Lt

On awarding state pensions

Case No. 25/98-31/98-10/99-14/99-20/99-21/99-22/99-28/99

 

 

THE CONSTITUTIONAL COURT OF

THE REPUBLIC OF LITHUANIA

 

R U L I N G

 

On the compliance of Paragraph 4 of Article 11 of the Republic of Lithuania’s Law on State Pensions, Item 2 of Paragraph 3 of Article 8 of the Republic of Lithuania’s Law on the Legal Status of Victims of the Occupations of 1939–1990 with the Constitution of the Republic of Lithuania and on the compliance of Items 9 and 12 of the List “The 1939–1990 Occupations Repressive Structures, Services and Positions for Serving in Which Persons Shall not be Awarded State Pensions for Victims” as approved by the Resolution of the Government of the Republic of Lithuania (No. 829) “On the Approval of the List of the 1939–1990 Occupations Repressive Structures, Services and Positions for Serving in Which Persons Shall not be Awarded State Pensions for Victims” of 3 July 1998 with the Constitution of the Republic of Lithuania and Paragraph 4 of Article 11 of the Republic of Lithuania’s Law on State Pensions

 

Vilnius, 10 February 2000

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Egidijus Jarašiūnas, Egidijus Kūris, Zigmas Levickis, Augustinas Normantas, Vladas Pavilonis, Jonas Prapiestis, Vytautas Sinkevičius, Stasys Stačiokas, and Teodora Staugaitienė

The court reporter—Daiva Pitrėnaitė

Seimas member Antanas Napoleonas Stasiškis, and Jadvyga Andriuškevičiūtė, Jurgita Meškienė and Pranas Petkevičius, who are senior consultants to the Law Department of the Office of the Seimas; acting as the representatives of the Seimas of the Republic of Lithuania, a party concerned

Svetlana Černuševič, Head of the Pensions Division of the Ministry of Social Security and Labour of the Republic of Lithuania, and Arvydas Anušauskas, Director of the Genocide and Resistance Research Department of Lithuania, acting as the representatives of the Government of the Republic of Lithuania, a 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 12 January 2000, in its public hearing considered case No. 25/98-31/98-10/99-14/99-20/99-21/99-22/99-28/99 subsequent to the following petitions:

The 22 September 1998 petition of the First Vilnius Local Court requesting an investigation into whether the last sentence of Item 2 of Paragraph 2 of Article 8 of the Republic of Lithuania’s Law on the Legal Status of Persons Who Suffered from the Occupations of 1939–1990 and Subitem 12.5 of Item 12 of the List “The 1939–1990 Occupations Repressive Structures, Services and Positions for Serving in Which Persons Shall not be Awarded State Pensions for Victims” as approved by the Resolution of the Government of the Republic of Lithuania (No. 829) “On the Approval of the List of the 1939–1990 Occupations Repressive Structures, Services and Positions for Serving in Which Persons Shall not be Awarded State Pensions for Victims” of 3 July 1998 are in compliance with the Constitution of the Republic of Lithuania.

The 10 December 1998 petition of the Druskininkai City Local Court requesting an investigation into whether Paragraph 4 of Article 11 of the Republic of Lithuania’s Law on State Pensions, Subitem 12.5 of Item 12 of the List “The 1939–1990 Occupations Repressive Structures, Services and Positions for Serving in Which Persons Shall not be Awarded State Pensions for Victims” as approved by the Resolution of the Government of the Republic of Lithuania (No. 829) “On the Approval of the List of the 1939–1990 Occupations Repressive Structures, Services and Positions for Serving in Which Persons Shall not be Awarded State Pensions for Victims” of 3 July 1998 and Item 2 of Paragraph 2 of Article 8 of the Republic of Lithuania’s Law on the Legal Status of Persons Who Suffered from the Occupations of 1939–1990 are in compliance with the Constitution of the Republic of Lithuania.

The 3 May 1999 petition of the Vilnius Regional Administrative Court requesting an investigation into whether Item 12 of the List “The 1939–1990 Occupations Repressive Structures, Services and Positions for Serving in Which Persons Shall not be Awarded State Pensions for Victims” as approved by the Resolution of the Government of the Republic of Lithuania (No. 829) “On the Approval of the List of the 1939–1990 Occupations Repressive Structures, Services and Positions for Serving in Which Persons Shall not be Awarded State Pensions for Victims” of 3 July 1998 is in compliance with Paragraph 4 of Article 11 of the Republic of Lithuania’s Law on State Pensions.

The 26 May 1999 petition of the Panevėžys City Local Court requesting an investigation into whether Paragraph 4 of Article 11 of the Republic of Lithuania’s Law on State Pensions and Subitems 12.3 and 12.5 of Item 12 of the List “The 1939–1990 Occupations Repressive Structures, Services and Positions for Serving in Which Persons Shall not be Awarded State Pensions for Victims” as approved by the Resolution of the Government of the Republic of Lithuania (No. 829) “On the Approval of the List of the 1939–1990 Occupations Repressive Structures, Services and Positions for Serving in Which Persons Shall not be Awarded State Pensions for Victims” of 3 July 1998 are in compliance with the Constitution of the Republic of Lithuania.

The 17 June 1999 petition of the Klaipėda Regional Administrative Court requesting an investigation into whether Item 12 of the List “The 1939–1990 Occupations Repressive Structures, Services and Positions for Serving in Which Persons Shall not be Awarded State Pensions for Victims” as approved the Resolution of the Government of the Republic of Lithuania (No. 829) “On the Approval of the List of the 1939–1990 Occupations Repressive Structures, Services and Positions for Serving in Which Persons Shall not be Awarded State Pensions for Victims” of 3 July 1998 and Item 2 of Paragraph 2 of Article 8 of the Republic of Lithuania’s Law on the Legal Status of Persons Who Suffered from the Occupations of 1939–1990 are in compliance with the Constitution of the Republic of Lithuania and Paragraph 4 of Article 11 of the Republic of Lithuania’s Law on State Pensions.

The 29 June 1999 petition of the Klaipėda Regional Administrative Court requesting an investigation into whether Item 12 of the List “The 1939–1990 Occupations Repressive Structures, Services and Positions for Serving in Which Persons Shall not be Awarded State Pensions for Victims” as approved by the Resolution of the Government of the Republic of Lithuania (No. 829) “On the Approval of the List of the 1939–1990 Occupations Repressive Structures, Services and Positions for Serving in Which Persons Shall not be Awarded State Pensions for Victims” of 3 July 1998 and Item 2 of Paragraph 2 of Article 8 of the Republic of Lithuania’s Law on the Legal Status of Persons Who Suffered from the Occupations of 1939–1990 are in compliance with the Constitution of the Republic of Lithuania and Paragraph 4 of Article 11 of the Republic of Lithuania’s Law on State Pensions.

