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On calculating the length of service to the State of Lithuania

Case No. 54/2010

 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

 RULING

ON THE COMPLIANCE OF PARAGRAPH 5 OF ARTICLE 4 OF THE REPUBLIC OF LITHUANIA LAW ON THE IMPLEMENTATION OF THE LAW ON AMENDING THE LAW ON THE STATE SERVICE WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 3 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,

pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1 and 531 of the Law on the Constitutional Court of the Republic of Lithuania, in its hearing, on 26 June 2012, considered, under written procedure, constitutional justice case No. 54/2010 subsequent to the petition of the Vilnius Regional Administrative Court, the petitioner, requesting to investigate whether Paragraph 5 of Article 4 of the Republic of Lithuania Law on the Implementation of the Law on Amending the Law on the State Service is not in conflict with Paragraph 2 of Article 7 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

The Constitutional Court

has established:

I

The petition of the Vilnius Regional Administrative Court, the petitioner, requesting to investigate the compliance of Paragraph 5 of Article 4 of the Law on the Implementation of the Law on Amending the Law on the State Service (hereinafter also referred to as the Law on the Implementation) with the Constitution is substantiated by the following arguments.

From 30 July 1999 till 1 July 2002 the Republic of Lithuania Law on the State Service consolidated the right of the petitioners in the administrative case to the calculation of the length of service to the State of Lithuania, thus, they acquired a legitimate expectation that the positions of state employees of “A” and “B” levels held during the aforesaid period would be included in the length of service to the State of Lithuania. After, on 23 April 2002, the Law on the State Service had been set forth in a new wording, which came into force on 1 July 2002, it no longer contained the notion of state employees. The legal regulation impugned by the petitioner provides that the period of service in the positions of state employees of “A” and “B” levels, established in Paragraph 3 of Article 33 (wordings of 29 August 2000 and 27 September 2001) of the Law on the State Service (wording of 8 July 1999), is included in the length of service to the State of Lithuania only for state servants admitted to office prior to the entry into force of the Law on Amending the Law on the State Service (wording of 23 April 2002).

The Constitutional Court has held that one of the essential elements of the principle of a state under the rule of law, which is entrenched in the Constitution, is the principle of legal security, which means the duty of the state to ensure the certainty and stability of legal regulation, to secure the rights, including acquired rights, of subjects of legal relations, and to respect legitimate interests and legitimate expectations.

It is doubtful whether the impugned legal regulation complies with Paragraph 2 of Article 7 of the Constitution and the constitutional principle of a state under the rule of law, as, under the official constitutional doctrine, the constitutional principle of a state under the rule of law implies that the legislator and other law-making subjects must comply with various requirements, inter alia the one whereby legal regulation must be relatively stable so that subjects of legal relations could orient their behaviour according to the requirements of law; the legal acts may not require the impossible (lex non cogit ad impossibilia); the power of legal acts is prospective, while the retroactive validity of laws and other legal acts is not permitted (lex retro non agit) unless the legal act mitigates the situation of the subject of legal relations and does not injure other subjects of legal relations by the same (lex benignior retro agit).

It is also questionable whether the impugned legal regulation does not require any such things the implementation of which cannot totally depend upon the person’s volition and effort, since in order to retain a lawfully acquired length of service to the State of Lithuania, one had, within two months (from the publication of the Law on Amending the Law on the State Service until its entry into force), to be employed as a state servant who performs the functions of public administration. Such legal regulation worsened the legal situation of the state servants providing public services—these persons lost their right to the additional pay for the length of service to the State of Lithuania.

II

In the course of the preparation of the case for the Constitutional Court hearing written explanations were received from the representative of the Seimas of the Republic of Lithuania, the party concerned, who was Vytautas Kurpuvesas, Chairman of the Seimas Committee on State Administration and Local Authorities, wherein it is maintained that Paragraph 5 of Article 4 of the Law on the Implementation is not in conflict with the Constitution. The position of the representative of the Seimas is substantiated by the following arguments.

