Συνταγματικού Δικαστήριου της Λετονίας

Η απόφαση No. 2009-43-01 της 21ης Δεκεμβρίου 2009 του Ανώτατου

Του NIKO TSATS.

Συνταγματικού Δικαστήριου της Λετονίας έκρινε αντισυνταγματικά τα μέτρα
λιτότητας που επέβαλε η διεθνής συνθήκη μεταξύ του Διεθνούς Νομισματικού
Ταμείου και της χώρας ως προς τις περικοπές των συντάξεων. Η σχετική
προσφυγή ασκήθηκε από 9.000 συνταξιούχους, οι συντάξεις των οποίων είχαν
μειωθεί από 10% μέχρι και 70%. Η απόφαση είναι αμετάκλητη και δεν μπορεί να……
προσβληθεί στα εθνικά δικαστήρια της χώρας.

Είναι ιδιαίτερα σημαντικό ότι το Δικαστήριο έκρινε ότι οι «συμφωνίες που
υπογράφονται με τους διεθνείς δανειστές δεν μπορούν να χρησιμεύσουν ως
επιχείρημα για τον περιορισμό των θεμελιωδών δικαιωμάτων”, κάνοντας αναφορά
όχι μόνο στο λετονικό σύνταγμα αλλά και σε διεθνείς συνθήκες. Θεώρησε
αντισυνταγματικό το σχετικό νόμο, ως αντίθετο με τη δημοκρατική αρχή και την
αρχή της λαϊκής κυριαρχίας (άρθρο 1 του λετονικού Συντάγματος), την αρχή της
ισότητας (άρθρο 91) και το δικαίωμα στην κοινωνική ασφάλιση (άρθρο 109).

http://www.satv.tiesa.gov.lv/upload/judg__2009_43_01.htm

JUDGMENT
on behalf of the Republic of Latvia
in Riga, on 21 December 2009,
in the case No. 2009-43-01

The Constitutional Court of the Republic of Latvia in the following composition: the Chairperson of the Court session Gunārs Kūtris, Justices Kaspars Balodis, Aija Branta, Juris Jelāgins, Kristīne Krūma and Viktors Skudra,

based on the Application of […] (hereinafter jointly referred to in the text as the Applicantss), according to Article 85 of the Satversme (Constitution) of the Republic of Latvia and Article 16, Clause 1, Article 17, Paragraph One, Clauses 3, 11, and Articles 192 and 281 of the Constitutional Court Law,

on 23 November 2009, in a court session examined in writing the case

“On the compliance of Article 2, Paragraph One of the Law “On State Pension and State Allowance Disbursement in the Period from 2009 to 2012” with Articles 1 and 109 of the Constitution of the Republic of Latvia and on the compliance of Article 3, Paragraph One of the above Law with Articles 1, 91, 105 and 109 of the Constitution of the Republic of Latvia.”

Recital

1. On 16 June 2009 the Saeima (Parliament) of the Republic of Latvia adopted the Law on State Pension and State Allowance Disbursement in the Period from 2009 to 2012 (hereinafter – the Disbursement Law). The purpose of this law is stated in Article 1: „to provide persons with social security within the limits of the available financing according to the laws on State budget for the current year in the period from 1 July 2009 to 2012.”

According to the Disbursement Law, cuts of particular payments from the special budget of social insurance were established for the above mentioned period. Thus, Article 2, Paragraph One of the Disbursement Law stipulates that „in the period from 1 July 2009 to 31 December 2012 the state old-age pensions and service pensions granted according to the by-laws ‘On Service Pensions’ and ’On the Rank and File and the Unit Commanding Personnel of the Institutions of the Ministry of the Interior Employee Pensions (Employer Pensions)’ are paid in the amount of 90 percent from the pension amount granted in accordance with the legislative acts”.

Whereas Article 3, Paragraph One of the Disbursement Law prescribes that “in the period from 1 July 2009 to 31 December 2012 the recipients of state old-age pensions and service pensions granted according to the by-laws ‘On Long Service Pensions’ and ’On the Rank and File and the Unit Commanding Personnel of the Institutions of the Ministry of the Interior Employee Pensions (Employer Pensions)’ are paid in the amount of 30 percent from the pension amount granted in accordance with the legislative acts starting with the first date of the month following the month when the recipient of pension has become a person subject to mandatory social insurance (employee or self-employed) in accordance with the Law on State Social Insurance” (hereinafter Article 2, Paragraph One and Article 3, Paragraph One of the Disbursement Law jointly – the impugned provisions).

Several cases were declared admissible in the Constitutional Court that impugn the compliance of Article 2, Paragraph One and Article 3, Paragraph One to various provisions of the Constitution of the Republic of Latvia (hereinafter – the Constitution). Preparing the case for examination and on the basis of Article 22, Paragraph Six of the Constitutional Court Law as well as Paragraphs 125 and 126 of the Rules of Procedure of the Constitutional Court, a decision to merge cases No. 2009-43-01, No. 2009-47-01, No. 2009-48-01, No. 2009-49-01, No. 2009-50-01, No. 2009-52-01, No. 2009-53-01, No. 2009-54-01, No. 2009-55-01, No. 2009-57-01, No. 2009-58-01, No. 2009-59-01, No. 2009-60-01, No. 2009-61-01, No. 2009-62-01 and No. 2009-63-01 in one case has been adopted on 28 August 2009. The merged case No. 2009-43-01 has been given the name “On the compliance of Article 2, Paragraph One of the Law on State Pension and State Allowance Disbursement in the Period from 2009 to 2012 with Articles 1 and 109 of the Constitution of the Republic of Latvia and on the compliance of Article 3, Paragraph One of the above Law with Articles 1, 91, 105 and 109 of the Constitution of the Republic of Latvia”.

