.e.
it depends upon what pensions and of what size the person had to
receive under other laws.
1.3. In this context it needs to be noted that the legal
regulation entrenched in Paragraph 3 of Article 6 of the Law on
the State Pensions of Judges creates preconditions for appearance
of also such legal situations where the person, who was a judge
and the sum of whose state (other than the state pension of
judges) and state social insurance pensions exceeds the amount of
1.5 of the average monthly remuneration for work in the economy
of the country, as announced by the Department of Statistics, for
the quarter before the last quarter preceding the month for which
the state pension of judges is paid, or is slightly smaller than
this amount, will not be paid the state pension of judges at all
or will be paid only a small part of this pension, i.e. the state
pension of judges can become not a real but nominal
constitutional social (material) guarantee of the judge upon
expiry of his powers.
1.4. Thus, the legal regulation established in Paragraph 3
of Article 6 of the Law on the State Pensions of Judges denies
the essence and purpose of the state pensions of judges as a
social (material) guarantee of the judge upon expiry of his
powers that stems from the Constitution and creates preconditions
to deviate from the requirements arising from the Constitution,
inter alia Paragraph 2 of Article 109 thereof and the
constitutional principle of a state under the rule of law.
1.5. Taking account of the arguments set forth, one is to
draw a conclusion that Paragraph 3 of Article 6 of the Law on the
State Pensions of Judges is in conflict with Paragraph 2 of
Article 109 of the Constitution and the constitutional principle
of a state under the rule of law.
1.6. Having held that Paragraph 3 of Article 6 of the Law on
the State Pensions of Judges is in conflict with Paragraph 2 of
Article 109 of the Constitution and the constitutional principle
of a state under the rule of law, in the constitutional justice
case at issue the Constitutional Court will not further
investigate whether Paragraph 3 of Article 6 of the Law on the
State Pensions of Judges is not in conflict with Article 52 and
Paragraph 2 of Article 104 of the Constitution.
2. It has been mentioned that the Vilnius Regional
Administrative Court, the petitioner, has doubts as to whether
Paragraph 3 (wording of 8 December 2009) of Article 3 of the Law
on State Pensions, to the extent that it prescribes that the size
of the state pension of judges as well as the sum total of the
size of this pension and other state pensions and state social
insurance pensions granted to the same person may not exceed per
person the amount of 1.3 of the average monthly remuneration for
work in the economy of the country, as announced by the
Department of Statistics under the Government of the Republic of
Lithuania, for the quarter before the last quarter preceding the
month for which the state pension is paid, is not in conflict
with the Constitution.
2.1. In this context it needs to be noted that, on 8
December 2009, the Seimas amended Article 3 of the Law on State
Pensions, inter alia reducing the maximum size of the state
pension established in Paragraph 3 of the said article as well as
the maximum size of the sum total per person of the size of this
pension and other state pensions and state social insurance
pensions granted to the same person from the amount of 1.5 to 1.3
of the average monthly remuneration for work in the economy of
the country, as announced by the Department of Statistics under
the Republic of Lithuania, for the quarter before the last
quarter preceding the month for which the state pension is paid.
2.2. In this context it also needs to be noted that the
provision of the Law on the State Pensions of Judges which
prescribes the maximum size of the state pension of judges and
other pensions received by the person, when amending the
provision of the Law on State Pensions, was not changed. Thus,
under the Law on State Pensions, the maximum size of the state
pension of the person, inter alia the state pension of judges,
and the maximum sum total of this pension and other pensions
received by the person may not exceed the amount of 1.3 of the
average monthly remuneration for work in the economy of the
country, as announced by the Department of Statistics under the
Republic of Lithuania, for the quarter before the last quarter
preceding the month for which the state pension is paid, whereas
under the Law on the State Pensions of Judges, the sum of the
state pension of judges and the pensions granted under other laws
may not exceed the aforementioned amount of 1.5. It needs to be
mentioned that the Law on the State Pensions of Judges is lex
specialis with regard to the Law on State Pensions.
