Lt

On the state pensions of officials and servicemen

Case No. 27/2000

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

RULING

ON THE COMPLIANCE OF PARAGRAPHS 1 AND 2 OF ARTICLE 7, PARAGRAPH 6 AND ITEM 2 OF PARAGRAPH 9 OF ARTICLE 16 OF THE REPUBLIC OF LITHUANIA’S LAW ON THE STATE PENSIONS OF OFFICIALS AND SERVICEMEN OF THE INTERIOR, THE SPECIAL INVESTIGATION SERVICE, STATE SECURITY, DEFENCE AND OF THE PROSECUTOR’S OFFICE (WORDING OF 2 MAY 2000) WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA, AND ON THE COMPLIANCE OF ITEM 31.3 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 NOVEMBER 1998) AS 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 ADDITIONAL PAY FOR THE YEARS OF SERVICE” OF 20 JANUARY 1995 WITH PARAGRAPH 1 OF ARTICLE 7 OF THE REPUBLIC OF LITHUANIA’S LAW ON THE STATE PENSIONS OF OFFICIALS AND SERVICEMEN OF THE INTERIOR, THE SPECIAL INVESTIGATION SERVICE, STATE SECURITY, DEFENCE AND OF THE PROSECUTOR’S OFFICE (WORDING OF 2 MAY 2000)

 

23 April 2002

Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Egidijus Jarašiūnas, Egidijus Kūris, Kęstutis Lapinskas, Zenonas Namavičius, Augustinas Normantas, Jonas Prapiestis, Vytautas Sinkevičius, and Stasys Stačiokas

The court reporter—Daiva Pitrėnaitė

Jadvyga Andriuškevičiūtė, the chief consultant to the Legal Department of the Office of the Seimas, acting as the representative of the Seimas of the Republic of Lithuania, a party concerned

Svetlana Černuševič, Head of the Pensions’ Division of the Department for Social Insurance and Pensions at the Ministry of Social Security and Labour of the Republic of Lithuania, and Arūnas Sodonis, Deputy Head of the Division for Application of Law of the Law Department at the Ministry of the Interior of the Republic 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 Articles 102 and 105 of the Constitution of the Republic of Lithuania and Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, on 10 April 2002, in its public hearing, considered case No. 27/2000 subsequent to the petition of the Higher Administrative Court, the petitioner, requesting an investigation into whether Paragraphs 1 and 2 of Article 7, Paragraph 6 and Item 2 of Paragraph 9 of Article 16 the Republic of Lithuania’s Law on the State Pensions of Officials and Servicemen of the Interior, the Special Investigation Service, State Security, Defence and of the Prosecutor’s Office (wording of 2 May 2000) were in compliance with Paragraph 1 of Article 29 of the Constitution of the Republic of Lithuania, and whether Item 31.3 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 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 Additional Pay for the Years of Service” of 20 January 1995 was in compliance with Paragraph 1 of Article 7 of the Republic of Lithuania’s Law on the State Pensions of Officials and Servicemen of the Interior, the Special Investigation Service, State Security, Defence and of the Prosecutor’s Office (wording of 2 May 2000).

The Constitutional Court

has established:

I

The petitioner, the Higher Administrative Court, was considering an administrative case concerning recalculation of the amount of the state pension of officials and servicemen for service. The said court suspended the consideration of the case by its ruling of 30 June 2000 and applied to the Constitutional Court with a petition requesting an investigation into whether Paragraphs 1 and 2 of Article 7, Paragraph 6 and Item 2 of Paragraph 9 of Article 16 of the Republic of Lithuania’s Law on the State Pensions of Officials and Servicemen of the Interior, the Special Investigation Service, State Security, Defence and of the Prosecutor’s Office (hereinafter also referred to as the Law) (Official Gazette Valstybės žinios, 1994, No. 99-1958) were in compliance with Paragraph 1 of Article 29 of the Constitution, and whether Item 31.3 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 (hereinafter also referred to as the Regulations) (Official Gazette Valstybės žinios, 1995, No. 8-173) as 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 Additional Pay for the Years of Service” of 20 January 1995 was in compliance with Paragraph 1 of Article 7 of the Law on the State Pensions of Officials and Servicemen of the Interior, the Special Investigation Service, State Security, Defence and of the Prosecutor’s Office.

