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On the conditions under which persons are insured by state funds and compensation payment upon their injury or death in the line of duty

Case No. 18/97

 

THE CONSTITUTIONAL COURT OF

THE REPUBLIC OF LITHUANIA

 

R U L I N G

 

On the compliance of Item 4 of the Conditions Under Which Persons are Insured by State Funds and of Compensation Payment upon Their Injury or Death in the Line of Duty approved by the 5 December 1991 resolution (No. 530) of the Government of the Republic of Lithuania with Article 25 of the Republic of Lithuania’s Law on the Voluntary Service for Protection of the Country

 

Vilnius, 6 May 1998

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Egidijus Jarašiūnas, Kęstutis Lapinskas, Zigmas Levickis, Augustinas Normantas, Vladas Pavilonis, Jonas Prapiestis, Pranas Vytautas Rasimavičius, Teodora Staugaitienė, and Juozas Žilys

The court reporter—Daiva Pitrėnaitė

Kazimieras Pečiulis, the Chief Jurisconsult at the Employment Relations Division of the Ministry of Social Security and Labour, acting the representative of the Government, the party concerned

The Constitutional Court of the Republic of Lithuania, pursuant to Paragraph 1 of Article 102 of the Constitution of the Republic of Lithuania and Paragraph 1 of Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, on 26 April 1998, in its public hearing, considered case No. 18/97 subsequent to the petition submitted to the Constitutional Court by the Civil Cases College of the Vilnius Regional Court, the petitioner, requesting an investigation into whether Item 4 of the Conditions Under Which Persons are Insured by State Funds and of Compensation Payment upon Their Injury or Death in the Line of Duty approved by the 5 December 1991 resolution (No. 530) of the Government of the Republic of Lithuania was in compliance with Article 25 of the Republic of Lithuania’s Law on the Voluntary Service for Protection of the Country.

The Constitutional Court

has established:

I

On 27 August 1997, by its decision, the Third Vilnius City Local Court rejected an action concerning the court-award of the benefit which is provided for by Article 25 of the Law on the Voluntary Service for Protection of the Country, while satisfied in part the claim concerning damage compensation.

On 21 October 1997, the Civil Cases College of the Vilnius Regional Court, the petitioner, was investigating a civil case subsequent to the appeals of the plaintiffs, as well as that of the state enterprise Vilniaus aerouostas, concerning the decision of the Third Vilnius City Local Court. By its ruling, the Vilnius Regional Court suspended the investigation of the case and applied to the Constitutional Court with the petition requesting an investigation into whether Item 4 of the Conditions Under Which Persons are Insured by State Funds and of Compensation Payment upon Their Injury or Death in the Line of Duty (hereinafter referred to as the Conditions; Official Gazette Valstybės žinios, 1992, No. 8-212) approved by government resolution No. 530 of 5 December 1991 was in compliance with Article 25 of the Law on the Voluntary Service for Protection of the Country (Official Gazette Valstybės žinios, 1991, No. 4-106).

II

The petitioner grounds his request on the following arguments.

Paragraph 1 of Article 25 of the Law on the Voluntary Service for Protection of the Country provides that in the event that a volunteer dies while performing his service duties, his family shall be paid a one-off compensation equivalent to the ten-year salary of the deceased. The law does not provide for reservations as for the cases when the compensation may not be paid. On 5 December 1991, by its resolution No. 530, the Government established the Conditions Under Which Persons are Insured by State Funds and of Compensation Payment upon Their Injury or Death in the Line of Duty. Item 4 of the said Conditions regulates events not insured against when insurance amounts and compensations must not be paid.

The Law on the Voluntary Service for Protection of the Country does not provide for any situations or conditions under which the compensation may not be paid. However, Item 4 of the Conditions does not cover the situation when an insured person suffered from intoxication by alcohol as an event insured against. Thereby a mandatory norm was created by a substatutory act, which bars the way to implementation of the right provided for in the law. Therefore, the petitioner doubts if the norms of Item 4 of the Conditions are in compliance with Article 25 of the Law on the Voluntary Service for Protection of the Country.