The 2 July 1999 petition of the Klaipėda Regional Administrative Court requesting an investigation into whether Item 9 and its Subitem 9.2 of the List “The 1939–1990 Occupations Repressive Structures, Services and Positions for Serving in Which Persons Shall not be Awarded State Pensions for Victims” as approved by the Resolution of the Government of the Republic of Lithuania (No. 829) “On the Approval of the List of the 1939–1990 Occupations Repressive Structures, Services and Positions for Serving in Which Persons Shall not be Awarded State Pensions for Victims” of 3 July 1998 are in compliance with the Constitution of the Republic of Lithuania and Paragraph 4 of Article 11 of the Republic of Lithuania’s Law on State Pensions.

The 22 September 1999 petition of the Klaipėda Regional Administrative Court requesting an investigation into whether Item 12 of the List “The 1939–1990 Occupations Repressive Structures, Services and Positions for Serving in Which Persons Shall not be Awarded State Pensions for Victims” as approved by the Resolution of the Government of the Republic of Lithuania (No. 829) “On the Approval of the List of the 1939–1990 Occupations Repressive Structures, Services and Positions for Serving in Which Persons Shall not be Awarded State Pensions for Victims” of 3 July 1998 is in compliance with the Constitution of the Republic of Lithuania and Paragraph 4 of Article 11 of the Republic of Lithuania’s Law on State Pensions and whether the provision “the Government of the Republic of Lithuania shall approve the list of the services and positions of the said institutions (structures) for serving in which persons shall not be awarded state pensions” of Paragraph 4 of Article 11 of the Republic of Lithuania’s Law on State Pensions is in compliance with the Constitution of the Republic of Lithuania.

By the 22 December 1999 decision of the Constitutional Court, all these petitions were joined into one case.

The Constitutional Court

has established:

I

The petitioners considered the civil cases subsequent to complaints of persons regarding termination of payment of state pensions for victims to them which had been awarded pursuant to Item 5 of Paragraph 4 of Article 11 of the Republic of Lithuania’s Law on State Pensions.

By means of their rulings, the said courts suspended the consideration of the cases and appealed to the Constitutional Court with the petitions requesting an investigation into whether Paragraph 4 of Article 11 of the Republic of Lithuania’s Law on State Pensions (Official Gazette Valstybės žinios, 1994, No. 101-2018; 1997, No. 104-2622) and Item 2 of Paragraph 2 of Article 8 of the Republic of Lithuania’s Law on the Legal Status of Persons Who Suffered from the Occupations of 1939–1990 (Official Gazette Valstybės žinios, 1998, No. 66-1609) were in compliance with the Constitution and whether Items 9 and 12 of List “The 1939–1990 Occupations Repressive Structures, Services and Positions for Serving in Which Persons Shall not be Awarded State Pensions for Victims” (hereinafter referred to as the List) as approved by the Resolution of the Government of the Republic of Lithuania (No. 829) “On the Approval of the List of the 1939–1990 Occupations Repressive Structures, Services and Positions for Serving in Which Persons Shall not be Awarded State Pensions for Victims” of 3 July 1998 (Official Gazette Valstybės žinios, 1998, No. 62-1781; 1999, No. 82-2432) were in compliance with the Constitution and Paragraph 4 of Article 11 of the Law on State Pensions.

Upon amendment of Paragraph 1 of Article 8 of the Law on the Legal Status of Persons Who Suffered from the Occupations of 1939–1990 on 4 January 2000, this article has been supplemented with new Paragraph 2. Former Paragraphs 2 and 3 became Paragraphs 3 and 4 (Official Gazette Valstybės žinios, 2000, No. 5-129). The content of the impugned paragraph has not been changed, while merely the sequence of the paragraphs of this article was changed. At present the impugned provision is contained in Paragraph 3 of this article, therefore, in this Constitutional Court ruling Item 2 of Paragraph 3 of Article 8 of the Law on the Legal Status of Persons Who Suffered from the Occupations of 1939–1990 will be investigated.

II

The petitions are based on the arguments which may be distributed into several groups:

1. Persons have been awarded state pensions for victims under Item 5 of Paragraph 4 of Article 11 of the Law on State Pensions. This law did not prohibit awarding such pensions to certain groups of persons nor did it provide for any limitations. No other law provides for the right to terminate payment of the awarded pension. It is possible to do so only in cases when the guilt of the person is established by a court but never on the grounds of the mere fact that he worked in certain structures or held a certain position. In the opinion of the petitioners, such termination of payment of state pensions for victims is in conflict with the Constitution.

2. The state pensions for victims were awarded under the Law on State Pensions, while their payment was terminated under another law—the Law on the Legal Status of Persons Who Suffered from the Occupations of 1939–1990. The petitioners are of the opinion that neither the Republic of Lithuania’s Law on the Status of the Participants of World War II Who Fought at the Side of the Anti-Hitlerite Coalition and Who Reside in Lithuania nor the Law on the Legal Status of Victims of the Occupations of 1939–1990 provide for the deeds for which state pension for victims shall not be awarded or its payment shall be terminated.

3. In the provision “the Government of the Republic of Lithuania shall approve the list of the services and positions of the said institutions (structures) for serving in which persons shall not be awarded state pensions” of Paragraph 4 of Article 11 of the Republic of Lithuania’s Law on State Pensions the structures and employees of the Communist Party of the Soviet Union (Communist Party of Lithuania) (CPSU (CPL)) are not directly pointed out as responsible for the genocide of the population of Lithuania. The payment of pensions is terminated on the grounds of the governmental resolution, i.e. a substatutory act, while it was held in the Constitutional Court’s ruling of 4 March 1999 that “under the universally recognised doctrine of protection of human rights and freedoms, it is possible to restrict the rights and freedoms only by law”. The petitioners doubt whether the Seimas was entitled to transfer to the executive the right to impose limitations on human rights and freedoms and whether the Government, while entering on the List respective positions, did not overstep its competence established by law.

III

In the course of the preparation of the case for the judicial consideration, written explanations of the representatives of the parties concerned, i.e. A. N. Stasiškis, J. Andriuškevičiūtė and P. Petkevičius, the representatives of the Seimas, and A. Anušauskas and S. Černuševič, the representatives of the Government, were received.

1. A. N. Stasiškis and J. Andriuškevičiūtė pointed out in their explanation that the Constitution contains neither any provisions regulating or creating pre-conditions for a definition of the status of victims otherwise than in the impugned law, nor for giving this status to the other persons, i.e. other than those provided for in the impugned law. Thus, to decide what groups of persons should be given the legal status of victims of the 1939–1990 occupations and what groups should not is within the competence of the legislature.

The main provisions on the grounds whereof the Seimas passed the impugned law are set forth in its preamble. It is set down therein that a great many residents of Lithuania suffered because of war crimes to humankind and humanity and that they suffered great material and spiritual losses. It was also recognised in the preamble that the right and duty of the State should take care of its citizens who are victims of the crimes committed against them by the occupation regimes. On the grounds of the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms and those of its protocols, the Seimas also defined the groups of persons that are deemed to be those experienced repression and victims and the groups which are not given the legal status of victims of the 1939–1990 occupations.