II

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

1. Article 7 of the Law provides that the state pension of officials and servicemen for service shall be calculated and paid on the basis of the remuneration for work valid in the month of the payment of the pension for the post which the official or serviceman used to hold prior to his retirement. This remuneration includes the official salary, as well as the additional pay for the rank, length of service and the category when this additional pay is paid under procedure established by law (Paragraph 1). 1 percent of the salary pointed out in Paragraph 1 of this article shall be paid for every year of service which is included into the time of service for which pension is granted (Paragraph 2). Paragraph 6 of Article 16 of the Law provides that in the course of the calculation of the state pensions for officials and servicemen the percentages pointed out in Paragraphs 2 and 3 of Article 7 and Paragraph 1 of Article 9 of this law shall be increased by 1.8 times for the years of service which had been prior to this law going into effect and included into the time of service for which pension is granted. When the time of service is equalled to 20 years under Paragraph 2 of Article 9 of this law, this rule is applied only to the years of service which had been prior to the entry into force of this law. Item 2 of Paragraph 2 of Article 16 of the Law provides that, while recalculating the pensions which had been granted to officials and servicemen before this law came into force, the state pensions of officials and servicemen shall be calculated on the basis of this law, i.e. the provisions of Article 7 of the Law are also applied.

In the opinion of the petitioner, under Paragraphs 1 and 2 of Article 7, Paragraph 6 of Article 16 and Item 2 of Article 9 of the Law, while recalculating the pensions which had been granted to officials and servicemen prior to the entry into force of this Law, one must take account of the remuneration for work, which is valid in the month of the recalculation and payment of this pension, for the post held by the official or serviceman at the time of his retirement. However, some posts may have been abolished, the character and extent of certain posts may have been changed, therefore, at the time of the payment of the pension the existing remuneration for work may be not adequate for the functions performed by the retired person. Thus, the amount of the pension depends on the time of the retirement of the official or serviceman. The petitioner doubts if this does not violate the constitutional principle of the equality of all persons before the law.

2. The petitioner maintains that the Law establishes the same procedure for calculation of the state pension for service for those who retired prior to the entry into force of this Law and those who retired after the Law had come into force. The amount of the pension is calculated on the basis of the same amount of the remuneration for work. 1.8 percent of the calculated remuneration for work is paid for every year of service, which is included into the time of service for which pension is granted, prior to the entry into force of this Law. 1 percent of the calculated remuneration for work is paid for every year of service, which was included into the time of service for which pension is granted, after the Law had come into force. In the opinion of the petitioner, the officials and servicemen who retired before the Law came into force are in a better situation if compared to those who retired after the Law had come into force. The petitioner maintains that from this aspect Paragraphs 1 and 2 of Article 7, Paragraph 6 and Item 2 of Paragraph 9 of Article 16 of the Law are also in conflict with Paragraph 1 of Article 29 of the Constitution.

3. In the opinion of the petitioner, under the procedure established in Paragraph 1 of Article 7 of the Law the amount of the state pensions of officials and servicemen is calculated if this pension is granted after the Law came into force. The same procedure under the Law must be applied also in the course of recalculation of the state pensions of officials and servicemen that had been granted before the Law came into force.

Meanwhile, Item 31.3 of the Regulations provides that while recalculating the pensions of the years of service and of disablement for the officials and servicemen of the interior who retired in the period from 1 July 1991 till 31 December 1994, the officials and servicemen of the system of defence who retired as of 25 April 1990, the officials and servicemen of the systems of state security and prosecutor’s office who retired as of the day of the creation of these establishments, the remuneration for work, on the basis of which the pension is calculated, is established by multiplying the coefficient which was determined in the month of retirement to calculate the remuneration by the minimal monthly salary of LTL 65 valid in December 1994, and by adding the additional pay for the years of service, the additional pay for the category and the coefficient to calculate the remuneration for the official’s rank, which was valid in December 1994, by applying the provisions of Items 4 and 5 of the Government Resolution (No. 907) “On the Indexation of the Remuneration for Work and other Payments” of 28 September 1994 (Official Gazette Valstybės žinios, 1994, No. 77-1444). While recalculating the pensions granted on the basis of the remuneration for work which existed, according to the dates pointed out in Items 31 and 31.3, until 31 November 1991, one applies minimal sizes of the coefficient schemes to calculate the official salaries in accordance with respective posts as well as the coefficients depending on the special rank, which are approved by various governmental resolutions, as well as one calculates the additional pay for the category and the years of service.

