THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

Transcription

1 Case No. 46/ / /2001-2/2002-6/ /2002 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA RULING ON THE COMPLIANCE OF PARAGRAPH 2 OF ARTICLE 11 (WORDING OF 21 DECEMBER 2000) AND PARAGRAPH 3 OF ARTICLE 13 OF THE REPUBLIC OF LITHUANIA S LAW ON THE STATE PENSIONS OF OFFICIALS AND SERVICEMEN OF THE INTERIOR, THE SPECIAL INVESTIGATION SERVICE, STATE SECURITY, NATIONAL DEFENCE, THE PROSECUTOR S OFFICE, THE DEPARTMENT OF PRISONS AND OF THE ESTABLISHMENTS AND STATE ENTERPRISES WHICH ARE SUBORDINATE TO THE LATTER WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA, ALSO ON THE COMPLIANCE OF SECTION 2 OF ITEM 25 (WORDING OF 25 MAY 2001) OF THE REGULATIONS FOR THE GRANTING AND PAYMENT OF STATE PENSIONS OF OFFICIALS AND SERVICEMEN OF THE INTERIOR, THE SPECIAL INVESTIGATION SERVICE, STATE SECURITY, NATIONAL DEFENCE, THE PROSECUTOR S OFFICE, THE DEPARTMENT OF PRISONS AND OF THE ESTABLISHMENTS AND STATE ENTERPRISES WHICH ARE SUBORDINATE TO THE LATTER AS APPROVED BY THE 20 JANUARY 1995 RESOLUTION (NO. 83) OF THE GOVERNMENT OF THE REPUBLIC OF LITHUANIA WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA AND ON THE COMPLIANCE OF ITEM 5 OF THE SAID REGULATIONS WITH PARAGRAPH 4 OF ARTICLE 16 OF THE REPUBLIC OF LITHUANIA S LAW ON THE STATE PENSIONS OF OFFICIALS AND SERVICEMEN OF THE INTERIOR, THE SPECIAL INVESTIGATION SERVICE, STATE SECURITY, NATIONAL DEFENCE, THE PROSECUTOR S OFFICE, THE DEPARTMENT OF PRISONS AND OF THE ESTABLISHMENTS AND STATE ENTERPRISES WHICH ARE SUBORDINATE TO THE LATTER 4 July 2003 Vilnius

2 2 The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Armanas Abramavičius, Egidijus Jarašiūnas, Egidijus Kūris, Kęstutis Lapinskas, Zenonas Namavičius, Augustinas Normantas, Jonas Prapiestis, Vytautas Sinkevičius, and Stasys Stačiokas The court reporter Daiva Pitrėnaitė Jadvyga Andriuškevičiūtė, a senior consultant to the Legal Department of the Office of the Seimas, acting as the representative of the Seimas of the Republic of Lithuania, a party concerned Irina Kudrevičiūtė, Head of the Law Application Department of the Legal Department of the Ministry of the Interior of the Republic of Lithuania, Svetlana Černuševič, Head of the Pensions Division of the Department of Social Insurance and Pensions of the Ministry of Social Security and Labour of the Republic of Lithuania, and Arūnas Sodonis, Assistant Head of the Law Application Department of the Legal Department of the Ministry of the Interior of the Republic of Lithuania, acting as the representatives of the Government of the Republic of Lithuania, a party concerned The Constitutional Court of the Republic of Lithuania, 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, on 12 June 2003, in its public hearing, considered case No. 46/ / /2001-2/2002-6/ /2002 subsequent to these petitions: 1) the petition of 18 September 2001 of the Vilnius Regional Administrative Court, a petitioner, requesting an investigation into whether Article 11 of the Republic of Lithuania s Law on the State Pensions of Officials and Servicemen of the Interior, the Special Investigation Service, State Security, National Defence, the Prosecutor s Office, the Department of Prisons and of the Establishments and State Enterprises Which are Subordinate to the Latter was not in conflict with the principles of a just civil society and state under the rule of law proclaimed in the Preamble to the Constitution of the Republic of Lithuania, as well as Paragraph 1 of Article 48 and Article 52 of the Constitution of the Republic of Lithuania, whether Item 25 of the Regulations for the Granting and Payment of State Pensions of Officials and Servicemen of the Interior, the Special Investigation Service, State Security, National Defence, the Prosecutor s Office, the Department of Prisons and of the Establishments and State Enterprises Which are Subordinate to the Latter as approved by the 20 January 1995 resolution (No. 83) of the Government of the Republic of Lithuania was not in conflict with the principles of a just civil society and state under the rule of law proclaimed in the Preamble to the Constitution of the Republic of Lithuania, as well as Paragraph 1 of Article 48 and Article 52 of the Constitution of the Republic of Lithuania; 2) the petition of 9 October 2001 of the Vilnius Regional Administrative Court, the petitioner, requesting an investigation into whether the first sentence of Paragraph 2 of Article 11 of

