Lt

On the Regulations on Granting and Paying Social Benefits

Case No. 44/01

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

RULING

ON THE COMPLIANCE OF ITEM 1 OF THE RESOLUTION OF THE SUPREME COUNCIL OF THE REPUBLIC OF LITHUANIA (NO. I-619) “ON THE APPLICATION OF THE REPUBLIC OF LITHUANIA’S LAW ON INDIVIDUAL INCOME SECURITY” OF 27 SEPTEMBER 1990, AS WELL AS ON THE COMPLIANCE OF ITEM 6.1.1 (WORDING OF 6 NOVEMBER 1996), ITEM 6.1.4 (WORDING OF 6 NOVEMBER 1996), ITEM 6.1.5 (WORDING OF 6 NOVEMBER 1996), ITEM 7 (WORDING OF 6 NOVEMBER 1996), AND ITEM 9 OF THE REGULATIONS ON GRANTING AND PAYING THE SOCIAL ALLOWANCE AS APPROVED BY THE RESOLUTION OF THE GOVERNMENT OF THE REPUBLIC OF LITHUANIA (NO. 808) “ON THE APPROVAL OF THE REGULATIONS ON GRANTING AND PAYING THE SOCIAL ALLOWANCE” OF 5 JULY 1996, AS WELL AS ON THE COMPLIANCE OF ITEM 5.1.1, ITEM 5.1.7 (WORDINGS OF 17 APRIL 2000 AND 14 JULY 2000), ITEM 5.1.8 (WORDINGS OF 17 APRIL 2000 AND 14 JULY 2000), ITEMS 5.4, 5.5.2 AND 9 OF THE REGULATIONS ON GRANTING AND PAYING THE SOCIAL ALLOWANCE AS APPROVED BY THE RESOLUTION OF THE GOVERNMENT OF THE REPUBLIC OF LITHUANIA (NO. 441) “ON THE APPROVAL OF THE REGULATIONS ON GRANTING AND PAYING THE SOCIAL ALLOWANCE” OF 17 APRIL 2000 WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA AND PARAGRAPH 1 OF ARTICLE 10 (WORDING OF 3 NOVEMBER 1994) OF THE REPUBLIC OF LITHUANIA’S LAW ON INDIVIDUAL INCOME SECURITY

5 March 2004
Vilnius

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

The court reporter—Daiva Pitrėnaitė

Aldona Karčiauskienė, the Head of Family Assistance Division at the Ministry of Social Security and Labour of the Republic of Lithuania, and Vida Marija Zabarauskienė, the Head of Law and Personnel Division at the same Ministry, acting as the representatives of the Government of the Republic of Lithuania, the party concerned

The Constitutional Court of the Republic of Lithuania, pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, on 24 February 2004, in its public hearing, heard case No. 44/01 subsequent to the petition of the Supreme Administrative Court of Lithuania, the petitioner, requesting an investigation into whether:

1) Item 6.1.1 (wording of 6 November 1996), Item 6.1.4 (wording of 6 November 1996), Item 6.1.5 (wording of 6 November 1996), Item 7 (wording of 6 November 1996), and Item 9 of the Regulations on Granting and Paying the Social Allowance as approved by the Resolution of the Government of the Republic of Lithuania (No. 808) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 5 July 1996 to the extent that they established additional conditions and limitations on the receiving of the social allowance, in comparison with Paragraph 1 of Article 10 of the Republic of Lithuania’s Law on Individual Income Security, were not in conflict with Article 5 and Item 2 of Article 94 of the Constitution of the Republic of Lithuania as well as Paragraph 1 of Article 10 of the Republic of Lithuania’s Law on Individual Income Security;

2) Item 7 (wording of 6 November 1996) of the Regulations on Granting and Paying the Social Allowance as approved by the Resolution of the Government of the Republic of Lithuania (No. 808) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 5 July 1996 to the extent that it established limitations on the receiving of the social allowance for individual families that raise children at home was not in conflict with Paragraph 2 of Article 38 and Paragraph 1 of Article 39 of the Constitution of the Republic of Lithuania;

3) Items 5.1.1, 5.1.7, 5.1.8, 5.4, 5.5.2, and 9 of the Regulations on Granting and Paying the Social Allowance as approved by the Resolution of the Government of the Republic of Lithuania (No. 441) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 17 April 2000 to the extent that they established additional conditions and limitations on the receiving of the social allowance, in comparison with Paragraph 1 of Article 10 of the Republic of Lithuania’s Law on Individual Income Security, are not in conflict with Item 2 of Article 94 of the Constitution of the Republic of Lithuania as well as Paragraph 1 of Article 10 of the Republic of Lithuania’s Law on Individual Income Security;

4) Items 5.4 and 5.5.2 of the Regulations on Granting and Paying the Social Allowance as approved by the Resolution of the Government of the Republic of Lithuania (No. 441) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 17 April 2000 to the extent that they established limitations on the receiving of the social allowance for individual families that raise children at home are not in conflict with Paragraph 2 of Article 38 and Paragraph 1 of Article 39 of the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

I

The Supreme Administrative Court of Lithuania, the 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:

1) Item 6.1.1 (wording of 6 November 1996), Item 6.1.4 (wording of 6 November 1996), Item 6.1.5 (wording of 6 November 1996), Item 7 (wording of 6 November 1996), and Item 9 of the Regulations on Granting and Paying the Social Allowance as approved by the Resolution of the Government of the Republic of Lithuania (No. 808) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 5 July 1996 (Official Gazette Valstybės žinios, 1996, No. 66-1583)—all the Items to the extent that they established additional conditions and limitations on the receiving of the social allowance, in comparison with Paragraph 1 of Article 10 of the Republic of Lithuania’s Law on Individual Income Security—were not in conflict with Article 5 and Item 2 of Article 94 of the Constitution of the Republic of Lithuania and Paragraph 1 of Article 10 of the Republic of Lithuania’s Law on Individual Income Security;

2) Item 7 (wording of 6 November 1996) of the Regulations on Granting and Paying the Social Allowance as approved by the Resolution of the Government of the Republic of Lithuania (No. 808) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 5 July 1996 to the extent that it established limitations on the receiving of the social allowance by individual families that raise children at home, was not in conflict with Paragraph 2 of Article 38 and Paragraph 1 Article 39 of the Constitution of the Republic of Lithuania;

3) Items 5.1.1, 5.1.7, 5.1.8, 5.4, 5.5.2, and 9 of the Regulations on Granting and Paying the Social Allowance as approved by the Resolution of the Government of the Republic of Lithuania (No. 441) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 17 April 2000 (Official Gazette Valstybės žinios, 2000, No. 33-936)—all the Items to the extent that they established additional conditions and limitations on the receiving of the social allowance, in comparison with Paragraph 1 of Article 10 of the Republic of Lithuania’s Law on Individual Income Security—are not in conflict with Article 5 and Item 2 of Article 94 of the Constitution of the Republic of Lithuania as well as Paragraph 1 of Article 10 of the Republic of Lithuania’s Law on Individual Income Security;

4) Items 5.4 and 5.5.2 of the Regulations on Granting and Paying the Social Allowance as approved by the Resolution of the Government of the Republic of Lithuania (No. 441) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 17 April 2000—both items to the extent that they established limitations on the receiving of the social allowance by individual families that raise children at home—are not in conflict with Paragraph 2 of Article 38 and Paragraph 1 of Article 39 of the Constitution of the Republic of Lithuania.

II

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

1. Paragraph 1 of Article 10 (wording of 3 November 1994) of the Republic of Lithuania’s Law on Individual Income Security (hereinafter also referred to as the Law) prescribes that a family whose income is lower than the one subject to the state support shall be paid a social allowance. The said article falls within Chapter III “Social Allowance” of the same law.

In the opinion of the petitioner, Paragraph 1 of Article 10 of the Law on Individual Income Security provides that the only criterion for the receiving of the social allowance is an amount of family income; the Law provides for no other limitations or additional conditions which could be a reason for not paying the social allowance to the family whose income is lower than the one subject to the state support.

2. The petitioner assumes that the additional conditions and limitations established in Item 6.1.1 (wording of 6 November 1996), Item 6.1.4 (wording of 6 November 1996), Item 6.1.5 (wording of 6 November 1996), Item 7 (wording of 6 November 1996), and Item 9 of the Regulations on Granting and Paying the Social Allowance as approved by the Government Resolution (No. 808) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 5 July 1996 as well as Items 5.1.1, 5.1.7, 5.1.8, 5.4, 5.5.2, and 9 of the Regulations on Granting and Paying the Social Allowance as approved by the Government Resolution (No. 441) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 17 April 2000, are not provided in the Law on Individual Income Security: the allowance is granted and paid to families (single persons), where spouses, one of the spouses (single persons), inter alia, are employed under an employment contract, are registered at the labour exchange office, the period of employment, the period of paying the allowance, the requirements related to remuneration for work, limitations of getting the allowance to individual families who raise children, as well as to families whose members are owners of individual enterprises, are established.

Therefore, the petitioner doubted whether Item 6.1.1 (wording of 6 November 1996), Item 61.4. (wording of 6 November 1996), Item 6.1.5 (wording of 6 November 1996), Item 7 (wording of 6 November 1996), and Item 9 of the Regulations on Granting and Paying the Social Allowance as approved by the Government Resolution (No. 808) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 5 July 1996—all the items to the extent that they established additional conditions and limitations on the receiving of the social allowance, in comparison with Paragraph 1 of Article 10 of the Republic of Lithuania’s Law on Individual Income Security—as well as Items 5.1.1, 5.1.7, 5.1.8, 5.4, 5.5.2 and 9 of the Regulations on Granting and Paying the Social Allowance as approved by the Government Resolution (No. 441) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 17 April 2000—all the items to the extent that they established additional conditions and limitations on the receiving of the social allowance, in comparison with Paragraph 1 of Article 10 of the Republic of Lithuania’s Law on Individual Income Security—are (were) not in conflict with Paragraph 1 of Article 10 of the Law on individual Income Security.

3. The petitioner noted that under Item 2 of Article 94 of the Constitution the Government has to execute laws and resolutions of the Seimas concerning the implementation of laws and that Article 5 of the Constitution consolidates the principle of the separation of powers.

The petitioner doubted whether the Government did not exceed its constitutional powers by setting additional conditions and limitations on the receiving of the social allowance, in comparison with Paragraph 1 of Article 10 (wording of 3 November 1994) of the Law on Individual Income Security, and due to the said reason whether the provisions of Item 6.1.1 (wording of 6 November 1996), Item 61.4 (wording of 6 November 1996), Item 6.1.5 (wording of 6 November 1996), Item 7 (wording of 6 November 1996), and Item 9 of the Regulations on Granting and Paying the Social Allowance as approved by the Government Resolution (No. 808) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 5 July 1996, as well as Items 5.1.1, 5.1.7, 5.1.8, 5.4, 5.5.2, and 9 of the Regulations on Granting and Paying the Social Allowance as approved by the Government Resolution (No. 441) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 17 April 2000 are (were) not in conflict with Article 5 and Item 2 of Article 94 of the Constitution.

