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On state social insurance pensions

Case No. 41/2000

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

RULING

ON THE COMPLIANCE OF PARAGRAPH 2 OF ARTICLE 69 OF THE REPUBLIC OF LITHUANIA’S LAW ON THE DIPLOMATIC SERVICE, ITEM 9 OF PARAGRAPH 1 OF ARTICLE 4 (WORDING OF 16 MARCH 2000) OF THE REPUBLIC OF LITHUANIA’S LAW ON STATE SOCIAL INSURANCE AND ITEM 5 OF PARAGRAPH 1 OF ARTICLE 2 (WORDING OF 16 DECEMBER 1999) AND ARTICLE 23 (WORDINGS OF 21 DECEMBER 1994, 21 DECEMBER 2000 AND 8 MAY 2001) OF THE REPUBLIC OF LITHUANIA’S LAW ON STATE SOCIAL INSURANCE PENSIONS WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 

25 November 2002

Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Armanas Abramavičius, 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, the 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 29 October 2002, in its public hearing, considered case No. 41/2000 subsequent to the petition of the Higher Administrative Court requesting an investigation into whether Paragraph 2 of Article 69 of the Republic of Lithuania’s Law on the Diplomatic Service, Item 9 of Paragraph 1 of Article 4 (wording of 16 March 2000) of the Republic of Lithuania’s Law on State Social Insurance and Item 5 of Paragraph 1 of Article 2 (wording of 16 December 1999) of the Republic of Lithuania’s Law on State Social Insurance Pensions to the extent that they established the obligatory state social pensions insurance for the spouses of diplomats to cover the period which they spent abroad owing to the fact that they resided together with the diplomat who was serving at a diplomatic mission or consular institution of the Republic of Lithuania, were in compliance with Article 52 of the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

I

The Higher Administrative Court, the petitioner, was considering an administrative case. The said court suspended the consideration of the case by its ruling and applied to the Constitutional Court with a petition requesting an investigation into whether Paragraph 2 of Article 69 of the Republic of Lithuania’s Law on the Diplomatic Service (Official Gazette Valstybės žinios, 1999, No. 7-140), Item 9 of Paragraph 1 of Article 4 (wording of 16 March 2000; Official Gazette Valstybės žinios, 2000, No. 28-763) of the Republic of Lithuania’s Law on State Social Insurance and Item 5 of Paragraph 1 of Article 2 (wording of 16 December 1999; Official Gazette Valstybės žinios, 1999, No. 113-3283) of the Republic of Lithuania’s Law on State Social Insurance Pensions to the extent that they established obligatory state social pensions insurance for the spouses of diplomats to cover the period which they spent abroad owing to the fact that they resided together with the diplomat who was serving at a diplomatic mission or consular institution of the Republic of Lithuania, were in compliance with Article 52 of the Constitution.

II

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

Paragraph 2 of Article 23 (wording of 21 December 1994) of the Law on State Social Insurance Pensions provides that pensioners who are under 65 years of age and have the obligatory state social pensions insurance period and the insured income which does not exceed 1.5 minimal monthly salary shall be paid full state social insurance old age pension. If their insured income exceeds 1.5 minimal monthly salary, they shall be paid only the basic part of the state social insurance old age pension. Paragraph 1 of Article 40 of the same law provides that if a person who has been awarded state social insurance old age pension accrues an additional, but at least three-year state social insurance period, while working under employment contract, or on the basis of membership or service, at his request the pension may be awarded according to the new data from the moment of the filing of the application. The petitioner notes that this means that the pensioners pointed out in the law have the right to choose whether (1) to refuse the insured income and receive the full old age pension (the basic one and the complementary part); (2) to work and to receive the insured income for work or in other manner, which is larger than 1.5 minimal monthly salary, while refusing the complementary part of the old age pension; (3) to work and receive the insured income which does not exceed 1.5 minimal monthly salary, as well as the full old age pension. In cases of the latter two situations, one acquires the right to recalculation of the old age pension in the future.

In the opinion of the petitioner, the spouse of a diplomat who receives the old age pension and who resides abroad together with the diplomat serving at a diplomatic mission or consular institution of the Republic of Lithuania does not have such an opportunity to choose. Paragraph 2 of Article 69 of the Law on the Diplomatic Service provides that the spouse of a diplomat shall be insured by the state social pensions insurance on an obligatory basis to cover the period which the diplomat’s spouse spent abroad owing to the fact that he resided with the diplomat working at a diplomatic mission or consular institution of the Republic of Lithuania. Contributions for such persons are paid from the State Budget of the Republic of Lithuania, while their size is calculated from 0.5 amount of the diplomat’s official salary. The law provides for one exception only, i.e. the aforementioned requirement is not applied upon the diplomat’s spouse becoming employed. No exceptions are provided for pensioners or their individual categories.

The petitioner notes that analogous provisions providing for obligatory state social insurance pensions insurance of the spouse of the diplomat are entrenched in Item 9 of Paragraph 1 of Article 4 (wording of 16 March 2000) of the Law on State Social Insurance and Item 5 of Paragraph 1 of Article 2 (wording of 16 December 1999) of the Law on State Social Insurance Pensions. Upon obligatory insurance of the spouse of the diplomat, in case the income from which the contributions are calculated exceeds 1.5 minimal monthly salary, the complementary part of the old age pension is not paid to him. One does not take into consideration the resolve of the spouse of the diplomat. According to the petitioner, the spouse of the diplomat would receive the full old age pension only in case that he did not reside together with the diplomat (the obligatory insurance is only provided for to the spouse who resides together with the diplomat). Therefore, the reception of the full pension or part thereof also becomes dependent on the place of residence of the pensioner, although the laws regulating pensions do not provide for this directly.

Article 52 of the Constitution provides that the state shall guarantee the right of citizens to old age pension, therefore, the petitioner doubts whether Paragraph 2 of Article 69 of the Law on the Diplomatic Service, Item 9 of Paragraph 1 of Article 4 (wording of 16 March 2000) of the Law on State Social Insurance and Item 5 of Paragraph 1 of Article 2 (wording of 16 December 1999) of the Law on State Social Insurance Pensions providing for obligatory state social pensions insurance for the spouses of diplomats to cover the period that they spent abroad owing to the fact that they resided together with the diplomat who was serving at a diplomatic mission or consular institution of the Republic of Lithuania to the extent that this insurance is applied to the diplomats’ spouses who receive old age pensions, are in compliance with Article 52 of the Constitution.

III

In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from J. Andriuškevičiūtė, the chief consultant to the Legal Department of the Office of the Seimas, the representative of the party concerned, the Seimas.

It is noted in the explanations of the representative of the party concerned that the state, while guaranteeing the constitutional rights of citizens and implementing its duty to take care of the citizens and residents of this country, has established such a solidarity principle based system, when able-bodied persons must pay contributions, while the persons who cannot take care of themselves due to objective reasons are entitled to assistance. It has become historically established that the social assistance system based on the insurance principle is called obligatory (in other countries—legal, state) social insurance. Besides the obligatory social insurance, there can function pension funds as well as private (voluntary) insurance, thus, the notion “obligatory insurance” indicates the nature of this insurance and its difference from private or pensions’ funds’ insurance.