III

In the course of the preparation of the case for the judicial investigation, an explanation of A. Nazarovas, the secretary of the Ministry of Social Security and Labour, the representative of the party concerned, was received. He maintains that the Law on the Voluntary Service for Protection of the Country and the Law on the Service for Protection of the Country do not provide for situations under which compensations must not be paid when soldiers of professional military service die in the line of duty. The events not insured against are established by Item 4 of the Conditions.

IV

In the course of the preparation of the case for the judicial investigation, an explanation of the specialist—T. Birmontienė, Director of the Lithuanian Centre for Human Rights—was received. She maintains that situations when state social support should be rendered must be regulated by law but not by substatutory legal act. The law merely commissioned the Government to establish the procedure of the paying of compensations, but never to restrict insurance payments. The Government groundlessly restricted the human right to get social support and limited constitutional social guarantees for persons, therefore, the impugned norm contradicts Articles 7 and 52 of the Constitution.

In addition, an explanation of H. Žebrauskas, a lecturer at the Department of Civil Law and Economic Analysis at the Law Academy of Lithuania, was received wherein it is pointed out that, by confirming the impugned norm of the Conditions, the Government violated the constitutional principle of the legal protection of social rights of persons.

V

In the court hearing, the representative of the party concerned K. Pečiulis virtually reiterated the arguments set forth in the explanation of the secretary of the Ministry of Social Security and Labour. He recognised the contradictoriness of the law and the norms of the substatutory act, both of which regulated the impugned relations.

The Constitutional Court

holds that:

1. Article 25 of the 17 January 1991 Law on the Voluntary Service for Protection of the Country provides:

1. Provided a volunteer died while performing official assignments, in the course of 5 years, under the procedure established by the Government, his family shall be paid benefits the total amount whereof must reach the amount of 10-year (120 months) remuneration which the said volunteer had received in his latest working place.

2. A volunteer who died while performing official assignments shall be buried at the expense of the state.”

By its resolution No. 530 of 5 December 1991, in fulfilling the resolution of 11 December 1990 of the Supreme Council-Reconstituting Seimas, the Government confirmed the Conditions Under Which Persons are Insured by State Funds and of Compensation Payment upon Their Injury or Death in the Line of Duty. The officials and volunteers of the voluntary service for protection of the country shall be insured (for the time of their training and service) under Subitem 7 of Item 1 of the Conditions. This item also lists other categories of persons who must be insured: the officials of the Ministry of the Interior, those of the Republic and municipal police service, as well as those of other offices of the interior, as well as the officials of the Ministry of National Defence, officers in active military service, re-enlistees who have not retired from service, soldiers in active military service, the officials of the State Security Department, etc.

The Conditions provide that the health and life of the aforementioned persons shall be insured. The Conditions also define as to what shall be regarded as events insured against. These are such events which occur when the insured person is performing professional duties, when he is going to or from work, or at the time when the person was not at work provided the court or investigation establishes that these events are linked with his duties, as well as when they occur during the time of studies or exercise of the insured person and which either harm the health of or cause the death to the insured person. These are: trauma due to an accident, or an attempt on the life and health of the insured person, as well as any other instant event when against his will a physical force (chemical, thermal, that of poisonous gases, or any other physical effect) acts against the body of the insured person; accidental acute poisoning through food (as well as getting infected through food with infectious diseases which are pointed out in the acute infectious intestine diseases list approved by the Ministry of Health), medicines, poisonous plants, as well as acute or chronic poisoning through chemical substances; negative consequences due to either erroneous diagnosing or the application of measures of treatment and prophylaxis (medical injections among them) after events insured against; the getting of a foreign body into respiratory organs, anaphylactic shock, the drowning or freezing of the insured person.

However, upon the death or injury of the insured person, compensation is paid or damages suffered are compensated not in all cases. Item 4 of the Conditions prescribes:

Events shall not be categorised as events insured against and insurance amounts and compensations shall not be paid in the case that:

the insured person has suffered from his own deed wherein the investigation or the court established signs of intentional crime, or in the case that this deed is linked with an administrative transgression of law;

the insured person has suffered in the state of intoxication through alcohol, narcotics or toxic substances;

the insured person has suffered while driving a means of transport or any other auto-vehicle without a corresponding certificate, or upon giving over to another person to drive a means of transport who was intoxicated through alcohol, narcotics or toxic substances or who had not any corresponding certificate;

the insured person has committed suicide, or has attempted to commit suicide or has injured himself intentionally;

either the health of the insured person has broken down or he has died due to disease or war.”