It is pointed out in the explanation that that 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, however, the Constitution does not provide as to when and under what conditions state pensions may be awarded. The nature of state pensions is of a different character than that of social insurance pensions or social (benefit) pensions which are based on the principles of social insurance or those of social assistance.

The citizens of the Republic of Lithuania, particularly those who have achieved merit in establishing and developing the statehood, and also mothers who have given birth to and have raised 10 or more children and have provided them with a good upbringing, and the persons who are victims of the occupations, are awarded state pensions. All state pensions shall be paid from the State Budget of the Republic of Lithuania (Paragraph 1 of Article 2 of the Law on State Pensions) regardless of the income of the person who receives a state pension.

The status of the victim as defined in the impugned law does not grant the person any privileges on the basis of his or her sex, race, nationality, language, origin, social status, religion, convictions, or opinions.

The right to the state pension for victims appears when a person conforms to certain conditions and requirements provided for in the law, therefore, termination of the right to the pension may not be judged to be an accusation or punishment. The right to receive pension appears and disappears under conditions provided for in the law.

It is maintained in the explanation that Paragraph 4 of Article 11 of the Law on State Pensions, Item 2 of Paragraph 2 of Article 8 of the Law on the Legal Status of Victims of the Occupations of 1939–1990 and Item 12 of the List are in conformity with the Constitution.

2. P. Petkevičius pointed out in his explanation that the Constitution does not regulate state pensions and that it does not provide as to whom and under what conditions they may be awarded. The nature of state pensions is of a different character than that of social insurance pensions, and their allocation is determined by means of a special law. The citizens of the Republic of Lithuania, particularly those who have achieved merit in establishing and developing the statehood, and also those who suffered from the occupations, repression and other violence, are awarded state pensions. All state pensions are paid from the State Budget of the Republic of Lithuania.

Thus, it is within the competence of the legislature to decide as to which groups of persons belong to the categories of victims of the occupations of 1939–1990 and which persons do not belong to these categories. Deciding this question, the legislature also had the right to commission the Government to approve the list of repressive occupation structures, services and positions for serving in which persons shall not be awarded state pensions for victims. Taking account of this, it is possible to assert that the provisions of Paragraph 4 of Article 11 of the Law on State Pensions are in conformity with the Constitution.

It is maintained in the explanation that the legal status of victims was not defined in the Law on State Pensions, therefore, this gap was filled by the Law on the Legal Status of Victims of the Occupations of 1939–1990. Paragraph 2 of Article 8 of the said law also provides as to which persons may not be given the legal status of victims.

Following Paragraph 4 of Article 11 of the Law on State Pensions, the Government approved the List which is in compliance with the provisions of the Law on State Pensions and those of the Law on the Legal Status of Victims of the Occupations of 1939–1990, therefore, they are in compliance with the Constitution.

3. A. Anušauskas pointed out in his explanation that the courts, while considering complaints regarding termination of payment of state pensions for participants of World War II, groundlessly link them with the Law on the Legal Status of Victims of the Occupations of 1939–1990. The legal status of the participants of World War II who fought at the side of the anti-Hitlerite coalition is regulated only by the Law on the Status of the Participants of World War II Who Fought at the Side of the Anti-Hitlerite Coalition and Who Reside in Lithuania. They are not mentioned in the Law on the Legal Status of Victims of the Occupations of 1939–1990 at all, therefore, under this law they do not enjoy the legal status of victims, thus, the said law is not applicable to them.

When the questions of pensions of participants of World War II are considered, one has to follow only the Law on the Status of the Participants of World War II Who Fought at the Side of the Anti-Hitlerite Coalition and Who Reside in Lithuania and the Law on State Pensions.

In Chapter 3 of the Law on the Status of the Participants of World War II Who Fought at the Side of the Anti-Hitlerite Coalition and Who Reside in Lithuania it is noted that the Government shall coordinate the questions of the deciding of social guarantees for participants of World War II. Thus, the Government, implementing the provisions of Articles 2 and 3 of this law and those of Paragraph 4 of Article 11 of the Law on State Pensions, confirmed the list of services and positions of the said institutions (structures) for serving in which persons shall not be awarded state pensions for victims.

4. S. Černuševič indicated in her explanation that until the going into effect of the Law on State Pensions (i.e. until 1 January 1995) the victims pointed out in Paragraphs 1 and 2 of Article 11 of this law were awarded age and disability pensions on the grounds of the 28 July 1990 Republic of Lithuania’s Law on the Improvement of Pension Maintenance for Residents.

On 1 January 1995, in Lithuania, the new Republic of Lithuania’s laws on social insurance pensions and state pensions went into effect. On their adoption, all the pensions awarded prior to 1 January 1995 were re-calculated. For the victims, whom pensions were awarded on the grounds of the Law on the Improvement of Pension Maintenance for Residents, pensions were re-calculated applying common principles of calculation of the social insurance period and that of income.

As certain compensation for the victims who were paid increased pensions until the pension reform, together with state social insurance old age pensions, disability pensions and widows’ and orphans’ pensions, from the same date (1 January 1995) one began to award and pay additional state pensions for victims from the State Budget. State pensions for victims are paid to the persons indicated in Paragraphs 1 and 2 of Article 11 of the Law on State Pensions: those who became disabled as a result of aggression perpetrated during 11–13 January 1991; the rehabilitated political prisoners and deportees; members of the resistance and participants in opposition to the Soviet occupation; those who in the course of World War II were deported for forced labour purposes; those who in the course of World War II served in active armies, partisan detachments or units of anti-Hitlerite coalition states, and in case of their death, the said pensions shall be paid to their family members.

By Item 3 of Article 5 of the Republic of Lithuania’s Law “On the Supplementation and Amendment of the Republic of Lithuania’s Law on State Pensions” of 4 July 1995 it was established that state pensions for victims shall be awarded and paid to participants of World War II provided they did not serve in anti-guerrilla squads and battalions.

On 11 July 1996, the Republic of Lithuania’s Law on the Supplementation and Amendment of Articles 11, 13, 14 and 15 of the Law on State Pensions was adopted. By means of this law, Article 11 was supplemented with Paragraph 4 providing that state pensions for victims shall not be awarded to individuals listed in Paragraphs 1 and 2 of Article 11 if during the period of 1939–1990 they served or worked in penal, anti-guerrilla detachments or units, structures of the State Security Committee of the former USSR and other structures whose activity had been devoted to combat against the resistance movement in Lithuania or perpetration of the genocide of the Lithuanian population.

Article 2 of the 20 August 1996 Law on the Status of the Participants of World War II Who Fought at the Side of the Anti-Hitlerite Coalition and Who Reside in Lithuania stipulates that “the status of participant shall not be given to persons who committed crimes to humanity, who served in penal (anti-guerrilla) detachments or units, who perpetrated actions of genocide of their own or other peoples, and who took part in massacre of civil population during the war and post-war years.”