The petitioner maintains that the Law and the Regulations define the remuneration for work, on the basis of which the pension is calculated, in a different manner: the Law specifies that in order to calculate the pension, one must base himself on the remuneration for work valid in the month of the payment of the pension, while the Regulations have established a rule that one must base himself on the remuneration for work which was in the month of the retirement. The petitioner doubts whether Item 31.3 of the Regulations is in compliance with Paragraph 1 of Article 7 of the Law.

III

In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from the representative of the party concerned, the Seimas, who was J. Andriuškevičiūtė, the chief consultant to the Law Department of the Office of the Seimas, and the representatives of the party concerned, the Government, who were S. Černuševič, Head of the Pensions’ Division of the Department for Social Insurance and Pensions at the Ministry of Social Security and Labour, and A. Sodonis, Deputy Head of the Division for Application of Law of the Law Department at the Ministry of the Interior.

1. In the opinion of J. Andriuškevičiūtė, one must decide as to the conformity of the Law with the Constitution by assessing not individual provisions of the Law but by revealing the essence of their entirety and relation to the Constitution. When one takes account of the time period of the years of service, the procedure of granting and recalculation of pensions for officials and servicemen for service, which is provided for by the Law, does not violate but in fact ensure the implementation of the norms-principles entrenched in Paragraph 1 of Article 29 of the Constitution. In an attempt to ensure that the persons who held posts of officials and servicemen in different periods have the right to social guarantees, a modified procedure for calculation of their pensions for service was established. Without the detailing of peculiarities of the rights of those entities, it would have been impossible to establish a single general rule of granting state pensions for officials and servicemen for service.

The representative of the party concerned points out that while assessing the provisions of Paragraph 1 of Article 7 of the Law, one has to note that certain posts which the person used to hold previously were abolished. It is impossible to establish as to what existing posts may be analogous to those which had in fact been held previously, therefore, without the establishment of peculiarities of the granting of state pensions to officials and servicemen, the pensions provided for in the Law would not have been granted, thus, the succession of rights of the said persons, which were valid until 1 January 1995, would not have been secured.

In the opinion of J. Andriuškevičiūtė, the rules established in Item 31.3 of the Regulations are not discriminatory, they attempt to determine the impact of the period of service and remuneration in different periods on the amount of state pensions of officials and servicemen in as objective a manner as possible. Alongside, one has to assess the circumstances (e.g. the introduction of the litas, changes of the names of the posts and their functions), which played an important role for making such rules to appear.

Paragraph 2 of Article 12 of the Law provides that the institutions, while granting and paying state pensions of servicemen and officials for service, shall follow this law and 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. Thus, the legislature has specified that the Government is entitled to establish the rules for granting and payment of pensions.

In the opinion of the representative of the party concerned, the norms worded in Article 29 of the Constitution are not a strict dogma, they should be regarded as general rules and universal principles. In law, the principle of the equality of persons before the law does not mean that the same rule must be applied to all persons: it obligates one to legally assess the homogenous facts in the same manner and prohibits any arbitrary assessment of essentially the same facts in a different manner.

J. Andriuškevičiūtė maintains that the provisions of Article 7 of the Law establishing the procedure of calculation of state pensions of officials and servicemen for service attempt to consolidate the officials’ and servicemen’ right to a pension which existed in various periods. It is difficult to notice discrimination of the rights of officials and servicemen in the impugned provisions of the Law, they should be regarded as ones ensuring the differentiation of persons which has been conditioned by objective reasons.

2. The representative of the party concerned, the Government, S. Černuševič maintains that the impugned provisions of the Law are not discriminatory, they are applicable to all the persons listed in Article 1 of the Law on the same bases, under the same conditions and the same procedure. 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 the breadwinner, and other cases provided by law (Article 52). However, the Constitution does not regulate the issues of granting and payment of state pensions: it does not provide as to whom and under what conditions they may be granted and paid. The nature of state pensions is of a different character than social insurance or benefit pensions: their granting and payment is established by means of individual laws. Such a right of the legislature is enshrined in the Constitution. The ways and content of legal regulation are determined by the diversity of social life. In the opinion of the representative of the party concerned, there is no legal basis to maintain that the impugned Paragraphs 1 and 2 of Article 7, Paragraph 6 and Item 2 of Paragraph 9 of Article 16 of the Law deny the constitutional principle of the equality of persons before the law.

