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On the state pensions of judges

Case No. 38/04-39/04

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
RULING

ON THE COMPLIANCE OF ARTICLE 4 (WORDINGS OF 2 JULY 2002, 4 NOVEMBER 2004, 19 MAY 2005 AND 8 JUNE 2006) OF THE REPUBLIC OF LITHUANIA’S LAW ON THE STATE PENSIONS OF JUDGES WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

22 October 2007

Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Armanas Abramavičius, Toma Birmontienė, Egidijus Kūris, Kęstutis Lapinskas, Zenonas Namavičius, Ramutė Ruškytė, Vytautas Sinkevičius, Stasys Stačiokas, and Romualdas Kęstutis Urbaitis

The court reporter—Daiva Pitrėnaitė

Seimas member Algirdas Sysas, acting as the representative of the Seimas of the Republic of Lithuania, the party concerned

The Constitutional Court of the Republic of Lithuania, pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, in its public hearing, on 2 October 2007, considered constitutional justice case No. 38/04-39/04 subsequent to the petition of the Vilnius Regional Administrative Court, the petitioner, requesting an investigation into whether:

1) Item 6 of Article 4 (wording of 2 July 2002) of the Republic of Lithuania’s Law on the State Pensions of Judges is not in conflict with Article 23, Paragraph 1 of Article 48 and Article 52 of the Constitution of the Republic of Lithuania and with the constitutional principle of a state under the rule of law (petition No. 1B-47);

2) Item 6 of Article 4 (wording of 2 July 2002) of the Republic of Lithuania’s Law on the State Pensions of Judges, to the extent that it prescribes that the state pension of judges shall not be granted and the state pension which was granted, shall not be paid if the person has the income from which state social pension insurance contributions are calculated and paid or if he receives state social insurance benefits of sickness (including those paid by the employer during the days of sickness), of maternity, of maternity (paternity) or of unemployment, is not in conflict with Article 23, with the provision that each human being may freely choose a job or business of Paragraph 1 of Article 48, and with the provision that the state shall guarantee to citizens the right to receive an old age pension of Article 52 of the Constitution of the Republic of Lithuania, and with the principle of a state under the rule of law which, according to the petitioner, is enshrined in the Preamble to the Constitution (petition No. 1B-48).

By the Constitutional Court’s decision of 13 May 2005, these petitions were joined into one case and it was given reference number 38/04-39/04.

The Constitutional Court

has established:

I

1. The Vilnius Regional Administrative Court, the petitioner, considered an administrative case. By its ruling, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting an investigation into whether Item 6 of Article 4 (wording of 2 July 2002) of the Law on the State Pensions of Judges (hereinafter also referred to as the Law) is not in conflict with Article 23, Paragraph 1 of Article 48 and Article 52 of the Constitution and with the constitutional principle of a state under the rule of law.

2. The Vilnius Regional Administrative Court, the petitioner, considered an administrative case. By its ruling, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting an investigation into whether Item 6 of Article 4 (wording of 2 July 2002) of the Law, to the extent that it prescribes that the state pension of judges shall not be granted and the state pension which was granted, shall not be paid if the person has the income from which state social pension insurance contributions are calculated and paid or if he receives state social insurance benefits of sickness (including those paid by the employer during the days of sickness), of maternity, of maternity (paternity) or of unemployment, is not in conflict with Article 23, with the provision that each human being may freely choose a job or business of Paragraph 1 of Article 48, and with the provision that the state shall guarantee to citizens the right to receive an old age pension of Article 52 of the Constitution, and with the principle of a state under the rule of law which, according to the petitioner, is enshrined in the Preamble to the Constitution.

II

1. The petition of the Vilnius Regional Administrative Court, the petitioner, requesting an investigation into whether Item 6 of Article 4 (wording of 2 July 2002) of the Law is not in conflict with Article 23, Paragraph 1 of Article 48 and Article 52 of the Constitution and with the constitutional principle of a state under the rule of law (petition No. 1B-47) is based on the following arguments.

Under Item 6 of Article 4 (wording of 2 July 2002) of the Law, the state pension of judges shall not be granted and the state pension which was granted, shall not be paid if the person has the income from which state social pension insurance contributions are calculated and paid or if he receives state social insurance benefits of sickness (including those paid by the employer during the days of sickness), of maternity, of maternity (paternity) or of unemployment.

The Vilnius Regional Administrative Court, the petitioner, referring, inter alia, to the doctrinal provisions of the Constitutional Court’s rulings of 25 November 2002 and 4 July 2003, doubts whether, under the Constitution, one may establish such legal regulation that granting and payment of the state pension of judges would be related to other income received by the person. In the opinion of the petitioner, such legal regulation established in Item 6 of Article 4 (wording of 2 July 2002) of the Law violates the right of the person to receive the well-earned pension payments, thus, the person’s constitutional right of ownership is restricted. The impugned legal regulation, according to the petitioner, also violates the right of a citizen to receive a pension which is guaranteed in Article 52 of the Constitution that implies legal certainty and creates a lawful expectation of the person that upon reaching the required age and having the required period of service, a pension of established size will be paid which guarantees the corresponding income.

In addition, the right of each human being to freely choose a job or business enshrined in Paragraph 1 of Article 48 of the Constitution implies the duty of the legislature to create legal preconditions necessary for the implementation of this right. In the opinion of the petitioner, the impugned legal regulation restricts the said constitutional right, as well as the right of the former judges who receive pensions to participate in the economic activity.

2. The petition of the Vilnius Regional Administrative Court, the petitioner, requesting an investigation into whether Item 6 of Article 4 (wording of 2 July 2002) of the Law, to the extent that it prescribes that the state pension of judges shall not be granted and the state pension which was granted, shall not be paid if the person has the income from which state social pension insurance contributions are calculated and paid or if he receives state social insurance benefits of sickness (including those paid by the employer during the days of sickness), of maternity, of maternity (paternity) or of unemployment, is not in conflict with Article 23, with the provision that each human being may freely choose a job or business of Paragraph 1 of Article 48, with the provision that the state shall guarantee to citizens the right to receive an old age pension of Article 52 of the Constitution, and with the principle of a state under the rule of law which, according to the petitioner, is enshrined in the Preamble to the Constitution (petition No. 1B-48) is essentially based on the same arguments as the petition requesting an investigation into whether Item 6 of Article 4 (wording of 2 July 2002) of the Law is not in conflict with Article 23, Paragraph 1 of Article 48 and Article 52 of the Constitution and with the constitutional principle of a state under the rule of law (petition No. 1B-47).

In addition, it is stated that due to the legal regulation established in Item 6 of Article 4 of the Law, the person to whom a state pension is granted, as well as the person who meets the conditions for receiving the state pension of judges, has to choose whether to receive the state pension of judges or to have the income from which state social pension insurance contributions are calculated and paid and not to receive the said pension; this fact, according to the petitioner, does not permit such persons to freely choose a job or business.

III

In the course of the preparation of the case for the Constitutional Court’s hearing, written explanations from the representative of the Seimas, the party concerned, who was Seimas member A. Sysas were received, in which it is stated that the impugned legal regulation is not in conflict with Article 23, Paragraph 1 of Article 48 and Article 52 of the Constitution, and with the constitutional principle of a state under the rule of law. The position of the representative of the party concerned is based on the following arguments.

1. The right to the state pension of judges appears on the basis and under the conditions of the law, it is not the right of ownership from the point of view of civil law. The legislature may establish the conditions under which this pension is granted and the cases in which it is not granted and paid. Thus, the state pension of judges may be considered as ownership only when it is granted and was paid under the procedure established by law; prior to that, the recipient of the pension may not be considered as the owner of this pension.

2. Paragraph 1 of Article 48 of the Constitution guarantees the right of a person to decide by himself whether to work (to engage in business) or not. Legal acts establish certain requirements for the person who wishes to work and they may not be regarded as restricting the right of the person to freely choose a job and business. Thus, also the impugned provision which relates granting and payment of the state pensions of judges with other income received by a person and which permits the person to choose whether to work or to receive the pension and which does not permit working and receiving the pension at the same time, should not be regarded as violating the constitutional right of a person to work, as well as the constitutional right to the pension and social assistance, as the Constitution does not guarantee the absolute rights of the person but only that the corresponding rights are not denied. According to the representative of the Seimas, the party concerned, the state may establish additional (special) conditions for the implementation of the said rights.

3. The state pensions of judges supplement the social insurance guarantees which are the same for all residents and are paid from the funds of the state budget. The purpose of such pensions is to compensate the income which had been lost due to termination of work, however, if a former judge continues to work, he has income and the state does not have the duty to provide him with social assistance.

IV

1. In the course of the preparation of the case for the Constitutional Court’s hearing, written explanations from V. Blinkevičiūtė, Minister of Social Security and Labour of the Republic of Lithuania, G. Bužinskas, Minister of Justice of the Republic of Lithuania, and R. Kaminskas, acting Director, Deputy Director of the State Social Insurance Fund Board under the Ministry of Social Security and Labour were received.

2. In the course of the preparation of the case for the Constitutional Court’s hearing, the information from R. Bakšys, Director of the National Courts Administration, regarding the social guarantees of judges which are established and provided in Lithuania and some other Member States of the European Union, inter alia, pensions, was received. From this information, it is obvious that in Lithuania, the social (material) guarantees upon the expiry of the powers of the judge are established (and applied) by following partially different principles than in most Member States of the European Union.

V

At the hearing of the Constitutional Court, the representative of the Seimas, the party concerned, who was A Sysas, Chairperson of the Committee on Social Affairs and Labour of the Seimas, virtually repeated the arguments set forth in the written explanations.

The Constitutional Court

holds that:

I

1. On 2 July 2002, the Seimas adopted the Law on the State Pensions of Judges which came into force on 1 January 2003. Article 4 (wording of 2 July 2002) of the Law established, inter alia, the following:

The state pension of judges shall not be granted and the granted pension shall not be paid, if: <…>

6) the person has the income from which state social pension insurance contributions are calculated and paid or if he receives state social insurance benefits of sickness (including those paid by the employer during the days of sickness), of maternity, of maternity (paternity) or of unemployment.”

2. It needs to be noted that the state pension of judges was established for the first time namely by the said law; until then such pension as the pension of judges had not been established in the Republic of Lithuania.

3. The Vilnius Regional Administrative Court, the petitioner, requests an investigation into whether:

1) Item 6 of Article 4 (wording of 2 July 2002) of the Law is not in conflict with Article 23, Paragraph 1 of Article 48 and Article 52 of the Constitution and with the constitutional principle of a state under the rule of law (petition No. 1B-47);

2) Item 6 of Article 4 (wording of 2 July 2002) of the Law, to the extent that it prescribes that the state pension of judges shall not be granted and the state pension which was granted, shall not be paid if the person has the income from which state social pension insurance contributions are calculated and paid or if he receives state social insurance benefits of sickness (including those paid by the employer during the days of sickness), of maternity, of maternity (paternity) or of unemployment, is not in conflict with Article 23, with the provision that each human being may freely choose a job or business of Paragraph 1 of Article 48, and with the provision that the state shall guarantee to citizens the right to receive an old age pension of Article 52 of the Constitution, and with the principle of a state under the rule of law which, according to the petitioner, is enshrined in the Preamble to the Constitution (petition No. 1B-48).

4. It needs to be held that in both mentioned petitions, the Constitutional Court is requested to investigate the compliance of the same provision—the provision “the state pension of judges shall not be granted and the granted pension shall not be paid, if: <…> (6) the person has the income from which state social pension insurance contributions are calculated and paid or if he receives state social insurance benefits of sickness (including those paid by the employer during the days of sickness), of maternity, of maternity (paternity) or of unemployment” of Article 4 (wording of 2 July 2002) of the Law with the Constitution.

5. The Vilnius Regional Administrative Court, the petitioner, requests an investigation into whether the impugned legal regulation is not in conflict, inter alia, with the principle of a state under the rule of law which, according to the petitioner, is enshrined in the Preamble to the Constitution (petition No. 1B-48).

The Constitutional Court has held in its acts more than once that the constitutional principles of justice and a state under the rule of law may not be construed as those entrenched only in the Preamble of the Constitution, nor identified only with the striving for an open, just and harmonious civil society and state under the rule of law proclaimed in the Preamble of the Constitution; the investigation into the compliance of legal acts (parts thereof) with the striving for an open, just and harmonious civil society and state under the rule of law proclaimed in the Preamble to the Constitution implies the investigation into their compliance with the constitutional principle of a state under the rule of law.

II

1. The provision of Article 4 (wording of 2 July 2002) of the Law which is impugned by the Vilnius Regional Administrative Court, the petitioner, is designed to regulate the relations linked with one of the social (material) guarantees of a judge—with the state pension of judges—and it enshrines one of the cases when the state pension of judges is not granted, and the granted one is not paid.

Thus, the investigation into the compliance of the impugned provision with the Constitution in the constitutional justice case at issue implies the fact that, on the one hand, it must be elucidated what requirements which stem from the Constitution must be heeded by regulating the pensionary relations by legal acts, and, on the other hand, it must be elucidated whether there are any requirements which stem from the constitutional status of the judge, which must be heeded by enshrining the social (material) guarantees of the judge (which should be applied when the term of office of the judge is over (or when the powers of the judge expired on other basis provided for in the Constitution)) in legal acts, and if such requirements arise, then what they are.

2. In the jurisprudence of the Constitutional Court, it has been held (and universally recognised) more than once that the official constitutional doctrine on any issue of the constitutional legal regulation, is formulated “case by case”, by supplementing the elements (fragments) of the said doctrine, revealed in the previous constitutional justice cases, adopted in the acts of the Constitutional Court with other elements, which are revealed in the acts of the Constitutional Court adopted in the new cases of constitutional justice; when the Constitutional Court considers new constitutional justice cases every time subsequent to the petitions of petitioners, the official constitutional doctrine formulated in the previous acts of the Constitutional Court (on every individual issue on the constitutional legal regulation, which is important to the corresponding case) is every time supplemented with new fragments; by formulating new official constitutional doctrinal provisions the diversity and completeness of the legal regulation entrenched in the Constitution—the supreme legal act—is revealed (the Constitutional Court’s rulings of 28 March 2006 and 9 May 2006; its decisions of 8 August 2006 and 21 November 2006; also, the Constitutional Court’s rulings of 30 May 2003, 1 July 2004, and 13 December 2004; its decision of 20 September 2005; its ruling of 14 March 2006).

3. In the context of the constitutional justice case at issue, it needs to be noted that the Constitutional Court has investigated more than once whether the legal acts (paragraphs thereof) which regulate the pensionary relations (including those of state pensions) are not in conflict with legal acts of higher legal force, inter alia (and, first of all), with the Constitution. The legal acts of the Constitutional Court adopted in the corresponding constitutional justice cases, as well as other acts of the Constitutional Court (inter alia, adopted in the constitutional justice cases, in which it was decided not only on the compliance of the legal acts which regulate the pensionary relations with legal acts of higher legal force, inter alia (and, first of all), with the Constitution, but the legal acts which regulate other relations of social security) (the Constitutional Court’s rulings of 12 March 1997, 3 December 1997, 18 December 1997, 6 May 1998, 10 February 2000, 30 October 2001, 23 April 2002, 19 June 2002, 25 November 2002, 4 July 2003, 3 December 2003, 30 January 2004, 5 March 2004, 13 December 2004, 7 February 2005, 22 December 2006, and 26 September 2007) have formulated a broad official constitutional doctrine of the socially oriented state and have revealed the content of the constitutional provisions designed for the pensionary welfare (and social security in general), inter alia, the fact what requirements which stem from the Constitution must be heeded by regulating the relations of state pensions (not only of judges) by legal acts.

In the context of the constitutional justice case at issue, it also needs to be noted that the Constitutional Court has also investigated more than once whether the legal acts (parts thereof) which enshrine the functioning of the judicial power and the status (inter alia, the powers, guarantees) of judges are not in conflict with legal acts of higher legal force, inter alia (and, first of all), with the Constitution. The acts of the Constitutional Court (the Constitutional Court’s rulings of 22 December 1994, 6 December 1995, 5 February 1999, 21 December 1999, its decision of 12 January 2000, its rulings of 12 July 2001, 28 March 2006, 9 May 2006, 6 June 2006, 27 November 2006, its decision of 8 August 2006, etc.) which were adopted in the corresponding constitutional justice cases have formulated a broad official constitutional doctrine of the judicial power which includes, inter alia, the provisions designed for the social (material) guarantees of judges.

In this context, it needs to be noted that, as the Constitutional Court held in its ruling of 12 July 2001, the Constitution does not provide that the Constitutional Court is permitted not to consider certain laws and other legal acts; the Constitutional Court must consider the compliance with the Constitution of all the legal acts pointed out in Paragraph 1 of Article 102 of the Constitution, thus including those whereby the social (material) guarantees of judges of the courts of the Republic of Lithuania, inter alia, the state pensions of judges are established. Such powers of the Constitutional Court stem from the Constitution and are related to its constitutional duty to ensure the supremacy of the Constitution in the legal system. The Constitutional Court also has such powers in the case where the impugned legal regulation is designed to consolidate the powers of the Constitutional Court itself, the procedure of cases at the Constitutional Court and the common elements (which are also typical for judges of other courts) and peculiarities (inter alia, powers, guarantees) of the status of justices of the Constitutional Court.

