THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA · 6/7/2007 · Paragraph 6 of Article 38 of the Constitution of the Republic of Lithuania that the right and duty of parents

Case No. 12/05-14/05-18/05-20/05-21/05-22/05-25/05-01/06-03/06-06/06-07/06-

08/06-15/06-17/06-21/06-24/06-25/06-28/06-40/06-41/06-47/06-48/06-53/06-

55/06-63/06-02/07-07/07-09/07-13/07-15/07-19/07-20/07-21/07-22/07

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

RULING

ON THE COMPLIANCE OF PARAGRAPH 3 (WORDING OF

11 NOVEMBER 2004) OF ARTICLE 3.194 OF THE CIVIL CODE OF THE

REPUBLIC OF LITHUANIA WITH THE CONSTITUTION OF THE

REPUBLIC OF LITHUANIA

7 June 2007

Vilnius

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the

Constitutional Court: Armanas Abramavičius, Toma Birmontienė, Egidijus Kūris, Kęstutis

Lapinskas, Zenonas Namavičius, Vytautas Sinkevičius, Stasys Stačiokas, and Romualdas Kęstutis

Urbaitis

The court reporter—Daiva Pitrėnaitė

Seimas member Julius Sabatauskas and Edvinas Mušinskis, senior advisor of the Legal

Department of the Office of the Seimas, acting as the representatives of the Seimas of the Republic

of Lithuania, the party concerned

The Constitutional Court of the Republic of Lithuania, pursuant to Articles 102 and 105 of

the Constitution of the Republic of Lithuania and Article 1 of the Law on the Constitutional Court

of the Republic of Lithuania, in its public hearing, on 29 May 2007, considered constitutional

justice case No. 12/05-14/05-18/05-20/05-21/05-22/05-25/05-01/06-03/06-06/06-07/06-08/06-

15/06-17/06-21/06-24/06-25/06-28/06-40/06-41/06-47/06-48/06-53/06-55/06-63/06-68/06-02/07-

07/07-09/07-13/07-15/07-19/07-20/07-21/07-22/07 subsequent to the following:

(1) the petition of the Utena District Local Court, the petitioner, requesting an investigation

into whether the provision “the court may award support <…> when the support is necessary for the

child when he learns at day-time departments of secondary, higher education or vocational schools

2

and he is not older than 24” of Paragraph 3 (wording of 11 November 2004) of Article 3.194 of the

Civil Code of the Republic of Lithuania is not in conflict with the provision of Paragraph 6 of

Article 38 of the Constitution of the Republic of Lithuania that the right and duty of parents is to

support their children until they come of age (petition No. 1B-17/2005);

(2) the petition of the Panevėžys City Local Court, the petitioner, requesting an investigation



and he is not older than 24” of the Republic of Lithuania’s Law on Amending Article 3.194 of the

Civil Code is not in conflict with Paragraph 6 of Article 38 of the Constitution of the Republic of

Lithuania and with the constitutional principle of a state under the rule of law which is, according to

the petitioner, consolidated in the Preamble to the Constitution of the Republic of Lithuania

(petition No. 1B-19/2005);

(3) the petition of the Panevėžys Regional Court, the petitioner, requesting an investigation






support their children until they come of age and with the constitutional principle of a state under

the rule of law which is, according to the petitioner, consolidated in the Preamble to the

Constitution of the Republic of Lithuania (petition No. 1B-24/2005);

(4) the petition of the Biržai District Local Court, the petitioner, requesting an investigation




Civil Code of the Republic of Lithuania is not in conflict with Paragraph 6 of Article 38 of the


(5) the petition of the Šakiai District Local Court, the petitioner, requesting an investigation







(6) the petition of the Kaišiadorys District Local Court, the petitioner, requesting an

3

investigation into whether the provision “the court may award support <…> when the support is

necessary for the child when he learns at day-time departments of secondary, higher education or

vocational schools and he is not older than 24” of Paragraph 3 (wording of 11 November 2004) of

Article 3.194 of the Civil Code of the Republic of Lithuania is not in conflict with the provision of

Paragraph 6 of Article 38 of the Constitution of the Republic of Lithuania that the right and duty of

parents is to support their children until they come of age (petition No. 1B-28/2005);

(7) the petition of the Šiauliai District Local Court, the petitioner, requesting an







(8) the petition of the Šilutė District Local Court, the petitioner, requesting an investigation







(9) the petition of the Šilutė District Local Court, the petitioner, requesting an investigation







(10) the petition of the Jonava District Local Court, the petitioner, requesting an




Article 3.194 of the Civil Code of the Republic of Lithuania is not in conflict with Paragraph 6 of

Article 38 of the Constitution of the Republic of Lithuania (petition No. 1B-07/2006);

(11) the petition of the First Vilnius City Local Court, the petitioner, requesting an


4






(12) the petition of the Visaginas City Local Court, the petitioner, requesting an







(13) the petition of the Klaipėda Regional Court, the petitioner, requesting an investigation














(15) the petition of the Panevėžys Regional Court, the petitioner, requesting an investigation









5

(16) the petition of the Marijampolė District Local Court, the petitioner, requesting an













(18) the petition of the Telšiai District Local Court, the petitioner, requesting an














(20) the petition of the Panevėžys City Local Court, the petitioner, requesting an



vocational schools and he is not older than 24” of the Republic of Lithuania’s Law on Amending

Article 3.194 of the Civil Code is not in conflict with Paragraph 6 of Article 38 of the Constitution

of the Republic of Lithuania and with the constitutional principle of a state under the rule of law

which is, according to the petitioner, consolidated in the Preamble to the Constitution of the

Republic of Lithuania (petition No. 1B-44/2006);

6

(21) the petition of the Kupiškis District Local Court, the petitioner, requesting an





Article 38 of the Constitution of the Republic of Lithuania and with the constitutional principle of a

state under the rule of law which is, according to the petitioner, consolidated in the Preamble to the


(22) the petition of the Marijampolė District Local Court, the petitioner, requesting an






(23) the petition of the Trakai District Local Court, the petitioner, requesting an









(24) the petition of the Šiauliai City Local Court, the petitioner, requesting an investigation







(25) the petition of the Šiauliai City Local Court, the petitioner, requesting an investigation





7



(26) the petition of the Alytus District Local Court, the petitioner, requesting an







(27) the petition of the Visaginas City Local Court, the petitioner, requesting an







(28) the petition of the Panevėžys City Local Court, the petitioner, requesting an



vocational schools and he is not older than 24” of the Republic of Lithuania’s Law on Amending

Article 3.194 of the Civil Code is not in conflict with Paragraph 6 of Article 38 of the Constitution

of the Republic of Lithuania and with the constitutional principle of a state under the rule of law

which is, according to the petitioner, consolidated in the Preamble to the Constitution of the

Republic of Lithuania (petition No. 1B-06/2007);

(29) the petition of the Klaipėda District Local Court, the petitioner, requesting an







(30) the petition of the Kaišiadorys District Local Court, the petitioner, requesting an




8
















Article 38 of the Constitution of the Republic of Lithuania that the duty of parents is to support their

children until they come of age (petition No. 1B-19/2007);







children until they come of age (petition No. 1B-20/2007);







parents is to support their children until they come of age (petition No. 1B-22/2007) and





9



children until they come of age (petition No. 1B-23/2007).

