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On refusing to consider a petition

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

DECISION

ON THE PETITION OF THE SUPREME ADMINISTRATIVE COURT OF LITHUANIA REQUESTING AN INVESTIGATION INTO WHETHER THE REPUBLIC OF LITHUANIA’S LAW ON THE AMENDMENT OF ARTICLE 24 AND THE RECOGNITION OF ARTICLES 23 AND 32 OF THE LAW ON SOCIAL INSURANCE PENSIONS AS NO LONGER VALID IS NOT IN CONFLICT WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 

13 May 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

The Constitutional Court of the Republic of Lithuania, pursuant to Item 1 of Paragraph 1 of Article 25, Item 2 of the same article and Article 28 of the Law on the Constitutional Court of the Republic of Lithuania, in its procedural sitting, considered the petition of the Supreme Administrative Court of Lithuania requesting an investigation into whether the 16 January 2003 Republic of Lithuania’s Law on the Amendment of Article 24 and the Recognition of Articles 23 and 32 of the Law on Social Insurance Pensions as No Longer Valid was not in conflict with Paragraphs 1 and 3 of Article 5, Article 23 and Paragraph 2 of Article 30 the Constitution of the Republic of Lithuania as well as the constitutional principle of a state under the rule of law.

The Constitutional Court

has established:

I

The Supreme Administrative Court of Lithuania, the petitioner, was considering an administrative case. The said court suspended the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into whether the 16 January 2003 Republic of Lithuania’s Law on the Amendment of Article 24 and the Recognition of Articles 23 and 32 of the Law on Social Insurance Pensions as No Longer Valid (Official Gazette Valstybės žinios, 2003, No. 12-437; hereinafter also referred to as the Law) was not in conflict with Paragraphs 1 and 3 of Article 5, Article 23 and Paragraph 2 of Article 30 the Constitution of the Republic of Lithuania as well as the constitutional principle of a state under the rule of law.

II

The petition is based on these arguments.

1. On 16 January 2003, the Seimas adopted the Law on the Amendment of Article 24 and the Recognition of Articles 23 and 32 of the Law on Social Insurance Pensions as No Longer Valid. This law was adopted while taking into consideration the Constitutional Court’s ruling of 25 November 2002 in which the Constitutional Court recognised that Article 23 of the Republic of Lithuania’s Law on State Social Insurance Pensions (wordings of 21 December 1994, 21 December 2000 and 8 May 2001) to the extent that it provided that pensioners who had the obligatory state social pensions insurance period which was necessary for the old age pension and who had the insured income that was bigger than established by the law after they had been awarded the old age pension shall be paid not the full state social insurance old age pension which had been awarded and paid until then conflicted with Article 23, the provision of Paragraph 1 of Article 48 that every person may freely choose an occupation or business, and Article 52 of the Constitution of the Republic of Lithuania, as well as the constitutional principle of a state under the rule of law.

2. Under Paragraph 3 of Article 23 of the Constitution, no one may seize property in an arbitrary manner: property may only be seized on the grounds of the law and only for the needs of society and must be justly compensated for. The right to receive pension is the right of possession; in regard of the right to receive corresponding monetary payment in the form of pension the guarantees provided for in Article 23 of the Constitution must be applied; protection of private ownership is a constitutional principle; the state has a duty to defend and protect property from unlawful encroachment, while it must do so by means of a law; when the principle of protection of private ownership is guaranteed, the subjective right of the owner to exact property from unlawful possession by others acquires an important protective function.

In the opinion of the petitioner, after he has acquired the right to receive pension, the person enjoys legitimate expectation to receive the whole pension that belongs to him. It was decided not to pay part of pensions by law, which later was recognised to be in conflict with the Constitution; by the said law, the state had made an unlawful encroachment on possession. Therefore, the state has a duty to take measures so that the violated rights of ownership might be restored.

According to the petitioner, the decision of the issue of the restoration of the violated rights of ownership ought to have been made in the course of the adoption of the impugned law.

The petitioner believes that the Law “to the extent that this law does not provide as to how the violated right of ownership is restored, which was violated by not paying the full due pension” is in conflict with the Constitution.

3. Article 30 of the Constitution guarantees the right of the person who thinks that his rights have been violated to apply to court. The petitioner maintains that administration of justice becomes problematic if a proper law in order to administer justice is absent. It is a duty of the Seimas to establish the means enabling one to protect the rights of persons.

Since the impugned law does not establish that the part of old age pension which was not paid on the grounds of the provisions of the Law on Social Insurance Pensions, which were recognised to be in conflict with the Constitution, then, in the opinion of the petitioner, there is a vacuum of legal regulation, in the presence of which courts have to decide a question that is within the competence of the Seimas, while this might be regarded as a violation of the principle of separation of powers entrenched in Article 5 of the Constitution. Therefore, the Seimas must establish how the negative effects must be removed, which have occurred in the course of the application of the law which was in conflict with the Constitution.

