THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

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1 Case No. 08/ /2009 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA RULING ON THE COMPLIANCE OF PARAGRAPH 1 (WORDING OF 12 DECEMBER 2006) OF ARTICLE 38 OF THE REPUBLIC OF LITHUANIA LAW ON STATE SOCIAL INSURANCE PENSIONS WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA 14 December 2010 Vilnius The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court Armanas Abramavičius, Toma Birmontienė, Pranas Kuconis, Kęstutis Lapinskas, Zenonas Namavičius, Ramutė Ruškytė, Egidijus Šileikis, Algirdas Taminskas, and Romualdas Kęstutis Urbaitis, with the secretary Daiva Pitrėnaitė, in the presence of the representative of the Seimas of the Republic of Lithuania, the petitioner, who was Algirdas Sysas, a Member of the Seimas, pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, in its public hearing, on 30 November 2010, heard constitutional justice case No. 08/ /2009 subsequent to: 1) the petition of the Vilnius Regional Administrative Court, a petitioner, requesting to investigate whether Paragraph 1 (wording of 12 December 2006) of Article 38 of the Republic of Lithuania Law on State Social Insurance Pensions, to the extent that, according to the petitioner, it does not establish that the right to receive the orphan s pension is granted to the deceased person s children and adopted children older than 18 years of age who had become incapacitated (disabled) before reaching 18 years of age, but who were recognised as such after reaching 18 years of age, is not 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 (petition No. 1B-09/2008); 2) the petition of the Kaunas Regional Administrative Court, a petitioner, requesting to

2 2 investigate whether Paragraph 1 (wording of 12 December 2006) of Article 38 of the Republic of Lithuania Law on State Social Insurance Pensions, to the extent that, according to the petitioner, it does not establish that the right to receive the orphan s pension is granted to the deceased person s children and adopted children older than 18 years of age who had become incapacitated (disabled) before reaching 18 years of age, but who were recognised as such after reaching 18 years of age, is not 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 (petition No. 1B-24/2009). By the Constitutional Court Decision On joining petitions into one case of 9 November 2010, the petitions of the petitioners were joined into one case and it was given reference No. 08/ /2009. The Constitutional Court has established: I 1. The Vilnius Regional Administrative Court, a petitioner, was investigating an administrative case. By its ruling, the court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting to investigate whether Paragraph 1 (wording of 12 December 2006) of Article 38 of the Law on State Social Insurance Pensions, to the extent that, according to the petitioner, it does not establish that the right to receive the orphan s pension is granted to the deceased person s children and adopted children older than 18 years of age who had become incapacitated (disabled) before reaching 18 years of age, but who were recognised as such after reaching 18 years of age, is not in conflict with Article 52 of the Constitution and the constitutional principle of a state under the rule of law (petition No. 1B-09/2008). 2. The Kaunas Regional Administrative Court, a petitioner, was investigating an administrative case. By its ruling, the court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting to investigate whether Paragraph 1 (wording of 12 December 2006) of Article 38 of the Law on State Social Insurance Pensions, to the extent that, according to the petitioner, it does not establish that the right to receive the orphan s pension is granted to the deceased person s children and adopted children older than 18 years of age who had become disabled (invalids) before reaching 18 years of age, but who were recognised as such after reaching 18 years of age, is not in conflict with Article 52 of the Constitution and the constitutional principle of a state under the rule of law (petition No. 1B-24/2009). II 1. The petition of the Vilnius Regional Administrative Court, a petitioner, is substantiated by the following arguments.

3 3 Paragraph 1 of Article 35 of the Law on State Social Insurance Pensions, which was valid until 1 July 2005, prescribed that the right to receive the state social insurance orphan s pension is granted to the deceased person s children and adopted children under 18 years of age as well as older ones where they had become disabled before reaching 18 years of age. Paragraph 1 of Article 36 of the Law on State Social Insurance Pensions, which came into force on 1 July 2005, prescribed that the right to receive the state social insurance orphan s pension is granted to the deceased person s children and adopted children under 18 years of age as well as older ones where they had been recognised as incapacitated (disabled) before reaching 18 years of age and where they have been incapable or partially capable of working (disabled) all the time since reaching 18 years of age. The disputed Paragraph 1 (wording of 12 December 2006) of Article 38 of the Law on State Social Insurance Pensions, which came into force on 1 January 2007, prescribes that the right to receive the state social insurance orphan s pension is granted to the deceased person s children and adopted children under 18 years of age as well as older ones where they had been recognised as incapacitated (disabled) before reaching 18 years of age and where they have been incapable or partially capable of working (disabled) ever since reaching 18 years of age. Under the legal regulation that came into force as from 1 July 2005, the persons who wish to receive the orphan s pension after the death of their parent (parents) are subject to the following two conditions: 1) to be recognised as incapacitated before reaching 18 years of age; 2) to be incapable or partially capable of working (disabled) ever since reaching 18 years of age; however, this legal regulation is also applied without reservation to the persons who were recognised as incapacitated from their very birth (childhood). According to the petitioner, such a depersonalised legal regulation, with regard to the said persons, is in conflict with the essence and spirit of Article 52 of the Constitution. In the opinion of the petitioner, the right of the persons who are incapacitated since birth to the orphan s pension, which is provided for by law, compared to the right of the persons who acquired disability later, is an exceptional one, and this right, in a sense, is an innate one; the rights arising from such a kind of incapacity, i.e. the right to receive the orphan s pension and the duty of the state to pay this pension, may not be limited by the requirement to relate the fact of incapacity (disability) since childhood (birth) to a corresponding date, i.e. the recognition of incapacity (disability) before the person reaches 18 years of age. In its petition, the petitioner also states that, under the official constitutional doctrine, the Constitution protects and defends the acquired rights, therefore, any correction of the state social policy, reorganisation of the system of social guarantees or of the structure of individual social guarantees must be constitutionally grounded, whereas if in the course of reorganisation of the system of social guarantees or the structure of individual guarantees the extent of social guarantees

