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On the period of service required to qualify for a state pension of officials and servicemen

Case No. 102/2010

 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

IN THE NAME OF THE REPUBLIC OF LITHUANIA

 RULING

ON THE COMPLIANCE OF PARAGRAPH 3 (WORDING OF 18 JANUARY 2007) OF ARTICLE 16 OF THE REPUBLIC OF LITHUANIA’S LAW ON THE STATE PENSIONS OF OFFICIALS AND SERVICEMEN WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 22 February 2013

Vilnius

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court Egidijus Bieliūnas, Toma Birmontienė, Pranas Kuconis, Gediminas Mesonis, Ramutė Ruškytė, Egidijus Šileikis, Algirdas Taminskas, Romualdas Kęstutis Urbaitis, and Dainius Žalimas,

with the secretary—Daiva Pitrėnaitė,

pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1 and 531 of the Law on the Constitutional Court of the Republic of Lithuania, on 19 February 2013, in the Court hearing heard, under written procedure, constitutional justice case No. 102/2010 subsequent to the petition of the Supreme Administrative Court of Lithuania, the petitioner, requesting to investigate whether Item 1 of Paragraph 3 (wording of 18 January 2007) of Article 16 of the Republic of Lithuania’s Law on the State Pensions of Officials and Servicemen was not 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

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

According to the legal regulation effective until 30 June 2005, established in Item 1 of Paragraph 3 of Article 16 of the Law on the State Pensions of Officials and Servicemen, the time of service necessary in order to grant the state pension of officials and servicemen included all the actual time of service in the armed forces of other states. On 1 July 2005, an amended Item 1 of Paragraph 3 of Article 16 of the Law on the State Pensions of Officials and Servicemen came into force, according to which the time of service necessary in order to grant the state pension of officials and servicemen includes only the actual time of service in the armed forces of other states prior to 11 March 1990. Thus, the legal regulation consolidated in the provision of Item 1 of Paragraph 3 of Article 16 of the Law on the State Pensions of Officials and Servicemen (wording of 19 May 2005 with subsequent amendments and supplements) limited the right of the persons who served under coercion in the USSR armed forces after 11 March 1990 to receive the state pension of officials and servicemen.

The person whose actual time of service in the USSR armed forces, under the legal regulation which was effective until 30 June 2005, was to be included into the time of service in order to grant the pension of officials and servicemen, could reasonably expect that this right would be retained also in the future. The legal regulation that came into force on 1 July 2005 gave rise to negative consequences for the persons who began the compulsory military service and performed it not in Lithuania due to objective reasons, i.e. the time of forced service in the USSR armed forces did not depend on their will and they could not leave this service, return to Lithuania and enter into the service of the independent State of Lithuania. Thus, the legislator, while amending the legal regulation of the state pensions of officials and servicemen, did not take account of the interests of persons who could not discontinue the compulsory military service in the USSR armed forces.

While reasoning its position, the Supreme Administrative Court of Lithuania refers to the provisions of the official constitutional doctrine formulated in the rulings of the Constitutional Court that the provision of Article 52 of the Constitution implies the duty of the legislator, when it establishes a certain pension by law, to consolidate the legal regulation ensuring the payment of this pension to persons who meet the conditions established by law; the protection of legitimate expectations, legal certainty and legal security are inseparable elements of the principle of a state under the rule of law; these principles imply that the state must fulfil all its undertaken obligations to the person.

II

In the course of the preparation of the case for the Constitutional Court hearing written explanations were received from the representative of the Seimas of the Republic of Lithuania, the party concerned, who was Arvydas Vidžiūnas, a Member of the Seimas, wherein it is maintained that Item 1 of Paragraph 3 of Article 16 of the Law on the State Pensions of Officials and Servicemen is not in conflict with the Constitution. The position of the representative of the Seimas is substantiated by the following arguments.

The state pensions of officials and servicemen are granted for persons for their service performed to the State of Lithuania and the receiving of these pensions is linked not to the contributions of an established size, but to the corresponding status of the person. The purpose of the state pension of officials and servicemen is to compensate for a difficult, responsible, often risky and dangerous service by a person to the State of Lithuania. The state pensions paid from funds of the state budget are usually additional payments paid together with the state social insurance pensions. The peculiarities of state pensions permit the legislator, taking account of all the significant circumstances and heeding the norms and principles of the Constitution, to establish the corresponding conditions for granting these pensions.

The actual time of the necessary military service in the USSR armed forces until 31 December 1994 is equated to the person’s period of state social pension insurance acquired while working under an employment contract, on the ground of membership or service and included into the period necessary in order to receive a state social insurance pension. Upon reaching the pensionable age to receive an old age pension or upon being recognised as incapable of work or partially capable of work, the officials are also receivers of a state social insurance pension, where the time of their compulsory military service in the USSR armed forces after 11 March 1990 is already included while granting the state social insurance pensions to them. These pensions are paid together with the state pension of an official or serviceman.

By the Appeal to Employees of Establishments of the Interior of 21 March 1990, the Supreme Council of the Republic of Lithuania ensured the social guarantees which had existed prior to 11 March 1990 and not those existing after the restoration of independence, as it would be legally groundless to apply the privileges provided by the state to persons who served in the armed forces of other states after 11 March 1990. Thus, the time of service in the armed forces of another state after 11 March 1990 may not be considered as service to the State of Lithuania and included in the period necessary in order to grant the state pension.

The harm sustained by the persons who were forced to continue their service in the USSR armed forces after 11 March 1990 should be compensated under the procedure established in the Republic of Lithuania’s Law on the Legal Status of Persons Who Suffered from the Occupations of 1939–1990 or by applying the institute of state pensions of victims consolidated in the Republic of Lithuania’s Law on the State Pensions.

III

In the course of the preparation of the case for the judicial consideration, the witness Dalia Tarailienė, the Head of the former Commission of Military Service of Youngsters of the Republic of Lithuania, was questioned. The witness confirmed that the youngsters who used to leave the military service in the USSR armed forces were persecuted by the USSR. It was decided to hide some of them on the premises of the Red Cross hospital of Naujoji Vilnia, however, on the night of 26 to 27 March 1990, the paratroops of the USSR armed forces broke into the premises, by committing acts of violence seized the youngsters who were hiding there and took them to complete their service in the USSR military units usually stationed in faraway regions of the USSR. The witness also confirmed that, after 13 January 1991, on the territory of Lithuania a massive hunting of youngsters of conscription age began, which was carried out by the USSR armed forces, while seeking to seize the young people by force so that they perform the Soviet military service. D. Tarailienė testified that the last youngster who performed the military service in the USSR armed forces returned to Lithuania just before the withdrawal of the Soviet troops from Lithuania, in 1993, and emphasised that 11 March 1990 is in no way the distinctive date when the forced service of the Lithuanian youngsters in the USSR armed forces ended.

The Constitutional Court

holds that:

I

  1. The Supreme Administrative Court of Lithuania, the petitioner, requests to investigate the compliance of Item 1 of Paragraph 3 (wording of 18 January 2007) of Article 16 of the Law on the State Pensions of Officials and Servicemen with Article 52 of the Constitution and the constitutional principle of a state under the rule of law.
  2. Paragraph 3 (wording of 18 January 2007) of Article 16 of the Law on the State Pensions of Officials and Servicemen inter alia prescribed:

“The periods which had been prior to 1 January 1995 are equalled to the time of service necessary in order to grant a pension to persons admitted as officials or servicemen in the systems of the interior, state security, national defence, prosecutor’s office, the Special Investigation Service, the Department of Prisons and of the establishments and state enterprises which are subordinate to the latter and as customs officials (in the customs system to work in customs mobile groups or customs posts or to carry out an operational activity and/or pre-trial investigation):

1) the actual time of service in the armed forces, the border guard service, the interior and other services (save the service in extermination squads and battalions) of other states—until 11 March 1990.”

  1. While substantiating its doubts regarding the compliance of Item 1 of Paragraph 3 (wording of 18 January 2007) of Article 16 of the Law on the State Pensions of Officials and Servicemen with the Constitution, the petitioner states that through the impugned legal regulation one limited the right of the persons who were forced to serve in the USSR armed forces after 11 March 1990 to receive the state pension of officials and servicemen. It is obvious from the arguments of the petitioner that it doubts whether Item 1 of Paragraph 3 (wording of 18 January 2007) of Article 16 of the Law on the State Pensions of Officials and Servicemen was not in conflict with the Constitution insofar as it prescribed that only the actual time of forced military service (i.e. the time of the compulsory “actual military service” established by the legal acts of the USSR subsequent to the call-up) in the armed forces, the border guard service, the interior and other services (save the service in extermination squads and battalions) of the USSR prior to 11 March 1990 is equalled to the time of service necessary in order to grant the state pensions to persons admitted as officials or servicemen in the systems of the interior, state security, national defence, prosecutor’s office, the Special Investigation Service, the Department of Prisons and of the establishments and state enterprises which are subordinate to the latter and as customs officials (in the customs system to work in customs mobile groups or customs posts or to carry out an operational activity and/or pre-trial investigation), even though such forced military service was actually performed after 11 March 1990 as well. Thus, the petitioner first of all doubts regarding the compliance of the legal regulation, where, after the actual time of forced military service in the armed forces, the border guard service, the interior and other services (save the service in extermination squads and battalions) of the USSR prior to 11 March 1990 has been equalled to the time of service necessary in order to grant this state pension to the officials and servicemen, the actual period of such service after 11 March 1990 is not equalled to the time of service necessary in order to grant this pension, with the Constitution. Thus, the doubts of the petitioner regarding the compliance of the impugned legal regulation with Article 52 of the Constitution and the constitutional principle of a state under the rule of law are also related to the principle of equality of rights of persons consolidated in Article 29 of the Constitution.