S. Černuševič notes that the indexation mechanism of state pensions of officials and servicemen pointed out in Paragraph 1 of Article 7 of the Law should be applied to all pensions, i.e. to those granted after the Law had come into force, those which had been granted before the Law came into force, and those recalculated under the Law. The indexation procedure pointed out in Items 9 and 31.3 of the Regulations is in compliance with the procedure established in the Law.

3. The representative of the party concerned, the Government, A. Sodonis maintains that, in the opinion of the Government, as well as under Paragraph 1 of Article 7 of the Law and Item 31.3 of the Regulations, the coefficient of the official salary which was in the month of the retirement of the official must be multiplied by the monthly base salary which is valid in the month the payment of the pension. Under the Regulations, the remuneration for work is calculated by multiplying the coefficient of the official salary by the amount of the minimal monthly salary, which is valid in the month of the calculation of the pension, but not by the amount which was valid in the month of the retirement of the official or serviceman, therefore, there are no contradictions between Item 31.3 of the Regulations and Paragraph 1 of Article 7 of the Law in this respect.

A. Sodonis points out that the coefficients of the official salaries of the officials and servicemen who had retired before the Law went into effect were lower than the coefficients of the official salaries of the persons who retired after the Law had gone into effect. The legislature compensated it by the 1.8-time increase of the portion of the remuneration for work, which serves the basis for the pension.

In the opinion of A. Sodonis, the impugned provisions of the Law are in compliance with the Constitution, while Item 31.3 of the Regulations is in conformity with Paragraph 1 of Article 7 of the Law.

IV

In the course of the preparation of the case for the Constitutional Court hearing, explanations were received from A. Klimavičius, Prosecutor General of the Republic of Lithuania, A. Abramavičius, an advisor to the President of the Republic of Lithuania, Head of the Law Department, J. Gečas, Vice-Minister of Defence, G. Švedas, Vice-Minister of Justice, J. Liaudanskas, Vice-Minister of the Interior, A. Balzaris, Deputy Director General of the State Security Department, Ž. Pacevičius, First Deputy Director of the Special Investigation Service, V. Buiko, Deputy Director for the Security and Superintendence of the Department of Prisons under the Ministry of Justice of the Republic of Lithuania, Assoc. Prof. Dr. G. Dambrauskienė, Head of the Department of Labour and Social Security, Law Faculty, the Law University of Lithuania.

V

At the Constitutional Court hearing, the representative of the party concerned, the Seimas, who was J. Andriuškevičiūtė, and the representatives of the party concerned, the Government, who were S. Černuševič and A. Sodonis, virtually reiterated the arguments set forth in their written explanations presented to the Constitutional Court.

The Constitutional Court

holds that:

I

On the compliance of Paragraphs 1 and 2 of Article 7, Paragraph 6 and Item 2 of Paragraph 9 of Article 16 of the Law on the State Pensions of Officials and Servicemen of the Interior, the Special Investigation Service, State Security, Defence and of the Prosecutor’s Office (wording of 2 May 2000) with Paragraph 1 of Article 29 of the Constitution.

1. Paragraphs 1 and 2 of Article 7 of the Law provide:

1. The state pension of officials and servicemen for service shall be calculated and paid on the basis of the remuneration for work valid in the month of the payment of the pension for the post which the official or serviceman used to hold prior to his retirement. This remuneration shall include the official salary, as well as the additional pay for the rank, length of service and the category when this additional pay is paid under procedure established by law.

2. 1 percent of the salary pointed out in Paragraph 1 of this article shall be paid for every year of service which is included into the time of service for which pension is granted.”

Paragraph 6 of Article 16 of the Law provides: “In the course of the calculation of the state pensions for officials and servicemen the percentages pointed out in Paragraphs 2 and 3 of Article 7 and Paragraph 1 of Article 9 of this Law shall be increased by 1.8 times for the years of service which had been prior to this Law going into effect and included into the time of service for which pension is granted. When the time of service is equalled to 20 years under Paragraph 2 of Article 9 of this law, this rule shall be applied only to the years of service which had been prior to the entry into force of this Law.”

Item 2 of Paragraph 2 of Article 16 of the Law provides that to the officials and servicemen to whom the pension was granted prior to the entry into force of this Law the same procedure shall be applied for recalculation of the granted pension as in the case of the calculation of the state pension of officials and servicemen under this Law (together with the annex pointed out in Paragraph 7 of this Article), with the exception of the pension of a loss of the breadwinner.