3 3 the Republic of Lithuania s Law on the State Pensions of Officials and Servicemen of the Interior, the Special Investigation Service, State Security, National Defence, the Prosecutor s Office, the Department of Prisons and of the Establishments and State Enterprises Which are Subordinate to the Latter was not in conflict with the principles of a just civil society and state under the rule of law proclaimed in the Preamble to the Constitution of the Republic of Lithuania, Paragraph 1 of Article 23 and Article 52 of the Constitution of the Republic of Lithuania; 3) the petition of 31 October 2001 of the Vilnius Regional Administrative Court, the petitioner, requesting an investigation into whether Paragraph 3 of Article 13 of the Republic of Lithuania s Law on the State Pensions of Officials and Servicemen of the Interior, the Special Investigation Service, State Security, National Defence, the Prosecutor s Office, the Department of Prisons and of the Establishments and State Enterprises Which are Subordinate to the Latter to the extent which establishes that the payment of the pension shall be no longer paid for a person who is no longer employed in these institution, and who is convicted for an intentional crime is not in conflict with Article 23 of the Constitution of the Republic of Lithuania; 4) the petition of 13 November 2001 of the Vilnius Regional Administrative Court, the petitioner, requesting an investigation into whether the provision of Paragraph 3 of Article 13 of the Republic of Lithuania s Law on the State Pensions of Officials and Servicemen of the Interior, the Special Investigation Service, State Security, National Defence, the Prosecutor s Office, the Department of Prisons and of the Establishments and State Enterprises Which are Subordinate to the Latter that granted state pension of officials and servicemen is no longer paid to the persons who are convicted for commission of intentional crimes is not in conflict with Paragraph 1 of Article 29 of the Constitution of the Republic of Lithuania; 5) the petition of 4 December 2001 of the Vilnius Regional Administrative Court, the petitioner, requesting an investigation into whether the provision retired officials and servicemen who, after granting state pensions of officials or servicemen for the service or disability pensions of officials or servicemen, receive the income on which contributions of state social pensions insurance are calculated and paid, or who receive sickness (including those paid by the employer for the days of sickness), maternity, maternity (paternity) or unemployment benefits of the state social insurance (hereinafter in this Article referred to as insured income), shall receive the part of the state pension of officials or servicemen which amounts to 30 percent of the pension established in Paragraph 2 of Article 11 of the Republic of Lithuania s Law on the State Pensions of Officials and Servicemen of the Interior, the Special Investigation Service, State Security, National Defence, the Prosecutor s Office, the Department of Prisons and of the Establishments and State Enterprises Which are Subordinate to the Latter was not in conflict with Paragraph 2 of Article 29 and Paragraph 1 of Article 48 of the Constitution of the Republic of Lithuania;

4 4 6) the petition of 26 July 2002 of the Supreme Administrative Court of Lithuania, the petitioner, requesting an investigation into whether Item 5 of the Regulations for the Granting and Payment of State Pensions of Officials and Servicemen of the Systems of the Interior, the Special Investigation Service, State Security, National Defence, the Prosecutor s Office, the Department of Prisons and of the Establishments and State Enterprises Which are Subordinate to the Latter as approved by the Resolution of the Government of the Republic of Lithuania (No. 83) On the Approval of the Regulations for the Granting and Payment of State Pensions to Officials and Servicemen of the Systems of the Interior, State Security, National Defence and Prosecutor s Office, the Department of Prisons and of the Establishments and State Enterprises Which are Subordinate to the Latter and the Establishment of the Time of Service Necessary in Order to Receive a Respective Percentage Extra Pay for the Years of Service of 20 January 1995 was not in conflict with Item 1 of Paragraph 4 of Article 16 of the Republic of Lithuania s Law on the State Pensions of Officials and Servicemen of the Interior, the Special Investigation Service, State Security, National Defence, the Prosecutor s Office, the Department of Prisons and of the Establishments and State Enterprises Which are Subordinate to the Latter. By the Constitutional Court s decision of 23 October 2002, these petitions of the Vilnius Regional Administrative Court and the Supreme Administrative Court of Lithuania have been joined into one case. The Constitutional Court has established: I 1. The Vilnius Regional Administrative Court, the petitioner, suspended the investigation of an administrative case by its 18 September 2001 ruling and applied to the Constitutional Court with the petition requesting an investigation into whether Article 11 of the Law on the State Pensions of Officials and Servicemen of the Interior, the Special Investigation Service, State Security, National Defence, the Prosecutor s Office, the Department of Prisons and of the Establishments and State Enterprises Which are Subordinate to the Latter (hereinafter also referred to as the Law; Official Gazette Valstybės žinios, 1994, No ) was not in conflict with the principles of a just civil society and state under the rule of law proclaimed in the Preamble of the Constitution, as well as with Paragraph 1 of Article 48 and Article 52 of the Constitution, whether Item 25 of the Regulations for the Granting and Payment of State Pensions of Officials and Servicemen of the Interior, the Special Investigation Service, State Security, National Defence, the Prosecutor s Office, the Department of Prisons and of the Establishments and State Enterprises Which are Subordinate to the Latter as approved by government resolution No. 83 of 20 January 1995

