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On the state pensions of officials and servicemen of the systems of the interior, state security, defence, and prosecutor’s office

Case No. 10/2000

 

 

THE CONSTITUTIONAL COURT OF

THE REPUBLIC OF LITHUANIA

 

R U L I N G

 

On the compliance of Item 8 of the Regulations of the Granting and Payment of State Pensions to Officials and Servicemen of the Systems of the Interior, State Security, Defence and Prosecutor’s Office approved by the Resolution of the Government of the Republic of Lithuania (No. 83) “On the Approval of the Regulations of the Granting and Payment of State Pensions to Officials and Servicemen of the Systems of the Interior, State Security, Defence and Prosecutor’s Office and the Establishment of the Time of Service Necessary in Order to Receive a Respective Percentage Extra Pay for the Years of Service” of 20 January 1995 with the Constitution of the Republic of Lithuania and Paragraph 4 of Article 16 of the Republic of Lithuania’s Law on Pensions of Officials and Servicemen of the Interior, State Security, Defence and Prosecutor’s Office

 

Vilnius, 30 October 2001

 

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

Rytis Paukštė, an advisor to the Department of Law and Law Enforcement of the Office of the Government, and Vytas Rimkus, Head of the Division of Law, Staff and Internal Investigation of the Special Investigation Service, acting as the representatives of the Government of the Republic of Lithuania, 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 2 October 2001, in its public hearing, considered case No. 10/2000 subsequent to the petition submitted to the Constitutional Court by the Higher Administrative Court, the petitioner, requesting an investigation into whether Item 8 of the Regulations of the Granting and Payment of State Pensions to Officials and Servicemen of the Systems of the Interior, State Security, Defence and Prosecutor’s Office approved by the Resolution of the Government of the Republic of Lithuania (No. 83) “On the Approval of the Regulations of the Granting and Payment of State Pensions to Officials and Servicemen of the Systems of the Interior, State Security, Defence and Prosecutor’s Office and the Establishment of the Time of Service Necessary in Order to Receive a Respective Percentage Extra Pay for the Years of Service” of 20 January 1995 was in compliance with Article 94 of the Constitution of the Republic of Lithuania and Article 16 of the Republic of Lithuania’s Law on Pensions of Officials and Servicemen of the Interior, State Security, Defence and Prosecutor’s Office.

The Constitutional Court

has established:

I

The Higher Administrative Court was considering an administrative case concerning the execution of a decision of the Supreme Commission for Settling Administrative Disputes. By means of its ruling of 9 March 2000, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting an investigation into the compliance of Item 8 of the Regulations of the Granting and Payment of State Pensions to Officials and Servicemen of the Systems of the Interior, State Security, Defence and Prosecutor’s Office (Official Gazette Valstybės žinios, 1995, No. 8-173; hereinafter also referred to as the Regulations) approved by the Government Resolution (No. 83) “On the Approval of the Regulations of the Granting and Payment of State Pensions to Officials and Servicemen of the Systems of the Interior, State Security, Defence and Prosecutor’s Office and the Establishment of the Time of Service Necessary in Order to Receive a Respective Percentage Extra Pay for the Years of Service” of 20 January 1995 with Article 94 of the Constitution and Article 16 of the Law on Pensions of Officials and Servicemen of the Interior, State Security, Defence and Prosecutor’s Office (Official Gazette Valstybės žinios, 1994, No. 99-1958; hereinafter also referred to as the Law).

II

The petition of the petitioner is based on the following arguments.

Paragraph 4 of Article 16 of the Law points out the time periods which had been prior to the Law coming into force, and which were equalled to the time of service on the grounds of which pensions are granted to individuals engaged as officials or servicemen of the interior, state security, defence and prosecutor’s office of the Republic of Lithuania. Meanwhile, Item 8 of the Regulations provides: “In the cases not provided for in these Regulations the time of service on the grounds of which state pensions are granted to the officials and servicemen shall be established by the Government of the Republic of Lithuania on the respective proposal of the Ministry of the Interior, the Department of State Security of the Republic of Lithuania, the Ministry of Defence and the Office of the Prosecutor General of the Republic of Lithuania.”

The petitioner points out that the Government is not entitled to include the time periods not pointed out in the Law into the time of service of officials. Therefore, the petitioner doubts whether Item 8 of the Regulations is in compliance with Article 16 of the Law and Article 94 of the Constitution.

