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On the period of service for granting a state pension of officials and servicemen

Case no 6/2015

 

 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
IN THE NAME OF THE REPUBLIC OF LITHUANIA

RULING

ON THE COMPLIANCE OF ITEM 1 (WORDINGS OF 3 DECEMBER 2013 AND 25 JUNE 2015) OF PARAGRAPH 3 OF ARTICLE 16 OF THE REPUBLIC OF LITHUANIA’S LAW ON THE STATE PENSIONS OF OFFICIALS AND SERVICEMEN WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

20 June 2016, no KT18-N9/2016

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, pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1 and 531 of the Law on the Constitutional Court of the Republic of Lithuania, at the Court’s hearing on 16 June 2016, under written procedure considered the constitutional justice case (no 6/2015) subsequent to the petition (no 1B-7/2015) of the Supreme Administrative Court of Lithuania, the petitioner, requesting an investigation into whether Item 1 (wording of 3 December 2013) of Paragraph 3 of Article 16 of the Republic of Lithuania’s Law on the State Pensions of Officials and Servicemen is in conflict with Articles 29 and 52 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law, insofar as the said item does not provide that, for persons who entered service as officials or servicemen in the systems of the interior, state security, national defence, or the Prosecution Service, the Special Investigation Service, or the Department of Prisons or the establishments and state enterprises subordinate to it, or as customs officials (in the customs system to work in customs mobile groups or customs posts, or to conduct criminal intelligence and/or carry out pretrial investigations), the actual period of service in the armed forces, border guard service, the interior, or other systems of service (with the exception of service in extermination squads or battalions) of other states after 11 March 1990 is regarded as the period of service taken into account for the purpose of granting the pension in cases where the said persons performed service in the imprisonment facilities that were functioning in the territory of the Republic of Lithuania and were brought under the security and control of the Republic of Lithuania later than on 11 March 1990.

The Constitutional Court

has established:

I

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

1. The applicant in the administrative proceedings performed the duties of a controller in the Panevėžys female corrective labour colony (at present Panevėžys Correctional House) from 8 September 1986 to 10 December 1991 while serving in military unit No 6509 of the USSR Ministry of Internal Affairs. The State of Lithuania brought under its jurisdiction the security and control of the Panevėžys female imprisonment facility on 11 December 1991 and, on that date, the applicant entered the internal service of the Republic of Lithuania and took up the duties of a senior controller at the regime division of Panevėžys city establishment OČ12/5 (at present Panevėžys Correctional House), i.e. in principle, took up the same work she had done before. Under the impugned legal regulation laid down in Item 1 (wording of 3 December 2013) of the Law on the State Pensions of Officials and Servicemen, the period of service performed by the applicant in the administrative proceedings in the above-mentioned military unit of the USSR Ministry of Internal Affairs from 11 March 1990 to 10 December 1991 is not included in the period of service taken into account for the purpose of granting the state pension of officials and servicemen, but it includes the period of such service until 11 March 1990.

According to the Supreme Administrative Court of Lithuania, the petitioner, service in the above-mentioned military unit of the USSR Ministry of Internal Affairs from 11 March 1990 to 10 December 1991 must be considered service to the State of Lithuania, since such service was aimed at ensuring the security and interests of the State of Lithuania. Only on 11 December 1991, did the State of Lithuania bring under its jurisdiction the control and security of the above-mentioned imprisonment facility functioning in Lithuania, in which the applicant in the administrative proceedings had been holding her duties, as the State of Lithuania only then formed and prepared the structure able to take the external armed security guarding of the convicted persons and corrective facilities, to convoy detainees and persons deprived of liberty to places of their detention or court hearings, as well as to carry out other special tasks requiring specific preparation. Immediately following the restoration of the independence of the Republic of Lithuania, there were no new imprisonment facilities whose security and control would have been carried out exclusively by the institutions of the Republic of Lithuania.

2. After the restoration of the independent State of Lithuania on 11 March 1990, it was sought to continue to ensure public order and public security. On 21 March 1990, the Supreme Council of the Republic of Lithuania issued an appeal to the persons who had been working in the establishments of the interior, whereby all the citizens of the Republic of Lithuania, irrespective of their nationality and worldview, who had the experience of working in the establishments of the interior and were ready to take an oath of allegiance to Lithuania and to serve it were invited to continue to work in good faith; the appeal contained the provision ensuring that “the social guarantees of the persons working in the interior will be preserved: pensions will be paid irrespective of the state in which the person performed service; the rank achieved will be retained; the average remuneration of an official will be higher than the average salary in the Republic”.

Having assessed the circumstances established in relation to service performed by the applicant in the above-mentioned imprisonment facility and the purpose of that facility, inter alia, the circumstance that the said facility continued to operate as previously after it had been brought under the jurisdiction of the State of Lithuania on 11 December 1991, while the applicant in the administrative proceedings continued to perform the same duties, as well as that her service from 11 March 1990 to 10 December 1991 was necessary to the State of Lithuania and the public, the Supreme Administrative Court of Lithuania came to the conclusion that the legislature had been obliged to have regard to these significant circumstances when the legal regulation on granting the state pensions of officials and servicemen had been established.

3. Raising the question regarding the constitutionality of the impugned legal regulation, the petitioner takes into consideration the provisions of the ruling of the Constitutional Court of 22 February 2013 stating that, under the Constitution, taking account of the significant circumstances, the legislature has the discretion to establish such a legal regulation of granting the state pensions of officials and servicemen under which the period of service to another state may be regarded as equivalent to a certain part of the necessary period of service by the person to the State of Lithuania in order to be granted the said pension in cases where service to another state was performed under the circumstances when it was objectively impossible to perform service to the State of Lithuania, inter alia, in the period prior to the restoration of the independence of the Republic of Lithuania on 11 March 1990, during which the only institutions of the State of Lithuania were the Republic of Lithuania’s diplomatic missions and consular posts abroad or when service to the State of Lithuania was possible only in the structures of the organised armed resistance against the occupation (inter alia, in the Lithuanian Freedom Fight Movement), which took place for a certain time in the occupied territory of the Republic of Lithuania.

The Supreme Administrative Court of Lithuania draws on the official constitutional doctrine, where it is held that, under the Constitution, a law may also provide for other pensions and social assistance in addition to those expressis verbis indicated in Article 52 of the Constitution; a law may also establish pensions for certain service to the State of Lithuania; when establishing the pension of officials and servicemen for service, the legislature must not establish any such legal regulation according to which a person would be able to retire unreasonably early, or an unreasonably short length of service or work would be required in order to receive such a pension, or the amount of the remuneration of an official or a serviceman would not be taken into consideration when determining the amount of the pension, or the principles of justice, reasonableness, and proportionality would otherwise be violated. The principle of the equality of the rights of persons, as consolidated in Article 29 of the Constitution, implies the duty of the legislature to establish an equal (non-differentiated) legal regulation with regard to certain categories of persons who are in the same situation if between the said categories of persons there are no differences of such a nature and to such an extent that would objectively justify their uneven treatment.

4. According to the petitioner, upon the restoration of its independence on 11 March 1990, the Republic of Lithuania brought under its jurisdiction the former state institutions that, in the Lithuanian Soviet Socialist Republic (the Lithuanian SSR), had fallen under republic or union-republic jurisdiction, inter alia, those within the system of internal affairs. On 11 March 1990, the Supreme Council of the Republic of Lithuania adopted the Law on Changing the Status of the Lithuanian SSR’s Former State Governance Bodies under Union-Republic Jurisdiction, which prescribed that all the Lithuanian SSR’s ministries, state committees, and agencies previously falling under union-republic jurisdiction were brought exclusively under the jurisdiction of the Republic of Lithuania. According to the Supreme Administrative Court of Lithuania, for the officials of those systems of statutory service that were brought under the jurisdiction of the Republic of Lithuania on 11 March 1990, the period of service performed from 11 March 1990 to 10 December 1991 is included in the length of service required in order to be granted the state pension of officials and servicemen; whereas, for the sole reason that the imprisonment facilities were not brought under the jurisdiction of the Republic of Lithuania on 11 March 1990, the same period is not included in the length of service for the applicant in the administrative case, although she, in principle, de facto performed the functions equally important to the State of Lithuania and had the legitimate expectation that the said period would be included in the length of her service. In the opinion of the Supreme Administrative Court of Lithuania, there are no circumstances that would justify the different calculation of the length of service for the applicant in the administrative case, who carried out the above-mentioned duties in an imprisonment facility, and for other persons who held office in the institutions that were brought under the jurisdiction of the State of Lithuania on 11 March 1990; therefore, the impugned legal regulation can also violate the principle of the equal rights of persons, established in Article 29 of the Constitution.

