Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of the Government of the Republic of
Lithuania Resolution No.465 "On partial amendment to the
Government of the Republic of Lithuania Resolution No.124 'On
the remuneration of officers of the courts of the Republic of
Lithuania, the State Arbitration, the Prosecutor's Office, and
the Department of State Control' of 3 March 1993" adopted on 31
March 1995, with the Constitution of the Republic of Lithuania,
Part 1 of Article 46 of the Law on Courts of the Republic of
Lithuania, Part 1 of Article 4 of the Law of the Republic of
Lithuania on the Prosecutor's Office, the Law of the Republic
of Lithuania on State Control, and the Law of the Republic of
Lithuania "On the Official Salaries of Judges of the Courts of
the Republic of Lithuania, Officers of the Prosecutor's Office,
the State Arbiters, and Officers of the Department of State
Control"
Vilnius, 6 December 1995
the Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Algirdas
Gailiūnas, Kęstutis Lapinskas, Zigmas Levickis, Vladas
Pavilonis, Pranas Vytautas Rasimavičius, Stasys Stačiokas,
Stasys Šedbaras and Juozas Žilys,
the secretary of the hearing Sigutė Brusovienė,
the petitioner - members of the Seimas Andrius Kubilius
and Vidmantas Žiemelis, representatives of a group of the
members of the Seimas of the Republic of Lithuania,
the party concerned - Head of the Wages Department of the
Ministry of Social Security and Labour Algirdas Bartkevičius,
the Secretary of the Ministry of Justice, Director of the
Courts Department Artūras Drigotas and Director of the Finance
and Economy Department Gertrūda Tumelienė, representatives of
the Government of the Republic of Lithuania,
pursuant to Part 1 of Article 102 of the Constitution of
the Republic of Lithuania and Part 1 of Article 1 of the Law on
the Constitutional Court of the Republic of Lithuania, in its
public hearing of 7 November 1995 conducted the investigation
of Case No.3/95 subsequent to the petition submitted to the
Court by a group of members of the Seimas of the Republic of
Lithuania requesting to investigate if the Government of the
Republic of Lithuania Resolution No.465 "On partial amendment
to the Government of the Republic of Lithuania resolution
No.124 'On the remuneration of officers of the courts of the
Republic of Lithuania, the State Arbitration, the Prosecutor's
Office, and the Department of State Control' of 3 March 1993"
adopted on 31 March 1995 does not contradict the Constitution
of the Republic of Lithuania, Part 1 of Article 46 and Part 1
of Article 55 of the Law of Courts the Republic of Lithuania,
Part1 of Article 4 and Article 35 of the Law of the Republic of
Lithuania on the Prosecutor's Office, Article 2 of the Law of
the Republic of Lithuania on State Control, and the Law of the
Republic of Lithuania "On the Official Salaries of Judges of
the Courts of the Republic of Lithuania, Officers of the
Prosecutor's Office, the State Arbiters, and Officers of the
Department of State Control".
The Constitutional Court
has established:
I
On 31 March 1995, the Government of the Republic of
Lithuania adopted Resolution No.465 "On partial amendment to
the Government of the Republic of Lithuania Resolution No.124
'On the remuneration of officers of the courts of the Republic
of Lithuania, the State Arbitration, the Prosecutor's Office,
and the Department of State Control' of 3 March 1993" (Official
Gazette "Valstybės Žinios", No.30 - 685, 1995, hereinafter
referred to in the Ruling as the disputed Government Resolution
) by which item 8 of the amended resolution has been formulated
anew in the following way:
"6. To establish that the Government of the Republic of
Lithuania shall take decision on the amount of the additional
official payments and bonuses awarded to the Chairperson
(President) of the Supreme Court of Lithuania, the Prosecutor
General of the Republic of Lithuania and the State Controller
of the Republic of Lithuania; the Minister of Justice - to the
chairpersons and judges of the Court of Appeals of the Republic
of Lithuania, Area and District Courts and the Economic Court
of the Republic of Lithuania, and the Prosecutor General of the
Republic of Lithuania - to the heads of the prosecutor's
offices. Heads of the said institutions shall take decisions on
the amount of the additional official payments and bonuses
awarded to other officers and employees and shall establish the
procedure for awarding of the bonuses".
