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On legal acts related to the right of counterclaim and to the inclusion of social insurance payments and other payments into damage

Case No. 37/2008-11/2009-7/2010-22/2010-34/2010-56/2010-116/2010-126/2010-10/2011-12/2011-13/2011-24/2011

 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

 RULING

ON THE COMPLIANCE OF PARAGRAPHS 1 AND 3 OF ARTICLE 6.290 AND PARAGRAPH 1 OF ARTICLE 6.1015 OF THE CIVIL CODE OF THE REPUBLIC OF LITHUANIA, PARAGRAPH 10 OF ARTICLE 19 OF THE REPUBLIC OF LITHUANIA LAW ON COMPULSORY INSURANCE AGAINST CIVIL LIABILITY OF HOLDERS OF VEHICLES (WORDING OF 5 MARCH 2004), ITEM 26 (WORDING OF 23 DECEMBER 2002) OF THE CONDITIONS UNDER WHICH PERSONS ARE INSURED BY STATE FUNDS AND OF COMPENSATION PAYMENT UPON THEIR INJURY OR LOSS OF LIFE IN THE LINE OF DUTY, AS APPROVED BY RESOLUTION OF THE GOVERNMENT OF THE REPUBLIC OF LITHUANIA NO. 530 “ON THE CONDITIONS UNDER WHICH PERSONS ARE INSURED BY STATE FUNDS AND OF COMPENSATION PAYMENT UPON THEIR INJURY OR LOSS OF LIFE IN THE LINE OF DUTY” OF 5 DECEMBER 1991, AND ITEM 49 OF THE RULES FOR ASSESSING DAMAGE CAUSED IN A TRAFFIC ACCIDENT AND PAYING THE PAYMENT, AS APPROVED BY RESOLUTION OF THE GOVERNMENT OF THE REPUBLIC OF LITHUANIA NO. 795 “ON THE APPROVAL OF THE RULES FOR ASSESSING DAMAGE CAUSED IN A TRAFFIC ACCIDENT AND PAYING THE PAYMENT” OF 23 JUNE 2004 WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 18 April 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, Egidijus Šileikis, Romualdas Kęstutis Urbaitis, and Dainius Žalimas,

with the secretaries—Sigutė Brusovienė and Daiva Pitrėnaitė,

in the presence of the representatives of the Seimas of the Republic of Lithuania, a party concerned, who were Žilvinas Šilgalis, a Member of the Seimas, and Daina Petrauskaitė, Head of the Civil Law Unit of the Legal Department of the Office of the Seimas,

in the presence of the representatives of the Government of the Republic of Lithuania, a party concerned, who were Juliana Ostrouch, Head of the Division of Legal Representation of the Ministry of Justice of the Republic of Lithuania, Gintarė Vizbaraitė, Deputy Head of the Law Division of the Ministry of Social Security and Labour of the Republic of Lithuania, Ježy Miskis, Deputy Head of the Law Division of the State Social Insurance Fund Board under the Ministry of Social Security and Labour, and Jovita Burlėgienė, chief specialist of the Insurance and Special Financial Activities Division of the Financial Markets Policy Department of the Ministry of Finance of the Republic of Lithuania,

pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, on 2 April 2012, in its public hearing heard constitutional justice case No. 37/2008-11/2009-7/2010-22/2010-34/2010-56/2010-116/2010-126/2010-10/2011-12/2011-13/2011-24/2011 subsequent to:

1) the petitions of the Second Vilnius City Local Court (Nos. 1B-35/2008, 1B-23/2010, 1B-139/2010 and 1B-13/2011), the petition of the Court of Appeal of Lithuania (No. 1B-10/2009), the petition of the Molėtai District Local Court (No. 1B-128/2010), the petition of the Vilnius Regional Court (No. 1B-9/2011) and the petition of the Klaipėda City Local Court (No. 1B-11/2011) requesting to investigate whether:

– Paragraph 1 of Article 6.290 of the Civil Code of the Republic of Lithuania, insofar as, according to the petitioners, it does not establish any clear limits of inclusion of social insurance payments payable in cases of damage to health or deprivation of life in the amount of the repairable damage, is not in conflict with Paragraph 1 of Article 29, Paragraph 2 of Article 30 and Article 52 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law;

– Paragraph 3 of Article 6.290 of the Civil Code of the Republic of Lithuania, insofar as, according to the petitioners, it does not establish any clear extent of application of the right of recourse of social insurance establishments that have paid insurance payments to claim reimbursement for damage from the person who caused the damage, is not in conflict with Paragraph 1 of Article 29, Paragraph 2 of Article 30 and Article 52 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law;

2) the petition (No. 1B-6/2010) of the Kaunas Regional Court requesting to investigate whether:

– Paragraph 1 of Article 6.290 of the Civil Code of the Republic of Lithuania, insofar as, according to the petitioner, it does not establish any clear limits of inclusion of social insurance payments payable in cases of damage to health or deprivation of life in the amount of the repairable damage, is not in conflict with Paragraph 1 of Article 29, Paragraph 2 of Article 30 and Article 52 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law;

– Paragraph 3 of Article 6.290 of the Civil Code of the Republic of Lithuania, insofar as, according to the petitioner, it does not establish any clear extent of application of the right of recourse of social insurance establishments that have paid insurance payments to claim reimbursement for damage from the person who caused the damage, is not in conflict with Paragraph 1 of Article 29, Paragraph 2 of Article 30 and Article 52 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law;

– Item 26 (wording of 23 December 2002) of the Conditions under Which Persons are Insured by State Funds and of Compensation Payment upon Their Injury or Loss of Life in the Line of Duty, as approved by Resolution of the Government of the Republic of Lithuania No. 530 “On the Conditions under Which Persons are Insured by State Funds and of Compensation Payment upon Their Injury or Loss of Life in the Line of Duty” of 5 December 1991, in the aspect that, according to the petitioner, the right of recourse to recover the paid insurance sums and compensations from the legal and natural persons who caused the damage is established by a Government resolution, but not a law, is not in conflict with Paragraph 2 of Article 30 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law;

– Item 26 (wording of 23 December 2002) of the Conditions under Which Persons are Insured by State Funds and of Compensation Payment upon Their Injury or Loss of Life in the Line of Duty, as approved by Resolution of the Government of the Republic of Lithuania No. 530 “On the Conditions under Which Persons are Insured by State Funds and of Compensation Payment upon Their Injury or Loss of Life in the Line of Duty” of 5 December 1991, insofar as, according to the petitioner, it does not establish any clear extent of application of the right of recourse of the establishments that have paid compensations under Article 40 of the Statute of the Internal Service, as approved by the Republic of Lithuania Law on the Approval of the Statute of the Internal Service, against the person who caused the damage, is not in conflict with Paragraph 1 of Article 29, Paragraph 2 of Article 30 and Article 52 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law;

3) the petition (No. 1B-46/2010) of the Vilnius Regional Court requesting to investigate whether:

– Paragraph 1 of Article 6.290 of the Civil Code of the Republic of Lithuania, insofar as, according to the petitioner, it does not establish any clear limits of inclusion of social insurance payments payable in cases of damage to health or deprivation of life in the amount of the repairable damage, is not in conflict with Paragraph 1 of Article 29, Paragraph 2 of Article 30 and Article 52 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law;

– Paragraph 1 of Article 6.290 of the Civil Code of the Republic of Lithuania, insofar as, according to the petitioner, it does not establish any clear notion of social insurance payments payable in cases of damage to health or deprivation of life, is not in conflict with Paragraph 1 of Article 29, Paragraph 2 of Article 30 and Article 52 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law;

– Paragraph 3 of Article 6.290 of the Civil Code of the Republic of Lithuania, insofar as, according to the petitioner, it does not establish any clear extent of application of the right of recourse of social insurance establishments that have paid insurance payments to claim reimbursement for damage from the person who caused the damage, is not in conflict with Paragraph 1 of Article 29, Paragraph 2 of Article 30 and Article 52 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law;

– Paragraph 3 of Article 6.290 of the Civil Code of the Republic of Lithuania, insofar as, according to the petitioner, it does not establish any clear notion of social insurance establishments that have paid insurance payments, is not in conflict with Paragraph 1 of Article 29, Paragraph 2 of Article 30 and Article 52 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law;

– Paragraph 1 of Article 6.1015 of the Civil Code of the Republic of Lithuania, insofar as it prohibits the insurer’s subrogation against the person who caused the damage in the case of insurance against accidents, is not in conflict with Paragraph 1 of Article 29 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law;

– Paragraph 10 of Article 19 of the Republic of Lithuania Law on Compulsory Insurance Against Civil Liability of Holders of Vehicles (wording of 5 March 2004), insofar as, according to the petitioner, it does not establish any clear limits and extent of inclusion of social insurance payments payable in cases of damage to health or deprivation of life, as well as the funeral allowance, in the amount of the repairable damage and the type (property and/or non-property) of the repairable damage, is not in conflict with Paragraph 1 of Article 29, Paragraph 2 of Article 30 and Article 52 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law;

– Item 26 (wording of 23 December 2002) of the Conditions under Which Persons are Insured by State Funds and of Compensation Payment upon Their Injury or Loss of Life in the Line of Duty, as approved by Resolution of the Government of the Republic of Lithuania No. 530 “On the Conditions under Which Persons are Insured by State Funds and of Compensation Payment upon Their Injury or Loss of Life in the Line of Duty” of 5 December 1991, in the aspect that, according to the petitioner, the right of recourse to recover the paid insurance sums and compensations from the legal and natural persons who caused the damage is established by a Government resolution, but not a law, is not in conflict with Paragraph 2 of Article 30 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law;

– Item 26 (wording of 23 December 2002) of the Conditions under Which Persons are Insured by State Funds and of Compensation Payment upon Their Injury or Loss of Life in the Line of Duty, as approved by Resolution of the Government of the Republic of Lithuania No. 530 “On the Conditions under Which Persons are Insured by State Funds and of Compensation Payment upon Their Injury or Loss of Life in the Line of Duty” of 5 December 1991, insofar as, according to the petitioner, it does not establish any clear extent of application of the right of recourse of the establishments that have paid compensations under Article 40 of the Statute of the Internal Service, as approved by the Republic of Lithuania Law on the Approval of the Statute of the Internal Service, against the person who caused the damage, is not in conflict with Paragraph 1 of Article 29, Paragraph 2 of Article 30 and Article 52 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law;

– Item 55 of the Rules for Assessing Damage Caused in a Traffic Accident and Paying the Insurance Payment, as approved by Resolution of the Government of the Republic of Lithuania No. 795 “On the Approval of the Rules for Assessing Damage Caused in a Traffic Accident and Paying the Insurance Payment” (wording of 24 February 2008) of 23 June 2004, insofar as, according to the petitioner, it does not establish any clear limits and extent of inclusion of the social insurance payment, sickness benefit, pension of lost capacity to work or compensation payable under legal acts as a result of the damage to health or deprivation of life sustained in a traffic accident, as well as the funeral allowance, in the amount of the repairable damage and the type (property and/or non-property) of the repairable damage, is not in conflict with Paragraph 1 of Article 29, Paragraph 2 of Article 30 and Article 52 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law;

4) the petitions (Nos. 1B-71/2010 and 1B-23/2011) of the Vilnius Regional Court requesting to investigate whether:

– Paragraph 1 of Article 6.290 of the Civil Code of the Republic of Lithuania, insofar as, according to the petitioner, it does not establish any clear limits of inclusion of social insurance payments payable in cases of damage to health or deprivation of life in the amount of the repairable damage, is not in conflict with Paragraph 1 of Article 29, Paragraph 2 of Article 30 and Article 52 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law;

– Paragraph 3 of Article 6.290 of the Civil Code of the Republic of Lithuania, insofar as, according to the petitioner, it does not establish any clear extent of application of the right of recourse of social insurance establishments that have paid insurance payments to claim reimbursement for damage from the person who caused the damage, is not in conflict with Paragraph 1 of Article 29, Paragraph 2 of Article 30 and Article 52 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law;

– Item 26 (wording of 23 December 2002) of the Conditions under Which Persons are Insured by State Funds and of Compensation Payment upon Their Injury or Loss of Life in the Line of Duty, as approved by Resolution of the Government of the Republic of Lithuania No. 530 “On the Conditions under Which Persons are Insured by State Funds and of Compensation Payment upon Their Injury or Loss of Life in the Line of Duty” of 5 December 1991, in the aspect that, according to the petitioner, the right of recourse to recover the paid insurance sums and compensations from the persons who caused the damage is established by a Government resolution, but not a law, is not in conflict with Paragraph 2 of Article 30 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

By the Constitutional Court decision of 26 March 2012 the said petitions of the petitioners were joined into one case and it was given reference number 37/2008-11/2009-7/2010-22/2010-34/2010-56/2010-116/2010-126/2010-10/2011-12/2011-13/2011-24/2011.

The Constitutional Court

has established:

I

1. The petitions of all the petitioners—the Second Vilnius City Local Court, the Court of Appeal of Lithuania, the Kaunas Regional Court, the Vilnius Regional Court, the Molėtai District Local Court and the Klaipėda City Local Court—requesting to investigate the compliance of Paragraphs 1 and 3 of Article 6.290 of the Civil Code (hereinafter also referred to as the CC) with the Constitution are substantiated by the following arguments.

1.1. Paragraph 2 of Article 30 of the Constitution provides that compensation for material and moral damage inflicted upon a person shall be established by law. In paying payments under the Republic of Lithuania Law on Social Insurance of Accidents at Work and Occupational Diseases the obligation of the state to pay these payments is not related to delictual civil liability. Thus, such payments may not be deemed to be reimbursement for damage from the point of view of delictual civil liability, since the amount of these payments is not based on the assessment and calculation of the amount of the damage inflicted in a concrete case and the expression thereof by a monetary equivalent. Under Paragraph 1 of Article 6.290 of the CC, all social insurance payments are included in the amount of the repairable damage and, under Paragraph 3 of the same article, social insurance establishments that have paid all insurance payments acquire the right of recourse against the person who caused the damage, except in cases where insurance contributions were paid on behalf of the victim by the same person who caused the damage. Thus, the petitioners have doubted whether the legislator, having not established the extent as to which the paid social insurance payments are included in the amount of the repairable damage, nor the extent as to which these payments may be, by way of recourse, recovered from the person who caused the damage, has not deviated from the principles of the institute of compensation for damage, which is entrenched in Paragraph 2 of Article 30 of the Constitution.

1.2. According to the petitioners, by means of the impugned legal regulation the constitutional duty of the state to provide social support is transferred onto the person who caused the damage, as the social insurance payments paid by the State Social Insurance Fund Board, which may not be deemed to constitute reimbursement for damage from the point of view of delictual civil liability, under Paragraph 1 of Article 6.290 of the CC, are included in the amount of the repairable damage, and, under Paragraph 3 of the same article, social insurance establishments that have paid these payments acquire the right of recourse against the person who caused the damage. In this way, Article 52 of the Constitution, as well as the principle of proportionality, is violated, since the aforementioned person is under an obligation to reimburse more damage than actually done in reality.

1.3. The petitioners have doubted whether the legislator, having not established the extent as to which the paid social insurance payments are included in the amount of the repairable damage, nor the extent as to which these payments may be, by way of recourse, recovered from the person who caused the damage, has not violated the principle of equality of persons. According to the petitioners, by means of the impugned legal regulation the property interests of the state and institutions implementing the constitutional social duty of the state are defended to a greater extent than those of the person who caused the damage.

1.4. The doubts regarding the compliance of Paragraphs 1 and 3 of Article 6.290 of the CC with the constitutional principle of a state under the rule of law (with the constitutional imperatives of legal certainty, legal clarity, legal security) virtually arise due to the fact that, under the official constitutional doctrine, legal regulation must be clear and harmonious and legal norms must be formulated precisely and may not contain any ambiguities. The vagueness and indeterminacy, as well as other deficiencies, of the legal regulation laid down in Paragraphs 1 and 3 of Article 6.290 of the CC are substantiated by the case-law formulated by the Supreme Court of Lithuania in the course of deciding cases concerning the application of the right of recourse of social insurance establishments. In the petition it is maintained that the aforesaid case-law is inconsistent and contradictory, since the regulation itself, which is entrenched in the law, does not establish any clear and unambiguous limits of application of the right of inclusion and the right of recourse, therefore, the amount of the delictual civil liability of the person who caused the damage may differ.

2. The petition (No. 1B-46/2010) of the Vilnius Regional Administrative Court, a petitioner, requesting to investigate whether Paragraph 1 of Article 6.290 of the CC, insofar as it does not establish any clear notion of social insurance payments payable in cases of damage to health or deprivation of life, is not in conflict with Paragraph 1 of Article 29, Paragraph 2 of Article 30 and Article 52 of the Constitution and the constitutional principle of a state under the rule of law, as well as whether Paragraph 3 of Article 6.290 of the CC, insofar as it does not establish any clear notion of social insurance establishments that have paid insurance payments, is not in conflict with Paragraph 1 of Article 29, Paragraph 2 of Article 30 and Article 52 of the Constitution and the constitutional principle of a state under the rule of law, is substantiated virtually by the same arguments as the petition requesting to investigate the compliance of Paragraph 1 of Article 6.290 of the CC, insofar as it does not establish any clear limits of inclusion of social insurance payments payable in cases of damage to health or deprivation of life in the amount of the repairable damage, and Paragraph 3 of Article 6.290 of the CC, insofar as it does not establish any clear extent of application of the right of recourse of social insurance establishments that have paid insurance payments to claim reimbursement for damage from the person who caused the damage, with the same provisions of the Constitution.The petition of the same petitioner requesting to investigate the compliance of Paragraph 1 of Article 6.1015 of the CC, Paragraph 10 of Article 19 of the Law on Compulsory Insurance Against Civil Liability of Holders of Vehicles (wording of 5 March 2004) and Item 55 of the Rules for Assessing Damage Caused in a Traffic Accident and Paying the Insurance Payment (hereinafter also referred to as the Rules), as approved by Government Resolution No. 795 “On the Approval of the Rules for Assessing Damage Caused in a Traffic Accident and Paying the Insurance Payment” (hereinafter also referred to as Government resolution No. 795 of 23 June 2004) (wording of 24 February 2008) of 23 June 2004, with the Constitution is substantiated by the following arguments.

2.1. The Statute of the Internal Service as approved by the Law on the Approval of the Statute of the Internal Service (hereinafter also referred to as the Statute of the Internal Service) consolidates the compulsory life and health insurance of officials with funds from the state budget for the entire period of their service against accidents while in service, accidents related with service and accidents on the way to or from service, i.e. it regulates the relations of compulsory insurance. According to the doctrine of insurance law, this is fixed-sum insurance, rather than loss insurance; therefore, the insurance payments under this insurance type are not based on the assessment and calculation of the amount of the damaged done in a concrete case and the expression thereof by a monetary equivalent. Thus, there is a ground to believe that in the case of fixed-sum insurance recourse is impossible and that in this case one should apply the analogy of law—Paragraph 1 of Article 6.1015 of the CC, which prescribes that subrogation does not apply and is not allowed in cases of insurance against accidents and illness. Thus, in the case of fixed-sum insurance the insurer does not acquire the right of subrogation against the person who caused the damage in the case of insurance against accidents and illness, whereas social insurance establishments, even in the case of fixed-sum insurance, are granted such a right by the Republic of Lithuania Law on State Social Insurance, the Republic of Lithuania Law on Social Insurance of Accidents at Work and Occupational Diseases and Paragraph 3 of Article 6.290 of the CC. The petitioner has had doubts whether in this way one does not legitimise a priority to defend the interests of state institutions, if compared to the interests of a private insurer, and whether the constitutional principle of equality of persons before the law is not violated where a counterclaim against the person liable for the damage is realised in the case of fixed-sum insurance against accidents and illness. The petitioner has also had doubts whether one does not violate the constitutional principle of a state under the rule of law, since the said legal regulation is not clear and harmonious, and it leads to internal contradiction of norms and principles of civil law.

2.2. The doubts regarding the compliance of Item 10 (wording of 5 March 2004) of Article 19 of the Law on Compulsory Insurance Against Civil Liability of Holders of Vehicles as well as of Item 55 of the Rules (wording of 13 February 2008), as approved by Government resolution No. 795 of 23 June 2004, with Paragraph 1 of Article 29, Paragraph 2 of Article 30 and Article 52 of the Constitution and the constitutional principle of a state under the rule of law, insofar as they do not prescribe any clear limits and extent of inclusion of social insurance payments payable in cases of damage to health or deprivation of life, as well as the funeral allowance, in the amount of the repairable damage and the type (property and/or non-property) of the repairable damage, are virtually substantiated by the same arguments as those regarding the compliance of Paragraph 1 of Article 6.290 of the CC with the same provisions of the Constitution. According to the Vilnius Regional Court, a petitioner, neither the Law on Compulsory Insurance Against Civil Liability of Holders of Vehicles, nor the Rules contain any provision as regards the inclusion of compensations payable under the Statute of the Internal Service in the amount of the repairable damage.

