JUDGMENT
On Behalf of the Republic of
Latvia
Riga, 2 February 2010
in the Case No. 2009-46-01
The Constitutional Court of the Republic of
Latvia, composed of the Chairman of the Court hearing Gunārs
Kūtris, Justices Kaspars Balodis, Aija Branta,
Juris Jelāgins, Kristīne Krūma and Viktors Skudra,
having regard to the
application of twenty members of the Saeima
(Parliament) of the Republic of Latvia - Boriss Cilevičs, Jāis Tutins, Ivans Klementjevs,
Aleksandrs Golubovs, Artūrs Rubiks, Sergejs Fjodorovs, Sergejs Mirskis, Nikolajs Kabanovs, Sergejs Dolgopolovs, Valērijs Agešins, Andrejs Klementjevs, Ivans Ribakovs, Vitālijs Orlovs, Aleksejs Vidavskis, Oļegs Deņisovs, Jānis Urbanovičs, Nils Ušakovs, Juris Skolovsisa, Miroslavs Mitrofanovs and Valērijs Buhvalovs (hereinafter Applicants), this application
being submitted for initiation of a case,
according to Article 85 of the Satversme (Constitution) of the Republic of Latvia, Article
16 1st indent, Article 17
(1), 3rd indent, and Article 28.1 of the Constitutional Court Law,
on 12 January 2010 in writing examined the case
On
Compliance of the First Sentence of Para 1 of the Transitional Provisions of
the Law on the Social Protection of the Participants of the Chernobyl Nuclear
Clean-up and Persons Suffered as a Result of the Chernobyl Nuclear Power
Station Accident with Article 91 of the Satversme
(Constitution) of the Republic of Latvia.
The Facts
1. On 9 September 1999, the Saeima of the Republic of Latvia (hereinafter Saeima) adopted the Law on the Social Protection of the Participants
of the Chernobyl Nuclear Clean-up and Persons Suffered as a Result of the
Chernobyl Nuclear Power Station Accident (hereinafter Law). It came into
force on 1 January 2000. The first sentence of Para 1 of the Transitional
Provisions of the Law (hereinafter the Contested Norm) in its current wording
provides the following: The disablement pension and the survivors
pension granted to the above mentioned persons before the date of coming into
force of this Law and the
amount of which has been calculated at the amount of the detriment, shall not be
recalculated, except for the cases when the level of disablement (in percents) or disability group of a person who has been granted pension at the amount of the
detriment compensation has changed.
2. The Applicants hold that the Contested Norm does not comply with
Article 91 of the Satversme of the Republic of Latvia
(hereinafter Satversme).
According to the Applicant,
when recalculating pensions in accordance with the formula established in the
second sentence of Para 2 of the Transitional Provisions of the Law, the
average gross wage for employees working in the public sector for the previous
quarter calculated by the Central Statistical Bureau is taken into account.
When comparing the situation in 1999 and 2007, it can be concluded that this index
has increased almost threefold. In the result of this, in certain cases when a
pension is recalculated due to disablement or change of disability group,
disablement pension increases if compared with the previous period, namely, the
period before 1 January 2000. However, persons whose health has deteriorated
and who were established a disability group previously, whilst their level of
disablement or disability group has remained
unchanged, the pension calculated in accordance with the detriment has remained
at the same level. If a person was established
a disability group or whose level of disablement or disability group has
changed after coming into force of the Law, the amount of disablement pension
is higher if compared with that of a person with a higher but unchanging level
of disablement or disability group provided that disablement pension was
granted to this person before coming into force of the Contested Norm.
According to the Applicant,
such a situation shall be regarded as an infringement of the principle of legal
security because, according to the Contested Norm, the amount of disablement
pensions of a person shall depend on the time when a person was granted
disability group rather than on the health condition or other objective
circumstances. It cannot be understood from the Contested Norm what criteria in
particular were taken as the grounds when establishing the different procedures
for calculation pensions for persons who were established a disability group
before the date of coming into force of the Law and for those who were established
a disability group after it.
3. The institution that adopted the contested act the
Saeima does not agree with the opinion of the
Applicant and holds that the Contested Norm complies with Article 91 of the Satversme.
