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On the age at which officials are transferred to the reserve and may qualify for a state pension

Case no 40/2014

 

 

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

IN THE NAME OF THE REPUBLIC OF LITHUANIA

RULING

on the compliance of Paragraph 2 of Article 2 (wording of 27 november 2003) of the republic of lithuania’s Law on the Implementation of the Law on the Approval of the Statute of Internal Service with the constitution of the republic of lithuania

25 January 2016, no KT4-N1/2016

Vilnius

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Elvyra Baltutytė, Vytautas Greičius, Danutė Jočienė, Pranas Kuconis, Gediminas Mesonis, Vytas Milius, Egidijus Šileikis, Algirdas Taminskas, and Dainius Žalimas

The court reporter – Daiva Pitrėnaitė

The Constitutional Court of the Republic of Lithuania, pursuant to Articles 102, 105 of the Constitution of the Republic of Lithuania and Articles 1 and 531 the Republic of Lithuania’s Law on the Constitutional Court, at the Court’s hearing, on 21 January 2016, considered under written procedure constitutional justice case no 40/2014 subsequent to the petition (no 1B-53/2014) of the Supreme Administrative Court of Lithuania, the petitioner, requesting an investigation into whether Article 2 (wording of 27 November 2003) of the Republic of Lithuania’s Law on the Implementation of the Law on the Approval of the Statute of Internal Service, insofar as it failed to establish such a special regulation governing the age of officials for their transfer to the reserve, as a condition for granting a state pension of officials and servicemen that would be applicable to persons who left internal service prior to the entry into force of the Statute of Internal Service, is in conflict with Article 52 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

The Constitutional Court

has established:

I

1. The Supreme Administrative Court of Lithuania, the petitioner, was considering the administrative case subsequent to an application filed by a statutory official of the system of the interior who impugned the refusal to grant him a state pension of officials and servicemen. This official was dismissed from the system of the interior on 4 May 1999 as a result of redundancy after he had served in the system of the interior for 12 years and 4 months and after he had reached the age of 36 years. He applied to the Ministry of the Interior of the Republic of Lithuania concerning the granting of a state pension of officials and servicemen after having served five or more years and upon having reached the age of 50 years in 2013, as it had been provided for under the legal regulation that was effective until 30 April 2003. It was refused to grant him this pension, as since the entry into force of the Statute of Internal Service on 1 May 2003, a state pension of officials and servicemen is granted to officials who have held respective offices and who have served in the system of the interior for five or more years, upon reaching the age of 60 years.

Having held that there are reasonable grounds for doubting the constitutionality of Article 2 of the Law on the Implementation of the Law on the Approval of the Statute of Internal Service (hereinafter also referred to as the Law on the Implementation of the Statute), the Supreme Administrative Court of Lithuania suspended the consideration of the administrative case and applied to the Constitutional Court with a petition requesting an investigation into the compliance of the specified legal regulation with the Constitution.

2. The petition of the Supreme Administrative Court of Lithuania is substantiated by the following arguments.

2.1. In the opinion of the petitioner, under the legal regulation that was established formerly, as well as under the effective legal regulation that is consolidated in the Republic of Lithuania’s Law on the State Pensions of Officials and Servicemen, a state pension of officials and servicemen can be granted and paid to officials and servicemen upon leaving service if they have reached the age of transfer to the reserve as established in the laws or statutes (or the age for an old-age pension where the age for transfer to the reserve is not established) and if they have served in the systems of the interior, state security, national defence or prosecution service for five or more years.

Prior to the entry into force of the Statute of Internal Service on 1 May 2003, the age of officials for their transfer to the reserve was governed by Item 43.2 of the Statute of the Service in the System of the Interior of the Republic of Lithuania (hereinafter also referred to as the Statute of the Service in the System of the Interior of the Republic of Lithuania), which has been approved by resolution No 304 of 29 July 1991 of the Government of the Republic of Lithuania; Item 43.2 established that all officials had to serve as follows: from privates or policemen to lieutenant colonels or senior commissioners inclusive – until 45 years of age; colonels or chief commissioners – until 50 years of age; generals and the police commissioner general – until 55 years of age. Item 43.2 (wording of 19 February 2000) of the Statute of the Service in the System of the Interior of the Republic of Lithuania established that all officials would serve as follows: from privates or policemen to lieutenants or senior commissioners inclusive – until 50 years of age; generals and the police commissioner general – until 55 years of age; other officials – until 50 years of age.

According to the petitioner, when the dispute which was decided in its considered case had arisen, the Statute of Internal Service, which was adopted on 29 April 2003, was in force; Paragraph 1 (wording of 29 April 2010) of Article 54 thereof established that officials could serve: (1) officials of the primary level – until they reach the age of 50 years; (2) officials of the middle level – until they reach the age of 55 years; (3) officials of the high level – until they reach the age of 60 years; (4) officials of the highest level – until they reach the age of 65 years.

For the purpose of the implementation of certain provisions of the Statute of Internal Service, the Law on the Implementation of the Statute was adopted together with the Statute of Internal Service. Under Article 2 (wording of 27 November 2003) of this law, a person who had served in the system of the interior for five or more years, had the rank of a commissioner and left service until the entry into force of the Statute of Internal Service on 1 May 2003, was granted a state pension of officials and servicemen on the grounds of the provisions of the Statute of Internal Service, i.e. upon reaching the age of 60 years, and not on the grounds of the legal regulation that was in effect at the time he/she left service.

2.2. According to the petitioner, the persons who left service prior to the entry into force of the Statute of Internal Service on 1 May 2003, had a legitimate expectation that a state pension of officials and servicemen would be granted and paid to them upon serving in the system for a certain period of time and upon reaching the age of transfer to the reserve as established at the time when they left the service – 45 or 50 years of age. However, under Item 3 of Paragraph 1 of Article 54 of the Statute of Internal Service, which came into force on 1 May 2003, as interpreted together with Article 2 (wording of 27 November 2003) of the Law on the Implementation of the Statute, such a pension is granted to them upon reaching the age of 60 years, i.e. 10 or 15 years later.

Thus, the failure to establish, in Article 2 (wording of 27 November 2003) of the Law on the Implementation of the Statute, a special regulation applicable when a state pension of officials and servicemen is granted and paid to officials who left service prior to the entry into force of the Statute of Internal Service has denied the legitimate expectations of the said officials to receive the above-mentioned pension under the conditions that were established at the time they left service, since for those officials, as for any other official, the age of transfer to the reserve, upon reaching which a state pension of officials and servicemen is granted and paid to officials who have served for a certain period of time, is established under the provisions of the Statute of Internal Service that came into force on 1 May 2003.

2.3. The petitioner refers to the provisions of the official constitutional doctrine formulated by the Constitutional Court while interpreting Article 52 of the Constitution, among other things, meaning that once the law provides for certain pension provision, the state has the duty to guarantee this provision to the specified persons under such grounds and in such sizes that are provided for in the law, and the persons who meet the conditions established in the law have the right to demand that the state grant and pay them the pension they qualify for. The petitioner also notes that, under the Constitution, the state has the duty to implement those obligations of property nature that were assumed by establishing, by means of a law, such a legal regulation under which a person who meets the conditions established in a law, acquires the right to a certain pension, inter alia, the state pension of officials and servicemen. The system of pension provision may be reorganised; however, if the legal regulation governing the pensions is amended in essence, a fair mechanism of compensation for the losses incurred by the persons who have been granted and paid such pensions must be established. Changes must be made in such a manner that the persons whose legal status is affected by those changes would have a real possibility to adapt to a new legal situation.

2.4. After the entry into force of the Statute of Internal Service on 1 May 2003, the conditions for receiving a state pension of officials and servicemen changed significantly – the age required for granting and paying a state pension was suddenly and significantly increased (by 10–15 years), but no compensation mechanism, or transitional period, or transitional legal regulation was established. As such measures were not established, it was not sought to ensure the public interest – to guarantee the stability of public finances, to avoid public deficit due to the emergence of the particularly difficult economic and financial situation in the state, etc. The failure to establish a special legal regulation applicable to persons who, until the entry into force of the Statute of Internal Service, had legitimate expectations to receive state pensions of officials and servicemen upon reaching the age of 45 or 50 years raise doubts whether Article 2 (wording of 27 November 2003) of the Law on the Implementation does not contain any legislative omission, i.e. a legal gap forbidden by Article 52 of the Constitution and the constitutional principle of a state under the rule of law.

II

In the course of the preparation of the case for the Constitutional Court’s hearing, written explanations were received from Raimundas Markauskas, a member of the Seimas acting as the representative of the Seimas, the party concerned, in which it is maintained that the impugned legal regulation is not in conflict with the Constitution. The position of the representative of the party concerned is substantiated by the following arguments.