  1. The petition (No. 1B-6/2010) of the Kaunas Regional Court and the petitions of the Vilnius Regional Court (Nos. 1B-46/2010, 1B-71/2010 and 1B-23/2011), petitioners, requesting to investigate the compliance of Item 26 (wording of 23 December 2002) of the Conditions under Which Persons are Insured by State Funds and of Compensation Payment upon Their Injury or Loss of Life in the Line of Duty (hereinafter also referred to as the Conditions), as approved by Government Resolution No. 530 “On the Conditions under Which Persons are Insured by State Funds and of Compensation Payment upon Their Injury or Loss of Life in the Line of Duty” of 5 December 1991 (hereinafter also referred to as Government resolution No. 530 of 5 December 1991), with the Constitution, are substantiated by the following arguments.

3.1. Paragraph 2 of Article 30 of the Constitution provides that compensation for material and moral damage inflicted upon a person shall be established by law. The Statute of the Internal Service provides for the cases when officials are paid insurance payments and compensations related with the compulsory life and health insurance of officials against accidents while in service, however, the right of counterclaim for the establishment that has paid these payments and compensations has not been provided for. Paragraph 3 of Article 6.290 of the CC establishes the right of recourse of social insurance establishments. This provision is supplemented in special laws—the Law on State Social Insurance and the Law on Social Insurance of Accidents at Work and Occupational Diseases, however, neither under Paragraph 3 of Article 6.290 of the CC, nor under the said laws, the Police Department under the Ministry of the Interior of the Republic of Lithuania is not considered to be an establishment of social insurance and is not granted the aforementioned right. The right in question is provided for only in Item 26 of the Conditions, as approved by Government resolution No. 530 of 5 December 1991. Thus, the Government has interfered in the area of the legislator’s competence.

3.2. When the compensations established in the Statute of the Internal Service (Paragraphs 1 and 3 of Article 40) are paid to officials, the arising of the obligation to pay such payments is not related, as a result of a person’s injury or death, with the emergence of the delictual liability of the person who caused the damage. Thus, in this case the payments in question lose their function of compensating for damage and become punishment. This leads to a situation where part of the established damage is not based on the concretely calculated assessment of the amount of the inflicted damage, therefore, doubts arise as to whether such reimbursement for damage may be recognised as fair.

Without establishing the extent as to which the payments paid under the Statute of the Internal Service (Paragraphs 1 and 3 of Article 40) are included in the amount of the repairable damage, nor the extent as to which these payments may be, by way of recourse, recovered from the person who caused the damage, Item 26 of the Conditions raises doubts as regards the compliance of such legal regulation with Paragraph 2 of Article 30 of the Constitution.

3.3. The compensations paid to officials under the Statute of the Internal Service are not included in the amount of the repairable damage, since the payment of such compensations is not, under Paragraph 1 of Article 6.249 of the CC, to be recognised as damage, moreover, it is to be considered an additional social guarantee of officials, which is funded not from “Sodra”, but from the state budget. On the other hand, by transferring the constitutional duty of the state to provide social support onto  the person who caused the damage, the impugned legal regulation violates Article 52 of the Constitution as well as the principle of proportionality, as the aforesaid person is under an obligation to reimburse for more damage than actually done, where the compensations paid by the Police Department under the Ministry of the Interior, which are payable under the Statute of the Internal Service, are, pursuant to Paragraph 1 of Article 6.290 of the CC, included in the amount of the repairable damage (if these compensations are equated with payments paid by social insurance establishments), and, pursuant to Paragraph 3 of Article 6.290 of the CC, social insurance establishments that have paid the aforesaid payments, i.e. the Police Department under the Ministry of the Interior, if it is equated with such establishments, acquire the right of counterclaim against the person who caused the damage.

3.4. On the grounds that payments paid by social insurance establishments are, under Paragraph 1 of Article 6.290 of the CC, included in the amount of the repairable damage, whereas under Article 40 of the Statute of the Internal Service, the paid payments are not included in the amount of the repairable damage, also that, otherwise than in respect of establishments of state social insurance and the establishments that have paid insurance payments and compensations under the Statute of the Internal Service, neither the Statute of the Internal Service, nor any law grants the right of recourse to recover the said payments from the liable persons, doubts are expressed regarding the compliance of Item 26 of the Conditions with Paragraph 1 of Article 29 of the Constitution.

3.5. The doubts regarding the compliance of the impugned provision of Item 26 of the Conditions with the constitutional principle of a state under the rule of law are substantiated by the fact that “the content of the legal norms is not clear and harmonious, <...> such legal regulation leads to the internal contradiction of norms and principles of civil law”.

II

In the course of the preparation of the case for the Constitutional Court hearing written explanations were received from the representatives of the Seimas, a party concerned, who were Konstantas Ramelis, Julius Sabatauskas and Žilvinas Šilgalis, Members of the Seimas, and Daina Petrauskaitė, Head of the Civil Law Unit of the Legal Department of the Office of the Seimas, wherein it is maintained that the impugned Paragraphs 1 and 3 of Article 6.290 and Paragraph 1 of Article 6.1015 of the CC as well as Paragraph 10 of Article 19 of the Law on Compulsory Insurance Against Civil Liability of Holders of Vehicles (wording of 5 March 2004) are not in conflict with the Constitution.

  1. The position of the Member of the Seimas Ž. Šilgalis, a representative of the Seimas, a party concerned, is substantiated by the following arguments set forth by the Legal Department of the Office of the Seimas.

1.1. The impugned Paragraphs 1 and 3 of Article 6.290 of the CC are set forth in Section Three “Non-Contractual (Delictual) Liability” of Chapter XXII “Civil Liability” of Book 6 of the CC. The norms of CC in the process of their application are construed by taking account of the system and structure of the code (Paragraph 1 of Article 1.9 of the CC). Article 6.263 of the indicated chapter consolidates the main principle of delictual liability—full reimbursement for damage, stemming from the constitutional principle of compensation for damage enshrined in Paragraph 2 of Article 30 of the Constitution. This principle means that an accurate assessment is necessary in order the victim would be compensated as much as he has in reality lost. If the victim has received more than the amount of the losses sustained, this may be qualified as unjustified enrichment. When one is compensated for more than the amount of the damage actually done, civil liability is related not only with a compensatory function, but also with a punitive function, therefore, the constitutional principle of compensation for damage is violated.

1.2. While construing the principle of full reimbursement for damage, account should also be taken of the case-law of courts. In its ruling of 17 November 2008 in civil case No. 3K-7-496/2008 the Supreme Court of Lithuania held: “<...> due to various factors, for example, the implementation of the social function of the state while providing members of the public with necessary economic and social means, also the duration of the process of application of civil liability and, in certain cases, the lack of possibilities to reach its aims (where the defendant is insolvent), the inflicted damage may be compensated for not by means of the institute of civil liability, but by way of alternative means of damage compensation. However, when damage is reimbursed by alternative means of its compensation, the relationship between the alternative compensation system and civil liability still remains, since only the application of civil liability gives an opportunity to exert influence of property nature over the person who caused the damage. In such cases the right of recourse enables one to apply civil liability, as then the state or a state establishment may claim the paid sums from the person guilty of causing damage.”

1.3. The norms of Article 6.113 and Paragraph 1 of Article 6.280 of the CC should also be applied in establishing the extent of the right of recourse of social insurance establishments. Therefore, on the one hand, social insurance establishments have the right of claim against the person who caused the damage to all the social insurance payments paid to the victim as a result of damage to health or deprivation of life, except in cases where the indicated payments exceed the inflicted damage. On the other hand, if the amount of the damages sustained as a result of damage to health or deprivation of life is lower than the amount of the payments received by the person (victim) from social insurance establishments, one may not recover the difference of the indicated amounts from the person who caused the damage, as this would not be in line with the main, compensatory, function of civil liability and would violate the principle of full reimbursement for damage.

1.4. On the basis of the case-law of courts (the ruling of the Supreme Court of Lithuania of 7 June 2004 in civil case No. 3K-3-358/2004, ruling of 16 October 2007 in civil case No. 3K-3-400/2007, ruling of 11 January 2006 in civil case No. 3K-3-27/2006 and ruling of 17 November 2008 in civil case No. 3K-7-496/2008) a conclusion is drawn that only property damage is reimbursed from the funds of the State Social Insurance Fund and the Compulsory Health Insurance Fund. Therefore, the social insurance payments paid to the person from the funds of the State Social Insurance Fund and the Compulsory Health Insurance Fund should be included only in the amount of the property damage reimbursable to the person.

1.5 Statutory state servants are not covered by schemes of state social insurance of certain kinds, however, the rights established in Article 52 of the Constitution are guaranteed to them in special statutes regulating their service. The fact that payments are paid from the state budget does not change the aims and purpose of the granting and payment of these payments. The rules for establishing the amount of these payments are based on the methodologies for calculation of lost work income subject to compensation, which are entrenched in the laws regulating state social insurance. One-time and periodic payments (pensions for lost capacity to work, survivors’ and orphans’ pensions) the amount of which is related to the amount of work (service) income possessed (lost) by the person who was injured or lost his life, and the purpose of payment of which is to compensate for the lost income derived by the person from his work (service), are to be equated with payments identical to the ones paid from the State Social Insurance Fund. The said payments are to be included in the amount of the repairable property damage.

1.6. It is noted that the case-law of courts regarding the fact that the institute of delictual civil liability is based on the principle of full reimbursement for damage and that social insurance establishments have the right of recourse against the person who caused the damage to such an amount of the social insurance payments paid to the victim that has been paid to reimburse for damage, is consistent (the ruling of the Supreme Court of Lithuania of 27 November 2002 in civil case No. 3K-3-1331/2002, ruling of 12 May 2004 in civil case No. 3K-3-304/2004, ruling of 7 April 2006 in civil case No. 3K-7-166/2006, ruling of 16 October 2007 in civil case No. 3K-3-400/2007 and ruling of 17 November 2008 in civil case No. 3K-7-496/2008). The opinion of the courts has differed as to the following two questions: 1) whether all payments paid by social insurance establishments are to be viewed as reimbursement for damage under civil law, and specifically—as regards the purpose of the funeral allowance (as to whether it is social support or reimbursement for damage); 2) whether the right of recourse against the person who caused the damage is absolute.

A conclusion is drawn that the problems of application of law as regards the right of recourse of social insurance establishments and the extent thereof have been determined by the legal regulation established in the laws regulating social insurance. Therefore, the legal norms regulating the purpose of social insurance payments payable in cases of damage to health or deprivation of life (reimbursing for damage or compensating for any other losses) should be established in legal acts regulating state social insurance rather than in the Civil Code.

  1. The explanations of K. Ramelis, a Member of the Seimas, and D. Petrauskaitė, Head of the Civil Law Unit of the Legal Department of the Office of the Seimas, set forth the arguments similar to those in the explanations of the Member of the Seimas Ž. Šilgalis and present other explanations as well.

2.1. Pursuant to the official constitutional doctrine, under which, when performing his duty to adopt a law or laws that establish reimbursement for damage to the person, the legislator may, by using the discretion vested in him, choose and consolidate, in a law or laws, various forms of reimbursement for damage. The establishment of alternative forms of damage compensation in the event of an employee’s (official’s) injury or death at work (while performing service-related duties) not only is not in conflict with the Constitution, but thereby the legislator’s duty, entrenched in the Constitution, is implemented.

2.2. Alternative forms of damage compensation, when the state gets involved in the relations of reimbursement for damage, may be varied: compulsory social insurance, compulsory insurance against accidents, etc., when, in the manner prescribed by laws, the insured person is compensated for the damage from the insurance funds, or the person who has suffered damage is compensated for it from the state budget or a special fund. Whatever alternative damage compensation is named, its function is, pursuant to the principles of solidarity and/or protection of the public interest, to ensure the social security of certain groups of persons.

2.3. Delictual law regulates public relations emerging from unlawful acts, therefore, the person liable for causing damage is under an obligation to reimburse the inflected damage in full. Damage is calculated on the basis of the evidence proving the amount of the sustained damage, however, in social maintenance law the calculation of the amount of the inflicted damage is not directly related to the concretely sustained damage, but, in calculating the amount of compensation, one follows the methodology based on objective criteria—the income of the victim is taken into account. The subject matter of regulation, the aims and functions of delictual law, which is part of civil law, and the subject matter of regulation, the aims and functions of social maintenance law, differ; therefore, civil law should contain no legal norms regulating the relations of social maintenance. Civil law is applied to property relations within the area of social maintenance insofar as those relations are not regulated by norms of social maintenance law.

2.4. Social insurance establishments are establishments covering the administration of the types of social insurance established in Article 3 of the Law on State Social Insurance and whose rights and duties are prescribed in the laws regulating concrete types of social insurance. Under Paragraph 3 of Article 2 of the Law on Social Insurance of Accidents at Work and Occupational Diseases, this law does not apply to the persons who, in the manner prescribed by law, are insured with the state funds with the service-related accident insurance and/or whose professional activity is regulated by the legal acts providing for the payment of compensations if they are injured or lose their life in the line of duty. Thus, the legislator has established that the public relations analogous to those entrenched in the Law on Social Insurance of Accidents at Work and Occupational Diseases may also be regulated by other laws. One of such laws is the Statute of the Internal Service, which inter alia provides for the right of officials of the internal service system to receive compensations in the event of damage to the health or the death of an official or a cadet.

If only those establishments that administer social insurance payments of the social insurance types enumerated in Article 3 of the Law on State Social Insurance were considered to be social insurance establishments, other establishments paying the payments designated for the same purpose would have no right of recourse against persons who caused the damage. This would mean that a person who has committed a violation would not be held liable where damage is inflicted upon a statutory official. Such construction of the law would not be in line with the principles of civil law (those of equal rights, justice, proportionality, etc.), which one must follow while construing the Civil Code.

The definition of the notion of social insurance establishments is not a matter of regulation of the Civil Code; when applying norms of this code, the said notion is to be construed according to the general rules for construction of law, in particular, taking account of the legislator’s intentions.

2.5. Social insurance establishments and insurance companies engaged in private insurance, when providing insurance against accidents or diseases, must enjoy equal rights, among them the right to subrogation. The purpose of social maintenance law is to ensure, upon occurrence of a misfortune, the essential maintenance of the persons who are defended by it. When seeking to receive, upon occurrence of a misfortune, better maintenance than the social maintenance guaranteed by the state, persons may take care to secure such ends by additionally obtaining insurance against various risks. Thus, the social insurance system and private health insurance are not alternative systems.

One may not equate social insurance establishments with private insurance companies in the aspect impugned by the petitioner due to the following reasons:

– the institute of social insurance law is based on the principle of solidarity, whereas private insurance—on the principle of risk differentiation;

– the support under the schemes of social maintenance is, as a rule, provided for nearly all residents of the state, whereas the demand for services of private insurance depends upon persons who avoid risk;

– the system of social insurance is financed with compulsory contributions, the amount of which is set by the state, whereas private insurance companies calculate contributions by taking account of the insured risk.

2.6. The purpose of the Law on Compulsory Insurance Against Civil Liability of Holders of Vehicles is to establish the legal bases and principles for the functioning of the system of compulsory insurance against civil liability of holders of vehicles. This law regulates the relations of reimbursement for the damage sustained in a traffic accident insofar as this is necessary to ensure the proper functioning of the system of compulsory insurance against civil liability of holders of vehicles. Issues relating to inclusion of social insurance payments payable in cases of damage to health or deprivation of life, as well as of the funeral allowance, in the amount of the repairable damage are not and should not be a subject matter of regulation of the Law on Compulsory Insurance Against Civil Liability of Holders of Vehicles.

  1. The explanations of K. Ramelis and J. Sabatauskas, Members of the Seimas, and D. Petrauskaitė, Head of the Civil Law Unit of the Legal Department of the Office of the Seimas, set forth the arguments similar to those in the explanations of Ž. Šilgalis, a Member of the Seimas, and those in the previous explanations of K. Ramelis, a Member of the Seimas, and D. Petrauskaitė, Head of the Civil Law Unit of the Legal Department of the Office of the Seimas, and draw a conclusion that the issues raised by the petitioner regarding the compliance of the provisions of Paragraphs 1 and 3 of Article 6.290 of the CC with the Constitution are actually the issues of proper application of law and that these issues can be decided by applying, at the same time, the legal norms of delicts and those of social maintenance, while clearly separating the subject matter of their regulation and properly construing them (without violating any principles of law), and, if necessary—also by improving the laws that regulate social maintenance.

III

In the course of the preparation of the case for the Constitutional Court hearing written explanations were received from the representatives of the Government, a party concerned, who were Juliana Ostrouch, Head of the Division of Legal Representation of the Ministry of Justice, Irena Šambaraitė, Head of the Law Division of the Ministry of Social Security and Labour, and Daiva Kemeklytė, chief specialist of the Insurance and Special Financial Activities Division of the Financial Markets Policy Department of the Ministry of Finance. In the explanations it is maintained that the impugned regulation, which is established in Item 26 (wording of 23 December 2002) of the Conditions, as approved by Government resolution No. 530 of 5 December 1991, and in Item 55 of the Rules, as approved by Government resolution No. 795 (wording of 24 February 2008) of 23 June 2004, is not in conflict with the Constitution. Such a position is substantiated by the following arguments.

  1. J. Ostrouch, Head of the Division of Legal Representation of the Ministry of Justice, and I. Šambaraitė, Head of the Law Division of the Ministry of Social Security and Labour, provided the following explanations.

1.1. Paragraph 2 of Article 30 of the Constitution imperatively requires establishing, by law, such legal regulation that the person, upon whom damage was inflicted by unlawful actions, could, in all cases, claim fair reimbursement for the damage and receive it. It does not follow from the Constitution that it would be possible to establish some exceptions to reimbursement for damage (Constitutional Court ruling of 19 August 2006). Paragraph 1 of Article 49 of the Statute of the Internal Service, which has the power of law, establishes the compulsory life and health insurance of officials with the funds from the state budget for the entire period of their service against accidents while in service or accidents related with service, whereas Paragraph 3 of the same article provides that the procedure for the health and life insurance of officials and the recognition of insured events, as well as the procedure for the establishment of the amount of insurance payments and the payment thereof, is set by the Government. Such a procedure is established in the Conditions approved by Government resolution No. 530 of 5 December 1991. Such regulation is essentially in line with the principle of lawfulness of law-making, under which it is required that state institutions, while drafting legal acts, would not exceed their competence, would follow the manner (procedures) of adopting and passing legal acts as established for each type of legal acts and observe the subordination in accordance with legal power.

1.2. Although under the Statute of the Internal Service an establishment that has paid insurance payments and compensations is not granted the right of counterclaim, such a right is based on Item 26 of the Conditions. The said item provides that establishments that have paid insurance sums and compensations acquire, in the manner prescribed by the Civil Code, i.e. a law, the right of claim (recourse) against the legal and natural persons who caused the damage. Such a reference to the law presupposes the position of the legislator of the said legal act that where the insured meets all the conditions indicated in that legal act, i.e. he is an official of the corresponding area to whom an indicated insured event occurs and who is paid the corresponding compensation, then precisely the legal relations of social insurance emerge, which in their turn create an opportunity to implement, in the manner prescribed by law, i.e. the Civil Code, the right of recourse.

1.3. Item 2.2 of Government resolution No. 530 of 5 December 1991 prescribes that state institutions in which the insured persons serve (perform duties) or served (performed duties) must, within 10 days of the notification from a territorial office of the State Social Insurance Fund Board about a payable insurance sum, transfer into the account of the budget of the State Social Insurance Fund Board the sum equal to 3 percent of the payable insurance sum from the funds earmarked in their estimates of expenditures for that purpose. This provision confirms that the aforementioned Government resolution and the Conditions approved by that resolution regulate precisely the legal relations of social insurance, i.e. in this respect, police establishments do indeed discharge the function of an insurance establishment, therefore, they are subject to the provisions of Paragraph 3 of Article 6.290 of the CC, which regulate the implementation of the right of recourse.

  1. D. Kemeklytė, chief specialist of the Insurance and Special Financial Activities Division of the Financial Markets Policy Department of the Ministry of Finance, provided the following explanations.