4. Thus, while deciding subsequent to the petitions of the Vilnius Regional Administrative Court, the petitioner, whether the provision “the state pension of judges shall not be granted and the granted pension shall not be paid, if: <…> (6) the person has the income from which state social pension insurance contributions are calculated and paid or if he receives state social insurance benefits of sickness (including those paid by the employer during the days of sickness), of maternity, of maternity (paternity) or of unemployment” of Article 4 (wording of 2 July 2002) of the Law is not in conflict with Article 23, with Paragraph 1 of Article 48 (the provision that each human being may freely choose a job or business), Article 52 (the provision that the state shall guarantee to citizens the right to receive an old age pension) of the Constitution, and with the constitutional principle of a state under the rule of law, one must also refer to the doctrinal provisions formulated in the Constitutional Court’s acts adopted in the previous constitutional justice cases, which describe the requirements which stem from the Constitution and which must be heeded while regulating the relations of the state pensions (not only the pensions of judges) by legal acts, as well as to the doctrinal provisions which have been formulated in the Constitutional Court’s acts adopted in the previous constitutional justice cases, which describe the social (material) guarantees of judges and which have been formulated in the Constitutional Court’s acts adopted in the previous constitutional justice cases.

5. It needs to be emphasised that the legal position of the Constitutional Court in the corresponding constitutional justice cases, without excluding the cases in which it is decided whether the legal acts (parts thereof) which regulate the relations of pensions (including the state pensions) are not in conflict with legal acts of higher legal force, inter alia (and, first of all), with the Constitution, and the cases in which it is decided whether the legal acts (parts thereof) which enshrine the functioning of the judicial power and the status (inter alia, the powers, guarantees) of judges are not in conflict with legal acts of higher legal force, inter alia (and, first of all), with the Constitution, has the significance of a precedent.

The Constitutional Court has held in its acts more than once that the principle of a state under the rule of law which is consolidated in the Constitution implies the continuity of jurisprudence. The continuity of jurisprudence must be ensured not only by the courts of general jurisdiction and specialised courts (established under Paragraph 2 of Article 111 of the Constitution), but also by the Constitutional Court (the Constitutional Court’s rulings of 28 March 2006 and 9 May 2006, its decisions of 8 August 2006 and 21 November 2006).

The concept of the provisions of the Constitution and further construction and development of the official constitutional doctrinal provisions formulated on the basis of the said provisions in the acts of the Constitutional Court adopted in new constitutional justice cases under certain circumstances may imply not only revelation of new aspects of the constitutional legal regulation necessary for the investigation of the said constitutional justice cases and supplement of the concept of the provisions of the Constitution provided in the acts of the Constitutional Court adopted in the previous constitutional justice cases with new elements (fragments), but also reinterpretation of the official constitutional doctrinal provisions formulated previously when the official constitutional doctrine is corrected. Such reinterpretation of the concept of the provisions of the Constitution and official constitutional doctrinal provisions when the official constitutional doctrine is corrected is an exclusive competence of the Constitutional Court. However, when no amendments to the Constitution are made, due to which it is necessary to reinterpret certain official constitutional doctrinal provisions so that the official constitutional doctrine would be corrected, this may be done only if the necessity to diverge from the existing precedent and to create a new one arises from the Constitution; in this field, the Constitutional Court is not completely free, it is bound by its own created precedents and formed official constitutional doctrine on which the said precedents are based. The creation of new court precedents and arguing (grounding) the court precedents may not be rationally legally unreasoned volitional acts; the Constitutional Court, referring to its already formed constitutional doctrine and precedents, must ensure the continuity of the constitutional jurisprudence (its consistency and non-discrepancy) and the predictability of its decisions. It may be possible to deviate from the Constitutional Court precedents created while adopting decisions in constitutional justice cases and new precedents may be created only in the cases when it is unavoidably and objectively necessary, constitutionally grounded and justified; likewise, the official constitutional doctrinal provisions on which the precedents of the Constitutional Court are based may not be reinterpreted so that the official constitutional doctrine would be corrected when it is not unavoidably and objectively necessary, constitutionally grounded and justified; any change of the precedents of the Constitutional Court or correction of the official constitutional doctrine may not be determined by accidental (in the aspect of law) factors (for instance, the correction of the official constitutional doctrine may not be determined only by a change in the composition of the Constitutional Court). The said necessity to reinterpret certain official constitutional doctrinal provisions so that the official constitutional doctrine would be corrected may be determined only by the circumstances as the necessity to increase possibilities for implementing the innate and acquired rights of persons and their legitimate interests, the necessity to better defend and protect the values enshrined in the Constitution, the need to create better conditions in order to reach the aims of the Lithuanian Nation declared in the Constitution on which the Constitution itself is based, the necessity to expand the possibilities of constitutional control in this country in order to guarantee constitutional justice and to ensure that no legal act (part thereof) which is in conflict with legal acts of higher legal force, would have the immunity from being removed from the legal system. In addition, it is impossible and constitutionally impermissible to reinterpret the official constitutional doctrine so that the official constitutional doctrine would be corrected, if by doing so the system of values entrenched in the Constitution is changed, the protection guarantees of the supremacy of the Constitution in the legal system are reduced, the concept of the Constitution as a single act and harmonious system is denied, the guarantees of rights and freedoms of the person entrenched in the Constitution are reduced and the model of the separation of powers enshrined in the Constitution is changed. Every case of such reinterpretation of the official constitutional doctrine when the official constitutional doctrine is corrected has to be properly (clearly and rationally) argued in the corresponding act of the Constitutional Court. However, under the Constitution, no development of the official constitutional doctrine—neither the supplement of the conception of the provisions of the Constitution provided in the acts of the Constitutional Court adopted in the previous constitutional justice cases with new elements (fragments) nor the reinterpretation of the official constitutional doctrinal provisions formulated previously when the official constitutional doctrine is corrected—may be or is the grounds for reviewing the rulings, conclusions or decisions or their argumentation (substantiation), which were adopted in the previous constitutional justice cases by which corresponding constitutional justice cases were finished (the Constitutional Court’s ruling of 28 March 2006, its decisions of 8 August 2006 and 21 November 2006).

It should be particularly emphasised that every case of such reinterpretation of the official constitutional doctrine when the official constitutional doctrine is corrected has to be properly (clearly and rationally) argued in the corresponding act of the Constitutional Court (the Constitutional Court’s ruling of 28 March 2006, its decisions of 8 August 2006 and 21 November 2006).

III

1. Article 52 of the Constitution prescribes that 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 law. This article of the Constitution establishes the grounds for pensionary maintenance and social assistance. In the Constitutional Court’s ruling of 3 December 2003, it was held that the legislature, while adopting laws concerning pensionary maintenance, is bound by the norms and principles of the Constitution. While deciding whether the legal acts (parts thereof) which regulate the relations of pensions (including the state pensions) are not in conflict with the legal acts of higher legal force, inter alia (and, first of all), with the Constitution, not only the fact is of essential significance that the constitutional right of a person to receive a pension is one of the most important social rights, but also the fact that certain requirements for the legislature and other law-making subjects stem from Article 52 of the Constitution (while construing it also in the context of other provisions of the Constitution), and if such requirement are disregarded, this may determine that the corresponding legal regulation may (and must) be ruled to be in conflict with the Constitution.

2. The said constitutional requirements are described, inter alia, by these provisions of the official constitutional doctrine (formulated, inter alia, in the constitutional justice cases, in which it was decided on the compliance of the legal acts (parts thereof) which regulate the relations of pensions and/or other relations of social security with legal acts of higher legal force, inter alia (and, first of all), with the Constitution). While implementing the constitutional principle of public solidarity and by helping a person to protect himself from the possible social risks and at the same time creating preconditions for every member of the society to take care of his own welfare (and not only to trust in the state social security), the legislature must establish the old age and disability pensions as well as social assistance in the event of unemployment, sickness, widowhood, loss of the breadwinner by law; in addition, other pensions or social assistance than those expressis verbis specified in Article 52 of the Constitution may be established by law. The grounds for pensionary maintenance, the persons who are granted and paid pensions, the conditions for granting and payment of pensions, as well as the sizes of the pensions are established only by law (in the case of the old age pension, the law must establish the age upon reaching which a person has the right to receive the old age pension, the grounds for granting and payment of this pension, its conditions and sizes, while in the case of the disability pension—what should be regarded as disability, as well as the grounds for granting and payment of this pension, its conditions and sizes); it is not permissible to establish the conditions of appearance of the right of the person to the pension by means of a substatutory act, as well as to limit or expand (in comparison with that established by law) the extent of this right. The provisions of Article 52 of the Constitution, which guarantee the right of the citizens to pensionary maintenance and social assistance, oblige the state to establish sufficient means for the implementation and legal protection of this right, thus, the law has not only to establish the types of pensions and social assistance which are specified in this article of the Constitution, but also to guarantee the appropriate implementation and legal protection of the right of a human being to receive a pension or social assistance. Thus, the legislature has the duty to establish such a legal regulation, which would guarantee the accumulation of means that are necessary for pensions and social assistance, as well as the payment of these pensions and the rendering of social assistance. That legal regulation has to create preconditions for distributing (taking account, inter alia, of the constitutional principle of solidarity and the constitutional imperatives of social harmony and justice) the corresponding burden which falls on the state among the members of the society. In the aspect of the compliance with the Constitution, one may not question the fact that in Lithuania such pensionary system is chosen, in which the funds collected from the obligatory state social insurance contributions are the main source of funding the pensionary system (and the payment of state social insurance contributions is related to the established minimum size of the insured income received by the person). On the other hand, the implementation of the duty to pay the state social insurance contributions should not become too much of a burden to the person and because of the fact that he implements this duty, the person should not become the one who needs social assistance; the fact how the person, while being able to work and economically active, contributed to the accumulation of the funds of the state social insurance, has to be significant for the size of his own old age pension of the state social insurance; a person, who by his contributions contributed to the accumulation of the funds of the state social insurance more, must have tangible benefit.

The state, while establishing by law that the persons who meet the conditions established by law acquire the right to a certain pension established in the law, at the same time undertakes the obligation to grant and pay such pension, thus, it must guarantee the corresponding pensionary maintenance for the specified persons on such grounds and of such sizes which are established in the law, while the persons who meet the conditions established by law have the right to require that the state implement the obligation undertaken by law, grant them the corresponding pension and pay the payments of the established size (by taking account of the reservation on the proportionate and temporary reduction of pensions (when it is necessary for the protection of constitutional values) in the event of an extraordinary situation in the state which is specified in the Constitutional Court’s rulings of 23 April 2002, 25 November 2002, 4 July 2003, 3 December 2003, and 26 September 2007); the legislature must establish such legal regulation which would ensure the payment of the corresponding pension to the persons who meet the conditions established by law. When the pension established by means of a law, which is not in conflict with the Constitution, is granted and paid, this right and legitimate expectation acquired by the person should also be linked to the protection of the rights of ownership of this person (the right to require to pay the payments of pensionary maintenance which are established under the Constitution and the laws which are not in conflict with the Constitution stems from Article 52 of the Constitution, while under Article 23 of the Constitution, the proprietary aspects of this right are defended).

3. In the context of the constitutional justice case at issue, in which, as it has been mentioned, one impugns the provision which is designed to regulate the relations linked to the state pension of judges, it needs to be emphasised that, under the Constitution, other pensions, which are not directly named in the Constitution, may be established by law; for example, the peculiarities of the constitutional institute of the state service determine, inter alia, the fact that the legislature has the constitutional powers by means of a law to establish the pensions and/or the kinds of social assistance which are granted only to the state servants or separate groups of state servants, the disregarding of which is objectively justified; the law may also establish the pensions for service to the State of Lithuania.

In this context, it needs to be mentioned that the pensions which are not directly named in the Constitution and which are called state pensions are established in the Republic of Lithuania’s Law on State Pensions (state pensions of the Republic of Lithuania of the first and second degree, state pensions of victims, state pensions of officials and servicemen, state pensions of scientists, state pensions of judges). It needs also to be mentioned that formerly the Law on State Pensions also established the state pension of the President of the Republic; at present, instead of the said pension, the Republic of Lithuania’s Law on the State Rent of the President establishes the state rent of the President of the Republic (as well as the rent of widows and orphans of the President of the Republic).

In some cases, state pensions (which, as it has been mentioned, are not directly named in the Constitution) are granted for a certain service, in other cases—for merits to the State of Lithuania or as compensation to victims. While establishing the persons who are granted and paid the state pension, the basis and conditions for granting and payment of the state pension, as well as the sizes of this pension, one must heed the constitutional imperative of social harmony and the principles of justice, reasonableness and proportionality; granting and payment of the state pension does not have to become a privilege. If the legislature, while establishing by law the grounds of such pensionary maintenance, the persons to whom such pensions are granted and paid, the grounds and conditions for granting and payment of these pensions, as well as the sizes of these pensions, disregarded the Constitution (for example, granted the state pensions to the persons who may not be granted such pensions, established groundlessly big or small sizes of such pensions or established groundless conditions of granting or payment of such pensions), such pensionary maintenance could not be protected under the Constitution. For example, while establishing the state pension of officials and servicemen, one may not establish the legal regulation, according to which the person would be able to retire unreasonably early, or an unreasonably short time period of service or work required in order to receive such pension would be established, or the size of the remuneration of the official or serviceman would not be taken into consideration while establishing the size of the granted pension, or the principles of justice, reasonableness and proportionality would be violated in some other way; without paying heed to the particularities of service of officials and servicemen, particular type of duties and other important circumstances, the granting and payment of such pension would become a privilege, thus, such pensionary maintenance could not be guaranteed according to the Constitution (the Constitutional Court’s rulings of 4 July 2003 and 13 December 2004). In addition, state pensions differ in their nature and character from state social insurance pensions and are paid from the state budget; thus, taking account of all significant circumstances and paying heed to the Constitution, one may establish by law the maximum size of such pensions, as well as consolidate various ways for the establishment of the maximum size of such pension. Certainly, the legislature, taking account of the Constitution, may also establish certain cases when the state pension is not granted to the person (under the conditions provided for in the law); one may, taking account of the Constitution, also establish by law the cases when the granted state pension is no longer paid. On the other hand, 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 to grant and pay the corresponding pension to the person who meets the conditions established by law and regarding the right of the said person to require that the state implement such obligation undertaken by law, is also effective. However, the Constitution does not prevent from reorganising the system of pensionary maintenance, inter alia, so that the pensions established by means of laws that are not directly specified in Article 52 of the Constitution would be eliminated; in such case, the legislature would be obligated to establish a just mechanism for compensation of the incurred losses to the persons who had been granted and paid such pensions as well as he would have to provide for a sufficient transition time period during which the persons who have a respective job or who perform respective service which entitles them to a respective pension (i.e. the state pension) under the previous regulation, would be able to prepare for these changes.

4. It has been mentioned that failure to pay heed to these provisions which stem from the Constitution may determine that the corresponding legal regulation may (and must) be ruled to be in conflict with the Constitution. It needs to be noted that one did not avoid such legal regulation of pensionary relations which was later ruled to be in conflict with the Constitution. In the corresponding constitutional justice cases, the legal position of the Constitutional Court (ratio decidendi) has the significance of a precedent.

4.1. For example, the Constitutional Court’s Ruling “On the Compliance of Article 5 of the Republic of Lithuania’s Law on State Social Insurance, Item 1 of Paragraph 2 of Article 8 of the Republic of Lithuania’s Law on State Social Insurance Pensions, and Item 1 of the Resolution of the Government of the Republic of Lithuania (No. 142) ‘On a Partial Amendment of the Resolution of the Government of the Republic of Lithuania (No. 266) “On Approving the Rules of the Forming of the Budget of the Republic of Lithuania’s State Social Insurance Fund and Its Implementation” of 20 February 1995’ of 26 January 1996 with the Constitution of the Republic of Lithuania” of 12 March 1997 recognised that the legal regulation which linked the right of the insured person to social maintenance with payment of the obligatory state contributions of social insurance pensions (in case of debts, the time period of accumulating of debts may be included into the aforesaid social insurance period only upon liquidation of such debts, even though the debts may have occurred due to inappropriate action or failure to act—inappropriate implementation of duties—of the employer or state social insurance establishments) and the provision of the Law on State Social Insurance Pensions that state social pension insurance period means that a person must be obligatory insured or insure himself by the state social pension insurance for a time period not less than that established by law were not in conflict with the Constitution.