III

In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from the representatives of the party concerned—the Government—R. Paukštė and V. Rimkus.

The representatives of the party concerned pointed out that individual articles of the Law commissioned the Government to adopt respective legal acts, e.g., Paragraph 2 of Article 12 provides that the Government shall approve the regulations of granting and payment of state pensions to the officials and servicemen, Item 1 of Paragraph 4 of Article 16 points out that the Government shall establish the actual time of service in the armed forces, frontier-guard service, system of interior and other services of other states, Item 6 of Paragraph 4 of Article 16 provides for a duty of the Government to establish that the time of learning in some schools of other states should be included in the time of service on the grounds of which pension is granted, Paragraph 7 of Article 16 commissions the Government to draft a system of requalification of the officials and servicemen transferred to the reserve. Thus, conditions were created to implement the Law.

In the opinion of the representatives of the party concerned, the Government had a duty, which was established in Article 16 of the Law, to provide in the Regulations as to what time of service must be established, and under what procedure, in order to grant state pensions to the officials and servicemen. To this extent the Government was entitled to decide questions on the inclusion of the time periods which had not been pointed out in the Law. This is established in Item 8 of the Regulations.

According to R. Paukštė and V. Rimkus, Item 8 of the Regulations must be applied only in the cases when questions arise as to the time periods which the Government is, under the Law, entitled to equal to the time of service (to include them into the time of service). Therefore, while assessing it from this aspect, it may be considered a proper accomplishment of the commissioning for the Government pointed out in the Law.

In the opinion of the representatives of the party concerned, Item 8 of the Regulations is worded not precisely enough, however, these inaccuracies may not be deemed to be sufficient grounds to assess Item 8 of the Regulations as being in conflict with Article 94 of the Constitution or Article 16 of the Law.

IV

At the Constitutional Court hearing the representatives of the party concerned—the Government—R. Paukštė and V. Rimkus virtually reiterated the arguments set forth in the written explanations.

The Constitutional Court

holds that:

I

1. By means of its Resolution (No. 83) “On the Approval of the Regulations of the Granting and Payment of State Pensions to Officials and Servicemen of the Systems of the Interior, State Security, Defence and Prosecutor’s Office and the Establishment of the Time of Service Necessary in Order to Receive a Respective Percentage Extra Pay for the Years of Service” of 20 January 1995, the Government approved the Regulations of the Granting and Payment of State Pensions to Officials and Servicemen of the Systems of the Interior, State Security, Defence and Prosecutor’s Office.

It was provided in Item 8 of the Regulations (wording of 20 January 1995): “In the cases not provided for in these Regulations the time of service on the grounds of which state pensions are granted to the officials and servicemen shall be established by the Government of the Republic of Lithuania on the respective proposal of the Ministry of the Interior, the Department of State Security of the Republic of Lithuania, the Ministry of Defence and the Office of the Prosecutor General of the Republic of Lithuania.”

2. The petitioner requests an investigation into the compliance of Item 8 of the Regulations (wording of 20 January 1995) with Article 94 of the Constitution.

It is clear from the reasoning of the petitioner that it doubts as to the compliance of Item 8 of the Regulations (wording of 20 January 1995) with not entire Article 94 of the Constitution but only with Item 2 of the said article.

3. The petitioner requests an investigation into the compliance of Item 8 of the Regulations (wording of 20 January 1995) with Article 16 of the Law on Pensions of Officials and Servicemen of the Interior, State Security, Defence and Prosecutor’s Office.

It is clear from the reasoning of the petitioner that it doubts as to the compliance of Item 8 of the Regulations (wording of 20 January 1995) with not entire Article 16 of the said law but only with Paragraph 4 of the said article.

