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Content updated: 15-06-2020 07:59

Some provisions of the Provisional Law on the State Pensions of Scientists are in conflict with the Constitution: discrimination based on age has been found for the first time

03-06-2020

By its ruling passed today, the Constitutional Court declared unconstitutional certain provisions of the Provisional Law on the State Pensions of Scientists (hereinafter referred to as the Provisional Law) that regulate the conditions for granting and paying the state pensions of scientists.

The Constitutional Court recognised that:

  1. The provision of Paragraph 2 (wording of 29 June 2016) of Article 3 of the Provisional Law “the state pension of scientists shall not be granted to the persons specified in Paragraph 1 of this Article, and the granted state pension of scientists shall not be paid as long as they have income on which state social pension insurance contributions are calculated and paid or if they receive sickness social insurance benefits (including employer-paid on sick days), as well as maternity, paternity, childcare, vocational rehabilitation, or unemployment social insurance benefits”, except insofar as, under this provision, the state pension of scientists is not granted and the granted state pension of scientists is not paid if a person receives insured income while working as a scientist in the Republic of Lithuania’s state institutions of science and studies, is in conflict with Article 52 of the Constitution and the constitutional principle of a state under the rule of law, and the provision “the state pension of scientists shall not be granted to the persons specified in Paragraph 1 of this Article, and the granted state pension of scientists shall not be paid as long as they have income on which state social pension insurance contributions are calculated and paid”, except insofar as, under this provision, the state pension of scientists is not granted and the granted state pension of scientists is not paid if a person receives insured income while working as a scientist in the Republic of Lithuania’s state institutions of science and studies, is also in conflict with the provision “Everyone may freely choose a job or business” of Paragraph 1 of Article 48 of the Constitution.
  2. The provision of Paragraph 1 of Article 4 of the Provisional Law, insofar as it stipulates that the length of service of a doctor and of a habilitated doctor consists of the period of the employment of a person as a scientist in the Republic of Lithuania’s state institutions of science and studies until that person reaches the age of 65, is in conflict with Article 29 of the Constitution, which lays down the principle of the equality of the rights of persons, and with Article 52 thereof.
  3. The provision “the period during which a person receives a state pension of scientists is not included in the length of service of a doctor of science and of a habilitated doctor of science” of Paragraph 1 of Article 4 of the Provisional Law is in conflict with the constitutional principle of a state under the rule of law.
  4. Article 6 of the Provisional Law (wording of 1998 as amended on 4 November 2004), insofar as it does not establish a procedure for re-granting the state pension of scientists in the event that a person starts working in the Republic of Lithuania’s state institutions of science and studies and completes an additional length of service of a doctor of science or of a habilitated doctor of science, is in conflict with the constitutional principle of a state under the rule of law.

In this constitutional justice case, the petitioner impugned exclusively the compliance of the provision “the period during which a person receives a state pension of scientists is not included in the length of service of a doctor of science and of a habilitated doctor of science” of Paragraph 1 of Article 4 of the Provisional Law with Paragraph 1 of Article 29 of the Constitution.

The Constitutional Court has held on more than one occasion that, in cases where, subsequent to a received petition, the Constitutional Court investigates whether an impugned legal act (or part thereof) is in conflict with the articles (or parts thereof) of the Constitution indicated in the petition, it at the same time investigates whether the impugned legal act (or part thereof) is in conflict with the Constitution – a single coherent system – and, having found that the impugned legal act (part thereof) is in conflict with the articles (parts thereof) of the Constitution or with the principles of the Constitution that have not been not indicated by the petitioner, has the power to state this fact.

The Constitutional Court has also held that, if it finds the unconstitutionality of provisions whose compliance with the Constitution is not impugned by a petitioner, but which are consolidated in the same legal act the constitutionality of whose other provisions is impugned by the petitioner, it must state that the said provisions that are not impugned by the petitioner are unconstitutional. The implementation of constitutional justice implies that a legal act (part thereof) that conflicts with the Constitution must be removed from the legal system.

