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On the Law on State Social Insurance Pensions and the Law on State Pensions

Case No. 47/2001-08/2003-20/2003-32/2003-38/2003

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

RULING

ON THE COMPLIANCE OF THE PROVISIONS OF THE REPUBLIC OF LITHUANIA’S LAW ON STATE SOCIAL INSURANCE PENSIONS, THE REPUBLIC OF LITHUANIA’S LAW ON STATE PENSIONS, AND THE REPUBLIC OF LITHUANIA’S LAW “ON THE AMENDMENT AND SUPPLEMENT OF THE REPUBLIC OF LITHUANIA’S LAW ON STATE SOCIAL INSURANCE PENSIONS” WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA, AS WELL AS ON THE COMPLIANCE OF ITEM 84 OF THE REGULATIONS OF THE GRANTING AND PAYMENT OF STATE SOCIAL INSURANCE PENSIONS AS APPROVED BY THE 18 NOVEMBER 1994 RESOLUTION (NO. 1156) OF THE GOVERNMENT OF THE REPUBLIC OF LITHUANIA WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA AND PARAGRAPH 4 (WORDING OF 18 JULY 1994) OF ARTICLE 45 OF THE REPUBLIC OF LITHUANIA’S LAW ON STATE SOCIAL INSURANCE PENSIONS

3 December 2003
Vilnius

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

The court reporter—Daiva Pitrėnaitė

Jurgita Meškienė and Daiva Petrylaitė, senior consultants of the Legal Department of the Office of the Seimas, acting as the representatives of the Seimas of the Republic of Lithuania, a party concerned, Svetlana Černuševič, Head of the Pensions’ Division of the Department for Social Insurance and Pensions at the Ministry of Social Security and Labour of the Republic of Lithuania, acting as the representative of the Government of the Republic of Lithuania, a party concerned

The Constitutional Court of the Republic of Lithuania, pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, on 18 November 2003, in its public hearing, considered case No. 47/2001-08/2003-20/2003-32/2003-38/2003 subsequent to the following petitions:

1) the 10 October 2001 petition of the Vilnius Regional Administrative Court, a petitioner, requesting an investigation into whether Article 32 of the Republic of Lithuania’s Law on State Social Insurance Pensions is not in conflict with the principles of a just civil society and state under the rule of law as consolidated in the Preamble to the Constitution of the Republic of Lithuania, as well as Articles 29 and 52 of the Constitution;

2) the 5 December 2002 petition of the Supreme Administrative Court of Lithuania, a petitioner, requesting an investigation into whether Item 84 of the Regulations of the Granting and Payment of State Social Insurance Pensions as approved by the 18 November 1994 resolution (No. 1156) of the Government of the Republic of Lithuania is not in conflict with Item 2 of Article 94 of the Constitution of the Republic of Lithuania and Paragraph 4 of Article 45 of the Republic of Lithuania’s Law on State Social Insurance Pensions;

3) the 15 April 2003 petition of the Vilnius Regional Administrative Court, a petitioner, requesting an investigation into whether the provisions of Paragraph 3 of Article 3 of the Republic of Lithuania’s Law on State Pensions, which limit the payment of the total sum of the granted state pensions and state social insurance pensions to the same person, without exceeding the 1.5 amount of the statistical average monthly salary in the economy of the country, which is paid in the quarter before last that precedes the month when state pension is paid, are not in conflict with the principle of a state under the rule of law, which is consolidated in the Preamble to the Constitution of the Republic of Lithuania, as well as Articles 23 and 52 of the Constitution of the Republic of Lithuania;

4) the 28 July 2003 petition of the Supreme Administrative Court of Lithuania, a petitioner, requesting an investigation into whether Articles 1 and 3, Paragraph 2 of Article 6, Item 2 of Paragraph 1 of Article 17 and Paragraph 1 of Article 19 of the Republic of Lithuania’s Law on State Social Insurance Pensions are not in conflict with Articles 52 and 29 of the Constitution of the Republic of Lithuania;

5) the 8 October 2003 petition of the Supreme Administrative Court of Lithuania, a petitioner, requesting an investigation into whether Paragraph 2 of Article 48 of the Republic of Lithuania’s Law on State Social Insurance Pensions, by which the same article was supplemented by the 4 July 1995 Republic of Lithuania’s Law “On the Amendment and Supplement of the Republic of Lithuania’s Law on State Social Insurance Pensions”, which established that “while recalculating the granted pensions, the coefficient of the insured income of a person shall be not larger than 5”, as well as whether Item 4 of the 28 September 1995 the Republic of Lithuania’s Law “On the Law on the Amendment and Supplement of the Republic of Lithuania’s Law on State Social Insurance Pensions”, whereby Paragraph 4 (wording of Law No. I-549 of 18 July 1994) of Article 50 of the Republic of Lithuania’s Law on State Social Insurance Pensions, which used to establish that “the amount of recalculated <...> pension is not limited” was recognised as no longer valid, is not in conflict with the constitutional principle of a state under the rule of law and the provision of Article 52 of the Constitution of the Republic of Lithuania that the state shall guarantee the right to receive an old age pension and the provisions of Article 23 of the Constitution of the Republic of Lithuania concerning the inviolability of property and protection of the rights of ownership.

By the Constitutional Court’s decision of 6 May 2003, the 10 October 2001 petition of the Vilnius Regional Administrative Court and the 5 December 2002 petition of the Supreme Administrative Court of Lithuania were joined into one case and it was given reference No. 47/2001-08/03.

By the Constitutional Court’s decision of 29 October 2003, the 5 December 2002, 28 July 2003 and 8 October 2003 petitions of the Supreme Administrative Court of Lithuania and the 10 October 2001 and 15 April 2003 petitions of the Vilnius Regional Administrative Court were joined into one case and it was given reference No. 47/2001-08/2003-20/2003-32/2003-38/2003.

The Constitutional Court

has established:

I

1. On 18 July 1994, the Seimas adopted the Law on State Social Insurance Pensions (Official gazette Valstybės žinios, 1994, No. 59-1153).

On 22 December 1994, the Seimas adopted the Law on State Pensions (Official gazette Valstybės žinios, 1994, No. 101-2018).

By Item 1 of the Resolution (No. 1156) “On the Approval of the Regulations of the Granting and Payment of State Social Insurance Pensions” of 18 November 1994, the Government approved the Regulations of the Granting and Payment of State Social Insurance Pensions (hereinafter also referred to as the Regulations).

2. The Vilnius Regional Administrative Court, a petitioner, considered an administrative case. The court suspended the consideration of the case by its ruling and applied to the Constitutional Court with the petition requesting an investigation into whether Article 32 of the Law on State Social Insurance Pensions was not in conflict with the principles of a just civil society and state under the rule of law as consolidated in the Preamble to the Constitution, as well as Articles 29 and 52 of the Constitution.

3. The Supreme Administrative Court of Lithuania, a petitioner, considered an administrative case. The court suspended the consideration of the case by its ruling and applied to the Constitutional Court with the petition requesting an investigation into whether Item 84 of the Regulations of the Granting and Payment of State Social Insurance Pensions as approved by government resolution No. 1156 of 18 November 1994 was not in conflict with Item 2 of Article 94 of the Constitution and Paragraph 4 of Article 45 of the Law on State Social Insurance Pensions.

4. The Vilnius Regional Administrative Court, a petitioner, considered an administrative case. The court suspended the consideration of the case by its ruling and applied to the Constitutional Court with the petition requesting an investigation into whether the provisions of Paragraph 3 of Article 3 of the Law on State Pensions, which limit the payment of the total sum of the granted state pensions and state social insurance pensions to the same person, without exceeding the 1.5 amount of the statistical average monthly salary in the economy of the country, which is paid in the quarter before last that precedes the month when the state pension is paid, were not in conflict with Articles 23 and 52 of the Constitution as well as the principle of a state under the rule of law, which is consolidated in the Preamble to the Constitution.

5. The Supreme Administrative Court of Lithuania, a petitioner, considered an administrative case. The court suspended the consideration of the case by its ruling and applied to the Constitutional Court with the petition requesting an investigation into whether Articles 1 and 3, Paragraph 2 of Article 6, Item 2 of Paragraph 1 of Article 17 and Paragraph 1 of Article 19 of the Law on State Social Insurance Pensions were not in conflict with Articles 52 and 29 of the Constitution.

6. The Supreme Administrative Court of Lithuania, a petitioner, considered an administrative case. The court suspended the consideration of the case by its ruling and applied to the Constitutional Court with the petition requesting an investigation into whether Paragraph 2 of Article 48 of the Law on State Social Insurance Pensions, whereby the same article was supplemented by the 4 July 1995 Law “On the Amendment and Supplement of the Republic of Lithuania’s Law on State Social Insurance Pensions”, which established that “while recalculating the granted pensions, the coefficient of the insured income of a person shall be not larger than 5”, as well as whether Item 4 of the 28 September 1995 of the Law “On the Amendment and Supplement of the Republic of Lithuania’s Law on State Social Insurance Pensions”, whereby Paragraph 4 (wording of the law of the 18 July 1994) of Article 50 of the Law on State Social Insurance Pensions, which used to establish that “the amount of recalculated <...> pension is not limited” had been recognised as no longer valid, was not in conflict with the constitutional principle of a state under the rule of law and the provision of Article 52 of the Constitution that the state shall guarantee the right to receive an old age pension and the provisions of Article 23 of the Constitution concerning the inviolability of property and protection of the right of ownership.

II

1. The 10 October 2001 petition of the Vilnius Regional Administrative Court, a petitioner, is based on the following arguments.

Article 32 of the Law on State Social Insurance Pensions establishes the limitation on the payable disability pensions, which have been granted to invalids of pensionary age, if compared to invalids who have not reached the age entitling to the old age pension.

In the opinion of the petitioner, such limitation on the amount of the disability pension payable to invalids of pensionary age violates the principles of the equality of rights and non-discrimination of a just civil society and state under the rule of law. Thus, there exist grounds to assume that the impugned provisions of the law restrict the equality of social status of the person before the law and violate the right of citizens to receive the disability pension, which is guaranteed by the state. Therefore, the legal regulation which is established by the impugned provisions is in conflict with the principles of a just civil society and state under the rule of law as consolidated in the Preamble to the Constitution, as well as Article 29 of the Constitution, which consolidates the principles of the equality of rights and non-discrimination, and Article 52 of the Constitution, which consolidates the right of citizens to receive old age and disability pensions guaranteed by the state.

2. The 5 December 2002 petition of the Supreme Administrative Court of Lithuania, a petitioner, is based on the following arguments.

In the opinion of the petitioner, Item 84 of the Regulations of the Granting and Payment of State Social Insurance Pensions establishes that persons, who had been granted the service time pensions prior to 1 January 1995, and who, after granting of this pension, but not later than until 1 January 1995, had reached the age entitling to an old age pension or who were invalids, may submit the data concerning their salary for the time periods specified in Item 82 of the regulations. The data is necessary for recalculation of the granted pension. Thus, in the opinion of the petitioner, according to the requirements of the Regulations, it is possible to recalculate the service time pension, which had been granted before the entry into force of the Law on State Social Insurance Pensions, only to the persons who had reached the age entitling to an old age pension prior to 1 January 1995, while recalculation of the service time pensions to the persons who reached this age after that date is not provided for. According to Item 84 of the Regulations of the Granting and Payment of State Social Insurance Pensions as approved by government resolution No. 1156 of 18 November 1994, while taking account of the moment of reaching the age entitling to an old age pension, different legal regulation from that provided for by law is established for the subsequent payment of the granted pensions for served time period. Therefore, there exist grounds to assume that the Law on State Social Insurance Pensions and the Regulations of the Granting and Payment of State Social Insurance Pensions as approved by the Government regulate the same legal relations in a different manner. Thus, a doubt arises as to whether Item 84 of the Regulations of the Granting and Payment of State Social Insurance Pensions is in conformity with Paragraph 4 of Article 45 of the Law on State Social Insurance Pensions. While having doubts as to the compliance of the government resolution with the law, a question of the compliance of this act with the Constitution arises as well. Under Item 2 of Article 94 of the Constitution, the Government must execute laws and resolutions of the Seimas concerning the implementation of laws, as well as the decrees of the President of the Republic. Item 2 of Article 67 of the Constitution provides that the Seimas shall pass laws. The Government, while executing the authorisation of the legislature to establish a certain procedure, may establish only such legal regulation, which is not in conflict with the laws. Substatutory legal acts may be adopted in accordance with the laws and may not be in conflict with them.

In the opinion of the petitioner, Item 84 of the Regulations of the Granting and Payment of State Social Insurance Pensions as approved by government resolution No. 1156 of 18 November 1994 is in conflict with Item 2 of Article 94 of the Constitution and Paragraph 4 of Article 45 of the Law on State Social Insurance Pensions.

3. The 15 April 2003 petition of the Vilnius Regional Administrative Court, a petitioner, is based on the following arguments.

The petitioner maintains that the provisions of Paragraph 3 of Article 3 of the Law on State Pensions limit the payment of the total sum of the granted state pensions and state social insurance pensions to the same person, without exceeding the 1.5 amount of the statistical average monthly salary in the economy of the country, which is paid in the quarter before last that precedes the month when the state pension is paid.

In the opinion of the petitioner, such limitation on the amount of the state pension to persons, who have been granted the state pension or state social insurance pension, by not paying the total sum of them, violates the constitutional principle of a state under the rule of law, because the person loses part of pension payments which belong to him.

Thus, in the opinion of the petitioner, there exist grounds to assume that the impugned provisions of the law violate the right of the person to possession and the right of citizens to receive the whole granted pension, which is guaranteed by the state, and are in conflict with Articles 23 and 52 of the Constitution, as well as the principle of a state under the rule of law as consolidated in the Preamble to the Constitution.

4. The 28 July 2003 petition of the Supreme Administrative Court of Lithuania is based on the following arguments.

According to the impugned provisions, the granting and payment of the old age pension depend not only on the corresponding age of a person and the social insurance period in general, but also on the social insurance period, which is determined by a concrete minimum limit, thus, the constitutionality of such a provision is doubtful. Article 52 of the Constitution consolidates the right of each citizen to social protection and forms of such protection, one of which is the old age pension. The formulation “the State shall guarantee” means that the types of pensions and social assistance guaranteeing the right of citizens to social protection, which are specified and not specified in Article 52 of the Constitution, must be established precisely by law, establishing sufficient means for the implementation and legal defence of this right. Article 52 of the Constitution provides for one of the pension types––old age pension, which is the object of the dispute in the administrative case. This pension as established by the Republic of Lithuania’s Law on State Social Insurance, is paid from the funds, which are accumulated on the basis of social insurance, but the payment of contributions of social insurance implies the right of a person to receive an old age pension of the corresponding amount, but this amount may not depend on the paid social insurance contributions. The Constitution guarantees the right of every citizen, who has reached the established age and has paid social insurance contributions, to receive the pension established by law.

In the opinion of the petitioner, the condition, which is established by the Law on State Social Insurance Pensions, which pre-supposes the necessity to have a minimum social insurance period, limits the right of a person, who has any social insurance period, but which is shorter than that established by the said law, to the social guarantee––old age pension, which is guaranteed by the state and entrenched in Article 52 of the Constitution. According to the petitioner, the impugned provisions of the law, while relating the right of the person to the old age pension with the minimum state social insurance period, thus deprive the persons, who have no such period, of the right to social provision––old age pension, which is guaranteed by the Constitution, and discriminate them with respect to other persons, who have the minimum social insurance period and thus acquire the right to the old age pension, and this, in the opinion of the petitioner, is in conflict with the principle of the equality of all persons, which is entrenched in Paragraphs 1 and 2 of Article 29 of the Constitution.

5. The 8 October 2003 petition of the Supreme Administrative Court of Lithuania, a petitioner, is based on the following arguments.

In the opinion of the petitioner, the persons, to whom these amendments of the Law on State Social Insurance Pensions have been applied and upon the calculation of the coefficient, which was established not larger than 5, due to such amendments of the law suffered restrictions of property nature, which had established that the maximum size of the coefficient of insured income of the person is 5 and had abolished the rule that the amount of recalculated pension is not limited, meanwhile, the compliance of such legal regulation with the constitutional principle of a state under the rule of law, which consists of such elements as the protection of legitimate expectations, legal certainty and legal security, and with the constitutional provision that the state shall guarantee the right to receive an old age pension, as well as with the provisions of Article 23 of the Constitution concerning the inviolability of property and the protection of the right of ownership, is doubtful.

Paragraph 2 of Article 48 of the Law on State Social Insurance Pensions, whereby the same article was supplemented by the 4 July 1995 Law “On the Amendment and Supplement of the Republic of Lithuania’s Law on State Social Insurance Pensions”, which established that “while recalculating the granted pensions, the coefficient of the insured income of a person shall be not larger than 5”, as well as Item 4 of the 28 September 1995 of the Law “On the Amendment and Supplement of the Republic of Lithuania’s Law on State Social Insurance Pensions”, whereby Paragraph 4 (wording of the law of 18 July 1994) of Article 50 of the Law on State Social Insurance Pensions, which used to establish that “the amount of recalculated <...> pension is not limited” was recognised as no longer valid, is in conflict with the constitutional principle of a state under the rule of law and the provision of Article 52 of the Constitution that the state shall guarantee the right to receive an old age pension and the provisions of Article 23 of the Constitution concerning the inviolability of property and protection of rights of ownership.

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, a party concerned, who was Seimas member Algirdas Sysas. It is maintained in the explanations that systems of state social insurance pensions are based on solidarity, when a part of salaries of the working generation of people is assigned for the payment of state social insurance pensions. Thus, the balance between contributions and payments is necessary for successful functioning of this system, which is possible to achieve only in case of sufficient contributions to the budget of the State Social Insurance Fund and corresponding payments, which are well financially grounded. In the opinion of the representative of the Seimas, the limitation on the amount of the coefficient of the insured income has no influence on the right of citizens to receive an old age pension. The amount of the coefficient of the insured income influences only the amount of pensions, thus, the impugned provisions of the Law on State Social Insurance Pensions concerning the coefficient of the insured income, which is not larger than 5, are not in conflict with the Constitution.