J. Andriuškevičiūtė maintains that the purpose of state social insurance is to provide persons with funds and services that are needed for subsistence if they, due to the reasons provided for in the law, cannot provide themselves from work or other income, or if, due to the reasons provided for in the law, incur additional expenses.

According to A. Andriuškevičiūtė, it is unreasonably stated in the petition of the petitioner that the spouse of the diplomat, who is insured by state social insurance pensions insurance in an obligatory manner, loses the opportunity to choose, which is enjoyed by other pensioners: to refuse the insured income or to come to an agreement in the employment contract about the remuneration of certain amount and to receive, due to this, the insured income of one or other amount. The representative of the party concerned notes that the laws regulating the relations of state social insurance do not single out pensioners—spouses of diplomats—in any manner. According to A. Andriuškevičiūtė, the spouse of the diplomat has an opportunity to choose as to what way of assistance legitimised by the state to make use of: to receive the payment of 0.5 official salary of the diplomat, which is provided for his residence abroad, or to refuse it (i.e. whether to have the insured income or not), whether to receive the established pension or not.

J. Andriuškevičiūtė also notes that, under Article 23 of the Law on State Social Insurance Pensions, the payment or non-payment of the pension (part thereof) is linked with the insured income of the person but not with the place of residence of the person, therefore, the argument of the petitioner that “the reception of the full pension or part thereof becomes also dependent on the place of residence of the pensioner” is, in the opinion of the representative of the party concerned, groundless.

According to J. Andriuškevičiūtė, Paragraph 2 of Article 69 of the Law on the Diplomatic Service, Item 9 of Paragraph 1 of Article 4 (wording of 16 March 2000) of the Law on State Social Insurance and Item 5 of Paragraph 1 of Article 2 (wording of 16 December 1999) of the Law on State Social Insurance Pensions providing for obligatory state social pensions insurance for the spouses of the diplomats to cover the period which they spent abroad owing to the fact they resided together with the diplomat who was serving at a diplomatic mission or consular institution of the Republic of Lithuania are in compliance with Article 52 of the Constitution.

IV

In the course of the preparation of the case for the judicial consideration, written explanations were received from V. Blinkevičiūtė, Minister of Social Security and Labour of the Republic of Lithuania, P. Koverovas, the state secretary of the Ministry of Justice of the Republic of Lithuania, and Prof. G. Dambrauskienė who works at the Department of Labour Law and Social Security of the Faculty of Law, the Law University of Lithuania.

V

At the Constitutional Court hearing, the representative of the party concerned, the Seimas, who was J. Andriuškevičiūtė, virtually reiterated the arguments set forth in the written explanations.

The Constitutional Court

holds that:

I

1. The petitioner requests an investigation into whether Paragraph 2 of Article 69 of the Law on the Diplomatic Service, Item 9 of Paragraph 1 of Article 4 (wording of 16 March 2000) of the Law on State Social Insurance and Item 5 of Paragraph 1 of Article 2 (wording of 16 December 1999) of the Law on State Social Insurance Pensions to the extent that they establish obligatory state social pensions insurance for the spouses of diplomats to cover the period which they spent abroad owing to the fact that they resided together with the diplomat who was serving at a diplomatic mission or consular institution of the Republic of Lithuania are in compliance with Article 52 of the Constitution.

2. On 29 December 1998, the Seimas adopted the Republic of Lithuania’s Law on the Diplomatic Service Paragraph 2 of Article 69 whereof provides: “The obligatory state social insurance pensions contributions shall be paid from the State Budget of the Republic of Lithuania to cover the period which a diplomat’s spouse spent abroad owing to the fact that the spouse of the diplomat resided together with the diplomat who was serving at a diplomatic mission or consular institution of the Republic of Lithuania. The size of the contributions shall be calculated from 0.5 amount of the diplomat’s official salary. This requirement shall not be applied upon the diplomat’s spouse becoming employed.”

On 16 March 2000, the Seimas adopted the Republic of Lithuania’s Law on the Amendment of the Law on the Diplomatic Service whereby the title of Article 69 and Paragraph 1 thereof were amended. Paragraph 2 of Article 69 of the Law on the Diplomatic Service which is impugned by the petitioner has not been amended.

3. The Seimas amended and supplemented Paragraph 2 of Article 4 of the Law on State Social Insurance by the 18 May 1999 Republic of Lithuania’s Law on the Amendment and Supplement of Articles 2, 3, 4, 7, 26, 28, 30, 31, 32, 34, 35, 36, 38, 39, 40, 41, and 42 of the Law on State Social Insurance, by establishing, inter alia, in Item 1 of the aforesaid paragraph that, under the procedure established by this law, the persons who work under diplomatic service or fixed-term diplomatic service contracts as well as spouses of diplomats shall be insured in an obligatory manner.

On 16 March 2000, the Seimas adopted the Republic of Lithuania’s Law on the Amendment and Supplement of Articles 4, 7, 17, 26, 34, 35, and 44 of the Law on State Social Insurance whereby Article 4 of the Law on State Social Insurance was set forth in its new wording and Paragraph 1 thereof was, inter alia, supplemented with Item 9 providing that state social insurance shall be obligatory for “unoccupied spouses of diplomats to cover the period which they spend abroad owing to the fact that they reside together with the diplomat who is serving at a diplomatic mission or consular institution of the Republic of Lithuania”.

4. The Seimas, by means of the Republic of Lithuania the Law on the Amendment and Supplement of Articles 2, 5, 6, 8, 10, 13, 14, 45, and 52 of the Law on State Social Insurance Pensions and on the Recognition of Articles 1 and 4 of the Law on the Amendment and Supplement of Articles 2, 7, 12, 14, 17, 24, 26, 27, 28, 39, 40, 42, 43, 45, 49, and 51 of the Law on State Social Insurance Pensions as Null and Void, which was adopted on 16 December 1999, set forth Article 2 of the Law on State Social Insurance Pensions in its new wording and, along with the other supplements, it established in Item 5 of Paragraph 1 of the latter article that state social insurance shall be obligatory for “unoccupied spouses of diplomats to cover the period which they spend abroad owing to the fact that they reside together with the diplomat who is serving at a diplomatic mission or consular institution of the Republic of Lithuania”.

On 20 November 2001, the Seimas adopted the Republic of Lithuania’s Law on the Amendment and Supplement of Articles 2, 6, 8, 9, 13, 14, 15, 21, and 54 of the Law on State Social Insurance Pensions, upon the amendment of Paragraph 1 of Article 2 whereof the numbering of the items of the same paragraph was changed, and Item 5 impugned by the petitioner became Item 6.

5. The petitioner, while requesting an investigation into whether Paragraph 2 of Article 69 of the Law on the Diplomatic Service, Item 9 of Paragraph 1 of Article 4 (wording of 16 March 2000) of the Law on State Social Insurance and Item 5 of Paragraph 1 of Article 2 (wording of 16 December 1999) of the Law on State Social Insurance Pensions are in compliance with the Constitution, points out that the impugned legal regulation implies that if an unoccupied spouse of the diplomat is insured in an obligatory manner by state social pensions insurance, and if the income from which the insurance contributions are calculated exceed 1.5 minimal monthly salary, on the basis of Article 23 of the Law on State Social Insurance Pensions, the spouse of the diplomat, an old age pensioner, is not paid the complementary part of the old age pension. In the opinion of the petitioner, according to such legal regulation, the spouse of the diplomat, an old age pensioner, does not have an opportunity to refuse the insured income and receive the full old age pension, since he is insured by obligatory state social pensions insurance, while calculating the amount of the contributions from 0.5 official salary of the diplomat.

