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On the state pensions of judges

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

 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

 RULING

ON THE COMPLIANCE OF ARTICLES 5 AND 6 OF THE REPUBLIC OF LITHUANIA LAW ON THE STATE PENSIONS OF JUDGES, PARAGRAPH 3 (WORDING OF 8 DECEMBER 2009) OF ARTICLE 3 OF THE REPUBLIC OF LITHUANIA LAW ON STATE PENSIONS, AND ITEM 1 OF PARAGRAPH 2 OF ARTICLE 1 AND PARAGRAPH 4 OF ARTICLE 16 OF THE REPUBLIC OF LITHUANIA PROVISIONAL LAW ON RECALCULATION AND PAYMENT OF SOCIAL PAYMENTS WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 29 June 2010

Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court Armanas Abramavičius, Toma Birmontienė, Pranas Kuconis, Kęstutis Lapinskas, Zenonas Namavičius, Ramutė Ruškytė, Egidijus Šileikis, Algirdas Taminskas, and Romualdas Kęstutis Urbaitis,

with the secretary of the hearing—Daiva Pitrėnaitė,

in the presence of the representatives of the Seimas of the Republic of Lithuania, the party concerned, who were Julius Sabatauskas and Algirdas Sysas, Members of the Seimas, and Ona Buišienė, a senior advisor of the Legal Department of the Office of the Seimas,

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 15 June 2010 heard constitutional justice case No. 06/2008-18/2008-24/2010 subsequent to the petitions of the Vilnius Regional Administrative Court, the petitioner, requesting to investigate whether:

1) Article 5 and Paragraphs 1 and 2 of Article 6 of the Republic of Lithuania Law on the State Pensions of Judges, to the extent that the maximum nine-year term of the office of the Constitutional Court justice is not regarded to be a sufficient independent basis for granting the state pension of judges of the maximum amount, are not in conflict with Article 52, Paragraph 1 of Article 103, and Paragraph 1 of Article 104 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law, also whether the provision of Paragraph 3 of Article 6 of the same law whereby the sum of the state pension of judges and the pensions granted under other laws (state pensions and state social insurance pensions) may not exceed per person the amount of 1.5 of the average monthly remuneration for work in the economy of the country, as announced by the Department of Statistics, for the quarter before the last quarter preceding the month for which the state pension of judges is paid, is not in conflict with Article 52, Paragraph 1 of Article 104, and Paragraph 2 of Article 109 of the Constitution of the Republic of Lithuania, as well as the constitutional principle of a state under the rule of law (petition No. 1B-06/2008);

2) Paragraph 2 of Article 6 of the Republic of Lithuania Law on the State Pensions of Judges is not in conflict with Articles 23 and 52 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law (petition No. 1B-20/2008);

3) Item 1 of Paragraph 2 of Article 1 of the Republic of Lithuania Provisional Law on Recalculation and Payment of Social Payments, to the extent that it is established that this law is applied to the persons who receive the state pensions that are granted and paid under the Republic of Lithuania Law on the State Pensions of Judges, whether Paragraph 4 of Article 16 of the same law, to the extent that it does not provide for compensation of the reduced state pensions of judges, and whether Article 1 of the Republic of Lithuania Law on the Amendment of Articles 3, 6, 8, and 15 of the Law on State Pensions, to the extent that after amending Article 3 of the Republic of Lithuania Law on State Pensions, Paragraph 3 (wording of 8 December 2009) thereof prescribed that the size of the state pension of judges as well as the sum total of the size of this pension and other state pensions and state social insurance pensions granted to the same person may not exceed per person the amount of 1.3 of the average monthly remuneration for work in the economy of the country, as announced by the Department of Statistics under the Government of the Republic of Lithuania, for the quarter before the last quarter preceding the month for which the state pension is paid, are not in conflict with Articles 23 and 52 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law (petition No. 1B-25/2010).

By the Constitutional Court decision of 24 May 2010 the said petitions were joined into one case and it was given reference No. 06/2008-18/2008-24/2010.

 

The Constitutional Court

has established:

I

  1. The Vilnius Regional Administrative Court, the petitioner, was investigating an administrative case. By its ruling the court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting to investigate whether Article 5 and Paragraphs 1 and 2 of Article 6 of the Law on the State Pensions of Judges, to the extent that the maximum nine-year term of the office of the Constitutional Court justice is not regarded to be a sufficient independent basis for granting the state pension of judges of the maximum amount, is not in conflict with Article 52, Paragraph 1 of Article 103, and Paragraph 1 of Article 104 of the Constitution and the constitutional principle of a state under the rule of law, also whether the provision of Paragraph 3 of Article 6 of the same law whereby the sum of the state pension of judges and the pensions granted under other laws (state pensions and state social insurance pensions) may not exceed per person the amount of 1.5 of the average monthly remuneration for work in the economy of the country, as announced by the Department of Statistics, for the quarter before the last quarter preceding the month for which the state pension of judges is paid, is not in conflict with Article 52, Paragraph 1 of Article 104, and Paragraph 2 of Article 109 of the Constitution as well as the constitutional principle of a state under the rule of law.
  2. The Vilnius Regional Administrative Court, the petitioner, was investigating an administrative case. By its ruling the court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting to investigate whether Paragraph 2 of Article 6 of the Law on the State Pensions of Judges is not in conflict with Articles 23 and 52 of the Constitution and the constitutional principle of a state under the rule of law.
  3. The Vilnius Regional Administrative Court, the petitioner, was investigating an administrative case. By its ruling the court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting to investigate whether Item 1 of Paragraph 2 of Article 1 of the Provisional Law on Recalculation and Payment of Social Payments, to the extent that it is established that this law is applied to the persons who receive the state pensions that are granted and paid under the Law on the State Pensions of Judges, whether Paragraph 4 of Article 16 of the same law, to the extent that it does not provide for compensation of the reduced state pensions of judges, and whether Article 1 of the Law on the Amendment of Articles 3, 6, 8, and 15 of the Law on State Pensions, to the extent that after amending Article 3 of the Law on State Pensions, Paragraph 3 (wording of 8 December 2009) thereof prescribed that the size of the state pension of judges as well as the sum total of the size of this pension and other state pensions and state social insurance pensions granted to the same person may not exceed per person the amount of 1.3 of the average monthly remuneration for work in the economy of the country, as announced by the Department of Statistics under the Government of the Republic of Lithuania, for the quarter before the last quarter preceding the month for which the state pension is paid, are not in conflict with Articles 23 and 52 of the Constitution and the constitutional principle of a state under the rule of law.

II

  1. The petition of the Vilnius Regional Administrative Court, the petitioner, requesting to investigate whether Articles 5 and 6 of the Law on the State Pensions of Judges are not in conflict with the Constitution (petition No. 1B-06/2008), is substantiated by the following arguments.

The petitioner notes that in the jurisprudence of the Constitutional Court the independence of judges is construed as one of the essential principles of a democratic state under the rule of law and as a necessary condition of protection of human rights and freedoms, and it is emphasised that the state has a duty to ensure such social (material) maintenance for judges which would be in conformity with the status of the judges when they are in office, as well as after expiry of the term of their office; under the Constitution, the social (material) guarantees established to judges must be such so that they would be in line with the constitutional status of the judge and his dignity. Under Item 3 of Paragraph 2 of Article 6 of the Law on the State Pensions of Judges, the persons who were in the office of a justice of the Constitutional Court for the maximum nine-year term established in the Constitution as well as the persons who gained a five-year and longer (up to 10 years) work record as a judge in other courts (no matter of what court system and which court level, thus, in the courts of the lowest level as well) are granted the minimum pension of only 10 percent of the amount of the remuneration for work of the judge, which is provided for in the Law on the State Pensions of Judges, the fact which, in the opinion of the petitioner, is not in line with the imperative stemming from the Constitution and formulated in the jurisprudence of the Constitutional Court to differentiate the social (material) guarantees of judges, when establishing such guarantees, according to the court system and the court level where the judge works, as well as with the principles of justice, reasonableness, and proportionality that arise from the constitutional principle of a state under the rule of law. Under Article 103 of the Constitution, justices of the Constitutional Court are appointed for a single nine-year term of office, therefore, according to the petitioner, the said maximum term of the office of the Constitutional Court justice should be recognised as a sufficient independent basis for granting the maximum state pension of judges. Neither Article 5 and Paragraphs 1 and 2 of Article 6 of the disputed law, nor other articles of this law provide that the maximum nine-year term of the office of the Constitutional Court justice is a sufficient independent basis for granting the state pension of judges of such a size which would be in line with a special status of the Constitutional Court in the constitutional system of judicial power, consequently, in the opinion of the petitioner, in this way, one levels and at the same time diminishes the social (material) guarantee of the independence of the judge of this court, entrenched in Paragraph 1 of Article 104 of the Constitution, and disregards the constitutional imperative to differentiate the social (material) guarantees of judges, when establishing such guarantees, according to the court system and the court level where the judge works.

By invoking the official constitutional doctrine, the petitioner also notes that the social (material) guarantee of the judge—the state pension of judges—is protected not only under the provisions of Article 109 of the Constitution concerning the independence of the judge and courts, but under Article 52 of the Constitution as well. Therefore, the fact that, under the regulation established in the disputed law, the maximum nine-year term of the office of the Constitutional Court justice is not a sufficient independent basis for granting the state pension of judges of the maximum size and that only the state pension of judges of the minimum size established in this law may be granted is not in conformity with the provision of the official constitutional doctrine that when establishing the bases for granting of the state pension, as well as the sizes of this pension, one must pay heed to the principles of justice, reasonableness, and proportionality that stem from the constitutional principle of a state under the rule of law and which must be invoked in implementation of the rights of citizens guaranteed in Article 52 of the Constitution.

In its petition the petitioner also maintains that, according to the official constitutional doctrine, one must establish such legal regulation which would ensure the independence of the judge and courts, thus, also the social (material) guarantees of the judge not only during the term of his office, but also upon expiry of his powers; these guarantees must be real and not nominal. Therefore, in the opinion of the petitioner, the provision of Paragraph 3 of Article 6 of the disputed law, whereby the sum of the granted state pension of judges and the pensions granted under other laws may not exceed per person the amount of 1.5 of the average monthly remuneration for work in the economy of the country, denies the expectations grounded on the constitutional principles of justice, reasonableness, and proportionality that the pension will in reality depend upon the amount of the remuneration of the judge and diminishes the guarantee of the independence of judges itself upon expiry of powers of the judge.

The petitioner also notes that, according to the official constitutional doctrine, the social (material) guarantees of the judge may depend only upon the circumstances related with the constitutional status of the judge and may not be treated as replacing other social (material) guarantees which are ensured to a former judge on other bases. However, under the norm of disputed Paragraph 3 of Article 6 of the Law on the State Pensions of Judges, the size of the actually paid state pension of judges depends upon the pensions and amounts thereof the person receives under other laws, therefore, as it is maintained by the petitioner, only a certain part of the granted sum of the state pension of judges is received in reality; this fact, in the opinion of the petitioner, obviously shows this guarantee of the independence of the judge to be merely nominal and, therefore, not fulfilling the function attributed to it by the Constitution.

  1. The petition of the Vilnius Regional Administrative Court, the petitioner, requesting to investigate whether Paragraph 2 of Article 6 of the Law on the State Pensions of Judges is not in conflict with the Constitution (petition No. 1B-20/2008), is substantiated by the following arguments.

The petitioner notes that the imperative of the constitutional protection of the remuneration of the judge and his other social (material) guarantees arises from the principle of the independence of the judge and courts, which is entrenched in the Constitution (inter alia Article 109 thereof).  In the jurisprudence of the Constitutional Court it is emphasised that the state has a duty to ensure such social (material) maintenance for judges which would be in conformity with the status of the judges when they are in office, as well as after expiry of the term of their office, as well as to establish to judges such social (material) guarantees which would be in line with the constitutional status of the judge and his dignity and which would be real and not nominal. In the opinion of the petitioner, disputed Paragraph 2 of Article 6 of the Law on the State Pensions of Judges, wherein granting of the state pensions of judges and payment thereof are linked to a five-year interval of work record and to a fixed percent of the average remuneration for work received by the judge according to the corresponding five-year interval of work record, violates the right of the person to receive payments of his well-earned pension according to an exact interval of his work record guaranteed under Article 52 of the Constitution. At the same time, in the opinion of the petitioner, disputed Paragraph 2 of Article 6 of the said law violates the guarantees of the protection of ownership rights, which are entrenched in Article 23 of the Constitution, as pension payments constitute part of one’s ownership.

In addition, the petitioner points out that the disputed legal regulation also violates the constitutional principle of the protection of legitimate expectations and that of justice, since a five-year interval of work record as a judge established by Paragraph 2 of Article 6 of the Law on the State Pensions of Judges, without differentiating the size of the granted pension according to each year of work record as a judge, unreasonably limits the possibility of a person who has a longer work record as a judge (e.g., 13 years) than the minimum of the interval of work record to receive the well-earned pension.

  1. The petition of the Vilnius Regional Administrative Court, the petitioner, requesting to investigate whether Item 1 of Paragraph 2 of Article 1 and Paragraph 4 of Article 16 of the Provisional Law on Recalculation and Payment of Social Payments and Article 1 of the Law on the Amendment of Articles 3, 6, 8, and 15 of the Law on State Pensions are not in conflict with the Constitution (petition No. 1B-25/2010), is substantiated by the following arguments.

The petitioner points out that, on 9 December 2009, the Seimas adopted the Provisional Law on Recalculation and Payment of Social Payments, in Item 1 of Paragraph 2 of Article 1 whereof it is prescribed that this law is applied to the persons who receive the state pensions that are granted and paid under inter alia the Law on the State Pensions of Judges. Paragraph 4 of Article 16 of the disputed law establishes an obligation to the Government till 1 July 2010 to prepare and approve the inventory schedule of the procedure for compensation of the reduced state social insurance pensions of old age and of lost capacity to work. Thus, according to the petitioner, having reduced the state pensions of judges, the compensation thereof is not provided for in the disputed law.

The doubts of the petitioner regarding the compliance of the disputed provisions of the Provisional Law on Recalculation and Payment of Social Payments with the Constitution are substantiated by the provisions of the official constitutional doctrine that the judge must be not only of high professional qualification and impeccable reputation, but also materially independent and feel secure as to his future; the social (material) guarantees of the principle of the independence of the judge that arise from the Constitution mean that the state has a duty to ensure such social (material) maintenance for judges which would be in conformity with the status of judges when they are in office, as well as after expiry of the term of their office; under the Constitution, the social (material) 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 social (material) guarantees of judges which are established (applied) to judges upon 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) 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). The Vilnius Regional Administrative Court notes that the requirements for the social (material) guarantees of judges are also entrenched in international documents.

The petitioner also notes that inseparable elements of the principle of a state under the rule of law are the protection of legitimate expectations, legal certainty, and legal security and that these principles imply that the state must fulfil the undertaken obligations to the person. One of the elements of the principle of the protection of legitimate expectations is the protection of rights that are acquired under the Constitution as well as laws and other legal acts which are not in conflict with the Constitution. Under the official constitutional doctrine, the persons who have been granted and paid the state pension of judges have the right to demand that the payments be paid further to them in the amounts which were granted and paid previously. Thus, it is not permitted to deny the acquired rights and legitimate interests of the person by the changes of the legal regulation.