2. The petitioner maintains that, under Paragraphs 1 and 2 of Article 7, Paragraph 6 of Article 16 and Item 2 of Article 9 of the Law, the amount of the state pension of officials and servicemen for service depends on the time of the retirement of the person, i.e. either prior to or after the entry into force of this Law. The petitioner doubts whether the fact that the amount of the state pension of officials and servicemen for service depends on the time of the retirement of the person does not violate the constitutional principle of the equality of persons before the law.

In the opinion of the petitioner, under the Law, the officials and servicemen who retired before the Law came into force are in a better situation if compared to the situation of the officials and servicemen who retired after the Law had come into force. The petitioner doubts whether from this aspect, too, the legal regulation of the calculation and recalculation of the state pension of the officials and servicemen for service is in compliance with the constitutional principle of the equality of persons before the law.

3. The norms entrenched in Paragraphs 1 and 2 of Article 7, Paragraph 6 and Item 2 of Paragraph 9 of Article 16 of the Law regulate the relations arising in the course of the calculation of the state pension of the officials and servicemen for service, which is granted after the Law went into effect, as well as in the course of the recalculation of the said pension which had been granted before the Law went into effect. The said provisions of the Law are interrelated. It is clear from the arguments set forth in the petition that the petitioner doubts as to the compliance of the legal regulation, established in Paragraphs 1 and 2 of Article 7, Paragraph 6 and Item 2 of Paragraph 9 of Article 16 of the Law, under which the state pension of the officials and servicemen for service is calculated and recalculated, with Paragraph 1 of Article 29 of the Constitution.

Subsequent to the petition of the petitioner, the Constitutional Court will consider whether Paragraphs 1 and 2 of Article 7, Paragraph 6 and Item 2 of Paragraph 9 of Article 16 of the Law were in compliance with the principle of the equality of persons before the law, which is enshrined in Article 29 of the Constitution.

4. The bases of pensionary maintenance and social assistance are enshrined in Article 52 of the Constitution, wherein it is established 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 the breadwinner, and other cases provided by law. Under this article of the Constitution, not only the pensions and social assistance pointed out in the said article but also other pensions or different social assistance, including the state pension of the officials and servicemen for service, may be provided for. Under Article 52 of the Constitution, the relations of pensionary maintenance and social assistance are regulated by law only.

The formula “the state shall guarantee” as employed in Article 52 of the Constitution means, inter alia, that pensions and various types of social assistance are guaranteed for the persons on the bases and by the amounts that are established in laws.

After the types of pensions, the persons entitled to the pension, the bases of granting and payment of pensions, their amounts, and the conditions have been established by law, a duty arises for the state to follow the constitutional principles of the protection of legitimate expectations and legal certainty in the area of pensionary maintenance relations. Therefore, amendments of the established legal regulation deteriorating the pensionary maintenance are possible only when there appears a special situation in the state and only when it is necessary to protect other constitutional values. This can be done by law only, without violating the Constitution.

5. In the course of the regulation of pensionary maintenance by law, the other constitutional principles ought to be followed as well, including the principle of the equality of persons before the law enshrined in Article 29 of the Constitution, which provides:

All persons shall be equal before the law, the court, and other State institutions and officers.

A person may not have his rights restricted in any way, or be granted any privileges, on the basis of his or her sex, race, nationality, language, origin, social status, religion, convictions, or opinions.”

The constitutional principle of the equality of persons means an innate human right to be treated equally with the others. Paragraph 1 of Article 29 of the Constitution establishes a formal equality of all persons, while in Paragraph 2 thereof the principle of non-discrimination of and not granting privileges to persons is consolidated (the Constitutional Court’s ruling of 2 April 2001).

In its rulings, the Constitutional Court has held many a time that this principle must be followed both in the passing of laws and in their application. The said principle obligates one to legally assess the homogenous facts in the same manner and prohibits any arbitrary assessment of essentially the same facts in a different manner. On the other hand, the constitutional principle of the equality of persons before the law does not deny the possibility of providing in a law for different legal regulation in respect to certain categories of persons who are in different situations. The variety of social life may determine the manner and content of legal regulation.