2.1. An insurer who has insured the civil liability of a holder of a vehicle reimburses for the damage insofar as the aggrieved third party would have to be reimbursed for that damage by the causer of the traffic accident. In order to ensure the implementation of the principle of full reimbursement for damage and restore the situation that existed before the infliction of damage, though to provide no opportunity to become groundlessly enriched, the insurance payment may not be larger than the losses sustained by the aggrieved third party, the liability for which falls on the liable insurance payer. These principles are also consolidated by the Law on the Compulsory Insurance Against Civil Liability of Holders of Vehicles and the Rules, as approved by Government resolution No. 795 of 23 June 2004, specifying the provisions of that law in more detail. Under the said law and the Rules, the amount of the repairable damage is set by the insurer on the basis of the submitted documents proving the circumstances, fact and amount of the damage. Thus, by means of such regulation the principle of reimbursement for the damage actually sustained by the victim in reality and proved by documents, is consolidated. The fact that, under the impugned legal regulation, social insurance payments payable in cases of damage to health or deprivation of life, as well as the funeral allowance payable in the cases provided for by laws, are included in the amount of the repairable damage essentially allows to avoid double reimbursement for the damage inflicted on the victim and a possible gain of profit from that damage.

2.2. If the recovery of the social insurance payments or compensations that bear no features of reimbursement for the actual damage from the person liable for the damage is legitimised, compulsory insurance against civil liability of holders of vehicles would not fulfil its function of insuring civil liability against infliction of damage. It needs to be noted that if an insurance company did not fulfil its duty to pay the insurance payment, social insurance payments and other compensations would have to be paid by the person who caused the damage even in the case where the actual damage has already been reimbursed and the inflicted damage does not exceed the established insurance sum.

IV

In the course of the preparation of the case for the Constitutional Court hearing written explanations were received from Tomas Vaitkevičius, Vice-minister of Justice of the Republic of Lithuania, and Algimantas Križinauskas, Director of the Motor Insurers’ Bureau of the Republic of Lithuania.

V

At the Constitutional Court hearing, the representatives of the Seimas, a party concerned, who were Ž. Šilgalis, a Member of the Seimas, and D. Petrauskaitė, Head of the Civil Law Unit of the Legal Department of the Office of the Seimas, virtually reiterated the arguments set forth in the written explanations and answered the questions of the Justices of the Constitutional Court.

The representatives of the Government, a party concerned, who were J. Ostrouch, Head of the Division of Legal Representation of the Ministry of Justice, G. Vizbaraitė, Deputy Head of the Law Division of the Ministry of Social Security and Labour, J. Miskis, Deputy Head of the Law Division of the State Social Insurance Fund Board under the Ministry of Social Security and Labour, and J. Burlėgienė, chief specialist of the Insurance and Special Financial Activities Division of the Financial Markets Policy Department of the Ministry of Finance, agreed with the written explanations of the government representative J. Ostrouch and with those of the former government representatives I. Šambaraitė and D. Kemeklytė and answered the questions of the Justices of the Constitutional Court.

The Constitutional Court

holds that:

I

  1. The Vilnius Regional Court, a petitioner (petition No. 1B-46/2010), inter alia requests investigation into whether Paragraph 1 of Article 6.1015 of the Civil Code, insofar as it prohibits the insurer’s subrogation against the person who caused the damage in the case of insurance against accidents, is not in conflict with Paragraph 1 of Article 29 of the Constitution and the constitutional principle of a state under the rule of law.

The petitioner indicates that, under Paragraph 1 of Article 6.1015 of the CC, the insurer does not acquire the right of subrogation against the person who caused the damage in cases of insurance against accidents and illness, whereas such a right is established to a social insurance establishment in Paragraph 3 of Article 6.290 of the CC, therefore, doubts have been raised by the petitioner as to whether such legal regulation does not legitimise the priority over the defence of the interests of a state institution and thereby does not violate the constitutional principles of equality of persons and the state under the rule of law.

  1. Paragraph 1 of Article 6.1015 “The Assignment of the Rights of the Insurance Payer to Reimbursement for the Damage onto the Insurer (Subrogation)” of the CC prescribes: “Unless the insurance agreement provides otherwise, the right to claim the paid amounts from the person liable for the inflicted damage shall pass to the insurer who has paid the insurance payment. If the damage has been made by malice, the right of claim shall pass to the insurer notwithstanding the fact that the subrogation is prohibited by the insurance agreement. Subrogation shall not apply in the case of insurance against accidents and illness, civil liability insurance, as well as in other cases prescribed by laws.”

Thus, Paragraph 1 of Article 6.1015 of the CC inter alia provides for the cases when subrogation (the assignment of the rights of the insurance payer to reimbursement for the damage onto the insurer) is not applied, i.e. the right to claim the paid sums from the person liable for the inflicted damage does not pass to the insurer who has paid the insurance payment.

  1. It needs to be noted that the petitioner was considering the civil case subsequent to the action for damages brought by the Police Department under the Ministry of the Interior and the Klaipėda County Chief Police Commissioner’s Office, the plaintiffs, wherein it was requested that the court award the sums (to be paid by the defendants) that had been paid under Article 40 of the Statute of the Internal Service.

Article 40 “Compensations in the Event of the Death or Health Disorders of an Official or a Cadet” (wording of 23 December 2008) of the Statute of the Internal Service prescribes:

“1. When an official loses his life during the performance of his service-related duties, where the performance of service-related duties was associated with an increased danger or increased risk to the official’s life or health, also in the cases when the cause of the official’s death is related to the performance of his service-related duties, where the performance of service-related duties was associated with an increased danger or increased risk to the official’s life or health, as well as in the cases when an official is killed as a result of the performance of service-related duties or due to the status of an official, irrespective of the insurance payments paid to his family—the children (adopted children, also children who were born after the official’s death), until they reach the age of 18, as well as the children (adopted children) who are full-time students of educational establishments registered in the prescribed manner, until they reach the age of 24, the spouse, cohabitant (partner), father or mother—and the persons incapable of working who were maintained by the one who has lost his life or were entitled to his maintenance on the day of his death, shall, within one year after the official’s death, be paid in equal parts a single compensation in the amount of 120 monthly average work remunerations of the official.

  1. An official or cadet who has lost his life shall be buried with the state funds, or the persons close to the deceased shall be paid the monetary compensation in the amount of 40 minimum standards of living to cover the expenses related to burial. The expenses related to the transfer to Lithuania of the body of an official or a cadet who lost his life abroad while performing service-related duties or during the professional training shall, in the manner prescribed by legal acts, be covered by the State. The particulars of the burial-related expenses covered by the State shall be set by the Government or an institution authorised by it.
  2. An official who has been injured, has injured himself or whose health has been impaired while performing service-related duties, where the performance of service-related duties was associated with an increased danger or increased risk to the official’s life or health, or when his injury, self-injury or health impairment are related to the performance of his service-related duties, where the performance of service-related duties was associated with an increased danger or increased risk to the official’s life or health, or where his health has been impaired as a result of the performance of service-related duties or due to the status of an official, shall be paid the compensation in the amount of his average monthly remuneration of the period from one month to five years (from 1 to 60 months). The following compensations shall be established:

1) for persons who have lost 75-100 percent of their capacity to work as a result of injury or self-injury—in the amount of 60 average monthly work remunerations;

2) for persons who have lost 60-70 percent of their capacity to work as a result of injury or self-injury—in the amount of 48 average monthly work remunerations;

3) for persons who have lost 45-55 percent of their capacity to work as a result of injury or self-injury—in the amount of 36 average monthly work remunerations;

4) for persons who have lost up to 40 percent of their capacity to work as a result of injury or self-injury and who, due to this, have been recognised as not suitable for the internal service—in the amount of 30 average monthly work remunerations;

5) in the event of serious health impairment—in the amount of 24 average monthly work remunerations;

6) in the event of moderately serious health impairment—in the amount of 18 average monthly work remunerations;

7) in the event of light health impairment—in the amount of 1 to 12 average monthly work remunerations.

  1. In cases of the death, injury or self-injury of a cadet or his health impairment sustained during the professional or introductory training compensations shall be paid under the conditions and procedure laid down in Paragraphs 1 and 3 of this Article, except that the amount of compensations shall be calculated according to the amount of a minimum monthly remuneration, as set by the Government, valid at the time of the accident.
  2. Whether the death, self-injury, injury or health impairment of an official is related to the performance of service-related duties or the status of an official, and that of a cadet—to the professional or introductory training, also whether the performance of service-related duties and the professional or introductory training are associated with an increased danger or increased risk to the life or health of an official or a cadet, as well as the amount of the compensation in the case of light health impairment, shall be established in the manner prescribed by the Minister of the Interior.
  3. The compensations referred to in this Article shall not be paid if:

1) an official or a cadet lost his life, injured himself or was injured or his health was impaired when committing an intentional crime or intentional criminal offence;

2) the cause of the official’s death, injury, self-injury or health impairment was the intoxication with alcohol, drugs, psychotropic substances or other toxic substances, not related to the performance of service-related duties, and the cause of the cadet’s death, injury, self-injury or health impairment was not related to his professional or introductory training;

3) an official or a cadet committed suicide, attempted to commit suicide or injured himself intentionally;

4) an official or a cadet lost his life, injured himself, was injured or sustained health impairment during a traffic accident, where he drove a vehicle without having the right to drive it or allowed to drive it to a person intoxicated with alcohol, drugs, psychotropic substances or other toxic substances or who did not have the right to drive it;

5) the official’s or cadet’s health was impaired or he died of the illness and this is not related to the performance of service-related duties or the professional or introductory training;

6) the cause of the official’s or cadet’s death or self-injury was a deliberate violation of safety rules, which was not associated with service-related necessity.

  1. Disputes over refusal to pay compensation shall be settled in the manner prescribed by legal acts.
  2. The degree of severity of the health impairment of an official or a cadet shall be determined, in the manner prescribed by the Government, by the Central Medical Expert Examination Commission pursuant to the List of Serious, Moderately Serious and Light Injuries, Traumas and Other Types of Health Impairment of Officials or Cadets of the Internal Service System, which is approved by the Government.”

Thus, the civil case considered by the petitioner deals with the judicial award of compensations, paid in cases of the death and health impairment of police officials who were performing service-related duties, from the defendants.

  1. It has been mentioned that Paragraph 1 of Article 6.1015 of the CC inter alia provides for the cases when subrogation (the assignment of the rights of the insurance payer to compensation for the damage onto the insurer) is not applied, i.e. the right to claim the paid sums from the person liable for the inflicted damage does not pass to the insurer who has paid the insurance payment.

The civil case considered by the petitioner does not deal with the judicial awarding of insurance payments, therefore, the petitioner has no ground to apply in the aforesaid civil case under its consideration the legal regulation established in Paragraph 1 of Article 6.1015 of the CC.

Consequently, in the said civil case the Vilnius Regional Court, a petitioner, adopted the ruling to suspend the consideration of the case and apply to the Constitutional Court regarding inter alia Paragraph 1 of Article 6.1015 of the CC, which should not be applied in that civil case under its consideration.

It also needs to be noted that the petitioner does not indicate in the ruling, whereby it applied to the Constitutional Court, that Paragraph 1 of Article 6.1015 of the CC must be applied in the civil case under its consideration and substantiates its doubts regarding the possible conflict of the said paragraph with the Constitution by referring to the differences of the legal regulation laid down in Paragraph 1 of Article 6.1015 and Paragraph 3 of Article 6.290 of the CC.

  1. Under the Constitution and the Law on the Constitutional Court, no court has locus standi to apply to the Constitutional Court with a petition requesting to investigate whether such a law (part thereof) or another legal act (part thereof) that should not (could not) be applied in the case considered by the court is not in conflict with the Constitution (Constitutional Court decisions of 22 May 2007, 27 June 2007 and 5 July 2007, ruling of 24 October 2007, decision of 29 October 2009, rulings of 29 November 2010 and 2 September 2011).

Under Item 1 of Paragraph 1 of Article 69 of the Law on the Constitutional Court, by a decision, the Constitutional Court shall refuse to consider petitions to investigate the compliance of a legal act with the Constitution, if the petition was filed by an institution or person who does not have the right to apply to the Constitutional Court, whereas under Paragraph 3 of Article 69 of the Law on the Constitutional Court, in the event that the grounds for refusal to consider a petition have been established after the commencement of the investigation of the case during the hearing of the Constitutional Court, a decision to dismiss the case shall be adopted.

  1. Taking account of the arguments set forth, the part of the constitutional justice case subsequent to the petition (No. 1B-46/2010) of the Vilnius Regional Court, a petitioner, requesting to investigate whether Paragraph 1 of Article 6.1015 of the CC, insofar as it prohibits the insurer’s subrogation against the person who caused the damage in the case of insurance against accidents, is not in conflict with Paragraph 1 of Article 29 of the Constitution and the constitutional principle of a state under the rule of law, is to be dismissed.

II

On the compliance of Paragraph 1 of Article 6.290 of the Civil Code with Paragraph 1 of Article 29, Paragraph 2 of Article 30 and Article 52 of the Constitution and the constitutional principle of a state under the rule of law.

  1. It has been mentioned that the petitioners inter alia request investigation into whether Paragraph 1 of Article 6.290 of the CC, insofar as, according to the petitioners, it does not establish any clear limits of inclusion of social insurance payments payable in cases of damage to health or deprivation of life in the amount of the repairable damage, is not in conflict with Paragraph 1 of Article 29, Paragraph 2 of Article 30 and Article 52 of the Constitution and the constitutional principle of a state under the rule of law.
  2. In the opinion of the petitioners, under Paragraph 1 of Article 6.290 of the CC, all social insurance payments are included in the amount of the repairable damage and, under Paragraph 3 of Article 6.290, social insurance establishments that have paid insurance payments acquire the right of recourse against the person who caused the damage, except in cases where insurance contributions have been paid on behalf of the victim by the person who caused the damage, therefore, doubts have been raised by the petitioners whether, having not established in Paragraph 1 of Article 6.290 of the CC any clear limits of inclusion of social insurance payments payable in cases of damage to health or deprivation of life in the amount of the repairable damage, i.e. having not established into the reimbursement of what type of damage—property or non-property—the said payments may be included, nor the extent as to which these payments may be, by way of recourse, recovered from the person who caused the damage, the legislator has not deviated from the principles of the institute of reimbursement for damage, which is enshrined in Paragraph 2 of Article 30 of the Constitution, has not transferred the duty of the state to provide social support, which is entrenched in Article 52 of the Constitution, onto the person who caused the damage and has not violated the constitutional principles of equality of persons and proportionality.
  3. Paragraph 1 of Article 6.290 “Inclusion of Social Insurance Payments” of the CC prescribes: “Social insurance payments payable in cases of damage to health or deprivation of life shall be included in the amount of the repairable damage.”
  4. The provision “social insurance payments payable in cases of damage to health or deprivation of life” of Paragraph 1 of Article 6.290 of the CC is to be construed in the context of the laws regulating relations of social insurance.

4.1. The bases for state social insurance relations—the types of state social insurance, the categories of persons covered by state social insurance, the principles and structure of the state social insurance management system, as well as the rights, duties and responsibility of entities thereof—are laid down by the Law on State Social Insurance (Paragraph 1 of Article 1 of the said law (wording of 4 November 2004)).

Paragraph 13 of Article 2 “The Main Definitions Used in This Law” of the Law on State Social Insurance (wording of 4 November 2004) prescribes: “‘State social insurance’ (hereinafter referred to as ‘social insurance’) shall mean a part of the system of social security whose measures are intended to compensate, in full or in part, for the income derived from work and lost by insured persons and, in the cases specified by laws, their family members as a result of insured events or to cover additional expenses”; Paragraph 11 of this article prescribes: “‘State social insurance payments’ (hereinafter referred to as ‘social insurance payments’) shall mean the social insurance payments specified by laws to which the insured persons and other natural persons specified by laws become entitled in the event of an insured event”; Article 11 “ Social Insurance Payments” of this law prescribes: “‘Social insurance payments’ shall mean the payments provided for in the Law on State Social Insurance Pensions, the Law on Sickness and Maternity Social Insurance, the Law on Social Insurance of Accidents at Work and Occupational Diseases and the Law on Unemployment Social Insurance.”

4.2. Under the Law on State Social Insurance Pensions, the old-age pension, pension of lost capacity to work and the survivor’s and orphan’s pension may be awarded and paid (Paragraph 1 of Article 4 of the law (wording of 19 May 2005)).

4.3. Under the Republic of Lithuania Law on Sickness and Maternity Social Insurance, sickness, vocational rehabilitation, maternity, paternity and maternity (paternity) social insurance pensions are awarded and paid (Paragraph 1 (wording of 8 June 2006) of Article 5 of the law).

4.4. Under the Law on Social Insurance of Accidents at Work and Occupational Diseases, an insured person who, as a result of an insured event, has partially or totally lost his capacity to work, is paid from the funds of the budget of the State Social Insurance Fund allocated for social insurance against accidents at work the following payments: a benefit for illness resulting from an accident at work, an accident on the way to/from work or an occupational disease, a lump-sum compensation for lost capacity to work, a periodic compensation for lost capacity to work (Paragraph 1 of Article 11 of the said law (wording of 11 November 2003)); in the event of the death of an insured person as a result of an insured event, a lump-sum insurance payment is paid in equal amounts to his family members (Paragraph 2 of Article 11 of the said law (wording of 11 November 2003)); in the event of the death of an insured person as a result of an insured event, a periodic insurance payment is paid in equal amounts to his family members (Paragraph 3 of Article 11 of the said law (wording of 11 November 2003)).

4.5. Under the Republic of Lithuania Law on Unemployment Social Insurance, the unemployment insurance payment is awarded and paid (Chapter Two of the said law (wording of 16 December 2003 with subsequent amendments and supplements)).

4.6. Thus, the notion of social insurance payments is disclosed in the Law on State Social Insurance, and the “social insurance payments” indicated in Paragraph 1 of Article 6.290 of the CC are the social insurance payments provided for in the Law on State Social Insurance Pensions, the Law on Sickness and Maternity Social Insurance, the Law on Social Insurance of Accidents at Work and Occupational Diseases and the Law on Unemployment Social Insurance.

4.7. Under Paragraph 1 of Article 6.290 of the CC, not all social insurance payments are included in the amount of the repairable damage, but only the payments that are payable in cases of damage to health or deprivation of life.