5 5 (hereinafter also referred to as the Regulations; Official Gazette Valstybės žinios, 1995, No ) was not in conflict with the principles of a just civil society and state under the rule of law proclaimed in the Preamble of the Constitution, as well as with Paragraph 1 of Article 48 and Article 52 of the Constitution. 2. The Vilnius Regional Administrative Court, the petitioner, suspended the investigation of an administrative case by its 9 October 2001 ruling and applied to the Constitutional Court with the petition requesting an investigation into whether the first sentence of Paragraph 2 of Article 11 of the Law was not in conflict with the principles of a just civil society and state under the rule of law proclaimed in the Preamble of the Constitution, as well as Paragraph 1 of Article 23 and Article 52 of the Constitution. 3. The Vilnius Regional Administrative Court, the petitioner, suspended the investigation of an administrative case by its 31 October 2001 ruling and applied to the Constitutional Court with the petition requesting an investigation into whether Paragraph 3 of Article 13 of the Law to the extent which establishes that the payment of a pension shall be no longer paid for a person who is no longer employed in these institution and who is convicted for an intentional crime, is not in conflict with Article 23 of the Constitution. 4. The Vilnius Regional Administrative Court, the petitioner, suspended the investigation of an administrative case by its 13 November 2001 ruling and applied to the Constitutional Court with the petition requesting an investigation into whether the provision of Paragraph 3 of Article 13 of the Law that granted state pension of officials and servicemen is no longer paid to the persons who are convicted for commission of intentional crimes is not in conflict with Paragraph 1 of Article 29 of the Constitution. 5. The Vilnius Regional Administrative Court, the petitioner, suspended the investigation of an administrative case by its 4 December 2001 ruling and applied to the Constitutional Court with the petition requesting an investigation into whether the provision retired officials and servicemen who, after designation of state pensions of officials or servicemen for the service or disability pensions of officials or servicemen, receive the income on which contributions of state social pensions insurance are calculated and paid, or who receive sickness (including those paid by the employer for the days of sickness), maternity, maternity (paternity) or unemployment benefits of the state social insurance (hereinafter in this Article referred to as insured income), shall receive the part of the state pension of officials or servicemen which amounts to 30 percent of the pension established in Paragraph 2 of Article 11 of the Law was not in conflict with Paragraph 2 of Article 29 and Paragraph 1 of Article 48 of the Constitution. 6. The Supreme Administrative Court of Lithuania, the petitioner, suspended the investigation of an administrative case by its 26 July 2002 ruling and applied to the Constitutional

6 6 Court with the petition requesting an investigation into whether Item 5 of the Regulations for the Granting and Payment of State Pensions of Officials and Servicemen of the Interior, the Special Investigation Service, State Security, National Defence, the Prosecutor s Office, the Department of Prisons and of the Establishments and State Enterprises Which are Subordinate to the Latter as approved by the Resolution of the Government of the Republic of Lithuania (No. 83) On the Approval of the Regulations for the Granting and Payment of State Pensions to Officials and Servicemen of the Systems of the Interior, State Security, National Defence and Prosecutor s Office and the Establishment of the Time of Service Necessary in Order to Receive a Respective Percentage Extra Pay for the Years of Service of 20 January 1995 was not in conflict with Item 1 of Paragraph 4 of Article 16 of the Republic of Lithuania s Law on the State Pensions of Officials and Servicemen of the Interior, the Special Investigation Service, State Security, National Defence, the Prosecutor s Office, the Department of Prisons and of the Establishments and State Enterprises Which are Subordinate to the Latter (13 December No. I-693). II The petitions of the petitioners are based on the following arguments. 1. The 18 September 2001 ruling of the Vilnius Regional Administrative Court states that the legal regulation established by the Law, according to which an official retired before the entry into force of the Law must choose either to refuse the pension or the work, limits the freedom of an individual to choose work or business and violates the right of the citizens to receive the pension guaranteed by the state, and is in conflict with the principles of a just civil society and state under the rule of law. 2. The 9 October 2001 ruling of the Vilnius Regional Administrative Court states that the legal regulation established by the Law, according to which the paid pension was reduced down to 30 percent of its former size to officials who had retired before the entry into force of the Law, violates the principles of a just civil society and state under the rule of law, the right to property and the duty of the state to ensure the most favourable regime of implementation of the right of ownership, to defend and protect ownership against illegal encroaching upon it and the right of the citizens to receive the pension guaranteed by the state. 3. The 31 October 2001 ruling of the Vilnius Regional Administrative Court states that the pension of the official is granted in case of certain interconnection of facts: (1) specific service related to unfixed working hours, increased risk of injury or death, etc.; (2) work record of the established length. In the opinion of the petitioner, not granting the pension of the official when an intentional crime is committed by an official in service is justifiable (the name of the official is discredited). However, the petitioner doubts as to the termination of payment of the granted pension to the official after his retirement (upon termination of work relations) because the interconnection