The data provided by the State
Social Insurance Agency [Valsts sociālās apdrošināšanas aģentūra]
(hereinafter SSIA) show that person who were granted disability in the result
of the Chernobyl Nuclear Power Station (hereinafter Chernobyl NPS) nuclear
clean-up and who were granted disablement pension before coming into force of
the Law, the average amount of disablement pension was higher than that of
persons suffered as a result of the Chernobyl NPS accident clean-up.
Consequently, the opinion of the Applicant that disablement pensions granted
nowadays are higher than those granted before coming into force of the law and
pensions are not being recalculated, is not grounded.
When analysing compliance of
the Contested Norm with Article 91 of the Satversme,
the Saeima draws attention to normative regulatory framework
on social protection for the persons suffered as a result of the Chernobyl NPS
accident that was effective before adoption of the Law. The legislator, when
adopting the Law, had to observe the principle of legal security, namely, to
protect the rights of persons that were already conferred before the date of
coming into force of the Law. The Contested Norm served as one of the
mechanisms to protect legal security of persons during the process of
introducing amendments to the normative regulatory framework. Moreover, the Law
was adopted in collaboration with the Latvian association Černobiļa
[Chernobyl]. It asked to preserve
the previous procedure for calculation of disablement pensions for persons who
were established a disability group before 2000.
The Saeima
does not share the opinion of the Applicant that the Contested Norm has no
reasonable grounds. The procedure of elaboration of the norm shows that the aim
of it was to protect legal security of those persons who were granted the
disablement pension before coming into force of the Law. When adopting the
Contested Norm, the principle of legal security was regarded to be a value of a
higher constitutional importance if compared to the principle of equality. Such
decision of the legislator was not political as to its character, and it can be
reassessed in the frameworks of legislative procedure, should it be established
that amendments to normative regulations are required. Moreover, the amount of
disablement pension for those participants of the Chernobyl NPS nuclear
clean-up who were already granted disablement pension would decrease
considerably if the Contested Norm would not be adopted. When elaborating the
Law, the legislator could not foresee the rapid increase of average monthly
wage during the period of economic growth.
4. The summoned person the Ombudsman of the Republic of Latvia (hereinafter
Ombudsman) indicates that all persons who were conferred disablement pension
at the amount of the detriment before coming into force of the Law or who were granted
detriment compensation and disablement pension after coming into force of the
Law are brought together by one common circumstance, i.e. disablement and
disability group set in after participation in the Chernobyl NPS nuclear
cleanup or as a result of the accident.
Consequently, the above
mentioned persons enjoy equal and comparable conditions. Since the Contested Norm
provides for a restriction regarding the possibility to recalculate disablement
pension, it establishes a different attitude towards persons who were granted
disablement pension before 31 December 1999 and whose level of disablement (in
percents) of disability group has remained unchanged since coming into force of
the Law.
The Ombudsman agrees with the Saeima that the legitimate objective of the Contested Norm
was to protect legal security of persons who were granted disablement pension
before coming into force of the Law. However, it should be taken into account
that the situation has changed since adoption of the Contested Norm.
One of the indices that is
taken into account when recalculating disability pensions in accordance with
the Contested Norm is the average gross wage of employees of the public sectors
during the previous quarter calculated by the Central Statistical Bureau [Centrālā statistikas pārvalde]. Since 2008, this index has constantly increased.
There is a considerable difference between the wage in 2000 and 2009. When
recalculating disablement pension in accordance with the Contested Norm, the
above mentioned index is taken into account irrespective the fact whether the
level of disablement (in percents) or disability group has increased or
reduced. It can be concluded from the information provided by the SSIA that in
the result of the above mentioned circumstances, provided that the level of
disablement has reduced, the amount of disablement pension is greater that the
pension in case if the level of disablement of a person has remained unchanged
for several years.
According to the Ombudsman,
the above described situation does not comply with the objective of the
Contested Norm and the Law. The aim of the Law is to establish social
guarantees for persons suffered as a result of the Chernobyl NPS accident.
Both, the objective of the Law and the principle of justice requires
compensating the detriment caused to the above mentioned persons depending on
the gravity of the detriment, namely, the greater is the detriment, the more
social guarantees a person gets. The Contested Norm has ceased to protect the
right of the persons who were granted disablement pension at the amount of the
detriment before coming into force of the Law and whose level of disablement or
disability level has remained unchanged since coming into force of the Law.