Thus, if the Constitutional Court confined itself to the petition of the petitioner and did not indicate that the provision impugned by the petitioner is unconstitutional in respect of aspects other than those referred to by the petitioner or did not indicate the established unconstitutionality in respect of legislative provisions that were not impugned by the petitioner, but which are related to the provision impugned by the petitioner, such a functioning of the Constitutional Court would not be consistent with its constitutional mission to ensure the supremacy of the Constitution and the rule of law. Therefore, the Constitutional Court must remove from the legal system all anti-constitutional provisions, whose contradiction with the Constitution becomes apparent in a considered case.

Taking this into account, the Constitutional Court in this ruling assessed the constitutionality of the provision of Paragraph 1 of Article 4 of the Provisional Law from an aspect other than that requested by the petitioner. The Constitutional Court also assessed the constitutionality of other provisions of this law, which were not impugned by the petitioner but which are related to the impugned provision of the petitioner (i.e. it assessed the constitutionality of the legal regulation laid down in Paragraph 1 of Article 4, Paragraph 2 of Article 3, and Article 6 of this law).

In this ruling, the Constitutional Court also noted that, although the Seimas adopted the Law on the State Pensions of Scientists as a provisional one, this law is still in force, because the precondition, mentioned in its preamble, to guarantee pensions corresponding to the qualification of scientists has not been created.

The official constitutional doctrine

In this ruling, the Constitutional Court summarised the provisions of the official constitutional doctrine relevant to this constitutional justice case, which are related to the conditions, disclosed in the interpretation of Article 52 of the Constitution, for granting and paying state pensions.

The Constitutional Court has noted that the state pension of scientists that is consolidated by law is also one of the types of pensions not directly named in Article 52 of the Constitution; the purpose of this pension is, among other things, compensation for the scientific work, whose duration is established by law, which is significant to both civil society and the State of Lithuania and which requires special qualification.

The Constitutional Court noted that, under the Constitution, among other things, Article 52 thereof, the legislature, having established the state pension of scientists, has wide discretion, taking into account all significant circumstances, to establish, among other things, the conditions for granting and paying this pension. However, in exercising that discretion, the legislature must respect the norms and principles of the Constitution, including the constitutional principles of the equality of the rights of persons and a state under the rule of law. Therefore, it is not allowed to lay down a legal regulation that would establish an unreasonably short length of scientific service (for which the state pension of scientists is granted and paid) in order to receive the state pension of scientists or would otherwise violate, among other things, the principles of justice, reasonableness, and proportionality. Failure to take into account the purpose of the state pension of scientists, the specific nature of scientific work, and other relevant circumstances would make granting and paying such a pension a privilege and such pension provision could not be secured in accordance with the Constitution.

On the compliance of Paragraph 1 of Article 4 of the Provisional Law with the Constitution

The Constitutional Court noted that, taking into account Paragraph 2 of Article 3 of the Provisional Law, the impugned provision “the period during which a person receives a state pension of scientists is not included in the length of service of a doctor of science and of a habilitated doctor of science” of Paragraph 1 of Article 4 of this law cannot be applied: according to Paragraph 2 of Article 3 of the Provisional Law, a person may not receive a state pension of scientists if he/she receives insured income by carrying out, among others, scientific work on any basis in the Republic of Lithuania’s state institutions of science and studies. Thus, there cannot be such a situation, which is specified in the impugned provision of Paragraph 1 of Article 4, where a person receives a state pension of scientists and at the same time works as a scientist in the Republic of Lithuania’s state institutions of science and studies.

