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On the interpretation of the provisions of the Constitutional Court’s ruling of 29 June 2010 related to the state pensions of judges

Case No. 06/2008-18/2008-24/2010

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

DECISION

ON THE INTERPRETATION OF CERTAIN PROVISIONS OF THE RULING OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA OF 29 JUNE 2010

14 January 2015, No. KT1-S1/2015

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 61 and 531 of the Law on the Constitutional Court of the Republic of Lithuania, at the Court’s hearing, on 18 December 2014, considered, under written procedure, the 18 February 2014 petition (No. 1B-6/2014) of Gintaras Kryževičius, President of the Supreme Court of Lithuania, requesting the interpretation of certain provisions of Section II of the reasoning part of the ruling of the Constitutional Court of the Republic of Lithuania of 29 June 2010.

The Constitutional Court

has established:

1. On 29 June 2010, in constitutional justice case No. 06/2008-18/2008-24/2010, the Constitutional Court adopted the Ruling “On the Compliance of Articles 5 and 6 of the Republic of Lithuania’s Law on the State Pensions of Judges, Paragraph 3 (Wording of 8 December 2009) of Article 3 of the Republic of Lithuania’s Law on State Pensions, and Item 1 of Paragraph 2 of Article 1 and Paragraph 4 of Article 16 of the Republic of Lithuania’s Provisional Law on the Recalculation and Payment of Social Payments with the Constitution of the Republic of Lithuania” (Official Gazette Valstybės žinios, 2010, No. 134-6860; hereinafter referred to as the Constitutional Court’s ruling of 29 June 2010).

2. The President of the Supreme Court of Lithuania, the petitioner, requests the interpretation of the following provisions of Section II of the reasoning part of the Constitutional Court’s ruling of 29 June 2010, i.e. whether:

the provision “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” of Item 2.3 and the provision “the persons who have been granted and paid a pension established by the Constitution or a law, under Article 23 of the Constitution, have the right to demand that the payments be further paid to them in the amounts which were granted and paid previously” of Item 2.4 also mean that the persons, who have been granted and paid the state pensions of judges pursuant to the constitutional doctrine (formulated in the Constitutional Court’s act) of the calculation and payment of the state pensions of judges (for example, due to the failure of the legislature to change the legal regulation of the state pensions of judges when the legal regulation which would allow the calculation and payment of the said pensions disappeared after the Constitutional Court had ruled the relevant provisions of the Law on the State Pensions of Judges to be in conflict with the Constitution), have acquired the right that the state pensions of judges be further paid to them in the amounts that have been granted and paid, and whether such their right is defended under the Constitution, inter alia, Articles 23 and 52 thereof;

the provisions “the doctrine formulated in the Constitutional Court’s ruling of 22 October 2007 that the principled provision that one may not differentiate (also by applying law) the remuneration of the judges of the courts of the same system and of the same level according to when the remuneration of a certain size of judges was established (inter alia, according to whether the person began to work as a judge of the relevant court before establishing the remuneration of a certain size of the judge of that court, or afterwards) is also mutatis mutandis applicable to other social (material) guarantees of judges, inter alia, those which are established (applied) to judges upon the expiry of their powers; they may not be reduced, let alone altogether denied, also in the case when their system is reorganised. It also needs to be mentioned that the imperative of the reality of the social (material) guarantees of judges stems from the Constitution” of Item 3.16 may be understood as meaning that the prohibition, stemming from the Constitution, on reducing any social guarantees of judges or denying them altogether also means that, when changing the legal regulation of the state pensions of judges, no regulation which would reduce the state pensions of judges may be established;

the provisions “<...> the legislature, while entrenching, by means of a law, the maximum size of the pension as well as the ways for establishing this size, must heed, inter alia, the fact that the state pension of judges is a social (material) guarantee of the judge upon the expiry of his powers, stemming from the Constitution, which is defended not only under Article 109 of the Constitution, but also under Article 52 thereof, that this social (material) guarantee must be in line with the constitutional status of the judge and his dignity, and that such a constitutional social (material) guarantee of the judge must be real and not only nominal. Otherwise, one would deny the essence and purpose of the state pension of judges as a social (material) guarantee of the judge upon the expiry of his powers, stemming from the Constitution, and thereby would create the preconditions for deviating from the requirements arising out of the Constitution, inter alia, Paragraph 2 of Article 109 thereof, as well as out of the constitutional principle of a state under the rule of law” of Item 3.7, which, inter alia, consolidate the requirements for the reality of the state pensions of judges and for the compliance of the said pensions with the constitutional status of judges and their dignity, could also be interpreted as meaning that the size of the state pension of judges must always be linked with the work remuneration received by judges, whether it can be linked with other criteria for establishing the said pension and whether the Constitution allows such legal regulation under which, when increasing the work remuneration of judges, the size of the state pension of judges would remain unchanged.

The Constitutional Court

holds that:

I

1. The purpose of the institute of the interpretation of the rulings and other final acts of the Constitutional Court is to disclose the content and meaning of the corresponding provisions of a ruling or another final act of the Constitutional Court more broadly and in more detail, if it is necessary, in order to ensure the proper execution of that ruling or another final act of the Constitutional Court so that the said ruling or another final act of the Constitutional Court would be followed (inter alia, the Constitutional Court’s decisions of 22 December 2010, 5 September 2011, and 16 April 2014). The interpretation of a ruling or another final act of the Constitutional Court might be significant not only in order to ensure the proper implementation of the decision consolidated in the operative part of that act, but also to ensure that in the law-making process one would properly take account of the official constitutional doctrine formed by the Constitutional Court (inter alia, the Constitutional Court’s decisions of 29 November 2012, 13 March 2013, and 16 April 2014). The purpose of the interpretation of a ruling or another final act is to explain more comprehensively those provisions and formulations of the Constitutional Court’s ruling or its another final act due to the meaning of which there have been some uncertainties, but not to explain how to implement the said ruling or another final act in a concrete situation, inter alia, in the area of the application of law (the Constitutional Court’s decisions of 29 November 2012 and 16 April 2014).

2. The Constitutional Court has emphasised on more than one occasion that the consideration of a petition requesting the interpretation of a ruling or another final act of the Constitutional Court does not imply any new constitutional justice case.

Under Paragraph 3 of Article 61 of the Law on the Constitutional Court, the Constitutional Court must interpret its ruling without changing its content. The Constitutional Court has held on more than one occasion that the said provision means, among other things, that, while interpreting its ruling, the Constitutional Court may not interpret the content of the ruling in such a way that the meaning of its provisions, inter alia, the notional entirety of the elements constituting the content of the ruling, and the arguments and reasons upon which that ruling of the Constitutional Court is based would be changed. A ruling of the Constitutional Court is integral, and all its constituent parts are interrelated; the operative (resolving) part of a ruling is based upon the arguments of the reasoning part; while interpreting its ruling, the Constitutional Court is bound by the content of both the operative part and reasoning part of its ruling.

When interpreting Paragraph 3 of Article 61 of the Law on the Constitutional Court, the Constitutional Court has stated in its acts on more than one occasion that the Constitutional Court may not interpret what it did not investigate in the constitutional justice case in which the ruling, the interpretation of which is requested, was adopted; this would imply a matter for a separate investigation.