7 7 of juridical facts, which served as the grounds for granting the pension, persists. The petitioner notes that, according to Paragraph 2 of Article 13, the pension of the official is usually granted for the rest of his life, therefore, the right to permanent income from this pension should be regarded as property. Article 23 of the Constitution stipulates the principles of inviolability and legal protection of ownership, thus, the court had doubts if Paragraph 3 of Article 13 of the Law to the extent establishing that the payment of the pension shall be no longer paid for a person who is convicted for an intentional crime is not in conflict with Article 23 of the Constitution. 4. The 13 November 2001 ruling of the Vilnius Regional Administrative Court maintains that the provision of Paragraph 3 of Article 13 of the Law, according to which the payment of the state pension of officials and servicemen shall be discontinued to persons who have been convicted for commission of intentional crimes, creates legal effects (termination of the payment of the pension) to the persons who had been granted the state pensions of officials and servicemen before the entry into force of the Law on 1 January 1995 and who had committed intentional crimes before that date, i.e. to the persons who were not aware of the said provision of the Law before granting the pension and the commission of an intentional crime. The petitioner doubts as to the compliance of the said provision of Paragraph 3 of Article 13 of the Law with the provision that the law has no retroactive power. It is also noted in the petition of the petitioner that the impugned provision of the Law that the payment of state pension of officials and servicemen shall be discontinued to persons who have been convicted for commission of intentional crimes is not related to the disappearance of previous record. Thus, according to the indication of conviction for intentional crimes, this provision of the Law creates an unequal status of persons convicted for commission of intentional crimes if compared to other persons who, under other laws of the Republic of Lithuania, are held not convicted upon disappearance or abolishment of previous record. 5. The 4 December 2001 ruling of the Vilnius Regional Administrative Court maintains that the legislature related the amount of the paid state pension of the official with possession of certain income by the impugned provision of the Law. The court has doubts if a working person who is paid the pension of the official is not discriminated on the grounds of social status. Big reduction of the amount of the pension can cause a compulsory decision of the pensioner to refuse the job. Under Paragraph 1 of Article 48 of the Constitution, each human being may freely choose a job and business. The petitioner has doubts if the impugned provision of the Law does not restrict the right of a working pensioner to freely choose a job and business, who is paid the state pension of the official, because of his social status. The petitioner also doubts if loosing of a part of the pension only on the grounds of the changed social status of the pensioner is not in conflict with Paragraph 2 of Article 29 of the Constitution. 6. The 26 July 2002 ruling of the Supreme Administrative Court of Lithuania notes that,

8 8 under Paragraph 4 of Article 16 of the Law, the time periods specified in Items 1 6 of this Paragraph, which had been prior to the day of the entry into force of the Law (1 January 1995), are equalled to the time of service on the grounds of which pensions are granted to the persons working as officials or servicemen of the systems of the interior, state security, national defence, prosecutor s office, the Special Investigation Service, the Department of Prisons and of the establishments and state enterprises which are subordinate to the latter. Thus, under the Law, specified time periods are included into the length of service of persons admitted to work as officials and servicemen irrespective of the fact whether they were admitted to service before or after the entry into force of the Law. Item 5 of the Regulations as approved by government resolution No. 83 of 20 January 1995 provides that the time period of service specified in Article 16 of the Law shall be included to officials and servicemen admitted to the service in the systems of the interior, state security, national defence, and prosecutor s office before the day of the entry into force of the Law. In the opinion of the petitioner, the circle of persons, whose service record could include the time period specified in Item 1 of Paragraph 4 of Article 16 of the Law, is thus narrowed, therefore, the petitioner doubts if Item 5 of the Regulations is not in conflict with Item 1 of Paragraph 4 of Article 16 of the Law. III In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from the representative of the party concerned the Seimas J. Andriuškevičiūtė, a senior consultant to the Legal Department of the Office of the Seimas, and the representatives of the party concerned the Government S. Černuševič, Head of the Pensions Department of the Department of Social Insurance and Pensions of the Ministry of Social Security and Labour, I. Kudrevičiūtė, Head of the Law Application Division of the Legal Department of the Ministry of the Interior, and A. Sodonis, Assistant Head of the Law Application Division the Legal Department of the Ministry of the Interior. 1. In the explanations of 29 November 2001, 14 January 2002, 28 May 2002, and 4 June 2003 of the representative of the party concerned the Seimas J. Andriuškevičiūtė it is maintained that the content of the rights of the owner is constituted by the right to possess, use, and dispose of his property. The state pension of officials and servicemen may be regarded as property only after it is granted and paid according to the procedure established by the laws. Before that the recipient of the pension may not be regarded as the owner of the pension. Only the sum of the payment (pension, benefit) which is established according to the law may be recognised as property of a person. The legal provisions which regulate the amount of the pension may not be regarded as ones violating the right of ownership. If the funds whose payment is not provided for by the law were recognised as property of an individual, the concept of the right of ownership would be denied