II

In the course of the preparation of the case for the hearing of the Constitutional Court, written explanations were received from Seimas Deputy Speaker Algirdas Sysas, acting as the representative of the Seimas of the Republic of Lithuania, the party concerned; in the explanations, it is maintained that the impugned legal regulation is not in conflict with the Constitution. The position of the representative of the party concerned is substantiated by the following arguments.

1. Upon the restoration of its independence on 11 March 1990, the Republic of Lithuania brought under its jurisdiction the former state governance institutions that, in the Lithuanian SSR, had been under republic or union-republic jurisdiction, inter alia, those within the system of internal affairs. On 21 March 1990, the Supreme Council issued an appeal to the persons who had been working in the establishments of the interior, whereby all the citizens of the Republic of Lithuania, irrespective of their nationality and worldview, who had the experience of working in the establishments of the interior and were ready to take an oath of allegiance to Lithuania and to serve it were invited to continue to work in good faith; the appeal of the Supreme Council contained the provision ensuring that “the social guarantees of the persons working in the interior will be preserved: pensions will be paid irrespective of the state in which the person performed service; the rank achieved will be retained; the average remuneration of an official will be higher than the average salary in the Republic”. Thus, after restoring its independence, by means of the said appeal, the Republic of Lithuania took on the obligation to the persons who had been working in the interior and were loyal to the State of Lithuania to preserve their social guarantees acquired before the restoration of independence, “irrespective of the state in which the person performed service”, i.e. inter alia, service in the system of the internal affairs of the USSR. The legitimate expectations of the officials of the interior and the principle of the equal rights of persons were not violated, because the preservation of social guarantees acquired before the restoration of independence was guaranteed to all persons working in the system of the interior, not excluding any particular institutions and without emphasising the fact of the transfer of respective structures into the jurisdiction of the Republic of Lithuania after 11 March 1990.

2. The ruling of the Constitutional Court of 22 February 2013 indicated the exception according to which the actual time of forced compulsory military service after 11 March 1990 by persons conscripted by the USSR military commissariats functioning at the time in the territory of Lithuania to serve in the USSR armed forces, border guard service, internal affairs, or other systems of service was included in the length of service of the said persons for the purpose of granting the state pension of officials and servicemen; this exception was made by taking into account the vulnerable situation of the said persons compared with other persons, as the conscripts had no objective possibilities of choosing not to serve in the above-mentioned institutions. In this context, it should be noted that the legal situation of the persons who served in the USSR armed forces (in the military units of the USSR Ministry of Internal Affairs) not on a forced basis, but on a voluntary basis, and the legal situation of the persons who performed forced service in the USSR armed forces were different in view of their actual possibilities of making a decision regarding their service. Thus, the legal regulation laid down in Item 1 (wording of 3 December 2013) of Paragraph 3 of Article 16 of the Law on the State Pensions of Officials and Servicemen cannot be regarded as a legislative omission, i.e. as a gap of the legal regulation, which is prohibited under the Constitution.

3. As it has been held by the Constitutional Court on more than one occasion, the state pensions of officials and servicemen are granted to persons for their service to the State of Lithuania; the receipt of these pensions is linked not to payments of an established amount, but to the status of the person. The purpose of the state pension of officials and servicemen is to compensate for the difficult, responsible, and often risk-involving and dangerous service performed by a person to the State of Lithuania. State pensions are paid from the state budget and are most often paid as additional benefits together with state social insurance pensions. Due to the specific features of state pensions, the legislature may establish the respective conditions for granting these pensions by taking account of all the significant circumstances and paying regard to the norms and principles of the Constitution.

In view of the above-indicated concept of the state pensions of officials and servicemen, it needs to be noted that, once such a state pension is established by means of a law, the granting and receipt of this pension must specifically be related to service performed by a person to the State of Lithuania. From 11 March 1990 to 10 December 1991, the security of persons imprisoned in the places of the deprivation of liberty was carried out by the military units of USSR armed forces (Soviet troops) operating in these facilities. The USSR troops in the territory of Lithuania were occupation forces; the imprisonment facilities operating in the territory of the Republic of Lithuania served as places of detention for both the Lithuanian residents and USSR residents sentenced to the deprivation of liberty; therefore, service in the said imprisonment facilities was not service exclusively to the State of Lithuania.

III

1. In the course of the preparation of the case for the hearing of the Constitutional Court, the letter (No 1S-60) of 11 January 2016 regarding the provision of information in the constitutional justice case at issue was received from the Director of the Department of Prisons under the Ministry of Justice of the Republic of Lithuania, Živilė Mikėnaitė. The letter was supplemented by copies of some documents related to the transfer of the control and security of the imprisonment facilities functioning in the territory of the Republic of Lithuania after 11 March 1990.

2. The above-mentioned letter was also supplemented by copies of the documents of the Ministry of the Interior of the Republic of Lithuania that had been sent by the letter dated 7 January 1991 to the Prime Minister of the Republic of Lithuania, inter alia, the proposals by the Ministry of the Interior regarding social guarantees to the servicemen of military unit No 6509 of internal troops of the USSR Ministry of Internal Affairs who had carried out the security of the corrective labour establishments of the Republic of Lithuania. The said document of the Ministry of the Interior proposed that “the supervision controllers of military unit No 6509 be taken under the charge of the Ministry of the Interior of the Republic of Lithuania while allocating the necessary funds to maintain them” and that “the funds be allocated for the project and construction of the battalion of military unit No 6509, which performs the function of the security of the corrective labour facilities in the Pravieniškės settlement, as well as military barracks for two hundred people”; it was also proposed that other material and social guarantees necessary for the proper operation of military unit No 6509 of internal troops of the USSR Ministry of Internal Affairs be ensured.

IV

In the course of the preparation of the case for the hearing of the Constitutional Court, the following specialists were questioned: Marijonas Misiukonis, former Minister of the Interior of the Republic of Lithuania; Internal Service Colonel Ričardas Alzbergas, Commander of the Kaunas Military Unit of the Public Security Service under the Ministry of the Interior of the Republic of Lithuania; Internal Service Lieutenant Colonel Virmantas Kiškis, chief specialist of the Service Organisation Division of the Public Security Service under the Ministry of the Interior of the Republic of Lithuania; Internal Service Mayor Saulius Ruolia, chief specialist of the Service Organisation Division of the Public Security Service under the Ministry of the Interior of the Republic of Lithuania.

1. Specialist Marijonas Misiukonis explained that, after 11 March 1990, the Republic of Lithuania had gradually brought imprisonment facilities under its jurisdiction from the USSR Ministry of the Internal Affairs by negotiation. After a certain number of specialists had been prepared in the Republic of Lithuania for carrying out the security of imprisonment facilities, correspondingly an equal number of the USSR internal service officials who had before been carrying out the security of the imprisonment facilities operating in the territory of the Republic of Lithuania left their service. This process continued until mid-December 1991. According to specialist Marijonas Misiukonis, the officials who had served in the division of USSR internal troops until the imprisonment facilities were brought under the jurisdiction of the Republic of Lithuania had performed the same functions of the security of the said imprisonment facilities. They had been invited to continue their work in the internal service of the Republic of Lithuania after leaving USSR internal service; they had been encouraged to wait until the imprisonment facilities were brought under the jurisdiction of the Republic of Lithuania and to remain in service to the Republic of Lithuania. Specialist Virmantas Kiškis confirmed that, after the imprisonment facilities had been brought under the jurisdiction of the Republic of Lithuania, a certain number of officials, mostly servicemen, from the USSR internal troops entered service to the Republic of Lithuania.

2. Specialist Ričardas Alzbergas explained that, in autumn 1991, the formation of the First Regiment of the internal service of the Republic of Lithuania had been started as a matter of urgency; the main function of this regiment had been to carry out the security of the majority of imprisonment facilities in Lithuania. The matter had been dealt with urgency, as the Government of the Republic of Lithuania had been negotiating with the commanders of USSR internal troops on the withdrawal of their division from the territory of the Republic of Lithuania. It had been necessary to urgently recruit young people, to train them, to prepare their uniforms, and to ensure the security of imprisonment facilities. The First Regiment had consisted of approximately 1 000 people; in addition, people working in colonies and volunteers had been invited, as specialists had sorely been needed.

3. Specialists Marijonas Misiukonis and Virmantas Kiškis stated that the officials who had served in the division of USSR internal troops and carried out the security of the imprisonment facilities could not have been sent in 1990–1991 to conduct military operations against the State of Lithuania. Virmantas Kiškis mentioned that the USSR internal troops performing the security of the correctional house in Pravieniškės had at that time even additionally reinforced security guarding. Marijonas Misiukonis clarified that the military operations against the State of Lithuania in January 1991 had been assigned to another regiment of USSR internal troops, whose function had been to protect public order, and to a special militia battalion; whereas the division of USSR internal troops performing the security of the imprisonment facilities had carried out the functions assigned exclusively to it, i.e. the security of the said facilities.