It needs to be noted that the Higher Administrative Court, the petitioner, had doubts regarding the compliance of the articles (paragraphs thereof) of the laws indicated by it with the Constitution in the course of the consideration of an administrative case in which it was being decided whether the payment of part of the old age pension had been reasonably terminated for a person who had been awarded the old age pension and had been paid the basic as well as the complementary part of the old age pension.

6. In the context of the case at issue, one has to emphasise that the impugned provisions of Paragraph 2 of Article 69 of the Law on the Diplomatic Service, Item 9 of Paragraph 1 of Article 4 (wording of 16 March 2000) of the Law on State Social Insurance and Item 5 of Paragraph 1 of Article 2 (wording of 16 December 1999) of the Law on State Social Insurance Pensions and the provisions of Article 23 of the Law on State Social Insurance Pensions concerning the payment of pensions to the pensioners (including unoccupied spouses of diplomats, who are old age pensioners) who have the insured income are inseparable: the provisions of Article 23 of the Law on State Social Insurance Pensions are applied to unoccupied spouses of diplomats, old age pensioners, under which they are paid not full awarded state social insurance old age pension, as they are insured in an obligatory manner by state social pensions insurance under Paragraph 2 of Article 69 of the Law on the Diplomatic Service, Item 9 of Paragraph 1 of Article 4 (wording of 16 March 2000) of the Law on State Social Insurance and Item 5 of Paragraph 1 of Article 2 (wording of 16 December 1999) of the Law on State Social Insurance Pensions. It also needs to be noted that Paragraph 1 of Article 69 (wording of 16 March 2000) of the Law on the Diplomatic Service provides that this Law, as well as the Laws on State Social Insurance, Health Insurance and State Social Insurance Pensions and other legislative acts shall establish social and health insurance of a diplomat as well as state social pension insurance of his spouse. Therefore, it is impossible to investigate the provisions of Paragraph 2 of Article 69 of the Law on the Diplomatic Service, Item 9 of Paragraph 1 of Article 4 (wording of 16 March 2000) of the Law on State Social Insurance and Item 5 of Paragraph 1 of Article 2 (wording of 16 December 1999) of the Law on State Social Insurance Pensions pointed out by the petitioner and consider the compliance whereof with the Constitution without a prior examination of the legal regulation established by Article 23 of the Law on State Social Insurance Pensions and a prior investigation into the compliance of the respective provisions of the same article with the Constitution.

7. It needs to be noted that Article 23 of the Law on State Social Insurance Pensions regulating the payment of old age pensions to pensioners who have the insured income has been altered for more than once.

7.1. Upon the adoption of the Law on State Social Insurance Pensions on 18 July 1994, Paragraph 2 of Article 23 thereof provided: “The pensioners who have the insured income and who are under 65 years of age shall be paid only the basic part of state social insurance old age pension which is established by this Law, if they have the obligatory state social pensions insurance period. If the pension is increased due to the Deferred Application (Article 24), then only the increased basic part of the pension shall be paid respectively.”

In the context of the case at issue, it needs to be noted that under the then legal regulation, the pensioners who were under 65 years of age and who had the obligatory state social pensions insurance period and the insured income, were paid only the basic part of old age pension but not the full state social insurance old age pension, regardless of the amount of the said income.

7.2. By means of the 21 December 1994 Republic of Lithuania’s Law “On the Amendment and Supplement of the Republic of Lithuania’s Law on State Social Insurance Pensions”, Paragraph 2 of Article 23 of the Law on State Social Insurance Pensions was amended and set forth as follows: “Pensioners who are under 65 years of age and have the obligatory state social pensions insurance period and the insured income which does not exceed 1.5 minimal monthly salary shall be paid full state social insurance old age pension. If their insured income exceeds 1.5 minimal monthly salary, they shall be paid only the basic part of the state social insurance old age pension.”

Thus, under the legal regulation established by this amendment of the Law on State Social Insurance Pensions, the amount of the pension paid to the pensioners who were under 65 years of age and had the obligatory state social pensions insurance period and who had the insured income, became dependent on the amount of their insured income: if the insured income did not exceed 1.5 minimal monthly salary, the said pensioners were paid full state social insurance old age pension; if the insured income exceeded 1.5 minimal monthly salary, only the basic part of the old age pension was paid.

It needs to be noted that at the time of the adoption of the Law on the Diplomatic Service, the 21 December 1994 wording of Article 23 of the Law on State Social Insurance Pensions was in force.

7.3. On 21 December 2000, the Seimas adopted the Law on the Amendment of Articles 23 and 32 of the Law on State Social Insurance Pensions, whereby Article 23 of the Law on State Social Insurance Pensions was set forth in the following wording:

The pensioners who, after they have been awarded the state social insurance old age pension, have income from which obligatory contributions of state social pensions insurance are calculated and paid, or who receive state social insurance allowances of sickness (including those paid by the employer during the days of sickness), of maternity, of maternity (paternity) or of unemployment (hereinafter in this Article referred to as the insured income), if they have the obligatory state social pensions insurance period (Articles 19, 22 and Paragraph 1 of Article 46), shall be paid the basic part of state social insurance old age pension (Paragraph 1 of Article 20). Besides, they, if their insured income is less than 1.5 minimal monthly salary, shall be paid the part (comprised of the sum of the amounts presented below) of the complementary part (hereinafter in this Article referred to as the complementary part) of the awarded old age pension:

1) 50 percent of the complementary part not exceeding LTL 100;

2) 20 percent of the complementary part which is from LTL 100.01 till LTL 200;

3) 10 percent of the complementary part which is from LTL 200.01 till LTL 300.

The part of the complementary part of the old age pension which exceeds LTL 300 shall not be paid.

The pensioners who have the insured income who do not have the state social pensions insurance period which is obligatory for the old age pension, shall not be paid the state social insurance old age pension.

The service time pensions awarded under the procedure prior to the entry into effect of this Law (Paragraph 4 of Article 45), shall be paid to the receivers of the said pensions who have the insured income under the procedure of the first and second paragraph of this Article.”

Thus, these amendments of the law established such a legal regulation under which the amount of the pension paid to pensioners, already without taking account of their age, who have the obligatory state social pensions insurance period and have the insured income, depends on the amount of their insured income, however, the awarded full state social insurance old age pension is not paid to the pensioners who have the insured income: if the insured income exceeds 1.5 minimal monthly salary, only the basic part of old age pension is paid, while if the insured income is less than 1.5 minimal monthly salary, the part (of the amount established by law) of the complementary part of the pension is paid in addition to the basic part of the pension.

