Communicated on 13 December 2018<\/p>\n
FOURTH SECTION<\/p>\n
Application no. 71200\/17
\nKristina BRAZAUSKIEN\u0116
\nagainst Lithuania
\nlodged on 22 September 2017<\/p>\n
STATEMENT OF FACTS<\/p>\n
The applicant, Ms Kristina Brazauskien\u0117, is a Lithuanian national, who was born in 1949 and lives in Vilnius. She is represented before the Court by Mr G.\u00a0\u010cerniauskas, a lawyer practising in Kaunas.<\/p>\n
A.\u00a0\u00a0The circumstances of the case<\/strong><\/p>\n The facts of the case, as submitted by the applicant, may be summarised as follows.<\/p>\n 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.<\/p>\n 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.<\/p>\n In June 2010 A.M.B. died, and the applicant became his widow.<\/p>\n 1.\u00a0\u00a0The proceedings regarding the State annuity<\/em><\/p>\n After A.M.B.\u2019s 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 (\u201cthe State annuity\u201d), which at that time was equal to 6,187 Lithuanian litas (LTL) (approximately 1,800\u00a0euros(EUR)) per month. The applicant referred to Article 4\u00a0\u00a7\u00a01 of the Law on the State Annuity of the President of the Republic of Lithuania (\u201cthe Law on the State Annuity\u201d) as the legal basis for her request and stated that she had no insured income (see the Relevant domestic law and practice part below).<\/p>\n 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\u2019s request to the Government.<\/p>\n 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 \u00a7 4 of the Law on the State Annuity].<\/p>\n The applicant\u2019s 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.<\/p>\n On 8\u00a0November 2010 the newspaper, 15min, ran an article quoting the Minister of Social Care and Labour D.J.: \u201cactually, 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\u201d. When asked by the journalists why the Ministry was delaying to forward the applicant\u2019s request to the Government, the Minister stated that, in his view, this was not \u201cthe most urgent matter\u201d to tackle. The Minister confirmed that \u201cit was not the Ministry who was delaying. It was [his], as Minister\u2019s, prerogative to submit to the Government a draft resolution [regarding the applicant\u2019s State annuity]. [He] had not yet submitted it\u201d. Lastly, the Minister also highlighted that if the applicant did not withdraw her request, the Government would consider it. He noted that \u201cthere 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\u201d.<\/p>\n As of December 2010 the politicians sought to challenge the constitutionality of the norms of the Law on the State Annuity. However, on 14\u00a0December 2010 the Seimas, acting in corpore, refused to bring the case to the Constitutional Court. The following day 15min ran an article \u201c[The Prime Minister] A.K.: the State annuity should be granted to the destitute, which is not the case for Kristina Brazauskien\u0117\u201d. The Prime Minister was reported as having stated that \u201cin the instant [the applicant\u2019s] case, as we understand, [the applicant] would not have a problem with financial resources to attain a decent standard of living\u201d. 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.<\/p>\n After the Seimasin corpore refused to bring the proceedings before the Constitutional Court, on 25\u00a0December 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\u00a04 \u00a7\u00a01 of the Law on the State Annuity, insofar as it established that the right to the State annuity for the President\u2019s 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.<\/p>\n The Social and Labour Ministry then refused, until the case was pending before the Constitutional Court, to process the applicant\u2019s request for the State annuity.<\/p>\n By a ruling of 3 July 2014 the Constitutional Court held that Article 4\u00a0\u00a7\u00a01 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\u2019s ruling was pronounced, that norm could no longer be applied.<\/p>\n Having regard to this ruling by the Constitutional Court, on 16\u00a0June 2016 the Seimas amended the Law on the State Annuity so that the norms regarding the President\u2019s widow(er)\u2019s annuity were abolished altogether. Instead, those matters were incorporated into the new version of the Law on State Pensions, in force as of 1\u00a0August 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\u2019s term in office (see the Relevant domestic law and practice part below).<\/p>\n The applicant was thus barred from receiving the State annuity as the widow of A.M.B.<\/p>\n On 16\u00a0June 2016 the internet site of one of the biggest national newspapers Lietuvosrytas posted an article \u201cBad news for K.\u00a0Brazauskien\u0117 about the widow\u2019s pension from the Seimas\u201d. The publication quoted one of the members of the Seimas, E.M., who stated that \u201cthe 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\u201d. 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.<\/p>\n 2.\u00a0\u00a0The proceedings regarding housing under the loan-for-use agreement<\/em><\/p>\n After A.M.B.