2. In the course of the preparation of the case for the Constitutional Court hearing written explanations were received from the representative of the Seimas, a party concerned, who was Jadvyga Andriuškevičiūtė, the chief consultant of the Legal Department of the Office of the Seimas. It is maintained in the explanations that the state, while guaranteeing the constitutional rights of citizens, has established such a solidarity principle based system, when able-bodied persons must pay contributions, while the persons who cannot take care of themselves due to objective reasons are entitled to assistance. Taking account of the constitutional provisions, it would be unjust from the social standpoint to allocate some funds to a person, who is working and has income, if those funds would be taken from a person who is studying, undergoing treatment or is unemployed and has no other income except that, which is received as social payments. In the opinion of the representative of the party concerned, Article 32 of the Law on State Social Insurance Pensions is not in conflict with the Constitution.

3. In the course of the preparation of the case for the Constitutional Court hearing written explanations were received from the representative of the Seimas, a party concerned, who was J. Meškienė, a senior consultant of the Legal Department of the Office of the Seimas wherein it is maintained that the principle of a state under the rule of law as entrenched in the Preamble to the Constitution should be related with the principle of protection of legitimate expectations, the essence of which has been exhaustively disclosed in the constitutional jurisprudence. According to it, the constitutional principle of the protection of legitimate expectations means that in cases when a certain remuneration for work has been established for a person by legal acts, then this remuneration must be paid throughout the duration of the established time, i.e. that the rights acquired under the valid legal acts will be retained for the established period of time and will be implemented. The principle of a state under the rule of law does not negate the discretion of the legislature to establish the amount of the pension (as well as the maximum amount of the pensionary payment or the sum of such payments), as well as the constants which direct these amounts, therefore, Paragraph 3 of Article 3 of the Law on State Pensions is not in conflict with the Constitution.

4. In the course of the preparation of the case for the Constitutional Court hearing written explanations were received from the representative of the Seimas, a party concerned, who was D. Petrylaitė, a senior consultant of the Legal Department of the Office of the Seimas. It is maintained in the explanations that following the restoration of the independence, the creation of the social insurance system has been initiated, whereby it was intended to pass from the “maintenance” which was rendered by the state to the residents, who cannot work and have no permanent income, to the rights to payments acquired by their contributions, which are provided for by law. The definition of social protection is the most acceptable, where it is defined as the whole of means, which create the solidarity between people who have lost working income or have some extraordinary expenses. A worldwide dominant social insurance model which is based on the principle of solidarity (young, healthy people assign a part of their income to those who are not able to work and earn due to the old age, disability, illness or loss of job) is functioning in Lithuania. Social insurance guarantees are granted from the funds which are accumulated from working people at the current time period. This is so called PAYG system. The right to receive such payments is acquired only by persons who paid insurance contributions for a certain time period, while those who did not, may expect only the state support. The laws in Lithuania relate the right to receive one or another payment of this insurance first of all with a correspondent social insurance period, which a person has. The concept of social justice means that, while observing the principles of universality and solidarity, social security has to be guaranteed for all members of society, together assigning more responsibility to an individual for his own social security. Alongside, the state encourages individuals to influence their future social security standards by themselves. In case of this impugned law, attention should be paid to the fact that valid laws establish the duty of a person to have a certain state social insurance period not only in case of state social insurance of pensions. The corresponding requirement is applied also to persons who claim for social insurance benefits of sickness, of motherhood and motherhood (fatherhood), etc. D. Petrylaitė pays attentions to the fact that the requirement to have a certain social insurance period before applying for granting of an old age pension is also provided for in the European Social Code, Paragraph 2 of Article 29 whereof establishes a minimum 15 year period of payment of the contributions or work according to a job contract. Taking account of these circumstances, it should be concluded that the norms of the Law on State Social Insurance Pensions, which establish the minimum 15 years period of social insurance of pensions, are not in conflict with the Constitution.

5. In the course of the preparation of the case for the Constitutional Court hearing written explanations were received from the representative of the Government, a party concerned, who was S. Černuševič, Head of the Pensions’ Division of the Department for Social Insurance and Pensions at the Ministry of Social Security and Labour. It is maintained in the explanations that in case of the impugned issue the petitioner did not assess the entirety of the provisions of the legal regulation of state social insurance pensions and, without taking account of the impugned provisions, groundlessly related the provisions of Item 84 of the Regulations with Paragraph 4 of Article 45 of the Law on State Social Insurance Pensions. Meanwhile, the impugned item of the Regulations is intended to implement Paragraph 1 of Article 45 of this law, which provides that, upon entering into force of this law, only old age and disability pensions may be recalculated according to its provisions, i.e. the pensions of persons who had reached the age entitling to an old age pension prior to 1 January 1995 or who were recognised invalids. It should be concluded that a recipient of the service time pension, who has reached the age entitling to an old age pension after the entry into force of the Law on State Social Insurance Pensions, may be granted an old age pension only according to the common procedure, without recalculation of the previously paid service time pension. The inaccurate formulation of Paragraph 4 of Article 45 of the Law on State Social Insurance Pensions created possibilities for its different interpretations.

6. In the course of the preparation of the case for the Constitutional Court hearing written explanations were received from the representative of the Government, a party concerned, who was Jovita Litvaitienė, Deputy Head of the Pensions Division of the Board of the State Social Insurance Fund. It is maintained in the explanations that both, the former and the valid formulations of Paragraph 4 of Article 45 of the Law on State Social Insurance Pensions are in fact identical in their contents, they establish a provision of one-off application, which regulate recalculation of the pensions which had been granted prior to the entry into force of the Law on State Social Insurance Pensions, therefore, it is applied only to those recipients of the service time pensions who had acquired the right to an old age or disability pension before the entry into force of this law, i.e. prior to 1 January 1995. Those who have reached the age entitling to an old age pension after 1 January 1995, are granted an old age pension and calculated according to the articles of the Law on State Social Insurance Pensions, which regulate the granting of an old age pension, but not the recalculation of a service time pension. Upon specifying the formulation of this norm, the legislature only confirmed that this was a norm of one-off application. In the opinion of J. Litvaitienė, the representative of the Government, Item 84 of the Regulations are not in conflict with the Law on State Social Insurance Pension and the Constitution.

7. In the course of the preparation of the case for the Constitutional Court hearing written explanations were received from the representative of the Government, a party concerned, who was Dalia Cirtautienė, the chief specialist of the Pensions Division of the Board of the State Social Insurance Fund. It is maintained in the explanations that the wording of Paragraph 4 of Article 45 of the Law on State Social Insurance Pensions, which is in force as from 1 January 2003, establishes that the service time pension is recalculated into the state social insurance old age or disability pension only in case its recipient had reached the age entitling to an old age pension according to this law, or had been recognised disabled before the entry into force of this law. In the opposite case, the granted pension is paid to the pensioner indexing it according to the procedure which is established in Article 50 of this law. The impugned Item 84 of the Regulations provides: “Persons who had been granted the service time pensions prior to 1 January 1995 and who, after granting of this pension, but not later than until 1 January 1995, had reached the age entitling to an old age pension (men—60 years, women—55 years) or who were invalids, may submit the data concerning their salary for the time periods specified in Item 82 of these regulations. In this case corresponding 60-month time periods are calculated until the day of reaching the age entitling to an old age pension or until the day of establishment of disability, while 24-month periods—after reaching the age entitling to an old age pension or until the day of establishment of disability, but not longer than until 1 January 1995.” The impugned item of the Regulations establishes no new rules, i.e. the impugned resolution neither amends, nor broadens the contents of the impugned law, it contains no such legal norms, which compete with norms of the impugned law. Both, the previously effective and the valid formulations of the impugned law are identical, because they consolidate a norm of one-off application, which regulates recalculations of the pensions, which had been granted before the entry into force of the law, and which is applied only to those persons who enjoyed the right to an old age or disability pension on the day of the entry into force of the impugned law. Persons, who have reached the age entitling to an old age pension after 1 January 1995, are granted a pension according to articles of the impugned law, which regulate the granting of the old age pension, but not the recalculation of the pension. Thus, the valid formulation (as from 1 January 2003) of the law only specified the will of the legislature concerning the one-off application of this provision. Therefore, D. Cirtautienė comes to the conclusion that the impugned resolution does not change the content of the impugned law and is not in conflict with the Constitution.

IV

In the course of the preparation of the case for the Constitutional Court hearing written explanations were received from Algirdas Sysas, Chairperson of the Seimas Committee of Social Affairs and Labour, Vilija Blinkevičiūtė, Minister of Social Security and Labour of the Republic of Lithuania, Virgilijus Bulovas, Minister of the Interior of the Republic of Lithuania, Gintaras Švedas, Vice-minister of Justice, Paulius Koverovas, State Secretary of the Ministry of Justice, Mindaugas Mikaila, Director of the Board of the State Social Insurance Fund, Dalius Prevelis, the then Director of the Board of the State Social Insurance Fund, Česlava Zabulėnienė, the then temporarily acting Director of the Board of the State Social Insurance Fund, Dana Migaliova, Chairperson of the Association for the Care of Mentally Disturbed People of Lithuania and Audrius Jasiūnas, a lawyer of this association, Romualdas Užmiškis, Chairperson of the Board of the Civil Aviation Pilots Association of Lithuania, and Sergej Barickij, Chairperson of the Board of Flight Captains Association of Lithuania.

V

At the Constitutional Court hearing, J. Meškienė and D. Petrylaitė, acting as the representatives of the Seimas, a party concerned, and S. Černuševič, acting as the representative of the Government, a party concerned, virtually reiterated the arguments set forth in their written explanations to the Constitutional Court.

The Constitutional Court

holds that

I

1. On 18 July 1994, the Seimas adopted the Law on State Social Insurance Pensions. This law has been amended and/or supplemented more than once.

On 22 December 1994, the Seimas adopted the Law on State Pensions. This law has been amended and/or supplemented more than once.

By its Resolution (No. 1156) “On the Approval of the Regulations of the Granting and Payment of State Social Insurance Pensions” of 18 November 1994, the Government approved the Regulations of the Granting and Payment of State Social Insurance Pensions, which were subsequently amended and/or supplemented for several times.

2. By its 10 October 2001 ruling, the Vilnius Regional Administrative Court, a petitioner, requests an investigation into whether Article 32 of the Law on State Social Insurance Pensions is not in conflict with Articles 29 and 52 of the Constitution, and the constitutional principle of a state under the rule of law.

By its 5 December 2002 ruling, the Supreme Administrative Court of Lithuania, a petitioner, requests an investigation into whether Item 84 of the Regulations of the Granting and Payment of State Social Insurance Pensions as approved by government resolution No. 1156 of 18 November 1994 is not in conflict with Item 2 of Article 94 of the Constitution and Paragraph 4 of Article 45 of the Law on State Social Insurance Pensions.

By its 15 April 2003 ruling, the Vilnius Regional Administrative Court, a petitioner, requests an investigation into whether the provisions of Paragraph 3 of Article 3 of the Law on State Pensions are not in conflict with Articles 52 and 23 of the Constitution, and the constitutional principle of a state under the rule of law.

By its 28 July 2003 ruling, the Supreme Administrative Court of Lithuania, a petitioner, requests an investigation into whether the provisions of Article 1 (wordings of 18 July 1994 and 21 January 2003), Article 3 (wording of 18 July 1994), Paragraph 2 of Article 6 (wording of 22 October 1998), Item 2 of Paragraph 1 of Article 17 (wording of 1 July 1999) and Paragraph 1 of Article 19 (wording of 18 July 1994) are not in conflict with Article 52 and 29 of the Constitution.

By its 8 October 2003 ruling, the Supreme Administrative Court of Lithuania, a petitioner, requests an investigation into whether the provisions of Paragraph 2 (wording of 4 July 1995) of Article 48 of the Law on State Social Insurance Pensions and Item 4 of the Law “On the Amendment and Supplement of the Republic of Lithuania’s Law on State Social Insurance Pensions” which was adopted on 28 September 1995 are not in conflict with Articles 52 and 23 of the Constitution.

II

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

1.1. Article 52 of the Constitution establishes the grounds for pensionary maintenance and social assistance. According to this article of the Constitution, the legislature must establish, by law, old age and disability pensions, as well as social assistance in the event of unemployment, sickness, widowhood, and loss of breadwinner. In addition, according to the Constitution, other pensions and social assistance than those specified in Article 52 of the Constitution may be established by law (the Constitutional Court’s rulings of 23 April 2002, 25 November 2002, and 4 July 2003). It has to be noted that, under the Constitution, the bases of pensionary maintenance, persons, to whom pensions are granted and paid, conditions of granting and payment of pensions, as well as the amounts of pensions have to be established only by law. The legislature, while adopting laws concerning pensionary maintenance, is bound by the norms and principles of the Constitution.

1.2. The Constitutional Court has held in its rulings more than once that the provisions of Article 52 of the Constitution, which guarantee the right of the citizens to pensionary maintenance and social assistance, oblige the state to establish sufficient means for the implementation and legal protection of this right. This means that the law has not only to establish the types of pensions and social assistance which are specified in this article of the Constitution, but also guarantee the appropriate implementation and legal protection of the right of a human being to receive a pension or social assistance. Thus, the provisions of Article 52 of the Constitution imply the duty of the legislature to establish such a legal regulation, which would guarantee the accumulation of the funds that are necessary for pensions and social assistance, as well as the payment of these pensions and rendering of social assistance.

1.3. Old age and disability pensions are the types of pensions which are expressis verbis pointed out in Article 52 of the Constitution. In the context of the case at issue, it has to be noted that, while establishing, by law, the old age pension according to Article 52 of the Constitution, it must establish the age upon reaching which the person has the right to receive an old age pension, also the grounds, conditions and amounts of the awarding and payment of this pension, while establishing a disability pension to persons, to whom disablement has been established, the law must establish what is considered the disablement, as well as the grounds, conditions and amounts of the awarding and payment of this pension.

1.4. Under the Constitution, the state, as the organisation of the whole society, has the duty to take care of its members in the event of old age, disability, unemployment, sickness, loss of breadwinner and other cases provided for in the Constitution and laws. The means of social protection express the idea of solidarity of the society, help a person to protect himself from possible social risks.

It needs to be noted that in a civil society the principle of solidarity does not deny personal responsibility for one’s destiny, therefore, the legal regulation of social assistance must be such as to create preconditions and incentives for every member of society to take care of one’s own welfare by oneself, but not to rely solely on the social assistance guaranteed by the state. This means that it is impossible to construe the solidarity principle as establishing the discretion of the legislature to regulate the awarding and payment of old age pensions so that the amounts of old age pensions, when the system of old age pensions is based on social insurance, while creating the material preconditions of payment of such pensions, will not or will insignificantly depend on the amounts of contributions that have been paid. Payment of social insurance contributions implies the right of a person to receive an old age pension of the correspondent amount, and this amount may not depend on the paid social insurance contributions (the Constitutional Court’s ruling of 25 November 2002).

1.5. It has been mentioned that, according to the Constitution, other pensions, which are not directly named in the Constitution, may be established by law. For example, under the Law on State Pensions, the following state pensions are established in the Republic of Lithuania: the state pension of the President of the Republic, state pensions of the Republic of Lithuania of the first and second degree, state pensions of victims, state pensions of the officials and servicemen, state pensions of scientists, state pensions of judges. State pensions of the Republic of Lithuania of the first and second degree, as well as state pensions of victims are granted according to this law. State pensions of the President of the Republic, officials and servicemen, scientists and judges are granted according to special laws. In some cases state pensions are granted for a certain service (for instance, state pensions of the officials and servicemen), in other cases––for merits to the State of Lithuania (for instance, state pensions of the Republic of Lithuania of the first and second degree) or as a compensation to victims (for instance, to persons who became invalids as a result of the aggression perpetrated on 11–13 January 1991 and subsequent events, rehabilitated political prisoners and deportees, members of the resistance and participants of the opposition to the Soviet occupation, the persons who in the course of World War II were deported for forced labour purposes or were committed to ghettos and concentration camps, participants of World War II, the persons who participated in the elimination of the consequences of the accident at the Chernobyl Nuclear Power Station etc.) etc. The legislature, while establishing by law the bases of such pensionary maintenance, persons who are granted and paid these pensions, conditions of the granting and payment of pensions, as well as the amounts of pensions, must in every event obey the norms and principles of the Constitution. It has to be noted that if the legislature did not obey the Constitution, while establishing such pensionary maintenance (for example, if he granted state pensions to persons who may not be granted such pensions, established groundlessly large or small amounts of such pensions, or established ungrounded conditions of the granting and payment of such pensions), it would be impossible to defend such pensionary maintenance according to the Constitution.

1.6. In the context of the case under consideration it must be noted that the legislature, while establishing which persons are granted and paid the state pension, the grounds and conditions for granting and payment of the state pension, as well as the amounts of this pension, is bound by the constitutional imperative of social harmony, the principles of justice, reasonableness and proportionality. Granting and payment of a state pension may not become a privilege.

It also needs to be noted that state pensions differ in their nature and character from state social insurance pensions, as well as from the old age pension. These pensions are granted to persons for their service or merits to the State of Lithuania, as well as the compensation to victims specified in the law, and are paid from the State Budget. These peculiarities of state pensions imply the fact that the legislature, taking account of all significant circumstances and paying heed to the Constitution, may establish the maximum amount of such pensions. It needs to be noted that the legislature may consolidate various ways for the establishment of the maximum amount of such pension.

1.7. The provision “the State shall guarantee” of Article 52 of the Constitution means, inter alia, that, upon establishing certain pensionary maintenance by law, the state is obligated to guarantee it to the specified persons on the grounds and by the amounts which have been established by law, while the persons who meet the conditions provided by law, have the right to demand that the state grant and pay this pension to them. Thus, the said provision of Article 52 of the Constitution implies the duty of the legislature, when he establishes by law a certain pension, to consolidate such legal regulation which would ensure the payment of this pension to the persons who meet the conditions established by law.

1.8. While establishing the legal regulation, according to which persons who meet the conditions provided by law acquire the right to a certain pension established in the law, the state alongside accepts the duty to grant and pay this pension. The person who meets the conditions established by law has the right to demand that the state fulfil the obligation undertaken by law and pay the payments of the established amount.