4. Paragraph 2 of Article 38 of the Constitution provides that the state shall protect and take care of the family, motherhood, fatherhood, and childhood, and Paragraph 1 of Article 39 provides, inter alia, that the state shall take care of families that are raising and bringing up children at home and shall render them support in accordance with the procedure established by law.

According to the petitioner, limitations on the receiving of the social allowance by individual families that raise children at home are established in Item 7 (wording of 6 November 1996) of the Regulations on Granting and Paying the Social Allowance as approved by the Government Resolution (No. 808) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 5 July 1996, as well as Items 5.4 and 5.5.2 of the Regulations on Granting and Paying the Social Allowance as approved by the Government Resolution (No. 441) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 17 April 2000.

Therefore, the petitioner doubted whether Item 7 (wording of 6 November 1996) of the Regulations on Granting and Paying the Social Allowance as approved by the Government Resolution (No. 808) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 5 July 1996 as well as Items 5.4 and 5.5.2 of the Regulations on Granting and Paying the Social Allowance as approved by the Government Resolution (No. 441) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 17 April 2000 are not in conflict with Paragraph 2 of Article 38 and Paragraph 1 of Article 39 of the Constitution.

III

In the course of preparation of the case for the Constitutional Court’s hearing, explanations were received from R. Melnikienė, the Vice-minister of Social Security and Labour of the Republic of Lithuania, which were prepared by the representatives of the Government, the party concerned, who were A. Karčiauskienė and V. M. Zabarauskienė.

1. The Vice-minister pointed out that according to Item 1 of the Resolution of the Supreme Council of the Republic of Lithuania (No. I-619) “On the Application of the Republic of Lithuania’s Law on Individual Income Security” of 27 September 1990 (Official Gazette Valstybės žinios, 1990, No. 30-712), the payment of the social allowance defined in Chapter III is started upon the implementation of the income declaration; the payment of the social allowance to certain categories of residents may start earlier upon separate resolution of the Government. Item 3 of the said Resolution of the Supreme Council assigns the Ministry of Social Security, inter alia, with the task to prepare rules of calculation and payment of the social allowance.

The Vice-minister noted that the Minister of Social Security, by his order No. 8 of 15 January 1992 (not published officially), approved the Regulations of Granting the Social Allowance and Payment Thereof in which he, inter alia, defined the criteria of granting and receiving the social allowance. The social allowance which is paid to the family amounts to 90 percent in difference between the amount of the family income subject to state support and average monthly family income. As the provision concerning the income declaration has not been enforced yet, the social allowance established by Article 10 of the Law is granted and paid under substatutory legal acts—government resolutions.

In the Vice-minister’s opinion, as long as one fails to implement the general declaration of income and property of residents, no legal possibility exists to find out the actual income of the family. The calculation is only made of the family income from labour and other payments (pensions, allowances, compensations), that cannot be a basis for finding out the true personal income needed to grant the social allowance. Therefore, according to the Vice-minister, while enforcing the legal acts that regulate the declaration of income and property of residents and the said 27 September 1990 resolution (No. I-619) of the Supreme Council, on 5 July 1996, the Government adopted the Resolution (No. 808) “On the Approval of the Regulations on Granting and Paying the Social Allowance”. Items 6.1.1, 61.4, 6.1.5, 7, and 9 of the Regulations of Granting the Social Allowance and Payment Thereof define what conditions should be fulfilled in order to calculate the income received by a family. In this way the provision of Article 1 of the Law on Individual Income Security specifying the notion of income is detailed. The Vice-minister conceded that the criteria for deciding an issue of granting the social allowance, as set forth in Items 6.1.1, 6.1.4, 6.1.5, 7, and 9 of the Regulations of Granting the Social Allowance and Payment Thereof, are formulated in a legally improper way. However, in her opinion, this is not a sufficient basis for recognising the said items of the Regulations of Granting the Social Allowance and Payment Thereof as being in conflict with Paragraph 1 of Article 10 of the Law on Individual Income Security, as well as Article 5 and Item 2 of Article 94 of the Constitution.

The Vice-minister stated also that Items 5.1.1, 5.1.7, 5.1.8, 5.4, 5.5.2, and 9 of the Regulations of Granting the Social Allowance and Payment Thereof as approved by the Government Resolution (No. 441) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 17 April 2000 are not in conflict with Paragraph 1 of Article 10 of the Law on Individual Income Security, as well as Article 5 and Item 2 of Article 94 of the Constitution, either.

2. The Vice-minister stated that in Lithuania the social assistance system is comprised of allowances, compensations, tax relief, employment security for parents, assistance in getting housing, provision of food for pupils at comprehensive schools free of charge, etc. Allowances are paid according to two principles: (1) in support of families that raise children, irrespective of their income, (2) in support of families, whose income does not reach the established level of income to be supported by the state (principle of income evaluation).

Monetary social assistance irrespective of family income is rendered to families that raise children, as well as to children who have lost guardianship of their parents. In accordance with the Republic of Lithuania’s Law on State Allowance to Families That Raise Children they are paid various types of allowances.

While applying the principle of income evaluation, the monetary social assistance is rendered to the families that due to objective reasons have not enough funds to meet their minimum subsistence requirements. Such families are paid the social allowance provided for in Item 7 of the Regulations on Granting and Paying the Social Allowance as approved by the Government Resolution (No. 808) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 5 July 1996, as well as Items 5.4 and 5.5.2 of the Regulations on Granting and Paying the Social Allowance as approved by the Government Resolution (No. 441) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 17 April 2000.

In the opinion of the Vice-minister, Item 7 of the Regulations on Granting and Paying the Social Allowance as approved by the Government Resolution (No. 808) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 5 July 1996 as well as Items 5.4 and 5.5.2 of the Regulations on Granting and Paying the Social Allowance as approved by the Government Resolution (No. 441) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 17 April 2000, are not in conflict with Paragraph 2 of Article 38 and Paragraph 1 of Article 39 of the Constitution.

IV

In the course of the preparation of the case for the Constitutional Court’s hearing, additional written explanations, answers to the additional questions submitted to the representatives by the party concerned, the Government, were received from A. Karčiauskienė, the representative of the Government.

1. A. Karčiauskienė additionally explained that the basic obligations of the Republic of Lithuania in the social assistance field and the principles of organising social assistance are entrenched in Article 52 of the Constitution, as well as the Republic of Lithuania’s Law on the Bases of the State Social Assistance System, the Law on Individual Income Security, and Government resolutions. According to the representative of the party concerned, social assistance is social, economic, legal and organisational measures which are aimed at ensuring the essential living conditions to the persons (families) who have not enough income from labour, social insurance or other income due to objective reasons that are beyond their control; social assistance cannot ensure long-term economic and social growth—it only helps the human being to survive under extreme circumstances. When providing social assistance, the principle of social solidarity is followed, according to which the State accepts an obligation to take care of each human being who is incapable of taking care of himself due to objective reasons. A. Karčiauskienė also noted that a need for social assistance and its amount depend upon a demographic and economic situation of the State, the scale of suitability of the environment for people who have disability to live in, the economic capacity of the society and prevailing conception of social justice which determines re-distribution of income, as well as technical possibility of the re-distribution of such income.

2. According to the representative of the party concerned, in 1990, having taken the minimum consumption basket as the basis and having applied the statistical normative method, the applied minimum standard of living (MSL) was established. The minimum consumption set which comprises the basic groups of personal needs was defined. The value of the said minimum consumption basket amounted to 55.4 percent of the average actual national consumption level of that time. After the increase of prices, in 1991 the applied MSL was indexed for 4 times; this absolutely complied with the rate of inflation (the applied MSL increased by 5 times when the prices increased by 4.8 times). However, when in 1992 the prices increased by 12.6 times, the applied MSL increased by 3.2 times only. Its actual value reduced by 75 percent in 1992. A. Karčiauskienė stated that upon the change of the actual consumption level the previous minimum normative consumption set in 1992 lost its meaning; the applied MSL became an indicator with which the amount of social benefit (pregnancy allowances for women who study; one-time birth grants; family allowances; allowances for families that raise 3 or more children; allowances for children of servicemen performing actual military service; child care allowances; student grants for orphans; housing allowances for orphans and children who lost parental care; funeral allowances) is linked.

3. Moreover, A. Karčiauskienė explained that the reckonable MSL has been applied since 1993. Similar to the applied MSL, the latter is based on meeting the minimum consumption needs, however, the previously applied statistical normative method was substantially modified in respect of the reckonable MSL: the basis of the reckonable MSL is the value of the minimum set of food products (the number and composition of the food products in the set is established in accordance with the data of the norms of food products’ consumption by adults and the norms of rational nutrition of children, which were submitted in the surveys of household budgets). According to the representative of the party concerned, the reckonable MSL is not subject to official approval by the Government: each quarter it is defined by the experts at the Ministry of Social Security and Labour who follow the results of household budgets’ survey performed by the Department of Statistics. The value of the food products of the reckonable MSL is the basis for setting the absolute poverty line, as well as for setting the amount of income to be supported by the state which is linked with meeting the minimum needs for food products.

4. A. Karčiauskienė noted that the amount of the said allowance has to be synchronised with the minimum remuneration amount and the minimum consumption needs. In the opinion of the representative of the party concerned, should the amount of the social allowance exceed the minimum remuneration amount, no stimulus to work would remain. However, the amount of the social allowance together with the supported income of individuals may not be less than the expenditure which ensures that the minimum needs for food products are met.

According to the representative of the party concerned, the social allowance which ensures the minimum income needed for nutrition is the last support provided to the residents who are not able to get income themselves due to objective reasons (members of the family who are able to work are engaged in an active search for work through the national territorial labour exchange offices), as well as those who do not receive or who receive insufficient support from other sources, especially from the social security system.

In the opinion of A. Karčiauskienė, if the support was given to all residents whose income is lower than the established income to be supported by the state, the residents would no longer be interested to search for the income to earn their living themselves, and when illegal employment spreads, where it becomes impossible to find out the income of residents, one would abuse the support. On the other hand, having checked the living conditions and having made a statement about the check of the household, municipalities have a right to grant by their own decision social allowances to other residents who need them.

5. The representative of the party concerned noted that according to Article 52 of the Constitution the law should provide for the types of social support specified in it (in case of unemployment, sickness, widowhood, loss of breadwinner), moreover, the law should provide for other types of social assistance (other than those specified in Article 52 of the Constitution). Still the ways and content of legal regulation depend upon the variety of social life. A. Karčiauskienė paid attention to the fact that the Law on Individual Income Security was adopted as far back as 1990, therefore, it is important to take account of the legal environment, as well as social, political, and economic circumstances of that time which had influence upon the legal regulation of social assistance granted to persons; the said period is linked to the huge changes of restructuring various spheres of public life, and first of all the economic system in which the interests of the state used to prevail until then. Under such circumstances the legislature had to set an absolutely new legal regulation and to introduce new legal notions. For this particular reason the Supreme Council, by Item 1 of its Resolution (No. I-619) “On the Application of the Republic of Lithuania’s Law on Individual Income Security” of 27 September 1990, stipulated that payment of the social allowance defined in Chapter III of the Law starts upon the implementation of the income declaration; that the payment of the social allowance to certain categories of residents may begin even earlier upon a separate resolution of the Government.