Consequently, the measures selected by the legislator are no more appropriate
for reaching the legitimate objective, and the Contested Norm does not comply
with the principle of proportionality and Article 91 of the Satversme.
5. The
State Social Insurance Agency draws attention to normative acts, according to which disablement
pensions, survivors pensions were calculated and social guarantees were
granted to persons suffered as a result of the Chernobyl NPS accident before
the date of coming into force of the Law.
15
May 1991 decision of the Supreme Council of the Republic of Latvia provided
that disablement pension at the amount of the detriment caused shall be
conferred to persons who participated in Chernobyl NPS nuclear clean-up or have
suffered as a result of radioactive pollution of the Chernobyl NPS accident.
However, detriment
compensation established in the first part of Section 8 of the 1 January
2000 Law is allocated to those participants of the Chernobyl NPS nuclear
clean-up who were established a disability group provided that its causal
relationship with the clean-up works of the Chernobyl NPS accident or the level
of disablement constitutes 10 25 percent, and it is related with having
executed the above mentioned works.
According to the information
provided by the SSIA, persons who were established a disability group before 1
January 2000 provided that their disability is caused by having executed works
related with clean-up after the Chernobyl NPS accident, have the right to
receive disablement pension in accordance with the norms of the Law On State
Pensions. However, according to the first part of Section 10 of the Law,
participants of the Chernobyl NPS nuclear clean-up and their dependent persons can
also be granted detriment compensation in addition to the State pension
(disablement pension, old-age pension, long-service pension, as well as
survivors pension). In case if a person does not have the right to a State
pension, whilst he or she has the right to receive a State social security
benefit, the detriment compensation shall also be granted in addition to the
State social security benefit.
The SSIA also observes that,
at present, 2737 persons receive disablement pension due to their disability as
a result of the Chernobyl NPS nuclear clean-up. 1884 persons out of them were
granted disablement pension before 2000, whilst 853 persons it was granted
after 2000. The average amount of a pension for persons who were established a
disability group before 2000 was 205.19 lats, whilst
that of persons who were established a disability group after 2000 constituted
94.41 lats.
The
Constitutional Court has established:
6. Article 91 of the Satversme provides: All human beings in Latvia shall be equal before the
law and the courts. Human rights shall be realised without discrimination of
any kind.
The application contains a
request to assess compliance of the Contested Norm with the entire Article 91
of the Satversme. However, it follows from the application that compliance of the
Contested Norms only with the first sentence of Article 91 of the Satversme should be assessed provided that the first
sentence thereof guarantees equality of persons before the law and courts. The
objective of the principle of prohibition of discrimination incorporated in the
second sentence of Article 91 of the Satversme is to
prevent the possibility that in a democratic and law-governed state, based on
some inadmissible criterion like race, nationality or gender, the basic rights
would be restricted (see: Judgment of 29
December 2008 by the Constitutional Court in the case No. 2008‑37-03, Para 6). It has not been
indicated in the application, however, that the different attitude provided in
the Contested Norms would be based on some inadmissible criterion. Therefore,
in the framework of this case, the Contested Norms shall be analyzed in the
context of the principle of equality, rather than that of prohibition of
discrimination.
7. The task of the principle of equality enshrined in the first sentence of Article 91 of the Satversme is to ensure that the demand of the law-governed
state of an all-embracing influence of the law on all persons, as well as
securing of applying the law without any privileges is realized. It guarantees complete effect of the
law, objectivity and impassiveness of its application as well as the fact that
nobody is allowed not to observe the instructions of the law (see: Judgment of 14 September 2005 by the
Constitutional Court in the case No. 2005-02-0106, Para 9.1). However, such unity of legal procedure does not mean levelling,
because Equality allows
a differentiated approach, if it can be justified in a democratic society (see: Judgment of 26 June 2001 by the
Constitutional Court in the case No. 2001-02-0106, Para 6 of the concluding part).
When
interpreting Article 91 of the Satversme the
Constitutional Court has recognized that the principle of equality forbids to
the State institutions passing such norms, which without a reasonable ground
permit a differentiated attitude to persons, who are in equal and under certain
criteria comparable circumstances. The principle of equality permits and even
requires a differentiated attitude towards persons, who are in different
circumstances as well as permits a differentiated attitude towards persons, who
are in equal circumstances, if there is an objective and reasonable basis for
it (see, e.g.: Judgment of 3 April 2001 by the Constitutional Court in the
case No. 2000-07-0409, Para 1 of the Concluding Part and Judgment of 29
December 2008 in the case No. 2008‑37-03, Para 7).