3. It should be noted that the uniformity and continuity of the official constitutional doctrine imply the necessity to interpret each provision of a ruling or another final act of the Constitutional Court in the light of the entire official constitutional doctrinal context, as well as in the light of the other provisions (either explicit or implicit) of the Constitution that are related to the provision (provisions) of the Constitution in the course of the interpretation of which a particular provision of the official constitutional doctrine was formulated in a certain ruling or another final act of the Constitutional Court. As the Constitutional Court has held on more than one occasion, no official constitutional doctrinal provision of a ruling or another final act of the Constitutional Court may be interpreted in isolation, by ignoring its meaning and systemic links with the other official constitutional doctrinal provisions set forth in the same ruling, another final act of the Constitutional Court, or in other acts of the Constitutional Court, as well as with other provisions (either explicit or implicit) of the Constitution (inter alia, the Constitutional Court’s decisions of 6 December 2007, 28 October 2009, 13 March 2013, and 16 April 2014).

II

1. It has been mentioned that the President of the Supreme Court of Lithuania, the petitioner, requests the interpretation of whether the provision “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” of Item 2.3 and the provision “the persons who have been granted and paid a pension established by the Constitution or a law, under Article 23 of the Constitution, have the right to demand that the payments be further paid to them in the amounts which were granted and paid previously” of Item 2.4 also mean that the persons, who have been granted and paid the state pensions of judges pursuant to the constitutional doctrine (formulated in the Constitutional Court’s act) of the calculation and payment of the state pensions of judges (for example, due to the failure of the legislature to change the legal regulation of the state pensions of judges when the legal regulation which would allow the calculation and payment of the said pensions disappeared after the Constitutional Court had ruled the relevant provisions of the Law on the State Pensions of Judges to be in conflict with the Constitution), have acquired the right that the state pensions of judges be further paid to them in the amounts which have been granted and paid, and whether such their right is defended under the Constitution, inter alia, Articles 23 and 52 thereof.

2. Thus, the petitioner requests the interpretation of whether the aforesaid provisions of Items 2.3 and 2.4 of Section II of the reasoning part of the Constitutional Court’s ruling of 29 June 2010 mean that, after the entry into force of the Constitutional Court’s ruling, by means of which the legal regulation which would allow the calculation and payment of the state pensions of judges was ruled to be in conflict with the Constitution, and after the legislature has failed to properly change the said legal regulation, the persons, who have been granted and paid the state pensions of judges pursuant to the official constitutional doctrinal provisions formulated in the Constitutional Court’s ruling, have acquired the right that the state pensions of judges be further paid to them in the same amounts, and whether such their right is defended under the Constitution.

2.1. In this context, it should be noted that the Constitutional Court’s ruling of 29 June 2010, the interpretation of which is requested, inter alia, recognised that the following was in conflict with Paragraph 2 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law:

Paragraph 1 of Article 6 of the State Pensions of Judges, insofar as, when consolidating, in the said paragraph, the maximum size of the state pension of judges, no account had been taken of the peculiarities of separate court systems; when consolidating the procedure for the calculation of the state pensions of judges and the maximum size of these pensions under the legal regulation that was established in Paragraph 1 of Article 6 of the Law on the State Pensions of Judges and that was ruled to be in conflict with the Constitution, no account had been taken of the specific constitutional status of the Constitutional Court as an independent court system, inter alia, of the fact that the justices of the Constitutional Court are appointed for a single nine-year term of office;

the legal regulation established in Paragraph 2 of Article 6 of the Law on the State Pensions of Judges since it was not in line with the concept of the state pension of judges as a constitutional social (material) guarantee of judges upon the expiry of their powers, since, on the one hand, it had created the preconditions for equalising the sizes of the state pensions of the judges whose length of service as a judge differed considerably and, on the other hand, it had created the preconditions for granting the state pensions of judges of a considerably different size to the judges whose length of service as a judge differed insignificantly. Under the legal regulation that was established in Paragraph 2 of Article 6 of the Law on the State Pensions of Judges and that was ruled to be in conflict with the Constitution, the judge whose length of service as a judge was between 5 and 10 years had been granted the state pension of judges equal to 10 percent of the average work remuneration received by this judge, the judge whose length of service as a judge was between 10 and 15 years had been granted the state pension of judges equal to 20 percent of the average work remuneration received by this judge, and the judge whose length of service as a judge was between 15 and 20 years had been granted the state pension of judges equal to 35 percent of the average work remuneration received by this judge;

the limitation that was set in Paragraph 3 of Article 6 of the Law on the State Pensions of Judges, upon the size of the calculated state pension of judges in conjunction with state social insurance pensions and other state pensions for one person, since it had denied the essence and purpose of the state pensions of judges as a social (material) guarantee of judges upon the expiry of their powers, stemming from the Constitution, and had created the preconditions for the state pension of judges to become a nominal rather than a real constitutional social (material) guarantee of judges upon the expiry of their powers (this also gave rise to such legal situations where a person, a former judge, the amount of the state (other than the state pension of judges) and state social insurance pensions of whom exceeded the size of 1.5 of the average monthly work remuneration in the economy of the country, as published by the Department of Statistics, for the quarter before the last quarter preceding the month for which the state pension of judges was paid, or was slightly smaller than this size, the state pension of judges used not to be paid at all or only a small part of this pension used to be paid).

2.2. Under Paragraph 1 of Article 107 of the Constitution, a law (or part thereof) of the Republic of Lithuania may not be applied from the day of the official publication of the Constitutional Court’s decision that the act in question (or part thereof) is in conflict with the Constitution. Thus, after the Constitutional Court’s ruling of 29 June 2010 came into force on 16 November 2010, the legal regulation that is established in Paragraphs 1, 2, and 3 of Article 6 of the Law on the State Pensions of Judges and that has been ruled to be in conflict with the Constitution may not be applied.

It should be noted that every legal act (part thereof) adopted by the Seimas, which, by means of a ruling of the Constitutional Court, has been ruled to be in conflict with the Constitution, is permanently removed from the Lithuanian legal system and may never be applied again; a constitutional duty stems for the Seimas to recognise such a legal act (part thereof) no longer valid or (if it is impossible to do so without the relevant legal regulation of the social relations in question) to change it so that the newly established legal regulation would not be in conflict with the Constitution; but even until this constitutional duty is carried out, the relevant legal act (part thereof) may not be applied under any circumstances; in this respect, the legal power of such a legal act is abolished (the Constitutional Court’s decisions of 8 August 2006 and 1 February 2008).

2.3. In this context, it should also be noted that the Seimas has not yet carried out its constitutional duty to correct, as appropriate, the legal regulation that is established in Paragraphs 1, 2, and 3 of Article 6 of the Law on the State Pensions of Judges and that has been ruled to be in conflict with the Constitution. In addition, it should be noted that the ruling of 29 June 2010, the interpretation of which is requested, was officially published and came into force on 16 November 2010, taking account of the fact that a certain time was needed in order to remove the vacuum in the legal regulation which would have emerged if the Constitutional Court’s ruling had been officially published immediately after its public pronouncement at the Constitutional Court’s hearing.