7.4. On 8 May 2001, the Seimas adopted the Republic of Lithuania’s Law on the Amendment of Articles 23 and 32 of the Law on State Social Insurance Pensions whereby Article 23 of the Law on State Social Insurance Pensions was set forth as follows:

The pensioners who, after they have been awarded the state social insurance old age pension, have income from which obligatory contributions of state social pensions insurance are calculated and paid, or who receive state social insurance allowances of sickness (including those paid by the employer during the days of sickness), of maternity, of maternity (paternity) or of unemployment (hereinafter in this Article referred to as the insured income), if they have the obligatory state social pensions insurance period (Articles 19, 22 and Paragraph 1 of Article 46), shall be paid full awarded state social insurance old age pension when their insured income does not exceed 1 minimal monthly salary. If the insured income of the said persons exceeds 1 minimal monthly salary but does not exceed 1.5 minimal monthly salary, they shall be paid the basic part of state social insurance old age pension (Paragraph 1 of Article 20) and the part (comprised of the sum of the amounts presented below) of the complementary part (hereinafter in this Article referred to as the complementary part) of the awarded old age pension:

1) 50 percent of the complementary part not exceeding LTL 100;

2) 20 percent of the complementary part which is from LTL 100.01 till LTL 200;

3) 10 percent of the complementary part which is from LTL 200.01 till LTL 300.

The part of the complementary part which exceeds LTL 300 shall not be paid.

If the insured income of the persons specified in the first paragraph of this Article exceeds 1.5 minimal monthly salary, they shall be paid the basic part of state social insurance old age pension.

The pensioners who have the insured income and who do not have the state social pensions insurance period, which is obligatory for the old age pension, shall not be paid the state social insurance old age pension.

The service time pensions awarded under the procedure prior to the entry into effect of this Law (Paragraph 4 of Article 45), shall be paid to the receivers of the said pensions who have the insured income under the procedure of the first and second paragraph of this Article.”

In the context of the case at issue, it needs to be noted that these amendments of the law established the legal regulation whereby the amount of the pension paid to pensioners, without taking account of their age, who have the obligatory state social pensions insurance period and have the insured income, depends on the amount of their insured income: (1) the full awarded state social insurance old age pension is paid when the insured income does not exceed 1 minimal monthly salary; (2) if the insured income exceeds 1 minimal monthly salary but does not exceed 1.5 minimal monthly salary, the part of the amount, established in the law, of the complementary part of the pension is paid in addition to the basic part of the pension; (3) if the insured income exceeds 1.5 minimal monthly salary, only the basic part of old age pension is paid.

7.5. In the context of the case at issue, while summing up the provisions of Article 23 (wordings of 21 December 1994, 21 December 2000, and 8 May 2001) of the Law on State Social Insurance Pensions, it needs to be noted that the limitations were established therein which do not permit the pensioners, who have the obligatory state social pensions insurance period and have the insured income, thus, including the pensioners who were awarded the old age pension and who were paid the basic and complementary parts of old age pension, to receive full awarded state social insurance old age pension.

8. In the context of the case at issue, it needs to be noted that the notion of the insured income is defined in Article 13 of the Law on State Social Insurance Pensions. Article 13 (wording of 16 December 1999) of the Law on State Social Insurance Pensions, inter alia, provided that the full income from which contributions of state social pensions insurance were paid by unoccupied spouses of diplomats to cover the period which they reside abroad together with the diplomat serving at a diplomatic mission or consular institution of the Republic of Lithuania, shall be considered their insured income.

On 20 November 2001, the Seimas adopted the Law on the Amendment and Supplement of Articles 2, 6, 8, 9, 13, 14, 15, 21, and 54 of the Law on State Social Insurance Pensions whereby Article 13 was, inter alia, supplemented with the provision that the insured income for the insurance period of the state social pensions insurance of unoccupied spouses of diplomats to cover the period which they reside abroad together with the diplomat serving at a diplomatic mission or consular institution of the Republic of Lithuania, shall be considered the sums from which contributions of state social pensions insurance were either paid or had to be paid for them into the State Social Insurance Fund Budget.

9. In the case at issue, the Constitutional Court will investigate the compliance of the provisions of Paragraph 2 of Article 69 of the Law on the Diplomatic Service, Item 9 of Paragraph 1 of Article 4 (wording of 16 March 2000) of the Law on State Social Insurance, Item 5 of Paragraph 1 of Article 2 (wording of 16 December 1999) and Article 23 (wordings of 21 December 1994, 21 December 2000, and 8 May 2001) of the Law on State Social Insurance Pensions concerning the limitations which do not permit the pensioners, who have the obligatory state social pensions insurance period and have the insured income and who were awarded and paid the basic and complementary parts of old age pension, to receive the full awarded state social insurance pension, with the Constitution.

II

1. Article 52 of the Constitution provides: “The State shall guarantee the right of citizens to old age and disability pension, as well as to social assistance in the event of unemployment, sickness, widowhood, loss of breadwinner, and other cases provided by law.”

1.1. Under the Constitution, every citizen has the right to social security. Social security is entrenched in the Constitution in various aspects. The pensions and social assistance indicated in Article 52 thereof are one of the forms of social security.

1.2. The formula “the State shall guarantee” employed in Article 52 of the Constitution means that the (old age and disability) pensions and types of social assistance (in the event of unemployment, sickness, widowhood, loss of breadwinner) enumerated in the same article have to be provided for by law, and also that other pensions and types of social assistance (not indicated in Article 52 of the Constitution) may be provided for by law as well.

The provisions of Article 52 of the Constitution, while guaranteeing the right to social assistance to citizens, obligate the state to establish sufficient measures of the implementation and legal protection of this right. Thus, not only must the types of pensions and social assistance indicated in this article of the Constitution be established by law but also the proper implementation and legal protection of the human right to receive a pension and social assistance must be ensured. The provisions of Article 52 of the Constitution presuppose a duty of the legislature to establish the legal regulation which would ensure the accumulation of funds necessary for pensions and social assistance and which would ensure the payment of these pensions and the rendering of social assistance.

1.3. The old age pension is one of the types of pensions that are pointed out expressis verbis in Article 52 of the Constitution. In the context of the case at issue, it needs to be noted that, under Article 52 of the Constitution, the law must establish the age upon reaching which the person has the right to receive an old age pension, also the grounds, conditions and amounts of the awarding and payment of this pension. The legislature, while establishing this by law, must pay heed to the norms and principles of the Constitution.

1.4. One must also pay attention to the fact that the collecting of the funds necessary to pay old age pensions and the awarding of these pensions are, as a rule, based on social insurance. The payment of social insurance contributions presupposes the right of the person to receive an old age pension of a corresponding amount, and this amount must depend on the paid contributions of social insurance. It needs to be noted that Article 9 of the International Covenant on Economic, Social, and Cultural Rights provides: “The States Parties to the present Covenant recognise the right of everyone to social security including social insurance.”

1.5. Under the Constitution, the state, as the organisation of the entire society, has an obligation to take care of its members in the event of old age, disablement, unemployment, sickness, widowhood, loss of breadwinner, and other cases provided for by the Constitution and laws.

In its ruling of 12 March 1997, the Constitutional Court held that measures of social protection express the idea of public solidarity and that they help a person to protect himself from possible social hazards.

In a civil society the principle of solidarity does not deny the personal responsibility for one’s destiny, therefore, the legal regulation of social assistance must be such so as to create preconditions and incentives for every member of society to take care of one’s own welfare by oneself, but not to rely solely on the social assistance guaranteed by the state.