4. By means of Item 1.1 of the Government Resolution (No. 861) “On a Partial Amendment of the Resolution of the Government of the Republic of Lithuania (No. 83) ‘On the Approval of the Regulations of the Granting and Payment of State Pensions to Officials and Servicemen of the Systems of the Interior, State Security, Defence and Prosecutor’s Office and the Establishment of the Time of Service Necessary in Order to Receive a Respective Percentage Extra Pay for the Years of Service’ of 20 January 1995” of 18 July 2000 (Official Gazette Valstybės žinios, 2000, No. 61-1862) the title of the government resolution was changed and worded as follows: “On the Approval of the Regulations of the Granting and Payment of State Pensions to Officials and Servicemen of the Systems of the Interior, State Security, Defence and Prosecutor’s Office as well as the Special Investigation Service, the Department of Prisons and the Establishments and State Enterprises which are under the Jurisdiction of the Said Department, and the Establishment of the Time of Service Necessary in Order to Receive a Respective Percentage Extra Pay for the Years of Service”. By Item 1.4.1 of the said resolution the title of the Regulations was also changed: they were entitled the Regulations of the Granting and Payment of State Pensions to Officials and Servicemen of the Systems of the Interior, State Security, Defence and Prosecutor’s Office as well as the Special Investigation Service, the Department of Prisons and the Establishments and State Enterprises which are under the Jurisdiction of the Said Department.

By means of Item 1.4.3 of government resolution of 18 July 2000, Item 8 of the Regulations was set forth as follows: “In the cases not provided for in these Regulations the time of service on the grounds of which state pensions are granted to the officials and servicemen shall be established by the Government of the Republic of Lithuania on the respective proposal of the Ministry of the Interior, the Ministry of Justice, the Special Investigation Service of the Republic of Lithuania, the Department of State Security of the Republic of Lithuania, the Ministry of Defence and the Office of the Prosecutor General of the Republic of Lithuania.”

If one compares the legal regulation established in Items 8 of the Regulations in their wordings of 20 January 1995 and 18 July 2000, it is evident that they are different only in that Item 8 of the Regulations in their wording of 18 July 2000 points out two additional institutions, i.e. the Ministry of Justice and the Special Investigation Service, on the proposals of which the Government establishes the time of service on the grounds of which state pensions are granted to the officials and servicemen. The legal regulation of Item 8 of the Regulations (wording of 13 December 1995) has not been changed in any other aspect.

5. On 13 December 1994, the Seimas enacted the Law on Pensions of Officials and Servicemen of the Interior, State Security, Defence and Prosecutor’s Office. It was provided in Paragraph 4 of Article 16 thereof:

The following time periods, which had been prior to the entry of this Law into force, are equalled to the time of service on the grounds of which pensions are granted to the individuals engaged as officials or servicemen of the interior, state security, defence and prosecutor’s office of the Republic of Lithuania:

1) the actual time of service in the armed forces, frontier-guard service, system of interior and other services of other states (with the exception of service in death squads and battalions)—under the procedure established by the Government of the Republic of Lithuania;

2) the time of service in the police (militia), the systems of the interior service, state security, defence and prosecutor’s office of the Republic of Lithuania on the basis of the Law on Employment Contract in the case that subsequently this post was categorised as the post of the official;

3) the time of service as chiefs of professional firefighting subunits, as firefighters, firefighters-drivers on the grounds of the Law on Employment Contract in the case that subsequently these employees were categorised as officials of militarised firefighting service.

4) from 25 April 1990 till 23 August 1991 one day of the service in structural subunits of the Department of Defence is considered three days of service;

5) the officials and servicemen who began their service in the system of defence prior to 31 December 1991—80% of their employment period that they had had until that time;

6) the time of learning in higher, special secondary schools and schools of further learning of the police (the interior), of state security and those of defence of the Republic of Lithuania. The time of learning in analogous schools of other states may, under the procedure established by the Government of the Republic of Lithuania, be included in the time of service on the grounds of which pension is granted. Half of the time of learning in other higher schools, schools of further education and special secondary schools shall also be included in the time of service on the grounds of which pension is granted in the case that the individuals, after they had finished them, were at once appointed officials.”

6. Paragraph 4 of Article 16 of the Law was amended by Article 1 of the Republic of Lithuania’s Law on the Amendment of the Law on Pensions of Officials and Servicemen of the Interior, State Security, Defence and Prosecutor’s Office of 9 July 1996 (Official Gazette Valstybės žinios, 1996, No. 68-1640) and by Article 3 of the Republic of Lithuania’s Law on the Supplement of Articles 9, 10 and 16 of the Law on Pensions of Officials and Servicemen of the Interior, State Security, Defence and Prosecutor’s Office of 1 July 1998 (Official Gazette Valstybės žinios, 1998, No. 62-1777).