2.4. Thus, the entry into force of the Constitutional Court’s ruling of 29 June 2010, the interpretation of which is requested, and the failure of the legislature to take any action to correct the legal regulation that is established in Paragraphs 1, 2, and 3 of Article 6 of the Law on the State Pensions of Judges and that has been ruled to be in conflict with the Constitution have led to the situation, specified in the petition of the petitioner, where the legal regulation which is established by law and which would allow the calculation and payment of the said pensions has disappeared after the Constitutional Court ruled the relevant provisions of the Law on the State Pensions of Judges to be in conflict with the Constitution.

Consequently, the petition of the President of the Supreme Court of Lithuania, the petitioner, requesting the interpretation of whether the provisions of Items 2.3 and 2.4 of Section II of the reasoning part of the Constitutional Court’s ruling of 29 June 2010 mean that, after the entry into force of the Constitutional Court’s ruling, by means of which the legal regulation which would allow the calculation and payment of the state pensions of judges was ruled to be in conflict with the Constitution, and after the legislature has failed to properly change the said legal regulation, the persons, who have been granted and paid the state pensions of judges pursuant to the official constitutional doctrinal provisions formulated in the Constitutional Court’s act, have acquired the right that the state pensions of judges be further paid to them in the same amounts, whether and whether such their right is defended under the Constitution, should be treated as a petition requesting the interpretation of how the Constitutional Court’s ruling of 29 June 2010 must be applied after the legislature has failed to take any action to implement the said ruling.

2.5. In this context, it should also be noted that, as mentioned before, the Constitutional Court’s ruling of 29 June 2010, the interpretation of which is requested, was officially published and came into force on 16 November 2010, taking account of the fact that a certain time was needed in order to remove the vacuum in the legal regulation which would have emerged if the Constitutional Court’s ruling had been officially published immediately after its public pronouncement at the Constitutional Court’s hearing. However, in its ruling of 29 June 2010, the Constitutional Court did not investigate a hypothetical situation which would arise upon the emergence of the vacuum in the regulation of the state pensions of judges if the legislature did not take any action to implement the said ruling during the period from the adoption of the Constitutional Court’s ruling to its entry into force. Thus, in its ruling, the interpretation of which is requested, the Constitutional Court did not investigate the question of whether the persons, who have been granted and paid the state pensions of judges pursuant to the official constitutional doctrinal provisions formulated in the Constitutional Court’s ruling, have acquired the right that the state pensions of judges be further paid to them in the same amounts, and whether such their right is defended under the Constitution.

3. It has been mentioned that the purpose of the interpretation of a ruling or another final act of the Constitutional Court is to explain more comprehensively those provisions and formulations of the Constitutional Court’s ruling or its another final act due to the meaning of which there have been some uncertainties, but not to explain how to implement the said ruling or another final act in a concrete situation, inter alia, in the area of the application of law.

It has also been mentioned that, as the Constitutional Court has held in its acts on more than one occasion, the Constitutional Court may not interpret what it did not investigate in the constitutional justice case in which the ruling, the interpretation of which is requested, was adopted; this would imply a matter for a separate investigation.

4. Taking account of the fact that, as mentioned before, this petition of the President of the Supreme Court of Lithuania, the petitioner, should be treated as a petition requesting the interpretation of how the Constitutional Court’s ruling of 29 June 2010 must be applied after the legislature has failed to take any action to implement the said ruling, and also of the fact that, in its ruling of 29 June 2010, the interpretation of which is requested, the Constitutional Court did not investigate the question of whether the persons, who have been granted and paid the state pensions of judges pursuant to the official constitutional doctrinal provisions formulated in the Constitutional Court’s ruling, have acquired the right that the state pensions of judges be further paid to them in the same amounts, and whether such their right is defended under the Constitution, the Constitutional Court will not give any interpretation as regards the said question.

5. It should be noted that the Constitution is a directly applicable act (Paragraph 1 of Article 6 of the Constitution). As it has been held by the Constitutional Court on more than one occasion, under the Constitution, the concept of constitutional provisions and the arguments set forth in the rulings of the Constitutional Court and also in its other acts are binding on law-making institutions and those that apply law.

It should also be noted that the Constitution does not tolerate any such situation where a relevant law-making subject avoids or delays the adoption of the relevant legal acts that, while following the official concept of the provisions of the Constitution—the official constitutional doctrine—set forth in the Constitutional Court’s rulings, would correct, as appropriate, the legal regulation which has been ruled to be, by means of a ruling of the Constitutional Court, in conflict with legal acts of higher power, inter alia (and, first of all), with the Constitution; such a situation should especially not be tolerated when a lacuna legis, a legal gap, appears in the legal system after the entry into force of the Constitutional Court’s ruling that has recognised a certain legal act (part thereof) in conflict with the Constitution (or another legal act of higher power), i.e. when certain social relations remain legally unregulated, although, while paying heed to the imperatives of the consistency and inner uniformity of the legal system, stemming from the Constitution, and taking account of the content of these social relations, the said relations must be legally regulated (the Constitutional Court’s decisions of 8 August 2006 and 1 February 2008).

III

1. It has been mentioned that the President of the Supreme Court of Lithuania, the petitioner, requests the interpretation of whether the provisions “the doctrine formulated in the Constitutional Court’s ruling of 22 October 2007 that the principled provision that one may not differentiate (also by applying law) the remuneration of the judges of the courts of the same system and of the same level according to when the remuneration of a certain size of judges was established (inter alia, according to whether the person began to work as a judge of the relevant court before establishing the remuneration of a certain size of the judge of that court, or afterwards) is also mutatis mutandis applicable to other social (material) guarantees of judges, inter alia, those which are established (applied) to judges upon the expiry of their powers; they may not be reduced, let alone altogether denied, also in the case when their system is reorganised. It also needs to be mentioned that the imperative of the reality of the social (material) guarantees of judges stems from the Constitution” of Item 3.16 of Section II of the reasoning part of the Constitutional Court’s ruling of 29 June 2010 may be understood as meaning that the prohibition, stemming from the Constitution, on reducing any social guarantees of judges or denying them altogether also means that, when changing the legal regulation of the state pensions of judges, no regulation which would reduce the state pensions of judges may be established.

2. The petition of the petitioner makes it clear that the petitioner requests the interpretation of whether the aforementioned provisions of Item 3.16 of Section II of the reasoning part of the Constitutional Court’s ruling of 29 June 2010 must be interpreted as meaning that, when reorganising the system of the state pensions of judges, no legal regulation which would reduce the state pensions of judges (inter alia, those which have already been granted under the legal regulation that was in force prior to the reorganisation) may be established.

3. It has been mentioned that no official constitutional doctrinal provision of a ruling of the Constitutional Court may be interpreted in isolation, by ignoring its meaning and systemic links with the other official constitutional doctrinal provisions set forth, inter alia, in the same ruling of the Constitutional Court. Therefore, the meaning of the provisions, the interpretation of which is requested, of Item 3.16 of Section II of the reasoning part of the Constitutional Court’s ruling of 29 June 2010 should be disclosed in the context of the other provisions of the official constitutional doctrine of the said ruling.