The petitioner requests the Constitutional Court to
investigate, if the said Government Resolution does not
contradict Part 2 of Article 109 of the Constitution of the
Republic of Lithuania, Part 1 of Article 46 and Part 1 of
Article 55 of the Law on Courts of the Republic of Lithuania,
Part 1 of Article 4 and Article 35 of the Law of the Republic
of Lithuania on the Prosecutor's Office, Article 2 of the Law
of the Republic of Lithuania on State Control, and the Law of
the Republic of Lithuania "On the Official Salaries of Judges
of the Courts of the Republic of Lithuania, Officers of the
Prosecutor's Office, the State Arbiters, and Officers of the
Department of State Control".
II
The petitioner grounds his request on the following
arguments:
1. Conforming to the disputed Resolution, the Government
is entitled not only to establish the individual official
additional payments of different amount, but also to award
bonuses of unlimited amount to individual judges, prosecutors
and other officers of the institutions listed in the
Resolution. For example, it means that the Government and a
member of the Cabinet (the Minister of Justice) assess, whether
judges who investigated a case and other officers deserve a
bonus in general and take decision on the amount of the bonus.
Thus, the courts and the judges as well as the employees of the
prosecutor's office may be given to understand, which of their
decisions and actions taken in the administration of justice
are rated highly, and which are disapproved of.
2. Part 2 of Article 109 of the Constitution establishes
that "while administering justice, judges and courts shall be
independent". This provision of the Constitution has also been
enacted in Part 1 of Article 46 of the Law on Courts, and Part
1 of the Article 55 of this Law indicates that "salaries of the
judges shall be established by the laws of the Republic of
Lithuania". Therefore, no one, including the Government or the
Minister of Justice, has been reserved the right to assess the
work of judges and establish and pay individual official
additional payments or award bonuses to them on the basis of
these assessments.
3. Similar provisions on the independence of Officers of
the prosecutor's office have been enacted in the Law on the
Prosecutor's Office. Part 1 of Article 4 of this law
stipulates, that "in executing their powers, officers of the
prosecutor's office shall be independent and shall observe only
the law". In order to ensure this, Article 35 of the law
provides for that "the procedure and terms and conditions of
remuneration of the officers of the prosecutor's office shall
be established by the laws of the Republic of Lithuania". The
Law on the Prosecutor's Office does not envisage that the
Government may award bonuses to the officers of the
prosecutor's office. When the possibility to establish and
award individual bonuses or lump sum bonuses to judges or
officers of the prosecutor's office is opened to the Government
or the minister, the courts and the prosecutor's office may no
longer maintain their independence.
4. Article 2 of the Law on the Department of State Control
establishes that "the Department of State Control shall have
its own estimate of expenditure which shall be proposed by the
State Controller to the Seimas of the Republic of Lithuania for
its approval". If the funds for bonuses were to be included in
the estimate of wages funds, they would be approved
(appropriated) by the Seimas, not the Government.
5. On 3 February 1993 the Seimas adopted (and appended on
18 March 1993) the Law "On the Official Salaries of the Judges
of Courts of the Republic of Lithuania, Officers of the
Prosecutor's Office, State Arbiters and Officers of the
Department of State Control", which provided for that "until
the respective laws are specified, the official salaries of the
judges of the courts of the Republic of Lithuania, officers of
the prosecutor's office, [...] and the Department of State
Control shall be established by the Government of the Republic
of Lithuania". There is no mention made in this law about the
additional official payments or bonuses, therefore, by adoption
of this Resolution the Government has committed a flagrant
breach of the said law. There are no legal grounds for widening
of the concept of the official salary of the listed officers by
including in it the individual additional official payments and
bonuses.