On 18 April 2000, the Seimas changed the title of the Law by Article 1 of the Republic of Lithuania’s Law on the Supplement as well as Amendment of the Title, and of Articles 1, 3, 6, 12, and 16 of the Law on Pensions of Officials and Servicemen of the Interior, State Security, Defence and Prosecutor’s Office (Official Gazette Valstybės žinios, 2000, No. 36-986) and by Article 6 thereof supplemented Paragraph 4 of Article 16 of the Law.

On 2 May 2000, the Seimas supplemented the title of the Law by Article 1 of the Republic of Lithuania’s Law on the Supplement as well as Amendment of the Title, and of Articles 1, 3, 6, 12, and 16 of the Law on Pensions of Officials and Servicemen of the Interior, State Security, Defence and Prosecutor’s Office (Official Gazette Valstybės žinios, 2000, No. 41-1167) as well as by Article 6 thereof supplemented Paragraph 4 of Article 16 of the Law.

On 13 July 2000 the Seimas supplemented the title of the Law on Pensions of Officials and Servicemen of the Interior, State Security, Defence and Prosecutor’s Office by Article 1 of the Republic of Lithuania’s Law on the Supplement as well as Amendment of the Title, and of Articles 1, 3, 6, 12, and 16 of the Law on Pensions of Officials and Servicemen of the Interior, State Security, Defence, the Special Investigation Service and Prosecutor’s Office (Official Gazette Valstybės žinios, 2000, No. 64-1923): this law was entitled the Republic of Lithuania’s Law on Pensions of Officials and Servicemen of the Interior, State Security, Defence and Prosecutor’s Office as well as the Special Investigation Service, the Department of Prisons and the Establishments and State Enterprises which are under the Jurisdiction of the Said Department. By means of Article 6 of the law of 13 July 2000, Paragraph 4 of Article 16 of the Law was also supplemented and amended.

On 10 October 2000, the Seimas supplemented Item 2 of Paragraph 4 of Article 16 of the Law by Article 2 of the Republic of Lithuania’s Law on the Supplement of Articles 1 and 16 of the Law on Pensions of Officials and Servicemen of the Interior, State Security, Defence and Prosecutor’s Office as well as the Special Investigation Service, the Department of Prisons and the Establishments and State Enterprises which are under the Jurisdiction of the Said Department (Official Gazette Valstybės žinios, 2000, No. 92-2860).

7. Paragraph 4 of Article 16 of the Law (wording of 10 October 2000) provides:

The following time periods, which had been prior to the entry of this Law into force, are equalled to the time of service on the grounds of which pensions are granted to the individuals engaged as officials or servicemen of the interior, state security, defence and the system of prosecutor’s office, as well as the Special Investigation Service, the Department of Prisons and the establishments and state enterprises, which are under the jurisdiction of the said department:

1) the actual time of service in the armed forces, frontier-guard service, system of interior and other services of other states (with the exception of service in death squads and battalions)—under the procedure established by the Government of the Republic of Lithuania;

2) the time of service in the police (militia), the State Frontier-guard Service, the systems of the interior service, state security, defence and prosecutor’s office on the basis of the Law on Employment Contract in the case that subsequently this post was categorised as the post of the official;

3) the time of service as chiefs of professional firefighting subunits, as firefighters, firefighters-drivers on the grounds of the Law on Employment Contract in the case that subsequently these employees were categorised as officials of militarised firefighting service.

4) one day of the service in structural subunits of the Department of Defence from 25 April 1990 till 23 August 1991 and in the system of the State Security Department under the Government of the Republic of Lithuania from 26 March 1990 till 23 August 1991 is considered three days of service;

5) the individuals who began their service in the system of defence prior to 31 December 1991—80% of their employment period that they had had until that time;

6) the time of learning in higher, special secondary schools and schools of further learning of the police (the interior), of state security and those of defence of the Republic of Lithuania. The time of learning in analogous schools of other states may, under the procedure established by the Government of the Republic of Lithuania, be included in the time of service on the grounds of which pension is granted. Half of the time of learning in other higher schools, schools of further education and special secondary schools shall also be included in the time of service on the grounds of which pension is granted in the case that the individuals, after they had finished them, were at once appointed officials.”