1.6. In the context of the case at issue, it needs to be noted that it is impossible to construe the solidarity principle as establishing the discretion of the legislature to regulate the awarding and payment of old age pensions so that the amounts of old age pensions, when the system of old age pensions is based on social insurance, while creating the material preconditions of the payment of such pensions, will not or will insignificantly depend on the amounts of contributions that have been paid. The amounts of social insurance contributions are the basis for the differentiation of the amounts of old age pensions.

2. The Constitution shall be an integral and directly applicable act (Paragraph 1 of Article 6 of the Constitution), the principles and norms of the Constitution constitute a harmonious system. It is not permitted to construe a provision of the Constitution in the manner so that the content of another constitutional provision would be denied or distorted, since this way the essence of the entire constitutional regulation would be distorted and the balance of constitutional values would be disturbed.

The provision of Article 52 of the Constitution that the state shall guarantee the right to receive an old age pension should be construed while taking account of the other provisions of the Constitution, while in the context of the case at issue, while also taking account of the constitutional principle of a state under the rule of law, of the right of the human being to freely choose a job and business, and of the provisions of Article 23 of the Constitution on the inviolability of property and the protection of the rights of ownership.

2.1. The constitutional principle of a state under the rule of law is a universal principle upon which the entire Lithuanian legal system as well as the Constitution itself are based. The content of the principle of a state under the rule of law is disclosed in various provisions of the Constitution and should be construed inseparably from the striving for an open, just, and harmonious civil society, which is proclaimed in the Preamble to the Constitution. Along with the other requirements, the principle of a state under the rule of law, which is entrenched in the Constitution, also implies that one must ensure human rights and freedoms, that all institutions implementing state authority and other state institutions must act on the basis of law and in compliance with law, that the Constitution has the supreme legal power and that all legal acts must be in conformity with the Constitution. Inseparable elements of the principle of a state under the rule of law are protection of legitimate expectations, legal certainty and legal security. In case protection of legitimate expectations, legal certainty and legal security were not ensured, the confidence of the person in the state and law would not be ensured.

In its ruling of 12 July 2001, the Constitutional Court held that one of essential elements of the principle of a state under the rule of law established in the Constitution is the principle of legal security, which means the duty of the state to ensure the certainty and stability of legal regulation, to protect the rights of entities of legal relations, including the acquired rights, and to respect legitimate interests and legitimate expectations.

In its ruling of 23 April 2002, the Constitutional Court held that 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.

In the context of the case at issue, it needs to be noted that, while following the constitutional principle of a state under the rule of law, if the person had been awarded and paid an old age pension, then the said pension must be continued to be paid, i.e. it is not permitted to stop its payment or to reduce the amount of the pension paid.

It has been mentioned that the formula “the State shall guarantee” employed in Article 52 of the Constitution presupposes a duty of the legislature to establish the legal regulation which would ensure the accumulation of the funds necessary to pay the pensions and the payment of pensions. However, there may occur such an extreme situation in the state (economic crisis, natural disaster etc.) when it is impossible to accumulate enough funds for the payment of the pensions. In such extraordinary cases the legal regulation of pensionary relations may be corrected also by reducing old age pensions to the extent that it is necessary to ensure vitally important interests of society and to protect other constitutional values. The diminished old age pensions may be paid only on a temporary basis, i.e. only when there is an extraordinary situation in the state. It needs to be noted that even in such extraordinary cases it is not permitted to reduce old age pensions in violation of the balance between the interests of the person and society, which is entrenched in the Constitution; the reduction of old age pensions must be in line with the constitutional principle of proportionality.

2.2. In Paragraph 1 of Article 48 of the Constitution it is, inter alia, established that every person may freely choose an occupation or business. This freedom is one of the conditions for satisfying necessary vital needs of a human being and ensuring his position in the society. The Constitutional freedom of every human being to choose an occupation or business presupposes the duty of the legislature to create legal preconditions for implementing this freedom. While creating the said preconditions, the legislature has the powers to establish, while taking account of the nature of business, the conditions of the implementation of the right to freely choose an occupation or business. While doing this, he must pay heed to the Constitution.

In its ruling of 30 June 2000, the Constitutional Court held that, under the Constitution, no legal regulation may be established under which a person, while implementing one his constitutional right, would lose an opportunity to implement another constitutional right.

In the context of the case at issue, it needs to be noted, that under the Constitution it is not permitted to establish the legal regulation under which an opportunity for the person who has been awarded and paid old age pension, would be restricted, due to this, to freely choose an occupation and business, although he meets the conditions provided for by law so that he would have a certain occupation or would conduct a certain business. The legal regulation under which the person cannot freely choose an occupation and business due to the fact that upon the implementation of this right he would not be paid the awarded old age pension or part thereof which was paid until then, must also be considered a restriction on an opportunity to freely choose an occupation or business.

2.3. Article 23 of the Constitution provides:

Property shall be inviolable.

The rights of ownership shall be protected by law.

Property may only be seized for the needs of society according to the procedure established by law and must be adequately compensated for.”

The inviolability of property and the protection of the rights of ownership mean, inter alia, that the owner as the possessor of the rights to property has the right to demand that other persons do not violate his rights, also, this means that the state has a duty to ensure the protection and safeguarding the rights of ownership.

In the context of the case at issue it needs to be noted that in the case that the collection of funds necessary to pay pensions and the payment of the pensions themselves are based on social insurance (on social insurance contributions), the human being, to a certain extent, takes part in the creation of the material preconditions of the payment of these pensions. While establishing the amounts of old age pensions by law, one should take into consideration the fact as to the amount of the contributions that had been paid when the material preconditions for the payment of these pensions are created.

The person who meets the conditions established by law in order to receive the old age pension, and who has been awarded and paid this pension, has the right to a monetary payment of a respective amount, i.e. the right to possession. Under Article 23 of the Constitution, this right must be protected and safeguarded.

It needs to be noted that the old age pension is linked with possession in the jurisprudence of the European Court of Human Rights as well (European Court of Human Rights, Judgment in the case Wessels-Bergervoet v. Netherlands of 4 June 2002).

III

On the compliance of Article 23 (wordings of 21 December 1994, 21 December 2000, and 8 May 2001) of the Law on State Social Insurance Pensions with Articles 23, 48 and 52 of the Constitution and the constitutional principle of a state under the rule of law.

1. It has been mentioned that Paragraph 2 of Article 69 of the Law on the Diplomatic Service, Item 9 of Paragraph 1 of Article 4 (wording of 16 March 2000) of the Law on State Social Insurance and Item 5 of Paragraph 1 of Article 2 (wording of 16 December 1999) of the Law on State Social Insurance Pensions are inseparable from the legal regulation established in Article 23 (wordings of 21 December 1994, 21 December 2000, and 8 May 2001) of the Law on State Social Insurance Pensions.

2. In Article 23 (wordings of 21 December 1994, 21 December 2000, and 8 May 2001) of the Law on State Social Insurance Pensions the payment of state social insurance old age pensions for pensioners who have the insured income, is established.