A different attitude has no objective and well-grounded reason if it does not
have a legitimate objective or if the chosen means and advanced objectives are
not proportionate (see: Judgment of 23 December 2002 by the Constitutional
Court in the case No. 2002-15-01, Para 3 of the Concluding Part).
Consequently, in order to assess whether the Contested Norms comply with
the principle of equality included in the first sentence of Article 91 of the Satversme, it is necessary to establish:
1.
whether and
what persons (groups of person) enjoy equal and, according to certain criteria,
comparable conditions;
2.
whether the Contested
Norm provides for an equal or different attitude towards these persons;
3.
whether such attitude has an
objective and well-grounded reason, namely, whether it has a legitimate
objective and whether the principle of proportionality has been observed.
8. Legal regulation establishing the status of
participants of the Chernobyl NPS nuclear clean-up, their dependant persons and
persons suffered as a result of the Chernobyl NPS nuclear clean-up and social
guarantees related thereto has been substantially amended since coming into
force of the Law on 1 January 2000.
8.1. On 15 May 1991, the Supreme Council of the
Republic of Latvia adopted the decision On Measures to be Taken
to Improve Social Situation of Inhabitants of the Republic of Latvia suffered
in the result of the Chernobyl NPS accident. Section 3 of the above mentioned
judgment provided that persons who participated in the Chernobyl NPS nuclear
clean-up, as well as have resided in the zone of radioactive pollution shall be
granted disablement pension if disability of the above mentioned person is
caused by the Chernobyl NPS accident. It was provided in the decision that the
amount of pensions shall be established according to provisions regulating
compensation for the detriment caused. The same procedure was also established
for calculation of survivors pension for families of deceased disabled
persons. Consequently, before coming into force of the Law, social guarantees
were established for three groups of persons:
1) persons who participated in the Chernobyl NPS nuclear clean
up that resulted in disability;
2) persons who resided in the zone of radioactive pollution
that resulted in disability;
3) families of deceased persons whose disability was caused by
the Chernobyl NPS accident.
The SSIA indicated that before
coming into force of the Law, disablement pensions for both, participants of
the Chernobyl NPS nuclear clean-up and persons suffered in the result of the
Chernobyl NPS accident were calculated in accordance with the Law On State
pensions. However, in the case if the amount of this pension calculated in
accordance with these norms was smaller than the amount of detriment
compensation, the pension was granted at the amount of the compensation in
accordance with the average wage in the State and the level of disablement (see: case materials, pp. 102).
Calculation of disablement pension at the amount of detriment compensation was
more advantageous for persons with relatively high level of disablement. The
procedure for recalculation of detriment compensation has not been considerably
amended before 1 January 2000, and according to the normative acts effective at
that time this compensation was calculated according to the formula DC
(detriment compensation) or later PA (pension amount) = 90%AW (average wage) x
LD (level of disablement in percents).
8.2. Persons whose disability was caused by the
Chernobyl NPS accident and for whom disability group was established before
coming into force of the Law, social guarantees are being ensured in accordance
with the norms of the Law. The Law provides for different social guarantees,
namely, detriment compensation, disablement pension, survivors pension, state
social security benefit, as well as medical assistance.
Section 8 of the Law
distinguishes three groups of persons who are granted detriment compensation:
1)
Participants
of the Chernobyl NPS nuclear clean-up who were granted a disablement group, and
disability being caused in the result of executing works of Chernobyl NPS
nuclear clean-up;
2)
Participants
of the Chernobyl NPS nuclear clean-up whose level of disablement constitute 10
25 percent, and it disability being caused in the result of executing works
of Chernobyl NPS nuclear clean-up.
3)
Disabled
persons who are family members of the above mentioned persons, the first being
dependent on the latter that has already deceased.
Moreover, according to the
first part of Section 10 of the Law, the first and the third group of persons
have the right to receive detriment compensation at the same time and State
pension granted under the Law On State Pensions, or detriment compensation
and the State social security benefit granted under the Law On Social Assistance.
At present, issues included in the Law On Social Assistance are regulated by
the Social Service and Social Assistance Law.