3.1. In this context, the provisions of the Constitutional Court’s ruling of 29 June 2010 which are related to state pensions should be noted:

under the Constitution, pensions other than those expressis verbis specified in Article 52 of the Constitution may also be established by law. Certain pensions that are not directly indicated in Article 52 of the Constitution are currently established, inter alia, in the Law on State Pensions; for instance, under the Law on State Pensions, the following state pensions are established in the Republic of Lithuania: the first and second degree state pensions of the Republic of Lithuania, the state pensions of victims, the state pensions of officials and servicemen, the state pensions of scientists, and the state pensions of judges;

state pensions differ in their nature and character from state social insurance old-age pensions, as well as from other state social insurance pensions: they are paid from the State Budget; they are granted to persons for the service rendered, or to persons with merits to the State of Lithuania, as well as compensation to the victims specified by law (the Constitutional Court’s rulings of 3 December 2003, 4 July 2003, 22 October 2007, and 24 December 2008, and its decision of 20 April 2010); the receiving of these pensions is linked not with social insurance pension contributions of an established size, but with a particular status of the person (service, merits, or other circumstances upon which the granting of the state pension depends);

the peculiarities of state pensions permit the legislature, by taking account of all the significant circumstances and paying heed to the norms and principles of the Constitution, to establish the relevant conditions for granting these pensions (the Constitutional Court’s rulings of 22 October 2007 and 24 December 2008, and its decision of 20 April 2010); while paying heed to the Constitution, the legislature may also establish certain cases when the state pension is not granted to the person (under the conditions provided for by law); while paying heed to the Constitution, the legislature may also establish, by means of a law, the cases when the granted state pension is no longer paid;

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. While reorganising this system, the Constitution must be observed in every case. The system of pensions may be reorganised only by law, only by guaranteeing the old-age and disability pensions provided for in the Constitution, as well as by observing the obligations undertaken by the state, which are not in conflict with the Constitution, to pay relevant monetary payments to the persons who meet the requirements established by law. 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 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 under the previous regulation would be able to prepare for these changes (the Constitutional Court’s rulings of 4 July 2003, 13 December 2004, 22 October 2007, and 24 December 2008, and its decision of 20 April 2010).

Thus, it should be noted that the state pension of judges that is established by law is one of the types of pensions which are not directly specified in Article 52 of the Constitution; it is linked with a special status of a person—it is granted to judges for their service upon the expiry of their powers. It should also be noted that the legislature has certain discretion to establish the conditions for granting and paying the said pensions and their sizes, inter alia, when the system of pensions is reorganised, however, when doing so, it must pay heed to the Constitution.

3.2. In this context, the provisions of the Constitutional Court’s ruling of 29 June 2010 that are related to the independence of judges and courts which is consolidated in the Constitution (inter alia, Article 109 thereof) should also be noted:

the independence of judges and courts is not a privilege, but one of the most important duties of judges and courts, stemming from the right (guaranteed by the Constitution) of every person, who believes that their rights or freedoms have been violated, to have an impartial arbiter of a dispute who would, under the Constitution and laws, settle a legal dispute in substance (the Constitutional Court’s rulings of 6 December 1995, 21 December 1999, 12 July 2001, 9 May 2006, and 22 October 2007);

a judge, who is obligated to consider conflicts arising in society as well as those between a person and the state, must be not only highly professionally qualified and of impeccable reputation, but also materially independent and feel secure as to their future (the Constitutional Court’s rulings of 12 July 2001 and 22 October 2007); the imperative of the constitutional protection of the remuneration and other social (material) guarantees of judges stems from the principle of the independence of judges and courts consolidated in the Constitution (inter alia, Article 109 thereof); through this principle, one attempts to protect the judges administering justice against both any influence of the legislative and executive branches and that of other state establishments and officials, political and public organisations, commercial economic structures, and other legal and natural persons;

the social (material) guarantees of the principle of the independence of judges that stem from the Constitution (which, actually, are also consolidated in the law of other democratic states as well as in various international acts) mean that the state has a duty to ensure the social (material) maintenance for judges which would be in conformity with the status of judges while they are in office as well as upon the expiry of their term of office (the Constitutional Court’s rulings of 21 December 1999 and 22 October 2007). Under the Constitution, the material and social guarantees established to judges must be such that they are in line with the constitutional status of judges and their dignity (the Constitutional Court’s decision of 8 August 2006 and its ruling of 22 October 2007);

the legislature must establish the legal regulation which would ensure the independence of judges and courts, inter alia, the social (material) guarantees of judges, not only when they are in office, but also upon the expiry of their powers; while doing so, the legislature must heed the norms and principles of the Constitution; upon the expiry of the powers of judges, the social (material) guarantees of judges may be varied, inter alia, periodic payments, as well as one-off payments, etc.; the constitutional basis for establishing such guarantees is the exceptional constitutional status of judges which is determined by the function of administering justice, therefore, the said guarantees may depend only upon the circumstances which are related to the constitutional status of judges, but they may not be considered as replacing other social (material) guarantees that must be ensured to former judges on other bases, including those which are common to all working persons; the social (material) guarantees of judges upon the expiry of their powers must be real and not only nominal (the Constitutional Court’s ruling of 22 October 2007);

the legislature, while regulating the relations linked with the state pension of judges, must establish, by means of a law, the grounds and conditions for granting this pension; the legislature must heed, inter alia, the fact that the state pension of judges is a social (material) guarantee of the judge upon the expiry of their powers, stemming from the Constitution, which is defended not only under Article 109 of the Constitution, but also under Article 52 thereof, that this social (material) guarantee must be in line with the constitutional status of the judge and their dignity, and that such a constitutional social (material) guarantee of the judge must be real and not only nominal. Otherwise, one would deny the essence and purpose of the state pension of judges as a social (material) guarantee of the judge upon the expiry of their powers, stemming from the Constitution, and thereby would create the preconditions for deviating from the requirements arising out of the Constitution, inter alia, Paragraph 2 of Article 109 thereof, as well as out of the constitutional principle of a state under the rule of law.

Thus, it should be noted that the state pension of judges that is established by law is not an end in itself and, under the Constitution, is not regarded as a privilege; the establishment of such a guarantee is linked with the special constitutional status of judges and in particular with the requirement for the independence of judges which is established in the Constitution, inter alia, Article 109 thereof. In other words, the state pension of judges that is established by law is one of the social (material) guarantees of the principle of the independence of judges consolidated in the Constitution, i.e. such a social (material) guarantee of judges that is established (applied) upon the expiry of their powers and defended under Article 109 of the Constitution.

It needs to be emphasised that the social (material) guarantees of judges that are established (applied) to judges upon the expiry of their powers are one of the measures for ensuring the independence of judges. Only the provision of real rather than nominal social (material) future guarantees (inter alia, the pensions of judges), which are in line with the constitutional status of judges and their dignity, may ensure that, when administering justice, judges are not exposed to any influence of the decisions of the legislative or executive branch of power, or to any interference with their activities by the institutions of state authority and governance or officials or other persons; the provision of real social (material) guarantees may also protect judges against such possible decisions of the legislative, executive, or public administration subjects that could put pressure on the decisions of judges in the course of administering justice; in addition, the provision of the said social (material) guarantees to judges may reduce the risk of corruption.

