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On refusing to consider a petition

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

 DECISION

ON THE PETITION (NO. 1B-18/2012) OF THE KAUNAS REGIONAL ADMINISTRATIVE COURT, THE PETITIONER, REQUESTING TO INVESTIGATE WHETHER PARAGRAPH 2 OF ARTICLE 8 OF THE REPUBLIC OF LITHUANIA LAW ON AMENDING ARTICLES 5, 6, 16, 18, 19, 20 AND 21 OF THE LAW ON SICKNESS AND MATERNITY SOCIAL INSURANCE AND ITEM 2 OF RESOLUTION OF THE GOVERNMENT OF THE REPUBLIC OF LITHUANIA NO. 765 “ON AMENDING RESOLUTION OF THE GOVERNMENT OF THE REPUBLIC OF LITHUANIA NO. 86 ‘ON THE APPROVAL OF THE REGULATIONS ON SOCIAL INSURANCE BENEFITS OF SICKNESS AND MATERNITY’ OF 25 JANUARY 2001” OF 29 JUNE 2011 ARE NOT IN CONFLICT WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 5 July 2012

Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court Egidijus Bieliūnas, Toma Birmontienė, Pranas Kuconis, Gediminas Mesonis, Ramutė Ruškytė, Egidijus Šileikis, Algirdas Taminskas, Romualdas Kęstutis Urbaitis, and Dainius Žalimas,

with the secretary—Daiva Pitrėnaitė,

in a procedural sitting of the Constitutional Court considered a petition (No. 1B-18/2012) of the Kaunas Regional Administrative Court, the petitioner, requesting to investigate whether Paragraph 2 of Article 8 of the Republic of Lithuania Law on Amending Articles 5, 6, 16, 18, 19, 20 and 21 of the Law on Sickness and Maternity Social Insurance, “to the extent that it provides that the provision of Paragraph 4 of Article 21 of the Law on Sickness and Maternity Social Insurance is applied as from 1 July 2011 to newly awarded social insurance benefits”, and Item 2 of Resolution of the Government of the Republic of Lithuania No. 765 “On Amending Resolution of the Government of the Republic of Lithuania No. 86 ‘On the Approval of the Regulations on Social Insurance Benefits of Sickness and Maternity’ of 25 January 2001” of 29 June 2011, “to the extent that it is established that where maternity, paternity and maternity (paternity) benefits were awarded or are awarded for the period until 30 June 2011, their payment is terminated pursuant to the valid procedure established in the first paragraph of the wording of Item 481 of this resolution”, are not in conflict with Articles 23 and 29, Paragraph 2 of Article 38, Paragraphs 1 and 2 of Article 39, Paragraph 1 of Article 48 and Article 52 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

The Constitutional Court

has established:

The Kaunas 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 8 of the Law on Amending Articles 5, 6, 16, 18, 19, 20 and 21 of the Law on Sickness and Maternity Social Insurance (hereinafter also referred to as the Law), “to the extent that it provides that the provision of Paragraph 4 of Article 21 of the Law on Sickness and Maternity Social Insurance is applied as from 1 July 2011 to newly awarded social insurance benefits”, and Item 2 of Government Resolution No. 765 “On Amending Resolution of the Government of the Republic of Lithuania No. 86 ‘On the Approval of the Regulations on Social Insurance Benefits of Sickness and Maternity’ of 25 January 2001” of 29 June 2011 (hereinafter also referred to as Government resolution No. 765 of 29 June 2011), “to the extent that it is established that where maternity, paternity and maternity (paternity) benefits were awarded or are awarded for the period until 30 June 2011, their payment is terminated pursuant to the valid procedure established in the first paragraph of the wording of Item 481 of this resolution”, are not in conflict with Articles 23 and 29, Paragraph 2 of Article 38, Paragraphs 1 and 2 of Article 39, Paragraph 1 of Article 48 and Article 52 of the Constitution and the constitutional principle of a state under the rule of law.

The Constitutional Court

holds that:

  1. The Kaunas Regional Administrative Court, the petitioner, requests investigation into whether Paragraph 2 of Article 8 of the Law and Item 2 of Government resolution No. 765 of 29 June 2011 are not (insofar as it is indicated by the petitioner) in conflict with Articles 23 and 29, Paragraph 2 of Article 38, Paragraphs 1 and 2 of Article 39, Paragraph 1 of Article 48 and Article 52 of the Constitution and the constitutional principle of a state under the rule of law.

1.1. On 2 July 2010, the Seimas adopted the Law on Amending Articles 5, 6, 16, 18, 19, 20 and 21 of the Law on Sickness and Maternity Social Insurance, which, according to Paragraph 1 of Article 8 of this law, came into force (with a certain exception) on 1 July 2011.

The petitioner impugns the compliance of Paragraph 2 of Article 8 of the Law with the Constitution, insofar as that paragraph prescribes that Paragraph 4 (wording of 22 December 2010, which came into force on 1 July 2011) of Article 21 of the Law on Sickness and Maternity Social Insurance is applied as from 1 July 2011 to newly awarded social insurance benefits. According to the petitioner, under Paragraph 4 (wording of 22 December 2010, which came into force on 1 January 2011) of Article 21 of the Law on Sickness and Maternity Social Insurance, where a person is, after the child reaches the age of one year, awarded the maternity (paternity) benefit until 30 June 2011 inclusively and holds the insured income the amount whereof is less than the maternity (paternity) benefit (the sum total of these benefits), the said person is paid the difference between this benefit (the sum total of these benefits) and the insured income held by him in the appropriate month, i.e. a lower maternity (paternity) benefit, whereas, where a person is, after the child reaches the age of one year, awarded, under the same conditions, the maternity (paternity) benefit after 1 July 2011, he is paid the total maternity (paternity) benefit that is to be awarded to him, irrespective of the fact whether the person holds the insured income.