1. Paragraph 1 of Article 54 of the Statute of Internal Service, which came into force on 1 May 2003, established that commissioners could be transferred to the reserve at the age of 60 years. Such an age limit for receiving a state pension of officials and servicemen is also applied to officials who left service until the entry into force of this statute even though a different legal regulation (under this legal regulation, a state pension of officials and servicemen was granted for those with a necessary length of service and upon reaching the age of 45 or 50 years accordingly) was in effect at the time they left service.

With regard to the official constitutional doctrine of pension provision formulated in the Constitutional Court’s rulings (inter alia, of 4 July 2003, 26 September 2007, and 24 December 2008) and, among other things, the provision that the particularities of state pensions permit the legislature, taking account of all significant circumstances and having regard to the norms and principles of the Constitution, to establish particular conditions for granting these pensions, as well as the provisions concerning the protection of legitimate expectations, the representative of the party concerned states that the officials who left service but had not reached the established age for transfer to the reserve had not acquired the right to receive a state pension. They could not have legitimate expectations that the legislature would not adopt any amendments to legal acts and the existing situation would remain the same in general. However, under Paragraph 2 of Article 2 (wording of 27 November 2003) of the Law on the Implementation of the Statute that was adopted together with the Statute of Internal Service, the persons who had left the internal service prior to the entry into force of the Statute of Internal Service and whom a state pension had not been granted and paid yet, upon the entry into force of the Statute of Internal Service, did not lose the right to receive this pension in the future. The State guarantees that for such persons the state pension of officials and servicemen will be granted and paid as soon as they meet the conditions established in the law. Therefore, while amending the legal regulation, the legislature followed the requirement not to deny, by the amendments to the legal regulation, the rights and legitimate interests acquired by the person, as the established legal regulation did not deny the right of officials who had left service to receive a state pension of officials and servicemen upon reaching the age of transfer to the reserve as established by the legislature.

Thus, in the opinion of the party concerned, the legal regulation impugned by the petitioner did not violate the legitimate expectations of officials who left service prior to the entry into force of the Statute of Internal Service and the imperatives of social security arising from Article 52 of the Constitution.

2. In his explanations, the representative of the party concerned refers to the fact that, as the Constitutional Court has held, while establishing a state pension of officials and servicemen for their service, the legislature may not consolidate such a legal regulation, under which, among other things, a person would be transferred to the reserve unreasonably early; when establishing the grounds and conditions for granting and paying such a pension, as well as the sizes of this pension, the legislature must comply with the constitutional principle of equality of all persons and treat the officials and servicemen whose legal situation is equal in the same way.

Thus, the legislature had the discretion to establish the same age of transfer to the reserve for all persons (those who had served, those who served, and those who would serve) so that the persons, who left service before reaching the established age of transfer to the reserve and at the time when a different legal regulation was in effect, would not fall into a more favourable position than those who still serve or will serve in the future. If a special legal regulation applicable to the officials who left service prior to the entry into force of the Statute of Internal Service were established in Article 2 of the Law on the Implementation of the Statute, the constitutional principle of the equality of persons would be violated.

The Constitutional Court

holds that:

I

1. The Supreme Administrative Court of Lithuania, the petitioner, requests an investigation into the compliance of Article 2 (wording of 27 November 2003) of the Law on the Implementation of the Statute, insofar as it does not establish a special regulation governing the age of officials at which they are transferred to the reserve as a condition for granting and paying a state pension of officials and servicemen to persons who left service prior to the entry into force of this statute, with the Constitution.

2. In the context of the constitutional justice case at issue, it is important to reveal certain aspects of development of the legal regulation of internal service of the Republic of Lithuania, inter alia, related to the age for transfer to the reserve at which, in certain cases, a state pension of officials and servicemen is granted and paid.

3. After the restoration of independence of the Republic of Lithuania, on 29 July 1991, the Government of the Republic of Lithuania adopted the resolution (No 304) on the Statute of the Service in the System of the Interior of the Republic of Lithuania (hereinafter also referred to as the government resolution of 29 July 1991), whereby, in implementing the resolution (No I-852) of the Supreme Council of the Republic of Lithuania of 11 December 1990 on the Republic of Lithuania’s Law on the Implementation of the Law on Police, the Government of the Republic of Lithuania approved the Statute of the Service in the System of the Interior of the Republic of Lithuania which came into effect on the same day. This statute established, inter alia, the procedure for the admission to service of police officials and other officials of internal service, their appointment to positions, granting ranks, transfer to other positions, and dismissal from service.

3.1. Item 43.2 of the Statute of the Service in the System of the Interior of the Republic of Lithuania established that all officials would be dismissed from office, inter alia, upon reaching the established age:

<…> All officials shall serve:

from privates or policemen to lieutenant colonels or senior commissioners inclusive – until 45 years of age;

colonels or chief commissioners – until 50 years of age;

generals and the police commissioner general – until 55 years of age.”

Thus, Item 43.2 of the Statute of the Service in the System of the Interior of the Republic of Lithuania established, with reference to the rank possessed by an official and the position he/she held, the respective age of officials for being dismiss from service.

3.2. The Statute of the Service in the System of the Interior of the Republic of Lithuania has been amended more than once, inter alia, by the government resolution (No 146) of 8 February 2000 on the partial amendment of the resolution (No 304) of the Government of the Republic of Lithuania of 29 July 1991 on the Statute of the Service in the System of the Interior of the Republic of Lithuania, which came into force on 19 February 2000; it set out Item 43.2 of this statute as follows:

<…> All officials shall serve:

from privates or policemen to lieutenants or senior commissioners inclusive – until 50 years of age;

generals and the police commissioner general – until 55 years of age;

other officials – until 50 years of age.”

Therefore, under Item 43.2 (wording of 8 February 2000) of the Statute of the Service in the System of the Interior of the Republic of Lithuania, for certain officials of internal service, the age at which they are transferred to the reserve was increased from 45 to 50 years.

3.3. To summarise the legal regulation governing the dismissal of officials of the system of the interior from office on the grounds of age as established in the government resolution of 29 July 1999 (with subsequent amendment), it should be noted that the said regulation established that police officials or officials of other services of the interior, who are of the lowest level or hold the lowest positions, are dismissed from internal service upon reaching 45 years of age and from 19 February 2000 – upon reaching the age of 50 years; all other officials, with the exception of generals and the police commissioner general – upon reaching 50 years of age, and generals and the commissioner general – upon reaching the age of 55 years.

4. On 29 April 2003, the Seimas adopted the Republic of Lithuania’s Law on the Approval of the Statute of Internal Service, which came into force on 1 May 2003; Article 1 of this law approved the Statute of Internal Service. This statute prescribed the principles of internal service, regulated, inter alia, the questions of the status of officials of internal service, their admission to and dismissal from service, as well as the questions of social and other guarantees.

As it is obvious from the travaux préparatoires of the Law on the Approval of the Statute of Internal Service, it was prepared, in addition to other things, due to the reason that at that time there was no one common effective legal act governing the service of officials of internal service and most of the effective legal acts had been adopted or approved a long time ago and they did not correspond to the real situation. It was also specified that the Statute of the Service in the System of the Interior of the Republic of Lithuania, which was effective at that time, “according to the significance of the regulated legal relations, was a legal act of too low ranking”, i.e. the service relations of the officials of internal service should be governed not by a government resolution but by a statute approved by means of a law.

4.1. Article 13 of the Statute of Internal Service establishes special ranks of internal service and police for the officials who hold statutory positions in the establishments of the interior.

The following ranks are established for the officials of internal service: officials of the primary level (corporal of internal service, warrant officer of internal service, senior warrant officer of internal service, and chief warrant officer of internal service), officials of the middle level (second lieutenant of internal service, first lieutenant of internal service, and captain of internal service), officials of the high level (major of internal service, lieutenant colonel of internal service, and colonel of internal service), and officials of the highest level (general of internal service).

The following ranks are established for the police officials: officials of the primary level (junior policeman, policeman, senior policeman, and master sergeant), officials of the middle level (inspector, senior inspector, and commissioner inspector), officials of the high level (commissioner, senior commissioner, and chief commissioner), and officials of the highest level (police commissioner general).

4.2. Article 54 of the Statute of Internal Service, which governs the duration of internal service of officials, established the following:

An official may serve:

(1) officials of the primary level – until they reach the age of 50 years;

(2) officials of the middle level – until they reach the age of 55 years;

(3) officials of the high level – until they reach the age of 60 years;

(4) officials of the highest level – until they reach the age of 62 and a half.