By the Constitutional Court of the Republic of Lithuania decision of 22 May 2007, petition

No. 1B-17/2005 of the Utena District Local Court, petitions Nos. 1B-19/2005, 1B-44/2006 and 1B-

06/2007 of the Panevėžys City Local Court, petitions Nos. 1B-24/2005 and 1B-19/2006 of the

Panevėžys Regional Court, petition No. 1B-26/2005 of the Biržai District Local Court, petition No.

1B-27/2005 of the Šakiai District Local Court, petitions Nos. 1B-28/2005 and 1B-14/2007 of the

Kaišiadorys District Local Court, petition No. 1B-33/2005 of the Šiauliai District Local Court,

petitions Nos. 1B-01/2006 and 1B-02/2006 of the Šilutė District Local Court, petition No. 1B-

07/2006 of the Jonava District Local Court, petitions Nos. 1B-09/2006, 1B-16/2006, 1B-24/2006,

1B-43/2006 and 1B-01/2007 of the First Vilnius City Local Court, petitions Nos. 1B-15/2006, 1B-

19-2007, 1B-20/2007 and 1B-23/2007 of the Klaipėda Regional Court, petitions Nos. 1B-20/2006

and 1B-56/2006 of the Marijampolė District Local Court, petition No. 1B-27/2006 of the Telšiai

District Local Court, petition No. 1B-53/2006 of the Kupiškis District Local Court, petition No. 1B-

58/2006 of the Trakai District Local Court, petitions Nos. 1B-59/2006 and 1B-70/2006 of the

Šiauliai City Local Court, petition No. 1B-74/2006 of the Alytus District Local Court and petition

No. 1B-10/2007 of the Klaipėda District Local Court were joined into one case and it was given

reference number 12/05-14/05-18/05-20/05-21/05-22/05-25/05-01/06-03/06-06/06-07/06-08/06-

15/06-17/06-21/06-24/06-25/06-28/06-40/06-41/06-47/06-48/06-53/06-55/06-63/06-68/06-02/07-

07/07-09/07-13/07-15/07-19/07-20/07-21/07-22/07.

The Constitutional Court

has established:

I

1. The Utena District Local Court, a petitioner, considered a civil case. By its ruling the said

court suspended the consideration of the case and applied to the Constitutional Court with the

petition requesting an investigation into whether the provision “the court may award support <…>

when the support is necessary for the child when he learns at day-time departments of secondary,

higher education or vocational schools and he is not older than 24” of Paragraph 3 (wording of 11

November 2004) of Article 3.194 of the Civil Code (hereinafter also referred to as the CC) is not in

conflict with the provision of Paragraph 6 of Article 38 of the Constitution that the right and duty of

parents is to support their children until they come of age (petition No. 1B-17/2005).

2. The Panevėžys City Local Court, a petitioner, considered a civil case. By its ruling the

said court suspended the consideration of the case and applied to the Constitutional Court with the

10



higher education or vocational schools and he is not older than 24” of the Law on Amending Article

3.194 of the Civil Code is not in conflict with Paragraph 6 of Article 38 of the Constitution and with

the constitutional principle of a state under the rule of law which is, according to the petitioner,

consolidated in the Preamble to the Constitution (petition No. 1B-19/2005).

3. The Panevėžys Regional Court, a petitioner, considered a civil case. By its ruling the said





November 2004) of Article 3.194 of the CC is not in conflict with the provision of Paragraph 6 of

Article 38 of the Constitution and with the constitutional principle of a state under the rule of law

which is, according to the petitioner, consolidated in the Preamble to the Constitution (petition No.

1B-24/2005).

4. The Biržai District Local Court, a petitioner, considered a civil case. By its ruling the said






Article 38 of the Constitution (petition No. 1B-26/2005).

5. The Šakiai District Local Court, a petitioner, considered a civil case. By its ruling the said






Article 38 of the Constitution that the right and duty of parents is to support their children until they

come of age (petition No. 1B-27/2005).

6. The Kaišiadorys District Local Court, a petitioner, considered a civil case. By its ruling

the said court suspended the consideration of the case and applied to the Constitutional Court with

the petition requesting an investigation into whether the provision “the court may award support

<…> when the support is necessary for the child when he learns at day-time departments of

secondary, higher education or vocational schools and he is not older than 24” of Paragraph 3

11

(wording of 11 November 2004) of Article 3.194 of the CC is not in conflict with the provision of

Paragraph 6 of Article 38 of the Constitution that the right and duty of parents is to support their


7. The Šiauliai District Local Court, a petitioner, considered a civil case. By its ruling the








8. The Šilutė District Local Court, a petitioner, considered a civil case. By its ruling the said








9. The Šilutė District Local Court, a petitioner, considered a civil case. By its ruling the said








10. The Jonava District Local Court, a petitioner, considered a civil case. By its ruling the






Article 38 of the Constitution (petition No. 1B-07/2006).

11. The First Vilnius City Local Court, a petitioner, considered a civil case. By its ruling the

12








12. The Visaginas City Local Court, a petitioner, considered a civil case. By its ruling the








13. The Klaipėda Regional Court, a petitioner, considered a civil case. By its ruling the said
















15. The Panevėžys Regional Court, a petitioner, considered a civil case. By its ruling the




13




come of age and with the constitutional principle of a state under the rule of law which is, according

to the petitioner, consolidated in the Preamble to the Constitution (petition No. 1B-19/2006).

16. The Marijampolė District Local Court, a petitioner, considered a civil case. By its ruling






Paragraph 6 of Article 38 of the Constitution (petition No. 1B-20/2006).









18. The Telšiai District Local Court, a petitioner, considered a civil case. By its ruling the















14


20. The Panevėžys City Local Court, a petitioner, considered a civil case. By its ruling the








21. The Kupiškis District Local Court, a petitioner, considered a civil case. By its ruling the





November 2004) of Article 3.194 of the CC is not in conflict with Paragraph 6 of Article 38 of the

Constitution and with the constitutional principle of a state under the rule of law which is, according

to the petitioner, consolidated in the Preamble to the Constitution (petition No. 1B-53/2006);

22. The Marijampolė District Local Court, a petitioner, considered a civil case. By its ruling






Paragraph 6 of Article 38 of the Constitution (petition No. 1B-56/2006).

23. The Trakai District Local Court, a petitioner, considered a civil case. By its ruling the







come of age and with the constitutional principle of a state under the rule of law which is, according

to the petitioner, consolidated in the Preamble to the Constitution (petition No. 1B-58/2006).

24. The Šiauliai City Local Court, the petitioner, considered a civil case. By its ruling the


15







25. The Šiauliai City Local Court, a petitioner, considered a civil case. By its ruling the said








26. The Alytus District Local Court, a petitioner, considered a civil case. By its ruling the








27. The Visaginas City Local Court, a petitioner, considered a civil case. By its ruling the








28. The Panevėžys City Local Court, the petitioner, considered a civil case. By its ruling the





16




29. The Klaipėda District Local Court, a petitioner, considered a civil case. By its ruling the








30. The Kaišiadorys District Local Court, a petitioner, considered a civil case. By its ruling






Paragraph 6 of Article 38 of the Constitution that the right and duty of parents is to support their
















Article 38 of the Constitution that the duty of parents is to support their children until they come of

age (petition No. 1B-19/2007).

17

























II

1. The petitions of the petitioners are based on the fact that the Constitution consolidates the

duty of parents to support their children only until they come of age (Paragraph 6 of Article 38) and

it does not provide that parents have to support children of full legal age, meanwhile, Paragraph 3

(wording of 11 November 2004) of Article 3.194 of the CC enshrines a virtually different principle

(an exception to the general rule): parents must also support their children who are capable of

working and of full legal age and for whom the support is necessary as long as they learn at day-

time departments of secondary, higher education or vocational schools and they are not older than

24.