Paragraph 2 of Article 8 of the Law prescribes: “The provisions of this Law shall apply as from 1 July 2011 to newly awarded social insurance benefits.” The regulation of newly awarded social insurance benefits was consolidated in Article 7 of the Law, whereby inter alia Paragraphs 1 and 4 of Article 21 of the Law on Sickness and Maternity Social Insurance were amended. Paragraphs 1 and 4 of Article 21 (wording of 2 July 2010) of this law inter alia prescribe:

“1. <...>. If the insured person chooses to receive the maternity (paternity) benefit until the child reaches the age of two years, the amount of the said benefit as from the end of the pregnancy and childbirth leave until the child reaches the age of one year, shall make 70 percent of the benefit recipient’s compensatory salary, whereas until the child reaches the age of two years—40 percent thereof. <...>

  1. If the insured person who was or is on childcare leave until the child reaches the age of one year has the insured income the amount whereof is less than the maternity (paternity) benefit (the sum total of these benefits), he shall be paid the difference between this benefit (the sum total of these benefits) and the insured income held by him in the appropriate month according to the procedure established in the Regulations on Social Insurance Benefits of Sickness and Maternity approved by the Government.”

By Article 3 of the Republic of Lithuania Law on Amending Articles 1, 2 and 7 of the Law on Amending Articles 5, 6, 16, 18, 19, 20 and 21 of the Law on Sickness and Maternity Social Insurance, adopted by the Seimas on 22 December 2010, Paragraph 4 (wording of 2 July 2010, which had not yet come into force) of Article 21 of the Law on Sickness and Maternity Social Insurance was amended, however, the provision “If the insured person who was or is on childcare leave until the child reaches the age of one year has the insured income the amount whereof is less than the maternity (paternity) benefit (the sum total of these benefits), he shall be paid the difference between this benefit (the sum total of these benefits) and the insured income held by him in the appropriate month according to the procedure established in the Regulations on Social Insurance Benefits of Sickness and Maternity approved by the Government” of that paragraph has remained unchanged.

Thus, under the legal regulation established in Paragraph 1 (wording of 2 July 2010) of Article 21 and Paragraph 4 (wording of 22 December 2010, which came into force on 1 July 2011) of Article 21 of the Law on Sickness and Maternity Social Insurance, the maternity (paternity) benefit, where it is chosen by the insured to be received until the child reaches the age of two years, and the amount whereof in the second year of childcare leave is 40 percent of the benefit recipient’s compensatory salary, is only in the first year of childcare leave paid while taking account of the insured income held by the insured, i.e. in the second year of childcare leave the maternity (paternity) benefit is paid while not taking account of that income.

Paragraph 1 (wording 22 September of 2009) of Article 21 of the Law on Sickness and Maternity Social Insurance, which was applicable to maternity (paternity) benefits awarded until the entry of the law into force on 1 July 2011 and the provisions whereof were applied as from 1 July 2010 to newly awarded maternity (paternity) benefits, inter alia prescribed that “the amount of the maternity (paternity) benefit <...> until the child reaches the age of two years—75 percent of the benefit recipient’s compensatory salary”, whereas Paragraph 4 (wording of 22 December 2010, which came into force on 1 January 2011) of Article 21 of the Law on Sickness and Maternity Social Insurance, which was applicable to maternity (paternity) benefits awarded until the entry of the law into force on 1 July 2011, inter alia prescribed that “if the insured person who was or is on childcare leave has the insured income the amount whereof is less than the maternity (paternity) benefit (the sum total of these benefits), he shall be paid the difference between this benefit (the sum total of these benefits) and the insured income held by him in the appropriate month according to the procedure established in the Regulations on Social Insurance Benefits of Sickness and Maternity approved by the Government. <...>”

Thus, under the legal regulation established in Paragraph 1 (wording of 22 September 2009) of Article 21 and Paragraph 4 (wording of 22 December 2010, which came into force on 1 January 2011) of Article 21 of the Law on Sickness and Maternity Social Insurance, the maternity (paternity) benefit, which was paid until the child reaches the age of two years, and the amount whereof in the second year of childcare leave was 75 percent of the benefit recipient’s compensatory salary, used to be paid during the entire period of receipt of the maternity (paternity) benefit while taking account of the insured income held by the insured.

After adopting the Law, Paragraph 2 of Article 8 whereof is impugned by the petitioner, the quoted provisions of the Law on Sickness and Maternity Social Insurance, which were applied to maternity (paternity) benefits awarded until 30 June 2011 inclusively, have changed not only in the aspect that as from 1 July 2011 newly awarded maternity (paternity) benefits are paid in the second year of childcare leave without taking account of the insured income held by the insured, but also in the aspect that a smaller amount of the maternity (paternity) benefit has been established for the second year of childcare leave—instead of 75 percent of the benefit recipient’s compensatory salary, the amount of 40 percent has been set.