  1. After, on 23 April 2002, the Law on the State Service had been set forth in a new wording, the system of the state service was reformed and a new model of the state service was set up, under which the state servant is considered to be a natural person who performs duties in the state service and carries out the public administrative activities specified in that law. In its ruling of 13 December 2004, the Constitutional Court held that the legislator enjoys broad discretion to choose and consolidate in laws a certain model of organisation of the state service. However, while regulating the relations of the state service, the legislator must pay heed to the constitutional concept of the state service as well as the norms and principles of the Constitution.

Article 42 of the Law on the State Service (wording of 23 April 2002) prescribed that the length of service consists of the number of years served to the State of Lithuania from 11 March 1990 in the position of the state servant, including the positions specified in Items 1–6 of Paragraph 3 of Article 4 of that law (except for members of municipal councils who were not a mayor and deputy mayor).

The impugned Paragraph 5 of Article 4 of the Law on the Implementation prescribes that  the length of service to the State of Lithuania of state servants who were admitted to office prior to the entry into force of the new wording of the Law on the State Service also includes the period served in the positions specified in Paragraph 3 (wording of 27 September 2001) of Article 33 of the Law on the State Service (wording of 8 July 1999). Thus, the procedure for calculation of the length of service to the State of Lithuania has not changed for the said state servants; therefore, such legal regulation may not be assessed as establishing the retroactive power of legal norms.

  1. In its ruling of 13 December 2004, the Constitutional Court held that state servants are a special social group the specificity of which is determined by the purpose of the state service and its social significance, and that the constitutional requirements for the state service imply certain requirements to state servants. The legal relations of the state service start from the moment when a person acquires the status of a sate servant, which is related to the person’s admission to the state service, as then the person and the state acquire reciprocal rights and duties, the content of which changes once the status of a state servant is changed and which cease once the status of a state servant is lost.

The state servants who have, under the Law on the State Service, acquired certain rights have the right to reasonably expect that those rights will be retained and exercised for an established period of time. While taking account of the fact that, under the legal regulation valid prior to the entry into force of the Law on the State Service in its new wording, the length of service to the State of Lithuania of state servants included the periods set in Paragraph 3 of Article 33 of the Law on the State Service in its previous wording (wording of 8 July 1999 with subsequent amendments and supplements), and, while seeking to maintain the continuity of the guarantees established for state servants, in the impugned Paragraph 5 of Article 4 of the Law on the Implementation it has been established that the length of service to the State of Lithuania of state servants admitted to office prior to the entry into force of the Law on the State Service of the new wording also includes the period served in the positions specified in Paragraph 3 of Article 33 of the Law on the State Service in its previous wording. Thus, after the entry into force of the law, state servants who were admitted to office prior to 1 July 2002 retained the social guarantees held by them before that time, which had been established in the Law on the State Service of the previous wording.

The Constitutional Court

holds that:

  1. The Vilnius Regional Administrative Court, the petitioner, requests investigation into whether Paragraph 5 of Article 4 of the Law on the Implementation of the Law on Amending the Law on the State Service is not in conflict with Paragraph 2 of Article 7 of the Constitution and the constitutional principle of a state under the rule of law.
  2. The petitioner, while substantiating its doubts regarding the compliance of the impugned provision with the Constitution, points out that the persons whose right to the calculation of the length of service was consolidated in the Law on the State Service in its wording of 8 July 1999 acquired a legitimate expectation that the positions of state employees of “A” and “B” levels, which were held during the period of validity (from 30 July 1999 till 1 July 2002) of the Law on the State Service in the said wording, would be included in the length of service to the State of Lithuania.

From the petitioner’s arguments it is clear that the petitioner doubts as to the constitutionality of Paragraph 5 of Article 4 of the Law on the Implementation, insofar as it does not establish that the period served in the positions of state employees of “A” and “B” levels is included in the length of service to the State of Lithuania for persons who were admitted to office in the state service after the entry into force of the Law on Amending the Law on the State Service, adopted on 23 April 2002, although it provides that such a period is included in the length of service to the State of Lithuania for persons who were admitted to office in the state service prior to the entry into force of that law.