In the opinion of the petitioner, the reduction of pensions of judges without having established any mechanism of compensation, thereby ignoring the Constitutional Court rulings, violates the principle of a state under the rule of law as well as the main elements thereof: the protection of legitimate expectations, legal certainty, and legal security as well as the constitutional principles of proportionality and justice. The petitioner maintains that the right to demand the payments of pensionary maintenance that are established in the Constitution and laws arises from Article 52 of the Constitution, while proprietary aspects of this right are protected under Article 23 thereof, and notes that the disputed legal regulation unreasonably limits the right of the person to receive his well-earned and granted pension. Therefore, the Vilnius Regional Administrative Court has doubts as regards the compliance of such legal regulation with Articles 23 and 52 of the Constitution and the constitutional principle of a state under the rule of law.

The doubts of the Vilnius Regional Administrative Court regarding the compliance of the provision of the Law on the Amendment of Articles 3, 6, 8, and 15 of the Law on State Pensions, whereby the maximum size of the state pension established in the Law on State Pensions as well as the sum of the size of this pension and state pensions and state social insurance pensions granted to the same person was reduced per person from the amount of 1.5 of the average monthly remuneration for work in the economy of the country, as announced by the Department of Statistics, for the quarter before the last quarter preceding the month for which the state pension is paid to 1.3 of this amount, with the Constitution is substantiated by the provisions of the official constitutional doctrine of the independence of the judge and courts as well as other provisions related with the legal regulation of the state pensions of judges. The petitioner also notes that the general law (Law on State Pensions) may not amend the special law (Law on the State Pensions of Judges) and that the state pension of judges was reduced twice, i.e. both by the disputed Law on the Amendment of the Law on State Pensions and the Provisional Law on Recalculation and Payment of Social Payments. Thus, the petitioner doubts whether the Law on the Amendment of Articles 3, 6, 8, and 15 of the Law on State Pensions, to the extent that the maximum size of the state pension of judges as well as the size of the sum of this pension and other pensions granted to the same person were reduced, is not in conflict with the Constitution.

III

  1. In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from the representatives of the Seimas, the party concerned, who were Julius Sabatauskas and Raimondas Šukys, Members of the Seimas, and Ona Buišienė, a senior advisor of the Legal Department of the Office of the Seimas, wherein it is maintained that Article 5 and Paragraphs 1 and 2 of Article 6 of the Law on the State Pensions of Judges are not in conflict with Article 52, Paragraph 1 of Article 103, and Paragraph 1 of Article 104 of the Constitution and the constitutional principle of a state under the rule of law, and that Paragraph 3 of Article 6 of the same law is not in conflict with Article 52, Paragraph 1 of Article 104, and Paragraph 2 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law. The position of the representatives of the Seimas, the party concerned, is substantiated by the following arguments.

1.1. Article 5 of the Law on the State Pensions of Judges, which is disputed by the petitioner, entrenches a summing method of calculation of the person’s work record as a judge (in various court systems, as a judge of an international court). This summing method enables to calculate the total duration of the work record as a judge (irrespective of the court system and the court level), which, among other things, has influence on the percentage of the state pension of judges being calculated. If the maximum size of the state pension of judges were linked only with the term of office in a concrete court system, court, or court level, this would create preconditions to level the social guarantees of those judges who consistently and continuously worked as judges (e.g., for 20 years and more) in various court systems and pursued the professional career of a judge. The provision that justices of the Constitutional Court are “appointed for a single nine-year term of office” of Paragraph 1 of Article 103 of the Constitution does not allow to assess it as entrenching an independent basis of social maintenance of the Constitutional Court justice for granting the pension of judges of the maximum size, since this provision entrenches the term of powers of the judge. The Constitutional Court, which, under the Constitution, executes the constitutional judicial control, is considered to be part of the court system (the Constitution provides for the constitutional purpose, peculiarities of competence, the procedure for formation, limitations of activities thereof, etc.). Therefore, the legal regulation of the size of the state pension of the Constitutional Court justices whose powers have expired cannot be separated from the context of the whole system of courts as judicial power, also from that of the social guarantees of the whole corps of judges and other persons who have the right to receive state pensions.

1.2. The calculation of the size of the state pension of judges is regulated in Paragraphs 1 and 2 of Article 6 of the Law on the State Pensions of Judges. The following provisions entrench the criteria for calculation of the state pensions of judges: first, the work record as a judge is differentiated according to its duration; second, the state pension of judges is calculated from the average remuneration for work received in last 5 years before the termination of holding the office of the judge; and, third, judges are granted a certain percentage amounts of the state pension. The whole of all these criteria has influence on the size of the state pension of judges granted to the judge. Out of the said criteria, namely the average remuneration for work determines the size of the state pension granted to the judge, since the average remuneration for work of judges in different court systems and court levels (correspondingly of a higher and lower level) differs due to the base sizes of the remuneration (positional salary) coefficient that is established to judges and which has influence on the average remuneration.

1.3. Paragraph 3 of Article 6 (which is disputed by the petitioner) of the Law on the State Pensions of Judges entrenches limitation upon the size of the state pension paid to judges. Such limitation is not only entrenched with regard to granting the state pension of judges, but it is also applied in the whole system of state pensions. The said limitation is grounded on peculiarities of state pensions and differences (in the nature, purpose) thereof from the state social insurance old age pension as well as other state social insurance pensions. The state pension of judges, as one of the types of state pensions, does not replace the state social insurance pension. The source of payment of the state pension of judges (pensions of other types of state pensions as well) is the funds of the State Budget. The constitutional principle of responsible governance obligates the Seimas to plan and use the funds of the State Budget responsibly and rationally. When planning and using the funds of the State Budget, account is taken of the indicators of the economic and financial system of the country, therefore, the Seimas may entrench a criterion which would reflect the state of the economy of the country and would express certain limitation such as “the sum total of state pensions and state social insurance pensions may not exceed per person the amount of 1.5 of the average monthly remuneration for work in the economy of the country” and which would balance not only the system of all the state pensions paid from the State Budget, but also the system of state social insurance, the fact which would be in conformity with the constitutional imperative of social harmony as well as the principles of justice, reasonableness, and proportionality.

  1. In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from the representatives of the Seimas, the party concerned, who were A. Sysas, a Member of the Seimas, and Ona Buišienė, a senior advisor of the Legal Department of the Office of the Seimas, wherein it is maintained that Paragraph 2 of Article 6 of the Law on the State Pensions of Judges is not in conflict with Articles 23 and 52 of the Constitution and the constitutional principle of a state under the rule of law. The position of the representatives of the Seimas, the party concerned, is substantiated by the following arguments.

2.1. The state pension of judges constitutes one type of the state pensions, and it is linked with the status of the judge. Receipt of this pension is linked not with social insurance pension contributions of an established size. This pension does not replace the state social insurance pension, it is neither the primary, nor the main pension, and it is not a privilege, either. The source of payment of the state pension of judges (as well as of other types of state pensions) is the funds of the State Budget.

2.2. The criteria for differentiation of the size of the state pensions of judges are common to judges of the all court systems. The size of the pension calculated to the judge is determined not by the criterion of the work record, which was indicated by the petitioner, alone, but by the whole of the specified criteria: the work record, the average remuneration for work received in last 5 years before the termination of holding the office of the judge, and the percentage amount. When establishing, by means of the law, the conditions for granting and payment of the state pensions of judges (also when choosing the criteria), the Seimas enjoys broad discretion. The criterion of the person’s work record as a judge (the application of a five-year interval of the work record as a judge) is chosen seeking to differentiate the state pensions of judges not only according to the work record, but also according to the professional career of judges. By entrenching the criterion of the work record—a five-year interval of the person’s work record as a judge—the Seimas took into account the institute of promotion of judges (which, among other things, entrenches differentiated requirements to the persons who seek to become judges and heads of courts of certain court systems and court levels), which is regulated in the Republic of Lithuania Law on Courts. This law, besides other requirements, also entrenches the requirement to the judge who seeks a career in a certain court system and court level to have the minimum five-year work record. Therefore, in the opinion of the representatives of the party concerned, there is no basis to maintain that a five-year interval of the work record as a judge, which is established by such legal regulation in order to differentiate the size of the state pension of judges, violates the principles of legitimate expectations and justice.

2.3. The conditions for granting and payment of the state pension of judges as well as the establishment of the size of this pension by taking into account the constitutional legal status of the judge cannot be opposed to legitimate expectations and the rights of ownership of other persons who, under laws, have the right to receive state pensions of other types. When establishing the conditions for granting and payment of the state pension as well as sizes of the state pension to the groups of these persons, a criterion of dignity is applied to them, as well as to the persons who have the right to receive the state pension of judges, and the rights of those persons are also protected by the aspect of ownership. The Constitutional Court has held more than once that the protection of legitimate expectations, legal certainty, and legal security are inseparable from the principle of a state under the rule of law. Thus, the legal regulation of the state pensions of judges is implemented systemically, by also taking account of the available financial resources of the state, which are allocated to ensure the functioning of the whole system of state pensions.

  1. In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from the representative of the Seimas, the party concerned, who was Ingrida Valinskienė, a Member of the Seimas, wherein it is maintained that Item 1 of Paragraph 2 of Article 1 and Paragraph 4 of Article 16 of the Provisional Law on Recalculation and Payment of Social Payments as well as Article 1 of the Law on the Amendment of Articles 3, 6, 8, and 15 of the Law on State Pensions are not in conflict with Articles 23 and 52 of the Constitution and the constitutional principle of a state under the rule of law. The position of the representative of the Seimas, the party concerned, is substantiated by the following arguments.

3.1. The legislator, while establishing which persons are granted and paid the state pension, the grounds and conditions for granting and payment of the state pension, as well as the sizes of this pension, is bound by the constitutional imperative of social harmony and the principles of justice, reasonableness and proportionality. Granting and payment of the state pension must not become a privilege, therefore, a conclusion is to be made that having entrenched an exception in the Provisional Law on Recalculation and Payment of Social Payments and having prescribed that this law is not applied to the persons who receive the state pensions granted and paid under the Law on the State Pensions of Judges, one would establish a regulation which would apparently violate the principles entrenched in the Constitution. Under the doctrine formulated by the Constitutional Court, the Constitution does not protect and defend any such rights acquired by the person which are privileges as to their content; defence and protection of privileges would mean that one violates the constitutional principles of equal rights of persons and justice, as well as the imperative of harmonious society enshrined in the Constitution, thus, also the constitutional principle of a state under the rule of law. It needs to be noted that the disputed norms of the law entrench a proportional protection of the material needs of the persons who receive the lowest payments of social protection and income from work.

3.2. Under Paragraph 4 of Article 16 of the Provisional Law on Recalculation and Payment of Social Payments, compensation of other payments, as well as of the state pensions of judges, is not provided for. Such regulation is established on the basis of the constitutional principle of a state under the rule of law, which implies various requirements for the legislator and other law-making entities. One of such requirements is a duty to establish in legal acts requirements based on provisions of general character, having assessed that the differentiated legal regulation must be grounded only on objective differences of the situation of subjects of public relations regulated by respective legal acts. It needs to be noted that, under the Constitution, the legislator, when passing a law or other legal act the implementation of which requires funds, must provide for the funds necessary for the implementation of such a law or other legal act. Under the Constitution, the legislator may not create any such legal situation where upon passing of law or other legal act the implementation of which requires funds, such funds are not allocated or the allocation thereof is not sufficient. When establishing the disputed regulation, account was also taken of the economic and social situation of the country of that time, therefore, the legislator followed the doctrine formulated by the Constitutional Court that legal acts may not require impossible things (lex non cogit ad impossibilia). If such compensation of the reduced payments were established, such regulation could not be implemented in reality; moreover, legal preconditions would be created for emergence of the expectations that would be impossible to be properly satisfied and the fulfilment of which could cause an even more difficult economic situation in the country, and the funds necessary for the compensation would become a burden also to those persons the payments to whom have been reduced.

3.3. In its ruling of 3 December 2003, the Constitutional Court noted that state pensions differ in their nature and character from state social insurance old age pensions.
These pensions are granted to persons for their service or merits to the State of Lithuania as well as a compensation to victims and are paid from the State Budget. The Constitutional Court emphasised that state pensions are not a privilege. The state pays these pensions by taking account of the resources of its budget funds and its financial capability. These peculiarities of state pensions imply the fact that the legislator, while taking account of all significant circumstances and paying heed to the Constitution, may establish the maximum size of such pensions or entrench various ways for establishment of the size of such a pension and he is under no obligation to compensate receivers of these pensions for the loss.

IV

At the Constitutional Court hearing, the representatives of the Seimas, the party concerned, who were J. Sabatauskas and A. Sysas, Members of the Seimas, and Ona Buišienė, a senior advisor of the Legal Department of the Office of the Seimas, virtually reiterated the arguments set forth in their written explanations and answered to the questions of justices.

The Constitutional Court

holds that:

I

  1. On 8 December 2009, the Seimas adopted the Law on the Amendment of Articles 3, 6, 8, and 15 of the Law on State Pensions.

The petitioner requests inter alia to investigate whether Article 1 of the Law on the Amendment of Articles 3, 6, 8, and 15 of the Law on State Pensions, to the extent that after amending Article 3 of the Law on State Pensions, Paragraph 3 (wording of 8 December 2009) thereof prescribed that the size of the state pension of judges as well as the sum total of the size of this pension and other state pensions and state social insurance pensions granted to the same person may not exceed per person the amount of 1.3 of the average monthly remuneration for work in the economy of the country, as announced by the Department of Statistics under the Government of the Republic of Lithuania, for the quarter before the last quarter preceding the month for which the state pension is paid, is not in conflict with Articles 23 and 52 of the Constitution and the constitutional principle of a state under the rule of law.

While taking account of the fact that Article 1 of the Law on the Amendment of Articles 3, 6, 8, and 15 of the Law on State Pensions amended inter alia Paragraph 3 (wording of 12 December 2006) of Article 3 of the Law on State Pensions, it needs to be held that the petitioner doubts whether Paragraph 3 (wording of 8 December 2009) of Article 3 of the Law on State Pensions, to the extent that it is prescribed that the size of the state pension of judges as well as the sum total of the size of this pension and other state pensions and state social insurance pensions granted to the same person may not exceed per person the amount of 1.3 of the average monthly remuneration for work in the economy of the country, as announced by the Department of Statistics under the Government of the Republic of Lithuania, for the quarter before the last quarter preceding the month for which the state pension is paid, is not in conflict with Articles 23 and 52 of the Constitution and the constitutional principle of a state under the rule of law.