4.2. The Constitutional Court’s Ruling “On the Compliance of Paragraph 4 of Article 11 of the Republic of Lithuania’s Law on State Pensions, Item 2 of Paragraph 3 of Article 8 of the Republic of Lithuania’s Law on the Legal Status of Victims of the Occupations of 1939–1990 with the Constitution of the Republic of Lithuania and on the Compliance of Items 9 and 12 of the List ‘The 1939–1990 Occupations Repressive Structures, Services and Positions for Serving in Which Persons Shall not be Awarded State Pensions for Victims’ as approved by the Resolution of the Government of the Republic of Lithuania (No. 829) ‘On the Approval of the List of the 1939–1990 Occupations Repressive Structures, Services and Positions for Serving in Which Persons Shall not be Awarded State Pensions for Victims’ of 3 July 1998 with the Constitution of the Republic of Lithuania and Paragraph 4 of Article 11 of the Republic of Lithuania’s Law on State Pensions” of 10 February 2000 recognised that such legal regulation established in the Law on State Pensions, under which state pensions for victims shall not be granted to individuals which during the corresponding period served or worked in the other institutions (structures) not indicated by law, and that the Government shall approve the list of the services and positions of the said institutions (structures) for serving in which persons shall not be granted state pensions for victims (thus, it is not approved by law) was in conflict with the Constitution.

4.3. The Constitutional Court’s Ruling “On the Compliance of Item 8 of the Regulations of the Granting and Payment of State Pensions to Officials and Servicemen of the Systems of the Interior, State Security, Defence and Prosecutor’s Office Approved by the Resolution of the Government of the Republic of Lithuania (No. 83) ‘On the Approval of the Regulations of the Granting and Payment of State Pensions to Officials and Servicemen of the Systems of the Interior, State Security, 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 with the Constitution of the Republic of Lithuania and Paragraph 4 of Article 16 of the Republic of Lithuania’s Law on Pensions of Officials and Servicemen of the Interior, State Security, Defence and Prosecutor’s Office” of 30 October 2001 recognised that such legal regulation established by the legal act of the Government, under which the Government established the powers for itself also to adopt decisions to equal (to include into the time of service) such actual time periods of service or learning on the grounds of which state pensions are granted to the officials or soldiers without having the powers to do that established in the law, was in conflict with the Constitution.

4.4. The Constitutional Court’s Ruling “On the Compliance of Paragraphs 1 and 2 of Article 7, Paragraph 6 and Item 2 of Paragraph 9 of Article 16 of the Republic of Lithuania’s Law on the State Pensions of Officials and Servicemen of the Interior, the Special Investigation Service, State Security, Defence and of the Prosecutor’s Office (Wording of 2 May 2000) with the Constitution of the Republic of Lithuania, and on the Compliance of Item 31.3 of the Regulations of the Granting and Payment of State Pensions to Officials and Servicemen of the Systems of the Interior, State Security, Defence and Prosecutor’s Office (Wording of 20 November 1998) as Approved by the Resolution of the Government of the Republic of Lithuania (No. 83) ‘On the Approval of the Regulations of the Granting and Payment of State Pensions to Officials and Servicemen of the Systems of the Interior, State Security, Defence and Prosecutor’s Office and the Establishment of the Time of Service Necessary in Order to Receive a Respective Percentage Additional Pay for the Years of Service’ of 20 January 1995 with Paragraph 1 of Article 7 of the Republic of Lithuania’s Law on the State Pensions of Officials and Servicemen of the Interior, the Special Investigation Service, State Security, Defence and of the Prosecutor’s Office (Wording of 2 May 2000)” of 23 April 2002 recognised that such legal regulation established by means of a legal act of the Government, under which, the size of the state pension of the officials and soldiers for service and the procedure of recalculation of this size were different from those established in the law, was in conflict with the Constitution; meanwhile, the corresponding provisions of the law, under which, the size of the state pension of the officials and soldiers for service, according to the petitioner of the said constitutional case at issue, the Higher Administrative Court, depended on the time of retirement of the person (prior to or after the law came into force), were recognised as not violating the constitutional principle of equality of all persons before the law, because while establishing such legal regulation, the legislature took account of the changed social, legal, economic and other conditions (the implemented reforms of the institutions of law and order, the changed monetary unit of this country etc.), as well as took into consideration the fact that the post which the official or soldier used to hold might have been changed, abolished etc.

4.5. The Constitutional Court’s Ruling “On the Compliance of the Republic of Lithuania’s Law on the Amendment and Supplementation of Articles 7, 11, 15 of the Law on State Pensions, Paragraphs 1 and 4 of Article 7 of the Republic of Lithuania’s Law on State Pensions and Paragraph 2 of Article 20 of the Law on the President of the Republic of Lithuania with the Constitution of the Republic of Lithuania” of 19 June 2002 recognised that the legal regulation established by law which linked the establishment (granting and payment) of the pension of the President of the Republic to the former President of the Republic with the retirement of the former President of the Republic from the state service (this pension could be established (granted and paid) to the former President of the Republic only if he is not included in any other state service) and thus denied the constitutional-social guarantee for the President of the Republic as the Head of State to receive the pension of the President of the Republic upon the expiry of the powers of the President of the Republic as well as the exceptional constitutional status of the President of the Republic as the Head of State, was in conflict with the Constitution. On the other hand, it was held in the said ruling of the Constitutional Court that the legislature may, without violating the Constitution, establish the financing of a former President of the Republic while taking account of the constitutional grounds upon which the powers of the President of the Republic were terminated and whether the same person was re-elected or newly elected President of the Republic; under the Constitution, the legislature has a duty to establish such a size of this pension, such conditions of its granting and payment which would be in line with the dignity of the President of the Republic as the Head of State and his individual, exceptional legal status.

4.6. The Constitutional Court’s Ruling “On the Compliance of Paragraph 2 of Article 69 of the Republic of Lithuania’s Law on the Diplomatic Service, Item 9 of Paragraph 1 of Article 4 (wording of 16 March 2000) of the Republic of Lithuania’s Law on State Social Insurance and Item 5 of Paragraph 1 of Article 2 (wording of 16 December 1999) and Article 23 (wordings of 21 December 1994, 21 December 2000 and 8 May 2001) of the Republic of Lithuania’s Law on State Social Insurance Pensions with the Constitution of the Republic of Lithuania” of 25 November 2002 recognised that the legal regulation established by law which does not permit the persons, who have the obligatory state social pension insurance period and who have the insured income, to receive the full granted old age pension, was in conflict with the Constitution. Such legal regulation not only violated the right of the old age pensioners of state social insurance to receive pension, but also the right to choose a job or business, as well as the right of ownership.

4.7. The Constitutional Court’s Ruling “On the Compliance of Paragraph 2 of Article 11 (Wording of 21 December 2000) and Paragraph 3 of Article 13 of the Republic of Lithuania’s 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 of the Establishments and State Enterprises Which are Subordinate to the Latter with the Constitution of the Republic of Lithuania, also on the Compliance of Section 2 of Item 25 (Wording of 25 May 2001) of the Regulations for the Granting and Payment of 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 of the Establishments and State Enterprises Which are Subordinate to the Latter as Approved by the 20 January 1995 Resolution (No. 83) of the Government of the Republic of Lithuania with the Constitution of the Republic of Lithuania and on the Compliance of Item 5 of the Said Regulations with Paragraph 4 of Article 16 of the Republic of Lithuania’s 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 of the Establishments and State Enterprises Which are Subordinate to the Latter” of 4 July 2003 recognised that the provision of the Law on the State Pensions of Officials and Servicemen of the Interior, the Special Investigation Service, State Security, National Defense, the Prosecutor’s Office, the Department of Prisons and of the Establishments and State Enterprises Which are Subordinate to the Latter, whereby the retired officials and servicemen who, after granting of state pensions of officials or servicemen for the service or disability pensions of officials or servicemen, receive the income from which contributions of state social pension insurance are calculated and paid, or who receive sickness (including those paid by the employer for the days of sickness), maternity, maternity (paternity) or unemployment benefits of the state social insurance, shall receive the part of the state pension of officials or servicemen which amounts to 30 percent of the pension, were in conflict with the Constitution (violating, inter alia, the right of a person to receive a pension, the right to choose a job or business and the right of ownership) (it also recognised that the analogous legal regulation (which particularised this provision) established by means of a legal act of the Government was in conflict with the Constitution). The provision of the said law that the granted state pension of officials and servicemen shall not be further paid to persons convicted for commission of intentional crimes was also ruled to be in conflict with the Constitution (as this provision meant that the person to whom the state pensions of officials and servicemen is granted and paid and who has already been punished by the court for conviction of intentional crime, is punished for the same crime for the second time by applying to him the sanction of property nature which, according to its strictness, was likened to criminal punishment). Also the legal regulation of calculation of the time of service necessary in order to receive a respective percentage extra pay for the years of service established by the legal act of the Government was ruled to be in conflict with the Constitution, since by means of the said regulation, the Government narrowed the circle of persons who have the right to such percentage extra pay (in comparison with the circle of persons established in the law).

4.8. The Constitutional Court’s Ruling “On the Compliance of the Provisions of the Republic of Lithuania’s Law on State Social Insurance Pensions, the Republic of Lithuania’s Law on State Pensions, and the Republic of Lithuania’s Law ‘On the Amendment and Supplement of the Republic of Lithuania’s Law on State Social Insurance Pensions’ with the Constitution of the Republic of Lithuania, as well as on the Compliance of Item 84 of the Regulations of the Granting and Payment of State Social Insurance Pensions as Approved by the 18 November 1994 Resolution (No. 1156) of the Government of the Republic of Lithuania with the Constitution of the Republic of Lithuania and Paragraph 4 (Wording of 18 July 1994) of Article 45 of the Republic of Lithuania’s Law on State Social Insurance Pensions” of 3 December 2003 recognised that the provision of the Law on the State Social Insurance Pensions, whereby the persons who had reached the age entitling to an old age pension and older disabled who, after granting of a state social insurance disability pension, received income from which the obligatory state social pension insurance contributions were calculated and paid, or who received state social insurance sickness benefits (including those paid by the employer for the days of sickness), motherhood, motherhood (fatherhood) or unemployment benefits, if they had the obligatory state social pension insurance period entitling to a disability pension, should be paid the basic part of the granted state social insurance disability pension, but not the whole granted and previously paid state social insurance disability pension, as well as the part “prior to entry into force of this law” of the provision that a service time pension shall be recalculated into a state social insurance old age pension only if its recipient had reached the age entitling to an old age pension established by this law prior to the entry into force of this law, was in conflict with the Constitution. However, the legal regulation established in the Law on State Pensions, under which, the size of the state pension of officials and servicemen together with state social insurance pension granted to the same person may not exceed a certain maximum amount (namely 1.5 amount of the statistical average monthly salary in the economy of the country, which is paid in the quarter before last that precedes the month when state pension is paid as published by the Department of Statistics at the Government of the Republic of Lithuania) was ruled to be not in conflict with the Constitution. However, the legal regulation established in the said law which limited the size of the granted and paid state pension together with the state social insurance pension (in comparison with the one which had been established by the prior legal regulation) was ruled to be in conflict with the Constitution (as violating the right of a person to receive a pension, the right of ownership). The legal regulation established by the legal act of the Government, whereby an additional condition was introduced which had not been established in the law, i.e. a service time pension had to be recalculated as a state social insurance old age pension only if the persons had reached the age entitling to an old age pension prior to granting of this pension but not later than before a certain date (1 January 1995) (upon establishing such a condition, the Government narrowed the circle of persons to whom a service time pension shall be recalculated into a state social insurance old age pension), was ruled to be in conflict with the Constitution. In addition, the legal regulation established in the Law on the State Social Insurance Pensions which related the right of persons to receive a state social insurance old age pension with the necessity to have the minimal obligatory state social pension insurance period established by law in order to receive an old age pension (they had to be obligatory insured or to insure themselves by the state social pension insurance for a time period established by this law) was ruled to be not in conflict with the Constitution. The legal regulation established in the said law which enshrined the rule of recalculation of the state social insurance old age pension, under which the previously granted state social insurance old age pensions are recalculated by applying the coefficient of the insured income of a person which is not bigger than 5, but at the same time it left valid the previously established rule of non-reduction of recalculated pension, under which, a person, to whom the pension was recalculated applying the coefficient not bigger than 5 of the insured income, may not be paid a smaller pension comparing to the size of a pension which had been granted and paid before the entry into force of the Law, was ruled to be not in conflict with the Constitution.

5. The legal position of the Constitutional Court which is enshrined in the discussed jurisprudence of the Constitutional Court, in the constitutional justice cases in which it is decided whether the legal acts (parts thereof) regulating the pension relations (including state pensions) are not in conflict with the legal acts of higher legal force, inter alia (and, first of all), with the Constitution, is also linked with other provisions of the Constitution, inter alia, with the constitutional concept of human rights (economic, social, cultural, civil and political, as well as personal rights) and their protection, including judicial protection. In addition, as the Constitutional Court has held in its acts more than once, the Constitution protects and defends the acquired rights as well. Social rights are not only the social obligations of the state of the program nature, but also the individual rights, judicial defence whereof is guaranteed for the persons also in the cases when incomprehensiveness, insufficient certainty, and lack of legal clarity of the legal regulation should be regarded as a legal gap. The official constitutional doctrine of human rights is also based on the principle provision that under the Constitution, one may not establish any such legal regulation whereby a person, while implementing one constitutional right, would lose the possibility of implementing another constitutional right (the Constitutional Court’s rulings of 30 June 2000, 25 November 2002 and 4 July 2003). Thus, under the Constitution, it is not permitted to establish any such legal regulation under which an opportunity for the person, who has been granted and paid the old age pension, would be restricted, due to this, to freely choose an occupation and business, although he meets the conditions provided for by law so that he would have a certain occupation or conduct certain business; the legal regulation under which the person cannot freely choose an occupation and business due to the fact that upon the implementation of this right he would not be paid the granted old age pension or part thereof which was paid until then, must also be regarded as a restriction on the opportunity to freely choose an occupation or business. This provision should be applied mutatis mutandis to other kinds of pensions, inter alia, the state pensions provided for in the Law on State Pensions.

6. It needs also to be emphasised that the social orientation of the State of Lithuania which is consolidated in the Constitution obliges the state to pay heed to the guarantees of pensions (inter alia, state pensions) and other social (material) guarantees which, by the way, stem not only from Article 52 of the Constitution, but also from other provisions of the Constitution, or, for example, from Paragraph 2 of Article 30, Articles 38, 39, 41, 48, Paragraph 1 of Article 51 and Article 146 thereof, the imperative of reality, thus, it obliges to revise once established (and applied) social (material) guarantees, in particular if they are linked with certain periodic payments (such as pensions), to revise (increase their sizes) in particular if economic or social situation undergoes such changes so that the said established (and applied) guarantees depreciate a lot, moreover, if they become nominal in general (in this case, one must also have in mind the reservation regarding the proportionality and temporary reduction of the payments when it is necessary for the protection of other constitutional values which is specified in this and other rulings of the Constitutional Court).

IV

1. In the context of the constitutional justice case at issue, in which, as mentioned before, one impugns the provision which is designed to regulate the relations linked with the state pension of judges, one needs to take account also of the official constitutional doctrine of judicial power, which, inter alia, includes the provisions designed for the social (material) guarantees of judges.

2. Paragraph 1 of Article 30 of the Constitution provides that the person whose constitutional rights or freedoms are violated shall have the right to apply to court. Article 109 of the Constitution, inter alia, provides that in the Republic of Lithuania, justice shall be administered only by courts (Paragraph 1); that while administering justice, the judge and courts shall be independent (Paragraph 2); and that when considering cases, judges shall obey only the law (Paragraph 3). Paragraph 1 of Article 102 of the Constitution provides that the Constitutional Court shall decide whether the laws and other acts of the Seimas are not in conflict with the Constitution and whether the acts of the President of the Republic and the Government are not in conflict with the Constitution or laws, Paragraph 1 of Article 104 thereof provides that while in office, justices of the Constitutional Court shall be independent of any other state institution, person or organisation, and shall follow only the Constitution of the Republic of Lithuania. Under Paragraph 1 of Article 5 of the Constitution, the judiciary shall execute the state power—judicial power—which is a fully-fledged state power. The Court is the only one from the state powers which is formed not on the political, but on the professional basis (the Constitutional Court’s rulings of 21 December 1999, 12 July 2001, its conclusion of 31 March 2004, its rulings of 28 March 2006, 9 May 2006, 6 June 2006, and its decision of 8 August 2006).

The courts that under the Constitution implement judicial power in Lithuania should be classed as belonging not to one, but to two or more (if that, while heeding the Constitution, is established in certain laws) systems of the courts. Under the Constitution and laws, at present in Lithuania there are three systems of courts: (1) the Constitutional Court executes constitutional judicial control (in addition to other provisions of the Constitution (including those which are designed for judicial power and judges in general) a separate chapter (VIII) of the Constitution is designated to the Constitutional Court); (2) the Supreme Court of Lithuania, the Court of Appeal of Lithuania, regional courts and local courts, specified in Paragraph 1 of Article 111 of the Constitution, constitute the system of courts of general jurisdiction; (3) under Paragraph 2 of Article 111 of the Constitution, for the consideration of administrative, labour, family and cases of other categories, specialised courts may be established; one system of specialised courts, namely, administrative courts, which is composed of the Supreme Administrative Court of Lithuania and regional administrative courts, is established and is functioning at present (the Constitutional Court’s rulings of 13 December 2004, 16 January 2006, 28 March 2006, 9 May 2006, 6 June 2006, and 27 November 2006).