Consequently, although the state pension of judges that is established by law is one of the types of pensions which are not directly specified in Article 52 of the Constitution, and the legislature has certain discretion to establish the conditions for granting and paying the said pensions and their sizes, inter alia, while reorganising the system of pensions, the discretion of the legislature to regulate the state pensions of judges is narrower than the one in respect of other state pensions, since, among other requirements stemming from the Constitution, the legislature is also bound by the principle of the independence of judges and courts that is consolidated in the Constitution, inter alia, by the imperative of the reality of the social (material) guarantees of judges.

3.3. In this context, the following provisions of the Constitutional Court’s ruling of 29 June 2010 which are related to the reduction of the social (material) guarantees of judges should also be noted:

the Constitution also prohibits the reduction of the remuneration and social guarantees of judges; any attempts to reduce the remuneration of judges or their other social (material) guarantees, or any limitation upon the financing of courts should be treated as an encroachment upon the independence of judges and courts (the Constitutional Court’s rulings of 6 December 1995 and 21 December 1999, its decision of 12 January 2000, its rulings of 12 July 2001 and 28 March 2006, and its decision of 8 August 2006);

on the other hand, when there is an essential change in the economic and financial situation of the state and when, due to special circumstances (an economic crisis, a natural disaster, etc.), an extremely difficult economic and financial situation arises in the state, there may be not enough funds, due to objective reasons, to fulfil the functions of the state and to satisfy the public interests, and, thus, also to ensure the material and financial needs of courts; in the case of an extremely difficult economic and financial situation of the state, the remuneration of judges and the state pensions of judges may be reduced as well. If one established any such legal regulation to the effect that in the case of an extremely difficult economic and financial situation of the state it would not be allowed to reduce only the financing of courts or only the remuneration and the state pensions of judges, it would mean that courts are groundlessly singled out from among other institutions that implement state authority, and judges—from among other persons that participate in implementing the powers of the relevant state authority institutions; the consolidation of such an exceptional situation of courts (judges) would not be in line with the imperative requirements for an open, fair, and harmonious civil society and justice;

it is possible to worsen the financial and material conditions for the functioning of courts that are provided for by law and to reduce the remuneration of judges and the state pensions of judges only by means of a law, and it is possible to do so only on a temporary basis for the period of time when the economic and financial condition of the state is extremely difficult; such reduction of the remuneration and the state pensions of judges must not give rise to any preconditions for the violation of the independence of courts by any other state authority institutions and their officials (the Constitutional Court’s rulings of 26 March 2006 and 22 October 2007).

Thus, it should be noted that the prohibition on reducing the level, established by law, of the social (material) guarantees of judges, inter alia, of those which are established (applied) to judges upon the expiry of their powers stem from the principle of the independence of judges and courts that is consolidated in the Constitution. On the other hand, this prohibition is not absolute: the level of the social (material) guarantees which are established (applied) to judges upon the expiry of their powers may be reduced only by law and it is possible to do so only on a temporary basis for the period of time when the economic and financial condition of the state is extremely difficult; however, such reduction must not give rise to any preconditions for the violation of the independence of courts by any other state authority institutions and their officials.

It needs to be emphasised that, otherwise, if the level of the social (material) guarantees of judges could be reduced in other cases as well, i.e. when there is no extremely difficult economic and financial situation in the state, the independence of judges would be endangered; in other words, the preconditions for exerting influence on judges, by means of the decisions of the legislative or executive branch, the preconditions for institutions of state authority and governance or their officials or other persons to interfere in the activities of judges, the preconditions for taking the decisions of the legislative, executive, or public administration subjects, by means of which the social (material) guarantees of judges would be reduced by putting pressure on the decisions taken while administering justice, as well as the preconditions for increasing the risk of corruption, would be created.

4. In the light of the foregoing arguments, the conclusion should be drawn that the provisions “the doctrine formulated in the Constitutional Court’s ruling of 22 October 2007 that the principled provision that one may not differentiate (also by applying law) the remuneration of the judges of the courts of the same system and of the same level according to when the remuneration of a certain size of judges was established (inter alia, according to whether the person began to work as a judge of the relevant court before establishing the remuneration of a certain size of the judge of that court, or afterwards) is also mutatis mutandis applicable to other social (material) guarantees of judges, inter alia, those which are established (applied) to judges upon the expiry of their powers; they may not be reduced, let alone altogether denied, also in the case when their system is reorganised. It also needs to be mentioned that the imperative of the reality of the social (material) guarantees of judges stems from the Constitution” of Item 3.16 of Section II of the reasoning part of the Constitutional Court’s ruling of 29 June 2010 may be understood as meaning that the prohibition, stemming from the Constitution, on reducing any social guarantees of judges or denying them altogether also means that, when changing the legal regulation of the state pensions of judges, no regulation which would reduce the state pensions of judges may be established.

IV

1. It has been mentioned that the President of the Supreme Court of Lithuania, the petitioner, requests the interpretation of whether the provisions “<...> the legislature, while entrenching, by means of a law, the maximum size of the pension as well as the ways for establishing this size, must heed, inter alia, the fact that the state pension of judges is a social (material) guarantee of the judge upon the expiry of his powers, stemming from the Constitution, which is defended not only under Article 109 of the Constitution, but also under Article 52 thereof, that this social (material) guarantee must be in line with the constitutional status of the judge and his dignity, and that such a constitutional social (material) guarantee of the judge must be real and not only nominal. Otherwise, one would deny the essence and purpose of the state pension of judges as a social (material) guarantee of the judge upon the expiry of his powers, stemming from the Constitution, and thereby would create the preconditions for deviating from the requirements arising out of the Constitution, inter alia, Paragraph 2 of Article 109 thereof, as well as out of the constitutional principle of a state under the rule of law” of Item 3.7 of Section II of the reasoning part of the Constitutional Court’s ruling of 29 June 2010, which, inter alia, consolidate the requirements for the reality of the state pensions of judges and for the compliance of the said pensions with the constitutional status of judges and their dignity, could also be interpreted as meaning that the size of the state pension of judges must always be linked with the work remuneration received by judges, whether it can be linked with other criteria for establishing the said pension and whether the Constitution allows such legal regulation under which, when increasing the work remuneration of judges, the size of the state pension of judges would remain unchanged.

2. The petition of the petitioner makes it clear that the petitioner requests the interpretation of whether the aforementioned provisions of Item 3.7 of Section II of the reasoning part of the Constitutional Court’s ruling of 29 June 2010 must be interpreted as meaning that only such a remuneration of judges that was received by a person when they were holding the office of a judge must be the criterion for establishing the size of the state pension of judges, i.e. whether the Constitution allows such legal regulation under which an increase in the remuneration of judges would have no influence on the size of the granted and paid state pensions of judges.