According to A. Karčiauskienė, due to the reason that the general declaration of income has not been implemented completely, while enforcing the said Supreme Council Resolution of 27 September 1990, on 5 July 1996, the Government adopted the Resolution (No. 808) “On the Approval of the Regulations on Granting and Paying the Social Allowance”. Items 6.1.1, 6.1.4, 6.1.5, 7, and 9 of the Regulations on Granting and Paying the Social Allowance as approved by the said government resolution particularise about the provision of Article 1 of the Law on Individual Income Security which defines the notion of income and sets the conditions which must be in place for the calculation of the income received by the family to be possible. In the opinion of the representative of the party concerned, the criteria which are the basis for deciding the issue of granting the social allowance as listed in Items 6.1.1, 6.1.4, 6.1.5, 7, and 9 of the Regulations on Granting and Paying the Social Allowance, are formulated in a legally improper way, however, this sole fact does not constitute a sufficient basis for recognising the said items of the Regulations on Granting and Paying the Social Allowance as being in conflict with Paragraph 1 of Article 10 of the Law on Individual Income Security, as well as Article 5 and Item 2 of Article 94 of the Constitution.

V

In the course of the preparation of the case for the Constitutional Court’s hearing, written explanations were received from the specialists (institutions) who were V. Česnuitytė, a lecturer at the Social Policy Department of the Social Work Faculty, the Law University of Lithuania, Dr. R. Lazutka, a senior scientific worker at the Social Research Institute, as well as from the Free Market Institute.

VI

1. At the Constitutional Court’s hearing, the representatives of the Government, the party concerned, who were A. Karčiauskienė and V. M. Zabarauskienė, virtually reiterated the arguments set forth in the written explanations by R. Melnikienė, the Vice-minister of Social Security and Labour, and the additional written explanations by A. Karčiauskienė.

2. The specialists, V. Česnuitytė, Dr. R. Lazutka, and Dr. L. Žalimienė, a senior scientific worker at the Social Research Institute, also spoke at the Constitutional Court’s hearing.

The Constitutional Court

holds that:

I

1. Under the Constitution, the State of Lithuania is socially oriented. The social orientation of the state is reflected in various provisions of the Constitution which consolidate economic, social and cultural, as well as civil and political rights of a human being, the relations between the society and the state, the bases of social assistance and social security, the principles of organisation and regulation of the national economy, the bases of organisation and activity of state institutions, etc.

2. In this context one should note that Article 52 of the Constitution reads: “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.”

While construing the provisions of Article 52 of the Constitution, the Constitutional Court has held that in accordance with the Constitution each citizen has a right to a social security. Article 52 of the Constitution defines pensions and social assistance—these are among the forms of the social security (the Constitutional Court’s ruling of 25 November 2002).

The Constitutional Court has also held that the provisions of Article 52 of the Constitution express the social character of the state, while the social maintenance, i.e. contribution of the society to maintenance of such its members who are incapable of providing themselves from work or other means or who are not sufficiently provided due to important reasons provided by law, is recognised as having the status of a constitutional value. The measures of social protection express the idea of public solidarity; they help a person to protect himself from possible social hazards. The provisions of Article 52 of the Constitution guaranteeing citizens’ right to social maintenance, obligate the state to establish sufficient measures to implement and protect the said rights (the Constitutional Court’s rulings of 12 March 1997, 3 December 1997, 25 November 2002, and 3 December 2003).

On the other hand, the principle of solidarity in the civil society does not deny personal responsibility for one’s own fate. Therefore, the legal regulation of the social security should be such as to create preconditions for each member of the society to take care for one’s own welfare, but not to rely solely on the social security guaranteed by the state (the Constitutional Court’s rulings of 12 March 1997, 11 November 2002, and 3 December 2003). The right of a person to social assistance and to social security at large should be interpreted in accordance with the imperatives of social harmony and justice which are entrenched in the Constitution, as well as constitutional principles of equal rights of persons and proportionality. Social assistance given to a person should not become a privilege, it should not create preconditions for a person not to strive for a higher income, not to search for possibilities for ensuring to oneself and one’s family by one’s own effort the living conditions that are in line with human dignity. Thus, the Constitution does not prohibit the legislature from setting by law such bases or conditions of giving social assistance and amount of social assistance as to encourage each person’s attempts to take care of one’s own or one’s family welfare by one’s own efforts first of all and to contribute to the welfare of the entire society. The legislature has a broad discretion to differentiate social assistance. However, respective legal regulation should be established solely by law, and this should be done in compliance with the Constitution.

The legal regulation of the social assistance relations is one of the most important guarantees of the constitutional right to social assistance. The formula “the State shall guarantee” in Article 52 of the Constitution means, inter alia, that various types of social assistance are guaranteed for the persons on the bases and by the amounts that are established in laws (the Constitutional Court’s ruling of 23 April 2002). Separate types of social assistance, persons who are granted social assistance, bases, conditions of granting and paying the social assistance, amounts thereof, according to the Constitution, may be set solely by law (the Constitutional Court’s rulings of 6 May 1998, 10 February 2000, 30 October 2000, and 3 December 2003). Substatutory legal acts, and, thus, government resolutions, may only set the procedure (procedures) of the implementation of the laws that regulate social assistance relations.

In its rulings of 3 December 1997, 6 May 1998, and 30 October 2001, the Constitutional Court held that it is not allowed to establish the conditions of the emergence of a person’s right to social assistance, as well as to limit the scope of this right, by means of the substatutory regulation of the relations that are defined in Article 52 of the Constitution.

3. Paragraph 2 of Article 38 of the Constitution reads: “The State shall protect and take care of family, motherhood, fatherhood, and childhood.”

Paragraph 1 of Article 39 of the Constitution reads: “The State shall take care of families that are raising and bringing up children at home and shall render them support in accordance with the procedure established by law.”

When systematically explaining the provisions of Paragraph 1 of Article 38 and Paragraph 1 of Article 39 of the Constitution in needs to be noted that they should be linked with Paragraph 1 of Article 38 of the Constitution which provides that the family shall be the basis of society and the state. The provisions of Paragraphs 1 and 2 of Article 38 of the Constitution express an obligation of the state to establish, by means of laws and other legal acts, the legal regulation which might ensure that the family, as well as motherhood, fatherhood and childhood as constitutional values would be fostered and protected in all ways possible (the Constitutional Court’s ruling of 13 June 2000). Paragraphs 1 and 2 of Article 38 of the Constitution consolidate the most general constitutional principles.

The provision of Paragraph 1 of Article 39 of the Constitution that the state shall take care of families that are raising and bringing up children at home and shall render them support in accordance with the procedure established by law implies that the family, motherhood, fatherhood and childhood are fostered and protected constitutional values. In this context it needs to be noted that in accordance with Paragraph 6 of Article 38 of the Constitution parents have the right and duty to support their children till they come of age.

The Constitution does not expressis verbis establish any bases, conditions, terms and amounts of giving support to the families that raise and bring up children at home. These should be established by the legislature in compliance with the norms and principles of the Constitution. It needs to be stressed that resources of the society and the State must be taken into account when regulating by law the relations of assistance given to the families that raise and bring up children at home. The legislature has a broad discretion in this field. However, it is inadmissible to link the assistance rendered by the state to a family with such circumstances (conditions) which artificially aggravate the receiving of such assistance.

II

1. The principles of support to residents are established by the international (European) legal acts also.

2. Paragraph 1 of Article 13 of the European Social Charter (revised), inter alia, provides:

With a view to ensuring the effective exercise of the right to social and medical assistance, the Parties undertake:

1. to ensure that any person who is without adequate resources and who is unable to secure such resources either by his own efforts or from other sources, in particular by benefits under a social security scheme, be granted adequate assistance, and, in case of sickness, the care necessitated by his condition;

2. to ensure that persons receiving such assistance shall not, for that reason, suffer from a diminution of their political or social rights;

3. to provide that everyone may receive by appropriate public or private services such advice and personal help as may be required to prevent, to remove, or to alleviate personal or family want; <...>”

Article 16 of the European Social Charter (revised) prescribes that with a view to ensuring the necessary conditions for the full development of the family, which is a fundamental unit of society, the Parties undertake to promote the economic, legal and social protection of family life, inter alia, by social and family benefits.

Recommendation No. R(2000)3 of the Committee of Ministers of the Council of Europe “On the Right to the Satisfaction of Basic Material Needs of Persons in Situations of Extreme Hardship” of 19 January 2000 recommends to the Governments of the member states to implement in their law and practice, inter alia, the following principles: “Member states should recognise in their law and practice, a right to the satisfaction of basic material needs of any person in a situation of extreme hardship“ (Principle 1); “The right to the satisfaction of basic human material needs should contain as a minimum the right to food, clothing, shelter and basic medical care“ (Principle 2); „The right to the satisfaction of basic human material needs should be enforceable, every person in a situation of extreme hardship being able to invoke it directly before the authorities and, if need be, before the courts” (Principle 3).

3. European (Communities) Council Recommendation 92/441/EEC “On common criteria concerning sufficient resources and social assistance in social protection system” of 24 June 1992 states, inter alia, that “[it] requires the encouragement of solidarity with regard to the least privileged and most vulnerable people” and that “people with insufficient, irregular and uncertain resources are unable to play an adequate part in the economic and social life of the society in which they live and to become successfully integrated economically and socially”. The member states are recommended, inter alia, “to recognise the basic right of a person to sufficient resources and social assistance to live in a manner compatible with human dignity as a part of a comprehensive and consistent drive to combat social exclusion” and to recognise this right, inter alia, according to the following principles: it should be the right based on respect for human dignity; every person who does not have access individually or within the household in which he or she lives to sufficient resources should have access to such right subject to active availability for work or for vocational training with a view to obtaining work in the case of those persons whose age, health and family situation permit such active availability, or, where appropriate, subject to economic and social integration measures in the case of other persons; the same efforts should be made to integrate the poorest citizens into the systems of general rights. The member states are recommended, inter alia, to fix the amount of resources considered sufficient to cover essential needs with regard to respect for human dignity, taking account of living standards and price levels in the Member State concerned, for different types and amounts of household; to adjust or supplement amounts to meet specific needs; to establishing arrangements for periodic review of these amounts, based on these indicators, in order that needs continue to be covered.

III

1. On 27 September 1990, the Supreme Council adopted the Law on Individual Income Security, Article 10 of which established: “Social allowance (SA) shall be paid to a family whose income per capita is lower than income subject to the State support (ISSS). The allowance shall be computed according to the principle adverse to income tax, i.e. income which is smaller than income liable to support, shall not be subject to taxation and social security benefit shall be added thereto. When computing social allowance the paid off compensations shall be included in the real income.”