4.7.1. Social insurance payments payable in cases of damage to health or deprivation of life are provided for inter alia in the Law on Social Insurance of Accidents at Work and Occupational Diseases. It has been mentioned that, under this law, an insured person who, as a result of an insured event, has partially or totally lost his capacity to work, is paid the following payments from the funds of the budget of the State Social Insurance Fund allocated for social insurance against accidents at work: a benefit for illness resulting from an accident at work, an accident on the way to/from work or an occupational disease, a lump-sum compensation for lost capacity to work, a periodic compensation for lost capacity to work (Paragraph 1 of Article 11 of the said law (wording of 11 November 2003)); in the event of the death of an insured person as a result of an insured event, a lump-sum insurance payment is paid in equal amounts to his family members (Paragraph 2 of Article 11 of the said law (wording of 11 November 2003)); in the event of the death of an insured person as a result of an insured event, a periodic insurance payment is paid in equal amounts to his family members (Paragraph 3 of Article 11 of the said law (wording of 11 November 2003)). In the context of the constitutional justice case at issue one needs to mention the following provisions of the Law on Social Insurance of Accidents at Work and Occupational Diseases (wording of 11 November 2003):

– “In certain cases stipulated by this Law, social insurance against accidents at work shall compensate persons insured by this type of social insurance for the loss of income incurred due to insured events (accidents at work, accidents on the way to/from work, or occupational diseases), and if they die because of the insured events—shall compensate their family members” (Paragraph 1 of Article 2);

– “The insured having become temporarily incapable of working as a result of an insured event <...> shall be paid a sickness benefit in the amount of 100 percent of the compensatory salary applied for the calculation of sickness benefits. The benefit shall be paid for working time days according to the person’s work (shift) schedule” (Article 15 (wording of 14 November 2008));

– “Compensatory salary for sickness benefits shall be calculated pursuant to the procedure laid down by the Regulations of the Benefits of the Social Insurance of Accidents at Work and Occupational Diseases, according to the insured person’s insured income received during three consecutive calendar months preceding the calendar month before the month in which temporary incapacity to work was established” (Paragraph 1 (wording of 22 December 2009) of Article 13);

– “Sickness benefit shall be paid for the whole period, which is confirmed by a certificate of incapacity to work issued in a prescribed manner, from the first day of temporary incapacity to work until the day of recovery of capacity to work or the day of the establishment of a level of capacity to work, as well as for the period of medical treatment in a healthcare establishment providing orthopaedic and (or) prosthesis services. In the case when the DCWEO establishes the need for vocational rehabilitation services, a sickness benefit shall be paid until the first day of participation in the vocational rehabilitation programme” (Paragraph 1 (wording of 19 May 2005) of Article 14);

– “In the event of an injury at work, injury on the way to/from work or contraction of an occupational disease, sickness benefits shall be paid from the first day of temporary incapacity to work from the funds of the budget of the State Social Insurance Fund allocated for social insurance against accidents at work” (Article 16);

– “If the victim has temporarily lost up to 20 percent of capacity to work as a result of an insured event, he shall be paid a lump-sum compensation for lost capacity to work, amounting to 10 percent of his 24-month compensatory salary applied for the calculation of a lump-sum compensation” (Paragraph 1 of Article 19);

– “If the victim has temporarily lost over 20 but less than 30 percent of capacity to work as a result of an insured event, he shall be paid a lump-sum compensation for lost capacity to work, amounting to 20 percent of his 24-month compensatory salary applied for the calculation of a lump-sum compensation” (Paragraph 2 of Article 19);

– “If unlimited incapacity to work is established for the victim, as referred to in Paragraphs 1 and 2 of this Article, a lump-sum compensation for lost capacity to work shall be three times larger than that indicated in Paragraph 1 or 2 of this Article, respectively” (Paragraph 3 of Article 19);

– “A monthly compensatory salary for a lump-sum compensation shall be calculated in accordance with the procedure laid down in the Regulations of Payments of Social Insurance of Accidents at Work and Occupational Diseases, according to the victim’s insured income received during twelve consecutive calendar months before the calendar month preceding the month in which an accident at work, an accident on the way to/from work or an occupational disease was established” (Paragraph 4 (wording of 22 December 2009) of Article 19);

– “A monthly compensatory salary for the calculation of a lump-sum compensation may not be less than one-fourth of the insured income of the current year, valid on the day of the establishment of an accident at work, an accident on the way to/from work or an occupational disease, and may not exceed the sum equal to three and a half times of the amount of the insured income” (Paragraph 5 of Article 19);

– “Should it be determined that the victim has lost 30 or more percent of capacity to work as a result of an insured event, he shall be paid periodic compensations for lost capacity to work” (Paragraph 1 of Article 20);

– “Should the insured die as a result of an accident at work, an accident on the way to/from work or an acute occupational disease, which are recognised as insured events, the right to periodic insurance payments shall belong to the persons with incapacity to work who had been maintained by the deceased or, on the day of his death, had the right to be maintained by him, also to the child (children) of the deceased born not later than 300 days after his death. The right to periodic insurance payments shall also belong to the children (adopted children) of the deceased who had been maintained by the deceased or have acquired the right to be maintained by him after the day of his death” (Paragraph 1 of Article 26 (wording of 8 June 2006));

– “An insurance payment that is equivalent to the periodic compensation for lost capacity to work (Article 20 of this Law) divided by the number of the persons indicated in Paragraph 1 of this Article increased by one person shall be paid monthly to the persons established in Paragraph 1 of this Article” (Paragraph 2 of Article 26);

– “When the insured dies as a result of an accident at work, an accident on the way to/from work or an acute occupational disease, which are recognised as insured events, the family of the deceased shall be paid a lump-sum insurance payment equivalent to 100 times of the amount of the insured income of the current year valid in the month of the death of the insured as a result of the accident at work, the accident on the way to/from work or the acute occupational disease. This payment shall be paid in equal amounts to each member of the family of the deceased” (Paragraph 1 of Article 27).

It needs to be mentioned that, under, Paragraph 1 of Article 16 of the Law on State Social Insurance Pensions (wording of 19 May 2005), the insured income of the current year is, at least once per year, on the recommendation of the State Social Insurance Fund Council, approved by the Government, who, then, establishes the beginning of the application of this income; the insured income of the current year is calculated according to the methods approved by the State Social Insurance Fund Council, taking into account the revenue and expenditure of the budget of the State Social Insurance Fund of the respective year or of a respective period of the year.

According to the legal regulation laid down in the quoted provisions, the payments provided for in the Law on Social Insurance of Accidents at Work and Occupational Diseases are designated to compensate persons insured by this type of social insurance for the loss of income incurred as a result of accidents at work, accidents on the way to/from work or occupational diseases, and in cases where the said persons die as a result of the insured events—to compensate their family members; the said payments are calculated under the procedure established in the Law on Social Insurance of Accidents at Work and Occupational Diseases and are paid from the funds of the budget of the State Social Insurance Fund allocated for social insurance against accidents at work.

4.7.2. State social insurance payments payable in cases of damage to health or deprivation of life are also provided for in other laws that regulate relations of social insurance.

Paragraph 2 of Article 5 (wording of 8 June 2006) of the Law on Sickness and Maternity Social Insurance provides that sickness benefits are granted inter alia to the insured persons who have become temporarily incapable of working as a result of illness or trauma and who, therefore, have lost income from work.

Paragraph 1 of Article 28 (wording of 20 October 2008) of the Law on State Social Insurance Pensions provides that the persons who, in accordance with the procedure laid down by the Law on the Social Integration of the Disabled, have been established a level of capacity to work and who are rated as incapable or partially capable of working are entitled to the state social insurance pension of lost capacity to work; Paragraph 1 (wording of 8 December 2009) of Article 38 of this law provides that the right to receive the orphan’s pension is granted to the deceased person’s children and adopted children under 18 years of age as well as older ones where they had been recognised as incapacitated (until 1 July 2005—disabled) before reaching 18 years of age and where they have been incapable or partially capable of working (disabled) ever since reaching 18 years of age, also the deceased person’s children and adopted children who, prior to 1 July 2005, had been recognised as being disabled since childhood after the day of reaching 18 years of age, however, not later than the day of reaching 24 years of age, and where they have been incapable or partially capable of working (disabled) ever since the day of their recognition as disabled.

4.8. Thus, “social insurance payments payable in cases of damage to health and deprivation of life”, indicated in Paragraph 1 of Article 6.290 of the CC, are the payments provided for in the laws regulating relations of social insurance (inter alia the Law on Social Insurance of Accidents at Work and Occupational Diseases, the Law on Sickness and Maternity Social Insurance, the Law on State Social Insurance Pensions), which are paid to an insured person or his family members in cases of damage to the health or deprivation of the life of the insured person, inter alia the benefit for illness as a result of an accident at work, accident on the way to/from work or an occupational disease, a lump-sum compensation for lost capacity to work, a periodic compensation for lost capacity to work, a lump-sum insurance payment in the event of the death of an insured person as a result of an insured event, a periodic insurance payment in the event of the death of an insured person as a result of an insured event, sickness benefit, orphan’s pension.

  1. The legal regulation laid down in Paragraph 1 of Article 6.290 of the CC is to be construed in the context of the other norms of the CC establishing the fundamental elements of reimbursement for the inflicted damage.

5.1. In the context of the constitutional justice case at issue the following provisions of the CC are to be mentioned:

– “Damage shall include the amount of the loss or damage of property sustained by a person and the expenses incurred (direct damages) as well as the incomes of which he has been deprived, i.e. the incomes he would have received if unlawful actions had not been committed. Damage expressed in monetary terms shall constitute damages. Where the amount of damages cannot be proved by the party with precision, it shall be assessed by a court” (Paragraph 1 of Article 6.249);

– “The damages incurred must be compensated in full, except in cases when limited liability is established by laws or a contract” (Paragraph 1 of Article 6.251);

– “Any bodily or property damage caused to another person and, in the cases established by the law, non-property damage must be fully compensated by the liable person” (Paragraph 2 of Article 6.263);

– “In the cases established by laws, a person shall also be liable to compensation for damage caused by the actions of another person or by the action of things in his custody” (Paragraph 3 of Article 6.263);

– “The court, in awarding compensation for damage and taking into consideration the circumstances of the case, shall obligate a person liable for causing that damage to compensate for it in kind (to deliver a thing equivalent in kind and quality, to repair the damaged thing, etc.) or to compensate the caused damages in full” (Paragraph 1 of Article 6.281);

– “If the victim’s gross negligence contributed to causing or increasing damage, depending on the degree of the victim’s fault (and on the degree of the fault of the person who caused the damage, in the event of the existence of such fault), the extent of the compensation can be reduced or the claim for the compensation dismissed unless the laws provide for otherwise” (Paragraph 1 of Article 6.282);

– “The fault of the victim shall not be taken into consideration in recovering compensation for the damage caused as a result of deprivation of the life of the breadwinner and in compensating the costs of funeral expenses” (Paragraph 2 of Article 6.282);

– “The court may, taking into consideration a difficult property situation of the person who caused the damage, reduce the amount of the repairable damage, except in cases when the damage was caused intentionally” (Paragraph 3 of Article 6.282).

5.2. Under the legal regulation laid down in the quoted provisions of the Civil Code, the direct damages and the deprived income must be reimbursed in full by the person liable for causing damage—the person who caused the damage or, in the cases established by laws, the person liable to reimbursement for damage caused by actions of another person; the amount of the repairable damage may be reduced where the victim’s gross negligence, which contributed to causing or increasing damage, is established, as well as where an account is taken of a difficult property situation of the person who caused the damage.

5.3. While construing the legal regulation established in Paragraph 1 of Article 6.290 of the CC in the context of the quoted norms of the Civil Code, it needs to be noted that the “amount of the repairable damage”, indicated in Paragraph 1 of Article 6.290 of the CC, constitutes a monetary expression of the damage caused to a victim or members of his family as a result of damage to health or deprivation of life.

  1. After comparing the legal regulation of reimbursement for damage established in the Civil Code with the legal regulation of social insurance payments paid as a result of accidents at work, accidents on the way to/from work or occupational diseases, established in the laws regulating social insurance relations, inter alia in the Law on Social Insurance of Accidents at Work and Occupational Diseases, it is clear that, under the legal regulation of reimbursement for damage established in the Civil Code, the inflicted damage must be reimbursed in full by the liable person, except in the cases where laws or a contract establishes a limited liability; under the legal regulation established in the Law on Social Insurance of Accidents at Work and Occupational Diseases, the income lost as a result of accidents at work, accidents on the way to/from work or occupational diseases is compensated from the funds of the budget of the State Social Insurance Fund allocated for social insurance against accidents at work, and the amount of the payments is established in the manner prescribed by this law. Thus, the legal regulation of reimbursement for damage laid down in the Civil Code and the social insurance payments paid as a result of accidents at work, accidents on the way to/from work or occupational diseases, which are established in the Law on Social Insurance of Accidents at Work and Occupational Diseases, are, according to their purpose, similar, but, according to their content, different legal institutes: the legal regulation of reimbursement for damage established in the Civil Code creates preconditions to reimburse the victim for the inflicted damage in full; the social insurance payments established in the Law on Social Insurance of Accidents at Work and Occupational Diseases are designated to compensate persons covered by this type of insurance (or members of their families in the event of the death of the said persons as a result of insured events) for the income lost as a result of insured events (accidents at work, accidents on the way to/from work or occupational diseases), i.e. the whole or part of the property damage resulting from accidents at work, accidents on the way to/from work or occupational diseases is compensated.
  2. Thus, the legal regulation laid down in Paragraph 1 of Article 6.290 of the CC, when it is construed in the context of the other norms of the Civil Code regulating civil liability and the provisions of the laws regulating social insurance relations, inter alia the Law on Social Insurance of Accidents at Work and Occupational Diseases, which have been quoted in this ruling, means that social insurance payments payable in cases of damage to health or deprivation of life are included in the amount of the property damage incurred as a result of damage to health or deprivation of life of the victim or members of his family, and that the person liable—one who caused the damage or, in the cases provided for by laws, the person liable to reimbursement for damage caused by actions of another person—is under an obligation to reimburse the victim or members of his family for that part of the property damage inflicted as a result of damage to health or deprivation of life that exceeds the amount of the social insurance payments paid to the victim or members of his family.
  3. It has been mentioned that the petitioners request investigation into whether Paragraph 1 of Article 6.290 of the CC, insofar as, according to the petitioners, it does not establish any clear limits of inclusion of social insurance payments payable in cases of damage to health or deprivation of life in the amount of the repairable damage, i.e. into the reimbursement of what type of damage—property or non-property—the said payments may be included, is not in conflict with the Constitution. In the opinion of the petitioners, under Paragraph 1 of Article 6.290 of the CC, all social insurance payments are included in the amount of the repairable damage and are recovered from the person liable for damage.
  4. The petitioners, while maintaining that Paragraph 1 of Article 6.290 of the CC does not establish any clear limits of inclusion of social insurance payments payable in cases of damage to health or deprivation of life in the amount of the repairable damage, do not take account of the other norms of the Civil Code regulating civil liability and the provisions of the laws regulating relations of social insurance, inter alia the Law on Social Insurance of Accidents at Work and Occupational Diseases.

It has been mentioned that, under the legal regulation laid down in Paragraph 1 of Article 6.290 of the CC, when it is construed in the context of other norms of the Civil Code and the provisions of other laws, social insurance payments payable in cases of damage to health or deprivation of life are included in the amount of the property damage incurred as a result of impairment of health or deprivation of life of the victim or members of his family, and that the person liable—one who caused the damage or, in the cases provided for by laws, the person liable to reimbursement for damage caused by actions of another person—is under an obligation to reimburse the victim or members of his family for that part of the property damage incurred as a result of damage to health or deprivation of life that exceeds the amount of the social insurance payments paid to the victim or members of his family.

When the legal regulation laid down in Paragraph 1 of Article 6.290 of the CC is construed in the said way, the doubts set forth in the petitions of the petitioners no longer arise regarding the compliance of the said regulation with the Constitution, and the arguments substantiating those doubts may no longer be deemed to be legal arguments under Item 5 of Paragraph 2 of Article 67 of the Law on the Constitutional Court. Consequently, in the petitions of the petitioners one raises the question not of the compliance of Paragraph 1 of Article 6.290 of the CC with the Constitution, but that of the construction, thus, also of the application, thereof.

  1. In this context it needs to be noted that, as it has been held by the Constitutional Court, under the Constitution and the Law on the Constitutional Court, the Constitutional Court does not decide the questions concerning application of legal acts, also that such questions are decided by the institution that has the powers to apply legal acts (Constitutional Court decisions of 23 September 2002, 13 November 2006, 20 November 2006, 12 September 2007 and 5 September 2011); if the laws contain obscurities, ambiguities and gaps, it is the duty of the legislature to eliminate them (Constitutional Court decisions of 23 September 2002, 13 November 2006, 20 November 2006, 27 June 2007 and 12 September 2007). The Constitutional Court has also held that the questions of application of law that have not been decided by the legislator are a matter of judicial practice (Constitutional Court ruling of 9 July 1998, decisions of 20 November 2006 and 12 September 2007); thus, the questions of application of law that have not been decided by the legislator may be decided by courts, when they consider disputes regarding the application of corresponding legal acts (parts thereof) (Constitutional Court decisions of 20 November 2006 and 12 September 2007). The petitions requesting to construe as to how the provisions of a law (other legal act) are to be applied are not within the jurisdiction of the Constitutional Court (Constitutional Court decisions of 23 September 2002, 20 November 2006, 12 September 2007 and 5 September 2011).
  2. It needs to be noted that the absence of a subject matter of investigation in the case subsequent to the petitions of the petitioners means that the petition is not within the jurisdiction of the Constitutional Court (Constitutional Court decisions of 6 May 2003 and 13 May 2003, ruling of 13 May 2004, decisions of 8 August 2006 and 5 November 2008).

Under Item 2 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 consideration of the petition does not fall under the jurisdiction of the Constitutional Court.

Paragraph 3 of Article 69 of the Law on the Constitutional Court provides that in the event that the grounds for refusal to consider a petition have been established after the commencement of the investigation of the case during the hearing of the Constitutional Court, a decision to dismiss the case shall be adopted.

  1. Taking account of the arguments set forth, the part of the constitutional justice case subsequent to the petitions of the petitioners requesting to investigate whether Paragraph 1 of Article 6.290 of the CC, insofar as, according to the petitioners, it does not establish any clear limits of inclusion of social insurance payments payable in cases of damage to health or deprivation of life in the amount of the repairable damage, is not in conflict with Paragraph 1 of Article 29, Paragraph 2 of Article 30 and Article 52 of the Constitution and the constitutional principle of a state under the rule of law, is to be dismissed.
  2. It has been mentioned that the Vilnius Regional Court, a petitioner (petition No. 1B-46/2010), requests investigation into whether Paragraph 1 of Article 6.290 of the CC, insofar as, according to the petitioner, it does not establish any clear notion of social insurance payments payable in cases of damage to health or deprivation of life, is not in conflict with Paragraph 1 of Article 29, Paragraph 2 of Article 30 and Article 52 of the Constitution and the constitutional principle of a state under the rule of law.

Thus, the petitioner impugns the legislative omission, which, in its opinion, exists in Paragraph 1 of Article 6.290 of the CC, i.e. the petitioner impugns something that has not been established in the said norm, even though, in the opinion of the petitioner, under the Constitution, it should have been established by the legislator; thus, the petition impugns such a gap in the legal regulation that, in the opinion of the petitioner, is prohibited by the Constitution.

  1. It has been mentioned that Paragraph 11 of Article 2 “The Main Definitions Used in This Law” of the Law on State Social Insurance (wording of 4 November 2004) prescribes: “‘State social insurance payments’ (hereinafter referred to as ‘social insurance payments’) shall mean the social insurance payments specified by laws to which the insured persons and other natural persons specified by laws become entitled in the event of an insured event”; Article 11 “Social Insurance Payments” of this law prescribes: “‘Social insurance payments’ shall mean the payments provided for in the Law on State Social Insurance Pensions, the Law on Sickness and Maternity Social Insurance, the Law on Social Insurance of Accidents at Work and Occupational Diseases and the Law on Unemployment Social Insurance.”

In this Constitutional Court ruling it has also been mentioned that “social insurance payments payable in cases of damage to health or deprivation of life”, indicated in Paragraph 1 of Article 6.290 of the CC, are the payments provided for in the laws regulating relations of social insurance (inter alia the Law on Social Insurance of Accidents at Work and Occupational Diseases, the Law on Sickness and Maternity Social Insurance, the Law on State Social Insurance Pensions), which are paid to an insured person or his family members in cases of damage to the health or deprivation of the life of the insured person, inter alia the benefit for illness resulting from an accident at work, accident on the way to/from work or an occupational disease, a lump-sum compensation for lost capacity to work, a periodic compensation for lost capacity to work, a lump-sum insurance payment in the event of the death of the insured person as a result of an insured event, a periodic insurance payment in the event of the death of the insured person as a result of an insured event, sickness benefit, orphan’s pension.

Thus, the general notion of social insurance payments is consolidated in the Law on State Social Insurance, whereas concrete types of social insurance payments, inter alia those payable in cases of damage to health or deprivation of life, are defined in special laws regulating relations of social insurance.

  1. The Constitutional Court has held that a legal gap, inter alia legislative omission, always means that the legal regulation of corresponding social relations is established neither explicitly, nor implicitly, neither in the said legal act (part thereof), nor any other legal acts at all, even though there exists a need for legal regulation of these social relations, while the said legal regulation, in case of legislative omission, must be established precisely in that legal act (precisely in that part thereof), since this is required by a certain legal act of higher power, inter alia the Constitution itself (Constitutional Court decisions of 8 August 2006, 5 November 2008, rulings of 2 March 2009, 22 June 2009, 11 December 2009, 29 September 2010, 29 November 2010, 21 June 2011 and 2 September 2011).

The Constitutional Court has also held that in the cases where the petitioner impugns the fact that the law or another impugned legal act (part thereof) indicated by the petitioner does not establish certain legal regulation, but the said legal regulation, under the Constitution (or also under the laws in cases where one impugns a sub-statutory legal act (part thereof) of the Seimas, the Government or the President of the Republic), need not be established precisely in that particular impugned legal act (part thereof), the Constitutional Court holds that in the case subsequent to the request of the petitioner the matter of investigation is absent (Constitutional Court decisions of 6 May 2003 and 13 May 2003, ruling of 13 December 2004, decisions of 8 August 2006 and 5 November 2008).

  1. It has been held in this Constitutional Court ruling that the general notion of social insurance payments is consolidated in the Law on State Social Insurance, whereas concrete types of social insurance payments, inter alia those payable in cases of damage to health or deprivation of life, are defined in special laws regulating relations of social insurance. Thus, there is no ground to maintain that the said notion must once again be established in Paragraph 1 of Article 6.290 of the CC.

In addition, it needs to be noted that, as mentioned before, the Constitutional Court has held that the questions of application of law that have not been decided by the legislator may be decided by courts, when they consider disputes regarding the application of corresponding legal acts (parts thereof). Thus, when applying laws and other legal acts, courts must construe the notions employed therein in the course of deciding cases under their consideration.