The Constitutional Court

holds that:

I

1. As mentioned before, the Supreme Administrative Court of Lithuania, the petitioner, requests an investigation into whether Item 1 (wording of 3 December 2013) of Paragraph 3 of Article 16 of the Law on the State Pensions of Officials and Servicemen is in conflict with Articles 29 and 52 of the Constitution and the constitutional principle of a state under the rule of law, insofar as the said item does not provide that, for persons who entered service as officials or servicemen in the systems of the interior, state security, national defence, or the Prosecution Service, the Special Investigation Service, or the Department of Prisons or the establishments and state enterprises subordinate to it, or as customs officials (in the customs system to work in customs mobile groups or customs posts, or to conduct criminal intelligence and/or carry out pretrial investigations), the period of service taken into account for the purpose of granting the pension also includes the actual period served in the armed forces, border guard service, the interior, or other systems of service (with the exception of service in extermination squads or battalions) of other states after 11 March 1990 in cases where the said persons performed service in the imprisonment facilities that were functioning in the territory of the Republic of Lithuania and were brought under the security and control of the Republic of Lithuania later than on 11 March 1990.

2. It is clear from the petition that the petitioner impugns the legal regulation laid down in Item 1 (wording of 3 December 2013) of Paragraph 3 of Article 16 of the Law on the State Pensions of Officials and Servicemen insofar as, under this legal regulation, the actual period of service performed before 11 March 1990 in the units of internal troops of the USSR Ministry of Internal Affairs while carrying out the functions of the security and control of the imprisonment facilities functioning in the territory of the Republic of Lithuania was regarded as the period of service taken into account for the purpose of granting the state pension of officials and servicemen, but the actual period of service in the units of internal troops of the USSR Ministry of Internal Affairs while carrying out the functions of the security and control of the imprisonment facilities functioning in the territory of the Republic of Lithuania if it had been performed from 11 March 1990 until the security and control of the said facilities had been brought under the jurisdiction of the Republic of Lithuania was not regarded as the period of service taken into account for the purpose of granting the said pension.

3. The material of this constitutional justice case makes it clear that, in the territory of the Republic of Lithuania, the units of internal troops of the USSR Ministry of Internal Affairs carried out the security and control of imprisonment facilities – corrective labour establishments, in which sentences of the deprivation of liberty were served, and investigative solitary confinement units, in which persons were detained with the aim of ensuring preparatory investigations or court proceedings – from 11 March 1990 until December 1991, when these functions began to be performed by the units of the Ministry of the Interior of the Republic of Lithuania. As it is clear from the Code of Correctional Labour in force at that time in the Republic of Lithuania, the facilities executing sentences of the deprivation of liberty were named corrective labour establishments. This code also makes it clear that the facilities where the pretrial measure of detention was executed were referred to as investigative solitary confinement units.

4. It should be noted that, on 25 June 2015, the Seimas adopted the Republic of Lithuania’s Law Amending Articles 3, 6, 7, 9, and 16 of the Law (No I-693) on the State Pensions of Officials and Servicemen and Supplementing the Law with Article 152. By means of this law, Item 1 (wording of 3 December 2013) of Paragraph 3 of Article 16 the Law on the State Pensions of Officials and Servicemen, which is impugned in the constitutional justice case at issue, was set out in its new wording.

5. Thus, the Constitutional Court will investigate in the constitutional justice case at issue whether the legal regulation consolidated in Item 1 (wording of 3 December 2013) of Paragraph 3 of Article 16 of the Law on the State Pensions of Officials and Servicemen was in conflict with Articles 29 and 52 of the Constitution and the constitutional principle of a state under the rule of law, insofar as, under this legal regulation, the actual period of service performed before 11 March 1990 in the units of internal troops of the USSR Ministry of Internal Affairs while carrying out the functions of the security and control of the corrective labour establishments and investigative solitary confinement units functioning in the territory of the Republic of Lithuania was regarded as the period of service taken into account for the purpose of granting the state pension of officials and servicemen, but the actual period of service in the units of internal troops of the USSR Ministry of Internal Affairs while carrying out the functions of the security and control of the corrective labour establishments and investigative solitary confinement units functioning in the territory of the Republic of Lithuania if it had been performed from 11 March 1990 until the security and control of the said facilities had been brought under the jurisdiction of the Republic of Lithuania was not regarded as the period of service taken into account for the purpose of granting the said pension.

II

1. In the context of the constitutional justice case at issue, it is important to reveal changes in the legal regulation connected with the period of service in the armed forces, border guard service, the interior, or other systems of service of other states, inter alia the USSR, that was included in the period of service taken into account for the purpose of granting the state pension of officials and servicemen.

2. Upon the restoration of its independence on 11 March 1990, the Republic of Lithuania brought under its jurisdiction the former state governance institutions that, in the Lithuanian SSR, had fallen under republic or union-republic jurisdiction, inter alia, those within the system of internal affairs. On 11 March 1990, the Law on Changing the Status of the Lithuanian SSR’s Former State Governance Bodies under Union-Republic Jurisdiction was adopted. It prescribed that all the Lithuanian SSR’s ministries, state committees, and agencies previously falling under union-republic jurisdiction were brought exclusively under the jurisdiction of the Republic of Lithuania.

As held in the ruling of the Constitutional Court of 22 February 2013, the system of the interior was brought under the jurisdiction of the Republic of Lithuania and was reformed with the aim of ensuring public order and the security of society. On 21 March 1990, the Supreme Council of the Republic of Lithuania issued an appeal to the persons who had been working in the establishments of the interior, whereby all the citizens of the Republic of Lithuania, irrespective of their nationality and worldview, who had the experience of working in the establishments of the interior and were ready to take an oath of allegiance to Lithuania and to serve it were invited to continue to work in good faith. The appeal of the Supreme Council contained the provision ensuring that “the social guarantees of the persons working in the interior will be preserved: pensions will be paid irrespective of the state in which the person performed service; the rank achieved will be retained; the average remuneration of an officer will be higher than the average salary in the Republic”. Thus, after restoring its independence, by means of the said appeal, the Republic of Lithuania took on the obligation to the persons who had been working in the interior and were loyal to the State of Lithuania to preserve their social guarantees acquired before the restoration of independence, “irrespective of the state in which the person performed service”, i.e. inter alia, service performed in the system of the internal affairs of the USSR. However, as held by the Constitutional Court in its ruling of 22 February 2013, the Republic of Lithuania did not undertake any obligations to the persons who were not “ready to take an oath of allegiance to Lithuania and to serve it” after 11 March 1990, nor did it undertake any obligations to preserve social guarantees acquired while serving in the system of the internal affairs of the USSR after 11 March 1990.

In the context of the constitutional justice case at issue, it should be noted that the appeal of 21 March 1990 by the Supreme Council of the Republic of Lithuania was addressed, inter alia, to the officials of the system of the internal affairs of the USSR who had been holding duties in the corrective labour establishments and investigative solitary confinement units functioning in the territory of the Republic of Lithuania. It is clear from the material of the constitutional justice case at issue (inter alia, the explanations provided by the specialists) that, otherwise than in the case of most other units formerly subordinate to the Ministry of Internal Affairs of the USSR (the Lithuanian SSR), on 11 March 1990, the Republic of Lithuania could not objectively bring under its jurisdiction the corrective labour establishments and investigative solitary confinement units functioning at that time in its territory, whose security and control had been carried out by the units of internal troops of the USSR Ministry of Internal Affairs; therefore, the persons who had served in these establishments and were “ready to take an oath of allegiance to Lithuania and to serve it” could not do so immediately. The material of the constitutional justice case at issue also makes it clear that the aim of the Republic of Lithuania to bring under its jurisdiction the corrective labour establishments and investigative solitary confinement units functioning at that time in its territory was achieved gradually in December 1991, after the conditions appeared for replacing the units of internal troops of the USSR Ministry of Internal Affairs that had been carrying out the security of these facilities with the units of the Ministry of the Interior of the Republic of Lithuania; The Republic of Lithuania encouraged the officials of the units of internal troops of the USSR Ministry of Internal Affairs who had been serving in the corrective labour establishments and investigative solitary confinement units functioning in the territory of the Republic of Lithuania to continue service until these establishments were brought under the jurisdiction of the Republic of Lithuania and to enter service in the units of the Ministry of the Interior of the Republic of Lithuania that were to take the security and control of the said establishments.