9 9 in essence. The right to the state pension of officials and servicemen arises on the grounds of the law, therefore, in its essence, it differs from the pension which is paid on the basis of agreement or other insurance payments. The Law provides for certain conditions upon fulfilment of which persons acquire the right to the state pension of officials or servicemen, i.e. the state does not pay insurance payments to the accounts of insurance companies, funds dedicated to this purpose, or of concrete individuals. An individual acquires the property right to the state pension of officials or servicemen only upon its payment. It is not a property right from the point of view of civil law. In the opinion of J. Andriuškevičiūtė, the jurisprudence of the Constitutional Court also permits concluding that the pension may be reduced according to the procedure established by law. After recognition that the pension, though it is property, may be reduced, it is necessary to observe the constitutional requirement that property may only be seized for the needs of society in accordance with the procedure established by law and shall be justly compensated for, thus, it should be concluded that the pension is the property of a person from the moment when it is paid out in the amount provided for by the law. Some payments are allotted additionally under social insurance guarantees which are the same for all residents and are paid from the funds of the State Budget. State pensions of officials or servicemen belong to this group of payments. The purpose of the pension of officials or servicemen is to compensate the income which has been lost due to termination of service relationships. However, if an official or serviceman continues his service or works, he possesses the income and, thus, the state should not be obligated to provide him with social assistance. The petitioner emphasised the limitation on the amount of the pension related only with the remuneration for the job. Paragraph 2 of Article 11 of the Law also provides for a limitation on the amount of the pension of officials or servicemen who have retired from service and who receive sickness, maternity, maternity (paternity) or unemployment benefits of the state social insurance after granting state pensions for service of the officials or servicemen or state disability pensions of officials or servicemen. Under Paragraph 1 of Article 11 of the Law, state pensions are not paid to the officials and servicemen who are in service. This provision in its essence does not differ from the rules established in Paragraph 2 of Article 11 as it must indirectly be related to the income. Paragraph 1 of Article 48 of the Constitution is understood as the right of a person to decide himself whether to work or not, whether to engage in business or not. Legal acts establish certain requirements to a person who wishes to work and they may not be regarded as limiting the right of the person to freely choose a job and business. An analogous assessment should be given to the provisions of the Law limiting the amount of the pension according to the insured income received. While assessing the impugned provisions of the law and the substatutory act, attention should be paid to the fact that the rules on the payment of pensions for the officials and servicemen permit a person to choose whether to remain in service, or to receive the pension, but

10 10 they do not allow him to work and to receive the pension. Constitutional provisions permit maintaining that the opportunity of the free choice of a human being is not unlimited. An analysis of provisions of the Constitution gives the grounds to maintain that the provisions of the Constitution which consolidate the right of a human being to work, pension and social assistance do not attempt to guarantee absolute rights to a person, however, they consolidate the guarantee that the state will not deny these rights. According to the representative of the Seimas, the provisions of Article 11 of the Law and Item 25 of the Regulations safeguard the interest of society. The state has the right to establish additional special conditions for the implementation of this right, but the extent of these limitations should not deny the limited rights in general. The representative of the party concerned notes that the legislature is empowered to establish which persons shall not be granted pensions, while the state has established guarantees for the implementation of these rights by law. In the opinion of the representative of the Seimas, the limitation on the amount of pensions established in Article 11 of the Law and Item 25 of the Regulations or not payment of these pensions in cases specified in this article is not in conflict with Article 52 of the Constitution. In the opinion of the representative of the party concerned, the impugned provision of Paragraph 3 of Article 13 of the Law does not violate the protection of the right of ownership consolidated in Article 23 of the Constitution, because the state pension of officials or servicemen may be considered property only after it is granted and paid according to the procedure established by the laws. In the opinion of the representative of the party concerned, the impugned provision of Paragraph 3 of Article 13 of the Law is not in conflict with Article 29 of the Constitution, because the legal status of officials or servicemen both on and off duty is special, while liability is applied for the behaviour discrediting the name of the official or soldier on as well as off duty. According to the representative of the party concerned J. Andriuškevičiūtė, the provisions of Paragraph 1 of Article 29 of the Constitution would be violated if the granting and payment of pensions of officials or servicemen depended on the time of commission of an intentional criminal deed, i.e. whether the crime was committed while on service or after retirement. 2. In the explanations of the representative of the party concerned the Government S. Černuševič it is maintained that issues related to the right of a human being to freely choose a job are the object of regulation of labour law, but not of the law on pensions. In the opinion of the representative of the party concerned, the impugned provisions of Article 11 of the Law and Item 25 of the Regulations are not in conflict with Paragraph 1 of Article 48 of the Constitution. All state pensions including those of officials and servicemen are of different kind than social insurance pensions which are based on the principles of social insurance, and the granting and payment of pensions of this kind are established by different laws. Payment of state pensions from the funds of