At the official’s request, on the recommendation of the head of an institution of internal affairs, the Minister of the Interior shall have the right to extend the length of internal service for up to three years, however, not longer than until the official reaches the age of 65.”

Having compared the legal regulation established in Paragraph 1 of Article 54 of the Statute of Internal Service, which is interpreted together with Article 13 of this statute, with the legal regulation established in Item 43.2 (wording of 8 February 2000) of the Statute of the Service in the System of the Interior of the Republic of Lithuania, it should be noted that for certain officials of internal service and police the age of their transfer to the reserve was increased: for officials of the middle level (inspectors, senior inspectors, commissioner inspectors, second lieutenants of internal service, first lieutenants of internal service, and captains of internal service) – by 5 years (from 50 to 55 years of age), officials of the high level (commissioners, senior commissioners, chief commissioners, majors of internal service, lieutenant colonels of internal service, and colonels of internal service) – by 10 years (from 50 to 60 years of age), and officials of the highest level (generals of internal service and the police commissioners general) – by 7.5 years (from 55 to 62 and a half years of age). The age of transfer to the reserve did not change for the officials of the primary level (junior policemen, policemen, senior policemen, master sergeants, corporals of internal service, warrant officials of internal service, senior warrant officials of internal service, and chief warrant officials of internal service).

In this context, it should be noted that from the travaux préparatoires of the Law on the Approval of the Statute of Internal Service it is obvious that longer duration of service of officials was established with regard to the then economic situation of the country and the interest of officials to serve longer.

4.3. The Statute of Internal Service has been amended and/or supplemented more than once, inter alia, by the Republic of Lithuania’s Law on Amending the Statute of Internal Service, which was adopted by the Seimas on 29 April 2010 and which amended, inter alia, Item 4 of Paragraph 1 of Article 54 of this statute and established that the officials of the highest level may serve until they reach the age of 65 years.

Thus, for the officials of internal service of the highest level the age of transfer to the reserve was increased by 2.5 years.

4.4. By the Republic of Lithuania’s Law Amending the Statute of Internal Service that was adopted by the Seimas on 25 June 2015 and came into force on 1 January 2016 the Statute of Internal Service was set out in a new wording.

From the travaux préparatoires of this law it is clear that it had, among other things, to consolidate an equal system of work remuneration applied to all officials of internal service, to equalise the system of evaluation of performance of officials, and to regulate other questions (inter alia, social guarantees for officials who are on maternal leave, paternal leave, and parental leave).

Article 63 of the Statute of Internal Service (wording of 25 June 2015), which governed the duration of internal service of officials, established the following:

An official may serve:

(1) officials of the primary level – until they reach the age of 55 years;

(2) officials of the middle level – until they reach the age of 60 years;

(3) officials of the high and highest levels – until they reach the age of 65 years.”

Having compared the legal regulation established in Article 63 of the Statute of Internal Service (wording of 25 June 2015) with one established in Paragraph 1 (wording of 29 April 2010) of Article 54 of the Statute of Internal Service, it is obvious that it has changed so that for all officials of internal service and police, with the exception of officials of the highest level, the age of transfer to the reserve was increased by 5 years (respectively, to 55, 60 or 65 years).

In the travaux préparatoires of this Law Amending the Statute of Internal Service, it is, among other things, specified that the maximum duration of service for most officials is increased due to the fact that the Statute of Internal Service of the new wording no longer includes the provision on the extension of the length of internal service of officials upon reaching the maximum age of service.

4.5. To summarise the legal regulation linked to the age of transfer of officials of internal service to the reserve established in the Statute of Internal Service (wording of 29 April 2003 with the subsequent amendment and wording of 25 June 2015), it should be noted that by means of this legal regulation, in comparison with the relevant legal regulation established in the Statute of the Service in the System of the Interior of the Republic of Lithuania (wording of 8 February 2000), the age of transfer of the officials of internal service to the reserve was increased gradually: for officials of the primary level, it was increased by 5 years, for officials of the middle level – by 10 years (by 5 years twice), for officials of the high level – by 15 years (by 10 years from 1 January 2003 and by 5 more years from 1 January 2016), and for officials of the highest level – by 10 years (accordingly, by 7.5 years and 2.5 years).

5. Together with the Law on the Approval of the Statute of Internal Service, on the same day, 29 April 2003, the Seimas adopted the Law on the Implementation of the Law on the Approval of the Statute of Internal Service, which came into force on 1 May 2003 and regulated the implementation of some provisions of the Statute of Internal Service.

5.1. Article 2 “Implementation of certain social guarantees” of the Law on the Implementation of the Statute that is, to the specified extent, impugned by the petitioner established:

1. The provisions of the ninth section of chapter II of the Statute of Internal Service approved by the Law on the Approval of the Statute shall also apply to the trade unions that had been established before coming into force of the Law on the Approval of the Statute. If the statutes of the active trade unions are in conflict with the provisions of the Statute of Internal Service as approved by the Law on the Approval of the Statute, they must be harmonised within 3 months as from the day of the entry into force of this Statute.

2. The social guarantees that had been applied to officials before the entry into force of the Law on the Approval of the Statute shall continue to be applicable, inasmuch as they are not in conflict with the Statute of Internal Service as approved by the Law on the Approval of the Statute.

3. The qualification categories granted to officials before the entry into force of the Law on the Approval of the Statute shall be maintained.”

Thus, Article 2 of the Law on the Implementation of the Statute established how, upon the adoption of the Statute of Internal Service, certain social guarantees that had applied to officials before the entry into force of the Statute of Internal Service on 1 May 2003 were to be implemented: Paragraph 1 of this article regulates certain guarantees linked to the activity of trade unions of officials, Paragraph 2 specifies how social guarantees are applied, and Paragraph 3 establishes that the qualification categories obtained by officials will be maintained.

5.2. While interpreting Article 2 of the Law on the Implementation of the Statute in the aspect impugned by the petitioner, it should be noted that the implementation of the right to receive a state pension of officials and servicemen, as a social guarantee provided for in a law and applied to officials, is regulated in Paragraph 2 of this article, under which all social guarantees that had applied to officials continued to apply insofar as they were not in conflict with the Statute of Internal Service. Thus, according to Paragraph 2 of Article 2 of the Law on Implementation of the Statute, as from the entry into force of the Statute of Internal Service on 1 May 2003, the social guarantees that had applied to officials who left service prior to the entry into force of this statute continued to be applicable, inter alia, a state pension of officials and servicemen continued to be granted and paid on the grounds of the provisions of the Statute of Internal Service.

5.3. On 27 November 2003, the Seimas adopted the Republic of Lithuania’s Law Supplementing Article 2 of the Law on the Implementation of the Law on the Approval of the Statute of Internal Service, which came into force on 17 December 2003 and which supplemented Article 2 of the Law on the Implementation of the Statute by Paragraph 4: “The social guarantees established in Article 48 and Paragraph 4 of Article 52 of the Statute of Internal Service, as approved by the Law on the Approval of the Statute, shall apply from 1 January 2005, whereas the social guarantee established in Paragraph 4 of Article 47 – from 1 January 2006.”

Paragraph 4 of Article 2 (wording of 27 November 2003) of the Law on the Implementation of the Statute established certain deadlines for the entry into force of certain other social guarantees established for the officials of internal service. The interpretation of this provision of the Law on the Implementation of the Statute together with the provisions of the Statute of Internal Service that are specified in the above-mentioned provision shows that the payment of monetary compensations related to nourishment, the size of which is fixed by the Government, and compensations related to expenses, when an official, due to the type of service, uses passenger or personal transport for official purposes, as well as travels to and from a place of service by the said transport, was postponed until 1 January 2005 and the payment of accommodation allowance in the size set by the Government allocated to compensate for the expenses related to maintenance of the accommodation in the place of service was postponed until 1 January 2006. Thus, the legal regulation established in Paragraph 4 of Article 2 (wording of 27 November 2003) of the Law on the Implementation of the Statute is not linked to the granting and payment of a state pension of officials and servicemen.

5.4. In the aspect impugned by the petitioner, it should be noted that upon the adoption of the Statute of Internal Service and the Law on the Implementation of the Statute on 29 April 2003, no transitional period for the entry into force of these acts was established (the entry into force of these acts was not postponed); also no transitional legal regulation applicable to officials who had left the internal service prior to the entry into force of the said legal acts was established.