3. The function of administration of justice determines an exceptional constitutional status of the judge which is revealed by various constitutional provisions that consolidate not only independence of judges and courts while administrating justice (Paragraph 2 of Article 109 of the Constitution), but also the non-possibility for the judge to hold any other elective or appointive office, to work in any business, commercial, or other private establishments or enterprises, to receive any remuneration other than the remuneration established for the judge and payment for educational or creative activities; to take part in the activities of political parties and other political organisations (Article 113 of the Constitution), the prohibition on interfering with the activity of the judge and the inviolability of the person of the judge (Article 114 of the Constitution), etc. Under Article 104 of the Constitution, the limitations on work and political activities which are established for court judges shall apply also to justices of the Constitutional Court (Paragraph 3), justices of the Constitutional Court shall have the same rights concerning the inviolability of their person as shall members of the Seimas (Paragraph 4).

4. It needs to be emphasised that independence of courts and the judge is an inseparable element of the constitutional status of the judge. In its acts the Constitutional Court has formulated a broad official constitutional doctrine of independence of the judge and courts in which the constitutional imperative of independence of the judge and courts is construed in the context of the constitutional principle of a state under the rule of law (which, as the Constitutional Court has held in its acts more than once, integrates various values consolidated in and protected and defended by the Constitution, and upon which the entire legal system of Lithuania and the Constitution itself are based). The independence of the judge and courts is not an end in itself, but one of the essential principles of a democratic state under the rule of law and a necessary condition of protection of human rights and freedoms. While administering justice, the courts must ensure the implementation of law which is expressed in the Constitution and the laws and legal acts which are not in conflict with the Constitution.

The independence of the judge and courts is indivisible (the Constitutional Court’s ruling of 21 December 1999). One of the important aspects of the independence of the judge entrenched in the Constitution is that while administering justice all judges have equal legal status in the aspect that no different guarantees of independence of the judge while administering justice (deciding cases) may be established. While administering justice, no judge is, nor may be subordinate to any other judge or to the President of any court (inter alia, of the court where he works or of the court of higher level); on the other hand, the principle of the equal legal status of judges does not mean that the material and social guarantees of judges may not be differentiated under clear, ex ante known criteria, which are not related to the implementation of justice while deciding cases (for example, under the term of a person’s position as a judge) (the Constitutional Court’s ruling of 9 May 2006 and its decision of 8 August 2006). The principle of the equal legal status of judges which stems from the Constitution may also not be construed as not permitting an additional payment for the judges—the heads of courts (their deputies, heads of divisions, etc.) who discharge additional functions for the carried out organisational work: supplementary work must be paid for additionally.

In the jurisprudence of the Constitutional Court it is also emphasised that the independence of the judge or courts is not a privilege, but one of the most important obligations of judges and courts, which stems from the right of a person, who thinks that his rights or freedoms guaranteed in the Constitution are violated, to an independent and impartial arbiter of the dispute who would solve the emerged legal dispute under the Constitution and laws in essence (the Constitutional Court’s rulings of 6 December 1995, 21 December 1999, 12 July 2001, and 9 May 2006). The independence of the judge is ensured, inter alia, by consolidating self-governance of the judiciary, meaning that the judiciary is fully-fledged, and its financial and technical provision, inviolability of the term of office of the judge (whereby one seeks to ensure that the judge, irrespective of the political forces in power, would remain independent and would not be forced to adjust according to the possible changes of political forces), and the inviolability of the person of the judge, by establishing the social (material) guarantees of the judge.

5. In this context of the social (material) guarantees of the judge, it should be noted that as the Constitutional Court held in its ruling of 12 July 2001, the judge, who is obligated to consider conflicts arising in society, as well as those between a person and the state, must be not only highly professionally qualified and of impeccable reputation but also materially independent and feel secure as to his future. The constitutional imperative of the protection of judges’ salaries and other social guarantees arises from the principle of independence of judges and courts established in the Constitution (inter alia, Article 109 thereof). By this principle one attempts to protect the judges administering justice from any influence of the legislative power and the executive, as well as from that of other state establishments and officials, political and public organisations, commercial economic structures, and other legal and natural persons. In its ruling of 12 July 2001, the Constitutional Court also noted that the state has a duty to establish such salaries for judges which would be in conformity with the status of the judiciary and judges, with the functions exercised by them and their responsibility.

The social (material) guarantees of the principle of independence of the judge which stem from the Constitution (which are actually consolidated in law of other democratic states, as well as in various international acts) mean that the state has the duty to ensure such social (material) maintenance for the judge which would comply with his status while being in office as well as upon the expiry of his term of office, i.e. the term of powers (the Constitutional Court’s ruling of 21 December 1999). Under the Constitution, the material and social guarantees established to judges, must be such so that they would be in line with the constitutional status of the judge and his dignity (the Constitutional Court’s decision of 8 August 2006).

Thus, it should be held that the legislature must establish such legal regulation which would ensure independence of judges and courts, inter alia, the social (material) guarantees of the judge not only when he is in office, but also upon the expiry of his powers. While doing so, the legislature must heed the norms and principles of the Constitution. When the powers of the judge are over, the social (material) guarantees of the judge may be varied ones, inter alia, the payments paid periodically, as well as one-off payments, etc. The constitutional base of establishment of such guarantees is the exceptional constitutional status of the judge which is determined by the function of administration of justice, therefore, they may only depend upon the circumstances which are linked with the constitutional status of the judge, but they may not be considered as replacing other social (material) guarantees which must be ensured to the former judge on a different basis, including those which are common to all the working persons. It needs also to be emphasised that the social (material) guarantees of the judge, upon the expiry of his powers, must be real and not only nominal.

6. It needs to be noted that, as it has been held in this ruling of the Constitutional Court, one also may, by means of a law and heeding the Constitution, establish certain cases when the state pension is not granted to the person (under the conditions provided for in the law) and/or when the granted state pension is no longer paid.

Thus, if the legislature enshrines such social (material) guarantee of the judge upon the expiry of his powers of the judge as the pension of the judge, he, heeding the Constitution, may also establish the cases when the pension of the judge (which is related to the constitutional status of the judge) is not granted to the former judge and/or when the granted state pension of judges is no longer paid for the former judge.

It needs to be noted in particular that all such cases must be grounded on the Constitution; while establishing, by means of a law, cases when the pension of the judge is not granted to the former judge, one must take account, inter alia, of the grounds of expiry of the constitutional powers of the judge. Otherwise, one would disregard the constitutional principle of independence of the judge and courts which implies the social (material) guarantees of the judge upon the expiry of his powers, and Article 109 of the Constitution would be violated.

Article 109 of the Constitution would be equally violated if one could not constitutionally reason why the former judge is no longer paid the granted state pension of judges.

7. In the context of the constitutional justice case at issue, in which, as it has been mentioned, one impugns the provision which is designed to regulate the relations linked to the state pension of judges, it needs to be noted that if the legislature enshrines such social (material) guarantee of the judge upon the expiry of his powers, as the pension of the judge, this guarantee is defended not only under Article 109 of the Constitution, but also under Article 52 of the Constitution.

8. It needs to be noted that under Paragraph 4 of Article 111 of the Constitution, the formation and competence of courts shall be established by the Law on Courts. Thus, the Constitution not only obliges the legislature to establish by law the establishment and competence of all the courts of the Republic of Lithuania (thus, also the status, formation, execution of powers (activity) and the guarantees for the courts of general jurisdiction, the status of the judges of these courts, etc.) specified in Paragraph 1 of Article 111 of the Constitution, but also expressis verbis consolidates the title of this law—the Law on Courts; such constitutional legal regulation does not mean in itself that certain relations related to the said relations may not be regulated by other laws as well (the Constitutional Court’s rulings of 28 March 2006 and 9 May 2006, its decision of 8 August 2006). This imperative of the legal regulation regarding the legal regulation of courts of general jurisdiction, which arises from the Constitution, should also be applied mutatis mutandis to the legal regulation regarding the legal regulation of specialised courts established under Paragraph 2 of Article 111 of the Constitution (the Constitutional Court’s ruling of 28 March 2006 and its decision of 8 August 2006). Because of the fact that judges, in view of their office, may not be classed as state servants (or functionaries) (inter alia, due to the fact that it is not permitted to demand that they implement a certain policy) (the Constitutional Court’s rulings of 6 December 1995, 21 December 1999, and 9 May 2006, and its decision of 8 August 2006), the legal regulation whereby the relations of remuneration of judges of all courts specified in Paragraph 1 of Article 111 of the Constitution and of the specialised courts established under Paragraph 2 of Article 111 of the Constitution would be established precisely in the Law on Courts (which, as mentioned before, is expressis verbis specified in Paragraph 4 of Article 111 of the Constitution) would be in compliance with the Constitution; on the basis of the arguments analogous to those that the relations of remuneration of judges of all courts specified in Paragraph 1 of Article 111 of the Constitution and of the specialised courts established under Paragraph 2 of Article 111 of the Constitution should be established precisely in the Law on Courts, the relations of remuneration of justices of the Constitutional Court should be regulated in the Law on the Constitutional Court (which, under Paragraph 2 of Article 102 of the Constitution, establishes the status of the Constitutional Court and the procedure for the execution of its powers) (the Constitutional Court’s decision of 8 August 2006).

These provisions should also be applied mutatis mutandis to other social (material) guarantees of judges.

9. It needs to be noted that the Constitutional Court has considered constitutional justice cases in which it was impugned whether the provisions of the laws and legal acts of the Government which are designed for certain social (material) guarantees of judges, precisely the remuneration of judges, were not in conflict with the Constitution. The requirements for the legal regulation of the relations concerning the remuneration of judges which stem from the Constitution (the provisions of the official constitutional doctrine which, while construing the Constitution, were formulated in the acts of the Constitutional Court which were adopted in the corresponding constitutional justice cases) are mutatis mutandis to be applied also to other social (material) guarantees of judges which are determined by the constitutional principle of independence of the judge and courts.

9.1. The constitutional notion “remuneration of judges” includes all the payments paid for the judge from the state budget (the Constitutional Court’s decisions of 12 January 2000 and 8 August 2006). In this context, it needs to be noted that under Paragraph 1 of Article 113 of the Constitution, salaries received by judges are referred to by the notion "remuneration of judges", however, in other legal acts (inter alia, those which were impugned in the constitutional justice cases considered at the Constitutional Court), by comparing judges with state politicians and other state officials, a different notion is employed—"remuneration for work of judges"; such an imprecise use of the notion in the law may be treated as one of the preconditions for denying the specific character and protection of salaries of judges enshrined in the Constitution; the legislature is obligated in the law to refer to the remuneration received by judges by employing the notion "remuneration of judges" pointed out in the Constitution (the Constitutional Court’s rulings of 12 July 2001 and 28 March 2006, its decision of 8 August 2006).

9.2. Under the Constitution, the remuneration of judges must be established by means of a law, their sizes, as well as the material and social guarantees established to judges must be such so that they would be in line with the constitutional status of the judge and his dignity (the Constitutional Court’s decision of 8 August 2006). The Constitution prohibits the reduction of remuneration and other social guarantees of judges; any attempts to reduce the remuneration of the judge or his other social guarantees, or a limitation on financing of courts are treated as encroachment upon the independence of judges and courts (the Constitutional Court’s rulings of 6 December 1995 and 21 December 1999, decision of 12 January 2000, rulings of 12 July 2001 and 28 March 2006, decision of 8 August 2006). As every person, a judge has the right to defend his rights, legitimate interests and legitimate expectations (the Constitutional Court’s ruling of 12 July 2001).

On the other hand, when the economic and financial situation of the country deteriorates considerably, when due to particular circumstances (economic crisis, natural disasters, etc.), an extremely difficult economic and financial situation has occurred in the state, due to objective reasons, there may be not enough funds in order to implement the functions of the state and to satisfy the public interests, thus, also to ensure the material and financial needs of courts. Under such circumstances, the legislature may change the legal regulation which establishes the salaries to various persons, and to consolidate the legal regulation on the salaries which would be less favourable to these persons, if it is necessary in order to ensure the vital interests of society and the state and to protect other constitutional values. However, also in such cases the legislature must keep the balance between the rights and legitimate interests of the persons, to whom the less favourable legal regulation is established and the interests of society and the state, i.e. to pay heed to the requirements of the principle of proportionality. In addition, in case of a difficult economic and financial situation, usually the financing from the budget to all the institutions which implement state powers, as well as the financing of various spheres which are financed from the resources of the budgets of the state and municipalities, should be revised and reduced. If one established a certain legal regulation, whereby in case of considerable deterioration of the economic and financial situation of this country it would not be permitted to reduce the financing of courts only, nor to reduce the remuneration of judges only, it would mean that courts are groundlessly singled out from among other institutions which implement the state power, and the judges—from among other persons, which participate in implementing the powers of corresponding state institutions. Such consolidation of the exceptional situation of courts (judges) would not be in line with the requirements of an open, fair and harmonious civil society and the imperatives of justice. It is possible to worsen the financial and material conditions for the functioning of courts and to reduce the remuneration of judges only by law and it is possible to do so only temporarily, for the period of time when the economic and financial condition of the state is extremely difficult; by such reduction of the remuneration no conditions should be created for other state power institutions and their officials to violate the independence of courts. Even in the case of the extremely difficult economic and financial situation of the state, neither the financing of courts, nor remuneration of judges may be reduced to the extent that the courts would not be able to implement their constitutional function and obligation—to administer justice—or the possibility of the courts to do that would be restricted (the Constitutional Court’s ruling of 28 March 2006).

10. It has been mentioned that one of the important aspects of the independence of the judge entrenched in the Constitution is that while administering justice all judges have equal legal status in the aspect that no different guarantees of independence of the judge while administering justice (deciding cases) may be established, however, the principle of the equal legal status of judges does not mean that the material and social guarantees of judges may not be differentiated under clear, ex ante known criteria, which are not related to the administration of justice while deciding cases (for example, under the term of the person’s position as a judge).

The equal status of judges while administering justice which stems from the Constitution should be construed while taking account of the fact that under the Constitution, the system of courts of general jurisdiction, as a system of institutions, is comprised of four-level courts: the first (lowest) level—local courts, the second level—regional courts, the third level—the Court of Appeal of Lithuania, the fourth (highest) level—the Supreme Court of Lithuania. The legislature, while heeding the Constitution, has the discretion to establish as many local and regional courts as it deems necessary, and to establish such a quantitative composition, which, in its opinion, is necessary in order to administer justice properly and in time, as well as to determine such territorial boundaries of the activity of corresponding local and regional courts, which, in his opinion, are necessary in order to administer justice properly and in time (the Constitutional Court’s ruling of 28 March 2006). This provision is also applicable to the specialised courts established under Paragraph 2 of Article 111 of the Constitution. Moreover, while construing the equal status of judges while administering justice which stems from the Constitution, one must take account of the fact that, under the Constitution, courts are classed as belonging not to one, but to two or more (if that, while heeding the Constitution, is established in corresponding laws) systems of courts (as mentioned before, there are three systems of courts at present).

The classification of courts by which courts belong not to one but to several (at the moment—three) systems of courts which arises from the Constitution, as well as division of the system of the courts of general jurisdiction and specialised courts established under Paragraph 2 of Article 111 of the Constitution into levels, implies that the legislature has the powers to differentiate the social (material) guarantees of judges (remunerations, as well as guarantees which are established (applied) to the judges upon the expiry of their powers). It has been mentioned that the judiciary is formed on the professional basis. It is universally recognised (not only in Lithuania) that the dominant principle of formation of the corps of judges of courts of higher level is the principle of professional career of judges, when the judges are promoted after they have been released from previous office and appointed as judges of courts of higher level (even though it may not be made absolute so that one would not create preconditions for the system of courts to become too closed, to become subjected to the routine, etc.) (the Constitutional Court’s ruling of 9 May 2006). The professional career of judges is inseparably related to the institute of promotion of judges which is consolidated in Paragraph 4 of Article 112 of the Constitution. While deciding on the promotion of judges, one assesses, inter alia, their qualification—professional preparation (the Constitutional Court’s ruling of 9 May 2006). Thus, the implementation of the principle of the professional career of judges (as mentioned before, without making it absolute) is one of the conditions enabling one to ensure that the persons the professional qualification of whom are of as high professional qualification as possible, would be appointed as judges of courts of higher levels, thus, also to ensure that justice would be implemented in the way it is provided for by the Constitution, that the human rights and freedoms, other constitutional values would be protected and defended properly, and that the law expressed in the Constitution, the laws and other legal acts which are not in conflict with the Constitution would be implemented. Thus, judges must have material incentives to seek the professional career. Thus, the legislature not only may but also must differentiate social (material) guarantees of judges according to the fact where in establishing such guarantees account is taken of the court system and the court level where the judge works; the constitutional concept of the judiciary, as the state power formed on the professional basis, implies, inter alia, that if the remunerations of the judges of courts of different levels, as well as the guarantees which are established (applied) for the judges upon the expiry of their powers would be made totally equal, one would not only disregard that, under the Constitution, courts are classed as belonging not to one, but to several (at the moment—three) systems of courts, in addition, that the system of courts of general jurisdiction, as a system of institutions, is comprised of four-level courts, and that the specialised courts (at present—administrative courts) established under Paragraph 2 of Article 111 of the Constitution may also be divided into levels, but also there would be no material incentives (even if there were other incentives) for the judges to seek the professional career.