1.9. Alongside, it should be noted that there might occur such an extreme situation in the state (economic crisis, natural disaster etc.) when there is objective lack funds for the fulfilment of the state functions and satisfying of public interests, as well as the payment of pensions. In such extraordinary cases the legal regulation of pensionary relations may be corrected also by reducing pensions to the extent that it is necessary to ensure vitally important interests of society and protect other constitutional values. The reduced pensions may only be paid on a temporary basis, i.e. only when there is an extraordinary situation in the state (the Constitutional Court’s rulings of 23 April 2002, 25 November 2002, and 4 July 2003). It needs to be noted that even in such extraordinary cases it is not permitted to reduce pensions in violation of the balance between the interests of the person and society; such reduction of pensions must be in line with the constitutional principle of proportionality.

2. The Constitution shall be an integral act (Paragraph 1 of Article 6 of the Constitution). The principles and norms of the Constitution compose a harmonious system. No provision of the Constitution may be construed so that the content of another constitutional provision would be distorted or denied, since the essence of the whole constitutional regulation would thus be distorted and the balance of values consolidated in the Constitution would thus be disturbed.

The provisions of Article 52 of the Constitution should be construed by taking account of other provisions of the Constitution, while in the context of the case at issue it must be done while taking into consideration of the constitutional principle of a state under the rule of law, the provisions of Articles 23 and 29 of the Constitution.

3. The constitutional principle of a state under the rule of law is a universal principle upon which the whole legal system of Lithuania and the Constitution of the Republic of Lithuania itself are based; the content of the principle of a state under the rule of law is disclosed in various provisions of the Constitution and is construed inseparably from the striving for an open, just and harmonious civil society which is declared in the Preamble to the Constitution.

3.1. Alongside with other requirements, the principle of a state under the rule of law consolidated in the Constitution also implies that human rights and freedoms must be secured, that all institutions implementing state authority and other state institutions must act while observing the law and in compliance with the law, that the Constitution has the supreme legal power and that laws, government resolutions and other legal acts must be in conformity with the Constitution. It has to be also noted that the constitutional principle of a state under the rule of law is inseparable from the principle of justice, and vice versa. The Constitutional Court has held in its rulings more than once that justice is one of the basic aims of law as a means of the 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, by escaping fortuity and arbitrariness, instability of social life and conflict of interests.

3.2. Inseparable elements of the principle of a state under the rule of law are the protection of legitimate expectations, legal certainty and legal security. These principles imply, inter alia, that the state must fulfil the undertaken obligations to the person. The Constitutional Court has held more than once that if the protection of legitimate expectations, legal certainty and legal security of the person were not ensured, the confidence of the person in the state and law would not be ensured.

One of the essential 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 the duty to ensure certainty and stability of legal regulation, to safeguard the rights of participants of legal relations, including the acquired rights as well as to respect legitimate expectations (the Constitutional Court’s rulings of 12 July 2001, 5 November 2002, 4 March 2003, 17 March 2003, and 4 July 2003). It also needs to be noted that, according to the Constitution, only those expectations of the person in relations with the state are protected and defended, which arise out of the Constitution itself or out of the laws and other legal acts that are not in conflict with the Constitution. Only these expectations of the person in relations with the state are considered legitimate.

One of the elements of the principle of legitimate expectations is the protection of rights which are acquired under the Constitution as well as laws and other legal acts which are not in conflict with the Constitution. It is noteworthy in the context of the case under consideration that persons who have acquired certain rights according to the law, have the right to reasonably expect that these rights will be retained and implemented for the established time period. It needs to be noted that, while changing legal regulation, it is necessary to observe the norms and principles of the Constitution, and, inter alia, the principle lex retro non agit, and that the rights and legitimate expectations acquired by the person may not be denied by changes in legal regulation. A person who meets the conditions established by law acquires the right to a pension established by law. This person may reasonably expect that this right will be protected and defended by the state. When the pension established by means of a law that is not in conflict with the Constitution is granted and paid, this right and legitimate expectation acquired by the person are also to be linked to the protection of the rights of ownership of this person.

3.3. Since the state must also observe the constitutional principles of the protection of legitimate expectations and legal certainty in the relations of pensionary maintenance, the amendments of the established legal regulation deteriorating the pensionary maintenance are possible only when there appears an extraordinary situation in the state (economic crisis, natural disaster etc.) when there is objective lack funds for the fulfilment of the state functions and satisfying of public interests, as well as the payment of pensions. These amendments must be necessary for the protection of other constitutional values and they can be done by law only, without violating the Constitution.

In its 4 July 2003 ruling the Constitutional Court noted that the constitutional protection of acquired rights and legitimate expectations does not mean that the system of pensionary maintenance established by law may not be reorganised. While reorganising this system, the Constitution must be observed in every case. The system of pensions may be reorganised only by law, only guaranteeing the old age and disability pensions provided for by the Constitution, as well as observing undertaken obligations by the state, which are not in conflict with Constitution, to pay corresponding payments to persons who meet the requirements established by law. If, while reorganising the pensionary system, the pensions established by means of laws which are not directly specified in Article 52 of the Constitution were eliminated, or the legal regulation of these pensions were amended in essence, the legislature would be obligated to establish a just mechanism for compensation of the existing losses to the persons who had been granted and paid such pensions.

4. Article 23 of the Constitution provides:

Property shall be inviolable.

The rights of ownership shall be protected by law.

Property may only be seized for the needs of society in accordance with the procedure established by law and shall be justly compensated for.”

4.1. While construing the provisions of Article 23 of the Constitution, the Constitutional Court has held more than once that the inviolability of property and protection of the rights of ownership mean, inter alia, that the owner, as the holder of subjective rights to property, has the right to require that other persons not violate his rights, as well as that the state have a duty to ensure the defence and protection of the rights of ownership.

4.2. It has been mentioned that the Constitution is an integral act, that its rules are interrelated and constitute a harmonious system. While disclosing the content of the constitutional institute of the protection of the rights of ownership, one has to take account not only of Article 23 of the Constitution, but also of other provisions of the Constitution which disclose different aspects of this constitutional concept of this right, as well as of Article 52 of the Constitution. In its 4 July 2003 ruling the Constitutional Court held that the requirements of a person to pay the payments of pensionary maintenance established by law are defended not only under Article 52 of the Constitution, but also under Article 23 of the Constitution. It needs to be noted that in that case the right to demand for the payments of pensionary maintenance which are established by the Constitution or laws that are not in conflict with the latter, arises also out of Article 52 of the Constitution, while under Article 23 of the Constitution the proprietary aspects of this right are defended.

4.3. It needs to be noted in the context of the case at issue that the state has the duty to fulfil those obligations of proprietary nature, which it has undertaken establishing by law such legal regulation according to which the person who meets conditions provided by law, acquires the right to a certain pension. Thus, the person, who meets the conditions established by law which entitle to an old age pension and who is granted and paid this pension, has the right to a pecuniary payment of a certain amount, i.e. the right to ownership. Under Article 23 of the Constitution, this right must be protected and defended.

4.4. Thus, under Article 23 of the Constitution, persons who have been granted and paid a pension established by means of a law or the Constitution have the right to demand that the payments be paid further to them in the amounts which were granted and paid previously. It goes without saying that the law which provides the grounds of such pensionary maintenance, persons who are granted and paid pensions, conditions for the granting and payment of pensions, as well as the amounts of pensions, must be in conformity with the norms and principles of the Constitution.

It has been mentioned that pensions which have been granted and paid under the Constitution may be reduced only in case of an extraordinary situation in the state (economic crisis, natural disaster etc.) when there is objective lack of funds for the fulfilment of the state functions and satisfying of public interests, as well as the payment of pensions. In this event the granted and paid pensions may be reduced to the extent that it is necessary to ensure vitally important interests of the society, protect other constitutional values. Alongside, it has to be noted that the reduced pensions may only be paid on a temporary basis. In addition, while implementing the reform of the pensionary system, some pensions may be eliminated, and the amounts of others may be reduced. In this case the legislature must establish a just mechanism for compensation to persons of the losses which have been incurred due to such amendment of the regulation. Otherwise, the legal regulation according to which the payment of the granted and paid pension is terminated or reduced, should be judged to be in violation of Paragraph 2 of Article 23 of the Constitution which provides that the rights of ownership shall be protected by law.

5. Article 29 of the Constitution provides:

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

The human being may not have his rights restricted, nor may be granted any privileges on the grounds of gender, race, nationality, language, origin, social status, beliefs, convictions, or views.”

5.1. Paragraph 1 of Article 29 of the Constitution consolidates the formal equality of all persons, the principle of non-discrimination and not granting of privileges to persons. The constitutional principle of the equality of persons before the law means an innate human right to be treated equally with the others.

5.2. In its rulings, the Constitutional Court has held many a time that this principle must be followed both in passing of laws and in their application. The said principle obliges one to legally assess homogeneous facts in the same manner and prohibits any arbitrary assessment of essentially the same facts in a different manner. It also needs to be noted that the principle of the equality of persons before the law does not deny an opportunity to provide in a law for different legal regulation in respect to certain categories of persons who are in different situations, and that the constitutional principle of the equality of persons before the law would be violated if a certain group of persons, to which a legal norm is addressed, would be treated in a different manner in comparison with other addressees of the same norm, though there exist no differences of such nature and scope between those two groups, which would objectively justify this different treatment.

5.3. The principle of the equality of all persons which is consolidated in Article 29 of the Constitution includes the prohibition on both discrimination and privileges. Discrimination is most often understood as a restriction on human rights according to gender, race, nationality, language, origin, social status, religion, convictions, opinions or other indications. However, differentiated legal regulation when it is applied to certain groups of persons which are distinguished by the same signs, and in case one strives for positive and socially meaningful goals, is not regarded as discrimination or privileges. Special requirements or certain conditions are not categorised as discriminative limitations, either, provided their establishment is related to peculiarities of regulated relations.

6. According to Item 2 of Article 94 of the Constitution, the Government “shall execute laws and resolutions of the Seimas concerning the implementation of laws, as well as the decrees of the President of the Republic”.

The norm provided by Item 2 of Article 94 of the Constitution means that the Government is obligated to execute laws and resolutions of the Seimas concerning the implementation of laws, as well as the decrees of the President of the Republic. It has to be noted that resolutions of the Seimas, decrees of the President of the Republic are substatutory acts which are issued on the basis of the Constitution and laws. While executing laws, resolutions of the Seimas concerning the implementation of laws, decrees of the President of the Republic, the Government issues substatutory acts––resolutions. In its 29 November 2001 ruling the Constitutional Court held that, under the Constitution, all questions of state administration which are categorised as the powers of the Government by the Constitution and laws, are decided by adopting resolutions, that the affairs of state administration may not be decided by the Government adopting an act of a different type.

While adopting resolutions, the Government must follow the Constitution and laws. Under the Constitution, a resolution of the Government is a substatutory legal act. It may not be in conflict with a law, change the content of the norms of a law, it may not contain any norms which would compete with the norms of a law.

III

On the compliance of Paragraph 1 (wordings of 18 July 1994 and 21 January 2003) of Article 1, Article 3 (wording of 18 July 1994), Paragraph 2 (wording of 22 October 1998) of Article 6, Item 2 of Paragraph 1 of Article 17 (wording of 7 July 1999) and Paragraph 1 of Article 19 of the Law on State Social Insurance Pensions with Articles 29 and 52 of the Constitution.

1. It has been mentioned that the Supreme Administrative Court of Lithuania, a petitioner, by its 28 July 2003 ruling requests an investigation into whether Paragraph 1 (wordings of 18 July 1994 and 21 January 2003) of Article 1, Article 3 (wording of 18 July 1994), Paragraph 2 (wording of 22 October 1998) of Article 6, Item 2 of Paragraph 1 of Article 17 (wording of 7 July 1999) and Paragraph 1 of Article 19 of the Law on State Social Insurance Pensions are not in conflict with Articles 29 and 52 of the Constitution.

The petitioner has doubts as to whether the legal regulation as established in the provisions of the said articles of the Law on State Social Insurance Pensions according to which the granting and payment of a state social insurance pension is related not only with the corresponding age of the person and the social insurance period, but also with the necessity to have the minimum period of social insurance of pensions, which is established for the old age pension.

2. Article 1 (wording of 18 July 1994) of the Law on State Social Insurance Pensions used to establish:

Permanent residents of the Republic of Lithuania who have been compulsory insured or insured themselves by the state social pension insurance shall have the right to receive the state social insurance pension.

Citizens of the Republic of Lithuania permanently residing abroad shall have the right to receive the state social insurance pension if it is established by international agreements or according to the procedure established by the Government of the Republic of Lithuania.

Foreign citizens and stateless persons permanently residing in Lithuania shall have the equal right to receive the state social insurance pension according to this law, if laws of the Republic of Lithuania or international agreements do not establish other conditions for pensionary maintenance of these persons.”

On 1 October 2002, by Article 1 of the Law on the Supplement of Article 1 of the Law on State Social Insurance Pensions, the Seimas supplemented Article 1 of the Law on State Social Insurance Pensions with Paragraph 4, while on 21 January 2003, by Article 1 of Chapter 2 of the Law on the Amendment and Supplement of the Law on the Implementation of the Citizenship Law, the Law on State Social Insurance Pensions, the Law on Benefit (Social) Pensions, the Provisional Law on the State Pensions of Scientists, the Law on State Pensions, the Seimas supplemented Article 1 of the Law on State Social Insurance Pensions with new Paragraph 2. The legal regulation, as entrenched in Paragraph 1 (wording of 18 July 1994) of Article 1 of the Law on State Social Insurance Pensions, was not amended.

Though the petitioner requests an investigation into the compliance of Article 1 (wordings of 18 July 1994 and 21 January 2003) of the Law on State Social Insurance Pensions with the Constitution, it is clear from the arguments set forth in the petition that he has doubts as to the constitutionality of Paragraph 1 (wording of 18 July 1994) of this article to the extent which is related with the necessity to have the minimum period of social pension insurance entitling to an old age pensions which is established by law.

Taking account of the arguments set forth in the petition by the petitioner, the Constitutional Court will investigate whether Paragraph 1 (wording of 18 July 1994) of Article 1 of the Law on State Social Insurance Pensions to the extent which is related with the necessity to have the minimum period of social pension insurance entitling to an old age pension which is established by law is not in conflict with Articles 52 and 29 of the Constitution.

3. Article 3 of the Law on State Social Insurance Pensions provides: “State social insurance pensions shall be granted to persons specified in Articles 1 and 2 if they meet the requirements of the state social pension insurance period established by this Law for the granting of the relevant type of pension and upon reaching the age established by this Law, are recognised as disabled, and in case on death of such persons––to the members of their families.”

Though the petitioner requests an investigation into the compliance of Article 3 of the Law on State Social Insurance Pensions with the Constitution, it is clear from the arguments set forth in the petition that he has doubts as to the constitutionality of the provision of Article 3 of the Law on State Social Insurance Pensions “State social insurance pensions shall be granted to persons <...> if they meet the requirements of the state social pension insurance period established by this Law for the granting of the relevant type of pension” to the extent with the necessity to have the minimum period of social pension insurance entitling to an old age pension which is established by law.

Taking account of the arguments set forth in the petition of the petitioner, the Constitutional Court will investigate whether the provision of Article 3 of the Law on State Social Insurance Pensions “State social insurance pensions shall be granted to persons <...> if they meet the requirements of the state social pension insurance period established by this Law for the granting of the relevant type of pension” is not in conflict with Articles 52 and 29 of the Constitution to the extent with the necessity to have the minimum period of social pension insurance entitling to an old age pension which is established by law.

4. Paragraph 2 (wording of 18 July 1994) of Article 6 of the Law on State Social Insurance Pensions used to establish: “The basic part of the state social insurance pension shall guarantee the minimum pensionary maintenance to persons who have the necessary state social pension insurance period established by this law and who meet other conditions established by this law.”

Article 6 of the Law on State Social Insurance Pensions has been later amended and supplemented more than once, however, the legal regulation as entrenched in Paragraph 2 (wording of 18 July 1994) has not been amended. On 22 October 1998, by Article 2 of the Law on the Amendment and Supplement of Articles 2, 6, 8, 27, 28, 29, 30, 32, 34, 36, 40, 45, 46, 47, 52 and 56 of the Law on State Social Insurance Pensions, the Seimas amended Paragraph 3 of Article 6 of the Law on State Social Insurance Pensions.

Though the petitioner requests an investigation into the compliance of Paragraph 2 (wording of 22 October 1998) of Article 6 of the Law on State Social Insurance Pensions with the Constitution, it is clear from the arguments set forth in the petition that he has doubts as to the constitutionality of Paragraph 2 (wording of 18 July 1994) to the extent which is related with the necessity to have the minimum period of social pension insurance entitling to an old age pension which is established by law.

Taking account of the arguments set forth in the petition of the petitioner, the Constitutional Court will investigate whether Paragraph 2 (wording of 18 July 1994) of Article 6 of the Law on State Social Insurance Pensions to the extent which is related with the necessity to have the minimum period of social pension insurance entitling to an old age pension which is established by law is not in conflict with Articles 52 and 29 of the Constitution.

5. Paragraph 1 (wording of 18 July 1994) of Article 17 of the Law on State Social Insurance Pensions used to establish:

A person shall be entitled to receive a state social insurance pension if he meets all following requirements:

1) reaches the age entitling to an old age pension established by this Law;

2) has the minimum state social pension insurance period which is established for the old age pension;

3) has no less that a 3-year state social pension insurance period within the last 5 years, or has a 1-year state social pension insurance period within the last 1 year, or has no less that a 35-year state social pension insurance period.”

5.1. On 7 July 1999, the Seimas adopted the Law on the Amendment and Supplement of Articles 2, 7, 12, 14, 17, 24, 26, 27, 28, 39, 40, 42, 43, 45, 49 and 51 of the Law on State Social Insurance Pensions (Official Gazette Valstybės žinios, 1999, No. 66-2115), by Article 5 whereof Article 17 of the State Social Insurance Pensions was amended, recognising Item 3 of Paragraph 1 and Paragraph 2 as no longer valid, former Paragraph 3 considering Paragraph 2, deleting the word and the number “and 3” from this Paragraph 2, and writing the word “of item” instead of “of items” and set it forth as follows:

Article 17. Right to receive the state social insurance pension

A person shall be entitled to receive a state social insurance pension if he meets all following requirements:

1) reaches the age entitling to an old age pension established by this Law;

2) has the minimum state social pension insurance period which is established for the old age pension;

A person must meet the requirements of Item 2 of Paragraph 1 of this article on the day he reaches the age entitling to an old age pension or the day he applies for a pension when the pension is applied for having already reached the age entitling to a pension.”