11 11 the State Budget depends on the capabilities of the state to render state support to persons who have not yet reached the age of the old age pension or have not been recognised handicapped, therefore, the legislature, taking account of real financial opportunities, has the right to establish the manner of payment of the state pensions of officials and servicemen to working recipients of these pensions. The impugned provisions of Item 25 of the Regulations only specify the implementation of the norm of the Law, therefore, is not in conflict with Article 52 of the Constitution. In the opinion of the representative of the party concerned, only the received pension should be regarded as property, therefore, the impugned provisions of the Law are not in conflict with the principles of a just civil society and state under the rule of law consolidated in the Constitution. 3. In the explanations of the representative of the party concerned the Government I. Kudrevičiūtė it is maintained that the limitation on the rights to work, pensions and social assistance in cases established by the law may not be considered an essential denial of these rights, because these rights are not absolute legal categories. The rights to work, pensions and social assistance are not completely independent from the state and, taking account of economic and social level of the state, they may be subject to limitation or not granted. The impugned provisions of Article 11 of the Law and Item 25 of the Regulations guarantee the interests of society. The state is obligated to support only members belonging to certain category, not all members of the society, and the ensuring of this interest is really substantiated and lawful. In the opinion of the representative of the party concerned, the impugned provisions of Article 11 of the Law and Item 25 of the Regulations do not violate the Constitution. 4. In the explanations of the representative of the party concerned the Government A. Sodonis it is maintained that the legislature has established a general rule that only the service to the State of Lithuania shall be included in the time of service that is required for granting the state pension of officials and servicemen. The representative of the Government notes that before the entry into force of the Law, the relationships of state pensions of officials and servicemen were regulated by the Government Resolution (No. 281) On the Procedure of Pension Maintenance of the Employees, Officials and Servicemen of the Systems of the Interior, State Security, National Defence, and the Department of the Security of the Supreme Council of 17 July While applying this resolution, the time of service in corresponding services of the USSR and its republics was also included into the time of service. In order to protect the legitimate expectations of officials and servicemen who continued or began their service as of the restoration of the independence of Lithuania prior to 1 January 1995, the legislature established an exception to the said general rule in Item 1 of Paragraph 4 of Article 16 of the Law, i.e. that the time of service of these officials and servicemen in corresponding services of other states shall be equalled to the time of service required for granting the state pension of officials and servicemen. Therefore, in the opinion of the

12 12 representative of the party concerned, Item 1 of Paragraph 4 of Article 16 of the Law should be applied only to the officials and servicemen who started their service before the Law came into force. Thus, Item 5 of the Regulations is not in conflict with Item 1 of Paragraph 4 of Article 16 of the Law. IV In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from L. Linkevičius, Minister of the National Defence of the Republic of Lithuania, V. Blinkevičiūtė, Minister of Social Security and Labour of the Republic of Lithuania, J. Bernatonis, the then Minister of the Interior of the Republic of Lithuania, V. Bulovas, Minister of the Interior of the Republic of Lithuania, G. Švedas, Vice-minister of Justice of the Republic of Lithuania, P. Koverovas, State Secretary of the Ministry of Justice of the Republic of Lithuania, A. Klimavičius, Prosecutor General of the Republic of Lithuania, M. Laurinkus, Director General of the State Security Department, A. Pocius, Deputy Director General of the said department, V. Junokas, Director of the Special Investigation Service, D. Prevelis, the then Director of the Board of the State Social Insurance Fund, Č. Zabulėnienė, acting Director of the Board of the State Social Insurance Fund, D. Žalimas, a consultant of the Minister of National Defence of the Republic of Lithuania. V At the Constitutional Court hearing the representatives of the parties concerned the Seimas and the Government virtually reiterated the arguments set forth in the written explanations. The Constitutional Court holds that: I 1. On 13 December 1994 the Seimas adopted the Republic of Lithuania s Law on the State Pensions of Officials and Servicemen of the Interior, State Security, National Defence, and the Prosecutor s Office. This law came into force on 1 January This law has been amended and/or supplemented more than once. The title of the Law was supplemented by words Special Investigation Service by Article 1 of the 2 May 2002 Republic of Lithuania s Law on the Supplement and Amendment of the Title, Articles 1, 3, 6, 12, and 16 of the Law on the State Pensions of Officials and Servicemen of the Interior, State Security, National Defence, and the Prosecutor s Office. The title of the Law was once again supplemented by Article 1 of the 13 July 2002 Republic of Lithuania s Law on the Supplement and Amendment of the Title, Articles 1, 3, 6, 12, and 16 of the Law on the State Pensions of Officials and Servicemen of the Interior, the Special Investigation Service, State Security, National Defence, and the Prosecutor s

13 13 Office and set forth as follows: The Republic of Lithuania s Law on the State Pensions of Officials and Servicemen of the Interior, the Special Investigation Service, State Security, National Defence, the Prosecutor s Office, the Department of Prisons and of the Establishments and State Enterprises Which are Subordinate to the Latter. 2. The Law the provisions of which are impugned, regulates the relationships of the granting and payment of the state pensions of officials and servicemen of the interior, the Special Investigation Service, state security, national defence, prosecutor s office, the Department of Prisons and of the establishment and state enterprises which are subordinate to the latter. Under the Republic of Lithuania s Law on State Pensions, the state pension of officials and servicemen is one of the types of state pensions. Apart from this state pension, the Law on State Pensions establishes the state pension of the President of the Republic, state pensions of the first and second degree of the Republic of Lithuania, state pensions of victims, scientists, and judges. According to the Law on State Pensions, some of the pensions established therein are granted and paid for special merits to Lithuania (for example, state pensions of the first and second degree of the Republic of Lithuania). The granting and payment of other state pensions is related to the corresponding service (for example, service in the systems of the Interior, prosecutor s office, etc.) or work (for example, scientific work), some other state pensions are of compensational nature and are paid to persons who have been recognised victims (for example, persons who became disabled because of the aggression carried out on January 1991 and later events, participants of the resistance to the occupations of , etc.). The relationships of the granting and payment of different types of state pensions are also regulated by the Law on the President of the Republic of Lithuania, the Law on the State Pensions of Judges of the Republic of Lithuania, the Republic of Lithuania s Provisional Law on the State Pensions of Scientists. The Law on the State Pensions of Officials and Servicemen of the Interior, the Special Investigation Service, State Security, National Defence, the Prosecutor s Office, the Department of Prisons and of the Establishments and State Enterprises Which are Subordinate to the Latter establishes the persons who have the right to receive the state pension of officials and servicemen, the grounds for the granting and payment thereof, conditions, and amounts of this pension. Under the Law, the following persons have the right to the state pension of officials and servicemen: officials of the Ministry of the Interior, the police, the State Border Security Service and other institutions of the Interior, officers of service units, servicemen and non-commissioned officers of re-enlistee service of the interior, officials of the Special Investigation Service, servicemen of professional military service, officials of the system of the State Security Department, officials of the prosecutor s office, officials of the Department of Prisons and of the