On 30 June 1997 the Law on the Legal Status of Victims of the Occupations of 1939–1990 was adopted. This law provides as to what categories of persons the legal status of victims of the occupations of 1939–1990 is given. Paragraph 3 of Article 8 of the law provides that this status shall not be given: to the persons who perpetrated genocide crimes, crimes against humankind and to humanity or war crimes; regular employees of repressive structures of the Soviet Union and Nazi Germany, agents and informers of these structures, head employees of the national-socialist and communist parties, and members of the organisations and structures which acted against the independence and territorial integrity of Lithuania and its residents. The following persons are deemed to belong to head employees of the Communist Party: secretaries of the CC of the CPL, heads of its subdivisions down to the instructors of the branches, secretaries of district committees, heads and instructors of its subdivisions, regular party secretaries of enterprises and organisations.

Persons who, on the grounds of the provisions of the aforesaid laws, may not be deemed to have the status of victims, may not be awarded and paid state pensions for victims, thus, in October 1997, the Ministry of Social Security and Labour commissioned the Board of State Social Insurance Fund to check up whether in territorial social insurance divisions the said provisions of laws are followed when state pensions are awarded and paid.

Persons began to file applications with state institutions whom payments of state pensions for victims were terminated due to the fact that they formerly worked in the system of the Ministry of the Interior as firemen, watchmen, stokers etc., therefore, it was decided to specify the wording of Paragraph 4 of Article 11 of the Law on State Pensions (the Republic of Lithuania’s Law on the Supplementation and Amendment of Articles 2, 3, 5, 8, 10, 11, 12, 13 and 14 of the Law on State Pensions of 4 November 1997), by commissioning the Government to approve the list of repressive structures, services and positions for serving in which persons shall not be awarded state pensions for victims. This law came into force on 1 January 1998. The pensions awarded prior to the coming into force of this law, under its provisions, are re-calculated as of 1 January 1998.

By means of its resolution No. 829 of 3 July 1998, the Government approved the list of services and positions of the said institutions for serving in which persons shall not be awarded state pensions for victims. When one conforms to this list, this is not violation of laws, and vice versa, the Law on the Legal Status of Victims of the Occupations of 1939–1990 and the Law on State Pensions would be violated if state pensions for victims were awarded and paid to persons who are not given the legal status by the said laws.

Analogous explanations are set forth in the written explanation of A. Nazarovas, Vice-Minister of Social Security and Labour.

IV

In the course of the preparation of the case for the Constitutional Court hearing, a written note of Assoc. Prof. Dr. R. Lazutka who works at the Social Labour Department of the Faculty of Philosophy of Vilnius University was received.

A written note of the Republic Committee of the Organisation of the Participants of World War II Who Fought at the Side of the Anti-Hitlerite Coalition and Who Reside in Lithuania was also received.

V

In the Constitutional Court hearing, the representatives of the parties concerned A. N. Stasiškis, J. Andriuškevičiūtė, J. Meškienė, P. Petkevičius, A. Anušauskas and J. Černuševič virtually reiterated the arguments set forth in their written explanations.

In the Constitutional Court hearing the specialist R. Lazutka virtually reiterated the explanations set forth in his written note.

In the Constitutional Court hearing P. Eidukas, Chairman of the Republic Committee of the Organisation of the Participants of World War II Who Fought at the Side of the Anti-Hitlerite Coalition and Who Reside in Lithuania, and A. M. Stankevičius, the secretary of the Republic Committee of the said organisation, spoke as witnesses.

The Constitutional Court

holds that:

The petitioners request an investigation into whether Paragraph 4 of Article 11 of the Law on State Pensions, Item 2 of Paragraph 3 of Article 8 of the Law on the Legal Status of Victims of the Occupations of 1939–1990 are in conformity with the Constitution and whether Items 9 and 12 of the List “The 1939–1990 Occupations Repressive Structures, Services and Positions for Serving in Which Persons Shall not be Awarded State Pensions for Victims” as approved by the Resolution of the Government of the Republic of Lithuania (No. 829) “On the Approval of the List of the 1939–1990 Occupations Repressive Structures, Services and Positions for Serving in Which Persons Shall not be Awarded State Pensions for Victims” of 3 July 1998 are in conformity with Paragraph 4 of Article 11 of the Law on State Pensions and the Constitution.

I

On the compliance of Paragraph 4 of Article 11 of the Law on State Pensions with the Constitution.

1. Requesting an investigation into the compliance of Paragraph 4 of Article 11 of the Law on State Pensions with the Constitution, the petitioners do not point out any particular article of the Constitution with which, in their opinion, the said law might be in conflict. Taking account of the fact that the right of citizens to receive pensions and social assistance is established in Article 52 of the Constitution, the Constitutional Court will investigate the compliance of Paragraph 4 of Article 11 of the Law on State Pensions with Article 52 of the Constitution.

2. Article 52 of the Constitution provides: “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.”

This article indicates types of pensions and social assistance. The wording “the State shall guarantee” as employed therein means that the pensions (those of old age and disability) and the social assistance (in the event of unemployment, sickness, widowhood, loss of breadwinner) enumerated in this article must necessarily be provided for. Alongside, Article 52 of the Constitution pre-supposes the fact that the relations pointed out therein must be regulated by law.

Under Article 52 of the Constitution, laws may provide for other types of pensions or social assistance, and not only those pointed out in the said article. The Constitution guarantees them for the subjects defined by law. The bases as well as the size of these pensions must also be provided for by law. The state pensions provided for in the Law on State Pensions should also be categorised as such payments.

3. Paragraph 1 of Article 1 of the Law on State Pensions provides for the following state pensions:

1) state pension to the President of the Republic;

2) first and second degree state pensions of the Republic of Lithuania;

3) state pension for victims;

4) state pensions to officials and military personnel;

5) state pensions to scientists.

It is provided in this article of the law that state pension for victims is one type of state pensions. Virtually, state pension for victims is social assistance given to the persons who suffered certain losses. Under Article 52 of the Constitution, the persons entitled to receive state pensions for victims, the bases to receive them and their size, the conditions of their award and payment must be established in the law. Under the Law on State Pensions, state pensions for victims shall be paid from the State Budget but not from the Fund of Social Insurance.

4. Article 11 of the Law on State Pensions provides:

Entitlement to state pensions for victims shall apply to permanent residents of Lithuania who are not recipients of similar pension payments from another state (with the exception of social insurance pension) or other permanent compensation payments:

1) those who became victims as a result of aggression perpetrated during 11–13 January 1991 and subsequent events;

2) political prisoners and deportees, pursuant to presentation of the documents (rehabilitation certificates) issued by law protection institutions of the Republic of Lithuania, attesting to restoration of political prisoners’ and deportees’ rights, or certificates of the occupations victims (those indicating the legal status of a political prisoner or deportee) issued by the Genocide and Resistance Research Centre of Lithuania;

3) members of the resistance and participants of the opposition to the Soviet occupation who have been certified according to established procedure as resistance and opposition participants;

4) those who in the course of World War II were deported for forced labour purposes outside the former USSR boundaries or were committed to ghettos and concentration camps;

5) those who in the course of World War II served in active armies, partisan detachments or units of anti-Hitlerite coalition states;

6) participants of the elimination of the consequences of the accident at the Chernobyl Nuclear Power Plant;

7) those who became disabled as a result of compulsory military service or military training in the Soviet Army (22 July 1945–31 December 1991), or were later certified as disabled due to illnesses incurred in connection with military service.