The petitioner that was investigating the case at law regarding the benefit payments after the death of a volunteer who during an accident was drunk had doubts whether the provisions of Item 4 of the Conditions were in compliance with the aforesaid provision of the law wherein neither situations nor conditions under which benefits may not be paid are provided for.

2. The voluntary service for protection of the country is a constituent part of the country defence system. This service operates permanently and is formed on a voluntary basis. The voluntary service for protection of the country prepares specialists for the defence of the country, protects important objects of the state and economy, helps to do away with the effects of ecological catastrophes and natural calamities; in case of need it helps the state border guard units to protect the state border, and it helps the police to ensure the public order, as well as to maintain the public peace and security; in case of threat to state security, it accomplishes territorial protection of the country, and carries out state assignments according to respective government resolutions.

In performing his duties, the volunteer must be ready to accomplish a task commissioned to him. Quite often, even in the time of peace, this is linked with a certain risk for one’s life or health. Therefore, the sense of duty, discipline, respect for military traditions of the country are infused by corresponding means of education and instruction. The fulfilment of duties by the volunteer is absolutely incompatible with alcoholism. A drunk volunteer not only violates service discipline but also, being drunk, may perform deeds which cause drastic effects. The volunteers must observe the requirements of the regulations. The volunteers are responsible for crimes committed in service, a breach of the oath, violations of discipline under the laws and the Discipline Regulation of the Service for Protection of the Country.

One of the objectives of the voluntary service for protection of the country is the protection of important state objects of economy. The order of accomplishment of this service is regulated by the Guard Duty Regulation. The said regulation provides for the rights and duties of sentry soldiers. For instance, a sentry of the post must: vigilantly guard and protect his post, even though under a threat to his life, until his shift; strictly accomplish his duties and never let go of his weapon even for an instance; unconditionally carry out the orders of the guard chief, assistant guard chief and the corporal of the guard, as it is only they who have the right to either relieve or remove him from the post, etc. A sentry of the post is an inviolable person. His rights and personal dignity are protected by law. He is subordinate to the persons who are strictly defined. Everyone must unquestionably fulfil the demands of a sentry of the post. In the situations defined by the Guard Duty Regulation, he is entitled to use his weapon.

The peculiarities of the voluntary service for protection of the country condition the social guarantees for the volunteers. One of such guarantees is benefits for the family of the volunteer who died while performing his duties, which are provided for by Article 25 of the Law on the Voluntary Service for Protection of the Country. In addition, Paragraph 3 of Article 24 of the Law on the Voluntary Service for Protection of the Country establishes special additional social guarantees. They are applied in the cases provided for by the Republic of Lithuania’s Law “On Additional Social Guarantees for the Families of Persons who Suffered in the Struggle for the Freedom of the Republic of Lithuania Against the Aggression Accomplished on 11–13 January 1991 and Subsequent Events” of 16 January 1991.

The benefits the total amount whereof must reach the amount of 10-year (120 months) remuneration which the volunteer had received in his latest working place as provided for by Paragraph 1 of Article 25 of the Law on the Voluntary Service for Protection of the Country are, in fact, compensation. The legislature, in thereby establishing compensation (which is referred to as a benefit by the legal norm) payment after the volunteer’s death, linked the appearance of the right to the said compensation with only one condition: “provided a volunteer died while performing official assignments”. In other words, under the law, benefits must be paid in every case when the cause of a volunteer’s death was performance of official assignments. By the legal norm, the Government was commissioned to establish the procedure of the payment of this benefit.

3. By approving the Conditions by its resolution No. 530 of 5 December 1991, the Government was implementing the 11 December 1990 resolution of the Supreme Council-Reconstituting Seimas of the Republic of Lithuania which obligated the Government to review and establish the procedure of providing officers of the prosecutor’s office, those of the systems of the interior and national defence with apartments, as well as the procedure of paying wages and extra pays and compensations, along with that of granting other social guarantees. Therefore, in the Conditions by which the implementation of the norms is being ensured one had to particularise the procedure of insurance of persons by state funds against the death or injury in the line of duty.