2.1. It has been mentioned that the Constitutional Court’s ruling of 29 June 2010, the interpretation of which is requested, recognised that the legal regulation established in Paragraph 2 of Article 6 of the Law on the State Pensions of Judges was in conflict with Paragraph 2 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law since it was not in line with the concept of the state pension of judges as a constitutional social (material) guarantee of judges upon the expiry of their powers, since, on the one hand, it had created the preconditions for equalising the sizes of the state pensions of the judges whose length of service as a judge differed considerably and, on the other hand, it had created the preconditions for granting the state pensions of judges of a considerably different size to the judges whose length of service as a judge differed insignificantly. It has also been mentioned that, under the legal regulation that was established in Paragraph 2 of Article 6 of the Law on the State Pensions of Judges and that was ruled to be in conflict with the Constitution, the judge whose length of service as a judge was between 5 and 10 years had been granted the state pension of judges equal to 10 percent of the average work remuneration received by this judge, the judge whose length of service as a judge was between 10 and 15 years had been granted the state pension of judges equal to 20 percent of the average work remuneration received by this judge, and the judge whose length of service as a judge was between 15 and 20 years had been granted the state pension of judges equal to 35 percent of the average work remuneration received by this judge.

Thus, the impugned legal regulation that used to be established in Paragraph 2 of Article 6 of the Law on the State Pensions of Judges was ruled to be in conflict with the Constitution since, under it, when differentiating the sizes of the state pensions of judges, the length of service of judges had not sufficiently been taken into account.

2.2. It has been mentioned that no official constitutional doctrinal provision of a ruling of the Constitutional Court may be interpreted in isolation, by ignoring its meaning and systemic links with the other official constitutional doctrinal provisions set forth, inter alia, in the same ruling of the Constitutional Court. Therefore, the meaning of the provisions, the interpretation of which is requested, of Item 3.7 of Section II of the reasoning part of the Constitutional Court’s ruling of 29 June 2010 should be disclosed in the context of the other provisions of the official constitutional doctrine of the said ruling.

2.2.1. In this context, the following provisions of the Constitutional Court’s ruling of 29 June 2010 related to the criteria for differentiating the social (material) guarantees of judges that stem from the constitutional status of judges should be noted:

the principle of the equal legal status of judges does not mean that the material and social guarantees of judges may not be differentiated under clear, ex ante known criteria that are not related to the administration of justice while deciding cases (for example, according to the duration of a person’s work as a judge);

the size of the social (material) guarantees upon the expiry of the powers of judges may also be differentiated according to the duration of a person’s work as a judge; however, the legal regulation under which the size of the social (material) guarantees of judges upon the expiry of their powers is differentiated according to the duration of a person’s work as a judge must not deviate from the constitutional concept of this social (material) guarantee of judges;

the fact that the social (material) guarantees of judges may be differentiated (while paying heed to the Constitution) according to the duration of a person’s work as a judge may not be interpreted as meaning that, purportedly, the criterion for the duration of a person’s work as a judge is the only criterion for the said differentiation; in the case of the remuneration of judges, as well as in the case of the social (material) guarantees of judges upon the expiry of their powers (and, thus, in the case of the pensions of judges), account must be taken of the fact that, under the Constitution, courts are categorised as belonging not to one, but, rather, to several (at the moment—three) systems of courts, as well as of the fact that the system of courts of general jurisdiction and the system of the specialised courts that are established under Paragraph 2 of Article 111 of the Constitution, as systems of institutions, are of several levels;

the legislature not only may but also must differentiate the social (material) guarantees of judges according to the court system and level where judges work, when establishing such guarantees; the constitutional concept of the judiciary, as the state authority formed on the professional basis, implies, inter alia, that, if the remuneration of judges of courts of different levels, as well as the guarantees which are established (applied) to judges upon the expiry of their powers, were equalised completely, one would not only disregard the fact that, under the Constitution, courts are not attributed to one, but to several (at the moment—three) systems of courts, in addition, that the system of courts of general jurisdiction, as a system of institutions, is comprised of four-level courts, and that the systems of the specialised courts (at present—administrative courts) that are established under Paragraph 2 of Article 111 of the Constitution may be divided into levels as well, but also there would be no material incentives (even if there were other incentives) for judges to pursue a professional career;

while regulating the relations of the social (material) guarantees of judges upon the expiry of the powers of judges, inter alia, when differentiating these guarantees, account must be taken of the fact that the categorisation of courts as belonging not to one, but, rather, to several (at present—three) systems of courts stems from the Constitution; a separate system of courts is comprised of the Constitutional Court, characterised by its own peculiarities, inter alia, the aspect of the term of office of the justices of the Constitutional Court;

the legislature, while regulating the relations of the social (material) guarantees of judges upon the expiry of the duration of their powers, must also take account of the fact that the justices of the Constitutional Court differ from judges of other courts in respect of their constitutional status, inter alia, the duration of their powers; otherwise, the constitutional concept of the social (material) guarantees under which the social (material) guarantees of judges must be differentiated, when establishing them, by taking account, inter alia, of the specificity of the system of courts and the peculiarities of the status of judges of the systems of courts, would be deviated from.

Thus, the said provisions make it clear that, under the Constitution:

the length of service of judges may be a criterion for differentiating the size of the pensions of judges, however, it may not be the only one;

as in the case of the remuneration of judges, the position held by judges, i.e. in which system of courts and at which level of the system a person held the position of a judge, must also be a criterion for differentiating the size of the pensions of judges; when, due to the specificity of a court, the constitutional status of judges has certain peculiarities, they should also be taken into account.

While interpreting, in this decision, the provisions of the Constitutional Court’s ruling of 29 June 2010, it was mentioned that the legislature has certain discretion to establish the conditions for granting and paying the state pensions of judges and their sizes, however, when doing so, it must pay heed to the Constitution. Consequently, while paying heed to the Constitution and implementing the requirement, stemming therefrom, to differentiate the size of the pensions of judges according to the positions held by judges (i.e. according to which system of courts and to which level of the system a person held the position of a judge), the legislature may provide that the remuneration received by judges, which, as mentioned before, must also depend on the positions of judges (i.e. in which system of courts and at which level of the system a person held the position of a judge), is one of the criteria for differentiating the size of the state pensions of judges.

2.2.2. It should also be noted that, while interpreting, in this decision, the provisions of the Constitutional Court’s ruling of 29 June 2010 which are related to the principle of the independence of judges and courts that is consolidated in the Constitution, inter alia, Article 109 thereof, it was held that, although the legislature has certain discretion to establish the conditions for granting and paying the said pensions and their sizes, inter alia, while reorganising the system of pensions, the discretion of the legislature to regulate the state pensions of judges is narrower than the one in respect of other state pensions, since, among other requirements which stem from the Constitution, the legislature is also bound by the principle of the independence of judges and courts that is consolidated in the Constitution, inter alia, by the imperative of the reality of the social (material) guarantees of judges.

From this aspect, it should be noted that, as mentioned before, the state pension of judges that is established by law is not an end in itself and, under the Constitution, is not regarded as a privilege; the establishment of such a guarantee is linked with the special constitutional status of judges and in particular with the requirement for the independence of judges which is established in the Constitution, inter alia, Article 109 thereof; the state pension of judges that is established by law is one of the social (material) guarantees of the principle of the independence of judges consolidated in the Constitution, i.e. such a social (material) guarantee of judges that is established (applied) upon the expiry of their powers and defended under Article 109 of the Constitution; the social (material) guarantees of judges that are established (applied) to judges upon the expiry of their powers are one of the measures for ensuring the independence of judges; only the provision of real rather than nominal social (material) guarantees for the future (inter alia, the pension of judges) which are in line with the constitutional status of judges and their dignity may ensure that, when administering justice, judges would not be exposed to any influence of the decisions of the legislative or executive branch, and to any interference by institutions of state authority and governance or their officials or other persons in the activities of judges, it may also protect judges against any possible decisions of the legislative, executive, or public administration subjects that would put pressure on the decisions taken while administering justice, and may reduce the risk of corruption.