Whereas on 27 October 2009 a decision to merge cases No. 2009-43-01, No. 2009-81-01, No. 2009-82-01, No. 2009-83-01, No. 2009-84-01, No. 2009-87-01, No. 2009-91-01, No. 2009-92-01 and No. 2009-99-01 was adopted. The merged case No. 2009-43-01 retained its previous name.

2. The Applicants pointed out that several basic legal principles follow from Article 1 of the Constitution – the principle of protection of legitimate expectations, the principle of proportionality, the principle of the rule of law, the principle of social state, the principle of good governance and the principle of social solidarity. The legislator, adopting the impugned provisions that prescribe 10 percent cut of old-age pension granted for life for non-pensioners employed and 70 percent cut for pensioners employed, has violated these principles.

The Applicants claimed that the issue concerning old-age pensions pertain to the area of social policy, has long term nature and requires stability. Therefore legal order in this area should be sufficiently stable and unchanging, so that individual persons could plan their future with confidence based on legal provisions. Assessing whether the impugned provisions comply with the principle of protection of legitimate expectations, it is necessary to take into account whether relying on the previous legal order was lawful, substantiated and reasonable, and whether legal order in its substance is sufficiently stable and unchanging to confide in it. In addition, the Applicants noted that it is important to bear in mind whether the legislator, adopting the impugned provisions, has deviated from the rights originally guaranteed to private persons.

2.1. The Applicants went on that the procedure prescribed by the Law on State Pensions adopted on 2 November 1995 was created as an insurance system – person’s pension depends on the contributions made during the period of employment. Calculation and granting procedure for all kinds of state pensions has been in effect for a long period of time and is based on certain principles.

Recipients of old-age pension are a special group of society because the granted pension is predominantly the only source of income for them. Therefore, there is no doubt that persons who qualify for old-age pension have relied upon legal order for calculation and granting of old-age pension, and this reliance has been lawful, reasonable and justified. The legal order was in force for a long period of time and it was sufficiently stable and unchanging.

Although the economic situation in the country has deteriorated, the principle of protection of legitimate expectations still has a major role in the existence of a state governed by the rule of law. The state has an obligation to provide judicial stability, whereas persons have the right to rely upon the state fulfilling its obligation in good faith. The situation when a decision crucial for the state is adopted urgently in two days time is also unacceptable.

At the same time, the Applicants noted that the principle of protection of legitimate expectations does not hold an absolute nature. However, a deviation from the above principle should comply with the constitutional principles, and when the legislator makes such amendments to the Law, a “lenient” transition to the new legal order should be ensured. A lenient transition could have been providing both a certain transition period to the new legal order as well as compensation of losses.

It is especially emphasized in the Applications that the legislator has not envisaged the obligation to compensate or repay the deducted reduction of state pensions to the recipients of old-age pension. On the contrary – the Saeima has rejected the proposal that envisaged the procedure for repaying the deducted share of pensions.

2.2. The Applicants proceeded that, when determining the compliance of the impugned provisions with the principle of proportionality, one should bear in mind that benefit for the society from adopting a certain legal provision or legal order should be greater than detriment to legal interests of a person. Furthermore, the legislator should assess the influence of the legal provision to be adopted on each group of persons who are affected by the provision.

The Applicantss admitted that the economy of the state budget funds could by itself be the legitimate end of the impugned provisions; however, the economy of the state budget funds at the expense of such an unprotected group of society, namely, the recipients of old age pensions, is unacceptable.

Likewise, the legitimate end of the impugned provisions cannot be the one mentioned in the Disbursement Law – “to grant social security to persons within the limits of the available financing”. On the contrary, the state has to provide financing for the satisfaction of social needs in the amount guaranteed by the legislative acts.

When determining whether the impugned provisions are proportionate and whether the same ends could be reached by other means that interfere less with the rights of persons, it should be considered that social rights are different human rights since they depend on the economic situation in the country and the available resources. If there is not enough financing in the state social budget to safeguard the above principles, the state should look for other alternatives.

The additional explanations to the Application of the members of the Parliament list the following other alternatives: firstly, to increase income by improving collection of the existing taxes; secondly, to reduce other budget expenditures; thirdly, to introduce new taxes or to increase the existing ones. Non-compliance of the impugned provisions to the Constitution follows also from the draft law annotation that states a risk that these provisions might contradict Articles 1 and 109 of the Constitution.

2.3. As to Article 3, Paragraph One of the Disbursement Law, lack of consultations with experts during preparation of the draft law is also considered as its substantial drawback. Thus, the fiscal effect of the provision has not been duly assessed; moreover, it can even be disputed. A situation when the fiscal effect of the provision turns out exactly the opposite and the resources of the state social insurance budget would decrease is also possible.

Likewise, there is no substantiation as to why the legislator has included this particular amount of pension disbursement decrease in the impugned provisions, i.e. 70 percent. The Applications also dispute the allegation that the impugned provisions have been adopted because the international creditors – the European Commission and the International Monetary Fund (hereinafter – IMF) – had had required so.

