LitHUaNia, REPUBLiC OF

tHE RiGHt tO SOCiaL SECURitY iN tHE CONStitUtiON OF tHE REPUBLiC OF LitHUaNia

Dr. ViDa petrylaite

The fundamental human, social and citizen’s rights were formulated in the Constitution of the Republic of Lithuania adopted by referendum in 25 October 1992. The Constitution is a legal act of supreme legal power. No law or other legal act may be in conflict with it because the Constitution lays down the legal basis for the rest of all Lithuanian legislation and determines the nature of all legal branches, including social security law. Thus, the Constitution provides several legal norms that have great importance to the whole system of further legislation regulating specific social security rights in Lithuania. The constitutional jurisprudence concerning social security is linked with different global and national processes. The economic crisis has also asked to amend or even to reinterpret already existing practice.

This article aims at providing basic principles of social security rights established in the Constitution and their interpretation in constitutional jurisprudence. Some aspects of the constitutional doctrine of social security rights, which were determined by changes in the economy, are also discussed.

1. The constitutional guarantees of social security rights

Different provisions of social rights are included in Lithuanian Constitution. This inclusion has a strong historical background. Certain provisions concerning social rights were presented in the Constitutions of 1922, 1928 and 1938.

The Constitution of 1922 ¹ already contained in itself special chapter No XIII “Social Security”, which established different rights of social security: public health, social welfare for families with children, security in case of old-age, sickness, unemployment and accidents at work. Provisions concerning labour regulation, family matters and education guarantees also were set in this Chapter. The same provisions remained in the text of the Constitution of 1928.

The Constitution of 1938 ² presented very similar provisions concerning social security rights in the chapter No IX “Social Security”, with the exception of right to social security in case of unemployment.

Differently from previous Constitutions, the chapter “Social Security” was devoted only to the guarantees of social security. Provisions concerning labour regulation, family matters and education were set in different specific chapters.

1 http://www3.lrs.lt/pls/inter_archyvas/dokpaieska_arch.showdoc_l?p_id=112956&p_query=&p_tr2=2.

2 http://www3.lrs.lt/pls/inter_archyvas/dokpaieska_arch.showdoc_l?p_id=113395&p_tr2=2.

Together with restoration of independence, further restatement and elaboration of social rights took place in the Constitution of 1992. ³ The Lithuanian Constitution of 1992 provides broader list of guarantees of social rights if comparing to the first Constitutions. Though, the very composition of the text of the Constitution is different – there is no single chapter which would be devoted to regulation of social rights.

Specific rights to social security and related rights are distributed in different chapters of the Constitution.

Article 29 of the Constitution states that all people shall be equal before the law, the court and other state institutions and officers (Chapter II. The Human Being and the State).

Article 38 of the Constitution states that the family shall be the basis of society and the state. Family, motherhood, fatherhood and childhood shall be under the care and protection of the state (Chapter III.

Society and the State).

Article 39 of the Constitution states that the state shall take care of families bringing up children at home and shall render them support in the manner established by law. The law shall provide for paid maternity leave before and after childbirth, as well as for favourable working conditions and other privileges (Chapter III. Society and the State).

Article 48 of the Constitution states that every person may freely choose an occupation or business and shall have the right to adequate, safe and healthy working conditions; adequate compensation for work; and social security in the event of unemployment (Chapter IV. National Economy and Labour).

Article 52 of the Constitution states that the state shall guarantee the right of citizens to old-age and disability pension as well as to social assistance in the event of unemployment, sickness, widowhood, loss of breadwinner and other cases provided by law (Chapter IV. National Economy and Labour).

Article 53 of the Constitution states that the state shall take care of people’s health and shall guarantee medical aid and services in the event of sickness. The procedure for providing medical aid to citizens free of charge at state medical facilities shall be established by law (Chapter IV. National Economy and Labour).

It should be noted, that the provisions of the Constitution without any initial intend, set almost the full list of ‘standard’ social risks provided in international legal acts: ⁴ medical care – Article 53;

sickness benefit – Article 52; unemployment benefit – Article 52 and Article 48; old-age – Article 52;

family benefit – Article39; maternity – Article 39; invalidity – Article 52; survivors’ benefit – Article 52;

with the exception of not mentioning directly employment injury – Article 48.

Upon restoration of the independent state of Lithuania, it became evident that the inherited system of social guarantees did not correspond the relations of market economy. Devising a social protection corresponding changed economic and social living conditions, a model of social protection was chosen according to which state social insurance acquires the main role.

The principles of the relations of state social maintenance are consolidated by the Law on the Principles of State Social Security System ⁵ passed on 23 October 1990 whereby it is established that State Social Maintenance System is the basis of State Social Welfare. The law also provides that along with this system, other public and private systems of social maintenance may exist.

2. The scope of the material and personal social security rights guaranteed by the Constitution

Constitutional case law gives an explicit understanding of the meaning of principal constitutional provisions. The jurisprudence of the Constitutional Court established quite a broad understanding of specific social rights mentioned in the Constitution.

