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On the right to the state social insurance orphan’s pension

Case No. 08/2008-23/2009

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
RULING

ON THE COMPLIANCE OF PARAGRAPH 1 (WORDING OF 12 DECEMBER 2006) OF ARTICLE 38 OF THE REPUBLIC OF LITHUANIA LAW ON STATE SOCIAL INSURANCE PENSIONS WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

14 December 2010
Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court Armanas Abramavičius, Toma Birmontienė, Pranas Kuconis, Kęstutis Lapinskas, Zenonas Namavičius, Ramutė Ruškytė, Egidijus Šileikis, Algirdas Taminskas, and Romualdas Kęstutis Urbaitis,

with the secretary—Daiva Pitrėnaitė,

in the presence of the representative of the Seimas of the Republic of Lithuania, the petitioner, who was Algirdas Sysas, a Member of the Seimas,

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, in its public hearing, on 30 November 2010, heard constitutional justice case No. 08/2008-23/2009 subsequent to:

1) the petition of the Vilnius Regional Administrative Court, a petitioner, requesting to investigate whether Paragraph 1 (wording of 12 December 2006) of Article 38 of the Republic of Lithuania Law on State Social Insurance Pensions, to the extent that, according to the petitioner, it does not establish that the right to receive the orphan’s pension is granted to the deceased person’s children and adopted children older than 18 years of age who had become incapacitated (disabled) before reaching 18 years of age, but who were recognised as such after reaching 18 years of age, is not in conflict with Article 52 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law (petition No. 1B-09/2008);

2) the petition of the Kaunas Regional Administrative Court, a petitioner, requesting to investigate whether Paragraph 1 (wording of 12 December 2006) of Article 38 of the Republic of Lithuania Law on State Social Insurance Pensions, to the extent that, according to the petitioner, it does not establish that the right to receive the orphan’s pension is granted to the deceased person’s children and adopted children older than 18 years of age who had become incapacitated (disabled) before reaching 18 years of age, but who were recognised as such after reaching 18 years of age, is not in conflict with Article 52 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law (petition No. 1B-24/2009).

By the Constitutional Court Decision “On joining petitions into one case” of 9 November 2010, the petitions of the petitioners were joined into one case and it was given reference No. 08/2008-23/2009.

The Constitutional Court

has established:

I

1. The Vilnius Regional Administrative Court, a petitioner, was investigating an administrative case. By its ruling, the court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting to investigate whether Paragraph 1 (wording of 12 December 2006) of Article 38 of the Law on State Social Insurance Pensions, to the extent that, according to the petitioner, it does not establish that the right to receive the orphan’s pension is granted to the deceased person’s children and adopted children older than 18 years of age who had become incapacitated (disabled) before reaching 18 years of age, but who were recognised as such after reaching 18 years of age, is not in conflict with Article 52 of the Constitution and the constitutional principle of a state under the rule of law (petition No. 1B-09/2008).

2. The Kaunas Regional Administrative Court, a petitioner, was investigating an administrative case. By its ruling, the court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting to investigate whether Paragraph 1 (wording of 12 December 2006) of Article 38 of the Law on State Social Insurance Pensions, to the extent that, according to the petitioner, it does not establish that the right to receive the orphan’s pension is granted to the deceased person’s children and adopted children older than 18 years of age who had become disabled (invalids) before reaching 18 years of age, but who were recognised as such after reaching 18 years of age, is not in conflict with Article 52 of the Constitution and the constitutional principle of a state under the rule of law (petition No. 1B-24/2009).

II

1. The petition of the Vilnius Regional Administrative Court, a petitioner, is substantiated by the following arguments.

Paragraph 1 of Article 35 of the Law on State Social Insurance Pensions, which was valid until 1 July 2005, prescribed that the right to receive the state social insurance orphan’s pension is granted to the deceased person’s children and adopted children under 18 years of age as well as older ones where they had become disabled before reaching 18 years of age. Paragraph 1 of Article 36 of the Law on State Social Insurance Pensions, which came into force on 1 July 2005, prescribed that the right to receive the state social insurance orphan’s pension is granted to the deceased person’s children and adopted children under 18 years of age as well as older ones where they had been recognised as incapacitated (disabled) before reaching 18 years of age and where they have been incapable or partially capable of working (disabled) all the time since reaching 18 years of age. The disputed Paragraph 1 (wording of 12 December 2006) of Article 38 of the Law on State Social Insurance Pensions, which came into force on 1 January 2007, prescribes that the right to receive the state social insurance orphan’s pension is granted to the deceased person’s children and adopted children under 18 years of age as well as older ones where they had been recognised as incapacitated (disabled) before reaching 18 years of age and where they have been incapable or partially capable of working (disabled) ever since reaching 18 years of age.

Under the legal regulation that came into force as from 1 July 2005, the persons who wish to receive the orphan’s pension after the death of their parent (parents) are subject to the following two conditions: 1) to be recognised as incapacitated before reaching 18 years of age; 2) to be incapable or partially capable of working (disabled) ever since reaching 18 years of age; however, this legal regulation is also applied without reservation to the persons who were recognised as incapacitated from their very birth (childhood). According to the petitioner, such a depersonalised legal regulation, with regard to the said persons, is in conflict with the essence and spirit of Article 52 of the Constitution.

In the opinion of the petitioner, the right of the persons who are incapacitated since birth to the orphan’s pension, which is provided for by law, compared to the right of the persons who acquired disability later, is an exceptional one, and this right, in a sense, is an innate one; the rights arising from such a kind of incapacity, i.e. the right to receive the orphan’s pension and the duty of the state to pay this pension, may not be limited by the requirement to relate the fact of incapacity (disability) since childhood (birth) to a corresponding date, i.e. the recognition of incapacity (disability) before the person reaches 18 years of age.

In its petition, the petitioner also states that, under the official constitutional doctrine, the Constitution protects and defends the acquired rights, therefore, any correction of the state social policy, reorganisation of the system of social guarantees or of the structure of individual social guarantees must be constitutionally grounded, whereas if in the course of reorganisation of the system of social guarantees or the structure of individual guarantees the extent of social guarantees is reduced, let alone certain social guarantees disappear, a mechanism of just compensation of incurred losses should be established to the individuals to whom those social guarantees were reasonably established.

While grounding its doubts as regards the compliance of the disputed Paragraph 1 of Article 38 of the Law on State Social Insurance Pensions with the constitutional principle of a state under the rule of law, the Vilnius Regional Administrative Court notes the provisions of the official constitutional doctrine that the constitutional principle of a state under the rule of law is a universal principle upon which the entire legal system of Lithuania is based, that the constitutional principle of a state under the rule of law is inseparable from the principle of justice, that inseparable elements of the principle of a state under the rule of law are the protection of legitimate expectations, legal certainty and legal security, that one of the fundamental elements of the constitutional principle of a state under the rule of law is the principle of legal security, which means that the state has a duty to ensure the certainty and stability of legal regulation.

2. The Kaunas Regional Administrative Court, a petitioner, points out that the disputed legal regulation, under which the state social insurance orphan’s pension may be granted, after the death of a parent (parents), to the persons who had been recognised as incapacitated (disabled) before reaching 18 years of age and who have been incapable or partially capable of working (disabled) ever since reaching 18 years of age, does not include the persons who are incapacitated since birth (childhood) where this fact of a legal meaning had not been properly established (recognised) before their coming of age. In the opinion of the petitioner, such legal regulation, with regard to the said persons, is in conflict with the essence and spirit of Article 52 of the Constitution.

While grounding its doubts as regards the compliance of the disputed Paragraph 1 of Article 38 of the Law on State Social Insurance Pensions with the constitutional principle of a state under the rule of law, the Kaunas Regional Administrative Court, a petitioner, as well as the Vilnius Regional Administrative Court, a petitioner, quotes the provisions of the official constitutional doctrine regarding correction of social policy as well as the official doctrine of the principle of a state under the rule of law.

III

1. In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from the representative of the Seimas, the party concerned, who was Artūras Melianas, a Member of the Seimas, and the former representative of the Seimas, the party concerned, who was Jadvyga Andriuškevičiūtė, Head of the Labour and Social Law Unit of the Legal Department of the Office of the Seimas (pursuant to Speaker of the Seimas Ordinance No. PP-153 of 22 November 2010, J. Andriuškevičiūtė lost the powers to represent the Seimas in this constitutional justice case), wherein it is maintained that Paragraph 1 (wording of 12 December 2006) of Article 38 of the Law on State Social Insurance Pensions, to the extent indicated by the petitioners, is not in conflict with the Constitution.

2. The position of J. Andriuškevičiūtė, the former representative of the Seimas, the party concerned, which is set forth in her written explanations regarding petition of the Vilnius Regional Administrative Court No. 1B-09/2008, is substantiated by the following arguments.

2.1. The right to the orphan’s pension provided for in the Law on State Social Insurance Pensions arises from the person’s certain legal status, i.e. this right is established to the children and adopted children who, due to their age or incapacity, are not able to get income.

The right to the state social insurance orphan’s pension is a derivative right, which emerges provided there is the totality of the conditions established by laws. The child’s age or incapacity is only one, but not the only condition to become entitled to the orphan’s pension. Paragraph 1 of Article 34 of the Law on State Social Insurance Pensions establishes other conditions to become entitled to the orphan’s pension: the orphan’s father (adoptive father) or mother (adoptive mother), on the day of his or her death, had to be entitled to receive the state social insurance pension of lost capacity to work (disability) or that of old age, or was a recipient of these pensions, also he or she had to have gained the established period of pension insurance.

2.2. The Law on State Social Insurance Pensions regulates not the relations of establishment, acquisition or recognition of the legal status of the person with incapacities or one incapable of working, but the right of an individual who has the legal status of the person with incapacities or one incapable of working to payment of a pension. Diagnosing an illness and establishing incapacity or the level of capacity to work are different procedures. Diagnosing an illness does not mean in itself that incapacity or loss of capacity to work will be established to a person. The legal fact of developing an illness may not necessarily coincide with the legal fact of establishment of the consequences caused by that illness.

2.3. The formulation “had been recognised as incapacitated (until 1 July 2005—as disabled) before reaching 18 years of age” of Paragraph 1 (wording of 12 December 2006) of Article 38 of the Law on State Social Insurance Pensions is to be construed and applied by invoking the provisions of the Constitutional Court ruling of 7 February 2005, which disclose the content of the formulation “the establishment of an occupational disease” of Paragraph 1 (wordings of 23 December 1999 and 5 July 2001) of Article 29 of the Republic of Lithuania Law on Social Insurance of Accidents at Work and Occupational Diseases as well as of the formulation “the day when the SCMSE establishes the incapacity to work” of Item 37 (wording of 8 May 2000) of the Regulations Concerning Social Insurance Payments for Accidents at Work and Occupational Diseases, which were confirmed by Government of the Republic of Lithuania Resolution No. 506 “On Confirmation of the Regulations Concerning Social Insurance Payments for Accidents at Work and Occupational Diseases” of 8 May 2000. Deciding the dispute as to the right to the orphan’s pension by following the provisions of the aforesaid Constitutional Court ruling, one would safeguard the person’s constitutional rights guaranteed by Article 52 of the Constitution and would not violate the constitutional principle of a state under the rule of law.