Also entitled to state pensions for victims, in accordance with the conditions provided for by this Law, shall be the parents, spouses and children of:

1) individuals who perished as a result of aggression perpetrated during 11–13 January 1991 and subsequent events;

2) individuals who perished in the course of actions of resistance and opposition to the Soviet occupation, and also, those who were killed or who died in the course of unlawful imprisonment or exile;

3) individuals who perished during or as a result of activities in eliminating the consequences of the accident at the Chernobyl Nuclear Power Plant;

4) individuals who perished during or as a result of compulsory military service in the Soviet Army (22 July 1945-31 December 1991), or those who died subsequently as a result of illnesses incurred in connection with military service.

The Genocide and Resistance Research Centre of Lithuania shall confirm the list of ghettos and concentration camps.

State pensions for victims shall not be awarded to individuals listed in Paragraphs 1 and 2 of this Article if during the period of 1939–1990, they served or worked in penal (anti-guerrilla), or ‘defenders of the people’ detachments or units, structures of the State Security Committee of the former USSR and other structures whose activity had been devoted to combat against the resistance movement in Lithuania or perpetration of the genocide of the Lithuanian population. The Government of the Republic of Lithuania shall approve the list of the services and positions of the said institutions (structures) for serving in which persons shall not be awarded state pensions for victims.”

Thus, in this article of the Law on State Pensions persons are pointed out who are entitled to receive state pensions for victims. In addition, conditions are established therein when persons of the enumerated groups are not awarded state pensions.

5. It is pointed out in the petitions of the petitioners that they had doubts regarding the compliance of Paragraph 4 of Article 11 of the Law on State Pensions when they were considering the cases concerning the termination of state pension payments to persons who in the course of World War II served in active armies, partisan detachments or units of anti-Hitlerite coalition states (hereinafter referred to as participants of World War II).

Taking account of the fact that the articles of the Law on State Pensions regulating the questions of awarding state pensions to participants of World War II were amended and supplemented with new legal norms, in the context of the petitions at issue it is important to establish as to how the legal regulation of the said relations was changed.

It was established in Item 5 of Paragraph 1 of Article 11 of the 22 December 1994 Law on State Pensions that participants of World War II are entitled to receive state pensions for victims.

In the Law on the Supplementation and Amendment of the Republic of Lithuania’s Law on State Pensions of 4 July 1995 a reservation was provided for: the participants of World War II who served in anti-guerrilla units and battalions are not entitled to receive state pensions for victims. Thus, by this amendment of the law it was established that persons who had served in particular structures are not entitled to receive state pensions for victims.

By means of the Law on the Supplementation and Amendment of Articles 11, 13, 14 and 15 of the Law on State Pensions of 11 July 1996, Article 11 was supplemented with Paragraph 4: “State pensions for victims shall not be awarded to individuals listed in Paragraphs 1 and 2 of this Article if during the period of 1939–1954, they served or worked in penal (anti-guerrilla), or ‘defenders of the people’ detachments or units, structures of the former State Security Committee of the USSR and other structures whose activity had been devoted to combat against the resistance movement in Lithuania or perpetration of the genocide of the Lithuanian population.” Thus, in this norm additional, formerly not mentioned institutions (structures)—“defenders of the people” detachments or units and the former State Security Committee of the USSR, are established, the period is pointed out (1939–1954) for the service or work in the said institutions (structures) during which the persons are not awarded state pensions for victims. It is also established therein that state pensions for victims shall not be awarded to individuals who during the said period served or worked in other structures whose activity had been devoted to combat against the resistance movement in Lithuania or perpetration of the genocide of the Lithuanian population.

By means of the Law on the Supplementation and Amendment of Articles 2, 3, 5, 8, 10, 11, 12, 13 and 14 of the Law on State Pensions of 4 November 1997, in Paragraph 4 of Article 11 instead the period of 1939–1954 another period was established, which is 1939–1990, and it was supplemented with the following sentence: “The Government of the Republic of Lithuania shall approve the list of the services and positions of the said institutions (structures) for serving in which persons shall not be awarded state pensions for victims.” Thus, by this law the Government was empowered to point out the institutions (structures), services and positions for serving in which persons shall not be awarded state pensions for victims. These powers of the Government virtually mean that the Government has the right to establish as to which persons may not be awarded the said pensions.

6. It needs to be noted that in Paragraph 4 of Article 11 of the Law on State Pensions the following main provisions are established:

1) institutions (structures)—penal (anti-guerrilla), or “defenders of the people” detachments or units, structures of the former State Security Committee of the USSR—are established for the service or work in which during the said period persons are not awarded state pensions for victims, and it is provided that the Government is empowered to approve the list of the services and positions of the said institutions (structures) for serving in which persons shall not be awarded state pensions for victims;

2) it is established that state pensions for victims shall not be awarded to persons who during the said period served or worked in other institutions (structures), and that the Government is empowered to point out services and positions in these other institutions (structures) for the service in which persons are not awarded state pensions for victims.

7. In the course of the investigation into whether Paragraph 4 of Article 11 of the Law on State Pensions are in compliance with the Constitution, it is important to establish if the titles of the institutions (structures) sufficiently clearly define the institutions (structures) for the work or service in which during the said period persons are not awarded state pensions for victims.

The notions “penal (anti-guerrilla), or ‘defenders of the people’ detachments or units” clearly define the institutions (structures) for the work or service in which during the said period persons are not awarded state pensions for victims.

Paragraph 4 of Article 11 of the Law on State Pensions employs the notion Security Committee of the USSR. After the independence of the Republic of Lithuania had been restored, in the legal acts of the Republic of Lithuania the Security Committee of the USSR was repeatedly judged to be a repressive institution of the occupation government. It needs to be noted that the notion Security Committee of the USSR employed in the Law on State Pensions should be interpreted as defining various institutions, structures, services which belonged to the system of the institutions of state security of the USSR. Thus, this notion also embraces the NKVD, NKGB, MGB, KGB. It is such a conception of the notion Security Committee of the USSR which is given in the Law “On the Assessment of the USSR Committee of State Security (NKVD, NKGB, MGB, KGB) and Present Activities of the Regular Employees of This Organisation” of 16 July 1998 and which is construed in the Constitutional Court’s ruling of 4 March 1999.