  1. In the context of the constitutional justice case at issue it is important to elucidate certain aspects of the development of the legal regulation concerning the state service of the Republic of Lithuania, inter alia those related to the length of state service.

3.1. On 4 April 1995, the Seimas adopted the Republic of Lithuania Law on Functionaries, which came into force on 1 May 1995. That law established the concept of the state governance service, the procedure for employment in the state governance service, the compliance with that procedure, the rights, duties and responsibilities of functionaries, and the termination of service relations (Article 1).

3.1.1. Article 3 “State and Municipal Servants” of the Law on Functionaries established that employees of establishments and organisations (save the state and municipal politicians referred to in Article 2) to whom remuneration is paid from funds of the state or municipal budgets are regarded as state and municipal servants; according to the content and character of the main work performed by servants, they were grouped into the respective professional corps (teachers, police, judges, medical staff, diplomats, functionaries, etc.).

3.1.2. Under Article 5 of the Law on Functionaries, servants of the state governance service constituted the professional corps of functionaries (Paragraph 1); those servants who performed the economic-technical functions were not regarded as functionaries (Paragraph 2). Article 23 of that law provided that functionaries are granted the annual leave of thirty calendar days. In addition, two extra days had to be granted for each five-year record of work in the state governance service, however, the total duration of annual leave could not exceed forty calendar days (Paragraph 1); the functionaries’ length of service had to be calculated as from 11 March 1990 (Paragraph 2).

3.1.3. Thus, under the legal regulation laid down in the Law on Functionaries, state or municipal servants comprised inter alia certain employees of establishments and organisations who provide public services and to whom remuneration is paid from funds of the state or municipal budgets (for example, teachers, medical staff, etc.). However, that law regulated the calculation of the length of service of servants of state governance service (functionaries) alone.

3.2. On 8 July 1999, the Seimas adopted the Law on the State Service, which came into force on 30 July 1999. That law established the basic principles of the state service, the status of a state servant and the legal bases for the management of the state service (Article 1). Upon the entry into force of that law, the Law on Functionaries (wording of 4 April 1995 with subsequent amendments and supplements) became null and void.

3.2.1. Item 2 of Article 2 of the Law on the State Service (wording of 8 July 1999) prescribed that “state servant” means a natural person who has acquired the status of a state servant pursuant to that law and other legislation, and who performs the public administrative functions or the economic or technical functions or provides the public services to the public in state (central and municipal) institutions or establishments. Item 12 of that article prescribed that “public services” means the activities of establishments established by the state or municipal authorities in providing the public with the social, educational, scientific, cultural, sport and other services provided for by laws. Under Paragraph 1 of Article 6 of the Law on the State Service (wording of 8 July 1999), state servants were divided into servants of public administration (including statutory state servants) and state employees.

Article 7 “Levels and Categories of Positions of State Servants” of the Law on the State Service (wording of 8 July 1999) prescribed that positions of state servants, inter alia state employees, are divided into 4 levels: the level “A”, which comprises positions where a master’s (university) degree or an equivalent degree is obligatory; the level “B”, which comprises positions where not lower than college (higher non-university) education is obligatory; the level “C”, which comprises positions where not lower than secondary education and an appropriate professional qualification is obligatory; and the level “D”, which comprises positions where secondary education is not obligatory.

3.2.2. The Law on the State Service (wording of 8 July 1999) prescribed that the remuneration of a state servant is comprised of the positional salary, the additional pay for the length of service and extra payments (Article 31).

3.2.2.1. Article 33 “The Additional Pay for the Length of Service” of the Law on the State Service (wording of 8 July 1999) inter alia prescribed that the additional pay for the length of service is paid to a state servant for the amount of years served in the state service (Paragraph 1).