The norm of Article 25 of the Law on the Voluntary Service for Protection of the Country is an imperative one. It is established therein that the right to the benefits (i.e. compensation) appears when a volunteer died while performing official assignments. The law does not provide for any other conditions.

Meanwhile, the impugned item of the Conditions determines all the situations when compensations for the officials and volunteers of the voluntary service for protection of the country may not be paid. These are the cases when the insured persons suffered in the state of intoxication through alcohol, narcotics or toxic substances, when the signs of intentional crime have been established in their deeds etc. Thereby the same relations have been regulated by a substatutory act in a different way than by law.

The Constitutional Court has assessed the problems of interrelation between laws and substatutory acts many a time. For instance, it noted in its ruling of 19 January 1994 that the norms of a law are implemented by substatutory act, however, such a legal act may not replace the law itself nor create any new legal rules of general nature that in their power would compete with the norms of the law. One may not change or condition the norms of the law, as well as their content, by government resolution. Otherwise, the constitutional principle of supremacy of laws in respect to substatutory acts would be violated.

4. The government resolution by which the Conditions were approved was adopted prior to the entry into force of the present Constitution. Article 2 of the Republic of Lithuania’s Law “On the Procedure for Entry into Force of the Constitution of the Republic of Lithuania” provides that laws, other legal acts, or parts thereof which were in effect on the territory of the Republic of Lithuania prior to the adoption of the Constitution of the Republic of Lithuania, shall be effective provided they do not contradict the Constitution and this Law. This norm obligates both the legislature and the executive to review prior adopted acts while taking account of the norms of the Constitution, and to ensure a harmonious hierarchical system of the legal acts that regulate the same relations.

Article 52 of the Constitution provides that the State shall guarantee the right of citizens to old age and disability pension, as well as to social assistance in the event of unemployment, sickness, widowhood, loss of breadwinner, and other cases provided by law. By this constitutional norm the legal regulation of social maintenance for citizens is guaranteed. Therefore, one may not establish conditions for the right of persons to social support, nor restrict the scope of the said right by a substatutory act.

It goes without saying, the constitutional status of social rights of its own accord does not deny the right of the legislature to establish certain conditions to or limitations on the emergence of the aforesaid rights. The Government may only particularise and concretise the conditions which are established by law. In the impugned case there was not any necessary legal regulation. The Government regulated those relations by a substatutory act. Thereby the constitutional principle of the legal protection of social rights of persons was violated.

The Constitutional Court also notes that the provisions of some subitems of the impugned item of the Conditions are formulated vaguely, while in formulating other subitems one disregarded the causality doctrine which is recognised in law. The Constitutional Court held so in its Ruling “On the Compliance of Item 4 of the Conditions under Which Persons are Insured by State Funds and of Compensation Payment upon Their Injury or Death in the Line of Duty Approved by Government Resolution No. 530 of 5 December 1991 with Article 48 of the Republic of Lithuania’s Law on the Police” of 3 December 1997.

In view of the arguments set forth, it should be concluded that Item 4 of the Conditions under Which Persons are Insured by State Funds and of Compensation Payment upon Their Injury or Death in the Line of Duty approved by government resolution No. 530 of 5 December 1991 to the extent that events not insured against are established for officials and volunteers of the voluntary service for protection of the country (for the time of their training and service) contradicts Article 25 of the Law on the Voluntary Service for Protection of the Country.

Conforming to Article 102 of the Constitution of the Republic of Lithuania and Articles 53, 54, 55 and 56 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following

ruling:

To recognise that Item 4 of the Conditions under Which Persons are Insured by State Funds and of Compensation Payment upon Their Injury or Death in the Line of Duty approved by the 5 December 1991 resolution (No. 530) of the Government of the Republic of Lithuania to the extent that events not insured against are established for officials and volunteers of the voluntary service for protection of the country (for the time of their training and service) contradicts Article 25 of the Republic of Lithuania’s Law on the Voluntary Service for Protection of the Country.

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

The ruling is pronounced in the name of the Republic of Lithuania.

Justices of the Constitutional Court:

 

Egidijus Jarašiūnas     Kęstutis Lapinskas     Zigmas Levickis

 

Augustinas Normantas     Vladas Pavilonis     Jonas Prapiestis

 

Pranas Vytautas Rasimavičius     Teodora Staugaitienė      Juozas Žilys