\u2019s death the applicant also asked the Government to provide her with housing, as provided for by Article\u00a023 \u00a7\u00a04 of the Law on the Office of the President, as it stood at that time (see the Relevant domestic law and practice part below).<\/p>\n On 7\u00a0July 2010 the Government passed resolution no.\u00a01002, transferring for the applicant\u2019s use a house situated in the district of Turni\u0161k\u0117s 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\u00a023 \u00a7\u00a04 of the Law on the Office of the President.<\/p>\n In August 2015 the Chancellery of the President of the Republic (\u201cthe Chancellery\u201d) wrote to the applicant that the agreement for using the house in Turni\u0161k\u0117s was about to expire on 12 October 2015, and asked her to vacate the premises by that date.<\/p>\n The applicant asked the Chancellery to prolong that property use agreement by ten years. The Chancellery denied the request.<\/p>\n In reply to the applicant\u2019s request, on 30\u00a0September 2015 the Government proposed that an apartment in the district of Antakalnis would be granted to her.<\/p>\n In October 2015 the applicant again asked the Chancellery to extend, by ten years, the property use agreement for the house in Turni\u0161k\u0117s, 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\u2019s request.<\/p>\n On 21 October 2015 the Chancellery started court proceedings for the applicant\u2019s removal from the house in Turni\u0161k\u0117s.<\/p>\n By a judgment of 13\u00a0May 2016 the Vilnius City District Court granted the claim. The court relied on the Constitutional Court\u2019s ruling of 3\u00a0July 2014 and pointed out that the applicant\u2019s 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\u2019s social guarantees was much wider. In contrast, the purpose of Article 23 \u00a7 4 of the Law on the President was to guarantee the President\u2019s spouse\u2019s right to housing. The District Court also pointed out that the applicant did not dispute the fact that the particular house in Turni\u0161k\u0117s 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 Turni\u0161k\u0117s, 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.<\/p>\n The District Court also noted that, pursuant to Article 23 \u00a7\u00a04 of the Law on the President, the President\u2019s spouse had a right to free housing, if he or she so wished. In the applicant\u2019s case, such housing, in Antakalnis district in Vilnius, had been proposed to her on 30 September 2015.<\/p>\n The applicant appealed, but on 21\u00a0December 2016 the Vilnius Regional Court left the first instance court\u2019s decision unchanged. On 28 March 2017 the Supreme Court refused to examine the applicant\u2019s appeal on points of law.<\/p>\n According to the LNK television channel announcement of 20\u00a0April 2017, afterwards the applicant asked the Government to provide her with a list of free-for-use apartments, where she could move to from Turni\u0161k\u0117s. The television channel quoted the President of the Republic D.G. as having stated to the journalists that \u201cfree housing\u201d was \u201ca privilege of nomenklatura\u201d and having suggested that the Government would refer the question to the Constitutional Court whether the applicant had a right to free housing:<\/p>\n \u201cSuch privileges of [Soviet] nomenclatura, as established in our laws, exist nowhere in the European Union. We have already seen the Constitutional Court\u2019s 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.\u201d<\/p>\n According to that announcement, the Prime Minister S.S. was inclined to accept the President\u2019s proposal. He was quoted as having stated:<\/p>\n \u201cIf [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.\u201d<\/p>\n On 26\u00a0April 2017 the Government asked the Constitutional Court to rule whether Article 23 \u00a7 4 of the Law on the Office of the President was not in conflict with the Constitution.<\/p>\n On 15 December 2017 the Constitutional Court ruled that Article\u00a023 \u00a7\u00a04 of the Law on the Office of the President was in conflict with Articles\u00a029 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).<\/p>\n The same day, the newspaper Verslo\u017einios printed an article with the title \u201cThe Constitutional Court decided that Brazauskien\u0117 did not deserve privileges\u201d. In the article the President of the Constitutional Court D.\u017d. made the following comment when responding to the question whether the Constitutional Court\u2019s ruling meant that no spouse of the President of the Republic could have any privileges:<\/p>\n \u201cUnder 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 \u2013 if a particular spouse of the President of the Republic has exceptional individual merit, the situation is completely different.\u201d<\/p>\n 3.\u00a0\u00a0Other developments<\/em><\/p>\n 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.<\/p>\n The applicant states that, in response to her and her family\u2019s 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.<\/p>\n B.