It should also be noted that, on 25 June 2015, the Law Amending the Statute of Internal Service was adopted, whereby, as mentioned before, the Statute of Internal Service was set out in a new wording; it came into effect on 1 January 2016. For the entry into force of this law, the transitional period of half a year was provided for. It has also been mentioned that the Statute of Internal Service (wording of 25 June 2015) amended, inter alia, the system of remuneration of officials of internal service, the evaluation of performance, and some social guarantees that are offered during the maternal and parental leave.

6. As mentioned before, the petitioner doubts concerning the compliance of the legal regulation established in Article 2 (wording of 27 November 2003) of the Law on the Implementation of the Statute with the Constitution, insofar as it does not establish a special regulation governing the age of officials at which they are transferred to the reserve as a condition for granting and paying a state pension of officials and servicemen to persons who left service prior to the entry into force of this statute.

7. The conditions for granting and paying the state pensions of officials and servicemen are regulated by, inter alia, the Law on the State Pensions of Officials and Servicemen, therefore, the impugned provisions of Article 2 (wording of 27 November 2003) of the Law on the Implementation of the Statute should be interpreted in the context of the provisions of the Law on the State Pensions of Officials and Servicemen.

7.1. The Republic of Lithuania’s Law on the State Pensions of the Officials and Servicemen of the Interior, State Security, National Defence, and the Prosecution Service, which was adopted by the Seimas on 13 December 1994 and which came into force on 1 January 1995, has been amended and/or supplemented on more than one occasion, inter alia, by the Republic of Lithuania’s Law Amending and Supplementing the Title and Articles 1, 3, 6, 12, and 16 of the Law on the State Pensions of the Officials and Servicemen of the Interior, the Special Investigation Service, State Security, National Defence, the Prosecution Service, the Department of Prisons and the Establishments and State Enterprises Subordinate to the Latter, which was adopted by the Seimas on 18 October 2007, and, by Article 1 whereof, the previous title of the law was changed to the Law on the State Pensions of Officials and Servicemen; however, the legal regulation relevant for this case that is established in this law did not change essentially.

7.2. Under Item 1 of Paragraph 1 of Article 1 (wording of 18 January 2007) of the Law on the State Pensions of Officials and Servicemen, inter alia, the officials of the Ministry of the Interior, Police, State Boarder Guard Service, and other establishments of the Interior have the right to receive a state pension of officials and servicemen.

7.3. Article 3 of the Law on the State Pensions of Officials and Servicemen prescribes the conditions for granting and paying the state pensions of officials and servicemen.

In the context of the constitutional justice case at issue it is worth noting that, under Paragraph 1 (wording of 18 January 2007) of Article 3 of the Law of the State Pensions of Officials and Servicemen, a state pension of officials and servicemen was granted and paid, inter alia, to the officials who had left service and who had served in the systems of the interior, national defence, the prosecution system, the Special Investigation Service, the Department of Prisons and the establishments and state enterprises subordinate to the latter, as well as the system of customs (who had worked in customs mobile groups or customs posts, and the customs officials carrying out criminal intelligence and/or pre-trial investigation) for 20 or more years, or who had served in the aforementioned institutions for five or more years and had reached the age of transfer to the reserve as determined in the laws or statutes (if such an age is not established – the age for an old-age pension) (Item 5 (wording of 2 October 2012)).

Thus, in those cases when, after leaving their service, the officials of the Ministry of the Interior, Police, State Boarder Guard Service, and other establishments of the Interior had served for less than 20 years, under Item 5 (wording of 2 October 2012) of Paragraph 1 (wording of 18 January 2007) of Article 3 of the Law on the State Pensions of Officials and Servicemen, they would acquire the right to receive a state pension of officials and servicemen as soon as they met two conditions: first, would have served, in the relevant position, for five or more years; second, would have reached the age of transfer to the reserve as determined in the laws or statutes (if such an age is not established – the age for an old-age pension).

In the context of the constitutional justice case at issue, it should be noted that officials who had served five or more years (but less than 20) and had left service did not have the right to receive a state pension of officials and servicemen until they met another condition in order to qualify for such a pension, i.e. until they reached the respective age for transfer to the reserve established in legal acts or statutes.

7.4. The Law on the State Pensions of Officials and Servicemen has been amended, inter alia, by the Republic of Lithuania’s Law Amending Articles 3, 6, 7, 9, and 16 of the Law on the State Pensions of Officials and Servicemen (No I-693) and Supplementing the Law by Article 152 that was adopted by the Seimas on 25 June 2015 and came into effect on 1 January 2016 (except for the provided for exception). Article 1 of this law amended Article 3 of the Law on the State Pensions of Officials and Servicemen and set it out as follows:

The state pensions of officials and servicemen shall be granted and paid upon leaving service to the officials and servicemen <…>:

(1) who have served for 25 years and more in the systems of the interior, state security, or national defence, in the Special Investigation Service, in the Department of Prisons or the establishments and state enterprises subordinate to the latter, or in the customs system (who have worked in customs mobile groups or customs posts or who have carried out criminal intelligence and/or pre-trial investigation), with the exception of the officials and servicemen specified in Paragraph 3 of this article;

<...>

(5) who have reached the age for transfer to the reserve established by the respective laws or statutes (where such an age is not established – the age for the old-age pension) and have served for 5 years and more in the systems of the interior, state security, national defence, and the Prosecution Service, in the Special Investigation Service, in the Department of Prisons or the establishments and state enterprises subordinate to it, or in the customs system (who have worked in customs mobile groups or customs posts, or who have carried out criminal intelligence and/or pre-trial investigation).”

It should be noted that the legal regulation consolidated in Item 5 of Paragraph 1 of Article 3 (wording of 25 June 2015) of the Law on the State Pensions of Officials and Servicemen, under which this pension is granted to officials who left service after having served five or more years (but less than 25) and reached the age established by the legal acts for transfer to the reserve (where such an age is not established – the age of an the old-age pension), has not changed in the aspect relevant for the constitutional justice case at issue.

7.5. It should also be noted that such conditions for granting a state pension of officials and servicemen – to have served for a certain established number of years (accordingly, 20 or 25 years) or to have served 5 years and more in a respective position and to have reached a certain age established in the laws or statutes (where such an age is not established - the age for an old-age pension) – were established as from the adoption of the law governing the granting and paying of the state pensions of officials and servicemen, i.e. from 13 May 1994.

7.6. When interpreting the provisions of the Law on the State Pensions of Officials and Servicemen, under which a state pension of officials and servicemen is granted, together with the provisions of, respectively, Item 43.2 (wordings of 29 July 1999 and 8 February 2000) of the Statute of the Service in the System of the Interior of the Republic of Lithuania, as well as with the provisions of Article 54 (wording of 29 April 2003 with subsequent amendment) of the Statute of Internal Service and Article 63 of the Statute of Internal Service (wording of 25 June 2015), in the aspect relevant for the constitutional justice case at issue, it should be noted that:

until 18 February 2000, the officials of internal service, who had served for 5 and more years (but less than 20), acquired the right to receive a state pension of officials and servicemen upon reaching, according to the position held, the age of 45 years (from privates or policemen to lieutenant colonels or senior commissioners), 50 years (colonels or chief commissioners) or 55 years (generals and the police commissioner general);

until 30 April 2003, the officials of internal service, who had served for 5 and more years (but less than 20), acquired the right to receive a state pension of officials and servicemen upon reaching, according to the position held, the age of 50 years (from privates or policemen to colonels or senior commissioners, as well as other officials with the exception of generals and the police commissioner general), 50 years (colonels or chief commissioners) or 55 years (generals and the police commissioner general);

until 31 December 2015, the officials of internal service, who had served for 5 and more years (but less than 20), acquired the right to receive a state pension of officials and servicemen upon reaching, according to their ranks, 50 years of age (officials of the primary level), 55 years of age (officials of the middle level), 60 years of age (officials of the high level) or 65 years of age (officials of the highest level);

until 1 January 2016, the officials of internal service, who had served for 5 and more years (but less than 25), acquired the right to receive a state pension of officials and servicemen upon reaching, according to their ranks, 55 years of age (officials of the primary level), 60 years of age (officials of the middle level), or 65 years of age (officials of the high and the highest levels).

Thus, the amendment, by means of the provisions of the Statute of Internal Service, to the age of transfer of officials to the reserve has changed one of the conditions for granting the state pensions of officials and servicemen for the officials who left service after having served for five or more years (but less than 20 or 25 years): by increasing the age of transfer of officials of internal service to the reserve, the legislature also increased the age, upon reaching which the officials of internal service, who have served for five or more years and have left service, acquire the right to receive a state pension of officials and servicemen.