The legislature, while establishing the procedure of calculation and recalculation of state pensions for the officials and servicemen for service, differentiates this procedure while taking account of different conditions of service, the formerly in force legal regulation of pensionary maintenance, the held post, the period of service, the category, the education etc.

Under Paragraph 6 and Item 2 of Paragraph 9 of Article 16 of the Law, the amount of state pensions of the officials and servicemen for service, regardless of the fact whether they retired either prior to or after the entry into force of this Law, must be calculated on the basis of the same procedure established in the Law. Under Paragraph 1 of Article 7 of the Law, the amount of state pensions of the officials and servicemen for service in all cases must be calculated on the basis of the remuneration of the officials and servicemen valid in the month of the payment of the pension for the post which the official or serviceman was holding at the time of his retirement. The official salary together with the additional pay for the rank, period of service and category are included into the said remuneration, when the additional pay is paid under the procedure provided for by law.

By means of the provisions of the Law that 1.8 percent of the remuneration amount pointed out in Paragraph 1 of Article 7 of the Law shall be paid for every year of service served before the Law went into effect, which is included into the time of service for which pension is granted, while 1 percent of the said remuneration amount shall be paid for every year of service served after the Law had gone into effect, which is included into the time of service for which pension is granted, the legislature took account of the changed social, legal, economic etc. conditions (the implemented reforms of the institutions of law and order, the changed monetary unit of this country etc.). Alongside, the legislature took into consideration the fact that the post which the official or serviceman used to hold might have been changed, abolished etc.

Under the Law, the state pension of officials and servicemen for service is granted for all persons listed in Article 1 of the Law on the same bases, under the same conditions and the same procedure. The principles and procedure of calculation of the amount of the state pension of the officials and servicemen for service as established in the Law are the same for all persons who are entitled to this pension. The norms of the Law which establish the procedure of calculation and recalculation of state pensions of the officials and servicemen for service do not contain any provisions consolidating inequality of the persons entitled to the said pensions.

6. Taking account of the arguments set forth, it should be concluded that Paragraphs 1 and 2 of Article 7, Paragraph 6 and Item 2 of Paragraph 9 of Article 16 of the Law are in compliance with Article 29 of the Constitution.

II

On the compliance of Item 31.3 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 November 1998) 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 Additional Pay for the Years of Service” of 20 January 1995 with Paragraph 1 of Article 7 of the Law on the State Pensions of Officials and Servicemen of the Interior, the Special Investigation Service, State Security, Defence and of the Prosecutor’s Office (wording of 2 May 2000).

1. Item 31.3 of the Regulations provides:

While recalculating the pensions of the years of service and of disablement for the officials and servicemen of the interior who retired in the period from 1 July 1991 till 31 December 1994, the officials and servicemen of the system of defence who retired as of 25 April 1990, the officials and servicemen of the systems of state security and prosecutor’s office who retired as of the day of the creation of these establishments, the remuneration for work, on the basis of which the pension is calculated, is determined by multiplying the coefficient, which was established in the month of retirement to calculate the remuneration, by the minimal monthly salary of LTL 65 valid in December 1994, and by adding the additional pay for the years of service, the additional pay for the category and the coefficient to calculate the remuneration for the official’s rank, which was valid in December 1994, while applying the provisions of Items 4 and 5 of the Government Resolution (No. 907) ‘On the Indexation of the Remuneration for Work and other Payments’ of 28 September 1994 (Official Gazette Valstybės žinios, 1994, No. 77-1444).

While recalculating the pensions granted on the basis of the remuneration for work which existed, according to the dates pointed out in Items 31 and 31.3, until 31 November 1991, one applies minimal sizes of the coefficient schemes to calculate the official salaries in accordance with respective posts as well as the coefficients depending on the special rank, which are approved by various resolutions of the Government of the Republic of Lithuania, as well as one calculates the additional pay for the category and the years of service.”

2. Paragraph 1 of Article 7 of the Law provides that the state pension of officials and servicemen for service shall be calculated and paid on the basis of the remuneration for work valid in the month of the payment of the pension for the post which the official or serviceman used to hold prior to his retirement. This remuneration shall include the official salary, as well as the additional pay for the rank, length of service and the category when this additional pay is paid under procedure established by law.