4 4 is reduced, let alone certain social guarantees disappear, a mechanism of just compensation of incurred losses should be established to the individuals to whom those social guarantees were reasonably established. While grounding its doubts as regards the compliance of the disputed Paragraph 1 of Article 38 of the Law on State Social Insurance Pensions with the constitutional principle of a state under the rule of law, the Vilnius Regional Administrative Court notes the provisions of the official constitutional doctrine that the constitutional principle of a state under the rule of law is a universal principle upon which the entire legal system of Lithuania is based, that the constitutional principle of a state under the rule of law is inseparable from the principle of justice, that inseparable elements of the principle of a state under the rule of law are the protection of legitimate expectations, legal certainty and legal security, that one of the fundamental elements of the constitutional principle of a state under the rule of law is the principle of legal security, which means that the state has a duty to ensure the certainty and stability of legal regulation. 2. The Kaunas Regional Administrative Court, a petitioner, points out that the disputed legal regulation, under which the state social insurance orphan s pension may be granted, after the death of a parent (parents), to the persons who had been recognised as incapacitated (disabled) before reaching 18 years of age and who have been incapable or partially capable of working (disabled) ever since reaching 18 years of age, does not include the persons who are incapacitated since birth (childhood) where this fact of a legal meaning had not been properly established (recognised) before their coming of age. In the opinion of the petitioner, such legal regulation, with regard to the said persons, is in conflict with the essence and spirit of Article 52 of the Constitution. While grounding its doubts as regards the compliance of the disputed Paragraph 1 of Article 38 of the Law on State Social Insurance Pensions with the constitutional principle of a state under the rule of law, the Kaunas Regional Administrative Court, a petitioner, as well as the Vilnius Regional Administrative Court, a petitioner, quotes the provisions of the official constitutional doctrine regarding correction of social policy as well as the official doctrine of the principle of a state under the rule of law. III 1. In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from the representative of the Seimas, the party concerned, who was Artūras Melianas, a Member of the Seimas, and the former representative of the Seimas, the party concerned, who was Jadvyga Andriuškevičiūtė, Head of the Labour and Social Law Unit of the Legal Department of the Office of the Seimas (pursuant to Speaker of the Seimas Ordinance No. PP-153 of 22 November 2010, J. Andriuškevičiūtė lost the powers to represent the Seimas in this constitutional justice case), wherein it is maintained that Paragraph 1 (wording of 12 December

5 5 2006) of Article 38 of the Law on State Social Insurance Pensions, to the extent indicated by the petitioners, is not in conflict with the Constitution. 2. The position of J. Andriuškevičiūtė, the former representative of the Seimas, the party concerned, which is set forth in her written explanations regarding petition of the Vilnius Regional Administrative Court No. 1B-09/2008, is substantiated by the following arguments The right to the orphan s pension provided for in the Law on State Social Insurance Pensions arises from the person s certain legal status, i.e. this right is established to the children and adopted children who, due to their age or incapacity, are not able to get income. The right to the state social insurance orphan s pension is a derivative right, which emerges provided there is the totality of the conditions established by laws. The child s age or incapacity is only one, but not the only condition to become entitled to the orphan s pension. Paragraph 1 of Article 34 of the Law on State Social Insurance Pensions establishes other conditions to become entitled to the orphan s pension: the orphan s father (adoptive father) or mother (adoptive mother), on the day of his or her death, had to be entitled to receive the state social insurance pension of lost capacity to work (disability) or that of old age, or was a recipient of these pensions, also he or she had to have gained the established period of pension insurance The Law on State Social Insurance Pensions regulates not the relations of establishment, acquisition or recognition of the legal status of the person with incapacities or one incapable of working, but the right of an individual who has the legal status of the person with incapacities or one incapable of working to payment of a pension. Diagnosing an illness and establishing incapacity or the level of capacity to work are different procedures. Diagnosing an illness does not mean in itself that incapacity or loss of capacity to work will be established to a person. The legal fact of developing an illness may not necessarily coincide with the legal fact of establishment of the consequences caused by that illness The formulation had been recognised as incapacitated (until 1 July 2005 as disabled) before reaching 18 years of age of Paragraph 1 (wording of 12 December 2006) of Article 38 of the Law on State Social Insurance Pensions is to be construed and applied by invoking the provisions of the Constitutional Court ruling of 7 February 2005, which disclose the content of the formulation the establishment of an occupational disease of Paragraph 1 (wordings of 23 December 1999 and 5 July 2001) of Article 29 of the Republic of Lithuania Law on Social Insurance of Accidents at Work and Occupational Diseases as well as of the formulation the day when the SCMSE establishes the incapacity to work of Item 37 (wording of 8 May 2000) of the Regulations Concerning Social Insurance Payments for Accidents at Work and Occupational Diseases, which were confirmed by Government of the Republic of Lithuania Resolution No. 506 On Confirmation of the Regulations Concerning Social Insurance Payments for Accidents at Work