8. While interpreting the provisions of the impugned Article 2 (wording of 27 November 2003) of the Law on the Implementation of the Statute, which governs the implementation of certain social guarantees of the officials of internal service, together with the provisions of the Law on the State Pensions of Officials and Servicemen and the Statute of Internal Service, it should be held that, under Paragraph 2 of Article 2 (wording of 27 November 2003) of the Law on the Implementation of the Statute, the social guarantees that had applied to officials who left service prior to the entry into force of the Statute of Internal Service on 1 May 2003 continued to be applicable, inter alia, a state pension of officials and servicemen continued to be granted and paid on the grounds of the provisions of the Statute of Internal Service and not on the grounds of the legal regulation that had been effective until this date. Thus, under Paragraph 2 of Article 2 (wording of 27 November 2003) of the Law on the Implementation of the Statute, the officials who left service after having served five or more years (but less than 20 years) and left service prior to the entry into force of the Statute of Internal Service on 1 May 2003, were granted and paid a state pension of officials and servicemen upon reaching an age of transfer to the reserve as established in the Statute of Internal Service, i.e. according to their obtained or equivalent ranks – 50, 55, 60 or 65 years of age (and from 1 January 2016 – 55, 60 or 65) and not 45, 50 or 55 years of age (i.e. accordingly, by 5, 10 or 15 years later) as it was established in the Statute of the Service in the System of the Interior of the Republic of Lithuania (wordings of 29 July 1991 and 8 February 2000) that was in effect prior to the entry into force of the Statute of Internal Service.

It should also be noted that the officials of internal service who left internal service prior to 30 April 2003 after having served five or more years (but less than 20), but had not, at that time, reached the age of transfer to the reserve established by the legal acts, met only one of the two conditions for being granted a state pension of officials and servicemen, therefore, at the time of leaving internal service, they had not acquired the right to receive this pension. They will acquire such a right only upon reaching the age of transfer to the reserve as established by the provisions of the Statute of Internal Service.

II

1. As mentioned before, the petitioner requests an investigation into the compliance of Article 2 (wording of 27 November 2003) of the Law on the Implementation of the Statute, insofar as it does not establish a special regulation governing the age of officials at which they are transferred to the reserve as a condition for granting and paying a state pension of officials and servicemen to persons who left service prior to the entry into force of this statute, with Article 52 of the Constitution and the constitutional principle of a state under the rule of law.

2. According to the petitioner, until the entry into force of the Statute of Internal Service, the officials of internal service had a legitimate expectation that after having served five or more years and having left service they would receive a state pension of officials and servicemen upon reaching the age of 45 or 50 years and not 10 or 15 years later, as it is established in the Statute of Internal Service. Therefore, the Law on the Implementation of the Statute should establish a special regulation ensuring the protection and defence of the legitimate expectations of those officials to receive a state pension upon reaching a certain age. The failure to establish such a legal regulation applicable to officials who left service until the entry into force of the Statute of Internal Service raised doubts to the petitioner whether Article 2 (wording of 27 November 2003) of the Law on the Implementation of the Statute did not contain any legislative omission, i.e. a legal gap forbidden by Article 52 of the Constitution and the constitutional principle of a state under the rule of law.

Thus, the petitioner virtually impugns not the legal regulation that is established expressis verbis in a law, but the legislative omission which, in its opinion, exists in this law, i.e. it impugns something, which has not been established in this legal act, even though, in the opinion of the petitioner, under the Constitution, it should have been established by the legislature.

3. The Constitutional Court has held on more than one occasion that a legal gap, inter alia, a legislative omission, always means that the legal regulation of certain social relations is established neither explicitly nor implicitly, neither in a certain legal act (part thereof) nor in any other legal acts, even though there exists a need for the legal regulation of these social relations; as regards a legislative omission, such a legal regulation must be established, while paying regard to the imperatives, stemming from the Constitution, of the consistency and inner uniformity of the legal system and, taking account of the content of these social relations, precisely in that legal act (precisely in that part thereof), since this is required by a certain higher-ranking legal act, inter alia, the Constitution itself (inter alia, the Constitutional Court’s decision of 8 September 2006 and its rulings of 29 September 2010, 29 November 2010, 7 July 2011, and 2 May 2013).

The Constitutional Court has the constitutional powers not only to hold that the investigated lower-ranking legal act (part thereof) includes a legal gap, inter alia, legislative omission, but also to recognise, by means if its ruling adopted in the constitutional justice case, such a legal regulation being in conflict with the higher-ranking legal acts, inter alia, the Constitution (the Constitutional Court’s decision of 8 August 2006). The “detection” of legislative omission par excellence in a lower-ranking legal act (part thereof) is sufficient grounds for recognising that legal act (part thereof) to be in conflict with the Constitution (other higher-ranking legal act)(the Constitutional Court’s decision of 8 August 2006 and its ruling of 2 March 2009).

4. As the Constitutional Court has held, a legal gap, inter alia, a legislative omission as one of the varieties of the non-establishment of an explicit legal regulation, is essentially different from such non-establishment of an explicit legal regulation that means that, in a legal act (part thereof), there is an implicitly established legal regulation (inter alia, a legal regulation that consolidates conduct that is opposite to the one established explicitly), which supplements and extends the explicit legal regulation. In such cases where a certain legal regulation implicitly established in a legal act (part thereof) establishes a certain conduct and thereby supplements and extends the explicit legal regulation, there are no grounds for asserting that this legal act (part thereof) does not regulate certain social relations at all, since these social relations are in fact legally regulated; however, this legal regulation is consolidated in particular legal acts (parts thereof) not explicitly, expressis verbis, but implicitly, and is derived from explicit legal provisions in the course of the interpretation of law (the Constitutional Court’s decision of 8 August 2006).

5. It has been mentioned that under Paragraph 2 of Article 2 (wording of 27 November 2003) of the Law on the Implementation of the Statute, social guarantees that were applied to officials before the entry into force of the Statute of Internal Service would continue to be applicable, inasmuch as they are not in conflict with this Statute, the officials who left service after having served five or more years (but less than 20 years) prior to the entry into force of the Statute of Internal Service on 1 May 2003, were granted and paid a state pension of officials and servicemen upon reaching an age for transfer to the reserve as established in the Statute of Internal Service, i.e. according to their obtained or equivalent ranks – 50, 55, 60 or 65 years of age (and from 1 January 2016 – 55, 60 or 65).

Thus, the legal regulation governing the age of transfer to the reserve that is, among other things, established in Paragraph 2 of Article 2 (wording of 27 November 2003) of the Law on the Implementation of the Statute is applicable also to officials who left service prior to the entry into force of the Statute of Internal Service by granting and paying a state pension of officials and servicemen to them.

6. In this context, it should be noted that, if a concrete law (part thereof) does not contain a special legal regulation designed for governing certain relations, this does not necessarily mean that there is a legal gap, inter alia, a legislative omission, in that area, since such relations might be regulated by means of general explicit or implicitly established norms that supplement and extend the explicit legal regulation.

Thus, it should be held that the fact that the legislature failed to establish, in Article 2 (wording of 27 November 2003) of the Law on the Implementation of the Statute that is impugned by the petitioner, a special regulation governing the age of transfer of officials to the reserve, as a condition for granting a state pension of officials and servicemen, that would be applicable to persons who left internal service prior to the entry into force of the Statute of Internal Service may not be considered as legislative omission, as granting of the state pension of officials or servicemen for officials who left service prior to the entry into force of the Statute of Internal Service has been regulated in Paragraph 2 of Article 2 (wording of 27 November 2003) of the Law on the Implementation of the Statute: it is namely the legal regulation established in this Paragraph that is interpreted together with the respective provisions of the Law on the State Pensions of Officials and Servicemen and the Statute of Internal Service, under which a state pension is granted to officials who left service prior to the entry into force of the Statute of Internal Service.

In the case of the legal regulation specified by the petitioner, there would be legislative omission if granting of the state pension to officials who left service prior to the entry into force of the Statute of Internal Service were not regulated at all, i.e. if, upon the entry into force of the Statute of Internal Service, it would not be clear neither if such officials have the right to receive a state pension nor the age upon reaching which such a pension may be granted to them.

Consequently, Article 2 (wording of 27 November 2003) of the Law on the Implementation of the Statute does not include the legislative omission that is presumed by the petitioner.

7. However, it needs to be noted that, although there is no legal omission in the case of the legal regulation specified by the petitioner, the doubts of the petitioner concerning the compliance of the impugned legal regulation with the Constitution have not been denied.