8. If one compares the legal regulation established in Paragraph 4 of Article 16 of the Law of the wordings of 13 December 1994 and 10 October 2000, it is evident that they differ only in that the Law in its wording of 10 October 2000 additionally provides that

a) the time periods pointed out in this paragraph are equalled to the time of service (they are included into the time of service) on the grounds of which state pensions are granted to the officials and servicemen also for the individuals engaged as officials and servicemen in the Special Investigation Service, the Department of Prisons and the establishments and state enterprises which are under the jurisdiction of the said department;

b) the time periods pointed out in this paragraph are equalled to the time of service (they are included into the time of service) on the grounds of which state pensions are granted to the officials and servicemen for the individuals who were engaged not as officials and servicemen of prosecutor’s office (as used to be in Paragraph 4 of Article 16 of the Law) but as officials and servicemen of the system of prosecutor’s office;

c) additionally, the time periods in the State Frontier-guard Service, which had been prior to the entry of this Law into force, are equalled to the time of service on the grounds of which state pensions are granted to the officials and servicemen on the basis of the Law on Employment Contract for the individuals engaged as officials and servicemen in the Special Investigation Service, the Department of Prisons and the establishments and state enterprises which are under the jurisdiction of the said department in the case that subsequently this post was categorised as the post of the official;

d) the proportions of inclusion of the service or working days into the time of service are established not only for the individuals who served or worked in structural subunits of the Department of Defence from 25 April 1990 till 23 August 1991 but also for those who served or worked in the system of the State Security Department under the Government of the Republic of Lithuania from 26 March 1990 till 23 August 1991;

e) the size of the possessed employment period is established not only for the officials and servicemen who began their service in the system of defence prior to 31 December 1991 but also for the individuals who began their work in that system prior to the aforementioned date.

The legal regulation established in Paragraph 4 of Article 16 of the Law (wording of 13 December 1994) has not been changed in any other aspect.

9. Subsequent to the petition of the petitioner, the Constitutional Court will consider whether Item 8 of the Regulations (wording of 20 January 1995) is in compliance with Item 2 of Article 94 of the Constitution and Paragraph 4 of Article 16 of the Law (wording of 13 December 1994), as well as whether Item 8 of the Regulations (wording of 18 July 2000) is in compliance with Item 2 of Article 94 of the Constitution and Paragraph 4 of Article 16 of the Law (wording of 10 October 2000).

II

On the compliance of Item 8 of the Regulations of the Granting and Payment of State Pensions to Officials and Servicemen of the Systems of the Interior, State Security, Defence and Prosecutor’s Office (wording of 20 January 1995) with Paragraph 4 of Article 16 of the Law on Pensions of Officials and Servicemen of the Interior, State Security, Defence and Prosecutor’s Office (wording of 13 December 1994) and on the compliance of Item 8 of the Regulations of the Granting and Payment of State Pensions to Officials and Servicemen of the Systems of the Interior, State Security, Defence and Prosecutor’s Office as well as the Special Investigation Service, the Department of Prisons and the Establishments and State Enterprises which are under the Jurisdiction of the Said Department (wording of 18 July 2000) with Paragraph 4 of Article 16 of the Law on Pensions of Officials and Servicemen of the Interior, State Security, Defence and Prosecutor’s Office as well as the Special Investigation Service, the Department of Prisons and the Establishments and State Enterprises which are under the Jurisdiction of the Said Department (wording of 10 October 2000).

1. In the opinion of the petitioner, Paragraph 4 of Article 16 of the Law contains a final list of the time periods which had been prior to the Law coming into force and which are equalled to the time of service on the grounds of which state pensions are granted to the officials and servicemen for the individuals engaged as officials and servicemen of the interior, state security, defence and prosecutor’s office. As, under the Constitution, the Government does not have the right to change any norms of laws, then, in the opinion of the petitioner, the Law does not grant the right to the Government to equal other time periods, i.e. those not pointed out in the Law, which had been prior to the Law coming into force, to the time of service of the said individuals. The petitioner doubts whether Item 8 of the Regulations is in compliance with Paragraph 4 of Article 16 of the Law.

2. While construing the content of Paragraph 4 of Article 16 of the Law, one must note that the said paragraph establishes the time periods which had been prior to the Law coming into force and which are equalled to the time of service (they are included into the time of service) on the grounds of which state pensions are granted to the officials and servicemen for the individuals engaged as officials and servicemen of the interior, state security, defence and prosecutor’s office.

In addition, Paragraph 5 of Article 16 of the Law provides that the period of service provided for in Article 28 of the Republic of Lithuania’s Law on the State Security Department (Official Gazette Valstybės žinios, 1994, No. 99-1959) shall be included into the time of service of officials of the State Security Department on the grounds of which pensions are granted.