As mentioned before, Paragraph 4 of Article 11 of the Law on State Pensions clearly indicates institutions (structures)—penal (anti-guerrilla), or “defenders of the people” detachments or units and the Security Committee of the USSR—and provides that for the service or work in which during 1939–1990 persons are not awarded state pensions for victims. Thus, by this legal norm clear legal regulation and its limits are established. The legal norm by which the Government is empowered to determine the services and positions in the clearly indicated institutions (structures) by law for the service or work in which during the said period persons are not awarded state pensions for victims should be regarded as granting the right to the Government precisely to point out particular positions and services and as not providing the Government with the legal grounds to change the limits of legal regulation established in the law.

On the grounds of the arguments set forth, it should be concluded that the provision of Paragraph 4 of Article 11 of the Law on State Pensions to the extent that the Government shall approve the list of the services and positions for serving in which during the period of 1939–1990 in penal (anti-guerrilla), or ‘defenders of the people’ detachments or units, structures of the State Security Committee of the former USSR persons listed in Paragraphs 1 and 2 of this article shall not be awarded state pensions for victims is in conformity with the Constitution.

8. It is established in the Law on the Supplementation and Amendment of Articles 2, 3, 5, 8, 10, 11, 12, 13 and 14 of the Law on State Pensions of 4 November 1997 that the Government is empowered to approve the list of services and positions of other institutions (structures) for serving in which persons shall not be awarded state pensions for victims. The law does not give a clear definition of these other institutions (structures), i.e. the Government is commissioned to do it by substatutory act. Enjoying the powers to approve the list of services and positions of other institutions (structures) for serving in which persons shall not be awarded state pensions for victims under the Law on State Pensions, the Government has also the right to establish persons who shall not be awarded these pensions.

As mentioned before, under Article 52 of the Constitution, persons who are entitled to receive state pensions for victims, the bases to receive them, their size, the conditions of their award and payment must be provided by law. It needs to be noted that the legislature has also the right to establish as to which persons are not awarded state pensions for victims. However, the legal regulation established in Article 52 of the Constitution pre-supposes the fact that in cases when one intends to establish that under certain conditions particular groups of persons are not entitled to receive the said pension, then such persons must be pointed out in the law.

On the grounds of the reasoning set forth, the conclusion should be drawn that the provisions of Paragraph 4 of Article 11 of the Law on State Pensions by which state pensions for victims shall not be awarded to individuals listed in Paragraphs 1 and 2 of this Article if during the period of 1939–1990 they served or worked in other institutions (structures) clearly not indicated by law, and by which the Government shall approve the list of the services and positions of the other institutions (services) not indicated in the law for serving in which persons shall not be awarded state pensions for victims conflict with Article 52 of the Constitution.

9. Construing the provision “The scope of power shall be limited by the Constitution” of Paragraph 2 of Article 5 of the Constitution, as well as other provisions of the Constitution, the Constitutional Court has held in its rulings many a time that in cases when the Constitution directly provides for the powers of a concrete institution of authority, then no other institution may take over these powers, while the institution whose powers are established in the Constitution may neither transfer nor waive these powers. Such powers may not be changed or limited by law (rulings of 21 April 1998, 3 June 1999, 9 July 1999). Therefore, the conclusion should be drawn that the provision of Paragraph 4 of Article 11 of the Law on State Pensions by which the Government shall approve the list of the services and positions of the other institutions (services) not indicated in the law for serving in which persons shall not be awarded state pensions for victims conflicts with Article 5 of the Constitution.

10. In all cases legal regulation must be clear and it must not lead to ambiguities. Therefore, in laws concepts must be employed clearly and according to their real meaning.

The wording “pensions shall not be awarded” is employed in Paragraph 4 of Article 11 of the Law on State Pensions. In the context of the legally regulated relations, the notion shall not be awarded is employed in a legally improper manner as it may be interpreted in different ways and this creates pre-conditions differently to comprehend and apply the norms of Paragraph 4 of Article 11 of the Law on State Pensions. It needs to be noted that in the course of the disclosure of the content of the notion shall not be awarded this notion must be construed by taking account of the whole-complex of the legal regulation established in the law and its purpose. As mentioned before, the Law on State Pensions indicates the persons who are not awarded this pension. Therefore, in the context of the Law on State Pensions the notion shall not be awarded should be construed as meaning that state pensions for victims may not be awarded for the persons pointed out in the law, while the persons to whom these pensions were awarded lose the right to receive this pension (i.e. the payment of the pension is terminated). A different construction of the notion shall not be awarded would not be in line with the content and purpose of the legal regulation established in the Law on State Pensions.

II

On the compliance of Paragraph 4 of Article 11 of the Law on State Pensions with Article 31 of the Constitution.

Article 31 of the Constitution provides:

Every person shall be presumed innocent until proven guilty according to the procedure established by law and until declared guilty by an effective court sentence.

Every indicted person shall have the right to a fair and public hearing by an independent and impartial court. Persons cannot be compelled to give evidence against themselves or against their family members or close relatives.

Punishments may only be administered or applied on the basis of law.

No person may be punished for the same offence twice.

From the moment of arrest or first interrogation, persons suspected or accused of a crime shall be guaranteed the right to defence and legal counsel.”

These norms of the Constitution are designated for guaranteeing the implementation of the principles of justice in criminal proceedings. In the Law on State Pensions different social relations are regulated. Thus, it should be concluded that Paragraph 4 of Article 11 of the Law on State Pensions is in compliance with Article 31 of the Constitution.

III

On the compliance of Items 9 and 12 of the List “The 1939–1990 Occupations Repressive Structures, Services and Positions for Serving in Which Persons Shall not be Awarded State Pensions for Victims” as approved by the Government Resolution (No. 829) “On the Approval of the List of the 1939–1990 Occupations Repressive Structures, Services and Positions for Serving in Which Persons Shall not be Awarded State Pensions for Victims” of 3 July 1998 with the Constitution of the Republic of Lithuania and Paragraph 4 of Article 11 of the Republic of Lithuania’s Law on State Pensions.

1. By invoking the Law on State Pensions, on 3 July 1998, the Government adopted the Resolution (No. 829) “On the Approval of the List of the 1939–1990 Occupations Repressive Structures, Services and Positions for Serving in Which Persons Shall not be Awarded State Pensions for Victims” by which the List “The 1939–1990 Occupations Repressive Structures, Services and Positions for Serving in Which Persons Shall not be Awarded State Pensions for Victims” (hereinafter referred to as the List) was approved.

2. By means of its ruling of 2 July 1999, the Klaipėda Regional Administrative Court requests an investigation into whether Item 9 of the List is in compliance with Paragraph 4 of Article 11 of the Law on State Pensions and the Constitution. The petitioner has doubts that by Item 9 of the List one may have overstepped the limits of legal regulation.

Item 9 of the List reads:

Services of the militarised units subordinate to the People’s Interior Commissariat (NKVD)-Interior Ministry (MVD) and the People’s State Security Commissariat (NKGB)-Ministry of State Security (MGB) (period of 1944–1954):

9.1. members of anti-guerrilla battalions;

9.2. members of the defenders of the people units.”