While taking account of the aforesaid, in the constitutional justice case at issue the Constitutional Court will investigate whether Item 1 of Paragraph 3 (wording of 18 January 2007) of Article 16 of the Law on the State Pensions of Officials and Servicemen, insofar as having prescribed that the actual time of forced military service in the armed forces, the border guard service, the interior and other services (save the service in extermination squads and battalions) of the USSR prior to 11 March 1990 is equalled to the time of service necessary in order to grant the state pension of officials and servicemen to persons admitted as officials or servicemen in the systems of the interior, state security, national defence, prosecutor’s office, the Special Investigation Service, the Department of Prisons and of the establishments and state enterprises which are subordinate to the latter and as customs officials (in the customs system to work in customs mobile groups or customs posts or to carry out an operational activity and/or pre-trial investigation), it had not prescribed that the actual time of such service after 11 March 1990 is equalled to the time of service necessary in order to grant this pension, was not in conflict with Articles 29 and 52 of the Constitution and the constitutional principle of a state under the rule of law.

II

  1. In the context of the constitutional justice case at issue it is important to disclose the changes in the legal regulation related to the inclusion of the time of service in the armed forces, the border guard service, the interior and other services of other states, inter alia the USSR, into the time of service necessary in order to grant the state pension of officials and servicemen.
  2. On 11 March 1990, while restoring its independence, the Republic of Lithuania took over into its jurisdiction the former state governance bodies of the Lithuanian SSR which had been under the republic jurisdiction and the union-republic jurisdiction, inter alia the bodies of the system of the interior. On 11 March 1990, the Supreme Council of the Republic of Lithuania adopted the Law “On Changing the Status of the Lithuanian SSR’s Former State Governance Bodies under the Union-republic Jurisdiction” which prescribed that all the Lithuanian SSR’s former ministries, state committees and departments under the union-republic jurisdiction shall fall only under the jurisdiction of the Republic of Lithuania.

While taking over the system of the interior into the jurisdiction of the Republic of Lithuania and while reforming it, one was seeking to ensure the public order and safety of society. On 21 March 1990, an Appeal of the Supreme Council of the Republic of Lithuania to the Employees of the Establishments of the Interior was adopted, whereby each citizen, irrespective of his nationality and world outlook, who had work experience in the establishments of the interior and was ready to take an oath of loyalty to Lithuania and to serve it, was invited to do his job honestly. In the appeal of the Supreme Council it was ensured that “the social guarantees of the interior employees will be preserved: pensions will be paid irrespective of the fact in which state one has served, also the obtained rank will be preserved, the average remuneration of an official will exceed the average remuneration in the Republic.” Thus, having restored its independence, by means of this appeal the Republic of Lithuania undertook an obligation to preserve the social guarantees gained before restoration of independence for the employees of the interior loyal to it “irrespective of the fact in which state one served”, i.e. inter alia irrespective of the fact that one served in the system of the interior of the USSR. However, the Republic of Lithuania did not undertake any obligations for the persons who were not “ready to take an oath of loyalty to Lithuania and to serve it” after 11 March 1990, nor did it undertake any obligations to preserve social guarantees gained while serving in the system of the interior of the USSR after 11 March 1990.

  1. In this context one is also to note the Resolution of the Supreme Council of the Republic of Lithuania “On the Service of the Citizens of the Republic of Lithuania in the Armed Forces of the USSR” of 8 November 1990 which prescribed that “the citizens of the Republic of Lithuania who have decided to perform military service in the USSR armed forces, must inform about that the territorial divisions of the National Defence Department”, however, “the State of Lithuania does not guarantee a compensation for the persons who became incapable of work during their service in the USSR armed forces.” This resolution also established that “for the persons who go to serve in the USSR armed forces of their own will, the concessions and guarantees established by the apartment and employment laws will not be applied”, however, “the resolution shall not apply to persons forced to serve in the USSR armed forces.”

This resolution of the Supreme Council means that, having restored its independence, the Republic of Lithuania did not assume any obligations to the persons who had chosen the military service to another state after 11 March 1990. The Republic of Lithuania stated that it would not provide any social guarantees regarding the service of such persons for another state after 11 March 1990, however, this provision was not applied to the persons who were forced to serve in the USSR armed forces, i.e. to the persons who performed forced military service in these forces after 11 March 1990.

  1. The time of service of officials and servicemen necessary to receive the state pension of officials and servicemen was regulated for the first time through the provisional legal regulation established by the Government of the Republic of Lithuania: through the Government Resolution (No. 490) “On the Pensionary Maintenance of Officials and Servicemen of the System of the Interior” of 25 June 1992 and through the Government Resolution (No. 865) “On Pensionary Maintenance of Officials and Servicemen of the System of National Security” of 19 November 1992.”

Item 1 of the Government Resolution (No. 490) “On the Pensionary Maintenance of Officials and Servicemen of the System of the Interior” of 25 June 1992 prescribed that “until the Republic of Lithuania laws on pensions of employees, officials and servicemen of the prosecutor’s office, the interior, the state security, the systems of national security, and the Defence Department of the Supreme Council are adopted and come into force: 1.1. the time of service for officials and servicemen of the system of the interior necessary in order to grant a pension for the years served, as from 1 June 1992, shall include: <...> 1.1.3. the time of service in the armed forces of the USSR and other states, the border guard service and the system of the interior of the USSR.” Item 1 of the Government Resolution (No. 865) “On the Pensionary Maintenance of Officials and Servicemen of the System of National Security” of 19 November 1992 prescribed that “until the Republic of Lithuania’s Law on the Pensions of Servicemen is adopted: 1.1. the time of service for officials and servicemen of the system of the national security necessary in order to grant a pension for the years served, as from 1 September 1992, shall include: <...> 1.1.3. the time of service in the armed forces of the USSR and other states, the border guard service and the system of the interior of the USSR.” These Government resolutions became no longer effective on 1 January 1995, when the Republic of Lithuania’s Law on the State Pensions of Officials and Servicemen of the Interior, State Security, National Defence and Prosecutor’s Office, adopted on 13 December 1994, came into force.

Thus, according to the provisional legal regulation established by the Government and effective until 31 December 1994, inter alia the time of service in the armed forces, boarder guard service and the system of the interior of the USSR was included into the time of service necessary in order to grant the state pension (the pension for the years served) of officials and servicemen. It needs to be noted that while taking account inter alia of the said Appeal of the Supreme Council to the Employees of the Establishments of the Interior and the Supreme Council’s Resolution “On the Service of the Citizens of the Republic of Lithuania in the Armed Forces of the USSR” of 8 November 1990, the legal regulation, established by the Government and effective until 31 December 1994, had to be understood as obliging one to include only the time of service in the armed forces, boarder guard service and the system of the interior of the USSR prior to 11 March 1990 into the time of service necessary in order to grant the state pension (the pension for the years served) of officials and servicemen. If the legal regulation, established by the Government and effective until 31 December 1994, had been construed in a different manner, the time of service necessary in order to grant the state pension (the pension for the years served) of officials and servicemen would have had to include inter alia the time of service after 11 March 1990 in those units of the armed forces and the system of the interior of the USSR which carried out the USSR aggression against the Republic of Lithuania.

  1. As mentioned before, on 13 December 1994, the Seimas adopted the Law on the State Pensions of Officials and Servicemen of the Interior, State Security, National Defence and Prosecutor’s Office which came into force on 1 January 1995. This law prescribed to what persons the state pension of officials and servicemen is granted and paid, and the grounds for, conditions and amounts of granting and payment of these pensions.

5.1. Paragraph 4 of Article 16 of the Law on the State Pensions of Officials and Servicemen of the Interior, State Security, National Defence and Prosecutor’s Office inter alia prescribed:

“The following periods which had been prior to coming into force of this law are equalled to the time of service necessary in order to grant the pensions to persons admitted as officials or servicemen in the systems of the interior, state security, national defence and prosecutor’s office of the Republic of Lithuania:

1) the actual time of service in the armed forces, the border guard service, the interior and other services (save the service in extermination squads and battalions) of other states—under the procedure established by the Government of the Republic of Lithuania.”

