Last Updated on October 3, 2020 by LawEuro
Communicated on 13 December 2018
FOURTH SECTION
Application no. 71200/17
Kristina BRAZAUSKIENĖ
against Lithuania
lodged on 22 September 2017
STATEMENT OF FACTS
The applicant, Ms Kristina Brazauskienė, is a Lithuanian national, who was born in 1949 and lives in Vilnius. She is represented before the Court by Mr G. Černiauskas, a lawyer practising in Kaunas.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In April 2002 the applicant married A.M.B., who during the years of the Lithuanian Soviet Socialist Republic took various positions in the government of the Lithuanian SSR and the Communist Party of Lithuania. In particular, from 1977 to 1987 he was the secretary of Central Committee of Communist Party.
After the independence of the Republic of Lithuania was restored in 1990, from 1993 to 1998 A.M.B. was the President of the Republic. Between 2001 and 2006 he was the Prime Minister.
In June 2010 A.M.B. died, and the applicant became his widow.
1. The proceedings regarding the State annuity
After A.M.B.’s death, in July 2010 the applicant asked the Ministry of Social Care and Labour to grant her the State annuity of the widow of the former President of the Republic (“the State annuity”), which at that time was equal to 6,187 Lithuanian litas (LTL) (approximately 1,800 euros(EUR)) per month. The applicant referred to Article 4 § 1 of the Law on the State Annuity of the President of the Republic of Lithuania (“the Law on the State Annuity”) as the legal basis for her request and stated that she had no insured income (see the Relevant domestic law and practice part below).
The Ministry then issued an explanatory memorandum pursuant to which the applicant had met the required conditions for, and thus was entitled to, the State annuity and forwarded the applicant’s request to the Government.
On 25 August 2010 the press quoted the President of the Republic D.G. as having stated that the applicant was entitled to the State annuity, because such was the rule under the law as it stood. The applicant reported that although she owned property, she had no insured income [as provided for by Article 5 § 4 of the Law on the State Annuity].
The applicant’s request to be granted State annuity received big public interest and was widely discussed in the media. It was noted that the applicant was rather wealthy. In September 2010 the Government started reflecting on legislative amendments pursuant to which State pensions, including State annuity for the widow(er)s of the President of the Republic, would be granted taking into account not only the amount of insured income, but the entirety of property a person owned.
On 8 November 2010 the newspaper, 15min, ran an article quoting the Minister of Social Care and Labour D.J.: “actually, the Prime Minister has stated that maybe the person who submitted the request [the applicant] would reconsider and withdraw it. In such a case there would be no need to forward that request to the Government. As an optimist, I hope that such an option is also on the table”. When asked by the journalists why the Ministry was delaying to forward the applicant’s request to the Government, the Minister stated that, in his view, this was not “the most urgent matter” to tackle. The Minister confirmed that “it was not the Ministry who was delaying. It was [his], as Minister’s, prerogative to submit to the Government a draft resolution [regarding the applicant’s State annuity]. [He] had not yet submitted it”. Lastly, the Minister also highlighted that if the applicant did not withdraw her request, the Government would consider it. He noted that “there were no time-limits, but it was natural that there was a common sense time-limit during which the Government had to decide one way or another. This could not be delayed for years”.
As of December 2010 the politicians sought to challenge the constitutionality of the norms of the Law on the State Annuity. However, on 14 December 2010 the Seimas, acting in corpore, refused to bring the case to the Constitutional Court. The following day 15min ran an article “[The Prime Minister] A.K.: the State annuity should be granted to the destitute, which is not the case for Kristina Brazauskienė”. The Prime Minister was reported as having stated that “in the instant [the applicant’s] case, as we understand, [the applicant] would not have a problem with financial resources to attain a decent standard of living”. The article also quoted the Chairman of the Seimas as having stated that under the laws the applicant was entitled to the State annuity and that it was up to the applicant what to do with that money.
After the Seimasin corpore refused to bring the proceedings before the Constitutional Court, on 25 December 2015 this was done by the Minister of Social Affairs and Labour and thirty members of the Homeland Union political party fraction in the Seimas. In particular, they queried whether Article 4 § 1 of the Law on the State Annuity, insofar as it established that the right to the State annuity for the President’s widow(er) also arises in respect of the widow(er) who had not been the spouse of the President of the Republic while the latter was in office, was not in conflict with Article 90 of the Constitution and the constitutional principles of social harmony, justice, and a State under the rule of law.
The Social and Labour Ministry then refused, until the case was pending before the Constitutional Court, to process the applicant’s request for the State annuity.
