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On refusing to consider a petition

 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

 DECISION

ON THE PETITION OF THE KLAIPĖDA REGIONAL ADMINISTRATIVE COURT, THE PETITIONER, REQUESTING AN INVESTIGATION INTO THE COMPLIANCE OF PARAGRAPH 1 OF ARTICLE 33 OF THE TREATY BETWEEN THE REPUBLIC OF LITHUANIA AND UKRAINE ON SOCIAL SECURITY WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA AND THE REPUBLIC OF LITHUANIA’S LAW ON STATE SOCIAL INSURANCE PENSIONS

 4 November 2014, No. KT47-S32/2014

Vilnius

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

The court reporter—Daiva Pitrėnaitė

The Constitutional Court of the Republic of Lithuania, in its procedural sitting, considered the petition (No. 1B-50/2014) of the Klaipėda Regional Administrative Court, the petitioner.

The Constitutional Court

has established:

The Constitutional Court has received the petition (No. 1B-50/2014) of the Klaipėda Regional Administrative Court, the petitioner, requesting an investigation into whether “the provisions of Paragraph 1 of Article 33 of the Act of the Government of the Republic of Lithuania ‘On the Treaty Between the Republic of Lithuania and Ukraine on Social Security’ adopted on 23-04-2001 are not in conflict with Paragraph 4 of Article 43 of the Republic of Lithuania’s Law on State Social Insurance Pensions, Paragraph 1 of Article 29, Paragraph 1 of Article 32, and Article 52 of the Constitution of the Republic of Lithuania, and with the constitutional principles of a state under the rule of law, legitimate expectations, legal certainty and legal security, proportionality and the equality of rights”.

The Constitutional Court

holds that:

  1. The Klaipėda Regional Administrative Court, the petitioner, requests an investigation into the compliance of “Paragraph 1 of Article 33 of the Act of the Government of the Republic of Lithuania ‘On the Treaty Between the Republic of Lithuania and Ukraine on Social Security’ adopted on 23-04-2001” with the Constitution and a certain provision of the Law on State Social Insurance Pensions.
  2. On 27 September 1994, the Agreement “On the Cooperation in the Sphere of Pensionary Maintenance” between the Government of the Republic of Lithuania and the Government of Ukraine was concluded. It was ratified by the Seimas Resolution (No. I-692) “On the Ratification of the Agreement ‘On the Cooperation in the Sphere of Pensionary Maintenance’ between the Government of the Republic of Lithuania and the Government of Ukraine” of 13 December 1994.

According to this agreement, the persons who permanently reside in the territory of a contracting party and later move for permanent residency in the territory of the other contracting party, shall, under the laws of the latter country and from its funds, be awarded and paid pensions (with certain exceptions) by the competent bodies of the country on the territory of which they permanently reside (Articles 2 and 5); if a pensioner moves from the territory of one contracting party for permanent residency in the territory of the other contracting party, the payment of the pension is discontinued, whilst a competent body of the contracting party to whose territory the pensioner has moved, shall, under the laws of that contracting party, award a pension to the arrived pensioner as from the day from which the payment of the pension was discontinued at his or her previous place of residence (Articles 8 and 9).

It should be noted that Item 2 of the Final Protocol of the said agreement provided for an opportunity to conclude the agreement in a new wording in view of the application of the principles set forth in Item 1 of the same protocol, inter alia, the principle that after a pensioner moves from the territory of a contracting party for permanent residency in the territory of the other contracting party, the contracting party that has awarded the corresponding pensions will pay them form its own funds.

  1. On 18 April 2001, the Government adopted the Resolution (No. 444) “On the Expediency for Concluding the Treaty Between the Republic of Lithuania and Ukraine on Social Security and on the Application to the President of the Republic Requesting Granting Powers to V. Blinkevičiūtė to Sign This Treaty”. By means of Item 1 of the said resolution, the Government decided to agree that it was expedient to conclude the Treaty Between the Republic of Lithuania and Ukraine on Social Security.

In this context, it should be noted that it was established in Paragraph 2 of Article 4 of the Republic of Lithuania’s Law on Treaties that, when taking a decision on the expediency of the conclusion of a treaty of the Republic of Lithuania, conformity of the provisions of the draft treaty with the Constitution of the Republic of Lithuania, the basic principles and objectives of foreign policy and national security of the Republic of Lithuania, the requirements of this law, and the principles and norms of international law must be considered.

It should be noted that the doubts of the petitioner set forth in the petition are not connected with the said legal act adopted by the Government, by means of which the preconditions were created for concluding the Treaty Between the Republic of Lithuania and Ukraine on Social Security.