3. The position set forth in the written explanations of the Member of the Seimas A. Melianas, a representative of the Seimas, the party concerned, regarding the petition (No. 1B-24/2009) of the Kaunas Regional Administrative Court, a petitioner, is substantiated by the same arguments as the one set forth in the written explanations of J. Andriuškevičiūtė.

4. In the course of the preparation of the case a letter of the Member of the Seimas A. Sysas, a representative of the Seimas, the party concerned, was also received, wherein one assents to the written explanations of the Member of the Seimas A. Melianas, a representative of the Seimas, the party concerned, and those of J. Andriuškevičiūtė, Head of the Labour and Social Law Unit of the Legal Department of the Office of the Seimas, the former representative of the Seimas, the party concerned.

IV

In the course of the preparation of the case for the Constitutional Court hearing two letters were received from S. Kondratas, Vice-Minister of Social Security and Labour of the Republic of Lithuania, as well as the written explanations of Č. Zabulėnienė, Acting Director of the State Social Insurance Fund Board under the Ministry of Social Security and Labour, and Z. Skvarciany, Director of the Disability and Working Capacity Assessment Office under the Ministry of Social Security and Labour.

V

At the Constitutional Court hearing, the Member of the Seimas A. Sysas, a representative of the Seimas, the party concerned, reiterated some arguments set forth in his written explanations, answered to the questions and presented additional explanations.

The Constitutional Court

holds that:

I

1. The Vilnius Regional Administrative Court and the Kaunas Regional Administrative Court, the petitioners, request the Constitutional Court to investigate whether Paragraph 1 (wording of 12 December 2006) of Article 38 of the Law on State Social Insurance Pensions, to the extent that, according to the petitioners, it does not establish that the right to receive the orphan’s pension is granted to the deceased person’s children and adopted children older than 18 years of age who had become incapacitated (disabled) before reaching 18 years of age, but who were recognised as such after reaching 18 years of age, is not in conflict with Article 52 of the Constitution and the constitutional principle of a state under the rule of law.

2. Although the petitioners request the Constitutional Court to investigate whether Paragraph 1 (wording of 12 December 2006) of Article 38 of the Law on State Social Insurance Pensions, to the extent that, according to the petitioners, it does not establish that the right to receive the orphan’s pension is granted to the deceased person’s children and adopted children older than 18 years of age who had become incapacitated (disabled) before reaching 18 years of age, but who were recognised as such after reaching 18 years of age, is not in conflict with Article 52 of the Constitution and the constitutional principle of a state under the rule of law, from the arguments of the petitions of the petitioners as well as the material of the administrative cases, wherein the rulings on the application to the Constitutional Court were adopted, it is clear that the petitioners request investigation into whether Paragraph 1 (wording of 12 December 2006) of Article 38 of the Law on State Social Insurance Pensions, to the extent that it does not establish that the right to receive the orphan’s pension is granted to the deceased person’s children and adopted children of 18 years of age and older who have incapacity (are disabled) where they had not been recognised as incapacitated (disabled) before reaching 18 years of age, is not in conflict with Article 52 of the Constitution and the constitutional principle of a state under the rule of law.

II

1. While construing, subsequent to the petitions of the petitioners, the content of the legal regulation established in the disputed Paragraph 1 (wording of 12 December 2006) of Article 38 of the Law on State Social Insurance Pensions, it is important to elucidate the nature of the state social insurance orphan’s pension, also it is necessary to disclose the development of the legal regulation entrenching this pension and a related legal regulation (inter alia the one regulating the legal relations of the person’s “becoming” (“recognition as”) incapacitated (disabled)).

2. On 28 July 1990, the Supreme Council of the Republic of Lithuania adopted the Republic of Lithuania Law on Improvement of Pensionary Maintenance of Residents, which came into force (with a certain exception) on 1 January 1991. In the Preamble of this law it is provided: “This law shall regulate increase in pensions of all types that had been granted prior to its entry into force, shall establish social pensions to the persons who are incapable of working and have no rights to receive pensions of other types, as well as minimal amounts of pensions and other conditions and norms of pensionary maintenance, and shall regulate the procedure of granting and payment of pensions.”

Article 25 (wording of 28 July 1990) of the Law on Improvement of Pensionary Maintenance of Residents prescribes: “To grant and pay pensions of loss of the breadwinner to the children of the families of the deceased persons specified in the second and forth paragraph of Article 14 of this law, also the children of the families of deceased war-disabled persons and war participants, as well as all the children who are full orphans under 18 years of age or older ones where they had become disabled before reaching 18 years of age, whereas to the pupils of vocational technical schools and special secondary schools and the students of higher schools—until they graduate from these schools, but not longer than until they reach 23 years of age. Under the same procedure, to grant and pay pensions of loss of the breadwinner to the brothers and sisters of the deceased persons of the aforesaid category as well as the grandchildren thereof who have no parents capable of working.”

Thus, pensions of loss of the breadwinner were granted and paid inter alia to the following three categories of children who lost their parents (full orphans): 1) under 18 years of age and 2) the older ones where they had become disabled before reaching 18 years of age; 3) to the learners at the schools specified in the law until they graduated from these schools, but not longer than until they reached 23 years of age.

In the context of the constitutional justice case at issue it needs to be noted that the persons under 18 years of age and older whose right to the pension of loss of the breadwinner was related to disability could, under the legal regulation established in the aforesaid article, acquire the right to this pension provided that they met the following two conditions: 1) had lost their parents (full orphans); 2) had become disabled before reaching 18 years of age.

3. The duty of parents to support their children who are incapable of working was established in Article 80 “The Duty of Parents to Support Their Children” of the Code of Marriage and Family of the Republic of Lithuania (1969) (valid until 1 July 2001): “Parents shall be obliged to support their underage children, also their children of full legal age who are incapable of working and to whom the support is necessary.”

Thus, under the then valid legal regulation, it was established that support is provided to such a child of full legal age who is incapable of working and to whom the support is necessary and who has lost his or her parents that had the duty to support him or her as a child incapable of working.

4. It has been mentioned that the person’s right to the orphan’s pension was regulated by the Law on Improvement of Pensionary Maintenance of Residents (wording of 28 July 1990). This law did not regulate the establishment of the person’s becoming disabled, inter alia the person’s becoming disabled before reaching 18 years of age. This matter was regulated by the Republic of Lithuania Law on the Social Integration of the Disabled, which was adopted by the Supreme Council on 28 November 1991 (and which, with certain exceptions, came into force on 15 December 1991). Paragraph 1 of Article 1 “Purpose of the Law” of the Law on the Social Integration of the Disabled (wording of 28 November 1991) provided that the Law on the Social Integration of the Disabled regulates inter alia the establishment of disability.

Paragraph 1 of Article 3 “Disability” of the Law on the Social Integration of the Disabled (wording of 28 November 1991) provided that disability is such condition of an individual, as established by competent establishments, which due to a congenital or acquired physical or mental defect, totally or partially incapacitates the individual from taking care of his private or social life, from implementing his rights and from fulfilling his duties.

Paragraph 2 of Article 4 “Establishment of Disability” of the Law on the Social Integration of the Disabled (wording of 28 November 1991) inter alia provided that commissions establishing disability adopt decisions as to inter alia the fact of disability and its cause. The Law on the Social Integration of the Disabled (wording of 28 November 1991) did not specify any concrete causes of disability.

Paragraph 1 of Article 4 of the Law on the Social Integration of the Disabled (wording of 28 November 1991) inter alia prescribed that, for children who are under 16 years of age, disability is established by Commissions of Medical and Social Experts from state institutions of treatment and prevention as well as from specialised institutions, which provide medical aid to children and adolescents (hereinafter also referred to as CMSE), whereas for individuals who are 16 years of age and older—by State Commissions of Medical and Social Expertise (hereinafter also referred to as SCMSE).

In the context of the constitutional justice case at issue, while summing up the discussed legal regulation, it is clear that disability is such condition of an individual which is established by competent institutions. The said law entrenched two different institutions that establish disability, i.e. the CMSE, which used to establish disability for children under 16 years of age, and the SCMSE, which used to establish disability for all individuals of 16 years of age and older.

Neither the said law nor other laws provided that the fact of becoming disabled by an individual suffering from a corresponding illness (illnesses) is established otherwise than by means of the establishment of disability to him or her by competent institutions, i.e. upon adopting a decision as to the fact of disability by a commission establishing disability.

5. The procedure for establishment of disability, inter alia the fact of disability, the cause of disability, and the date of establishment of disability were regulated by sub-statutory legal acts.

Chapter 6 “Establishment of the Causes of Disability” of the Instruction on Establishment of Disability, which was approved by Order No. 1-4031 of the Minister of Health of 9 December 1991 and Order No. 13-2229 of the Minister of Social Security of 5 December 1991, inter alia prescribed: “Pursuant to the Republic of Lithuania Law on the Social Integration of the Disabled and other laws, as well as the Regulations of Commissions of Medical and Social Expertise, Commissions of Medical and Social Expertise shall establish the following causes of disability: <...> 4. Disability from (since) childhood.”

Item 22 of the Provisional Regulations of the State Commission of Medical and Social Expertise, which were approved by Government Resolution No. 123 “On the Approval of the Provisional Regulations of the State Commission of Medical and Social Expertise” of 24 February 1992, prescribed that the date of the establishment of disability is considered to be the day when a territorial commission receives the documents required for the examination of the patient. This provision was recognised as no longer valid by Government Resolution No. 1199 “On the Recognition of Republic of Lithuania Government Resolution No. 123 of 25 February 1992 and Resolution No. 1069 of 16 September 1996 as No Longer Valid” of 7 November 2005.

Item 38 (wording of 28 April 2000) of the Procedure for Establishing Long-Term and Permanent Loss of Capacity to Work (Disability), which was approved by Order No. 226/49 “On the Approval of the Procedure for Establishing Long-Term and Permanent Loss of Capacity to Work (Disability)” of the Minister of Health and the Minister of Social Security and Labour of 28 April 2000 (it came into force on 15 May 2000), inter alia prescribed that “The SCMSE shall establish the following causes of disability: <...> 38.4. disability since childhood.” This sub-item was recognised as no longer valid by Order No. V-158/A1-79 “On Amending Order No. 226/49 ‘On the Approval of the Procedure for Establishing Long-Term and Permanent Loss of Capacity to Work (Disability)’ of the Minister of Health of the Republic of Lithuania and the Minister of Social Security and Labour of the Republic of Lithuania of 28 April 2000” of the Minister of Health and the Minister of Social Security and Labour of 30 March 2004 (it came into force on 1 April 2004). The fact that, as from 1 April 2004, the cause of disability “since childhood” has no longer been established was confirmed by the Ministry of Social Security and Labour. The disability reason “since childhood” has been indicated only in the event of repeated establishment of disability to those persons to whom the disability because of this reason was already established, but the term of the disability established to them has expired or the state of their health has changed (Letter No. (25.3-34) SD-7461 “On Specification of the Opinion Presented in Cases No. 08/08 and 23/2009” of the Vice-Minister of Social Security and Labour S. Kondratas of 29 November 2010).