The provisions of the Law on the State Pensions of Officials and Servicemen of the Interior, State Security, National Defence and Prosecutor’s Office, the title thereof, as well as Paragraph 4 of Article 16 thereof have been amended more than once. While amending Paragraph 4 of Article 16 of this law, the legislator enlarged the circle of persons for whom the actual time of service in the armed forces, the border guard service, the interior and other services (save the service in extermination squads and battalions) of other states is equalled to the time of service necessary in order to grant the state pension of officials and servicemen—it included the persons admitted to serve as officials in the Special Investigation Service, the Department of Prisons and of the establishments and state enterprises which are subordinate to the latter. However, the provision of Item 1 of Paragraph 4 of Article 16 of this law that “the actual time of service in the armed forces, the border guard service, the interior and other services (save the service in extermination squads and battalions) of other states—under the procedure established by the Government of the Republic of Lithuania” is equalled to the time of service necessary in order to grant the state pension of officials and servicemen did not change until the entry into force of the law in its new wording on 1 July 2005.

5.2. In the context of the constitutional justice case at issue it needs to be noted that, in its ruling of 4 July 2003, the Constitutional Court construed the formula “under procedure established by the Government of the Republic of Lithuania” of Item 1 of Paragraph 4 of Article 16 of the Law on the State Pensions of Officials and Servicemen of the Interior, State Security, National Defence and Prosecutor’s Office as meaning, inter alia, that through the aforesaid law the Government was commissioned to establish a procedure under which the periods that had been prior to the entry of this law into effect during which the said persons actually served in the armed forces, the border guard service, the interior and other services (save the service in extermination squads and battalions) of other states would be equalled to the time of service necessary to grant the pension of officials and servicemen to these persons.

5.3. Through its Resolution (No. 83) “On the Approval of the Regulations for Granting and Payment of State Pensions to Officials and Servicemen of the Systems of the Interior, State Security, National Defence and Prosecutor’s Office and the Establishment of the Time of Service Necessary in Order to Receive a Respective Percentage Extra Pay for the Years of Service” of 20 January 1995, the Government approved the Regulations for Granting and Payment of State Pensions to Officials and Servicemen of the Systems of the Interior, State Security, National Defence and Prosecutor’s Office. Item 6.1 of these regulations prescribed that the time of service specified in Article 16 of the Law on the State Pensions of Officials and Servicemen of the Interior, State Security, National Defence and Prosecutor’s Office also includes the actual time of service in the armed forces of various kinds of all the states until 1 January 1995, in the system of the state security of the USSR prior to 11 March 1990 and in the Defence Department of the Supreme Council of the Republic of Lithuania and other services where the service is organised on the statutory grounds.

These regulations, inter alia the title thereof, have been amended more than once. Through the Government Resolution (No. 612) “On the Partial Amendment of Government of the Republic of Lithuania Resolution No. 83 ‘On the Approval of the Regulations for Granting and Payment of State Pensions to Officials and Servicemen of the Systems of the Interior, State Security, National Defence, the Prosecutor’s Office and the Department of Prisons and of the Establishments and State Enterprises Which are Subordinate to the Latter and the Establishment of the Time of Service Necessary in Order to Receive a Respective Percentage Extra Pay for the Years of Service’ of 20 January 1995” of 25 May 2001, which came into force on 31 May 2001, Item 6.1 of the said regulations was supplemented with a provision that the periods specified in this item are included only in the case where a person does not receive a pension of another state for them.

Thus, under the legal regulation of state pensions of officials and servicemen that was effective from 1 January 1995 until 30 June 2005, inter alia the actual time of service in the USSR armed forces (save the service in extermination squads and battalions) prior to 11 March 1990 was equalled to the time of service necessary to grant the pension of officials and servicemen to these persons (as from 31 May 2001, such a period of service in the USSR armed forces was equalled to the time of service necessary in order to grant the state pension if the person did not receive a pension of another state for this period of time).

  1. On 19 May 2005, the Seimas adopted the Republic of Lithuania’s Law Amending the Law on the State Pensions of Officials and Servicemen of the Interior, the Special Investigation Service, State Security, National Defence, the Prosecutor’s Office, the Department of Prisons and the Establishments and State Enterprises Which are Subordinate to the Latter which came into force on 1 July 2005. Article 1 of this law set forth the Law on the State Pensions of Officials and Servicemen of the Interior, the Special Investigation Service, State Security, National Defence, the Prosecutor’s Office, the Department of Prisons and the Establishments and State Enterprises Which are Subordinate to the Latter (wording of 13 December 1994 with subsequent amendments and supplements) in a new wording.

Paragraph 3 of Article 16 of the Law on the State Pensions of Officials and Servicemen of the Interior, the Special Investigation Service, State Security, National Defence, the Prosecutor’s Office, the Department of Prisons and the Establishments and State Enterprises Which are Subordinate to the Latter (wording of 19 May 2005) inter alia prescribed:

“The periods which had been prior to 1 January 1995 are equalled to the time of service necessary in order to grant a pension to persons admitted as officials or servicemen in the systems of the interior, state security, national defence, prosecutor’s office, the Special Investigation Service, the Department of Prisons and of the establishments and state enterprises which are subordinate to the latter and customs officials:

1) the actual time of service in the armed forces, the border guard service, the interior and other services (save the service in extermination squads and battalions) of other states—until 11 March 1990.”

  1. On 18 January 2007, the Seimas adopted 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 Officials and Servicemen of the Interior, the Special Investigation Service, State Security, National Defence, the Prosecutor’s Office, the Department of Prisons and the Establishments and State Enterprises Which are Subordinate to the Latter, Article 1 whereof amended the title of the Law on the State Pensions of Officials and Servicemen of the Interior, the Special Investigation Service, State Security, National Defence, the Prosecutor’s Office, the Department of Prisons and the Establishments and State Enterprises Which are Subordinate to the Latter and set it forth as follows: “The Republic of Lithuania’s Law on the State Pensions of Officials and Servicemen”, whereas Article 6 thereof amended inter alia Paragraph 3 of Article 16 of the law. Paragraph 3 (wording of 18 January 2007) of Article 16 of the Law on the State Pensions of Officials and Servicemen inter alia prescribed:

“The periods which had been prior to 1 January 1995 are equalled to the time of service necessary in order to grant a state pension to persons admitted as officials or servicemen in the systems of the interior, state security, national defence, prosecutor’s office, the Special Investigation Service, the Department of Prisons and of the establishments and state enterprises which are subordinate to the latter and as customs officials (in the customs system to work in customs mobile groups or customs posts or to carry out an operational activity and/or pre-trial investigation):

1) the actual time of service in the armed forces, the border guard service, the interior and other services (save the service in extermination squads and battalions) of other states—until 11 March 1990.”

If the legal regulation established in Paragraph 3 (wording of 18 January 2007) of Article 16 of the Law on the State Pensions of Officials and Servicemen is compared, in the aspect investigated in the case at issue, with the one established in Paragraph 3 of Article 16 of the Law on the State Pensions of Officials and Servicemen of the Interior, the Special Investigation Service, State Security, National Defence, the Prosecutor’s Office, the Department of Prisons and the Establishments and State Enterprises Which are Subordinate to the Latter (wording of 19 May 2005), it needs to be noted that the legislator enlarged the circle of persons for whom the actual time of service in the armed forces, the border guard service, the interior and other services (save the service in extermination squads and battalions) of other states, which had been prior to 11 March 1990, is equalled to the time of service necessary in order to grant the state pension of officials and servicemen—it included the persons admitted to serve as customs officials, however, it did not amend the formula of Item 1 of Paragraph 3 of Article 16 of the law.

  1. While summarising the impugned legal regulation established in Item 1 of Paragraph 3 (wording of 18 January 2007) of Article 16 of the Law on the State Pensions of Officials and Servicemen in the aspect investigated in the constitutional justice case at issue, it needs to be noted that the time of service necessary in order to grant the pension of officials and servicemen includes the actual time of the forced military service in the armed forces, the border guard service, the interior and other services (save the service in extermination squads and battalions) of the USSR only prior to the restoration of the independence of the Republic of Lithuania on 11 March 1990, but it does not include the actual time of such service after this date.
  2. In this context it needs to be noted that Paragraph 3 (wording of 18 January 2007) of Article 16 of the Law on the State Pensions of Officials and Servicemen was later amended when, on 2 October 2012, the Seimas adopted the Republic of Lithuania’s Law Amending Articles 1, 3, 6, 7 and 16 of the Law on the State Pensions of Officials and Servicemen which came into force on 1 January 2013.