Under Article 52 of the Constitution, persons entitled to receive pension must be indicated in the law. Item 5 of Paragraph 1 of Article 11 of the Law on State Pensions provides that entitlement to state pensions for victims shall apply to persons who in the course of World War II served in active armies, partisan detachments or units of anti-Hitlerite coalition states. Paragraph 4 of Article 11 of the Law on State Pensions provides that this pension shall not be awarded to those participants of World War II who during the period of 1939–1990 served or worked in penal (anti-guerrilla) units or “defenders of the people” units or detachments, and that the Government shall approve the list of the services and positions of these institutions (structures) for serving in which persons shall not be awarded state pensions for victims. It has already been held in the present Constitutional Court ruling, that this provision of the law is in compliance with the Constitution.

Item 9 of the List points out the positions of the institutions (structures) defined by Paragraph 4 of Article 11 of the Law on State Pensions, i.e. penal (anti-guerrilla) units or detachments or “defenders of the people” units or detachments. The fact that these positions are pointed out in the governmental resolution, i.e. a substatutory act, does not change the content and limits of the legal regulation established by law.

On the grounds of the reasoning set forth, it should be concluded that Item 9 of the List “The 1939–1990 Occupations Repressive Structures, Services and Positions for Serving in Which Persons Shall not be Awarded State Pensions for Victims” as approved by the Government Resolution (No. 829) “On the Approval of the List of the 1939–1990 Occupations Repressive Structures, Services and Positions for Serving in Which Persons Shall not be Awarded State Pensions for Victims” of 3 July 1998 is in compliance with Paragraph 4 of Article 11 of the Law on State Pensions and the Constitution.

3. The First Vilnius Local Court, the Druskininkai District Court, the Klaipėda Regional Administrative Court (by means of the rulings of 17 June 1999, 29 June 1999 and 22 September 1999), the Panevėžys City Local Court, the Vilnius Regional Administrative Court request an investigation into whether Item 12 of the List is in conformity with Paragraph 4 of Article 11 of the Law on State Pensions and the Constitution. The petitioners have doubts that by Item 12 of the List one may have overstepped the limits of legal regulation.

Item 12 of the List reads (the wording of 27 September 1999 Government Resolution No. 1055):

The positions of the All-Union Communist (Bolshevik) Party and the Communist Party of the Soviet Union:

12.1. secretaries of the CC of the CPL;

12.2. heads of subdivisions of the CC of the CPL down to the instructors of the branches;

12.3. secretaries of town and district (region) committees;

12.4. heads and instructors of town and district (region) subdivisions;

12.5. regular party secretaries of enterprises and organisations”.

As mentioned before, under Article 52 of the Constitution, the persons entitled to receive state pensions for victims, the bases to receive them and their size, the conditions of their award and payment must be established in the law. It needs to be noted that the legislature is also entitled to determine as to which persons may not be awarded state pensions for victims. However, the legal regulation established in Article 52 of the Constitution pre-supposes the fact that in cases when one intends to establish that under certain conditions particular groups of persons are not entitled to receive the said pension, then such persons must be pointed out in the law.

Approving Item 12 of the List, the Government was following the Law on State Pensions under Paragraph 4 of Article 11 whereof it must approve the list of the services and positions in the institutions (structures) which have not been clearly pointed out in the law for serving in which persons shall not be awarded state pensions for victims. Alongside, the right of the Government to determine the services and positions means that the Government is empowered to point out the persons who shall not be awarded state pensions for victims by means of its resolution, i.e. by substatutory act. However, under Article 52 of the Constitution, such persons must be pointed out in the law.

It needs to be noted that under Paragraph 2 of Article 5 of the Constitution, the scope of power shall be limited by the Constitution. By approving Item 12 of the List by means of the impugned resolution, the Government regulated the relations which, under Article 52 of the Constitution, must be regulated by law.

On the grounds of the reasoning set forth, it should be concluded that as to its form Item 12 of the List “The 1939–1990 Occupations Repressive Structures, Services and Positions for Serving in Which Persons Shall not be Awarded State Pensions for Victims” as approved by the Government Resolution (No. 829) “On the Approval of the List of the 1939–1990 Occupations Repressive Structures, Services and Positions for Serving in Which Persons Shall not be Awarded State Pensions for Victims” of 3 July 1998 conflicts with Articles 5 and 52 of the Constitution.

4. Having held that Item 12 of the List conflicts with Articles 5 and 52 of the Constitution as to its form, the Constitutional Court will not investigate its compliance with the Constitution as to its content.

5. As held in the present Constitutional Court ruling, the provision of Paragraph 4 of Article 11 of the Law on State Pensions by which state pensions for victims shall not be awarded to individuals listed in Paragraphs 1 and 2 of this Article if during the period of 1939–1990 they served or worked in other institutions (structures) clearly not indicated in the law conflicts with Article 52 of the Constitution, and that the provision by which the Government shall approve the list of the services and positions of the said institutions (structures) for serving in which persons shall not be awarded state pensions for victims conflicts with Articles 5 and 52 of the Constitution. The Constitutional Court has also held that as to its form Item 12 of the List “The 1939–1990 Occupations Repressive Structures, Services and Positions for Serving in Which Persons Shall not be Awarded State Pensions for Victims” as approved by the Government Resolution (No. 829) “On the Approval of the List of the 1939–1990 Occupations Repressive Structures, Services and Positions for Serving in Which Persons Shall not be Awarded State Pensions for Victims” of 3 July 1998 conflicts with Articles 5 and 52 of the Constitution.

Having held that the said provisions of the Law on State Pensions and Item 12 of the List approved by the governmental resolution conflict with the Constitution, the Constitutional Court will not investigate the compliance of Item 12 of the List with Paragraph 4 of Article 11 of the Law on State Pensions.

IV

On the compliance of Item 2 of Paragraph 3 of Article 8 of the Law on the Legal Status of Victims of the Occupations of 1939–1990 with the Constitution.

The Law on the Legal Status of Victims of the Occupations of 1939–1990 provides as to what persons are held as persecuted by the occupation governments of Nazi Germany and the Soviet Union for political motives or those of origin (political, religious, national, social or ethnic etc.) and are deemed to be victims of the occupations of 1939–1990.

Item 2 of Paragraph 3 of Article 8 of this law provides that the legal status of victims of the occupations of 1939–1990 shall not be recognised to “regular employees of the repressive structures of Nazi Germany and the Soviet Union, agents and informers of these structures, head employees of the national-socialist and communist parties, and members of the organisations and structures which acted against the independence and territorial integrity of Lithuania and its residents. The following persons are deemed to belong to head employees of the Communist Party: secretaries of the CC of the CPL, heads of its subdivisions down to the instructors of the branches, secretaries of district committees, heads and instructors of its subdivisions, regular party secretaries of enterprises and organisations.”