The petitioner believes that the Law “to the extent that this law does not does not provide for the procedure of the retrieving of the unpaid pensions” is in conflict with the Constitution.

The Constitutional Court

holds that:

1. On 16 January 2003, the Seimas adopted the Law on the Amendment of Article 24 and the Recognition of Articles 23 and 32 of the Law on Social Insurance Pensions as No Longer Valid wherein it is established:

Article 1. Recognition of Article 23 as No Longer Valid

Article 23 shall be recognised as no longer valid.

Article 2. Amendment of Paragraph 3 of Article 24

The second sentence shall be deleted from Paragraph 3 of Article 24 and shall be set forth as follows:

After the payment of the pension is postponed for the period of less of one year, the pension shall be paid for the months of the last not full postponement year, but shall not be increased.’

Article 3. Recognition of Article 32 as No Longer Valid

Article 32 shall be recognised as no longer valid.

Article 4. Application of Article 3 of This Law

The provisions of Article 3 of this Law shall be applicable as of 1 January 2003.”

2. The petitioner requests an investigation into whether the Law on the Amendment of Article 24 and the Recognition of Articles 23 and 32 of the Law on Social Insurance Pensions as No Longer Valid is not in conflict with Paragraphs 1 and 3 of Article 5, Article 23 and Paragraph 2 of Article 30 the Constitution as well as the constitutional principle of a state under the rule of law. It is clear from the arguments of the petition that the petitioner had doubts whether the Law on the Amendment of Article 24 and the Recognition of Articles 23 and 32 of the Law on Social Insurance Pensions as No Longer Valid is not in conflict with Paragraphs 1 and 3 of Article 5, Article 23 and Paragraph 2 of Article 30 the Constitution as well as the constitutional principle of a state under the rule of law to the extent that the aforesaid law does not establish that one must pay and how one must pay the part of awarded and paid old age pension the payment of which was discontinued on the grounds of the Law on Social Insurance Pensions.

3. Prior to the entry into effect of the law impugned by the petitioner, Article 23 (wording of 8 May 2001) of the Law on State Social Insurance Pensions established, inter alia, the legal regulation under which, while taking account of the insured income, pensioners were paid not the full awarded old age pension: (1) if the insured income exceeded 1 minimal monthly salary but did not exceed 1.5 minimal monthly salary, the part of the amount, established in the law, of the complementary part of the pension was paid in addition to the basic part of the pension; (2) if the insured income exceeded 1.5 minimal monthly salary, only the basic part of the old age pension was paid.

In Paragraph 3 of Article 24 of the Law on State Social Insurance Pensions (wording of 8 May 2001), inter alia, reference used to be made to Article 23 under which, as mentioned before, while taking account of the amount of their insured income, the pensioners were paid not the full awarded old age pension.

Article 32 of the Law on State Social Insurance Pensions (wording of 8 May 2001) used to establish, inter alia, the provisions under which invalids, while taking account of the amount of their insured income, were paid not the full awarded old age pension.

4. In its ruling of 25 November 2002, the Constitutional Court recognised, inter alia, that Article 23 (wording of 8 May 2001) of the Law on State Social Insurance Pensions to the extent that it provided that pensioners who have the obligatory state social pensions insurance period which is necessary for the old age pension and who have the insured income exceeding 1 minimal monthly salary after they have been awarded the old age pension shall be paid not the full state social insurance old age pension which was awarded and paid until then was in conflict with Article 23, the provision of Paragraph 1 of Article 48 that every person may freely choose an occupation or business, and Article 52 of the Constitution, as well as the constitutional principle of a state under the rule of law.

5. Article 1 of the law impugned by the petitioner recognised Article 23 of the Law on State Social Insurance Pensions (wording of 8 May 2001) as no longer valid; Article 2 of the Law altered Paragraph 3 of Article 24 of the Law on State Social Insurance Pensions, by deleting from it the provision “while paying the pension, one shall take account of the insured income of the pensioner and of his age (Article 23) during the period for which the pension is paid”; Article 3 of the Law recognised Article 32 of the Law on State Social Insurance Pensions as no longer valid; Article 4 of the Law prescribes as to from what date the provisions of Article 3 of the said law become applicable, which is as of 1 January 2003.

Thus, by the law impugned by the petitioner, the Seimas recognised the articles (provisions thereof) of the Law on State Social Insurance Pensions which were in conflict with the Constitution and which limited the right of the pensioners who had insured income of certain amount to receive the full awarded and previously paid old age pension as no longer valid. By means of the law impugned by the petitioner, one removed the provisions of the Law on State Social Insurance Pensions which were in conflict with the Constitution from the legal system.