III

  1. In the constitutional justice case at issue it needs to be noted that, while deciding whether the impugned legal regulation was not in conflict with the Constitution, inter alia with the constitutional principle of equality of rights of persons, it is important to establish the legal status of persons who performed forced military service in the armed forced, the border guard service, the interior and other services of the USSR (hereinafter also referred to as the USSR armed forces) prior to and after 11 March 1990. It needs to be noted that it can be established only while taking account of a broader historical and legal context, first of all, of the legal status of the Republic of Lithuania that restored its independence on 11 March 1990.
  2. The Act of the Supreme Council of the Republic of Lithuania “On the Re-establishment of the Independent State of Lithuania” of 11 March 1990 inter alia established that the execution of the sovereign powers of the State of Lithuania, abolished by foreign forces in 1940, is re-established, and henceforth Lithuania is again an independent state; the 16 February 1918 Act of Independence of the Council of Lithuania and the 15 May 1920 Resolution of the Constituent Seimas on the Re-established Democratic State of Lithuania have never lost their legal power and comprise the constitutional foundation of the State of Lithuania; the territory of Lithuania is integral and indivisible, and the constitution of no other state is valid on it.

It needs to be noted that:

– from the provisions “the execution of the sovereign powers of the State of Lithuania, abolished by foreign forces in 1940, is re-established, and henceforth Lithuania is again an independent state” of the Act of 11 March 1990 it is obvious that the restoration of the independence of the State of Lithuania was grounded on the continuity of the State of Lithuania, which means that the aggression that the USSR began against the Republic of Lithuania on 15 June 1940 (inter alia the occupation and annexation of the territory of the Republic of Lithuania) did not abolish the State of Lithuania as a subject of international law and its sovereign powers; due to the occupation of the territory of Lithuania and demolition of its state institutions, the implementation of the sovereign powers of the State of Lithuania, inter alia its international rights and obligations, were suspended; the annexation of the territory of the Republic of Lithuania perpetrated by the USSR on 3 August 1940, as a continuation of the aggression, was an act null and void, thus, from the viewpoint of the international law, the territory of the Republic of Lithuania was occupied by another state and it was never a legal part of the USSR;

– from the provisions “the 16 February 1918 Act of Independence of the Council of Lithuania and the 15 May 1920 Resolution of the Constituent Seimas on the re-established democratic State of Lithuania have never lost their legal power and comprise the constitutional foundation of the State of Lithuania” of the Act of 11 March 1990 it is obvious that not only the continuity of the State of Lithuania, but also the identity thereof is upheld: having restored its independence, the Republic of Lithuania, from the viewpoint of international and constitutional law, is a subject of law identical to the State of Lithuania against which the aggression of the USSR was perpetrated on 15 June 1940; such constitutional sameness of the State of Lithuania is confirmed inter alia through the Republic of Lithuania’s Law “On the Reinstatement of the Constitution of Lithuania of 12 May 1938” of 11 March 1990;

– from the provision of the Act of 11 March 1990 that the constitution of no other state is valid on the territory of the Republic of Lithuania it is obvious that the introduction of the validity of the constitution of any other state (inter alia the USSR), inter alia the imposition of the duties established by such a constitution to citizens of the Republic of Lithuania was unlawful.

  1. In this context it needs to be noted that from the continuity of the State of Lithuania there stems a continuity of citizenship of the Republic of Lithuania which inter alia implies that, from the viewpoint of international and Lithuanian constitutional law, the imposition of USSR citizenship upon citizens of the Republic of Lithuania in 1940, as a consequence of the aggression of the USSR, was an act null and void; thus, this act was not a legal ground to lose citizenship of the Republic of Lithuania. Consequently, during the years of the Soviet occupation, citizens of the Republic of Lithuania (the persons who held citizenship of the Republic of Lithuania on 15 June 1940 and their children) were also not bound by the obligations related to USSR citizenship, inter alia the general military obligation of the USSR introduced on the occupied territory of the Republic of Lithuania, which had been imposed upon them unlawfully.

As the Constitutional Court held in its ruling of 13 November 2006, “‘Citizenship of the USSR’ and ‘citizenship of the Lithuanian SSR’ which were imposed by force, were and are null and void”; “even though the citizens of the Republic of Lithuania temporarily used the passports of citizens of the USSR <...>, they could not be treated as citizens of the USSR, i.e. as citizens of the state which had declared them as its citizens against their own will”.

It also needs to be noted that the imposition of citizenship of an occupying state upon the population of the occupied territory and forced conscription of this population into the military service of the occupying state is forbidden under universally recognised international legal norms. Under Article 45 of the Annex (Regulations Concerning the Laws and Customs of War on Land) of the Hague Convention (IV) Respecting the Laws and Customs of War on Land of 18 October 1907, it is forbidden to compel the inhabitants of occupied territory to swear allegiance to the hostile power. Paragraph 1 of Article 51 of the Geneva Convention “Relative to the Protection of Civilian Persons in Time of War” of 12 August 1949 prescribes that an occupying power is forbidden to force protected persons (i.e. the persons who fell into the hands of an occupying state, where those persons are not citizens of the said state, inter alia during the occupation) to serve in its armed or auxiliary forces; all forms of pressure or propaganda aimed at securing voluntary enlistment is forbidden.

  1. Thus, the compulsory “actual military service” established by the USSR legal acts and imposed upon citizens of the Republic of Lithuania (the persons who held citizenship of the Republic of Lithuania on 15 June 1940 and their children) subsequent to the call-up is reasonably considered as forced military service to a foreign state and all the citizens of the Republic of Lithuania (the persons who held citizenship of the Republic of Lithuania on 15 June 1940 and their children) were taken to such service during the period of the occupation of the territory of the Republic of Lithuania (from 15 June 1940 until the restoration of the independence of the Republic of Lithuania on 11 March 1990) unlawfully. In this context it needs to be noted that, according to the norms of international law (inter alia Article 147 of the Geneva Convention “Relative to the Protection of Civilian Persons in Time of War” of 12 August 1949 and Item a(v) of Paragraph 2 of Article 8 of the Rome Statute of the International Criminal Court of 17 July 1998), compelling the residents of the occupied territory to serve in the forces of a hostile Power shall be considered as a war crime.
  2. There is no ground to assess the forced military service of citizens of the Republic of Lithuania in the USSR armed forces which was performed after the restoration of the independence of the Republic of Lithuania on 11 March 1990 in a different manner. It is obvious from the material of the constitutional justice case at issue and the legal acts of the Republic of Lithuania that such service was performed also by those citizens of the Republic of Lithuania who had been admitted to that service and did not complete it until 11 March 1990, as well as those citizens of the Republic of Lithuania who were drafted to that service by force after 11 March 1990; after 11 March 1990, the USSR persecuted and used force against those citizens of the Republic of Lithuania who refused to serve in the USSR armed forces or left such service.

In this context it needs to be noted that, as mentioned before, during the years of the Soviet occupation, citizens of the Republic of Lithuania (the persons who held citizenship of the Republic of Lithuania on 15 June 1940 and their children) were also not bound by the obligations related to USSR citizenship, inter alia the general military obligation of the USSR introduced on the occupied territory of the Republic of Lithuania, which had been imposed upon them unlawfully. Thus, the forcing of citizens of the Republic of Lithuania to serve to a foreign state after the restoration of the independence of the Republic of Lithuania on 11 March 1990 all the more so could not be lawful. It also needs to be noted that, as mentioned before, from the provision of the Act of the Supreme Council of the Republic of Lithuania “On the Re-establishment of the Independent State of Lithuania” of 11 March 1990 that the constitution of no other state is valid on the territory of the Republic of Lithuania it is obvious that the introduction of the validity of the constitution of any other state (inter alia the USSR), inter alia the imposition of the duties established by such a constitution to citizens of the Republic of Lithuania, was unlawful.

Such a legal assessment of the forced military service of the citizens of the Republic of Lithuania in the USSR armed forces is reflected inter alia:

– in the Resolution of the Supreme Council of the Republic of Lithuania “On the Invalidity of the Law on the General Military Duty of the USSR of 12 October 1967 on the Territory of the Republic of Lithuania” of 12 March 1990, according to which, “the USSR Law on the General Military Duty of 12 October 1967 shall be invalid with regard to citizens of the Republic of Lithuania”;

– in the Resolution of the Supreme Council of the Republic of Lithuania “On the Liquidation of the Activity of the Military Commissariats of the USSR Defence Ministry Situated on the Territory of the Republic of Lithuania” of 14 March 1990 which implied the unlawfulness of the activity of the “military commissariats” on the territory of the Republic of Lithuania, inter alia regarding the drafting to the service in the USSR armed forces;

– in the Resolution of the Supreme Council of the Republic of Lithuania “On Appealing for Help from the Red Cross and International Human Rights Organisations” of 3 April 1990 in which inter alia the fact of the armed force against those who refused to serve in the USSR armed forces was stated;

– in the Resolution of the Supreme Council of the Republic of Lithuania “On the Call-up of the Citizens of the Republic of Lithuania to the USSR Armed Forces” of 9 April 1990, according to which: “The Republic of Lithuania laws do not establish a duty for citizens of Lithuania to serve in the armed forces of other states. <...> Every citizen of the Republic of Lithuania who does not consider himself as a citizen of the USSR is free to decide whether or not to enter into the service in the army other than that of the Republic of Lithuania. Pursuant to the universally recognised legal provisions, it is not allowed to require an oath from a citizen of the Republic of Lithuania, who is forced to perform military service to a foreign state. Forced call-up of citizens of the Republic of Lithuania to the armed forces of other states, from the viewpoint of the laws of the Republic, is unlawful, as it is an attempt to apply by force the laws of a foreign state which are not effective in Lithuania”;

– in the statement of the Supreme Council of the Republic of Lithuania of 30 October 1990, in which it is inter alia noted: “The USSR army in Lithuania is a part of the military system and ideology of another state which is now experiencing a big crisis. In this system the old mechanisms of compulsory military service are still functioning which are again applied in Lithuania unlawfully. <...> Citizens of the Republic of Lithuania are not obliged <...> to serve in the armed forces of another state <...>. The armed forces of the Soviet Union do not have any rights in Lithuania to use any kind of force against those who do not respond to the call-up.”