  1. Thus, the Vilnius Regional Administrative Court, the petitioner, in the constitutional justice case at issue, requests investigation into whether:

– Article 5 and Paragraphs 1 and 2 of Article 6 of the Law on the State Pensions of Judges, to the extent that the maximum nine-year term of the office of the Constitutional Court justice is not regarded to be a sufficient independent basis for granting the state pension of judges of the maximum amount, are not in conflict with Article 52, Paragraph 1 of Article 103, and Paragraph 1 of Article 104 of the Constitution and the constitutional principle of a state under the rule of law;

– the provision of Paragraph 3 of Article 6 of the Law on the State Pensions of Judges that the sum of the state pension of judges and the pensions granted under other laws (state pensions and state social insurance pensions) may not exceed per person the amount of 1.5 of the average monthly remuneration for work in the economy of the country, as announced by the Department of Statistics, for the quarter before the last quarter preceding the month for which the state pension of judges is paid is not in conflict with Article 52, Paragraph 1 of Article 104, and Paragraph 2 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law;

Paragraph 2 of Article 6 of the Law on the State Pensions of Judges is not in conflict with Articles 23 and 52 of the Constitution and the constitutional principle of a state under the rule of law;

– Item 1 of Paragraph 2 of Article 1 of the Provisional Law on Recalculation and Payment of Social Payments, to the extent that it is established that this law is applied to the persons who receive the state pensions that are granted and paid under the Law on the State Pensions of Judges, and Paragraph 4 of Article 16 of the Provisional Law on Recalculation and Payment of Social Payments, to the extent that it does not provide for compensation of the reduced state pensions of judges, are not in conflict with Articles 23 and 52 of the Constitution and the constitutional principle of a state under the rule of law;

– Paragraph 3 (wording of 8 December 2009) of Article 3 of the Law on State Pensions, to the extent that it is prescribed that the size of the state pension of judges as well as the sum total of the size of this pension and other state pensions and state social insurance pensions granted to the same person may not exceed per person the amount of 1.3 of the average monthly remuneration for work in the economy of the country, as announced by the Department of Statistics under the Government of the Republic of Lithuania, for the quarter before the last quarter preceding the month for which the state pension is paid, is not in conflict with Articles 23 and 52 of the Constitution and the constitutional principle of a state under the rule of law.

  1. It needs to be noted that the Constitutional Court will investigate whether Articles 5 and 6 of the Law on the State Pensions of Judges are not in conflict with the Constitution. Other provisions of the Law on the State Pensions of Judges are not the matter of investigation in the constitutional justice case at issue.
  2. In this context it needs to be noted that, under the Constitution, the Constitutional Court must ensure the supremacy of the Constitution in the legal system. The Constitutional Court administers constitutional justice while investigating whether the laws and other acts of the Seimas, the acts of the President of the Republic and the Government are not in conflict with the Constitution. The Constitution does not provide that the Constitutional Court is permitted not to consider certain laws or other legal acts. Thus, the Constitutional Court has the powers to and must investigate the compliance with the Constitution of all the legal acts pointed out in Paragraph 1 of Article 102 of the Constitution, inter alia including those whereby the social (material) guarantees of judges of all courts of the Republic of Lithuania are established.

The Constitutional Court has more than once decided questions of the compliance with the Constitution of the legal regulation of activities of judges and courts and relations of remuneration of judges as well as of pensionary maintenance of judges (Constitutional Court rulings of 6 December 1995, 18 April 1996, 19 December 1996, 5 February 1999, 21 December 1999, 22 October 2007, and decision of 12 January 2000). While construing the Constitution in these as well as other rulings and decisions of the Constitutional Court, the constitutional doctrine of the independence of the judge and courts as well as of the protection of the social (material) guarantees ensuring this independence was formulated.

II

  1. In the constitutional justice case at issue, one requests to investigate the compliance of the corresponding provisions of the Law on the State Pensions of Judges, the Law on State Pensions, and the Provisional Law on Recalculation and Payment of Social Payments with inter alia the constitutional principle of a state under the rule of law.

1.1. The Constitutional Court has held more than once that the constitutional principle of a state under the rule of law is a universal principle, upon which the entire legal system of Lithuania and the Constitution itself are based, that the constitutional principle of a state under the rule of law is to be construed inseparably from the striving for an open, just, and harmonious civil society and a state under the rule of law, which is declared in the Preamble to the Constitution, and that the content of the aforementioned constitutional principle reveals itself in various provisions of the Constitution. The essence of the constitutional principle of a state under the rule of law is the rule of law. The constitutional imperative of the rule of law means that the freedom of state power is limited by law, to which all the entities of legal relations, including the law-making entities, must obey. It needs to be emphasised that the discretion of all the law-making entities is limited by the supreme law—the Constitution. All the legal acts, decisions of all the state and municipal institutions and officials must be in compliance with and not contradicting to the Constitution.

The constitutional principle of a state under the rule of law is especially capacious; it comprises a range of various interrelated imperatives. The constitutional principle of a state under the rule of law must be followed both in law-making and implementation of law (Constitutional Court rulings of 6 December 2000, 13 December 2004, 16 January 2006, 13 August 2007, and decision of 20 April 2010). The compliance of each institute of law with the Constitution must be evaluated according to how this institute is in compliance with the constitutional principle of a state under the rule of law (Constitutional Court rulings of 11 May 1999, 13 December 2004, and decision of 20 April 2010).

1.2. The Constitutional Court has held more than once that inseparable elements of the principle of a state under the rule of law are the protection of legitimate expectations, legal certainty and legal security. The constitutional principles of the protection of legitimate expectations, legal certainty, and legal security imply a duty of the state to guarantee the certainty and stability of legal regulation, to safeguard the rights of persons, as well as to respect legitimate interests and legitimate expectations (Constitutional Court rulings of 12 July 2001, 5 November 2002, 4 March 2003, 17 March 2003, 24 December 2008, and decision of 20 April 2010). These principles inter alia imply that the state must fulfil all its undertaken obligations to the person. As it has been held by the Constitutional Court more than once, if the protection of legitimate expectations, legal certainty, and legal security were not ensured, the trust of the person in the state and law would not be secured.

1.3. When establishing the legal regulation of the relations of pensions, it is obligatory to pay heed to the constitutional principle of a state under the rule of law, inter alia the requirements of proportionality, justice, and reasonableness.

The Constitutional Court has held that the constitutional principle of proportionality, as one of the elements of the constitutional principle of a state under the rule of law, means that the measures provided for in a law must be in line with the legitimate objectives which are important to the society, that these measures must be necessary in order to reach these objectives, and that these measures must not restrain the rights and freedoms of the person clearly more than necessary in order to reach these objectives (Constitutional Court ruling of 11 December 2009 and decision of 20 April 2010).

In its rulings the Constitutional Court has held more than once that justice is one of the basic objectives of law, as the means of regulation of social relations. It is one of basic moral values and one of basic foundations of a state under the rule of law. It may be implemented by ensuring certain equilibrium of interests and by escaping fortuity and arbitrariness, instability of social life, and conflict of interests (Constitutional Court rulings of 22 December 1995, 6 December 2000, 17 March 2003, 17 November 2003, 3 December 2003, 24 December 2008, and decision of 20 April 2010).

1.4. Under the Constitution, the State of Lithuania is socially oriented, thus, the sate is under constitutional obligation and it must undertake the burden of fulfilment of certain commitments. The Constitutional Court has held that the social solidarity principle entrenched in the Constitution implies that the burden of fulfilment of certain obligations to certain extent should be distributed also among members of society, however, such distribution should be constitutionally reasoned, it cannot be disproportionate, it cannot deny the social orientation of the sate and the obligations to the state, which arise from the Constitution (Constitutional Court rulings of 7 June 2007, 26 September 2007, and decision of 20 April 2010).

1.5. The constitutional principle of a state under the rule of law is also inseparable from the principle of equal rights of persons consolidated inter alia in Article 29 of the Constitution (Constitutional Court rulings of 14 April 2006 and 22 March 2010).

The Constitutional Court has held more than once that the constitutional principle of equality of persons must be followed in the course of both enactment of laws and their application; the constitutional principle of equality of persons before the law means an innate human right to be treated equally with the others (Constitutional Court rulings of 2 April 2001, 23 April 2002, 4 March 2003, 4 July 2003, 3 December 2003, 10 November 2005, 24 December 2008, 3 February 2010, 22 March 2010, and decision of 20 April 2010) and obliges to legally assess the homogenous facts in the same manner and prohibits to arbitrarily assess the facts, which are the same in essence, in a different manner (decision of 20 April 2010).

As the Constitutional Court has held, the constitutional principle of equality of rights of persons in itself does not deny an opportunity to establish diverse and differentiated legal regulation by means of legislation with respect to certain persons which belong to different categories, if there exist differences between these persons of such character, which objectively justify such differentiated regulation. Differentiated legal regulation, when it is applied to certain groups of persons which are distinguished by the same signs, and in case it strives for positive and socially meaningful goals, or if the establishment of certain limitations or conditions is linked with peculiarities of regulated social relations, in itself is not to be regarded as discrimination (Constitutional Court rulings of 11 November 1998, 13 May 2005, 31 May 2006, 2 March 2009, 29 April 2009, and decision of 20 April 2010).

The Constitutional Court has held more than once that the constitutional principle of equality of all persons before the law would be violated when a certain group of people to which the legal norm is ascribed, if compared to other addressees of the same legal norm, were treated differently, even though there are not any differences in their character and extent between these groups that such an uneven treatment would be objectively justified. While assessing whether an established different legal regulation is a grounded one, particular legal circumstances must be taken into account. First of all, differences of the legal situation of subjects and objects to which different legal regulation is applied must be considered (Constitutional Court rulings of 28 February 1996, 13 November 1997, 4 July 2003, 24 December 2008, 2 March 2009, 8 June 2009, and decision of 20 April 2010). The compliance of a concrete legal norm with Article 29 of the Constitution may be assessed only by taking into account all significant circumstances (Constitutional Court rulings of 4 July 2003, 24 December 2008, 2 March 2009, 8 June 2009, and decision of 20 April 2010).

  1. It has been mentioned that, in the constitutional justice case at issue, the Vilnius Regional Administrative Court, the petitioner, requests to investigate the compliance of the disputed provisions of the Law on the State Pensions of Judges, the Law on State Pensions, and the Provisional Law on Recalculation and Payment of Social Payments with inter alia Article 52 of the Constitution.

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

The Constitutional Court has held more than once that Article 52 of the Constitution sets the bases of pensionary maintenance and social support. The Constitutional Court has also held that, under the Constitution, also other pensions or social assistance than those specified in Article 52 of the Constitution may be established by law (Constitutional Court rulings of 23 April 2002, 25 November 2002, 4 July 2003, 30 January 2004, 13 December 2004, 22 October 2007, 24 December 2008, 2 September 2009, and decision of 20 April 2010). Under the Constitution, 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 by law only (Constitutional Court rulings of 4 July 2003, 3 December 2003, 13 December 2004, 22 October 2007, 24 December 2008, 2 September 2009, and decision of 20 April 2010). The legislator, while adopting laws concerning pensionary maintenance, is bound by the norms and principles of the Constitution (Constitutional Court rulings of 4 July 2003, 3 December 2003, 22 October 2007, 24 December 2008, 2 September 2009, and decision of 20 April 2010).

The formula “the state shall guarantee” as employed in Article 52 of the Constitution means inter alia that pensions and various types of social assistance are guaranteed to the persons on the bases and in the amounts that are established in laws, while the persons who meet the conditions provided for by the law have the right to demand that the state grant and pay this pension to them; after the types of pensions, the persons entitled to the pension, the bases of granting and payment of pensions, their amounts, and the conditions have been established by laws, a duty arises for the state to follow the constitutional principles of the protection of legitimate expectations and legal certainty in the area of the relations of pensionary maintenance; even in exceptional cases (for example, when due to an economic crisis, natural disaster, etc. there is an objective lack of funds which are necessary for the payment of pensions) the reduced (by paying heed to the constitutional principle of proportionality) pensions can be paid only on a temporary basis (i.e. only as long as there is a corresponding extraordinary situation in the state) (decision of 20 April 2010).

The Constitutional Court has held more than once that due to the social orientation of the State of Lithuania consolidated in the Constitution the state is generally obligated to respect the imperative of substantiality of guarantees of social (material) character, thus, it is obligated to respectively revise (increase the sizes) of social (material) guarantees once established (and applied), if the economic and social situation changes so that those established (and applied) guarantees depreciate considerably, let alone if they generally become nominal (herewith making an exception regarding a proportionate and provisional reduction of payments, whenever necessary for the protection of other constitutional values).

2.2. The types of pensions expressis verbis specified in Article 52 of the Constitution are old age and disability pensions. It has been mentioned that, under the Constitution, the law may establish also other pensions, not only those which are expressis verbis specified in Article 52 of the Constitution. For instance, peculiarities of the constitutional institute of the state service determine inter alia the fact that the legislator enjoys the constitutional powers to establish by the law the pensions and/or types of social assistance granted solely to the state servants or individual groups of state servants, the grouping of which is objectively justified; the pensions for serving the State of Lithuania may be established by the law as well (Constitutional Court rulings of 13 December 2004, 22 October 2007, 24 December 2008, and decision of 20 April 2010).

The pensions which are not directly named in Article 52 of the Constitution are at present established inter alia in the Law on State Pensions. For instance, under the Law on State Pensions, in the Republic of Lithuania, the following state pensions are established:  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, and state pensions of judges.

In this context it needs to be noted that state pensions differ in their nature and character from state social insurance old age pensions, as well as from other state social insurance pensions: they are paid from the State Budget; they are granted to persons for their service or merits to the State of Lithuania, as well as a compensation to victims specified in the law (Constitutional Court rulings of 3 December 2003, 4 July 2003, 22 October 2007, 24 December 2008, and decision of 20 April 2010); the receipt of these pensions is linked not with the social insurance pension contributions of an established size, but with a corresponding status of the person (service, merits or other circumstances upon which granting of the state pension depends); peculiarities of state pensions permit the legislator, taking account of all the significant circumstances and heeding the norms and principles of the Constitution, to establish the corresponding conditions for granting of these pensions (Constitutional Court rulings of 22 October 2007, 24 December 2008, and decision of 20 April 2010); by means of the law, the legislator may establish the maximum size of such pensions, as well as entrench various ways for establishment of the maximum size of such a pension; by paying heed to the Constitution, the legislator may also establish certain cases when the state pension is not granted to the person (under the conditions provided for in the law); taking account of the Constitution, the legislator may establish, by means of the law, also 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 by the law to grant and pay the corresponding pension to the person who meets the conditions established by the law and regarding the right of the said person to demand that the state fulfil such an obligation undertaken by the law, is also effective (Constitutional Court ruling of 22 October 2007 and decision of 20 April 2010).

2.3. The state, in establishing by the law that the persons who meet the conditions established by the law acquire the right to a certain pension established in the law, at the same time undertakes the obligation to grant and pay such a 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 the law have the right to demand that the state fulfil the obligation undertaken by the law, grant them the corresponding pension, and pay the payments of the established size; the legislator must establish such legal regulation which would ensure the payment of the corresponding pension to the persons who meet the conditions established by the law (Constitutional Court ruling of 22 October 2007). When the pension established by a law, which is not in conflict with the Constitution, is granted and paid, this right and legitimate expectation acquired by the person are also to be linked with the protection of the rights of ownership of this person (Constitutional Court rulings of 4 July 2003, 3 December 2003, 13 December 2004, 22 October 2007, 24 December 2008, and decision of 20 April 2010).

The constitutional protection of the rights of ownership, which arise from the Constitution and the laws that are not in conflict with the Constitution, means the protection of the right to demand the fulfilment of obligation of property nature to a person. In this case the right to demand for the payments of pensionary maintenance which are established in the Constitution and the laws that are not in conflict with the latter arises from Article 52 of the Constitution, while the proprietary aspects of this right are defended under Article 23 thereof (Constitutional Court rulings of 4 July 2003, 3 December 2003, 22 October 2007, 24 December 2008, and decision of 20 April 2010).