It needs to be noted that in the constitutional justice case
at issue Paragraph 3 of Article 6 of the Law on the State
Pensions of Judges, which, as mentioned, establishes limitation
upon the size of the calculated state pension of judges in
conjunction with the state social insurance pension as well as
other state pensions per person, has been recognised to be in
conflict with Paragraph 2 of Article 109 of the Constitution and
the constitutional principle of a state under the rule of law.
2.3. It needs to be noted that by means of the disputed
provision of the Law on State Pensions the legislator inter alia
reduced the maximum size of the state pension, inter alia the
state pension of judges, as well as the maximum size of the sum
total of this pension and other pensions granted to the same
person.
It has been mentioned that when there is an essential change
in the economic and financial situation of the state and when due
to special circumstances (economic crisis, natural disaster,
etc.) an extremely difficult economic and financial situation has
occurred in the state, due to objective reasons, there may be not
enough funds in order to fulfil the functions of the state and to
satisfy the public interests, thus, also to ensure the material
and financial needs of courts. Under such circumstances, the
legislator may change the legal regulation which establishes the
remuneration as well as pensions to various persons and entrench
the legal regulation on the remuneration as well as pensions
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.
Consequently, in case of an extremely difficult economic and
financial situation of the state, the remuneration of judges and
the state pensions of judges may be reduced as well. If one
established such legal regulation, whereby in case of an
extremely difficult economic and financial situation of the
country it would not be permitted to reduce the financing of
courts only, nor to reduce the remuneration and pensions of
judges only, it would mean that courts are groundlessly singled
out from among other institutions which implement state power,
and judgesfrom among other persons that participate in
implementing powers of the corresponding institutions of state
power. The consolidation of such an exceptional situation of
courts (judges) would not be in line with the requirements of an
open, fair and harmonious civil society and of the imperatives of
justice. It is possible to worsen the financial and material
conditions for the functioning of courts that are provided for by
laws and to reduce the remuneration of judges and the state
pensions of judges only by means of a law, and it is possible to
do so only temporarily, for the period of time when the economic
and financial condition of the state is extremely difficult; by
such reduction of the remuneration and the state pensions of
judges no preconditions should be created for other institutions
of state power and their officials to violate the independence of
courts.
2.4. It has been mentioned that Paragraph 3 (wording of 8
December 2009) of Article 3 of the Law on State Pensions
prescribes that the size of the state pension as well as the sum
total of the size of this pension and state pensions and state
social insurance pensions granted to the same person may not
exceed per person the amount of 1.3 of the average monthly
remuneration for work in the economy of the country, as announced
by the Department of Statistics under the Government of the
Republic of Lithuania, for the quarter before the last quarter
preceding the month for which the state pension is paid;
limitation upon the size of the pension is applied by the
institution paying the state pension.
This provision inter alia entrenches limitation upon the
maximum size of the state pension and the size of the state
pension calculated in conjunction with the state social insurance
pension and other state pensions per person. In the context of
the constitutional justice case at issue the rule entrenched in
Paragraph 3 (wording of 8 December 2009) of Article 3 of the Law
on State Pensions inter alia means that for the person, who is
granted the state pension of judges, the state social insurance
pension and/or other state pension, the total size of these
pensions may not exceed the amount of 1.3 of the average monthly
remuneration for work in the economy of the country, as announced
by the Department of Statistics under the Government of the
Republic of Lithuania, for the quarter before the last quarter
preceding the month for which the state pension is paid.
2.5. In this context it needs to be noted that such legal
regulation, which is entrenched in Paragraph 3 (wording of 8
December 2009) of Article 3 of the Law on State Pensions, creates
preconditions for appearance of also such legal situations where
the person, formerly a judge, the sum of whose state (other than
the state pension of judges) and state social insurance pensions
exceeds the amount of 1.3 of the average monthly remuneration for
work in the economy of the country, as announced by the
Department of Statistics, for the quarter before the last quarter
preceding the month for which the state pension of judges is
paid, or is slightly smaller than this amount, will not be paid
the state pension of judges at all or will be paid only a small
part of this pension, i.e. the state pension of judges can become
not a real but nominal constitutional social (material) guarantee
of the judge upon expiry of his powers.