1.2. On 29 June 2011, the Government adopted Resolution No. 765 “On Amending Resolution of the Government of the Republic of Lithuania No. 86 ‘On the Approval of the Regulations on Social Insurance Benefits of Sickness and Maternity’ of 25 January 2001”, which came into force on 1 July 2011. Item 2 of Government resolution No. 765 of 29 June 2011 prescribes: “To establish that where sickness, professional rehabilitation, maternity, paternity and maternity (paternity) benefits were awarded or are awarded for the period until 30 June 2011, their payment shall be terminated pursuant to the valid legal acts.”

The petitioner impugns the compliance of Item 2 of Government resolution No. 765 of 29 June 2011 with the Constitution, insofar as that item prescribes that where maternity, paternity and maternity (paternity) benefits were awarded or are awarded for the period until 30 June 2011 inclusively, their payment is terminated pursuant to the procedure valid until 30 June 2011 and established in the first paragraph of Item 481 of the Regulations on Social Insurance Benefits of Sickness and Maternity, approved by Government Resolution No. 86 “On the Approval of the Regulations on Social Insurance Benefits of Sickness and Maternity” of 25 January 2001 (hereinafter also referred to as Government resolution No. 86 of 25 January 2001).

Items 1.8 and 1.9 of Government resolution No. 765 of 29 June 2011, the provisions whereof, under this Government resolution, are applied as from 1 July 2011 to newly awarded social insurance benefits, have amended inter alia the first paragraph of Item 48 and the first paragraph of Item 481 of the Regulations on Social Insurance Benefits of Sickness and Maternity, which inter alia prescribe the following:

“48. <...>. If the insured person chooses to receive the maternity (paternity) benefit until the child reaches the age of two years, the amount of the said benefit as from the end of the pregnancy and childbirth leave until the child reaches the age of one year, shall make 70 percent of the benefit recipient’s compensatory salary, whereas until the child reaches the age of two years—40 percent thereof. <...>

  1. 481. When the insured person who was or is on childcare leave until the child reaches the age of one year has the insured income the amount whereof is less than the maternity (paternity) benefit (when two benefits are paid—less than the sum total of these benefits), he shall be paid the difference between the calculated benefit (the sum total of these benefits) and the insured income held by him in the appropriate month. <...>”

Thus, the said legal regulation, established in the Regulations on Social Insurance Benefits of Sickness and Maternity, is analogous to the one established in Paragraph 1 (wording of 2 July 2010) of Article 21 and Paragraph 4 (wording of 22 December 2010, which came into force on 1 July 2011) of Article 21 of the Law on Sickness and Maternity Social Insurance in the aspect that the maternity (paternity) benefit, where it is chosen by the insured to be received until the child reaches the age of two years, and the amount whereof in the second year of childcare leave is 40 percent of the benefit recipient’s compensatory salary, is only in the first year of childcare leave paid while taking account of the insured income held by the insured, i.e. in the second year of childcare leave the maternity (paternity) benefit is paid while not taking account of that income.

Prior to the entry into force of Government resolution No. 765 of 29 June 2011 on 1 July 2011, maternity (paternity) benefits were awarded under the Regulations on Social Insurance Benefits of Sickness and Maternity, the first paragraph (wording of 23 December 2009) of Item 48 whereof inter alia prescribed that “the amount of the maternity (paternity) benefit <...> until the child reaches the age of two years—85 percent (from 1 July 2010—75 percent) of the benefit recipient’s compensatory salary”, and the first paragraph (wording of 13 April 2011) of Item 481 whereof inter alia prescribed that “when the insured person who was or is on childcare leave has the insured income the amount whereof is less than the maternity (paternity) benefit (when two benefits are paid—less than the sum total of these benefits), he shall be paid the difference between the calculated benefit (the sum total of these benefits) and the insured income held by him in the appropriate month”.

Thus, the said legal regulation established in the Regulations on Social Insurance Benefits of Sickness and Maternity was analogous to the one established in Paragraph 1 (wording of 22 September 2009) of Article 21 and Paragraph 4 (wording of 22 December 2010, which came into force on 1 January 2011) of Article 21 of the Law on Sickness and Maternity Social Insurance in the aspect that the maternity (paternity) benefit, where it was paid until the child reaches the age of two years, and the amount whereof in the second year of childcare leave was 75 percent of the benefit recipient’s compensatory salary, was paid during the entire period of receipt of the maternity (paternity) benefit while taking account of the insured income held by the insured.

  1. The doubts of the petitioner as to the compliance of the impugned Paragraph 2 of Article 8 of the Law and Item 2 of Government resolution No. 765 of 29 June 2011 (hereinafter also referred to as the impugned legal regulation) with the Constitution are substantiated by the same arguments.

2.1. The petitioner, while substantiating its doubts as to the compliance of the impugned legal regulation with Article 23 of the Constitution, invokes the fragment of the Constitutional Court doctrine whereby “the person who meets the conditions established by law in order to receive a payment, and who has been awarded and paid this payment, has the right to a monetary payment of a respective amount, i.e. the right to possession”. It needs to be noted that the said provision of the Constitutional Court doctrine, which is indicated by the petitioner, is part of a broader official constitutional doctrine. The Constitutional Court has held more than once that the person who meets the conditions established by law in order to receive the old-age pension, and who has been awarded and paid this pension, has the right to a monetary payment of a respective amount, i.e. the right to possession (Constitutional Court rulings of 25 November 2002, 3 December 2003, 13 December 2004, decision of 20 April 2010 and ruling of 6 February 2012). The petitioner is silent on the fact that the said provision of the Constitutional Court doctrine, which is pointed to by the petitioner, was formulated while construing the provision of Article 52 of the Constitution that the State guarantees to its citizens the right to receive the old-age pension specified in that article of the Constitution, also that, under the official constitutional doctrine, namely the aforesaid person has the right to a monetary payment of a respective amount (pension), which has been awarded and paid to him before.