Thus, Item 2 of Paragraph 1 of Article 17 of the Law on State Social Insurance Pensions remained unchanged.

5.2. The Constitutional Court will investigate whether Item 2 of Paragraph 1 of Article 17 (wording of 17 July 1999) of the Law on State Social Insurance Pensions is not in conflict with the Constitution.

6. Paragraph 1 of Article 19 of the Law on State Social Insurance Pensions provides: “The minimum state social insurance period entitling to a state social insurance pension shall be 15 years.”

7. The provisions of the Law on State Social Insurance Pensions impugned by the petitioner are interrelated by the legal regulation established therein, according to which the minimum state social pension insurance period of the amount established by law, is the obligatory condition in order to receive an old age pension.

It has been mentioned that Article 52 of the Constitution guarantees the right of citizens to receive old age and disability pensions, as well as other social assistance. Therefore, a duty arises for the legislature not only to establish the types of the specified pensions, but also to consolidate such a legal regulation which would ensure the accumulation of funds, which are necessary for pensions and social assistance, and the payments of these pensions. Otherwise, the duty assigned to the state to establish sufficient means for the implementation and legal defence of the rights entrenched in the Constitution would not be realised. The social security means, as consolidated in the Constitution, express the idea of social solidarity––to help a person to protect himself from possible social risks. However, the principle of social solidarity in a civil society does not negate personal responsibility for one’s destiny, therefore, the legal regulation of social assistance must be such so as to create preconditions and incentives for every member of society to take care of one’s own welfare by oneself, but not to rely solely on the social assistance guaranteed by the state.

In its 25 November 2002 ruling the Constitutional Court held that it is impossible to construe the solidarity principle as establishing the discretion of the legislature to regulate the awarding and payment of old age pensions so that the amounts of old age pensions, when the system of old age pensions is based on social insurance, while creating the material preconditions of payment of such pensions, will not or will insignificantly depend on the amounts of contributions that have been paid.

The creation of material preconditions of the payment of old age pensions is determined both by the time period during which a person pays state social insurance contributions himself or someone pays contributions for him, and by the total amount of state social pension insurance contributions paid to the state social insurance budget. Thus, the total contribution of a person (total amount of the obligatory state social pension insurance contributions of a person) while creating material preconditions for the payment of a state social insurance pension, when the system of old age pensions is based on social insurance, could also be one of the criterion which should be taken into account while establishing the conditions for the receiving of the state social insurance pension.

The legal regulation, whereby too early or too late pensionary age entitling to a state social insurance pension would be established or whereby the grounds would be established for the granting of this pension distorting the meaning of a personal contribution while creating material preconditions for the payment of this pension or establishing conditions of the granting and payment of this pension, denying the participation of a person in the creation of material preconditions of the payment of this pension, would be in conflict with the Constitution.

While paying heed to the norms and principles of the Constitution, the legislature has the right to establish the minimum state social pension insurance period entitling to the state social insurance pension as one of the conditions for the receiving of such a pension. Alongside, it has to be noted that while establishing what conditions for the receiving of an old age pension the person who has reached the age entitling to an old age pension must meet, the legislature should take account of all important circumstances, as well as of the personal contribution while forming preconditions of the payment of an old age pension established in Article 52 of the Constitution. Otherwise, the legal regulation of old age pensions would be insufficient and simplex. It is also important that a person, having reached the age entitling to an old age pension would not be left without social assistance altogether.

8. While assessing whether the provisions of the articles of the Law on State Social Insurance Pensions are not in conflict with Article 52 of the Constitution, first of all one has to assess whether Paragraph 1 of Article 17 (wording of 7 July 1999) of this law, establishing that a person acquires the right to a state social insurance old age pension when he meets the following conditions: (1) reaches the age entitling to an old age pension established by this law; (2) has the minimum state social pension insurance period which is established for the old age pension, is not in conflict with it.

9. According to Paragraph 2 of Article 20 of the Law on State Social Insurance Pensions, if the person has not the obligatory state social insurance period but has the minimum state social insurance period entitling to an old age pension, the basic part of the state social insurance old age pension shall be calculated in proportion to the person’s insurance period by multiplying the basic pension and the available person’s insurance period and dividing by the obligatory insurance period.

Under the Law of State Social Insurance Pensions, the minimum state social pension insurance period entitling to a state social insurance pension is an obligatory condition which has to be met by a person who has reached the age entitling to an old age pension as established by the Law on State Social Insurance Pensions in order to grant and pay a state social insurance old age pension to him. Thus, a person who has not the minimum state social pension insurance period cannot be granted a state social insurance pension under to the Law on State Social Insurance Pensions.

10. Paragraph 1 of Article 8 of the Law on State Social Insurance Pensions provide that the insured person’s state social pension insurance period comprises a person’s state social pension insurance period acquired working under an employment contract, on the basis of membership or service, and a person’s state social pension insurance period acquired by self-employment.

The establishment of the minimum state social pension insurance period means that a person must be obligatory insured or insure himself by the state social pension insurance for a time period not less than that established by law.

11. It has been mentioned that according to Paragraph 1 of Article 17 (wording of 7 July 1999), the right of the person to receive a state social insurance old age pension is related with the age of the person and the established minimum state social pension insurance period entitling to an old age pension. According to Paragraph 1 (wording of 18 July 1994) of Article 19 of the Law on State Social Insurance Pensions, the minimum state social pension insurance period is 15 years. Thus, under the law, this 15-year period during which a person was obligatory insured or insured himself by the state social pension insurance is a condition for the receiving of an old age pension. It has been mentioned that the legislature, while paying heed to the norms and principles of the Constitution, may establish the minimum state social pension insurance period as one of the conditions for the receiving of a state social insurance pension.

While assessing the legal regulation established in Paragraph 1 (wording of 18 July 1994) of Article 19 of the Law on State Social Insurance Pension, according to which the minimum state social pension insurance period is 15 years, it should be held that there are no grounds to maintain that the establishment of the minimum 15-year state social pension insurance period as a condition for the receiving of an old age pension in itself is in conflict with Articles 52 and 29 of the Constitution, as well as the constitutional principle of a state under the rule of law.

12. According to Paragraph 1 of Article 17 (wording of 7 July 1999) of the Law on State Social Insurance Pensions, a person acquires the right to a state social insurance old age pension when he meets the following conditions: reaches the age entitling to an old age pension established by this law and has the minimum state social pension insurance period established for the old age pension.

It has been mentioned that if the system of old age pensions is based on social insurance, both the acquisition of the right to receive such a pension and its amount cannot be independent or little dependent on the personal contribution while creating material conditions for the payment of this pension. It has been mentioned that the personal contribution is determined by the amount of contributions of the state social pension insurance and time period which these contributions were paid to the State Social Insurance Fund Budget.

While establishing by Paragraph 1 of Article 17 (wording of 7 July 1999) of the Law on State Social Insurance Pensions the minimum state social pension insurance period entitling to an old age pension as an obligatory condition for the receiving of an old age pension for a person who has reached the age entitling to an old age pension established by this law, the legislature took account of an important criterion––time period during which these contributions were paid to the State Social Insurance Fund Budget. Thus, according to this legal regulation, a person has the right to receive an old age pension if he has reached the age entitling to an old age pension according to this law and if he has the minimum state social pension insurance period entitling to an old age pension. Therefore, in this case the sufficiency of personal contribution while creating material preconditions for receiving of an old age pension was taken into consideration.

While construing Article 52 of the Constitution, the constitutional principle of a state under the rule of law must be regarded as well. It needs to be noted that the principle of a state under the rule of law is inseparable from justice––one of the basic goals of the implementation of law as the means of regulation of social relations. Justice can be implemented by ensuring the balance of interests, avoiding coincidences and arbitrariness, confrontation of interests. Thus, the principle of a state under the rule of law, as entrenched in the Constitution, is inseparable from the imperative of justice and vice versa.

Virtually, by the legal regulation according to which the implementation of the right to the old age pension is related to the minimum state social pension insurance period, i.e. the time during which a person has been obligatory insured or insured himself by the state social pension insurance, the account is taken of personal contribution while creating material preconditions for the payment of old age pensions. Such legal regulation is not in conflict with Article 52 of the Constitution and the constitutional principle of a state under the rule of law.

13. Taking account of the arguments set forth, it should be concluded that Item 2 of Paragraph 1 of Article 17 (wording of 7 July 1999) of the Law on State Social Insurance Pensions is not in conflict with Articles 52 and 29 of the Constitution, and the constitutional principle of a state under the rule of law.

14. The petitioner doubts as to the compliance of the impugned Paragraph 1 of Article 1 (wording of 18 July 1994), the provision “state social insurance pensions shall be granted to persons <...> if they meet the requirements of the state social pension insurance period for the granting of respective type of the pension, established by this law” of Article 3 and the provisions of Paragraph 2 (wording of 18 July 1994) of Article 6 of the Law on State Social Insurance Pensions with the Constitution to the extent which relates the legal regulation consolidated therein with the necessity to have the minimum state social pension insurance period established by law for the old age pension. From this aspect the specified provisions of the law are inseparable from Item 2 of Paragraph 1 of Article 17 (wording of 7 July 1999) which, as the formerly valid Item 2 of Paragraph 1 (wording of 18 July 1994) of Article 17 of Law on State Social Insurance Pensions, used to establish that a person acquires the right to receive a state social insurance old age pension when he has, inter alia, the minimum state social pension insurance period which entitles to an old age pension according to the law.

Therefore, the compliance of Paragraph 1 of Article 1 (wording of 18 July 1994), the provision “state social insurance pensions shall be granted to persons <...> if they meet the requirements of the state social pension insurance period for the granting of respective type of the pension, established by this law” of Article 3 and the provisions of Paragraph 2 (wording of 18 July 1994) of Article 6 of the Law on State Social Insurance Pensions with Articles 52 and 29 of the Constitution, as well as the constitutional principle of a state under the rule of law is should be assessed according to the compliance of Item 2 of Paragraph 1 (wording of 7 July 1999) of Article 17 of Law on State Social Insurance Pensions with these articles of the Constitution and the constitutional principle of a state under the rule of law.

15. Having held that Item 2 of Paragraph 1 (wording of 7 July 1999) of Article 17 of Law on State Social Insurance Pensions is not in conflict with Articles 52 and 29 of the Constitution and the constitutional principle of a state under the rule of law, it should alongside be held that Paragraph 1 of Article 1 (wording of 18 July 1994) to the extent which is related to the necessity to have the minimum state social pension insurance period which entitles to an old age pension according to the law, the provision of “state social insurance pensions shall be granted to persons <...> if they meet the requirements of the state social pension insurance period for the granting of respective type of the pension, established by this law” Article 3 to the extent which is related to the necessity to have the minimum state social pension insurance period which entitles to an old age pension according to the law, and Paragraph 2 (wording of 18 July 1994) of Article 6 of the Law on State Social Insurance Pensions to the extent which is related to the necessity to have the minimum state social pension insurance period which entitles to an old age pension according to the law is also not in conflict with Articles 52 and 29 of the Constitution and the constitutional principle of a state under the rule of law.

IV

On the compliance of Paragraph 1 of Article 32 (wordings of 21 December 2000 and 8 May 2001) of the Law on State Social Insurance Pensions with Articles 29 and 52 of the Constitution, and the constitutional principle of a state under the rule of law.

1. Article 32 (wording of 18 July 1994) of the Law on State Social Insurance Pensions used to establish:

The disabled who have reached the age entitling to an old age pension (Articles 18 and 55) and those who are older shall be paid the full granted state social insurance disability pension irrespective of their income.

The disabled who have not reached the age entitling to an old age pension and who receive insured income shall be paid only the basic part of the state social insurance disability pension and only when they have the obligatory period for the disability pension.”

2. On 21 December 1994, by Article 3 of the Law “On the Amendment and Supplement of the Republic of Lithuania’s Law on State Social Insurance Pensions”, on 4 July 1995, by Article 3 of the Law “On the Amendment and Supplement of the Republic of Lithuania’s Law on State Social Insurance Pensions”, on 22 October 1998, by Article 8 of the Law on the Amendment and Supplement of Articles 2, 6, 8, 27, 28, 29, 30, 32, 34, 36, 40, 45, 46, 47, 52 and 56 of the Law on State Social Insurance Pensions, the Seimas amended and supplemented Paragraph 2 of Article 32 of the Law on State Social Insurance Pensions. Paragraph 1 of this article has not been amended.

3. On 21 December 2000, the Seimas adopted the Law on the Amendment of Articles 23 and 32 of the Law on State Social Insurance Pensions (Official Gazette Valstybės žinios, 2000, No. 111-3573), by Article 2 whereof Article 32 of the Law on State Social Insurance Pension was amended and set forth as follows:

Article 32. Payment of disability pensions to the disabled who receive the insured income

The disabled who have reached the age entitling to an old age pension (Articles 18 and 22) and those who are older, who, after granting of a state social insurance disability pension, receive income from which the obligatory state social pension insurance contributions are calculated and paid, or who receive state social insurance sickness benefits (including those paid by the employer for the days of sickness), motherhood, motherhood (fatherhood) or unemployment benefits (hereinafter also referred to as the insured income), if they have the obligatory state social pension insurance pension entitling to a disability pension (Article 28, Paragraph 1 of Article 46), shall be paid the basic part of the granted state social insurance disability pension (Paragraphs 2 and 4 of Article 29). Moreover, if their insured income constitute less than the 1.5 amount of minimum monthly salary, they shall be paid a part of the complementary part of the granted disability pension in the amount established in Paragraphs 1 and 2 of Article 23 of this law.

The disabled who have not reached the age entitling to an old age pension, who after granting the state social insurance disability pension have the insured income, if those disabled have the obligatory state social pension insurance period entitling to a disability pension, except for the disabled of the 1st group, to whom the requirement of the obligatory period while paying a pension is not applied, shall be paid:

1) the disabled of the 1st group––the whole granted state social insurance disability pension irrespective of the insured income;

2) the disabled of the 2nd and 3rd groups whose insured income does not exceed the 1.5 amount of the minimum monthly salary––the whole granted state social insurance disability pension;

3) the disabled of the 2nd and 3rd groups whose insured income exceeds the 1.5 amount of the minimum monthly salary––the basic part of the granted state social insurance disability pension and 50 per cent of the complementary part.

The disabled listed in Paragraphs 1 and 2 of this Article who receive the insured income are not paid the state social insurance disability pension if they do not have the obligatory state social pension insurance period entitling to a disability pension (except for the disabled of the 1st group specified in Paragraph 2 of this article to whom the requirement of the obligatory period, while paying a pension, is not applied).”

Thus, Paragraph 1 of Article 32 (wording of 21 December 2000) of the Law on State Social Insurance Pensions established limitations on the amounts of disability pensions to the disabled who have reached the established age entitling to an old age pension, and to older disabled persons who receive the insured income.

4. On 8 May 2001, the Seimas adopted the Law on the Amendment of Articles 23 and 32 of the Republic of Lithuania’s Law on State Social Insurance Pensions (Official Gazette Valstybės žinios, 2001, No. 43-1487), by Article 2 whereof Article 32 of the Law on State Social Insurance Pension was amended and set forth as follows:

Article 32. Payment of disability pensions to the disabled who receive the insured income

The disabled who have reached the age entitling to an old age pension (Articles 18 and 22) and those who are older, who, after granting of a state social insurance disability pension, receive income from which the obligatory state social pension insurance contributions are calculated and paid, or who receive state social insurance sickness benefits (including those paid by the employer for the days of sickness), motherhood, motherhood (fatherhood) or unemployment benefits (hereinafter also referred to as the insured income), if they have the obligatory state social pension insurance period entitling to a disability pension (Article 28, Paragraph 1 of Article 46), shall be paid the whole granted state social insurance disability pension if their insured income does not exceed the amount of the minimum monthly salary. If the insured income of the specified persons exceeds the amount of 1 minimum monthly salary but does not exceed the 1.5 amount of the minimum monthly salary, they shall be paid the basic part of the granted state social insurance disability pension (Paragraphs 2 and 4 of Article 29) and a part of the complementary part of the granted disability pension (hereinafter also referred to as the supplementary part) which is constituted of the sum of the following amounts:

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

2) 20 per cent of the complementary part from LTL 100.01 to LTL 200;

3) 10 per cent of the complementary part from LTL 200.01 to 300.

A part of the complementary part of the disability pension exceeding LTL 300 shall not be paid.

If the insured income of persons specified in Paragraph 1 of this article exceeds the 1.5 amount of the minimum monthly salary, they are paid the basic part of the granted state social insurance disability pension.

The disabled who are not of the age entitling to an old age pension, who after granting the state social insurance disability pension have the insured income, if those disabled have the obligatory state social pension insurance period entitling to a disability pension, except for the disabled of the 1st group, to whom the requirement of the obligatory period while paying a pension is not applied, shall be paid:

1) the disabled of the 1st group––the whole granted state social insurance disability pension irrespective of the insured income;

2) the disabled of the 2nd and 3rd groups whose insured income does not exceed the 1.5 amount of the minimum monthly salary––the whole granted state social insurance disability pension;

3) the disabled of the 2nd and 3rd groups whose insured income exceeds the 1.5 amount of the minimum monthly salary––the basic part of the granted state social insurance disability pension and 50 per cent of the complementary part.

The disabled specified in Paragraphs 1, 2 and 3 of this Article who receive the insured income are not paid the state social insurance disability pension if they do not have the obligatory state social pension insurance period entitling to a disability pension (except for the disabled of the 1st group specified in Paragraph 4 of this Article to whom the requirement of the obligatory period, while paying a pension, is not applied).”