By a ruling of 3 July 2014 the Constitutional Court held that Article 4 § 1 of the Law on the State Annuity was in breach of the Constitution (see the Relevant domestic law and practice part below). As of the day the Constitutional Court’s ruling was pronounced, that norm could no longer be applied.
Having regard to this ruling by the Constitutional Court, on 16 June 2016 the Seimas amended the Law on the State Annuity so that the norms regarding the President’s widow(er)’s annuity were abolished altogether. Instead, those matters were incorporated into the new version of the Law on State Pensions, in force as of 1 August 2016. The latter amendments also established new conditions to receive such an annuity: the widow(er) had to have been married to the President and executed the functions of the spouse for no less than three years of the President’s term in office (see the Relevant domestic law and practice part below).
The applicant was thus barred from receiving the State annuity as the widow of A.M.B.
On 16 June 2016 the internet site of one of the biggest national newspapers Lietuvosrytas posted an article “Bad news for K. Brazauskienė about the widow’s pension from the Seimas”. The publication quoted one of the members of the Seimas, E.M., who stated that “the draft legislation had been prompted by very particular circumstances. We had a situation when one lady [the applicant] had been very quick to make use of the benefits which she had not been entitled to. This lady had already been given much [property] by her spouse”. The publication also noted that the question to the Constitutional Court had been referred to by a group of Seimas members after the applicant had asked the State annuity once A.M.B. had died.
2. The proceedings regarding housing under the loan-for-use agreement
After A.M.B.’s death the applicant also asked the Government to provide her with housing, as provided for by Article 23 § 4 of the Law on the Office of the President, as it stood at that time (see the Relevant domestic law and practice part below).
On 7 July 2010 the Government passed resolution no. 1002, transferring for the applicant’s use a house situated in the district of Turniškės in Vilnius, where the applicant and A.M.B. had lived until his death. The Government resolution did not specify the date until which the applicant could use that property. The Government resolution was based on Article 23 § 4 of the Law on the Office of the President.
In August 2015 the Chancellery of the President of the Republic (“the Chancellery”) wrote to the applicant that the agreement for using the house in Turniškės was about to expire on 12 October 2015, and asked her to vacate the premises by that date.
The applicant asked the Chancellery to prolong that property use agreement by ten years. The Chancellery denied the request.
In reply to the applicant’s request, on 30 September 2015 the Government proposed that an apartment in the district of Antakalnis would be granted to her.
In October 2015 the applicant again asked the Chancellery to extend, by ten years, the property use agreement for the house in Turniškės, or, alternatively, to provide her with a similar living place. However, the same month both the Chancellery and the Government refused to grant the applicant’s request.
On 21 October 2015 the Chancellery started court proceedings for the applicant’s removal from the house in Turniškės.
By a judgment of 13 May 2016 the Vilnius City District Court granted the claim. The court relied on the Constitutional Court’s ruling of 3 July 2014 and pointed out that the applicant’s situation, that of the widow of the President of the Republic, could not be seen as comparable to the situation of the President. In particular, the scope of the President’s social guarantees was much wider. In contrast, the purpose of Article 23 § 4 of the Law on the President was to guarantee the President’s spouse’s right to housing. The District Court also pointed out that the applicant did not dispute the fact that the particular house in Turniškės had been granted for her use only for a certain period; she merely challenged the fact that the term of use was five years. It was also pertinent that the disputed house was located in the district of Turniškės, a secured territory where the Presidents of the Republic resided. The applicant, for her part, did not have the status of a person who was entitled to State protection. Accordingly, she had to vacate that house.
The District Court also noted that, pursuant to Article 23 § 4 of the Law on the President, the President’s spouse had a right to free housing, if he or she so wished. In the applicant’s case, such housing, in Antakalnis district in Vilnius, had been proposed to her on 30 September 2015.
The applicant appealed, but on 21 December 2016 the Vilnius Regional Court left the first instance court’s decision unchanged. On 28 March 2017 the Supreme Court refused to examine the applicant’s appeal on points of law.
According to the LNK television channel announcement of 20 April 2017, afterwards the applicant asked the Government to provide her with a list of free-for-use apartments, where she could move to from Turniškės. The television channel quoted the President of the Republic D.G. as having stated to the journalists that “free housing” was “a privilege of nomenklatura” and having suggested that the Government would refer the question to the Constitutional Court whether the applicant had a right to free housing:
“Such privileges of [Soviet] nomenclatura, as established in our laws, exist nowhere in the European Union. We have already seen the Constitutional Court’s reaction as regards the State annuity, and, I would think, in this case it would be pertinent for the Government to refer the matter of this particular privilege to the Constitutional Court so that the question could be resolved.”