The impugned legal regulation is related not to the right to receive the old-age pension guaranteed by the state in Article 52 of the Constitution, but to the financial support that is to be provided during the leave granted for raising and bringing up children at home, which is one of the forms of the state care and support guaranteed in Paragraph 1 of Article 39 of the Constitution, therefore, the indicated fragment of the official constitutional doctrine in no way substantiates the inconsistency of the impugned legal regulation with Article 23 of the Constitution. Consequently, this part of the petitioner’s petition is substantiated by other than legal reasoning, thus, in this respect, this petitioner’s request is to be regarded as fictitious.

2.2. According to the petitioner, the doubts as to the compliance of the impugned legal regulation with the principle of equal rights of persons, which is consolidated in Article 29 of the Constitution, arise due to the fact that different conditions for participation in the labour market are established to persons raising children from one up to two years of age—these conditions depend upon whether the said persons are awarded the maternity (paternity) benefit until 30 June 2011 inclusively or as from 1 July 2011. Persons who have been awarded the benefit as from 1 July 2011 have the guarantees to receive the entire work remuneration without any limitations, i.e. without taking account of either the character of work (whether or not that is compatible with taking care of a child), or the received salary (one may receive income of any amount along with the awarded benefit). Whereas persons who were awarded the benefit until 30 June 2011 inclusively lose the entire or part of their work remuneration received (if it is received) during the period of payment of the benefit. Thus, the petitioner believes that the impugned legal regulation differently treats persons who are in the same situation.

It has been mentioned that the legal regulation laid down in Article 21 of the Law on Sickness and Maternity Social Insurance, as well as in the first paragraph of Item 48 and the first paragraph of Item 481 of the Regulations on Social Insurance Benefits of Sickness and Maternity, during its validity until 30 June 2011 inclusively and as from 1 July 2011, is different inter alia in the aspect that as from 1 July 2011 in the second year of childcare leave the maternity (paternity) benefit (the sum total of these benefits) is paid without taking account of the held insured income and that, instead of the amount of 75 percent of the benefit recipient’s compensatory salary, the amount of 40 percent, according to which the amount of the maternity (paternity) benefit is calculated, has been set.

It has been mentioned in this decision that the Law, Paragraph 2 of Article 8 whereof is impugned by the petitioner, came into force (with a certain exception) on 1 July 2011. From Paragraph 2 of Article 8 of the Law, when it is construed together with Article 21 (wording of 22 December 2010, which came into force on 1 July 2011) of the Law on Sickness and Maternity Social Insurance, it is clear that the aforementioned provision, under which in the second year of childcare leave the maternity (paternity) benefit (the sum total of these benefits) is paid without taking account of the held insured income, is applied as from 1 July 2011 to newly awarded social insurance benefits.

Consequently, under Paragraph 2 of Article 8 of the Law, the provision of Article 21 (wording of 22 December 2010, which came into force on 1 July 2011) of the Law on Sickness and Maternity Social Insurance, under which in the second year of childcare leave the maternity (paternity) benefit (the sum total of these benefits) is paid without taking account of the held insured income, is applied to those persons who had not acquired the right to receive the maternity (paternity) benefit until 30 June 2011 inclusively, when the previous legal regulation, consolidated in Article 21 (wording of 22 December 2010, which came into force on 1 January 2011) of the Law on Sickness and Maternity Social Insurance, was in force, which, according to the petitioner, imposed limitations on the receipt of work remuneration in the second year of childcare leave. The petitioner does not analyse and does not assess the differences between the said groups of persons who are in an unequal situation. The petitioner also does not take account of the official constitutional doctrinal provisions that are of significance in the context of this part of the petition, e.g., the fact that the constitutional principle of equal rights of persons does not deny a possibility to establish in a law unequal (differentiated) regulation with respect to certain persons who are in different situations.

The petitioner also maintains that, under the impugned legal regulation established in Paragraph 2 of Article 8 of the Law and Item 2 of Government resolution No. 765 of 29 June 2011, those persons with insured income who are awarded the maternity (paternity) benefit until 30 June 2011 inclusively are paid in the second year of childcare leave a lower maternity (paternity) benefit, whereas those persons with insured income who are awarded the maternity (paternity) benefit after 1 July 2011 are paid in the second year of childcare leave the total maternity (paternity) benefit awarded to them. Thus, the petitioner impugns the compliance of the aforesaid legal regulation with Article 29 of the Constitution virtually due to the fact that persons who had acquired the right to receive the maternity (paternity) benefit until 30 June 2011 inclusively are, according to the petitioner, in a worse situation than those who have acquired the right to receive the maternity (paternity) benefit after 1 July 2011.