The Law does not contain any other norms establishing as to what time periods which had been prior to the Law coming into force are equalled to the time of service on the grounds of which pensions are granted to the officials and servicemen for the individuals engaged as officials and servicemen of the interior, state security, defence and prosecutor’s office.

3. Under Article 52 of the Constitution, 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. In its ruling of 12 March 1997, the Constitutional Court held that “the provisions of Article 52 of the Constitution which guarantee citizens the right to social maintenance obligate the state to establish sufficient measures to implement and protect the said right”.

One of the guarantees ensuring a proper realisation of the right to social maintenance is the legal force of the legal acts whereby the social maintenance rendered by the state is regulated. The relations pointed out in Article 52 of the Constitution must be regulated by law.

Under Item 2 of Article 67 of the Constitution, the Seimas shall enact laws. All other legal acts must be adopted on the grounds of laws and may not be in conflict with them, i.e. they must be substatutory legal acts. In its rulings, the Constitutional Court held that a legal act adopted by the Government is a substatutory legal act, it may not be in conflict with the law, or change the content of norms of the law, and it may not contain any legal norms that would compete with those of the law (the Constitutional Court’s rulings of 19 January 1994, 16 March 1994, 15 July 1994, 26 October 1995, 29 May 1997, 3 December 1997, 6 May 1998, 15 March 2000, and 5 April 2000).

The provision of Article 52 of the Constitution means that the Constitution guarantees pensions and various types of social maintenance for the entities, as well as on the bases and sizes, which are provided for in the law. It is only the law that may establish the bases on the grounds of which state pensions are granted as well as the sizes of such pensions and conditions of their granting and payment (the Constitutional Court’s ruling of 10 February 2000).

In its rulings of 3 December 1997 and 6 May 1998, the Constitutional Court held that one is not permitted to establish any conditions of appearance of the right to social assistance of individuals and to limit the extent of this right by substatutory regulation of the relations pointed out in Article 52 of the Constitution.

Thus, after it has been established in Paragraph 4 of Article 16 of the Law as to what time periods which had been prior to the Law coming into force are equalled to the time of service on the grounds of which state pensions are granted to the officials and servicemen for the individuals engaged as officials and servicemen of the interior, state security, defence and prosecutor’s office, one is not permitted to establish by substatutory act any such legal regulation whereby the bases to receive these pensions, the sizes of these pensions, the conditions of their granting and payment would be changed, and whereby the individuals who are not entitled to these pensions would be pointed out. Alongside, it needs to be held that one is not permitted to extend the extent of the said right by substatutory legal regulation if compared with that established in the Law. Otherwise the hierarchy of legal acts and harmony of the legal system would be disturbed.

Thus, one is not permitted to establish by substatutory act such legal regulation which would establish different time periods, i.e. those that had been prior to the Law coming into force and that are not pointed out in the Law, which might be equalled to the time of service on the grounds of which state pensions are granted to the officials and servicemen for the individuals engaged as officials and servicemen of the interior, state security, defence and prosecutor’s office.

4. Under Item 1 of Paragraph 4 of Article 16 of the Law, for the individuals engaged as officials or servicemen of the interior, state security, defence and prosecutor’s office the actual time of service, which had been prior to the Law coming into force, in the armed forces, frontier-guard service, system of interior and other services of other states (with the exception of service in death squads and battalions) is equalled, under the procedure established by the Government, to the time of service on the grounds of which pensions are granted.

Under Item 6 of Paragraph 4 of Article 16 of the Law, for the individuals engaged as officials or servicemen of the interior, state security, defence and prosecutor’s office the time of learning, which had been prior to the Law coming into force, in higher, special secondary schools and schools of further learning of the police (the interior), of state security and those of defence of the Republic of Lithuania is equalled to the time of service on the grounds of which pensions are granted to the officials and servicemen. The time of learning in analogous schools of other states may, under the procedure established by the Government, be included in the time of service on the grounds of which pension is granted.