2.4. The Constitutional Court has also held more than once that after the types of pensions, the persons entitled to the pension, the bases of granting and payment of pensions, the conditions, and the sizes of pensions have been established by laws, a duty arises for the state to follow the constitutional principles of the protection of legitimate expectations and legal certainty in the area of the relations of pensionary maintenance. The persons who have been granted and paid a pension established by the Constitution or the law, under Article 23 of the Constitution, have the right to demand that the payments be paid further to them in the amounts which were granted and paid previously (Constitutional Court rulings of 4 July 2003, 3 December 2003, 24 December 2008, 2 September 2009, and decision of 20 April 2010).

The Constitutional Court has noted more than once that the constitutional protection of acquired rights and legitimate expectations does not mean that the system of pensionary maintenance established by the law may not be reorganised. While reorganising this system, the Constitution must be observed in every case. The system of pensions may be reorganised only by the law, only guaranteeing the old age and disability pensions provided for in the Constitution, as well as observing the undertaken obligations by the state, which are not in conflict with the Constitution, to pay the corresponding monetary payments to the persons who meet the requirements established by the law. If, while reorganising the system of pensions, the pensions that are established by the laws and which are not directly specified in Article 52 of the Constitution were eliminated, or the legal regulation of these pensions were changed in essence, the legislator would be obligated to establish a fair mechanism for compensation of the incurred losses to the persons who had been granted and paid such pensions. The legislator, while reorganising the system of pensions so that the bases of pensionary maintenance, the persons to whom the pension is granted and paid, the conditions for granting and payment of pensions, the amounts of pensionary maintenance are changed, must provide for a sufficient transitional time period during which the persons who have a corresponding job or perform corresponding service which entitles them to a respective pension under the previous regulation, would be able to prepare for these changes (Constitutional Court rulings of 4 July 2003, 13 December 2004, 22 October 2007, 24 December 2008, and decision of 20 April 2010).

  1. In the constitutional justice case at issue, the Vilnius Regional Administrative Court, the petitioner, requests investigation into whether the corresponding provisions of the Law on the State Pensions of Judges are not in conflict with inter alia Paragraph 1 of Article 103, Paragraph 1 of Article 104, and Paragraph 2 of Article 109 of the Constitution.

In its acts the Constitutional Court has formulated a broad official constitutional doctrine of the independence of the judge and courts, wherein the constitutional imperative of the 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 which grounds the whole system of Lithuanian law and the Constitution itself) (Constitutional Court ruling of 22 October 2007).

3.1. Article 109 of the Constitution prescribes:

“In the Republic of Lithuania, justice shall be administered only by courts.

While administering justice, the judge and courts shall be independent.

When considering cases, judges shall obey only the law.

The court shall adopt decisions in the name of the Republic of Lithuania.”

The courts that under the Constitution execute judicial power in Lithuania are to be attributed not to one, but to two or more (if this, 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 ones, which is composed of the Supreme Administrative Court of Lithuania and regional administrative courts, is established by laws and is functioning at present (Constitutional Court rulings of 13 December 2004, 16 January 2006, 28 March 2006, 9 May 2006, 6 June 2006, 27 November 2006, and 22 October 2007).

3.2. The function of administration of justice determines an exceptional constitutional status of the judge which is disclosed by various constitutional provisions that consolidate not only the independence of the judge and courts while administrating justice (Paragraph 2 of Article 109 of the Constitution), but also impossibility for the judge to hold any other elected or appointed 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, or to take part in the activities of political parties and other political organisations (Article 113 of the Constitution), the prohibition to interfere with the activity of the judge, 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 apply also to justices of the Constitutional Court (Paragraph 3) and justices of the Constitutional Court have the same rights concerning the inviolability of their person as Members of the Seimas (Paragraph 4). It needs to be emphasised that 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 for 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 that are not in conflict with the Constitution (Constitutional Court ruling of 22 October 2007).

3.3. The independence of the judge and courts is indivisible (Constitutional Court rulings of 21 December 1999 and 22 October 2007). 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, inter alia in the aspect that no different guarantees of the 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 a higher level or instance); 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 administration of justice while deciding cases (for example, under the term of a person’s work as a judge) (Constitutional Court rulings of 9 May 2006, 22 October 2007, and decision of 8 August 2006). The principle of the equal legal status of judges which stems from the Constitution also may not be construed as not permitting to additionally pay the judges—the heads of courts (their deputies, heads of divisions, etc.) which implement additional functions for the carried out organisational work: supplementary work must be paid for additionally (Constitutional Court ruling of 22 October 2007).

3.4. The Constitutional Court has noted more than once that the independence of the judge and courts is not a privilege, but one of the most important obligations of judges and courts, which stems from the right of the person, who believes that his rights or freedoms guaranteed in the Constitution are violated, to an impartial arbiter of the dispute who would solve the emerged legal dispute under the Constitution and laws in essence (Constitutional Court rulings of 6 December 1995, 21 December 1999, 12 July 2001, 9 May 2006, and 22 October 2007). The independence of the judge is inter alia ensured by consolidating self-governance of the judiciary, meaning that the judiciary is full-fledged power, and its financial and technical provision, and by establishing the inviolability of the term of powers 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, as well as by establishing the social (material) guarantees of the judge (Constitutional Court ruling of 22 October 2007).

3.5. In this context it also needs to be noted that 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 (Constitutional Court rulings of 12 July 2001 and 22 October 2007). The constitutional imperative of the constitutional protection of remuneration and other social (material) guarantees of judges arises from the principle of the independence of the judge 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 and executive power 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 rulings of 12 July 2001 and 22 October 2007, the Constitutional Court also noted that the state has a duty to establish such remuneration for judges which would be in conformity with the status of the judiciary and the judge, with the functions exercised by them and their responsibility.

3.6. The social (material) guarantees of the principle of the independence of the judge that 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 a duty to ensure such social (material) maintenance for the judge which would be in conformity with his status while being in office as well as upon expiry of his term of office (Constitutional Court rulings of 21 December 1999 and 22 October 2007). 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 (Constitutional Court decision of 8 August 2006 and ruling of 22 October 2007).

It needs to be noted that the legislator must establish such legal regulation which would ensure the independence of the judge and courts, inter alia the social (material) guarantees of the judge, not only when he is in office, but also upon expiry of his powers; while doing so, the legislator must heed the norms and principles of the Constitution; upon expiry of powers of the judge, the social (material) guarantees of the judge may be varied ones, inter alia the payments paid periodically, as well as one-time payments, etc.; the constitutional base of establishment of such guarantees is an exceptional constitutional status of the judge which is determined by the function of administration of justice, therefore, they may depend only upon the circumstances which are related with the constitutional status of a judge, but they may not be considered as replacing other social (material) guarantees that must be ensured to the former judge on different bases, including those which are common to all the working persons; the social (material) guarantees of the judge, upon expiry of his powers, must be real and not only nominal (Constitutional Court ruling of 22 October 2007).

The Constitutional Court has held that if the legislator enshrines such a social (material) guarantee of the judge upon 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 thereof (Constitutional Court ruling of 22 October 2007).

3.7. In the context of the constitutional justice case at issue it needs to be noted that the legislator, while regulating the relations connected with the state pension of judges, must establish, by means of a law, the grounds and conditions for granting this pension. The legislator may establish, by means of a law, the maximum size of the state pension of judges as well as entrench various ways for establishment of the maximum size of such a pension. While doing so, the legislator must not violate the norms and principles of the Constitution. In this context it needs to be noted that the legislator, while entrenching, by means of a law, the maximum size of the pension as well as ways for establishment of this size, must heed inter alia the fact that the state pension of judges is a social (material) guarantee of the judge upon expiry of his powers, stemming from the Constitution, which is defended not only under Article 109 of the Constitution, but also under Article 52 thereof, that this social (material) guarantee must be in line with the constitutional status of the judge and his dignity, and that such a constitutional social (material) guarantee of the judge must be real and not only nominal. Otherwise, one would deny the essence and purpose of the state pension of judges as a social (material) guarantee of the judge upon expiry of his powers, stemming from the Constitution, and thereby would create preconditions to deviate from the requirements arising from the Constitution, inter alia Paragraph 2 of Article 109 thereof, as well as from the constitutional principle of a state under the rule of law.

3.8. It has been mentioned that the guarantees of social (material) nature of judges, inter alia the social guarantees upon expiry of powers of the judge, may be differentiated according to the duration of a person’s work as a judge. In the context of the constitutional justice case at issue it needs to be noted that the size of the social (material) guarantees upon expiry of powers of the judge may be differentiated according to the duration of a person’s work as a judge as well. However, the legal regulation under which the size of the social (material) guarantees of judges upon expiry of their powers is differentiated according to the duration of a person’s work as a judge must not deviate from the constitutional concept of this social (material) guarantee of judges. In this context it needs to be noted that such legal regulation, under which the size of the said social (material) guarantee of the judges would be the same or similar for the judges who received the remuneration of equal or similar amount, but whose duration of work in courts differs considerably, or the size of the said social (material) guarantee would differ considerably for the judges who received the remuneration of equal or similar amount, but whose duration of work in courts differs little, would not be in conformity with the constitutional concept of the social (material) guarantee of judges upon expiry of powers of the judge, inter alia the requirements of Paragraph 2 of Article 109 of the Constitution, as well as the imperatives of justice, proportionality, and reasonableness that stem from the constitutional principle of a state under the rule of law.

3.9. The attribution of courts (which arises from the Constitution) not to one but to several (at the moment—three) systems of courts, as well as the division of the system of courts of general jurisdiction and specialised courts established under Paragraph 2 of Article 111 of the Constitution, as a system of institutions, into levels imply that the legislator has the powers to differentiate the social (material) guarantees of judges (remunerations, as well as the guarantees which are established (applied) to judges upon expiry of their powers). It needs to be noted that the judiciary is formed on the professional basis. It is universally recognized (not only in Lithuania) that the dominant principle of formation of the corps of judges of courts of a higher level is the principle of professional career of judges, under which judges are promoted after they have been dismissed from previous office and appointed as judges of courts of a higher level (even though this principle 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.) (Constitutional Court rulings of 9 May 2006, 22 October 2007, and 20 February 2008). 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 (Constitutional Court rulings of 9 May 2006 and 22 October 2007). Thus, implementation of the principle of the professional career of judges (as mentioned, without making it absolute) is one of the conditions permitting to ensure that the persons 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 administered in the way it is provided for in 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 and in the laws and other legal acts which are not in conflict with the Constitution would be implemented. Therefore, judges must also have material incentives to seek the professional career. Thus, the legislator not only may but also must differentiate the social (material) guarantees of judges, when establishing such guarantees, according to 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 remuneration of judges of courts of different levels, as well as the guarantees which are established (applied) to judges upon expiry of their powers would be made totally equal, one would not only disregard the fact that, under the Constitution, courts are attributed 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 specialised courts (at present—administrative courts), established under Paragraph 2 of Article 111 of the Constitution, may be also divided into levels, but also there would be no material incentives (even if there were other incentives) for judges to seek the professional career (Constitutional Court ruling of 22 October 2007).

Thus, the fact that the social (material) guarantees of judges may be differentiated (heeding the Constitution) according to the duration of a person’s work as a judge may not be construed as meaning that, purportedly, the criterion of the duration of a person’s work 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 the social (material) guarantees of judges upon expiry of their powers (so, also in the case of the pensions of judges), one must take account of the fact that, under the Constitution, the courts are attributed not to one but to several (at the moment—three) systems of courts, 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.

3.10. As mentioned, the courts, which, under the Constitution, execute judicial power in Lithuania, are to be attributed not to one, but to two or more (if that, while heeding the Constitution, is established in certain laws) systems of courts. Under the Constitution and laws, at present in Lithuania there are three systems of courts: 1) the Constitutional Court executes constitutional judicial control; 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 ones, which is composed of the Supreme Administrative Court of Lithuania and regional administrative courts, is established by laws and is functioning at present (Constitutional Court rulings of 13 December 2004, 16 January 2006, 28 March 2006, 9 May 2006, and 6 June 2006).

3.11. The Constitutional Court executes constitutional judicial control. The Constitutional Court is the institution of constitutional justice. When deciding under its competence on the compliance of legal acts (parts thereof) of lower power with legal acts of higher power, inter alia (and, first of all) with the Constitution, as well as when exercising its other constitutional powers, the Constitutional Court—an individual and independent court—administers constitutional justice and guarantees the supremacy of the Constitution in the legal system as well as constitutional legitimacy.

Paragraph 1 of Article 102 of the Constitution prescribes 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 and laws. In addition, the Constitution (inter alia Chapter VIII “The Constitutional Court” thereof) also provides for other powers of the Constitutional Court, consolidates the legal power and consequences of the Constitutional Court decisions, establishes the bases and guarantees for execution of powers (activity) of the Constitutional Court, etc.

3.12. It needs to be noted that, in its ruling of 6 June 2006, the Constitutional Court held that the presumption that, purportedly, the Constitutional Court is not a court and does not execute state power is not in line with the concept of power and the powers of the Constitutional Court established in the Constitution at all. The fact that, under the Constitution, the Constitutional Court has the powers to recognise legal acts of other institutions implementing state power—the Seimas, the President of the Republic, and the Government—as being in conflict with legal acts of higher power, first of all, with the Constitution, and, thus, to abolish the legal power of these acts and to remove these legal acts from the Lithuanian legal system for good, as well as the fact that only the Constitutional Court has the constitutional powers to officially construe the Constitution—to provide the concept of the provisions of the Constitution, which is binding on all the law-making and law-applying institutions as well as on the Seimas, the representation of the Nation, obviously testify that the Constitutional Court may not be an institution not implementing state power.

3.13. Certain aspects of the Constitutional Court and of the constitutional status of justices thereof are entrenched in Paragraph 1 of Article 103 and Paragraph 1 of Article 104 of the Constitution.

3.14. Paragraph 1 of Article 104 of the Constitution prescribes 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.

3.15. In the context of the constitutional justice case at issue it needs to be noted that justices of the Constitutional Court differ from other judges of courts of general and specialised competence also in the aspect of the term of their powers. Under Paragraph 1 of Article 103 of the Constitution, justices of the Constitutional Court are appointed for a single nine-year term of office. Under the Constitution, the term of powers of judges of courts of general competence and of specialised courts is established by the Law on Courts. In this context it needs to be mentioned that, under the Law on Courts currently in force, judges of courts of general competence and administrative courts are appointed till they reach the age of 65 years. It has been mentioned that justices of the Constitutional Court are appointed for a single nine-year term of office. It has also been mentioned that, while regulating the relations of the social (material) guarantees of judges upon expiry of powers of the judge, inter alia when differentiating these guarantees, account must be taken of the fact the attribution of courts are not to one but to several (at present—three) systems of courts stems from the Constitution; a separate system of courts is comprised of the Constitutional Court, characterised by its own peculiarities, inter alia the aspect of the term of the office of Constitutional Court justices.

In the context of the constitutional justice case at issue it needs to be noted that the legislator, while regulating the relations of the social (material) guarantees of judges upon expiry of the term of their office, must also take account of the fact that justices of the Constitutional Court differ from judges of other courts in regard to their constitutional status, inter alia the term of their powers. Otherwise, one would deviate from the constitutional concept of such social (material) guarantees, under which the social (material) guarantees of judges, when establishing them, must be differentiated taking account of inter alia the specificity of a court system as well as peculiarities of the status of judges of a court system.