Article 3, Paragraph One of the Disbursement Law does not comply with Article 91 of the Constitution because it envisages unequal situation between employed and non- employed pensioners. An alternative solution for this provision was a proposal to determine an equal deduction for all pensioners, e.g. in the amount of 15 percent. Yet, such a solution was not even considered. Likewise, employed pensioners are put in an unequal situation compared to the employees who are not pensioners. In this context the criteria of unequal treatment is age, and age discrimination is one of the prohibited discrimination types both in Latvia and in the European Union.

Explanation by the Cabinet of Ministers that the adoption of Article 3, Paragraph One of the Disbursement Law is lenient because it is not applicable to certain self-employed persons, has no substantiation. Such a view is rather general and groundless because nobody has furnished exact number of persons to whom such a deduction of pension disbursement would not be applied. Likewise, one should take into account that persons whose income does not exceed one minimum monthly wage are not persons subject to mandatory social insurance in the interpretation of the Law on State Social Insurance; therefore they are not subject to recalculation of the state old-age pension in correspondence with social insurance contributions they have made.

When assessing the impugned provisions from the aspect of Article 105 of the Constitution, it should be taken into account that the Latvian pension system is based on the principle of insurance. That is – each person or his/her employer makes contributions that make up person’s pension capital. Therefore at least that part of pension that has been calculated since 1 January 1996 should be regarded as having been earned by the person, and the state has undertaken to disburse it when the person reaches a certain age.

According to the Applicants, Article 3, Paragraph One of the Disbursement Law disproportionately restrict the property rights of a person since the calculated pension remains the same, whereas only 30 percent from the calculated pension is disbursed. Thus the essence of property rights is violated and further trust to the whole pension system is diminished. If the state had, for example, stipulated that such deduction from pensions should be treated as loan that will be repaid later, then the limitation would be proportionate.

2.4. The Applicants stated that, when determining the compliance of the impugned provisions with Article 109 of the Constitution, the following should be considered: if the state has included a fundamental right in the Constitution, it has an obligation to implement it.

When adopting any changes in the sphere of social rights, the state has to provide for a certain period of time, so that the affected persons can duly prepare themselves for these changes. In this case, the preparation time was just two weeks. It was noted even in the draft law annotation submitted by the Cabinet of Ministers that the adoption of the Disbursement Law from 1 July 2009 is not possible since there will be pension and allowance overpayments for the period from 1 July 2009 until the introduction of the new procedure.

Latvia has ratified a number of international agreements in the area of social rights. The conclusion that follows from these documents is that the legal provisions that provide a broader nature of human rights and better possibilities for human rights protection should be preferred. The obligation to protect and provide for the human rights to a certain extent does not deny the state the possibility to amend the provisions for implementation of the respective human rights, however, the respective amendments cannot restrict the nature of human rights.

Taking into account the above, the Applicants asked the Constitutional court to declare Paragraph One of Article 2 of the Disbursement Law as unconformable with Articles 1 and 109 of the Constitution and Paragraph One of Article 3 as unconformable with Articles 1, 91, 105 and 109 of the Constitution as well as to declare both impugned provisions invalid as of the moment of their adoption.

3. The institution that passed the Contested Act – the Saeima – did not agree with the arguments of the Applicants and pleaded the Constitutional Court to adjudge the Applications groundless and to reject them. The Saeima argued as follows.

3.1. When determining the conformity of the impugned provisions with the Constitution, factors related to the economic situation in the country and resources of the State budget of Latvia cannot be ignored. Since 2008, economic development has considerably deteriorated. The drop in Gross Domestic Product in the second quarter of 2009 was 19.6 percent in comparison with the same period of the previous year. Therefore, more efficient steps to prevent the decline of the state economy were required.

In accordance with the Declaration of the Intended Activities of the Cabinet of Ministers issued on 11 March 2009, the government has undertaken to achieve reduction of the budget deficit. The need for such a reduction followed both from the commitments to the European Commission and IMF as well as from determination to stop the economic recession in the country.

The sharp decline in economic activity caused the considerable decline in the state budget revenues as well. Therefore a substantial reduction of expenditure in the budgets of ministries and central state institutions was planned in the Law Amendments to the Law On State Budget 2009 – in order to achieve budget consolidation for the amount of 500 million lats. The Disbursement Law has been prepared in view of the situation in the State budget. The above budget consolidation measures are based on the agreement signed by the political parties constituting the government , the Free Trade Union Confederation of Latvia, the Employer’s Confederation of Latvia, the Latvian Association of Local and Regional Governments, the Latvian Chamber of Commerce and Industry and Latvian Pensioners’ Federation on 11 June 2009 (hereinafter – the Agreement of 11 June).

The Saeima pointed out that the principle of operation of the social insurance special budget is self-financing, namely, the legislative acts regulating social insurance envisage a close link between social insurance contributions and social insurance services.

Pensions and allowances are a part of social insurance services and are offered to their recipients from social insurance contributions made by those currently employed. It is emphasized in the replies that the special budget expenditures had been constantly increasing due to the rapid increase in wages during the previous years. As a result, the amount of pensions and allowances had increased alongside with the number of individual service users. Although the positive balance of the social budget on 1 January 2009 was LVL 951.1 million, it decreased to LVL 153.5 million by 1 August 2009. Therefore, if the impugned provisions were not adopted, considering the fulfillment of the social insurance special budget and revenues forecast as well as planned expenditure for the coming years, the accumulations in the state special budget would be used up already in a couple of years.

3.2. The principle of protection of legitimate expectations following from Article 1 of the Constitution does not restrict the legislator’s rights to deviate from the previous practice, even if it has been stable. Such a deviation is not only acceptable but also necessary in the cases when a more suitable and obviously more appropriate solution has to be chosen.