Consequently, in the case subsequent to the petition of the Vilnius Regional Court, a petitioner (petition No. 1B-46/2010), requesting to investigate whether Paragraph 1 of Article 6.290 of the CC, insofar as, according to the petitioner, it does not establish any clear notion of social insurance payments payable in cases of damage to health or deprivation of life, is not in conflict with Paragraph 1 of Article 29, Paragraph 2 of Article 30 and Article 52 of the Constitution and the constitutional principle of a state under the rule of law, the matter of investigation is absent.

  1. It needs to be noted that, as mentioned before, the absence of the matter of investigation in the case subsequent to a petition of a petitioner means that the petition is not within the jurisdiction of the Constitutional Court.

Under Item 2 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 consideration of the petition does not fall under the jurisdiction of the Constitutional Court.

Paragraph 3 of Article 69 of the Law on the Constitutional Court provides that in the event that the grounds for refusal to consider a petition have been established after the commencement of the investigation of the case during the hearing of the Constitutional Court, a decision to dismiss the case shall be adopted.

  1. Taking account of the arguments set forth, the part of the constitutional justice case subsequent to the petition of the Vilnius Regional Court, a petitioner (petition No. 1B-46/2010), requesting to investigate whether Paragraph 1 of Article 6.290 of the CC, insofar as, according to the petitioner, it does not establish any clear notion of social insurance payments payable in cases of damage to health or deprivation of life, is not in conflict with Paragraph 1 of Article 29, Paragraph 2 of Article 30 and Article 52 of the Constitution and the constitutional principle of a state under the rule of law, is to be dismissed.

III

On the compliance of Paragraph 3 of Article 6.290 of the Civil Code with Paragraph 1 of Article 29, Paragraph 2 of Article 30 and Article 52 of the Constitution and the constitutional principle of a state under the rule of law.

  1. It has been mentioned that the petitioners inter alia request investigation into whether Paragraph 3 of Article 6.290 of the CC, insofar as, according to the petitioners, it does not establish any clear extent of application of the right of recourse of social insurance establishments that have paid insurance payments to claim reimbursement for damage from the person who caused the damage, is not in conflict with Paragraph 1 of Article 29, Paragraph 2 of Article 30 and Article 52 of the Constitution and the constitutional principle of a state under the rule of law.
  2. In the opinion of the petitioners, under Paragraph 1 of Article 6.290 of the CC, all social insurance payments are included in the amount of the repairable damage and, under Paragraph 3 of Article 6.290, social insurance establishments that have paid insurance payments acquire the right of recourse against the person who caused the damage, except in cases where insurance contributions have been paid on behalf of the victim by the person who caused the damage, therefore, doubts have been raised by the petitioners whether, having not established the extent as to which the paid social insurance payments may be recovered, by way of recourse, from the person who caused the damage, the legislator has not deviated from the principles of the institute of reimbursement for damage, which is enshrined in Paragraph 2 of Article 30 of the Constitution, has not transferred the duty of the state to provide social support, which is entrenched in Article 52 of the Constitution, onto the person who caused the damage, and has not violated the constitutional principles of equality of persons and proportionality.
  3. Paragraph 3 of Article 6.290 “Inclusion of Social Insurance Payments” of the CC prescribes: “Social insurance establishments that have paid insurance payments shall acquire the right of recourse against the person who caused the damage, except in cases where insurance contributions were paid on behalf of the victim by the same person who caused the damage.”
  4. The legal regulation laid down in Paragraph 3 of Article 6.290 of the CC is to be construed in the context of the other CC norms establishing the extent of the right of recourse against the person liable for damage and the provisions of the laws providing for social insurance payments paid in cases of damage to health and deprivation of life.

4.1. In the context of the constitutional justice case at issue the following provisions of the CC are to be mentioned:

– “Subrogation may be effectuated upon the grounds of a written contract or laws” (Article 6.111);

– “A third person who is subrogated to the rights of the creditor shall not obtain more rights than the subrogating creditor” (Article 6.113);

– “Civil liability shall arise from non-performance of a duty established by laws or a contract (unlawful refrainment from acting), or from performance of actions that are prohibited by laws or a contract (unlawful acting), or from violation of the general duty to behave with heed and care” (Paragraph 1 of Article 6.246);

– “Only those damages may be reimbursed that are related to actions (acting or refrainment from acting) giving rise to civil liability of the debtor in such a manner that the damages, taking into account their nature and that of the civil liability, can be imputed to the debtor as a result of his actions (acting or refrainment from acting)” (Article 6.247);

– “Damage shall include the amount of the loss or damage of property sustained by a person and the expenses incurred (direct damages) as well as the incomes of which he has been deprived, i.e. the incomes he would have received if unlawful actions had not been committed. Damage expressed in monetary terms shall constitute damages. Where the amount of damages cannot be proved by the party with precision, it shall be assessed by a court” (Paragraph 1 of Article 6.249);

– “The damages incurred must be compensated in full, except in cases when limited liability is established by laws or a contract” (Paragraph 1 of Article 6.251);

– “Any bodily or property damage caused to another person and, in the cases established by the law, non-property damage must be fully compensated by the liable person” (Paragraph 2 of Article 6.263);

– “A person who has compensated for the damage caused by another person shall have the right of recourse (the right of counterclaim) against the person who caused the damage in the amount equal to the paid compensation unless a different amount is established by laws” (Paragraph 1 of Article 6.280).

Under the legal regulation laid down in the quoted provisions of the Civil Code, a person who has reimbursed the victim for the damage caused by actions of another person has the right to claim, by way of recourse, from the person who caused the damage the sum equal to the amount that had to be reimbursed to the victim by the person who caused the damage.

4.2. In this Constitutional Court ruling it has been mentioned that, under the legal regulation of reimbursement for damage laid down in the Civil Code, the inflicted damage must be reimbursed in full by the liable person, except in cases where laws or a contract establishes a limited liability; under the legal regulation established in the Law on Social Insurance of Accidents at Work and Occupational Diseases, the income lost as a result of accidents at work, accidents on the way to/from work or occupational diseases is compensated from the funds of the budget of the State Social Insurance Fund allocated for social insurance against accidents at work, and the amount of the payments is established in the manner prescribed by this law. Consequently, the amount of the damage caused as a result of damage to health or deprivation of life and the amounts of social insurance payments payable in cases of damage to health or deprivation of life may be such that do not coincide: the amount of the inflicted damage may be equal to the amount of social insurance payments or higher or lower than the amount of these payments.

In this Constitutional Court ruling it has also been mentioned that the legal regulation laid down in Paragraph 1 of Article 6.290 of the CC, when it is construed in the context of the other norms of the Civil Code regulating civil liability and the provisions of the laws regulating relations of social insurance, inter alia the Law on Social Insurance of Accidents at Work and Occupational Diseases, which have been quoted in this ruling, means that social insurance payments payable in cases of damage to health or deprivation of life are included in the amount of the property damage sustained as a result of damage to health or deprivation of life by the victim or members of his family, and that the person liable—one who caused the damage or, in the cases provided for by laws, the person liable to reimbursement for damage caused by actions of another person—is under an obligation to reimburse the victim or members of his family for that part of the property damage sustained as a result of damage to health or deprivation of life that exceeds the amount of the social insurance payments paid to the victim or members of his family.

4.3. Consequently, under the legal regulation laid down in Paragraph 3 of Article 6.290 of the CC, establishments of social insurance that have paid insurance payments acquire the right of claim against the person who caused the damage to the social insurance payment or part thereof of such an amount that is paid to reimburse the victim or members of his family for the property damage caused as a result of damage to health or deprivation of life, i.e. in those cases where the insurance payment is equal to the amount of the property damage inflicted on the victim or lower than that amount, the social insurance establishment has the right of claim against the person who caused the damage to the amount of the total insurance payment, whereas in the case where the insurance payment is higher than the amount of the property damage inflicted on the victim, the social insurance establishment has the right of claim against the person who caused the damage to that part of the social insurance payment that is paid to reimburse the victim or members of his family for the inflicted property damage.

  1. It has been mentioned that the petitioners request investigation into whether Paragraph 3 of Article 6.290 of the CC, insofar as, according to the petitioners, it does not establish any clear extent of application of the right of recourse of social insurance establishments that have paid insurance payments to claim reimbursement for damage from the person who caused the damage, is not in conflict with the Constitution. The petitioners, while impugning, to the corresponding extent, the compliance of Paragraph 3 of Article 6.290 of the CC with the Constitution, presume that all social insurance payments payable in cases of damage to health or deprivation of life are recovered from the person who caused the damage.
  2. Maintaining that Paragraph 3 of Article 6.290 of the CC does not establish any clear extent of application of the right of recourse of social insurance establishments that have paid insurance payments to claim reimbursement for damage from the person who caused the damage, the petitioners do not take into account the other norms of the Civil Code establishing the extent of the right of recourse against the person who caused the damage and the provisions of the laws providing for social insurance payments paid in cases of damage to health or deprivation of life.

It has been mentioned that, under the legal regulation laid down in Paragraph 3 of Article 6.290 of the CC, social insurance establishments that have paid insurance payments acquire the right of claim against the person who caused the damage to the social insurance payment or part thereof of such an amount that is paid to reimburse the victim or members of his family for the property damage caused as a result of damage to health or deprivation of life, i.e. in those cases where the insurance payment is equal to the amount of the property damage inflicted on the victim or lower than that amount, the social insurance establishment has the right of claim against the person who caused the damage to the amount of the total insurance payment, whereas in the case where the insurance payment is higher than the amount of the property damage inflicted on the victim, the social insurance establishment has the right of claim against the person who caused the damage to that part of the social insurance payment that is paid to reimburse the victim or members of his family for the inflicted property damage.

When the legal regulation laid down in Paragraph 3 of Article 6.290 of the CC is construed in the said way, the doubts set forth in the petitions of the petitioners no longer arise regarding the compliance of the said regulation with the Constitution, and the arguments substantiating those doubts may no longer be deemed to be legal arguments under Item 5 of Paragraph 2 of Article 67 of the Law on the Constitutional Court. Consequently, in the petitions of the petitioners one does not raise the question of the compliance of Paragraph 3 of Article 6.290 of the CC with the Constitution, but that of the construction, thus, also of the application, thereof.

  1. It has been mentioned that the Constitutional Court, as it has held, under the Constitution and the Law on the Constitutional Court, does not decide the questions concerning application of legal acts, also that such questions are decided by the institution that has the powers to apply those legal acts; if the laws contain obscurities, ambiguities and gaps, it is the duty of the legislature to eliminate them; the questions of application of law that have not been decided by the legislator may be decided by courts, when they consider disputes regarding the application of corresponding legal acts (parts thereof); petitions requesting to construe as to how the provisions of a law (other legal acts) are to be applied are not within the jurisdiction of the Constitutional Court.
  2. It needs to be noted that, as mentioned before, the absence of the matter of investigation in the case subsequent to a petition of a petitioner means that the petition is not within the jurisdiction of the Constitutional Court.

Under Item 2 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 consideration of the petition does not fall under the jurisdiction of the Constitutional Court.

Paragraph 3 of Article 69 of the Law on the Constitutional Court provides that in the event that the grounds for refusal to consider a petition have been established after the commencement of the investigation of the case during the hearing of the Constitutional Court, a decision to dismiss the case shall be adopted.

  1. Taking account of the arguments set forth, the part of the constitutional justice case subsequent to the petitions of the petitioners requesting to investigate whether Paragraph 3 of Article 6.290 of the CC, insofar as, according to the petitioners, it does not establish any clear extent of application of the right of recourse of social insurance establishments that have paid insurance payments to claim reimbursement for damage from the person who caused the damage, is not in conflict with Paragraph 1 of Article 29, Paragraph 2 of Article 30 and Article 52 of the Constitution and the constitutional principle of a state under the rule of law, is to be dismissed.
  2. It has been mentioned that the Vilnius Regional Court, a petitioner (petition No. 1B-46/2010), inter alia requests investigation into whether Paragraph 3 of Article 6.290 of the CC, insofar as, according to the petitioner, it does not establish any clear notion of social insurance establishments that have paid insurance payments, is not in conflict with Paragraph 1 of Article 29, Paragraph 2 of Article 30 and Article 52 of the Constitution and the constitutional principle of a state under the rule of law.

Thus, the petitioner impugns the legislative omission, which, in its opinion, exists in Paragraph 3 of Article 6.290 of the CC, i.e. the petitioner impugns something that has not been established in the said norm, even though, in the opinion of the petitioner, under the Constitution, it should have been established by the legislator; thus, the petitions impugn such a gap in the legal regulation that, in the opinion of the petitioner, is prohibited by the Constitution.

  1. The notion “social insurance establishments”, which is entrenched in Paragraph 3 of Article 6.290 of the CC, is to be construed in the context of the laws regulating relations of social insurance.

11.1. It has been mentioned that the bases for state social insurance relations—the types of state social insurance, the categories of persons covered by state social insurance, the principles and structure of the state social insurance management system, as well as the rights, duties and responsibility of entities thereof—are laid down by the Law on State Social Insurance (Paragraph 1 of Article 1 of the law (wording of 4 November 2004)).

11.2. Paragraph 9 of Article 2 “The Main Definitions Used in This Law” of the Law on State Social Insurance (wording of 4 November 2004) prescribes: “‘Administration establishments of the State Social Insurance Fund’ (hereinafter referred to as the ‘administration establishments of the Fund’) shall mean the State Social Insurance Fund Board under the Ministry of Social Security and Labour (hereinafter referred to as the ‘Fund Board’), local offices of the State Social Insurance Fund Board (hereinafter referred to as ‘local offices of the Fund Board’) and other establishments of the Fund related to the administration of the State Social Insurance Fund. The administration establishments of the State Social Insurance Fund shall be state establishments.”

It needs to be mentioned that, under Paragraph 12 of Article 2 “The Main Definitions Used in This Law” of the Law on State Social Insurance (wording of 4 November 2004), “State Social Insurance Fund” means the centralised targeted financial and material resources managed in accordance with the procedure laid down by this law and accounted in the budget of the State Social Insurance Fund (which is separate from the state budget and municipal budgets) and used to finance, manage and administer state social insurance of pensions, sickness and maternity, unemployment and health as well as of accidents at work and occupational diseases.

11.3. Thus, when the legal regulation established in Paragraph 3 of Article 6.290 of the CC is construed in conjunction with the legal regulation established in the aforementioned provisions of the Law on State Social Insurance (wording of 4 November 2004), the social insurance establishments indicated in Paragraph 3 of Article 6.290 of the CC mean the administration establishments of the State Social Insurance Fund related to the administration of the State Social Insurance Fund (the State Social Insurance Fund Board under the Ministry of Social Security and Labour, local offices of the State Social Insurance Fund Board and other establishments of the Fund).

  1. It has been mentioned that the Constitutional Court has held that a legal gap, inter alia legislative omission, always means that the legal regulation of corresponding social relations is established neither explicitly, nor implicitly, neither in a certain legal act (part thereof), nor any other legal acts, even though there exists a need for legal regulation of these social relations, while the said legal regulation, in the case of legislative omission, must be established precisely in that legal act (precisely in that part thereof), since this is required by a certain legal act of higher power, inter alia the Constitution itself.

The Constitutional Court has also held that in the cases when the petitioner impugns the fact that the law or another impugned legal act (part thereof) indicated by the petitioner does not establish certain legal regulation, but the said legal regulation, under the Constitution (or also under the laws in case one impugns a sub-statutory legal act (part thereof) of the Seimas, the Government or the President of the Republic), need not be established precisely in that particular impugned legal act (part thereof), the Constitutional Court holds that in the case subsequent to the petition of the petitioner the matter of investigation is absent.

  1. It has been held in this Constitutional Court ruling that the social insurance establishments indicated in Paragraph 3 of Article 6.290 of the CC are the administration establishments of the State Social Insurance Fund related to the administration of the State Social Insurance Fund (the State Social Insurance Fund Board under the Ministry of Social Security and Labour, local offices of the State Social Insurance Fund Board and other establishments of the Fund). Thus, there is no ground to maintain that the notion of the establishments in question must be established in Paragraph 3 of Article 6.290 of the CC.

In addition, it needs to be noted that, as mentioned before, the Constitutional Court has held that the questions of application of law that have not been decided by the legislator may be decided by courts, when they consider disputes regarding the application of corresponding legal acts (parts thereof). Thus, when applying laws and other legal acts, courts must construe the notions employed therein in the course of deciding cases under their consideration.

Consequently, in the case subsequent to the petition of the Vilnius Regional Court, a petitioner (petition No. 1B-46/2010), requesting to investigate whether Paragraph 3 of Article 6.290 of the CC, insofar as, according to the petitioner, it does not establish any clear notion of social insurance establishments that have paid insurance payments, is not in conflict with Paragraph 1 of Article 29, Paragraph 2 of Article 30 and Article 52 of the Constitution and the constitutional principle of a state under the rule of law, the matter of investigation is absent.

  1. It needs to be noted that, as mentioned before, the absence of the matter of investigation in the case subsequent to a petition of a petitioner means that the petition is not within the jurisdiction of the Constitutional Court.

Under Item 2 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 consideration of the petition does not fall under the jurisdiction of the Constitutional Court.

Paragraph 3 of Article 69 of the Law on the Constitutional Court provides that in the event that the grounds for refusal to consider a petition have been established after the commencement of the investigation of the case during the hearing of the Constitutional Court, a decision to dismiss the case shall be adopted.

  1. Taking account of the arguments set forth, the part of the constitutional justice case subsequent to the petition (No. 1B-46/2010) of the Vilnius Regional Court, a petitioner, requesting to investigate whether Paragraph 3 of Article 6.290 of the CC, insofar as, according to the petitioner, it does not establish any clear notion of social insurance establishments that have paid insurance payments, is not in conflict with Paragraph 1 of Article 29, Paragraph 2 of Article 30 and Article 52 of the Constitution and the constitutional principle of a state under the rule of law, is to be dismissed.

IV

On the compliance of Paragraph 10 of Article 19 of the Law on Compulsory Insurance Against Civil Liability of Holders of Vehicles (wording of 5 March 2004) with Paragraph 1 of Article 29, Paragraph 2 of Article 30 and Article 52 of the Constitution and the constitutional principle of a state under the rule of law.

  1. It has been mentioned that the Vilnius Regional Court, a petitioner (petition No. 1B-46/2010), inter alia requests investigation into whether Paragraph 10 of Article 19 of the Law on Compulsory Insurance Against Civil Liability of Holders of Vehicles (wording of 5 March 2004), insofar as, according to the petitioner, it does not establish any clear limits and extent of inclusion of social insurance payments payable in cases of damage to health or deprivation of life, as well as the funeral allowance, in the amount of the repairable damage and the type (property and/or non-property) of the repairable damage, is not in conflict with Paragraph 1 of Article 29, Paragraph 2 of Article 30 and Article 52 of the Constitution and the constitutional principle of a state under the rule of law.
  2. In the opinion of the petitioner, part of the payments payable to the victim under the Law on Social Insurance of Accidents at Work and Occupational Diseases and the Statute of the Internal Service do not constitute reimbursement for damage from the point of view of civil delictual liability, since the amount of these payments does not depend upon the amount of the actually sustained damage, therefore, having not established the extent as to which the social insurance payments that have been paid to the victim, as well as other payments provided for by legal acts, are included in the amount of the repairable damage, nor the extent as to which the said payments may be, by way of recourse, recovered from the person who caused the damage, the legislator deviated from the principles of the institute of reimbursement for damage, which is entrenched in Paragraph 2 of Article 30 of the Constitution, and the constitutional principles of equality of persons and a state under the rule of law and has transferred the duty of the state to provide social support, which is enshrined in Article 52 of the Constitution, onto the person who caused the damage.
  3. Paragraph 10 of Article 19 “Procedure for Paying the Payment” of the Law on Compulsory Insurance Against Civil Liability of Holders of Vehicles (wording of 5 March 2004) prescribed:

“Social insurance payments payable in cases of damage to health or deprivation of life, as well as the funeral allowance payable in the cases provided for by laws, shall be included in the amount of the repairable damage. The payment paid by the insurer or the Bureau to the aggrieved third party shall be reduced by the amount covered by social insurance and compulsory health insurance. Social insurance establishments that have paid insurance payments shall acquire, in the manner prescribed in legal acts, the right of recourse against the liable insurer or, if such does not exist, the person who caused the damage.”

It needs to be mentioned that, under Paragraph 3 of Article 2 of the Law on Compulsory Insurance Against Civil Liability of Holders of Vehicles (wording of 5 March 2004), “Bureau” means the Motor Insurers’ Bureau of the Republic of Lithuania and, under Paragraph 6 of Article 2 of this law, “Insurer” means a person (an insurance enterprise of the Republic of Lithuania, an insurance enterprise of another Member State of the European Union or a branch of a foreign insurance enterprise established in the Republic of Lithuania) that provides, in accordance with the procedure established in legal acts, compulsory insurance against civil liability of holders of vehicles in the Republic of Lithuania and is a member of the Bureau.