Order of the Minister of Health No. 5 “On the Procedure for Issuance of a Medical Conclusion to the Disabled Child Under 16 Years of Age” of 6 January 1992 approved the Procedure for Issuance of a Medical Conclusion (Disability Certificate) to the Disabled Child Under 16 Years of Age (hereinafter also referred to as the Procedure). Item 4 of this Procedure prescribed: “Doctors (local paediatricians, therapists as well as specialist medical doctors), according to the aforesaid list of illnesses, shall separate pathological children and adolescents and, not later than within 10 days from the date of the establishment of the final diagnosis, shall present the patient with his medical documentation to the consultative commission of doctors. The responsibility for referring the patient to the CCD shall fall on the local paediatrician or general practitioner (as well as private practice doctors).”

Under Item 17 (wording of 2 May 2006) of the Inventory Schedule of the Procedure for Establishment of the Level of Capacity to Work, which was approved by Order of the Minister of Social Security and Labour and the Minister of Health No. A1-78/V–179 “On the Approval of the Inventory Schedule of Criteria for Establishment of the Level of Capacity to Work and the Inventory Schedule of the Procedure for Establishment of the Level of Capacity to Work” of 21 March 2005 (it came into force on 1 July 2005), the date of adopting a decision as to the level of capacity to work is the day of the receipt of all required documents at the Disability and Working Capacity Assessment Office (DWCAO).

Under Item 9 of the Inventory Schedule of Criteria and the Procedure for Establishment of the Level of Incapacity, which was approved by Order of the Minister of Health, the Minister of Social Security and Labour, and the Minister of Education and Science No. V-188/A1-84/ISAK-487 “On the Approval of the Inventory Schedule of Criteria and the Procedure for Establishment of the Level of Incapacity” of 23 March 2005 (it came into force on 1 July 2005), after establishing the level of incapacity to a person, the date of the establishment thereof is considered to be the day of the receipt of the documents required for establishment of the level of incapacity at the DWCAO, whereas, under Item 23.1 of this Inventory Schedule, the person’s parents (adoptive parents), guardians or custodians have the right to apply to the DWCAO regarding the establishment of the level of incapacity to their children and the children under their guardianship or custodianship.

6. While construing, alongside the provisions of Articles 3 and 4 of the Law on the Social Integration of the Disabled (wording of 28 November 1991), one of the conditions for the entitlement of persons of 18 years of age and older to the pension of loss of the breadwinner (“had become disabled before reaching 18 years of age”), which is established in Article 25 of the Law on Improvement of Pensionary Maintenance of Residents (wording of 28 July 1990), it is clear that, in the sense of Article 25 of the Law on Improvement of Pensionary Maintenance of Residents (wording of 28 July 1990), the persons who had become disabled before reaching 18 years of age are to be viewed as the ones with regard to whom commissions establishing disability had adopted a decision as to inter alia the fact of disability before they reached 18 years of age.

7. On 18 July 1994, the Seimas adopted the Law on State Social Insurance Pensions, which came into force on 1 January 1995. This law was intended for the regulation of the relations related with state social insurance pensions, inter alia orphan’s pensions.

7.1. Article 4 “Types of State Social Insurance Pensions” (wording of 18 of July 1994) of the Law on State Social Insurance Pensions prescribed: “State social insurance old age, disability, survivor’s and orphan’s (loss of the breadwinner) pensions are provided under this law.”

Paragraph 3 (wording of 18 July 1994) of Article 45 “Recalculation of Pensions Granted Prior to the Coming into Force of this Law” of the Law on State Social Insurance Pensions prescribed:

Under this law, state social insurance survivor’s and orphan’s pensions shall be granted only for persons who have died after this law came into force. The previously granted pensions of loss of the breadwinner shall not be subject to recalculation. For persons who had died prior to the coming into force of this law, pensions of loss of the breadwinner shall be granted in accordance with the previously valid procedure.”

Thus, instead of the pension of loss of the breadwinner, the Law on State Social Insurance Pensions (wording of 18 July 1994) entrenched the orphan’s pension and established that, under this law, orphan’s pensions are granted only for persons who have died after this law came into force.

7.2. Article 35 “Persons Entitled to Receive the Orphan’s Pension” (wording of 18 July 1994) of the Law on State Social Insurance Pensions prescribed:

The right to receive the state social insurance orphan’s pension shall be granted to the deceased person’s children and adopted children under 18 years of age as well as older ones where they had become disabled before reaching 18 years of age. Stepchildren of the deceased person, who prior to his/her death did not qualify for the orphan’s pension, shall be entitled to receive the state social insurance orphan’s pension under the same conditions as his/her children.

The full-time students and pupils of the higher as well as further, vocational and secondary education schools registered in the established manner shall be entitled to receive the orphan’s pension until the graduation from these schools, but not longer than until they reach 24 years of age.

The children of the deceased person, who qualify for the orphan’s pension, shall also retain this right when someone adopts them.”

In the context of the constitutional justice case at issue it needs to be noted that the persons of 18 years of age and older whose right to the orphan’s pension was related to disability could, under the legal regulation established in the said article, acquire the right to this pension provided that they met the following two conditions: 1) had lost their parents (or one of them); 2) had become disabled before reaching 18 years of age.

In the context of the constitutional justice case at issue, having compared the legal regulation established in Paragraph 1 (wording of 18 July 1994) of Article 35 of the Law on State Social Insurance Pensions with the one established in Article 25 of the Law on Improvement of Pensionary Maintenance of Residents (wording of 28 July 1990), inter alia it is clear that the persons of 18 years of age and older whose right to the orphan’s pension, under Paragraph 1 (wording of 18 July 1994) of Article 35 of the Law on State Social Insurance Pensions, was related to disability, as well as the persons of 18 years of age and older whose right to the pension of loss of the breadwinner, under Article 25 of the Law on Improvement of Pensionary Maintenance of Residents (wording of 28 July 1990), was related to disability, could acquire the right to the orphan’s pension provided that they met the same two conditions as follows: 1) had lost their parents; 2) had become disabled before reaching 18 years of age.

While construing, alongside the provisions of Articles 3 and 4 of the Law on the Social Integration of the Disabled (wording of 28 November 1991), one of the conditions for the entitlement of persons of 18 years of age and older to the orphan’s pension (“had become disabled before reaching 18 years of age”), which is established in Paragraph 1 (wording of 18 July 1994) of Article 35 of the Law on State Social Insurance Pensions, it is clear that, in the sense of Paragraph 1 (wording of 18 July 1994) of Article 35 of the Law on State Social Insurance Pensions, the persons who had become disabled before reaching 18 years of age are to be viewed as the ones with regard to whom commissions establishing disability had adopted a decision as to inter alia the fact of disability before they reached 18 years of age.

8. After the adoption of the Law on State Social Insurance Pensions (wording of 18 July 1994) the grounds of disability establishment continued to be regulated by the Law on the Social Integration of the Disabled.

On 22 October 1998, the Seimas adopted the Republic of Lithuania Law on Amending and Supplementing the Law on the Social Integration of the Disabled, by Article 1 whereof it amended the Law on the Social Integration of the Disabled (wording of 28 November 1991 with subsequent amendments and supplements) and set it forth in a new wording. The Law on the Social Integration of the Disabled of the new wording came into force (with certain exceptions) on 1 January 1999.

Paragraph 1 (wording of 22 October 1998) of Article 3 “Disability” of the Law on the Social Integration of the Disabled provided that disability is such a condition of an individual, as established by competent institutions, which due to a congenital or acquired physical or mental defect, totally or partially incapacitates the individual from taking care of his private or social life, from implementing his rights and from fulfilling his duties.

Paragraph 3 (wording of 22 October 1998) of Article 4 “Establishment of Disability” of the Law on the Social Integration of the Disabled inter alia provided that commissions establishing disability adopt the decisions inter alia as to the fact of disability and its cause. The Law on the Social Integration of the Disabled (wording of 22 October 1998) did not specify any concrete causes of disability.

Paragraph 1 (wording of 22 October 1998) of Article 4 of the Law on the Social Integration of the Disabled inter alia prescribed that, for children who are under 16 years of age, disability is established by consultative commissions of doctors (hereinafter also referred to as CCD) from the personal health care establishments of the Lithuanian National Health System which provide health care services to children, whereas, for persons of 16 years of age and older—by SCMSE.

Having compared the said legal regulation established in Paragraph 1 (wording of 22 October 1998) of Article 4 of the Law on the Social Integration of the Disabled with the one established in Paragraph 1 of Article 4 of the Law on the Social Integration of the Disabled (wording of 28 November 1991), it is clear that, under Paragraph 1 (wording of 22 October 1998) of Article 4 of this law, for persons under 16 years of age, disability is established not by CMSE, but CCD, whereas, for persons of 16 years of age and older, disability continues to be established by SCMSE.

In the context of the constitutional justice case at issue, while summing up the discussed legal regulation, it is clear that disability continues to be viewed as such condition of an individual which is established by competent institutions.

Neither the said law nor other laws provided that the fact of becoming disabled by an individual suffering from a corresponding illness (illnesses) is established otherwise than by means of the establishment of disability to him or her by competent institutions, i.e. upon adopting a decision as to the fact of disability by a commission establishing disability.

While construing, alongside the provisions of Articles 3 and 4 of the Law on the Social Integration of the Disabled (wording of 22 October 1998), one of the conditions for the entitlement of persons of 18 years of age and older to the orphan’s pension (“had become disabled before reaching 18 years of age”), which is established in Paragraph 1 (wording of 18 July 1994) of Article 35 of the Law on State Social Insurance Pensions, it is clear that, in the sense of Paragraph 1 (wording of 18 July 1994) of Article 35 of the Law on State Social Insurance Pensions, the persons who had become disabled before reaching 18 years of age are to be viewed as the ones with regard to whom commissions establishing disability had adopted a decision as to inter alia the fact of disability before they reached 18 years of age.

9. The duty of parents to support their children who are incapable of working due to disability was established in the Civil Code (it came into force (with certain exceptions) on 1 July 2001), which was approved by Article 1 of the Republic of Lithuania Law on the Approval, Entry into Force and Implementation of the Civil Code adopted by the Seimas on 18 July 2000 (it came into force on 6 September 2000).

Paragraph 3 (wording of 18 July 2000) of Article 3.194 “Maintenance Orders” of the Civil Code prescribed: “The court shall issue a maintenance order until the child attains majority, except in cases where the child is incapable of working due to a disability determined before the age of majority.”

Thus, under Paragraph 3 (wording of 18 July 2000) of Article 3.194 of the Civil Code, the court issues a maintenance order inter alia for only such a child of full legal age who is incapable of working due to disability where the disability had been established before reaching full legal age, and who has lost his or her parents that had the duty to support him or her as a child incapable of working due to his or her disability.

Having compared the legal regulation established in Paragraph 3 (wording of 18 July 2000) of Article 3.194 of the Civil Code with the one established in Article 80 of the Code of Marriage and Family, which was valid until 1 July 2001, it is clear that this legal regulation has changed in the aspect that parents have the duty to support not all their children of full legal age who are incapable of working and to whom the support is necessary, but only those children of full legal age who are incapable of working due to a disability established to them before reaching full legal age.

10. By Article 1 of the Republic of Lithuania Law on Amending Article 3.194 of the Civil Code, which was adopted by the Seimas on 11 November 2004 (and which came into force on 26 November 2004), Paragraph 3 (wording of 18 July 2000) of Article 3.194 of the Civil Code was amended and set forth in a new wording. Paragraph 3 (wording of 11 November 2004) of Article 3.194 of the Civil Code provides: “The court shall issue a maintenance order until the child attains majority, except in cases where the child is incapable of working due to a disability determined before the age of majority, or when the child is in need of support, he is a full-time student of institutions of secondary, higher or vocational education and is not older than 24 years of age.”