In addition, the material of the constitutional justice case at issue (inter alia, the explanations provided by the specialists) makes it clear that the units of internal troops of the USSR Ministry of Internal Affairs that had been carrying out the security and control of the corrective labour establishments and investigative solitary confinement units functioning in the territory of the Republic of Lithuania were not used by the USSR for aggression against the Republic of Lithuania in January–August 1991. Performing the functions of the security and control of the corrective labour establishments and investigative solitary confinement units, the officials of these units ensured that the sentences of the deprivation of liberty imposed under the judgments of the courts of the Republic of Lithuania were executed and that the pretrial measure of detention was applied, as well as performed the function of convoying convicted and detained persons, i.e. thereby they contributed to maintaining public security and public order in the Republic of Lithuania.

3. In this context, it should be noted that, on 30 September 1991, the Government of the Republic of Lithuania adopted the resolution (No 398) on the former non-commissioned officers, praporshchiks (warrant officers), and servicemen of internal troops of the USSR Ministry of Internal Affairs who entered service in the system of the interior of the Republic of Lithuania; in this resolution, “seeking to create the conditions for the former non-commissioned officers, praporshchiks (warrant officers), and servicemen of internal troops of the USSR Ministry of Internal Affairs to continue service in the system of the interior of the Republic of Lithuania”, it was decided to establish that, for the said persons, who had performed service in the territory of the Republic of Lithuania and subsequently entered service in the system of the interior of the Republic of Lithuania, the period served in the USSR armed forces and the internal troops of the USSR Ministry of Internal Affairs would be included in the length of service qualifying to receive the pension of the Ministry of the Interior of the Republic of Lithuania, as well as a percentage supplementing remuneration for the years served in the system of the interior; other social guarantees established for the officials of the system of the interior under the laws and resolutions of the Republic of Lithuania also apply to the above-mentioned officials who entered service in the system of the interior of the Republic of Lithuania.

Thus, by the above-mentioned resolution, with respect to the officials of internal troops of the USSR Ministry of Internal Affairs who had served in the corrective labour establishments and investigative solitary confinement units functioning in the territory of the Republic of Lithuania, were loyal to the Republic of Lithuania, and entered service in the system of the interior of the Republic of Lithuania, the Republic of Lithuania undertook the obligation to preserve certain social and material guarantees, inter alia, the guarantee to include the period served in the internal troops of the USSR Ministry of Internal Affairs in the length of service qualifying to receive the pension of the Ministry of the Interior of the Republic of Lithuania.

4. The period of service required for officials and servicemen to qualify for the state pension of officials and servicemen was regulated for the first time by the following provisional legal regulation established by the Government: the government resolution (No 490) of 25 June 1992 on pension provision for the officials and servicemen of the system of the interior and the government resolution (No 865) of 19 November 1992 on pension provision for the officials and servicemen of the system of national defence (the Constitutional Court’s ruling of 22 February 2013). These government resolutions became no longer valid after the Republic of Lithuania’s Law on the State Pensions of the Officials and Servicemen of the Interior, State Security, National Defence, and the Prosecution Service, adopted on 13 December 1994, came into force on 1 January 1995.

Item 1 of the government resolution (No 490) of 25 June 1992 on pension provision for the officials and servicemen of the system of the interior prescribed that, “until the Republic of Lithuania’s laws on the pensions of employees, officials, and servicemen of the Prosecution Service, the systems of the interior, state security, and national defence, and the Security Division of the Supreme Council are adopted and come into force: 1.1. For the officials and servicemen of the system of the interior, the length of service necessary in order to be granted a pension for the years served, as from 1 June 1992, shall include: [...] 1.1.3. The period of service in the armed forces of the USSR and other states, the border guard service or the system of the internal affairs of the USSR”.

Thus, under the provisional legal regulation established by the Government, which was in force until 31 December 1994, the length of service qualifying for the state pension of officials and servicemen (pension for the years served) included, inter alia, the period of service in the armed forces of the USSR, the border guard service of the USSR, and the system of the internal affairs of the USSR. In its ruling of 22 February 2013, the Constitutional Court held that, taking into account, inter alia, the before-mentioned appeal of 21 March 1990 by the Supreme Council to the people who had worked in the establishments of the interior and the Resolution of the Supreme Council of 8 November 1990 on the service of the residents of the Republic of Lithuania in the armed forces of the USSR, the legal regulation established by the Government and effective until 31 December 1994 was to be understood as creating the obligation, for the purpose of granting the state pension of officials and servicemen (pension for the years served), to include in the length of service only the period served in the armed forces of the USSR, the border guard service of the USSR, or the system of the internal affairs of the USSR before 11 March 1990; if the said legal regulation established by the Government and effective until 31 December 1994 were interpreted otherwise, the length of service qualifying for the state pension of officials and servicemen (pension for the years served) would include, inter alia, the period of service after 11 March 1990 in those units of the USSR armed forces and the system of internal affairs that carried out the USSR aggression against the Republic of Lithuania.

5. On 13 December 1994, the Seimas adopted the Law on the State Pensions of the Officials and Servicemen of the Interior, State Security, National Defence, and the Prosecution Service, which came into force on 1 January 1995. This law specified the persons who were granted and paid the state pension of officials and servicemen, the grounds and conditions for granting and paying this pension, and its amounts.

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

For persons who have entered service as officials or servicemen in the interior, state security, national defence, or the Prosecution Service of the Republic of Lithuania, the following periods of service performed prior to the entry into force of this Law shall be regarded as periods of service taken into account for the purpose of granting the pension:

1) the actual period of service in the armed forces, border guard service, the interior, or other systems of service (with the exception of service in extermination squads or battalions) of other states – under the procedure prescribed by the Government of the Republic of Lithuania”.

Paragraph 2 of Article 16 of this law prescribed that persons who had not entered service or had not been appointed as officials or servicemen in the systems of the interior, state security, national defence, or the Prosecution Service of the Republic of Lithuania were not granted the state pensions of officials and servicemen under the procedure prescribed by this law.

The provisions of the Law on the State Pensions of the Officials and Servicemen of the Interior, State Security, National Defence, and the Prosecution Service, its title, and Paragraph 4 of Article 16 were amended on more than one occasion. By amending Paragraph 4 of Article 16 of this law, the legislature expanded the circle of persons for whom the actual period of service in the armed forces, border guard service, the interior, or other systems of service (with the exception of service in extermination squads or battalions) of other states was regarded as the period of service taken into account for the purpose of granting the state pension of officials and servicemen: the legislature included the persons who had entered service as officials in the Special Investigation Service, also the Department of Prisons or the establishments and state enterprises subordinate to it. However, the provision of Item 1 of Paragraph 4 of Article 16 of this law, to the effect that the actual period of service in the armed forces, border guard service, the interior, or other systems of service (with the exception of service in extermination squads or battalions) of other states was regarded as the period of service taken into account for the purpose of granting the state pension of officials and servicemen under the procedure prescribed by the Government of the Republic of Lithuania, did not change until the entry into force of the new wording of this law on 1 July 2005.

5.2. In its ruling of 4 July 2003, the Constitutional Court interpreted that the wording “under the procedure prescribed by the Government of the Republic of Lithuania” of Item 1 of Paragraph 4 of Article 16 of the Law on the State Pensions of the Officials and Servicemen of the Interior, State Security, National Defence, and the Prosecution Service, inter alia, meant that the Government had been assigned by this law the task of establishing the procedure whereby the periods of service actually performed by the indicated persons prior to the entry into force of this law in the armed forces, border guard service, the interior, or other systems of service (with the exception of service in extermination squads or battalions) of other states would be regarded as the period of service taken into account for the purpose of granting the state pension of officials and servicemen to the said persons.

5.3. Pursuant to the Law on the State Pensions of the Officials and Servicemen of the Interior, State Security, National Defence, and the Prosecution Service, by its resolution (No 83) of 20 January 1995 on approving the Regulations on Granting and Paying the State Pensions of the Officials and Servicemen of the Systems of the Interior, State Security, National Defence, and the Prosecution Service, as well as on establishing the period of service required to receive an additional percentage for the years of service, the Government approved the Regulations on Granting and Paying the State Pensions of the Officials and Servicemen of the Systems of the Interior, State Security, National Defence, and the Prosecution Service. Item 6.1 of these regulations prescribed that the period of service indicated in Article 16 of the Law on the State Pensions of the Officials and Servicemen of the Interior, State Security, National Defence, and the Prosecution Service until 1 January 1995 also included the actual period of service in various types of armed forces of all states, the system of state security of the USSR until 11 March 1990, the Security Division of the Supreme Council of the Republic of Lithuania, and other systems of service organised on a statutory basis.

These regulations, inter alia, their title, were amended on more than one occasion. On 25 May 2001, the Government adopted the resolution (No 612) on partially amending the resolution of the Government of the Republic of Lithuania (No 83) of 20 January 1995 on approving the Regulations on Granting and Paying the State Pensions of the Officials and Servicemen of the Systems of the Interior, the Special Investigation Service, State Security, National Defence, and the Prosecution Service, and the Department of Prisons and the Establishments and State Enterprises Subordinate to It, as well as on establishing the period of service required to receive an additional percentage for the years of service. This resolution came into effect on 31 May 2001 and supplemented Item 6.1 of the said regulations with the provision that the periods of service indicated in this item were included only if the person did not receive another state pension for these periods.