6 6 and Occupational Diseases of 8 May Deciding the dispute as to the right to the orphan s pension by following the provisions of the aforesaid Constitutional Court ruling, one would safeguard the person s constitutional rights guaranteed by Article 52 of the Constitution and would not violate the constitutional principle of a state under the rule of law. 3. The position set forth in the written explanations of the Member of the Seimas A. Melianas, a representative of the Seimas, the party concerned, regarding the petition (No. 1B- 24/2009) of the Kaunas Regional Administrative Court, a petitioner, is substantiated by the same arguments as the one set forth in the written explanations of J. Andriuškevičiūtė. 4. In the course of the preparation of the case a letter of the Member of the Seimas A. Sysas, a representative of the Seimas, the party concerned, was also received, wherein one assents to the written explanations of the Member of the Seimas A. Melianas, a representative of the Seimas, the party concerned, and those of J. Andriuškevičiūtė, Head of the Labour and Social Law Unit of the Legal Department of the Office of the Seimas, the former representative of the Seimas, the party concerned. IV In the course of the preparation of the case for the Constitutional Court hearing two letters were received from S. Kondratas, Vice-Minister of Social Security and Labour of the Republic of Lithuania, as well as the written explanations of Č. Zabulėnienė, Acting Director of the State Social Insurance Fund Board under the Ministry of Social Security and Labour, and Z. Skvarciany, Director of the Disability and Working Capacity Assessment Office under the Ministry of Social Security and Labour. V At the Constitutional Court hearing, the Member of the Seimas A. Sysas, a representative of the Seimas, the party concerned, reiterated some arguments set forth in his written explanations, answered to the questions and presented additional explanations. The Constitutional Court holds that: I 1. The Vilnius Regional Administrative Court and the Kaunas Regional Administrative Court, the petitioners, request the Constitutional Court to investigate whether Paragraph 1 (wording of 12 December 2006) of Article 38 of the Law on State Social Insurance Pensions, to the extent that, according to the petitioners, it does not establish that the right to receive the orphan s pension is granted to the deceased person s children and adopted children older than 18 years of age who had become incapacitated (disabled) before reaching 18 years of age, but who were recognised as

7 7 such after reaching 18 years of age, is not in conflict with Article 52 of the Constitution and the constitutional principle of a state under the rule of law. 2. Although the petitioners request the Constitutional Court to investigate whether Paragraph 1 (wording of 12 December 2006) of Article 38 of the Law on State Social Insurance Pensions, to the extent that, according to the petitioners, it does not establish that the right to receive the orphan s pension is granted to the deceased person s children and adopted children older than 18 years of age who had become incapacitated (disabled) before reaching 18 years of age, but who were recognised as such after reaching 18 years of age, is not in conflict with Article 52 of the Constitution and the constitutional principle of a state under the rule of law, from the arguments of the petitions of the petitioners as well as the material of the administrative cases, wherein the rulings on the application to the Constitutional Court were adopted, it is clear that the petitioners request investigation into whether Paragraph 1 (wording of 12 December 2006) of Article 38 of the Law on State Social Insurance Pensions, to the extent that it does not establish that the right to receive the orphan s pension is granted to the deceased person s children and adopted children of 18 years of age and older who have incapacity (are disabled) where they had not been recognised as incapacitated (disabled) before reaching 18 years of age, is not in conflict with Article 52 of the Constitution and the constitutional principle of a state under the rule of law. II 1. While construing, subsequent to the petitions of the petitioners, the content of the legal regulation established in the disputed Paragraph 1 (wording of 12 December 2006) of Article 38 of the Law on State Social Insurance Pensions, it is important to elucidate the nature of the state social insurance orphan s pension, also it is necessary to disclose the development of the legal regulation entrenching this pension and a related legal regulation (inter alia the one regulating the legal relations of the person s becoming ( recognition as ) incapacitated (disabled)). 2. On 28 July 1990, the Supreme Council of the Republic of Lithuania adopted the Republic of Lithuania Law on Improvement of Pensionary Maintenance of Residents, which came into force (with a certain exception) on 1 January In the Preamble of this law it is provided: This law shall regulate increase in pensions of all types that had been granted prior to its entry into force, shall establish social pensions to the persons who are incapable of working and have no rights to receive pensions of other types, as well as minimal amounts of pensions and other conditions and norms of pensionary maintenance, and shall regulate the procedure of granting and payment of pensions. Article 25 (wording of 28 July 1990) of the Law on Improvement of Pensionary Maintenance of Residents prescribes: To grant and pay pensions of loss of the breadwinner to the children of the families of the deceased persons specified in the second and forth paragraph of