6. Both the Constitution and the respective laws in
operation contain provisions which safeguard the independence
of the courts and the prosecutor's office as they intentionally
specify that the salaries of the officers of these institutions
(and also the Department of State Control) shall be established
only by law. However, the Government undertakes not only to
determine the amount of the official salaries (it may exercise
this right temporarily), but also to establish individual
additional official payments of different amount or even award
lump sum bonuses to the Chairperson (President) of the Supreme
Court, the Prosecutor General and the State Controller (and the
Minister of Justice - to the chairpersons and judges of courts)
for their work done while investigating cases, for fairness and
adherence to the principle. Therefore, individual officers of
the courts, the prosecutor's office and the Department of State
Control may inevitably become dependant upon the Government
materially.
7. In the opinion of the petitioner, the Supreme Court,
the Office of the Prosecutor General and the Department of the
State Control and the heads and officers of these institutions
will be able to observe only the law in practice and will be
independent in executing their powers only in the event that
instead of the additional official payments or bonuses they are
paid for their work the official salaries of respectively
higher amount which will be established only by the law, not
the Government resolutions.
III
The representatives of the petitioner, members of the
Seimas A.Kubilius and V.Žiemelis, having acquainted themselves
with the explanations submitted by the representatives of the
party concerned, have specified additionally:
1. It is not true that the concept of independence of
judges and courts may not be related to the problem of
remuneration of the judges. If the Government is granted the
right to manipulate the salaries of judges, the notion of
independence of courts is rendered meaningless, because when
considering the independence of courts and judges, usually the
constancy of their salary is implied. In certain countries
(e.g.Great Britain) reduction of the salaries of judges is
forbidden.
The system of establishing and awarding of the so-called
bonuses in particular threatens the independence of the courts
and other institutions which are the subject of analysis in
this case, since the decision to award them is predetermined by
the factors which are absolutely subjective.
2. While interpreting the concept of independence it is
necessary to stress, that the Constitution does not state
expressly that the same safeguards guaranteeing the
independence of courts should be applied to the prosecutor's
office and the State control, however, it is an undisputed fact
that such safeguards are essential to these institutions. This
need is reflected in the Law on the Prosecutor's Office, which
provides for, that the prosecutors' office, while being an
independent component of the judiciary, shall be independent of
the institutions of state power and government.
Whereas the State Control controls the activity of the
Government, it should therefore be independent of the
Government's will to establish additional payments or bonuses
and also of its influence on the decisions adopted by the state
controllers.
3. Judges, prosecutors and state controllers may and
should be entitled to the additional official payments for
years of service, their professional qualifications to be
assessed on the basis of the clear criteria, also for the
region in which they are working, however, it all should be
prescribed by the law.
IV
The representatives of the party concerned, Head of the
Wages Department of the Ministry of Social Security and Labour
A.Bartkevičius, and the Director of the Finance and Economy
Department of the Ministry of Justice G.Tumelienė, in their
answers to the arguments submitted by the petitioner have
indicated the following:
1. Article 109 of the Constitution and Article 46 of the
Law on Courts establish the independence of judges, however,
this is no way related to the salaries of the judges and the
additional official payments paid to them, because the judges
are paid salaries and additional payments for their work, not
for the investigation of individual cases. The judges are
awarded bonuses on the occasions of jubilees and Christmas and
Easter holidays, and the chairpersons of courts in individual
cases are awarded the performance bonuses for good
financial-economic results and organisation of work, for work
with bailiffs etc.
2. It is established in Article 55 of the Law on Courts
that the official salaries of judges shall be established by
the respective laws of the Republic of Lithuania. Drafting of
such law is underway currently and it is expected that it will
be adopted in the near future. The Law of 3 February 1993
provides that until the respective laws are specified, official
salaries of the judges of the Republic of Lithuania, officers
of the prosecutor's office and other institutions indicated by
the petitioner, shall be established by the Government of the
Republic of Lithuania, and therefore there is no contradiction
of laws in this case. Furthermore, Article 31 of the Statute of
the Supreme Court of Lithuania (Official Gazette "Valstybės
Žinios" No.36-887, 1995) which was enacted in 1995, establishes
that the remuneration of a judge of the Supreme Court of
Lithuania shall consist of the official salary established on
the basis of a coefficient, additional payment for years of
service in one's capacity as judge and the additional official
payment of a judge, which in the case of the Chairperson
(President) of the Supreme Court shall be established by the
Government of the Republic of Lithuania, and in the case of the
chairpersons of the Court departments, judges and other
officers of this Court - the Chairperson (President) of the
Supreme Court.