In this connection, in the constitutional justice case at issue, the Constitutional Court will investigate whether Paragraph 2 of Article 2 (wording of 27 November 2007) of the Law on the Implementation of the Statute, insofar as officials who left internal service prior to the entry into force of the Statute of Internal Service are granted a state pension of officials and servicemen upon reaching the age for transfer to the reserve as established in the Statute of Internal Service, is in conflict with Article 52 of the Constitution and the constitutional principle of a state under the rule of law.

III

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

1.1. The Constitutional Court has held on more than one occasion that Article 52 of the Constitution sets the bases of pension provision and social assistance (inter alia, the Constitutional Court’s rulings of 6 February 2012, 29 June 2012, and 7 February 2013); the provisions of this article express the social character (social nature) of the state, whilst the social maintenance is recognised as having the status of a constitutional value (inter alia, the Constitutional Court’s rulings of 14 December 2010 and 15 February 2013).

1.2. The provisions of Article 52 of the Constitution which guarantee the right to social provision at the same time oblige the state to establish adequate measures for the implementation and legal protection of the said right (inter alia, the Constitutional Court’s rulings of 6 February 2012, 7 February 2013, and 14 April 2014); pensions and various types of social assistance are guaranteed to the persons on such bases and of such sizes that are established in laws, while the persons who meet the conditions provided for by the law have the right to demand that the state grant and pay this pension to them; after the types of pensions, the persons entitled to a pension, the grounds and conditions for granting and paying pensions, and their sizes have been established by law, a duty arises for the state to follow the constitutional principles of legal certainty and the protection of legitimate expectations in the area of pension provision relations (inter alia, the Constitutional Court’s rulings of 6 February 2012 and 22 February 2013); when the pension established by means of a law which is not in conflict with the Constitution is granted and paid, this right and legitimate expectation acquired by the person should also be linked with the protection of the rights of ownership of this person (inter alia, the Constitutional Court’s rulings of 22 October 2007 and 24 December 2008 and its decision of 20 April 2010) and the persons who have been granted and paid a pension established by the Constitution or a law have the right to demand that the benefits be further paid to them in the sizes which were granted and paid previously (inter alia, the Constitutional Court’s rulings of 24 December 2008 and 2 September 2009 and its decision of 20 April 2010).

2. Under the Constitution, a law may also establish other pensions, not only those which are expressis verbis specified in Article 52 of the Constitution, i.e. the pensions for service to the State of Lithuania (inter alia, the Constitutional Court’s rulings of 24 December 2008 and 14 December 2010). The pensions other than those directly identified in Article 52 of the Constitution are currently established, among other things, in the Law on State Pensions.

A state pension of officials and servicemen is one of the types of pensions not directly named in Article 52 of the Constitution. Its purpose is, inter alia, to compensate for a difficult, responsible, and often risk-involving and dangerous service performed by a person to the state (the Constitutional Court’s rulings of 24 December 2008, 22 February 2013, and 6 May 2015). After such a state pension is established in a law, the granting and receipt of this pension must specifically be related to the service performed by a person to the State of Lithuania (the Constitutional Court’s rulings of 22 February 2013 and 6 May 2015).

3. The state pensions, which are not directly named in Article 52 of the Constitution, differ as to their nature and character from state social insurance pensions; they are granted to persons, inter alia, in recognition of performed service or merit to the State of Lithuania and are paid from the state budget; the receiving of these pensions is linked with a particular status of the person (service, merits, or other circumstances upon which the receiving of the state pension depends) (inter alia, the Constitutional Court’s rulings of 24 December 2008, 22 February 2013, 6 May 2015, and 26 November 2015).

The particularities of state pensions permit the legislature, by taking account of all the significant circumstances and having regard to the norms and principles of the Constitution, to establish the respective conditions for granting these pensions (inter alia, the Constitutional Court’s rulings of 24 December 2008, 29 June 2010, 6 February 2012, 6 May 2015, and 26 November 2015); the discretion of the legislature as to the granting of state pensions is much broader than in regulating other pensions; the conditions for granting state pensions may be very varied and may depend, inter alia, on the particularities of the specific service and the economic capabilities of the state (inter alia, the Constitutional Court’s rulings of 24 December 2008, 6 February 2012, 6 May 2015, and 26 November 2015).

When establishing such a legal regulation according to which persons who meet the conditions provided by law (retirement from service, the length of service, age, etc.) acquire the right to a certain pension for service established in the law, the state at the same time assumes the duty to grant and pay such a pension. A persons who meets the conditions provided for by the law has the right to demand that the state fulfil the obligation assumed and pay the benefits of the established size to him/her (the Constitutional Court’s rulings of 4 July 2003, 3 December 2003, 13 December 2004, and 24 December 2008).

4. When establishing the persons whom a state pension of officials and servicemen is granted and paid, grounds and conditions for granting and paying such a pension, as well as the sizes of this pension, the legislature must comply with the constitutional principle of equality of all persons (the Constitutional Court’s ruling of 26 September 2007); officials and servicemen, whose legal situation is the same, when there are no differences of such nature and such extent among them that different treatment of such officials and servicemen would be objectively justified, should be treated equally (the Constitutional Court’s ruling of 24 December 2008).

5. In establishing persons who are granted and paid state pensions, the grounds and conditions for granting and paying state pensions, as well as the sizes of these pensions, the legislature is obliged to pay heed to the constitutional imperative of social harmony and the principles of justice, reasonableness, and proportionality; the granting and payment of the state pension should not become a privilege; if the legislature, when establishing by law the grounds for the aforesaid pension provision, persons who are granted and paid the aforesaid pensions, the conditions for granting and paying these pensions, as well as their sizes, did not pay heed to the Constitution (for example, if the legislature granted state pensions to persons who may not be granted such pensions, or set unreasonably large sizes of these pensions, or established unreasonable conditions for granting and paying these pensions), then such pension provision could not be defended under the Constitution (inter alia, the Constitutional Court’s rulings of 22 October 2007, 3 July 2014, and 26 November 2015).

When establishing the state pension of officials and servicemen for service, it is not allowed to establish any such legal regulation according to which a person would be able to retire unreasonably early, or an unreasonably short length of service or work would be required in order to receive such a pension, or the size of the remuneration of an official or serviceman would not be taken into consideration when determining the size of a granted pension, or the principles of justice, reasonableness, and proportionality would be violated in some other way; if no regard is paid to the particularities of the service of officials and servicemen, the particular type of duties, or other important circumstances, the granting and payment of such a pension would become a privilege; therefore, such pension provision could not be guaranteed under the Constitution (the Constitutional Court’s rulings of 4 July 2003, 13 December 2004, 22 October 2007, and 24 December 2008).

6. The provisions of Article 52 of the Constitution should be interpreted with regard to the constitutional principle of a state under the rule of law whose inseparable elements are the protection of legitimate expectations, legal certainty, and legal security. These principles, inter alia, imply that the state must fulfil all its obligations undertaken to a person. If legal certainty, legal security, and the protection of legitimate expectations are not ensured, the trust of persons in the state and in law will not be ensured, either.

6.1. The protection of the acquired rights is one of the elements of the principle of legitimate expectations (ruling of 3 December 2003). The persons who have acquired certain rights under a law have the right to reasonably expect that their rights will be retained for the established period of time and implemented in reality (the Constitutional Court’s rulings of 2 September 2009, 29 June 2012, and 15 February 2013); therefore, the legal regulation may be changed only by complying with the norms and principles of the Constitution.

6.2. Changes in a legal regulation must be made in such a manner that the persons whose legal status is affected by those changes would have a real opportunity to adapt to a new legal situation. Therefore, in order to create the conditions for persons not only to familiarise themselves with a new legal regulation prior to the beginning of its validity, but also to adequately prepare for the expected changes, it might be necessary to establish a later date of the entry into force of a relevant law. The time period that should be established for each concrete situation must be assessed in view of a number of circumstances: the purpose of a law in the legal system and the character of the social relations regulated by that law, the circle of subjects to whom it is applied and their possibilities of preparing for the entry into force of the new legal regulation, as well as other important circumstances (the Constitutional Court’s rulings of 15 February 2013 and 16 May 2013).

In making essential changes in the valid legal regulation, where such changes lead to unfavourable consequences for the legal position of persons, it may also be necessary to establish a certain transitional legal regulation. The legal situation of persons to whom the new legal regulation is applicable should be regulated by means of transitional provisions in order that those persons would be given enough time to finish the actions started by them on the basis of the previous legal regulation, because the said persons started those actions expecting that the said previous legal regulation would be stable, and in order that such persons might implement their rights acquired under the previous legal regulation (the Constitutional Court’s ruling of 15 February 2013).