3. It was provided in Paragraph 2 (wording of 21 December 1994) of Article 23 of the Law on State Social Insurance Pensions: “Pensioners who are under 65 years of age and have the obligatory state social pensions insurance period and the insured income which does not exceed 1.5 minimal monthly salary shall be paid full state social insurance old age pension. If their insured income exceeds 1.5 minimal monthly salary, they shall be paid only the basic part of the state social insurance old age pension.”

Thus, by means of this legal regulation, the limitations were established on awarding and paying the state social insurance old age pension for pensioners who were under 65 years of age and had the obligatory state social pensions insurance period and the insured income which exceeded 1.5 minimal monthly salary. Under the said legal regulation, such pensioners are paid not the full old age pension that has been awarded to them, but only the basic part of the old age pension.

4. It has been held in this ruling of the Constitutional Court that the provisions of Article 52 of the Constitution guaranteeing the right to social assistance to citizens, obligate the state to establish sufficient measures of the implementation and legal protection of this right. The law must establish the age upon reaching which the person has the right to receive the old age pension, as well as to provide for the grounds, conditions and amounts of the awarding and payment of this pension. While establishing this, the legislature must pay heed to the norms and principles of the Constitution.

It has also been held in this ruling of the Constitutional Court that the person who meets the conditions established by law in order to receive the old age pension, and who has been awarded and paid this pension, has the right to a monetary payment of a respective amount, i.e. the right to possession. Under Article 23 of the Constitution, this right must be protected and safeguarded.

It has been mentioned that if the person had been awarded and paid the old age pension, then the said pension must be continued to be paid, i.e. it is not permitted to stop its payment or to reduce the amount of the pension paid.

Paragraph 2 (wording of 21 December 1994) of Article 23 of the Law on State Social Insurance Pensions, inter alia, provided that pensioners who were under 65 years of age and had the obligatory state social pensions insurance period and the insured income which exceeded 1.5 minimal monthly salary shall be paid only the basic part of the state social insurance old age pension.

Thus, the legal regulation established in Paragraph 2 (wording of 21 December 1994) of Article 23 of the Law on State Social Insurance Pensions, imposed a limitation on the right of pensioners who were under 65 years of age and had the obligatory state social pensions insurance period and the insured income which exceeded 1.5 minimal monthly salary, who were awarded and paid the old age pension (both the basic and complementary parts), to receive the full old age pension which had been awarded and paid until then. The said provision of the law violates the right of such persons to a monetary payment of a corresponding amount, i.e. the right to possession.

5. Taking account of the arguments set forth, the conclusion should be drawn that Paragraph 2 (wording of 21 December 1994) of Article 23 of the Law on State Social Insurance Pensions to the extent that it provided that pensioners who were under 65 years of age and had the obligatory state social pensions insurance period and whose insured income exceeded 1.5 minimal monthly salary shall be paid not the full state social insurance old age pension which had been awarded and paid until then conflicted with Articles 23 and 52 of the Constitution.

6. It has been held in this ruling of the Constitutional Court that under the Constitution it is not permitted to establish the legal regulation under which for the person that has been awarded and paid the old age pension, an opportunity would be restricted due to this to freely choose an occupation and business, although he meets the conditions provided for by law so that he would have a certain occupation or would conduct a certain business.

It has been mentioned that under Paragraph 2 (wording of 21 December 1994) of Article 23 of the Law on State Social Insurance Pensions, pensioners who are under 65 years of age and have the obligatory state social pensions insurance period and have the insured income are paid not the full old age pension but only the basic part of the old age pension, in case their insured income exceeds 1.5 minimal monthly salary.

In this context it needs to be noted that, under Article 13 (wording of 16 December 1999) of the Law on State Social Insurance Pensions, it is, inter alia, held that the insured income of persons shall be considered their entire income from which contributions of state social pensions insurance are paid.

The insured income also includes the income that the persons receive as remuneration for work, as well as income from business.

Thus, by means of the legal regulation established in Paragraph 2 (wording of 21 December 1994) of Article 23 of the Law on State Social Insurance Pensions, a legal situation has been created when the person has to choose whether to have a bigger insured income and receive only the basic part of the old age pension, or to receive the full awarded old age pension and to have the insured income of the amount of no more than 1.5 minimal monthly salary. In such a case an opportunity to freely choose business, due to this, is restricted for the person who was awarded and paid the old age pension, even though he meets the conditions established in the law so that he would have a certain occupation or would conduct a certain business.

7. Taking account of the arguments set forth, the conclusion should be drawn that Paragraph 2 (wording of 21 December 1994) of Article 23 of the Law on State Social Insurance Pensions to the extent that pensioners who were under 65 years of age and had the obligatory state social pensions insurance period and had the insured income were paid not the full old age pension which had been awarded and paid until then, in case their insured income exceeded 1.5 minimal monthly salary, conflicted with the provision of Paragraph 1 of Article 48 of the Constitution that every person may freely choose an occupation or business.

8. It has been mentioned that, while following the constitutional principle of a state under the rule of law, if the person had been awarded and paid an old age pension, then the said pension must be continued to be paid, i.e. it is not permitted to stop its payment or to reduce the amount of the pension paid.

Under Paragraph 2 (wording of 21 December 1994) of Article 23 of the Law on State Social Insurance Pensions, pensioners who are under 65 years of age and have the obligatory state social pensions insurance period, if their insured income exceeds 1.5 minimal monthly salary, shall be paid not the full old age pension but only the basic part of the old age pension.

When the relations of old age pensions are regulated by such legal provisions, one disregards the principles of the protection of legitimate expectations, of legal certainty and legal security. Thus, the constitutional principle of a state under the rule of law is violated.

9. Taking account of the arguments set forth, it should be concluded that Paragraph 2 (wording of 21 December 1994) of Article 23 of the Law on State Social Insurance Pensions to the extent that it provided that pensioners who were under 65 years of age and had the obligatory state social pensions insurance period and whose insured income exceeded 1.5 minimal monthly salary shall be paid not the full state social insurance old age pension which had been awarded and paid until then conflicted with the constitutional principle of a state under the rule of law.

10. Article 23 (wording of 21 December 2000) of the Law on State Social Insurance Pensions provided:

The pensioners who, after they have been awarded the state social insurance old age pension, have income from which obligatory contributions of state social pensions insurance are calculated and paid, or who receive state social insurance allowances of sickness (including those paid by the employer during the days of sickness), of maternity, of maternity (paternity) or of unemployment (hereinafter in this Article referred to as the insured income), if they have the obligatory state social pensions insurance period (Articles 19, 22 and Paragraph 1 of Article 46), shall be paid the basic part of state social insurance old age pension (Paragraph 1 of Article 20). Besides, they, if their insured income is less than 1.5 minimal monthly salary, shall be paid the part (comprised of the sum of the amounts presented below) of the complementary part (hereinafter in this Article referred to as the complementary part) of the awarded old age pension:

1) 50 percent of the complementary part not exceeding LTL 100;

2) 20 percent of the complementary part which is from LTL 100.01 till LTL 200;

3) 10 percent of the complementary part which is from LTL 200.01 till LTL 300.

The part of the complementary part of the old age pension which exceeds LTL 300 shall not be paid.

The pensioners who have the insured income and who do not have the state social pensions insurance period, which is obligatory for the old age pension, shall not be paid the state social insurance old age pension.