  1. In this context it needs to be noted that the Constitutional Court’s ruling of 13 April 1994 construed that “in cases when in legal acts mention is made of citizens of the Republic of Lithuania who serve in army troops of the Soviet Union, it is meant persons who acquired citizenship under Paragraph 1 or 2, Article 1 of the 1989 Law on Citizenship. They could find themselves in the occupation army for different reasons, however, the citizenship of Lithuania they acquired is lawful because they are either descendants of former citizens of Lithuania or they themselves (or their parents, grandparents) were born in Lithuania.”

Upon the restoration of the independence of the Republic of Lithuania on 11 March 1990, the relations of citizenship of the Republic of Lithuania were regulated through the former Law on Citizenship of the Lithuanian SSR (wording of 3 November 1989). As from the adoption of the 11 March 1990 Law “On the Name of the State and the Coat of Arms”, its title was the Republic of Lithuania’s Law on Citizenship, and the former formula “the Lithuanian SSR” in this law was changed accordingly so that this law, as a law of the restored independent State of Lithuania, could regulate the citizenship relations of the Republic of Lithuania (the Constitutional Court’s ruling of 13 November 2006). This Law on Citizenship was effective until 10 December 1991.

Article 1 of this Law on Citizenship (which became a law of the Republic of Lithuania) prescribed that citizens of the Republic of Lithuania shall be: 1) persons who held citizenship of the Republic of Lithuania, children and grandchildren of such persons, as well as other persons who were permanent residents on the territory of the Republic of Lithuania prior to 15 July 1940, and their children and grandchildren who now are or have been permanent residents on the territory of the Republic of Lithuania; 2) persons who had a permanent place of residence in the Republic of Lithuania, provided that they were born on the territory of the Republic of Lithuania, or proved that at least one of their parents or grandparents was born on said territory, and provided that they are not citizens of another state; 3) other persons who, up to the date of the entry into force of this law, had been permanent residents on the territory of the Republic and had here a permanent job or other permanent legal source of support; such persons shall freely choose their citizenship within two years following the entry into force of this law; 4) persons who had acquired citizenship of the Republic of Lithuania under this law.

Thus, in this law the corps of citizens of the Republic of Lithuania was defined inter alia while following the principle of continuity of citizenship of the Republic of Lithuania, under which persons who held citizenship of the Republic of Lithuania on 15 June 1940, and their children were recognised as citizens of the Republic of Lithuania. This principle was implemented in part by the legal regulation established in Item 1 of Article 1 of the law: according to it, persons who held citizenship of the Republic of Lithuania on 15 June 1940, their children and grandchildren, if they were permanent residents on the territory of the Republic of Lithuania, were considered as citizens of the Republic of Lithuania.

While construing the provisions of the Law on Citizenship of 3 November 1989, in its ruling of 13 April 1994 the Constitutional Court noted that the persons specified in Paragraphs 1 and 2 of Article 1 of this law (by virtue of their previous right) became citizens of the Republic of Lithuania; their right to decide on citizenship actually meant the right to renounce citizenship of Lithuania. In the said ruling of the Constitutional Court it was also held that the persons specified in Item 3 (i.e. “other persons who, up to the date of the entry into force of this law, had been permanent residents on the territory of the Republic and had here a permanent job or other permanent legal source of support”) of Article 1 of the Law on Citizenship (wording of 3 November 1989) were different from the persons specified in Items 1 and 2 of this article, since they had previously never had any firm permanent legal relations with Lithuania. As a matter of fact, they were migrants who had come from places that were beyond the borders of Lithuania, who usually held USSR citizenship and after the restoration of the independent State of Lithuania they became foreigners in this country (the Constitutional Court’s ruling of 13 November 2006). They had the right within two years after the entry into force of the Law on Citizenship (wording of 3 November 1989) to freely decide on citizenship, i.e. they could either retain USSR citizenship or become citizens of Lithuania (the Constitutional Court’s ruling of 13 April 1994).

Consequently, first of all the persons specified in Items 1 and 2 of Article 1 of the 3 November 1989 Law on Citizenship (persons who held citizenship of the Republic of Lithuania, children and grandchildren of such persons, as well as other persons who were permanent residents on the territory of the Republic of Lithuania prior to 15 July 1940, and their children and grandchildren who were then or had been permanent residents on the territory of the Republic of Lithuania, as well as persons who had a permanent place of residence in the Republic of Lithuania, provided that they were born on the territory of the Republic of Lithuania, or proved that at least one of their parents or grandparents was born on said territory, and provided that they were not citizens of another state) were recognised as citizens of the Republic of Lithuania who were not bound by USSR citizenship and who could not be forced to serve in the USSR armed forces, inter alia after 11 March 1990.

Meanwhile, the persons specified in Item 3 of Article 1 of the Law on Citizenship of 3 November 1989 were considered only as potential citizens of the Republic of Lithuania, i.e. eligible to citizenship of the Republic of Lithuania provided that they make a choice regarding it within two years and at the same time renounce their citizenship of another state, inter alia the USSR. Thus, drafting of such persons to the military service in the USSR armed forces prior to their choice regarding citizenship of the Republic of Lithuania (i.e. prior to their becoming citizens of the Republic of Lithuania) could not be considered as unlawful unconditionally. While taking account of the aforesaid, in the context of the constitutional justice case at issue it needs to be noted that only with regard to the persons specified in Item 3 of Article 1 of the Law on Citizenship who became citizens of the Republic of Lithuania upon their choice regarding citizenship of the Republic of Lithuania prior to drafting them to the military service in the USSR armed forces or during such service, the military service in the USSR armed forces after 11 March 1990 is to be considered as forced military service.

  1. A similar legal regulation of citizenship relations was also established until 5 December 1991 in Article 1 of the Republic of Lithuania’s Law on Citizenship which was effective as from 11 December 1991 until 31 December 2002, where this legal regulation was not changed until 2 October 1995. It inter alia prescribed that citizens of the Republic of Lithuania shall be: 1) persons who held citizenship of the Republic of Lithuania prior to 15 June 1940, and their children and grandchildren provided that they have not acquired citizenship of another state; 2) persons who were permanent residents on the territory of the Republic of Lithuania in the period from 9 January 1919 until 15 June 1940, as well as their children and grandchildren, provided that on the day of the entry into force of this law they were permanent residents in Lithuania, and were not citizens of another state; 3) persons who acquired citizenship of the Republic of Lithuania by 4 November 1991 under the Law on Citizenship which had been in effect prior to the adoption of this law.

7.1. If Item 1 of Article 1 of the Law on Citizenship of 3 November 1989 is compared with Item 1 of Article 1 of the Law on Citizenship of 5 December 1991, it will be obvious that the principle of the continuity of citizenship of the Republic of Lithuania was better implemented under Item 1 of Article 1 of the Law on Citizenship of 5 December 1991: a requirement to permanently live on the territory of the Republic of Lithuania was no longer set for the persons who held citizenship of the Republic of Lithuania on 15 June 1940 (who were thus recognised as citizens of the Republic of Lithuania), as well as for their children and grandchildren (only a requirement not to hold citizenship of another state was established). Under Item 2 of Article 1 of the Law on Citizenship of 5 December 1991, not only the persons who were permanent residents on the territory of the Republic of Lithuania in the period from 9 January 1919 until 15 June 1940, as well as their children and grandchildren, provided that on the day of the entry into force of this law they were permanent residents in Lithuania and were not citizens of another state were recognised as citizens of the Republic of Lithuania, but also the persons of one of the categories specified in Item 1 of Article 1 of the Law on Citizenship of 3 November 1989 (the persons who did not hold citizenship of the Republic of Lithuania prior to 15 June 1940, but who were permanent residents of the then territory of the Republic of Lithuania, as well as their children and grandchildren permanently residing on the territory of the Republic of Lithuania). Thus, the persons specified in Items 1 and 2 of Article 1 of the Law on Citizenship of 5 December 1991 are to be considered as those citizens of the Republic of Lithuania who have never been bound by USSR citizenship and who could not be forced to serve in the USSR armed forces, inter alia after 11 March 1990.