Although the principle of protection of legitimate expectations has constitutional value, protection of other persons’ rights and social welfare has an equal constitutional value, and it can be provided by efficient redistribution of common wealth and balancing revenue and expenditure of the state. The principle of protection of legitimate expectations does not mean that the laws cannot be changed. Otherwise the regulating power of the state would gradually decrease until the operation of the state would “freeze”.

3.3. Paragraph One of Article 3 of the Disbursement Law complies with Article 91 of the Constitution, since the purpose of social security benefits is to guarantee means for living to persons when they cannot be actively involved in employment legal relationships due to various reasons and thus to provide means for living by themselves. Old age is one of the cases when a person receives social security benefits – old-age pension. The differentiated amount of reduction in old-age pension for employed pensioners compared to non- employed pensioners and pensioners with other income is substantiated because employed pensioners have revenues from employment alongside with the state old-age pension and can provide means for living for themselves.

Different treatment of persons subject to the enactment contained in Paragraph One of Article 3 of the Disbursement Law is proportionate to the benefit for the society. The impugned provision helps to guarantee disbursements of social insurance services, and the established restrictions of rights are balanced taking into account the age of a person as a social risk that affects the ability of the person to provide means of living for himself or herself.

Whereas employed pensioners and able-bodied persons in active employment are not in an equal and comparable situation in accordance with Paragraph One of Article 3 of the Disbursement Law; therefore, there are no grounds for analyzing whether Paragraph One of Article 3 of the Disbursement Law prescribes different treatment and whether such a different treatment has objective and reasonable grounds.

3.4. When determining the compliance of Paragraph One of Article 3 of the Disbursement Law with Article 105 of the Constitution, the Saeima pointed out that “making social insurance contributions cannot be regarded as creation of property, and the opinion that pension system creates ‘property’ in accordance with the Law on State Pensions has no grounds, because it is based on the principle that a person makes certain contributions”. Although in the case No. 2007-01-01 the Constitutional Court ruled that the rights for pension disbursement are conformable with the nature of the concept of “property” in the first sentence of Article 105 of the Constitution, it would be appropriate to re-evaluate this issue precisely in the context of Paragraph One of Article 3 of the Disbursement Law.

3.5. Also, the impugned provisions do not violate Article 109 of the Constitution since social rights are special and different rights. The implementation of these rights depends on the economic situation in each country and the available resources.

Economic growth and employment are preconditions for a social protection system of a higher level. During the period from 2002 to 2008, when economic growth rate in the country was accelerating and revenues of the state special budget were increasing respectively, a number of changes in the area of pensions were made to support the recipients of pensions, paying special attention to the recipients of small pensions.

Before adopting the impugned provisions, the income of employees has decreased considerably, while unemployment has increased. As a result, special budget revenues that are basically made of social insurance contributions have considerably decreased. Therefore, it was necessary to balance expenditures and revenues within the limits of this budget.

The adoption of the impugned provisions is considered as a necessary measure, and it was not possible to reach its goal by other means that would restrict the rights of an individual to a lesser extent. Since special budget revenues are made of social insurance contributions, the required economy could be achieved only by reducing the amount of the established social security disbursements.

3.6. The impugned provisions that prescribe a small and fixed-term reduction of state pension amount should be viewed in the context that, during the improvement of economic situation and increase of available resources, the amount of state pensions has been substantially increased over the years.

The Saeima especially drew the attention of the Constitutional Court to the fact that the restriction prescribed by the impugned provisions is a temporary measure and Article 9 of the Disbursement Law contains a constant and publicly controllable monitoring mechanism for this law.

Taking into account the above, the Saeima pleaded the Constitutional Court to declare Paragraph One of Article 2 of the Disbursement Law as conformable with Articles 1 and 109 of the Constitution as well as to declare Paragraph One of Article 3 of the Disbursement Law as conformable with Articles 1, 91 105 and 109 of the Constitution.

4. The arguments of the summoned party – the Cabinet of Ministers – that substantiate the conformity of the impugned provisions with the Constitution, were similar to the arguments of the Saeima.

When answering the questions of the Constitutional Court, the Cabinet of Ministers pointed out that the reference to a possible contradiction with the Constitution in the annotation of the Disbursement Law should be understood as drawing attention to a possible risk that should be particularly assessed during each stage of discussion of the draft law. The above reference in the annotation is informative, and as such is not founded on facts, for it contains neither any specific facts nor arguments that would give evidence concerning breach of the respective articles of the Constitution.

During the negotiations, the international creditors repeatedly took notice of the possibility that the sustainability of the social budget would be endangered even in the case of freezing the indexation of pensions. Nevertheless, the social area has been spared as much as possible and such reductions of old age pensions as prescribed by the impugned provisions were not included in any of the initial loan agreements. They were included only in the latest stages: with the European Community – in the Supplementary Memorandum of Understanding of 13 July 2009; with IMF – in the Economic Stabilization and Growth Revival Programme for Latvia adopted by the Saeima on 16 June 2009. The Cabinet of Ministers took notice that IMF, based on the staff report of its mission reviewed by the Executive Board of the IMF, may refuse to grant the next installment of the loan if the commitments specified in the letters of intent were not fulfilled.

