Published on 28 November 2022

SECOND SECTION

Application no. 23580/21 Genadijus RISAKOVAS against Lithuania lodged on 4 May 2021 communicated on 9 November 2022

SUBJECT MATTER OF THE CASE

The application concerns the applicant’s complaint that he was refused the State pension for soldiers on account of an offence committed a long time ago and expired conviction, and notwithstanding his exemplary and loyal quarter ‑ of-a-century long service in the armed forces of the Republic of Lithuania.

On 29 March 1993 the applicant attempted to commit a burglary – to steal ten water tanks from an establishment belonging to the State.

In April 1993 the applicant asked to be admitted to the Lithuanian military forces, indicating, in his application, that he had been a suspect in the criminal proceedings for attempted burglary. By the military command’s order of 21 April 1993 he was accepted to the military service of the Republic of Lithuania, and on 4 August 1993 the applicant gave military oath.

By a judgment of 12 August 1993 the applicant was convicted to two years’ imprisonment but serving of the sentence was suspended.

The applicant continued professional military service for the next twenty-five years. By the order of the Chief of the Lithuanian Army of 3 December 2018, the applicant was discharged from active service and placed in military reserve.

In January 2019 the applicant asked to be granted the State pension for soldiers, which the Ministry of Defence refused in February 2019, referring to the applicant’s conviction: Article 13 § 3 of the Law on State Pensions for Officials and Soldiers read that such pensions are not to be granted to persons who had been convicted for an intentional crime.

The applicant contested that decision in court, arguing that before starting his military service, and throughout it, he had never hidden the fact of his conviction from the State authorities. He also referred to numerous commendations received during military service. The Ministry of Defence, which was the defendant in those proceedings, responded that by Article 13 § 3 of the Law on State Pensions the legislator had sought to prevent that persons who had not been loyal to the State, or who had breached the law, would not be entitled to the State pension. Referring to the applicant’s service record, the Ministry observed that he had performed his military service very well, had had permission to work with classified information, had had no disciplinary sanctions and had received commendations. In the Ministry’s view, there was no basis to hold that during his service the applicant had been disloyal to the State or that he had failed to meet the requirements applicable to the soldiers. That notwithstanding, the Ministry objected that the State pension would be granted to the applicant.

By a decision of 28 May 2019 the Vilnius Regional Administrative Court granted the applicant’s request for the State pension, holding that, as the applicant had not breached the law during his service, not to grant the State pension would contradict the requirements of justice and reasonableness. The administrative court also considered that, contrary to the applicant’s and the Ministry’s requests, there was no reason to refer the question regarding the constitutionality of Article 13 § 3 of the Law on State Pensions to the Constitutional Court, because under the latter court’s case-law State pensions could be granted for loyal service and particular merit to the State. The applicant had started military service after having committed a crime; his service, which included military service in Afghanistan, had been clearly exemplary.

The Ministry of Defence appealed. It acknowledged the merits of the applicant’s service. That being so, the fact of conviction remained part of one’s biography for life. For the Ministry, it was not sufficient to apply the general principles of law, such as fairness and reasonableness. Rather, the letter of the law (legislation) had to be applied. The Ministry also considered that the case had been important not only for the applicant but for all servicemen, who fulfilled all the duties as a soldier, whose service to the State involved complex responsibilities and often entailed risk and danger, but who, because of a conviction for not serious intentional crimes unrelated to their military service were barred from receiving a State pension under Article 13 § 3 of the Law on State Pensions. In the Ministry’s view, the first instance court’s choice not to refer the matter to the Constitutional Court had been erroneous. Moreover, the case was legally complex and it would be appropriate for the enlarged chamber of the Supreme Administrative Court [five or seven judges] to examine it.