Consequently, it can be
concluded that, after coming into force of the Law, circumstances enjoyed by
persons suffered as a result of the Chernobyl NPS have changed. The circle of
persons who were granted social guarantees has also changed. Namely, before
coming into force of the Law, all social guarantees were also received by
persons who suffered from radioactive pollution but who did not participate in
nuclear clean-up; however now the Law ensures these persons with only one kind
of social assistance, which is medical assistance. Kinds of social assistance
and the procedure for calculation thereof also have substantially changed.
Before coming into force of the Law, normative acts provided for two kinds of
social guarantees, namely, disablement pension and survivors pension. Nowadays
the Law provides for five kinds of social guarantees. Normative acts have also undergone
considerable amendments, these acts establishing procedure for calculation of
disablement pension and allocation of different kinds of social assistance.
Consequently, persons who
suffered as a result of the Chernobyl NPS accident and were granted social guarantees
before coming into force of the Law, and persons who were granted social
guarantees after the coming into force of the law shall be regarded as
comparable groups in the frameworks of the present case.
8.3. According to the Contested Norm, disablement
pension conferred before the date of coming into force of the Law and was
calculated at the amount of detriment compensation, shall be recalculated in the cases when the
level of disablement (in
percents) or disability
group of a person who has been granted pension at the amount of the detriment has changed. According to the second sentence of Para 1 of the
Law, the above mentioned pension are calculated based on the formula p (pension
amount) = 90%AV (average gross wage for
employees working in the public sector for the previous quarter calculated by
the Central Statistical Bureau) x LD (level of disablement (in percents)).
Consequently, persons who,
before coming into force of the Law, were granted disablement pension at the
amount of detriment compensation can be divided into two groups. The first
group includes persons, the amount of disablement pension of whom has remained
unchanged since the date of adoption thereof due to the fact that the pension
was not recalculated. The second group includes persons whose disablement
pension was recalculated in accordance with the above mentioned formula.
Consequently, the Constitutional Court has to investigate whether these persons
enjoy equal and comparable conditions.
Persons who have been
granted pension at the amount of the detriment before the date of coming into
force of the Law, have several characteristics in common. All of them have
suffered as a result of the Chernobyl NPS accident, their disability having
been caused by consequences of the accident. Disablement pension at the amount
of detriment compensation for these persons was calculated in accordance with
one and the same formula. Moreover, the formula that is used for recalculation
of disablement pensions at the amount of detriment compensation granted to
these persons in case if level of disablement or disability group has changed,
is identical to the formula used for calculation of disablement pension at the
amount of detriment compensation before coming into force of the Law. When
establishing such procedure, the legislator has recognized that all persons
who, before the date of coming into force of the Law, were granted disablement
pension at the amount of detriment compensation enjoy equal and comparable
circumstances.
Consequently, persons who, before the date of coming into force of the Law,
were granted disablement pension at the amount of detriment compensation enjoy
equal and comparable conditions disregarding the fact whether the above
mentioned pensions of these persons has been recalculated in accordance with
Para 1 of the Transitional Provisions of the Law.
9. Before the date of coming into force of the Law,
the amount of disablement pension at the amount of detriment compensation
granted to a person depended on the level of disablement and the average wage
of employees in public and local government enterprises, institutions and
organizations for the previous quarter calculated by the State Statistical
Bureau. The higher was the level of disablement, the greater was disablement
pension calculated.
The Contested norm provides
that pensions are recalculated based on the formula included in the second part
of Item 1 of the Transitional Provisions of the Law, which is done only for
those persons who suffered as a result of the Chernobyl NPS accident and whose
level of disablement (in percents) or disability group changed after coming
into force of the Law. When recalculating disablement pension at the amount of
detriment compensation based on the above mentioned formula, the average gross
wage of employees of public sector during the previous quarter is taken into
account. In the first quarter of 1999, the average gross wage for employees in
the public sector was 144.94 lats (see: case materials, pp. 98). According
to the statistical data, since 2001 the average gross wage of employees of the
public sector has substantially increased. For instance, in the first quarter
of 2001 the wage constituted 165 lats, in the first
quarter of 2004 - 216 lats, whilst in the fourth
quarter of 2008 the average gross wage of employees of public sector was 607 lats. Although average monthly gross wage of employees of
public sector has reduced within first three quarters of 2009, it still exceeds
the initial amount by several times (see: http://data.csb.gov.lv/DATABASE/Iedzsoc/%C4%AA
stermi%C5%86a%20statistikas%20dati/Darba%20samaksa/Darba%20samaksa.asp., consulted on 21 December 2009).