14 14 establishments and state enterprises which are subordinate to the latter. In case of death of these persons on duty or during the training for reasons related to the service or training, their spouses and children have the right to receive the state widows and orphans pensions of officials and servicemen. The state pension of officials and servicemen is granted and paid to the said officials and servicemen upon their retirement if they meet the conditions established by the Law. Such conditions are of varied nature: the person has either served a certain number of years, or has served a certain number of years and reached the age of old age pension, or the person is recognised disabled for reasons related to the service, or has been dismissed from service because of health, etc. Under the Law, the state pension of officials and servicemen is not granted and the granted one is no longer paid to individuals who are convicted for commission of intentional crimes. The Law provides that the officials and servicemen who acquire the right to the state pension of officials and servicemen do not lose the right to other state pensions providing the laws do not provide otherwise. According to the valid laws, the said officials and servicemen also receive the state social insurance pension provided they meet the conditions required in order to receive these pensions. It is noteworthy that the state pensions of officials and servicemen are paid from the State Budget of the Republic of Lithuania. The pensions to the officials and servicemen and their families are granted and paid by the Ministry of the Interior, the Special Investigation Service, the State Security Department, the Ministry of National Defence, the Office of the Prosecutor General or the Department of Prisons depending on which of these institutions the recipient of the pension served in last. Under the valid laws, the granting and payment of the state pension of officials and servicemen is based neither on contributions of social insurance, nor on any other special payments. The state pension of officials and servicemen is calculated and paid while taking account of the amount of remuneration of the official or serviceman. Meanwhile, the state social insurance old age pension and the state social insurance disability pension, which are established in the Republic of Lithuania s Law on State Social Insurance Pensions, are paid from the budget of the State Social Insurance Fund of the Republic of Lithuania. The granting and payment of the state social insurance old age pension, unlike the state pensions (state pensions of officials and servicemen among them), are based on social insurance contributions which are paid by employers and employees themselves. Thus, in this case the individual himself participates to some extent in the creation of material preconditions for the payment of this pension. The amounts of social insurance contributions are the grounds for differentiation of amounts of state social insurance old age pensions. Amounts of social insurance disability pensions are not always directly related with the payment of social insurance

15 15 contribution. 3. The petitioner the Vilnius Administrative Regional Court: a) by its ruling of 18 September 2001 requests an investigation into whether Article 11 of the Law (wording of 21 December 2000) is not in conflict with the principles of a just civil society and state under the rule of law which are consolidated in the Preamble of the Constitution, Paragraph 1 of Article 48 and Article 52 of the Constitution; b) by its ruling of 9 October 2001 requests an investigation into whether the first sentence retired officials and servicemen who, after designation of state pensions of officials or servicemen for the service or disability pensions of officials or servicemen, receive the income on which contributions of state social pensions insurance are calculated and paid, or who receive sickness (including those paid by the employer for the days of sickness), maternity, maternity (paternity) or unemployment benefits of the state social insurance <...> shall receive the part of the state pension of officials or servicemen which amounts to 30 percent of the pension of Paragraph 2 of Article 11 of the Law (wording of 21 December 2000) is not in conflict with the principles of a just civil society and state under the rule of law which are consolidated in the Preamble of the Constitution, Paragraph 1 of Article 23 and Article 52 of the Constitution which consolidates the state guaranteed right of citizens to receive old age and disability pensions; c) by its ruling of 4 December 2001 requests an investigation into whether the provision retired officials and servicemen who, after designation of state pensions of officials or servicemen for the service or disability pensions of officials or servicemen, receive the income on which contributions of state social pensions insurance are calculated and paid, or who receive sickness (including those paid by the employer for the days of sickness), maternity, maternity (paternity) or unemployment benefits of the state social insurance, <...> shall receive the part of the state pension of officials or servicemen which amounts to 30 percent of the pension of Paragraph 2 of Article 11 of the Law (wording of 21 December 2000) is not in conflict with Paragraph 2 of Article 29 and Paragraph 1 of Article 48 of the Constitution. The petitioner the Vilnius Administrative Regional Court: a) by its ruling of 31 October 2001 requests an investigation into whether Paragraph 3 of Article 13 of the Law to the extent establishing that the payment of the granted state pension of officials and servicemen is no longer paid to a person who is convicted for commission of an intentional crime is not in conflict with Article 23 of the Constitution; b) by its ruling of 13 November 2001 requests an investigation into whether the provision of Paragraph 3 of Article 13 of the Law that the granted state pension of officials and servicemen is no longer paid to a person convicted for commission of an intentional crime is not in conflict with Paragraph 1 of Article 29 of the Constitution.