According to that announcement, the Prime Minister S.S. was inclined to accept the President’s proposal. He was quoted as having stated:
“If [the applicant] would have to live on the street, we would probably seek and find [housing], the Government is preparing its position and will announce it… during the Government hearing. The President has urged that the question be referred to the Constitutional Court, and this will be done.”
On 26 April 2017 the Government asked the Constitutional Court to rule whether Article 23 § 4 of the Law on the Office of the President was not in conflict with the Constitution.
On 15 December 2017 the Constitutional Court ruled that Article 23 § 4 of the Law on the Office of the President was in conflict with Articles 29 and 90 of the Constitution and the constitutional principle of a State under the rule of law (see also the Relevant domestic law and practice part below).
The same day, the newspaper Versložinios printed an article with the title “The Constitutional Court decided that Brazauskienė did not deserve privileges”. In the article the President of the Constitutional Court D.Ž. made the following comment when responding to the question whether the Constitutional Court’s ruling meant that no spouse of the President of the Republic could have any privileges:
“Under the Constitution, a person may not obtain any kind of exclusive rights to housing simply because he or she has become a spouse [of the President of the Republic]. I can only briefly emphasise that each person must be assessed individually – if a particular spouse of the President of the Republic has exceptional individual merit, the situation is completely different.”
3. Other developments
In April 2017 A.B., a member of the Seimas, asked the law enforcement and tax authorities to investigate whether the property which the applicant and her family possessed had been acquired lawfully and whether she had paid all due taxes.
The applicant states that, in response to her and her family’s persecution, in September 2017 she had asked the law enforcement institutions to start criminal proceedings about her discrimination on the basis of her status (Article 169 of the Criminal Code), but that such investigation had not yet been opened.
B. Relevant domestic law and practice
The Constitution reads:
Article 29
“All persons shall be equal before the law, courts, and other State institutions and officials.
Human rights may not be restricted; no one may be granted any privileges on the grounds of gender, race, nationality, language, origin, social status, belief, convictions, or views.”
Article 52
“The State shall guarantee its citizens the right to receive old-age and disability pensions, as well as social assistance in the event of unemployment, sickness, widowhood, the loss of the breadwinner, and in other cases provided for by law.”
Article 90
“The President of the Republic shall have a residence. The financing of the President of the Republic and of his residence shall be established by law.”
Article 105
“The Constitutional Court shall consider and adopt decisions on whether the laws of the Republic of Lithuania or other acts adopted by the Seimas are in conflict with the Constitution of the Republic of Lithuania …”
Article 106
“The Government, not less than 1/5 of all the Members of the Seimas, and courts shall have the right to apply to the Constitutional Court concerning the acts specified in the first paragraph of Article 105.
…
An application by the President of the Republic to the Constitutional Court, or a resolution of the Seimas, asking for an investigation into the conformity of an act with the Constitution shall suspend the validity of the act …”
Article 107
“A law (or part thereof) of the Republic of Lithuania or another act (or part thereof) of the Seimas … may not be applied from the day of the official publication of the decision of the Constitutional Court that the act in question (or part thereof) is in conflict with the Constitution of the Republic of Lithuania.
The decisions of the Constitutional Court on the issues assigned to its competence by the Constitution shall be final and not subject to appeal …”
1. As to the State annuity for the President’s widow(er)
The Law on the State Annuity of the President of the Republic (Prezidentovalstybinėsrentosįstatymas), as applicable between 1 December 2007 and 3 July 2014, read as follows:
Article 4. Persons who have the right to receive the State annuity of the widow(er) … of the President of the Republic
“1. The spouse of a deceased President of the Republic (hereinafter referred to as the widow(er)) who is a citizen of the Republic of Lithuania shall have the right to receive the State annuity of the widow(er) of the President of the Republic…”
Article 5. The conditions for granting and paying the State annuity of the widow(er) … of the President of the Republic
“1. The State annuity of the widow(er) … of the President of the Republic is granted after the death of the President of the Republic, who was receiving or could have received the State annuity for the President of the Republic.
2. The State annuity for the President of the Republic is granted and (or) paid to the widow(er) irrespective of his or her age, the pensions he or she receives or other permanent pension-type payments he or she receives, with the exception of the cases established in Paragraph … 4 of this Article.