2. On 3 November 1994, the Seimas adopted the Republic of Lithuania’s Law “On an Amendment to the Republic of Lithuania’s Law on Individual Income Security”, by which it, inter alia, amended Article 10 of the Law on Individual Income Security (wording of 27 September 1990) and set it forth as follows:

A family whose income is lower than that subject to the State support shall be paid a social allowance.

Social allowance to the family shall amount to 90 percent of a difference between an amount of family income subject to the State support and an average monthly income of the family.

Upon the motion of the Ministry of Social Security and Labour the Government of the Republic of Lithuania shall adopt the amount of income subject to the State support.”

The Law “On an Amendment to the Republic of Lithuania’s Law on Individual Income Security” was published in the official gazette Valstybės žinios on 17 November 1994 and became effective on the same day.

On 15 December 1994, the Seimas adopted the Republic of Lithuania’s Law “On Supplementing the Law ‘On an Amendment to the Republic of Lithuania’s Law on Individual Income Security’” by which it supplemented the Law “On an Amendment to the Republic of Lithuania’s Law on Individual Income Security” of 3 November 1994 with Article 4 and stipulated that the said law becomes effective from 1 January 1995.

3. The petitioner does not specify the wording of Paragraph 1 Article 10 of the Law on Individual Income Security with which, in his opinion, Item 6.1.1 (wording of 6 November 1996), Item 6.1.4 (wording of 6 November 1996), Item 6.1.5 (wording of 6 November 1996), Item 7 (wording of 6 November 1996), and Item 9 of the Regulations on Granting and Paying the Social Allowance as approved by the Government Resolution (No. 808) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 5 July 1996, as well as Items 5.1.1, 5.1.7, 5.1.8, 5.4, 5.5.2, and 9 of the Regulations on Granting and Paying the Social Allowance as approved by the Government Resolution (No. 441) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 17 April 2000 (to the extent that they, in the opinion of the petitioner, established additional conditions and limitations on the receiving of the social allowance, in comparison with Paragraph 1 of Article 10 of the Republic of Lithuania’s Law on Individual Income Security), are in conflict. It is clear from the content of the petition that the petitioner doubts as to the compliance of the aforesaid items of the Regulations on Granting and Paying the Social Allowance approved by the said government resolutions (to the extent specified by the petitioner) with Paragraph 1 of Article 10 (wording of 3 November 1994) of the Law on Individual Income Security.

4. On 1 July 2003, the Seimas adopted the Republic of Lithuania’s Law on Monetary Social Assistance to Families (Persons Living Alone) With Low Income, by Item 1 of Article 27 whereof, upon the entry into effect of this law, inter alia, Paragraphs 1 and 2 of Article 10 (wording of 3 November 1994) of the Law on Individual Income Security become no longer valid. According to Article 28 of the Law on Monetary Social Assistance to Families (Persons Living Alone) With Low Income this law (except Article 26) had to become effective from 1 January 2004.

On 11 December 2003, the Seimas adopted the Law on Amendment to Articles 26 and 28 of the Law on Monetary Social Assistance to Families (Persons Living Alone) With Low Income, by Article 2 whereof Article 28 of the Law on Monetary Social Assistance to Families (Persons Living Alone) With Low Income was amended, and which stipulated that the said law comes into effect from 1 April 2004.

Thus, although Paragraphs 1 and 2 of Article 10 (wording of 3 November 1994) of the Law on Individual Income Security were recognised as the ones that are going to be no longer valid as of 1 April 2004, they are still in force during the consideration of the case at issue.

5. It was already mentioned that Article 10 of the Law on Individual Income Security (wording of 27 September 1990) established, inter alia, that social allowance shall be paid to a family whose income per capita is lower than that subject to the state support, while Paragraph 1 of Article 10 (wording of 3 November 1994) of the Law provides that a family whose income is lower than that subject to the State support shall be paid a social allowance.

The legal regulation established in Paragraph 1 of Article 10 (wording of 3 November 1994) of the Law should be construed within the context of other provisions of the Law.

5.1. The notions “income” and “income subject to support” used in Paragraph 1 (and other articles (parts thereof) of the Law) of Article 10 (wordings of 27 September 1990 and 3 November 1994) of the Law are defined in Article 1 of the Law; although Article 1 (wording of 27 September 1990) of the Law was amended by the Law “On an Amendment to the Republic of Lithuania’s Law on Individual Income Security” which was adopted on 3 November 1994, the definitions of the notions “income” and “income subject to support” were not changed.

5.1.1. Section 4 of Article 1 (wordings of 27 September 1990 and 3 November 1994) of the Law defines the notion “income” as follows:

income is nominal income of the entire family (work remuneration, bonuses included, honoraria, pensions, scholarships, allowances, income from subsidiary personal farming and individual activity, income from personal property, interest, dividends, etc.), as well as monetary estimation of income in kind which is received at the place of employment free of charge or on easy terms according to the current retail prices”.

5.1.2. Section 5 of Article 1 (wordings of 27 September 1990 and 3 November 1994) of the Law defines the notion “income subject to support” as follows:

income subject to support shall be calculated per each member of a family upon deduction of compulsory refunds from income, social allowance paid off according to this law, compensational disbursements (except cases provided in this law), as well as other income from any type of insurance, except allowance for a temporary incapacity to work”.

5.2. The legal regulation established in Paragraph 1 of Article 10 (wording of 3 November 1994) of the Law should be evaluated in accordance with the aim of the Law as defined in its preamble as well. It, inter alia, reads: “The law defines the principles of individual income support while taking account of the minimum standard of living and dynamics of prices. <…>”

Thus, the purpose of the social allowance specified in Article 10 of the Law should bring closer the income of the families that have not sufficient income to the income subject to the state support as established in accordance with the minimum standard of living. Granting the said social allowance and payment thereof is linked with the income of a family (resident)—it is lower than the income subject to the state support which is established in accordance with the minimum standard of living.

5.3. The notion “minimum standard of living” is defined in Section 3 of Article 1 (wordings of 27 September 1990 and 3 November 1994) of the Law: “minimum standard of living (MSL) is the sum of monthly income of a family per each person per month which ensures to everyone a socially acceptable minimum level of satisfaction of needs which corresponds to the need of nutrition of the organism according to physiological norms, as well as minimum needs for clothing, footwear, furniture, household, sanitary and hygiene means, housing, as well as utility, domestic, transport, communication, cultural and educational services”.

Chapter II “Minimum Standard of Living and Income Indexation” of the Law establishes, inter alia, that the minimum standard of living shall be approved by the Supreme Council of the Republic of Lithuania upon the motion of the Government not less than every five years (Paragraph 1 of Article 2); that the basis of indexation is the cumulative index of consumption prices which is calculated and announced by the Department of Statistics under the Government of the Republic of Lithuania not less than every quarter (Article 3); that the minimum standard of living shall be indexed usually at the same frequency as the Department of Statistics calculates and announces the index of consumption prices, but not less than once a year, and that the minimum standard of living shall be indexed by the Ministry of Social Security (Article 4). It needs to be noted that articles (parts thereof) of Chapter II of the Law have not been amended.

5.4. The bases of calculation of the social allowance defined in Article 10 (wording of 27 September 1990) of the Law were established in Articles 11 and 12 (wording of 27 September 1990) of the Law. The calculation of the allowance amount was linked with the income subject to the State support which is defined by taking account of the minimum standard of living.

The Law “On Amending the Republic of Lithuania’s Law on Individual Income Security” of 3 November 1994 recognised, inter alia, Articles 11 and 12 (wording of 27 September 1990) of the Law on Individual Income Security as no longer valid.

It should be noted that having recognised Articles 11 and 12 (wording of 27 September 1990) of the Law on Individual Income Security that established the bases of the calculation of the social allowance amount defined in Article 10 (wording of 27 September 1990) of the Law as no longer valid, while not correcting the content of the notions “income”, “income subject to support”, and “minimum standard of living” as defined in Article 1 of the Law, as well as its purpose as defined in the preamble of the Law, the principal link between the social allowance and the minimum standard of living established in Article 10 remained valid: the purpose of the social allowance is still to bring the income of families (residents) which have not sufficient income closer to the income subject to state support which is established according to the minimum standard of living.

6. The legal regulation established in Paragraph 1 of Article 10 (wording of 3 November 1994) of the Law is also to be construed within the context of the Republic of Lithuania’s Law on Bases of the State Social Assistance System. This law was adopted by the Supreme Council on 23 October 1990; on 21 May 1991, it was amended by the Republic of Lithuania’s Law “On Amending Article 10 of the Republic of Lithuania’s Law on Bases of the State Social Assistance System”.

According to Article 1 of the Law on the Bases of the State Social Assistance System, state social assistance is a system of social economic measures established by the state which provides finances and services necessary for living to the residents of the Republic who are incapable of providing themselves from work or other means or who are not sufficiently provided due to important reasons provided by law. Article 4 of the said law provides that the system of state social assistance is comprised of: (a) compulsory (state) social insurance; (b) social maintenance and social aid (assistance) from state funds, and Paragraph 1 of Article 7 prescribes that social maintenance and social aid (assistance) from state funds are applied when it becomes necessary to ensure or improve maintenance of certain groups of residents during pursuit of demographic, defence, ecological or other policy. Under Article 8 of this law, the social maintenance level established by the state may not be lower than the minimum standard of living except the cases where the law provides otherwise.

Paragraph 2 of Article 7 of the Law on the Bases of the State Social Assistance System provides that social maintenance and social aid (assistance) are regulated, inter alia, by the Law on Individual Income Security.

It needs to be noted that allowances and benefits which support the income of individuals, are (were) established in other laws also. Some of such allowances and payments are linked with income of individuals whose income is supported, others are not directly linked with the income of the said individuals.

IV

1. On 27 September 1990, the Supreme Council adopted the Resolution (No. I-619) “On the Application of the Republic of Lithuania’s Law on Individual Income Security”.

Item 1 of the said Resolution of the Supreme Council, inter alia, provides:

<…> The payment of the social allowance established in Chapter III of the Law begins upon the implementation of the income declaration. The payment of the social allowance to certain categories of individuals may begin even earlier upon a separate resolution of the Government. <…>”

Item 3 of the said Resolution of the Supreme Council commissions the Ministry of Social Security with drafting the rules of calculation and payment of compensations amounting to the lost income until 31 December 1990, and of the social allowance until 1 September 1991.

2. Prior to the confirmation of the Regulations on Granting and Paying the Social Allowance by the Government Resolution (No. 808) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 5 July 1996, Item 6.1.1 (wording of 6 November 1996), Item 6.1.4 (wording of 6 November 1996), Item 6.1.5 (wording of 6 November 1996), Item 7 (wording of 6 November 1996), and Item 9 of which are impugned in this case, the relations of granting social allowances and payment thereof to certain categories of residents were regulated by means of government resolutions and substatutory legal acts of the ministerial level. These substatutory legal acts established bases and conditions of granting social allowances and payment thereof, amounts of the social allowances, as well as procedure (procedures) of granting social allowances and payment thereof.