V
In the court hearing the representative of the petitioner,
a member of the Seimas A.Kubilius, has confirmed the request of
the group of the Seimas members and the reasoning submitted in
the additional explanation. In his opinion, the necessity for
the judges, courts, the officers of the prosecutor's office,
and the state controllers to be entirely independent while
making their decisions is beyond doubt. Whereas money and
material prosperity is one of the likely instruments of
influence which may be exerted over them. These officers should
be protected against such influence. On the other hand, the
executive, which according to the laws is controlled by these
officers, should not be exposed to the temptation to exert such
influence over the officers. In essence, the request contests
the provision of the aforementioned Resolution which provides
that the Government or the Minister of Justice may establish
and give individual additional official payments or award
bonuses, and by means of such instruments at the same time
influence the decisions adopted by courts and other
institutions. In that respect, the Resolution of the Government
is clearly defective.
The representative of the petitioner, a member of the
Seimas V.Žiemelis has noted, that the Seimas has envisaged the
right to establish the amount of the official salary, but not
the official salaries with the additional official payments
etc. In his opinion, it may not be claimed that the additional
official payments should not be paid to the judges, prosecutors
etc., however, the Seimas has either to append the law and
accord the Government the right to make decisions to establish
and pay payments, or solve this question in a different way.
The Statute of the Supreme Court and the Statute on Service in
the Prosecutor's Office allow to pay the additional payments,
however, it has to be established by whom (which authority) it
is done and according to what procedure.
The judge is not an officer according to the Constitution.
In some countries, salaries of judges remain unchanged for many
years, and in other countries their salaries are higher than a
prime minister's, and this does not surprise anyone. The
situation should be the same in Lithuania.
VI
In the court hearing, the representative of the party
concerned Director of the Finance and Economy Department of the
Ministry of Justice G.Tumelienė has affirmed that the Seimas
adopted a law by which it entrusted the Government to establish
the salaries of the officers of courts, the prosecutor's office
and the State Control. The Government Resolution No.499 of 29
November 1991 says, that the heads of institutions have the
right to pay the official salaries and additional official
payments and award bonuses. The Law adopted by the Seimas on 3
February 1993 establishes, that the Government is entitled to
set forth the additional conditions of remuneration of the
officers of courts, the prosecutor's office, the State Control
and other institutions according to the procedure established
in the Government Resolution No.499 of 1991. The bonuses are
paid from the saved share of the wages fund. The judges are not
awarded bonuses for their professional activities.
The petitioner's claim that the bonuses and additional
payments are not part of the official salary is not
substantially valid. The judges are paid their full salaries
from the single wages fund, which is approved by the Seimas by
its respective law. If the funds are saved, additional payments
and bonuses are paid from the same wages fund and their amount
is included in the amount of the official salary since they are
taxed and their amount is included in an average monthly
salary.
In the opinion of the representative of the party
concerned, the Secretary of the Ministry of Justice, Director
of the Courts Department A.Drigotas, it is not prohibited by
the law to establish the additional payments and the Government
does not commit a breach of law by establishing the right to
pay the additional payments and give other incentives. He
confirmed that the additional payments and bonuses are not
awarded for achievements in professional activity, therefore,
they do not constitute the source of influence over the judges
and the courts. The chairpersons and deputy chairpersons of
courts, the chairpersons of the divisions of area courts and
the Court of Appeals are awarded bonuses for the maintenance
activities, as there exist a lot of maintenance problems
pertaining to the establishment of court houses and fitting out
of the premises. The judges who are coping with these tasks
should be given incentives. These are today's problems of
living. The representative of the party concerned has admitted,
that all judges would like that a more specific procedure for
the establishment of the official salaries and provision of
other social guarantees be prescribed by the laws and thus any
possibility to manipulate the status of the judge be ruled out.