2. In the petitions of some petitioners, the relation of the impugned provision of Paragraph 3

(wording of 11 November 2004) of Article 3.194 of the CC with other articles (paragraphs thereof)

18

of the CC is interpreted.

III

In the course of the preparation of the case for the Constitutional Court’s hearing, written

explanations from Seimas member J. Sabatauskas and E. Mušinskis—the representatives of the

Seimas, the party concerned—were received, wherein it is stated that the impugned provision of

Paragraph 3 (wording of 11 November 2004) of Article 3.194 of the CC is not in conflict with the

Constitution. The position of the representatives of the party is grounded on the following

arguments.

1. Seimas member J. Sabatauskas presented, inter alia, the following arguments.

1.1. According to this representative of the Seimas, the party concerned, the duty of the

parents to support their children, to take care of them and to seek to ensure the appropriate living

conditions for them needs to be related not only to the age and capacity of the children, but one

must also heed other social circumstances, the situation in the state and the public interest. The

relations between parents and children are special ones; time does not restrict mutual support,

respect, spiritual and moral support, communication relations (i.e. personal relations). Paragraph 6

of Article 38 of the Constitution may not be construed only verbatim, as while construing it in such

a way, one could state that, purportedly, the parents, when their children come of age, lose not only

the duty, but also the right to support them.

1.2. In the opinion of Seimas member J. Sabatauskas, the Constitution does not establish the

full legal age; it is the legislature that is supposed to establish it. Upon changing the full legal age,

the extent of the duty to support would also change. Paragraph 6 of Article 38 of the Constitution

does not prevent the legislature from establishing the peculiarities of support for persons of a certain

group also without changing the established general full legal age. The persons who come of age,

i.e. who attained 18 and who became absolutely capable persons, who learn at day-time

departments of secondary, higher education or vocational schools, can work and receive funds for

living, however, because of the fact that they study, they must be at educational establishments, in

the places of practical training, libraries, etc., usually, they cannot properly take advantage of this

possibility and ensure themselves the proper living conditions. If a person wants to achieve good

learning or studying results, he must have a possibility of devoting enough time for that, which is

hardly possible if he has to work and earn for living. Thus, the persons of full legal age, but not

older than 24, who learn at day-time departments of secondary, higher education or vocational

schools differ from other persons of full legal age who are not older than 24 by the type of their

activity. It is expedient and reasonable to establish a different legal regulation to them. The society

should be concerned with raising the level of education of its members and the parents should be

concerned, according to their capabilities, to contribute to the society’s perfection. While awarding

19

the material support, the court must, by taking into consideration each time the possibilities of the

parents and the social status of the child, assess what amount of money is to be considered

reasonable and grounded.

1.3. According to this representative of the Seimas, the party concerned, the laws provide

parents with the rights and concessions which are related to having children and which are not

related to the age of children, thus, if the parents are not obliged to support their children who came

of age or to provide them with other support, rendering such concessions to the parents would be

groundless.

2. E. Mušinskis presented, inter alia, the following arguments.

2.1. In the opinion of this representative of the Seimas, the party concerned, namely the

parents must ensure the conditions for their children to grow, the parents must take care of the well-

being and health of their children, the parents must support them, provide them with help and

support, which is necessary for the child to prepare for an independent life in society. The

possibilities provided by the power of parents include not only the rules of law, but also of morality

and customs; the power of parents is designed for the implementation of the innate rights and

interests of their children. Proper implementation of the power of parents and taking care of

children while taking advantage of all the possibilities provided by the power of parents is not only

the right of parents, but also their duty which may not be abandoned by any of the parents.

Reasonable establishment and proper implementation of the rights and duties which compose the

content of the power of parents is not only a matter of the parents, but also that of the state. The

essential element of the power of parents and the necessary condition of the proper implementation

of the power of parents is the implementation of the duty to provide the child with material support.

If the child is not provided with the material support, the implementation of other duties (for

example, taking care of the child’s health and education properly and creation of the conditions for

the harmonious and universal development of the child) is impossible, too.

2.2. According to E. Mušinskis, while assessing the regulation of the material support which

is enshrined in the laws in a systemic manner, the conclusion should be drawn that the full legal age

is a social and legal category rather than the age of a person; the full legal age, upon reaching which

the power of parents over the children is over, is not only a certain age, but also the entirety of the

legal, social and physiological circumstances which determines the preparedness of the person to

start a fully-fledged and independent life, for which the support of the parents is no longer needed.

The duration of the duty to provide material support for children which is consolidated in the

Constitution and the CC is related not only to the certain age of the child but also with the

appearance or termination of certain circumstances. Upon assessing the change of the society, the

changes in the social status of young people, the importance and need of the social interrelations

20

between parents and children necessary for the children to become firmly settled in modern society,

the legislature may establish exceptions to the general principle that the duty of the parents to

provide their children with material support ends when the child turns 18, i.e. he becomes of full

legal age.

2.3. In the opinion of the representative of the Seimas, the party concerned, in itself such a

situation when the pupils and students have also to work does not correspond to the fully-

fledgedness of learning; thus, the constitutional right of these persons to acquire higher education is

denied. While seeking to avoid such cases and taking account of the fact that young people who

learn in vocational schools and schools of higher education and who, due to certain reasons, do not

receive the material support from the state, cannot themselves receive the income necessary to

acquire education, Paragraph 3 (wording of 11 November 2004) of Article 3.194 of the CC

enshrined the impugned provision which, according to E. Mušinskis, is a compromise: the court

may award the support from the parents in order to ensure learning when the support is necessary

for the child when he learns at day-time departments of secondary, higher education or vocational

schools and he is not older than 24; i.e. namely from the persons who, taking account of their

special legal, social and biological relation with the children, are responsible for providing the

children with necessary help and support. The age limit of 24, upon exceeding which the support is

suspended, is grounded, as a person, who graduates from school and enters a school of higher

education in the same year, is supposed to acquire higher education namely when he is 24. Thus, the

material support of the parents may be awarded by a court in order to acquire only one higher

education and only for such a person who, upon graduation of the secondary school, entered a

school of higher education at once, i.e. he continued studies without the break during which he

could start working and, thus, save the funds necessary in order to acquire higher education. The

obligation to support a child who is capable of working and of full legal age and who studies in a

vocational school or a school of higher education is not absolute, but conditional: when applying the

impugned provision of Paragraph 3 (wording of 11 November 2004) of Article 3.194 of the CC, the

court, following the principles of justice, reasonableness and fairness, has absolute discretion to

assess, in its opinion, the important circumstances in order to adopt a just decision.

2.4. According to E. Mušinskis, such a situation where the children of full legal age who

learn at educational establishments and who do not have parents are more protected legally (as the

support which is necessary for them in order to acquire education is guaranteed) than the children of

full legal age who have the parents, is deficient. The impugned provision of Paragraph 3 (wording

of 11 November 2004) of Article 3.194 of the CC seeks to guarantee in a legal manner the

constitutional right to education, which is based only on the abilities and knowledge of the person,

also to the children of full legal age who have their parents.

21

IV

1. In the course of the preparation of the case for the judicial consideration, written

explanations were received from V. Blinkevičiūtė, Minister of Social Security and Labour of the

Republic of Lithuania, R. Žakaitienė, Minister of Education and Science of the Republic of

Lithuania and P. Koverovas, State Secretary of the Ministry of Justice of the Republic of Lithuania.