7.2. It needs to be noted that Article 1 of the Law on Citizenship of 5 December 1991, in comparison with Article 1 of the Law on Citizenship of 3 November 1989, no longer included the provision that persons who have a permanent place of residence in the Republic of Lithuania, provided that they were born on the territory of the Republic of Lithuania, or proved that at least one of their parents or grandparents was born on said territory, and provided that they are not citizens of another state, shall be citizens of the Republic of Lithuania (i.e. the persons specified in Item 2 of Article 1 of the Law on Citizenship of 3 November 1989). Thus, under Article 1 of the Law on Citizenship of 5 December 1991, those persons who were not citizens of another state, and who born on the territory of the Republic of Lithuania, or at least one of their parents or grandparents was born on said territory, who were not attributed to the categories of citizens of the Republic of Lithuania specified in Items 1 and 2 of this article, were no longer considered as citizens of the Republic of Lithuania, i.e. the persons born on the territory of the Republic of Lithuania during the years of the occupation who were not children or grandchildren of the persons who held citizenship of the Republic of Lithuania on 15 June 1940 or of those persons who permanently lived in the present-day territory of the Republic of Lithuania in the period from 9 January 1919 until 15 June 1940, as well as those persons whose grandparents were born on the territory of the Republic of Lithuania during the years of the occupation and those persons whose none of the parents was a child of the persons who held citizenship of the Republic of Lithuania on 15 June 1940 or permanently lived in the present-day territory of the Republic of Lithuania in the period from 9 January 1919 until 15 June 1940, even though they were born on the territory of the Republic of Lithuania during the years of the occupation, were no longer considered as citizens of the Republic of Lithuania.

In this context it needs to be noted that, under Paragraph 4 of Article 2 of the Law on Citizenship of 3 November 1989, persons of the full age who within two years from the date of the entry into force of this law failed to acquire the passport of a citizen of the Republic of Lithuania, were to be considered as those who did not accept citizenship of the Republic of Lithuania, while under Item 3 of Article 1 of the Law on Citizenship of 5 December 1991, inter alia those persons who became citizens of the Republic of Lithuania through Item 2 of Article 1 of the Law on Citizenship of 3 November 1989 were recognised as citizens of the Republic of Lithuania. While taking account of the aforesaid, it needs to be held that the persons specified in Items 1 and 2 of Article 1 of the Law on Citizenship of 5 December 1991, who accepted citizenship of the Republic of Lithuania within two years from the date of the entry into force of this law are to be considered as citizens of the Republic of Lithuania who were never bound by USSR citizenship and who could not be forced to serve in the USSR armed forces after 11 March 1990.

7.3. Under Item 3 of Article 1 of the Law on Citizenship of 5 December 1991, inter alia those persons who became citizens of the Republic of Lithuania through Item 3 of Article 1 of the Law on Citizenship of 3 November 1989, i.e. the citizens of the USSR who had been permanent residents on the territory of the Republic and had here a permanent job or other permanent legal source of support and who had decided to choose citizenship of the Republic of Lithuania within two years from the date of the entry into force of this law, were recognised as citizens of the Republic of Lithuania. Thus, from this point of view, the legal regulation of citizenship relations was not amended.

  1. In the context of the constitutional justice case at issue, while summarising the legal regulation of citizenship relations valid in the period when, after 11 March 1990, citizens of the Republic of Lithuania performed forced military service in the USSR armed forces, it needs to be noted that only the service of those persons in the USSR armed forces who were considered as citizens of the Republic of Lithuania (the persons recognised as citizens of the Republic of Lithuania according to Item 1 of Article 1 of the Law on Citizenship of 3 November 1989 or Item 1 or 2 of Article 1 of the Law on Citizenship of 5 December 1991, as well as the persons specified in Item 2 of Article 1 of the Law on Citizenship of 3 November 1989 who accepted citizenship of the Republic of Lithuania within two years from the date of the entry into force of this law and the persons specified in Item 3 of this article who made a choice regarding citizenship of the Republic of Lithuania prior to being drafted to the military service in the USSR armed forces or at the time of such service), according to the Republic of Lithuania laws that were effective at the time of the performance of their service, must be considered as forced military service to a foreign state.
  2. While taking account of the aforesaid, in the context of the constitutional justice case at issue it needs to be held that with regard to the forced military service in the USSR armed forces, the legal situation of the citizens of the Republic of Lithuania (the persons who held citizenship of the Republic of Lithuania on 15 June 1940 and their children) who were drafted to such service during the period of the occupation of the territory of the Republic of Lithuania (until 11 March 1990) and the citizens of the Republic of Lithuania (the persons recognised as citizens of the Republic of Lithuania through Item 1 of Article 1 of the Law on Citizenship of 3 November 1989 or Item 1 or 2 of Article 1 of the Law on Citizenship of 5 December 1991, as well as the persons specified in Item 2 of Article 1 of the Law on Citizenship of 3 November 1989 who accepted citizenship of the Republic of Lithuania within two years from the date of the entry into force of this law and the persons specified in Item 3 of this article who made a choice regarding citizenship of the Republic of Lithuania prior to being drafted to the military service in the USSR armed forces or at the time of such service) who were forced to continue such service or were drafted to it after 11 March 1990 is to be considered as the same, i.e. the citizens of the Republic of Lithuania of both categories were drafted to forced military service in the USSR armed forces unlawfully; the citizens of the Republic of Lithuania of both categories were forced to perform this military service and, under such circumstances, could not perform the service to the State of Lithuania objectively.

IV

  1. It has been mentioned that in the constitutional justice case at issue it is investigated whether the legal regulation impugned by the petitioner was not in conflict with Articles 29 and 52 of the Constitution and the constitutional principle of a state under the rule of law.
  2. In Paragraph 1 of Article 29 of the Constitution the principle of equality of rights of persons is consolidated. While construing the provisions of Article 29 of the Constitution, the Constitutional Court has held more than once that the constitutional principle of equality of all persons, which must be followed both in passing laws and applying them, as well as in administering justice, obliges one to legally assess homogenous facts in the same manner and prohibits from the arbitrary assessment of the facts that are the same in essence in a different manner, also that the constitutional principle of equality of all persons means an innate human right to be treated equally with others, that it consolidates formal equality of all persons and as well as that it does not allow any discrimination of persons, nor does it allow granting them any privileges. In addition, the Constitutional Court has noted more than once that the constitutional principle of equality of all persons does not deny a possibility to provide in a law for a different (differentiated) legal regulation with respect to certain categories of persons who are in different situations; the variety of social life may determine the manner and content of legal regulation. The constitutional principle of equality of persons does not deny the possibility of treating persons differently by taking account of their status or situation (inter alia the Constitutional Court’s rulings of 30 October 2008 and 3 July 2012). The constitutional principle of equality of rights of persons would be violated if certain persons or groups thereof were treated in a different manner, even though there are not any differences in their character and extent between these groups that such an uneven treatment could be objectively justified (inter alia the Constitutional Court’s rulings of 6 February 2012 and 27 February 2012); while assessing whether an established different legal regulation is a grounded one, concrete legal circumstances must be taken into account; first of all, differences in the legal situation of subjects and objects to which different legal regulation is applied must be considered (inter alia the Constitutional Court’s decision of 20 April 2010, the rulings of 29 June 2010 and 6 February 2012).

In the context of the constitutional justice case at issue it needs to be noted that the constitutional principle of equality of rights of persons implies a duty of the legislator to establish an equal (non-differentiated) legal regulation with regard to categories of certain persons that are in the same situation, where between the categories of these persons there are not any such differences in their nature and extent so that such an uneven treatment could be objectively justified.

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

3.1. The Constitutional Court has noted more than once that, under the Constitution, the law may also establish other pensions and social assistance, not only those which are expressis verbis specified in Article 52 of the Constitution; the formula “the state shall guarantee” as employed in Article 52 of the Constitution means inter alia that pensions and various types of social assistance are guaranteed to the persons on such bases and in such amounts 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; upon establishing, by law, the types of pensions, the persons entitled to the pension, the grounds and conditions of awarding and paying pensions, and the amounts of pensions, a duty arises for the state to follow the constitutional principles of the protection of legitimate expectations and legal certainty in the area of pensionary maintenance relations (inter alia the Constitutional Court’s ruling of 6 February 2012).