Having compared the legal regulation established in Paragraph 3 (wording of 11 November 2004) of Article 3.194 of the Civil Code with the one established in Paragraph 3 (wording of 18 July 2000) of Article 3.194 of the Civil Code, it is clear that the provision of Paragraph 3 of Article 3.194 of the Civil Code, in the aspect that a maintenance order is issued for the child who is incapable of working due to a disability determined before reaching full legal age, has remained unchanged.

11. On 20 January 2004, the Seimas adopted the Republic of Lithuania Law on Amending Articles 1, 3, 4, 5 and 22 of the Law on the Social Integration of the Disabled, which came into force (with a certain exception) on 1 April 2004.

Paragraph 1 (wording of 20 January 2004) of Article 4 of the Law on the Social Integration of the Disabled inter alia prescribed that, for persons under 18 years of age, except those who are (were) insured by state social insurance, disability is established by consultative commissions of doctors from personal health care establishments of the Lithuanian National Health System; these persons are recognised as disabled children (Item 1); for persons under 18 years of age who are (were) insured by state social insurance and for persons of 18 years of age and older, disability is established by SCMSE; these persons are recognised as disabled (Item 2).

Having compared the legal regulation established in Article 4 (wording of 20 January 2004) of the Law on the Social Integration of the Disabled with the aforediscussed legal regulation established in Article 4 (wording of 22 October 1998) of the Law on the Social Integration of the Disabled, it is clear that, instead of the provision entrenched in Article 4 (wording of 22 October 1998) of the Law on the Social Integration of the Disabled whereby for children under 16 years of age disability is established by CCD, one entrenched the provision that persons under 18 years of age, except those who are (were) insured by state social insurance, are recognised as disabled children by CCD, whereas, instead of the provision entrenched in Article 4 (wording of 22 October 1998) of the law whereby for persons of 16 years of age and older disability is established by SCMSE, in Article 4 (wording of 20 January 2004) of the law, one entrenched the provision that persons under 18 years of age who are (were) insured by state social insurance as well as persons of 18 years of age and older are recognised as disabled by SCMSE.

The provision of this law that disability is considered to be such a condition of an individual which is established by competent institutions, as well as the provision that commissions establishing disability adopt decisions inter alia as to the fact of disability, have remained unchanged.

Neither this law nor other laws provided that the fact of becoming disabled by an individual suffering from a corresponding illness (illnesses) is established otherwise than by means of the establishment of disability to him or her by competent institutions, i.e. upon adopting a decision as to the fact of disability by a commission establishing disability.

While construing, alongside the provisions of Articles 3 and 4 (wording of 20 January 2004) of the Law on the Social Integration of the Disabled (wording of 22 October 1998), one of the conditions for the entitlement of persons of 18 years of age and older to the orphan’s pension (“had become disabled before reaching 18 years of age”), which is established in Paragraph 1 (wording of 18 July 1994) of Article 35 of the Law on State Social Insurance Pensions, it is clear that, in the sense of Paragraph 1 (wording of 18 July 1994) of Article 35 of the Law on State Social Insurance Pensions, the persons who had become disabled before reaching 18 years of age are to be viewed as the ones with regard to whom commissions establishing disability had adopted a decision as to inter alia the fact of disability before they reached 18 years of age.

12. On 12 February 2004, the Seimas adopted the Republic of Lithuania Law on Amending and Supplementing Articles 9, 16, 28, 35, 36, 40, 43, 45, 49, 50 and 54 of the Law on State Social Insurance Pensions and Supplementing the Law with Article 556 and Chapter VII (it came into force on 1 March 2004), by Article 4 whereof it amended Paragraph 1 (wording of 18 July 1994) of Article 35 of the Law on State Social Insurance Pensions.

Paragraph 1 (wording of 12 February 2004) of Article 35 of the Law on State Social Insurance Pensions prescribed: “The right to receive the state social insurance orphan’s pension shall be granted to the deceased person’s children and adopted children under 18 years of age as well as older ones where they had become disabled before reaching 18 years of age. Stepchildren of the deceased person, who were supported by their deceased stepfather (stepmother) and prior to his/her death did not qualify for orphan’s pension, shall be entitled to receive the state social insurance orphan’s pension under the same conditions as his/her children.”

In the context of the constitutional justice case at issue, having compared the legal regulation established in Paragraph 1 (wording of 12 February 2004) of Article 35 of the Law on State Social Insurance Pensions with the one established in Paragraph 1 (wording of 18 July 1994) of Article 35 of the Law on State Social Insurance Pensions, it is clear that the persons of 18 years of age and older whose right to the orphan’s pension, under Paragraph 1 (wording of 12 February 2004) of Article 35 of the Law on State Social Insurance Pensions, was related to disability, as well as the persons of 18 years of age and older whose right to the orphan’s pension, under Paragraph 1 (wording of 18 July 1994) of Article 35 of the Law on State Social Insurance Pensions, was related to disability, under the legal regulation established in the said article, could acquire the right to the orphan’s pension provided that they met the same conditions: 1) have lost their parents (or one of them); 2) had become disabled before reaching 18 years of age.

While construing, alongside the provisions of Articles 3 and 4 (wording of 20 January 2004) of the Law on the Social Integration of the Disabled (wording of 22 October 1998), one of the conditions for the entitlement of persons of 18 years of age and older to the orphan’s pension (“had become disabled before reaching 18 years of age”), which is established in Paragraph 1 (wording of 12 February 2004) of Article 35 of the Law on State Social Insurance Pensions, it is clear that, in the sense of Paragraph 1 (wording of 12 February 2004) of Article 35 of the Law on State Social Insurance Pensions, the persons who had become disabled before reaching 18 years of age are to be viewed as the ones with regard to whom commissions establishing disability had adopted a decision as to inter alia the fact of disability before they reached 18 years of age.

13. On 19 May 2005, the Seimas adopted the Republic of Lithuania Law on Amending the Law on State Social Insurance Pensions (under Article 2 thereof it came into force on 1 July 2005), by Article 1 whereof it amended and set forth the Law on State Social Insurance Pensions (wording of 18 July 1994 with subsequent amendments and/or supplements) in a new wording.

Article 36 “Persons Entitled to the Orphan’s Pension” (wording of 19 May 2005) of the Law on State Social Insurance Pensions prescribed:

1. The right to receive the state social insurance orphan’s pension shall be granted to the deceased person’s children and adopted children under 18 years of age as well as older ones where they had been recognised as incapacitated (until 1 July 2005—as disabled) before reaching 18 years of age and where they have been incapable or partially capable of working (disabled) all the time since reaching 18 years of age. Stepchildren of the deceased person, who were supported by their deceased stepfather (stepmother) and prior to his/her death did not qualify for the orphan’s pension, shall be entitled to receive the state social insurance orphan’s pension under the same conditions as children of the deceased person.

2. The full-time students and pupils of the higher as well as further, vocational and general education schools registered in the established manner shall be entitled to the orphan’s pension until the graduation from these schools, but not longer than until they reach 24 years of age.

3. The children of the deceased person who qualify for the orphan’s pension shall also retain this right when someone adopts them.”

In the context of the constitutional justice case at issue, having compared the legal regulation established in Paragraph 1 (wording of 19 May 2005) of Article 36 of the Law on State Social Insurance Pensions with the one established in Paragraph 1 (wording of 12 February 2004) of Article 35 of the Law on State Social Insurance Pensions, it is clear that the persons of 18 years of age and older whose right to the orphan’s pension, under Paragraph 1 (wording of 19 May 2005) of Article 36 of the Law on State Social Insurance Pensions, was related to disability (incapacity), under the legal regulation established in this article, could acquire the right to the orphan’s pension provided that they met the same two conditions: 1) have lost their parents (or one of them); 2) had been recognised as incapacitated (until 1 July 2005—as disabled) before reaching 18 years of age. In addition, Paragraph 1 (wording of 19 May 2005) of Article 36 of the Law on State Social Insurance Pensions prescribed an additional condition (“have been incapable or partially capable of working (disabled) all the time since reaching 18 years of age”).

In the context of the constitutional justice case at issue, having compared the legal regulation established in Paragraph 1 (wording of 19 May 2005) of Article 36 of the Law on State Social Insurance Pensions with the one established in Paragraph 1 (wording of 12 February 2004) of Article 35 of the Law on State Social Insurance Pensions, it is clear that the formulation “they had become disabled before reaching 18 years of age” was replaced by the formulation “they had been recognised as incapacitated (until 1 July 2005—as disabled) before reaching 18 years of age”. The notion “recognised”, which is employed in the formulation “they had been recognised as incapacitated (until 1 July 2005—as disabled) before reaching 18 years of age” of the said paragraph (wording of 19 May 2005) of Article 36 of the Law on State Social Insurance Pensions, is related to both those situations where the deceased person’s children (adopted children) of 18 years of age and older had been recognised as incapacitated before reaching 18 years of age after the entry into force of this law on 1 July 2005, as well as those situations where the deceased person’s children (adopted children) of 18 years of age and older “had become disabled before reaching 18 years of age” under Article 35 of the Law on State Social Insurance Pensions that was valid until 1 July 2005. Consequently, the formulation “had been recognised as incapacitated before reaching 18 years of age” of Paragraph 1 (wording of 19 May 2005) of Article 36 of the Law on State Social Insurance Pensions is used as the one identical to the formulation “had become disabled before reaching 18 years of age”, which is employed in Paragraph 1 (wording of 12 February 2004) of Article 35 of the Law on State Social Insurance Pensions.

14. In this context it needs to be noted that even before when, on 19 May 2005, the Seimas set forth the Law on State Social Insurance Pensions (wording of 18 July 1994 with subsequent amendments and/or supplements), which was valid until 1 July 2005, in a new wording, the Seimas adopted the Republic of Lithuania Law on Amending the Law on the Social Integration of the Disabled on 11 May 2004, by Article 1 whereof it amended the Law on the Social Integration of the Disabled (wording of 22 October 1998 with subsequent amendments and supplements) and set it forth in a new wording. At the same time, the title of the law was also changed, i.e. it was titled as the Law on the Social Integration of Persons with Incapacities. The Law on the Social Integration of Persons with Incapacities of the new wording came into force (with a certain exception) on 1 July 2005.

Article 1 “Purpose of the Law” of the Law on the Social Integration of Persons with Incapacities (wording of 11 May 2004) provides that the purpose of this law is inter alia to define the establishment of the level of incapacity and the level of capacity to work.

Paragraph 8 (wording of 11 May 2004) of Article 2 “Main Notions of This Law” of the Law on the Social Integration of Persons with Incapacities prescribed: “The person with incapacities is a person to whom, upon the procedure established in this law, the level of incapacity or the level of capacity to work of lower than 55 percent, and/or the necessity of meeting the special needs is established.”

Thus, under Paragraph 8 (wording of 11 May 2004) of Article 2 of the Law on the Social Integration of Persons with Incapacities, the person with incapacities is such a person to whom, upon the procedure established in this law, the following is established: 1) the level of incapacity or the level of capacity to work of lower than 55 percent; and/or 2) the necessity of meeting the special needs.