It needs to be noted that the opinions of the ministries concerning the compliance of the

impugned provision of Paragraph 3 (wording of 11 November 2004) of Article 3.194 of the CC

with the Constitution were different: in the Ministry of Social Security and Labour and in the

Ministry of Education and Science it was thought that the impugned provision of Paragraph 3

(wording of 11 November 2004) of Article 3.194 of the CC was not in conflict with the

Constitution, while in the Ministry of Justice—that it was in conflict with the Constitution.

2. In the course of the preparation of the case for the judicial consideration, written

explanations were also received from G. Žandaravičius, Head of the Service of Children Rights’

Protection of the Healthcare and Social Security Department of the Vilnius City Municipality.

3. In the course of the preparation of the case for the judicial consideration, a letter

(including annexes) from J. Januškienė, Justice of the Supreme Court of Lithuania, was received,

from which it is clear that the courts (judges) had doubts concerning the impugned provision “the

court may award support <…> when the support is necessary for the child when he learns at day-

time departments of secondary, higher education or vocational schools and he is not older than 24”

of Paragraph 3 (wording of 11 November 2004) of Article 3.194 of the CC also in the cases, in

which it was not applied to the Constitutional Court.

V

At the hearing of the Constitutional Court, the representatives of the Seimas, the party

concerned, who were J. Sabatauskas and E. Mušinskis, virtually repeated the arguments set forth in

their written explanations, as well as presented additional explanations, and stated, inter alia, that

the impugned provision of Paragraph 3 (wording of 11 November 2004) of Article 3.194 of the CC,

from the point of view of the juridical technique, may be assessed in a critical manner.

The Constitutional Court

holds that:

1. The petitioners—the Utena District Local Court (petition No. 1B-17/2005), the Panevėžys

Regional Court (petitions Nos. 1B-24/2005 and 1B-19/2006), the Biržai District Local Court

(petition No. 1B-26/2005), the Šakiai District Local Court (petition No. 1B-27/2005), the

Kaišiadorys District Local Court (petitions Nos. 1B-28/2005 and 1B-14/2007), the Šiauliai District

Local Court (petition No. 1B-33/2005), the Šilutė District Local Court (petitions Nos. 1B-01/2006

22

and 1B-02/2006), the Jonava District Local Court (petition No. 1B-07/2006), the First Vilnius City

Local Court (petitions Nos. 1B-09/2006, 1B-16/2006, 1B-24/2006, 1B-43/2006, 1B-18/2007 and

1B-22/2007), the Visaginas City Local Court (petitions Nos. 1B-10/2006 and 1B-01/2007), the

Klaipėda Regional Court (petitions Nos. 1B-15/2006, 1B-19/2007, 1B-20/2007 and 1B-23/2007),

the Marijampolė District Local Court (petitions Nos. 1B-20/2006 and 1B-56/2006), the Telšiai

District Local Court (petition No. 1B-27/2006), the Kupiškis District Local Court (petition No. 1B-

53/2006), the Trakai District Local Court (petition No. 1B-58/2006), the Šiauliai City Local Court

(petitions Nos. 1B-59/2006 and 1B-70/2006), the Alytus District Local Court (petition No. 1B-

74/2006), the Klaipėda District Local Court (petition No. 1B-10/2007) request an investigation into

whether the provision “the court may award support <…> when the support is necessary for the



CC is not in conflict with the Constitution.

The Panevėžys City Local Court (petitions Nos. 1B-19/2005, 1B-44/2006 and 1B-06/2007),

a petitioner, requests an investigation into whether the provision “the court may award support


secondary, higher education or vocational schools and he is not older than 24” of the Law on

Amending Article 3.194 of the Civil Code is not in conflict with the Constitution. Thus, even

though this petitioner impugns the compliance of the provision of the Law on Amending Article

3.194 of the Civil Code with the Constitution, it is obvious that he had doubts on whether Paragraph

3 (wording of 11 November 2004) (to the specified extent) of Article 3.194 of the CC was not in

conflict with the Constitution.

2. Subsequent to the petitions of the petitioners, in the constitutional justice case at issue, the

Constitutional Court will investigate the compliance of the provision “the court may award support



(wording of 11 November 2004) of Article 3.194 of the CC with the provision of Paragraph 6 of


age and with the constitutional principle of a state under the rule of law.

3. On 18 July 2000, the Seimas adopted the Republic of Lithuania’s Law on the

Confirmation, Entry into Force and Implementation of the Civil Code (which came into force on 6

September 2000), Article 1 whereof confirmed a new Civil Code. The new CC came into force on 1

July 2001 (save the specified exceptions). It has been amended and/or supplemented more than

once.

4. In the context of the constitutional justice case at issue, it needs to be noted that in Section

23

Two titled “Mutual Support Duties of Parents and Children” of Chapter XII titled “Mutual Property

Rights and Duties of Parents and Children” of Book Three “Family Law” of the CC, the provisions

are set forth, which constitute, inter alia, the institute of support of underage children, the essence

of which is that the parents have the duty to provide their underage children with material support.

4.1. Article 3.194 titled “Awarding Support by a Court” (wording of 18 July 2000) of the

said section established: if the parents (or one of the parents) fail in the duty to maintain their

underage children, the court may award support in an action brought by one of the parents or the

child’s guardian (curator) or the state institution for the protection of the child’s rights (Paragraph

1); support may also be awarded by a court if on divorce or on separation the parents did not agree

on the support of their underage children in the procedure provided for in this Book (Paragraph 2);

the court shall award support until the child attains full legal age except in cases where the child

lacks capacity for work due to a disability determined before the full legal age (Paragraph 3); the

exaction of the court-awarded support shall be terminated when the child: (1) is emancipated; (2)

attains full legal age; (3) is adopted; (4) dies (Paragraph 4); if the person obliged to pay support

dies, the duty of support shall pass to his or her successors within the limits of the inherited property

irrespective of the way the estate is accepted under the rules of Book Five hereof (Paragraph 5).

4.2. Thus, Article 3.194 (wording of 18 July 2000) of the CC was designed to regulate such

relations which emerge when the parents do not implement their duty to provide their underage

children with material support (or when they did not agree on the support of their underage

children) as well as to provide the children who came of age with material support if the child lacks

capacity for work due to a disability determined to him before he reached full legal age. This article

did not regulate any other relations.

4.3. In this context, it needs to be noted that under Paragraph 1 of Article 2.5 of the CC, a

person becomes of full legal age when he turns 18.

Such a notion of full legal age which is enshrined in the CC complies with the notion of the

full legal age which is consolidated in the Constitution, wherein the notion “a person of full legal

age” is used in such a way as it was universally understood (and enshrined in the then valid legal

acts) at the moment when the Constitution was drafted and adopted: while drafting and adopting the

Constitution, the full legal age was related namely with the age of 18. It also needs to be noted that,

under the Constitution, the citizens who on the day of election have reached 18, shall have the

electoral right; it is obvious that such a right may only be established for persons of full legal age

and that, on the other hand, it is not permitted that such a right be not established for the persons of

full legal age (save the exceptions which stem from the Constitution).

5. Article 1 of the Law on Amending Article 3.194 of the Civil Code which was adopted by

the Seimas on 11 November 2004 (and which came into force on 26 November 2004) amended

24

Paragraph 3 (wording of 18 July 2000) of Article 3.194 of the CC and set it forth in a new wording;

the following was established: “The court shall award support until the child attains full legal age

except in cases where the child lacks capacity for work due to a disability determined before the full

legal age or when the support is necessary for the child when he learns at day-time departments of

secondary, higher education or vocational schools and he is not older than 24.”