The service time pensions awarded under the procedure prior to the entry into effect of this Law (Paragraph 4 of Article 45), shall be paid to the receivers of the said pensions who have the insured income under the procedure of the first and second paragraph of this Article.”

Article 23 (wording of 21 December 2000) of the Law on State Social Insurance Pensions established, inter alia, the legal regulation under which the amount of the paid pension for pensioners, without taking into consideration their age, who have the obligatory state social pensions insurance period and who had the insured income, depends on the amount of their insured income, however, the full awarded state social insurance pension is not paid to the pensioners who have the insured income: if the insured income exceeds 1.5 minimal monthly salary, only the basic part of the old age pension is paid, while if the insured income is less than 1.5 minimal monthly salary, the part of the amount, established in the law, of the complementary part of the pension is paid in addition to the basic part of the pension.

11. In the context of the case at issue, one has to note that, if one compares the provisions of Article 23 (wording of 21 December 2000) of the Law on State Social Insurance Pensions with the provisions of Paragraph 2 (wording of 21 December 1994) of Article 23 of the Law on State Social Insurance Pensions, it becomes clear that the limitations not permitting the persons, who have the obligatory state social pensions insurance period and who have the insured income receive, to receive the full awarded old age pension are also established in Article 23 (wording of 21 December 2000) of the Law on State Social Insurance Pensions.

In addition, Article 23 (wording of 21 December 2000) of the Law on State Social Insurance Pensions even more broadens the circle of the pensioners, who have the obligatory state social pensions insurance period and who have the insured income, and who are paid not the full awarded old age pension: the payment of the full old age pension is limited for all pensioners who have the obligatory state social pensions insurance period and who have the insured income, regardless of their age. Article 23 (wording of 21 December 2000) of the Law on State Social Insurance Pensions also treats the notion of insured income more broadly. The insured income includes the income from which obligatory contributions of state social pensions insurance are calculated and paid, as well as allowances of sickness (including those paid by the employer during the days of sickness), of maternity, of maternity (paternity) or of unemployment.

12. It has already been held in this ruling of the Constitutional Court that Paragraph 2 (wording of 21 December 1994) of Article 23 of the Law on State Social Insurance Pensions to the extent that it provided that pensioners who were under 65 years of age and had the obligatory state social pensions insurance period and whose insured income exceeded 1.5 minimal monthly salary shall be paid not the full state social insurance old age pension which had been awarded and paid until then conflicted with Article 23 of the Constitution, the provision of Paragraph 1 of Article 48 thereof that every person may freely choose an occupation or business, and the constitutional principle of a state under the rule of law.

Taking account of the same arguments, the conclusion should be drawn that Article 23 (wording of 21 December 2000) of the Law on State Social Insurance Pensions to the extent that it provided that pensioners who had the obligatory state social pensions insurance period which was necessary for the old age pension and who had the insured income after they had been awarded the old age pension shall be paid not the full state social insurance old age pension which had been awarded and paid until then conflicted with Article 23 of the Constitution, the provision of Paragraph 1 of Article 48 thereof that every person may freely choose an occupation or business, and the constitutional principle of a state under the rule of law.

13. It needs to be noted that the Law on the Amendment of Articles 23 and 32 of the Law on State Social Insurance Pensions, whereby Article 23 of the Law on State Social Insurance Pensions was set forth in its new wording, was adopted on 21 December 2000, it was published in the official gazette “Valstybės žinios” on 29 December 2000, while it came into force on 1 January 2001. Thus, a legal situation was created in which an unreasonably short time period was established for old age pensioners to decide as to which option established in the law to choose: whether to have the insured income and receive not the full awarded old age pension, or to receive the full awarded old age pension, and not to have any insured income. Such a legislative practice is unacceptable in a democratic state under the rule of law.

14. Article 23 (wording of 8 May 2001) of the Law on State Social Insurance Pensions provides:

The pensioners who, after they have been awarded the state social insurance old age pension, have income from which obligatory contributions of state social pensions insurance are calculated and paid, or who receive state social insurance allowances of sickness (including those paid by the employer during the days of sickness), of maternity, of maternity (paternity) or of unemployment (hereinafter in this Article referred to as the insured income), if they have the obligatory state social pensions insurance period (Articles 19, 22 and Paragraph 1 of Article 46), shall be paid full awarded state social insurance old age pension when their insured income does not exceed 1 minimal monthly salary. If the insured income of the said persons exceeds 1 minimal monthly salary but does not exceed 1.5 minimal monthly salary, they shall be paid the basic part of state social insurance old age pension (Paragraph 1 of Article 20) and the part (comprised of the sum of the amounts presented below) of the complementary part (hereinafter in this Article referred to as the complementary part) of the awarded old age pension:

1) 50 percent of the complementary part not exceeding LTL 100;

2) 20 percent of the complementary part which is from LTL 100.01 till LTL 200;

3) 10 percent of the complementary part which is from LTL 200.01 till LTL 300.

The part of the complementary part which exceeds LTL 300 shall not be paid.

If the insured income of the persons specified in the first paragraph of this Article exceeds 1.5 minimal monthly salary, they shall be paid the basic part of state social insurance old age pension.

The pensioners who have the insured income and who do not have the state social pensions insurance period, which is obligatory for the old age pension, shall not be paid the state social insurance old age pension.

The service time pensions awarded under the procedure prior to the entry into effect of this Law (Paragraph 4 of Article 45), shall be paid to the receivers of the said pensions who have the insured income under the procedure of the first and second paragraph of this Article.”

Thus, Article 23 (wording of 8 May 2001) of the Law on State Social Insurance Pensions established, inter alia, the legal regulation under which the amount of the paid pension for pensioners, without taking into consideration their age, who have the obligatory state social pensions insurance period and who have the insured income, depends on the amount of their insured income: (1) if the insured income does not exceed 1 minimal monthly salary, the full awarded state social insurance old age pension is paid; (2) if the insured income exceeds 1 minimal monthly salary but does not exceed 1.5 minimal monthly salary, the part of the amount, established in the law, of the complementary part of the pension is paid in addition to the basic part of the pension; (3) if the insured income exceeds 1.5 minimal monthly salary, only the basic part of the old age pension is paid.

15. In the context of the case at issue, it needs to be noted that if one compares the provisions of Article 23 (wording of 8 May 2001) of the Law on State Social Insurance Pensions with the provisions of Paragraph 2 (wording of 21 December 1994) of Article 23 of the Law on State Social Insurance Pensions, it becomes clear that the limitations not permitting the persons, who have the obligatory state social pensions insurance period and who have the insured income, to receive the full awarded old age pension are also established in Article 23 (wording of 8 May 2001) of the Law on State Social Insurance Pensions. Under Article 23 (wording of 8 May 2001) of the Law on State Social Insurance Pensions, the payment of the full awarded old age pension is limited for all pensioners, regardless of their age, who have the obligatory period of state social insurance pensions and who have the insured income exceeding 1 minimal monthly salary.

16. It has already been held in this ruling of the Constitutional Court that Paragraph 2 (wording of 21 December 1994) of Article 23 of the Law on State Social Insurance Pensions to the extent that it provided that pensioners who were under 65 years of age and had the obligatory state social pensions insurance period and whose insured income exceeded 1.5 minimal monthly salary shall be paid not the full state social insurance old age pension which had been awarded and paid until then conflicted with Article 23 of the Constitution, the provision of Paragraph 1 of Article 48 thereof that every person may freely choose an occupation or business, and the constitutional principle of a state under the rule of law.