Paragraph 3 of Article 18 “The Institution Establishing the Level of Incapacity and the Level of Capacity to Work” of the Law on the Social Integration of Persons with Incapacities (wording of 11 May 2004) provides that the Disability and Working Capacity Assessment Office under the Ministry of Social Security and Labour (hereinafter also referred to as the DWCAO) adopts inter alia the following decisions: as to the level of incapacity and its cause; as to the level of capacity to work; as to the general primary establishment of the special needs of persons with incapacities.

The Law on the Social Integration of Persons with Incapacities (wording of 11 May 2004) did not specify any concrete causes of incapacity.

Having compared the legal regulation established in the Law on the Social Integration of Persons with Incapacities (wording of 11 May 2004) with the aforediscussed one established in the Law on the Social Integration of the Disabled (wordings of 28 November 1991 and 22 October 1998 with subsequent amendments and supplements), inter alia it is clear that only the verbal expression of the provision that commissions establishing disability adopt decisions as to inter alia the fact of disability, its cause, has changed: under the Law on the Social Integration of Persons with Incapacities (wording of 11 May 2004), the DWCAO adopts the decisions as to the level of incapacity and its cause.

While construing, alongside the provisions of Articles 2 and 18 of the Law on the Social Integration of Persons with Incapacities (wording of 11 May 2004) that came into force on 1 July 2005, one of the conditions for the entitlement of persons of 18 years of age and older to the orphan’s pension (“had been recognised as incapacitated <...> before reaching 18 years of age”), which is established in Paragraph 1 (wording of 19 May 2005) of Article 36 of the Law on State Social Insurance Pensions that came into force on 1 July 2005, it is clear that, in the sense of Paragraph 1 (wording of 19 May 2005) of Article 36 of the Law on State Social Insurance Pensions, the persons who had been recognised as incapacitated before reaching 18 years of age are to be viewed as the ones with regard to whom the DWCAO had adopted a decision as to inter alia the level of incapacity before they reached 18 years of age.

15. On 12 December 2006, the Seimas adopted the Republic of Lithuania Law on Amending and Supplementing the Law on State Social Insurance Pensions and the Law on Early Payment of State Social Insurance Old-Age Pensions (it came into force on 1 January 2007), by means of which it changed inter alia the title of Chapter IV of the Law on State Social Insurance Pensions and set forth articles of this chapter in a new wording.

After the adoption, on 12 December 2006, of the said law by the Seimas, the relations related with the establishment of the persons entitled to receive the orphan’s pension have been regulated in Article 38 “Persons Entitled to the Orphan’s Pension” (wording of 12 December 2006) of the Law on State Social Insurance Pensions, the compliance of Paragraph 1 whereof with the Constitution is disputed in the constitutional justice case at issue. The said article inter alia prescribes:

1. The right to receive the state social insurance orphan’s pension shall be granted to the deceased person’s children and adopted children under 18 years of age as well as older ones where they had been recognised as incapacitated (until 1 July 2005—disabled) before reaching 18 years of age and where they have been incapable or partially capable of working (disabled) ever since reaching 18 years of age.

2. The full-time students and pupils of the higher as well as vocational and general education schools registered in the Republic of Lithuania in accordance with the established procedure who have reached 18 years of age shall be entitled to the orphan’s pension until the graduation from these schools (with the exception of the full-time pupils of general education schools who are entitled to the orphan’s pension until 31 August of the year of their graduation), but not longer than until they reach 24 years of age.

<...>.”

In the context of the constitutional justice case at issue, having compared the legal regulation established in Paragraph 1 (wording of 12 December 2006) of Article 38 of the Law on State Social Insurance Pensions with the one established in Paragraph 1 (wording of 19 May 2005) of Article 36 of the Law on State Social Insurance Pensions, it is clear that the persons of 18 years of age and older whose right to the orphan’s pension, under Paragraph 1 (wording of 12 December 2006) of Article 38 of the Law on State Social Insurance Pensions, is related to disability (incapacity), as well as the persons of 18 years of age and older whose right to the orphan’s pension, under Paragraph 1 (wording of 19 May 2005) of Article 36 of the Law on State Social Insurance Pensions, was related to disability (incapacity), under the legal regulation established in this article, may acquire the right to the orphan’s pension provided that they meet the same conditions: 1) have lost their parents (or one of them); 2) had been recognised as incapacitated (until 1 July 2005—as disabled) before reaching 18 years of age; 3) have been incapable or partially capable of working (disabled) ever since reaching 18 years of age.

Consequently, while construing, alongside the provisions of Articles 2 and 18 of the Law on the Social Integration of Persons with Incapacities (wording of 11 May 2004), one of the conditions established for the entitlement of persons of 18 years of age and older to the orphan’s pension (“had been recognised as incapacitated <...> before reaching 18 years of age”), which is established in Paragraph 1 (wording of 12 December 2006) of Article 38 of the Law on State Social Insurance Pensions, it is clear that, in the sense of Paragraph 1 (wording of 12 December 2006) of Article 38 of the Law on State Social Insurance Pensions, as well as under the previous legal regulation, the persons who had been recognised as incapacitated before reaching 18 years of age are to be viewed as the ones with regard to whom the DWCAO had adopted a decision as to inter alia the level of incapacity before they reached 18 years of age.

The notion “recognised”, which is employed in the formulation “they had been recognised as incapacitated (until 1 July 2005—as disabled) before reaching 18 years of age” of the disputed Paragraph 1 (wording of 12 December 2006) of Article 38 of the Law on State Social Insurance Pensions, in the same way as the one in Paragraph 1 (wording of 19 May 2005) of Article 36 of the Law on State Social Insurance Pensions, is related to both those situations where the deceased person’s children (adopted children) of 18 years of age and older had been recognised as incapacitated before reaching 18 years of age after the entry into force of this law on 1 July 2005, as well as to those situations where the deceased person’s children (adopted children) of 18 years of age and older “had become disabled before reaching 18 years of age” under Article 35 of the Law on State Social Insurance Pensions that was valid until 1 July 2005. Consequently, the formulation “had been recognised as incapacitated <...> before reaching 18 years of age” is used in the disputed Paragraph 1 (wording of 12 December 2006) of Article 38 of the Law on State Social Insurance Pensions as the one identical to the formulation “had become disabled before reaching 18 years of age”, which is employed in Paragraph 1 (wording of 12 February 2004) of Article 35 of the Law on State Social Insurance Pensions.

16. Having compared the legal regulation established in the Law on the Social Integration of Persons with Incapacities (wording of 11 May 2004) and the Law on State Social Insurance Pensions (wording of 19 May 2005), which was valid at the time when the provision disputed in the constitutional justice case at issue was adopted, with the one established in the Law on the Social Integration of the Disabled (wordings of 28 November 1991 and 22 October 1998 with subsequent amendments and supplements), the Law on Improvement of Pensionary Maintenance of Residents (wording of 28 July 1990 m) and the Law on State Social Insurance Pensions (wording of 18 July 1994 with the subsequent amendments and/or supplements made until 19 May 2005), in the context of the constitutional justice case at issue, inter alia in the aspects of the establishment of disability (lost capacity to work) before one reaches 18 years of age and the entitlement to the orphan’s pension, it is clear that:

16.1. Under the Law on Improvement of Pensionary Maintenance of Residents (wording of 28 July 1990), until 1 January 1995, one could be granted and paid the pension of loss of the breadwinner, whereas, under the Law on State Social Insurance Pensions (wording of 18 July 1994 with subsequent amendments and/or supplements) that was valid as from 1 January 1995 until 1 July 2005, one could be granted and paid the orphan’s pension, which was payable to the deceased person’s children (adopted children), inter alia the ones of 18 years of age and older where they had become disabled before reaching 18 years of age.

Consequently, both, under the Law on Improvement of Pensionary Maintenance of Residents (wording of 28 July 1990), the persons of 18 years of age and older whose right to the pension of loss of the breadwinner was related to disability, and, under the Law on State Social Insurance Pensions (wording of 18 July 1994 with the subsequent amendments and/or supplements made until 19 May 2005) that was valid until 1 July 2005, the persons of 18 years of age and older whose right to the orphan’s pension was related to disability, could acquire the right to the said pension provided that they met the following two conditions: 1) have lost their parents; 2) had become disabled before reaching 18 years of age.

Prior to 1 July 2005, the establishment of disability was regulated by the Law on the Social Integration of the Disabled (wordings of 28 November 1991 and 22 October 1998).

Under the Law on the Social Integration of the Disabled (wordings of 28 November 1991 and 22 October 1998), which was valid until 1 July 2005, disability was considered to be such condition of an individual which is established by competent institutions. Neither this law nor other laws provided that the fact of becoming disabled by an individual suffering from a corresponding illness (illnesses) is established otherwise than by means of the establishment of disability to him or her by competent institutions, i.e. upon adopting a decision as to the fact of disability by a commission establishing disability.

16.2. Under the Law on the Social Integration of the Disabled (wordings of 28 November 1991 and 22 October 1998 with subsequent amendments and supplements) that was valid until 1 July 2005, commissions establishing disability used to adopt a decision as to inter alia the fact of disability and its cause, whereas having amended this law and set it forth in a new wording, from 1 July 2005, under the Law on the Social Integration of Persons with Incapacities (wording of 11 May 2004), the DWCAO adopts a decision as to inter alia the disability cause and the level of capacity to work. (The person with incapacities is viewed to be the one with regard to whom the DWCAO has adopted a decision as to the establishment of the level of incapacity or the level of capacity to work of lower than 55 percent).

Consequently, both the persons who, prior to 1 July 2005, had become disabled before reaching 18 years of age in the sense of the Law on State Social Insurance Pensions (wording of 18 July 1994 with subsequent amendments and/or supplements) as well as the persons who, from 1 July 2005, had been recognised as incapacitated before reaching 18 years of age in the sense of the Law on State Social Insurance Pensions (wording of 19 May 2005 with the subsequent amendments and/or supplements valid until the adoption of the disputed regulation) are to be viewed as the ones with regard to whom competent institutions had adopted a decision as to inter alia the fact of disability (the level of incapacity) before they reached 18 years of age.

16.3. Neither the Law on Improvement of Pensionary Maintenance of Residents (wording of 28 July 1990 with subsequent amendments and supplements), nor the Law on State Social Insurance Pensions (wordings of 18 July 1994 and 19 May 2005 with the subsequent amendments and/or supplements valid until the adoption of the disputed regulation) provided that the persons who became disabled after reaching 18 years of age, inter alia who became disabled after reaching 18 years of age as a result of the consequences of an illness or trauma which had emerged before reaching 18 years of age, are entitled to the pension of loss of the breadwinner (orphan’s pension).

16.4. The notion “recognised”, which is employed in the formulation “they had been recognised as incapacitated (until 1 July 2005—as disabled) before reaching 18 years of age” of Paragraph 1 (wording of 19 May 2005) of Article 36 and Paragraph 1 (wording of 12 December 2006) of Article 38 of the Law on State Social Insurance Pensions, is related to both those situations where the deceased person’s children (adopted children) had been recognised as incapacitated before reaching 18 years of age after the entry into force of this law on 1 July 2005, as well as to those situations where the deceased person’s children (adopted children) “had become disabled before reaching 18 years of age” prior to 1 July 2005. Thus, in the Law on State Social Insurance Pensions (wording of 19 May 2005) that has been valid since 1 July 2005, the formulation “had been recognised as incapacitated <...> before reaching 18 years of age” is employed as an identical one to the formulation “had become disabled before reaching 18 years of age”, which was employed in the Law on State Social Insurance Pensions (wording of 18 July 1994 with subsequent amendments and/or supplements) that was valid until 1 July 2005.