6. After the said amendment was made, Article 3.194 (wording of 11 November 2004) of

the CC regulates not only the relations which emerge when the parents do not implement their duty

to provide their underage children with material support (or they did not agree on the support of

their underage children), as well as to provide the children who came of age with material support if

the child lacks capacity for work due to a disability determined to him before full legal age, but also

the relations which are linked to the powers of the court to award support for the children of full

legal age, for whom the support is necessary and who learn at day-time departments of secondary,

higher education or vocational schools and who are not older than 24.

7. The impugned provision of Article 3.194 (wording of 11 November 2004) of the CC

means that the parents have the duty which arises from the law to provide their children of full legal

age with material support, provided they are not older than 24, who learn at day-time departments

of secondary, higher education or vocational schools and who need the said support; if such a

person of full legal age applies to court in order to be awarded the support from the parents because

of the fact that he learns at day-time departments of secondary, higher education or vocational

schools, and the court establishes that the support is necessary for this child, the court must award

the support for him which must be provided by the parents as long as the said person of full legal

age learns at the corresponding educational establishment, but only until he attains 24.

Thus, the impugned provision of Article 3.194 (wording of 11 November 2004) of the CC is

formulated in an imperative manner: the court has the duty to award the support specified in the

said provision in all cases under the conditions specified in that provision.

This provision is treated by courts namely as an imperative one.

For instance, the Supreme Court of Lithuania expressis verbis held so in its ruling of 23

January 2007 which was adopted in civil case No. 3K-7-130/2007. While in the 23 January 2007

ruling which was adopted in civil case No. 3K-7-104/2007, even though it held that a court, upon

assessment of the evidence and upon consideration and establishment of the significant

circumstances, has the “right of discretion” to award support for the person who learns in secondary

school, the Supreme Court of Lithuania was following the provision that a court may do so “under

other conditions established in Paragraph 3 of Article 3.194 of the CC” and that “by the regulation

enshrined in Paragraph 3 of Article 3.194 of the CC, the state seeks to help the pupil to enjoy his

right to education, thus, the parents must also help the pupil and/or student to implement this right

25

<…>”.

The fact that the courts treat the said provision as imperative is testified by the 35 petitions

in this constitutional justice case from the courts of the Republic of Lithuania (petitioners) who

initiated this case.

8. It needs to be noted that the institute of support of underage children (parents have the

duty to provide their underage children with material support) which is enshrined in Section Two

titled “Mutual Support Duties of Parents and Children” of Chapter XII titled “Mutual Property

Rights and Duties of Parents and Children” of Book Three “Family Law” of the CC and the

institute of support of the children of full legal age who learn at day-time departments of secondary,

higher education or vocational schools are not identical, they differ essentially, as the subjects of the

corresponding legal relations are essentially different: in the first case, one of the subjects of the

legal relations is always an underage child who has the right to receive the material support from his

parents, while the other subject is one of his parents or both his parents, thus, the legal relations

emerge between the underage person and the person (persons) of full legal age (or emancipated

persons); in the second case, one of the subjects of the legal relations is always a person of full legal

age who learns at the day-time department of a secondary, higher education or vocational school

and for whom the support is necessary, and the other subject is also one of his parents or both his

parents, thus, the legal relations emerge between the persons of full legal age.

9. While revealing the content of the impugned provision of Article 3.194 (wording of 11

November 2004) of the CC, one needs to take account of the entirety of the legal regulation, which

had been by then enshrined in a corresponding textual form, in Section Two titled “Mutual Support

Duties of Parents and Children” of Chapter XII titled “Mutual Property Rights and Duties of

Parents and Children” of Book Three “Family Law” of the CC, and namely of the following

provisions:

– Paragraph 1 of Article 3.192 titled “Parents’ Duty to Maintain Their Children” of the CC

enshrines the duty of parents to provide their underage children with material support;

– the amount for support must be commensurate with the needs of the children and the

financial situation of their parents; it must ensure the existence of conditions necessary for the

child’s development (Paragraph 2 of Article 3.192 of the CC);

– both parents must provide support for their underage children in accordance with their

financial situation (Paragraph 3 of Article 3.192 of the CC);

– according to Paragraph 3 of Article 3.193 titled “Parental Agreement on the Support of

Their Underage Children” of the CC, if one of the parents does not abide by the agreement on the

support of their underage children approved by the court, the other parent shall be have a right to

apply to the court for the issuance of the writ of execution;

26

– according to Paragraph 1 of Article 3.194 titled “Awarding Support by a Court” (wording

of 18 July 2000) of the CC, if the parents (or one of the parents) fail in the duty to maintain their

underage children, the court may issue a support order in an action brought by one of the parents or

the child’s guardian (curator) or the state institution for the protection of the child’s rights;

– according to Paragraph 3 (wording of 18 July 2000) of Article 3.194 of the CC, the court

shall award support until the child attains full legal age except in cases where the child lacks

capacity for work due to a disability determined before the full legal age;

– the enforcement of the support order shall be terminated when the child: (1) is

emancipated; (2) attains full legal age; (3) is adopted; (4) dies (Paragraph 4 of Article 3.194 of the

CC);

– if the person obliged to pay support dies, the duty of support shall pass to his or her

successors within the limits of the inherited property irrespective of the way the estate is accepted

under the rules of Book Five hereof (Paragraph 5 of Article 3.194 of the CC);

– according to Article 3.195 titled “Support Duty When the Children are Separated from

Their Parents” of the CC, the parents’ duty to maintain their underage children shall be retained

after the separation of the children from their parents or the limitation on parental authority except

in cases where the child is adopted;

– according to paragraph 1 of Article 3.196 titled “The Form and Amount of Support” of the

CC, the court may award support obligating the parents (one of the parents) who fail in their duty to

maintain their children to provide support for their children in the following ways: (1) periodical

monthly payments; (2) a certain lump sum; (3) award of certain property; according to Paragraph 2

of this article, pending the outcome of the case, the court may give a ruling on the provisional

payment of support;

– according to Article 3.197 titled “Coercive Pledge (Hypothec)” of the CC, if necessary, in

making a decision on awarding support, the court may institute pledge (hypothec) against the

property of the parents (one of the parents). If the court decision on the exaction of the support is

not executed, the support shall be exacted from the property subject to the pledge according to the

procedure established in laws;

– according to Article 3.199 titled “Kinds of Income from Which Support Payments shall be

Made” of the CC, support for children shall be exacted from the wages and all the other kinds of

income of the father (mother) obliged to pay the support;

– according to Article 3.201 titled “Changing the Amount and Form of Support” of the CC,

in an action brought by the child, the child’s father (mother), the state institution for the protection

of the child’s rights or a public prosecutor the court may reduce or increase the amount of the

awarded support if, after the awarding of the support, the financial situation of the parties has

27

undergone a fundamental change;

– according to Article 3.204 titled “Children Maintained by the State” of the CC, the state

shall maintain underage children receiving no support from their parents or adult close relatives

who are in a position to maintain the child (Paragraph 1); the amount, procedure and conditions of

such support shall be established by the Government (Paragraph 2); after providing support for an

underage child under this article, the state shall have the right of recourse to recover the support

provided to the child from the child’s parents or his other adult close relatives provided the court

declared the reasons why they failed to provide support for the child to be insufficient (Paragraph

3).

10. All these provisions were designed for the institute of support of underage children, as

well as children who lack capacity for work due to a disability determined to them before the full

legal age.