8 8 Article 14 of this law, also the children of the families of deceased war-disabled persons and war participants, as well as all the children who are full orphans under 18 years of age or older ones where they had become disabled before reaching 18 years of age, whereas to the pupils of vocational technical schools and special secondary schools and the students of higher schools until they graduate from these schools, but not longer than until they reach 23 years of age. Under the same procedure, to grant and pay pensions of loss of the breadwinner to the brothers and sisters of the deceased persons of the aforesaid category as well as the grandchildren thereof who have no parents capable of working. Thus, pensions of loss of the breadwinner were granted and paid inter alia to the following three categories of children who lost their parents (full orphans): 1) under 18 years of age and 2) the older ones where they had become disabled before reaching 18 years of age; 3) to the learners at the schools specified in the law until they graduated from these schools, but not longer than until they reached 23 years of age. In the context of the constitutional justice case at issue it needs to be noted that the persons under 18 years of age and older whose right to the pension of loss of the breadwinner was related to disability could, under the legal regulation established in the aforesaid article, acquire the right to this pension provided that they met the following two conditions: 1) had lost their parents (full orphans); 2) had become disabled before reaching 18 years of age. 3. The duty of parents to support their children who are incapable of working was established in Article 80 The Duty of Parents to Support Their Children of the Code of Marriage and Family of the Republic of Lithuania (1969) (valid until 1 July 2001): Parents shall be obliged to support their underage children, also their children of full legal age who are incapable of working and to whom the support is necessary. Thus, under the then valid legal regulation, it was established that support is provided to such a child of full legal age who is incapable of working and to whom the support is necessary and who has lost his or her parents that had the duty to support him or her as a child incapable of working. 4. It has been mentioned that the person s right to the orphan s pension was regulated by the Law on Improvement of Pensionary Maintenance of Residents (wording of 28 July 1990). This law did not regulate the establishment of the person s becoming disabled, inter alia the person s becoming disabled before reaching 18 years of age. This matter was regulated by the Republic of Lithuania Law on the Social Integration of the Disabled, which was adopted by the Supreme Council on 28 November 1991 (and which, with certain exceptions, came into force on 15 December 1991). Paragraph 1 of Article 1 Purpose of the Law of the Law on the Social Integration of the Disabled (wording of 28 November 1991) provided that the Law on the Social

9 9 Integration of the Disabled regulates inter alia the establishment of disability. Paragraph 1 of Article 3 Disability of the Law on the Social Integration of the Disabled (wording of 28 November 1991) provided that disability is such condition of an individual, as established by competent establishments, which due to a congenital or acquired physical or mental defect, totally or partially incapacitates the individual from taking care of his private or social life, from implementing his rights and from fulfilling his duties. Paragraph 2 of Article 4 Establishment of Disability of the Law on the Social Integration of the Disabled (wording of 28 November 1991) inter alia provided that commissions establishing disability adopt decisions as to inter alia the fact of disability and its cause. The Law on the Social Integration of the Disabled (wording of 28 November 1991) did not specify any concrete causes of disability. Paragraph 1 of Article 4 of the Law on the Social Integration of the Disabled (wording of 28 November 1991) inter alia prescribed that, for children who are under 16 years of age, disability is established by Commissions of Medical and Social Experts from state institutions of treatment and prevention as well as from specialised institutions, which provide medical aid to children and adolescents (hereinafter also referred to as CMSE), whereas for individuals who are 16 years of age and older by State Commissions of Medical and Social Expertise (hereinafter also referred to as SCMSE). In the context of the constitutional justice case at issue, while summing up the discussed legal regulation, it is clear that disability is such condition of an individual which is established by competent institutions. The said law entrenched two different institutions that establish disability, i.e. the CMSE, which used to establish disability for children under 16 years of age, and the SCMSE, which used to establish disability for all individuals of 16 years of age and older. Neither the said law nor other laws provided that the fact of becoming disabled by an individual suffering from a corresponding illness (illnesses) is established otherwise than by means of the establishment of disability to him or her by competent institutions, i.e. upon adopting a decision as to the fact of disability by a commission establishing disability. 5. The procedure for establishment of disability, inter alia the fact of disability, the cause of disability, and the date of establishment of disability were regulated by sub-statutory legal acts. Chapter 6 Establishment of the Causes of Disability of the Instruction on Establishment of Disability, which was approved by Order No of the Minister of Health of 9 December 1991 and Order No of the Minister of Social Security of 5 December 1991, inter alia prescribed: Pursuant to the Republic of Lithuania Law on the Social Integration of the Disabled and other laws, as well as the Regulations of Commissions of Medical and Social Expertise, Commissions of Medical and Social Expertise shall establish the following causes of disability:

10 10 <...> 4. Disability from (since) childhood. Item 22 of the Provisional Regulations of the State Commission of Medical and Social Expertise, which were approved by Government Resolution No. 123 On the Approval of the Provisional Regulations of the State Commission of Medical and Social Expertise of 24 February 1992, prescribed that the date of the establishment of disability is considered to be the day when a territorial commission receives the documents required for the examination of the patient. This provision was recognised as no longer valid by Government Resolution No On the Recognition of Republic of Lithuania Government Resolution No. 123 of 25 February 1992 and Resolution No of 16 September 1996 as No Longer Valid of 7 November Item 38 (wording of 28 April 2000) of the Procedure for Establishing Long-Term and Permanent Loss of Capacity to Work (Disability), which was approved by Order No. 226/49 On the Approval of the Procedure for Establishing Long-Term and Permanent Loss of Capacity to Work (Disability) of the Minister of Health and the Minister of Social Security and Labour of 28 April 2000 (it came into force on 15 May 2000), inter alia prescribed that The SCMSE shall establish the following causes of disability: <...> disability since childhood. This sub-item was recognised as no longer valid by Order No. V-158/A1-79 On Amending Order No. 226/49 On the Approval of the Procedure for Establishing Long-Term and Permanent Loss of Capacity to Work (Disability) of the Minister of Health of the Republic of Lithuania and the Minister of Social Security and Labour of the Republic of Lithuania of 28 April 2000 of the Minister of Health and the Minister of Social Security and Labour of 30 March 2004 (it came into force on 1 April 2004). The fact that, as from 1 April 2004, the cause of disability since childhood has no longer been established was confirmed by the Ministry of Social Security and Labour. The disability reason since childhood has been indicated only in the event of repeated establishment of disability to those persons to whom the disability because of this reason was already established, but the term of the disability established to them has expired or the state of their health has changed (Letter No. ( ) SD-7461 On Specification of the Opinion Presented in Cases No. 08/08 and 23/2009 of the Vice-Minister of Social Security and Labour S. Kondratas of 29 November 2010). Order of the Minister of Health No. 5 On the Procedure for Issuance of a Medical Conclusion to the Disabled Child Under 16 Years of Age of 6 January 1992 approved the Procedure for Issuance of a Medical Conclusion (Disability Certificate) to the Disabled Child Under 16 Years of Age (hereinafter also referred to as the Procedure). Item 4 of this Procedure prescribed: Doctors (local paediatricians, therapists as well as specialist medical doctors), according to the aforesaid list of illnesses, shall separate pathological children and adolescents and, not later than within 10 days from the date of the establishment of the final diagnosis, shall present the patient with his medical documentation to the consultative commission of doctors. The responsibility for

11 11 referring the patient to the CCD shall fall on the local paediatrician or general practitioner (as well as private practice doctors). Under Item 17 (wording of 2 May 2006) of the Inventory Schedule of the Procedure for Establishment of the Level of Capacity to Work, which was approved by Order of the Minister of Social Security and Labour and the Minister of Health No. A1-78/V 179 On the Approval of the Inventory Schedule of Criteria for Establishment of the Level of Capacity to Work and the Inventory Schedule of the Procedure for Establishment of the Level of Capacity to Work of 21 March 2005 (it came into force on 1 July 2005), the date of adopting a decision as to the level of capacity to work is the day of the receipt of all required documents at the Disability and Working Capacity Assessment Office (DWCAO). Under Item 9 of the Inventory Schedule of Criteria and the Procedure for Establishment of the Level of Incapacity, which was approved by Order of the Minister of Health, the Minister of Social Security and Labour, and the Minister of Education and Science No. V-188/A1-84/ISAK- 487 On the Approval of the Inventory Schedule of Criteria and the Procedure for Establishment of the Level of Incapacity of 23 March 2005 (it came into force on 1 July 2005), after establishing the level of incapacity to a person, the date of the establishment thereof is considered to be the day of the receipt of the documents required for establishment of the level of incapacity at the DWCAO, whereas, under Item 23.1 of this Inventory Schedule, the person s parents (adoptive parents), guardians or custodians have the right to apply to the DWCAO regarding the establishment of the level of incapacity to their children and the children under their guardianship or custodianship. 6. While construing, alongside the provisions of Articles 3 and 4 of the Law on the Social Integration of the Disabled (wording of 28 November 1991), one of the conditions for the entitlement of persons of 18 years of age and older to the pension of loss of the breadwinner ( had become disabled before reaching 18 years of age ), which is established in Article 25 of the Law on Improvement of Pensionary Maintenance of Residents (wording of 28 July 1990), it is clear that, in the sense of Article 25 of the Law on Improvement of Pensionary Maintenance of Residents (wording of 28 July 1990), the persons who had become disabled before reaching 18 years of age are to be viewed as the ones with regard to whom commissions establishing disability had adopted a decision as to inter alia the fact of disability before they reached 18 years of age. 7. On 18 July 1994, the Seimas adopted the Law on State Social Insurance Pensions, which came into force on 1 January This law was intended for the regulation of the relations related with state social insurance pensions, inter alia orphan s pensions Article 4 Types of State Social Insurance Pensions (wording of 18 of July 1994) of the Law on State Social Insurance Pensions prescribed: State social insurance old age, disability, survivor s and orphan s (loss of the breadwinner) pensions are provided under this law.