…
4. The State annuity of the widow(er) of the President of the Republic it is not granted and/or not paid where the widow(er) has any insured income…”
By the ruling of 3 July 2014 “On the widow(er)’s of the President of the Republic right to the State annuity”, the Constitutional Court held that such widow(er)’s right to receive the State annuity was in conflict with the Constitution. For the Constitutional Court, the said right amounted to privilege on the grounds of the social status of the person. The court highlighted that the constitutional status of the President of the Republic, as the Head of State, was individual and exceptional, and that it differed from the legal status of all other citizens and State officials. That status included, as its inseparable part, the constitutional social guarantees for the President of the Republic. That being so, a deceased person’s social status alone was not in itself a constitutionally justified ground to provide for his or her widow(er) an essentially different social assistance of a much larger amount than that provided to other widow(er)s. It followed, that such a legal framework was in conflict with Article 52 of the Constitution and the constitutional principle of a State under the rule of law.
The Law on State Pensions (Valstybiniųpensijųįstatymas), as supplemented by Article 151 on 30 June 2016, and in force as of 1 August 2016, reads:
Article 151. Entitlement to receive State pension of the spouse of the President of the Republic and the amount of the pension
“The right to receive the State pension of the spouse of the President of the Republic has a person who was the spouse of the President of the Republic during his or her term(s) of Office and performed the functions of the spouse of the President of the Republic, as established in the national and (or) diplomatic protocol for no less than three years …”
2. As to the right to free housing for the widow(er) of the President of the Republic
The Law on the Office of the President of the Republic of Lithuania (LietuvosRespublikosPrezidentoįstatymas) between 1 January 2009 and 14 December 2017 read:
Article 23. Material and Social Guarantees for the President of the Republic upon the Termination of his or her Powers
“…
4. Where the President of the Republic dies while in office or after the expiration of the term of office, his/her spouse shall, if he/she so desires, be provided with housing (residential premises) under a loan-for-use agreement in accordance with the procedure established by the Government of the Republic of Lithuania.”
By a ruling of 15 December 2017 the Constitutional Court held that Article 23 § 4 of the Law on the Office of the President was incompatible with Articles 29 § 2 and 90 of the Constitution, because in the area of social guarantees it likened the spouse of the President of the Republic with the President, notwithstanding the latter’s individual legal status of the Head of State. The Constitutional Court also noted that Article 90 of the Constitution did not establish any exclusive material and social guarantees for the spouse of the President of the Republic, which could be acquired on the basis of the status of the spouse upon the President’s death. Moreover, the Constitution did not protect or defend any such rights acquired by a person that were privileges in terms of their content. To defend and protect any such privileges would amount to a breach of the constitutional principle of the equality of the rights of persons and the provision of Article 29 § 2 of the Constitution, which prohibits the granting of privileges, among other things, on the grounds of the social status of a person.
COMPLAINTS
The applicant complains, relying on Article 14 of the Convention alone, and, in substance, together with Article 1 of Protocol No. 1, that she had been discriminated against in connection with issues regarding State annuity and free housing. She points out that although she qualified to be granted those benefits, as the widow of the President of the Republic, when requesting them, the authorities refused to apply the existing legal regulation. Instead, the matter had been referred to the Constitutional Court on the initiative of the politicians who depicted her in a particularly negative light in order to bar her from obtaining those benefits. The applicant points out that the new legislation regarding the State annuity had been specifically tailored to her disadvantage, so that she was excluded from the circle of persons who could obtain such annuity. Similarly, although the civil courts acknowledged her right to free housing, the authorities denied her that right.
QUESTIONS TO THE PARTIES
1. Did the social guarantees – the State annuity for the widow(er) of the President of the Republic, under Article 4 § 1 on the Law on the State Annuity of the President of the Republic, and free housing for the widow(er) of the President of the Republic, under Article 23 § 4 of the Law on the Office of the President, constitute possessions within the meaning of Article 1 of Protocol No. 1?
Alternatively, did the applicant have a legitimate expectation to receive them, prior to the Constitutional Court’s rulings of 3 July 2014 and 15 December 2017, respectively?
Were there any circumstances under which the refusal to grant the applicant State annuity and free housing could be justified under Article 1 of Protocol No. 1?
2. Did the applicant suffer discrimination, on the ground of her property, social or other status, in the enjoyment of her rights, contrary to Article 14 of the Convention, read in conjunction with Article 1 of Protocol No. 1, given that:
(a) she was not granted State annuity between 2010, when she had lodged her request, and 3 July 2014, when the Constitutional Court delivered its ruling?
(b) she was not granted free housing between 2015, when she asked to have the loan-for-use agreement to be prolonged, and 15 December 2017, when the Constitutional Court delivered its ruling?
The Court refers to public statements that the applicant, who was well off, did not deserve State annuity and free housing.
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