6.3. Thus, as it has been held in the jurisprudence of the Constitutional Court on more than one occasion, the constitutional protection of acquired rights and legitimate expectations does not mean that the system of pension provision that is established by law may not be reorganised (inter alia, the Constitutional Court’s rulings of 4 July 2003, 3 December 2003, 24 December 2008, and 2 September 2009). While reorganising this system, the Constitution must be observed in every case. If, while reorganising the pensionary system, the pensions, established by law, that are not directly specified in Article 52 of the Constitution were eliminated, or the legal regulation of these pensions were amended in essence, the legislature would be obligated to establish a fair mechanism for compensating the incurred losses for the persons who were granted and paid such pensions. The legislature, while reorganising the system of pensions in such a way that the bases for pension provision, the persons to whom the pension is granted and paid, the conditions for granting and paying pensions, and the sizes of pension provision are changed, must provide for a sufficient transitional time period during which the persons who have a respective job or perform a respective service which entitles them to a respective pension (i.e. a state pension) under the previous regulation would be able to prepare for these changes (inter alia, the Constitutional Court’s decision of 20 April 2010 and its ruling of 14 December 2010).

IV

On the compliance of Paragraph 2 of Article 2 (wording of 27 November 2003) of the Law on the Implementation of the Statute of Internal Service with the Constitution

1. As mentioned before, in the constitutional justice case at issue, it is investigated whether Paragraph 2 of Article 2 (wording of 27 November 2003) of the Law on the Implementation of the Statute, insofar as officials who left internal service prior to the entry into force of the Statute of Internal Service are granted a state pension of officials and servicemen upon reaching the age for transfer to the reserve as established in the Statute of Internal Service, is in conflict with Article 52 of the Constitution and the constitutional principle of a state under the rule of law.

2. It has been mentioned that under Item 5 (wordings of 2 October 2012 and 25 June 2015) of Paragraph 1 (wording of 18 January 2007) of Article 3 of the Law on the State Pensions of Officials and Servicemen, one of the conditions for officials who left service after having served five or more years (but less than 20 or 25) to be granted a state pension of officials and servicemen is to have reached the age established by laws or statutes for transfer to the reserve. It has also been mentioned that prior to the entry into force of the Statute of Internal Service on 1 May 2003, the age for transfer to the reserve was governed by the Statute of the Service in the System of the Interior of the Republic of Lithuania which had been approved by the government resolution of 29 July 1999.

3. While assessing the compliance of the legal regulation impugned by the petitioner with the Constitution, it should be noted that, as mentioned before, the legal regulation that was effective since the restoration of independence of the Republic of Lithuania until the entry into force of the Statute of Internal Service on 1 May 2003, on the grounds of which a state pension of officials and servicemen was granted and paid, had partially been established not by means of a law but by a substatutory legal act approved by the Government – the Statute of the Service in the System of the Interior of the Republic of Lithuania (it established one of the conditions for granting a state pension – the age of officials for their transfer to the reserve). Thus, only upon the adoption of the Statute of Internal Service, the requirement, which stems from the Constitution, to establish, by means of a law, the grounds for the pension provision, persons who are granted and paid the aforesaid pensions, the conditions for granting and paying these pensions, as well as their sizes, was implemented.

4. It has been mentioned that under Paragraph 2 of Article 2 (wording of 27 November 2003) of the Law on the Implementation of the Statute, interpreted together with the provisions of the Law on the State Pensions of Officials and Servicemen and the Statute of Internal Service, the officials who left service after having served five or more years (but less than 20 years) and left service prior to the entry into force of the Statute of Internal Service on 1 May 2003, were granted and paid a state pension of officials and servicemen upon reaching an age for transfer to the reserve as established in the Statute of Internal Service, i.e. according to their obtained or equivalent ranks – 50, 55, 60 or 65 years of age (and from 1 January 2016 – 55, 60 or 65) and not 45, 50 or 55 years of age (i.e. accordingly, by 5, 10 or 15 years later) as it was established in the legal act that were in effect prior to the entry into force of the Statute of Internal Service.

5. In the opinion of the petitioner, the persons who left service prior to the entry into force of the Statute of Internal Service on 1 May 2003, had a legitimate expectation that a state pension of officials and servicemen would be granted and paid to them after having served in the system for a certain period of time and upon reaching the age of transfer to the reserve as established at the time when they left the service – 45 or 50 years of age. According to the petitioner, by means of the impugned legal regulation, this legitimate expectation was denied, as upon the entry into force of the Statute of Internal Service, for these officials, as well as any other official, the age of transfer to the reserve upon which granting and payment of the state pension of officials and servicemen depend, was established in the Statute of Internal Service. After the age required for granting and paying a state pension of officials and servicemen was increased suddenly and significantly, one failed to establish a compensation mechanism, a transitional period, or a transitional legal regulation applicable to such officials.

6. In deciding whether Paragraph 2 of Article 2 (wording of 27 November 2003) of the Law on the Implementation of the Statute, to the specified extent, is in conflict with Article 52 of the Constitution and the constitutional principle of a state under the rule of law, it should be noted that, as mentioned before:

the state pensions differ as to their nature and character from state social insurance pensions; the discretion of the legislature in establishing the granting of state pensions is broader than in regulating other pensions; the conditions for granting them may be very varied and may depend, inter alia, on the particularities of the specific service and the economic capabilities of the state;

pensions and social support of various types are guaranteed for only the persons, only on such the grounds and only in the sizes as established in laws; after the types of pensions, the persons entitled to a pension, the grounds and conditions of granting and paying pensions, and the sizes of pensions are established by law, the duty arises for the state to follow the constitutional principles of the protection of legitimate expectations and legal certainty in the area of pension provision relations; the persons who have been granted and paid a pension established by the Constitution or a law have the right to demand that they should continue to receive the payments in the sizes that were granted and paid previously;

when establishing the persons whom a state pension of officials and servicemen is granted and paid, grounds and conditions for granting and paying such a pension, as well as the sizes of this pension, the legislature must comply with the constitutional principle of equality of all persons;

the granting and payment of the state pension should not become a privilege; when establishing the state pension of officials and servicemen for service, it is not allowed to establish any such legal regulation according to which, inter alia, a person would be able to retire unreasonably early, or an unreasonably short length of service or work would be required in order to receive such a pension, otherwise, the principles of justice, reasonableness, and proportionality would be violated and the granting and payment of such a pension would become a privilege and such pension provision could not be guaranteed under the Constitution;

the constitutional protection of acquired rights and legitimate expectations does not mean that the system of pension provision that is established by law may not be reorganised; if, while reorganising the system of pensions, the pensions that are established by law and not directly specified in Article 52 of the Constitution were eliminated, or the legal regulation of those pensions were amended in substance, the legislature would be obligated to establish a fair mechanism for compensation for the incurred losses to the persons who had been granted and paid such pensions; the legislature, while reorganising the system of pensions in a manner that, inter alia, the conditions of granting and paying pensions are changed, must provide for a sufficient transitional period during which the persons who have a respective job or perform respective service that entitles them to a respective pension (i.e. state pension) under the previous regulation would be able to prepare for such changes;

in making essential changes in the valid legal regulation, where such changes lead to unfavourable consequences for the legal position of persons, it may also be necessary to establish a certain transitional legal regulation. The legal situation of persons to whom the new legal regulation is applicable should be regulated by means of transitional provisions in order that those persons would be given enough time to finish the actions started by them on the basis of the previous legal regulation, because the said persons started those actions expecting that the said previous legal regulation would be stable, and in order that such persons might implement their rights acquired under the previous legal regulation.

6.1. It has been mentioned that, the amendment, by means of the provisions of the Statute of Internal Service, which came into force on 1 May 2003, to the age of transfer of officials to the reserve has amended one of the conditions for granting the state pensions of officials and servicemen for the officials who had left service and had served for five or more years (but not more than 20 or 25 years).

It has also been mentioned that from the travaux préparatoires of the Law on the Approval of the Statute of Internal Service it is obvious that longer duration of service of officials was established with regard to the then economic situation of the country and the interest of officials to serve longer.

In the context of the constitutional justice case at issue it should be noted that the legislature that, under the Constitution, has broader discretion to regulate the conditions for granting and paying state pensions than other pensions directly named in Article 52 of the Constitution, paying regard to the Constitution and having assessed the particularities of service and economic possibilities of the state, could decide to change these conditions by, for instance, increasing the age of transfer to the reserve. Such a legal regulation does not in itself create preconditions to violate the Constitution if, inter alia, the requirements not to deny the legitimate expectations of persons to receive a state pension under the same conditions that it was granted and paid to them that stem from Article 52 of the Constitution and the constitutional principle of a state under the rule of law are regarded.