The principle of the equal legal status of judges which stems from the Constitution implies that the judges of the same system of courts and the judges of the courts of the same level are equal not only according to their powers while administering justice (deciding cases) and their non-subordination to any other judge or president of any court (inter alia, the court in which they work, as well as of the court of higher level or instance), the responsibility and immunities, restrictions on their activities and the limitation on their remuneration provided for in Article 113 of the Constitution, but also according to the fact that equal amount of their work must be ensured; thus, the judges of the same system of courts and the judges of the courts of the same level must be paid for the corresponding work correspondingly, without discriminating any of them and without applying privileges to any of them, and the corresponding social (material) guarantees—non-discriminatory and not to be equated to privileges—must be established for them.

It needs also to be noted that, as it has been mentioned, the social (material) guarantees of judges may be differentiated (while heeding the Constitution) under the criteria, which are not related to the administration of justice while deciding cases, for example, under the duration of a person’s position as a judge. However, this does not at all mean that the criterion of the duration of a person’s position as a judge may be replaced by other, essentially different criterion: for example, if the laws establish a certain calendar date (naming it directly, or relating to any legal fact, such as, for example, the entry into force of any legal act) and if the person begins to work as a judge from that date or his powers expire, certain social (material) guarantees which are established (applied) to him would be different from those which are established (applied) to other judges of courts of the same system and of the courts of the same level (of the courts of general jurisdiction and specialised courts established under Paragraph 2 of Article 111 of the Constitution). Thus, one may not differentiate (also by applying law) the remunerations of the judges of the courts of the same system and of the same level according to the fact when the remunerations of certain sizes of judges were established (inter alia, according to the fact, whether the person began to work as a judge of the corresponding court before establishing the remuneration of a certain size of the judge of that court, or afterwards). Thus, under the Constitution, one may not establish such legal regulation (neither common, nor individual) that with regard to the persons who are appointed as judges of a certain court a different (smaller or bigger) remuneration would be established than that of the judges who already work in the said court; if such practice of the application of law came into being, one could not ground it constitutionally.

The provision that, as it has been mentioned, the social (material) guarantees of judges may be differentiated (heeding the Constitution) under the duration of a person's position as judge may not be construed as meaning that, purportedly, the criterion of the duration of a person’s position as a judge is the only criterion of the said differentiation. In the case of the remuneration of judges, as well as in the case of social (material) guarantees of judges upon the expiry of the powers (so, also in the case of the pensions of judges) of the judge, one must take account of the fact that the classification of courts by which courts belong not to one but to several (at the moment—three) systems of courts stems from the Constitution, as well as of the fact that the systems of courts of general jurisdiction and of specialised courts established under Paragraph 2 of Article 111 of the Constitution, as systems of institutions, are of several levels.

It has been held in this ruling of the Constitutional Court that the principle of the equal legal status of judges may not be construed as not permitting an additional payment for the judges—the heads of courts (their deputies, heads of divisions, etc.) who discharge additional functions for the carried out organisational work. However, it needs to be emphasised that the said constitutional principle hardly implies that in the corresponding court the activity of the judges—heads of courts (their deputies, chairpersons of the divisions, etc.) who implement additional functions may be limited only to such organisational work which is not related to the administration of justice, i.e. with the decision of cases, and that they may receive the remuneration of the judge only for such organisational work.

11. The principled provision that one may not differentiate (also by applying law) the remunerations of the judges of the courts of the same system and of the same level according to the fact when the remunerations of certain sizes of judges were established (inter alia, according to the fact whether the person began to work as a judge of the corresponding court before establishing the remuneration of a certain size of the judge of that court, or afterwards), is mutatis mutandis applicable also to other social (material) guarantees of judges, inter alia, those which are established (applied) to the judges upon the expiry of their powers. They may not be reduced, let alone altogether denied also in the case when their system is reorganised. In addition, the imperative of the reality of the social (material) guarantees of judges stems from the Constitution. The social (material) guarantees of judges which are established (applied) to the judges upon the expiry of their powers (in particular, if they are linked with certain periodic payments such as pensions) could become (in case the economic or social situation becomes changed) already not only unreal, but also nominal, thus, fictitious, if they were applied to the judges, whose powers have already expired, such as were established at the said time, but which, with respect to these judges, would not be reviewed in a corresponding way, while other judges of the courts of the same system and the same level, whose powers will expire later, would be established bigger corresponding guarantees (in case the economic or social situation becomes changed). In this context, it needs to be noted that the provision of review of the social (material) guarantees of judges is applicable not only in respect of judges, but also in respect of other members of society: it has been held in this ruling of the Constitutional Court that the social orientation of the State of Lithuania which is consolidated in the Constitution obliges the state to heed the social (material) guarantees and other guarantees which, by the way, stem not only from Article 52 of the Constitution, but also from other provisions of the Constitution (inter alia, from Paragraph 2 of Article 30, Articles 38, 39, 41, Paragraph 1 of Article 51 and Article 146 thereof), the imperative of reality, thus, it obliges to revise once established (and applied) guarantees of social (material) nature (to increase their sizes) in particular if the economic or social situation becomes changed so that the said established (and applied) guarantees depreciate considerably, let alone become nominal in general (in this case, one must also have in mind the reservation regarding the proportionality and temporary reduction of payments when it is necessary for the protection of other constitutional values which is specified in this and other rulings of the Constitutional Court).

12. The establishment (and application) of the social (material) guarantees upon the expiry of their powers must be based on the Constitution. In this context, it needs to be noted that the Constitution establishes the grounds for release from office. For example, under Article 115 of the Constitution, the judges of courts of general jurisdiction and specialised courts established under Paragraph 2 of Article 111 of the Constitution shall be released from office according to the procedure established by law in the following cases: of their own will (Item 1); upon the expiry of the term of powers or upon reaching the pensionable age established by law (Item 2); due to the state of health (Item 3); upon the election to another office or upon their transfer, with their consent, to another place of work (Item 4); when their conduct discredits the name of judges (Item 5); upon the entry into effect of court judgments convicting them (Item 6); under Article 108 of the Constitution, the powers of a justice of the Constitutional Court shall cease: upon the expiry of the term of powers (Item 1); upon his death (Item 2); upon his resignation (Item 3); when he is incapable of holding office due to the state of his health (Item 4); when the Seimas removes him from office in accordance with the procedure for impeachment proceedings (Item 5). Under Articles 74 and 116 of the Constitution, the President and justices of the Supreme Court, the President and judges of the Court of Appeal, and under Article 74 of the Constitution—the President and justices of the Constitutional Court who have grossly violated the Constitution or breached their oath, or if it transpires that a crime has been committed, may be removed from office by the Seimas according to the procedure for impeachment proceedings.

The Constitution entrenches the final list of the grounds for release of judges from office (i.e. discontinuation of powers) and that this list may not be expanded by means of laws or other legal acts (the Constitutional Court’s ruling of 27 November 2006).

On the other hand, it is obvious that the powers of the judges may discontinue (expire) on various constitutional grounds.

12.1. It needs to be emphasised that the Constitution does not oblige the legislature to establish such legal regulation that the time of the expiry of powers of the judges which is established in the Constitution or laws would coincide with the time period when the judge reaches the pensionable age established in the law: one may, by means of a law, establish also such legal regulation whereby the time of powers of the judge may expire before he reaches the pensionable age established in the law, as well as such legal regulation whereby the time of powers of the judge may expire after he reaches the pensionable age established in the law. While establishing the social (material) guarantees of judges upon the expiry of their powers, one heed this. In this context, it needs to be noted that two legal facts—expiry of the term of powers of judges and the fact that the judge reaches pensionable age established by law—in Item 2 of Article 115 of the Constitution are considered as alternative, thus, equal grounds for discontinuation of the powers of the judge; it also needs to be mentioned that in Article 108 of the Constitution, discontinuation of the powers of a justice are not related with any age in general, as well as with pensionable age established by law, but only with one of the specified alternatives—with the expiry of the term of nine years which is established in the Constitution itself (taking account of the reservation provided for in Paragraphs 2, 3 and 4 of Article 7 of the Republic of Lithuania’s Law “On the Procedure for Entry into Force of the Constitution of the Republic of Lithuania” which is a constituent part of the Constitution).

12.2. In the context of different grounds (their peculiarities) of discontinuation of the powers of judges which are established in the Constitution, the Constitutional Court investigated the compliance of the legal regulation whose constituent part was a provision whereby the judges of the local courts shall be appointed to office for five years for the first time, with the Constitution and has not ruled this provision to be in conflict with the Constitution (the Constitutional Court’s rulings of 21 December 1999 and 9 May 2006). This term should be construed as the “term of powers” of the judge, upon the expiry of which provided the person has proved by his performance and conduct to be fitting for the work of a judge, the question of his appointment for the longer term of powers as pointed out in the law is decided (the Constitutional Court’s ruling of 21 December 1999).

The Constitutional Court has held that “the principle of independence of judges entrenched in the Constitution implies only such legislative regulation of the term of powers of the judge that when appointing a judge, he would know the term of powers (until the time established by law or until he reaches the pensionable age established by law)”, “the term of powers of the judge may not depend on the future decisions of the state power institutions that have appointed him, which would be grounded on free discretion”, that “the legal regulation when the possibility of prolonging the term of powers of judges upon their expiration (irrespective of the term for which the powers of the judge are prolonged and of the level of court the powers of whose judge are prolonged) is provided may create preconditions for other persons to try to influence the judge directly or indirectly in order that he, when seeking prolongation of his powers, would make certain decisions in cases considered by him; such legal regulation should be regarded as enabling someone to induce the judge to consider cases and adopt decisions in them not only by obeying the law, as required by the Constitution (Paragraph 3 of Article 109), but also by heeding the fact how the decisions adopted in his considered cases will influence the possibility of prolonging his powers in the future”, as well as that “such legal regulation creates preconditions for a judge to adopt the decisions in cases considered by him, which would not correspond not the concept of justice of the judge himself, but the concept of justice of other persons” (the Constitutional Court’s ruling of 9 May 2006). The legal regulation, when the possibility is provided for prolonging the powers of judges upon the expiry of their term, save the exceptions allowed by the Constitution itself, was judged to be incompatible with the Constitution, and corresponding provision of the Law on Courts was ruled to be in conflict with the Constitution (the Constitutional Court’s ruling of 9 May 2006). However, the Constitutional Court has also held that the Constitution does not in essence prevent such legal regulation established by law, where a judge, despite the fact that his powers have expired or he reached the pensionable age established by law, may still hold his office for a certain period of time until the consideration of certain cases, the consideration of which was not finished at the time (on the day) when the term of powers of that judge expired or when he reached the pensionable age established by law, is finished (final decisions therein will be adopted); such exceptional legal regulation would be constitutionally grounded, since, otherwise, i.e. without establishing such legal regulation, the decision of corresponding cases—administration of justice—would slow down and, thus, preconditions would be created to injure the rights and legitimate interests of persons and certain constitutional values would be violated; such a judge must be released from office, when the corresponding legal fact to which the prolongation of powers of the judge is related happens—the consideration of corresponding cases is finished (the Constitutional Court’s ruling of 9 May 2006). At the time when the consideration of said cases is not yet finished, the said judge is a fully-fledged judge: while administering justice (deciding cases), he has the same powers as other judges of the corresponding court, his status as a judge is indivisible, the same restrictions on activity and limitations on remuneration which stem from the Constitution are applied to him, he has the same responsibility and immunities as other judges. Thus, he has the same workload (inter alia, because of the fact that in the said court, the position of the judge who must carry out an important constitutional function—to administer justice—is not yet vacant) as other judges of the corresponding court, and he must be paid the same remuneration as other judges of the corresponding court, he also has the same social (material) guarantees which the judges of the corresponding court have. It also needs to be noted that the judge whose powers are prolonged on the said ground, as this exception is permitted by the Constitution itself, at that time may not be applied those social (material) guarantees of the judge which are established (and applied) to judges upon discontinuation of their powers.

12.3. The fact that under the Constitution, before expiry of their powers and reaching the pensionable age established by law, the judges may be released from office due to the state of health, may not be the ground not to apply them the social (material) guarantees which are related with the status of the judge upon discontinuation of their powers that are established (and applied) for the judges whose powers discontinued upon reaching the pensionable age established by law or upon the expiry of their powers. Even though the legislature has certain discretion to establish the social (material) guarantees for such judges (released from office due to the state of health before expiry of their powers and reaching the pensionable age established by law) upon discontinuation of their powers, he does not have the discretion to establish such legal regulation that in the aspect of the social (material) guarantees upon discontinuation of the powers of the judge, the status of the judges who were released from office due to the state of health before expiry of their powers and reaching the pensionable age established by law would be opposed against the status of the judges who were released from office upon reaching the pensionable age established by law or upon the expiry of their powers.

It needs to be emphasised that the said ground of discontinuation of the powers of the judge is linked not with the free decision of the judge himself no longer to work as a judge, no longer to seek the career of the judge, but with the fact that because of the reason which does not depend on him—the state of health—he cannot hold office and his powers must be discontinued beforehand. While establishing the social (material) guarantees of judges upon discontinuation of their powers, the legislature may not disregard this condition.

12.4. The legal situations where judges, before the expiry of their powers and reaching the pensionable age established by law, are released from office of their own will (they resign), as well as where judges are released from office when they are elected to another office or are transferred, with their consent, to another place of work should be assessed differently. Such grounds of discontinuation of the powers of the judge are related with the free decision of the judge no longer to work as a judge, no longer to seek the career of the judge (at all or temporarily). Thus, the legislature has the discretion to establish whether the social (material) guarantees of judges upon discontinuation of their powers for such persons (who are released from office of the judge of their own will, who have resigned, as well as those who are released from office after electing them to another office or when they are transferred, with their consent, to another place of work) are linked only with discontinuation of the powers of judges of these persons, or whether they are linked with other legal facts.

12.5. It has been held in this ruling of the Constitutional Court that if the legislature enshrines such a guarantee of a social (material) character of the judge (upon the expiry of the powers of the judge) as the pension of the judge, the legislature, heeding the Constitution, may also establish the cases when the pension of the judge (which is related to the constitutional status of the judge) is not granted to the former judge and/or when the granted state pension of judge is no longer paid to the former judge. It has also been held that while establishing the cases when the pension of the judge is not granted to the former judge, one must take account of the grounds of discontinuation of the constitutional powers of the judge.

In the Constitutional Court’s ruling of 27 November 2006 it was held that “the judge's conduct—both related to the direct performance of his office and to his activity, which is not linked to his office—should not raise any doubts about his impartiality and independence; the judge must discharge his duties and behave so that his conduct would not discredit the name of judges”. It needs to be noted that while establishing the social (material) guarantees of the judge upon discontinuation of his powers, one must take account of the fact that the Constitution also provides for such grounds of discontinuation of the powers of the judge as the entry into effect of a court judgment convicting the judge, removal of the judge from office according to the procedure for impeachment proceedings for gross violation of the Constitution or breach of oath, after it transpires that a crime was committed, as well as that the conduct of the judge discredited the name of judges. Thus, the law must establish such legal regulation that if the judge is released from office on the said grounds, he loses the corresponding social (material) guarantees of the judge which are established (applied) to him upon the expiry of his term of office, which are related with the constitutional status of the judge and his dignity.

It needs also to be noted that, as the Constitutional Court held in its ruling of 27 November 2006, while establishing the procedures for release of a judge from office by the Law on Courts (taking account of, inter alia, the ground (particularities thereof) of the release from office), in all cases one must heed the principle of independence of the judge and court, the presumption of innocence, the requirements of the due process of law and other imperatives entrenched in the Constitution.

13. Disregarding of the provisions which stem from the Constitution may determine that the corresponding legal regulation may (and must) be ruled to be in conflict with the Constitution. It needs to be noted that one did not avoid such legal regulation of the pensionary relations which was later ruled to be in conflict with the Constitution. The legal position of the Constitutional Court has the significance of a precedent in the corresponding constitutional justice cases.