3.2.2.2. On 29 August 2000, the Seimas adopted the Republic of Lithuania Law on Amending and Supplementing the Law on the State Service, by Article 27 whereof it amended Article 33 of the Law on the State Service (wording of 8 July 1999). Item 1 of Paragraph 1 of Article 33 “The Additional Pay” (wording of 29 August 2000) of the Law on the State Service provided that state servants are paid the additional pay for the length of service to the State of Lithuania. Paragraph 2 of the same article inter alia prescribed that the additional pay for the length of service is paid to state servants of public administration as well as to state employees of “A” and “B” levels.

Paragraph 3 of Article 33 (wording of 29 August 2000) of the Law on the State Service inter alia prescribed that, under that law, the length of service, which does not constitute the total work duration, is comprised of the number of years served to the State of Lithuania from 11 March 1990 in the positions of state servants of public administration and the positions of state employees of “A” and “B” levels.

3.2.2.3. On 27 September 2001, the Seimas adopted the Law on Amending and Supplementing Articles 4, 33, 60, 62, 69 and 78 of the Law on the State Service, by Paragraph 1 of Article 2 whereof it amended Paragraph 3 of Article 33 of the Law on the State Service (wording of 8 July 1999). Paragraph 3 (wording of 27 September 2001) of Article 33 of the Law on the State Service prescribed:

“Pursuant to this Law, the length of service shall consist of the number of years served to the State of Lithuania from 11 March 1990 in the positions of state servants of public administration, positions of state employees of “A” and “B” levels, as well as in the positions specified in Items 1–6 of Paragraph 4 of Article 4 of this Law. The length of service of state servants shall be calculated in accordance with the procedure set by the Government as from the commencement of service (work) in state or municipal institutions or establishments or from the day of the appointment (election) to these positions in the state service in the manner prescribed by this Law, other laws or statutes. The length of service (work) at different periods in the said positions in state or municipal institutions or establishments shall be added up. The length of service shall include the period of internship or probation, as well as the time of annual leave, except the leave of absence due to personal circumstances as set forth in Article 52. According to the length of service, an amount of the additional pay indicated in Paragraph 5 of this Article and duration of the annual leave indicated in Article 50 of this Law shall be determined.”

3.2.3. Thus, Article 33 (wordings of 29 August 2000 and 27 September 2001) of the Law on the State Service (wording of 8 July 1999) provided for the additional pay for the length of service to the State of Lithuania, which had to be paid to inter alia state employees of “A” and “B” levels; under Paragraph 3 of that article, the period of service to the State of Lithuania from 11 March 1990, inter alia in the positions of state employees of “A” and “B” levels, had to be included in the length of service to the State of Lithuania.

3.3. On 23 April 2002, the Seimas adopted the Republic of Lithuania Law on Amending the Law on the State Service, by Article 1 whereof it set the Law on the State Service in a new wording.

On 23 April 2002, the Seimas adopted the Law on the Implementation of the Law on Amending the Law on the State Service, which came into force on 4 May 2002. Paragraph 1 of Article 1 of that law provides that “The Law on Amending the Law on the State Service shall enter into force as from 1 July 2002, except for those articles of the Law on the State Service in respect of which other terms of entry into force have been set in this Law”, whereas Paragraph 2 of Article 1 thereof provides that “Articles 2, 21 and 22 of the Law on the State Service shall enter into force as from 1 May 2002.”

3.3.1. Paragraph 1 of Article 2 of the Law on the State Service (wording of 23 April 2002) prescribes:

“‘State service’ means an aggregate of legal relations arising upon the acquisition of the status of a state servant as well as upon any change or loss thereof, and also resulting from the public administrative activities of a state servant in a state or municipal institution or establishment when implementing, or ensuring the coordination of implementation of, the policy of a particular sphere of state governance, also when coordinating the activities of establishments in a particular sphere of state governance, managing and allocating financial resources and controlling their use, carrying out audits, adopting and implementing legal acts, decisions of state and municipal institutions or establishments in the sphere of public administration, preparing or coordinating draft legal acts, agreements or programmes and providing conclusions thereon, managing the personnel, or having public administrative powers in respect of non-subordinate persons.”