The amount of pensions for
persons whose disablement pension at the amount of detriment compensation has
been calculated before coming into force of the Law and whose level of
disablement or disability group has not changed since then, still depends on
the average gross wage at the date of granting of the pension. However, after
recalculation of pensions for persons whose level of disablement or disability
group has changed after the date of coming into force of the Law, the average
gross wage at the moment of recalculation is taken into account. As it has
already been mentioned, average gross monthly wage of employees of public
sector has substantially changed after the date of coming into force.
Consequently, in the result of
this persons who, before the date of coming into force of the Law, were granted
disablement pension at the amount of detriment compensation and whose level of
disablement and disability group remained unchanged, the amount of pension
depends on the fact whether the level of disablement and disability group
remained unchanged or has changed since coming into force of the Law. For
instance, the amount of disablement pension at the amount of detriment
compensation for a person whose level of disablement since 1 September 1999 at
the level of 70 percent remained unchanged and he or she has the 2nd
disability group constitutes 98,52 lats. However, for
a person who was granted disablement pension at the amount of detriment
compensation and whose level of disablement, reduces or increases up to 70
percent, but the disability group is reduced or increased up to the 2nd
disability group, the above mentioned pension is recalculated in accordance
with the second sentence of Para 1 of the Transitional Provisions of the Law.
According to the above mentioned formula, this person would receive 152.46 lats after the pension is recalculated (see: case materials, pp. 97).
Consequently, pension of this person would exceed, by more than 50 percent, the
pension of the person whose level of disablement or disability level has
remained unchanged and therefore pension of the latter person would not be
recalculated. These were the Applicants and the Ombudsman who drew attention to
possible occurrence of such situation. Neither the Saeima
denies in its reply that such a situation is probable because, when elaborating
the Law, it was not possible to prognosticate increase of the average gross
wage of employees of the public sector.
Consequently, the Contested Norm establishes unequal attitude to persons
who enjoy equal and comparable conditions.
10. The Constitutional Court has already concluded that any restriction of the independence of judges should
be founded upon conditions and arguments about its necessity, i.e. the
restriction is set because of important interests with a legitimate aim. In
the Constitutional Court proceedings the duty to demonstrate and substantiate
the legitimate aim of any restriction first of all rests upon the institution
that passed the contested act, in this specific case upon the Saeima (see, e.g.:
Judgment of 18 October 2007 by the Constitutional Court in the case No. 2007-03-01, Para 22.1 and Judgment of 18 January 2010 in the case No. 2009-11-01,
Para 15).
According to what was
indicated by the Saeima, the aim of the legislator,
when adopting the Contested Norm, was to protect legal security of participants
of the Chernobyl NPS nuclear clean-up, these persons having been granted
disablement pension. The legislator has decided to preserve the previous amount
of disablement pension for those persons, whose pensions were granted before
the date of coming into force of the Law. If the Contested Norm was not
adopted, the amount of pension for participants of the Chernobyl NPS nuclear
clean-up and persons suffered as a result of the Chernobyl NPS accident, whose disablement
pension at the amount of detriment compensation before the date of coming into
force of the Law, would diminish considerably. Namely, in July 1999, the
average amount of disablement pension at the amount of detriment compensation
was 80.77 lats. However, after coming into force of
the Law, the average disablement pension was 57.70 lats
in accordance with the Law On State Pensions (see: case materials, Vol. 99).
Consequently, the aim of the legislator, when adopting the Contested Norm,
was to protect legal interests of persons who have been granted disablement
pension at the amount of detriment compensation before the date of coming into
force of the Law and to prevent reduction of pensions already granted.
11. To evaluate whether
the legal norm, adopted by the legislator, complies with the proportionality
principle one has to ascertain:
1) first of all, if the means, used by the legislator are
suitable for achieving the legitimate objective;
2) secondly, if such an activity is required, i.e., if it is
not possible to attain the objective by other means, which would less limit the
rights and legal interests of an individual;
3) thirdly,
if the activity of the legislator is proportionate or adequate, i.e., if the
benefit, obtained by the society, is greater than the loss incurred to the
rights and lawful interests of an individual.