Taking this into account, the Constitutional Court held that, due to the impugned provision of Paragraph 1 of Article 4 of the Provisional Law, the legal regulation that governs granting and paying the state pension of scientists and is related to the calculation of the length of scientific service is contradictory, inconsistent, and therefore unclear. The constitutional principle of a state under the rule of law presupposes that a legal regulation established in laws must be clear, comprehensible, and non-contradictory. Consequently, the impugned provision, entrenched in Paragraph 1 of Article 4 of the Provisional Law, is in conflict with the constitutional principle of a state under the rule of law.

Paragraph 1 of Article 4 of the Provisional Law, among other things, establishes a general provision for calculating the period of the employment of a person as a scientist in the Republic of Lithuania’s state institutions of science and studies, which is considered the length of service of a doctor of science and of a habilitated doctor of science – the length of service of a doctor of science and of a habilitated doctor of science is calculated only until a person reaches the age of 65.

The Constitutional Court held that, according to this provision of the Provisional Law, interpreted together with Article 5 of this law, the age of a person (65 years) is a criterion that affects the calculation of the length of service of a doctor of science and of a habilitated doctor of science, i.e. the granting and/or amount of the state pension of scientists.

Article 29 of the Constitution consolidates the principle of the equality of the rights of persons. The Constitutional Court has noted that Paragraph 2 of Article 29 of the Constitution must not be understood as consolidating an exhaustive list of the grounds of non-discrimination; otherwise, the preconditions would be created for denying the equality of all persons before the law, the courts, and other state institutions, i.e. the very essence of the constitutional principle of the equality of the rights of persons, as guaranteed under Paragraph 1 of Article 29 of the Constitution. One of the grounds of discrimination prohibited by Article 29 of the Constitution is the restriction of human rights on the basis of age.

The Constitutional Court has held that there are no such differences between persons who carry out scientific work in the Republic of Lithuania’s state institutions of science and studies before they reach the age of 65 and persons who work in the said institutions after they reach the age of 65 that would objectively justify their different treatment in terms of the aspect of the inclusion of scientific working time in the length of service of a doctor of science or of a habilitated doctor of science. Therefore, the Constitutional Court assessed such a legal regulation as a restriction of human rights on the basis of age, which is prohibited under Article 29 of the Constitution. At the same time, the said legal regulation disregards the requirement, stemming from the Constitution, among others, Article 52 thereof, that the legislature must not violate the principle of the equality of the rights of persons when laying down the conditions for granting and paying the state pension of scientists.

On the compliance of Article 6 of the Provisional Law with the Constitution

Assessing the constitutionality of Article 6 of the Provisional Law, which regulates the procedure for granting and paying state pensions of scientists, the Constitutional Court noted that neither this article nor other provisions of the Provisional Law nor other laws establish a procedure for re-granting the state pension of scientists in the event that a person, after he/she has been granted this pension, takes up employment with the Republic of Lithuania’s state institutions of science and studies and completes an additional period of scientific service. Consequently, although a person, according to the law, acquires the right to receive a state pension of scientists whose amount depends on the length of service of a doctor of science and of a habilitated doctor of science, the fact remains that, in the absence of an established procedure for re-granting the state pension of scientists, in the event that a person, after he/she has been granted this pension, takes up employment with the Republic of Lithuania’s state institutions of science and studies and completes an additional period of scientific service, the said person does not actually receive a pension, laid down by law, whose amount would be equivalent to his/her entire period of scientific service.

The Constitutional Court assessed such a legal regulation that confers a right but does not ensure its actual implementation not only as denying the legitimate expectations of a person, but also as manifestly unfair. The Constitutional Court has held on more than one occasion that the constitutional principles of justice and the protection of legitimate expectations are inseparable elements of the principle of a state under the rule of law. It follows that, by failing to lay down, in Article 6 of the Provisional Law, a procedure for re-granting the state pension of scientists when a person completes an additional period of scientific service, the legislature disregarded the constitutional principle of a state under the rule of law.