By a final ruling of 4 November 2020 the Supreme Administrative Court, sitting in a chamber of three judges, granted the Ministry’s appeal and dismissed the applicant’s request for the State pension. The Supreme Administrative Court referred to its practice in three cases that it saw as being analogous to that of the applicant. It was also not pertinent to refer questions to the Constitutional Court, because on 24 December 2008 that court had already explained that State pensions could not be granted to those who had grossly breached the Constitution or their oath or had committed an intentional crime. Similarly, by a ruling of 17 November 2011 the Constitutional Court had held that the expiry of a conviction from the point of view of the criminal law did not mean that the very fact of the person having been convicted no longer existed: in other areas of legal relations, such as when assessing the person’s reputation, the fact that a person has a criminal record could be taken into account.

The applicants complains under Article 6 § 1 of the Convention that he had not had a fair hearing on account of the administrative courts’ choice not to refer the matter of constitutionality of Article 13 § 3 of the Law on State Pensions to the Constitutional Court. The applicant further considers that the case-law of the administrative courts, which these courts had referred to as being relevant for his case, in reality had concerned different factual situations. This had prevented the administrative courts from reaching a fair decision in his case.

Relying on Article 1 of Protocol No. 1 to the Convention the applicant complains that he was deprived of the soldier’s pension. The applicant refers to his exemplary and loyal military service and argues, among other, that there had been no legitimate aim and it had been unjust to deprive him of the pension on the basis of the crime he had committed before starting his military service and before giving oath. The applicant observes that the fact of his conviction had not been an obstacle for him to perform the military service for twenty-five years.

Under Article 1 of Protocol No. 1 to the Convention, taken in conjunction with Article 14 of the Convention, the applicant further complains, firstly, that he is being discriminated compared to those State officials and soldiers who were granted the State pension before their conviction as, under the Constitutional Court’s case-law, such pension then could not be taken away. Secondly, the applicant argues that he is being discriminated on the basis of his conviction, as under Article 13 § 3 of the Law on State Pensions he is treated differently compared to others whose conviction under different laws of the Republic of Lithuania is considered expired.

The applicant further complains under Article 4 § 1 of Protocol No. 7 to the Convention of having been punished twice for the same offence. He refers to the Constitutional Court’s finding in a ruling of 4 July 2003 to the effect that Article 13 § 3 of the Law on State Pensions, whereby the payment of an already granted State pension is terminated for a person convicted afterwards for an intentional crime, lays down a sanction of a pecuniary nature. That sanction, by its strictness, amounts to criminal punishment, and therefore is in breach of the legal principle non bis in idem .

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicant’s right to peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1 to the Convention, on account of the Lithuanian authorities’ decision not to grant the applicant the State pension for his military service (see Fábián v. Hungary [GC], no. 78117/13, §§ 60-64, 5 September 2017)?

If so, has the applicant been deprived of his possessions in the public interest, and in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol No. 1 (see, for the general principles, Béláné Nagy v. Hungary [GC], no. 53080/13, §§ 112-114, 13 December 2016, and the case-law cited therein)?

If so, was that deprivation necessary and proportionate (see Savickas and Others v. Lithuania (dec.), no. 66365/09, § 91, 15 October 2013, and the case-law cited therein, and Béláné Nagy , cited above, §§ 114-118)?

2. Has the applicant suffered discrimination in the enjoyment of his Convention rights, contrary to Article 14 of the Convention, taken in conjunction with Article 1 of Protocol No. 1?

3. Has the applicant had a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention?

In particular, did the administrative courts’ refusal to refer the question of constitutionality of Article 13 § 3 of the Law on State Pensions to the Constitutional Court render the proceedings unfair? Furthermore, did the fact that the Supreme Administrative Court had relied on administrative cases that, in the applicant’s view, had concerned different factual situations from that of the applicant, render the proceedings unfair?

4. Has the applicant been punished twice for the same offence in the territory of the respondent State, as prohibited by Article 4 § 1 of Protocol No. 7 (see A and B v. Norway [GC], nos. 24130/11 and 29758/11, §§ 101 ‑ 134, 15 November 2016, and the case-law cited therein)?