Thus, under the legal regulation related to the state pensions of officials and servicemen in force from 1 January 1995 to 30 June 2005, the following actual period of service was regarded as the period of service taken into account for the purpose of granting the pension: the period of service in various types of armed forces of all states, the system of state security of the USSR until 11 March 1990 (as from 31 May 2001, such a period was regarded as the period of service taken into account for the purpose of granting the state pension of officials and servicemen only if the person did not receive another state pension for this period), the Security Division of the Supreme Council of the Republic of Lithuania, and other systems of service of the Republic of Lithuania wherein service had been organised on a statutory basis.

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

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

For persons who entered service as officials or servicemen in the systems of the interior, state security, national defence, or the Prosecution Service, the Special Investigation Service, or the Department of Prisons or the establishments and state enterprises subordinate to it, the following periods prior to 1 January 1995 shall be regarded as the period of service taken into account for the purpose of granting the pension:

1) the actual period of service in the armed forces, border guard service, the interior, or other systems of service (with the exception of service in extermination squads or battalions) of other states prior to 11 March 1990”.

It should be noted in the context of the constitutional justice case at issue that the actual period of service performed specifically until 11 March 1990 in the units of internal troops of the USSR Ministry of Internal Affairs that had carried out the security and control of the corrective labour establishments and investigative solitary confinement units functioning in the territory of the Republic of Lithuania was regarded as the period of service taken into account for the purpose of granting the state pension of officials and servicemen.

7. On 18 January 2007, the Seimas adopted the Republic of Lithuania’s Law Amending and Supplementing the Title and Articles 1, 3, 6, 12, and 16 of the Law on the State Pensions of the Officials and Servicemen of the Interior, the Special Investigation Service, State Security, National Defence, the Prosecution Service, the Department of Prisons and the Establishments and State Enterprises Subordinate to It. By Article 1 of this law, the title of the Law on the State Pensions of the Officials and Servicemen of the Interior, the Special Investigation Service, State Security, National Defence, the Prosecution Service, the Department of Prisons and the Establishments and State Enterprises Subordinate to It was amended and set out as the “Republic of Lithuania’s Law on the State Pensions of Officials and Servicemen”; by Article 6 of the same law, inter alia, Paragraph 3 of Article 16 of the law was amended. Paragraph 3 (wording of 18 January 2007) of Article 16 of the Law on the State Pensions of Officials and Servicemen, inter alia, prescribed:

For persons who entered service as officials or servicemen in the systems of the interior, state security, national defence, or the Prosecution Service, the Special Investigation Service, or the Department of Prisons or the establishments and state enterprises subordinate to it, or as customs officials (in the customs system to work in customs mobile groups or customs posts, or to conduct operational activities and/or carry out pretrial investigations), the following periods prior to 1 January 1995 shall be regarded as the period of service taken into account for the purpose of granting the pension:

1) the actual period of service in the armed forces, border guard service, the interior, or other systems of service (with the exception of service in extermination squads or battalions) of other states prior to 11 March 1990”.

Having compared the legal regulation laid down in Paragraph 3 (wording of 18 January 2007) of Article 16 of the Law on the State Pensions of Officials and Servicemen with the legal regulation laid down in Paragraph 3 of Article 16 of the Law on the State Pensions of the Officials and Servicemen of the Interior, the Special Investigation Service, State Security, National Defence, the Prosecution Service, and the Department of Prisons and the Establishments and State Enterprises Subordinate to It (wording of 19 May 2005), it should be noted that the legislature expanded the circle of persons for whom the actual period of service performed in the armed forces, border guard service, the interior, or other systems of service (with the exception of service in extermination squads or battalions) of other states until 11 March 1990 was regarded as the period of service taken into account for the purpose of granting the state pension of officials and servicemen: the legislature extended the legal regulation in question to the persons appointed to work as customs officials, but it did not alter the wording of Item 1 of Paragraph 3 of Article 16.

8. Summarising the legal regulation laid down in Item 1 of Paragraph 3 (wording of 18 January 2007) of Article 16 of the Law on the State Pensions of Officials and Servicemen from the aspect relevant to this constitutional justice case, it should be noted that the period of service taken into account for the purpose of granting the state pension of officials and servicemen included only the actual period of service performed specifically until the restoration of the Republic of Lithuania on 11 March 1990 in the units of internal troops of the USSR Ministry of Internal Affairs carrying out the security and control of the corrective labour establishments and investigative solitary confinement units functioning in the territory of the Republic of Lithuania.

9. In this context, it should be mentioned that Paragraph 3 (wording of 18 January 2007) of Article 16 of the Law on the State Pensions of Officials and Servicemen was amended after, on 2 October 2012, the Seimas had adopted the Republic of Lithuania’s Law Amending Articles 1, 3, 6, 7, and 16 of the Law on the State Pensions of Officials and Servicemen and replaced the words “operational activities” with the words “criminal intelligence”. This amendment to the law came into force on 1 January 2013.

10. In its ruling of 22 February 2013, the Constitutional Court recognised that Articles 29 and 52 of the Constitution and the constitutional principle of a state under the rule of law were violated by Item 1 of Paragraph 3 (wordings of 18 January 2007 and 2 October 2012) of Article 16 of the Law on the State Pensions of Officials and Servicemen, insofar as having provided that, for the persons indicated in that paragraph, the actual period of forced military service in the armed forces, border guard service, internal affairs, or other systems of service of the USSR (with the exception of service in extermination squads or battalions) until 11 March 1990 was included in the period of service taken into account for the purpose of granting the state pension of officials and servicemen, but it failed to provide that the period of such service after 11 March 1990 was to be included in the period of service taken into account for the purpose of granting the said pension for the persons who had been declared citizens of the Republic of Lithuania under Item 1 of Article 1 of the Law on Citizenship of 3 November 1989 or Item 1 or 2 of Article 1 of the Law on Citizenship of 5 December 1991, also for the persons indicated in Item 2 of Article 1 of the Law on Citizenship of 3 November 1989 who had accepted citizenship of the Republic of Lithuania within two years following the entry into force of this law, as well as for the persons indicated in Item 3 of this Article who had become citizens of the Republic of Lithuania upon making a choice regarding citizenship of the Republic of Lithuania prior to they had been conscripted to perform military service in the armed forces, border guard service, internal affairs, or other systems of service of the USSR, or during such military service.

11. Implementing the above-mentioned ruling of the Constitutional Court, on 3 December 2013, the Seimas adopted the Republic of Lithuania’s Law Amending Article 16 of the Law on the State Pensions of Officials and Servicemen. By means of this law, the Seimas amended Item 1 of Paragraph 3 (wording of 2 October 2012) of Article 16 of the Law on the State Pensions of Officials and Servicemen and set it out as follows:

1) the actual period of service in the armed forces, border guard service, the interior, or other systems of service (with the exception of service in extermination squads or battalions) of other states prior to 11 March 1990 and the actual period of forced compulsory military service performed after 11 March 1990 in the armed forces, border guard service, internal affairs, or other systems of service of the USSR by persons conscripted by the military commissariats of the USSR operating in Lithuania”.

Thus, under the impugned legal regulation laid down in Item 1 (wording of 3 December 2013) of Paragraph 3 of Article 16 of the Law on the State Pensions of Officials and Servicemen, no other period of service after 11 March 1990 in the armed forces, border guard service, internal affairs, or other systems of service of the USSR, with the exception of forced compulsory military service, was included in the length of service taken into account for the purpose of granting the state pension of officials and servicemen.

It should be noted that the impugned legal regulation laid down in Item 1 (wording of 3 December 2013) of Paragraph 3 of Article 16 of the Law on the State Pensions of Officials and Servicemen from the aspect relevant to this constitutional justice case did not change, i.e. it remained the same as established in Item 1 of Paragraph 3 (wording of 18 January 2007) of Article 16 of the Law on the State Pensions of Officials and Servicemen: it continued to provide that the period of service taken into account for the purpose of granting the state pension of officials and servicemen included only the actual period of service performed specifically until the restoration of the Republic of Lithuania on 11 March 1990 in the units of internal troops of the USSR Ministry of Internal Affairs that had carried out the security and control of the corrective labour establishments and investigative solitary confinement units functioning in the territory of the Republic of Lithuania.