The petitioners do not request an investigation into the compliance of the norm set forth to the extent that the legal status of victims of the occupations of 1939–1990 shall not be recognised to regular employees of the repressive structures of Nazi Germany, agents and informers of these structures, head employees of the national-socialist parties with the Constitution.

The Constitutional Court will investigate the compliance of Item 2 of Paragraph 3 of Article 8 of the Law on the Legal Status of Victims of the Occupations of 1939–1990 with the Constitution to the extent that the legal status of victims of the occupations of 1939–1990 shall not be recognised to regular employees of the repressive structures of the Soviet Union, agents and informers of these structures, head employees of the communist party, and members of the organisations and structures which acted against the independence and territorial integrity of Lithuania and its residents.

It needs to be noted that the Constitution does not regulate questions of recognition of persons as victims of occupation governments. This may be regulated by law. Enjoying its discretion in this area, the Seimas is bound by the principle of the equality of all persons before the law which is established in Article 29 of the Constitution and by other constitutional principles.

After the persons had been pointed out in Item 2 of Paragraph 3 of Article 8 of the impugned law that are not given the status of victims of the occupations of 1939–1990, the provisions of Article 29 of the Constitution or its other articles are not violated. Therefore, Item 2 of Paragraph 3 of Article 8 of the Law on the Legal Status of Victims of the Occupations of 1939–1990 to the extent that the legal status of victims of the occupations of 1939–1990 shall not be recognised to regular employees of the repressive structures of the Soviet Union, agents and informers of these structures, head employees of the communist party, and members of the organisations and structures which acted against the independence and territorial integrity of Lithuania and its residents is in compliance with the Constitution.

V

By means of its rulings of 17 June 1999 and 29 June 1999, the Klaipėda Regional Administrative Court requests an investigation into whether Item 2 of Paragraph 3 of Article 8 of the Law on the Legal Status of Victims of the Occupations of 1939–1990 is in compliance with Paragraph 4 of Article 11 of the Law on State Pensions.

Under Paragraph 1 of Article 105 of the Constitution and Item 1 of Paragraph 1 of Article 63 of the Law on the Constitutional Court, the Constitutional Court shall consider whether laws of the Republic of Lithuania and other acts of the Seimas are in conformity with the Constitution. The Constitutional Court does not consider whether a certain law is in compliance with another law, therefore, the petitions of the Klaipėda Regional Administrative Court requesting an investigation into whether Item 2 of Paragraph 3 of Article 8 of the Law on the Legal Status of Victims of the Occupations of 1939–1990 is in compliance with Paragraph 4 of Article 11 of the Law on State Pensions are not within the jurisdiction of the Constitutional Court. Under Item 2 of Paragraph 1 of Article 69 of the Constitutional Court, this constitutes grounds to refuse to consider the petitions requesting an investigation into whether Item 2 of Paragraph 3 of Article 8 of the Law on the Legal Status of Victims of the Occupations of 1939–1990 is in compliance with Paragraph 4 of Article 11 of the Law on State Pensions. In this part the case should be dismissed (Paragraph 3 of Article 69 of the Law on the Constitutional Court).

Conforming to Article 102 of the Constitution of the Republic of Lithuania and Articles 53, 54, 55, 56 and Paragraph 3 of Article 69 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following

ruling:

1. To recognise that Paragraph 4 of Article 11 of the Republic of Lithuania’s Law on State Pensions to the extent that the Government of the Republic of Lithuania shall approve the list of the services and positions for serving in which during the period of 1939–1990 in penal (anti-guerrilla), or ‘defenders of the people’ detachments or units, structures of the State Security Committee of the former USSR persons listed in Paragraphs 1 and 2 of this article shall not be awarded state pensions for victims is in compliance with the Constitution of the Republic of Lithuania.

2. To recognise that Paragraph 4 of Article 11 of the Republic of Lithuania’s Law on State Pensions to the extent that state pensions for victims shall not be awarded to individuals listed in Paragraphs 1 and 2 of this Article if during the period of 1939–1990 they served or worked in the other institutions (structures) clearly not indicated by law, and that the Government of the Republic of Lithuania shall approve the list of the services and positions of the said institutions (structures) for serving in which persons shall not be awarded state pensions for victims conflicts with Article 52 of the Constitution of the Republic of Lithuania.

3. To recognise that Paragraph 4 of Article 11 of the Republic of Lithuania’s Law on State Pensions to the extent that the Government of the Republic of Lithuania shall approve the list of the services and positions of the other institutions (services) not indicated in the law for serving in which persons shall not be awarded state pensions for victims conflicts with Article 5 of the Constitution of the Republic of Lithuania.

4. To recognise that Paragraph 4 of Article 11 of the Republic of Lithuania’s Law on State Pensions is in compliance with Article 31 of the Constitution of the Republic of Lithuania.

5. To recognise that Item 9 of the List “The 1939–1990 Occupations Repressive Structures, Services and Positions for Serving in Which Persons Shall not be Awarded State Pensions for Victims” as approved by the Resolution of the Government of the Republic of Lithuania (No. 829) “On the Approval of the List of the 1939–1990 Occupations Repressive Structures, Services and Positions for Serving in Which Persons Shall not be Awarded State Pensions for Victims” of 3 July 1998 is in compliance with Paragraph 4 of Article 11 of the Republic of Lithuania’s Law on State Pensions and the Constitution of the Republic of Lithuania.

6. To recognise that Item 12 of the List “The 1939–1990 Occupations Repressive Structures, Services and Positions for Serving in Which Persons Shall not be Awarded State Pensions for Victims” as approved by the Resolution of the Government of the Republic of Lithuania (No. 829) “On the Approval of the List of the 1939–1990 Occupations Repressive Structures, Services and Positions for Serving in Which Persons Shall not be Awarded State Pensions for Victims” of 3 July 1998 conflicts with Articles 5 and 52 of the Constitution of the Republic of Lithuania.

7. To recognise that Item 2 of Paragraph 3 of Article 8 of the Republic of Lithuania’s Law on the Legal Status of Victims of the Occupations of 1939–1990 to the extent that the legal status of victims of the occupations of 1939–1990 shall not be recognised to regular employees of the repressive structures of the Soviet Union, agents and informers of these structures, head employees of the communist party, and members of the organisations and structures which acted against the independence and territorial integrity of Lithuania and its residents is in compliance with the Constitution of the Republic of Lithuania.

8. To dismiss the case regarding the petition requesting an investigation into whether Item 2 of Paragraph 3 of Article 8 of the Republic of Lithuania’s Law on the Legal Status of Victims of the Occupations of 1939–1990 is in compliance with Paragraph 4 of Article 11 of the Republic of Lithuania’s Law on State Pensions.

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      Egidijus Kūris      Zigmas Levickis

Augustinas Normantas       Vladas Pavilonis       Jonas Prapiestis

Vytautas Sinkevičius       Stasys Stačiokas      Teodora Staugaitienė