3 Parliamentary record, 1992, No 11. Text in English: http://www3.lrs.lt/ pls/inter3/dokpaieska.showdoc_l?p_id=21892.

4 E.g. ILO Convention concerning Minimum Standards of Social Security of 1952; Council of Europe European Code of Social Security of 1964.

5 Parliamentary record, 1993, No 1. Text in English: http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=252627.

Lithuania

The social nature of the state

The social nature of the state is very important. Even though there is no such direct notion of the social nature of the state of Lithuania in the Constitution, the Constitutional Court has developed that principle in its jurisprudence. The main constitutional provision allowing recognizing the social state’s conception is set in the article 52 of the constitution.

Article 52 of the Constitution stipulates that the State shall guarantee the right of citizens to old age and disability pension, as well as to social assistance in the event of unemployment, sickness, widowhood, loss of breadwinner, and other cases provided by law. These provisions express social character of the state, while social maintenance, i.e. contribution of the society to maintenance of such its members who are incapable to provide themselves from work or other means or who are not sufficiently provided due to important reasons provided by law, is recognised as having the status of a constitutional value.

This is in line with the contemporary concept of functions of the state, as well as the constitutional tradition of the Lithuanian State of the 20th century, the origins of which is in the 1922 Constitution which provided that the state, pursuant to certain laws, shall protect employees in the event of sickness, old age, accident or unemployment.

Alongside, it should be noted that the provisions of Article 52 of the Constitution guaranteeing citizens’ right to social maintenance, are in line with the principles of social protection consolidated in international legal acts, too.

The solidarity

Measures of social protection express the idea of public solidarity. They help a person to protect himself from possible social risks. Of course, in a civic society the principle of solidarity does not deny personal responsibility for one’s destiny. This is the most important condition of the expression of a free human being. The principle of solidarity and its relation to personal responsibility were describet by the Constitutional Court in several cases.⁶ The recognition of mutual responsibility of a person and the society is important in ensuring social harmony, guaranteeing freedom of a person and possibility to protect oneself from difficulties which could not be overcome by one person alone. Therefore the state creates a system of social maintenance which would help to maintain living conditions corresponding to personal dignity, and, in case of need, would render a person necessary social help. According the ruling of Constitutional Court, the principle of solidarity in Lithuanian law system is mostly expressed by the model of state social insurance (so-called “pay as you go” model).

This model is based on the principles of universality and solidarity. The principle of universality means that all working persons (with some exceptions) who receive insured income from their activity, must pay state social insurance contributions, while the principle of solidarity means that the working (pursuing active economic activities) persons who receive insured income contribute to accumulation of social insurance funds, thus creating preconditions for paying payments to those persons, who must be paid the payments provided for in the law due to the fact that they have reached the pensionable age for old age pension, disability in their regard has been recognised or there are other reasons provided for in the law (inter alia, when these members of society cannot work and provide for themselves due to the objective reasons provided for in the law). On the other hand, the solidarity principle also implies that the persons who pay state social insurance contributions have the right to receive, in cases and under conditions provided for in the law, to receive themselves state social insurance pensions and/or other payments, thus, they acquire a corresponding legitimate and reasonable expectation.

6 Ruling of Constitutional Court of 12 March 1997 on State Social Insurance Pensions; Ruling of Constitutional Court of 26 September 2007 on State Social Insurance Contributions.

Forms of social security

As a rule, social maintenance is rendered in 2 forms – social insurance and social assistance – for persons who due to the reasons that do not depend on them are incapable to provide themselves with sufficient means for the living.

The sources of social insurance are associated with the recognition of the right of employees to certain payments, as well as to old age pension. To implement this right social insurance funds are founded which are formed from contributions of employers and employees. As a rule, a certain part of means are allotted to these funds by the state. The contributions of employers and employees are calculated taking account of remuneration for work while sizes of would-be pensions or benefits are associated with the said contributions. This is an essential characteristic of social insurance. In this it differs from social assistance which is rendered to persons who need it but who are not entitled to get maintenance from a social insurance fund, or who get some means from it but they are insufficient for living. The source of social assistance is budgets of either the state or local governments.

Importance of social insurance as form of social security

A special place in the relations of social insurance is occupied by the ensured working persons.

First, with their work they create material preconditions for social insurance. The main portion of the budget of the Social Insurance Fund is comprised of deductions from calculated remuneration for work.

On the other hand, the purpose of social insurance is to provide these persons with finances and services necessary for living if, for reasons established by law, they are unable to subsist on their earned income or other income, or for valid reasons established by law, they have additional expenditures.

Therefore the social insurance system established by legal norms is meaningful only in such a case when it ensures the constitutional right to social maintenance of the aforesaid persons.

It should be noted that the purpose of the designed social insurance system is not only to pay social insurance pensions and benefits but, first of all, to collect all the means provided by the law.

Implementation of constitutional guarantees of social security

Under Article 52 of the Constitution, persons entitled to receive benefits must be indicated in the law.

The wording “the State shall guarantee” as employed therein means that the pensions and other social benefits must necessarily be provided for.