16.5. While construing the legal regulation entrenched in the provision of Paragraph 3 (wording of 11 November 2004) of Article 3.194 of the Civil Code that a court issues a maintenance order for the child who is incapable of working due to a disability determined before reaching full legal age in conjunction with the legal regulation entrenched in the provision of Paragraph 1 (wording of 12 February 2004) of Article 35 of the Law on State Social Insurance Pensions that the right to receive the orphan’s pension is granted to persons of 18 years of age and older where they had become disabled before reaching 18 years of age, in the aspect of the age up to which the child is supported and the age up to which disability must be established to the child wishing to become entitled to the orphan’s pension, it is clear that the age in question is identical: before reaching 18 years of age.

17. It needs to be mentioned that such legal regulation, whereby it is established up to when the orphan’s pension may be granted to persons with incapacities and up to what period it may be paid to them, is also entrenched in the law of other states. For instance, in Hungary, the orphan’s pension may be granted to persons with incapacities not later than up to 16 years of age or not later than up to 25 years of age if they study. In Switzerland, the orphan’s pension may be paid to persons with incapacities up to 25 years of age, in Slovakia—up to 26 years of age, and in Germany—up to 27 years of age.

III

1. It has been mentioned that the petitioners request investigation into whether Paragraph 1 (wording of 12 December 2006) of Article 38 of the Law on State Social Insurance Pensions, to the extent that it does not establish that the right to receive the orphan’s pension is granted to the deceased person’s children and adopted children of 18 years of age and older who have incapacity (are disabled) where they had not been recognised as incapacitated (disabled) before reaching 18 years of age, is not in conflict with Article 52 of the Constitution and the constitutional principle of a state under the rule of law.

2. Article 52 of the Constitution prescribes: “The State shall guarantee to citizens the right to receive old age and disability pensions as well as social assistance in the event of unemployment, sickness, widowhood, loss of the breadwinner, and in other cases provided for by laws.”

This article of the Constitution specifies types of pensions (old age and disability) and types of social assistance (in the event of unemployment, sickness, widowhood, loss of the breadwinner) (Constitutional Court ruling of 10 February 2000). The pensions and social assistance indicated in Article 52 of the Constitution are one of the forms of social protection (Constitutional Court rulings of 25 November 2002, 5 March 2004, 7 February 2005 and 29 April 2008).

While construing Article 52 of the Constitution, in its rulings the Constitutional Court has held more than once the following: under the Constitution, the State of Lithuania is socially oriented and every citizen has the right to social security; the social maintenance, i.e. contribution of the society to maintenance of such its members who are incapable of providing themselves from work or other means or who are not sufficiently provided, is recognised as having the status of a constitutional value; the measures of social security express the idea of social solidarity and help a person to protect himself from possible social hazards.

The Constitutional Court has held that, under Article 52 of the Constitution, while implementing the constitutional principle of public solidarity and by helping a person to protect himself from possible social hazards and at the same time creating preconditions for every member of the society to take care of his own welfare (and not only to trust in the state social security), the legislator must establish the old age and disability pensions as well as social assistance in the event of unemployment, sickness, widowhood, and loss of the breadwinner by the law (Constitutional Court ruling of 22 October 2007 and decision of 20 April 2010). The types of pensions and types of social assistance enumerated in the said article of the Constitution must necessarily be provided for (Constitutional Court ruling of 10 February 2000).

3. The legislator has a broad discretion to choose and consolidate in laws a model of provision of social support (Constitutional Court ruling of 2 September 2009), as well as discretion to choose a system of pensions (Constitutional Court rulings of 26 September 2007, 2 September 2009 and decision of 10 April 2010).

The Constitutional Court has held more than once that, under the Constitution, the law may also establish other pensions and social assistance, not only those which are expressis verbis specified in Article 52 of the Constitution. If a law establishes another pension which is not directly specified in Article 52 of the Constitution, under the Constitution, the said pension must be guaranteed to the indicated persons on such grounds and by such amounts that are established by the law (Constitutional Court rulings of 10 February 2000, 4 July 2003, 13 December 2004 and 24 December 2008).

4. The provisions of Article 52 of the Constitution that guarantee the right to social maintenance obligate the state to establish sufficient measures of implementation and legal protection of this right (Constitutional Court rulings of 12 March 1997, 30 October 2001, 5 March 2004, 7 February 2005, 26 September 2007, 29 April 2008, 2 September 2009, and decision of 20 April 2010). The formulation “the state shall guarantee” of Article 52 of the Constitution inter alia means that various types of social assistance are guaranteed to those persons and on such grounds which have been established by laws (Constitutional Court rulings of 23 April 2002, 7 February 2005, 26 September 2007, 29 April 2008, and decision of 20 April 2010). Separate types of social assistance, the persons who are granted social assistance, the grounds and conditions of granting and paying social assistance, amounts thereof may be set solely by the law (Constitutional Court rulings of 5 March 2004, 7 February 2005, 29 April 2008 and 2 September 2009).

The Constitutional Court has held that the content of the legal regulation of the relations of social security and social assistance are affected by various factors, inter alia resources of the state and society, as well as material and financial possibilities (Constitutional Court rulings of 26 September 2007, 2 September 2009, and decision of 20 April 2010). The legislator, by taking account of these factors and respectively regulating the said relations, enjoys a broad discretion. Law-making subjects, who issue substatutory legal acts, enjoy certain discretion in this area as well; this discretion must be based on the powers of respective institutions (officials) established in laws, and it may not deny the legal regulation established in laws (Constitutional Court ruling of 7 February 2005).

Sub-statutory acts (thus, Government resolutions as well) may establish only the procedure of implementation of the laws regulating the relations of social security and social assistance. The sub-statutory legal regulation of the relations of social security and social assistance may comprise the establishment of respective procedures, as well as such legal regulation based on laws where the need to provide more details about and particularise in sub-statutory legal acts the legal regulation established by laws is objectively caused by the necessity in the law-making process to lean upon special knowledge or special (professional) competence in a certain area (Constitutional Court rulings of 7 February 2005 and 2 September 2009). However, as the Constitutional Court has held in its rulings more than once, a sub-statutory legal regulation of the relations specified in Article 52 of the Constitution may not establish conditions for appearance of the right of an individual to social assistance, nor may it limit the extent of this right.

The legislator, by assisting a person to protect himself from possible social hazards and at the same time creating preconditions for each member of society to take care of his own welfare (and not to rely solely on the state social security), must establish by law a clear, harmonious legal regulation, according to which preconditions would be created to implement inter alia the right to receive the disability pension, which is expressis verbis indicated in Article 52 of the Constitution (Constitutional Court ruling of 2 September 2009).

These requirements for a clear and harmonious legal regulation, which arise from the Constitution, are also applicable mutatis mutandis when one establishes, by the law, other types of pensions inter alia the orphan’s pension.

In the context of the constitutional justice case at issue it needs to be noted that, as the Constitutional Court has held, the state is under constitutional obligation to take measures (positive activity) itself (through its institutions) so that citizens (and other residents) would receive information as precise as possible about the things that they have to know, also that people could participate in adoption of the decisions related with implementation of their rights and freedoms (Constitutional Court ruling of 21 December 2006).

In the context of the constitutional justice case at issue it also needs to be noted that one must, by the law, establish a duty of responsible persons to inform parents of the children, with regard to whom, due to a serious illness, incapacity to work (disability) may be established, about the right of their children to the disability pension or other social assistance.

5. In the context of the constitutional justice case at issue, while construing Article 52 of the Constitution, wherein it is inter alia established that the state guarantees social assistance in the event of loss of the breadwinner, it needs to be stated that by taking account of the imperative of social harmony that is entrenched in the Constitution, the state is constitutionally obligated to render respective social assistance to persons who lost their breadwinner. Under the Constitution, when establishing social assistance in the event of loss of the breadwinner by means of a law, the legislator enjoys discretion. This discretion includes inter alia the discretion to establish the types of social assistance in the event of loss of the breadwinner, the persons who are granted concrete social assistance, as well as the conditions of granting and paying this social assistance, also the discretion to differentiate amounts of the social assistance granted to persons where their status is objectively different. Alongside, it needs to be noted that this assistance must be such so that it would ensure the living conditions compatible with human dignity.

The legislator, taking account of resources of the state and society, as well as material and financial possibilities, may choose what social assistance to render to underage children (inter alia to disabled ones) who have lost their parents. Separate types of social assistance may be varied. The legislator may, by means of a law, also establish a pension to underage children who have lost their parents, inter alia to the disabled (ones with incapacities) (by naming it inter alia the orphan’s pension). It needs to be noted that the provision of Paragraph 6 of Article 38 of the Constitution entrenched the duty of parents to support their children until they come of age. Thus, the establishment of a pension to underage children who have lost their parents may be regarded as certain compensation for the support which, under the provision of Paragraph 6 of Article 38 of the Constitution, has had to be provided to them by their parents.

While implementing social policy, the legislator enjoys a broad discretion, however, the conditions of granting and paying the said pension, inter alia the age limit (majority) up to which this pension may be granted, as well as the age limit up to which the granted pension may be paid, must be established by the law.

In the context of the case at issue it needs to be noted that the period of payment of the said pension to children with incapacities (disabled children) who have lost their parents may be also related inter alia to such age up to which children who have lost their parents generally seek corresponding education.

6. The fact that Article 38 of the Constitution, wherein it is inter alia established that parents are under a duty to support their children until they come of age, does not entrench the duty of parents to support their children of full legal age to whom the support is necessary does not mean that the legislator may not, on the whole, by the law, establish the duty of parents to provide support to their children of full legal age to whom the support is necessary. In this context it needs to be noted that, as it was held in the Constitutional Court ruling of 7 June 2007: parents also have moral obligations to their children who have came of age, as well as children have moral obligations to their parents; the aforesaid provision of Paragraph 6 of Article 38 of the Constitution may not be construed as meaning that, purportedly, the legislator may not, in general, establish the duty of parents to provide support to their children of full legal age to whom the support is necessary, so that they could acquire corresponding education; the institute of support of the children of full legal age to whom the support is necessary and who study at day-time departments of schools of higher education essentially differs from the institute of support of underage children; the adjudgment of support to persons of full legal age may not be grounded on the same principles as that of to underage children; otherwise, the concept of full legal age itself, which is consolidated in the Constitution and in the whole legal system, would be denied; one may not establish any such legal regulation whereby the support is adjudged from the parents who themselves need support, guardianship, etc.

Thus, in the official constitutional doctrine the principle has been formulated that the support from parents may be adjudged to the child of full legal age where such a child seeks to acquire corresponding education, the support is necessary to him, and the parents have a possibility of providing that support.

In the context of the constitutional justice case at issue it needs to be noted that, from the Constitution, no duty arises for the state to establish the legal regulation under which the orphan’s pension would be granted to persons with incapacities (the disabled) of full legal age who have lost their parents.