  1. By means of his Decree (No. 1289) “On Granting Powers to V. Blinkevičiūtė” of 20 April 2001 and by invoking Item 2 of Article 84 of the Constitution, the President of the Republic empowered Social Security and Labour Minister Vilija Blinkevičiūtė to sign the Treaty Between the Republic of Lithuania and Ukraine on Social Security.
  2. On 23 April 2001, in conformity with the granted powers, the said treaty between the Republic of Lithuania and Ukraine was signed. This treaty was ratified by means of the Law on the Ratification of the Treaty Between the Republic of Lithuania and Ukraine on Social Security, adopted by the Seimas on 27 September 2001, and came into force on 8 February 2002.

A copy of the text of namely this international treaty, published in the official gazette “Valstybės žinios” has been attached to the petition of the petitioner.

It should also be noted that, as it is clear from the petition of the petitioner and the material of the administrative case considered by it, by invoking, inter alia, Paragraph 1 of Article 33 of the said international treaty (“Pensions awarded prior to the entry into force of this treaty shall not be subject to revision”), decisions not to award social insurance state old age pensions had been adopted with respect to the claimants in the said administrative case who had contested those decisions.

  1. Thus, although the Klaipėda Regional Administrative Court, the petitioner, requests an investigation into the compliance of “Paragraph 1 of Article 33 of the Act of the Government of the Republic of Lithuania ‘On the Treaty Between the Republic of Lithuania and Ukraine on Social Security’ adopted on 23-04-2001” with the Constitution and a certain provision of the Law on State Social Insurance Pensions, the content of the petition (inter alia, the specified dates of the impugned legal act and the provided arguments) and the attachments thereto make it clear that the petitioner has applied to the Constitutional Court regarding the compliance of Paragraph 1 of Article 33 of the Treaty Between the Republic of Lithuania and Ukraine on Social Security—an international treaty ratified by the Seimas—with the Constitution and a certain provision of the Law on State Social Insurance Pensions.
  2. In the context of the petition, it needs to be emphasised that, from the point of view of the norms of the Constitution, the international treaties of the Republic of Lithuania are agreements regulated by international law and concluded by the Republic of Lithuania with, inter alia, other states; thus, they may not be regarded as legal acts adopted by a certain state institution of the Republic of Lithuania, inter alia, the Government.
  3. The powers of the Constitutional Court, as well as the subjects who have the right to apply to the Constitutional Court concerning the questions assigned to the competence of the Constitutional Court, are consolidated in the Constitution and the Law on the Constitutional Court.

8.1. Paragraph 1 of Article 102 of the Constitution stipulates that the Constitutional Court decides whether the laws and other acts of the Seimas are not in conflict with the Constitution and whether the acts of the President of the Republic and the Government are not in conflict with the Constitution or laws.

Under Paragraphs 1 and 2 of Article 105, Paragraphs 1, 2, and 3 of Article 106 of the Constitution and Article 65 of the Law on the Constitutional Court, inter alia, courts have the right to apply to the Constitutional Court concerning the compliance of the laws and other acts adopted by the Seimas with the Constitution as well as concerning the compliance of the acts of the President of the Republic and the Government with the Constitution and laws.

8.2. The Constitutional Court also has the powers to give conclusions on the questions falling within its competence under Paragraph 3 of Article 105 of the Constitution and Article 73 of the Law on the Constitutional Court. Item 3 of Paragraph 3 of Article 105 of the Constitution and Item 3 of Article 73 of the Law on the Constitutional Court stipulate that the Constitutional Court gives conclusions on whether the international treaties of the Republic of Lithuania are not in conflict with the Constitution.

Under Paragraph 5 of Article 106 of the Constitution and Article 74 of the Law on the Constitutional Court, the Seimas and the President of the Republic may request the Constitutional Court to give a conclusion on the compliance of the international treaties of the Republic of Lithuania with the Constitution.

  1. As mentioned before, the Klaipėda Regional Administrative Court, the petitioner, has applied to the Constitutional Court concerning the compliance of Paragraph 1 of Article 33 of the Treaty Between the Republic of Lithuania and Ukraine on Social Security with, inter alia, the Constitution.

It has been mentioned that, under the Constitution and the Law on the Constitutional Court, the Seimas and the President of the Republic may request the Constitutional Court to give a conclusion on the compliance of the international treaties of the Republic of Lithuania with the Constitution. Thus, it should be held that, in this case, a subject has applied to the Constitutional Court, however, this subject does not have the right to file such a petition.

  1. As mentioned before, the Klaipėda Regional Administrative Court, the petitioner, has also applied to the Constitutional Court concerning the compliance of Paragraph 1 of Article 33 of the Treaty Between the Republic of Lithuania and Ukraine on Social Security with a certain provision of the Law on State Social Insurance Pensions.