The request of the petitioner should not be satisfied.
Representative of the party concerned, the Head of the
Wages Department of the Ministry of Social Security and Labour
A.Bartkevičius has pointed out that the entry for the word
"salary" in "The Dictionary of the Modern Lithuanian Language"
says that salary is "a payment for work". One may maintain that
the official salary together with the additional official
payments constitute the payment for work. Bonuses may also be
seen as a part of this payment. It is difficult to take account
of the qualifications of a professional in a fixed salary
scheme, therefore the additional payments justify themselves in
this case. State agencies are not appropriated additional funds
for payment of additional payments and award of bonuses. The
Seimas approves the annual budget which is then being spent
throughout the year.
The disputed Government Resolution gives the Government
the right to establish the additional payments and award
bonuses only to three persons: the Chairperson (President) of
the Supreme Court, the Prosecutor General and the State
Controller. Additional payments and bonuses paid to other
officers are established by the heads of their institutions,
not the Government, therefore it may not be maintained that the
Government may influence the decisions of the officers by
adjusting their official salaries.
At present officers of different institutions are
remunerated for their work according to different rules. The
system should improve upon enactment of the law which is
currently being drafted and will introduce a uniform system of
remuneration of employees of all institutions and organisations
financed out of the State budget.
The rules for the establishment of the salaries for judges
vary from country to country. For example, in Sweden the
Ministry of Justice has the right to determine the additional
payments paid to judges, and in Estonia, pursuant to the
government resolution, the Ministry of Justice also has the
right to take decisions on the additional payments to the
judges and officers of the prosecutor's office. In the opinion
of the representative of the party concerned, there are no
grounds to draw conclusions about the independence of judges
and other officers on the basis of the fact of payment of
additional payments, since other guarantees or issues relating
to the activities of these institution may also be the pretext
for the raising of doubts about the independence of these
institutions.
The Constitutional Court
holds that:
Part 1 of Article 5 of the Constitution establishes that
"in Lithuania, the powers of the state shall be exercised by
the Seimas, the President of the Republic and the Government,
and the Judiciary". The content of this norm is disclosed in
other articles of the Constitution. The competence of each
institution of state power is established in accordance with
its function, which is predetermined by the place of that power
in the general system of powers and by its relationship with
other powers.
The Seimas enacts laws, considers the programme of the
Government submitted by the Prime Minister, supervises the
activities of the Government, appoints judges in the cases
provided by the Constitution and decides other issues put forth
in Article 67 of the Constitution. The President of the
Republic, who is the head of the State, represents the State of
Lithuania and performs all the duties which he is charged with
by the Constitution and laws. The Government administers the
affairs of the country, implements laws and resolutions of the
Seimas, drafts and executes the State Budget when it is
approved by the Seimas, and discharges other duties. Thus, the
independence of separate branches of power, as well as the
principle of balance of power is established in the
Constitution.
One of the fundamental distinguishing characteristics of a
democratic state is the principle of independence of the
judiciary. All democratic states adhere to this principle, and
as the historic facts illustrate, denial of this principle is
an immanent feature of a totalitarian and authoritarian regime.
Taking into consideration the principle of division of
powers established in the Constitution and the system of state
institutions, it is impossible to give a uniform assessment of
the contents of the question of relationship between the
courts, the prosecutors and the State control on the one hand,
and the Government on the other raised by the petitioner. The
status of courts is determined in Chapter 9 of the
Constitution. According to the Constitution, the prosecutors
are a component part of the judiciary, therefore, the
principles defining the independence of courts are applicable
to them, but only with due consideration of the approach
specified by the Constitution.
Chapter 12 of the Constitution determines the functions
and framework of activities of the State Control, the state
institution of economic financial control, which supervises the
legality of holding and use of state property and the State
Budget performance process. It is accountable directly to the
Seimas, which performs the parliamentary control of this
institution.