On the other hand, in its ruling of 2 September 2009, the Constitutional Court also held that the state has a constitutional obligation to ensure the creation of such a social security system (inter alia a system of social assistance and disability pensions) so that a person who, due to health disorders (caused by an illness, accident, occupational disease, innate health disorders, etc.), has permanently or temporarily not acquired or has lost a possibility to earn the living from work or business income, or where such possibilities have significantly diminished, in the cases provided for by law, would receive social assistance and/or the disability pension. In the said Constitutional Court ruling, it was also held that the legislator may not establish any such legal regulation which would create preconditions for a situation where a person who, due to health disorders (caused by an illness, accident, occupational disease, innate health disorders, etc.), has permanently or temporarily not acquired or lost a possibility to earn the living from work or business income, or where such possibilities have significantly diminished, would not receive the respective social assistance and/ or the disability pension.

In the context of the constitutional justice case at issue it needs to be noted that the content of the legal regulation of the relations of social assistance is determined by various factors, inter alia by resources of the state and society as well as by material and financial possibilities. The legislator, taking account of these factors and respectively regulating the said relations, has a broad discretion to choose and entrench, by the law, the types of social assistance to persons with incapacities (the disabled), inter alia disabled persons of full legal age who have lost their parents.

7. In the context of the constitutional justice case at issue it needs to be noted that the legislator, when establishing the right of underage children who have lost their parents to a pension (orphan’s pension), is bound by the norms and principles of the Constitution, inter alia the striving for an open, just and harmonious civil society and a state under the rule of law, which is enshrined in the Preamble thereof.

7.1. The Constitutional Court has held more than once that the constitutional principle of a state under the rule of law is a universal principle, upon which the entire legal system of Lithuania and the Constitution itself are based. The constitutional principle of a state under the rule of law is especially capacious; it comprises a range of various interrelated imperatives.

The Constitutional Court has also held more than once that the constitutional principle of a state under the rule of law inter alia means that human rights and freedoms must be secured, that all institutions implementing state power as well as other state institutions must act on the grounds of law and in compliance with law, that the Constitution has the supreme legal power, and that laws and other legal acts must be in compliance with the Constitution.

The constitutional principle of a state under the rule of law is inseparable from the principle of justice, and vice versa. In its rulings the Constitutional Court has held more than once that justice is one of the basic objectives of law, as the means of regulation of social relations. It is one of basic moral values and one of basic foundations of a state under the rule of law. It may be implemented by ensuring certain equilibrium of interests and by escaping fortuity and arbitrariness, instability of social life, and conflict of interests (Constitutional Court rulings of 22 December 1995, 6 December 2000, 17 March 2003, 17 November 2003, 3 December 2003, 24 December 2008, and decision of 20 April 2010).

The Constitutional Court has held more than once that inseparable elements of the principle of a state under the rule of law are the protection of legitimate expectations, legal certainty and legal security. The constitutional principles of the protection of legitimate expectations, legal certainty, and legal security imply a duty of the state to guarantee the certainty and stability of legal regulation, to safeguard the rights of persons, as well as to respect legitimate interests and legitimate expectations (Constitutional Court rulings of 12 July 2001, 5 November 2002, 4 March 2003, 17 March 2003, 24 December 2008, and decision of 20 April 2010). These principles inter alia imply that the state must fulfil all its undertaken obligations to the person. As it has been held by the Constitutional Court more than once, if the protection of legitimate expectations, legal certainty, and legal security were not ensured, the trust of the person in the state and law would not be secured.

7.2. The provision “the state shall guarantee” of Article 52 of the Constitution inter alia means that, upon establishing by the law certain pensionary maintenance, the state is obligated to guarantee it to the indicated persons on such grounds and by such amounts which have been established by the law, whereas the persons who meet the conditions provided for by the law have the right to require that the state grant and pay this pension to them (Constitutional Court rulings of 4 July 2003, 3 December 2003, 13 December 2004, 24 December 2008 and 2 September 2009).

The Constitutional Court has noted more than once that the constitutional protection of acquired rights and legitimate expectations does not mean that the system of pensionary maintenance established by laws may not be reorganised. While reorganising this system, the Constitution must be observed in every case. The legislator, while reorganising the system of pensions so that the grounds of pensionary maintenance, the persons to whom the pension is granted and paid, the conditions of granting and payment of pensions, and the amounts of pensionary maintenance are changed, must provide for a sufficient transitional time period during which the persons who have a corresponding job or perform corresponding service which entitles them to a respective pension under the previous regulation, would be able to prepare for these changes (Constitutional Court rulings of 4 July 2003, 13 December 2004, 22 October 2007, 24 December 2008, and decision of 20 April 2010).

IV

On the compliance of Paragraph 1 (wording of 12 December 2006) of Article 38 of the Law on State Social Insurance Pensions with Article 52 of the Constitution and the constitutional principle of a state under the rule of law.

1. It has been mentioned that the petitioners request investigation into whether Paragraph 1 (wording of 12 December 2006) of Article 38 of the Law on State Social Insurance Pensions, to the extent that it does not establish that the right to receive the orphan’s pension is granted to the deceased person’s children and adopted children of 18 years of age and older who have incapacity (are disabled) where they had not been recognised as incapacitated (disabled) before reaching 18 years of age, is not in conflict with Article 52 of the Constitution and the constitutional principle of a state under the rule of law.

2. The disputed Paragraph 1 (wording of 12 December 2006) of Article 38 of the Law on State Social Insurance Pensions prescribes: “The right to receive the state social insurance orphan’s pension shall be granted to the deceased person’s children and adopted children under 18 years of age as well as older ones where they had been recognised as incapacitated (until 1 July 2005—as disabled) before reaching 18 years of age and where they have been incapable or partially capable of working (disabled) ever since reaching 18 years of age.”

3. From the arguments of the petitions of the Vilnius Regional Administrative Court and the Kaunas Regional Administrative Court, the petitioners, it is clear that the formulation “had been recognised as incapacitated (until 1 July 2005—as disabled) before reaching 18 years of age”, which is employed in the disputed Paragraph 1 (wording of 12 December 2006) of Article 38 of the Law on State Social Insurance Pensions, is construed by the petitioners as meaning that a decision of a competent institution confirming the person’s incapacity (disability) must be adopted before the person reaches 18 years of age. Thus, the deceased person’s children (adopted children) of 18 years of age and older, in the opinion of the petitioners, have no right to receive the state social insurance orphan’s pension where a decision confirming the incapacity (disability) of these children (adopted children) is adopted after they have reached 18 years of age. In the opinion of the petitioners, under the legal regulation established in Paragraph 1 of Article 35 of the Law on State Social Insurance Pensions that was valid until 1 July 2005 (wherein it was established that the right to receive the state social insurance orphan’s pension is granted to the deceased person’s children (adopted children) under 18 years of age as well as older ones where they had become disabled before reaching 18 years of age), such persons would have been entitled to receive the state social insurance orphan’s pension.

4. Article 52 of the Constitution prescribes: “The State shall guarantee to citizens the right to receive old age and disability pensions as well as social assistance in the event of unemployment, sickness, widowhood, loss of the breadwinner, and in other cases provided for by laws.”

This article of the Constitution specifies types of pensions (old age and disability) and types of social assistance (in the event of unemployment, sickness, widowhood, and loss of the breadwinner). The Constitutional Court has held more than once that the pensions and social assistance indicated in Article 52 of the Constitution are one of the forms of social protection. The Constitutional Court has also held that, under Article 52 of the Constitution, while implementing the constitutional principle of public solidarity and by helping a person to protect himself from possible social hazards and at the same time creating preconditions for every member of the society to take care of his own welfare (and not only to trust in the state social security), the legislator must, by means of a law, establish the old age and disability pensions as well as social assistance in the event of unemployment, sickness, widowhood, and loss of the breadwinner.

In this Constitutional Court ruling it has been held that, under Article 52 of the Constitution, the legislator, taking account of resources of the state and society as well as material and financial possibilities, may choose what social assistance to render to underage children (inter alia disabled ones) who have lost their parents. The legislator may, by means of a law, also establish a pension to underage children who have lost their parents, inter alia disabled ones (ones with incapacities) (by naming it inter alia the orphan’s pension). The establishment, by means of a law, of a pension to underage children who have lost their parents may be regarded as certain compensation for the support which, under the provision of Paragraph 6 of Article 38 of the Constitution, has had to be provided to them by their parents.

5. It has been mentioned that, under Paragraph 1 (wordings of 18 July 1994 and 12 February 2004) of Article 35 of the Law on State Social Insurance Pensions, the persons of 18 years of age and older whose right to the orphan’s pension was related to disability could acquire the right to this pension provided that they met the following two conditions: 1) have lost their parents (or one of them); 2) had become disabled before reaching 18 years of age.

Thus, under Paragraph 1 (wordings of 18 July 1994 and 12 February 2004) of Article 35 of the Law on State Social Insurance Pensions, which was valid until 1 July 2005, one of the conditions for the entitlement of the child of 18 years of age and older who has lost his or her parents (or one of them) to the orphan’s pension was the child’s becoming disabled before reaching 18 years of age.

5.1. It has been mentioned that, prior to 1 July 2005, the establishment of disability was regulated by the Law on the Social Integration of the Disabled (wordings of 28 November 1991 and 22 October 1998). Under this law, disability was viewed to be such state of an individual which was established by competent institutions. It has also been mentioned that commissions establishing disability used to adopt a decision as to inter alia the fact of disability and its cause. Thus, a person used to acquire the status of the disabled person when a competent institution—a commission establishing disability—would adopt a corresponding decision. Neither this law nor other laws provided that the fact of becoming disabled by an individual suffering from a corresponding illness (illnesses) is established otherwise than by means of the establishment of disability to him or her by competent institutions, i.e. upon adopting a decision as to the fact of disability by a commission establishing disability.

5.2. As mentioned, while construing, alongside the provisions of Articles 3 and 4 of the Law on the Social Integration of the Disabled (wordings of 28 November 1991 and 22 October 1998 with subsequent amendments and supplements), one of the conditions for the entitlement of persons of 18 years of age and older to the orphan’s pension (“had become disabled before reaching 18 years of age”), which is established in Paragraph 1 (wordings of 18 July 1994 and 12 February 2004) of Article 35 of the Law on State Social Insurance Pensions, it is clear that, in the sense of Paragraph 1 (wordings of 18 July 1994 and 12 February 2004) of Article 35 of the Law on State Social Insurance Pensions, the persons who had become disabled before reaching 18 years of age were viewed as the ones with regard to whom commissions establishing disability had adopted a decision as to inter alia the fact of disability before they reached 18 years of age.

5.3. It has been mentioned that neither the Law on Improvement of Pensionary Maintenance of Residents (wording of 28 July 1990 with subsequent amendments and supplements), nor the Law on State Social Insurance Pensions (wordings of 18 July 1994 and 19 May 2005 with the subsequent amendments and/or supplements valid until the adoption of the disputed regulation) provided that the persons who became disabled after reaching 18 years of age, inter alia who became disabled after reaching 18 years of age as a result of the consequences of an illness or trauma that had emerged before reaching 18 years of age, are entitled to receive the pension of loss of the breadwinner (orphan’s pension).

6. It has been mentioned that, under the disputed Paragraph 1 (wording of 12 December 2006) of Article 38 of the Law on State Social Insurance Pensions, the persons of 18 years of age and older whose right to the orphan’s pension is related to disability (incapacity) may acquire the right to this pension provided that they meet the following conditions: 1) have lost their parents (or one of them); 2) had been recognised as incapacitated (until 1 July 2005—as disabled) before reaching 18 years of age; 3) have been incapable or partially capable of working (disabled) ever since reaching 18 years of age.