After the Seimas, on 11 November 2004, amended Paragraph 3 (wording of 18 July 2000)

of Article 3.194 of the CC and set it forth in a new wording, alongside with the provision that the

court shall award support until the child attains full legal age except in cases where the child lacks

capacity for work due to a disability determined before the full legal age that had existed until then,

also a new provision came into being where the court shall award support, when the support is


vocational schools and he is not older than 24.

Such an amendment of the legal regulation virtually means that a new institute of support of

children of full legal age who learn at day-time departments of secondary, higher education or

vocational schools and for whom the support is necessary, which had never existed in the legal

system before, was created, as well as that this new legal institute was mechanically included into

the entirety of the legal regulation designed for the institute of support of only underage children, as

well as children who lack capacity for work due to a disability determined before the full legal age.

It needs to be noted that the said novel of the legal regulation was made without correcting

(without amending or supplementing) the articles (paragraphs thereof) of Section Two titled

“Mutual Support Duties of Parents and Children” (wording of 18 July 2002) of Chapter XII titled

“Mutual Property Rights and Duties of Parents and Children” of Book Three “Family Law” of the

CC which, as mentioned before, until then were designed for the institute of support of only

underage children, as well as children who lack capacity for work due to a disability determined

before the full legal age.

Without doing that, certain articles (paragraphs thereof) of the said section, by continuing to

regulate the relations linked to the powers of the court to award support for underage children, as

well as for children who lack capacity for work due to a disability determined before the full legal

28

age, started to regulate the relations linked to the powers of the court to award support for the

children of full legal age, for whom the support is necessary and who learn at day-time departments

of secondary, higher education or vocational schools and who are not older than 24.

It also needs to be noted that entire Section Two titled “Mutual Support Duties of Parents

and Children” of Chapter XII titled “Mutual Property Rights and Duties of Parents and Children” of

Book Three “Family Law” of the CC (or any other place of the CC) does not clearly regulate what

needs to be taken into account by the court, while deciding whether to award the parents’ support

for the person of full legal age, for whom the support is necessary and who learns at day-time

departments of secondary, higher education or vocational schools and who is not older than 24, as

well as from what kind of income which is received by the parents (or one of them) such support

may be awarded, etc.

Thus, the essential elements of the institute of support of children of full legal age, for whom

the support is necessary and who learn at day-time departments of secondary, higher education or

vocational schools, are not established.

Because of the fact that, as mentioned before, the institute of support of underage children

and the institute of support of the children of full legal age who learn at day-time departments of

secondary, higher education or vocational schools are not identical, they differ essentially (as the

subjects of the corresponding legal relations are essentially different), when the court is deciding

whether to award the parents’ support for the person of full legal age who learns at day-time

departments of secondary, higher education or vocational schools, the possibilities of the court to

refer to the provisions of Article 1.8 of the CC which enshrine the analogy of the law (Paragraph 1)

and to apply the provisions of Section Two titled “Mutual Support Duties of Parents and Children”

of Chapter XII titled “Mutual Property Rights and Duties of Parents and Children” of Book Three

“Family Law” of the CC which belong to the institute of support of underage children become more

difficult.

Due to the imperative character of the impugned provision of Article 3.194 (wording of 11

November 2004) of the CC in such cases also the possibilities of the court to refer to the provisions

of Article 1.8 of the CC which enshrine the analogy of law (Paragraph 2) and to Paragraph 4 of

Article 1.5 of the CC, under which the court, while construing laws and applying them, must follow

the principles of justice, reasonableness and good faith become much more difficult: even if the

court tried to follow these principles (as well as general principles of law), legal indetermination

and ambiguity (because of the imperative character of the impugned provision, as well as because

of the fact that, as mentioned before, the essential elements of the institute of support of the children

of full legal age who learn at day-time departments of secondary, higher education or vocational

schools were not established) would remain big.

29

11. It has been mentioned that the petitioners request an investigation into whether the

provision “the court may award support <…> when the support is necessary for the child when he

learns at day-time departments of secondary, higher education or vocational schools and he is not

older than 24” of Paragraph 3 (wording of 11 November 2004) of Article 3.194 of the CC is not in

conflict, inter alia, with the provision of Paragraph 6 of Article 38 of the Constitution that the right

and duty of parents is to support their children until they come of age, because of the fact that,

according to the petitioners, neither this paragraph nor any other part of the Constitution provides

that the parents must support their children of full legal age.

12. While construing the provision of Paragraph 6 of Article 38 of the Constitution that the

right and duty of parents is to support their children until they come of age, it needs to be noted that

it is designed to regulate the relations between parents and their underage children. It does not

regulate the relations between parents and their children after the children come of age.

12.1. It also needs to be noted that this constitutional provision may not be construed as

meaning that, purportedly, the legislature cannot, in general, establish the duty of the parents to

provide their children of full legal age with support for whom the support is necessary, if such a

duty may be grounded on other provisions of the Constitution.

In the context of the constitutional justice case at issue, it needs to be emphasised that the

said provision of Paragraph 6 of Article 38 of the Constitution may not be construed as meaning

that, purportedly, the legislature cannot, in general, establish the duty of the parents to provide

support for their children of full legal age for whom the support is necessary, so that they could

acquire corresponding education.

12.2. For example, taking account of the fact that in Lithuania secondary education is

usually acquired when the pupil has already come of age (has turned 18), it is obvious that the

parents have the duty to support their child for the period of time in which the pupil, studying

honestly and showing good results, may acquire secondary education, as well as such secondary

education which could be granted together with the professional one. Such a duty of the parents

should be derived not only from the laws, but also from the entirety of the provisions of the

Constitution, inter alia, from the constitutional consolidation of the value of the relations between

parents and children, the striving for a just and harmonious civil society, and the social orientation

of the state.

12.3. The possibility of the legislative consolidation of the duty of the parents to provide

material support for their children of full legal age while they learn at schools of higher education,

inter alia, their day-time departments, should be assessed differently. The legislature cannot

disregard the circumstance that in this case legal relations emerge between the persons of full legal

age—the student of a school of higher education and one of the parents or both parents.

30

The Constitutional Court has held that the principle of solidarity which is enshrined in the

Constitution does not deny personal responsibility for one’s destiny (the Constitutional Court’s

rulings of 12 March 1997, 25 November 2002, 3 December 2003, 5 March 2004, and 13 December

2004). It needs to be emphasised that the relations between parents and children, even if they came

of age, in most aspects are special, their links are constitutionally valuable. However, in itself it

does not mean that it is possible to establish such legal regulation that the burden of implementation

of the decisions which were independently adopted by the children who came of age would

unconditionally be transferred to the parents, who no longer have (under the CC) and may not have

(under the Constitution) any power (power of parents) over their children of full legal age who

adopt those decisions. In the context of the constitutional justice case at issue, it needs to be noted

that under Paragraph 1 of Article 2.5 of the CC, on attaining full legal age, the person shall have full

civil capacity—by his acts he may acquire civil rights and create civil duties.

It is obvious that the parents have moral obligations also to their children who came of age,

as well as the children have moral obligations to their parents. However, it needs to be emphasised

that one may ensure the implementation of not all moral obligations (or their implementation “to the

full extent”) by enshrining the analogous legal duties in legal acts.

Article 38 of the Constitution not only consolidates that the right and duty of parents is to

bring up their children to be honest people and faithful citizens and to support them until they come

of age (Paragraph 6), but also, inter alia, the fact that the duty of children is to respect their parents,

to take care of them in their old age, and to preserve their heritage (Paragraph 7).