The petitioner, while expressing its doubts in the aforementioned aspect regarding the compliance of Paragraph 2 of Article 8 of the Law, under which the provisions of that law are applied as from 1 July 2011 to newly awarded social insurance benefits, as well as of Item 2 of Government resolution No. 765 of 29 June 2011, under which, where maternity (paternity) benefits were awarded or are awarded for the period until 30 June 2011 inclusively, their payment is terminated pursuant to the valid legal acts, with Article 29 of the Constitution, is silent on the fact that, as mentioned before, Article 7 of the Law has amended not only Paragraph 4 of Article 21 of the Law on Sickness and Maternity Social Insurance—wherein it has been established that in the second year of childcare leave the maternity (paternity) benefit (the sum total of these benefits) is paid without taking account of the held insured income, but also Paragraph 1 of Article 21 of the Law on Sickness and Maternity Social Insurance—wherein, instead of the amount of 75 percent of the benefit recipient’s compensatory salary, the amount of 40 percent, according to which the amount of the maternity (paternity) benefit is calculated, has been set.

Thus, under the legal regulation laid down in the Law, persons who are awarded the maternity (paternity) benefit until 30 June 2011 inclusively and who, according to the petitioner, are in a worse situation than those persons who are awarded the maternity (paternity) benefit after 1 July 2011, are actually in a better situation in the aspect that a higher amount of the maternity (paternity) benefit (75 percent of the benefit recipient’s compensatory salary) is established to them in the second year of childcare leave. Consequently, the petitioner does not legally substantiate as to why, in its opinion, the impugned legal regulation is in conflict with Article 29 of the Constitution. Thus, the petition of the petitioner requesting investigation into whether Paragraph 2 of Article 8 of the Law and Item 2 of Government resolution No. 765 of 29 June 2011 are not in conflict with Article 29 of the Constitution is substantiated by other than legal reasoning.

2.3. The petitioner, after pointing out that the protection of maternity is the duty that arises for the state from the Constitution and that the protection of maternity and the extent of the guarantees relating thereto may not be denied by certain actions of the state, draws a general conclusion that “the application of certain limitations with respect to mothers depending on when they took the childcare leave is unreasonable and in conflict with the concept of protection of family and maternity enshrined in Paragraph 2 of Article 38 and Paragraphs 1 and 2 of Article 39 of the Constitution”.

In this context it needs to be mentioned that the Constitutional Court has held more than once that the petition requesting to investigate the compliance of a legal act (part thereof) with the Constitution in view of the content of norms and/or the extent of regulation must clearly set forth the legal reasoning grounding the doubt of the petitioner as regards every concretely indicated article (part thereof) or item of the impugned legal act (part thereof), the compliance of which with the concretely indicated provisions of the Constitution is doubtful to the petitioner (Constitutional Court decision of 16 April 2004, ruling of 12 December 2005, decisions of 14 March 2006 (case No. 14/03) and 29 March 2006, ruling of 20 December 2007, decisions of 29 October 2009, 19 March 2010, 5 March 2012 and 25 April 2012).

  2.3.1. The petitioner, while maintaining that the impugned legal regulation is in conflict with Paragraph 1 of Article 39 of the Constitution, is silent on the provision of the official constitutional doctrine that is particularly important in the context of its petition and was formulated in the Constitutional Court ruling of 27 February 2012. According to that provision, after having chosen such a form of the state care and support guaranteed in Paragraph 1 of Article 39 of the Constitution as the leave for raising and brining up children at home, the legislator, while taking account of the purpose of such a leave, which is the creation of possibilities for parents to raise and bring up children at home for some time without being engaged in work (professional) activities, as well as of the purpose of the financial support to be rendered during such a leave, which is compensation, within the capabilities of the state, for all the lost income or part thereof, may establish the legal regulation whereby the said support would be rendered while taking into consideration other income (received for work performed at the time of the said leave) of the persons making use of such a leave.

It has been mentioned that Paragraph 2 of Article 8 of the Law, which is impugned by the petitioner, is to be construed together with Paragraph 4 (wording of 22 December 2010, which came into force on 1 July 2011) of Article 21 of the Law on Sickness and Maternity Social Insurance, under which in the second year of childcare leave the maternity (paternity) benefit (the sum total of these benefits) is paid without taking account of the held insured income. The petitioner is silent on the fact that, after assessing the compliance, with the Constitution, of Paragraph 4 (wording of 4 December 2007) of Article 21 of the Law on Sickness and Maternity Social Insurance, under which the insured person who was or is on childcare leave and who has the insured income in the appropriate month, when the amount of such income is less than the maternity (paternity) benefit, is paid the difference between this benefit and the said income, while if the amount of the insured income of the insured person is higher than the maternity (paternity) benefit or equals it, he is not paid this benefit, the Constitutional Court held in its ruling of 27 February 2012 that there is no ground to maintain that by the said legal regulation, established in Paragraph 4 (wording of 4 December 2007) of Article 21 of the Law on Sickness and Maternity Social Insurance, one denies the guarantee of the state care and support for the families that raise and bring up children at home, which is entrenched in Paragraph 1 of Article 39 of the Constitution, and that in this aspect the indicated legal regulation was not recognised as being in conflict with the Constitution. In the aforesaid ruling the Constitutional Court also held that the legal regulation established in the first paragraph (wording of 16 January 2008) of Item 481 of the Regulations on Social Insurance Benefits of Sickness and Maternity, approved by Government resolution No. 86 of 25 January 2001, was analogous to the one established in Paragraph 4 (wording of 4 December 2007) of Article 21 of the Law on Sickness and Maternity Social Insurance, which, as mentioned before, in the Constitutional Court ruling of 27 February 2012, was not recognised as being in conflict with the Constitution in the aspect that the maternity (paternity) benefit is paid while taking account of whether the insured person has the insured income.