3.2. The pensions which are not directly named in Article 52 of the Constitution are at present established inter alia in the Republic of Lithuania’s Law on State Pensions. State pensions differ in their nature and character from old age pensions of state social insurance, as well as from other pensions of state social insurance: they are paid from the State Budget; they are granted to persons for their service or merits to the State of Lithuania, as well as a compensation to victims specified in the law (inter alia the Constitutional Court’s rulings of 22 October 2007, 24 December 2008, the decision of 20 April 2010 and the ruling of 6 February 2012); in the case of the state pensions which are granted for certain service, for merits to the State of Lithuania, or as a compensation to victims, the provision regarding the obligation undertaken by the state by law to grant and pay the corresponding pension to the person who meets the conditions established by the law and regarding the right of the said person to demand that the state fulfil such an obligation assumed by law, is also effective (the Constitutional Court’s ruling of 22 October 2007, the decision of 20 April 2010 and the ruling of 6 February 2012).

In its ruling of 24 December 2008, the Constitutional Court noted that the purpose of the state pension of officials and servicemen which is consolidated in the Law on the State Pensions of Officials and Servicemen is inter alia to compensate for a difficult, responsible, often risky and dangerous service by a person for the state; the peculiarities of state pensions allow the legislator, taking account of all the significant circumstances and heeding the norms and principles of the Constitution, to establish the corresponding conditions for granting this pension; the receiving of these pensions is linked not to the social insurance contributions of pensions of the established size, but to the corresponding status of the person (service, merits or other circumstances upon which granting of the state pension depends).

When one takes account of such a concept of the pensions of officials and servicemen in the context of the constitutional justice case at issue, it needs to be noted that, after such a state pension has been established by law, the granting and receiving thereof must be related to the person’s service to the State of Lithuania. In this context it needs to be emphasised that service to another state, inter alia the USSR (including the Lithuanian SSR), may not be considered as service to the State of Lithuania. However, under the Constitution, the legislator enjoys the discretion, while taking account of significant circumstances, to establish such legal regulation of granting of the state pensions of officials and servicemen, under which the time of service to another state may be compared to a part of the time of service of a person to the State of Lithuania, necessary in order to grant this pension, under the circumstances when it was objectively impossible to perform service to the State of Lithuania (inter alia during the period prior to the restoration of the independence of the Republic of Lithuania on 11 March 1990, when the only institutions of the State of Lithuania were the Republic of Lithuania’s diplomatic missions and consular posts abroad or when the service to the State of Lithuania was possible only in the structures (inter alia in the Union of Lithuanian Freedom Fighters) of the organised armed resistance against the occupation, which took place for a certain time on the occupied territory of the Republic of Lithuania). While implementing this discretion, the legislator is bound by the aforementioned purpose of the state pension of officials and servicemen. Thus, the legislator may not establish any such legal regulation, under which the state pensions of officials and servicemen would be granted for the persons who did not serve to the State of Lithuania, as well as for the persons who, while performing the service to the state that had occupied the territory of the Republic of Lithuania, took part in suppressing the resistance against the occupation or in committing criminal deeds against the Lithuanian population.

3.3. In the context of the constitutional justice case at issue it also needs to be noted that while implementing the discretion to establish the state pensions of officials and servicemen—while establishing inter alia the conditions of granting thereof, the legislator is bound by the Constitution. The legislator, while establishing which persons are granted and paid the state pension of officials and servicemen, the grounds and conditions for granting and payment thereof, as well as the amounts of this pension, must follow the constitutional principle of equality of all persons (the Constitutional Court’s ruling of 26 September 2007), and must heed the requirement, which stems from Article 29 of the Constitution, that 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).

Thus, in the context of the constitutional justice case at issue it also needs to be noted that, after the state pension of officials and servicemen has been established by law, Article 52 of the Constitution implies a duty for the legislator to establish such legal regulation of this pension which would be compatible with the principle of equality of rights of persons consolidated in Article 29 of the Constitution.

  1. It needs to be noted that a violation of the constitutional principle of equality of rights of persons is, at the same time, a violation of the constitutional imperatives of justice and harmonious society, thus, it is also a violation of the constitutional principle of a state under the rule of law (the Constitutional Court’s ruling of 6 February 2012).

V

On the compliance of Item 1 of Paragraph 3 (wording of 18 January 2007) of Article 16 of the Law on the State Pensions of Officials and Servicemen with Articles 29 and 52 of the Constitution and the constitutional principle of a state under the rule of law.

  1. It has been mentioned that in the constitutional justice case at issue the Constitutional Court will investigate whether Item 1 of Paragraph 3 (wording of 18 January 2007) of Article 16 of the Law on the State Pensions of Officials and Servicemen, insofar as having prescribed that the actual time of forced military service in the armed forces, the border guard service, the interior and other services (save the service in extermination squads and battalions) of the USSR prior to 11 March 1990 is equalled to the time of service necessary in order to grant the state pensions of officials and servicemen to persons admitted as officials or servicemen in the systems of the interior, state security, national defence, prosecutor’s office, the Special Investigation Service, the Department of Prisons and of the establishments and state enterprises which are subordinate to the latter and as customs officials (in the customs system to work in customs mobile groups or customs posts or to carry out an operational activity and/or pre-trial investigation), it had not prescribed that the actual period of such service after 11 March 1990 is equalled to the time of service on the grounds of which this pension is granted, was not in conflict with Articles 29 and 52 of the Constitution and the constitutional principle of a state under the rule of law.
  2. It has been mentioned that, under the Constitution, the legislator enjoys the discretion, while taking account of significant circumstances, to establish such legal regulation of granting of the state pensions of officials and servicemen, under which the time of service to another state may be compared to a part of the time of service of a person to the State of Lithuania, necessary in order to grant this pension, under the circumstances when to perform service to the State of Lithuania was objectively impossible.

It has also been mentioned that, after the state pension of officials and servicemen has been established by law, Article 52 of the Constitution implies a duty for the legislator to establish such legal regulation of this pension which would be compatible with the principle of equality of rights of persons consolidated in Article 29 of the Constitution; the legislator, while establishing the conditions for granting and payment of the state pension of officials and servicemen, must heed the requirement, which stems from Article 29 of the Constitution, that 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.

It has also been mentioned that a violation of the constitutional principle of equal rights of persons at the same time is a violation of the constitutional principle of a state under the rule of law.

  1. It has been mentioned that, under the impugned legal regulation established in Item 1 of Paragraph 3 (wording of 18 January 2007) of Article 16 of the Law on the State Pensions of Officials and Servicemen, the time of service necessary in order to grant the state pension of officials and servicemen includes the actual time of the forced military service in the armed forces, the border guard service, the interior and other services (save the service in extermination squads and battalions) of the USSR which had been only prior to the restoration of the independence of the Republic of Lithuania on 11 March 1990, but it does not include the actual time of such service after this date. Thus, under this legal regulation, the citizens of the Republic of Lithuania (the persons who held citizenship of the Republic of Lithuania on 15 June 1940 and their children) who were drafted to such service during the period of the occupation of the territory of the Republic of Lithuania (until 11 March 1990) and the citizens of the Republic of Lithuania (the persons recognised as citizens of the Republic of Lithuania through Item 1 of Article 1 of the Law on Citizenship of 3 November 1989 or Item 1 or 2 of Article 1 of the Law on Citizenship of 5 December 1991, as well as the persons specified in Item 2 of Article 1 of the Law on Citizenship of 3 November 1989 who accepted citizenship of the Republic of Lithuania within two years from the date of the entry into force of this law and the persons specified in Item 3 of this article who made a choice regarding citizenship of the Republic of Lithuania prior to being drafted to the military service in the USSR armed forces or at the time of such service) who were forced to continue such service or were drafted to it after 11 March 1990 are treated inter alia differently.

It has also been mentioned that, with regard to the forced military service in the USSR armed forces, the legal situation of the citizens of the Republic of Lithuania (the persons who held citizenship of the Republic of Lithuania on 15 June 1940 and their children) who were drafted to such service during the period of the occupation of the territory of the Republic of Lithuania (until 11 March 1990) and the citizens of the Republic of Lithuania (the persons recognised as citizens of the Republic of Lithuania through Item 1 of Article 1 of the Law on Citizenship of 3 November 1989 or Item 1 or 2 of Article 1 of the Law on Citizenship of 5 December 1991, as well as the persons specified in Item 2 of Article 1 of the Law on Citizenship of 3 November 1989 who accepted citizenship of the Republic of Lithuania within two years from the date of the entry into force of this law and the persons specified in Item 3 of this article who made a choice regarding citizenship of the Republic of Lithuania prior to being drafted to the military service in the USSR armed forces or at the time of such service) who were forced to continue such service or were drafted to the said service after 11 March 1990 is to be considered as the same, i.e. the citizens of the Republic of Lithuania of both categories were drafted to forced military service in the USSR armed forces unlawfully; the citizens of the Republic of Lithuania of both categories were forced to perform this military service and, under such circumstances, could not perform the service to the State of Lithuania objectively. Thus, there are no legal grounds to objectively justify the different treatment of the citizens of the Republic of Lithuania—officials and servicemen—of these categories insofar as it is related to the inclusion of the actual period of the forced military service in the USSR armed forces in order to grant the state pension of officials and servicemen. Thus, one is to draw a conclusion that, while establishing the impugned legal regulation, the legislator disregarded the duty implied by Article 52 of the Constitution to establish such legal regulation of the state pensions of officials and servicemen that would be compatible with the principle of equality of rights of persons consolidated in Article 29 of the Constitution, as well as with the constitutional principle of a state under the rule of law.