12 12 Paragraph 3 (wording of 18 July 1994) of Article 45 Recalculation of Pensions Granted Prior to the Coming into Force of this Law of the Law on State Social Insurance Pensions prescribed: Under this law, state social insurance survivor s and orphan s pensions shall be granted only for persons who have died after this law came into force. The previously granted pensions of loss of the breadwinner shall not be subject to recalculation. For persons who had died prior to the coming into force of this law, pensions of loss of the breadwinner shall be granted in accordance with the previously valid procedure. Thus, instead of the pension of loss of the breadwinner, the Law on State Social Insurance Pensions (wording of 18 July 1994) entrenched the orphan s pension and established that, under this law, orphan s pensions are granted only for persons who have died after this law came into force Article 35 Persons Entitled to Receive the Orphan s Pension (wording of 18 July 1994) of the Law on State Social Insurance Pensions prescribed: The right to receive the state social insurance orphan s pension shall be granted to the deceased person s children and adopted children under 18 years of age as well as older ones where they had become disabled before reaching 18 years of age. Stepchildren of the deceased person, who prior to his/her death did not qualify for the orphan s pension, shall be entitled to receive the state social insurance orphan s pension under the same conditions as his/her children. The full-time students and pupils of the higher as well as further, vocational and secondary education schools registered in the established manner shall be entitled to receive the orphan s pension until the graduation from these schools, but not longer than until they reach 24 years of age. The children of the deceased person, who qualify for the orphan s pension, shall also retain this right when someone adopts them. In the context of the constitutional justice case at issue it needs to be noted that the persons of 18 years of age and older whose right to the orphan s pension was related to disability could, under the legal regulation established in the said article, acquire the right to this pension provided that they met the following two conditions: 1) had lost their parents (or one of them); 2) had become disabled before reaching 18 years of age. In the context of the constitutional justice case at issue, having compared the legal regulation established in Paragraph 1 (wording of 18 July 1994) of Article 35 of the Law on State Social Insurance Pensions with the one established in Article 25 of the Law on Improvement of Pensionary Maintenance of Residents (wording of 28 July 1990), inter alia it is clear that the persons of 18 years of age and older whose right to the orphan s pension, under Paragraph 1 (wording of 18 July 1994) of Article 35 of the Law on State Social Insurance Pensions, was related to disability, as well as the persons of 18 years of age and older whose right to the pension of loss of

13 13 the breadwinner, under Article 25 of the Law on Improvement of Pensionary Maintenance of Residents (wording of 28 July 1990), was related to disability, could acquire the right to the orphan s pension provided that they met the same two conditions as follows: 1) had lost their parents; 2) had become disabled before reaching 18 years of age. While construing, alongside the provisions of Articles 3 and 4 of the Law on the Social Integration of the Disabled (wording of 28 November 1991), one of the conditions for the entitlement of persons of 18 years of age and older to the orphan s pension ( had become disabled before reaching 18 years of age ), which is established in Paragraph 1 (wording of 18 July 1994) of Article 35 of the Law on State Social Insurance Pensions, it is clear that, in the sense of Paragraph 1 (wording of 18 July 1994) of Article 35 of the Law on State Social Insurance Pensions, the persons who had become disabled before reaching 18 years of age are to be viewed as the ones with regard to whom commissions establishing disability had adopted a decision as to inter alia the fact of disability before they reached 18 years of age. 8. After the adoption of the Law on State Social Insurance Pensions (wording of 18 July 1994) the grounds of disability establishment continued to be regulated by the Law on the Social Integration of the Disabled. On 22 October 1998, the Seimas adopted the Republic of Lithuania Law on Amending and Supplementing the Law on the Social Integration of the Disabled, by Article 1 whereof it amended the Law on the Social Integration of the Disabled (wording of 28 November 1991 with subsequent amendments and supplements) and set it forth in a new wording. The Law on the Social Integration of the Disabled of the new wording came into force (with certain exceptions) on 1 January Paragraph 1 (wording of 22 October 1998) of Article 3 Disability of the Law on the Social Integration of the Disabled provided that disability is such a condition of an individual, as established by competent institutions, which due to a congenital or acquired physical or mental defect, totally or partially incapacitates the individual from taking care of his private or social life, from implementing his rights and from fulfilling his duties. Paragraph 3 (wording of 22 October 1998) of Article 4 Establishment of Disability of the Law on the Social Integration of the Disabled inter alia provided that commissions establishing disability adopt the decisions inter alia as to the fact of disability and its cause. The Law on the Social Integration of the Disabled (wording of 22 October 1998) did not specify any concrete causes of disability. Paragraph 1 (wording of 22 October 1998) of Article 4 of the Law on the Social Integration of the Disabled inter alia prescribed that, for children who are under 16 years of age, disability is established by consultative commissions of doctors (hereinafter also referred to as CCD) from the personal health care establishments of the Lithuanian National Health System which provide health