12. As mentioned before, on 25 June 2015, the Seimas adopted the Law Amending Articles 3, 6, 7, 9, and 16 of the Law (No) I-693 on the State Pensions of Officials and Servicemen and Supplementing the Law with Article 152. By means of this law, inter alia, the impugned Item 1 (wording of 3 December 2013) of Paragraph 3 of Article 16 of the Law on the State Pensions of Officials and Servicemen was set out in its new wording. This item did not change from the aspect relevant to this constitutional justice case, but it was supplemented with the condition “if the person did not receive another state pension for this period”.

III

1. It has been mentioned that the Constitutional Court in the constitutional justice case at issue is investigating whether the impugned legal regulation was in conflict with Articles 29 and 52 of the Constitution and the constitutional principle of a state under the rule of law.

2. Article 29 of the Constitution consolidates the principle of the equality of the rights of persons. Interpreting the provisions of Article 29 of the Constitution, the Constitutional Court has held more than once that the constitutional principle of the equality of all persons, which must be followed both in passing laws and applying them, as well as in administering justice, imposes the obligation to legally assess homogenous facts in the same manner and prohibits any arbitrary assessment of essentially the same facts in a different manner; the Constitutional Court has also held that the constitutional principle of the equality of all persons consolidates the formal equality of all persons and does not allow any discrimination of persons or granting them privileges. The constitutional principle of the equality of persons does not deny the possibility of treating persons differently if account is taken of their status or situation (inter alia, the Constitutional Court’s rulings of 30 October 2008 and 3 July 2012). The constitutional principle of the equality of the rights of persons would be violated if certain persons or groups of such persons were treated in a different manner, even though there are no differences of such a nature and to such an extent between the said groups of persons so that their uneven treatment could be objectively justified (inter alia, the Constitutional Court’s rulings of 27 June 2012 and 22 February 2013).

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

3.1. The Constitutional Court has noted on more than one occasion that, under the Constitution, the law may also provide for other pensions and social assistance in addition to those expressis verbis indicated in Article 52 of the Constitution; the phrase “the state shall guarantee” as used in Article 52 of the Constitution, inter alia, means that pensions and various types of social assistance are guaranteed for persons on the grounds and in the amounts that are established in laws, and persons who meet the conditions provided for by law have the right to demand that the state grant and pay the respective pension to them; after the types of pensions, the persons entitled to a pension, the grounds and conditions for granting and paying pensions, and their amounts have been established by law, the duty arises for the state to follow the constitutional principles of legal certainty and the protection of legitimate expectations in the area of the relations connected with pension provision (inter alia, the Constitutional Court’s rulings of 6 February 2012 and 22 February 2013).

3.2. The pensions other than those directly identified in Article 52 of the Constitution are currently established, among other things, in the Republic of Lithuania’s Law on State Pensions. State pensions differ as to their nature and character from state social insurance old-age pensions, as well as from other state social insurance pensions: state pensions are paid from the state budget and are granted to persons in recognition of service or merit to the State of Lithuania or as compensation to victims specified in the law (inter alia, the Constitutional Court’s ruling of 22 October 2007, its decisions of 20 April 2010 and 14 January 2015, and its ruling of 6 May 2015); the provision regarding the obligation undertaken by the state under the law to grant and pay a particular pension to a person who meets the conditions established by law, as well as the provision regarding the right of such a person to demand that the state fulfil the said obligation, is also applicable to cases where state pensions are granted to persons for certain service or in recognition of merit to the State of Lithuania or as compensation to victims specified in the law (the Constitutional Court’s ruling of 22 October 2007, its decision of 20 April 2010, and its rulings of 6 February 2012 and 22 February 2013).

In its rulings of 24 December 2008 and 22 February 2013, the Constitutional Court noted that the purpose of the state pensions of officials and servicemen, which are stablished in the Law on the State Pensions of Officials and Servicemen, is, inter alia, to compensate for difficult, responsible, and often risk-involving and dangerous service performed by a person to the state; the specific features of state pensions permit the legislature, taking account of all the significant circumstances and having regard to the norms and principles of the Constitution, to establish the respective conditions for granting these pensions; the receipt of these pensions is related to the particular status of a person (his/her service, merit, or other circumstances upon which the granting of the state pension depends).

3.3. In its ruling of 22 February 2013, interpreting the requirements arising from the Constitution, inter alia, Article 52 thereof, in respect of the legal regulation of the state pensions of officials and servicemen, the Constitutional Court noted the following:

after such a state pension has been established in a law, the granting and receipt of this pension must specifically be related to the service performed by the person to the State of Lithuania;

service to another state, inter alia, the USSR (including the Lithuanian SSR), may not be considered service to the State of Lithuania;

under the Constitution, the legislature has the discretion, taking account of the significant circumstances, to establish such a legal regulation of granting the state pensions of officials and servicemen under which the period of service to another state may be regarded as equivalent to a certain part of the necessary period of service by the person to the State of Lithuania in order to be granted this pension in cases where service to another state was performed under the circumstances when it was objectively impossible to perform service to the State of Lithuania (inter alia, in the period prior to the restoration of the independence of the Republic of Lithuania on 11 March 1990, during which the only institutions of the State of Lithuania were the Republic of Lithuania’s diplomatic missions and consular posts abroad or when service to the State of Lithuania was possible only in the structures of the organised armed resistance against the occupation (inter alia, in the Lithuanian Freedom Fight Movement), which took place for a certain time in the occupied territory of the Republic of Lithuania);

in exercising this discretion, the legislature is bound by the purpose of the state pension of officials and servicemen; therefore, the legislature may not establish such a legal regulation under which the said pensions would be granted to persons who did not serve to the State of Lithuania, or to persons who, while performing service to the state that had occupied the territory of the Republic of Lithuania, participated in suppressing the resistance against the occupation or in committing criminal acts against the Lithuanian population.

4. In its ruling of 3 December 2003, the Constitutional Court pointed out that regard must also be paid to the constitutional principle of a state under the rule of law in interpreting Article 52 of the Constitution.

4.1. The constitutional principle of a state under the rule of law is inseparable from justice – one of the main aims of law as a means of regulating social relations; justice can be implemented when a balance of interests is ensured and contingencies, arbitrariness, and clashes of interests are avoided. The constitutionally consolidated principle of a state under the rule of law is inseparable from the imperative of justice and vice versa (inter alia, the Constitutional Court’s rulings of 17 March 2003 and 3 December 2003). In its ruling of 29 June 2010, the Constitutional Court emphasised that it is obligatory to pay regard to the constitutional principle of a state under the rule of law, inter alia, the requirements of proportionality, justice, and reasonableness, in establishing a legal regulation of relations connected with pensions.

In its rulings, inter alia, of 3 December 2003 and 24 December 2008, the Constitutional Court also noted that, when specifying the persons who are granted and paid the state pension of officials and servicemen, as well as the grounds and conditions for granting and paying the state pension of officials and servicemen, and the amounts of this pension, the legislature is bound by the constitutional imperative of social harmony and the principles of justice, reasonableness, and proportionality.

4.2. As mentioned before, the state is under the duty to follow the constitutional principles of the protection of legitimate expectations and legal certainty in the area of relations connected with pension provision. The Constitutional Court has held on more than one occasion that legal certainty, legal security, and the protection of legitimate expectations are inseparable elements of the principle of a state under the rule of law; these constitutional principles imply the duty of the state to ensure the certainty and stability of a legal regulation, to protect the rights of persons, to respect legitimate interests and legitimate expectations, and to fulfil the obligations undertaken to the person; if legal certainty, legal security, or the protection of legitimate expectations were not ensured, the trust of a person in the state and law would not be secured (inter alia, the Constitutional Court’s rulings of 4 March 2003, 15 February 2013, 8 May 2014, and 19 November 2015); persons have the right to reasonably expect that their rights acquired under valid laws or other legal acts that are not in conflict with the Constitution will be retained for the established period of time and that they will be able to exercise these rights in reality; it is not permitted to deny the legitimate interests and legitimate expectations of persons by means of amendments to a legal regulation (inter alia, the Constitutional Court’s rulings of 4 March 2003, 15 February 2013, 30 May 2013, and 2 February 2016).

4.3. In the context of the constitutional justice case at issue, it should be noted that, under the Constitution, inter alia, Article 52 thereof, the legislature has broad discretion in establishing a legal regulation governing the state pensions of officials and servicemen. However, this discretion is bound by the Constitution; the duty of the state to guarantee its citizens the right to receive social assistance in cases provided for by law, which is consolidated in Article 52 of the Constitution, implies the requirement for the legislature to establish such a legal regulation of the state pensions of officials and servicemen (once such a pension is provided for by law) that would take account of the constitutional principle of a state under the rule of law, inter alia, the imperatives of justice, the protection of legitimate expectations, and legal certainty.

