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Content updated: 20-12-2017 08:49

The provision of the Law on the President according to which the spouse of the President of the Republic has the right to be provided with housing under a loan-for-use agreement declared unconstitutional

15-12-2017

By its ruling passed today, the Constitutional Court has recognised that Paragraph 4 of Article 23 of the Law on the President, which establishes the right of the spouse of the President of the Republic who is in office or upon the expiry of his/her office and where the President of the Republic dies, if he/she so desires, to be provided with housing (residential premises) under a loan-for-use agreement in accordance with the procedure established by the Government, is in conflict with Paragraph 2 of Article 29 and Article 90 of the Constitution, as well as the constitutional principle of a state under the rule of law.

The Constitutional Court has held that the material (social) guarantee provided for the spouse of the President of the Republic who dies while in office or upon the expiry of his/her office – the right to be provided with housing (residential premises) under a loan-for-use agreement – is essentially identical to the material (social) guarantee entrenched in Paragraph 3 of the same article, which is granted to the President of the Republic whose powers have ceased.

The Government, the petitioner, based its doubts as to the constitutionality of the impugned legal regulation on the fact that the spouse of the President of the Republic is granted a privilege due to his/her social status and that the impugned legal regulation denies the individual and exceptional status of the President of the Republic. The representative of the Seimas, the party concerned, agreed with the arguments indicated by the petitioner.

When assessing the constitutionality of the impugned legal regulation, the Constitutional Court has mainly made reference to the provisions of the official constitutional doctrine formulated in its ruling of 3 July 2014, which interpreted the constitutional status of the President of the Republic and the principle of the equality of persons. The Constitutional Court has stressed that the status of the Head of State is acquired for the period established in the Constitution only by one person, i.e. the President of the Republic. The legal status of the President of the Republic as Head of State is individual and exceptional. Such a constitutional status of the President of the Republic also determines his/her exceptional material and social guarantees, as well as the prohibition on equating some other person with the President of the Republic on the basis of these guarantees. It also means the prohibition on equating, on the basis of these guarantees, some other person with the President of the Republic whose office has expired, i.e. with the former President of the Republic.

Article 90 of the Constitution provides that the President of the Republic has a residence, as well as that the financing of the President of the Republic and of his/her residence is established by law. The provisions of Article 90 of the Constitution do not regulate the legal status of the spouse of the President of the Republic or his/her material provision (social welfare) after the death of the President of the Republic. Social assistance for the spouse and other family members of the President of the Republic is guaranteed on the basis of other provisions of the Constitution.

Thus, in view of the exceptional status of the President of the Republic, Article 90 of the Constitution gives rise to the prohibition on establishing such a legal regulation that, by ensuring material provision (social welfare) related to the financing of housing, would equate the spouse of the President of the Republic to the incumbent or former President of the Republic.

The Constitutional Court has noted that the Constitution does not protect and does not defend any such rights acquired by a person that are privileges in terms of their content, since the defence and protection of privileges would mean the violation of the constitutional principles of the equality of the rights of persons and justice.

In the laws of the Republic of Lithuania, no other person other than the former President of the Republic is granted a right that would be analogous to that of the spouse of the President of the Republic to be provided with state property under a loan-for-use agreement for temporary gratuitous management and use. Thus, the said material (social) guarantee is introduced by the impugned legal regulation solely because of the fact that a person becomes the spouse of the President of the Republic. Such a legal regulation should be assessed as granting a privilege on the grounds of social status, which is prohibited under Paragraph 2 of Article 29 of the Constitution.