In this context it also needs to be mentioned that the legal regulation established in Paragraph 4 (wording of 4 December 2007) of Article 21 of the Law on Sickness and Maternity Social Insurance, the compliance whereof with the Constitution was assessed (investigated) by the Constitutional Court and which, in the aspect that the maternity (paternity) benefit is paid while taking account of whether the insured person has the insured income, was not recognised as being in conflict with the Constitution, is, in the said aspect assessed (investigated) by the Constitutional Court, analogous to the legal regulation established in Paragraph 4 (wording of 22 December 2010, which came into force on 1 January 2011) of Article 21 of the Law on Sickness and Maternity Social Insurance, the provisions whereof, under the impugned Paragraph 2 of Article 8 of the Law, are applied to maternity (paternity) benefits awarded until 30 June 2011 inclusively (specifically due to this the petitioner impugns the compliance of Paragraph 2 of Article 8 of the Law with the Constitution).

Thus, the petitioner virtually also doubts regarding the constitutionality of the content of such legal regulation the compliance whereof with the Constitution was assessed (investigated) by the Constitutional Court in its ruling of 27 February 2012. Under Item 3 of Paragraph 1 of Article 69 of the Law on the Constitutional Court, the fact that the compliance of the legal act with the Constitution specified in the petition has already been investigated by the Constitutional Court and the ruling on this issue adopted by the Constitutional Court is still in force constitutes a ground to refuse to consider the petition.

Taking account of the arguments set forth it needs to be held that there is a ground to refuse to consider the petition of the petitioner requesting to investigate whether Paragraph 2 of Article 8 of the Law and Item 2 of Government resolution No. 765 of 29 June 2011 are not in conflict with Paragraph 1 of Article 39 of the Constitution.

2.3.2. The petitioner also impugns the compliance of Paragraph 2 of Article 8 of the Law and Item 2 of Government resolution No. 765 of 29 June 2011 with Paragraph 2 of Article 39 of the Constitution, insofar as in the second year of childcare leave the maternity (paternity) benefit is paid while taking account of the held insured income. Paragraph 2 of Article 39 of the Constitution prescribes: “The law shall provide to working mothers a paid leave before and after childbirth as well as favourable working conditions and other concessions.” The petition of the petitioner does not include any data that would make it possible to maintain that the dispute would have arisen from the relations connected with the right of working mothers to a paid leave before and after childbirth, i.e. the leave specified in Paragraph 2 of Article 39 of the Constitution.

In addition, the petitioner is silent on the provisions of the official constitutional doctrine (which were formulated in the Constitutional Court ruling of 27 February 2012) that the purpose of the constitutional guarantee enshrined in Paragraph 2 of Article 39 of the Constitution is to secure the protection of the physiological condition of a pregnant woman and a woman after childbirth, to secure the special link between mother and child during the first weeks of life of the child, by creating a possibility for a working woman to withdraw, for a reasonable time, from her work (professional) activities before and after childbirth, also that, under the Constitution, the legislator, while taking account of the constitutional purpose of the paid leave before and after childbirth, may establish the legal regulation whereby the leave would be paid by taking account of other income (received for work performed at the time of the said leave) of the women on such a leave.

Thus, Paragraph 2 of Article 39 of the Constitution, the compliance of Paragraph 2 of Article 8 of the Law and Item 2 of Government resolution No. 765 of 29 June 2011 with which is impugned by the petitioner, consolidates the right of working mothers to a paid leave before and after childbirth during the first weeks of life of the child, therefore, the petitioner’s statement that the impugned legal regulation, which, according to the petitioner, limits the right of parents to the financial support that is to be provided for them during the second year of childcare leave (as mentioned before, the leave for raising and bringing up children at home, inter alia the financial support that is to be provided during that leave, constitutes one of the forms of the state care and support guaranteed in Paragraph 1 of Article 39 of the Constitution), is in conflict with Paragraph 2 of Article 39 of the Constitution, does not legally substantiate as to why, in the petitioner’s opinion, the impugned legal regulation is in conflict with Paragraph 2 of Article 39 of the Constitution. Consequently, the petition of the petitioner requesting investigation into whether Paragraph 2 of Article 8 of the Law and Item 2 of Government resolution No. 765 of 29 June 2011 are not in conflict with Paragraph 2 of Article 39 of the Constitution, is substantiated by other than legal reasoning.

2.3.3. While impugning the compliance of Paragraph 2 of Article 8 of the Law and Item 2 of Government resolution No. 765 of 29 June 2011 with Paragraph 2 of Article 38 of the Constitution, which stipulates that family, motherhood, fatherhood and childhood are under the protection and care of the state, the petitioner refers solely to the statements of a general character, under which “the protection of motherhood is a state’s duty that arises from the Constitution”, also that “the protection of motherhood and the scope of the guarantees related thereto may not be denied by certain actions of the state”, and does not specify any concrete guarantees arising from the Constitution, nor which concrete guarantees have been denied by the state. Such statements of a general character do not in themselves substantiate the inconsistency of the impugned legal regulation with Paragraph 2 of Article 38 of the Constitution.

In this context it needs to be noted that in its ruling of 27 February 2012 the Constitutional Court held that the constitutional self-obligation of the state to protect and care for the family, motherhood, fatherhood and childhood, which is consolidated in Paragraph 2 of Article 38 of the Constitution, is in certain aspects expressed, as a general principle, also in other provisions of the Constitution, inter alia Paragraph 1 of Article 39 thereof, wherein the state care and support is guaranteed to the families that raise and bring up children at home.