6. The petitioner grounds his doubts as to the compliance of the Law with Paragraphs 1 and 3 of Article 5, Article 23 and Paragraph 2 of Article 30 the Constitution as well as the constitutional principle of a state under the rule of law on the fact that the said law does not establish how one must restore the right of ownership, which used to be violated by failing to pay the full pension. In the opinion of the petitioner, this ought to have been provided for in the impugned law; as this has not been provided for, the impugned law, in the opinion of the petitioner, is in conflict with the constitution to the extent that the Law does not establish that one must pay and how one must pay the part of awarded and paid old age pension the payment of which was discontinued on the grounds of the Law on Social Insurance Pensions.

Thus, the petitioner requests an investigation into not something that is established in the impugned law, but something that there is not in the impugned law but what, in the opinion of the petitioner, ought to be established.

7. In its decision of 6 May 2003, the Constitutional Court held that if the laws (parts thereof) do not establish certain legal regulation, the Constitution Court enjoys the constitutional powers to investigate the compliance of these laws (parts thereof) with the Constitution in the cases when due to the fact that the said legal regulation has not been established in particularly those laws (parts thereof) the principles and/or norms of the Constitution might be violated. In the cases when the petitioner impugns the fact that the law or another impugned legal act (part thereof) indicated by the petitioner has not established certain legal regulation, but the said legal regulation under the Constitution (or under the laws, too, in case one impugns a substatutory legal act of the Seimas, the Government or the President of the Republic) need not be established in that particular impugned legal act (part thereof), the Constitutional Court holds that in the case on the petition of the petitioner the matter of investigation is absent.

8. It has been mentioned that the law impugned by the petitioner recognised the articles (provisions thereof) of the Law on State Social Insurance Pensions which were in conflict with the Constitution and which limited the right of the pensioners who had insured income of certain amount to receive the full awarded and previously paid old age pension as no longer valid.

It needs to be noted that the impugned law was adopted, while taking into consideration the Constitutional Court’s ruling of 25 November 2002. By the said law one removed the provisions of the Law on State Social Insurance Pensions which were in conflict with the Constitution from the legal system.

The impugned law is not designated to regulate the relations linked with the payment of the unpaid part of the pension. There is not any duty for the legislature, which would follow from the Constitution, to establish additional legal regulation in those particular laws (parts thereof) which recognised the legal acts (parts thereof) that were in conflict with the Constitution as no longer valid. The argument that it is the impugned law that ought to have established that one must pay and how one must pay the part of awarded and paid old age pension the payment of which was discontinued on the grounds of the Law on Social Insurance Pensions, is a groundless one.

Under the Constitution, the law impugned by the petitioner need not (contrary to the opinion of the petitioner) regulate the relations linked with the payment of the part of the unpaid pension. On the other hand, it does not mean that the legislature, in general, cannot regulate by means of law the relations of pensions from the aspect pointed out by the petitioner.

9. It has been mentioned that the petitioner requests an investigation into not something that is established in the impugned law, but something that there is not in the impugned law but what, in the opinion of the petitioner, ought to be established. Thus, the matter of the investigation is absent in the petition of the petitioner.

The fact that in the case on the petition of the petitioner the matter of investigation is absent means that the petition is not within the jurisdiction of the Constitutional Court.

Under Item 2 of Paragraph 1 of Article 69 of the Law on the Constitutional Court, the Constitutional Court shall refuse to consider petitions requesting an investigation into the compliance of a legal act with the Constitution, if the consideration of the petition does not fall under the jurisdiction of the Constitutional Court.

10. It needs to be noted that the decisions of the Constitutional Court on the issues ascribed to its competence by the Constitution shall be final and not subject to appeal (Paragraph 2 of Article 107 of the Constitution). The Constitution prescribes that a law (or part thereof) of the Republic of Lithuania or other act (or part thereof) of the Seimas, act of the President of the Republic, act (or part thereof) of the Government may not be applied from the day of official promulgation of the decision of the Constitutional Court that the act in question (or part thereof) is in conflict with the Constitution (Paragraph 1 of Article 107).

Under Article 107 of the Constitution, the power of decisions of the Constitutional Court on the compliance of legal acts with the Constitution is prospective. Paragraph 4 of Article 72 of the Law on the Constitutional Court provides that decisions based on legal acts which have been recognised as being in conflict with the Constitution or laws must not be executed if they had not been executed prior to the appropriate ruling of the Constitutional Court went into effect.

Conforming to Article 28 and Item 2 of Paragraph 1 of Article 69 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania adopts the following

decision:

To refuse to consider the petition of the Supreme Administrative Court of Lithuania requesting an investigation into whether the Republic of Lithuania’s Law on the Amendment of Article 24 and the Recognition of Articles 23 and 32 of the Law on Social Insurance Pensions as No Longer Valid is not in conflict with Paragraphs 1 and 3 of Article 5, Article 23 and Paragraph 2 of Article 30 the Constitution of the Republic of Lithuania as well as the constitutional principle of a state under the rule of law.

This decision of the Constitutional Court of the Republic of Lithuania is final and not subject to appeal.

The decision 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