Upon the decision of the legislature to establish by law the duty of the parents to provide

material support for their children of full legal age for whom the support is necessary, when they

learn at schools of higher education, one may not deny any of the rights (inter alia, the right of

ownership) and legitimate interests of parents which are defended and protected by the Constitution,

or the rights and legitimate interests of other persons, also one may not restrict, let alone deny the

powers of courts to administer justice. For instance, while consolidating the said duty of parents, it

is not permitted not to pay heed to the possibilities of parents and their duties to other persons (inter

alia, underage children, other members of the family, dependants). One may not establish any such

legal regulation which would create preconditions (because of the implementation of such a duty of

the parents established by law) to essentially aggravate the situation of the parents or other persons,

let alone establish such a duty of the parents to provide material support for their children of full

legal age, for whom the support is necessary when they learn at schools of higher education, which,

in general, could not be fulfilled by the parents without inflicting essential harm to the their rights or

the rights of other persons. Nor may one establish any such legal regulation whereby the court, in

all cases, when the parents or one of the parents has certain income or other property, especially

31

when this income or other property is not big (it needs to be emphasised that their size or

sufficiency may not be assessed only according to such formal criteria as the minimum standard of

living, minimum monthly salary, average remuneration for work, etc. which are established in legal

acts at present), would have the duty to award support for the child of full legal age for whom the

support is necessary when he learns at a school of higher education. It should be particularly

emphasised that one may not establish any such legal regulation whereby the support is awarded

from the parents who themselves need support, guardianship, etc.

It also needs to be noted that, under the Constitution, the legal regulation where a court

could award the parents’ support for a person of full legal age who seeks to acquire not the first

higher education, even though he needs the support, as well as the legal regulation whereby the

court could award the parents’ support for such a person of full legal age who seeks education (inter

alia, higher education) who learns dishonestly, who is an underachiever and who misuses the rights

of the family, would be intolerable.

These as well as other imperatives which defend the rights and legitimate interests of the

parents and other persons are determined by the fact that, as it was said, the institute of support of

the children of full legal age for whom the support is necessary and who learn at day-time

departments of schools of higher education essentially differs from the institute of support of

underage children; the court award of support for persons of full legal age may not be grounded on

the same principles as for underage children. Otherwise, the concept of full legal age itself which is

consolidated in the Constitution and in the whole legal system would be denied.

12.4. It needs to be emphasised that upon the decision of the legislature to establish by law

the duty of the parents to provide material support for their children of full legal age for whom the

support is necessary, when they learn at schools of higher education, one may not limit himself only

to the establishment of the said duty, especially when the extent of this duty becomes clear only

when the court is deciding the case regarding the award of support, but one must establish all the

essential elements of this legal institute. Otherwise, legal ambiguity and uncertainty would be

created; alongside, one would create preconditions for the emergence of legal situations where the

possibilities of the court to administer justice would be aggravated (and sometimes it would be

impossible to administer justice at all) and, thus, the rights and freedoms of the person, as well as

other constitutional values, could be violated.

12.5. It also needs to be noted that upon the decision of the legislature to establish by law the

duty of the parents to provide material support for their children of full legal age for whom the

support is necessary, when they learn at schools of higher education, one may establish such legal

regulation whereby it would be possible to award the parents’ support for the said person for whom

the support is necessary only in the case when this person has made use of all the reasonable

32

opportunities to provide himself with the funds necessary for his learning (studies) at a school of

higher education.

12.6. It also needs to be noted that under the Constitution, the State of Lithuania is socially

oriented, thus, it has the constitutional obligation and must accept the burden of implementation of

certain commitments. The constitutional principle of social solidarity implies the opportunity to

distribute this burden to a certain extent also among the members of society, however, this

distribution must be constitutionally grounded, it may not be disproportionate and it may not deny

the social orientation of the state and the obligations to the state which stem from the Constitution.

In this context, it needs to be noted that as the Constitutional Court has held, the

constitutional human right to seek higher education presumes the state’s duty to ensure

preconditions necessary in order to implement this right; an individual’s constitutional right to seek

higher education according to his abilities even when the state does not finance his education

because that would exceed the needs and possibilities of the society and the state may not be denied

too (the Constitutional Court’s ruling of 14 January 2002). The constitutional principle of the state

social orientation and the constitutional imperative of an open, just and harmonious society and a

state under the rule of law implies, inter alia, that the state must seek to create such a system of

support for the persons who seek to acquire higher education that every person who learns at a

school of higher education, and for whom the support is necessary, would have a possibility of

getting a state loan necessary for his studies, that the conditions of the repayment of such a loan

would not be groundlessly aggravated and that the imperative of Paragraph 3 of Article 41 of the

Constitution that citizens who are good at their studies shall be guaranteed education at state

schools of higher education free of charge would be implemented in reality. In this context, in needs

to be noted that, as the Constitutional Court held in its ruling of 14 January 2002, the right of every

citizen with a good academic progress in a state higher school to free higher education which is

established in Paragraph 3 of Article 41 of the Constitution presumes that funds must be provided

out of the state budget to guarantee higher education free of charge to citizens who demonstrate

good academic progress in state higher schools; the criteria enabling to establish which students can

be said to demonstrate good academic results and which would, consequently, as prescribed by the

Constitution, have the right that their education in state higher schools be financed by the state,

should be established by law.

13. Taking account of the fact that the provision of Paragraph 6 of Article 38 of the

Constitution that the duty of parents is to support their children until they come of age is designed

to regulate the relations of the underage children and it does not regulate the relations between the

parents and children when the children came of age, the conclusion should be drawn that the

provision “the court may award support <…> when the support is necessary for the child when he

33

learns at day-time departments of secondary, higher education or vocational schools and he is not

older than 24” of Paragraph 3 (wording of 11 November 2004) of Article 3.194 of the CC is not in

conflict with the specified provision of Paragraph 6 of Article 38 of the Constitution.

14. The compliance of the impugned provision “the court may award support <…> when the

support is necessary for the child when he learns at day-time departments of secondary, higher

education or vocational schools and he is not older than 24” of Paragraph 3 (wording of 11

November 2004) of Article 3.194 of the CC with the constitutional principle of a state under the

rule of law specified in the petitions of some petitioners should be assessed differently.

15. The Constitutional Court has held in its acts more than once that the inseparable

elements of the principle of a state under the rule of law are legal certainty, legal clarity and legal

security.

16. It has been held in this ruling of the Constitutional Court that the CC does not clearly

regulate what needs to be taken into account by the court, when it is deciding whether to award the

parents’ support for a person of full legal age, for whom the support is necessary and who learns at

the day-time department of a secondary, higher education or vocational school and who is not older

than 24, as well as from what kind of income which is received by the parents (or one of them) such

support may be awarded, etc.; that the essential elements of the institute of support of children of

full legal age, for whom the support is necessary and who learn at day-time departments of

secondary, higher education or vocational schools, are not established. It has also been held that

when the court is deciding whether to award the parents’ support for a person of full legal age who

learns at day-time departments of secondary, higher education or vocational school, the possibilities

of the court to refer to the provisions of Article 1.8 of the CC which enshrine the analogy of the law

(Paragraph 1) and to apply the provisions which belong to the institute of support of underage

children become more difficult. It has also been held that due to the imperative character of the

impugned provision of Article 3.194 (wording of 11 November 2004) of the CC in such cases also

the possibilities of the court to refer to the provisions of Article 1.8 of the CC which enshrine the

analogy of law (Paragraph 2) and to Paragraph 4 of Article 1.5 of the CC, under which the court,

while construing laws and applying them, must follow the principles of justice, reasonableness and

honesty become much more difficult: even if the court tried to follow these principles (as well as

general principles of law), legal indetermination and ambiguity would remain big.