14 14 care services to children, whereas, for persons of 16 years of age and older by SCMSE. Having compared the said legal regulation established in Paragraph 1 (wording of 22 October 1998) of Article 4 of the Law on the Social Integration of the Disabled with the one established in Paragraph 1 of Article 4 of the Law on the Social Integration of the Disabled (wording of 28 November 1991), it is clear that, under Paragraph 1 (wording of 22 October 1998) of Article 4 of this law, for persons under 16 years of age, disability is established not by CMSE, but CCD, whereas, for persons of 16 years of age and older, disability continues to be established by SCMSE. In the context of the constitutional justice case at issue, while summing up the discussed legal regulation, it is clear that disability continues to be viewed as such condition of an individual which is established by competent institutions. Neither the said law nor other laws provided that the fact of becoming disabled by an individual suffering from a corresponding illness (illnesses) is established otherwise than by means of the establishment of disability to him or her by competent institutions, i.e. upon adopting a decision as to the fact of disability by a commission establishing disability. While construing, alongside the provisions of Articles 3 and 4 of the Law on the Social Integration of the Disabled (wording of 22 October 1998), one of the conditions for the entitlement of persons of 18 years of age and older to the orphan s pension ( had become disabled before reaching 18 years of age ), which is established in Paragraph 1 (wording of 18 July 1994) of Article 35 of the Law on State Social Insurance Pensions, it is clear that, in the sense of Paragraph 1 (wording of 18 July 1994) of Article 35 of the Law on State Social Insurance Pensions, the persons who had become disabled before reaching 18 years of age are to be viewed as the ones with regard to whom commissions establishing disability had adopted a decision as to inter alia the fact of disability before they reached 18 years of age. 9. The duty of parents to support their children who are incapable of working due to disability was established in the Civil Code (it came into force (with certain exceptions) on 1 July 2001), which was approved by Article 1 of the Republic of Lithuania Law on the Approval, Entry into Force and Implementation of the Civil Code adopted by the Seimas on 18 July 2000 (it came into force on 6 September 2000). Paragraph 3 (wording of 18 July 2000) of Article Maintenance Orders of the Civil Code prescribed: The court shall issue a maintenance order until the child attains majority, except in cases where the child is incapable of working due to a disability determined before the age of majority. Thus, under Paragraph 3 (wording of 18 July 2000) of Article of the Civil Code, the court issues a maintenance order inter alia for only such a child of full legal age who is incapable of

15 15 working due to disability where the disability had been established before reaching full legal age, and who has lost his or her parents that had the duty to support him or her as a child incapable of working due to his or her disability. Having compared the legal regulation established in Paragraph 3 (wording of 18 July 2000) of Article of the Civil Code with the one established in Article 80 of the Code of Marriage and Family, which was valid until 1 July 2001, it is clear that this legal regulation has changed in the aspect that parents have the duty to support not all their children of full legal age who are incapable of working and to whom the support is necessary, but only those children of full legal age who are incapable of working due to a disability established to them before reaching full legal age. 10. By Article 1 of the Republic of Lithuania Law on Amending Article of the Civil Code, which was adopted by the Seimas on 11 November 2004 (and which came into force on 26 November 2004), Paragraph 3 (wording of 18 July 2000) of Article of the Civil Code was amended and set forth in a new wording. Paragraph 3 (wording of 11 November 2004) of Article of the Civil Code provides: The court shall issue a maintenance order until the child attains majority, except in cases where the child is incapable of working due to a disability determined before the age of majority, or when the child is in need of support, he is a full-time student of institutions of secondary, higher or vocational education and is not older than 24 years of age. Having compared the legal regulation established in Paragraph 3 (wording of 11 November 2004) of Article of the Civil Code with the one established in Paragraph 3 (wording of 18 July 2000) of Article of the Civil Code, it is clear that the provision of Paragraph 3 of Article of the Civil Code, in the aspect that a maintenance order is issued for the child who is incapable of working due to a disability determined before reaching full legal age, has remained unchanged. 11. On 20 January 2004, the Seimas adopted the Republic of Lithuania Law on Amending Articles 1, 3, 4, 5 and 22 of the Law on the Social Integration of the Disabled, which came into force (with a certain exception) on 1 April Paragraph 1 (wording of 20 January 2004) of Article 4 of the Law on the Social Integration of the Disabled inter alia prescribed that, for persons under 18 years of age, except those who are (were) insured by state social insurance, disability is established by consultative commissions of doctors from personal health care establishments of the Lithuanian National Health System; these persons are recognised as disabled children (Item 1); for persons under 18 years of age who are (were) insured by state social insurance and for persons of 18 years of age and older, disability is established by SCMSE; these persons are recognised as disabled (Item 2). Having compared the legal regulation established in Article 4 (wording of 20 January 2004) of the Law on the Social Integration of the Disabled with the aforediscussed legal regulation