IV

On the compliance of Item 1 (wordings of 3 December 2013 and 25 June 2015) of Paragraph 3 of Article 16 of the Law on the State Pensions of Officials and Servicemen with Article 52 of the Constitution and the constitutional principle of a state under the rule of law

1. It has been mentioned that the Constitutional Court is investigating in this constitutional justice case whether the legal regulation consolidated in Item 1 (wording of 3 December 2013) of Paragraph 3 of Article 16 of the Law on the State Pensions of Officials and Servicemen was in conflict with Articles 29 and 52 of the Constitution and the constitutional principle of a state under the rule of law, insofar as, under this legal regulation, the actual period of service performed before 11 March 1990 in the units of internal troops of the USSR Ministry of Internal Affairs while carrying out the functions of the security and control of the corrective labour establishments and investigative solitary confinement units functioning in the territory of the Republic of Lithuania was regarded as the period of service taken into account for the purpose of granting the state pension of officials and servicemen, but the actual period of service in the units of internal troops of the USSR Ministry of Internal Affairs while carrying out the functions of the security and control of the corrective labour establishments and investigative solitary confinement units functioning in the territory of the Republic of Lithuania if it had been performed from 11 March 1990 until the security and control of the said facilities had been brought under the jurisdiction of the Republic of Lithuania was not regarded as the period of service taken into account for the purpose of granting the said pension.

2. It has also been mentioned that, in its ruling of 22 February 2013, interpreting the requirements arising from the Constitution, inter alia, Article 52 thereof, in respect of the legal regulation of the state pensions of officials and servicemen, the Constitutional Court noted the following:

after such a state pension has been established in a law, the granting and receipt of this pension must specifically be related to the service performed by the person to the State of Lithuania;

service to another state, inter alia, the USSR (including the Lithuanian SSR), may not be considered service to the State of Lithuania;

under the Constitution, the legislature has the discretion, taking account of the significant circumstances, to establish such a legal regulation of granting the state pensions of officials and servicemen under which the period of service to another state may be regarded as equivalent to a certain part of the necessary period of service by the person to the State of Lithuania in order to be granted this pension in cases where the said service to another state was performed under the circumstances when it was objectively impossible to perform service to the State of Lithuania (inter alia, in the period prior to the restoration of the independence of the Republic of Lithuania on 11 March 1990, during which the only institutions of the State of Lithuania were the Republic of Lithuania’s diplomatic missions and consular posts abroad or when service to the State of Lithuania was possible only in the structures of the organised armed resistance against the occupation (inter alia, in the Lithuanian Freedom Fight Movement), which took place for a certain time in the occupied territory of the Republic of Lithuania);

in exercising this discretion, the legislature is bound by the purpose of the state pension of officials and servicemen; therefore, the legislature may not establish such a legal regulation under which the said pensions would be granted to persons who did not serve to the State of Lithuania, or to persons who, while performing service to the state that had occupied the territory of the Republic of Lithuania, participated in suppressing the resistance against the occupation or in committing criminal acts against the Lithuanian population.

3. It has also been mentioned that, although under the Constitution, inter alia, Article 52 thereof, the legislature has broad discretion in establishing a legal regulation governing the state pensions of officials and servicemen, this discretion is bound by the Constitution; the duty of the state to guarantee its citizens the right to receive social assistance in cases provided for by law, which is consolidated in Article 52 of the Constitution, implies the requirement for the legislature to establish such a legal regulation of the state pension of officials and servicemen (once such a pension is provided for by law) that would take account of the constitutional principle of a state under the rule of law, inter alia, the imperatives of justice, the protection of legitimate expectations, and legal certainty; the protection of legitimate expectations implies the duty of the state to ensure the certainty and stability of a legal regulation, to protect the rights of persons, to respect legitimate interests and legitimate expectations, and to fulfil the obligations undertaken to the person.

4. As mentioned before, under the impugned legal regulation laid down in Item 1 (wording of 3 December 2013) of Paragraph 3 of Article 16 of the Law on the State Pensions of Officials and Servicemen, no other period of service after 11 March 1990 in the armed forces, border guard service, internal affairs, or other systems of service of the USSR, with the exception of forced compulsory military service, was included in the length of service taken into account for the purpose of granting the state pension of officials and servicemen; under the legal regulation in question, the period of service taken into account for the purpose of granting the state pension of officials and servicemen included only the actual period of service performed specifically until the restoration of the Republic of Lithuania on 11 March 1990 in the units of internal troops of the USSR Ministry of Internal Affairs that had carried out the security and control of the corrective labour establishments and investigative solitary confinement units functioning at the time in the territory of the Republic of Lithuania.

5. Thus, under the impugned legal regulation laid down in Item 1 (wording of 3 December 2013) of Paragraph 3 of Article 16 of the Law on the State Pensions of Officials and Servicemen, the actual period of service performed before 11 March 1990 in the units of internal troops of the USSR Ministry of Internal Affairs while carrying out the security and control of the corrective labour establishments and investigative solitary confinement units functioning in the territory of the Republic of Lithuania was regarded as the period of service taken into account for the purpose of granting the state pension of officials and servicemen, but the actual period of the same service from 11 March 1990 until the security and control of the said facilities had been brought under the jurisdiction of the Republic of Lithuania was not regarded as the period of service taken into account for the purpose of granting this pension.

6. It should be noted that service in the units of internal troops of the USSR Ministry of Internal Affairs may not be considered service to the State of Lithuania and the period of service in these units from 11 March 1990 should not be regarded as the period during which it was objectively impossible to perform service to the State of Lithuania.

However, in deciding whether the impugned legal regulation laid down in Item 1 (wording of 3 December 2013) of Paragraph 3 of Article 16 of the Law on the State Pensions of Officials and Servicemen was in conflict with the Constitution, account should also be taken of the exceptional circumstances established in the constitutional justice case at issue, such as mentioned before:

on 21 March 1990, the Supreme Council of the Republic of Lithuania issued an appeal to the persons who had been working in the establishments of the interior, whereby all the citizens of the Republic of Lithuania, irrespective of their nationality and worldview, who had the experience of working in the establishments of the interior and were ready to take an oath of allegiance to Lithuania and to serve it were invited to continue to work in good faith; this appeal provided the assurance that the social guarantees of the persons who had been working in the interior would be preserved; the appeal of 21 March 1990 by the Supreme Council of the Republic of Lithuania was addressed, inter alia, to the officials of the system of the internal affairs of the USSR who had been holding duties in the corrective labour establishments and investigative solitary confinement units functioning in the territory of the Republic of Lithuania;

otherwise than in the case of most other units formerly subordinate to the Ministry of Internal Affairs of the USSR (the Lithuanian SSR), on 11 March 1990, the Republic of Lithuania could not objectively bring under its jurisdiction the corrective labour establishments and investigative solitary confinement units that were functioning in its territory and whose security and control had been carried out by the units of internal troops of the USSR Ministry of Internal Affairs; therefore, the persons who had served in these establishments and were “ready to take an oath of allegiance to Lithuania and to serve it” could not do so immediately;

the Republic of Lithuania encouraged the officials of the units subordinate to the USSR Ministry of Internal Affairs who had been serving in the corrective labour establishments and investigative solitary confinement units functioning in the territory of the Republic of Lithuania to continue service until these establishments were brought under the jurisdiction of the Republic of Lithuania and to enter service in the units of the Ministry of the Interior of the Republic of Lithuania that were to take out the security and control of the said establishments;

the units of internal troops of the USSR Ministry of Internal Affairs that had performed the security and control of the corrective labour establishments and investigative solitary confinement units functioning in the territory of Lithuania were not used for the aggression by the USSR against the Republic of Lithuania in January–August 1991; performing the functions of the security and control of the corrective labour establishments and investigative solitary confinement units, the officials of these units ensured that the sentences of the deprivation of liberty imposed under the judgments of the courts of the Republic of Lithuania were executed and that the pretrial measure of detention was applied, as well as performed the function of convoying convicted and detained persons, i.e. thereby they contributed to maintaining public security and public order in the Republic of Lithuania;

upon the adoption of the government resolution (No 398) of 30 September 1991 on the former non-commissioned officers, praporshchiks (warrant officers), and servicemen of internal troops of the USSR Ministry of Internal Affairs who entered service in the system of the interior of the Republic of Lithuania, with respect to the officials of the units subordinate to the USSR Ministry of Internal Affairs who had served in the corrective labour establishments and investigative solitary confinement units functioning in the territory of the Republic of Lithuania, were loyal to the Republic of Lithuania, and subsequently entered service in the system of the interior of the Republic of Lithuania, the Republic of Lithuania undertook the obligation to preserve certain social and material guarantees, inter alia, the guarantee to include the period served in the internal troops of the USSR Ministry of Internal Affairs in the length of service qualifying for the pension of the Ministry of the Interior of the Republic of Lithuania.