Having held in this decision that, as mentioned before, the petitioner has not substantiated the conflict of the impugned legal regulation in the aspect indicated by the petitioner itself with Paragraph 1 of Article 39 of the Constitution, a conclusion is to be drawn that the petitioner also does not, in that aspect, substantiate the conflict of the impugned legal regulation with Paragraph 2 of Article 38 of the Constitution, which enshrines the general principle that is specified in detail in Paragraph 1 of Article 39, with the latter being inseparably related to the former.

2.4. The doubts regarding the compliance of the impugned legal regulation with the provision of Paragraph 1 of Article 48 of the Constitution, under which each human being has the right to  receive fair pay for work and social security in the event of unemployment, are substantiated by the petitioner by the fact that, while working, a person pays contributions to the State Social Insurance Fund from all the insured income received in all his workplaces, by contributing, in this way, towards the social security of all society members as well as that of his own, as such security must be provided when certain circumstances come into existence and the person is unable to work for a certain period in the workplace where, while being able to work, he was paying contributions. According to the petitioner, “a person who starts to work during the period of payment of the maternity (paternity) benefit is working practically without pay (without receiving the maternity (paternity) benefit or part thereof)”.

The impugned legal regulation is not related to the right to social security in the event of unemployment, which is entrenched in Paragraph 1 of Article 48 of the Constitution (it has been mentioned that the impugned legal regulation is related to the financial support that is to be provided during the leave granted for raising and bringing up children at home, which is one of the forms of the state care and support guaranteed in Paragraph 1 of Article 39 of the Constitution). As mentioned before, such legal regulation, consolidated in Paragraph 4 (wording of 4 December 2007) of Article 21 of the Law on Sickness and Maternity Social Insurance, under which the financial support during the leave granted for raising and bringing up children at home is provided while taking account of other income (received for work performed at the time of the said leave) of the persons making use of such a leave, was recognised in the Constitutional Court ruling of 27 February 2012 as not denying the guarantee of the state care and support for the families raising and bringing up children at home, which is consolidated in Paragraph 1 of Article 39 of the Constitution.

It needs to be held that the separate (individual) arguments indicated by the petitioner in this part of the petition do not legally substantiate as to why, in the petitioner’s opinion, the impugned legal regulation is in conflict with Paragraph 1 of Article 48 of the Constitution.

2.5. While impugning the compliance of the legal regulation with Article 52 of the Constitution, the petitioner invokes the provision of the official constitutional doctrine that Article 52 of the Constitution consolidates the obligation of the state to take care of its citizens who, due to the reasons provided for by laws, are incapable of providing for themselves from work and other income or are insufficiently provided for. The petitioner maintains that “Article 52 of the Constitution obliges the legislator to establish such legal regulation of social support that would, in this case, ensure the manner of payment of the sickness benefit that would meet the legitimate expectations of the social support receiver as well as his possibilities of actually receiving that support, would not create for the social support receiver any additional obligations and would not distort the duty of the state to provide its citizens with an adequate social support in the manner appropriate both for the provider and receiver of such support”. The said statement of the petitioner is related to the social support guaranteed by the state in the event of sickness and it is not related to the impugned legal regulation—the financial support that is to be provided during the leave granted for the purposes of raising and bringing up children at home, which is one of the forms of the state care and support guaranteed in Paragraph 1 of Article 39 of the Constitution. The aforementioned statements of the petitioner do not legally substantiate as to why the impugned legal regulation is in conflict with Article 52 of the Constitution. Thus, this part of the petitioner’s petition is substantiated by other than legal reasoning.

2.6. In the opinion of the petitioner, such legal regulation, by means of which the state, while establishing additional limitations (reduction in benefits), provides for no possibility for a person to earn in other ways the income he is lacking, violates inter alia the constitutional principles of legitimate expectations and a state under the rule of law.

The petitioner does not specify how, when and under what norm of the law or another legal act the persons referred to by the petitioner have acquired a legitimate expectation, which, in the opinion of the petitioner, has been violated.

From the said argumentation presented by the petitioner one may understand that the petitioner doubts in general as to the compliance of such legal regulation under which the maternity (paternity) benefit is awarded while taking account of other insured income of the recipient of the said benefit. As mentioned before, namely such legal regulation is consolidated in Paragraph 4 (wording of 22 December 2010, which came into force on 1 January 2011) of Article 21 of the Law on Sickness and Maternity Social Insurance and this legal regulation, as mentioned before, is analogous to the one established in Paragraph 4 (wording of 4 December 2007) of Article 21 of the Law on Sickness and Maternity Social Insurance. In this context it needs to be noted that, as mentioned before, after assessing the compliance of Paragraph 4 (wording of 4 December 2007) of Article 21 of the Law on Sickness and Maternity Social Insurance with the Constitution, the Constitutional Court held in its ruling of 27 February 2012 that there is no ground to maintain that by the said legal regulation, which is established in Paragraph 4 (wording of 4 December 2007) of Article 21 of the Law on Sickness and Maternity Social Insurance and whereby the insured person who was or is on childcare leave and who has the insured income in the appropriate month, when the amount of such income is less than the maternity (paternity) benefit, is paid the difference between this benefit and the said income, while if the amount of the insured income of the insured person is higher than the maternity (paternity) benefit or equals it, he is not paid this benefit, one denies the guarantee of the state care and support for the families that raise and bring up children at home, which is entrenched in Paragraph 1 of Article 39 of the Constitution. Thus, the aforementioned legal regulation, which was assessed (investigated) in the Constitutional Court ruling of 27 February 2012 in the aspect that the financial support during the leave granted for raising and bringing up children at home is provided while taking account of other income (received for work performed at the time of the said leave) of the persons making use of such a leave, was not recognised as being in conflict with the Constitution.