2.6. Thus, the legal regulation established in Paragraph 3
(wording of 8 December 2009) of Article 3 of the Law on State
Pensions denies the essence and purpose of the state pensions of
judges as a social (material) guarantee of the judge upon expiry
of his powers that stems from the Constitution and creates
preconditions to deviate from the requirements arising from the
Constitution, inter alia Paragraph 2 of Article 109 thereof and
the constitutional principle of a state under the rule of law.
2.7. Taking account of the arguments set forth, one is to
draw a conclusion that the provision "The sum total of the size
of each state <
> pension established in Items 1-5 of Paragraph 1
of Article 1 of this law and the state pensions granted to the
same person under Paragraph 1 of this article and state social
insurance pensions may not exceed per person the amount of 1.3 of
the average monthly remuneration for work in the economy of the
country, as announced by the Department of Statistics under the
Government of the Republic of Lithuania, for the quarter before
the last quarter preceding the month for which the state pension
is paid" (wording of 8 December 2009) of Paragraph 3 (wording of
8 December 2009) of Article 3 of the Law on State Pensions, to
the extent that the formula "of each state <
> pension
established in Items 1-5 of Paragraph 1 of Article 1 of this law"
includes the state pensions of judges established in Item 5 of
Paragraph 1 of Article 1 of this law, is in conflict with
Paragraph 2 of Article 109 of the Constitution and the
constitutional principle of a state under the rule of law.
Having held this, in the constitutional justice case at
issue the Constitutional Court will not investigate whether
Paragraph 3 (wording of 8 December 2009) of Article 3 of the Law
on State Pensions is not in conflict with Articles 23 and 52 of
the Constitution.
VI
On the compliance of Item 1 of Paragraph 2 of Article 1 and
Paragraph 4 of Article 16 of the Provisional Law on Recalculation
and Payment of Social Payments with Articles 23 and 52 of the
Constitution and the constitutional principle of a state under
the rule of law.
1. It has been mentioned that the petitioner has doubts
whether Item 1 of Paragraph 2 of Article 1 of the Provisional Law
on Recalculation and Payment of Social Payments, to the extent
that it is established that this law is applied to the persons
who receive the state pensions that are granted and paid under
the Law on the State Pensions of Judges, is not in conflict with
Articles 23 and 52 of the Constitution and the constitutional
principle of a state under the rule of law.
1.1. It has been mentioned that when there is an essential
change in the economic and financial situation of the state and
when due to special circumstances (economic crisis, natural
disaster, etc.) an extremely difficult economic and financial
situation has occurred in the state, due to objective reasons,
there may be not enough funds in order to fulfil the functions of
the state and to satisfy the public interests, thus, also to
ensure the material and financial needs of courts. Under such
circumstances, the legislator may change the legal regulation
which establishes the remuneration as well as pensions to various
persons and entrench the legal regulation on the remuneration as
well as pensions which would be less favourable to these persons,
if it is necessary in order to ensure the vital interests of
society and the state and to protect other constitutional values.
However, also in such cases the legislator must keep the balance
between the rights and legitimate interests of the persons, to
whom the less favourable legal regulation is established, and the
interests of society and the state, i.e. to pay heed to the
requirements of the principle of proportionality. Consequently,
in case of an extremely difficult economic and financial
situation of the state, the remuneration of judges and the state
pensions of judges may be reduced as well. If one established
such legal regulation, whereby in case of an extremely difficult
economic and financial situation of the country it would not be
permitted to reduce the financing of courts only, nor to reduce
the remuneration and pensions of judges only, it would mean that
courts are groundlessly singled out from among other institutions
which implement state power, and judgesfrom among other persons
that participate in implementing powers of the corresponding
institutions of state power. The consolidation of such
exceptional situation of courts (judges) would not be in line
with the requirements of an open, fair and harmonious civil
society and the imperatives of justice. It is possible to worsen
the financial and material conditions for the functioning of
courts that are provided for by laws and to reduce the
remuneration of judges and the state pensions of judges only by
means of a law, and it is possible to do so only temporarily, for
the period of time when the economic and financial condition of
the state is extremely difficult; by such reduction of the
remuneration and the state pensions of judges no preconditions
should be created for other institutions of state power and their
officials to violate the independence of courts.