Under Paragraph 2 of Article 2 of the said law, “state servant” means a natural person who performs duties in the state service and carries out the public administrative activities specified in Paragraph 1 of that article.

3.3.2. Paragraph 1 of Article 42 “The Length of Service” of the Law on the State Service (wording of 23 April 2002) inter alia prescribed that, under that law, the length of service consists of the number of years served to the State of Lithuania from 11 March 1990 in the position of a state servant, including the positions specified in Items 1–6 of Paragraph 3 of Article 4 of that law (except for members of municipal councils who were not a mayor and deputy mayor). Items 1–6 of Paragraph 3 (wherein it was indicated to whom that law did not apply) of Article 4 of the Law on the State Service (wording of 23 April 2002) enumerated the offices of state politicians, justices of the Constitutional Court of the Republic of Lithuania and the Supreme Court of Lithuania, judges of the Supreme Administrative Court of Lithuania, as well as of judges of other courts, prosecutors, the Chairman of the Board of the Bank of Lithuania, his deputies, members of the Board and other employees of the Bank of Lithuania, the heads of state institutions and establishments appointed by the Seimas or the President of the Republic, also of other state officials appointed by the Seimas or the President of the Republic, the chairmen of state (standing) commissions and councils appointed by the Seimas or the President of the Republic, their deputies and members of such commissions or councils, as well as of the chairmen and members of the commissions, councils, boards of funds established under special laws, and servicemen in the professional military service.

3.3.3. Paragraph 1 of Article 23 of the Law on the State Service (wording of 23 April 2002) prescribed that the remuneration of a state servant is comprised of the positional salary, additional pay and extra pay. Under Item 1 of Paragraph 1 of Article 25 of that law, state servants are paid the additional pay for the length of service to the State of Lithuania; Paragraph 2 of the same article provides that the additional pay for the length of service of state servants is 3 percent of the positional salary for every three years of service to the State of Lithuania; however, the amount of this additional pay may not exceed 30 percent of the positional salary.

In addition, Paragraph 2 of Article 36 of the Law on the State Service (wording of 23 April 2002) prescribes that a state servant with the length of service to the State of Lithuania of more than five years is granted additional 3 calendar days of annual leave for each subsequent three-year period of service to the State of Lithuania, however, the total duration of the annual leave may not exceed 42 calendar days.

3.3.4. Thus, after, on 23 April 2002, the Law on the State Service was set forth in a new wording, it no longer provides for state employees, i.e. positions of state employees, which used to be established in the Law on the State Service (wording of 8 July 1999), are no longer ascribed to the state service; the length of service to the State of Lithuania no longer includes the period served in the positions of state employees of “A” and “B” levels, established in Paragraph 3 of Article 33 (wordings of 29 August 2000 and 27 September 2001) of the Law on the State Service (wording of 8 July 1999).

It needs to be noted that, under the currently valid Law on the State Service (wording of 23 April 2002 with subsequent amendments and supplements), the amount of the additional pay for the length of service to the State of Lithuania, which is a constituent part of the work remuneration of a state servant, and the duration of the additional annual leave depend upon the length of service to the State of Lithuania, as well.

  1. As mentioned before, on 23 April 2002, in addition to the Law on Amending the Law on the State Service, the Seimas adopted the Law on the Implementation of the Law on Amending the Law on the State Service, which came into force on 4 May 2002.

4.1. Paragraph 5 of Article 4 “Ensuring the Continuity of Social and Other Guarantees for State Servants” of the Law on the Implementation, the compliance with the Constitution whereof is impugned in the constitutional justice case at issue, prescribes:

“The length of service to the State of Lithuania of state servants admitted to office prior to the entry into force of the Law on Amending the Law on the State Service shall also include the period served in the positions specified in Paragraph 3 of Article 33 of the Law on the State Service (Official Gazette Valstybės žinios, 1999, No. 66-2130; 2000, No. 75-2270 and No. 102-3213; 2001, No. 63-2278 and No. 85-2972).”