Thus, under Paragraph 1 (wordings of 19 May 2005 and 12 December 2006) of Article 38 of the Law on State Social Insurance Pensions, which came into force on 1 July 2005, one of the conditions for the entitlement of the child of 18 years of age and older who has lost his or her parents (or one of them) to the orphan’s pension is the recognition of the child as incapacitated (until 1 July 2005—as disabled) before reaching 18 years of age.

6.1. It has been mentioned that, under Paragraph 8 (wording of 11 May 2004) of Article 2 of the Law on the Social Integration of Persons with Incapacities, which came into force on 1 July 2005, the person with incapacities is a person to whom the following is established: 1) the level of incapacity or the level of capacity to work of lower than 55 percent; and/or 2) the necessity of meeting the special needs. It has also been mentioned that the DWCAO adopts a decision as to inter alia the cause of disability and the level of capacity to work.

Thus, an individual acquires the status of the person with incapacities when a competent institution, i.e. the DWCAO, adopts a corresponding decision. Neither the said nor other laws provided that a person who is ill with a corresponding illness (illnesses) is recognised as incapacitated otherwise than by means of the establishment of the level of incapacity and that of capacity to work to him by a competent institution, the DWCAO, i.e. upon adopting a decision as to the establishment of the level of incapacity and that of capacity to work by the DWCAO.

Consequently, the legal regulation after 1 July 2005, in the aspect that an individual acquires the status of the person with incapacities when a competent institution adopts a decision as to incapacity, has remained the same as the one prior to 1 July 2005.

6.2. It has been mentioned that the notion “recognised”, which is employed in the formulation “they had been recognised as incapacitated (until 1 July 2005—as disabled) before reaching 18 years of age” of Paragraph 1 (wording of 19 May 2005) of Article 36 and Paragraph 1 (wording of 12 December 2006) of Article 38 of the Law on State Social Insurance Pensions, is related to both those situations where the deceased person’s children (adopted children) of 18 years of age and older had been recognised as incapacitated before reaching 18 years of age after the entry into force of this law on 1 July 2005, as well as to those situations where the deceased person’s children (adopted children) of 18 years of age and older “had become disabled before reaching 18 years of age” prior to 1 July 2005.

6.3. It has been mentioned that, while construing, alongside the provisions of Articles 2 and 18 of the Law on the Social Integration of Persons with Incapacities (wording of 11 May 2004), one of the conditions for the entitlement of persons of 18 years of age and older to the orphan’s pension (“had been recognised as incapacitated <...> before reaching 18 years of age”), which is established in Paragraph 1 (wording of 19 May 2005) of Article 36 and Paragraph 1 (wording of 12 December 2006) of Article 38 of the Law on State Social Insurance Pensions, it is clear that, in the sense of Paragraph 1 (wording of 19 May 2005) of Article 36 and Paragraph 1 (wording of 12 December 2006) of Article 38 of the Law on State Social Insurance Pensions, the persons who had been recognised as incapacitated before reaching 18 years of age are to be viewed as the ones with regard to whom the DWCAO had adopted a decision as to inter alia the level of incapacity before they reached 18 years of age, i.e. the formulation “had been recognised as incapacitated <...> before reaching 18 years of age” is employed as an identical one to the formulation “had become disabled before reaching 18 years of age” employed in Paragraph 1 (wordings 18 of July 1994 and 12 February 2004) of Article 35 of the Law on State Social Insurance Pensions.

7. Thus, the legislator, by establishing by the disputed Paragraph 1 (wording of 12 December 2006) of Article 38 of the Law on State Social Insurance Pensions that the right to receive the state social insurance orphan’s pension is granted to the deceased person’s children (adopted children) of 18 years of age and older who had been recognised as incapacitated (until 1 July 2005—as disabled) before reaching 18 years of age, has not changed one of the conditions for the entitlement of persons of 18 years of age and older to the orphan’s pension: disability must be established (recognised) by a competent institution before a person reaches 18 years of age.

8. It has been mentioned that there may be various separate types of social assistance. The establishment of separate types of social assistance, the persons to whom social assistance is granted, inter alia the conditions of granting and paying the orphan’s pension, is the discretion of the legislator. In this ruling it has been held that, from the Constitution, no duty arises for the state to establish the legal regulation under which the orphan’s pension would be granted to persons with incapacities (the disabled) of full legal age who have lost their parents. It has also been held that the content of the legal regulation of the relations of social assistance is determined by various factors, inter alia by resources of the state and society and by material and financial possibilities. The legislator, taking account of these factors and respectively regulating the said relations, has a broad discretion to choose and entrench, by means of a law, the types of social assistance to persons with incapacities (the disabled), inter alia persons with incapacities (the disabled) of full legal age who have lost their parents.

9. Thus, there is no ground to maintain that Paragraph 1 (wording of 12 December 2006) of Article 38 of the Law on State Social Insurance Pensions, to the extent that it does not establish that the right to receive the orphan’s pension is granted to the deceased person’s children and adopted children of 18 years of age and older who have incapacity (are disabled) where they had not been recognised as incapacitated (disabled) before reaching 18 years of age, is in conflict with Article 52 of the Constitution.

10. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 1 (wording of 12 December 2006) of Article 38 of the Law on State Social Insurance Pensions, to the extent that it does not establish that the right to receive the orphan’s pension is granted to the deceased person’s children and adopted children of 18 years of age and older who have incapacity (are disabled) where they had not been recognised as incapacitated (disabled) before reaching 18 years of age, is not in conflict with Article 52 of the Constitution.

11. It has been mentioned that the petitioners request investigation into whether Paragraph 1 (wording of 12 December 2006) of Article 38 of the Law on State Social Insurance Pensions, to the extent that it does not establish that the right to receive the orphan’s pension is granted to the deceased person’s children and adopted children of 18 years of age and older who have incapacity (are disabled) where they had not been recognised as incapacitated (disabled) before reaching 18 years of age, is not in conflict with inter alia the constitutional principle of a state under the rule of law.

12. In this Constitutional Court ruling it has been held: the protection of legitimate expectations, legal certainty and legal security are inseparable elements of the principle of a state under the rule of law; the constitutional principles of the protection of legitimate expectations, legal certainty and legal security imply the obligation of the state to secure the certainty and stability of the legal regulation, to protect the rights of persons, to respect the legitimate interests and legitimate expectations; after the types of pensions, the persons entitled to the pension, the grounds and conditions of granting and paying pensions, and their amounts have been established by laws, 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; the constitutional protection of acquired rights and legitimate expectations does not mean that the system of pensionary maintenance established by laws may not be reorganised; when reorganising this system, the Constitution must be observed in every case.

13. It has been mentioned that Paragraph 1 (wording of 12 December 2006) of Article 38 of the Law on State Social Insurance Pensions prescribes: “The right to receive the orphan’s pension shall be granted to the deceased person’s children and adopted children under 18 years of age as well as older ones where they had been recognised as incapacitated (until 1 July 2005—disabled) before reaching 18 years of age and where they have been incapable or partially capable of working (disabled) ever since reaching 18 years of age.”

14. It has been mentioned that, in the opinion of the petitioners, under the legal regulation established in Paragraph 1 of Article 35 of the Law on State Social Insurance Pensions that was valid until 1 July 2005 (wherein it was established that the right to receive the state social insurance orphan’s pension is granted to the deceased person’s children (adopted children) under 18 years of age as well as older ones where they had become disabled before reaching 18 years of age), the persons who were recognised as incapacitated after reaching 18 years of age, but who had become incapacitated before reaching 18 years of age, would have been entitled to receive the state social insurance orphan’s pension.

15. In this Constitutional Court ruling it has been held that a sub-statutory legal regulation of the relations specified in Article 52 of the Constitution may not establish the conditions for appearance of the right of an individual to social assistance.

In the context of the constitutional justice case at issue it needs to be noted that: the fact that, under the sub-statutory legal regulation valid until 1 April 2004, commissions establishing disability, when establishing the disability to a person, could indicate the disability cause “since childhood” does not mean that, under the then valid Law on State Social Insurance Pensions, such a person could acquire the right to the orphan’s pension, as, under that law, one of the conditions for receipt of the orphan’s pension was the requirement “had become disabled before reaching 18 years of age”, which, as mentioned, means that a decision as to inter alia the fact of disability had had to be adopted by a commission establishing disability before a person reached 18 years of age. It needs to be noted that, as it has been held in this ruling, neither the Law on Improvement of Pensionary Maintenance of Residents (wording of 28 July 1990 with subsequent amendments and supplements), nor the Law on State Social Insurance Pensions (wordings of 18 July 1994 and 19 May 2005 with the subsequent amendments and/or supplements valid until the adoption of the disputed regulation) provided that the persons who became disabled after reaching 18 years of age, inter alia who became disabled after reaching 18 years of age as a result of the consequences of an illness or trauma that had emerged before reaching 18 years of age, are entitled to receive the pension of loss of the breadwinner (orphan’s pension).

16. In this ruling it has been held that the legislator, by establishing by the disputed Paragraph 1 (wording of 12 December 2006) of Article 38 of the Law on State Social Insurance Pensions that the right to receive the state social insurance orphan’s pension is granted to inter alia the deceased person’s children (adopted children) of 18 years of age and older who had been recognised as incapacitated (until 1 July 2005—as disabled) before reaching 18 years of age, has not changed one of the conditions for the entitlement of persons of 18 years of age and older to the orphan’s pension, which was established in the law that was valid until 1 July 2005: disability must be established (recognised) by a competent institution before a person reaches 18 years of age.

Thus, there is no ground to maintain that, in establishing, by the legal regulation entrenched in Paragraph 1 (wording of 12 December 2006) of Article 38 of the Law on State Social Insurance Pensions, one of the conditions for receipt of the orphan’s pension by persons of 18 years of age and older, i.e. to be recognised as incapacitated (until 1 July 2005—as disabled) before reaching 18 years of age, one has violated the constitutional principles of justice, the protection of legitimate expectations, and legal security.

17. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 1 (wording of 12 December 2006) of Article 38 of the Law on State Social Insurance Pensions, to the extent that it does not establish that the right to receive the orphan’s pension is granted to the deceased person’s children and adopted children of 18 years of age and older who have incapacity (are disabled) where they had not been recognised as incapacitated (disabled) before reaching 18 years of age, is not in conflict with the constitutional principle of a state under the rule of law.

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 has passed the following

ruling:

To recognise that Paragraph 1 (wording of 12 December 2006; Official Gazette Valstybės žinios, 2006, No. 139-5295) of Article 38 of the Republic of Lithuania Law on State Social Insurance Pensions, to the extent that it does not establish that the right to receive the orphan’s pension is granted to the deceased person’s children and adopted children of 18 years of age and older who have incapacity (are disabled) where they had not been recognised as incapacitated (disabled) before reaching 18 years of age, is not in conflict with the Constitution of the Republic of Lithuania.

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

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

Justices of the Constitutional Court: Armanas Abramavičius
                                                                      Toma Birmontienė
                                                                      Pranas Kuconis
                                                                      Kęstutis Lapinskas
                                                                      Zenonas Namavičius
                                                                      Ramutė Ruškytė
                                                                      Egidijus Šileikis
                                                                      Algirdas Taminskas
                                                                      Romualdas Kęstutis Urbaitis