  1. As mentioned before, Paragraph 1 of Article 6.290 of the CC prescribes: “Social insurance payments payable in cases of damage to health or deprivation of life shall be included in the amount of the repairable damage”; Paragraph 3 of this article prescribes: “Social insurance establishments that have paid insurance payments shall acquire the right of recourse against the person who caused the damage, except in cases where insurance contributions were paid on behalf of the victim by the same person who caused the damage.”

After comparing the legal regulation established in Paragraph 10 of Article 19 of the Law on Compulsory Insurance Against Civil Liability of Holders of Vehicles (wording of 5 March 2004), which is impugned by the petitioner, with the legal regulation established in Paragraphs 1 and 3 of Article 6.290 of the CC, which are also impugned in the constitutional justice case at issue, it needs to be noted that the content of the said norms in the aspect under investigation in this constitutional justice case is essentially identical. The compared impugned legal regulation differs only in the fact that in Paragraph 10 of Article 19 of the Law on Compulsory Insurance Against Civil Liability of Holders of Vehicles (wording of 5 March 2004) it is indicated that the funeral allowance payable in the cases provided for by laws is also included in the amount of the repairable damage.

  1. In this context it needs to be mentioned that the funeral allowance was provided for in Paragraph 1 (wording of 10 December 2002) of Article 31 “Funeral Allowance” of the Law on Social Insurance of Accidents at Work and Occupational Diseases (wording of 23 December 1999): “When the insured dies as a result of an accident at work or an acute occupational disease, which are recognised as insured events, the family of the deceased shall be paid a single funeral allowance equivalent to 100 times of the amount of the insured income of the current year valid in the month of the fatal accident at work or an outbreak of the acute occupational disease. This payment shall be paid in equal amounts to each member of the family of the deceased.”

On 11 November 2003, the Seimas adopted the Republic of Lithuania Law on Amending the Law on Social Insurance of Accidents at Work and Occupation Diseases (it came into force, with an exception, on 1 January 2004), by means of which the Law on Social Insurance of Accidents at Work and Occupation Diseases (wording of 23 December 1999 with subsequent amendments and supplements) was amended and set forth in a new wording. Paragraph 1 of Article 27 “Lump-sum Insurance Payment in the Event of the Death of the Insured” of the Law on Social Insurance of Accidents at Work and Occupation Diseases (wording of 11 November 2003) prescribes: “When the insured dies as a result of an accident at work, an accident on the way to/from work or an acute occupational disease, which are recognised as insured events, the family of the deceased shall be paid a lump-sum insurance payment equivalent to 100 times of the amount of the insured income of the current year valid in the month of the death of the insured as a result of the accident at work, the accident on the way to/from work or the acute occupational disease. This payment shall be paid in equal amounts to each member of the family of the deceased.”

In the context of the constitutional justice case at issue, having compared the legal regulation established in Paragraph 1 (wording of 10 December 2002) of Article 31 of the Law on Social Insurance of Accidents at Work and Occupational Diseases (wording of 23 December 1999) with the one established in Paragraph 1 of Article 27 of the Law on Social Insurance of Accidents at Work and Occupational Diseases (wording of 11 November 2003), it needs to be noted that the funeral allowance provided for in Paragraph 1 (wording of 10 December 2002) of Article 31 of the Law on Social Insurance of Accidents at Work and Occupational Diseases (wording of 23 December 1999) and the lump-sum insurance payment payable in the event of the death of the insured under Paragraph 1 of Article 27 of the Law on Social Insurance of Accidents at Work and Occupational Diseases (wording of 11 November 2003), is the same social insurance payment payable to members of the family of the insured in the event of his death as a result of an insured event.

Consequently, the legal regulation laid down in the provision of Paragraph 10 of Article 19 of the Law on Compulsory Insurance Against Civil Liability of Holders of Vehicles (wording of 5 March 2004) is, in the aspect impugned by the petitioner, identical to the legal regulation laid down in Paragraphs 1 and 3 of Article 6.290 of the CC.

  1. In this Constitutional Court ruling it has been held that:

– under the legal regulation laid down in Paragraph 1 of Article 6.290 of the CC, when it is construed in the context of other norms of the Civil Code and the provisions of other laws, social insurance payments payable in cases of damage to health or deprivation of life are included in the amount of the property damage sustained as a result of damage to health or deprivation of life by the victim or members of his family, and that the person liable—one who caused the damage or, in the cases provided for by laws, the person liable to reimbursement for damage caused by actions of another person—is under an obligation to reimburse the victim or members of his family for that part of the property damage inflicted as a result of damage to health or deprivation of life that exceeds the amount of the social insurance payments paid to the victim or members of his family;

– under the legal regulation laid down in Paragraph 3 of Article 6.290 of the CC, social insurance establishments that have paid insurance payments acquire the right of claim against the person who caused the damage to the social insurance payment or part thereof of such an amount that is paid to reimburse the victim or members of his family for the property damage inflicted as a result of damage to health or deprivation of life, i.e. in those cases where the insurance payment is equal to the amount of the property damage inflicted on the victim or lower than that amount, the social insurance establishment has the right of claim against the person who caused the damage to the amount of the total insurance payment, whereas in the case where the insurance payment is higher than the amount of the property damage inflicted on the victim, the social insurance establishment has the right of claim against the person who caused the damage to that part of the social insurance payment that is paid to reimburse the victim or members of his family for the inflicted property damage.

  1. While construing the legal regulation established in Paragraph 10 of Article 19 of the Law on Compulsory Insurance Against Civil Liability of Holders of Vehicles (wording of 5 March 2004) in conjunction with the legal regulation established in Paragraphs 1 and 3 of Article 6.290 of the CC, it needs to be noted that, under the former, social insurance payments payable in cases of damage to health or deprivation of life, as well as the funeral allowance payable in the cases provided for by laws, are included in the amount of the property damage sustained by the victim or members of his family as a result of damage to health or deprivation of life; social insurance establishments that have paid insurance payments acquire, in the manner prescribed in legal acts, the right of claim against the liable insurer or, if such does not exist, the person who caused the damage to the social insurance payment or part thereof of such an amount that is paid to reimburse the victim or members of his family for the property damage caused as a result of damage to health or deprivation of life, i.e. in those cases where the insurance payment is equal to the amount of the property damage inflicted on the victim or lower than that amount, the social insurance establishment has the right of claim against the liable insurer or, if such does not exist, the person who caused the damage to the amount of the total insurance payment, whereas in the case where the insurance payment is higher than the amount of the property damage inflicted on the victim, the social insurance establishment has the right of claim against the liable insurer or, if such does not exist, the person who caused the damage to that part of the social insurance payment that is paid to reimburse the victim or members of his family for the inflicted property damage.
  2. It has been mentioned that the Vilnius Regional Court, a petitioner, inter alia requests investigation into whether Paragraph 10 of Article 19 of the Law on Compulsory Insurance Against Civil Liability of Holders of Vehicles (wording of 5 March 2004), insofar as, according to the petitioner, it does not establish any clear limits and extent of inclusion of social insurance payments payable in cases of damage to health or deprivation of life, as well as the funeral allowance, in the amount of the repairable damage and the type (property and/or non-property) of the repairable damage, is not in conflict with the Constitution. The petitioner, while impugning, to the corresponding extent, the compliance of Paragraph 10 of Article 19 of the Law on Compulsory Insurance Against Civil Liability of Holders of Vehicles (wording of 5 March 2004) with the Constitution, presumes that all social insurance payments payable in cases of damage to health or deprivation of life, as well as compensations payable under the Statute of the Internal Service, are recovered from the person who caused the damage.
  3. The petitioner, while maintaining that Paragraph 10 of Article 19 of the Law on Compulsory Insurance Against Civil Liability of Holders of Vehicles (wording of 5 March 2004) does not establish any clear limits and extent of inclusion of social insurance payments payable in cases of damage to health or deprivation of life, as well as the funeral allowance, in the amount of the repairable damage and the type (property and/or non-property) of the repairable damage, does not take account of the norms of the Civil Code establishing the extent of the right of recourse against the person liable for damage and the norms of the laws providing for social insurance payments payable in cases of damage to health or deprivation of life.

It has been mentioned that, under the legal regulation laid down in Paragraph 10 of Article 19 of the Law on Compulsory Insurance Against Civil Liability of Holders of Vehicles (wording of 5 March 2004), social insurance payments payable in cases of damage to health or deprivation of life, as well as the funeral allowance payable in the cases provided for by laws, are included in the amount of the property damage sustained by the victim or members of his family as a result of damage to health or deprivation of life; social insurance establishments that have paid insurance payments acquire, in the manner prescribed in legal acts, the right of claim against the liable insurer or, if such does not exist, the person who caused the damage to the social insurance payment or part thereof of such an amount that is paid to reimburse the victim or members of his family for the property damage caused as a result of damage to health or deprivation of life, i.e. in those cases where the insurance payment is equal to the amount of the property damage inflicted on the victim or lower than that amount, the social insurance establishment has the right of claim against the liable insurer or, if such does not exist, the person who caused the damage to the amount of the total insurance payment, whereas in the case where the insurance payment is higher than the amount of the property damage inflicted on the victim, the social insurance establishment has the right of claim against the liable insurer or, if such does not exist, the person who caused the damage to that part of the social insurance payment that is paid to reimburse the victim or members of his family for the inflicted property damage.

When the legal regulation laid down in Paragraph 10 of Article 19 of the Law on Compulsory Insurance Against Civil Liability of Holders of Vehicles (wording of 5 March 2004) is construed in the said way, the doubts set forth in the petitions of the petitioners no longer arise regarding the compliance of the said regulation with the Constitution, and the arguments substantiating those doubts may no longer be deemed to be legal arguments under Item 5 of Paragraph 2 of Article 67 of the Law on the Constitutional Court. Consequently, in the petitions of the petitioners one does not raise the question of the compliance of Paragraph 10 of Article 19 of the Law on Compulsory Insurance Against Civil Liability of Holders of Vehicles (wording of 5 March 2004) with the Constitution, but that of the construction, thus, also of the application, thereof.

  1. It has been mentioned that the Constitutional Court, as it has held, under the Constitution and the Law on the Constitutional Court, does not decide the questions concerning application of legal acts, also that such questions are decided by the institution that has the powers to apply those legal acts; if the laws contain obscurities, ambiguities and gaps, it is the duty of the legislature to eliminate them; the questions of application of law that have not been decided by the legislator are a matter of judicial practice; thus, the questions of application of law that have not been decided by the legislator may be decided by courts, when they consider disputes regarding the application of corresponding legal acts (parts thereof); petitions requesting to construe as to how the provisions of a law (other legal acts) are to be applied are not within the jurisdiction of the Constitutional Court.
  2. It needs to be noted that, as mentioned before, the absence of the matter of investigation in the case subsequent to a petition of a petitioner means that the petition is not within the jurisdiction of the Constitutional Court.

Under Item 2 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 consideration of the petition does not fall under the jurisdiction of the Constitutional Court.

Paragraph 3 of Article 69 of the Law on the Constitutional Court provides that in the event that the grounds for refusal to consider a petition have been established after the commencement of the investigation of the case during the hearing of the Constitutional Court, a decision to dismiss the case shall be adopted.

  1. Taking account of the arguments set forth, the part of the constitutional justice case subsequent to the petition (No. 1B-46/2010) of the Vilnius Regional Court, a petitioner, requesting to investigate whether Paragraph 10 of Article 19 of the Law on Compulsory Insurance Against Civil Liability of Holders of Vehicles (wording of 5 March 2004), insofar as, according to the petitioner, it does not establish any clear limits and extent of inclusion of social insurance payments payable in cases of damage to health or deprivation of life, as well as the funeral allowance, in the amount of the repairable damage and the type (property and/or non-property) of the repairable damage, is not in conflict with Paragraph 1 of Article 29, Paragraph 2 of Article 30 and Article 52 of the Constitution and the constitutional principle of a state under the rule of law, is to be dismissed.
  2. It needs to be mentioned that, on 17 May 2007, the Seimas adopted the Republic of Lithuania Law on Amending the Law on Compulsory Insurance Against Civil Liability of Holders of Vehicles, by means of which the Law on Compulsory Insurance Against Civil Liability of Holders of Vehicles was amended and set forth in a new wording. Paragraph 10 of Article 19 “Procedure for Paying the Payment” of the Law on Compulsory Insurance Against Civil Liability of Holders of Vehicles (wording of 17 May 2007) prescribes: “Persons who, in the manner laid down by legal acts, have the right of recourse or subrogation against the person who caused the damage may bring a claim for the payment against the insurer who has directly covered the civil liability of the guilty person or, if such does not exist, against the person who caused the damage.”

Having compared the legal regulation established in Paragraph 10 of Article 19 of the Law on Compulsory Insurance Against Civil Liability of Holders of Vehicles (wording of 5 March 2004) with the one established in Paragraph 10 of Article 19 of the Law on Compulsory Insurance Against Civil Liability of Holders of Vehicles (wording of 17 May 2007), it needs to be noted that Paragraph 10 of Article 19 of the Law on Compulsory Insurance Against Civil Liability of Holders of Vehicles (wording of 17 May 2007) does not regulate the relations of inclusion of social insurance payments in the amount of the repairable damage. The former provision of Paragraph 10 of Article 19 of the Law on Compulsory Insurance Against Civil Liability of Holders of Vehicles (wording of 5 March 2004) no longer exists among other provisions of the law (wording of 17 May 2007), either. Thus, the legal regulation laid down in Paragraph 10 of Article 19 of the Law on Compulsory Insurance Against Civil Liability of Holders of Vehicles (wording of 5 March 2004), which is impugned by the petitioner, has, in the aspect impugned by the petitioner, changed in essence.

V

On the compliance of Item 26 (wording of 23 December 2002) of the Conditions under Which Persons are Insured by State Funds and of Compensation Payment upon Their Injury or Loss of Life in the Line of Duty, as approved by Government Resolution No. 530 “On the Conditions under Which Persons are Insured by State Funds and of Compensation Payment upon Their Injury or Loss of Life in the Line of Duty” of 5 December 1991, with Paragraph 1 of Article 29, Paragraph 2 of Article 30 and Article 52 of the Constitution and the constitutional principle of a state under the rule of law.

  1. It has been mentioned that the Kaunas Regional Court (petition No. 1B-6/2010) and the Vilnius Regional Court (petitions Nos. 1B-46/2010, 1B-71/2010 and 1B-23/2011), the petitioners, inter alia request investigation into whether Item 26 (wording of 23 December 2002) of the Conditions, as approved by Government resolution No. 530 of 5 December 1991, in the aspect that the right of recourse to recover the paid insurance sums and compensations from the legal and natural persons who caused the damage is established by a Government resolution, but not a law, is not in conflict with the Constitution.

The petitioners indicate that, under the Constitution, the reimbursement for damage inflicted on a person must be established by a law, whereas, under the impugned legal regulation, the right of recourse to recover the paid insurance sums and compensations from the legal or natural persons who caused the damage is established by a Government resolution, but not a law.

  1. It has been mentioned that the Kaunas Regional Court (petition No. 1B-6/2010) and the Vilnius Regional Court (petition No. 1B-46/2010), the petitioners, inter alia request investigation into whether Item 26 (wording of 23 December 2002) of the Conditions, as approved by Government resolution No. 530 of 5 December 1991, insofar as, according to the petitioners, it does not establish any clear extent of application of the right of recourse of the establishments that have paid compensations under Article 40 of the Statute of the Internal Service against the person who caused the damage, is not in conflict with Paragraph 1 of Article 29, Paragraph 2 of Article 30 and Article 52 of the Constitution and the constitutional principle of a state under the rule of law.

The petitioners point out that the Police Department under the Ministry of the Interior, after paying the compensation and reimbursing the victim for the amount of the damage greater than that actually caused in reality and acquiring the right of claim to that part of the paid sum that exceeds the damages sustained by the victim, acquires more rights than those enjoyed by the initial creditor, so, in this case the interests of the state are defended to a greater extent if compared to those of the person who caused the damage.

  1. On 5 December 1991, the Government adopted Resolution No. 530 “On the Conditions under Which Persons are Insured by State Funds and of Compensation Payment upon Their Injury or Loss of Life in the Line of Duty”, whereby it approved the Conditions under Which Persons are Insured by State Funds and of Compensation Payment upon Their Injury or Loss of Life in the Line of Duty (Item 1). This resolution has been amended and/or supplemented more than once.
  2. Item 26 (wording of 23 December 2002) of the Conditions, as approved by Government resolution No. 530 of 5 December 1991, prescribes: “Establishments that have paid insurance sums and compensations, in the manner prescribed by the Civil Code of the Republic of Lithuania, acquire the right of claim (recourse) against the legal and natural persons who caused the damage.”
  3. Item 1 (wording of 7 September 2011) of the Conditions prescribes:

“Pursuant to the Conditions under Which Persons are Insured by State Funds and of Compensation Payment upon Their Injury or Loss of Life in the Line of Duty (hereinafter referred to as the Insurance Conditions) the following persons shall be covered:

1.1. officials of the Ministry of the Interior, the police and other statutory establishments of the interior (the State Border Guard Service under the Ministry of the Interior, the Financial Crime Investigation Service under the Ministry of the Interior, the Fire and Rescue Department under the Ministry of the Interior, the VIP Protection Department under the Ministry of the Interior, also divisions subordinate to the said establishments, and the internal service units of the Ministry of the Interior);

1.2. students of the Police Faculty of the Law University of Lithuania and unclassified students (cadets) of higher and further education schools falling under the management of the Ministry of the Interior, members of the police reserve during the period of their internships and practical training;

1.3. servicemen fulfilling mandatory initial military service;

1.4. servicemen in professional military service;

1.5. volunteer servicemen and other active reserve servicemen, also the servicemen of the trained reserve drafted for exercises, training or performance of service assignments;

1.6. persons mobilised upon the occurrence of an ecological catastrophe, a natural disaster or danger to the security of the state;

1.7. army cadets;

1.8. states servants in the civil national defence service;

1.9. persons liable for call-up who fulfil alternative national defence service;

1.10. officials of the State Security Department of the Republic of Lithuania;

1.11. officials of the Special Investigation Service of the Republic of Lithuania;

1.12. officials of the Prison Department under the Ministry of Justice and the establishments or state enterprises subordinate thereto;

1.13. officials of the Customs of the Republic of Lithuania;

1.14. officials of the state control of environmental protection;

1.15. (no longer valid); No. 1045, 7/9/2011, Official Gazette Valstybės žinios, 2011, No. 113-5306 (15/9/2011)

1.16. the employees of healthcare establishments who provide healthcare services for patients suffering from especially dangerous communicable diseases or the employees of the said establishments who implement preventive measures against epidemics in clusters of especially dangerous communicable diseases.”

As it is clear from the list contained in Item 1 of the Conditions, as approved by Government resolution No. 530 of 5 December 1991, the Conditions provide for the insurance covering officials, servicemen and other persons serving in various state statutory institutions or systems.

From petition No. 1B-6/2010 of the Kaunas Regional Court and petitions Nos. 1B-46/2010, 1B-71/2010 and 1B-23/2011 of the Vilnius Regional Court, the petitioners, as well as from the material of the civil cases under their consideration, wherein the rulings to apply to the Constitutional Court were adopted, it is clear that the compliance of Item 26 (wording of 23 December 2002) of the Conditions, as approved by Government resolution No. 530 of 5 December 1991, with the Constitution is impugned in the context of the civil disputes concerning the infliction of damage on police officials discharging service-related duties and the right of recourse of the establishments that, under Article 40 of the Statute of the Internal Service, have paid compensations to these police officials against the person who caused the damage.

While taking account of this, the compliance of Item 26 (wording of 23 December 2002) of the Conditions, as approved by Government resolution No. 530 of 5 December 1991, with the Constitution will be investigated exceptionally in the context of the legal regulation establishing the social guarantees of police officials (the Statute of the Internal Service), i.e. insofar as the said item provides that the police establishments that have paid insurance sums and compensations acquire, in the manner prescribed by the Civil Code, the right of claim (recourse) against the legal and natural persons who caused the damage.

  1. It has been mentioned that Item 26 (wording of 23 December 2002) of the Conditions, as approved by Government resolution No. 530 of 5 December 1991, prescribes: “Establishments that have paid insurance sums and compensations, in the manner prescribed by the Civil Code of the Republic of Lithuania, acquire the right of claim (recourse) against the legal and natural persons who caused the damage.”
  2. The legal regulation established in Item 26 (wording of 23 December 2002) of the Conditions, as approved by Government resolution No. 530 of 5 December 1991, is to be construed inter alia in the context of the provisions of the Statute of the Internal Service.