Thus, Paragraphs 1, 2 and 3 of Article 32 (wording of 8 may 2001) of the Law on State Social Insurance Pensions used to establish certain limitations on the amounts of disability pensions to the disabled who have reached the established age entitling to an old age pension and to older disabled who receive the insured income.

5. On 16 January 2003, by Article 3 of the Law on the Amendment of Article 24 and the Recognition As No Longer Valid of Article 23 and 32 of the Republic of Lithuania’s Law on State Social Insurance Pensions (Official Gazette Valstybės žinios, 2003, No. 12-437), the Seimas recognised Article 32 of the Law on State Social Insurance Pensions as no longer valid.

Thus, after Article 32 of the Law on State Social Insurance Pensions was recognised as no longer valid, the legal regulation, according to which the amounts of disability pensions to the disabled who have reached the established age entitling to an old age pension and those who were older, and received the insured income, was eliminated.

6. In the opinion of the Vilnius Regional Administrative Court, a petitioner, Article 32 (wording of 21 December 2000) of the Law on State Social Insurance Pensions restricted the amount of the paid state social insurance disability pensions which have been granted to the disabled who have reached the established age entitling to an old age pension. In the opinion of the petitioner, such regulation is in conflict with the striving for a just harmonious civil society and a state under the rule of law entrenched in the Preamble to the Constitution, and Articles 29 and 52 of the Constitution.

Even though the part of reasoning of the petition requests an investigation into the compliance of whole Article 32 of the Law on State Social insurance Pensions with the Constitution, it is clear from the arguments set forth in the petition that the petitioner has doubts as to the constitutionality of Paragraph 1 (wording of 21 December 2000) of Article 32 of the Law on State Social Insurance Pensions.

After the Seimas amended Paragraph 1 of Article 32 (wording of 21 December 2000) of the Law on State Social Insurance Pensions by the 8 May 2001 Law on the Amendment of Articles 23 and 32 of the Law on State Social Insurance Pensions, Paragraphs 1, 2 and 3 of Article 32 (wording of 8 May 2001) of this law began to regulate the relations that used to regulated by the said paragraph.

Taking account of the arguments set forth in the petition, the Constitutional Court will investigate in the case at issue whether Paragraph 1 of Article 32 (wording of 21 December 2000) of the Law on State Social Insurance Pensions and Paragraphs 1, 2 and 3 of Article 32 (wording of 8 may 2001) of this law are not in conflict with the Constitution.

7. Paragraph 1 of Article 32 (wording of 21 December 2000) of the Law on State Social Insurance Pensions used to establish the legal regulation according to which the disabled persons who had reached the established age entitling to an old age pensions and older, who, after granting of a state social insurance disability pension, received income from which the obligatory state social pension insurance contributions were calculated and paid, or who received state social insurance sickness benefits (including those paid by the employer for the days of sickness), motherhood, motherhood (fatherhood) or unemployment benefits, if they had the obligatory state social pension insurance period entitling to a disability pension, should be paid the basic part of the granted state social insurance disability pension.

In case when the insured income of these persons did not exceed the 1.5 amount of the minimum monthly salary, they used to be paid a part of the complementary part of the granted disability pension.

7.1. It has been mentioned that Paragraph 1 of Article 32 (wording of 18 July 1994) of the Law on State Social Insurance Pensions, which had been valid before the entry into force of Paragraph 1 of Article 32 (wording of 21 December 2000) impugned by the petitioner, used to establish that the disabled who have reached the established age entitling to an old age pension and older had to be paid the whole granted state social insurance pension irrespective of their income.

While comparing the legal regulation established in Paragraph 1 of Article 32 (wording of 21 December 2000) of the Law on State Social Insurance Pensions with the legal regulation established in Paragraph 1 of this article (wording of 18 July 1994), it is clear that the impugned legal regulation used to establish limitations on the amount of the state social insurance disability pension to persons who reached the established age entitling to an old age pensions and older, who, after granting of a state social insurance disability pension, received income from which the obligatory state social pension insurance contributions were calculated and paid, or who received state social insurance sickness benefits (including those paid by the employer for the days of sickness), motherhood, motherhood (fatherhood) or unemployment benefits, if they had the obligatory state social pension insurance period entitling to a disability pension, which had not been established in Paragraph 1 of Article 32 (wording of 18 July 1994) of the Law on State Social Insurance Pensions.

According to Paragraph 1 of Article 32 (wording of 18 July 1994) of the Law on State Social Insurance Pensions, the disabled who had reached the established age entitling to an old age pension and older, used to be paid the whole granted state social insurance disability pension irrespective of their income, while according to Paragraph 1 of this article (wording of 21 December 2000) the said persons were paid not the whole granted state social insurance disability pension, but only the basic part of the granted state social insurance disability pension. Moreover, if their insured income constituted less than the 1.5 amount of the minimum monthly salary, they were paid only a part of the complementary part of the granted disability pension.

7.2. It has been held in this ruling of the Constitutional Court that the provisions of Article 52 of the Constitution, which guarantee the right of the citizens to pensionary maintenance and social assistance, oblige the state to establish sufficient means for the implementation and legal protection of this right. The law establishes what persons have to receive a disability pension, their age, the grounds, conditions and the amounts of the granting and payment of this pension. While establishing that, the legislature must pay heed to the norms and principles of the Constitution. It has been also mentioned that, according to the constitutional principle of a state under the rule of law and Article 52 of the Constitution, in case a certain pension has been granted and paid to a person, it has to be paid further, i.e. is not permitted to terminate its payment or reduce the amount of the paid pension.

While comparing the legal regulation established in Paragraph 1 of Article 32 (wording of 21 December 2000) of the Law on State Social Insurance Pensions with the legal regulation established in Paragraph 1 of Article 32 (wording of 18 July 1994) of this law, it becomes clear that the legal regulation established in Paragraph 1 of Article 32 (wording of 21 December 2000) limited the amount of the granted and paid state social insurance disability pension. Such legal regulation denies the right to receive the whole granted and previously paid disability pension which is entrenched in Article 52 of the Constitution, as well as ignores the principles of the protection of legitimate expectations, legal certainty and legal security. This way the constitutional principle of a state under the rule of law is also violated.

7.3. Taking account of the arguments set forth, it should be concluded that Paragraph 1 of Article 32 (wording of 21 December 2000) of the Law on State Social Insurance Pensions to the extent which established that persons who have reached the age entitling to an old age pension and older disabled who, after granting of a state social insurance disability pension, receive income from which the obligatory state social pension insurance contributions are calculated and paid, or who receive state social insurance sickness benefits (including those paid by the employer for the days of sickness), motherhood, motherhood (fatherhood) or unemployment benefits, if they have the obligatory state social pension insurance period entitling to a disability pension, shall be paid the basic part of the granted state social insurance disability pension, and which did not establish that the whole granted and previously paid state social insurance disability pension must be paid, was in conflict with Article 52 of the Constitution and the constitutional principle of a state under the rule of law.

8. It has been mentioned that the Seimas amended Article 32 of the Law on State Social Insurance Pensions by Article 2 of the 8 May 2001 Law on the Amendment of Articles 23 and 32 of the Law on State Social Insurance Pensions. Paragraphs 1, 2 and 3 of Article 32 (wording of 8 May 2001) of the Law on State Social Insurance Pensions used to regulated the relations which were previously regulated by Paragraph 1 of Article 32 (wording of 21 December 2000) of the Law on State Social Insurance Pensions.

Paragraph 1 of Article 32 (wording of 8 May 2001) of the Law on State Social Insurance Pensions used to establish that the disabled who had reached the age entitling to an old age pension (Articles 18 and 22) and those who were older, who, after granting of a state social insurance disability pension, received income from which the obligatory state social pension insurance contributions were calculated and paid, or who received state social insurance sickness benefits (including those paid by the employer for the days of sickness), motherhood, motherhood (fatherhood) or unemployment benefits, if they had the obligatory state social pension insurance period entitling to a disability pension (Article 28, Paragraph 1 of Article 46), should be paid the whole granted state social insurance disability pension if their insured income did not exceed the amount of a minimum monthly salary. If the insured income of the specified persons exceeded the amount of 1 minimum monthly salary but did not exceed the 1.5 amount of minimum monthly salary, they should be paid the basic part of the granted state social insurance disability pension (Paragraphs 2 and 4 of Article 29) and a part of the complementary part of the granted disability pension (50 per cent of the complementary part not exceeding LTL 100; 20 per cent of the complementary part from LTL 100.01 to LTL 200; 10 per cent of the complementary part from LTL 200.01 to LTL 300).

Paragraph 2 of Article 32 (wording of 8 May 2001) of the Law on State Social Insurance Pensions used to establish that a part of the complementary part of a disability pension which exceeded LTL 300 should not be paid, while Paragraph 3 used to establish that the persons listed in Paragraph 1 of this article should be paid the basic part of the granted state social insurance disability pension if their insured income exceeded the 1.5 amount of the minimum monthly salary.

9. While comparing the legal regulation established in Paragraphs 1, 2 and 3 of Article 32 (wording of 8 May 2001) of the Law on State Social Insurance Pensions with the legal regulation established in Paragraph 1 of Article 32 (wording of 18 July 1994) of this law, it is clear that Paragraphs 1, 2 and 3 of Article 32 (wording of 8 May 2001) of this law also used to limit the amount of the granted and paid state social insurance disability pension. Such legal regulation denied the right to receive the granted disability pension which is entrenched in Article 52 of the Constitution, as well as ignored the principles of the protection of legitimate expectations, legal certainty and legal security and violated the constitutional principle of a state under the rule of law.

10. Taking account of the arguments set forth, it should be concluded that Paragraphs 1, 2 and 3 of Article 32 (wording of 8 May 2001) of the Law on State Social Insurance Pensions to the extent which established that the disabled who had reached the age entitling to an old age pension (Articles 18 and 22) and those who were older, who, after granting of a state social insurance disability pension, received income from which the obligatory state social pension insurance contributions are calculated and paid, or who received state social insurance sickness benefits (including those paid by the employer for the days of sickness), motherhood, motherhood (fatherhood) or unemployment benefits, should be paid not the whole granted and previously paid state social insurance disability pension, was in conflict with Article 52 of the Constitution and the constitutional principle of a state under the rule of law.

11. Having held that the impugned Paragraph 1 of Article 32 (wording of 21 December 2000) of the Law on State Social Insurance Pensions and Paragraphs 1, 2 and 3 of Article 32 (wording of 8 May 2001) of this law were in conflict with Article 52 of the Constitution and the constitutional principle of a state under the rule of law, the Constitutional Court will not investigate whether they were not in conflict with Article 29 of the Constitution.

V

On the compliance of Paragraph 2 (wording of 4 July 1995) of Article 48 of the Law on State Social Insurance pensions and Item 4 of the Law “On the Amendment and Supplement of the Republic of Lithuania’s Law on State Social Insurance Pensions” adopted by the Seimas on 28 September 1995 with Articles 23 and 52 of the Constitution and the constitutional principle of a state under the rule of law.

1. On 4 July 1995, the Seimas adopted the Law “On the Amendment and Supplement of the Republic of Lithuania’s Law on State Social Insurance Pensions” (Official Gazette Valstybės žinios, 1995, No. 59-1475), by Item 5 whereof Article 48 of the Law on State Social Insurance Pensions was supplemented by Paragraph 2 of the following content: “While recalculating granted pensions, the coefficient of the insured income of the person shall be not larger than 5.”

On 28 September 1995, by Item 4 of the Law “On the Amendment and Supplement of the Republic of Lithuania’s Law on State Social Insurance Pensions” (Official Gazette Valstybės žinios, 1995, No. 84-1901), the Seimas recognised Paragraph 4 (wording of 18 July 1994) of Article 50 of the Law on State Social Insurance Pensions, which used to establish that the amount of the recalculated or newly granted, under the Law on State Social Insurance Pensions, pension shall not be limited, as no longer valid.

2. The Supreme Administrative Court of Lithuania, a petitioner, requests an investigation into whether Paragraph 2 (wording of 4 July 1995) of Article 48 of the Law on State Social Insurance Pensions and Item 4 of the Law “On the Amendment and Supplement of the Republic of Lithuania’s Law on State Social Insurance Pensions” are not in conflict with Articles 23 and 52 of the Constitution and the constitutional principle of a state under the rule of law.

In the opinion of the petitioner, Paragraph 2 (wording of 4 July 1995) of Article 48 of the Law on State Social Insurance Pensions established the maximum coefficient 5 of the insured income, while Item 4 of the Law “On the Amendment and Supplement of the Republic of Lithuania’s Law on State Social Insurance Pensions” adopted by the Seimas on 28 September 1995 abolished Paragraph 4 of Article 50 of the Law on State Social Insurance Pensions under which, according to the petitioner, the amount of the recalculated of newly granted, under this law, pension is not limited. In the opinion of the petitioner, persons to whom pensions were recalculated according to the rules of the recalculation of pensions as established by the Law on State Social Insurance Pensions (wording of 18 July 1994) and without limitation on the coefficient of the insured income and the amount of the recalculated pension, due to such legal regulation suffered restrictions of property nature. The petitioner has doubts whether such legal regulation is not in conflict with the constitutional principle of a state under the rule of law, which consists of such elements as the protection of legitimate expectations, legal certainty and legal security, as well as with Articles 52 and 23 of the Constitution.

3. The legal regulation impugned by the petitioner is related with the reform of the system of state social insurance pensions. On 18 July 1994, the Seimas adopted the Law on State Social Insurance Pensions, by Article 45 whereof the ways for the recalculation of pensions which had been granted before the entry into force of the law were established. According to Paragraph 1 of this article, pensions to the persons, who had been granted state social insurance pensions and disability pensions before the entry into force of this law, are recalculated, according to this law, on the basis of the data concerning the salary and the period fixed in the pension file. Before the entry in to force of this law (i.e. until 1 January 1995), at the request of pensioners, the data contained in a pension file concerning the state social pension insurance period or the one equalled to it could be supplemented. The data of a file concerning the salary are not supplemented.

Upon the request of persons, who have been granted a state social insurance pension before the entry into force of the Law on State Social Insurance Pensions and to whom after the state social pension insurance period increased by not less than 3 years, the pension could be granted anew according to the provisions of this law concerning the newly granted pensions.

Territorial divisions of the Board of the State Social Insurance Fund had to start the payment of the recalculated pensions not later than after 6 months from the entry into force of this law. Before that time the pensioner used to be paid the granted pension by indexing it according to the procedure established in Article 50 of this law. If the recalculated pension was bigger, the difference used to be compensated to the pensioner as from the day of the entry into force of the law.

It has to be noted that Article 48 (wording of 18 July 1994) of the Law on State Social Insurance Pensions used to establish the way of calculation of the coefficient of a person’s insured income while recalculating the granted pension. According to this article, while recalculating the granted pensions, the coefficient of a person’s insured income (Article 16) had to be calculated on the basis of the data fixed in a pension file according to the following procedure:

if a pension had been granted on the basis of a person’s salary average recorded in the file, which had been calculated according to the data on a person’s salary until 1 January 1991, this average had to be divided by the average monthly salary of a respective period in Lithuania;

if a pension had been granted on the basis of the data on a person’s salary after 1 January 1991, monthly salaries recorded in the file had to be divided by the national monthly salary average of that month of a respective year, and the average of the calculated quotients had to be considered the coefficient of the insured income. In this case the average monthly salary before 1 January 1991 was considered to be equal to an average monthly salary of that year in Lithuania.

4. Article 49 (wording of 18 July 1994) of the Law on State Social Insurance Pensions established the rule of the non-reducing of the recalculated pensions:

If upon the recalculation of a pension it becomes smaller than the previous amount, the pensioner shall be paid the previously granted indexed pension indexing it further according to the procedure established in Article 50 of this law.

If a person, whose pension is recalculated, has the right to receive the pension of the victim according to the Law on State Pensions, this pension shall be granted to him together with the recalculated state social insurance pension. If the sum of both pensions is smaller than the previously received pension, the previous pension is further paid indexing it according to the procedure established in Article 50 of this Law.”

5. Paragraph 4 (wording of 18 July 1994) of Article 50 of the Law on State Social Insurance Pensions used to establish that the amount of recalculated or newly granted according to this law pension shall not be limited.

6. Thus, the said provision of the Law on State Social Insurance Pensions (wording of 18 July 1994) established such legal regulation according to which state social insurance old age pensions granted to persons before the entry into force of this law were recalculated without applying the maximum amount of the coefficient of a person’s insured income and without limiting the amount of the recalculated pension.

7. It has been mentioned that Paragraph 2 (wording of 4 July 1995) of Article 48 of the Law on State Social Insurance Pensions established that while recalculating the granted pensions, the coefficient of a person’s insured income shall be not more than 5.

On 28 September 1995, by Item 4 of the Law “On the Amendment and Supplement of the Republic of Lithuania’s Law on State Social Insurance Pensions”, the Seimas recognised Paragraph 4 (wording of 18 July 1994) of Article 50 of the Law on State Social Insurance Pensions, which used to establish that the amount of recalculated or newly granted, according to this law, pension shall not be limited, as no longer valid.

It needs to be noted that the legal regulation entrenched in Paragraph 2 (wording of 4 July 1995) of Article 48 of the Law on State Social Insurance Pensions and Item 4 of the Law “On the Amendment and Supplement of the Republic of Lithuania’s Law on State Social Insurance Pensions” should be assessed as a whole, therefore, the Constitutional Court will investigate whether Paragraph 2 (wording of 4 July 1995) of Article 48 of the Law on State Social Insurance Pensions and Item 4 of the Law “On the Amendment and Supplement of the Republic of Lithuania’s Law on State Social Insurance Pensions” are not in conflict with the Constitution.

8. It has been held in this ruling of the Constitutional Court that, according to Article 52 of the Constitution, a duty arises to the state to establish sufficient means of the implementation and legal defence of a person’s right to receive an old age pension. In the context of the case at issue the provisions of Article 52 of the Constitution should be construed taking account of the constitutional principle of a state under the rule of law and Article 23 of the Constitution. It has been mentioned that the protection of legitimate expectations, legal certainty and legal security are inseparable elements of the principle of a state under the rule of law. These principles imply, inter alia, that the state must fulfil undertaken obligations to a person. The protection of acquired rights is one of the elements of the principle of legitimate expectations. The granted and paid old age pension is protected and defended according to Article 23 of the Constitution.