Alongside, Article 52 of the Constitution pre-supposes the fact that the relations pointed out therein must be regulated by laws. ⁷ It is only the law that may establish the bases on the grounds of which state pensions are granted as well as the sizes of such pensions and conditions of their granting and payment.

It is not permitted to establish any conditions of appearance of the right to social security benefits of individuals and to limit the extent of this right by a sub statutory regulation. ⁸

In its rulings, the Constitutional Court has held more than once that by sub statutory legal acts (thus, the Government resolutions as well) one may establish solely the procedure of implementation of laws regulating relations of social protection and social assistance. The sub statutory legal regulation of relations of social protection and social assistance may comprise the establishment of respective procedures, as well as the legal regulation based on laws, where the need to provide more details about and particularise the legal regulation in sub statutory legal acts is objectively caused by the necessity in the law-making process to lean upon special knowledge and special (professional) competence in a certain area. However, as the Constitutional Court has held more than once in its rulings, one may not establish any conditions of appearance of person’s right to social assistance, nor to restrict the scope of this right by sub statutory legal regulation.

7 “Laws” mean legal acts of the highest legal power which are adopted by the Parliament (The Seimas).

8 eg. Resolutions of the Government or Orders of Minister.

Lithuania

Principle of the right to property

The Constitutional Court consolidated that social right to receive pension (and other social benefits) has also close link with right to ownership. This position seemingly was influenced by the jurisprudence of the European Court of Human Rights. ⁹

A complex analysis of case-law of the Constitutional Court leads to a conclusion that in Lithuania the right to protection of property may be recognised in respect of all social security benefits whether falling within the categories of social insurance or social assistance, or special non-contributory benefits.

Attribution of social benefits to the principle of protection of the right to property does not, by itself, contradict solidarity and public character typical of social security. Though the jurisprudence of the Constitutional Court distinguishes pensions (old-age, invalidity, survivor, special state pensions) as more significant object of the property.

The inviolability of property and the protection of the rights of ownership mean inter alia that the owner as the possessor of the rights to property has the right to demand that other persons do not violate his rights, also, it means that the state has a duty to ensure the protection and safeguarding the rights of ownership.

In the case that the collection of funds necessary to pay pensions and the payment of the pensions themselves are based on social insurance (on social insurance contributions), the human being, to a certain extent, takes part in the creation of the material preconditions of payment of these pensions. While establishing the amounts of old age pensions by law, one is to take into consideration the fact as to the amount of contributions that had been paid when the material preconditions for the payment of these pensions are created.

Concerning the payment of pension, the Constitutional Court stated, that the person who meets the conditions established by law in order to receive the old age pension, and who has been awarded and paid this pension, has the right to a monetary payment of a respective amount, i.e. the right to possession. This right must be protected and safeguarded.

Though evaluating different type of social insurance benefits – maternity and paternity benefits, The Constitutional Court held that financial support rendered during leave granted for raising and bringing up children at home (maternity (paternity) benefits), by its nature, temporary (time-limited) character and purpose, differs from the pensions guaranteed in Article 52 of the Constitution, as well as from the other payments of pensionary maintenance provided for by laws, the right to which is related to the protection of ownership rights, consolidated in Article 23 of the Constitution.

The said difference is particularly distinct in the light of the fact that the financial support provided for by law is a targeted one, i.e. it should be linked to a concrete period of raising and bringing up a child at home as well as to such an amount of support that depends on the capabilities of the state and society.

Thus, the right acquired under law to the financial support of an amount provided for by law during leave granted for raising and bringing up children at home may not be equated with the right to the pensions guaranteed in Article 52 of the Constitution, nor with the right acquired under law to any other pensionary maintenance payment provided for by law, both of which have the aspects of the ownership right according to Article 23 of the Constitution.

Changes in the system

A person who meets the conditions established by the law acquires the right to a pension established by the law. This person may reasonably expect that this right will be protected and defended by the state.

When the pension established by the law which is not in conflict with the Constitution is granted and paid, this right and legitimate expectation acquired by the person are also to be linked to the protection of the rights of ownership of this person.

9 Birmontiene T. Social rights in the jurisprudence of the Constitutional Court of Lithuania. Jurisprudence, 2008, No. 9 (111), p. 7-19.

Alongside, it needs to be noted that the constitutional protection of acquired rights and legitimate expectations does not mean that the system of pensionary maintenance established by law may not be reorganised. While reorganising this system, the Constitution must be observed in every case. The system of pensions may be reorganised only by law, only guaranteeing the old age and disability pensions provided for by the Constitution, as well as observing undertaken obligations by the state, which are not in conflict with Constitution, to pay corresponding payments to persons who meet the requirements established by the law. If, while reorganising the pensionary system, the pensions established by the laws which are not directly specified in Article 52 of the Constitution were eliminated, or the legal regulation of these pensions were amended in essence, the legislator would be obligated to establish a just mechanism

W dokumencie The right to social security in the Constitution of the Republic of Poland (Stron 186-195)