If, after
evaluating the legal norm, it is acknowledged that it does not comply with even
one of the above criteria, then it shall be considered as not being in
conformity with the principle of proportionality and illegitimate (see: Judgment of 19 March 2002 by the
Constitutional Court in the case No. 2001-12-01,
Para 3.1 of the Concluding Part).
12. The Constitutional Court shares the opinion of the Saeima, namely, at the moment of adoption of the Law the
Contested Norm did reach its legitimate objective. If the Contested Norm has
not been adopted, the amount of disablement pensions granted before coming into
force of the Law would decrease considerably.
However, circumstances enjoyed
by the groups of persons under consideration in the present case have changed
considerably since adoption of the Contested Norm. After coming into force of
the law, the average gross wage of employees in public sector has increased by
several times since coming into effect of the Law. This is one of the variables
of the formula mentioned in the second sentence of Para 1 of the Transitional
Provisions of the Law, according to which disablement pensions at the amount of
detriment compensation are being recalculated. Therefore the Constitutional
Court must assess whether the Contested Norm is still appropriate for reaching
the legitimate objective.
Because of the Contested Norm,
now persons who were granted disablement pension at the amount of detriment
compensation before the date of coming into force of the Law and the pension
has not been recalculated, enjoy a worse legal situation if compared to persons
whose disablement pension at the amount of the detriment compensation was
recalculated in accordance with Para 1 of the Transitional Provisions of the Law.
Consequently, the Contested Norm assumes that the amount of disablement pension
for a person with an unchanging level of disablement or disability group is
lower than that of a person with less grave level of disablement or disability
group, provided that the level of group of disability has changed after coming
into force of the Law.
Therefore it can be concluded
that the at present the Contested Norm protects, at an insufficient level, the
rights of those persons who were granted disablement pension at the amount of
detriment compensation before coming into force of the Law and whose level of disablement or disability
group has remained unchanged. The objective of the Law is to establish social
guarantees for participants of the Chernobyl NPS nuclear clean-up and persons
suffered as a result of this accident by compensation the detriment caused
depending on the gravity of it. By establishing recalculation of disablement
pension based on the formula mentioned in the second sentence of Para 1 of the
Transitional Provisions of the Law only for those persons whose level of
disablement or disability group has changed after 1 January 2000, the Contested
Norm previously ensured reaching of the legitimate objective, however it no
more complies with the general objective of the law.
Consequently, the Contested Norm is not appropriate for reaching the
legitimate objective. It neither complies with the principle of equality.
13. Article 32 Indent 3 of the Constitutional Court
Law provides that any legal
norm (act) which the Constitutional Court has determined as incompatible with
the legal norm of higher force shall be considered invalid as of the date of publishing the judgment of the
Constitutional Court, unless the Constitutional Court has ruled otherwise.
The formula included in the
second sentence of Para 1 of the Transitional Provisions of the Law, according
to the Contested Norm, is applicable only to those recipients of disablement
pension whose level of disablement or disability group has changed after 1
January 2000. Since the average gross wage of employees of public sector is a
changeable value, in the future this can also result in a way that parson with
an equal level of disablement and disablement group receive disablement pensions
of different amounts. Therefore the legislator needs extra time to elaborate
normative regulation that would ensure such attitude to all participants of the
Chernobyl NPS nuclear clean-up and persons suffered as a result of the
accident, disablement pensions at the amount of detriment compensation of both
groups of persons having been granted before 1 January 2000 that would comply
with principle of equality.
The Constitutional Court
Based on Articles 30 32 of
the Constitutional Court Law
h o l d s :
The first sentence of Para 1 of the Transitional
Provisions of the Law on the Social Protection of the Participants of the
Chernobyl Nuclear Clean-up and Persons Suffered as a Result of the Chernobyl
Nuclear Power Station Accident does not comply with Article 91 of the Satversme of the Republic of Latvia and shall be null and
void as from 1 July 2010.
The Judgment is final and not
subject to appeal.
The Judgment shall come into
force on the date of publishing of it.
Presiding
Judge
G.
Kūtris
Translated by Egija Labanovska,
translator of the Constitutional Court.