9. The provisions of Paragraph 2 (wording of 4 July 1995) of Article 48 of the Law on State Social Insurance Pensions and Item 4 of the Law “On the Amendment and Supplement of the Republic of Lithuania’s Law on State Social Insurance Pensions” are related with the reform of state social insurance pensions. It has been mentioned that the constitutional protection of acquired rights and legitimate expectations does not mean that the system of pensionary maintenance established by law may not be reorganised. While reorganising this system, the Constitution must be observed in every case. The system of pensions may be reorganised only by law, only guaranteeing the old age and disability pensions provided for by the Constitution, as well as observing undertaken obligations by the state, which are not in conflict with Constitution, to pay corresponding payments to persons who meet the requirements established by law. If, while reorganising the pensionary system, the pensions established by means of laws which are not directly specified in Article 52 of the Constitution were eliminated, or the legal regulation of these pensions were amended in essence, the legislature would be obligated to establish a just mechanism for compensation of the existing losses to the persons who had been granted and paid such pensions.

10. According to the legal regulation established in the Law on State Social Insurance Pensions (wording of 18 July 1994), state social insurance pensions granted to persons before the entry into force of this law were recalculated without limiting the amount of the coefficient of the insured income. Paragraph 2 (wording of 4 July 1995) of Article 48 of the Law on State Social Insurance Pensions established a rule that, while recalculating the granted pension, the coefficient of a person’s insured income is not larger than 5. Thus, a newly recalculated pension, which had been granted before the entry into force of the law, would be reduced to some extent to persons to whom the coefficient of the insured income was not larger than 5 while recalculating the granted pension according to the Law on State Social Insurance Pensions (wording of 18 July 1994). It has to be noted that upon the entry into force of Item 4 of the Law “On the Amendment and Supplement of the Republic of Lithuania’s Law on State Social Insurance Pensions”, Paragraph 4 (wording of 18 July 1994) of Article 50 of the Law on State Social Insurance Pensions, which used to establish that the amount of the recalculated pension is not limited, became no longer valid.

11. While deciding whether the legal regulation established in Paragraph 2 (wording of 4 July 1995) of Article 48 of the Law on State Social Insurance Pensions and Item 4 of the Law “On the Amendment and Supplement of the Republic of Lithuania’s Law on State Social Insurance Pensions” is not in conflict with the Constitution, it has to be noted that upon the entry into force of Item 4 of the Law “On the Amendment and Supplement of the Republic of Lithuania’s Law on State Social Insurance Pensions” Article 49 of the Law on State Social Insurance Pensions remained in force, which established the rule of the non-reduction of the recalculated pension, i.e. a person, to whom the pension was recalculated applying the coefficient not larger than coefficient 5 of the insured income, may not be paid a smaller pension comparing to the amount of a pension which had been granted and paid before the entry into force of the Law on State Social Insurance Pensions. Thus, this regulation ensured sufficient protection of the right to receive an old age pension entrenched in Article 52 of the Constitution.

12. In the opinion of the petitioner, upon establishing by the impugned provision a rule that the coefficient of the insured income, while recalculating the granted pension, may not be larger than 5, the constitutional principle of a state under the rule of law, which consists of such elements as the protection of legitimate expectations, legal certainty and legal security, was violated, because the persons who had been applied the coefficient larger than 5 while recalculating the granted pensions according to the previous regulation, reasonably expected to receive a bigger old age pension.

The Constitutional Court notes that, according to the Constitution, only those expectations of the person in relations with the state are protected and defended, which arise out of the Constitution itself or out of the laws and other legal acts that are not in conflict with the Constitution. Only these expectations of the person in relations with the state are considered legitimate. It has to be noted alongside that no provision of the Constitution may be construed so that the content of another constitutional provision would be distorted or denied, since the essence of the whole constitutional regulation would thus be distorted and the balance of values consolidated in the Constitution would thus be disturbed.

It has been mentioned that the amount of an old age pension which is granted and paid to persons, when the system of old age pensions is based on social insurance, may not be independent or be insignificantly dependent on how long and in what amounts contributions used to be paid creating material preconditions for the payment of these pensions. A person who pays himself contributions of the state social insurance of the established amount or someone pays them for him, has the right to receive an old age pension on the grounds established by law. A different assessment should be given to a legitimate expectation which arises out of the legal situation where one or another increase of previously granted old age pension is determined not by the increase of the person’s contribution creating material preconditions for the payment of these pensions, but the rules of the recalculation of these pensions which were adopted while implementing the reform of the pensionary system. The establishment of such rules is within the discretion of the legislature. While establishing them, the legislature must pay heed to the requirements of justice and social harmony. Obligations of the state to pay the pensions of a certain amount, when the payments are based on the state social insurance, may not be separated from the person’s contribution creating material preconditions for the payment of this pension, the time of the payment of such contributions and their amounts. The establishment of rules of the recalculation of pensions, because of which the amount of an old age pension of the person increases, may not be in itself considered sufficient grounds for legitimate expectations to arise.

Under Paragraph 2 (wording of 4 July 1995) of Article 48 of the Law on State Social Insurance Pensions, state social insurance old age pensions previously granted to persons have been recalculated applying the coefficient of the insured income not larger than 5. Thus, the recalculation rule has been amended in comparison with that established in the Law on State Social Insurance Pensions (wording of 18 July 1994). While assessing the compliance of the impugned provisions with the Constitution, one has to remember that upon their entry into force the rule of the non-reduction of the recalculated pensions established in Article 49 of the Law on State Social Insurance Pensions remained in force, according to which a person, to whom a pension has been recalculated applying the coefficient of the insured income not larger than 5, may not be paid a smaller pension comparing to the previous amount of the pension which had been granted and paid before the entry into force of the Law on State Social Insurance Pensions. Thus, there exist no grounds to maintain that Paragraph 2 (wording of 4 July 1995) of Article 48 of the Law on State Social Insurance Pensions is in conflict with the constitutional principle of a state under the rule of law.

13. Having held that the impugned Paragraph 2 (wording of 4 July 1995) of Article 48 of the Law on State Social Insurance Pensions and Item 4 of the Law “On the Amendment and Supplement of the Republic of Lithuania’s Law on State Social Insurance Pensions” adopted by the Seimas on 28 September 1995 are not in conflict with Article 52 of the Constitution and the principle of a state under the rule of law, it should be held that they are not in conflict with Article 23 of the Constitution either.

VI

On the compliance of the provisions of Paragraph 3 of Article 3 (wordings of 20 February 2001 and 2 July 2002) of the Law on State Pensions with Articles 23 and 52 of the Constitution and the constitutional principle of a state under the rule of law.

1. Article 3 (wording of 22 December 1994) of the Law on State Pensions used to establish:

A person who has the right to receive several state pensions shall be paid only one of them upon his choice with the exception of the state widows and orphans pension which also may be paid as one in conjunction with one of the state pensions.

State social insurance pensions are paid regardless of the fact whether state pensions are paid or not, unless the laws establish otherwise.”

On 4 July 1995, by Article 2 of the Law “On the Amendments and Supplement of the Republic of Lithuania’s Law on State Pensions” (Official Gazette Valstybės žinios, 1995, No. 59-1476), the Seimas supplemented Article 3 of the Law on State Pensions with following Paragraph 3: “The amount of state pensions established in Items 3–5 of Article 1 of this Law in conjunction with state social insurance pension to one person may not exceed the amount of one and a half average monthly salary of the employees of the state sector, joint-stock and close companies of the month preceding the last month before the payment of the pension as published by the Department of Statistics at the Government of the Republic of Lithuania. The institution paying the state pension shall apply limitation on the amount of the pension.”

Thus, such legal regulation established the limitation on state pensions established in Items 3–5 of Article 1 of this law in conjunction with the state social insurance pension to one person, which had not existed in Article 3 of the Law on State Pensions (wording of 22 December 1994).

2. On 4 November 1997, by Article 2 of the Law on the Amendment and Supplement of Articles 2, 3, 5, 8, 10, 11, 12, 13 and 14 of the Republic of Lithuania’s Law on State Social Insurance Pensions (Official Gazette Valstybės žinios, 1997, No. 104-2622), the Seimas amended Article 3 of the Law on State Pensions and set it forth as follows:

Article 3. Right to choose the type of the state pension

A person who has the right to receive several state pensions shall be paid only one of them upon his choice with the exception of the state widows and orphans pension which also may be paid as one in conjunction with one of the state pensions.

A person who is entitled to a state widows pension for the deceased recipient of a state pension specified in Items 2 and 4 of Paragraph 1 of Article 1 of this law and a state social insurance widows pension shall, upon his choice, be granted and paid either a state widows pension, or a state social insurance widows pension.

The amount of state pensions established in Items 3–5 of Article 1 of this Law in conjunction with state social insurance pension to one person may not exceed the amount of one and a half average monthly salary of the employees of the state sector, joint-stock and close companies of the month preceding the last month before the payment of the pension as published by the Department of Statistics at the Government of the Republic of Lithuania. The institution paying the state pension shall apply limitation on the amount of the pension.”

On 20 February 2001, by Article 1 of the Law on the Amendment of Article 3 of the Law on State Pensions (Official Gazette Valstybės žinios, 2001, No. 21-693), the Seimas decided to delete the word “one and a half”, to enter the word “quarter” instead of the word “month”, to enter words “the month for which a state pension is paid” instead of words “the payment of the pension”, to enter words “published in the economy of the country” instead of words “published of economy employees of the Republic of Lithuania”, to enter numbers and the word “1.5 amount” after the word “salary” in Paragraph 3 of Article 3 of the Law on State Pensions and to set forth this paragraph in the following way: “The amount of state pensions established in Items 3–5 of Paragraph 1 of Article 1 of this Law either of each separately or in conjunction with a state social insurance pension to one person may not exceed the 1.5 amount of the statistical average monthly salary in the economy of the country, which is paid in the quarter before last that precedes the month when state pension is paid as published by the Department of Statistics at the Government of the Republic of Lithuania. The institution paying the state pension shall apply limitation on the amount of the pension.”

On 2 July 2002, by Article 1 of the Law on the Amendment and Supplement of Articles 1 and 3 of the Law on State Pensions (Official Gazette Valstybės žinios, 2002, No. 73-3089), the Seimas amended Paragraph 3 of Article 3 of the Law on State Pensions and set it forth as follows: “The amount of each state pension established in Items 3–6 of Paragraph 1 of Article 1 of this Law as well as the total sum to one person of the amount of this pension, and state pensions and state social insurance pensions granted to the same person according to Paragraph 1 of this Law may not exceed the 1.5 amount of the statistical average monthly salary in the economy of the country, which is paid in the quarter before last that precedes the month when state pension is paid as published by the Department of Statistics at the Government of the Republic of Lithuania. The institution paying the state pension shall apply limitation on the amount of the pension”.

3. Even though the part of reasoning of the petition requests an investigation into the constitutionality of the provisions of Paragraph 3 of Article 3 of the Law on State Pensions which limit the payment of the total sum of state pensions and state social insurance pensions granted to the same person without exceeding the 1.5 amount of the statistical average monthly salary in the economy of the country, which is paid in the quarter before last that precedes the month when state pension is paid, it is clear from the arguments of the petition that one doubts as to the compliance of the provisions concerning limitation on the overall amount of state pension of the officials and servicemen and state social insurance pensions with the Constitution.

Taking account of that, the Constitutional Court will investigate whether the following is not in conflict with Articles 23 and 52 of the Constitution and the constitutional principle of a state under the rule of law:

1) The provision “the amount of state pensions established in Items 3–5 of Paragraph 1 of Article 1 of this law <...> in conjunction with a state social insurance pension to one person may not exceed the 1.5 amount of the statistical average monthly salary in the economy of the country, which is paid in the quarter before last that precedes the month when state pension is paid as published by the Department of Statistics at the Government of the Republic of Lithuania” of Paragraph 3 (wording of 20 February 2001) of Article 3 of the Law on State Pensions to the extent that its formula “state pensions established in Items 3–5 of Paragraph 1 of Article 1 of this law” includes state pensions of the officials and servicemen established in Item 4 of Paragraph 1 of Article 1 of this law;

2) The provision “the total sum to one person of the amount of this pension, and state pensions and state social insurance pensions granted to the same person may not exceed the 1.5 amount of the statistical average monthly salary in the economy of the country, which is paid in the quarter before last that precedes the month when state pension is paid as published by the Department of Statistics at the Government of the Republic of Lithuania” of Paragraph 3 (wording of 2 July 2002) of Article 3 of the Law on State Pensions to the extent that its formula “of each state pension established in Items 3–6 of Paragraph 1 of Article 1 of this law” includes state pensions of the officials and servicemen established in Item 4 of Paragraph 1 of Article 1 of this law.

4. It has to be noted in the context of the case at issue that, under Article 3 (wording of 22 December 1994) of the Law on State Pensions, a person, who had the right to receive several state pensions, had to be, upon his choice, paid only one of them with the exception of the state widows and orphans pension which could also be paid in conjunction with only one of state pensions. State social insurance pension used to be paid irrespective of the fact whether state pensions were paid, unless the laws established otherwise. Therefore, the amount of a pension was not limited.

It has been mentioned that Paragraph 3 (wording of 4 July 1995) of Article 3 of the Law on State Pensions used to establish that the amount of state pensions established in Items 3–5 of Article 1 of this law in conjunction with state social insurance pension to one person could not exceed the amount of one and a half average monthly salary of the employees of the state sector, joint-stock and close companies of the month preceding the last month before the payment of the pension as published by the Department of Statistics at the Government of the Republic of Lithuania. The institution paying the state pension used to apply the limitation on the amount of the pension. Thus, according to such legal regulation, upon the entry into force of Paragraph 3 (wording of 4 July 1995) of Article 3 of the Law on State Pensions, the amount of the granted and paid state pension in conjunction with a state social insurance pension was limited to persons who had been granted and paid state pensions according to the previous legal regulation.

It has been held in this ruling of the Constitutional Court that the amendments of the established legal regulation deteriorating the pensionary maintenance are possible only when there appears an extraordinary situation in the state (economic crisis, natural disaster etc.) when there is objective lack funds for the fulfilment of the state functions and satisfying of public interests, as well as the payment of pensions. These amendments must be necessary for the protection of other constitutional values and this can be done by law only, without violating the Constitution. Therefore, if the legal regulation groundlessly reducing the granted and paid pension were established, Articles 23 and 52 of the Constitution and the constitutional principle of a state under the rule of law would be violated.

It has been mentioned that, according to Paragraph 3 (wording of 4 July 1995) of Article 3 of the Law on State Pensions, the amount of state pensions established in Items 3–5 of Article 1 of this law in conjunction with state social insurance pension to one person could not exceed the amount of one and a half average monthly salary of the employees of the state sector, joint-stock and close companies of the month preceding the last month before the payment of the pension as published by the Department of Statistics at the Government of the Republic of Lithuania. Thus, such legal regulation limited the amount of the granted and paid state pension in conjunction with a state social insurance pension to persons who had been granted and paid state pensions under the previous legal regulation.

5. Taking account of the arguments set forth, it should be concluded that Paragraph 3 (wording of 4 July 1995) of Article 3 of the Law on State Pensions to the extent which limited the amount of the granted and paid state pension in conjunction with a state social insurance pension was in conflict with Articles 23 and 52 of the Constitution and the constitutional principle of a state under the rule of law.

6. According to Article 1 of the Law on State Pensions, in the Republic of Lithuania the state pension of the President of the Republic, state pensions of the Republic of Lithuania of the first and second degree, state pensions of victims, state pensions of the officials and servicemen, state pensions of scientists, and state pensions of judges are established. According to the Law on State Pensions, some of the pensions established therein are granted and paid for special merits to Lithuania (for example, state pensions of the first and second degree of the Republic of Lithuania), the granting and payment of other state pensions is related to the corresponding service (for example, service in the systems of the Interior, prosecutor’s office, etc.) or work (for example, scientific work). Some other state pensions are of compensational nature and are paid to persons who have been recognised victims (for example, persons who became disabled because of the aggression carried out on 11–13 January 1991 and later events, participants of the resistance to the occupations of 1940–1990, etc.).

The relations of the granting and payment of different types of state pensions are also regulated by the Republic of Lithuania’s Law on the State Pensions of Officials and Servicemen of the Interior, the Special Investigation Service, State Security, National Defence, the Prosecutor’s Office, the Department of Prisons and of the Establishments and State Enterprises Which are Subordinate to the Latter, the Law on the President of the Republic of Lithuania, the Law on the State Pensions of Judges of the Republic of Lithuania, the Republic of Lithuania’s Law on State Pensions of Scientists.

The said state pensions are paid from the State Budget.

7. Item 4 of Paragraph 1 of Article 1 of the Law on State Pensions establishes state pensions of officials and servicemen. The relations of state pensions of officials and servicemen are regulated by the Law on the State Pensions of Officials and Servicemen of the Interior, the Special Investigation Service, State Security, National Defence, the Prosecutor’s Office, the Department of Prisons and of the Establishments and State Enterprises Which are Subordinate to the Latter. Under this law, the following persons have the right to the state pension of officials and servicemen: officials of the Ministry of the Interior, the police, the State Border Security Service and other institutions of the Interior, officers of service units, servicemen and non-commissioned officers of re-enlistee service of the interior, officials of the Special Investigation Service, servicemen of professional military service, officials of the system of the State Security Department, officials of the prosecutor’s office, officials of the Department of Prisons and of the establishments and state enterprises which are subordinate to the latter. In case of death of these persons on duty or during the training for reasons related to the service or training, their spouses and children have the right to receive the state widows and orphans pensions of officials and servicemen.

The state pension of officials and servicemen is granted and paid to the said officials and servicemen upon their retirement if they meet the conditions established by law. Such conditions are of varied nature: the person has either served a certain number of years, or has served a certain number of years and reached the age of old age pension, or the person is recognised disabled for reasons related to the service, or has been dismissed from service because of health, etc.

The officials and servicemen who acquire the right to the state pension of officials and servicemen do not lose the right to other state pensions providing the laws do not provide otherwise. According to the valid legal regulation, the said officials and servicemen also receive the state social insurance pension provided they meet the conditions required in order to receive this pension.