3. The powers of the Government to establish by means of separate resolutions that certain categories of individuals should be paid the social allowance defined in Chapter III of the Law on Individual Income Security earlier, i.e. without waiting for the implementation of the income declaration, originated from the Resolution of the Supreme Council (No. I-619) “On the Application of the Republic of Lithuania’s Law on Individual Income Security” (Item 1) of 27 September 1990.

The fact that the Government derives its powers to establish by means of separate resolutions that certain categories of residents should be paid the social allowance defined in Chapter III of the Law on Individual Income Security earlier, i.e. without waiting for the implementation of the income declaration, from the Resolution of the Supreme Council (No. I-619) “On the Application of the Republic of Lithuania’s Law on Individual Income Security” of 27 September 1990 is confirmed by the explanations given in this case to the Constitutional Court by the representative of the party concerned—the Government who was A. Karčiauskienė, as well as by R. Melnikienė, the Vice-minister of the Social Security and Labour.

4. It needs to be noted that is not clear from the formula “upon the implementation of the income declaration” of Item 1 of the said Supreme Council Resolution whether it refers to an introduction of the general regular income declaration (where all the residents have to declare their income on a regular basis), or to an introduction of some partial income declaration (where only certain categories of residents have to declare their income on a regular basis or where certain cases are established when all the residents have to declare their income).

Still, it is obvious that the legislature in the said resolution linked the right of families (residents) to the social allowance defined in Chapter III of the Law with the income declaration of residents, in other words, by its substatutory act—the Supreme Council Resolution—the legislature imposed a limitation on the implementation of the provision of Article 10 (wording of 27 September 1990) of the Law on Individual Income Security.

5. In this context it should be noted that the laws gradually introduced partial income declaration by defining which specific categories of residents have to declare their income on a regular basis or in which specific cases all the residents have to declare their income. The general income declaration has not been introduced yet. Taking account of the fact that the laws have not introduced the general income declaration on a regular basis yet, of the fact that the sole criterion of establishing which residents shall be paid the social allowance defined in Article 10 (wording of 3 November 1994) of the Law on Individual Income Security is that the family income is lower than the one subject to the state support, as well as of the fact that the legal regulation established in Item 1 of the Resolution of the Supreme Council (No. I-619) “On the Application of the Republic of Lithuania’s Law on Individual Income Security” of 27 September 1990 which stipulates that the social allowance provided for in Chapter III of the Law is started to be paid upon the implementation of the income declaration, while certain categories of residents may be paid the social allowance earlier upon the separate government resolution, has not been revoked or amended, it should be held that: (1) the legislature continues to link the right of the individuals to the social allowance provided for in Chapter III of the Law with their income declaration, thus, the implementation of the provision of Item 1 of Article 10 (wording of 3 November 1994) of the Law is limited by means of a substatutory legal act of the legislature, i.e. the Supreme Council resolution; (2) the powers which were vested in the Government by the Supreme Council Resolution of 27 September 1990 to establish by means of separate resolutions the cases where certain categories of residents should be paid the social allowance provided for in Chapter III of the Law have not been revoked yet.

6. The Resolution of the Supreme Council (No. I-619) “On the Application of the Republic of Lithuania’s Law on Individual Income Security” of 27 September 1990 upon which the Government grounds its powers to establish by means of separate resolutions that payment of the social allowance defined in Chapter III of the Law on Individual Income Security to certain categories of individuals begins earlier, i.e. without waiting for implementation of the income declaration, and, namely, upon the Government Resolution (No. 808) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 5 July 1996 which confirmed the Regulations on Granting and Paying the Social Allowance, as well as its Resolution (No. 441) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 17 April 2000 which replaced the former and which confirmed the Regulations on Granting and Paying the Social Allowance, were adopted prior to the entry of the Constitution into effect.

When deciding whether the items of the Regulations on Granting and Paying the Social Allowance which were confirmed by the government resolutions, and which were indicated by the petitioner, are not in conflict with the Constitution and Paragraph 1 of Article 10 (wording of 3 November 1994) of the Law on Individual Income Security, it is important to clarify the relation of the said Supreme Council Resolution which remained in force upon the entry into force of the Constitution, with the Constitution.

7. A fundamental requirement of a democratic state under the rule of law is the principle of the supremacy of the Constitution entrenched in Paragraph 1 of Article 7 of the Constitution which provides that any law or other act, which is inconsistent with the Constitution, shall be invalid; this principle in various aspects is also entrenched in Paragraph 2 of Article 5 which provides that the scope of power shall be limited by the Constitution; Paragraph 1 of Article 6 which provides that the Constitution shall be an integral and directly applicable act, Paragraph 2 of Article 6 which provides that everyone may defend his rights on the grounds of the Constitution, Paragraph 1 of Article 30 which provides that the person whose constitutional rights or freedoms are violated shall have the right to apply to court, Paragraph 1 of Article 102 which provides that the Constitutional Court shall decide whether the laws and other acts of the Seimas are not in conflict with the Constitution and whether acts of the President of the Republic and the Government are not in conflict with the Constitution or laws, Paragraph 1 of Article 110 which provides that a judge may not apply a law that is in conflict with the Constitution, etc. All the provisions of the Constitution should be construed in accordance with the principle of supremacy of the Constitution. In its ruling of 24 December 2002 the Constitutional Court held that “the principle of the supremacy of the Constitution means that the Constitution rests in the exceptional, highest, place in the hierarchy of legal acts, that no legal act may be in conflict with the Constitution, that no one is permitted to violate the Constitution, that the constitutional order must be protected, that the Constitution itself consolidates the mechanism permitting the determination of whether legal acts (parts thereof) are not in conflict with the Constitution. In this respect, the principle of the supremacy of the Constitution, which is established in the Constitution, is inseparably linked with the constitutional principle of a state under the rule of law, which is a universal constitutional principle upon which the entire Lithuanian legal system and the Constitution itself are based. Violation of the principle of the supremacy of the Constitution would mean that the constitutional principle of a state under the rule of law is violated as well.”

8. Article 8 of the Constitution also provides:

In Lithuania, the Seimas, the President of the Republic and the Government, and the Judiciary, shall execute State power.

The scope of power shall be limited by the Constitution.

State institutions shall serve the people.”

Article 5 of the Constitution, as well as other articles (parts thereof) of the Constitution, consolidates the principle of the separation of powers. When construing the constitutional principle of the separation of powers, in its rulings the Constitutional Court has held more than once that legislative, executive and judicial powers must be separated, sufficiently independent, but still they should be balanced; that each state institution has an established competence that meets its purpose; that specific content of the competence of the institution depends upon the place of the specific branch of power within the general system of branches of power and its relationship with other branches of power, upon the place of the institution among other institutions and the relationship of its own powers with those of other institutions; that, after the powers of a concrete state institution have been directly established in the Constitution, a state institution may not take over such powers from another institution, transfer or waive them, and that such powers may not be changed or limited by law.

The constitutional principle of the separation of powers determines the absence of delegated legislation in Lithuania (the Constitutional Court’s rulings of 26 October 1995, 19 December 1996, and 3 June 1999). Therefore, according to the Constitution the Seimas has no right, inter alia, to assign the Government with the implementation of the constitutional competence of the Seimas, and the Government may not accept and execute such assignment.

9. According to Item 2 of Article 67 of the Constitution the Seimas shall pass laws.

The Seimas is the representation of the Nation. It implements the legislative power in the state. The Seimas, in compliance with the procedure established in the Constitution and the Statute of the Seimas, may adopt any law (the Constitutional Court’s ruling of 22 July 1994). When passing laws, the Seimas is bound by the Constitution.

A law passed by the Seimas is a primary legal act adopted under the procedure prescribed in the Constitution and the Statute of the Seimas (the Constitutional Court’s rulings of 19 January 1994, 26 October 1995, and 29 May 1997). A law can be amended or its validity can be nullified only upon the adoption of another law or recognition of it as contradictory to the Constitution by the Constitutional Court. The laws should not be in conflict with the Constitution and constitutional laws.

All the other legal acts shall be substatutory. They are acts of application of laws and may not replace laws, amend the content of the norms of laws, and they may not establish any such legal regulation that would compete with that of laws.

In its ruling of 26 October 1995, the Constitution Court held that the laws establish rules of general nature, while substatutory legal acts may particularise them and regulate the procedure of their implementation.

In its ruling of 30 December 2003, the Constitutional Court held that “the constitutional principle of a state under the rule of law also implies a hierarchy of legal acts, inter alia, the fact that substatutory legal acts cannot be in conflict with laws, constitutional laws, and the Constitution, that substatutory legal acts must be adopted on the basis of laws, that a substatutory legal act is an act of application of legislative norms irrespective of whether this act is of one-off (ad-hoc) application, or of permanent validity.”

The Seimas has an authority to pass also resolutions concerning the implementation of laws specified in Item 2 of Article 94 of the Constitution. In these resolutions assignments to other state institutions to take legal and/or organisational actions to ensure implementation of laws may be formulated. However, it needs to be stressed that resolutions of the Seimas concerning the implementation of laws are substatutory legal acts; they may not provide for any such legal regulation that would compete with that established in laws. Otherwise they would not meet the constitutional concept of Seimas’ resolutions on the implementation of laws as substatutory legal acts.

10. 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 Constitutional Court in its rulings has held more than once that the acts of the Government are substatutory acts. They are acts of application of laws and may not replace laws, be in conflict with laws, amend the content of norms of laws, and they may not establish any such legal regulation that would compete with that of laws. The constitutional principle of a state under the rule of law also implies a hierarchy of legal acts.

The Government substatutory acts—resolutions—are passed on the basis of the Constitution and laws (the Constitutional Court’s ruling of 13 December 2003). According to the provision of Item 2 of Article 94 of the Constitution that the Government executes laws and resolutions of the Seimas concerning the implementation of laws, the Government’s duty to adopt substatutory acts necessary for the implementation of laws derives directly from the Constitution. Moreover, when it sees that in order to implement laws substatutory acts are needed to be adopted, the legislature may assign the Government with such duty in a law or resolution of the Seimas concerning the implementation of laws. Thus, the duty of the Government to adopt substatutory acts that are needed for implementation of laws derives from the Constitution, and, upon the assignment of the legislature, also from laws and resolutions of the Seimas concerning the implementation of laws (the Constitutional Court’s ruling of 30 October 2001). The Government is not obliged to specify in the substatutory acts which particular laws, resolutions of the Seimas or decrees of the President of the Republic it implements by adopting a substatutory legal act; it is important that the Government adopt a substatutory legal acts without exceeding its own powers, and that these substatutory acts be not in conflict with the Constitution and laws (the Constitutional Court’s ruling of 18 December 2001).