13.1. The Constitutional Court’s Ruling “On the Compliance of the Resolution of the Government of the Republic of Lithuania (No. 465) ‘On a Partial Amendment of the Resolution of the Government of the Republic of Lithuania (No. 124) “On the Work Pay of Employees of the Courts of the Republic of Lithuania, the State Arbitration, the Prosecutor’s Office, and the Department of National Audit’ of 3 March 1993”’ of 31 March 1995 with the Constitution of the Republic of Lithuania, Paragraph 1 of Article 46 of the Republic of Lithuania’s Law on Courts, Paragraph 1 of Article 4 of the Republic of Lithuania’s Law on the Prosecutor’s Office, the Republic of Lithuania’s Law on the National Audit Office, and the Republic of Lithuania’s Law ‘On the Service Remuneration of Judges of the Courts of the Republic of Lithuania, Employees of the Prosecutor’s Office, State Arbiters, and Employees of the Department of National Audit’” of 6 December 1995 recognised that the legal regulation established by means of a government legal act, under which the Government assumed the obligations to approve the sizes of the bonuses of, inter alia, the President of the Lithuanian Supreme Court and which established the powers of the Minister of Justice to approve the sizes of the bonuses of the Chairpersons and judges of the Court of Appeal of Lithuania, district and local courts and the Economic Court of the Republic of Lithuania was in conflict with the Constitution (inter alia, with Article 109 thereof). However, taking account of the then legal regulation established in the legal acts, the provisions of the said government resolution that additional official payments shall be approved to the chairpersons and judges of the Court of Appeal of Lithuania, district and area courts and the Economic Court of the Republic of Lithuania were ruled not in conflict with the Constitution.

The Constitutional Court was applied regarding the construction of the provisions of the Constitutional Court’s ruling of 21 December 1999. In its Decision “On the Construction of the 21 December 1999 Ruling of the Constitutional Court of the Republic of Lithuania” of 12 January 2000, the Constitutional Court construed that, inter alia, the statement “any attempts to reduce the salary or other social guarantees of a judge or cut the budget of the judiciary are interpreted as infringement on the judicial independence” means any attempts to reduce the remuneration or other social guarantees of a judge during his or her judicial service are prohibited, as well as that the notion “judge’s remuneration” employed in the statement “judges’ remuneration must not be reduced during his or her judicial service” includes all payments paid to a judge from the State budget.

13.2. The Constitutional Court’s Ruling “On the Compliance of Paragraphs 1 and 2 of Article 4, Paragraphs 1 and 3 of Article 5, Item 1 of Paragraph 3, Paragraphs 4, 5 and 6 of Article 7 of the Republic of Lithuania’s Law on the Work Pay of State Politicians, Judges and State Officials, as well as Chapter II of the Appendix to the same law, Appendix 6 to the Republic of Lithuania’s Law on the Approval of the Financial Indicators of the 2000 State Budget and Municipal Budgets, Article 9 of the Republic of Lithuania’s Law Amending the Law on the Approval of the Financial Indicators of the 2000 State Budget and Municipal Budgets, the Resolution of the Government of the Republic of Lithuania (No. 499) ‘On the Temporary Experimental Procedure for the Work Pay of Heads and Other Officials of State Authority, State Administration and Law Enforcement Bodies’ of 29 November 1991, the Resolution of the Government of the Republic of Lithuania (No. 666) ‘On the Work Pay of Judges of Courts, Officials and Other Employees of the Prosecutor’s Office and the State Security Department of the Republic of Lithuania’ of 24 June 1997, the Resolution of the Government of the Republic of Lithuania (No. 1494) ‘On a Partial Amendment of the Resolution of the Government of the Republic of Lithuania (No. 689) “On the Work Pay of Chief Officials and Functionaries of Law and Order Institutions and of Law Enforcement and Control Institutions’ of 30 June 1997”’” of 28 December 1999 with the Constitution of the Republic of Lithuania” of 12 July 2001 recognised that the legal regulation established by law which establishes in what manner the official salaries of judges should be computed as well as the legal regulation which established extra pay for judges for the years served for the State of Lithuania was not in conflict with the Constitution. It also recognised that the provision of the law that the judges whose remuneration (“official salary”) received before coming into force of this law if it was bigger than the remuneration for work established in this law shall, upon this law going into effect, had to be paid the remuneration for work that they had been paid until then and it shall not be increased for a certain period of time, was not in conflict with the Constitution. However, the legal regulation established by law which consolidated the reduction of remuneration (“official salary”) of the judges, if they were paid more than established in this law, was ruled in conflict with the Constitution. It needs to be noted that no statement (let alone the entirety of the statements) of the Constitutional Court’s ruling of 12 July 2001 may be construed as meaning that, purportedly, one may establish different (smaller or bigger) remunerations for the persons who are appointed as the judges of any court than the remunerations of the judges who already work in the said court. Thus, one may not construe that, purportedly, there is an exception of such principled provision, under which, the remunerations of the judges of the same system of courts and the same level may be differentiated according to the fact when the judge’s remuneration of a certain size was established (inter alia, according to the fact, whether the person started to work as a judge of the corresponding court before establishing the remuneration of a certain size for the judge of the said court, or afterwards), because such an exception would deny the principled provision itself together with the principle of the equal status of judges which stems from the Constitution. One also may not construe that, purportedly, other social (material) guarantees of judges (inter alia, established (applied) upon the expiry of the powers of the judge) may be differentiated according to the fact when these guarantees were established (inter alia, according to the fact whether the powers of a certain judge had terminated before establishing a certain guarantee, or afterwards).

13.3. The Constitutional Court’s Ruling “On the Compliance of Item 2 of Paragraph 1 of Article 62, Paragraph 4 (Wording of 11 July 1996) of Article 69 of the Republic of Lithuania’s Law on the Constitutional Court and Paragraph 3 (wording of 24 January 2002) of Article 11, Paragraph 2 (wording of 24 January 2002) of Article 96 of the Republic of Lithuania’s Law on Courts with the Constitution of the Republic of Lithuania” of 28 March 2006 recognised that the provision of the Law on Courts that during the judge’s tenure it shall be prohibited to reduce his remuneration with the exception of cases provided by this law, or any other social guarantees, as well as the provision of the Law on Courts that when the economic and financial situation of the country deteriorates considerably, the Seimas may review the financial and material conditions for the functioning of the courts, was not in conflict with the Constitution. It needs to be noted that the second specified provision is exactly the “case provided by this law” mentioned in the first provision. On the other hand, the case mentioned in the Constitutional Court’s ruling was construed as such, when the economic and financial situation of the state is very severe (and not that the state faces some temporary problems which may be solved without resorting to extreme measures—without reviewing the financial and material conditions for the functioning of the courts).

13.4. In the Constitutional Court’s Decision “On Dismissing the Legal Proceedings in the Case Subsequent to the Petition of the Third Vilnius City Local Court, the Petitioner, Requesting an Investigation into Whether Paragraph 3 (Wording of 24 January 2002) of Article 11 of the Republic of Lithuania’s Law on Courts Is Not in Conflict with Paragraph 2 of Article 5, Paragraphs 2 and 3 of Article 109, Paragraph 1 of Article 114 of the Constitution of the Republic of Lithuania and the Constitutional Principle of a State Under the Rule of Law, into Whether the Republic of Lithuania’s Law on the Work Pay of State Politicians, Judges and State Officials (Wording of 29 August 2000 with Subsequent Amendments and Supplements) Is Not in Conflict with Article 5, Paragraph 1 of Article 30, Paragraphs 2 and 3 of Article 109 and Paragraph 1 of Article 114 of the Constitution of the Republic of Lithuania and the Constitutional Principle of a State Under the Rule of Law, and into Whether Item 1 of the Resolution of the Government of the Republic of Lithuania (No. 1494) ‘On a Partial Amendment of the Resolution of the Government of the Republic of Lithuania (No. 689) “On the Work Pay of Chief Officials and Functionaries of Law and Order Institutions and of Law Enforcement and Control Institutions” of 30 June 1997’ of 28 December 1999 Is Not in Conflict with Article 1, Paragraph 1 of Article 5, Paragraphs 2 and 3 of Article 109 and Paragraph 1 of Article 114 of the Constitution of the Republic of Lithuania and the Constitutional Principle of a State Under the Rule of Law” of 8 August 2006, the overall legal regulation of the relations concerning remuneration of judges was assessed as not exhaustive, not sufficiently defined, lacking legal clarity, messy, chaotic and having legal gaps. It was held that such legal situation occurred precisely because of the fact that the legislature had not carried out his constitutional duty and had not corrected the legislative regulation of remuneration of judges so that it would be in compliance with the Constitution (inter alia, its official construction presented in the Constitutional Court’s ruling of 12 July 2001), that it would be completely clear and harmonious (so that it would be impossible to interpret it in a diverse manner, nor to apply its provisions in a diverse manner) but also that it would not induce, inter alia, self-governance institutions of judicial power to decide the questions which, under the Constitution, are only within the competence of the legislature—the Seimas (even though, such decisions had been adopted). It was also held in the said decision of the Constitutional Court that the time period during which the legislative regulation had to be regulated so that it would be in compliance with the Constitution (inter alia, its official construction presented in the Constitutional Court’s ruling of 12 July 2001) had become too long and this created pre-conditions for the occurrence of instability in the professional corps of judges and in the court system, and, ultimately, it created pre-conditions for decreasing of public trust in the judicial power.

In this context, it needs to be noted that the overall legal regulation of the relations concerning remuneration of judges, regardless of certain amendments which were made later (which were not revised in the Constitutional Court’s decision of 8 August 2006), have remained virtually unchanged. It is universally known that since 1 January 2000, the remuneration for work factually received by the judges was reduced and since then it has never been increased at all; in addition, in courts, judges may not be paid any other payments which are related to work (while, for example, they can be paid to state servants or persons who work under employment contracts). It is also universally known that since 2000 the social and economic situation of the state has changed in essence in the direction that the remuneration of the judges (not of all the levels), which once undoubtedly complied with the constitutional status of the judge and his dignity, eventually has lost its value. Such freezing of the remuneration of the judges may actually be equalled to the reduction of the remuneration of the judges.

14. It needs to be noted that the remuneration of judges regarding which there exists comprehensive constitutional jurisdiction, and other social (material) guarantees of judges regarding which only some fragments of such jurisdiction exist, are interrelated things: the remuneration of judges makes part of the system of the social (material) guarantees of judges, thus, the same general principles as for the institute which is explicitly enshrined in the Constitution should be applied for its protection and defence (these principles ground the protection and defence of all social (material) guarantees of judges in general).

It has been mentioned that the legal position of the Constitutional Court, in the corresponding constitutional justice cases, without excluding the cases in which it is decided whether the legal acts (parts thereof) which enshrine the functioning and status of judges (inter alia powers, guarantees) are not in conflict with legal acts of higher legal force, inter alia (and, first of all), with the Constitution, has the significance of a precedent.

V

1. The requirements for the social (material) guarantees are also enshrined in the international documents.

2. For example, the Recommendations of the Committee of Ministers of the Council of Europe of 13 October 1994 consolidated, inter alia, the principle that the status and remuneration of judges has to be commensurate with the dignity of their profession and burden of responsibilities.

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

4. Article 13 (which regulates the remuneration and retirement of judges) of the Universal Charter of the Judge (adopted by the Central Council of the International Association of Judges on 17 November 1999) prescribes that “the judge must receive sufficient remuneration to secure true economic independence”, that “the remuneration must not depend on the results of the judges work and must not be reduced during his or her judicial service”, that “the judge has a right to retirement with an annuity or pension in accordance with his or her professional category”, as well as that “after retirement a judge must not be prevented from exercising another legal profession solely because he or she has been a judge”.

VI

1. It has been mentioned that, in this constitutional justice case, one impugns the provision “the state pension of judges shall not be granted and the granted pension shall not be paid, if: <…> (6) the person has the income from which state social pension insurance contributions are calculated and paid or if he receives state social insurance benefits of sickness (including those paid by the employer during the days of sickness), of maternity, of maternity (paternity) or of unemployment” of Article 4 (wording of 2 July 2002) of the Law.

2. The impugned provision should also be construed in the context the legal regulation established in other articles (paragraphs thereof) of the Law, as well as in other laws, inter alia, the Republic of Lithuania’s Law on Courts, the Law on State Pensions.

2.1. Under Article 100 (wording of 2 July 2002) of the Law on Courts, pensions for judges shall be established by the Republic of Lithuania’s Law on the State Social Insurance Pensions, the Law on State Pensions and the Law on the State Pensions for Judges. This Article is in Chapter XI “Judges’ Social Guarantees” of the Law on Courts. Thus, the legislature considers the state pension of judges as one of the social guarantees of judges.

2.2. Under the Law on State Pensions, the state pension of judges is one kind of state pensions; under Paragraph 3 (wording of 2 July 2002 and 12 December 2006) of Article 1 of this law, the state pensions of judges (as well as some other state pensions) shall be granted “in compliance with special laws”.

Namely such law establishing the special legal regulation is the Law on the State Pensions of Judges. It has been mentioned that the state pension of judges has been established for the first time namely by this law and that, until then, in the Republic of Lithuania, such pensions as pensions of judges had not been established.

2.3. The Law on the State Pensions of Judges establishes what persons have the right to receive the state pension of judges, as well as it establishes the grounds and conditions for granting and payment of this pension. The Law also regulates other relations linked to granting and payment of the state pensions of judges.

2.3.1. Under Paragraph 1 of Article 1 of the Law, the following shall be entitled to the state pension of judges: justices of the Constitutional Court, justices of the Supreme Court of Lithuania, judges of the Court of Appeal of Lithuania, judges of the Supreme Administrative Court of Lithuania, judges of the courts of general jurisdiction and specialised courts of Lithuania and the judges of any international court, who are appointed or elected from Lithuania, who, according to Article 3 of the Law, at the time of application regarding granting of the state pension of judges: must be citizens of the Republic of Lithuania permanently living in the Republic of Lithuania (Item 1); must be of the age of the old age pension established by the Law on State Social Insurance Pensions (Item 2); must no longer work as judges (Item 3) must have not less than a five-year period of service as a judge (Item 4). Under Paragraph 1 of Article 8 of the Law, one may apply regarding the granting of the state pension of judges at any time from the day of appearance of the right to receive such pension, and under Paragraph 6 of this article, the state pension of judges is granted for life.

It needs to be noted that under Paragraph 2 of Article 12 of the Law, Item 1 of Article 3 of the Law (it is not a matter of investigation in the constitutional justice case at issue) had to become null and void as from the day when Lithuania joined the European Union. The Republic of Lithuania became a Member State of the European Union on 1 May 2004.

2.3.2. Under Paragraph 2 of Article 1 of the Law, the persons who acquire the right to the state pension of judges and who have the right to other state pensions established in the Law on the State Pensions and special laws, shall be granted and paid only one state pension, at their choice, provided other laws do not establish otherwise.

In this context, it needs to be noted that under Paragraph 1 (wording of 4 November 1999) of Article 3 of the Law on State Pensions, in the case of a person entitled to draw several state pensions, only one of them shall be paid to him at his choice, with the exception of the state widow’s and orphan’s pension, which may also be paid only one in conjunction with one of the state pensions.

2.3.3. Under Article 5 of the Law, the period of service of judges which is necessary in order to receive the state pension of judges includes the time since 11 March 1990, during which the person worked as a judge in the courts which function in the territory of Lithuania (the Constitutional Court, the courts of general jurisdiction and the specialised courts) or as a judge of any international court, who is appointed or elected from Lithuania; if the person gained the period of service of a judge while working as a judge in different courts and at different time, his gained period of service of a judge in order to receive the state pension of judges shall be summed up under the procedure established in the Regulations of Granting and Payment of the State Pensions of Judges.

In this context, it needs to be mentioned that the Regulations of Granting and Payment of the State Pensions of Judges were approved by the Government by its Resolution (No. 68) “On Approving the Regulations of Granting and Payment of the State Pensions of Judges” of 21 January 2003 which came into effect on 25 January 2003.

2.3.4. Under Paragraph 1 of Article 6 of the Law, for the persons who have the right to receive the state pension of judges and who meet the established conditions and who have gained not less than a twenty-year period of service as a judge, the state pension of judges shall be calculated from the average remuneration received in last 5 years (before they terminated holding the office of the judge); 45 percent of this amount shall be granted. Paragraph 2 of this article establishes the size of the state pension of judges which is granted to the persons who have the right to receive the state pension of judges and who meet the conditions established by the Law, but who have not gained the twenty-year period of service as a judge: for the persons who have gained a fifteen-year or longer period of service as a judge, the state pension of judges shall be calculated from the average remuneration received in last 5 years (before they finished holding the office of the judge); 35 percent of this size shall be granted (Item 1); for the persons who have gained a ten-year or longer period of service as a judge, the state pension of judges shall be calculated from the average remuneration received in last 5 years (before they finished holding the office of the judge); 20 percent of this size shall be granted (Item 2); for the persons who have gained a five-year or longer period of service as a judge, the state pension of judges shall be calculated from the average remuneration received in last 5 years (before they finished holding the office of the judge); 10 percent of this size shall be granted (Item 3).

2.3.5. Paragraph 1 of Article 7 of the Law provides that the state pensions of judges shall be granted and paid by the National Courts Administration. Under Paragraph 4 of this article, the receivers of the state pensions must inform the National Courts Administration about the circumstances which have influence for paying the state pension of judges not later than in 10 days after the day of the occurrence of such circumstances; if one does not inform about such circumstances and, thus, the pension is overpaid, the size of the overpaid pension shall be exacted from the receiver of the pension without restricting to any term, upon the decision of the head of the National Courts Administration under the procedure established by Article 9 of the Law.