It needs to be held that the separate (individual) arguments indicated by the petitioner in this part of the petition do not legally substantiate as to why, in the petitioner’s opinion, the impugned legal regulation is in conflict with the constitutional principles indicated in the petition.

  1. While taking account of the circumstances set forth, it needs to be held that although the petition employs legal terminology, neither separate (individual) arguments, nor their entirety (in particular such argumentation of the position of the petitioner, when, while impugning the compliance of the legal regulation established in the law with the Constitution, the petitioner is silent on another legal regulation that is consolidated in the same law and denies the petitioner’s position, as well as on the provisions of the official constitutional doctrine that also deny its position) provides any legal grounds as to why, in the opinion of the petitioner, the impugned legal regulation consolidated in Paragraph 2 of Article 8 of the Law and Item 2 of Government resolution No. 765 of 29 June 2011 is in conflict (insofar as it is indicated by the petitioner) with Articles 23 and 29, Paragraph 2 of Article 38, Paragraph 2 of Article 39, Paragraph 1 of Article 48 and Article 52 of the Constitution and the constitutional principle of a state under the rule of law.

Thus, the petition of the petitioner requesting investigation into whether Paragraph 2 of Article 8 of the Law and Item 2 of Government resolution No. 765 of 29 June 2011 are not in conflict with Articles 23 and 29, Paragraph 2 of Article 38, Paragraph 2 of Article 39, Paragraph 1 of Article 48 and Article 52 of the Constitution and the constitutional principle of a state under the rule of law is substantiated by other than legal reasoning.

Under Item 5 of Paragraph 1 of Article 69 of the Law on the Constitutional Court, by its decision, the Constitutional Court shall refuse to consider petitions to investigate the compliance of a legal act with the Constitution, if the petition is grounded on non-legal reasoning.

In this decision it has also been held that there is a ground to refuse to consider the petition of the petitioner requesting to investigate whether Paragraph 2 of Article 8 of the Law and Item 2 of Government resolution No. 765 of 29 June 2011 are not in conflict with Paragraph 1 of Article 39 of the Constitution.

  1. Taking account of the arguments set forth, one needs to refuse to consider the petition of the Kaunas Regional Administrative Court, the petitioner, requesting to investigate whether Paragraph 2 of Article 8 of the Law, “to the extent that it provides that the provision of Paragraph 4 of Article 21 of the Law on Sickness and Maternity Social Insurance is applied as from 1 July 2011 to newly awarded social insurance benefits”, and Item 2 of Government resolution No. 765 of 29 June 2011, “to the extent that it is established that where maternity, paternity and maternity (paternity) benefits were awarded or are awarded for the period until 30 June 2011, their payment is terminated pursuant to the valid procedure established in the first paragraph of the wording of Item 481 of this resolution”, are not in conflict with Articles 23 and 29, Paragraph 2 of Article 38, Paragraphs 1 and 2 of Article 39, Paragraph 1 of Article 48 and Article 52 of the Constitution and the constitutional principle of a state under the rule of law.

Conforming to Paragraphs 3 and 4 of Article 22, Article 28, Items 3 and 5 of Paragraph 1 and Paragraph 2 of Article 69 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania has passed the following

decision:

To refuse to consider the petition (No. 1B-18/2012) of the Kaunas Regional Administrative Court, the petitioner, requesting to investigate whether Paragraph 2 of Article 8 of the Republic of Lithuania Law on Amending Articles 5, 6, 16, 18, 19, 20 and 21 of the Law on Sickness and Maternity Social Insurance, “to the extent that it provides that the provision of Paragraph 4 of Article 21 of the Law on Sickness and Maternity Social Insurance is applied as from 1 July 2011 to newly awarded social insurance benefits”, and Item 2 of Resolution of the Government of the Republic of Lithuania No. 765 “On Amending Resolution of the Government of the Republic of Lithuania No. 86 ‘On the Approval of the Regulations on Social Insurance Benefits of Sickness and Maternity’ of 25 January 2001” of 29 June 2011, “to the extent that it is established that where maternity, paternity and maternity (paternity) benefits were awarded or are awarded for the period until 30 June 2011, their payment is terminated pursuant to the valid procedure established in the first paragraph of the wording of Item 481 of this resolution”, are not in conflict with Articles 23 and 29, Paragraph 2 of Article 38, Paragraphs 1 and 2 of Article 39, Paragraph 1 of Article 48 and Article 52 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

This decision of the Constitutional Court is final and not subject to appeal.

The decision is promulgated in the name of the Republic of Lithuania.

Justices of the Constitutional Court:                                    Egidijus Bieliūnas

                                                                                                        Toma Birmontienė

                                                                                                        Pranas Kuconis

                                                                                                        Gediminas Mesonis

                                                                                                        Ramutė Ruškytė

                                                                                                        Egidijus Šileikis

                                                                                                        Algirdas Taminskas

                                                                                                        Romualdas Kęstutis Urbaitis

                                                                                                        Dainius Žalimas