During the negotiations for the Agreement of 11 June, other alternative pension reduction solutions were also discussed; however as a result of these discussions, the agreement was reached only with respect to one particular solution. Based on the above agreement and considering that it was supported not only by the political parties that constitute the government but also by a wide segment of society, the respective draft of the Disbursement Law was prepared. Since this draft law precisely reflects the agreement reached, it would not have been rational to discuss other solutions or to hold additional expert consultations during its preparation. The budget deficit had to be reduced immediately; otherwise the receipt of the international loan was endangered.

The Cabinet of Ministers pointed out that reduction of pension does not apply to a group of persons that receive old-age pension and are self-employed at the same time. Taking into account the purpose of old-age pension as part of social security system – to protect persons so that they are not left without any income at old age, when they are unable to work and thus gain income from employment – the Cabinet of Ministers considers the reduction of pensions for employed pensioners as conformable with the principle of justice. This is the only solution that follows from the facts that there is the deepest crisis in the country and the Gross Domestic Product decline is the biggest in Europe. The Cabinet of Ministers also stated that reductions in other positions of budget started already in summer 2008, and all the resources available therein have already been exhausted by July 2009.

The Cabinet of Ministers informed that the State administration system undergoes constant development and structural reforms have been started already before the economic indicators started to show downfall. For example, the total reduction of the budget expenditures for the remuneration at the State direct administration institutions compared to 2008 is LVL 296.7 million.

5. The Summoned party – the Ministry of Finance – maintained that, in conformity with Article 34, Paragraph Two of the Law on Budget and Financial Management, the executors of the State budget, in case of the special budget – the State Social Insurance Agency (hereinafter – SSIA) – have the rights to enter into an agreement with the State Treasury concerning investment of the surplus balance of the special budget as a deposit as well as to invest this balance in the Latvian State securities. In accordance with the agreements signed with the SSIA and the State Treasury and within the term specified in these agreements, interest income from term deposits of the surplus balance of the special budget and income from utilization of the positive accounts balance of the special budget are transferred to the accounts of social insurance special budget and diverted to cover the costs in accordance with the Law on the State Budget for the current year. State social insurance special budget funds are placed in the State Treasury according to the rates of financial market.

The Ministry of Finance drew attention of the Constitutional Court to the fact that the State budget fulfillment indices, including the amounts of revenues, expenditures and financed deficit of the State special budget as well as the source of financing this deficit, are established in the annual State Budget Law and are not related to the actual balance of funds of the joint budget accounts of the State Treasury in the Bank of Latvia.

The draft Disbursement Law has been prepared by the Ministry of Welfare; therefore, the Ministry of Finance cannot provide detailed information concerning alternative solutions, calculations of social budget economy included in the draft law annotation as well as information about consultations with experts.

The Ministry informed that, for the eight months of 2009, the debt of taxpayers to the State social insurance budget was LVL 108 million, i.e. by LVL 32.9 million or 43.6 percent higher than in the same period of 2008.

It was also maintained that, due to the level of credit rating of the State, the possibilities to borrow money in financial markets were limited. Therefore international loans are the main source for financing the budget deficit. The received loans made it possible both to increase the volume of emission of State internal borrowing securities, thus providing the financing necessary for the fulfillment of the commitments of the State, as well as not to utilize the funds of the international loan allocated in the second half of 2009.

6. The Summoned party – the State Treasury – maintained that, implementing the objectives stipulated by the Law on Budget and Financial Management and executing the functions established by the State Treasury Regulation, the State Treasury inter alia opens accounts for the State budget fulfillment, operates the State budget accounts in the Bank of Latvia and other credit institutions, provides resources necessary for financing the State budget deficit and repayment of debt liabilities as well as makes investments of budget funds within the framework of the State budget financial funds management. Since 1 January 2007, the special budget accrual funds alongside with other available resources are used for the common cash flow in the joint budget accounts of the State Treasury in the Bank of Latvia, thus providing availability of funds for the State budget fulfillment in accordance with the approved annual State Budget Law and for other financial liabilities in due time.

The State Treasury drew attention of the Constitutional Court to the fact that the State budget fulfillment indices, including the amount of revenues, expenditures and financed deficit of the State special budget as well as the source of financing this deficit are established in the annual State Budget Law and are not related to the actual balance of funds of the joint budget accounts of the State Treasury in the Bank of Latvia.

In accordance with the Law on State Budget for 2009, the accruals from the previous years are the source for financing the State special budget deficit. Taking into account the fact that the funds available in the State budget accounts at the end of the year can be used in the next fiscal year, the statement that the balance of social budget funds has already been spent is incorrect. According to the data of the State Treasury, the State special budget accrual at the end of 2009 was LVL 854.4 million, out of those LVL 522.5 million were placed in term deposits and LVL 322.9 million – kept at the account balances of the State Treasury. Within the framework of joint financial management practice, the State Treasury ensures the availability of respective resources for the State special budget expenditure according to the annual State Budget Law.

7. The Summoned party – the Ministry of Welfare – stated that the principle of social insurance system is self-financing, i.e. the current disbursements to the recipients of pensions and allowances are covered by the social insurance contributions made by the currently employed persons. Due to deteriorating economic situation, increased unemployment and decrease of wages, the revenues of the State social insurance budget decrease as well. As a result, the budget revenues do not cover the expenditure and operation of social insurance system and, consequently, the pension system is endangered as well.

The evaluation of the current situation in the special budget of social insurance and forecast for the coming years clearly shows that, in case if the expenditure of social insurance special budget is not urgently revised, the financial funds for social insurance service disbursements will be limited, whereas the state social insurance budget accrual – spent, thus creating a real deficit in the budget.