\u00a0\u00a0Relevant domestic law and practice<\/strong><\/p>\n The Constitution reads:<\/p>\n Article 29<\/p>\n \u201cAll persons shall be equal before the law, courts, and other State institutions and officials.<\/p>\n 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.\u201d<\/p>\n Article 52<\/p>\n \u201cThe 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.\u201d<\/p>\n Article 90<\/p>\n \u201cThe 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.\u201d<\/p>\n Article 105<\/p>\n \u201cThe 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 …\u201d<\/p>\n Article 106<\/p>\n \u201cThe 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.<\/p>\n …<\/p>\n 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 …\u201d<\/p>\n Article 107<\/p>\n \u201cA 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.<\/p>\n The decisions of the Constitutional Court on the issues assigned to its competence by the Constitution shall be final and not subject to appeal …\u201d<\/p>\n 1.\u00a0\u00a0As to the State annuity for the President\u2019s widow(er)<\/em><\/p>\n The Law on the State Annuity of the President of the Republic (Prezidentovalstybin\u0117srentos\u012fstatymas), as applicable between 1\u00a0December 2007 and 3\u00a0July 2014, read as follows:<\/p>\n Article\u00a04. Persons who have the right to receive the State annuity of the widow(er) … of the President of the Republic<\/p>\n \u201c1. 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…\u201d<\/p>\n Article 5. The conditions for granting and paying the State annuity of the widow(er) … of the President of the Republic<\/p>\n \u201c1. 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.<\/p>\n 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.<\/p>\n …<\/p>\n 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…\u201d<\/p>\n By the ruling of 3\u00a0July 2014 \u201cOn the widow(er)\u2019s of the President of the Republic right to the State annuity\u201d, the Constitutional Court held that such widow(er)\u2019s 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\u2019s 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\u00a052 of the Constitution and the constitutional principle of a State under the rule of law.<\/p>\n The Law on State Pensions (Valstybini\u0173pensij\u0173\u012fstatymas), as supplemented by Article 151 on 30\u00a0June 2016, and in force as of 1\u00a0August 2016, reads:<\/p>\n Article 151. Entitlement to receive State pension of the spouse of the President of the Republic and the amount of the pension<\/p>\n \u201cThe 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 …\u201d<\/p>\n 2.\u00a0\u00a0As to the right to free housing for the widow(er) of the President of the Republic<\/em><\/p>\n The Law on the Office of the President of the Republic of Lithuania (LietuvosRespublikosPrezidento\u012fstatymas) between 1\u00a0January 2009 and 14\u00a0December 2017 read:<\/p>\n Article 23. Material and Social Guarantees for the President of the Republic upon the Termination of his or her Powers<\/p>\n \u201c…<\/p>\n 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.\u201d<\/p>\n By a ruling of 15\u00a0December 2017 the Constitutional Court held that Article\u00a023 \u00a7\u00a04 of the Law on the Office of the President was incompatible with Articles 29 \u00a7 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\u2019s 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\u2019s 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 \u00a7 2 of the Constitution, which prohibits the granting of privileges, among other things, on the grounds of the social status of a person.<\/p>\n COMPLAINTS<\/strong><\/p>\n The applicant complains, relying on Article 14 of the Convention alone, and, in substance, together with Article 1 of Protocol No.\u00a01, 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.<\/p>\n QUESTIONS TO THE PARTIES<\/strong><\/p>\n 1.\u00a0\u00a0Did the social guarantees \u2013 the State annuity for the widow(er) of the President of the Republic, under Article 4 \u00a7 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 \u00a7 4 of the Law on the Office of the President, constitute possessions within the meaning of Article\u00a01 of Protocol No.\u00a01?<\/p>\n Alternatively, did the applicant have a legitimate expectation to receive them, prior to the Constitutional Court\u2019s rulings of 3\u00a0July 2014 and 15\u00a0December 2017, respectively?<\/p>\n 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?<\/p>\n 2.\u00a0\u00a0Did the applicant suffer discrimination, on the ground of her property, social or other status, in the enjoyment of her rights, contrary to Article\u00a014 of the Convention, read in conjunction with Article 1 of Protocol No. 1, given that:<\/p>\n (a)\u00a0\u00a0she was not granted State annuity between 2010, when she had lodged her request, and 3\u00a0July 2014, when the Constitutional Court delivered its ruling?<\/p>\n (b)\u00a0\u00a0she 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?<\/p>\n The Court refers to public statements that the applicant, who was well off, did not deserve State annuity and free housing.<\/p>\n