16 16 established in Article 4 (wording of 22 October 1998) of the Law on the Social Integration of the Disabled, it is clear that, instead of the provision entrenched in Article 4 (wording of 22 October 1998) of the Law on the Social Integration of the Disabled whereby for children under 16 years of age disability is established by CCD, one entrenched the provision that persons under 18 years of age, except those who are (were) insured by state social insurance, are recognised as disabled children by CCD, whereas, instead of the provision entrenched in Article 4 (wording of 22 October 1998) of the law whereby for persons of 16 years of age and older disability is established by SCMSE, in Article 4 (wording of 20 January 2004) of the law, one entrenched the provision that persons under 18 years of age who are (were) insured by state social insurance as well as persons of 18 years of age and older are recognised as disabled by SCMSE. The provision of this law that disability is considered to be such a condition of an individual which is established by competent institutions, as well as the provision that commissions establishing disability adopt decisions inter alia as to the fact of disability, have remained unchanged. Neither this law nor other laws provided that the fact of becoming disabled by an individual suffering from a corresponding illness (illnesses) is established otherwise than by means of the establishment of disability to him or her by competent institutions, i.e. upon adopting a decision as to the fact of disability by a commission establishing disability. While construing, alongside the provisions of Articles 3 and 4 (wording of 20 January 2004) of the Law on the Social Integration of the Disabled (wording of 22 October 1998), one of the conditions for the entitlement of persons of 18 years of age and older to the orphan s pension ( had become disabled before reaching 18 years of age ), which is established in Paragraph 1 (wording of 18 July 1994) of Article 35 of the Law on State Social Insurance Pensions, it is clear that, in the sense of Paragraph 1 (wording of 18 July 1994) of Article 35 of the Law on State Social Insurance Pensions, the persons who had become disabled before reaching 18 years of age are to be viewed as the ones with regard to whom commissions establishing disability had adopted a decision as to inter alia the fact of disability before they reached 18 years of age. 12. On 12 February 2004, the Seimas adopted the Republic of Lithuania Law on Amending and Supplementing Articles 9, 16, 28, 35, 36, 40, 43, 45, 49, 50 and 54 of the Law on State Social Insurance Pensions and Supplementing the Law with Article 55 6 and Chapter VII (it came into force on 1 March 2004), by Article 4 whereof it amended Paragraph 1 (wording of 18 July 1994) of Article 35 of the Law on State Social Insurance Pensions. Paragraph 1 (wording of 12 February 2004) of Article 35 of the Law on State Social Insurance Pensions prescribed: The right to receive the state social insurance orphan s pension shall be granted to the deceased person s children and adopted children under 18 years of age as

17 17 well as older ones where they had become disabled before reaching 18 years of age. Stepchildren of the deceased person, who were supported by their deceased stepfather (stepmother) and prior to his/her death did not qualify for orphan s pension, shall be entitled to receive the state social insurance orphan s pension under the same conditions as his/her children. In the context of the constitutional justice case at issue, having compared the legal regulation established in Paragraph 1 (wording of 12 February 2004) of Article 35 of the Law on State Social Insurance Pensions with the one established in Paragraph 1 (wording of 18 July 1994) of Article 35 of the Law on State Social Insurance Pensions, it is clear that the persons of 18 years of age and older whose right to the orphan s pension, under Paragraph 1 (wording of 12 February 2004) of Article 35 of the Law on State Social Insurance Pensions, was related to disability, as well as the persons of 18 years of age and older whose right to the orphan s pension, under Paragraph 1 (wording of 18 July 1994) of Article 35 of the Law on State Social Insurance Pensions, was related to disability, under the legal regulation established in the said article, could acquire the right to the orphan s pension provided that they met the same conditions: 1) have lost their parents (or one of them); 2) had become disabled before reaching 18 years of age. While construing, alongside the provisions of Articles 3 and 4 (wording of 20 January 2004) of the Law on the Social Integration of the Disabled (wording of 22 October 1998), one of the conditions for the entitlement of persons of 18 years of age and older to the orphan s pension ( had become disabled before reaching 18 years of age ), which is established in Paragraph 1 (wording of 12 February 2004) of Article 35 of the Law on State Social Insurance Pensions, it is clear that, in the sense of Paragraph 1 (wording of 12 February 2004) of Article 35 of the Law on State Social Insurance Pensions, the persons who had become disabled before reaching 18 years of age are to be viewed as the ones with regard to whom commissions establishing disability had adopted a decision as to inter alia the fact of disability before they reached 18 years of age. 13. On 19 May 2005, the Seimas adopted the Republic of Lithuania Law on Amending the Law on State Social Insurance Pensions (under Article 2 thereof it came into force on 1 July 2005), by Article 1 whereof it amended and set forth the Law on State Social Insurance Pensions (wording of 18 July 1994 with subsequent amendments and/or supplements) in a new wording. Article 36 Persons Entitled to the Orphan s Pension (wording of 19 May 2005) of the Law on State Social Insurance Pensions prescribed: 1. The right to receive the state social insurance orphan s pension shall be granted to the deceased person s children and adopted children under 18 years of age as well as older ones where they had been recognised as incapacitated (until 1 July 2005 as disabled) before reaching 18 years of age and where they have been incapable or partially capable of working (disabled) all the time since reaching 18 years of age. Stepchildren of the deceased person, who were supported by their