3.16. In this context one needs to mention the doctrine formulated in the Constitutional Court ruling of 22 October 2007 that the principled provision that one may not differentiate (also by applying law) the remuneration of the judges of the courts of the same system and of the same level according to the fact when the remuneration of a certain size of judges was 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 judges upon expiry of their powers; they may not be reduced, let alone altogether denied, also in the case when their system is reorganised. It also needs to be mentioned that the imperative of the reality of the social (material) guarantees of judges stems from the Constitution. The social (material) guarantees of judges which are established (applied) to judges upon 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) (Constitutional Court ruling of 22 October 2007).

3.17. The Constitution also prohibits reduction of the remuneration and other social guarantees of judges; any attempts to reduce the remuneration of the judge or his other social (material) guarantees, or limitation upon financing of courts are treated as encroachment upon the independence of judges and courts (Constitutional Court rulings of 6 December 1995 and 21 December 1999, decision of 12 January 2000, rulings of 12 July 2001 and 28 March 2006, and decision of 8 August 2006). As every person, a judge has the right to defend his rights, legitimate interests, and legitimate expectations (Constitutional Court rulings of 12 July 2001 and 22 October 2007).

On the other hand, when there is an essential change in the economic and financial situation of the state and when due to special circumstances (economic crisis, natural disaster, 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 fulfil 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 legislator may change the legal regulation which establishes the remuneration as well as pensions to various persons and entrench the legal regulation on the remuneration as well as pensions 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 legislator 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. Consequently, in case of an extremely difficult economic and financial situation of the state, the remuneration of judges and the state pensions of judges may be reduced as well. If one established such legal regulation, whereby in case of an extremely difficult economic and financial situation of the country it would not be permitted to reduce the financing of courts only, nor to reduce the remuneration and pensions of judges only, it would mean that courts are groundlessly singled out from among other institutions which implement state power, and judges—from among other persons that participate in implementing powers of the corresponding institutions of state power. The consolidation of such an exceptional situation of courts (judges) would not be in line with the requirements of an open, fair and harmonious civil society and of the imperatives of justice. It is possible to worsen the financial and material conditions for the functioning of courts that are provided for by laws and to reduce the remuneration of judges and the state pensions of judges only by means of a law, and it is possible to do so only temporarily, for the period of time when the economic and financial condition of the state is extremely difficult; by such reduction of the remuneration and the state pensions of judges no conditions should be created for other institutions of state power and their officials to violate the independence of courts (rulings of 26 March 2006 and 22 October 2007).

3.18. In the context of the constitutional justice case at issue it needs to be noted that the legislator, while regulating the relations of the social (material) guarantees of judges upon expiry of powers of the judge, provides for such a procedure for calculation of these social (material) guarantees under which the size of the social (material) guarantees, inter alia the state pensions and retirement benefits of judges, is linked with the remuneration received by the judge. It has been mentioned that in case of an extremely difficult economic and financial situation in the state, the remuneration of judges may be reduced temporarily. However, if one established such legal regulation whereby the size of the said social (material) guarantees of the judge would be calculated on the basis of the remuneration of judges temporarily reduced due to an extremely difficult economic and financial situation in the state, this would not be in line with the imperatives of equal rights of persons and justice that stem from the Constitution, inter alia the constitutional principle of a state under the rule of law.

3.19. It needs to be noted that the correction of the legal regulation, by means of which old age pensions are reduced to a great extent due to the fact that, upon occurrence of an extreme situation (economic crisis, etc.), the economic and financial situation becomes changed so that the accumulation of the funds necessary for the payment of old age pensions is not secured, is an essential amendment to the legal regulation of these pensions. Thus, the legislator, upon occurrence of an extreme situation when inter alia due to an economic crisis it is impossible to accumulate the amount of the funds necessary to pay state pensions, must, while reducing state pensions to a large extent, provide for a mechanism of just compensation of incurred losses to the persons to whom such pensions were granted and paid, whereby, after the said extreme situation is over, the state would undertake an obligation to such persons to compensate them, in a fair manner and within a reasonable time, the losses incurred by them due to the reduction of the state pension (Constitutional Court decision of 20 April 2010).

The Constitutional Court has also held that state pensions in their nature and character are different from state social insurance old age pensions, as well as from other state social insurance pensions, and these peculiarities imply that when there is an extremely difficult economic and financial situation in the state and due to this there emerges a necessity to temporarily reduce the pensions in order to secure the vitally important interests of society and the state and to protect other constitutional values, the legislator may reduce these pensions to a greater extent than old age and disability pensions. The aforesaid peculiarities also imply that the losses incurred due to the reduction of state pensions may be compensated to a smaller extent than the losses incurred due to the reduction of old age or disability pensions (Constitutional Court decision of 20 April 2010).

These official constitutional doctrinal provisions are mutatis mutandis also applicable to reduction of the state pensions of judges.

3.20. It needs to be noted that the Constitutional Court has construed that the constitutional concept of the State Budget, inter alia the constitutional institute of a budget year, implies that when there is an extreme situation in the state (economic crisis, etc.) due to which the economic and financial situation in the state has changed to the extent that inter alia the accumulation of the funds necessary for the payment of remuneration for work of officials and state servants of the institutions that are funded from the state and municipal budgets (other employees who are remunerated for work from funds of the state and municipal budgets) or of the funds necessary for the payment of pensions is not secured and, due to this, the legal regulation has to be corrected by reducing the remunerations and pensions of the said persons, the reduction of the remunerations and pensions is allowed for no longer than one budget year. From the constitutional institute of a budget year, a duty arises for the legislator, in the course of deliberating and approving the State Budget for the next year, to reassess the actual economic and financial situation in the state and to decide whether the said situation is still a particularly grave one, inter alia whether the collection of the State Budget revenue is still disordered to the extent that, due to this, the state is unable to fulfil the obligations undertaken by it and, due to this, whether also for the next budget year one has to establish the legal regulation whereby the reduced remuneration and pensions will have to be paid (decision of 20 April 2010).

III

  1. On 22 December 1994, the Seimas adopted the Republic of Lithuania Law on State Pensions, which came into force on 1 January 1995. Article 1 of this law established the following state pensions: the state pension of the President of the Republic, state pensions of the Republic of Lithuania of the first and second degree, state pensions of victims, and state pensions of officials and servicemen. Article 3 (wording of 22 December 1994) of the Law on State Pensions prescribed that a person who has the right to receive several state pensions is paid only one of them at his choice, with the exception of the state survivor’s and orphan’s pension, which may also be paid only one in conjunction with one of the state pensions, also that state social insurance pensions are paid irrespective of the fact whether state pensions are paid, provided laws do not establish otherwise.
  2. On 4 July 1995, the Seimas adopted the Republic of Lithuania Law “On the Supplement and Amendment of the Law on State Pensions” by Article 2 whereof it supplemented Article 3 (wording of 22 December 1994) of the Law on State Pensions by the following Paragraph 3: “The size of the state pensions established in Items 3–5 of Article 1 of this law in conjunction with the state social insurance pension may not exceed per person one and a half of the average monthly remuneration for work of the state sector and employees of joint-stock and closed joint-stock companies, as announced by the Department of Statistics under the Government of the Republic of Lithuania, for the month before the last month preceding the payment of the pension. Limitation of the size of the pension shall be applied by the institution paying the state pension.”

Thus, such legal regulation entrenched limitation upon the size of the state pensions established in Items 3–5 of Article 1 of the Law on State Pensions in conjunction with the state social insurance pension per person, which had not existed in Article 3 (wording of 22 December 1994) of this law.

  1. By Article 2 of the Republic of Lithuania Law on the Amendment and Supplement of Articles 2, 3, 5, 8, 10, 11, 12, 13, and 14 of the Law on State Pensions, adopted on 4 November 1997, the Seimas amended Article 3 of the Law on State Pensions and set it forth in the following way:

“Article 3. The Right to Choose the Type of a State Pension.

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 survivor’s and orphan’s pension, which may also be paid only one in conjunction with one of the state pensions.

At the choice of a person entitled to the state survivor’s pension for a deceased recipient of the state pension indicated in Items 1 and 3 of Paragraph 1 of Article 1 of this law and the state social insurance survivor’s pension, he shall be granted and paid the state survivor’s pension or state social insurance survivor’s pension.

The size of the state pensions established in Items 3–5 of Paragraph 1 of Article 1 of this law, taken each separately or in conjunction with the state social insurance pension, may not exceed per person one and a half of the average monthly remuneration for work of employees of the economy of the Republic of Lithuania, as announced by the Department of Statistics under the Government of the Republic of Lithuania, for the month before the last month preceding the payment of the pension. Limitation of the size of the pension shall be applied by the institution paying the state pension.”

  1. In Article 1 of the Republic of Lithuania Law on the Amendment of Article 3 of the Law on State Pensions, adopted on 20 February 2001, the Seimas decided to cross out the word “one and a half” in Paragraph 3 of Article 3 of the Law on State Pensions, also instead of the word “month” to enter the word “quarter”, instead of the words “payment of the pension” to enter the words “the month for which the state pension is paid”, instead of the words “of employees of the economy of the Republic of Lithuania, as announced” to enter the words “in the economy of the country, as announced”, before the word “remuneration” to enter the words and the figure “the amount of 1.5” and to set forth this paragraph in the following way: “The size of the state pensions established in Items 3–5 of Paragraph 1 of Article 1 of this law, taken each separately or in conjunction with the state social insurance pension, may not exceed per person the amount of 1.5 of the average monthly remuneration for work in the economy of the country, as announced by the Department of Statistics under the Government of the Republic of Lithuania, for the quarter before the last quarter preceding the month for which the state pension is paid. Limitation of the size of the pension shall be applied by the institution paying the state pension.”
  2. By means of the Republic of Lithuania Law on the Amendment and Supplement of Articles 1 and 3 of the Law on State Pensions, adopted on 2 July 2002, the Seimas entrenched one more type of state pensions—the state pension of judges—and amended Paragraph 3 of Article 3 of the Law on State Pensions by setting it forth in the following way: “The size of each of the state pension established in Items 3–6 of Paragraph 1 of Article 1 of this law as well as the sum total of the size of this pension and the state pensions and state social insurance pensions granted to the same person under Paragraph 1 of this Article may not exceed per person the amount of 1.5 of the average monthly remuneration for work in the economy of the country, as announced by the Department of Statistics under the Government of the Republic of Lithuania, for the quarter before the last quarter preceding the month for which the state pension is paid. Limitation of the size of the pension shall be applied by the institution paying the state pension.”

This law came into force on 1 January 2003.

  1. On 2 July 2002, the Seimas also adopted the Law on the State Pensions of Judges, which came into force on 1 January 2003.

6.1. Article 1 “The Right to the State Pension of Judges” of this law prescribes:

“1. Justices of the Constitutional Court of the Republic of Lithuania (hereinafter—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 other courts of general jurisdiction and specialised courts of Lithuania (hereinafter—courts of general jurisdiction and specialised courts), and the judges of any international court appointed or elected from Lithuania who meet the conditions of Article 3 of this law shall be entitled to the state pension of judges.

  1. 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 State Pensions and special laws, shall be granted and paid only one state pension, at their choice, provided other laws do not establish otherwise.”

6.2. Article 3 “Conditions for Granting the State Pension of Judges” of this law prescribes:

“The state pension of judges shall be granted to the persons who served as justices of the Constitutional Court, judges of courts of general jurisdiction and specialised courts, and judges of any international court appointed or elected from Lithuania, provided they meet the following conditions:

1) at the time of application regarding granting the state pension of judges they must be citizens of the Republic of Lithuania permanently living in the Republic of Lithuania;

2) must be of the age of the old age pension established by the Republic of Lithuania Law on State Social Insurance Pensions;

3) must no longer work as judges;

4) must have not less than a five-year work record as a judge.”

6.3. Article 5 “Work Record of Judges Necessary to Receive the State Pension of Judges” of the Law on the State Pensions of Judges, which is disputed in the constitutional justice case at issue, prescribes:

“The work record of judges which is necessary in order to receive the state pension of judges includes the period 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, courts of general jurisdiction and specialised courts) or as a judge of any international court appointed or elected from Lithuania. If the person gained his work record as a judge while working as a judge in different courts and at different time, his gained work record as a judge in order to receive the state pension of judges shall be summed up under the procedure established in the Regulations for Granting and Payment of the State Pensions of Judges (hereinafter—the Regulations) approved by the Government.”

The said article entrenched the procedure for calculation of the work record of judges in order to receive the state pension of judges.

6.4. Article 6 “The Size of the State Pension of Judges” of the Law on the State Pensions of Judges, which is disputed in the constitutional justice case at issue, prescribes:

“1. For the persons who have the right to receive the state pension of judges and who meet the conditions set out in Article 3 of this law and who have gained not less than a twenty-year work record as a judge, the state pension of judges shall be calculated from the average remuneration for work received in last 5 years (before they finished holding the office of the judge) and 45 percent of this amount shall be granted.

  1. For the persons who have the right to receive the state pension of judges and who meet the conditions set out in Article 3 of this law, but who have not gained the twenty-year work record as a judge, the state pension of judges of the following size shall be granted:

1) for the persons who have gained a fifteen-year or longer work record as a judge, the state pension of judges shall be calculated from the average remuneration for work received in last 5 years (before they finished holding the office of the judge) and 35 percent of this size shall be granted;

2) for the persons who have gained a ten-year or longer work record as a judge, the state pension of judges shall be calculated from the average remuneration for work received in last 5 years (before they finished holding the office of the judge) and 20 percent of this size shall be granted;

3) for the persons who have gained a five-year or longer work record as a judge, the state pension of judges shall be calculated from the average remuneration for work received in last 5 years (before they finished holding the office of the judge) and 10 percent of this size shall be granted.

  1. The sum of the state pension of judges calculated according to the procedure established in Paragraphs 1 and 2 of this article and the pensions granted under other laws (state and state social insurance pensions) may not exceed per person the amount of 1.5 of the average monthly remuneration for work in the economy of the country, as announced by the Department of Statistics, for the quarter before the last quarter preceding the month for which the state pension of judges is paid. Limitation of the size of the pension shall be applied by the institution paying the state pensions of judges.”

6.4.1. Thus, Paragraph 1 of Article 6 of the Law on the State Pensions of Judges prescribes the maximum size of the state pension of judges and the procedure for calculation thereof. The maximum size of the state pension of judges is 45 percent of the remuneration for work of a judge calculated from the average remuneration of a judge received in last 5 years before termination of holding the office of the judge. The right to receive the state pension of judges of the maximum size is acquired by the persons who have gained not less than a twenty-year work record as a judge and who meet the conditions set out in Article 3 of the said law.