11. In its ruling of 29 October 2003, the Constitutional Court held: “Upon restoration of the independent State of Lithuania on 11 March 1990, the creation of the national legal system was started. On 11 March 1990, the Supreme Council adopted the provisional Basic Law of the Republic of Lithuania. Until 2 November 1992, when the Constitution of the Republic of Lithuania, which was adopted by the Nation in the referendum on 25 October 1992, came into effect, the national legal system used to be created and developed on the basis of the Provisional Basic Law. The creation and development of the national legal system is a gradual process”.

In the said ruling the Constitutional Court noted that the principle of the supremacy of the Constitution also implies a duty of the legislature and other lawmaking subjects to revise legal acts which were passed before the entry into effect of the Constitution, while taking account of norms and principles of the Constitution, and to ensure a harmonious hierarchical system of legal acts which regulate the same relationships.

Therefore, upon the entry into effect of the Constitution, the state institutions which have powers to adopt legal decisions, may do this only by paying heed to the Constitution.

Within the context of the case at issue it should be noted that only such Government powers to issue legal acts may be regarded as being in compliance with the Constitution, which derive from the Constitution or laws and resolutions of the Seimas concerning the implementation of laws that are not in conflict with the Constitution, as well as decrees of the President of the Republic that are not in conflict with the Constitution.

12. It was already mentioned that, according to the Constitution, certain types of social assistance, persons to whom social assistance is granted, the bases and conditions of granting social assistance and payment thereof, as well as the amount of assistance may be established only by law and that substatutory acts, thus, government resolutions as well, may establish only the procedure (procedures) of the implementation of the laws that regulate the social assistance relations, and that the substatutory regulation of the relations specified in Article 52 of the Constitution may not establish any conditions of the emergence of a person’s right to social assistance, nor limit the scope of such right.

13. It was already mentioned that Paragraph 1 of Article 10 (wording of 3 November 1994) of the Law on Individual Income Security specifies the sole criterion according to which it is defined which residents are paid the social allowance, namely the fact that the family income is lower than that subject to the state support.

It was held in this ruling of the Constitution Court that the substatutory regulation of relations specified in Article 52 of the Constitution may not establish conditions of the emergence of a person’s right to social assistance, nor limit the scope of such right; that resolutions of the Seimas concerning the implementation of laws which are specified in Item 2 of Article 94 of the Constitution may not establish any such legal regulation which would compete with the one established in the law; that the Seimas, according to the Constitution, has no right to assign the Government, inter alia, with the implementation of the constitutional competence of the Seimas, and the Government cannot accept and execute such assignment.

According to Item 1 of the Resolution of the Supreme Council (No. I-619) “On the Application of the Republic of Lithuania’s Law on Individual Income Security” of 27 September 1990, the social allowance established in Chapter III of the Law is started to be paid upon the implementation of the income declaration; to certain categories of residents the social allowance may start to be paid even earlier upon a separate resolution of the Government.

It was held in this ruling of the Constitutional Court that by such legal regulation the legislature linked the right of families (residents) to the social allowance defined in Chapter III of the Law with the income declaration, and, thus, imposed a limitation on the implementation of the provision of Paragraph 1 of Article 10 (wording of 3 November 1994) of the Law by means of a substatutory act—a resolution of the Supreme Council. It was also held that the legal regulation established in Item 1 of the Supreme Council Resolution of 27 September 1990 which has been adopted prior to the entry of the Constitution into effect, and which has not been amended or nullified after the entry of the Constitution into effect, means, inter alia, that the Government has powers to establish by means of separate resolutions the cases where certain categories of residents are paid the social allowance defined in Chapter III of the Law.

Thus, the provisions “the payment of the social allowance established in Chapter III of the Law begins upon the implementation of the income declaration. The payment of the social allowance to certain categories of residents may begin even earlier upon a separate resolution of the Government” of Item 1 of the Resolution of the Supreme Council (No. I-619) “On the Application of the Republic of Lithuania’s Law on Individual Income Security” of 27 September 1990 compete with the legal regulation established in Paragraph 1 (wording of 3 November 1994) of Article 10 of the Law on Individual Income Security.

By the same it should be held that such legal regulation is not in line with the provisions of Article 52 and Item 2 of Article 94 of the Constitution, and the constitutional principle of the separation of powers.

14. It should be noted that as it was held in this ruling of the Constitutional Court the principle of supremacy of the Constitution implies the duty of the legislature and other lawmaking subjects to revise legal acts which were passed before the entry of the Constitution into effect, while taking account of norms and principles of the Constitution, and to ensure a harmonious hierarchical system of legal acts which regulate the same relationships. Therefore, according to the Constitution, the Seimas had a duty to revise the provisions “the payment of the social allowance established in Chapter III of the Law begins upon the implementation of the income declaration. The payment of the social allowance to certain categories of residents may begin even earlier upon a separate resolution of the Government” of Item 1 of the Resolution of the Supreme Council (No. I-619) “On the Application of the Republic of Lithuania’s Law on Individual Income Security” of 27 September 1990 with regard to their compliance with the Constitution and to nullify them or amend them so that they become in line with the Constitution. This has not been done. The fact that the provisions “the payment of the social allowance established in Chapter III of the Law begins upon the implementation of the income declaration. The payment of the social allowance to certain categories of residents may begin even earlier upon a separate resolution of the Government” of Item 1 of the Resolution of the Supreme Council (No. I-619) “On the Application of the Republic of Lithuania’s Law on Individual Income Security” of 27 September 1990 remained in force after the Constitution had gone into effect, is not in compliance with the principle of supremacy of the Constitution. When the said provisions are left in force after the Constitution had gone into effect, one deviates from the constitutional principle of a state under the rule of law.

15. Taking account of the arguments set forth, the conclusion should be drawn that the provisions “The payment of the social allowance established in Chapter III of the Law begins upon the implementation of the income declaration. The payment of the social allowance to certain categories of residents may begin even earlier upon a separate resolution of the Government” of Item 1 of the Resolution of the Supreme Council (No. I-619) “On the Application of the Republic of Lithuania’s Law on Individual Income Security” of 27 September 1990 are in conflict with Article 52 and Item 2 of Article 94 of the Constitution, the constitutional principle of a state under the rule of law, the constitutional principle of the separation of powers, as well as Paragraph 1 of Article 10 (wording of 3 November 1994) of the Law on Individual Income Security.

V

On the compliance of Item 6.1.1 (wording of 6 November 1996), Item 6.1.4 (wording of 6 November 1996), Item 6.1.5 (wording of 6 November 1996), Item 7 (wording of 6 November 1996), and Item 9 of the Regulations on Granting and Paying the Social Allowance as approved by the Government Resolution (No. 808) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 5 July 1996 with Article 5 and Item 2 of Article 94 of the Constitution, and Paragraph 1 of Article 10 (wording of 3 November 1994) of the Law on Individual Income Security.

1. By its Resolution (No. 808) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 5 July 1996, the Government confirmed the Regulations on Granting and Paying the Social Allowance.

By its Resolution (No. 1284) “On a Partial Amendment to the Resolution of the Government of the Republic of Lithuania (No. 808) ‘On the Approval of the Regulations on Granting and Paying the Social Allowance’ of 5 July 1996” of 6 November 1996, the Government amended the Regulations on Granting and Paying the Social Allowance which were approved by the Government Resolution (No. 808) “On the Approval of the Regulations on Granting and Paying the Social Allowance” on 5 July 1996.

One more amendment to the Regulations on Granting and Paying the Social Allowance which were approved by the Government Resolution (No. 808) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 5 July 1996 was made by the Government Resolution (No. 170) “On Recognising Item 16 of the Regulations on Granting and Paying the Social Allowance which were approved by the Government Resolution (No. 808) ‘On the Approval of the Regulations on Granting and Paying the Social Allowance’ of 5 July 1996 as No Longer Valid” of 28 February 1997, which recognised Item 16 of the said Regulations as no longer valid.

The Government, by its Resolution (No. 441) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 17 April 2000, confirmed the Regulations on Granting and Paying the Social Allowance. Item 2 of the said Resolution recognised the Government Resolution (No. 808) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 5 July 1996 (with subsequent amendments) as no longer valid.

1.1. Item 6 (wording of 6 November 1996) of the Regulations on Granting and Paying the Social Allowance which were approved by the Government Resolution (No. 808) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 5 July 1996 used to provide:

The allowance shall be granted and paid to families (single persons) in case:

6.1. the spouses, one of the spouses (single persons):

6.1.1. are (is) employed full time under an employment contract and within a 3-month period, the income during which needs to be calculated, have (has) worked at least two thirds of the work-time established in the work schedule of the enterprise, institution or organisation (including the period of temporary inability to work, downtime which occurred due to a reason other than the employee’s fault, annual vacations and other period during which the employee did not work due to justifiable reasons and which is remunerated by the average salary or a part thereof) and their (his) calculated salary was not less than the minimum monthly salary or the minimum hourly remuneration in proportion to the working time or the task performed.

Where the person has worked for the period less than 2 months, the allowance to his family (to him) shall be granted and income shall be calculated according to the second section of Item 25 of the Regulations;

6.1.2. are (is) performing actual military service (except the compulsory one) upon the procedure established in the Republic of Lithuania’s Law on National Defence;

6.1.3. are (is) a full-time students (student) at state (municipal) educational establishments;

6.1.4. are (is) unemployed, who receive (receives) the unemployment allowance, while during the period of training—training allowance; are (is) registered at the labour exchange office and engaged in public works or works supported by the Employment Fund according to a contract which was concluded for the period no shorter than 2 months;

6.1.5. are (is) registered at the labour exchange office and the period of payment of the unemployment allowance (within the period of training—the training allowance) established in the Republic of Lithuania’s Law on Assistance to the Unemployed has expired; the period of validity of the contract concerning public works or works supported by the Employment Fund which was concluded for the period no shorter than 2 months has expired, and the unemployed person has not terminated it by his own choice. The allowance to their families (single persons) shall be granted and paid for no longer than 6 months from the date of finishing the payment of the unemployment allowance (within the period of training—the training allowance) or termination of the contract on public works or works supported by the Employment Fund. Where the person is registered at the labour exchange office anew, the allowance shall not be granted to the family (it shall be terminated);

6.1.6. have (has) reached the age limit for the old-age-pension;

6.1.7. are (is) disabled;

6.1.8. have (has) been commissioned for at least a month to an in-patient treatment institution or had (has) been recognised by the doctors consultative commission as unable to work;

6.2. one of the spouses is employed or unemployed due to the reasons listed in Items 6.1.2, 6.1.3, 6.1.7, or 6.1.8 of these Regulations, and the other spouse or the single person nurses a family member or a relative who is a disabled person belonging to I or II group, a disabled child or a sick person, and who needs constant nursing according to a conclusion of the doctors consultative commission or the commission on determining the disability, or who was recognised as incapable by court;

6.3. one of the spouses is employed or unemployed due to the reasons listed in Items 6.1.2-6.1.8 of the Regulations, and the other spouse or a single person is:

6.3.1. not working pregnant woman (70 calendar days prior to delivery) who has submitted a certificate from the medical institution;

6.3.2. a person, instead of pension who receives monthly compensations upon the procedure established by the Republic of Lithuania’s Law on State Social Insurance Pensions or the Republic of Lithuania’s Law on Social Assistance (Social) Pensions.”