1.2. It has been mentioned that Item 1 of Paragraph 2 of
Article 1 of the Provisional Law on Recalculation and Payment of
Social Payments provides that this law is inter alia applied to
the persons who receive the state pensions that are granted and
paid under the Law on the State Pensions of Judges.
1.3. Thus, there is no basis to maintain that Item 1 of
Paragraph 2 of Article 1 of the Provisional Law on Recalculation
and Payment of Social Payments is in conflict with the
constitutional principle of a state under the rule of law as well
as Articles 23 and 52 of the Constitution.
1.4. Taking account of the arguments set forth, one is to
draw a conclusion that Item 1 of Paragraph 2 of Article 1 of the
Provisional Law on Recalculation and Payment of Social Payments,
to the extent that it is established that this law is applied to
the persons who receive the state pensions that are granted and
paid under the Law on the State Pensions of Judges, is not in
conflict with Articles 23 and 52 of the Constitution and the
constitutional principle of a state under the rule of law.
2. Paragraph 4 of Article 16 of the Provisional Law on
Recalculation and Payment of Social Payments sets forth proposals
to the Government, till 1 July 2010, to prepare and approve the
inventory schedule of the procedure for compensation of the
reduced state social insurance pensions of old age and of lost
capacity to work.
The legal regulation established in Paragraph 4 of Article
16 of this law is to be construed as meaning that the Government
is proposed to prepare and approve the inventory schedule of the
procedure for compensation of only reduced state social insurance
pensions of old age and of lost capacity to work, which would not
include the essential elements of compensation of pensions:
bases, sizes, etc. These elements of compensation of the reduced
pensions must be established by means of the law by the
legislator. Only if the said legal regulation is understood in
this way, Paragraph 4 of Article 16 of the Provisional Law on
Recalculation and Payment of Social Payments is not in conflict
with the Constitution.
2.1. It has also been mentioned that even when due to
special circumstances (economic crisis, etc.) there is an
extremely difficult economic and financial situation in the
state, the legislator, if he decides to reorganise the pensionary
system so that the pensions which are established by the laws and
which are not directly specified in Article 52 of the
Constitution were eliminated, or the legal regulation of these
pensions were amended in essence, must establish a fair mechanism
for compensation of the losses incurred to the persons who had
been granted and paid such pensions (Constitutional Court
decision of 20 April 2010).
2.2. It has been mentioned that the petitioner has doubts
whether Paragraph 4 of Article 16 of the Provisional Law on
Recalculation and Payment of Social Payments, to the extent that
it does not provide for compensation of the reduced state
pensions of judges, is not in conflict with the Constitution.
2.3. It has also been mentioned that upon occurrence of an
extreme situation, when inter alia due to an economic crisis it
is impossible to accumulate the amount of the funds necessary to
pay state pensions, the legislator must, while reducing state
pensions to a large extent, provide for a mechanism of just
compensation of the incurred losses to the persons to whom such
pensions were granted and paid, whereby, after the said extreme
situation is over, the state would undertake an obligation to
such persons to compensate them, in a fair manner and within a
reasonable time, the losses incurred by them due to the reduction
of the state pension (Constitutional Court decision of 20 April
2010).
It has been mentioned that, in its decision of 20 April
2010, the Constitutional Court held that state pensions, in their
nature and character, are different from state social insurance
old age pensions as well as from other state social insurance
pensions, and these peculiarities imply that when there is an
extremely difficult economic and financial situation in the state
and due to this there emerges a necessity to temporarily reduce
the pensions in order to secure the vitally important interests
of society and the state and to protect other constitutional
values, the legislator may reduce these pensions to a greater
extent than old age and disability pensions. It also needs to be
noted that the losses incurred due to the reduction of state
pensions may be compensated to a smaller extent than the losses
incurred due to the reduction of old age or disability pensions
(Constitutional Court decision of 20 April 2010).