16 16 4. By its resolution No. 83 of 20 January 1995, the Government approved the Regulations for the Granting and Payment of State Pensions of Officials and Servicemen of the Systems of the Interior, State Security, National Defence, and the Prosecutor s Office. These regulations have been amended and/or supplemented more than once. The title of these Regulations was amended by Item of the Government Resolution (No. 861) On a Partial Amendment of the Resolution of the Government of the Republic of Lithuania (No. 83) On the Approval of the Regulations for the Granting and Payment of State Pensions to Officials and Servicemen of the Systems of the Interior, State Security, National Defence and Prosecutor s Office and the Establishment of the Time of Service Necessary in Order to Receive a Respective Percentage Extra Pay for the Years of Service of 20 January 1995 of 18 July 2000 and they were titled the Regulations for the Granting and Payment of State Pensions of Officials and Servicemen of the Interior, the Special Investigation Service, State Security, National Defence, the Prosecutor s Office, the Department of Prisons and of the Establishments and State Enterprises Which are Subordinate to the Latter. The Vilnius Administrative Regional Court, the petitioner, by its ruling of 18 September 2001 requests an investigation into whether Item 25 of the Regulations is not in conflict with Paragraph 1 of Article 48, Article 52 of the Constitution, and the constitutional principle of a state under the rule of law. The Supreme Administrative Court of Lithuania, the petitioner, by its ruling of 26 July 2002 requests an investigation into whether Item 5 of the Regulations is not in conflict with Item 1 of Paragraph 4 of Article 16 of the Law. 5. Taking account of the specified object of investigation and arguments set forth in the petitions of the petitioners, the Vilnius Administrative Regional Court and the Supreme Administrative Court of Lithuania, the Constitutional Court will not investigate the compliance of the whole legal regulation of the state pensions system or its separate elements with the Constitution except those aspects which the petitioners have specified in their petitions. II 1. Article 52 of the Constitution provides: The State shall guarantee the right of citizens to receive old age and disability pensions, as well as social assistance in the event of unemployment, sickness, widowhood, loss of breadwinner, and other cases provided for in laws. Article 52 of the Constitution establishes the grounds for pensionary maintenance and social assistance. According to this article of the Constitution, the legislature must establish by law the old age and disability pensions, as well as social assistance in the event of unemployment, sickness, widowhood, and loss of breadwinner. Under the Constitution, other pensions or social assistance than those specified in Article 52

17 17 of the Constitution may be established by law (the Constitutional Court s rulings of 23 April 2002 and 25 November 2002). Pensions for certain service to the State of Lithuania may also be established by law. While establishing such a pension for service, the legislature is bound by the rules and principles of the Constitution, as well as the striving for an open, just and harmonious civil society and a state under the rule of law which is consolidated in its Preamble. According to the Constitution, the grounds for pensionary maintenance, the persons who are granted and paid pensions, the conditions for the granting and payment of pensions, as well as the amounts of the pensions are established by law only. While adopting a law that establishes which persons are granted and paid pensions for service, the grounds and conditions for the granting and payment of these pensions, as well as the amounts of this pension, the legislature in every case must observe the rules and principles of the Constitution, and the imperatives of an open, just, harmonious civil society and state under the rule of law which are consolidated in the Constitution. It should be noted that if the legislature, while regulating the pensionary maintenance of officials and servicemen, did not observe the Constitution, such pensionary maintenance could not be guaranteed under the Constitution. In the context of the case under consideration it must be noted that the legislature, while establishing which persons are granted and paid pensions for service, the grounds and conditions for the granting and payment of these pensions, as well as the amounts of this pension, is bound by the constitutional imperative of social harmony, the principles of justice, reasonableness and proportionality. If the legislature, while establishing the pension for service of officials and servicemen, did not take account of the specific character of the service of officials and servicemen, the nature of concrete duties and other important circumstances, the granting and payment of such a pension would become a privilege. It should be noted that the legislature, while establishing the pension of officials and servicemen for service, may not establish the legal regulation, according to which the person would be able to retire unreasonably early, or an unreasonably short time period of service or work required in order to receive such pension would be established, or the amount of the remuneration of the official or serviceman would not be taken into consideration while establishing the amount of the granted pension, or the principles of justice, reasonableness and proportionality would be violated in some other way. It must also be noted that the state pension of officials and servicemen differs in its nature and character from state social insurance pensions (thus, from the old age pension as well). It has been mentioned that this pension is granted to persons for their service to the State of Lithuania and is paid from the State Budget. The indicated peculiarities imply that the legislature is also empowered to establish the legal regulation under which this pension is not granted to persons who