It has been mentioned that, under the Constitution and the Law on the Constitutional Court, the Constitutional Court gives conclusions on whether international treaties of the Republic of Lithuania are not in conflict with the Constitution. Thus, it should be held that the issue of the consideration whether an international treaty is in compliance with a law is not within the jurisdiction of the Constitutional Court.

  1. Under Items 1 and 3 of Paragraph 1 of Article 80 of the Law on the Constitutional Court, the Constitutional Court refuses to examine an inquiry concerning the giving of a conclusion where the inquiry has been filed by an institution or a person that does not have the right to apply to the Constitutional Court, also when the consideration of a concrete issue does not fall within the jurisdiction of the Constitutional Court.
  2. In the context of the petition of the petitioner, it should also be noted that, under Paragraph 3 of Article 138 of the Constitution, international treaties ratified by the Seimas are a constituent part of the legal system of the Republic of Lithuania. The Constitutional Court has noted on more than one occasion that this provision of the Constitution means that the international treaties ratified by the Seimas acquire the power of a law (inter alia, the ruling of 17 October 1995, the decision of 25 April 2002, and the ruling of 5 September 2012). Alongside, in the jurisprudence of the Constitutional Court it was emphasised that the Constitution consolidates the principle that, in the cases where a national legal act (obviously, with the exception of the Constitution itself) establishes such legal regulation that competes with the one established in an international treaty, the international treaty must be applied (the rulings of 14 March 2006, 21 December 2006, 5 September 2012, and 18 March 2014); thus, in those cases where the legal regulation consolidated in an international treaty that has been ratified by the Seimas and has entered into force competes with the legal regulation established in the Constitution, the provisions of such an international treaty have no priority in terms of application (the rulings of 5 September 2012 and 18 March 2014).

It should be noted that the administrative case considered by the petitioner is dealing with the dispute regarding the right of persons to receive the old age pension that was awarded and paid in the Republic of Lithuania and whose payment, subsequent to a previously valid international agreement (the Agreement “On the Cooperation in the Sphere of Pensionary Maintenance” between the Government of the Republic of Lithuania and the Government of Ukraine of 27 September 1994), was discontinued and the pension was awarded in Ukraine after those persons had moved for permanent residency in that country.

In the jurisprudence of the Constitutional Court it was noted on more than one occasion that 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 (inter alia the ruling of 4 July 2003, the decision of 20 April 2010, the rulings of 6 February 2012 and 29 June 2012).

Paragraph 1 of Article 33 of the Treaty Between the Republic of Lithuania and Ukraine on Social Security provides that pensions awarded prior to the entry into force of this treaty shall not be subject to revision. It should be noted that deciding on the issues of the interpretation and application of this provision falls within the competence of courts considering concrete cases. Alongside, it should also be noted that, in interpreting and applying the said provision, one must take into consideration the necessity to protect the constitutional right of persons to receive old age pensions awarded under the laws of the Republic of Lithuania, also the fact that the circumstances, due to which the payment of such pensions were taken over by another state according to a valid agreement, disappeared.

  1. In the light of the foregoing arguments, the consideration of the petition of the Klaipėda Regional Administrative Court, the petitioner, requesting an investigation into whether “the provisions of Paragraph 1 of Article 33 of the Act of the Government of the Republic of Lithuania ‘On the Treaty Between the Republic of Lithuania and Ukraine on Social Security’ adopted on 23-04-2001 are not in conflict with Paragraph 4 of Article 43 of the Republic of Lithuania’s Law on State Social Insurance Pensions, Paragraph 1 of Article 29, Paragraph 1 of Article 32, and Article 52 of the Constitution of the Republic of Lithuania, and with the constitutional principles of a state under the rule of law, legitimate expectations, legal certainty and legal security, proportionality and the equality of rights” must be refused.

Conforming to Paragraphs 3 and 4 of Article 22, Article 28, and Items 1 and 3 of Paragraph 1 of Article 80 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania adopts the following

decision:

To refuse to consider the petition (No. 1B-50/2014) of the Klaipėda Regional Administrative Court, the petitioner, requesting an investigation into whether “the provisions of Paragraph 1 of Article 33 of the Act of the Government of the Republic of Lithuania ‘On the Treaty Between the Republic of Lithuania and Ukraine on Social Security’ adopted on 23-04-2001 are not in conflict with Paragraph 4 of Article 43 of the Republic of Lithuania’s Law on State Social Insurance Pensions, Paragraph 1 of Article 29, Paragraph 1 of Article 32, and Article 52 of the Constitution of the Republic of Lithuania, and with the constitutional principles of a state under the rule of law, legitimate expectations, legal certainty and legal security, proportionality and the equality of rights”.

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

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