7. In view of these exceptional circumstances, it should be noted that:

since the actual period of service before 11 March 1990 in those units of internal troops of the USSR Ministry of Internal Affairs that had performed the security and control of the corrective labour establishments and investigative solitary confinement units functioning in the territory of the Republic of Lithuania was regarded as the period of service taken into account for the purpose of granting the state pension of officials and servicemen, it would be unfair if the actual period of the same service from 11 March 1990 until the security and control of the said establishments had been brought under the jurisdiction of the Republic of Lithuania were not regarded as the period of service taken into account for the purpose of granting the state pension of officials and servicemen; because, as mentioned before, the officials who had carried out the said functions had contributed to public security and the maintenance of public order in the Republic of Lithuania; the Republic of Lithuania itself had encouraged the officials of the units of internal troops of the USSR Ministry of Internal Affairs who had served in the corrective labour establishments and investigative solitary confinement units functioning in the territory of the Republic of Lithuania to continue their service until these establishments were brought under the jurisdiction of the Republic of Lithuania and to enter service in the units of the Ministry of the Interior of the Republic of Lithuania that were to take the security and control of the said establishments; in addition, persons who had served in the said facilities and were loyal to the Republic of Lithuania could swear an oath of allegiance to the Republic of Lithuania only after the Republic of Lithuania had brought the security and control of the said establishments into its jurisdiction;

under the legal regulation (the government resolution (No 398) of 30 September 1991 on the former non-commissioned officers, praporshchiks (warrant officers), and servicemen of internal troops of the USSR Ministry of Internal Affairs who entered service in the system of the interior of the Republic of Lithuania) established before the adoption of the Law on the State Pensions of Officials and Servicemen, the officials of the units subordinate to the USSR Ministry of Internal Affairs who had been loyal to the Republic of Lithuania and had entered service in the system of the interior of the Republic of Lithuania gained the legitimate expectations that all the actual period of their service in the internal troops of the USSR Ministry of Internal Affairs while carrying out the security and control of the corrective labour establishments and investigative solitary confinement units functioning in the territory of the Republic of Lithuania would be regarded as the period of service taken into account for the purpose of granting the state pension of officials and servicemen for service to the Republic of Lithuania.

8. It should be noted that the above-mentioned exceptional circumstances, due to which it would be fair to regard the actual time of service after 11 March 1990 in the armed forces, border guard service, the interior, or other systems of service of other states as the period of service to be taken into account for the purpose of granting the state pension of officials and servicemen and which gave rise to the respective legitimate expectations, were characteristic of the service of the officials who were loyal to the Republic of Lithuania and had served in the units subordinate to the USSR Ministry of Internal Affairs while carrying out the security and control of the corrective labour establishments and investigative solitary confinement units functioning in the territory of the Republic of Lithuania. There are no constitutional grounds that would enable the actual period of service after 11 March 1990 in other units of internal troops or units of internal affairs of the USSR Ministry of Internal Affairs, or in other units of the armed forces, border guard service, customs, security, or other systems of service of the USSR, to be regarded as the period of service qualifying for the state pension of officials and servicemen (with the exception of, as held in the ruling of the Constitutional Court of 22 February 2013, the actual period of forced military service in the armed forces, border guard service, internal affairs, or other systems of service of the USSR after 11 March 1990).

9. Thus, it should be held that, by establishing the impugned legal regulation in Item 1 (wording of 3 December 2013) of Paragraph 3 of Article 16 of the Law on the State Pensions of Officials and Servicemen, the legislature disregarded the requirement stemming from Article 52 of the Constitution to establish such a legal regulation of the state pension of officials and servicemen (once such a pension is provided for by law) that complies with the constitutional principle of a state under the rule of law, inter alia, the imperatives of justice, the protection of legitimate expectations, and legal certainty.

10. In the light of the foregoing arguments, the conclusion should be drawn that the legal regulation laid down in Item 1 (wording of 3 December 2013) of Paragraph 3 of Article 16 of the Law on the State Pensions of Officials and Servicemen was in conflict with Article 52 of the Constitution and the constitutional principle of a state under the rule of law, insofar as, under this legal regulation, the actual period of service performed before 11 March 1990 in the units of internal troops of the USSR Ministry of Internal Affairs while carrying out the functions of the security and control of the corrective labour establishments and investigative solitary confinement units functioning in the territory of the Republic of Lithuania was regarded as the period of service taken into account for the purpose of granting the state pension of officials and servicemen, but the actual period of the same service from 11 March 1990 until the security and control of the said facilities had been brought under the jurisdiction of the Republic of Lithuania was not regarded as the period of service taken into account for the purpose of granting the said pension.

Having held this, the Constitutional Court will not further examine in the constitutional justice case at issue whether Item 1 (wording of 3 December 2013) of Paragraph 3 of Article 16 of the Law on the State Pensions of Officials and Servicemen to the specified extent was in conflict with Article 29 of the Constitution.

11. It has been mentioned before that, on 25 June 2015, the Seimas adopted the Law Amending Articles 3, 6, 7, 9, and 16 of the Law (No) I-693 on the State Pensions of Officials and Servicemen and Supplementing the Law with Article 152. By means of this law, inter alia, the impugned Item 1 (wording of 3 December 2013) of Paragraph 3 of Article 16 of the Law on the State Pensions of Officials and Servicemen was set out in its new wording. This item did not change from the aspect relevant to this constitutional justice case, but it was supplemented with the condition “if the person did not receive another state pension for this period”.

It has been held in this ruling of the Constitutional Court that the legal regulation laid down in Item 1 (wording of 3 December 2013) of Paragraph 3 of Article 16 of the Law on the State Pensions of Officials and Servicemen was in conflict with Article 52 of the Constitution and the constitutional principle of a state under the rule of law, insofar as, under this legal regulation, the actual period of service performed before 11 March 1990 in the units of internal troops of the USSR Ministry of Internal Affairs while carrying out the functions of the security and control of the corrective labour establishments and investigative solitary confinement units functioning in the territory of the Republic of Lithuania was regarded as the period of service taken into account for the purpose of granting the state pension of officials and servicemen, but the actual period of service in the units of internal troops of the USSR Ministry of Internal Affairs while carrying out the functions of the security and control of the corrective labour establishments and investigative solitary confinement units functioning in the territory of the Republic of Lithuania if it had been performed from 11 March 1990 until the security and control of the said facilities had been brought under the jurisdiction of the Republic of Lithuania was not regarded as the period of service taken into account for the purpose of granting the said pension.

12. Having held this, on the grounds of the same arguments, it should also be held that the legal regulation laid down in Item 1 (wording of 25 June 2015) of Paragraph 3 of Article 16 of the Law on the State Pensions of Officials and Servicemen is in conflict with Article 52 of the Constitution and the constitutional principle of a state under the rule of law, insofar as, under this legal regulation, the actual period of service performed before 11 March 1990 in the units of internal troops of the USSR Ministry of Internal Affairs while carrying out the functions of the security and control of the corrective labour establishments and investigative solitary confinement units functioning in the territory of the Republic of Lithuania is regarded as the period of service taken into account for the purpose of granting the state pension of officials and servicemen, but the actual period of service in the units of internal troops of the USSR Ministry of Internal Affairs while carrying out the functions of the security and control of the corrective labour establishments and investigative solitary confinement units functioning in the territory of the Republic of Lithuania if it had been performed from 11 March 1990 until the security and control of the said facilities were brought under the jurisdiction of the Republic of Lithuania is not regarded as the period of service taken into account for the purpose of granting the said pension.

Conforming to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1, 53, 531, 54, 55, and 56 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following

ruling:

To recognise that the legal regulation laid down in Item 1 (wording of 3 December 2013; Official Gazette Lietuvos žinios, 2013, No 128-6522; wording of 25 June 2015; Register of Legal Acts, 01-07-2015, No 10600) of Paragraph 3 of Article 16 of the Republic of Lithuania’s Law on the State Pensions of Officials and Servicemen is (was) in conflict with Article 52 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law, insofar as, under this legal regulation, the actual period of service performed before 11 March 1990 in the units of internal troops of the USSR Ministry of Internal Affairs while carrying out the functions of the security and control of the corrective labour establishments and investigative solitary confinement units functioning in the territory of the Republic of Lithuania is (was) regarded as the period of service taken into account for the purpose of granting the state pension of officials and servicemen, but the actual period of service in the units of internal troops of the USSR Ministry of Internal Affairs while carrying out the functions of the security and control of the corrective labour establishments and investigative solitary confinement units functioning in the territory of the Republic of Lithuania if it had been performed from 11 March 1990 until the security and control of the said facilities were (had been) brought under the jurisdiction of the Republic of Lithuania is (was) not regarded as the period of service taken into account for the purpose of granting the said pension.

This ruling 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
                                                                      Egidijus Šileikis
                                                                      Algirdas Taminskas
                                                                      Dainius Žalimas