6.4.2. Paragraph 2 of Article 6 of the Law on the State Pensions of Judges prescribes the procedure for calculation of the state pension of the judges who have not gained a twenty-year work record as a judge, but who meet the conditions set out in Article 3 of this law, and entrenches the percentage amounts of the state pension of judges granted to a judge (35 percent, 20 percent, and 10 percent of the average remuneration for work of the judge, calculated from the remuneration received in last 5 years before termination of holding the office of the judge), which depend on the duration of the person’s work record as a judge. For instance, under Paragraph 2 of Article 6 of this law:

– the judge who has gained the work record as a judge from 5 to 10 years is granted the state pension of judges of the amount of 10 percent of his received average remuneration for work;

– the judge who has gained the work record as a judge from 10 to 15 years is granted the state pension of judges of the amount of 20 percent of his received average remuneration for work;

– the judge who has gained the work record as a judge from 15 to 20 years is granted the state pension of judges of the amount of 35 percent of his received average remuneration for work.

6.4.3. The legal regulation entrenched in Paragraph 3 of Article 6 of the Law on the State Pensions of Judges inter alia sets limitation upon the size of the calculated state pension of judges in conjunction with state social insurance pensions and other state pensions for one person.

6.5. The Law on the State Pensions of Judges has been amended and supplemented more than once, however, Articles 5 and 6 thereof, the compliance of which with the Constitution is disputed in the constitutional justice case at issue, have not been amended or supplemented.

  1. In the context of the constitutional justice case at issue it needs to be noted that, on 22 October 2007, the Constitutional Court adopted the 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 Law on the State Pensions of Judges with the Constitution of the Republic of Lithuania”, wherein inter alia the legal regulation, whereby the state pension of judges inter alia is not granted and the granted pension is not paid, if the person has the income from which state social 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 paternity, of maternity (paternity), and of professional rehabilitation, or state social insurance payments of unemployment, which is established in Article 4 (wording of 8 June 2006) of the Law on the State Pensions of Judges, was recognised as being in conflict with the Constitution.
  2. On 8 December 2009, the Seimas adopted the Law on the Amendment of Articles 3, 6, 8, and 15 of the Law on State Pensions, whereby inter alia the maximum size of the state pension, established in Paragraph 3 of Article 3 of the Law on State Pensions, as well as the maximum size of the sum total of the size of this pension and other state pensions and state social insurance pensions granted to the same person were reduced per person from the amount of 1.5 to 1.3 of the average monthly remuneration for work in the economy of the country, as announced by the Department of Statistics under the Government of the Republic of Lithuania, for the quarter before the last quarter preceding the month for which the state pension is paid. This amendment of the law came into force on 1 January 2010.

Thus, such legal regulation entrenched limitation upon the size of the calculated state pensions established in Items 1–5 of Paragraph 1 of Article 1 of the Law on State Pensions both of each separately and in conjunction with other state pensions and the state social insurance pension per person.

In this context it needs to be noted that the Law on the State Pensions of Judges has not been correspondingly amended, i.e. Paragraph 3 of Article 6 of this law, not amended since the adoption of the law, wherein it is established that the sum of the state pension of judges and the pensions granted under other laws (state pensions and state social insurance pensions) may not exceed per person the amount of 1.5 of the average monthly remuneration for work in the economy of the country, as announced by the Department of Statistics, for the quarter before the last quarter preceding the month for which the state pension of judges is paid, is valid at present.

  1. On 9 December 2009, the Provisional Law on Recalculation and Payment of Social Payments was adopted, which, with the exception of Article 16 thereof, came into force on 1 January 2010 and remains valid until 31 December 2011.

In the Preamble to the Provisional Law on Recalculation and Payment of Social Payments, it is established that the Seimas, while holding that the forecasts for the Budgets of the State and the State Social Insurance Fund suggest a constantly increasing deficit, determined by the crisis hitting the economy, pointed to the necessity to stabilise the growth of deficit of the Budgets of the State and the State Social Insurance Fund, to balance flows of money, to protect groups of socially sensitive persons, and to ensure timely payments during the period of economic crisis; also that taking account of the principle of solidarity and the fact that the state pensions, rents, and compensations, paid from the Budget of the Republic of Lithuania, are, as a rule, as additional payments, paid in conjunction with state social insurance pensions, it is sought, by means of the law, to reduce the expenditures of the State Budget for these additional payments.

In Paragraph 1 of Article 1 of the Provisional Law on Recalculation and Payment of Social Payments, it is established that this law prescribes: the procedure for recalculation of social payments (state pensions, other payments enumerated in Items 1–4 of Paragraph 2 of this article, and state social insurance pensions) and for payment thereof to the persons who receive insured income; the procedure for recalculation of social insurance benefits of maternity, paternity, maternity (paternity), and unemployment, also payments of maternity (paternity) and the procedure for establishment of a new maximum size of remuneration subject to compensation for calculation of social insurance benefits; as well as the conditions for payment of the child benefit and the sizes thereof.

Under Item 1 of Paragraph 2 of Article 1 of the aforesaid law, this law is applied inter alia to the persons who receive the state pensions granted and paid under the Law on State Pensions, the Republic of Lithuania Law on the State Pensions of Officials and Servicemen, the Law on the State Pensions of Judges, and the Republic of Lithuania Provisional Law on the State Pensions of Scientists.

Thus, the Provisional Law on Recalculation and Payment of Social Payments is applied to the persons who receive inter alia the state pensions granted and paid according to the Law on the State Pensions of Judges.

Paragraph 4 of Article 16 of the Provisional Law on Recalculation and Payment of Social Payments, the compliance whereof with the Constitution is disputed in the constitutional justice case at issue, sets a proposal to the Government, till 1 July 2010, to prepare and approve the inventory schedule of the procedure for compensation of the reduced state social insurance pensions of old age and of lost capacity to work.

IV

On the compliance of Article 5 and Paragraphs 1 and 2 of Article 6 of the Law on the State Pensions of Judges with Article 52, Paragraph 1 of Article 103, and Paragraph 1 of Article 104 of the Constitution and the constitutional principle of a state under the rule of law as well as on the compliance of Paragraph 2 of Article 6 of this law with Article 23 of the Constitution.

  1. It has been mentioned that the Vilnius Regional Administrative Court, the petitioner (petition No. 1B-06/2008), has doubts whether the provisions of Paragraphs 1 and 2 of Article 6 of the Law on the State Pensions of Judges, to the extent that the maximum nine-year term of the office of the Constitutional Court justice is not regarded to be a sufficient independent basis for granting the state pension of judges of the maximum size, are not in conflict with the Constitution.

1.1. It has been mentioned that the attribution of courts not to one but to several (at the moment—three) systems of courts, which arises from the Constitution, among them to the system of general jurisdiction, as well as the division of the system of specialised courts, which are established under Paragraph 2 of Article 111 of the Constitution, as a system of institutions, into levels imply that the legislator has the powers to differentiate the social (material) guarantees of judges (remunerations, as well as the guarantees which are established (applied) to judges upon expiry of their powers). Thus, the legislator not only may but also must differentiate the social (material) guarantees of judges, when establishing such guarantees, according to the court system and the court level where the judge works.

It has been mentioned that justices of the Constitutional Court differ from other judges of courts of general and specialised jurisdiction also in the aspect of the term of their powers. For instance, under the Constitution, the term of the office of judges of courts of general jurisdiction and specialised courts is established by the Law on Courts. In this context it needs to be noted that, under the Law on Courts that is currently in force, judges of courts of general jurisdiction and administrative courts are appointed until they reach the age of 65 years. It has been mentioned that, under Paragraph 1 of Article 103 of the Constitution, justices of the Constitutional Court are appointed for a single nine-year term of office. It has also been mentioned that, while regulating the relations of the social (material) guarantees of judges upon expiry of the term of office of the judge, inter alia when differentiating these guarantees, account must be taken of the fact stemming from the Constitution that courts are attributed not to one but to several (at present—three) systems of courts, out of which a separate system is comprised of the Constitutional Court, characterised by its own peculiarities, inter alia the aspect of the term of office of justices of the Constitutional Court.

It has also been mentioned that the legislator, while regulating the relations of the social (material) guarantees of judges upon expiry of the term of their office, must also take account of the fact that justices of the Constitutional Court differ from judges of other courts in regard to their constitutional status, inter alia the term of their powers. Otherwise, one would deviate from the constitutional concept of such social (material) guarantees, under which the social (material) guarantees of judges, when establishing them, must be differentiated by taking account of the specificity of a court system as well as peculiarities of the status of judges of a court system.

1.2. It has been mentioned that Paragraph 1 of Article 6 of the Law on the State Pensions of Judges establishes the maximum size of the state pension of judges and the procedure for calculation thereof. The maximum size of the state pension of judges is 45 percent of the remuneration for work of the judge calculated from the remuneration of the judge received in last 5 years before termination of holding the office of the judge. The right to receive the state pension of judges of the maximum size is acquired by the persons who have gained not less than a twenty-year work record as a judge and who meet the conditions set out in Article 3 of the said law.

1.3. In assessing the legal regulation established in Paragraph 1 of Article 6 of the Law on the State Pensions of Judges in the aspect of its compliance with the Constitution, it needs to be noted that, under the Constitution, it is permitted, by means of the law, to establish the maximum size of the state pension of judges. Thus, there is not any legal basis to maintain that the legal regulation established in Paragraph 1 of Article 6 of the Law on the State Pensions of Judges, in the aspect whereby inter alia it establishes the maximum size of the state pension of judges, i.e. 45 percent of the received average remuneration for work of a judge, is not in line with the requirements stemming from the Constitution.

Alongside, it needs to be noted that, under the legal regulation established in Paragraph 1 of Article 6 of the Law on the State Pensions of Judges, the maximum state pension of judges may be granted only to the persons who have acquired not less than a twenty-year work record as a judge. It has been mentioned that, under Paragraph 1 of Article 103 of the Constitution, justices of the Constitutional Court are appointed for a single nine-year term of office. Thus, the legal regulation established in Paragraph 1 of Article 6 of the Law on the State Pensions of Judges does not include the persons who were justices of the Constitutional Court for the entire nine-year term of office established in the Constitution and who have only a nine-year work record as a justice of the Constitutional Court.

1.4. Thus, when entrenching in Paragraph 1 of Article 6 of the Law on the State Pensions of Judges the procedure for calculation of the state pensions of judges and the maximum size of these pensions, no account was taken of the specific constitutional status of the Constitutional Court as an independent court system, inter alia of the fact that justices of the Constitutional Court are appointed for a single nine-year term of office, therefore, the requirement that stems from the Constitution, inter alia Paragraph 2 of Article 109 thereof, to differentiate the social (material) guarantees of judges, when establishing such guarantees, according to the court system where the judge works, is violated and the imperative of justice that arises from the constitutional principle of a state under the rule of law is denied.

1.5. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 1 of Article 6 of the Law on the State Pensions of Judges, to the extent that in establishing the maximum size of the state pension of judges no account was taken of peculiarities of separate court systems, is in conflict with Paragraph 2 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law.

1.6. It has been mentioned that Paragraph 2 of Article 6 of the Law on the State Pensions of Judges establishes the procedure for calculation of the state pension of the judges who have not gained a twenty-year work record as a judge, but who meet the conditions set out in Article 3 of this law, and entrenches the percentages of the state pension of judges granted to a judge (35 percent, 20 percent, and 10 percent of the average remuneration for work of the judge, calculated from the remuneration received in last 5 years before termination of holding the office of the judge), which depend on the duration of the person’s work record as a judge. Under Paragraph 2 of Article 6 of this law:

– the judge who has gained the work record as a judge from 5 to 10 years is granted the state pension of judges of the amount of 10 percent of his received average remuneration for work;

– the judge who has gained the work record as a judge from 10 to 15 years is granted the state pension of judges of the amount of 20 percent of his received average remuneration for work;

– the judge who has gained the work record as a judge from 15 to 20 years is granted the state pension of judges of the amount of 35 percent of his received average remuneration for work.

While construing Paragraph 2 of Article 6 of the Law on the State Pensions of Judges, it needs to be noted that the legal regulation established therein also means that the persons who were justices of the Constitutional Court for the entire nine-year term of office provided for in the Constitution and who have only a nine-year work record as a justice of the Constitutional Court as well as the persons who have gained the work record from five to ten years of work in other courts (no matter of what court system and of which court level, thus, in a court of the lowest level as well) are granted the state pension of judges by applying the lowest percentage of the state pension, i.e. 10 percent of the average remuneration for work received by the judge.

Thus, when entrenching in Paragraph 2 of Article 6 of the Law on the State Pensions of Judges the procedure for calculation of the state pensions of the judges who have not gained a twenty-year work record as a judge as well as the sizes of granting these pensions, no account was taken of the specific constitutional status of the Constitutional Court as an independent court system, inter alia of the fact that justices of the Constitutional Court are appointed for a single nine-year term of office, therefore, the requirement that stems from the Constitution, inter alia Paragraph 2 of Article 109 thereof, to differentiate the social (material) guarantees of judges, when establishing such guarantees, according to the court system where the judge works is violated and the imperative of justice that arises from the constitutional principle of a state under the rule of law is denied.

  1. It has been mentioned that the Vilnius Regional Administrative Court, the petitioner (petition No. 1B-20/2008), requests investigation into the compliance of Paragraph 2 of Article 6 of the Law on the State Pensions of Judges with the Constitution also in the aspect that, by linking granting of the state pension of judges and payment thereof to a five-year interval of work record and to a fixed percent of the average remuneration for work received by the judge, one violates the right of the person to receive the payments of his well-earned pension.

2.1. It has also been mentioned that the guarantees of social (material) nature of judges, inter alia the social guarantees upon expiry of powers of the judge, may be differentiated according to the duration of the person’s work as a judge.

It has been mentioned that the size of the social (material) guarantees upon expiry of powers of the judge may be differentiated according to the duration of the person’s work as a judge as well. However, the legal regulation, under which the size of the social (material) guarantees of judges upon expiry of their powers is differentiated according to the duration of the person’s work as a judge, must not deviate from the constitutional concept of this social (material) guarantee of judges. In this context it needs to be noted that such legal regulation, under which the size of the said social (material) guarantee would be the same or similar for the judges who received the remuneration of equal or similar amount, but whose duration of work in courts differs considerably, or the size of the said social (material) guarantee would differ considerably for the judges who received the remuneration of equal or similar amount, but whose duration of work in courts differs little, would not be in conformity with the constitutional concept of the social (material) guarantee of judges upon expiry of powers of the judge, inter alia the requirements of Paragraph 2 of Article 109 of the Constitution, as well as the imperatives of justice, proportionality, and reasonableness that stem from the constitutional principle of a state under the rule of law.

2.2. It has been mentioned that under Paragraph 2 of Article 6 of the Law on the State Pensions of Judges:

– the judge who has gained the work record as a judge from 5 to 10 years is granted the state pension of judges of the amount of 10 percent of his received average remuneration for work;

– the judge who has gained the work record as a judge from 10 to 15 years is granted the state pension of judges of the amount of 20 percent of his received average remuneration for work;

– the judge who has gained the work record as a judge from 15 to 20 years is granted the state pension of judges of the amount of 35 percent of his received average remuneration for work.

2.3. In this context it needs to be noted that the legal regulation entrenched in Paragraph 2 of Article 6 of the Law on the State Pensions of Judges creates preconditions for appearance of such legal situations where the judges, whose average remuneration for work, on the basis of which the state pension of judges is calculated, is equal or similar, but the duration of their work record as a judge differs considerably, will be granted the state pension of judges of the same or similar amount. For example, the judge who has gained a nine-year work record as a judge may be granted the state pension of judges of the same or similar amount as the judge who has gained a five-year work record as a judge.