4.2. It has been mentioned that Paragraph 3 (wordings of 29 August 2000 and 27 September 2001) of Article 33 of the Law on the State Service (wording of 8 July 1999) prescribed that the length of service to the State of Lithuania includes the period of service to the State of Lithuania from 11 March 1990 in the positions of inter alia state employees of “A” and “B” levels.

4.3. Thus, the legal regulation established in Paragraph 5 of Article 4 of the Law on the Implementation, which is impugned by the petitioner, supplements the legal regulation established in Paragraph 1 of Article 42 of the Law on the State Service (wording of 23 April 2002): the length of service to the State of Lithuania of state servants admitted to office prior to the entry into force of the Law on Amending the Law on the State Service on 1 July 2002 also includes the period served in the positions of state employees of “A” and “B” levels, established in Paragraph 3 of Article 33 (wordings of 29 August 2000 and 27 September 2001) of the Law on the State Service (wording of 8 July 1999), which, as mentioned before, are not, as from 1 July 2002, ascribed to the state service. It needs to be noted that such a period of service is not included in the length of service to the State of Lithuania of state servants admitted to office after the entry into force of the Law on Amending the Law on the State Service on 1 July 2002.

It also needs to be noted that, in view of the legal regulation established in the Law on the State Service (wording of 23 April 2002), by means of the legal regulation established in Paragraph 5 of Article 4 of the Law on the Implementation, one differentiates, according to the date of admission to the state service, the legal status of state servants who held the positions of state employees of “A” and “B” levels, established in Paragraph 3 of Article 33 (wordings of 29 August 2000 and 27 September 2001) of the Law on the State Service (wording of 8 July 1999); different rules for the calculation of the length of service to the State of Lithuania, which determine a different amount of the additional pay for the service to the State of Lithuania (which is linked with the length of service to the State of Lithuania) and duration of annual leave, are applied to the state servants admitted to the state service prior to the entry into force of the Law on Amending the Law on the State Service on 1 July 2002 and the state servants admitted to the state service after that date, although both groups of the said state servants are in an equal position, i.e. the state servants of both groups were, under the legal regulation established in the Law on the State Service (wording of 8 July 1999), regarded as state employees of “A” and “B” levels.

  1. It has been mentioned that the petitioner impugns the compliance of Paragraph 5 of Article 4 of the Law on the Implementation with inter alia the constitutional principle of a state under the rule of law.

5.1. 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 aforesaid constitutional principle reveals itself in various provisions of the Constitution. The essence of this principle is the rule of law. 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.

5.2. In the context of the constitutional justice case at issue it needs to be noted that the constitutional principle of a state under the rule of law is inseparable from the principle of equality of rights of persons, which is consolidated inter alia in Article 29 of the Constitution. The violation of the constitutional principle of equality of rights of persons is, at the same time, the violation of the constitutional imperatives of justice and harmonious society, thus, it is also the violation of the constitutional principle of a state under the rule of law (Constitutional Court ruling of 6 February 2012).

While construing the provisions of Article 29 of the Constitution, the Constitutional Court has held more than once that the constitutional principle of equality of all persons, which must be followed both in passing laws and applying them, as well as in administering justice, obliges to legally assess the homogenous facts in the same manner and prohibits to arbitrarily assess the facts that are the same in essence in a different manner, also that the constitutional principle of equality of all persons means an innate human right to be treated equally with others, that it consolidates formal equality of all persons and does not allow to discriminate against persons, nor grant them any privileges. In addition, the Constitutional Court has noted more than once that the constitutional principle of equality of all persons does not deny a possibility to provide in a law for a different (differentiated) legal regulation with respect to certain categories of persons who are in different situations; the variety of social life may determine the manner and content of legal regulation. The constitutional principle of equality of persons does not deny the possibility of treating persons differently by taking account of their status or situation (Constitutional Court rulings of 30 October 2008 and 13 December 2004). However, the constitutional principle of equality of all persons before the law would be violated when a certain group of persons, 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 the character and extent between these groups that such an uneven treatment would be objectively justified (Constitutional Court rulings inter alia of 20 November 1996, 30 December 2003 and 13 December 2004).