  1. While taking account of the arguments set forth, one is to draw a conclusion that Item 1 of Paragraph 3 (wording of 18 January 2007) of Article 16 of the Law on the State Pensions of Officials and Servicemen, insofar as having prescribed that for the persons specified in this paragraph the actual time of forced military service in the armed forces, the border guard service, the interior and other services (save the service in extermination squads and battalions) of the USSR prior to 11 March 1990 is included into the time of service necessary in order to grant the state pension of officials and servicemen, it had not prescribed that the time of such service after 11 March 1990 is included into the time of service necessary in order to grant this pension for the persons recognised as citizens of the Republic of Lithuania through Item 1 of Article 1 of the Law on Citizenship of 3 November 1989 or Item 1 or 2 of Article 1 of the Law on Citizenship of 5 December 1991, as well as the persons specified in Item 2 of Article 1 of the Law on Citizenship of 3 November 1989 who accepted citizenship of the Republic of Lithuania within two years from the date of the entry into force of this law and the persons specified in Item 3 of this article who became citizens of the Republic of Lithuania after they had made a choice regarding citizenship of the Republic of Lithuania prior to being drafted to the military service in the armed forces, the border guard service, the interior and other services of the USSR, or at the time of such service, was in conflict with Articles 29 and 52 of the Constitution and the constitutional principle of a state under the rule of law.
  2. It has been mentioned that Paragraph 3 (wording of 18 January 2007) of Article 16 of the Law on the State Pensions of Officials and Servicemen was amended when, on 2 October 2012, the Seimas adopted the Republic of Lithuania’s Law on Amending Articles 1, 3, 6, 7 and 16 of the Law on the State Pensions of Officials and Servicemen which came into force on 1 January 2013. Paragraph 3 (wording of 2 October 2012) of Article 16 of the Law on the State Pensions of Officials and Servicemen inter alia prescribes:

“The periods which had been prior to 1 January 1995 are equalled to the time of service necessary in order to grant the pensions to persons admitted as officials or servicemen in the systems of the interior, state security, national defence, prosecutor’s office, the Special Investigation Service, the Department of Prisons and of the establishments and state enterprises which are subordinate to the latter and as customs officials (in the customs system to work in customs mobile groups or customs posts or to carry out criminal reconnaissance and/or pre-trial investigation):

1) the actual time of service in the armed forces, the border guard service, the interior and other services (save the service in extermination squads and battalions) of other states—until 11 March 1990.”

While having compared, in the aspect impugned by the petitioner, the legal regulation that is relevant at present, established in Item 1 of Paragraph 3 (wording of 2 October 2012) of Article 16 of the Law on the State Pensions of Officials and Servicemen, with the one established in Item 1 of Paragraph 3 (wording of 18 January 2007) of Article 16 of the Law on the State Pensions of Officials and Servicemen, it is obvious that it has not changed in substance.

It this ruling of the Constitutional Court it has been held that Item 1 of Paragraph 3 (wording of 18 January 2007) of Article 16 of the Law on the State Pensions of Officials and Servicemen, insofar as having prescribed that for the persons specified in this paragraph the actual time of forced military service in the armed forces, the border guard service, the interior and other services (save the service in extermination squads and battalions) of the USSR prior to 11 March 1990 is included into the time of service necessary in order to grant the state pension of officials and servicemen, it had not prescribed that the time of such service after 11 March 1990 is included into the time of service necessary in order to grant this pension for the persons recognised as citizens of the Republic of Lithuania through Item 1 of Article 1 of the Law on Citizenship of 3 November 1989 or Item 1 or 2 of Article 1 of the Law on Citizenship of 5 December 1991, as well as the persons specified in Item 2 of Article 1 of the Law on Citizenship of 3 November 1989 who accepted citizenship of the Republic of Lithuania within two years from the date of the entry into force of this law and the persons specified in Item 3 of this article who became citizens of the Republic of Lithuania after they had made a choice regarding citizenship of the Republic of Lithuania prior to being drafted to the military service in the armed forces, the border guard service, the interior and other services of the USSR, or at the time of such service, was in conflict with Articles 29 and 52 of the Constitution and the constitutional principle of a state under the rule of law.

  1. Having held the aforesaid, while referring to the same arguments, it also needs to be held that Item 1 of Paragraph 3 (wording of 2 October 2012) of Article 16 of the Law on the State Pensions of Officials and Servicemen, insofar as having prescribed that for the persons specified in this paragraph the actual time of forced military service in the armed forces, the border guard service, the interior and other services (save the service in extermination squads and battalions) of the USSR prior to 11 March 1990 is included into the time of service necessary in order to grant the state pension of officials and servicemen, it has not prescribed that the time of such service after 11 March 1990 is included into the time of service necessary in order to grant this pension for the persons recognised as citizens of the Republic of Lithuania through Item 1 of Article 1 of the Law on Citizenship of 3 November 1989 or Item 1 or 2 of Article 1 of the Law on Citizenship of 5 December 1991, as well as the persons specified in Item 2 of Article 1 of the Law on Citizenship of 3 November 1989 who accepted citizenship of the Republic of Lithuania within two years from the date of the entry into force of this law and the persons specified in Item 3 of this article who became citizens of the Republic of Lithuania after they had made a choice regarding citizenship of the Republic of Lithuania prior to being drafted to the military service in the armed forces, the border guard service, the interior and other services of the USSR, or at the time of such service, is in conflict with Articles 29 and 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 has passed the following

ruling:

  1. To recognise that Item 1 of Paragraph 3 (wording of 18 January 2007, Official Gazette Valstybės žinios, 2007, No. 8-314) of Article 16 of the Republic of Lithuania’s Law on the State Pensions of Officials and Servicemen, insofar as having prescribed that for the persons specified in this paragraph the actual time of forced military service in the armed forces, the border guard service, the interior and other services (save the service in extermination squads and battalions) of the USSR prior to 11 March 1990 is included into the time of service necessary in order to grant the state pension of officials and servicemen, it had not prescribed that the time of such service after 11 March 1990 is included into the time of service necessary in order to grant this pension for the persons recognised as citizens of the Republic of Lithuania through Item 1 of Article 1 of the Law on Citizenship of 3 November 1989 or Item 1 or 2 of Article 1 of the Law on Citizenship of 5 December 1991, as well as the persons specified in Item 2 of Article 1 of the Law on Citizenship of 3 November 1989 who accepted citizenship of the Republic of Lithuania within two years from the date of the entry into force of this law and the persons specified in Item 3 of this article who became citizens of the Republic of Lithuania after they had made a choice regarding citizenship of the Republic of Lithuania prior to being drafted to the military service in the armed forces, the border guard service, the interior and other services of the USSR, or at the time of such service, was in conflict with Articles 29 and 52 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.
  2. To recognise that Item 1 of Paragraph 3 (wording of 2 October 2012, Official Gazette Valstybės žinios, 2012, No. 122-6133) of Article 16 of the Republic of Lithuania’s Law on the State Pensions of Officials and Servicemen, insofar as having prescribed that for the persons specified in this paragraph the actual time of forced military service in the armed forces, the border guard service, the interior and other services (save the service in extermination squads and battalions) of the USSR prior to 11 March 1990 is included into the time of service necessary in order to grant the state pension of officials and servicemen, it has not prescribed that the time of such service after 11 March 1990 is included into the time of service necessary in order to grant this pension for the persons recognised as citizens of the Republic of Lithuania through Item 1 of Article 1 of the Law on Citizenship of 3 November 1989 or Item 1 or 2 of Article 1 of the Law on Citizenship of 5 December 1991, as well as the persons specified in Item 2 of Article 1 of the Law on Citizenship of 3 November 1989 who accepted citizenship of the Republic of Lithuania within two years from the date of the entry into force of this law and the persons specified in Item 3 of this article who became citizens of the Republic of Lithuania after they had made a choice regarding citizenship of the Republic of Lithuania prior to being drafted to the military service in the armed forces, the border guard service, the interior and other services of the USSR, or at the time of such service, is in conflict with Articles 29 and 52 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

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

Justices of the Constitutional Court:                         Egidijus Bieliūnas

                                                                                             Toma Birmontienė

                                                                                             Pranas Kuconis

                                                                                             Gediminas Mesonis

                                                                                             Ramutė Ruškytė

                                                                                             Egidijus Šileikis

                                                                                             Algirdas Taminskas

                                                                                             Romualdas Kęstutis Urbaitis

                                                                                             Dainius Žalimas