In addition, such legal regulation creates preconditions for appearance of such legal situations where the judge, whose duration of the work record as a judge differs insignificantly from the duration of the work record of other judge, will be granted a considerably smaller state pension of judges than the judge whose work record as a judge is slightly longer (provided, of course, the average remuneration for work received by these judges, on the basis of which the state pension of judges is calculated, is the same or similar). For example, under the legal regulation established in Paragraph 2 of Article 6 of the Law on the State Pensions of Judges, the judge who has gained a fourteen-year work record as a judge is granted the pension of the size of 20 percent of the average remuneration for work received by the judge, whereas the judge who has gained already a fifteen-year work record as a judge—the pension of the size of 35 percent of the average remuneration for work received by the judge.

2.4. Thus, the legal regulation established in Paragraph 2 of Article 6 of the Law on the State Pensions of Judges, which, on the one hand, creates preconditions to make totally equal sizes of the state pensions of the judges who have gained the work record as a judge of a considerably different duration and which, on the other hand, creates preconditions to grant the state pension of judges of a considerably different size to the judges the duration of whose work record as a judge differs insignificantly, is not in line with the constitutional concept of the state pension of judges as a social (material) guarantee of judges upon expiry of their powers, inter alia the provisions of Paragraph 2 of Article 109 of the Constitution and the requirements of justice, proportionality, and reasonableness stemming from the constitutional principle of a state under the rule of law.

2.5. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 2 of Article 6 of the Law on the State Pensions of Judges is in conflict with Paragraph 2 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law.

  1. Having held in the constitutional justice case at issue that Paragraphs 1 and 2 of Article 6 of the Law on the State Pensions of Judges are in conflict with Paragraph 2 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law, the Constitutional Court will not further investigate whether Paragraphs 1 and 2 of Article 6 of the Law on the State Pensions of Judges are not in conflict with Article 52, Paragraph 1 of Article 103, and Paragraph 1 of Article 104 of the Constitution, and whether Paragraph 2 of Article 6 of the Law on the State Pensions of Judges is not in conflict with Article 23 of the Constitution.
  2. It needs to be noted that in the constitutional justice case at issue the petitioner disputes inter alia the compliance of Article 5 of the Law on the State Pensions of Judges with Article 52, Paragraph 1 of Article 103, and Paragraph 1 of Article 104 of the Constitution as well as with the constitutional principle of a state under the rule of law.

4.1. Article 5 of the Law on the State Pensions of Judges prescribes that the work record of judges which is necessary in order to receive the state pension of judges includes the period 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, courts of general jurisdiction and specialised courts) or as a judge of any international court appointed or elected from Lithuania, while, if the person has gained the work record of a judge while working as a judge in different courts and at different time, his gained work record as a judge, in order to receive the state pension of judges, is summed up according to the procedure established by the Regulations for Granting and Payment of the State Pensions of Judges approved by the Government.

4.2. The petitioner disputes the legal regulation established in the aforesaid article to the extent that it is not established therein that the maximum nine-year term of the office of the Constitutional Court justice is a sufficient independent basis to grant the state pension of judges of such a size which would be in line with a special status of the Constitutional Court in the constitutional system of judicial power.

4.3. In this context it needs to be noted that Article 5 “Work Record of Judges Necessary to Receive the State Pension of Judges” of the Law on the State Pensions of Judges does not regulate the sizes of the state pensions of judges, but only provides for the procedure for calculation of the work record of judges. Thus, the legal regulation entrenched in Article 5 of the Law on the State Pensions of Judges is virtually different and it is not related with the aspect indicated by the petitioner; consequently, investigation into the constitutionality of the said article in the aspect indicated by the petitioner would become meaningless. Thus, it needs to be held that in this part of the case the matter of investigation is absent.

4.4. The absence of the matter of investigation in the petition of the petitioner means that the petition is not within the jurisdiction of the Constitutional Court (Constitutional Court decisions of 6 May 2003 and 13 May 2003, ruling of 13 May 2004, decision of 8 August 2006, rulings of 20 December 2007 and 20 March 2008).

4.5. Item 2 of Paragraph 1 of Article 69 of the Law on the Constitutional Court prescribes that, by its decision, the Constitutional Court shall refuse to consider petitions to investigate the compliance of a legal act with the Constitution, if the consideration of the petition does not fall under the jurisdiction of the Constitutional Court.

Under Paragraph 3 of Article 69 of the Law on the Constitutional Court, in the event that the grounds for refusal to consider a petition have been established after the commencement of the investigation of the case during the hearing of the Constitutional Court, a decision to dismiss the case shall be adopted.

4.6. Taking account of the arguments set forth, the part of this constitutional justice case concerning the request of the Vilnius Regional Administrative Court, the petitioner, to investigate whether Article 5 of the Law on the State Pensions of Judges, to the extent that the maximum nine-year term of the office of the Constitutional Court justice is not regarded to be a sufficient independent basis for granting the state pension of the judge of the maximum amount, is not in conflict with Article 52, Paragraph 1 of Article 103, and Paragraph 1 of Article 104 of the Constitution and the constitutional principle of a state under the rule of law, is to be dismissed.

V

On the compliance of the provision of Paragraph 3 of Article 6 of the Law on the State Pensions of Judges with Article 52, Paragraph 1 of Article 104, and Paragraph 2 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law and on the compliance of Paragraph 3 (wording of 8 December 2009) of Article 3 of the Law on State Pensions with Articles 23 and 52 of the Constitution and the constitutional principle of a state under the rule of law.

  1. Paragraph 3 of Article 6 of the Law on the State Pensions of Judges prescribes that the sum of the state pension of judges and the pensions granted under other laws (state and state social insurance pensions) may not exceed per person the amount of 1.5 of the average monthly remuneration for work in the economy of the country, as announced by the Department of Statistics, for the quarter before the last quarter preceding the month for which the state pension of judges is paid. Limitation of the size of the pension is applied by the institution paying the state pensions of judges.

1.1. It has been mentioned that the social (material) guarantees of the principle of the 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 a duty to ensure such social (material) maintenance for judges which would be in conformity with their status when they are in office as well as upon expiry of the term of their office. The social (material) guarantees established to judges, under the Constitution, must be such so that they would be in line with the constitutional status of the judge and his dignity.

It has also been mentioned that, in its ruling of 22 October 2007, the Constitutional Court held that the legislator must establish such legal regulation which would ensure the independence of the judge and courts, inter alia the social (material) guarantees of the judge, not only when he is in office, but also upon expiry of his powers; while doing so, the legislator must heed the norms and principles of the Constitution; upon expiry of powers of the judge, the social (material) guarantees of the judge may be varied ones, inter alia the payments paid periodically, as well as one-time payments, etc.; the constitutional ground for establishment of such guarantees is an exceptional constitutional status of the judge which is determined by the function of administration of justice, therefore, they may depend only upon the circumstances which are related with the constitutional status of the judge, but they may not be treated 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; the social (material) guarantees of the judge, upon expiry of his powers, must be real and not only nominal.

It has been mentioned that the Constitutional Court has held that if the legislator enshrines such a social (material) guarantee of the judge upon 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 thereof.

It has also been mentioned that the legislator, while regulating the relations connected with the state pension of judges, must establish, by means of a law, the grounds and conditions for granting this pension. The legislator may establish, by means of a law, the maximum size of the state pension of judges as well as entrench various ways for establishment of the maximum size of such a pension. While doing so, the legislator must not violate the norms and principles of the Constitution. In this context it needs to be noted that the legislator, when entrenching, by means of a law, the maximum size of the pension as well as ways for establishment of this size, must heed inter alia the fact that the state pension of judges is a social (material) guarantee of the judge upon expiry of his powers that stems from the Constitution and which is defended not only under Article 109 of the Constitution, but also under Article 52 thereof, that this social (material) guarantee must be in line with the constitutional status of the judge and his dignity, and that such a constitutional social (material) guarantee of the judge must be real and not only nominal. Otherwise, one would deny the essence and purpose of the state pension of judges as a social (material) guarantee of the judge upon expiry of his powers that stem from the Constitution, and thereby would create preconditions to deviate from the requirements arising from the Constitution, inter alia Paragraph 2 of Article 109 thereof and the constitutional principle of a state under the rule of law.

1.2. It has been mentioned that Paragraph 3 of Article 6 of the Law on the State Pensions of Judges sets limitation upon the size of the calculated state pension of judges in conjunction with the state social insurance pension and other state pensions per person.

This provision entrenches the maximum sum of all the pensions received by the person (in the event when the person is entitled to receive not one but several pensions granted under different laws) which may not exceed the amount of 1.5 of the average monthly remuneration for work in the economy of the country, as announced by the Department of Statistics, for the quarter before the last quarter preceding the month for which the state pension of judges is paid. Consequently, although Paragraphs 1 and 2 of Article 6 of the Law on the State Pensions of Judges entrench the legal regulation, under which the size of the state pension of judges depends upon the person’s work record as a judge and the average remuneration for work of the judge received in last 5 years before termination of holding the office of the judge (the persons who have gained not less than a twenty-year work record as a judge are granted the state pension of judges of the amount of 45 percent of the average remuneration for work, the persons who have gained a fifteen-year or longer work record as a judge—the pension of the amount of 35 percent of the average remuneration for work, the persons who have gained a ten-year or longer work record as a judge—the pension of the amount of 20 percent of the average remuneration for work, and the persons who have gained a five-year or longer work record as a judge—the pension of the amount of 10 percent of the average remuneration for work), this legal regulation is “neutralised”, since the size of the state pension of judges actually paid in conjunction with other pensions is limited by the amount of 1.5 of the average monthly remuneration for work in the economy of the country, as announced by the Department of Statistics, i.e. it depends upon what pensions and of what size the person had to receive under other laws.

1.3. In this context it needs to be noted that the legal regulation entrenched in Paragraph 3 of Article 6 of the Law on the State Pensions of Judges creates preconditions for appearance of also such legal situations where the person, who was a judge and the sum of whose state (other than the state pension of judges) and state social insurance pensions exceeds the amount of 1.5 of the average monthly remuneration for work in the economy of the country, as announced by the Department of Statistics, for the quarter before the last quarter preceding the month for which the state pension of judges is paid, or is slightly smaller than this amount, will not be paid the state pension of judges at all or will be paid only a small part of this pension, i.e. the state pension of judges can become not a real but nominal constitutional social (material) guarantee of the judge upon expiry of his powers.

1.4. Thus, the legal regulation established in Paragraph 3 of Article 6 of the Law on the State Pensions of Judges denies the essence and purpose of the state pensions of judges as a social (material) guarantee of the judge upon expiry of his powers that stems from the Constitution and creates preconditions to deviate from the requirements arising from the Constitution, inter alia Paragraph 2 of Article 109 thereof and the constitutional principle of a state under the rule of law.

1.5. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 3 of Article 6 of the Law on the State Pensions of Judges is in conflict with Paragraph 2 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law.

1.6. Having held that Paragraph 3 of Article 6 of the Law on the State Pensions of Judges is in conflict with Paragraph 2 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law, in the constitutional justice case at issue the Constitutional Court will not further investigate whether Paragraph 3 of Article 6 of the Law on the State Pensions of Judges is not in conflict with Article 52 and Paragraph 2 of Article 104 of the Constitution.

  1. It has been mentioned that the Vilnius Regional Administrative Court, the petitioner, has doubts as to whether Paragraph 3 (wording of 8 December 2009) of Article 3 of the Law on State Pensions, to the extent that it prescribes that the size of the state pension of judges as well as the sum total of the size of this pension and other state pensions and state social insurance pensions granted to the same person may not exceed per person the amount of 1.3 of the average monthly remuneration for work in the economy of the country, as announced by the Department of Statistics under the Government of the Republic of Lithuania, for the quarter before the last quarter preceding the month for which the state pension is paid, is not in conflict with the Constitution.

2.1. In this context it needs to be noted that, on 8 December 2009, the Seimas amended Article 3 of the Law on State Pensions, inter alia reducing the maximum size of the state pension established in Paragraph 3 of the said article as well as the maximum size of the sum total per person of the size of this pension and other state pensions and state social insurance pensions granted to the same person from the amount of 1.5 to 1.3 of the average monthly remuneration for work in the economy of the country, as announced by the Department of Statistics under the Republic of Lithuania, for the quarter before the last quarter preceding the month for which the state pension is paid.

2.2. In this context it also needs to be noted that the provision of the Law on the State Pensions of Judges which prescribes the maximum size of the state pension of judges and other pensions received by the person, when amending the provision of the Law on State Pensions, was not changed. Thus, under the Law on State Pensions, the maximum size of the state pension of the person, inter alia the state pension of judges, and the maximum sum total of this pension and other pensions received by the person may not exceed the amount of 1.3 of the average monthly remuneration for work in the economy of the country, as announced by the Department of Statistics under the Republic of Lithuania, for the quarter before the last quarter preceding the month for which the state pension is paid, whereas under the Law on the State Pensions of Judges, the sum of the state pension of judges and the pensions granted under other laws may not exceed the aforementioned amount of 1.5. It needs to be mentioned that the Law on the State Pensions of Judges is lex specialis with regard to the Law on State Pensions.

It needs to be noted that in the constitutional justice case at issue Paragraph 3 of Article 6 of the Law on the State Pensions of Judges, which, as mentioned, establishes limitation upon the size of the calculated state pension of judges in conjunction with the state social insurance pension as well as other state pensions per person, has been recognised to be in conflict with Paragraph 2 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law.

2.3. It needs to be noted that by means of the disputed provision of the Law on State Pensions the legislator inter alia reduced the maximum size of the state pension, inter alia the state pension of judges, as well as the maximum size of the sum total of this pension and other pensions granted to the same person.

It has been mentioned that when there is an essential change in the economic and financial situation of the state and when due to special circumstances (economic crisis, natural disaster, 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 fulfil 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 legislator may change the legal regulation which establishes the remuneration as well as pensions to various persons and entrench the legal regulation on the remuneration as well as pensions 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. Consequently, in case of an extremely difficult economic and financial situation of the state, the remuneration of judges and the state pensions of judges may be reduced as well. If one established such legal regulation, whereby in case of an extremely difficult economic and financial situation of the country it would not be permitted to reduce the financing of courts only, nor to reduce the remuneration and pensions of judges only, it would mean that courts are groundlessly singled out from among other institutions which implement state power, and judges—from among other persons that participate in implementing powers of the corresponding institutions of state power. The consolidation of such an exceptional situation of courts (judges) would not be in line with the requirements of an open, fair and harmonious civil society and of the imperatives of justice. It is possible to worsen the financial and material conditions for the functioning of courts that are provided for by laws and to reduce the remuneration of judges and the state pensions of judges only by means of a law, and it is possible to do so only temporarily, for the period of time when the economic and financial condition of the state is extremely difficult; by such reduction of the remuneration and the state pensions of judges no preconditions should be created for other institutions of state power and their officials to violate the independence of courts.

2.4. It has been mentioned that Paragraph 3 (wording of 8 December 2009) of Article 3 of the Law on State Pensions prescribes that the size of the state pension as well as the sum total of the size of this pension and state pensions and state social insurance pensions granted to the same person may not exceed per person the amount of 1.3 of the average monthly remuneration for work in the economy of the country, as announced by the Department of Statistics under the Government of the Republic of Lithuania, for the quarter before the last quarter preceding the month for which the state pension is paid; limitation upon the size of the pension is applied by the institution paying the state pension.