2.2.3. In this context, the provisions of the Constitutional Court’s ruling of 29 June 2010 which are related to the imperative of the reality of the social (material) guarantees of judges, stemming from the principle of the independence of judges and courts which is consolidated in Article 109 of the Constitution, should be noted:

the imperative of the reality of the social (material) guarantees of judges stems from the Constitution; the social (material) guarantees of judges which are established (applied) to judges upon the expiry of their powers (in particular, if they are linked with certain periodic payments, such as pensions) could become (in case the economic or social situation changes) not only unreal, but also nominal in general, thus, fictitious, if they were applied to the judges whose powers have already expired in the same amounts which were established at that time, but not reviewed, with respect to these judges, as appropriate, although higher relevant guarantees (in a changing economic or social situation) would be established to the other judges of the courts of the same system and the same level whose powers will expire later;

the principled provision that the remuneration of the judges of the courts of the same system and of the same level may not be differentiated (also by applying law) according to when the remuneration of a certain size of judges was established (inter alia, according to whether the person began to work as a judge of the relevant court before establishing the remuneration of a certain size of the judge of that court, or afterwards) is also mutatis mutandis applicable to other social (material) guarantees of judges, inter alia, those which are established (applied) to judges upon the expiry of their powers.

Thus, the principle of the independence of judges and courts that is consolidated in the Constitution, inter alia, Article 109 thereof, inter alia, the imperative of the reality of the social (material) guarantees of judges, give rise to the prohibition on differentiating the level of the social (material) guarantees of judges, which are established (applied) upon the expiry of the powers of judges, according to when relevant guarantees (inter alia, the pension of judges) started to apply to a person, as well as give rise to the requirement to review, as appropriate, the level of the social (material) guarantees applied to the judges whose powers have already expired if, in a changing economic or social situation, higher relevant guarantees are established to the judges of the courts of the same system and the same level whose powers will expire later.

2.2.4. As mentioned before, while implementing the requirement, stemming from the Constitution, to differentiate the size of the pensions of judges according to the positions held by judges, the legislature may provide that the remuneration received by judges is one of the criteria for differentiating the size of the state pensions of judges. After the legislature has established such a criterion, heed must also be paid to the prohibition on differentiating the level of the social (material) guarantees of judges, which are established (applied) upon the expiry of the powers of judges, according to when relevant guarantees started to apply to a person, as well as to the requirement to review, as appropriate, the level of the social (material) guarantees applied to the judges whose powers have already expired if, in a changing economic or social situation, higher relevant guarantees are established to the judges of the courts of the same system and the same level whose powers will expire later; both the said prohibition and requirement stem from the Constitution (inter alia, from the constitutional principle of the independence of judges and courts, the imperative of the reality of the social (material) guarantees of judges, and the equal constitutional status of judges). Otherwise, the situation, prohibited by the Constitution, could arise where only the social (material) guarantees that were established at the moment of the expiry of the powers of judges would be applied to the judges whose powers have already expired, i.e. in the long term (in case the economic or social situation changes) the said guarantees would no longer become real but nominal.

Consequently, while paying heed to the Constitution, inter alia, the constitutional principle of the independence of judges and courts, the imperative of the reality of the social (material) guarantees of judges, and the equal constitutional status of judges, no such legal regulation which would create the preconditions for paying the state pensions of a considerably different size of judges to the persons whose length of service as a judge is the same at the same level of the same system of courts may be established, irrespective of when the pension of judges would be granted to them.

3. In the light of the foregoing arguments, the conclusion should be drawn that the provisions “<...> the legislature, while entrenching, by means of a law, the maximum size of the pension as well as the ways for establishing this size, must heed, inter alia, the fact that the state pension of judges is a social (material) guarantee of the judge upon the expiry of his powers, stemming from the Constitution, which is defended not only under Article 109 of the Constitution, but also under Article 52 thereof, that this social (material) guarantee must be in line with the constitutional status of the judge and his dignity, and that such a constitutional social (material) guarantee of the judge must be real and not only nominal. Otherwise, one would deny the essence and purpose of the state pension of judges as a social (material) guarantee of the judge upon the expiry of his powers, stemming from the Constitution, and thereby would create the preconditions for deviating from the requirements arising out of the Constitution, inter alia, Paragraph 2 of Article 109 thereof, as well as out of the constitutional principle of a state under the rule of law” of Item 3.7 of Section II of the reasoning part of the Constitutional Court’s ruling of 29 June 2010, inter alia, mean that, after the legislature has provided that the remuneration received by judges is one of the criteria for differentiating the size of the state pensions of judges, the Constitution does not allow any such legal regulation under which an increase in the remuneration of judges would have no influence on the size of the granted and paid state pensions of judges.

V

1. In this context, it should be noted that the Constitutional Court’s ruling of 29 June 2010, the interpretation of which is requested, mentions that the social (material) guarantees of the principle of the independence of judges which stem from the Constitution are also consolidated in the law of other democratic states as well as in various international acts

2. In its ruling of 12 July 2001, the Constitutional Court noted that, by its resolution of 13 December 1985, the General Assembly of the United Nations endorsed the Basic Principles on the Independence of the Judiciary; on 13 October 1994, the Committee of Ministers of the Council of Europe, in response to the said document, adopted the Recommendation on the Independence, Efficiency and Role of Judges addressed to the Member States of the Council of Europe; Item 1.1 of the European Charter on the Statute for Judges, which was approved, on the initiative of the Council of Europe, on 10 July 1998, consolidates that its provisions aim at raising the level of guarantees of competence, independence and impartiality of judges in the various European States, and that the provisions of the Charter cannot justify modifications in national statutes tending to decrease the level of guarantees already achieved.

In its ruling of 22 October 2007, the Constitutional Court noted that Item 6 of the European Charter on the Statute for Judges, which was approved on the Initiative of the Council of Europe on 10 July 1998, provides that “judges exercising judicial functions in a professional capacity are entitled to remuneration, the level of which is fixed so as to shield them from pressures aimed at influencing their decisions and more generally their behaviour within their jurisdiction, thereby impairing their independence and impartiality”, that “remuneration may vary depending on length of service, the nature of the duties which judges are assigned to discharge in a professional capacity, and the importance of the tasks which are imposed on them, assessed under transparent conditions”, that “the statute provides a guarantee for judges acting in a professional capacity against social risks linked with illness, maternity, invalidity, old age and death”, and also that “in particular the statute ensures that judges who have reached the legal age of judicial retirement, having performed their judicial duties for a fixed period, are paid a retirement pension, the level of which must be as close as possible to the level of their final salary as a judge”.