17. Such legal regulation creates preconditions for appearance of such legal situations,

where the possibilities of the court to administer justice would be aggravated (and sometimes it

would be impossible to administer justice at all) and, thus, the rights and freedoms of the person as

well as other constitutional values could be violated.

This is not in line with Paragraph 1 of Article 109 of the Constitution, under which justice

34

shall be administered only by courts.

18. These essential drawbacks of the legal regulation are not related to the fact that, under

the Constitution, purportedly, one may not establish by law the duty of the parents to support their

children of full legal age for whom such support is necessary in order they could acquire

corresponding education (in general, the Constitution does not prohibit that—in certain cases, such

a duty of the parents may be constitutionally grounded), but to the fact that the legislature, upon

establishing the duty of the parents to provide material support for their children of full legal age,

but not older than 24, for whom the support is necessary and who learn at day-time departments

secondary, higher education or vocational schools, and the imperative duty of a court to award such

support, alongside did not establish the essential elements of the institute of support for the children

of full legal age for whom the support is necessary when they learn at day-time departments of

secondary, higher education or vocational schools, and thus, he created big indetermination and

ambiguity in the legal regulation.

19. While taking account of the arguments set forth, the conclusion should be drawn that

Paragraph 3 (wording of 11 November 2004) of Article 3.194 of the CC, to the extent that it

prescribes that a court must in all cases award (that it does not have the powers not to award) the

support from the parents (or one of them) for a person of full legal age, for whom the support is

necessary, who has acquired secondary education and who learns at the day-time department of a

higher education or vocational school, provided he is not older than 24, is in conflict with Paragraph

1 of Article 109 of the Constitution and with the constitutional principle of a state under the rule of

law.

20. Upon recognising by this ruling of the Constitutional Court that Paragraph 3 (wording of

11 November 2004) of Article 3.194 of the CC, to the extent that it prescribes that a court must in

all cases award (that it does not have the powers not to award) the support from the parents (or one

of them) for a person of full legal age, for whom the support is necessary, who has acquired

secondary education and who learns at the day-time department of a higher education or vocational

school, provided he is not older than 24, is in conflict with the Constitution, and especially, when

one takes account of the fact that the CC does not establish the essential elements of the institute of

support for the children of full legal age who learn at day-time departments of secondary, higher

education or vocational schools, it needs to be held that there exist big gaps in the legal regulation.

In its decision of 8 August 2006, the Constitutional Court held the following: the elimination

of legal gaps is a matter of competence of respective (competent) law-making subject; it is possible

to certain extent to fill the legal gaps that are in legal acts of lower legal force also in the course of

application of law (inter alia, by making use of legal analogy, by applying general principles of

law, as well as legal acts of higher legal force, first of all, the Constitution), thus, also in the course

35

of construction of law (inter alia, when this is done by courts which administer justice and decide,

within their competence, individual cases and which have to construe law so that they would be

able to apply it); the courts can fill the legal gaps that are in legal acts of lower legal force only ad

hoc, i.e. by this way of application of law the legal gaps are removed only as regards a particular

social relation due to which the dispute is decided in the case investigated by the court; it is possible

to completely remove legal gaps (as well as legislative omission) only when the law-making

institutions issue respective legal acts; the courts cannot do this, they can fill the legal gaps, since

the courts administer justice, but they are not legislative institutions (in the positive and broadest

sense of this term); such limitation on the possibilities of courts in this area is especially evident

when gaps in substantive law are confronted. It was also held that: in all cases there is an

undeniable opportunity for courts to fill a legal gap, which is in a legal act of lower legal force, ad

hoc; if such empowerments of courts were denied or not recognised, if the opportunities of courts to

apply law, first of all the supreme law—the Constitution—depended on whether a certain law-

making subject did not leave gaps in the legal regulation (legal acts) that he has established, and if

courts were able to decide cases only after these legal gaps are filled by way of law-making, then

one would have to hold that the courts, when they decide cases, apply not law, not, first of all, the

supreme law—the Constitution—but only a law (in the general sense of this term), that they

administer justice not according to law, but only formally apply articles (parts thereof) of legal acts,

that constitutional values, inter alia, the rights and freedoms of the person, may be injured (and not

compensated, nor redressed) only because a corresponding law-making subject has not legally

regulated certain relations (or when he legally regulates them, but not intensively enough); this

would not be in line with the social and constitutional purpose of courts, and it would mean that law

is treated only as its textual form and is identified with the latter.

Thus, the fact that this ruling of the Constitutional Court has recognised that Paragraph 3

(wording of 11 November 2004) of Article 3.194 of the CC, to the extent that it prescribes that a

court must in all cases award (that it does not have the powers not to award) the support from the

parents (or one of them) for a person of full legal age, for whom the support is necessary, who has

acquired secondary education and who learns at the day-time department of a higher education or

vocational school, provided he is not older than 24, is in conflict with the Constitution, and the fact

that the CC does not establish the essential elements of the institute of support for the children of

full legal age who learn at day-time departments of secondary, higher education or vocational

schools, do not mean that the courts (as well as the courts which initiated this constitutional justice

case) which decide cases in which the question of application of Paragraph 3 (wording of 11

November 2004) of Article 3.194 of the CC can choose not to decide them only because of the fact

that the legislature has not yet properly regulated the corresponding relations by law. While

36

deciding such cases (regarding the awarding of the parents’ support for the said children), courts

must fill the aforementioned gaps in the legal regulation ad hoc. While doing so, courts must heed,

inter alia, the fact that, as it has been held in this ruling of the Constitutional Court, the award of

support for the persons of full legal age may not be grounded on the same principles as for the

underage children.

On the other hand, the said possibility of the courts to fill in the legal gaps ad hoc does not

mean that the legislature does not have the duty, while paying heed to the Constitution and within a

reasonable time period, to establish by law the proper legal regulation of the corresponding

relations.

Conforming to Articles 102 and 105 of the Constitution of the Republic of Lithuania and

Articles 1, 53, 54, 55 and 56 of the Law on the Constitutional Court of the Republic of Lithuania,

the Constitutional Court of the Republic of Lithuania gives the following

ruling:

To recognise that Paragraph 3 (wording of 11 November 2004, Official Gazette Valstybės

žinios, 2004, No. 171-6319) of Article 3.194 of the Civil Code of the Republic of Lithuania, to the

extent that it prescribes that a court must in all cases award (that it does not have the powers not to

award) the support from the parents (or one of them) for a person of full legal age, for whom the

support is necessary, who has acquired secondary education and who still learns at the day-time

department of a higher education or vocational school, provided he is not older than 24, is in

conflict with Paragraph 1 of Article 109 of the Constitution of the Republic of Lithuania and with

the constitutional principle of a state under the rule of law.

This ruling of the Constitutional Court is final and not subject to appeal.

The ruling is pronounced in the name of the Republic of Lithuania.

Justices of the Constitutional Court: Armanas Abramavičius

Toma Birmontienė

Egidijus Kūris

Kęstutis Lapinskas

Zenonas Namavičius

Vytautas Sinkevičius

Stasys Stačiokas

Romualdas Kęstutis Urbaitis

Documents

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA · 6/7/2007 · Paragraph 6 of Article 38 of the Constitution of the Republic of Lithuania that the right and duty of parents