Thus, Items 1 and 6 of Paragraph 4 of Article 16 of the Law contain the commissioning of the legislature for the Government to establish the procedure whereby the time periods which had been prior to the Law coming into force and during which the said individuals in fact served in the armed forces, frontier-guard service, system of interior and other services of other states (with the exception of the service in death squads and battalions) are equalled to the time of service on the grounds of which state pensions are granted to the officials and servicemen for the said individuals, as well as to establish the procedure whereby the time periods which had been prior to the Law coming into force and during which the said individuals studied in schools of other states which are analogous to higher, special secondary schools and schools of further learning of the police (the interior), of state security and those of defence of the Republic of Lithuania may be included in the time of service on the grounds of which pensions are granted to the said individuals.

It needs to be noted that Items 2, 3, 4 and 5 of Paragraph 4 of Article 16 of the Law do not provide for any commissioning for the Government to adopt any substatutory acts necessary for the implementation of the Law.

5. While deciding whether Item 8 of the Regulations is in compliance with Paragraph 4 of Article 16 of the Law, one must elucidate the content of the formula “under the procedure established by the Government” employed in Items 1 and 6 of this paragraph.

5.1. Item 2 of Article 94 of the Constitution provides that the Government shall implement laws and resolutions of the Seimas concerning the implementation of laws, as well as the decrees of the President of the Republic, while Item 7 of the said article stipulates that the Government shall discharge other duties prescribed to the Government by the Constitution and other laws.

Under the provision of Item 2 of Article 94 of the Constitution, the Government implements laws, thus, the duty of the Government to adopt substatutory acts necessary for the implementation of laws stems directly from the Constitution.

Besides, the legislature, considering that it is necessary to adopt substatutory acts so as to implement laws, may establish such a duty for the Government either by law or by Seimas resolution concerning the implementation of laws.

Thus, the duty of the Government to adopt substatutory acts which are necessary so as to implement laws stems from the Constitution, while in case there is the commissioning by the Seimas to do so, it also stems from the laws and Seimas resolutions concerning the implementation of laws.

5.2. The formula “under the procedure established by the Government” as used in Items 1 and 6 of Paragraph 4 of Article 16 of the Law means that it is the Government itself that must establish the said procedure. It may not commission any other institution to establish this procedure. Taking account of the fact that under Paragraph 1 of Article 95 of the Constitution the Government shall resolve the affairs of State administration at its sittings by adopting resolutions which must be passed by majority vote of all members of the Government, the aforementioned formula means that the said procedure must by established by government resolution. This resolution must be of normative content. It must not contain any provisions whereby, not on the basis of common norms, for individual persons certain time periods might be equalled to the time of service (might be included into the time of service) on the grounds of which state pensions are granted to the officials and servicemen.

5.3. In its ruling of 28 June 2001, the Constitutional Court held that the Government was bound by the resolutions which it had adopted previously and that it had to observe its resolutions. Thus, the procedure adopted by the Government is mandatory not only for other entities but also for the Government itself. Until the established procedure has not been changed, the Government may not adopt decisions otherwise than under the procedure established by the Government.

Implementing the commissioning of the legislature to establish a certain procedure, the Government may establish only such legal regulation which is in conformity with laws. The procedure established by the Government may not contain any legal norms which would provide for a different legal regulation than established in the laws, nor any norms competing with norms of laws.

6. As mentioned before, under Items 1 and 6 of Paragraph 4 of Article 16 of the Law, the Government is empowered to establish the procedure whereby the time periods of actual service in the armed forces, frontier-guard service, system of interior and other services (with the exception of the service in death squads and battalions) of other states are equalled to the time of service on the grounds of which state pensions are granted to the officials and servicemen, and whereby the time of “learning in analogous schools of other states” may be included in the time of service on the grounds of which state pensions are granted to the officials and servicemen.

The formula “in the cases not provided for in these Regulations” of Item 8 of the Regulations means that in this item the Government also established the powers for itself to adopt decisions to equal (to include into the time of service) such actual time periods of service or learning on the grounds of which state pensions are granted to the officials or servicemen, which are provided in neither the Regulations nor Paragraph 4 of Article 16 of the Law.

Thus, by means of the impugned legal regulation, the Government accomplished the commissioning of the legislature provided for in Article 16 of the Law in an improper manner, as it undertook more powers than it had been granted by the legislature and intervened in the competence of the legislature.

7. Taking account of the arguments set forth, it should be concluded that Item 8 of the Regulations of the Granting and Payment of State Pensions to Officials and Servicemen of the Systems of the Interior, State Security, Defence and Prosecutor’s Office (wording of 20 January 1995) conflicts with Paragraph 4 of Article 16 of the Law on Pensions of Officials and Servicemen of the Interior, State Security, Defence and Prosecutor’s Office (wording of 13 December 1994).