7.1. In the context of the constitutional justice case at issue the following provisions of the Statute of the Internal Service are to be mentioned:

– Article 40 “Compensations in the Event of the Death or Health Disorders of an Official or a Cadet” (wording of 23 December 2008) of the Statute of the Internal Service prescribes:

“1. When an official loses his life during the performance of his service-related duties, where the performance of service-related duties was associated with an increased danger or increased risk to the official’s life or health, also in the cases when the cause of the official’s death is related to the performance of his service-related duties, where the performance of service-related duties was associated with an increased danger or increased risk to the official’s life or health, as well as in the cases when an official is killed as a result of the performance of service-related duties or due to the status of an official, irrespective of the insurance payments paid to his family—the children (adopted children, also children who were born after the official’s death), until they reach the age of 18, as well as the children (adopted children) who are full-time students of educational establishments registered in the prescribed manner, until they reach the age of 24, the spouse, cohabitant (partner), father or mother—and the persons incapable of working who were maintained by the one who has lost his life or were entitled to his maintenance on the day of his death, shall, within one year after the official’s death, be paid in equal parts a single compensation in the amount of 120 monthly average work remunerations of the official.

  1. An official or cadet who has lost his life shall be buried with the state funds, or the persons close to the deceased shall be paid the monetary compensation in the amount of 40 minimum standards of living to cover the expenses related to burial. The expenses related to the transfer to Lithuania of the body of an official or a cadet who lost his life abroad while performing service-related duties or during the professional training shall, in the manner prescribed by legal acts, be covered by the State. The particulars of the burial-related expenses covered by the State shall be set by the Government or an institution authorised by it.
  2. An official who has been injured, has injured himself or whose health has been impaired while performing service-related duties, where the performance of service-related duties was associated with an increased danger or increased risk to the official’s life or health, or when his injury, self-injury or health impairment are related to the performance of his service-related duties, where the performance of service-related duties was associated with an increased danger or increased risk to the official’s life or health, or where his health has been impaired as a result of the performance of service-related duties or due to the status of an official, shall be paid the compensation in the amount of his average monthly remuneration of the period from one month to five years (from 1 to 60 months). The following compensations shall be established:

1) for persons who have lost 75-100 percent of their capacity to work as a result of injury or self-injury—in the amount of 60 average monthly work remunerations;

2) for persons who have lost 60-70 percent of their capacity to work as a result of injury or self-injury—in the amount of 48 average monthly work remunerations;

3) for persons who have lost 45-55 percent of their capacity to work as a result of injury or self-injury—in the amount of 36 average monthly work remunerations;

4) for persons who have lost up to 40 percent of their capacity to work as a result of injury or self-injury and who, due to this, have been recognised as not suitable for the internal service—in the amount of 30 average monthly work remunerations;

5) in the event of serious health impairment—in the amount of 24 average monthly work remunerations;

6) in the event of moderately serious health impairment—in the amount of 18 average monthly work remunerations;

7) in the event of light health impairment—in the amount of 1 to 12 average monthly work remunerations.

  1. In cases of the death, injury or self-injury of a cadet or his health impairment sustained during the professional or introductory training compensations shall be paid under the conditions and procedure laid down in Paragraphs 1 and 3 of this Article, except that the amount of compensations shall be calculated according to the amount of a minimum monthly remuneration, as set by the Government, valid at the time of the accident.
  2. Whether the death, self-injury, injury or health impairment of an official is related to the performance of service-related duties or the status of an official, and that of a cadet—to the professional or introductory training, also whether the performance of service-related duties and the professional or introductory training are associated with an increased danger or increased risk to the life or health of an official or a cadet, as well as the amount of the compensation in the case of light health impairment, shall be established in the manner prescribed by the Minister of the Interior.
  3. The compensations referred to in this Article shall not be paid if:

1) an official or a cadet lost his life, injured himself or was injured or his health was impaired when committing an intentional crime or intentional criminal offence;

2) the cause of the official’s death, injury, self-injury or health impairment was the intoxication with alcohol, drugs, psychotropic substances or other toxic substances, not related to the performance of service-related duties, and the cause of the cadet’s death, injury, self-injury or health impairment was not related to his professional or introductory training;

3) an official or a cadet committed suicide, attempted to commit suicide or injured himself intentionally;

4) an official or a cadet lost his life, injured himself, was injured or sustained health impairment during a traffic accident, where he drove a vehicle without having the right to drive it or allowed to drive it to a person intoxicated with alcohol, drugs, psychotropic substances or other toxic substances or who did not have the right to drive it;

5) the official’s or cadet’s health was impaired or he died of the illness and this is not related to the performance of service-related duties or the professional or introductory training;

6) the cause of the official’s or cadet’s death or self-injury was a deliberate violation of safety rules, which was not associated with service-related necessity.

  1. Disputes over refusal to pay compensation shall be settled in the manner prescribed by legal acts.
  2. The degree of severity of the health impairment of an official or a cadet shall be determined, in the manner prescribed by the Government, by the Central Medical Expert Examination Commission pursuant to the List of Serious, Moderately Serious and Light Injuries, Traumas and Other Types of Health Impairment of Officials or Cadets of the Internal Service System, which is approved by the Government.”;

– Article 49 “Insurance of Officials and Cadets and Pensions of Officials” (wording of 19 July 2006) of the Statute of the Internal Service prescribes:

“1. For the entire period of service the health and life of officials shall be insured in a compulsory manner with the state budget funds against accidents while in service, against accidents related with service, against accidents on the way to and from service. The sum of health and life insurance of officials shall be equal to the remuneration of an official paid in the month of the insured event, multiplied by 12, and may not be higher than 48 minimum monthly remunerations, as set by the Government.

  1. For the entire period of professional and introductory training the health and life of cadets shall be insured in a compulsory manner with the state budget funds against accidents during professional or introductory training. The sum of health and life insurance of a cadet shall be equal to the minimum monthly remuneration, as set by the Government, valid in the month of the insured event and multiplied by 12.
  2. The procedure for health and life insurance of officials and cadets, recognition of insured events, establishment of the amount of insurance payments and the payment thereof shall be established by the Government. The procedure for investigation and recording of accidents while in service, accidents related with service, accidents on the way to and from service as well as accidents during professional and introductory training shall be established by the Minister of the Interior.
  3. Insurance payments shall not be paid in the cases established in Paragraph 6 of Article 40 of the Statute.
  4. Under the procedure stipulated by the Law on State Social Insurance Pensions, officials shall be insured in a compulsory manner with the insurance of state social insurance pensions.
  5. Officials shall be entitled to receive the state pension of officials pursuant to the law regulating the procedure for granting and payment of state pensions of officials and servicemen.
  6. Under the procedure stipulated by the Law on Unemployment Social Insurance, officials shall be insured in a compulsory manner with the social insurance of unemployment.”

7.2. It needs to be noted that, under the quoted legal regulation, the compensations payable in cases of the death or health disorder of an official, as well as insurance payments, are calculated in the manner prescribed by the Statute of the Internal Service and their amount is related to the officials’ work remuneration.

7.3. In this context it needs to be mentioned that the Constitutional Court has held more than once the following: “Article 141 of the Constitution implies that officials of state statutory institutions perform state statutory service, which is a specific type of state service, different from other (civil) state service and military service. From the statutory concept of the state service the following features characteristic of such service arise: special legal regulation by legal acts (statutes) establishing the peculiarities of corresponding service, statutory relations of strict hierarchical subordination, which are characterised inter alia by a special regime of performance of service (inter alia peculiarities of execution of duties of service, time of service and those of service-related subordination, the system of special service ranks (grades) marking the career of officials and their place in the hierarchy of statutory relations, specificity of service-related (disciplinary) liability), special requirements for officials of state statutory institutions (inter alia those related to their loyalty to the State of Lithuania and their reliability, education, age, state of health, etc.), specific powers of these officials (inter alia those with regard to persons not subordinate to them, as well as those linked with the use of coercive measures), special social and other guarantees” (Constitutional Court ruling of 27 February 2012).

7.4. The Constitutional Court, while investigating the compliance of Article 40 (wording of 29 April 2003) of the Statute of the Internal Service with the Constitution, has held that the said article “inter alia explicitly consolidates the compulsory life and health insurance of officials for the entire period of their service with the funds from the state budget against accidents while in service, accidents related with service, accidents on the way to or from service; the difference lies only in the conditions of payment of compensations in the event of the death or health disorder of an official or a cadet. Under Articles 49 and 40 (wording of 19 July 2006) of the Statute, insurance payments are paid in all cases where an official loses his life or is injured during service (with the exception of non-insured events), while compensations are paid only where an official loses his life or is injured (injures himself) while performing service-related duties, where the performance of service-related duties is associated with an increased danger to the life and health of officials, or an official is killed or his health is impaired as a result of performance of service-related duties or due to the status of an official. Such interrelation of these social guarantees is obvious from the Statute of the Internal Service as well as from the explanatory note to the Draft Law on Amending and Supplementing the Law on the Implementation of the Law on the Approval of the Statute of the Internal Service” (Constitutional Court ruling of 22 November 2007).

7.5. Thus, in the context of the aforementioned provisions of the Statute of the Internal Service, the legal regulation laid down in Item 26 (wording of 23 December 2002) of the Conditions, as approved by Government resolution No. 530 of 5 December 1991, means that the police establishments that have paid insurance payments in cases when an official loses his life or is injured during service (with the exception of non-insured events), or compensations—only where an official loses his life or is injured (injures himself) while performing service-related duties, where the performance of service-related duties is associated with an increased danger to the life and health of officials, or an official is killed or his health is impaired as a result of performance of service-related duties or due to the status of an official, acquire, in the manner prescribed by the Civil Code, the right of claim (recourse) against the legal and natural persons who caused the damage.

  1. In this Constitutional Court ruling it has been mentioned that, under the legal regulation of reimbursement for damage laid down in the Civil Code, the inflicted damage must be reimbursed in full by the liable person, except in cases where laws or a contract establishes a limited liability. It has also been mentioned in this ruling that, under the legal regulation laid down in the Civil Code, a person who has reimbursed the victim for the damage caused by actions of another person has the right to claim, by way of recourse, from the person who caused the damage the sum equal to the amount that had to be reimbursed to the victim by the person who caused the damage. It means that the right of recourse (counterclaim) against the person who caused the damage is established in the law—the Civil Code.

Thus, the provision “acquire, in the manner prescribed by the Civil Code, the right of claim (recourse) against the legal and natural persons who caused the damage” of Item 26 (wording of 23 December 2002) of the Conditions, as approved by Government resolution No. 530 of 5 December 1991, means that the police establishments that have paid insurance sums and compensations to an aggrieved official or members of his family acquire the right of claim (recourse) against the legal and natural persons who caused the damage to the sum of such an amount that had to be reimbursed to the victim by the person who caused the damage.

  1. Consequently, under the impugned legal regulation laid down in Item 26 (wording of 23 December 2002) of the Conditions, as approved by Government resolution No. 530 of 5 December 1991, the police establishments that have paid insurance payments in cases where an official loses his life or is injured during service (with the exception of non-insured events), or compensations—only where an official loses his life or is injured (injures himself) while performing service-related duties, where the performance of service-related duties is associated with an increased danger to the life and health of officials, or an official loses his life or his health is impaired as a result of performance of service-related duties or due to the status of an official, acquire the right of claim (recourse) against the legal and natural persons who caused the damage to the sum of such an amount that had to be reimbursed to the victim by the person who caused the damage.
  2. It has been mentioned that subsequent to the petitions of the Kaunas Regional Court (petition No. 1B-6/2010) and the Vilnius Regional Court (petitions Nos. 1B-46/2010, 1B-71/2010 and 1B-23/2011), the petitioners, in the constitutional justice case at issue it is investigated whether Item 26 (wording of 23 December 2002) of the Conditions, as approved by Government resolution No. 530 of 5 December 1991, insofar as it provides that the police establishments that have paid insurance payments acquire, in the manner prescribed by the Civil Code, the right of claim (recourse) against the legal and natural persons who caused the damage, is not in conflict with Paragraph 2 of Article 30 of the Constitution and the constitutional principle of a state under the rule of law.

10.1. Paragraph 2 of Article 30 of the Constitution prescribes: “Compensation for material and moral damage inflicted upon a person shall be established by law.”

In Paragraph 2 of Article 30 of the Constitution the following two kinds of damage are expressis verbis mentioned: material and moral damage, i.e. (respectively) property losses and spiritual (non-property) offences (they may also be caused by physical pain), which may be only conditionally assessed and compensated materially. The legislator must pay heed to this constitutional distinction. The kinds of damage mentioned in Paragraph 2 of Article 30 of the Constitution may also be named in the laws by different terms provided only that these terms do not deny (distort) the constitutional concept of these kinds of damage (Constitutional Court ruling of 19 August 2006).

When construing the legal regulation established in Paragraph 2 of Article 30 of the Constitution that compensation for material and moral damage inflicted upon a person shall be established by law, the Constitutional Court held that in this paragraph one provides for a duty of the legislator to pass a law or laws establishing compensation for damage to a person who suffered material or moral damage, that the laws must provide for actual protection of violated human rights and freedoms, that this protection must be harmonised with the protection of the other values entrenched in the Constitution, as well as that the Constitution guarantees the right of an individual to compensation for material or moral damage, including recovery of damage under judicial procedure (Constitutional Court rulings of 30 June 2000 and 13 December 2004).The aforementioned general constitutional principles of reimbursing the victim for damage stem inter alia from the constitutional principles of justice and the state under the rule of law.

The constitutional principle of the necessity to reimburse the material and moral damage inflicted upon a person is inseparable from the principle of justice entrenched in the Constitution: the laws must create all the necessary preconditions for fair reimbursement for the inflicted damage (Constitutional Court ruling of 19 August 2006). Thus, the Constitution imperatively requires that such legal regulation be established by law that the person to whom damage was caused could in all cases claim fair reimbursement for that damage and receive it.

10.2. The Constitutional Court has held more than once that the constitutional principle of a state under the rule of law must be followed both in the course of law-making and implementing law. In its rulings, the Constitutional Court has also held more than once that the constitutional principle of a state under the rule of law entrenched in the Constitution, among other requirements, also implies that human rights and freedoms must be secured, that all institutions implementing state power as well as other state and municipal institutions and all officials must act on the grounds of law and in compliance with the Constitution and law, that the Constitution has the supreme legal power, and that all legal acts must be in compliance with the Constitution.

The principle of a state under the rule of law entrenched in the Constitution implies the hierarchy of legal acts. In its acts the Constitutional Court has held more than once that the said constitutional principle does not permit that sub-statutory legal acts (thus, also Government resolutions) establish any such legal regulation that would compete with the legal regulation established in the law, and that it demands that sub-statutory legal acts be not in conflict with laws, constitutional laws and the Constitution, that sub-statutory legal acts must be adopted on the basis of laws, that a sub-statutory legal act is an act of application of norms of the law, irrespective of whether the act is of one-time (ad hoc) application or of permanent validity (inter alia the Constitutional Court rulings of 6 September 2007 and 9 March 2010). The Constitution prohibits the regulation of those legal relations by means of legal acts of lower power that may be regulated only by means of legal acts of higher power (inter alia Constitutional Court rulings of 29 November 2007 and 2 September 2009).

  1. While deciding whether Item 26 (wording of 23 December 2002) of the Conditions, as approved by Government resolution No. 530 of 5 December 1991, insofar as it provides that the police establishments that have paid insurance payments acquire, in the manner prescribed by the Civil Code, the right of claim (recourse) against the legal and natural persons who caused the damage, is not in conflict with Paragraph 2 of Article 30 of the Constitution and the constitutional principle of a state under the rule of law, it needs to be noted that, as it has been mentioned in this Constitutional Court ruling, Paragraph 2 of Article 30 of the Constitution consolidates a duty of the legislator to pass a law or laws establishing compensation for damage to a person who suffered material or moral damage, that the laws must provide for actual protection of violated human rights and freedoms, and that this protection must be harmonised with the protection of the other values entrenched in the Constitution. In this ruling it has also been mentioned that the principle of a state under the rule of law entrenched in the Constitution implies the hierarchy of legal acts, that this constitutional principle does not permit that sub-statutory legal acts (thus, also Government resolutions) establish any such legal regulation that would compete with the legal regulation established in the law, and that it demands that sub-statutory legal acts be not in conflict with laws, constitutional laws and the Constitution.

It has been held in this ruling that the right of recourse (counterclaim) against the person who caused the damage is established in the law—the Civil Code.

Thus, the right of claim (recourse) of the police establishments that have paid insurance payments against the legal and natural persons who caused the damage is established not only in the impugned Item 26 (wording of 23 December 2002) of the Conditions, as approved by Government resolution No. 530 of 5 December 1991, but also in the law.

Consequently, there is no ground to maintain that the legal regulation laid down in Item 26 (wording of 23 December 2002) of the Conditions, as approved by Government resolution No. 530 of 5 December 1991, under which inter alia the police establishments that have paid insurance payments acquire, in the manner prescribed by the Civil Code, the right of claim (recourse) against the legal and natural persons who caused the damage, violates the hierarchy of legal acts stemming from the constitutional principle of a state under the rule of law and the provision, entrenched in Paragraph 2 of Article 30 of the Constitution, whereby compensation for material and moral damage inflicted upon a person is established by law.

  1. Taking account of the arguments set forth, one is to draw a conclusion that Item 26 (wording of 23 December 2002) of the Conditions, as approved by Government resolution No. 530 of 5 December 1991, insofar as it provides that the police establishments that have paid insurance sums and compensations acquire, in the manner prescribed by the Civil Code, the right of claim (recourse) against the legal and natural persons who caused the damage, is not in conflict with Paragraph 2 of Article 30 of the Constitution and the constitutional principle of a state under the rule of law.
  2. It has been mentioned that the Kaunas Regional Court (petition No. 1B-6/2010) and the Vilnius Regional Court (petition No. 1B-46/2010), the petitioners, inter alia request investigation into whether Item 26 (wording of 23 December 2002) of the Conditions, as approved by Government resolution No. 530 of 5 December 1991, insofar as, according to the petitioners, it does not establish any clear extent of application of the right of recourse of the establishments that have paid compensations under Article 40 of the Statute of the Internal Service against the person who caused the damage, is not in conflict with Paragraph 1 of Article 29, Paragraph 2 of Article 30 and Article 52 of the Constitution and the constitutional principle of a state under the rule of law.

The petitioners presume that, under the legal regulation established in Item 26 (wording of 23 December 2002) of the Conditions, as approved by Government resolution No. 530 of 5 December 1991, the Police Department under the Ministry of the Interior, after paying the compensation and reimbursing the victim for the amount of the damage greater than that actually caused and acquiring the right of claim to that part of the paid sum that exceeds the damages sustained by the victim, acquires more rights than those enjoyed by the initial creditor, so, in this case, the interests of the state are defended to a greater extent if compared to those of the person who caused the damage.

  1. The petitioners, maintaining that Item 26 (wording of 23 December 2002) of the Conditions, as approved by Government resolution No. 530 of 5 December 1991, does not establish any clear extent of application of the right of recourse of the establishments that have paid compensations under Article 40 of the Statute of the Internal Service against the person who caused the damage, do not take account of the norms of the Civil Code establishing the extent of the right of recourse against the person liable for damage.

It has been mentioned that, under the legal regulation laid down in Item 26 (wording of 23 December 2002) of the Conditions, as approved by Government resolution No. 530 of 5 December 1991, the police establishments that have paid insurance payments in cases where an official loses his life or is injured during service (with the exception of non-insured events), or compensations—only where an official loses his life or is injured (injures himself) while performing service-related duties, where the performance of service-related duties is associated with an increased danger to the life and health of officials, or an official is killed or his health is impaired as a result of the performance of service-related duties or due to the status of an official, acquire the right of claim (recourse) against the legal and natural persons who caused the damage to the sum of such an amount that had to be reimbursed to the victim by the person who caused the damage.

When the legal regulation laid down in Item 26 (wording of 23 December 2002) of the Conditions, as approved by Government resolution No. 530 of 5 December 1991, is construed in the said way, the doubts set forth in the petitions of the petitioners no longer arise regarding the compliance of the said regulation with the Constitution, and the arguments substantiating those doubts may no longer be deemed to be legal arguments under Item 5 of Paragraph 2 of Article 67 of the Law on the Constitutional Court. Consequently, in the petitions of the petitioners one does not raise the question of the compliance of Item 26 (wording of 23 December 2002) of the Conditions, as approved by Government resolution No. 530 of 5 December 1991, with the Constitution, but that of the construction, thus, also of the application, thereof.