3. In the opinion of the petitioner, Item 31.3 of the Regulations provides for a different procedure of recalculation of state pensions of the officials and servicemen for service granted prior to the entry into force of this Law from that provided for in the Law. The petitioner points out that the Law and the Regulations define the remuneration for work in a different manner, on the basis of which the pension is calculated: the Law specifies that in order to calculate the pension, one must base himself on the remuneration for work valid in the month of the payment of pension (Paragraph 1 of Article 7), while the Regulations have established that one must base himself on the remuneration for work which was in the month of the retirement (Item 31.3). The petitioner requests an investigation into whether Item 31.3 of the Regulations is in compliance with Paragraph 1 of Article 7 of the Law.

4. It has been held in this ruling of the Constitutional Court that the provisions of Paragraphs 1 and 2 of Article 7, Paragraph 6 and Item 2 of Paragraph 9 of Article 16 of the Law are interrelated. Therefore, the Constitutional Court will consider whether Item 31.3 of the Regulations is in compliance with Paragraphs 1 and 2 of Article 7, Paragraph 6 and Item 2 of Paragraph 9 of Article 16 of the Law.

5. Under Paragraph 1 of Article 7 of the Law, the amount of the state pension of the officials and servicemen for service is determined by the fact that the said amount is calculated and paid on the basis of the remuneration for work valid in the month of the payment of the pension for the post held by the official or serviceman at the time of his retirement. The said remuneration includes the official salary, as well as the additional pay for the rank, the period of service and the category, when the said additional pay is paid under procedure provided for by law. The remuneration for work pointed out in Paragraph 1 of Article 7 of the Law is a basic index on the grounds of which the state pensions of the officials and servicemen for service granted before the Law went into effect are recalculated (Item 2 of Paragraph 9 of Article 16 of the Law).

Under Item 31.3 of the Regulations, the amount of the state pension of the officials and servicemen for service is determined by the fact that the said amount is calculated and paid on the basis of the remuneration for work, which is determined by multiplying the coefficient of calculation of the salary, which was valid in the month of the retirement, by the minimal salary of LTL 65 that was valid in December 1994. To this remuneration for work one also adds the additional pay for the years of service, the additional pay for the category and the coefficient of calculation of the salary for the rank of the official, which was valid in December 1994, while applying the provisions of Items 4 and 5 of the Government Resolution (No. 907) “On the Indexation of the Remuneration for Work and Other Payments” of 28 September 1994.

Thus, Item 31.3 of the Regulations virtually established the amount of the state pension of the officials and servicemen for service granted before the Law went into effect and the procedure of recalculation of this amount. It needs to be noted that the amount of the state pension of the officials and servicemen for service granted before the Law went into effect and the procedure of recalculation of this amount as established in Item 31.3 of the Regulations are different form the amount of the state pension of the officials and servicemen for service granted before the Law went into effect and the procedure of recalculation of this amount which are established in Paragraphs 1 and 2 of Article 7, Paragraph 6 and Item 2 of Paragraphs 2 of Article 16 of the Law.

Taking account of the arguments set forth, the conclusion should be drawn that Item 31.3 of the Regulations conflicts with Paragraphs 1 and 2 of Article 7, Paragraph 6 and Item 2 of Article 9 of Article 16.

6. As mentioned before, under Article 52 of the Constitution, the persons who should be granted the state pension of the officials and servicemen for service, the bases, conditions, and amounts of granting and payment of this pension must be established by law.

It needs to be noted that the persons entitled to the state pension of the officials and servicemen for service, the bases, conditions, and amounts of granting and payment of this pension are established in the Law. The Law also provides for the procedure of recalculation of the state pension of the officials and servicemen for service granted before the Law went into effect. The provision of Paragraph 2 of Article 12 of the Law that in the course of granting and payment of the state pension of the officials and servicemen for service one shall follow this law and 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 Government, means that the Government is obligated to establish a procedure for granting and payment of state pensions of the officials and servicemen without changing the legal regulation established in the Law.

It has been held in this ruling of the Constitutional Court that the procedure of recalculation of the state pension of the officials and servicemen for service, which had been granted before the Law came into effect, the amount of the pension subject to recalculation as provided for in Item 31.3 of the Regulations are different from the procedure of recalculation of the said pension and its amount which are established in the Law. Item 31.3 of the Regulations virtually provides for the amount of the state pension of the officials and servicemen for service granted before the Law came into effect and the procedure of recalculation of this amount. Under Article 52 of the Constitution, the amount of the pension must be established by law only but not by substatutory act, i.e. the Regulations approved by government resolution.