On the grounds of the same arguments, it should be concluded that Item 8 of the Regulations of the Granting and Payment of State Pensions to Officials and Servicemen of the Systems of the Interior, State Security, Defence and Prosecutor’s Office as well as the Special Investigation Service, the Department of Prisons and the Establishments and State Enterprises which are under the Jurisdiction of the Said Department (wording of 18 July 2000) conflicts with Paragraph 4 of Article 16 of the Law on Pensions of Officials and Servicemen of the Interior, State Security, Defence and Prosecutor’s Office as well as the Special Investigation Service, the Department of Prisons and the Establishments and State Enterprises which are under the Jurisdiction of the Said Department (wording of 10 October 2000).

III

On the compliance of Item 8 of the Regulations of the Granting and Payment of State Pensions to Officials and Servicemen of the Systems of the Interior, State Security, Defence and Prosecutor’s Office (wording of 20 January 1995) and Item 8 of the Regulations of the Granting and Payment of State Pensions to Officials and Servicemen of the Systems of the Interior, State Security, Defence and Prosecutor’s Office as well as the Special Investigation Service, the Department of Prisons and the Establishments and State Enterprises which are under the Jurisdiction of the Said Department (wording of 18 July 2000) with Item 2 of Article 94 of the Constitution.

1. Item 2 of Article 94 of the Constitution provides that the Government shall “implement laws and resolutions of the Seimas concerning the implementation of laws, as well as the decrees of the President of the Republic”.

2. It has been held in this ruling of the Constitutional Court that the formula “in the cases not provided for in these Regulations” means that in this item the Government also established the powers for itself to adopt decisions to equal (to include into the time of service) such actual time periods of service or learning on the grounds of which state pensions are granted to the officials or servicemen, which are provided in neither the Regulations nor Paragraph 4 of Article 16 of the Law.

It has also been held in this ruling of the Constitutional Court that Item 8 of the Regulations (wording of 20 January 1995) conflicts with Paragraph 4 of Article 16 of the Law (wording of 13 December 1994), and that Item 8 of the Regulations (wording of 18 July 2000) conflicts with Paragraph 4 of Article 16 of the Law (wording of 10 October 2000).

After it has been held that in the course of the accomplishment of the commissioning established in Paragraph 4 of Article 16 of the Law the Government exceeded the powers granted for it and that Item 8 of the Regulations conflicts with Paragraph 4 of Article 16 of the Law, it needs to be held, alongside, that the provision of Item 2 of Article 94 of the Constitution that the Government shall implement laws is also violated by the legal regulation established in Item 8 of the Regulations.

3. Taking account of the arguments set forth, it should be concluded that Item 8 of the Regulations of the Granting and Payment of State Pensions to Officials and Servicemen of the Systems of the Interior, State Security, Defence and Prosecutor’s Office (wording of 20 January 1995) conflicts with Item 2 of Article 94 of the Constitution, and that Item 8 of the Regulations of the Granting and Payment of State Pensions to Officials and Servicemen of the Systems of the Interior, State Security, Defence and Prosecutor’s Office as well as the Special Investigation Service, the Department of Prisons and the Establishments and State Enterprises which are under the Jurisdiction of the Said Department (wording of 18 July 2000) conflicts with Item 2 of Article 94 of the Constitution.

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 8 of the Regulations of the Granting and Payment of State Pensions to Officials and Servicemen of the Systems of the Interior, State Security, Defence and Prosecutor’s Office (wordings of 20 January 1995 and 18 July 2000) approved by the Resolution of the Government of the Republic of Lithuania (No. 83) “On the Approval of the Regulations of the Granting and Payment of State Pensions to Officials and Servicemen of the Systems of the Interior, State Security, Defence and Prosecutor’s Office and the Establishment of the Time of Service Necessary in Order to Receive a Respective Percentage Extra Pay for the Years of Service” of 20 January 1995 conflicts with Item 2 of Article 94 of the Constitution of the Republic of Lithuania and Paragraph 4 of Article 16 of the Republic of Lithuania’s Law on Pensions of Officials and Servicemen of the Interior, State Security, Defence and Prosecutor’s Office (wordings of 13 December 1994 and 10 October 2000).

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