The pensions to the officials and servicemen and their families are granted and paid by the Ministry of the Interior, the Special Investigation Service, the State Security Department, the Ministry of National Defence, the Office of the Prosecutor General or the Department of Prisons depending on which of these institutions the recipient of the pension served in last. Under the valid laws, the granting and payment of the state pension of officials and servicemen is based neither on contributions of social insurance, nor on any other special payments. The state pension of officials and servicemen is calculated and paid while taking account of the amount of remuneration of the official or serviceman.

8. It has been mentioned that Paragraph 3 of Article 3 (wording of 20 February of 2001) of the Law on State Pensions provides that the amount of state pensions established in Items 3–5 of Paragraph 1 of Article 1 of this law in conjunction with a state social insurance pension to one person may not exceed the 1.5 amount of the statistical average monthly salary in the economy of the country, which is paid in the quarter before last that precedes the month when state pension is paid as published by the Department of Statistics at the Government of the Republic of Lithuania.

This provision establishes the maximum amount of a state pension in conjunction with a state social insurance pension to one person. In the context of the case at issue, the rule established in Paragraph 3 of Article 3 (wording of 20 February of 2001) of the Law on State Pensions means that a person who has been granted the state pension of officials and servicemen and the state social insurance pension may not receive the total amount of these pensions that would exceed the 1.5 amount of the statistical average monthly salary in the economy of the country, which is paid in the quarter before last that precedes the month when state pension is paid as published by the Department of Statistics at the Government of the Republic of Lithuania.

According to the law, the institution paying the state pension is assigned to apply the limitation on the amount of the pension.

9. In the opinion of the petitioner, such limitation on the amount of granted state and social insurance pensions without paying out the whole total sum of them violates the constitutional principle of a state under the rule of law. The petitioner maintains that in such case a person loses a part of payments that belong to him, thus, there are grounds to believe that these provisions violate the right of the person to property guaranteed by Article 23 of the Constitution and Article 52 of the Constitution which entrenches the right of citizens to receive the whole granted pension which is guaranteed by the state.

10. While deciding whether the provision “the amount of state pensions established in Items 3–5 of Paragraph 1 of Article 1 of this law <...> in conjunction with a state social insurance pension to one person may not exceed the 1.5 amount of the statistical average monthly salary in the economy of the country, which is paid in the quarter before last that precedes the month when state pension is paid as published by the Department of Statistics at the Government of the Republic of Lithuania” of Paragraph 3 of Article 3 (wording of 20 February of 2001) of the Law on State Pensions is not in conflict with the Constitution to the extent that its formula “state pensions established in Items 3–5 of Paragraph 1 of Article 1 of this law” includes state pensions of the officials and servicemen established in Item 4 of Paragraph 1 of Article 1 of this law, it has to be noted that the state pension of officials and servicemen differs in its origin and nature from state social insurance pensions (thus, from the old age pension as well).

It has been mentioned that the state pension of officials and servicemen is paid to persons for the service to the State of Lithuania and is paid from the state budget. While establishing what persons are granted and paid the state pension of officials and servicemen, grounds and condition for granting and payment of the state pension of officials and servicemen, as well as the amounts of this pension, the legislature is bound by the constitutional imperative of social harmony, the principles of justice, reasonableness and proportionality. The granting and payment of such a pension may not become a privilege, the legislature must take account of the peculiarity of the service, nature of a concrete office and of other significant circumstances.

It has also been mentioned that Article 52 of the Constitution establishes the bases of pensionary maintenance and social assistance. Under the Constitution, other pensions or social assistance than those specified in Article 52 of the Constitution may be established by law. Pensions for a certain service to the State of Lithuania may be established by law as well. While establishing such a pension for service, the legislature is bound by the norms and principles of the Constitution. While adopting a law establishing what persons are granted pensions for service, the bases and conditions for granting and payment of these pensions, as well as the amounts of this pension, the legislature in every case must pay heed to the norms and principles of the Constitution, the imperatives of an open, just, harmonious civil society and a state under the rule of law entrenched in the Constitution.

While establishing the state pension granted for the service of the officials and servicemen which is paid from the state budget, the legislature also has the discretion to establish the maximum amount of such pension which is paid either separately or in conjunction with the state social insurance pension. It is important that the establishment of such amount not deny the imperative of social harmony, justice, reasonableness and proportionality. According to the established legal regulation, a person who will be granted and paid a state pension of the officials and servicemen, is aware in advance of what are the conditions of the payment and granting of this pensions as well as its amounts. In the impugned provision the legislature has established that the amount of the state pension, and the amount of the state pension of the officials and servicemen in conjunction with the state social insurance pension to one person among them, may not exceed the 1.5 amount of the statistical average monthly salary in the economy of the country, which is paid in the quarter before last that precedes the month when state pension is paid as published by the Department of Statistics at the Government of the Republic of Lithuania.

While assessing the compliance of the legal regulation entrenched in the provision of Paragraph 3 of Article 3 (wording of 20 February 2001) of the Law on State Pensions with the Constitution, it has to be noted that the state has the duty to fulfil those obligations of proprietary nature, which it has undertaken establishing by law such legal regulation according to which the person who meets conditions provided by law, acquires the right to the state pension of the officials and servicemen. In its 4 July 2003 ruling the Constitutional Court held that, under Article 23 of the Constitution, the persons who have been granted and paid the state pensions of officials and servicemen have the right to demand that the payments be paid further in the amounts which were granted and paid earlier.

The maximum amount of the state pension in conjunction with the state social insurance pension to one person, which may not exceed the 1.5 amount of the statistical average monthly salary in the economy of the country, which is paid in the quarter before last that precedes the month when state pension is paid as published by the Department of Statistics at the Government of the Republic of Lithuania, entrenched in the impugned provision of Paragraph 3 of Article 3 (wording of 20 February 2001) of the Law on State Pensions does not reduce the amount of a pension which has already been granted and paid. Thus, this legal regulation does not deny the duty of the state to pay the state pension of the officials and servicemen for service, which arises out of the obligation of the state, entrenched in the law, to pay the state pension of the granted mount to the person who meets the conditions established by law. Thus, the are no grounds to maintain that the impugned provision of Paragraph 3 of Article 3 (wording of 20 February 2001) of the Law on State Pensions was in conflict with Articles 23 and 52 of the Constitution and the constitutional principle of a state under the rule of law.

11. Taking account of the arguments set forth, it should be concluded that the provision “the amount of state pensions established in Items 3–5 of Paragraph 1 of Article 1 of this law <...> in conjunction with a state social insurance pension to one person may not exceed the 1.5 amount of the statistical average monthly salary in the economy of the country, which is paid in the quarter before last that precedes the month when state pension is paid as published by the Department of Statistics at the Government of the Republic of Lithuania” of Paragraph 3 of Article 3 (wording of 20 February 2001) of the Law on State Pensions to the extent that its formula “state pensions established in Items 3–5 of Paragraph 1 of Article 1 of this law” includes state pensions of the officials and servicemen established in Item 4 of Paragraph 1 of Article 1 of this law was not in conflict with Articles 23 and 52 of the Constitution and the constitutional principle of a state under the rule of law.

12. Having compared the impugned provision of Paragraph 3 of Article 3 (wording of 20 February 2001) of the Law on State Pensions with the provision of Paragraph 3 of Article 3 (wording of 2 July 2002) of the Law on State Pensions “the total sum to one person of the amount of this pension, and state pensions and state social insurance pensions granted to the same person may not exceed the 1.5 amount of the statistical average monthly salary in the economy of the country, which is paid in the quarter before last that precedes the month when state pension is paid as published by the Department of Statistics at the Government of the Republic of Lithuania” to the extent that its formula “of each state pension established in Items 3–6 of Paragraph 1 of Article 1 of this law” includes state pensions of the officials and servicemen established in Item 4 of Paragraph 1 of Article 1 of this law, it is clear that they entrench basically the same rule of limitation on the maximum amount of the total sum of the state pension and state social insurance pension granted to a person. In this respect the differences of the formulas employed therein do not alter the essence of the legal regulation.

13. Taking account of these circumstances and to the fact that it has been held in this ruling of the Constitutional Court that the impugned provision of Paragraph 3 of Article 3 (wording of 20 February 2001) of the Law on State Pensions to the extent which establishes the state pensions of the officials and servicemen was not in conflict with Articles 23 and 52 of the Constitution and the constitutional principle of a state under the rule of law, one is also to hold that the provision “the total sum to one person of the amount of this pension, and state pensions and state social insurance pensions granted to the same person may not exceed the 1.5 amount of the statistical average monthly salary in the economy of the country, which is paid in the quarter before last that precedes the month when state pension is paid as published by the Department of Statistics at the Government of the Republic of Lithuania” of Paragraph 3 of Article 3 (wording of 2 July 2002) of the Law on State Pensions to the extent that its formula “of each state pension established in Items 3–6 of Paragraph 1 of Article 1 of this law” includes state pensions of the officials and servicemen established in Item 4 of Paragraph 1 of Article 1 of this law is not in conflict with Articles 23 and 52 of the Constitution and the constitutional principle of a state under the rule of law either.

VII

On the compliance of Item 84 (wording of 5 December 1995) of the Regulations of the Granting and Payment of State Social Insurance Pensions as approved by government resolution No. 1156 of 18 November 1994 with Item 2 of Article 94 of the Constitution and Paragraph 4 (wording of 18 July 1994) of Article 45 of the Law on State Social Insurance Pensions.

1. Conforming to the Law on State Social Insurance Pensions adopted by the Seimas on 18 July 1994, the Government approved the Regulations of the Granting and Payment of State Social Insurance Pensions by Item 1 of the Resolution (No. 1156) “On the Approval of the Regulations of the Granting and Payment of State Social Insurance Pensions” of 18 November 1994.

2. On 5 December 1995, by Subitem 1.10 of the Resolution (No. 1526) “On a Partial Amendment of the Regulations of the Granting and Payment of State Social Insurance Pensions” (Official Gazette Valstybės žinios, 1995, No. 101-2257), the Government supplemented the Regulations by the chapter “Procedure of recalculation of pensions granted before the entry into force of the Law on Pensions”, in Item 84 whereof established: “Persons who had been granted service time pensions prior to 1 January 1995 and who, after granting of this pension, but not later than until 1 January 1995 had reached the age entitling to an old age pension (men––60 years, women––55 years) or who were invalids, may submit the data on the salary for the time periods indicated in Item 82 of these Regulations. In this case the corresponding 12-month or 60-month periods shall be calculated until the day of reaching of the age entitling to an old age pension or the day of the establishment of disability.”

3. On 1 May 2000, by Subitem 1.24 of the Resolution (No. 487) “On a Partial Amendment of the Resolution of the Government of the Republic of Lithuania (No. 1156) ‘On the Approval of the Regulations of the Granting and Payment of State Social Insurance Pensions’ of 18 November 1994” (Official Gazette Valstybės žinios, 2000, No. 37-1037), the Government set forth Item 84 of the Regulations as follows: “Persons who had been granted service time pensions prior to 1 January 1995 and who, after granting of this pension, but not later than until 1 January 1995 had reached the age entitling to an old age pension (men––60 years, women––55 years) or who were invalids, may submit the data on the salary for the time periods indicated in Item 82 of these Regulations. In this case the corresponding 60-month periods shall be calculated until the day of reaching of the age entitling to an old age pension or the day of the establishment of disability, while 24-month periods––after the day of reaching of the age entitling to an old age pension or the day of the establishment of disability, but not longer than until 1 January 1995.”

4. The Supreme Administrative Court of Lithuania, a petitioner, by its ruling of 5 December 2002 requests an investigation into whether Item 84 of the Regulations of the Granting and Payment of State Social Insurance Pensions as approved by government resolution No. 1156 of 18 November 1994 was not in conflict with Item 2 of Article 94 of the Constitution and Paragraph 4 of Article 45 of the Law on State Social Insurance Pensions.

The petitioner notes that, under Item 84 of the Regulations, persons, who had been granted the service time pensions prior to 1 January 1995, and who, after granting of this pension, but not later than until 1 January 1995, had reached the age entitling to an old age pension or who were invalids, may submit the data concerning their salary for the time periods specified in Item 82 of the Regulations, which is necessary for recalculation of the granted pension, although according to Paragraph 4 of Article 45 of the Law on State Social Insurance Pensions a service time pension shall be recalculated into a state social insurance old age or disability pension only if there is the following condition: its recipient has reached the age entitling to an old age pension established by law. In the opinion of the petitioner, under Item 84 of the Regulations, only those persons, who had reached the age entitling to an old age pension prior to 1 January 1995, may demand the recalculation of a service time pension which had been granted prior to the entry into force of the Law on State Social Insurance Pensions, although Paragraph 4 of Article 45 of the said law does not establish such a condition. According to the petitioner, Item 84 of the Regulations and Paragraph 4 of Article 45 of the Law on State Social Insurance Pensions establish different legal regulation. In the opinion of the petitioner, the legal regulation established in the substatutory act is in conflict with the Law on State Social Insurance Pensions, as well as Item 2 of Article 94 of the Constitution.

5. It is clear from the arguments set forth in the petition of the petitioner that he has doubts as to whether not whole Item 84 (wording of 5 December 1995) of the Regulations, but only the provision “persons who had been granted service time pensions prior to 1 January 1995 and who, after granting of this pension, but not later than until 1 January 1995 had reached the age entitling to an old age pension <...> may submit the data on the salary for the time periods indicated in Item 82 of these Regulations” entrenched therein, is not in conflict with Item 2 of Article 94 of the Constitution and Paragraph 4 of Article 45 of the Law on State Social Insurance Pensions. This provision of Item 84 (wording of 5 December 1995) of the Regulations remained unchanged after Item 84 (wording of 5 December 1995) of the Regulations was amended by Subitem 1.24 of the Government Resolution (No. 487) “On a Partial Amendment of the Resolution of the Government of the Republic of Lithuania (No. 1156) ‘On the Approval of the Regulations of the Granting and Payment of State Social Insurance Pensions’ of 18 November 1994” of 1 May 2000.

According to the petition of the Supreme Administrative Court of Lithuania, a petitioner, the Constitutional Court will investigate whether the provision “persons who had been granted service time pensions prior to 1 January 1995 and who, after granting of this pension, but not later than until 1 January 1995 had reached the age entitling to an old age pension <...> may submit the data on the salary for the time periods indicated in Item 82 of these Regulations” of Item 84 (wordings of 5 December 1995 and 1 May 2000) of the Regulations as approved by Item 1 of the Government Resolution (No. 1156) “On the Approval of the Regulations of the Granting and Payment of State Social Insurance Pensions” of 18 November 1994 is not in conflict with Item 2 of Article 94 of the Constitution and Paragraph 4 (wording of 18 July 1994) of Article 45 of the Law on State Social Insurance Pensions.

6. It has been mentioned that, under Item 2 of Article 94 of the Constitution, the Government shall execute laws and resolutions of the Seimas concerning the implementation of laws, as well as the decrees of the President of the Republic. It has been mentioned that the norm, which is established in Item 2 of Article 94 of the Constitution, means that the Government, while adopting legal acts, must observe the Constitution and valid laws. Legal acts of the Government may not contain legal norms which establish different legal regulation from that established in the laws, as well as norms competing with norms of the laws.

7. Paragraph 4 (wording of 18 July 1994) of Article 45 titled “Recalculation of pensions granted prior to the entry into force of this Law” of the Law on State Social Insurance Pensions used to establish: “A service time pension shall be recalculated into a state social insurance old age pension or disability pension only if its recipient has reached the age entitling to an old age pension which is established by this law. Otherwise, the pensioner is paid the granted pension indexing it according to the procedure established in Article 50 of this Law.”

Article 45 of the Law on State Social Insurance Pensions was further amended and supplemented, however, the provisions of Paragraph 4 (wordings of 20 April 1995, 28 September 1995, 22 April 1997, 22 October 1998, 7 July 1999, 16 December 1999 and 2 May 2000) were not amended or supplemented.

On 10 December 2002, by Paragraph 2 of Article 10 of the Republic of Lithuania’s Law on the Amendment and Supplement of Articles 2, 10, 28, 29, 34, 38, 40, 45, 49, 54, and 56 and the Supplement of Articles 551, 552, 553, 554, and 555 to the Law on State Social Insurance Pensions (Official Gazette Valstybės žinios, 2002, 124-5620), the Seimas amended Paragraph 4 (wording of 2 May 2000) of Article 45 of the Law on State Social Insurance Pensions and set it forth as follows: “A service time pension shall be recalculated into a state social insurance old age or disability pension only in the event if its recipient had reached the age entitling to an old age pension, which is established by this law, or had been recognised disabled prior to the entry into force of this law. Otherwise, the pensioner shall be paid the granted pension indexing it according to the procedure established in Article 50 of this Law. The procedure for recalculation of pensions of the officials and servicemen of the systems of interior, the Special Investigation Service, national defence, state security and prosecutor’s office shall be established by the Republic of Lithuania’s Law on the State Pensions of Officials and Servicemen of the Interior, the Special Investigation Service, State Security, National Defence, the Prosecutor’s Office, the Department of Prisons and of the Establishments and State Enterprises Which are Subordinate to the Latter.”

Subsequent to the petition of the petitioner, the Constitutional Court will investigate whether the impugned provision of Item 84 (wordings of 5 December 1995 and 1 May 2000) of the Regulations was not in conflict with Paragraph 4 (wording of 18 July 1994) of Article 45 of the Law on State Social Insurance Pensions.

8. While disclosing the content of the legal regulation established in the provision “persons who had been granted service time pensions prior to 1 January 1995 and who, after granting of this pension, but not later than until 1 January 1995 had reached the age entitling to an old age pension <...> may submit the data on the salary for the time periods indicated in Item 82 of these Regulations” of Item 84 (wordings of 5 December 1995 and 1 May 2000) of the Regulations, it has to be noted that the said item of the Regulations is present in the chapter “The procedure of recalculation of pensions granted prior to the entry into force of the Law on Pensions” (under Item 1 of the Regulations, the Law on State Social Insurance Pensions adopted by the Seimas on 18 July 1994 is referred to as the Law on Pensions).