The Disbursement Law had to be prepared within a very short period of time; therefore, it was not possible to assess the alternatives. That was also the reason why it was not possible to assess fully and exhaustively the compliance of the State pension and allowance disbursement restrictions prescribed by the draft law with the legal principles stated in the Constitution or following from the provisions thereof. This situation has been described in the draft law annotation.

The Ministry of Welfare drew the attention of the Constitutional Court to the fact that the reduction would not apply to the persons who are the recipients of old-age pension and self-employed at the same time, whereas the pension recipients whose employment income is equal to the minimum wage or close to it and whose pension amount is equal to average pension in the State or even higher have the choice whether to continue employment or to terminate it.

8. The Summoned party – the State Employment Agency – maintained that, when determining the impact of the Disbursement Law on the number of vacant job positions, a conclusion can be drawn that the number of vacant job positions has not substantially changed due to the law coming into effect and possible termination of employment contracts by pensioners. However, some cases have been established at the agency’s branches when employers reported vacant job positions at the end of June and beginning of July of this year due to termination of employment contracts by employed pensioners.

At the same time it was maintained that the number of vacant job positions is currently also affected by general economic factors, due to which the companies need to reduce the number of their employees. Thus, resignation of pensioners can be one of the possible ways for companies to reduce their number of employees and to close job positions.

9. The Summoned party – The Bank of Latvia – maintained that, in June 2009, the state consolidated budget deficit accrued since the beginning of the year reached LVL 458 million or 3.5 percent from the forecasted Gross Domestic Product. The forecast for the above mentioned deficit was LVL 1.3 billion by the end of the year. If the budget deficit were not reduced by LVL 500 million, this situation would endanger both the receipt of international loan as well as performance of state functions, and revival of economic activities in the country as soon as possible.

Adoption of the impugned provisions was a part of fiscal consolidation, and the planned impact of the impugned provisions on reduction of costs in 2009 was LVL 88 million. The Bank of Latvia held a view that the legislator, in this way, has managed to reach the set main goal.

There were several alternatives as to how to reduce the budget deficit. The possibility of economically more feasible or otherwise more suitable alternatives for reaching the set goal has to be determined within the framework of budget preparation. The competence of the Bank of Latvia is to consult the Saeima and the Cabinet of Ministers, whereas drafting and approving the budget is within the competence of the Cabinet of Ministers and the Saeima.

The Bank of Latvia possesses no information as to whether the international creditors have required the reduction of pension disbursements prescribed by the impugned provisions.

10. The Summoned party – the State Audit Service – maintained that it has not made any audits to assess the activities of the government in order to prevent the economic crisis.

At the same time the State Audit Service informed the Constitutional Court that the total 32 regulatory audits had been carried out during 2008, and that the Office of the Prosecutor General has been notified concerning 11 violations of legal provisions detected as a result of these audits. The above violations are related to squandering of financial funds and property of the State and local governments, offences in the areas of bookkeeping and finance, violation of regulatory enactments regarding procurement, interest conflict situations and other various violations. The established violations of legal provisions were classified as squandering of financial funds and property of the State and local governments, as negligence in performing duties of the State civil servants, as exceeding of authority of the State civil servants and as inexpedient use of funds of the State and local governments.

The State Audit Service also maintained that, during the audit “On 2008 Annual Report on the Fulfillment of State Budget and Budgets of Local Governments of the Republic of Latvia”, it was established that some State institutions had not followed the restrictions on bonus payments and material incentives. Therefore, the budget funds have not been used efficiently or have been used in violation of legislative acts.

11. The Summoned party – the Ombudsman of the Republic of Latvia (hereinafter – the Ombudsman) – maintained that social security rights belong to social rights that are very important; however at the same time these are special and different rights since their enactment depends on the economic situation in the country and the available resources. Therefore, in international documents, social rights are formulated as general duties of the State, giving Member States a broad freedom in the enactment of these rights. At the same time, it should be considered that these rights are included in the Constitution and hence the State cannot resign from the enactment of these rights. The above conclusion follows also from the principle of socially responsible state. The legislator has established temporary restrictions in disbursements of pensions, thus limiting the fundamental rights of persons guaranteed by Article 109 of the Constitution.

Referring to the cases of the Constitutional Courts of Latvia and Lithuania, the Ombudsman acknowledged that the impugned provisions have to be assessed also in the context of Article 105 of the Constitution. When determining the legitimate end of the impugned provisions, the balancing of revenues and expenditures of the pension special budget can be deemed as such a legitimate end. The necessity to avoid creation of deficit in the State pension special budget as well as the need to secure the continuance of pension disbursements in the future should be particularly emphasized.

When assessing the commensurability of the impugned provisions, the Ombudsman agreed with the statement mentioned in the reply of the Saeima that economic factors cannot be ignored in this case, i.e. it is possible to amend the legal enactments on pensions in extraordinary situations, also to reduce the amount of pension as much as it is needed for securing vitally important public and State interests and protecting other constitutional values.

Such a group as elderly people especially depend upon economic and social situation in the country. There are many persons in this group who do not have adequate means for living and who are socially less protected. The legislator has not stipulated the minimum of rights that should be guaranteed in any case so that a person can meet the basic needs. The above is a failure to perform the basic duties of the State and has no justification whatsoever. Such a duty also follows from the principle of socially responsible state. The aim of this principle is to square substantial social differences and provide an appropriate standard of living to each group of population. Social justice includes concern for squaring of social differences, protection of the weakest members of the society and equality of opportunities.