  1. It has been mentioned that the Constitutional Court, as it has held, under the Constitution and the Law on the Constitutional Court, does not decide the questions concerning application of legal acts, also that such questions are decided by the institution that has the powers to apply those legal acts; if the laws contain obscurities, ambiguities and gaps, it is the duty of the legislature to eliminate them; the questions of application of law that have not been decided by the legislator are a matter of judicial practice; thus, the questions of application of law that have not been decided by the legislator may be decided by courts, when they consider disputes regarding the application of corresponding legal acts (parts thereof); the petitions requesting to construe as to how the provisions of a law (other legal acts) are to be applied are not within the jurisdiction of the Constitutional Court.
  2. It needs to be noted that, as mentioned before, the absence of the matter of investigation in the case subsequent to a petition of a petitioner means that the petition is not within the jurisdiction of the Constitutional Court.

Under Item 2 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 consideration of the petition does not fall under the jurisdiction of the Constitutional Court.

Paragraph 3 of Article 69 of the Law on the Constitutional Court provides that in the event that the grounds for refusal to consider a petition have been established after the commencement of the investigation of the case during the hearing of the Constitutional Court, a decision to dismiss the case shall be adopted.

  1. Taking account of the arguments set forth, the part of the constitutional justice case subsequent to the petitions of the Kaunas Regional Court (petition No. 1B-6/2010) and the Vilnius Regional Court (petition No. 1B-46/2010), the petitioners, requesting to investigate whether Item 26 (wording of 23 December 2002) of the Conditions, as approved by Government resolution No. 530 of 5 December 1991, insofar as, according to the petitioners, it does not establish any clear extent of application of the right of recourse of the establishments that have paid compensations under Article 40 of the Statute of the Internal Service against the person who caused the damage, is not in conflict with Paragraph 1 of Article 29, Paragraph 2 of Article 30 and Article 52 of the Constitution and the constitutional principle of a state under the rule of law, is to be dismissed.


VI

On the compliance of Item 49 of the Rules for Assessing Damage Caused in a Traffic Accident and Paying the Insurance Payment, as approved by Government Resolution No. 795 “On the Approval of the Rules for Assessing Damage Caused in a Traffic Accident and Paying the Insurance Payment” of 23 June 2004, with Paragraph 1 of Article 29, Paragraph 2 of Article 30 and Article 52 of the Constitution and the constitutional principle of a state under the rule of law.

  1. The Vilnius Regional Court (petition No. 1B-46/2010), a petitioner, inter alia requests investigation into whether Item 55 of the Rules, as approved by Government resolution No. 795 of 23 June 2004 (wording of 24 February 2008), insofar as, according to the petitioner, it does not establish any clear limits and extent of inclusion of the social insurance payment, sickness benefit, pension of lost capacity to work or compensation payable in accordance with legal acts as a result of the damage to health or deprivation of life sustained in a traffic accident, as well as the funeral allowance, in the amount of the repairable damage and the type (property and/or non-property) of the repairable damage, is not in conflict with Paragraph 1 of Article 29, Paragraph 2 of Article 30 and Article 52 of the Constitution and the constitutional principle of a state under the rule of law.

1.1. On 23 June 2004, the Government adopted Resolution No. 795 “On the Approval of the Rules for Assessing Damage Caused in a Traffic Accident and Paying the Payment”, whereby it approved the Rules for Assessing Damage Caused in a Traffic Accident and Paying the Payment. This Government resolution came into force on 30 June 2004.

Item 49 of the Rules for Assessing Damage Caused in a Traffic Accident and Paying the Payment (wording of 23 June 2004) prescribed: “Social insurance payments payable as a result of the damage to health or deprivation of life sustained in a traffic accident, as well as the funeral allowance, shall be included in the amount of the repairable damage. The payment paid by the insurer or the Bureau to the aggrieved third party shall be reduced by the amount covered by social insurance and compulsory health insurance. Where a person dies as a result of a traffic accident, members of his family or other persons who have arranged his burial shall be reimbursed for the burial-related expenses inasmuch as these expenses exceed the funeral allowances received under legal acts.”

1.2. On 13 February 2008, the Government adopted Resolution No. 122 “On Amending Resolution of the Government of the Republic of Lithuania No. 795 ‘On the Approval of the Rules for Assessing Damage Caused in a Traffic Accident and Paying the Payment’ of 23 June 2004’”, whereby it amended Government resolution No. 795 of 23 June 2004 and set it forth in a new wording. This Government resolution came into force on 24 February 2008.

It has been mentioned that the petitioner requests investigation into whether inter alia Item 55 of the Rules, as approved by Government resolution No. 795 of 23 June 2004 (wording of 24 February 2008), is not in conflict with the Constitution. Thus, in the petition of the petitioner one indicates not the date of the adoption of the said Government resolution, but that of its entry into force.

Item 55 of the Rules for Assessing Damage Caused in a Traffic Accident and Paying the Insurance Payment, as approved by Government resolution No. 795 of 23 June 2004 (wording of 13 February 2008), prescribes: “The social insurance payments, sickness benefits, pensions of lost capacity to work or compensations payable under legal acts as a result of the damage to health or deprivation of life sustained in a traffic accident, as well as the funeral allowance, shall be included in the amount of the repairable damage. The insurance payment paid by the insurer or the Bureau to the aggrieved third party shall be reduced by the amount covered by social insurance and compulsory health insurance. Where a person dies as a result of a traffic accident, members of his family or other persons who have arranged his burial shall be reimbursed for the burial-related expenses inasmuch as these expenses exceed the funeral allowances received under legal acts.”

1.3. After comparing the legal regulation established in Item 49 of the Rules, as approved by Government resolution No. 795 of 23 June 2004, with the one established in Item 55 of the Rules, as approved by Government resolution No. 795 of 23 June 2004 (wording of 13 February 2008), it is clear that the legal regulation in question differs only in the fact that Item 55 of the Rules, as approved by Government resolution No. 795 of 23 June 2004 (wording of 13 February 2008), includes more payments payable as a result of the damage to health or deprivation of life sustained in a traffic accident, which are included in the amount of the repairable damage—it additionally enumerates sickness benefits, pensions of lost capacity to work and compensations.

1.4. The Vilnius Regional Court, a petitioner, requests investigation, to the corresponding extent, into the compliance of Item 55 of the Rules, as approved by Government resolution No. 795 of 23 June 2004 (wording of 13 February 2008), with the Constitution, however, from its petition and the material of the civil case under its consideration it is clear that the traffic accident as a result of which the damage was caused, leading to the dispute concerning the reimbursement of that damage and the recourse claim, occurred on 10 February 2006. Therefore, in the civil case under the consideration of the petitioner one should apply not the impugned legal regulation established in Item 55 of the Rules, as approved by Government resolution No. 795 of 23 June 2004 (wording of 13 February 2008), but the one established in Item 49 of the Rules, as approved by Government resolution No. 795 of 23 June 2004.

1.5. Thus, the Constitutional Court will further investigate whether Item 49 of the Rules for Assessing Damage Caused in a Traffic Accident and Paying the Payment, as approved by Government resolution No. 795 of 23 June 2004, insofar as, according to the petitioner, it does not establish any clear limits and extent of inclusion of the social insurance payment and funeral allowance in the amount of the repairable damage and the type (property and/or non-property) of the repairable damage, is not in conflict with Paragraph 1 of Article 29, Paragraph 2 of Article 30 and Article 52 of the Constitution and the constitutional principle of a state under the rule of law.

  1. In the Preamble to Government resolution No. 795 of 23 June 2004 it is indicated that the resolution is adopted pursuant to inter alia Paragraph 16 of Article 19 of the Law on Compulsory Insurance Against Civil Liability of Holders of Vehicles (wording of 5 March 2004). It needs to be mentioned that Paragraph 16 of Article 19 “Procedure for Paying the Compensation Payment” of the Law on Compulsory Insurance Against Civil Liability of Holders of Vehicles (wording of 5 March 2004) prescribes: “The procedure for assessing damage and paying compensation payments shall be set by the Government.”

Thus, the Government approved the Rules for Assessing Damage Caused in a Traffic Accident and Paying the Payment while implementing the law.

  1. It has been mentioned that Item 49 of the Rules, as approved by Government resolution No. 795 of 23 June 2004, prescribed: “Social insurance payments payable as a result of the damage to health or deprivation of life sustained in a traffic accident, as well as the funeral allowance, shall be included in the amount of the repairable damage. The payment paid by the insurer or the Bureau to the aggrieved third party shall be reduced by the amount covered by social insurance and compulsory health insurance. Where a person dies as a result of a traffic accident, members of his family or other persons who have arranged his burial shall be reimbursed for the burial-related expenses inasmuch as these expenses exceed the funeral allowances received under legal acts.”

In this Constitutional Court ruling it has also been mentioned that Paragraph 10 of Article 19 of the Law on Compulsory Insurance Against Civil Liability of Holders of Vehicles (wording of 5 March 2004) prescribed: “Social insurance payments payable in cases of damage to health or deprivation of life, as well as the funeral allowance payable in the cases provided for by laws, shall be included in the amount of the repairable damage. The payment paid by the insurer or the Bureau to the aggrieved third party shall be reduced by the amount covered by social insurance and compulsory health insurance. Social insurance establishments that have paid insurance payments shall acquire, in the manner prescribed in legal acts, the right of recourse against the liable insurer or, if such does not exist, the person who caused the damage.”

Having compared the legal regulation established in Item 49 of the Rules for Assessing Damage Caused in a Traffic Accident and Paying the Payment, as approved by Government resolution No. 795 of 23 June 2004, with that established in Paragraph 10 of Article 19 of the Law on Compulsory Insurance Against Civil Liability of Holders of Vehicles (wording of 5 March 2004), it needs to be held that, in the aspect impugned by the petitioner, the legal regulation in question is the same.

  1. The petitioner, while impugning the compliance of Item 49 of the Rules for Assessing Damage Caused in a Traffic Accident and Paying the Payment, as approved by Government resolution No. 795 of 23 June 2004, with the Constitution, points out that part of the payments payable to the victim under the Law on Social Insurance of Accidents at Work and Occupational Diseases and the Statute of the Internal Service do not constitute reimbursement for damage from the point of view of civil delictual liability, since the amount of these payments does not depend upon the amount of the actually sustained damage, therefore, having not established the extent as to which the social insurance payments that have been paid to the victim, as well as other payments provided for by legal acts, are included in the amount of the repairable damage, nor the extent as to which the said payments may be, by way of recourse, recovered from the person who caused the damage, the Government deviated from the principles of the institute of compensation for damage, entrenched in Paragraph 2 of Article 30 of the Constitution, and the constitutional principles of equality of persons and a state under the rule of law and has transferred the duty of the state to provide social support, which is enshrined in Article 52 of the Constitution, onto the person who caused the damage.

The petition of the petitioner requesting to investigate, to the corresponding extent, the compliance of Item 49 of the Rules for Assessing Damage Caused in a Traffic Accident and Paying the Payment, as approved by Government resolution No. 795 of 23 June 2004, with the Constitution is substantiated by the same arguments as the petition requesting to investigate the compliance of Paragraph 10 of Article 19 of the Law on Compulsory Insurance Against Civil Liability of Holders of Vehicles (wording of 5 March 2004) with the Constitution.

  1. In this Constitutional Court ruling it has been mentioned that, while construing the legal regulation established in Paragraph 10 of Article 19 of the Law on Compulsory Insurance Against Civil Liability of Holders of Vehicles (wording of 5 March 2004) in conjunction with the legal regulation established in Paragraphs 1 and 3 of Article 6.290 of the CC, it needs to be noted that:

– social insurance payments payable in cases of damage to health or deprivation of life, as well as the funeral allowance payable in the cases provided for by laws, are included in the amount of the property damage sustained by the victim or members of his family as a result of damage to health or deprivation of life;

– social insurance establishments that have paid insurance payments acquire, in the manner prescribed in legal acts, the right of claim against the liable insurer or, if such does not exist, the person who caused the damage to the social insurance payment or part thereof of such an amount that is paid to reimburse the victim or members of his family for the property damage caused as a result of damage to health or deprivation of life, i.e. in those cases where the insurance payment is equal to the amount of the property damage inflicted on the victim or lower than that amount, the social insurance establishment has the right of claim against the liable insurer or, if such does not exist, the person who caused the damage to the amount of the total insurance payment, whereas in the case where the insurance payment is higher than the amount of the property damage inflicted on the victim, the social insurance establishment has the right of claim against the liable insurer or, if such does not exist, the person who caused the damage to that part of the social insurance payment that is paid to reimburse the victim or members of his family for the property damage inflicted on them.

In this Constitutional Court ruling it has also been mentioned that, when the legal regulation laid down in Paragraph 10 of Article 19 of the Law on Compulsory Insurance Against Civil Liability of Holders of Vehicles (wording of 5 March 2004) is construed in the aforesaid way, the doubts set forth in the petitions of the petitioners no longer arise regarding the compliance of the said regulation with the Constitution, and the arguments substantiating those doubts may no longer be deemed to be legal arguments under Item 5 of Paragraph 2 of Article 67 of the Law on the Constitutional Court; consequently, in the petitions of the petitioners one does not raise the question of the compliance of Paragraph 10 of Article 19 of the Law on Compulsory Insurance Against Civil Liability of Holders of Vehicles (wording of 5 March 2004) with the Constitution, but that of the construction, thus, also of the application, thereof.

It needs to be mentioned that the part of the constitutional justice case subsequent to the petition of the Vilnius Regional Court, a petitioner (petition No. 1B-46/2010), requesting to investigate whether Paragraph 10 of Article 19 of the Law on Compulsory Insurance Against Civil Liability of Holders of Vehicles (wording of 5 March 2004), insofar as, according to the petitioner, it does not prescribe any clear limits and extent of inclusion of social insurance payments payable in cases of damage to health or deprivation of life, as well as the funeral allowance, in the amount of the repairable damage and the type (property and/or non-property) of the repairable damage, is not in conflict with Paragraph 1 of Article 29, Paragraph 2 of Article 30 and Article 52 of the Constitution and the constitutional principle of a state under the rule of law, has been dismissed.

  1. Having held that the legal regulation established in Item 49 of the Rules for Assessing Damage Caused in a Traffic Accident and Paying the Payment, as approved by Government resolution No. 795 of 23 June 2004, and the legal regulation established in Paragraph 10 of Article 19 of the Law on Compulsory Insurance Against Civil Liability of Holders of Vehicles (wording of 5 March 2004), in the aspect impugned by the petitioner, is the same, and that the petition of the petitioner requesting to investigate, to the corresponding extent, the compliance of Item 49 of the Rules for Assessing Damage Caused in a Traffic Accident and Paying the Payment, as approved by Government resolution No. 795 of 23 June 2004, with the Constitution is substantiated by the same arguments as the petition requesting to investigate the compliance of Paragraph 10 of Article 19 of the Law on Compulsory Insurance Against Civil Liability of Holders of Vehicles (wording of 5 March 2004) with the Constitution, one also needs to hold that, on the basis of the same arguments on the grounds of which the part of this constitutional justice case subsequent to the petition of the Vilnius Regional Court, a petitioner (petition No. 1B-46/2010), requesting to investigate whether Paragraph 10 of Article 19 of the Law on Compulsory Insurance Against Civil Liability of Holders of Vehicles (wording of 5 March 2004), insofar as, according to the petitioner, it does not establish any clear limits and extent of inclusion of social insurance payments payable in cases of damage to health or deprivation of life, as well as the funeral allowance, in the amount of the repairable damage and the type (property and/or non-property) of the repairable damage, is not in conflict with Paragraph 1 of Article 29, Paragraph 2 of Article 30 and Article 52 of the Constitution and the constitutional principle of a state under the rule of law, has been dismissed, so the part of the constitutional justice case subsequent to the petition (No. 1B-46/2010) of the Vilnius Regional Court, a petitioner, requesting to investigate whether Item 49 of the Rules for Assessing Damage Caused in a Traffic Accident and Paying the Payment, as approved by Government resolution No. 795 of 23 June 2004, insofar as, according to the petitioner, it does not establish any clear limits and extent of inclusion of the social insurance payment and funeral allowance in the amount of the repairable damage and the type (property and/or non-property) of the repairable damage, is not in conflict with Paragraph 1 of Article 29, Paragraph 2 of Article 30 and Article 52 of the Constitution and the constitutional principle of a state under the rule of law, is also to be dismissed.

Conforming to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1, 53, 54, 55, 56 and 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

ruling:

  1. To recognise that Item 26 (wording of 23 December 2002; Official Gazette Valstybės žinios, 2002, No. 124-5662) of the Conditions under Which Persons are Insured by State Funds and of Compensation Payment upon Their Injury or Loss of Life in the Line of Duty, as approved by Resolution of the Government of the Republic of Lithuania No. 530 “On the Conditions under Which Persons are Insured by State Funds and of Compensation Payment upon Their Injury or Loss of Life in the Line of Duty” of 5 December 1991, insofar as it provides that the police establishments that have paid insurance sums and compensations acquire, in the manner prescribed in the Civil Code of the Republic of Lithuania, the right of claim (recourse) against the legal and natural persons who caused the damage, is not in conflict with the Constitution of the Republic of Lithuania.
  2. To dismiss the part of the case regarding the compliance of Paragraph 1 of Article 6.290 of the Civil Code of the Republic of Lithuania (wording of 18 July 2000; Official Gazette Valstybės žinios, 2000, No. 74-2262), insofar as, according to the petitioners, it does not establish any clear limit of inclusion of social insurance payments payable in cases of damage to health or deprivation of life in the amount of the repairable damage, and, insofar as, according to the Vilnius Regional Court, a petitioner (petition Nr. 1B-46/2010), it does not establish any clear notion of social insurance payments payable in cases of damage to health and deprivation of life, with the Constitution of the Republic of Lithuania.
  3. To dismiss the part of the case regarding the compliance of Paragraph 3 of Article 6.290 of the Civil Code of the Republic of Lithuania (wording of 18 July 2000; Official Gazette Valstybės žinios, 2000, No. 74-2262), insofar as, according to the petitioners, it does not establish any clear extent of application of the right of recourse of social insurance establishments that have paid insurance payments to claim reimbursement for damage from the person who caused the damage, and, insofar as, according to the Vilnius Regional Court, a petitioner (petition No. 1B-46/2010), it does not establish any clear notion of social insurance establishments that have paid insurance payments, with the Constitution of the Republic of Lithuania.
  4. To dismiss the part of the case regarding the compliance of Paragraph 1 of Article 6.1015 of the Civil Code of the Republic of Lithuania (wording of 18 July 2000; Official Gazette Valstybės žinios, 2000, No. 74-2262), insofar as it prohibits the insurer’s subrogation against the person who caused the damage in the case of insurance against accidents, with the Constitution of the Republic of Lithuania.
  5. To dismiss the part of the case regarding the compliance of Paragraph 10 of Article 19 of the Republic of Lithuania Law on Compulsory Insurance Against Civil Liability of Holders of Vehicles (wording of 5 March 2004; Official Gazette Valstybės žinios, 2004, No. 46-1498), insofar as, according to the petitioner, it does not establish any clear limits and extent of inclusion of social insurance payments payable in cases of damage to health or deprivation of life, as well as the funeral allowance, in the amount of the repairable damage and the type (property and/or non-property) of the repairable damage, with the Constitution of the Republic of Lithuania.
  6. To dismiss the part of the case regarding the compliance of Item 26 (wording of 23 December 2002; Official Gazette Valstybės žinios, 2002, No. 124-5662) of the Conditions under Which Persons are Insured by State Funds and of Compensation Payment upon Their Injury or Loss of Life in the Line of Duty, as approved by Resolution of the Government of the Republic of Lithuania No. 530 “On the Conditions under Which Persons are Insured by State Funds and of Compensation Payment upon Their Injury or Loss of Life in the Line of Duty” of 5 December 1991, insofar as, according to the petitioners, it does not establish any clear extent of application of the right of recourse of the establishments that have paid compensations under Article 40 of the Statute of the Internal Service, as approved by the Republic of Lithuania Law on the Approval of the Statute of the Internal Service, against the person who caused the damage, with the Constitution of the Republic of Lithuania.
  7. To dismiss the part of the case regarding the compliance of Item 49 (Official Gazette Valstybės žinios, 2004, No. 100-3718) of the Rules for Assessing Damage Caused in a Traffic Accident and Paying the Payment, as approved by Resolution of the Government of the Republic of Lithuania No. 795 “On the Approval of the Rules for Assessing Damage Caused in a Traffic Accident and Paying the Payment” of 23 June 2004, insofar as, according to the petitioner, it does not establish any clear limits and extent of inclusion of the social insurance payment and funeral allowance in the amount of the repairable damage and the type (property and/or non-property) of the repairable damage, with the Constitution of the Republic of Lithuania.

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

                                                                                                        Egidijus Šileikis

                                                                                                        Romualdas Kęstutis Urbaitis

                                                                                                        Dainius Žalimas