This provision inter alia entrenches limitation upon the maximum size of the state pension and the size of the state pension calculated in conjunction with the state social insurance pension and other state pensions per person. In the context of the constitutional justice case at issue the rule entrenched in Paragraph 3 (wording of 8 December 2009) of Article 3 of the Law on State Pensions inter alia means that for the person, who is granted the state pension of judges, the state social insurance pension and/or other state pension, the total size of these pensions may not exceed the amount of 1.3 of the average monthly remuneration for work in the economy of the country, as announced by the Department of Statistics under the Government of the Republic of Lithuania, for the quarter before the last quarter preceding the month for which the state pension is paid.

2.5. In this context it needs to be noted that such legal regulation, which is entrenched in Paragraph 3 (wording of 8 December 2009) of Article 3 of the Law on State Pensions, creates preconditions for appearance of also such legal situations where the person, formerly a judge, the sum of whose state (other than the state pension of judges) and state social insurance pensions exceeds the amount of 1.3 of the average monthly remuneration for work in the economy of the country, as announced by the Department of Statistics, for the quarter before the last quarter preceding the month for which the state pension of judges is paid, or is slightly smaller than this amount, will not be paid the state pension of judges at all or will be paid only a small part of this pension, i.e. the state pension of judges can become not a real but nominal constitutional social (material) guarantee of the judge upon expiry of his powers.

2.6. Thus, the legal regulation established in Paragraph 3 (wording of 8 December 2009) of Article 3 of the Law on State Pensions denies the essence and purpose of the state pensions of judges as a social (material) guarantee of the judge upon expiry of his powers that stems from the Constitution and creates preconditions to deviate from the requirements arising from the Constitution, inter alia Paragraph 2 of Article 109 thereof and the constitutional principle of a state under the rule of law.

2.7. Taking account of the arguments set forth, one is to draw a conclusion that the provision “The sum total of the size of each state <…> pension established in Items 1–5 of Paragraph 1 of Article 1 of this law and the state pensions granted to the same person under Paragraph 1 of this article and state social insurance pensions may not exceed per person the amount of 1.3 of the average monthly remuneration for work in the economy of the country, as announced by the Department of Statistics under the Government of the Republic of Lithuania, for the quarter before the last quarter preceding the month for which the state pension is paid” (wording of 8 December 2009) of Paragraph 3 (wording of 8 December 2009) of Article 3 of the Law on State Pensions, to the extent that the formula “of each state <…> pension established in Items 1–5 of Paragraph 1 of Article 1 of this law” includes the state pensions of judges established in Item 5 of Paragraph 1 of Article 1 of this law, is in conflict with Paragraph 2 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law.

Having held this, in the constitutional justice case at issue the Constitutional Court will not investigate whether Paragraph 3 (wording of 8 December 2009) of Article 3 of the Law on State Pensions is not in conflict with Articles 23 and 52 of the Constitution.

VI

On the compliance of Item 1 of Paragraph 2 of Article 1 and Paragraph 4 of Article 16 of the Provisional Law on Recalculation and Payment of Social Payments with Articles 23 and 52 of the Constitution and the constitutional principle of a state under the rule of law.

  1. It has been mentioned that the petitioner has doubts whether Item 1 of Paragraph 2 of Article 1 of the Provisional Law on Recalculation and Payment of Social Payments, to the extent that it is established that this law is applied to the persons who receive the state pensions that are granted and paid under the Law on the State Pensions of Judges, is not in conflict with Articles 23 and 52 of the Constitution and the constitutional principle of a state under the rule of law.

1.1. It has been mentioned that when there is an essential change in the economic and financial situation of the state and when due to special circumstances (economic crisis, natural disaster, 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 fulfil 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 legislator may change the legal regulation which establishes the remuneration as well as pensions to various persons and entrench the legal regulation on the remuneration as well as pensions 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 legislator 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. Consequently, in case of an extremely difficult economic and financial situation of the state, the remuneration of judges and the state pensions of judges may be reduced as well. If one established such legal regulation, whereby in case of an extremely difficult economic and financial situation of the country it would not be permitted to reduce the financing of courts only, nor to reduce the remuneration and pensions of judges only, it would mean that courts are groundlessly singled out from among other institutions which implement state power, and judges—from among other persons that participate in implementing powers of the corresponding institutions of state power. The consolidation of such 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 that are provided for by laws and to reduce the remuneration of judges and the state pensions of judges only by means of a law, and it is possible to do so only temporarily, for the period of time when the economic and financial condition of the state is extremely difficult; by such reduction of the remuneration and the state pensions of judges no preconditions should be created for other institutions of state power and their officials to violate the independence of courts.

1.2. It has been mentioned that Item 1 of Paragraph 2 of Article 1 of the Provisional Law on Recalculation and Payment of Social Payments provides that this law is inter alia applied to the persons who receive the state pensions that are granted and paid under the Law on the State Pensions of Judges.

1.3. Thus, there is no basis to maintain that Item 1 of Paragraph 2 of Article 1 of the Provisional Law on Recalculation and Payment of Social Payments is in conflict with the constitutional principle of a state under the rule of law as well as Articles 23 and 52 of the Constitution.

1.4. Taking account of the arguments set forth, one is to draw a conclusion that Item 1 of Paragraph 2 of Article 1 of the Provisional Law on Recalculation and Payment of Social Payments, to the extent that it is established that this law is applied to the persons who receive the state pensions that are granted and paid under the Law on the State Pensions of Judges, is not in conflict with Articles 23 and 52 of the Constitution and the constitutional principle of a state under the rule of law.

  1. Paragraph 4 of Article 16 of the Provisional Law on Recalculation and Payment of Social Payments sets forth proposals to the Government, till 1 July 2010, to prepare and approve the inventory schedule of the procedure for compensation of the reduced state social insurance pensions of old age and of lost capacity to work.

The legal regulation established in Paragraph 4 of Article 16 of this law is to be construed as meaning that the Government is proposed to prepare and approve the inventory schedule of the procedure for compensation of only reduced state social insurance pensions of old age and of lost capacity to work, which would not include the essential elements of compensation of pensions: bases, sizes, etc. These elements of compensation of the reduced pensions must be established by means of the law by the legislator. Only if the said legal regulation is understood in this way, Paragraph 4 of Article 16 of the Provisional Law on Recalculation and Payment of Social Payments is not in conflict with the Constitution.

2.1. It has also been mentioned that even when due to special circumstances (economic crisis, etc.) there is an extremely difficult economic and financial situation in the state, the legislator, if he decides to reorganise the pensionary system so that the pensions which are established by the laws and which are not directly specified in Article 52 of the Constitution were eliminated, or the legal regulation of these pensions were amended in essence, must establish a fair mechanism for compensation of the losses incurred to the persons who had been granted and paid such pensions (Constitutional Court decision of 20 April 2010).

2.2. It has been mentioned that the petitioner has doubts whether Paragraph 4 of Article 16 of the Provisional Law on Recalculation and Payment of Social Payments, to the extent that it does not provide for compensation of the reduced state pensions of judges, is not in conflict with the Constitution.

2.3. It has also been mentioned that upon occurrence of an extreme situation, when inter alia due to an economic crisis it is impossible to accumulate the amount of the funds necessary to pay state pensions, the legislator must, while reducing state pensions to a large extent, provide for a mechanism of just compensation of the incurred losses to the persons to whom such pensions were granted and paid, whereby, after the said extreme situation is over, the state would undertake an obligation to such persons to compensate them, in a fair manner and within a reasonable time, the losses incurred by them due to the reduction of the state pension (Constitutional Court decision of 20 April 2010).

It has been mentioned that, in its decision of 20 April 2010, the Constitutional Court held that state pensions, in their nature and character, are different from state social insurance old age pensions as well as from other state social insurance pensions, and these peculiarities imply that when there is an extremely difficult economic and financial situation in the state and due to this there emerges a necessity to temporarily reduce the pensions in order to secure the vitally important interests of society and the state and to protect other constitutional values, the legislator may reduce these pensions to a greater extent than old age and disability pensions. It also needs to be noted that the losses incurred due to the reduction of state pensions may be compensated to a smaller extent than the losses incurred due to the reduction of old age or disability pensions (Constitutional Court decision of 20 April 2010).

2.4. Thus, under the Constitution, the losses incurred due to the reduction, to a large extent, of state pensions, inter alia the state pensions of judges, must be compensated. Such legal regulation, which is entrenched in Paragraph 4 of Article 16 of the Provisional Law on Recalculation and Payment of Social Payments, when the legislator proposes to the Government that the inventory schedule of the procedure for compensation of pensions regarding the pensions of old age and of lost capacity to work alone be established and does not propose that the inventory schedule of the procedure for compensation of the state pensions reduced to a large extent be established, cannot be constitutionally justified.

2.5. Taking account of the arguments set forth, it needs to be held that Paragraph 4 of Article 16 of the Provisional Law on Recalculation and Payment of Social Payments, to the extent that it is not proposed to the Government that the inventory schedule of the procedure for compensation of the state pensions reduced to a large extent be prepared and approved, is in conflict with Articles 23 and 52 of the Constitution and the constitutional principle of a state under the rule of law.

VII

  1. Under Paragraph 1 of Article 107 of the Constitution, a law (or part thereof) of the Republic of Lithuania or other act (or part thereof) of the Seimas, act of the President of the Republic, act (or part thereof) of the Government may not be applied from the day of official promulgation of the decision of the Constitutional Court that the act in question (or part thereof) is in conflict with the Constitution.

After the official promulgation of this Constitutional Court ruling, from the day of its official promulgation, the articles (parts thereof) of the Law on the State Pensions of Judges and the Law on State Pensions which have been recognised to be in conflict with the Constitution by this Constitutional Court ruling may not be applied.

Consequently, after the official promulgation of this Constitutional Court ruling certain relations related with calculation and granting of the state pensions of judges will remain unregulated and there will emerge a vacuum of legal regulation.

  1. As it has been held by the Constitutional Court, “under the Constitution, the Constitutional Court, having inter alia assessed what legal situation might appear after a Constitutional Court ruling becomes effective, may establish a date when this Constitutional Court ruling is to be officially published; the Constitutional Court may postpone the official publishing of its ruling if it is necessary to give the legislator certain time to remove the lacunae legis which would appear if the relevant Constitutional Court ruling was officially published immediately after it had been publicly announced in the hearing of the Constitutional Court and if they constituted preconditions to basically deny certain values defended and protected by the Constitution. The said postponement of official publishing of the Constitutional Court ruling (inter alia a ruling by which a certain law (or part thereof) is recognised as contradicting to the Constitution) is a presumption arising from the Constitution in order to avoid certain effects, unfavourable to the society and the state as well as the human rights and freedoms, which might appear if the relevant Constitutional Court ruling was officially published immediately after its official announcement in the hearing of the Constitutional Court and if it became effective on the same day after it had been officially published” (Constitutional Court rulings of 19 January 2005 and 23 August 2005). Thus, the Constitutional Court enjoys the constitutional powers to establish also a later date of the official publishing (thus, also of entry into force) of its ruling, whereby a certain legal act (part thereof) was recognised as being in conflict with legal acts of higher legal power, inter alia (and, first of all) the Constitution, where, in case the Constitutional Court ruling after its adoption was immediately officially published, the vacuum or other indeterminacies might appear in the legal regulation due to which certain values entrenched in and defended and protected by the Constitution could be violated in essence (Constitutional Court rulings of 24 December 2002, 19 January 2005 and 23 August 2005).
  2. Due to the fact that, under the Constitution and the Law on the Constitutional Court, a law (or part thereof) may not be applied from the day of official promulgation of the Constitutional Court ruling that the law in question (or part thereof) is in conflict with the Constitution, it needs to be emphasised that if the Constitutional Court ruling in this case were officially published immediately after its public announcement at the Constitutional Court hearing, there would emerge a vacuum of legal regulation of the state pensions of judges, which would in essence disturb granting of the state pensions of judges. Certain time is required in order to remove this vacuum of legal regulation.

Taking account of this, this Constitutional Court ruling is to be officially published in the Official Gazette Valstybės žinios on 16 November 2010.

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 has passed the following

ruling:

  1. To recognise that Paragraph 1 (Official Gazette Valstybės žinios, 2002, No. 73-3088) of Article 6 of the Republic of Lithuania Law on the State Pensions of Judges, to the extent that in establishing the maximum size of the state pension of judges no account was taken of peculiarities of separate court systems, is in conflict with Paragraph 2 of Article 109 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.
  2. To recognise that Paragraph 2 (Official Gazette Valstybės žinios, 2002, No. 73-3088) of Article 6 of the Republic of Lithuania Law on the State Pensions of Judges is in conflict with Paragraph 2 of Article 109 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.
  3. To recognise that Paragraph 3 (Official Gazette Valstybės žinios, 2002, No. 73-3088) of Article 6 of the Republic of Lithuania Law on the State Pensions of Judges is in conflict with Paragraph 2 of Article 109 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.
  4. To recognise that the provision “The sum total of the size of each state <…> pension established in Items 1–5 of Paragraph 1 of Article 1 of this law and the state pensions granted under Paragraph 1 of this article and state social insurance pensions granted to the same person may not exceed per person the amount of 1.3 of the average monthly remuneration for work in the economy of the country, as announced by the Department of Statistics under the Government of the Republic of Lithuania, for the quarter before the last quarter preceding the month for which the state pension is paid” (wording of 8 December 2009) of Paragraph 3 (wording of 8 December 2009) (Official Gazette Valstybės žinios, 2009, No. 151-6778) of Article 3 of the Republic of Lithuania Law on State Pensions, to the extent that the formula “of each state <…> pension established in Items 1–5 of Paragraph 1 of Article 1 of this law” includes the state pension of judges established in Item 5 of Paragraph 1 of Article 1 of this law, is in conflict with Paragraph 2 of Article 109 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.
  5. To recognise that Item 1 (Official Gazette Valstybės žinios, 2009, No. 152-6820) of Paragraph 2 of Article 1 of the Republic of Lithuania Provisional Law on Recalculation and Payment of Social Payments, to the extent that it is established that this law is applied to the persons who receive the state pensions that are granted and paid under the Republic of Lithuania Law on the State Pensions of Judges, is not in conflict with the Constitution of the Republic of Lithuania.
  6. To recognise that Paragraph 4 (Official Gazette Valstybės žinios, 2009, No. 152-6820) of Article 16 of the Republic of Lithuania Provisional Law on Recalculation and Payment of Social Payments, to the extent that it is not proposed to the Government of the Republic of Lithuania that the inventory schedule of the procedure for compensation of the state pensions reduced to a large extent be prepared and approved, is in conflict with Articles 23 and 52 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.
  7. This ruling of the Constitutional Court of the Republic of Lithuania must be officially published in the Official Gazette Valstybės žinios on 16 November 2010.

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

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

Justices of the Constitutional Court:                                       Armanas Abramavičius

                                                                                                           Toma Birmontienė

                                                                                                           Pranas Kuconis

                                                                                                           Kęstutis Lapinskas

                                                                                                           Zenonas Namavičius

                                                                                                           Ramutė Ruškytė

                                                                                                           Algirdas Taminskas

                                                                                                           Romualdas Kęstutis Urbaitis