According to Item 84 (wordings of 5 December 1995 and 1 May 2000) of the Regulations, the data on the salary may be submitted for the recalculation of a service time pension into a state social insurance old age pension only if there are the following conditions:

1) a person has to be granted a service time pension prior to 1 January 1995;

2) after granting of this pension, but not later than until 1 January 1995, such persons should have reached the age entitling to an old age pension (men––60 years, women––55 years).

It clear from the legal regulation entrenched in Item 84 (wordings of 5 December 1995 and 1 May 2000) of the Regulations that the data on the salary for recalculations of a state social insurance old age pension of persons, who do not meet these conditions, may not be submitted.

9. It has been mentioned that Paragraph 4 (wording of 18 July 1994) of Article 45 titled “Recalculation of pensions granted prior to the entry into force of this Law” of the Law on State Social Insurance Pensions used to establish that a service time pension is recalculated into a state social insurance old age pension only if its recipient has reached the age entitling to an old age pension which is established by this law.

While assessing the content of the provision of Paragraph 4 (wording of 18 July 1994) of Article 45 of the Law on State Social Insurance Pensions, it has to be noted that it used to be stated in the article of the law which was titled “Recalculation of pensions granted prior to the entry into force of the law”. This article established that pensions shall be recalculated to persons who had been granted state social insurance old age or disability pensions prior to the entry into force of this law, that state social insurance widows and orphans pensions, under this law, may be granted only for persons who had deceased prior to the entry into force of this law, as well as provided for the recalculation of the service time pension into the state social insurance old age or disability pension. Thus, this article regulated the recalculation of various pensions which had been granted prior to the entry into force of this law.

According to the legal regulation established in Paragraph 4 (wording of 18 July 1994) of Article 45 of the Law on State Social Insurance Pensions, recalculation of the service time pension into the state social insurance pension used to be related with the following conditions:

1) a service time pension must be granted prior to the entry into force of the law, i.e. prior to 1 January 1995, since, according to Article 44 of the Law on State Social Insurance Pensions, this law became valid on 1 January 1995;

2) a person, who has been granted a service time pension, has reached the age entitling to an old age pension established in Article 18 of this law.

While assessing the condition for recalculation of the service time pension into the state social insurance pension established in Paragraph 4 (wording of 18 July 1994) of Article 45 of the Law on State Social Insurance Pensions in the aspect pointed out by the petitioner, it has to be noted that the first condition determines the term until which the service time pension must be granted (it must be granted prior to the entry into force of the Law on State Social Insurance Pensions, i.e. until 1 January 1995), while the second condition establishes that a recipient of a service time pension, to whom this pension is being recalculated into a state social insurance old age pension, is a person who “has reached the age entitling to an old age pension established in Article 18 of this law”. This formula means that a service time pension is recalculated into a state social insurance pension to a recipient of a service time pension precisely of this age. Thus, according to such legal regulation, the person who reaches the age entitling to an old age pension both prior to and after the entry into force of the Law on State Social Insurance Pensions, may be a recipient of the service time pension. While assessing the content of the second condition of recalculation of the service time pension into the state social insurance old age pension, one may not conclude that, according to it, a recipient of the service time pension must reach the age entitling to an old age pension established in Article 18 of the Law on State Social Insurance Pension prior to the entry into force of the Law on State Social Insurance Pensions, i.e. prior to 1 January 1995.

10. Having compared the provision “persons who had been granted service time pensions prior to 1 January 1995 and who, after granting of this pension, but not later than until 1 January 1995 had reached the age entitling to an old age pension <...> may submit the data on the salary for the time periods indicated in Item 82 of these Regulations” of Item 84 (wordings of 5 December 1995 and 1 May 2000) of the Regulations with the provision “a service time pension shall be recalculated into a state social insurance old age <...> pension only if its recipient has reached the age entitling to an old age pension which is established by this law” of Paragraph 4 (wording of 18 July 1994) of Article 45 of the Law on State Social Insurance Pensions, it is clear that the impugned provision of Item 84 (wordings of 5 December 1995 and 1 May 2000) of the Regulations used to establish a supplementary condition not established by law: persons must reach the age entitling to an old age pension prior to the granting of this pension, but not later than 1 January 1995. Upon the establishment of such a condition, the circle of persons to whom the service time pension is recalculated into the state social insurance old age pension was narrowed in the Regulations.

Thus, Item 84 (wordings of 5 December 1995 and 1 May 2000) of the Regulations of the Granting and Payment of State Social Insurance Pensions as approved by Item 1 of the Government Resolution “On the Approval of the Regulations of the Granting and Payment of State Social Insurance Pensions” of 18 November 1994 established the legal regulation, which competed with the legal regulation established in Paragraph 4 (wording of 18 July 1994) of Article 45 of the Law on State Social Insurance Pensions. The part “but not later than until 1 January 1995” of the provision “persons who had been granted service time pensions prior to 1 January 1995 and who, after granting of this pension, but not later than until 1 January 1995 had reached the age entitling to an old age pension <...> may submit the data on the salary for the time periods indicated in Item 82 of these Regulations” of Item 84 (wordings of 5 December 1995 and 1 May 2000) of the Regulations was in conflict with Paragraph 4 (wording of 18 July 1994) of Article 45 of the Law on State Social Insurance Pensions.

11. It has been mentioned that according to Item 2 of Article 94 of the Constitution, legal acts of the Government may not contain legal norms establishing a different legal regulation from that established by law, as well as those competing with of norms of the laws.

Having held in this ruling of the Constitutional Court that the part “but not later than until 1 January 1995” of the provision “persons who had been granted service time pensions prior to 1 January 1995 and who, after granting of this pension, but not later than until 1 January 1995 had reached the age entitling to an old age pension <...> may submit the data on the salary for the time periods indicated in Item 82 of these Regulations” of Item 84 (wordings of 5 December 1995 and 1 May 2000) of the Regulations was in conflict with Paragraph 4 (wording of 18 July 1994) of Article 45 of the Law on State Social Insurance Pensions, one is also to hold that the part “but not later than until 1 January 1995” of the provision “persons who had been granted service time pensions prior to 1 January 1995 and who, after granting of this pension, but not later than until 1 January 1995 had reached the age entitling to an old age pension <...> may submit the data on the salary for the time periods indicated in Item 82 of these Regulations” of Item 84 (wordings of 5 December 1995 and 1 May 2000) of the Regulations was also in conflict with Paragraph 2 of Article 94 of the Constitution.

12. It has been mentioned that on 10 December 2002, by Paragraph 2 of Article 10 of the Republic of Lithuania’s Law on the Amendment and Supplement of Articles 2, 10, 28, 29, 34, 38, 40, 45, 49, 54, and 56 and the Supplement of Articles 551, 552, 553, 554, and 555 to the Law on State Social Insurance Pensions, the Seimas amended Paragraph 4 (wording of 18 July 1994) of Article 45 of the Law on State Social Insurance Pensions. Paragraph 4 (wording of 10 December 2002) of Article 45 of this law establishes, inter alia, that a service time pension is recalculated into a state social insurance old age or disability pension only if its recipient had reached the age entitling to an old age pension, which is established by this law, or who had been recognised disabled prior to the entry into force of this law.

Having compared the legal regulation established in Paragraph 4 (wording of 10 December 2002) of Article 45 of the Law on State Social Insurance Pensions with the legal regulation established in the previously effective Paragraph 4 (wording of 18 July 1994) of Article 45 of the Law on State Social Insurance Pensions, it is clear that the formula “its recipient had reached the age entitling to an old age pension, which is established by this law, <...> prior to the entry into force of this law” employed in Paragraph 4 (wording of 10 December 2002) of Article 45 of this law changed the formula “its recipient has reached the age entitling to an old age pension” which used to be entrenched in Paragraph 4 (wording of 18 July 1994) of Article 45 of the said law. Thus, by such amendment of Paragraph 4 of Article 45 of the law, the legislature consolidated a new element of the legal regulation, i.e. he has established that a recipient of the service time pension must have reached the age entitling to an old age pension, which is established by law, prior to the entry into force of the Law on State Social Insurance Pension. Such an element did not exist in Paragraph 4 (wording of 18 July 1994) of Article 45 of the Law on State Social Insurance Pensions.

Paragraph 4 (wording of 10 December 2002) of Article 45 of the Law on State Social Insurance Pensions establishes a supplementary condition for recalculation of the service time pension into the state social insurance old age pension which was not established in Paragraph 4 (wording of 18 July 1994) of Article 45 of the Law on State Social Insurance Pensions.

According to Paragraph 4 (wording of 18 July 1994) of Article 45 of the Law on State Social Insurance Pensions, a service time pension could be recalculated to persons who had reached the age entitling to an old age pension which is established by law, while under Paragraph 4 (wording of 10 December 2002) of Article 45 of the Law on State Social Insurance Pensions, a service time pension is recalculated only if a recipient of a service time pension had reached the age entitling to an old age pension, which is established by law, prior to 1 January 1995. Thus, due to such amendment of the legal regulation the status of a part of service time pension recipients (i.e. persons who have reached the age entitling to an old age pension established by law after 1 January 1995) was deteriorated. According to the previous legal regulation, a service time pension had to be also recalculated if such person reached the age entitling to an old age pension after 1 January 1995.

It needs to be noted, alongside, that the legal regulation established in Paragraph 4 (wording of 10 December 2002) of Article 45 of the Law on State Social Insurance Pensions is retrospective as it establishes that a service time pension shall be recalculated if its recipients had reached the age entitling to an old age pension established by law prior to 1 January 1995. It violates the principle lex retro non agit which arises out of the Constitution. Such legal regulation is in conflict with the constitutional principle of a state under the rule of law and Article 52 of the Constitution.

It has been mentioned that, under Article 29 of the Constitution, the principle of the equality of all persons must be followed both in passing of laws and in their application. The said constitutional principle obliges one to legally assess homogeneous facts in the same manner and prohibits any arbitrary assessment of essentially the same facts in a different manner. It has been noted in this ruling of the Constitutional Court that the constitutional principle of the equality of all persons would be violated if a certain group of persons, which a legal norm is addressed to, would be treated in a different manner if compared to other addressees of the same norm, though there exist no differences of such nature and scope between those two groups, which would objectively justify this different treatment.

The legal regulation established in Paragraph 4 (wording of 10 December 2002) of Article 45 of the Law on State Social Insurance Pensions created the legal situation when a different legal regulation is established for a part of service time pension recipients if compared to other recipients of this pension, though there exist no differences of such nature and scope between those groups of persons, which would objectively justify this different treatment. Such legal regulation violates the principle of the equality of persons consolidated in Article 29 of the Constitution.

13. Taking account of the arguments set forth, it should be concluded that the part “prior to the entry into force of this law” of the provision “a service time pension shall be recalculated into a state social insurance old age <...> pension only if its recipient had reached the age entitling to an old age pension established by this law <...> prior to the entry into force of this law” of Paragraph 4 (wording of 10 December 2002) of Article 45 of the Law on State Social Insurance Pensions is in conflict with Articles 29 and 52 of the Constitution and the constitutional principle of a state under the rule of law.

14. Having held that the part “prior to the entry into force of this law” of the provision “a service time pension shall be recalculated into a state social insurance old age <...> pension only if its recipient had reached the age entitling to an old age pension established by this law <...> prior to the entry into force of this law” of Paragraph 4 (wording of 10 December 2002) of Article 45 of the Law on State Social Insurance Pensions is in conflict with Articles 29 and 52 of the Constitution and the constitutional principle of a state under the rule of law, the Constitutional Court will not investigate whether the impugned provision of Item 84 (wordings of 5 December 1995 and 1 May 2000) is not in conflict with Paragraph 4 (wording of 10 December 2002) of Article 45 of the Law on State Social Insurance Pensions.

Conforming to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1, 53, 54, 55 and 56 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following

ruling:

1. To recognise that Paragraph 1 of Article 1 (wording of 18 July 1994) of the Republic of Lithuania’s Law on State Social Insurance Pensions to the extent which is related to the necessity to have the minimum state social pension insurance period which entitles to an old age pension according to the law is not in conflict with the Constitution of the Republic of Lithuania.

2. To recognise that the provision “state social insurance pensions shall be granted to persons <...> if they meet the requirements of the state social pension insurance period for the granting of respective type of the pension, established by this law” of Article 3 (wording of 18 July 1994) of the Republic of Lithuania’s Law on State Social Insurance Pensions to the extent which is related to the necessity to have the minimum state social pension insurance period which entitles to an old age pension according to the law is not in conflict with the Constitution of the Republic of Lithuania.

3. To recognise that Paragraph 2 (wording of 18 July 1994) of Article 6 of the Republic of Lithuania’s Law on State Social Insurance Pensions to the extent which is related to the necessity to have the minimum state social pension insurance period which entitles to an old age pension according to the law is not in conflict with the Constitution of the Republic of Lithuania.

4. To recognise that Item 2 of Paragraph 1 of Article 17 (wording of 7 July 1999) of the Republic of Lithuania’s Law on State Social Insurance Pensions is not in conflict with the Constitution of the Republic of Lithuania.

5. To recognise that Paragraph 1 of Article 19 of the Republic of Lithuania’s Law on State Social Insurance Pensions is not in conflict with the Constitution of the Republic of Lithuania.

6. To recognise that Paragraph 1 of Article 32 (wording of 21 December 2000) of the Republic of Lithuania’s Law on State Social Insurance Pensions to the extent which established that persons who had reached the age entitling to an old age pension and older disabled who, after granting of a state social insurance disability pension, received income from which the obligatory state social pension insurance contributions were calculated and paid, or who received state social insurance sickness benefits (including those paid by the employer for the days of sickness), motherhood, motherhood (fatherhood) or unemployment benefits, if they had the obligatory state social pension insurance period entitling to a disability pension, should be paid the basic part of the granted state social insurance disability pension, and which did not establish that the whole granted and previously paid state social insurance disability pension should be paid, was 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.

7. To recognise that Paragraphs 1, 2 and 3 of Article 32 (wording of 8 May 2001) of the Republic of Lithuania’s Law on State Social Insurance Pensions to the extent which established that the disabled who had reached the age entitling to an old age pension (Articles 18 and 22) and those who were older, who, after granting of a state social insurance disability pension, received income from which the obligatory state social pension insurance contributions were calculated and paid, or who received state social insurance sickness benefits (including those paid by the employer for the days of sickness), motherhood, motherhood (fatherhood) or unemployment benefits, should be paid not the whole granted and previously paid state social insurance disability pension, was 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.

8. To recognise that the part “prior to the entry into force of this law” of the provision “a service time pension shall be recalculated into a state social insurance old age <...> pension only if its recipient had reached the age entitling to an old age pension established by this law <...> prior to the entry into force of this law” of Paragraph 4 (wording of 10 December 2002) of Article 45 of the Republic of Lithuania’s Law on State Social Insurance Pensions is in conflict with Articles 29 and 52 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

9. To recognise that Paragraph 2 (wording of 4 July 1995) of Article 48 of the Republic of Lithuania’s Law on State Social Insurance Pensions is not in conflict with the Constitution of the Republic of Lithuania.

10. To recognise that Item 4 of the Republic of Lithuania’s Law “On the Amendment and Supplement of the Republic of Lithuania’s Law on State Social Insurance Pensions” is not in conflict with the Constitution of the Republic of Lithuania.

11. To recognise that Paragraph 3 (wording of 4 July 1995) of Article 3 of the Republic of Lithuania’s Law on State Pensions to the extent which limited the amount of the granted and paid state pension in conjunction with a state social insurance pension was in conflict with Articles 23 and 52 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

12. To recognise that the provision “the amount of state pensions established in Items 3–5 of Paragraph 1 of Article 1 of this law <...> in conjunction with a state social insurance pension to one person may not exceed the 1.5 amount of the statistical average monthly salary in the economy of the country, which is paid in the quarter before last that precedes the month when state pension is paid as published by the Department of Statistics at the Government of the Republic of Lithuania” of Paragraph 3 of Article 3 (wording of 20 February 2001) of the Republic of Lithuania’s Law on State Pensions to the extent that its formula “state pensions established in Items 3–5 of Paragraph 1 of Article 1 of this law” includes state pensions of the officials and servicemen established in Item 4 of Paragraph 1 of Article 1 of this law was not in conflict with the Constitution of the Republic of Lithuania.

13. To recognise that the provision “the total sum to one person of the amount of this pension, and state pensions and state social insurance pensions granted to the same person may not exceed the 1.5 amount of the statistical average monthly salary in the economy of the country, which is paid in the quarter before last that precedes the month when state pension is paid as published by the Department of Statistics at the Government of the Republic of Lithuania” of Paragraph 3 of Article 3 (wording of 2 July 2002) of the Republic of Lithuania’s Law on State Pensions to the extent that its formula “of each state pension established in Items 3–6 of Paragraph 1 of Article 1 of this law” includes state pensions of the officials and servicemen established in Item 4 of Paragraph 1 of Article 1 of this law is not in conflict with the Constitution of the Republic of Lithuania.

14. To recognise that the part “but not later than until 1 January 1995” of the provision “persons who had been granted service time pensions prior to 1 January 1995 and who, after granting of this pension, but not later than until 1 January 1995 had reached the age entitling to an old age pension <...> may submit the data on the salary for the time periods indicated in Item 82 of these Regulations” of Item 84 (wordings of 5 December 1995 and 1 May 2000) of the Regulations of the Granting and Payment of State Social Insurance Pensions as approved by Item 1 of the Government of the Republic of Lithuania Resolution “On the Approval of the Regulations of the Granting and Payment of State Social Insurance Pensions” of 18 November 1994 was in conflict with Paragraph 2 of Article 94 of the Constitution of the Republic of Lithuania and Paragraph 4 (wording of 18 July 1994) of Article 45 of the Republic of Lithuania’s Law on State Social Insurance Pensions.

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

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

Justices of the Constitutional Court:                                                  Armanas Abramavičius

Egidijus Jarašiūnas

Egidijus Kūris

Kęstutis Lapinskas

Zenonas Namavičius

Augustinas Normantas

Jonas Prapiestis

Vytautas Sinkevičius

Stasys Stačiokas