On the compliance of Paragraph 2 of Article 3 of the Provisional Law with the Constitution

Paragraph 2 of Article 3 of the Provisional Law makes the granting and paying of the state pension of scientists subject to the condition that a person may not have income on which state social pension insurance contributions are calculated and paid or receive sickness, maternity, paternity, childcare, vocational rehabilitation, or unemployment social insurance benefits, i.e. he/she may not have the insured income referred to in Paragraph 5 of Article 2 of the Law on State Social Insurance. Thus, under the legal regulation laid down in Paragraph 2 of Article 3 of the Provisional Law, the state pension of scientists is not granted to persons and the granted state pension of scientists is not paid as long as they have insured income, regardless of whether this income is received from scientific work in the Republic of Lithuania’s state institutions of science and studies or from other work.

Consequently, according to Paragraph 2 of Article 3 of the Provisional Law, the state pension of scientists is not granted to persons and the granted state pension of scientists is not paid also in cases where they have insured income received from scientific work in the Republic of Lithuania’s state institutions of science and studies, i.e. from such scientific work for which the state pension of scientists is granted and paid in accordance with Item 2 of Paragraph 1 of Article 3 of the Provisional Law. In this ruling, the Constitutional Court noted that, in order to prevent the granting and payment of the state pension of scientists from becoming a privilege, and, in accordance with the principles of justice, reasonableness, and proportionality, the legislature, under the Constitution, among others, Article 52 thereof, has the power to establish such a legal regulation under which the state pension of scientists is neither granted nor paid to persons as long as they are engaged in such scientific work for which this state pension is granted and paid.

Taking this into account, the Constitutional Court noted that the legal regulation laid down in Paragraph 2 of Article 3 of the Provisional Law, insofar as, under that legal regulation, the state pension of scientists is neither granted nor paid to persons who receive insured income from scientific work in the Republic of Lithuania’s state institutions of science and studies, is constitutionally justified.

The Constitutional Court assessed differently the legal regulation laid down in Paragraph 2 of Article 3 of the Provisional Law, insofar as, under that legal regulation, the state pension of scientists is neither granted nor paid to persons who have other insured income specified in Paragraph 2 of Article 3 of this Law.

Under such legal regulation, a person who receives this insured income may not be granted and paid a state pension of scientists even if he/she meets the conditions set out in Paragraph 1 of Article 3 of the Provisional Law, namely he/she must reach the age, established by law, for the old-age pension or to be certified as incapable or partially capable of work in accordance with the procedure laid down by law and must be with at least 10 years of service as a doctor or a habilitated doctor.

Thus, such a legal regulation laid down in Paragraph 2 of Article 3 of the Provisional Law is to be assessed both as denying the legitimate expectations of a person to receive a state pension of scientists under the constitutionally justified conditions established by law and as unfair.

In addition, the Constitutional Court held that, by the legal regulation laid down in Paragraph 2 of Article 3 of the Provisional Law, insofar as the state pension of scientists is not granted to persons and the granted state pension of scientists is not paid as long as they receive insured income, specified in Paragraph 2 of Article 3 of the Provisional Law, on which state social pension insurance contributions are calculated and paid while working in a job other than scientific work in the Republic of Lithuania’s state institutions of science and studies, the legislature disregarded the requirement, arising from Paragraph 1 of Article 48 of the Constitution, not to establish such a legal regulation under which, after a person has exercised the right to choose an occupation or business, he/she would not be granted a state pension, and a granted state pension would not be paid to him/her. The Constitutional Court has already noted that, under the Constitution, among others, Paragraph 1 of Article 48 thereof, it is not allowed to establish such a legal regulation that a person to whom a state pension is granted and paid would be restricted to freely choose an occupation and business namely because of the fact that such a person has been granted and is paid the state pension, although he/she fulfils the conditions, laid down by law, to take up a particular job or engage in a particular business.

The text of the ruling is available on the website of the Constitutional Court at https://www.lrkt.lt/lt/teismo-aktai/paieska/135/ta2156/content.