The Ombudsman emphasized that, in accordance with the impugned provisions, employed pensioners have been indirectly discriminated compared to the employees who have not reached the retirement age, since the possibility of choosing occupation freely is restricted for pensioners. The impugned provision pressed the employed pensioners to choose – either to receive full pension, or to continue employment.

In addition, information on the alternatives to the impugned provisions is inconsistent. There is no proof that creators of the draft law and the Saeima have not sufficiently evaluated whether the set goal can be reached by other alternative means that are less restrictive in respect of the fundamental rights of persons. The Cabinet of Ministers and the Saeima should also have taken into account the Judgment of the Constitutional Court in the case No. 2001-12-01 of 19 March 2002. Obvious ignoring of the conclusions of this Judgment is regarded as unacceptable in a democratic state.

The Ombudsman also maintained that the legislator has not planned lenient transition to the new legal order, i.e. time from the date of adopting the impugned provisions until their coming into force was rather short. Thus, persons had been denied the possibility to prepare themselves duly for the changes and to plan their future lives corresponding to the reduced amount of pension, especially considering the fact that pension is not only the substantial but also the only source of income for the majority of pensioners.

12. The Summoned party – the Free Trade Union Confederation of Latvia (hereinafter – LBAS) – maintained that there were no consultations held with them during the preparation of the amendments to the year 2009 budget. Similarly, there were no meetings held with LBAS during the preparation of the impugned provisions. Before signing the Agreement of 11 June, LBAS was offered two alternatives – either to sign the document, or not to sign it, in which case to reckon with the situation that the Republic of Latvia would not receive the international loan.

Although LBAS is not competent to offer its opinion on the compliance of the impugned provisions with the Constitution, it considers these provisions to be unconformable with Articles 1 and 109 of the Constitution.

It should be especially emphasized that pensions received by the majority of the State pension recipients are below the minimum subsistence level established by the State. There will be 200 000 deprived persons in the country in 2010. Reducing the disbursable pension amount in this way means to achieve the needed budget economy on account of socially least protected persons.

13. The Summoned party – the Employers’ Confederation of Latvia (hereinafter – LDDK) – maintained that the Agreement of 11 June should be considered as an agreement of social partners and other organizations, not just as an agreement of social partners. Before signing the Agreement, there were no other meetings. The only meeting was held on 11 June 2009, before signing the above agreement. LDDK is not competent to assess the compliance of the impugned provisions with the Constitution.

14. The Summoned party – the Latvian Association of Local and Regional Governments (hereinafter – LPS) – maintained that, when the Agreement of 11 June was prepared, the following alternatives were discussed – decrease of personal allowance to LVL 0 or decrease of pensions by 15 percent. LPS did not support the decrease of pensions, maintaining that the required financing should be obtained from the funds of State administration. There have been no other consultations.

LPS conceded that it is not competent to assess the compliance of the impugned provisions with the Constitution; nevertheless, it acknowledged that these provisions are unconformable with Article 1 of the Constitution. Local and regional governments do not have sufficient funds available to provide the mandatory social services and social support to population stipulated by laws and the Cabinet regulations.

15. The Summoned party – the Latvian Pensioners’ Federation (hereinafter – LPF) – pointed out that the LPF Chairperson received the text of the Agreement of 11 June only at 22.20 on 11 June 2009, and it was no longer possible to consider any amendments required therein. The Agreement and the amendments thereto have been adopted without any coordination with the LPF. The LPF Chairperson, after examining Section C of the Agreement of 11 June, has acknowledged that the body of measures included therein is unlawful. The President of the State was the only official who gave a hearing to her objections, and he recommended signing the Agreement.

While drafting the changes to be implemented in the area of social security, several alternative solutions have been considered.

The LPF Chairperson has been invited to the meeting of the Cabinet of Ministers taking place on 8 June 2009 in order to hear the proposals of the representative of the Ministry of Finance, and she considered these proposals as unacceptable. Therefore, the LPF Chairperson asked for an opportunity of discussing the issue pertaining to social security reduction with the Minister for Welfare and the LPF Board members.

On 9 June 2009, at the meeting with the Minister for Welfare, an agreement has been reached concerning a reduction of pensions for 20 percent for those employed pensioners whose pensions exceed 100 lats and non-disbursement of pension premiums to those pensioners who have retired after 1 January 1996. The agreements referred to at the meeting of the Cabinet of Ministers of 9 June 2009 have not been accepted.

The LPF pointed out that the impugned provisions do not comply with Articles 1, 105 and 109 of the Constitution, and its arguments were similar to those of the Applicantss.

16. The Summoned party – the Chairperson of the Social and Employment Matters Committee of the Saeima Aija Barča – informed the Constitutional Court that the Committee under her supervision has repeatedly drawn the Saeima’s attention to the fact that the impugned provisions do not comply with the Constitution. For this reason, several meetings of the Committee have been convoked in which alternative solutions to the adoption of the impugned provisions were developed – for example, a proposal to establish the maximum pension amount of 350 lats and to restrict the pension disbursements to employed pensioners for 50 percent.

A. Barča drew the Constitutional Court’s attention to the fact that the Social and Employment Matters Committee of the Saeima has prepared amendments to the Disbursement Law, proposing that the pension restrictions established in Articles 2 and 3 of this law would not be applied to persons with disabilities of Groups 1, 2 and 3; more than that, the pension deductions would be reimbursed to these persons. Likewise, eight draft laws have been developed which provided that service pension disbursement restrictions would not be applied to service pension recipients with disabilities of Groups 1, 2 and 3.