3. In the context of this decision, it should be noted that Item 54 of the Recommendation CM/Rec(2010)12 of the Committee of Ministers of the European Council to member states on judges: independence, efficiency and responsibilities, inter alia, states that guarantees for judges should exist for maintaining a reasonable remuneration in case of illness, maternity or paternity leave, as well as for the payment of a retirement pension, which should be in a reasonable relationship to their level of remuneration when working.

4. In the context of this decision, the judgment of the Supreme Court of Estonia of 26 June 2014 in case No. 3-4-1-1-14 should also be mentioned. The said judgment declared the provision—based on the Republic of Estonia’s Temporary Organisation of Payment of Salaries Bound to National Average Wage Act, Salaries of Higher State Servants Act and Courts Act Amendment Act—of subsection 2 of § 1327 of the Courts Act in conflict with the Constitution of the Republic of Estonia.

4.1. When establishing the size of the pension of judges under the legal regulation impugned in the case that was considered by the Supreme Court of Estonia, judges received a different treatment depending on when the said pension was or had to be granted to them, i.e. the specific size of the pension of judges depended on whether the said pension was granted prior to 30 June 2013, or afterwards. The Supreme Court of Estonia noted that, under the impugned legal regulation, the size of the pension of the judges who were granted a pension as of 30 June 2013 is considerably higher than that of the judges who were granted a pension earlier:

as regards the judges of county courts: the basis for the calculation of the pension for those who had been granted it prior to 30 June 2013 was the remuneration of 2666.16 euros and the pension amounted to 1999.62 euros, whilst the basis for the calculation of the pension for those who were granted it later was the remuneration of 3380 euros and the pension amounted to 2535 euros; thus, the size of the pension of the latter judges was 21 percent higher;

as regards the judges of circuit courts: the basis for the calculation of the pension for those who had been granted it prior to 30 June 2013 was the remuneration of 2999.43 euros and the pension amounted to 2249.57 euros, whilst the basis for the calculation of the pension for those who were granted it later was the remuneration of 3900 euros and the pension amounted to 2925 euros; thus, the size of the pension of the latter judges was 23 percent higher;

as regards the justices of the Supreme Court of Estonia: the basis for the calculation of the pension for those who had been granted it prior to 30 June 2013 was the remuneration of 3665.97 euros and the pension amounted to 2749.48 euros, whilst the basis for the calculation of the pension for those who were granted it later was the remuneration of 4420 euros and the pension amounted to 3315 euros; thus, the size of the pension of the latter justices was 17 percent higher.

4.2. When ruling the aforesaid legal regulation to be in conflict with the Constitution of the Republic of Estonia, the Supreme Court of Estonia followed the constitutional principles of the independence of judges and courts, the equality of rights of persons, and the protection of the rights of ownership.

The Supreme Court of Estonia noted that the pension of judges is a guarantee of the independence of judges and courts. The court also drew attention to the fact that, under the Constitution, judges are appointed for life; this means that, taking account of the characteristics of the office, a person who seeks to become a judge takes a long-term and probably uneasy decision; the knowledge that a specific office-related pension is ensured to judges upon the expiry of their powers reduces the risk of corruption of judges and also is kind of compensation for strict requirements (inter alia, the prohibition on having any other job, except for research and pedagogical activities) for the said office.

The Supreme Court of Estonia also noted that, although the legislature has broad discretion to decide which social guarantees to establish, however, once a certain system is created, the persons who have the right to payments may not be treated unequally without a reason; the random criteria for differentiation, such as the establishment of a different time (which, under the impugned legal regulation, could also be one day) of granting a pension, should be considered disproportionate. The court also noted that the right of the person to a pension, which can be assessed in money, falls within the scope of property rights and should be categorised as one of fundamental human rights, i.e. the right to property; in this regard, the principle of the legitimate expectations, which stems from the Constitution, means that everyone has the right to have a reasonable expectation that the established legal regulation will remain in force; the historical argument that the legal regulation of the size of the pension of judges (75 percent of the size of the remuneration—which is established at the time of paying the pension—of the last office of a judge) has been in force for decades (it should be noted that such a size of the pension of judges has been established in the Republic of Estonia since 23 October 1991) provides the basis to state that judges have a legitimate expectation that such a size their of their pension will remain unchanged.

Conforming to Article 102 of the Constitution of the Republic of Lithuania and Articles 1 and 61 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania adopts the following

decision:

1. To interpret that the provisions “the doctrine formulated in the Constitutional Court’s ruling of 22 October 2007 that the principled provision that one may not differentiate (also by applying law) the remuneration of the judges of the courts of the same system and of the same level according to when the remuneration of a certain size of judges was established (inter alia, according to whether the person began to work as a judge of the relevant court before establishing the remuneration of a certain size of the judge of that court, or afterwards) is also mutatis mutandis applicable to other social (material) guarantees of judges, inter alia, those which are established (applied) to judges upon the expiry of their powers; they may not be reduced, let alone altogether denied, also in the case when their system is reorganised. It also needs to be mentioned that the imperative of the reality of the social (material) guarantees of judges stems from the Constitution” of Item 3.16 of Section II of the reasoning part of the ruling of the Constitutional Court of the Republic of Lithuania of 29 June 2010 (Official Gazette Valstybės žinios, 2010, No 134-6860), inter alia, mean that, when the legislature reorganises the system of the state pensions of judges, no regulation which would reduce the statutory level of the social (material) guarantees of judges may be established.

2. To interpret that the provisions “<...> the legislature, while entrenching, by means of a law, the maximum size of the pension as well as the ways for establishing this size, must heed, inter alia, the fact that the state pension of judges is a social (material) guarantee of the judge upon the expiry of his powers, stemming from the Constitution, which is defended not only under Article 109 of the Constitution, but also under Article 52 thereof, that this social (material) guarantee must be in line with the constitutional status of the judge and his dignity, and that such a constitutional social (material) guarantee of the judge must be real and not only nominal. Otherwise, one would deny the essence and purpose of the state pension of judges as a social (material) guarantee of the judge upon the expiry of his powers, stemming from the Constitution, and thereby would create the preconditions for deviating from the requirements arising out of the Constitution, inter alia, Paragraph 2 of Article 109 thereof, as well as out of the constitutional principle of a state under the rule of law” of Item 3.7 of Section II of the reasoning part of the ruling of the Constitutional Court of the Republic of Lithuania of 29 June 2010 (Official Gazette Valstybės žinios, 2010, No. 134-6860), inter alia, mean that, after the legislature has provided that the remuneration received by judges is one of the criteria for differentiating the size of the state pensions of judges, the Constitution does not allow any such legal regulation under which an increase in the remuneration of judges would have no influence on the size of the granted and paid state pensions of judges.

3. To refuse to interpret the provision “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” of Item 2.3 and the provision “the persons who have been granted and paid a pension established by the Constitution or a law, under Article 23 of the Constitution, have the right to demand that the payments be further paid to them in the amounts which were granted and paid previously” of Item 2.4 of Section II of the reasoning part of the ruling of the Constitutional Court of the Republic of Lithuania of 29 June 2010 (Official Gazette Valstybės žinios, 2010, No. 134-6860).

This decision of the Constitutional Court of the Republic of Lithuania 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