5.3. In the context of the constitutional justice case at issue it also needs to be noted that the constitutional principle of equality of rights of persons is related to the right of a citizen to enter on equal terms in the state service of the Republic of Lithuania, which is entrenched in Paragraph 1 of Article 33 of the Constitution. As the Constitutional Court held in its ruling of 13 December 2004, the constitutional right of a citizen to enter on equal terms in the state service of the Republic of Lithuania, as a version of the constitutional right of every person to freely choose a job, especially upon considering the provision “on equal terms” of Paragraph 1 of Article 33 of the Constitution, is to be linked with the constitutional principle of equality of rights of persons (equality of persons before the law, the court and other state institutions or officials). Citizens who seek to become admitted to the state service may not be discriminated against, nor may they be granted privileges on the grounds expressis verbis specified in Paragraph 2 of Article 29 of the Constitution or any other constitutionally unjustifiable grounds (Constitutional Court ruling of 13 December 2004).

The relations of the state service comprise inter alia the relations that arise after the citizen enters in the state service and while he performs his duties at the state service (Constitutional Court rulings of 13 December 2004, 13 August 2007, 7 July 2011 and 27 February 2012). Thus, the provisions of Article 29 of the Constitution and the provision “Citizens shall have <...> the right to enter on equal terms in the State service of the Republic of Lithuania” of Paragraph 1 of Article 33 imply that inter alia persons who perform duties at the state service may not be discriminated against on constitutionally unjustifiable grounds, either. In the context of the constitutional justice case at issue it needs to be noted that the date of admission to the state service of the Republic of Lithuania alone may not be a constitutionally justifiable ground to differently regulate the remuneration and social guarantees of state servants who are in the same situation.

  1. In its rulings of 13 December 2004 and 20 March 2007, the Constitutional Court pointed out that the legislator enjoys broad discretion to choose and consolidate in laws a certain model of organisation of the state service.

Laws and other legal acts must establish such a legal status of state servants that would be in line with the constitutional concept of the state service as a special—remunerated from the state (municipal) budget—system of professional activity when adopting decisions in the area of public administration and/or provision of public services (or when participating in drafting and executing those decisions, coordinating and/or controlling the execution thereof, etc.), which inter alia implies the internal mobility of the state service as a system, transferability of the knowledge, skills and experience of persons working within that system, and continuity of the activities while performing the state functions and guaranteeing the public interest (Constitutional Court ruling of 13 December 2004).

In the context of the constitutional justice case at issue it needs to be noted that the legislator has the discretion to establish such a model of the state service whereby state servants would comprise the persons who carry out the activities remunerated from the state (municipal) budget when adopting decisions in the area of public administration and/or provision of public services (or when participating in drafting and executing those decisions, coordinating and/or controlling the execution thereof, etc.). The Constitutional Court has noted that the Constitution does not create any preconditions to treat, in legal acts, all the persons who work in state or municipal institutions, or whose activities are remunerated from the state (municipal) budget, as state servants solely on the ground that they work in the said institutions or that their activities are remunerated from the state (municipal) budget (Constitutional Court ruling of 13 December 2004).

It also needs to be noted that the legislator’s discretion to choose and consolidate in laws a certain model of organisation of the state service also includes the legislator’s right to regulate the calculation of the length of state service as well as the amount of work remuneration and social guarantees, which are linked with the length of state service, inter alia the legislator’s right to equate the length of state service with the period of work remunerated from the state (municipal) budget while providing certain public services. However, while implementing that discretion, the legislator is bound by the Constitution, inter alia the constitutional concept of the state service and the constitutional principles of a state under the rule of law and equal rights of persons.