2.3.6. The sum of the calculated state pension of judges and other pensions (state pensions and state social insurance pensions) granted under other laws for one person may not exceed per person the amount of 1.5 monthly average salaries in the national economy as announced by the Department of Statistics for the quarter before the last quarter preceding the month for which the pension is paid; the limitation on the size of the pension shall be applied by the institution paying the state pension (i.e. the National Courts Administration) (Paragraph 3 of Article 6 of the Law).

In this context, it should also be mentioned that Paragraph 3 (wordings of 2 July 2002 and 12 December 2006) of Article 3 of the Law on State Pensions, under which, the size of the state pension specified in Items 3–6 of Paragraph 1 of Article 1 of the Law on State Pensions as well as the sum total of the amount of this pension and the state pensions and state social insurance pensions granted to the same person may not exceed per person the amount of 1.5 monthly average salaries in the national economy as announced by the Department of Statistics at the Government of the Republic of Lithuania for the quarter before the last quarter preceding the month for which, inter alia, the state pension of judges is paid.

2.3.7. Article 4 (wording of 2 July 2002) of the Law established the cases when the state pension of the judge is not granted and the granted pension is not paid: upon the expiry of powers of the judge according to the procedure for impeachment proceedings (Item 1); the judge is released from the office of the judge because his behaviour discredited the name of judges (Item 2); upon coming into effect of court judgments convicting him (without taking account of the exemption from serving the punishment, later expiry or quashing of conviction) (Item 3); the person receives a pension from another state (Item 4); the person worked or served in the structures enumerated in Items 1–8 of Paragraph 4 of Article 11 of the Law on State Pensions (in this case, the person’s right to receive the state pension of the judge is established while taking account of the list of services and posts approved under the procedure established in Paragraph 5 of Article 11 of the Law on State Pensions) (Item 5); the person has the income from which state social pension insurance contributions are calculated and paid or if he receives state social insurance benefits of sickness (including those paid by the employer during the days of sickness), of maternity, of maternity (paternity) or of unemployment (Item 6).

In this context, it needs to be noted that Items 1–8 of Paragraph 4 (wording of 13 June 2000) of Article 11 of the Law on State Pensions, to which reference is made in Item 5 of Article 4 (wording of 2 July 2002) of the Law on the State Pensions of Judges, enumerate the corresponding structures of the regimes which occupied Lithuania (Soviet structures and those of the Nazi Germany), while, under Paragraph 5 (wording of 13 June 2000) of Article 11 of the Law on the State Pensions, the list of the corresponding services and posts shall be approved by the Government.

It needs also to be mentioned that the Constitutional Court’s Ruling “On the Compliance of Paragraph 4 of Article 11 of the Republic of Lithuania’s Law on State Pensions, Item 2 of Paragraph 3 of Article 8 of the Republic of Lithuania’s Law on the Legal Status of Victims of the Occupations of 1939–1990 with the Constitution of the Republic of Lithuania and on the Compliance of Items 9 and 12 of the List ‘The 1939–1990 Occupations Repressive Structures, Services and Positions for Serving in Which Persons Shall not be Awarded State Pensions for Victims’ as approved by the Resolution of the Government of the Republic of Lithuania (No. 829) ‘On the Approval of the List of the 1939–1990 Occupations Repressive Structures, Services and Positions for Serving in Which Persons Shall not be Awarded State Pensions for Victims’ of 3 July 1998 with the Constitution of the Republic of Lithuania and Paragraph 4 of Article 11 of the Republic of Lithuania’s Law on State Pensions” of 10 February 2000 recognised that Paragraph 4 of Article 11 of the Law on State Pensions (wording of 4 November 1997) to the extent that state pensions for victims shall not be granted to individuals listed in Paragraphs 1 and 2 of this article if during the period of 1939–1990 they served or worked in the other institutions (structures) clearly not indicated by law was in conflict with Article 52 of the Constitution, and to the extent that it prescribed that the Republic of Lithuania shall approve the list of the services and positions of the other institutions (services) not indicated in the law for serving in which persons shall not be granted state pensions for victims—was in conflict with Articles 5 and 52 of the Constitution. It also needs to be noted that the Constitutional Court’s Ruling “On the Compliance of the Republic of Lithuania’s Law on the Amendment and Supplementation of Articles 7, 11, 15 of the Law on State Pensions, Paragraphs 1 and 4 of Article 7 of the Republic of Lithuania’s Law on State Pensions and Paragraph 2 of Article 20 of the Law on the President of the Republic of Lithuania with the Constitution of the Republic of Lithuania” of 19 June 2002 recognised that the Law on the Amendment and Supplementation of Articles 7, 11, 15 of the Law on State Pensions (Article 2 of which set forth Article 11 of the Law on State Pensions in its new wording—wording of 13 June 2000) according to the procedure of its signing and publication conflicted with Paragraph 2 of Article 71 of the Constitution. Afterwards, Paragraphs 4 and 5 of Article 11 of the Law on the State Pensions have not been amended or supplemented.

2.3.8. Article 10 of the Law establishes one more case when the person is not paid the granted state pension of judges: the pension shall continue to be paid to the recipient of the state pension of judges, to whom this pension has been granted, after he has moved abroad, if the period of service of the person as a judge in the courts of the Republic of Lithuania is not shorter than 20 years (Paragraph 1); if the period of service as a judge of the receiver of pension who has moved to live abroad permanently is shorter than 20 years, the state pension of judges shall be paid: the amount of the pension will be that granted in the month of leaving (correspondingly limited under the procedure established by Paragraph 3 of Article 6 of the Law) and it will be paid for 6 months in advance and then it will be no longer paid (Paragraph 2).

In this context, it also needs to be noted that under Paragraph 1 of Article 43 (wording of 1 July 2005) of the Law on the State Social Insurance Pensions, when a pensioner moves to permanently reside in another state, the granted pension shall be paid to him, inter alia, provided the pensioner has acquired at least the minimum state social pension insurance period required for the pension of an appropriate type while working in Lithuanian enterprises, institutions or organisations.

3. Summing up, one needs to hold that the Law on the State Pensions of Judges which was adopted by the Seimas on 2 July 2002 and which came into force on 1 January 2003 enshrined such legal regulation (also when it is construed in the context of other laws), whereby the state pension of judges (one of the kinds of state pensions) is considered as one of the social (material) guarantees upon the expiry of the powers of the judge, which is related with the constitutional status of the judge. This pension could be granted to a person after he had reached the pensionable age established in the Law on State Social Insurance Pensions and when his powers of the judge had expired, in addition, this person had to have gained not less than a five-year period of service; if a former judge moved abroad to live there permanently and his period of service in the courts of the Republic of Lithuania was shorter than 20 years, the payment of the state pension of judges to the said person, even though he met all the conditions in order to receive the state pension of judges established in this law, had to be discontinued. The persons who had the right to the state pension of judges and the right to other state pensions, had to choose, which of these pensions had to be paid (save the state pension of widows and orphans which, according to the laws, could be paid together with one of the state pensions). In addition, it enshrined the maximum sum of all the pensions received by the person (when the person had to receive not one but several pensions granted under various laws), which could not exceed 1.5 amount of the statistical average monthly salary in the economy of the country, which was paid in the quarter before last that had preceded the month when state pension was paid, as published by the Department of Statistics at the Government of the Republic of Lithuania; thus, even though the principled provision was declared that the size of the state pension of judges depends on the period of service of the judge and on the average of the payment for work of the judge received during the last 5 years, before expiry of holding the office of the judge (the persons who have gained not less than a twenty-year period of service as a judge, shall be granted the state pension of judges of 45 percent of the average payment for work, who have gained a fifteen-year or longer period of service as a judge—35 percent, who have gained a ten-year or longer period of service as a judge—20 percent, and who have gained a five-year or longer period of service as a judge—10 percent), this provision was “neutralised”, as virtually the size of the paid state pension of judges depended on the fact of what pensions and of what size the person had to receive according to other laws. Thus, the state pension of judges was (and is) one of the integrated elements (as the size of the paid state pension of judges was (and is) related to other social guarantees of the person who receives this pension) of the system of social guarantees of the person who receives this pension.

4. Even though, as mentioned before, the impugned provision “the state pension of judges shall not be granted and the granted pension shall not be paid, if: <…> (6) the person has the income from which state social pension insurance contributions are calculated and paid or if he receives state social insurance benefits of sickness (including those paid by the employer during the days of sickness), of maternity, of maternity (paternity) or of unemployment” of Article 4 (wording of 2 July 2002) of the Law should also be construed in the context of the legal regulation established in other articles (paragraphs thereof) of the Law, as well as in other laws, the said other legal regulation is not a matter of investigation in the constitutional justice case at issue, inter alia, in the aspect of the compliance of the corresponding provisions with the Constitution. No statement of this ruling of the Constitutional Court which is designed for the construction of the said overall legal regulation, may in itself be interpreted as expressing the position that the corresponding provisions of the laws (inter alia, the Law on the State Pension of Judges) comply with the Constitution.

5. It needs to be held that the legal regulation enshrined in Article 4 (wording of 2 July 2002) of the Law was designed for two legal situations: (1) the former judge is not granted the state pension of judges; (2) the granted state pension of judges is not paid to the former judge. Items 1, 2 and 5 of Article 4 (wording of 2 July 2002) of the Law established the grounds when the state pension of judges is not granted, and Items 3, 4 and 6 thereof—when this pension is not granted, and if it was granted, then it is not paid. In the context of the constitutional justice case at issue, it needs to be noted that the provision which is impugned by the Vilnius Regional Administrative Court, the petitioner, is designed for the following legal situations: (1) the state pension of judges shall not be granted to the former judge even though he meets all the conditions established in the Law, but he has the income from which state social pension insurance contributions are calculated and paid or if he receives state social insurance benefits of sickness (including those paid by the employer during the days of sickness), of maternity, of maternity (paternity) or of unemployment; (2) the former judge who had been granted the state pension of judges is no longer paid this pension, because he has the income from which state social pension insurance contributions are calculated and paid or if he receives state social insurance benefits of sickness (including those paid by the employer during the days of sickness), of maternity, of maternity (paternity) or of unemployment.

6. Item 6 of Article 4 (wording of 2 July 2002) of the Law was amended as follows:

Article 1 of the Third Section of the Republic of Lithuania’s Law on Amending the Provisional Law on the State Pensions of Scientists, the Law on the State Pensions, the Law on the State Pensions of Judges, the Law on Early Payment of State Social Insurance Old-Age Pensions and the Law on Monetary Social Assistance for Low-Income Families (Single Residents), which was adopted by the Seimas on 4 November 2004 and which came into force on 1 January 2005, prescribed: “The state pension of judges shall not be granted and the granted pension shall not be paid, if: <…> (6) the person has the income from which state social pension insurance contributions are calculated and paid or if he receives state social insurance benefits of sickness (including those paid by the employer during the days of sickness), of maternity, of maternity (paternity) or social insurance payments of unemployment”;

Article 1 of the Fifth Section of the Republic of Lithuania’s Law on Amending and Supplementing the Law on the Social Integration of the Disabled, the Law on State Pensions, the Provisional Law on the State Pensions of Scientists, the Law on Early Payment of State Social Insurance Old-Age Pensions, the Law on the State Pensions of Judges, the Law on the Accumulation of Pensions and the Law on the Status of the Signatories of the Act of the Independence of Lithuania, which was adopted by the Seimas on 19 May 2005 and which came into force on 1 July 2005, prescribed: “The state pension of judges shall not be granted and the granted pension shall not be paid, if: <…> (6) the person has the income from which state social pension insurance contributions are calculated and paid or if he receives state social insurance benefits of sickness (including those paid by the employer during the days of sickness), of maternity, of maternity (paternity), of professional rehabilitation or social insurance payments of unemployment”;

Article 1 of the Republic of Lithuania’s Law on Amending Article 4 of the Law on the State Pensions of Judges, which was adopted by the Seimas on 8 June 2006 and which came into force on 1 July 2006, prescribed: “The state pension of judges shall not be granted and the granted pension shall not be paid, if: <…> (6) the person has the income from which state social pension insurance contributions are calculated and paid or if he receives state social insurance benefits of sickness (including those paid by the employer during the days of sickness), of maternity, of maternity (paternity), of professional rehabilitation or social insurance payments of unemployment”.

7. While comparing the legal regulation established in Item 6 (wording of 2 July 2002) of Article 4 of the Law with the legal regulation established in Item 6 (not only the wording of 2 July 2002, but also of 4 November 2004, 19 May 2005 and 8 June 2006) of Article 4 of the Law, it is obvious that even though the impugned legal regulation has been amended (because other legal acts, which regulated the relations linked with those which were regulated under the said article, were amended), Item 6 of Article 4 of the Law has always enshrined (and still enshrines) the general rule that if the person has the income from which state social pension insurance contributions are calculated and paid or if he receives certain social payments, he shall not be granted the state pension of judges, and the granted state pension of judges shall not be paid.

VII

On the compliance of the provision “the state pension of judges shall not be granted and the granted pension shall not be paid, if: <…> (6) the person has the income from which state social pension insurance contributions are calculated and paid or if he receives state social insurance benefits of sickness (including those paid by the employer during the days of sickness), of maternity, of maternity (paternity) or of unemployment” of Article 4 (wording of 2 July 2002) of the Law on the State Pensions of Judges with Article 23, Paragraph 1 of Article 48 and Article 52 of the Constitution, and with the constitutional principle of a state under the rule of law.

1. It has been mentioned that the Constitutional Court is requested to investigate the compliance of the provision “the state pension of judges shall not be granted and the granted pension shall not be paid, if: <…> (6) the person has the income from which state social pension insurance contributions are calculated and paid or if he receives state social insurance benefits of sickness (including those paid by the employer during the days of sickness), of maternity, of maternity (paternity) or of unemployment” of Article 4 (wording of 2 July 2002) of the Law with Article 23, Paragraph 1 of Article 48 and Article 52 of the Constitution, and with the constitutional principle of a state under the rule of law.

2. The provision impugned by the Vilnius Regional Administrative Court, the petitioner, established the cases of non-granting of the state pension of judges and non-payment of the granted state pension of judges. It has been mentioned that this provision is designed for the following legal situations: (1) the state pension of judges is not granted to the former judge even though he meets all the conditions established in the Law, but he has the income from which state social pension insurance contributions are calculated and paid or if he receives state social insurance benefits of sickness (including those paid by the employer during the days of sickness), of maternity, of maternity (paternity) or of unemployment; (2) the former judge who had been granted the state pension of judges is no longer paid this pension, because he has the income from which state social pension insurance contributions are calculated and paid or if he receives state social insurance benefits of sickness (including those paid by the employer during the days of sickness), of maternity, of maternity (paternity) or of unemployment.

3. It has been mentioned that if the legislature consolidates such social (material) guarantee of the judge upon the expiry of his powers of the judge as the pension of the judge, he, heeding the Constitution, may also establish the cases when the pension of the judge (which is related to the constitutional status of the judge) is not granted to the former judge and/or when the granted state pension of judges is no longer paid for the former judge; while establishing by law the cases when the pension of the judge is not granted to the former judge, one must take account of the constitutional grounds of the expiry of powers of the judge; otherwise, one would create preconditions for deviating from the constitutional principle of the independence of the judge and courts and for violating Article 109 of the Constitution; Article 109 of the Constitution would be violated if it would be impossible to constitutionally substantiate why the former judge is not continued to be paid the state pension.

It has also been mentioned that if the legislature consolidates such social (material) guarantee of the judge upon the expiry of his powers, as the pension of the judge, this guarantee is defended not only under Article 109 of the Constitution, but also under Article 52 of the Constitution.

4. While deciding subsequent to the petition of the Vilnius Regional Administrative Court, the petitioner, whether the impugned provision was not in conflict with the Constitution, one needs to note that this provision enshrines two alternative cases when the state pension of the judge is not granted for the former judge, and when the granted state pension of judges is not continued to be paid to the former judge, and these cases are grounded on the fact that the former judge who meets all the conditions established in the Law: (1) has the corresponding income which is insured by the state social pension insurance, namely the income from which state social pension insurance contributions are calculated and paid; (2) or receives certain payments, namely state social insurance benefits of sickness (including those paid by the employer during the days of sickness), of maternity, of maternity (paternity) or of unemployment.

It needs to be noted that the first of the specified alternative conditions is linked to the income of the former judge, received from the occupational (active economic) activity, when the former judge participates in the labour market on certain grounds.

In this context, it needs to be mentioned that under the Republic of Lithuania’s Law on State Social Insurance and other laws, state social pension insurance contributions, in certain cases, were (and are) paid only from a certain part of the income received from the existing (active economic) activity, as well as the cases were (and are) established when such contributions may be not paid even though the person receives the income from the existing (active economic) activity.

5. It needs to be held that the impugned provision made the granting and payment of the state pension of the judge (which is a social (material) guarantee of the judge upon the expiry of his powers, which is related to the constitutional status of the judge) dependent on the fact whether the former judge receives other income specified in the impugned provision.