2.4. Thus, under the Constitution, the losses incurred due
to the reduction, to a large extent, of state pensions, inter
alia the state pensions of judges, must be compensated. Such
legal regulation, which is entrenched in Paragraph 4 of Article
16 of the Provisional Law on Recalculation and Payment of Social
Payments, when the legislator proposes to the Government that the
inventory schedule of the procedure for compensation of pensions
regarding the pensions of old age and of lost capacity to work
alone be established and does not propose that the inventory
schedule of the procedure for compensation of the state pensions
reduced to a large extent be established, cannot be
constitutionally justified.
2.5. Taking account of the arguments set forth, it needs to
be held that Paragraph 4 of Article 16 of the Provisional Law on
Recalculation and Payment of Social Payments, to the extent that
it is not proposed to the Government that the inventory schedule
of the procedure for compensation of the state pensions reduced
to a large extent be prepared and approved, is in conflict with
Articles 23 and 52 of the Constitution and the constitutional
principle of a state under the rule of law.
VII
1. Under Paragraph 1 of Article 107 of the Constitution, a
law (or part thereof) of the Republic of Lithuania or other act
(or part thereof) of the Seimas, act of the President of the
Republic, act (or part thereof) of the Government may not be
applied from the day of official promulgation of the decision of
the Constitutional Court that the act in question (or part
thereof) is in conflict with the Constitution.
After the official promulgation of this Constitutional Court
ruling, from the day of its official promulgation, the articles
(parts thereof) of the Law on the State Pensions of Judges and
the Law on State Pensions which have been recognised to be in
conflict with the Constitution by this Constitutional Court
ruling may not be applied.
Consequently, after the official promulgation of this
Constitutional Court ruling certain relations related with
calculation and granting of the state pensions of judges will
remain unregulated and there will emerge a vacuum of legal
regulation.
2. As it has been held by the Constitutional Court, "under
the Constitution, the Constitutional Court, having inter alia
assessed what legal situation might appear after a Constitutional
Court ruling becomes effective, may establish a date when this
Constitutional Court ruling is to be officially published; the
Constitutional Court may postpone the official publishing of its
ruling if it is necessary to give the legislator certain time to
remove the lacunae legis which would appear if the relevant
Constitutional Court ruling was officially published immediately
after it had been publicly announced in the hearing of the
Constitutional Court and if they constituted preconditions to
basically deny certain values defended and protected by the
Constitution. The said postponement of official publishing of the
Constitutional Court ruling (inter alia a ruling by which a
certain law (or part thereof) is recognised as contradicting to
the Constitution) is a presumption arising from the Constitution
in order to avoid certain effects, unfavourable to the society
and the state as well as the human rights and freedoms, which
might appear if the relevant Constitutional Court ruling was
officially published immediately after its official announcement
in the hearing of the Constitutional Court and if it became
effective on the same day after it had been officially published"
(Constitutional Court rulings of 19 January 2005 and 23 August
2005). Thus, the Constitutional Court enjoys the constitutional
powers to establish also a later date of the official publishing
(thus, also of entry into force) of its ruling, whereby a certain
legal act (part thereof) was recognised as being in conflict with
legal acts of higher legal power, inter alia (and, first of all)
the Constitution, where, in case the Constitutional Court ruling
after its adoption was immediately officially published, the
vacuum or other indeterminacies might appear in the legal
regulation due to which certain values entrenched in and defended
and protected by the Constitution could be violated in essence
(Constitutional Court rulings of 24 December 2002, 19 January
2005 and 23 August 2005).