  1. It has been mentioned that, in view of the legal regulation established in the Law on the State Service (wording of 23 April 2002), the legal regulation established in Paragraph 5 of Article 4 of the Law on the Implementation differentiates, according to the date of admission to the state service, the legal status of state servants who held the positions of state employees of “A” and “B” levels, established in Paragraph 3 of Article 33 (wordings of 29 August 2000 and 27 September 2001) of the Law on the State Service (wording of 8 July 1999); different rules for the calculation of the length of service to the State of Lithuania, which determine a different amount of the additional pay for the service to the State of Lithuania (which is liked with the length of service to the State of Lithuania) and duration of annual leave, are applied to the state servants admitted to the state service prior to the entry into force of the Law on Amending the Law on the State Service on 1 July 2002 and the state servants admitted to the state service after that date, although both groups of the said state servants are in an equal position, i.e. the state servants of both groups were, under the legal regulation established in the Law on the State Service (wording of 8 July 1999), regarded as state employees of “A” and “B” levels. Thus, by means of the legal regulation laid down in Paragraph 5 of Article 4 of the Law on the Implementation, solely according to the date of admission to the state service of the Republic of Lithuania, the work remuneration and social guarantees of state servants who are in an equal situation are regulated in a different manner.

It has also been mentioned that the constitutional principle of a state under the rule of law is also inseparable from the principle of equal rights of persons, which is consolidated inter alia in Article 29 of the Constitution; the constitutional principle of equal rights of persons is related to the right of a citizen to enter on equal terms in the state service of the Republic of Lithuania, which is entrenched in Paragraph 1 of Article 33 of the Constitution; the provisions of Article 29 and the provision “Citizens shall have <...> the right to enter on equal terms in the State service of the Republic of Lithuania” of Paragraph 1 of Article 33 of the Constitution imply inter alia that persons who perform duties at the state service may not be discriminated against on constitutionally unjustifiable grounds, either; the date of admission to the state service of the Republic of Lithuania alone may not be a constitutionally justifiable ground to differently regulate the remuneration and social guarantees of state servants who are in an equal situation.

  1. Taking account of the arguments set forth, it needs to be held that Paragraph 5 of Article 4 of the Law on the Implementation of the Law on Amending the Law on the State Service, insofar as, after it has been established therein that the period served in the positions of state employees of “A” and “B” levels, established in Paragraph 3 of Article 33 (wordings of 29 August 2000 and 27 September 2001) of the Law on the State Service (wording of 8 July 1999), is included in the length of service to the State of Lithuania of state servants admitted to office prior to the entry into force of the Law on Amending the Law on the State Service on 1 July 2002, it has not been established that such a period is also included in the length of service to the State of Lithuania of state servants admitted to office after the entry into force of that law, is in conflict with Article 29, the provision “Citizens shall have <...> the right to enter on equal terms in the State service of the Republic of Lithuania” of Paragraph 1 of Article 33 of the Constitution and the constitutional principle of a state under the rule of law.

Having held this, the Constitutional Court will not investigate whether Paragraph 5 of Article 4 of the Law on the Implementation of the Law on Amending the Law on the State Service is not in conflict with Paragraph 2 of Article 7 of the Constitution.

Conforming to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1, 53, 531, 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:

To recognise that Paragraph 5 of Article 4 of the Republic of Lithuania Law on the Implementation of the Law on Amending the Law on the State Service (wording of 23 April 2002; Official Gazette Valstybės žinios, 2002, No. 45-1709), insofar as, after it has been established therein that the period served in the positions of state employees of “A” and “B” levels, established in Paragraph 3 of Article 33 (wordings of 29 August 2000 and 27 September 2001) of the Republic of Lithuania Law on the State Service (wording of 8 July 1999), is included in the length of service to the State of Lithuania of state servants admitted to office prior to the entry into force of the Republic of Lithuania Law on Amending the Law on the State Service on 1 July 2002, it has not been established that such a period is also included in the length of service to the State of Lithuania of state servants admitted to office after the entry into force of that law, is in conflict with Article 29, the provision “Citizens shall have <...> the right to enter on equal terms in the State service of the Republic of Lithuania” of Paragraph 1 of Article 33 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

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

The ruling is promulgated in the name of 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