6. While deciding whether the impugned provision, to the extent that it prescribes that the state pension of the judge is not granted for the former judge because of the fact that the former judge who meets all the conditions established in the Law, has the corresponding income insured by the state social pension insurance, namely the income from which state social pension insurance contributions are calculated and paid, or he received certain payments, namely state social insurance benefits of sickness (including those paid by the employer during the days of sickness), of maternity, of maternity (paternity) or of unemployment, it needs to be noted that the said two sources of income are of different nature.

6.1. Such linking of the granting of the state pension of the judge with the income received by the former judge specified in the impugned provision may not be grounded on the provisions of the Constitution which enshrine the grounds of the expiry of the powers of the judge which, as it has been mentioned, must be heeded while establishing by law the cases when the state pension of the judge is not granted for the former judge.

Due to such legal regulation, granting the state pensions of judges becomes dependent on the circumstance which is not constitutionally grounded. Thus, this social (material) guarantee of the judge which, upon the expiry of his powers, is linked to the constitutional status of the judge, is virtually denied. It is not in line with the constitutional principle of independence of the judge and courts which, as it has been mentioned, implies the social (material) guarantees of the judge upon the expiry of his powers.

Taking account of the arguments set forth, the conclusion should be drawn that the provision of Article 4 (wording of 2 July 2002) of the Law that the state pension of judges shall not be granted if the person has the income from which state social pension insurance contributions are calculated and paid or if he receives state social insurance benefits of sickness (including those paid by the employer during the days of sickness), of maternity, of maternity (paternity) or of unemployment was in conflict with Articles 52 and 109 of the Constitution, and with the constitutional principle of a state under the rule of law.

6.2. It has been mentioned that, under the Constitution, one may not establish any such legal regulation, under which an opportunity for the person who has been granted and paid old age pension, would be restricted due to this to freely choose an occupation and business, although he meets the conditions provided for by law so that he would have a certain occupation or conduct certain business; the legal regulation under which the person cannot freely choose an occupation and business due to the fact that upon the implementation of this right he would not be paid the granted old age pension or part thereof which was paid until then, must also be regarded as a restriction on the opportunity to freely choose an occupation or business; this provision should be applied mutatis mutandis to other kinds of pensions, inter alia, the state pensions provided for in the Law on State Pensions.

It has also been mentioned that the Constitutional Court recognised such legal regulation established by law which did not allow paying the full state social insurance old age pension which had been granted (and paid) until then for the pensioners who had the obligatory state social pension insurance period which was necessary for the old age pension and who had the insured income to be in conflict with the Constitution (as violating, inter alia, the right of a person to choose an occupation or business) (the Constitutional Court’s ruling of 25 November 2002); the provision of the law that persons who had reached the age entitling to an old age pension and older disabled who, after granting of a state social insurance disability pension, received income from which the obligatory state social pension insurance contributions were calculated and paid should be paid the basic part of the granted state social insurance disability pension and not the whole granted and previously paid state social insurance disability pension should be paid was also ruled to be in conflict with the Constitution (the Constitutional Court’s ruling of 3 December 2003). Also, the provision of the law that the retired officials and servicemen who, after granting of state pensions of officials or servicemen for the service or disability pensions of officials or servicemen, receive the income from which contributions of state social pension insurance are calculated and paid, shall receive the part of the state pension of officials or servicemen which amounts only to 30 percent of the pension was ruled to be in conflict with the Constitution (as violating, inter alia, the right of a person to choose an occupation or business) (the Constitutional Court’s ruling of 4 July 2003).

The legal position of the Constitutional Court in these constitutional justice cases, as it has been mentioned more than once in this ruling of the Constitutional Court, has the significance of a precedent.

The first alternative condition which is enshrined in the provision impugned by the Vilnius Regional Administrative Court, the petitioner, with which non-granting of the state pension to the former judge is linked—namely the fact that, even though he complies with all the conditions established in the Law, he has the income from which state social pension insurance contributions are calculated and paid and which is linked with the income of the former judge from the occupational (active economic) activity, when the former judge participates in the labour market, makes the said person choose whether to engage in the active economic activity (to work, inter alia, to engage in business) and not to receive the state pension of judges, or to receive this pension and not to engage in the active economic activity (not to work, inter alia, not to engage in business).

Such legal regulation means that one violates the right of each human being (thus, also the former judge) to freely choose a job or business which is enshrined in Paragraph 1 of Article 48 of the Constitution.

In this aspect, the fact that, as it has been mentioned, under other laws, in certain cases, state social pension insurance contributions are paid only from a certain part of the income received from the occupational (active economic) activity, as well as cases were (and are) prescribed that it is permitted not to pay such contributions even though the person receives the income from the occupational (active economic) activity, is of no significance.

Taking account of the arguments set forth, the conclusion should be drawn that the provision of Article 4 (wording of 2 July 2002) of the Law that the state pension of judges shall not be granted if the person has the income from which state social pension insurance contributions are calculated and paid was not only in conflict with Articles 52 and 109 of the Constitution and with the constitutional principle of a state under the rule of law, but also with Paragraph 1 of Article 48 of the Constitution.

7. While deciding, whether the impugned provision, to the extent that it enshrines that the granted state pension of the judge is not continued to be paid to the former judge because of the fact that the former judge who meets all the conditions established in the Law, has the corresponding income insured by the state social pension insurance, namely the income from which state social pension insurance contributions are calculated and paid, or he received certain payments, namely state social insurance benefits of sickness (including those paid by the employer during the days of sickness), of maternity, of maternity (paternity) or of unemployment, one must also take account of the fact that the said two sources of income are of different nature.

7.1. On the grounds of the arguments which are analogous to those, upon which it has been held in this ruling of the Constitutional Court that the provision of Article 4 (wording of 2 July 2002) of the Law that the state pension of judges shall not be granted if the person has the income from which state social pension insurance contributions are calculated and paid was in conflict with Paragraph 1 of Article 48 of the Constitution, it should also be held that also the provision of this article (wording of 2 July 2002) that the granted state pension of the judge is not continued to be paid to the former judge because of the fact that the former judge who meets all the conditions established in the Law, has the income from which state social pension insurance contributions are calculated and paid, was in conflict with Paragraph 1 of Article 48 of the Constitution.

It also needs to be held that this provision is in conflict with Articles 52 and 109 of the Constitution, and with the constitutional principle of a state under the rule of law as well.

7.2. It has been mentioned that if it was not possible to ground constitutionally, why the former judge is not continued to be paid the granted state pension of judges, one would violate Article 109 of the Constitution; in addition, such social (material) guarantee of the judge upon the expiry of the powers of the judge, as the pension of the judge, is also defended under Article 52 of the Constitution.

It needs to be held that there are no constitutional arguments, which would ground the fact that under Article 4 (wording of 2 July 2002) of the Law, the granted state pension of judges is not paid if the person receives state social insurance benefits of sickness (including those paid by the employer during the days of sickness), of maternity, of maternity (paternity) or of unemployment, especially when the Constitution defends both the social (material) guarantees of the judge upon the expiry of his powers and such payments which are specified herein (namely state social insurance benefits of sickness (including those paid by the employer during the days of sickness), of maternity, of maternity (paternity) or of unemployment). They may not be opposed.

Taking account of the arguments set forth, the conclusion should be drawn that the provision of Article 4 (wording of 2 July 2002) of the Law whereby the granted state pension of judges is not continued to be paid for the former judge because of the fact that the former judge who meets all the conditions established in the Law, receives state social insurance benefits of sickness (including those paid by the employer during the days of sickness), of maternity, of maternity (paternity) or of unemployment was in conflict with Articles 52 and 109 of the Constitution and with the constitutional principles of a state under the rule of law.

8. Summing up the conclusions drawn, it needs to be held that the provision “the state pension of judges shall not be granted and the granted pension shall not be paid, if: <…> (6) the person has the income from which state social pension insurance contributions are calculated and paid or if he receives state social insurance benefits of sickness (including those paid by the employer during the days of sickness), of maternity, of maternity (paternity) or of unemployment” of Article 4 (wording of 2 July 2002) of the Law was in conflict with Articles 52 and 109 of the Constitution and with the constitutional principle of a state under the rule of law, and the provision “the state pension of judges shall not be granted and the granted pension shall not be paid, if: <…> (6) the person has the income from which state social pension insurance contributions are calculated and paid” was also in conflict with Paragraph 1 of Article 48 of the Constitution.

9. It needs to be noted that, as mentioned before, Item 6 of Article 4 (wording of 2 July 2002) of the Law has been amended; at present, it is not set forth in its primary wording—the wording of 2 July 2002.

It needs also to be noted that, as it has been mentioned, even though the impugned legal regulation has been amended, Item 6 (not only the wording of 2 July 2002, but also the wordings of 4 November 2004, 19 May 2005 and 8 June 2006) of Article 4 of the Law has always enshrined (and still enshrines) the general rule that if the person has the income from which state social pension insurance contributions are calculated and paid or if he receives certain social payments, he shall not be granted the state pension of judges, and the granted state pension of judges is not paid.

10. On the grounds of the arguments which are analogous to those, upon which the conclusion has been drawn in this ruling of the Constitutional Court that the provision “the state pension of judges shall not be granted and the granted pension shall not be paid, if: <…> (6) the person has the income from which state social pension insurance contributions are calculated and paid or if he receives state social insurance benefits of sickness (including those paid by the employer during the days of sickness), of maternity, of maternity (paternity) or of unemployment” of Article 4 (wording of 2 July 2002) of the Law was in conflict with Articles 52 and 109 of the Constitution and with the constitutional principle of a state under the rule of law, the conclusion should also be drawn that the provision “the state pension of judges shall not be granted and the granted pension shall not be paid, if: <…> (6) the person has the income from which state social pension insurance contributions are calculated and paid or if he receives state social insurance benefits of sickness (including those paid by the employer during the days of sickness), of maternity, of maternity (paternity) or social insurance payments of unemployment” of Article 4 (wording of 4 November 2004) of the Law, as well as the provision “the state pension of judges shall not be granted and the granted pension shall not be paid, if: <…> (6) the person has the income from which state social pension insurance contributions are calculated and paid or if he receives state social insurance benefits of sickness (including those paid by the employer during the days of sickness), of maternity, of maternity (paternity), of professional rehabilitation or social insurance payments of unemployment” of Article 4 (wording of 19 May 2005) of the Law were also in conflict with Articles 52 and 109 of the Constitution, and with the constitutional principle of a state under the rule of law.

On the grounds of the same arguments, the conclusion should be drawn that the provision “the state pension of judges shall not be granted and the granted pension shall not be paid, if: <…> (6) the person has the income from which state social pension insurance contributions are calculated and paid or if he receives state social insurance benefits of sickness (including those paid by the employer during the days of sickness), of maternity, of maternity (paternity), of professional rehabilitation or social insurance payments of unemployment” of Article 4 (wording of 8 June 2006) of the Law is in conflict with Articles 52 and 109 of the Constitution, and with the constitutional principle of a state under the rule of law.

11. On the grounds of the arguments which are analogous to those, upon which the conclusion has been drawn in this ruling of the Constitutional Court that the provision “the state pension of judges shall not be granted and the granted pension shall not be paid, if: <…> (6) the person has the income from which state social pension insurance contributions are calculated and paid” of Article 4 (wording of 2 July 2002) of the Law was in conflict with Paragraph 1 of Article 48 of the Constitution, the conclusion should be drawn that also the provision “the state pension of judges shall not be granted and the granted pension shall not be paid, if: <…> (6) the person has the income from which state social pension insurance contributions are calculated and paid” of Article 4 (wording of 4 November 2004) of the Law, as well as the provision “the state pension of judges shall not be granted and the granted pension shall not be paid, if: <…> (6) the person has the income from which state social pension insurance contributions are calculated and paid” of this article (wording 19 May 2005) were in conflict with Paragraph 1 of Article 48 of the Constitution.

On the grounds of the same arguments, the conclusion should be drawn that the provision “the state pension of judges shall not be granted and the granted pension shall not be paid, if: <…> (6) the person has the income from which state social pension insurance contributions are calculated and paid” of Article 4 (wording of 8 June 2006) of the Law is in conflict with Article 48 of the Constitution.

12. Having held that the provision “the state pension of judges shall not be granted and the granted pension shall not be paid, if: <…> (6) the person has the income from which state social pension insurance contributions are calculated and paid or if he receives state social insurance benefits of sickness (including those paid by the employer during the days of sickness), of maternity, of maternity (paternity) or of unemployment” of Article 4 (wording of 2 July 2002) of the Law was in conflict with Articles 52 and 109 of the Constitution and with the constitutional principle of a state under the rule of law, and that the provision “the state pension of judges shall not be granted and the granted pension shall not be paid, if: <…> (6) the person has the income from which state social pension insurance contributions are calculated and paid” was also in conflict with Paragraph 1 of Article 48 of the Constitution, the Constitutional Court will not further investigate the compliance of the impugned legal regulation with Article 23 of the Constitution.

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

ruling:

1. To recognise that the provision “the state pension of judges shall not be granted and the granted pension shall not be paid, if: <…> (6) the person has the income from which state social pension insurance contributions are calculated and paid or if he receives state social insurance benefits of sickness (including those paid by the employer during the days of sickness), of maternity, of maternity (paternity) or of unemployment” of Article 4 (wording of 2 July 2002) (Official Gazette Valstybės žinios, 2002, No. 73-3088) of the Republic of Lithuania’s Law on the State Pensions of Judges was in conflict with Articles 52 and 109 of the Constitution of the Republic of Lithuania and with the constitutional principle of a state under the rule of law, and that the provision “the state pension of judges shall not be granted and the granted pension shall not be paid, if: <…> (6) the person has the income from which state social pension insurance contributions are calculated and paid” was also in conflict with Paragraph 1 of Article 48 of the Constitution of the Republic of Lithuania.

2. To recognise that the provision “the state pension of judges shall not be granted and the granted pension shall not be paid, if: <…> (6) the person has the income from which state social pension insurance contributions are calculated and paid or if he receives state social insurance benefits of sickness (including those paid by the employer during the days of sickness), of maternity, of maternity (paternity) or social insurance payments of unemployment” of Article 4 (wording of 4 November 2004) (Official Gazette Valstybės žinios, 2004, No. 171-6299) of the Republic of Lithuania’s Law on the State Pensions of Judges was in conflict with Articles 52 and 109 of the Constitution of the Republic of Lithuania and with the constitutional principle of a state under the rule of law, and that the provision “the state pension of judges shall not be granted and the granted pension shall not be paid, if: <…> (6) the person has the income from which state social pension insurance contributions are calculated and paid” was also in conflict with Paragraph 1 of Article 48 of the Constitution of the Republic of Lithuania.

3. To recognise that the provision “the state pension of judges shall not be granted and the granted pension shall not be paid, if: <…> (6) the person has the income from which state social pension insurance contributions are calculated and paid or if he receives state social insurance benefits of sickness (including those paid by the employer during the days of sickness), of maternity, of maternity (paternity), of professional rehabilitation or social insurance payments of unemployment” of Article 4 (wording of 19 May 2005) (Official Gazette Valstybės žinios, 2005, No. 71-2554) of the Republic of Lithuania’s Law on the State Pensions of Judges was in conflict with Articles 52 and 109 of the Constitution of the Republic of Lithuania and with the constitutional principle of a state under the rule of law, and that the provision “the state pension of judges shall not be granted and the granted pension shall not be paid, if: <…> (6) the person has the income from which state social pension insurance contributions are calculated and paid” was also in conflict with Paragraph 1 of Article 48 of the Constitution of the Republic of Lithuania.

4. To recognise that the provision “the state pension of judges shall not be granted and the granted pension shall not be paid, if: <…> (6) the person has the income from which state social pension insurance contributions are calculated and paid or if he receives state social insurance benefits of sickness (including those paid by the employer during the days of sickness), of maternity, of maternity (paternity), of professional rehabilitation or state social insurance payments of unemployment” of Article 4 (wording of 8 June 2006) (Official Gazette Valstybės žinios, 2006, No. 72-2686) of the Republic of Lithuania’s Law on the State Pensions of Judges is in conflict with Articles 52 and 109 of the Constitution of the Republic of Lithuania and with the constitutional principle of a state under the rule of law, and that the provision “the state pension of judges shall not be granted and the granted pension shall not be paid, if: <…> (6) the person has the income from which state social pension insurance contributions are calculated and paid” is also in conflict with Paragraph 1 of Article 48 of the Constitution of the Republic of Lithuania.

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

The ruling is pronounced in the name of the Republic of Lithuania.

Justices of the Constitutional Court: Armanas Abramavičius
                                                                      Toma Birmontienė
                                                                      Egidijus Kūris
                                                                      Kęstutis Lapinskas
                                                                      Zenonas Namavičius
                                                                      Ramutė Ruškytė
                                                                      Vytautas Sinkevičius
                                                                      Stasys Stačiokas
                                                                      Romualdas Kęstutis Urbaitis