17. The Summoned party – doctoral student of the University of Latvia Anita Kovaļevska – acknowledged that, by means of the impugned provisions, the legislator has changed the operation of the social insurance system as an exception for a certain period of time, restricting the rights of persons to receive their pensions granted in accordance with the procedure established by the law by decreasing the amount of social security. If the rights of persons provided by the Constitution are restricted, among other things, the international commitments of Latvia have to be taken into account. Summarizing the criteria indicated by the Constitutional Court and the UN Committee on Economic, Social and Cultural Rights, A. Kovaļevska concluded that such factors as the procedure for the adoption of legal provisions, the legitimate aim and the observance of the principle of proportionality have to be considered.

A. Kovaļevska further admitted that the Disbursement Law had been adopted in compliance with the prescribed procedure. However, she maintained that there was no sufficient evidence as to whether the Saeima had considered alternative options or had consultations with the affected groups.

Analyzing the appropriateness of the impugned provisions for the attainment of the legitimate aim, as A. Kovaļevska maintained, one can conclude that the measures referred to in Article 2 of the Disbursement Law are indeed appropriate for the attainment of the end in question, whereas the appropriateness of the measures referred to in Article 3 is not clear, for the annotation does not specify the planned reduction amounts of the special budget expenditures.

At the same time, A. Kovaļevska maintained that the restrictions established in Article 2 of the Disbursement Law cannot be deemed as the least restrictive means for the attainment of the legitimate aim. Rights to social security are not granted at least at a minimum level if pensions are not disbursed to persons at least in the minimum amount. General principles concerning the minimum amount of pensions have been established in the practice of both the Constitutional Court and the UN Committee on Economic, Social and Cultural Rights.

Furthermore, the guidelines for calculation of the minimum amount of old-age pensions can be found in the International Labor Organization Conventions No. 102 and No. 128, not ratified by Latvia. The European Code of Social Security, signed by Latvia, provides a similar approach. In accordance with these documents, old-age pension should make at least 40 percent from the average wages of the respective person. Moreover, Article 13 of the European Social Charter is binding to Latvia. This article guarantees the rights to social assistance in order to ensure that the income of persons is not below the poverty line. It is inadmissible to apply the impugned provisions to persons whose pension amounts are below the poverty line.

This conclusion can also be substantiated by reference to Article 91 of the Constitution. The legislator had a duty to differentiate the recipients of pensions by the correspondence of the amounts of their pensions to the minimum income level. Concerning Article 3 of the Disbursement Law, one can agree in principle that it is permissible to reduce the amounts of pensions disbursed to employed pensioners. International treaties also support such a conclusion. Yet, as A. Kovaļevska pointed out, this impugned provision does not conform to the principles of proportionality and legal equality. The legislator has not taken into account such factors as the amounts of pensions granted to pensioners, the income received from employment legal relationships and the total income of pensioners. Consequently, a situation may arise when persons are unable to provide for themselves and they become the recipients of social assistance, but such an outcome contradicts to the principle of socially responsible state. Establishing different amounts of pensions disbursable to different groups of persons depending on their income levels would be less restrictive means.

Although the measures specified in Article 3 of the Disbursement Law are permissible, the legislator had a duty to provide lenient transitional provisions, so that persons could adapt to the new legal order. In this case, the law has come into effect earlier than one month after its adoption, which is in contradiction to the principle of protection of legitimate expectations or the principle of legal stability.

18. The Summoned party – Mg. mpa. Maija Poršņova – pointed out that the investment of social insurance funds in the State Treasury has both positive and negative aspects. On the one hand, the circumstance that the funds in question are subject to a lesser economical risk since they are invested in reliable financial instruments, at the same time retaining their relative value, can be deemed as the positive aspect. Such an action is particularly advisable in the situation of economic instability, for it lessens the likelihood of losing these funds. On the other hand, the situation that the Cabinet of Ministers can dispose of these funds, thus destabilizing the social insurance system on the whole, can be deemed as the negative aspect.

Assessing whether the legislator has treated the employed pensioners differently than the old-age pension recipients, Maija Poršņova pointed out that the Cabinet of Ministers and the Saeima, when they proposed the impugned provisions for adoption, knew the Judgment of the Constitutional Court in the case No. 2001-12-01 passed on 19 March 2002. It is evident that the decisions of these institutions were taken on account of the situation that has developed as a result of the economic crisis. Article 1 of the European Social Charter establishes that everyone shall have the opportunity to earn his or her living in an occupation freely entered upon. However, the European Code of Social Security permits the reduction of pension disbursement amounts in certain cases.

With respect to working pensioners, the principle of protection of legitimate expectations has been violated first of all because the working pensioners’ rights to resign from work in accordance with the procedure established by the law have been denied by the sudden coming into force of the impugned provisions.

The summoned party conceded that, from the viewpoint of social protection policy, service pension system is not the most economical and effective social protection mechanism. In accordance with the legal principles and legislative acts of the European Union, it is inadmissible to define occupations related to hazardous working conditions that would require compensation. Employees must be provided with such working conditions, environment and workday regimen that are not hazardous. At the same time one should take into account that it would be unjustified to restrict the rights to service pensions for those persons who have already earned these rights.

Determining whether it is justified to pay childcare benefit from the social insurance special budget, M. Poršņova indicated that, without increasing the State social insurance contribution rate, parental benefits were transferred to the State social insurance system, “squashed” in among other services, so to say. Consequently, the proportion of social insurance contributions in the pension fund decreased, and funds were channeled for the disbursement of parental benef