6.2. It has been mentioned that under Item 5 (wordings of 2 October 2012 and 25 June 2015) of Paragraph 1 (wording of 18 January 2007) of Article 3 of the Law on the State Pensions of Officials and Servicemen, the officials who left service after having served five or more years (but less than 20 or 25) do not have the right to receive a state pension of officials and servicemen until they do not meet the second condition for granting this pension to them, i.e. until they reach the respective age established by laws or statutes for transfer to the reserve. It was also noted that officials of internal service who had left internal service prior to 30 April 2003 having served five or more years (but less than 20), but had not, at that time, reached the age established by the legal acts for transfer to the reserve, met only one of the two conditions for being granted a state pension of officials and servicemen, therefore, at the time of leaving internal service, they had not acquired the right to receive this pension.

6.2.1. In the context of the constitutional justice case at issue, it is worth noting that having established certain conditions for granting and paying the state pension of officials and servicemen in the Law on the State Pensions of Officials and Servicemen and in other laws, the state has, under the legal regulation prescribed by the legislature, committed itself to pay the state pensions of officials and servicemen to officials who meet the requirements established by laws. Upon the entry into force of the Statute of Internal Service, under Paragraph 2 of Article 2 (wording of 27 November 2003) of the Law on the Implementation of the Statute, a state pension continued to be paid on the same conditions to officials who, upon leaving service, met the requirements established at that time and had acquired the right to receive a state pension prior to the entry into force of the Statute of Internal Service. Thus, the impugned legal regulation established in Paragraph 2 of Article 2 (wording of 27 November 2003) of the Law on Implementation did not deny the obligations assumed by the state to pay the state pension to those officials to whom it had been granted and paid until the entry into force of the Statute of internal Service.

6.2.2. The Constitutional Court has held that, under the Constitution, the acquired rights are protected and defended (inter alia, the Constitutional Court’s rulings of 22 November 2007 and 2 September 2009). As mentioned before, officials who left internal service prior to the entry into force of the Statute of Internal Service having served five or more years (but less than 20), but had not reached the age established by the law for transfer to the reserve, did not meet all the requirements established at that time and had not yet acquired the right to receive a state pension.

It should also be noted that a social guarantee established by the legislature, the state pension of the officials and servicemen who left the service prior to the entry into force of the Statute of internal service and the Law on the Implementation of the Statute had not been rescinded by means of the legal regulation prescribed in Paragraph 2 of Article 2 (wording of 27 November 2003) of the Law on the Implementation of the Statute. Upon the entry into force of the legal regulation consolidated in the Statute of Internal Service which amended the age of officials of their transfer to the reserve upon reaching which, in certain cases, a state pension of officials and servicemen is granted, officials who had served five or more years (but less than 20) and had left service prior to the entry into force of the Statute of Internal Service would acquire the right to receive this pension after they met another condition established in the Law on the State Pensions of Officials and Servicemen in order to qualify for such a pension, i.e. after they reached the age established in legal acts for transfer to the reserve.

6.2.3. Therefore, it should be held that the legal regulation established in Paragraph 2 of Article 2 (wording of 27 November 2003) of the Law on the Implementation of the Statute, under which a state pension of officials and servicemen is granted and paid to officials who left service prior to the entry into force of the Statute of Internal Service under the conditions established in this statute (among other things, upon reaching the age of transfer to the reserve as established in this statute), did not violate the legitimate expectations of the officials to receive a state pension after they meet the conditions laid down in laws.

6.3. It has been mentioned that the legal regulation impugned by the petitioner that was established in the Law on the Implementation of the Statute adopted on 29 April 2003, came into force on 1 May 2003, as did the Statute of Internal Service; it has also been mentioned that, upon the adoption of the Statute of Internal Service and the Law on the Implementation of the Statute, no transitional period or transitional legal regulation was established for the entry into force of these legal acts.

6.3.1. It should be noted that, even if a transitional period or transitional legal regulation for the entry into force of the Statute of Internal Service and the Law on Implementation of the Statute had been established, it would not have changed the legal situation of officials who had already left service: at the time of the entry into force of the said legal acts, such officials were not serving officials and would not have been able to prepare for the envisaged changes or finish any undertaken actions in order to implement their rights acquired under the former legal regulation. As mentioned before, officials who had left service prior to the entry into force of the Statute of Internal Service but had not reached the age established by the law for transfer to the reserve, did not yet acquire the right to receive a state pension of officials and servicemen.

6.3.2. In the constitutional justice case at issue, in the context of the arguments specified in the petition, it should also be emphasised that, as mentioned before, under the Constitution, the legislature must establish a fair mechanism of compensation for the losses incurred by the persons who have been granted and paid such state pensions prescribed in the law. A state pension of officials and servicemen was not granted to officials who left internal service prior to the entry into force of the Statute of Internal Service after having served five or more years (but less than 20) but had not reached the age established by the law for transfer to the reserve at that time.

It should also be noted that the impugned legal regulation did not change the conditions of paying a state pension for the officials who left internal service prior to the entry into force of the Statute of Internal Service and to whom it had been granted and paid.

6.3.3. Consequently, having established, in the Statute of Internal Service, a different age of transfer of officials and servicemen to the reserve upon reaching which, under Paragraph 2 of Article 2 (wording of 27 November 2003) of the Law on the Implementation of the Statute, a state pension of officials and servicemen is granted to the officials who had served five or more years (but less than 20) and left service prior to the entry into force of the Statute of Internal Service, the legislature did not violate the requirements that stem from Article 52 of the Constitution and from the constitutional principle of a state under the rule of law.

6.4. In addition, as mentioned before in this ruling, when implementing its discretion to establish the conditions for granting state pensions, the legislature is bound by the Constitution, inter alia, the constitutional principle of the equality of the rights of persons.

It should be noted that the mere date of entering or leaving service may not be a constitutionally justifiable ground for a different regulation of social guarantees applicable to officials who have left service and whose situation is the same. If a legal regulation were established in Paragraph 2 of Article 2 (wording of 27 November 2003) of the Law on the Implementation of the Statute, under which officials who left service prior to the entry into force of the Statute of Internal Service after having served five or more years (but less than 20) were granted and paid a state pension upon reaching a different age for transfer to the reserve compared with that established in the Statute of Internal Service (i.e. either earlier or later), which seems to be necessary to the petitioner, the preconditions would be created for the emergence of situations where officials whose legal situation would be the same (i.e. officials with the minimum length of service as established in the law and of the same age) would be treated in a different manner by taking into account only the date when they left service (i.e. they would acquire the right to receive a state pension regardless of their different age), even though there would be no differences of such a nature or extent that could objectively justify this different treatment.

6.5. The attention should also be paid to the fact that, if, under the Republic of Lithuania’s Law on State Social Insurance Pensions (wordings of 18 July 1994 and 19 May 2005 with subsequent amendments), the age of officials for their transfer to the reserve were not raised in the face of the gradual increase in the age for an old-age pension, the preconditions would be created for the emergence of situations where officials would be transferred to the reserve unreasonably early; hence, granting and paying a state pension to them might be regarded as a privilege, which is prohibited under the Constitution; such legal regulation could violate the principles of justice, reasonableness, and proportionality and such pension provision could not be guaranteed under the Constitution.

7. In the light of the arguments set out, the conclusion should be drawn that Paragraph 2 of Article 2 (wording of 27 November 2003) of the Law on the Implementation of the Statute, insofar as officials who left internal service prior to the entry into force of the Statute of Internal Service were granted a state pension of officials and servicemen upon reaching such the age for transfer to the reserve as is established in the State of Internal Service, is not in conflict with Article 52 of the Constitution and the constitutional principle of a state under the rule of law.

Conforming to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1, 53, 531, 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:

To recognise that Article 2 (wording of 27 November 2003; Official Gazette Valstybės žinios, 2003, No 117-5322) of the Republic of Lithuania’s Law on the Implementation of the Law on the Approval of the Statute of Internal Service, insofar as, under this paragraph, officials who left internal service prior to the entry into force of the Statute of Internal Service are granted a state pension of officials and servicemen upon reaching the age for transfer to the reserve as established in the State of Internal Service, is not conflict with the Constitution of the Republic of Lithuania.

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

Justices of the Constitutional Court:               Elvyra Baltutytė

                                                                                   Vytautas Greičius

                                                                                   Danutė Jočienė

                                                                                   Pranas Kuconis

                                                                                   Gediminas Mesonis

                                                                                   Vytas Milius

                                                                                   Egidijus Šileikis

                                                                                   Algirdas Taminskas

                                                                                   Dainius Žalimas