Taking account of the same arguments, the conclusion should be drawn that Article 23 (wording of 8 May 2001) of the Law on State Social Insurance Pensions to the extent that it provides that pensioners who have the obligatory state social pensions insurance period which is necessary for the old age pension and who have the insured income exceeding 1 minimal monthly salary after they have been awarded the old age pension shall be paid not the full state social insurance old age pension which was awarded and paid until then conflicts with Article 23 of the Constitution, the provision of Paragraph 1 of Article 48 thereof that every person may freely choose an occupation or business, and the constitutional principle of a state under the rule of law.

IV

On the compliance of Paragraph 2 of Article 69 of the Law on the Diplomatic Service, Item 9 of Paragraph 1 of Article 4 (wording of 16 March 2000) of the Law on State Social Insurance and Item 5 of Paragraph 1 of Article 2 (wording of 16 December 1999) of the Law on State Social Insurance Pensions with Article 52 of the Constitution.

1. Paragraph 2 of Article 69 of the Law on the Diplomatic Service provides: “The obligatory state social insurance pensions contributions shall be paid from the State Budget of the Republic of Lithuania to cover the period which a diplomat’s spouse spent abroad owing to the fact that the spouse of the diplomat resided together with the diplomat who was serving at a diplomatic mission or consular institution of the Republic of Lithuania. The size of the contributions shall be calculated from 0.5 amount of the diplomat’s official salary. This requirement shall not be applied upon the diplomat’s spouse becoming employed.”

Item 9 of Paragraph 1 of Article 4 (wording of 16 March 2000) of the Law on State Social Insurance provides that state social insurance shall be obligatory for “unoccupied spouses of diplomats to cover the period which they reside together with the diplomat who is serving at a diplomatic mission or consular institution of the Republic of Lithuania”.

Item 5 of Paragraph 1 of Article 2 (wording of 16 December 1999) of the Law on State Social Insurance Pensions provided that state social insurance shall be obligatory for “unoccupied spouses of diplomats to cover the period which they reside abroad together with the diplomat who is serving at a diplomatic mission or consular institution of the Republic of Lithuania”.

Thus, Paragraph 2 of Article 69 of the Law on the Diplomatic Service, Item 9 of Paragraph 1 of Article 4 (wording of 16 March 2000) of the Law on State Social Insurance and Item 5 of Paragraph 1 of Article 2 (wording of 16 December 1999) of the Law on State Social Insurance Pensions establish, inter alia, the obligatory state social insurance for unoccupied spouses of diplomats to cover the period which they reside abroad together with the diplomat who is serving at a diplomatic mission or consular institution of the Republic of Lithuania.

2. Under Paragraph 2 of Article 28 of the Law on the Diplomatic Service, the period which the spouse of a diplomat has spent abroad owing to the fact that he resided together with the diplomat, who served at a Republic of Lithuania diplomatic mission or consular institution, shall be counted into the diplomat spouse’s period of state social insurance, provided the established social insurance of Lithuania contributions have been paid to cover that period. Thus, the impugned provisions of the laws guarantee state social insurance, by state funds, for unoccupied spouses of diplomats to cover the period which they reside abroad together with the diplomat, who is serving at a diplomatic mission or consular institution of the Republic of Lithuania so that the period spent abroad might be included into the state social insurance period of the spouse of the diplomat. It is this period on which depends the right of the spouses of the diplomats to the state social insurance old age pension.

Thus, in itself the legal regulation established in Paragraph 2 of Article 69 of the Law on the Diplomatic Service, Item 9 of Paragraph 1 of Article 4 (wording of 16 March 2000) of the Law on State Social Insurance and Item 5 of Paragraph 1 of Article 2 (wording of 16 December 1999) of the Law on State Social Insurance Pensions does not violate or limit the right of the person to an old age pension which is entrenched in Article 52 of the Constitution.

3. Taking account of the arguments set forth, the following conclusions should be drawn:

1) Paragraph 2 of Article 69 of the Law on the Diplomatic Service is in compliance with Article 52 of the Constitution;

2) Item 9 of Paragraph 1 of Article 4 (wording of 16 March 2000) of the Law on State Social Insurance is in compliance with Article 52 of the Constitution;

3) Item 5 of Paragraph 1 of Article 2 (wording of 16 December 1999) of the Law on State Social Insurance Pensions was in compliance with Article 52 of the Constitution.

Conforming to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1, 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 Paragraph 2 of Article 69 of the Republic of Lithuania’s Law on the Diplomatic Service is in compliance with the Constitution of the Republic of Lithuania.

2. To recognise that Item 9 of Paragraph 1 of Article 4 (wording of 16 March 2000) of the Republic of Lithuania’s Law on State Social Insurance is in compliance with the Constitution of the Republic of Lithuania.

3. To recognise that Item 5 of Paragraph 1 of Article 2 (wording of 16 December 1999) of the Republic of Lithuania’s Law on State Social Insurance Pensions was in compliance with the Constitution of the Republic of Lithuania.

4. To recognise that Paragraph 2 (wording of 21 December 1994) of Article 23 of the Republic of Lithuania’s Law on State Social Insurance Pensions to the extent that it provided that pensioners who were under 65 years of age and had the obligatory state social pensions insurance period and whose insured income exceeded 1.5 minimal monthly salary shall be paid not the full state social insurance old age pension which had been awarded and paid until then conflicted with Article 23, the provision of Paragraph 1 of Article 48 that every person may freely choose an occupation or business, and Article 52 of the Constitution of the Republic of Lithuania, as well as the constitutional principle of a state under the rule of law.

5. To recognise that Article 23 (wording of 21 December 2000) of the Republic of Lithuania’s Law on State Social Insurance Pensions to the extent that it provided that pensioners who had the obligatory state social pensions insurance period which was necessary for the old age pension and who had the insured income after they had been awarded the old age pension shall be paid not the full state social insurance old age pension which had been awarded and paid until then conflicted with Article 23, the provision of Paragraph 1 of Article 48 that every person may freely choose an occupation or business, and Article 52 of the Constitution of the Republic of Lithuania, as well as the constitutional principle of a state under the rule of law.

6. To recognise that Article 23 (wording of 8 May 2001) of the Republic of Lithuania’s Law on State Social Insurance Pensions to the extent that it provides that pensioners who have the obligatory state social pensions insurance period which is necessary for the old age pension and who have the insured income exceeding 1 minimal monthly salary after they have been awarded the old age pension shall be paid not the full state social insurance old age pension which was awarded and paid until then conflicts with Article 23, the provision of Paragraph 1 of Article 48 that every person may freely choose an occupation or business, and Article 52 of the Constitution of the Republic of Lithuania, as well as the constitutional principle of a state under the rule of law.

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:                                                  Armanas Abramavičius

Egidijus Jarašiūnas

Egidijus Kūris

Kęstutis Lapinskas

Zenonas Namavičius

Augustinas Normantas

Jonas Prapiestis

Vytautas Sinkevičius

Stasys Stačiokas