Taking account of the arguments set forth, it should be concluded that Item 31.3 of the Regulations is in conflict with Article 52 of the Constitution.

7. Under Item 2 of Article 94 of the Constitution, the Government of the Republic of Lithuania shall implement laws and resolutions of the Seimas concerning the implementation of laws, as well as the decrees of the President of the Republic.

In its rulings the Constitutional Court has held many a time that a legal act adopted by the Government is a substatutory legal act, it may not conflict with a law, change the content of the norms of the law, it may not contain any legal norms which would compete with those of the law. The Government may only establish such legal regulation which would be in conformity with the laws. The procedure established by the Government may not contain any legal norms establishing a different legal regulation than provided for in the law and competing with the norms of laws.

It has been held in this ruling of the Constitutional Court that, by means of the norms of Item 31.3 of the Regulations, the Government established a different procedure of recalculation of the state pension of the officials and servicemen for service, which had been granted before the Law came into effect and a different amount of the pension subject to recalculation from those established in the Law. According to Article 52 of the Constitution, the persons who should be granted the state pension of the officials and servicemen for service, the bases, conditions, and amounts of granting and payment of this pension must be established by law. By the norms of Item 31.3 of the Regulations, the Government created new legal norms competing with the norms of the Law.

Taking account of the arguments set forth, it should be concluded that Item 31.3 of the Regulations conflicts with Item 2 of Article 94 of the Constitution.

8. Paragraphs 1 and 2 of Article 5 of the Constitution provide:

In Lithuania, the powers of the State shall be exercised by the Seimas, the President of the Republic and the Government, and the Judiciary.

The scope of powers shall be defined by the Constitution.”

These provisions of the Constitution express the principle of the separation of powers. The Constitutional Court has noted many a time that the constitutional principle of the separation of powers means that the legislative, executive and judicial branches of power must be separated, sufficiently independent, however, they must also be balanced; that every institution of authority is assigned with the competence which corresponds to its purpose; that the content of the competence of the institution depends on the place of the corresponding branch of power in the system of branches of power, on its relation with the other branches of power, on the place of the institution among the other institutions of authority and on the relation of the powers of the said institution with the powers of other institutions; that after the Constitution has directly established the powers of a particular state institution of authority, no state institution may take over such powers from another institution or transfer or waive them, and that such powers may not be amended or limited by law.

It has been held in this ruling of the Constitutional Court that the Government, establishing by Item 31.3 of the Regulations a different procedure of recalculation of the state pension of the officials and servicemen for service, which had been granted before the Law went into effect, and a different amount of the pension subject to recalculation from those provided for in the Law, interfered with the competence of the legislature and violated Article 52 and Item 2 of Article 94 of the Constitution. Having held this, the conclusion should be drawn that Item 31.3 of the Regulations also violates the constitutional principle of the separation of powers, thus, Paragraphs 1 and 2 of Article 5 of the Constitution as well.

Taking account of the arguments set forth, it should be concluded that Item 31.3 of the Regulations conflicts with Paragraphs 1 and 2 of Article 5 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:

1. To recognise that Paragraphs 1 and 2 of Article 7, Paragraph 6 and Item 2 of Paragraph 9 of Article 16 the Republic of Lithuania’s Law on the State Pensions of Officials and Servicemen of the Interior, the Special Investigation Service, State Security, Defence and of the Prosecutor’s Office (wording of 2 May 2000) are in compliance with the Constitution of the Republic of Lithuania.

2. To recognise that Item 31.3 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 November 1998) 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 Additional Pay for the Years of Service” of 20 January 1995 conflicts with Paragraphs 1 and 2 of Article 7, Paragraph 6 and Item 2 of Article 9 of Article 16 of the Republic of Lithuania’s Law on the State Pensions of Officials and Servicemen of the Interior, the Special Investigation Service, State Security, Defence and of the Prosecutor’s Office (wording of 2 May 2000).

3. To recognise that Item 31.3 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 November 1998) 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 Additional Pay for the Years of Service” of 20 January 1995 conflicts with Paragraphs 1 and 2 of Article 5, Article 52 and Item 2 of Article 94 of the Constitution of the Republic of Lithuania.

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

Kęstutis Lapinskas

Zenonas Namavičius

Augustinas Normantas

Jonas Prapiestis

Vytautas Sinkevičius

Stasys Stačiokas