1.2. Item 7 (wording of 6 November 1996) of the Regulations used to provide:

The allowance shall be granted and paid solely to families which raise children, where:

7.1. one of the parents raise at home a child younger than 3 years of age who does not attend a pre-school children educational establishment, and there is no other parent or the other parent is employed or unemployed due to the reasons listed in Items 6.1.2-6.1.8 and Item 6.2 of these Regulations;

7.2. a mother (when the father is employed or unemployed due to the reasons listed in Items 6.1.2-6.1.8 and Item 6.2 of the Regulations) or a father (when there is no mother or when she submits a medical conclusion that she is unable to nurse a child due to her state of health):

7.2.1. raises a child younger than 14 years of age or a disabled child younger than 16 years of age and works part time, while the calculated salary is not less than the minimum monthly salary or the minimum hourly remuneration in proportion to the working time or the task performed;

7.2.2. raises at home 3 or more children younger than 16 years of age, where at least one of them is younger than 8 years of age and at least one of the children of pre-school age does not attend a pre-school children educational establishment or school (certificate issued by a regional paediatrician or by the municipality certifying the fact must be submitted);

7.2.3. raises at home a child of pre-school age according to the doctor’s recommendation (approved certificate which was issued by a medical institution);

7.2.4. raises at home a child (children) younger than 16 years of age and has a piece of land with total agricultural area is from 2 to 3.5 hectare;

7.3. children from 16 to 18 years of age:

7.3.1. are employed (limitations established in Item 6.1.1 do not apply);

7.3.2. are full-time students at a state (municipal) educational establishments;

7.3.3. are registered at the labour exchange office.”

1.3. Item 9 of the Regulations used to provide:

The allowance is granted in case the persons specified in Items 6-8 of these Regulations are not owners of individual enterprises, founders of stock (close stock) companies, do not hold the controlling share portfolio, as well as have not acquired a patent.”

Item 8 (wording of 6 November 1996) of the Regulations which is referred to in Item 9 of the Regulations used to provide:

Social allowance shall be granted and paid solely to the children in families which have a personal farm with the total agricultural area from 2 to 3.5 hectare in the following cases:

8.1. the parents (one of the parents, when there is no other parent, when the parent is employed or unemployed due to the reasons listed in Items 6 and 7 of the Regulations) are employed at an enterprise engaged in agricultural activity and their (his) salary within the 3-month period, the income during which needs to be calculated, is not less than one minimum monthly salary approved by the Government of the Republic of Lithuania;

8.2. the parents (one of the parents, when there is no other parent, when the parent is employed or unemployed due to the reasons listed in Items 6 and 7 of these Regulations) are unemployed, registered at the labour exchange office as those who search for a job and do not receive an unemployment (training) allowance. The allowance to the families is paid for the period no longer than 6 months.”

1.4. All the impugned items of the Regulations on Granting and Paying the Social Allowance (to the extent that, in the opinion of the petitioner, they established additional conditions and limitations on the receiving of the social allowance, in comparison with Paragraph 1 of Article 10 (wording of 3 November 1994) of the Law on Individual Income Security) which were adopted by the Government Resolution (No. 808) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 5 July 1996, were specified in the chapter “Beneficiaries of the Social Allowance” of the Regulations.

2. It was already mentioned that Paragraph 1 of Article 10 (wording of 3 November 1994) of the Law on Individual Income Security indicates the sole criterion of defining which individuals shall be paid the social allowance, namely, the fact that the family income is lower than the income subject to the state support.

In this ruling of the Constitution Court it was held that the substatutory legal regulation of relations indicated in Article 52 of the Constitution may not establish conditions of the emergence of a person’s right to social assistance, and to limit the scope of such right; that various types of social assistance are guaranteed to the persons and on such bases which are established by law, that certain types of social assistance, persons who are granted social assistance, bases and conditions of granting the social assistance and payment thereof, the amount of social assistance may, under the Constitution, be established only by law, that substatutory acts, thus, government resolutions as well, may establish only the procedure (procedures) of the implementation of laws which regulate social assistance relations.

3. The impugned Item 6.1.1 (wording of 6 November 1996), Item 6.1.4 (wording of 6 November 1996), Item 6.1.5 (wording of 6 November 1996), Item 7 (wording of 6 November 1996), and Item 9 of the Regulations on Granting and Paying the Social Allowance which were adopted by the Government Resolution (No. 808) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 5 July 1996 established not the procedure of the granting and paying of the social allowance, but the conditions of the receiving of such allowances and the persons who had the right to get the social allowance, as well as the range of persons eligible for receiving the social allowance was reduced in comparison with the range established in Paragraph 1 of Article 10 (wording of 3 November 1994) of the Law on Individual Income Security.

On the other hand, as it was already mentioned, the Constitution does not prohibit the legislature from establishing, by law, such bases and conditions of granting the social assistance, and amounts of the social assistance, so as to encourage attempts, first of all, to take care of one’s own or one’s family welfare by one’s own efforts first of all and to contribute to the welfare of the entire society. The fact that the legislature has a broad discretion to differentiate the social assistance has also been mentioned. However, only laws may link the granting of the social assistance with the attempts of a person, who claims to receive the social assistance, to take care of one’s own or one’s family welfare by one’s own efforts first of all. In the case at issue this was established by means of a substatutory act—a government resolution.

The said legal regulation which was established by means of a substatutory legal act—a government resolution—competes with the one established in the law; the substatutory legal regulation virtually changes the one established by law. This is not in line with the provision of Paragraph 2 of Article 5 of the Constitution which provides that the scope of powers shall be limited by the Constitution, as well as provisions of Article 52 and Item 2 of Article 94 of the Constitution.

4. Taking account of the arguments set forth, the conclusion should be drawn that Item 6.1.1 (wording of 6 November 1996), Item 6.1.4 (wording of 6 November 1996), Item 6.1.5 (wording of 6 November 1996), Item 7 (wording of 6 November 1996), and Item 9 of the Regulations on Granting and Paying the Social Allowance as approved by the Government Resolution (No. 808) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 5 July 1996, all the items to the extent that they established additional conditions and limitations on the receiving of the social allowance, in comparison with Paragraph 1 of Article 10 (wording of 3 November 1994) of the Republic of Lithuania’s Law on Individual Income Security, were in conflict with Paragraph 2 of Article 5, Article 52, and Item 2 of Article 94 of the Constitution of the Republic of Lithuania, as well as Paragraph 1 of Article 10 (wording of 3 November 1994) of the Law on Individual Income Security.

VI

On the compliance of Item 5.1.1, Item 5.1.7 (wordings of 17 April 2000 and 14 July 2000), 5.1.8 (wordings of 17 April 2000 and 14 July 2000), Items 5.4, 5.5.2, and 9 of the Regulations on Granting and Paying the Social Allowance as approved by the Government Resolution (No. 441) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 17 April 2000 with Article 5 and Item 2 of Article 94 of the Constitution, and Paragraph 1 of Article 10 (wording of 3 November 1994) of the Law on Individual Income Security, as well as on the compliance of Item 7 (wording of 6 November 1996) of the Regulations on Granting and Paying the Social Allowance as approved by the Government Resolution (No. 808) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 5 July 1996, and Items 5.4 and 5.5.2 of the Regulations on Granting and Paying the Social Allowance as approved by the Government Resolution (No. 441) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 17 April 2000 with Paragraph 2 of Article 38 and Paragraph 1 of Article 39 of the Constitution.

1. By its Resolution (No. 441) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 17 April 2000 the Government approved the Regulations on Granting and Paying the Social Allowance.

By its Resolution (No. 836) “On a Partial Amendment to the Resolution of the Government of the Republic of Lithuania (No. 441) ‘On the Approval of the Regulations on Granting and Paying the Social Allowance’ of 17 April 2000” of 14 July 2000, the Government made amendments to the Regulations on Granting and Paying the Social Allowance which were confirmed by the Government Resolution (No. 836) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 17 April 2000; amendments were made, inter alia, to Item 5.1.7 (wording of 17 April 2000), and Item 5.1.8 (wording of 17 April 2000) of the said regulations, the compliance of which with the Constitution and Paragraph 1 of Article 10 (wording of 3 November 1994) of the Law on Individual Income Security is impugned by the petitioner.

On 9 October 2003, the Government adopted the Resolution (No. 1251) “On the Assignment of Powers While Implementing the Republic of Lithuania’s Law on Monetary Social Assistance to Families (Persons Living Alone) with Low Income”, Item 3 of which recognised, inter alia, the Government Resolution (No. 441) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 17 April 2000 (with subsequent amendments) as no longer valid from 1 January 2004.

By its Resolution (No. 1683) “On an Amendment to the Resolution of the Government of the Republic of Lithuania (No. 1251) ‘On the Assignment of Powers While Implementing the Republic of Lithuania’s Law on Monetary Social Assistance to Families (Persons Living Alone) with Low Income’ of 9 October 2003” of 24 December 2003, the Government changed the date from which the Government Resolution (No. 441) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 17 April 2000 (with subsequent amendments), inter alia, is recognised as no longer valid, and resolved that it shall be no longer effective from 1 April 2004.

Thus, although the Government Resolution (No. 441) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 17 April 2000 and the Regulations on Granting and Paying the Social Allowance (with subsequent amendments) which were approved by this Resolution are recognised as the ones that shall be no longer effective from 1 April 2004, during the consideration of the case they are still in force.

1.1. Item 5 (wording of 17 April 2000) of the Regulations on Granting and Paying the Social Allowance which were approved by the Government Resolution (No. 441) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 17 April 2000, provides:

The allowance shall be granted and paid to a family (person living alone) in case:

5.1. the adult members of the family (person living alone):

5.1.1. are (is) employed under an employment contract and within the 3 months period, the income during which needs to be calculated, had worked at least two thirds of the maximum working time established in the Republic of Lithuania’s Law on Human Safety at Work (Official Gazette Valstybės žinios, 1993, No. 55-1064) (including the period of temporary inability to work, downtime which occurred due to a reason other than the employee’s fault, annual vacations and other period during which the employee was not at work due to justifiable reasons and which is remunerated according to the procedure established by law), and their calculated salary is not less than the minimum hourly remuneration or the minimum monthly salary in proportion to the working time or the task performed.