3. Due to the fact that, under the Constitution and the Law
on the Constitutional Court, a law (or part thereof) may not be
applied from the day of official promulgation of the
Constitutional Court ruling that the law in question (or part
thereof) is in conflict with the Constitution, it needs to be
emphasised that if the Constitutional Court ruling in this case
were officially published immediately after its public
announcement at the Constitutional Court hearing, there would
emerge a vacuum of legal regulation of the state pensions of
judges, which would in essence disturb granting of the state
pensions of judges. Certain time is required in order to remove
this vacuum of legal regulation.
Taking account of this, this Constitutional Court ruling is
to be officially published in the Official Gazette Valstybės
žinios on 16 November 2010.
Conforming to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Articles 1, 53, 54, 55, and 56 of
the Law on the Constitutional Court of the Republic of Lithuania,
the Constitutional Court of the Republic of Lithuania has passed
the following
ruling:
1. To recognise that Paragraph 1 (Official Gazette Valstybės
žinios, 2002, No. 73-3088) of Article 6 of the Republic of
Lithuania Law on the State Pensions of Judges, to the extent that
in establishing the maximum size of the state pension of judges
no account was taken of peculiarities of separate court systems,
is in conflict with Paragraph 2 of Article 109 of the
Constitution of the Republic of Lithuania and the constitutional
principle of a state under the rule of law.
2. To recognise that Paragraph 2 (Official Gazette Valstybės
žinios, 2002, No. 73-3088) of Article 6 of the Republic of
Lithuania Law on the State Pensions of Judges is in conflict with
Paragraph 2 of Article 109 of the Constitution of the Republic of
Lithuania and the constitutional principle of a state under the
rule of law.
3. To recognise that Paragraph 3 (Official Gazette Valstybės
žinios, 2002, No. 73-3088) of Article 6 of the Republic of
Lithuania Law on the State Pensions of Judges is in conflict with
Paragraph 2 of Article 109 of the Constitution of the Republic of
Lithuania and the constitutional principle of a state under the
rule of law.
4. To recognise that the provision "The sum total of the
size of each state <
> pension established in Items 1-5 of
Paragraph 1 of Article 1 of this law and the state pensions
granted under Paragraph 1 of this article and state social
insurance pensions granted to the same person may not exceed per
person the amount of 1.3 of the average monthly remuneration for
work in the economy of the country, as announced by the
Department of Statistics under the Government of the Republic of
Lithuania, for the quarter before the last quarter preceding the
month for which the state pension is paid" (wording of 8 December
2009) of Paragraph 3 (wording of 8 December 2009) (Official
Gazette Valstybės žinios, 2009, No. 151-6778) of Article 3 of the
Republic of Lithuania Law on State Pensions, to the extent that
the formula "of each state <
> pension established in Items 1-5
of Paragraph 1 of Article 1 of this law" includes the state
pension of judges established in Item 5 of Paragraph 1 of Article
1 of this law, is in conflict with Paragraph 2 of Article 109 of
the Constitution of the Republic of Lithuania and the
constitutional principle of a state under the rule of law.
5. To recognise that Item 1 (Official Gazette Valstybės
žinios, 2009, No. 152-6820) of Paragraph 2 of Article 1 of the
Republic of Lithuania Provisional Law on Recalculation and
Payment of Social Payments, to the extent that it is established
that this law is applied to the persons who receive the state
pensions that are granted and paid under the Republic of
Lithuania Law on the State Pensions of Judges, is not in conflict
with the Constitution of the Republic of Lithuania.
6. To recognise that Paragraph 4 (Official Gazette Valstybės
žinios, 2009, No. 152-6820) of Article 16 of the Republic of
Lithuania Provisional Law on Recalculation and Payment of Social
Payments, to the extent that it is not proposed to the Government
of the Republic of Lithuania that the inventory schedule of the
procedure for compensation of the state pensions reduced to a
large extent be prepared and approved, is in conflict with
Articles 23 and 52 of the Constitution of the Republic of
Lithuania and the constitutional principle of a state under the
rule of law.
7. This ruling of the Constitutional Court of the Republic
of Lithuania must be officially published in the Official Gazette
Valstybės žinios on 16 November 2010.
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
Algirdas Taminskas
Romualdas Kęstutis
Urbaitis