When member(s) of the family which had no right to the social allowance starts (start) to work, the family acquires the right to receive the allowance from the entire calendar month worked off. The allowance is granted where the calculated salary of member(s) of family who started to work for the said month is not less than the minimum hourly remuneration or the minimum monthly salary in proportion to the working time or the task performed; <…>

5.1.7. are (is) unemployed, and receive the unemployment allowance, while during the period of training—training allowance;

5.1.8. are (is) unemployed whose period of payment of the unemployment allowance or the training allowance has expired. The right to receive the allowance remains until the registration at the national territorial labour exchange office becomes terminated or the unemployed person(s) becomes (become) registered anew; <…>

5.4. the mother or father (guardian) raises at home a child younger than 3 years of age who does not attend a pre-school educational establishment;

5.5. the mother (father, when there is no mother or she is not able to take care of the child due to important reasons—illness, disability, service of punishment, etc.): <…>

5.5.2. who has 3 or more children under 16 years of age and raises at home at least one child younger than 8 years of age who do not attend a pre-school educational establishment or school <…>.”

1.2. Item 5 (wording of 14 July 2000) provides:

The allowance shall be granted and paid to a family (person living alone) in case:

5.1. the adult members of the family (person living alone): <…>

5.1.7. are (is) unemployed, receive the unemployment allowance, and during the period of training—training allowance; are (is) registered at the state territorial labour exchange office and engaged in public works or works supported by the Employment Fund under a contract which was made for the period no shorter than 2 months;

5.1.8. are (is) unemployed, registered at the state territorial labour exchange office and the period of payment of the unemployment allowance (within the period of training—the training allowance) established in the Republic of Lithuania’s Law on Assistance to the Unemployed has expired; the period of validity of the contract concerning public works or works supported by the Employment Fund which was concluded for the period no shorter than 2 months has expired, and the unemployed person has not terminated it by his own choice. The allowance to their families (person living alone) shall be granted and paid for no longer than 6 months from the date of finishing the payment of the unemployment allowance or termination of the contract on public works or works supported by the Employment Fund. Where the person is registered at the labour exchange office anew, the allowance shall not be granted to the family (it shall be terminated);

The families of the persons listed in Items 5.1.7. and 5.1.8 shall not be granted the allowance and payment thereof shall be terminated where upon the established order they refuse to take a proposed job, training courses, public works or works supported by the Employment Fund <…>”.

1.3. Item 9 of the regulations provides:

9. The allowance shall not be granted to the family (person living alone), where at least one member of the family (person living alone) is the owner of an individual (private) enterprise or holds a patent.

The family (persons living alone) acquires a right to the allowance in case the owner of an individual (private) company, where the latter is not active, meets the requirements set forth in Item 5.1.9.”

1.4. All the impugned items of the Regulations on Granting and Paying the Social Allowance (to the extent that in the opinion of the petitioner, they established additional conditions and limitations on the receiving of the social allowance, in comparison with Paragraph 1 of Article 10 of the Law on Individual Income Security) which were adopted by the Government Resolution (No. 441) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 17 April 2000, were specified in Chapter II “Requirements Concerning the Receiving of the Social Allowance” of the Regulations.

2. It was already mentioned that Paragraph 1 of Article 10 (wording of 3 November 1994) of the Law on Individual Income Security indicates the sole criterion of defining which individuals shall be paid the social allowance, namely the fact that the family income is lower than the income subject to the state support.

In this ruling of the Constitution Court it was held that the substatutory legal regulation of the relations indicated in Article 52 of the Constitution may not establish conditions of the emergence of a person’s right to social assistance, and to limit the scope of such right; that various types of social assistance are guaranteed to such persons and on such bases which are established by law; that, under the Constitution, certain types of social assistance, the persons who are granted social assistance, the bases and conditions of granting social assistance and payment thereof, the amounts of social assistance may be established only by law; that substatutory acts, thus, government resolutions as well, may establish only the procedure (procedures) of the implementation of laws which regulate social assistance relations.

3. The impugned Item 5.1.1, Item 5.1.7 (wordings of 17 April 2000 and 14 July 2000), Item 5.1.8. (wordings of 17 April 2000 and 14 July 2000), Items 5.4, 5.5.2, and 9 of the Regulations on Granting and Paying the Social Allowance which were confirmed by the Government Resolution (No. 441) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 17 April 2000 established not the procedure of granting and paying the social allowance, but the conditions of receipt of such allowances and the persons who have the right to get the social allowance, while the range of persons eligible for receiving social allowance was reduced in comparison with the range established in Paragraph 1 of Article 10 (wording of 3 November 1994) of the Law on Individual Income Security.

On the other hand, as it was already mentioned, the Constitution does not prohibit the legislature from establishing, by means of a law, such bases and conditions of granting social assistance, and the amounts of social assistance, so as to encourage, first of all, attempts to take care of one’s own or one’s family welfare by one’s own efforts and to contribute to the welfare of the entire society. The fact that the legislature has a broad discretion to differentiate social assistance has also been mentioned. However, only the laws may link the granting of social assistance with the person’s attempts, who claims to receive the social assistance, to take care of one’s own or one’s family welfare by one’s own efforts first of all. In the case at issue this was established by means of a substatutory act—a government resolution.

The aforesaid legal regulation, which was established by means of a substatutory legal act, a government resolution, competes with the one established in the law; the substatutory legal regulation virtually changes the one established by law. This is not in line with the provision of Paragraph 2 of Article 5 of the Constitution that the scope of powers shall be limited by the Constitution, as well as the provisions of Article 52 and Item 2 of Article 94 of the Constitution.

4. Taking account of the arguments set forth, the conclusion should be drawn that Item 5.1.1, Item 5.1.7 (wordings of 17 April 2000 and 14 July 2000), Item 5.1.8. (wordings of 17 April 2000 and 14 July 2000), Items 5.4, 5.5.2, and 9 of the Regulations on Granting and Paying the Social Allowance which were adopted by the Government Resolution (No. 441) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 17 April 2000, all the items to the extent that they established additional conditions and limitations on the receiving of the social allowance, in comparison with Paragraph 1 of Article 10 (wording of 3 November 1994) of the Republic of Lithuania’s Law on Individual Income Security, are in conflict with Paragraph 2 of Article 5, Article 52, and Item 2 of Article 94 of the Constitution, as well as Paragraph 1 of Article 10 (wording of 3 November 1994) of the Law on Individual Income Security.

5. The petitioner requests an investigation into whether Item 7 (wording of 6 November 1996) of the Regulations on Granting and Paying the Social Allowance which were confirmed by the Government Resolution (No. 808) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 5 July 1996, to the extent that it established limitations on the receiving of the social allowance to individual families that raise children at home, and Items 5.4 and 5.5.2 of the Regulations on Granting and Paying the Social Allowance which were confirmed by the Government Resolution (No. 441) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 17 April 2000, to the extent that both items established limitations on the receiving of the social allowance to individual families that raise children at home, are not in conflict with Paragraph 2 of Article 38 and Paragraph 1 of Article 39 of the Constitution.

It was held, inter alia, in this ruling of the Constitutional Court that Item 7 (wording of 6 November 1996) of the Regulations on Granting and Paying the Social Allowance which were confirmed by the Government Resolution (No. 808) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 5 July 1996, to the extent that it established additional conditions and limitations on the receiving of the social allowance, in comparison with Paragraph 1 of Article 10 (wording of 3 November 1994) of the Law on Individual Income Security, was in conflict with Paragraph 2 of Article 5, Article 52, and Item 2 of Article 94 of the Constitution, as well as Paragraph 1 of Article 10 (wording of 3 November 1994) of the Law on Individual Income Security, and that Items 5.4 and 5.5.2 of the Regulations on Granting and Paying the Social Allowance which were confirmed by the Government Resolution (No. 441) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 17 April 2000, both items to the extent that they established additional conditions and limitations on the receiving of the social allowance, in comparison with Paragraph 1 of Article 10 (wording of 3 November 1994) of the Law on Individual Income Security, are in conflict with Paragraph 2 of Article 5, Article 52, and Item 2 of Article 94 of the Constitution, as well as Paragraph 1 of Article 10 (wording of 3 November 1994) of the Law on Individual Income Security.

Having held this, in this case the Constitutional Court will not examine whether Item 7 (wording of 6 November 1996) of the Regulations on Granting and Paying the Social Allowance which were adopted by the Government Resolution (No. 808) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 5 July 1996 and Items 5.4 and 5.5.2 of the Regulations on Granting and Paying the Social Allowance which were confirmed by the Government Resolution (No. 441) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 17 April 2000 are not in conflict with Paragraph 2 of Article 38 and Paragraph 1 of Article 39 of the Constitution.

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

ruling:

1. To recognise that the provisions “the payment of the social allowance established in Chapter III of the Law begins upon the implementation of the income declaration. The payment of the social allowance to certain categories of residents may begin even earlier upon a separate resolution of the Government” of Item 1 of the Resolution of the Supreme Council of the Republic of Lithuania (No. I-619) “On the Application of the Republic of Lithuania’s Law on Individual Income Security” of 27 September 1990 are in conflict with Article 52 and Item 2 of Article 94 of the Constitution of the Republic of Lithuania, the constitutional principle of a state under the rule of law, the constitutional principle of the separation of powers, as well as Paragraph 1 of Article 10 (wording of 3 November 1994) of the Republic of Lithuania’s Law on Individual Income Security.

2. To recognise that Item 6.1.1 (wording of 6 November 1996), Item 6.1.4 (wording of 6 November 1996), Item 6.1.5 (wording of 6 November 1996), Item 7 (wording of 6 November 1996), and Item 9 of the Regulations on Granting and Paying the Social Allowance as confirmed by the Resolution of the Government of the Republic of Lithuania (No. 808) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 5 July 1996, all the items to the extent that they established additional conditions and limitations on the receiving of the social allowance, in comparison with Paragraph 1 of Article 10 (wording of 3 November 1994) of the Republic of Lithuania’s Law on Individual Income Security, were in conflict with Paragraph 2 of Article 5, Article 52, and Item 2 of Article 94 of the Constitution of the Republic of Lithuania, as well as Paragraph 1 of Article 10 (wording of 3 November 1994) of the Republic of Lithuania’s Law on Individual Income Security.

3. To recognise that Item 5.1.1, Item 5.1.7 (wordings of 17 April 2000 and 14 July 2000), Item 5.1.8. (wordings of 17 April 2000 and 14 July 2000), Item 5.4, Item 5.5.2, and Item 9 of the Regulations on Granting and Paying the Social Allowance which were confirmed by the Resolution of the Government of the Republic of Lithuania (No. 441) “On the Approval of the Regulations on Granting and Paying the Social Allowance” of 17 April 2000, all the items to the extent that they established additional conditions and limitations on the receiving of the social allowance, in comparison with Paragraph 1 of Article 10 of the Republic of Lithuania’s Law on Individual Income Security, are in conflict with Paragraph 2 of Article 5, Article 52, and Item 2 of Article 94 of the Constitution of the Republic of Lithuania, as well as Paragraph 1 of Article 10 (wording of 3 November 1994) of the Republic of Lithuania’s Law on Individual Income Security.

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 Kūris

Kęstutis Lapinskas

Zenonas Namavičius

Augustinas Normantas

Jonas Prapiestis

Vytautas Sinkevičius

Stasys Stačiokas