Taking into account the status of the courts, the
prosecutor's office and the State control, and the ways of the
exercise of their jurisdiction, the petitioner's request to
investigate the compliance of the Government of the Republic of
Lithuania Resolution No.465 "On partial amendment to the
Government of the Republic of Lithuania resolution No.124 'On
the remuneration of officers of the courts of the Republic of
Lithuania, the State Arbitration, the Prosecutor's Office, and
the Department of State Control' of 3 March 1993" adopted on 31
March 1995, with the Constitution of the Republic of Lithuania
and the principle of independence of courts, the prosecutor's
office and the State Control as determined by laws, has to be
investigated separately in case of each institution.
1. On the compliance of the disputed Government Resolution
with Part 2 of Article 109 of the Constitution of the Republic
of Lithuania, Part 1 of Article 46 and Part 1 of Article 55 of
the Law of the Republic of Lithuania on Courts as well as the
Law "On the Official Salaries of the Judges of Courts, Officers
of the Prosecutor's Office, the State Arbiters and the
Department of State Control of the Republic of Lithuania".
The judicial protection of human rights is enshrined in
the Constitution. Part 1 of its Article 30 establishes that a
person "whose constitutional rights or freedoms are violated,
shall have the right to appeal to court", and Part of its
Article 31 stipulates that : "Every indicted person shall have
the right to a fair and public hearing by an independent and
impartial court". Thus, it is indispensable to safeguard the
independence of courts in order to secure the human rights and
freedoms in the first place.
Parts 2 and 3 of Article 109 of the Constitution provide
that: "When administering justice, judges and courts shall be
independent. While investigating cases, judges shall obey only
the law". Therefore, the assumption that independence is not a
privilege, but one of the principal duties of judges and court,
ensuing from the human right to an impartial arbiter in a
dispute guaranteed by the Constitution, must necessarily be the
criterion guiding the assessment of the independence of judges
and court. Such concept of independence is also reflected in a
number of international instruments.
Article 10 of the Universal Declaration of Human Rights
adopted by the UN General Assembly on 10 December 1948,
establishes that "Everyone is entitled in full equality to a
fair and public hearing by an independent and impartial
tribunal, in the determination of his rights and obligations
and of any criminal charge against him".
By its resolution No.40/32 of 29 November 1985 and
resolution No.40/146, the UN General Assembly approved "Basic
Principles on the Independence of the Judiciary". Article 1 of
the document reads: "The independence of the judiciary shall be
guaranteed by the State and enshrined in the Constitution or
the law of the country. It is the duty of all governmental and
other institutions to respect and observe the independence of
the judiciary".
Part 1 of Article 6 of the European Convention for the
Protection of Human Rights and Fundamental Freedoms
establishes, that everyone is entitled to a fair and public
hearing within a reasonable time by an independent and
impartial tribunal established by law.
On 13 October 1994 the Committee of Ministers of the
Council of Europe adopted Recommendation No.94/12 "On the
Efficiency and Role of the Judges". Item 3 of its rule 5
prescribes the following duties for the judges: a) to act
independently and freely from an outside influence in all
cases; b) to conduct an impartial investigation of the case
based on the assessment of the established evidence and in
conformity with the laws, and ensure an impartial hearing of
all parties and compliance with provisions of the European
Convention of Human Rights and Freedoms. This rule also
requests the judges to abstain from the investigation of the
case or resort to other measures in order to ensure the full
realisation of the independence of courts.
The judge is obligated to be independent by the oath,
which according to Part 6 of Article 115 of the Constitution,
is sworn by the judge upon his appointment to the office. The
judge swears "to preserve loyalty to the Republic of Lithuania,
to obey only the law while administering justice, to protect
the human rights, freedoms and lawful interests, to
conscientiously fulfil his duties, be human and to never
discredit the name of the judge".
The Constitution, the Law on Courts and other laws provide
for the complex of safeguards guaranteeing the independence of
judges and court. On the basis of these guarantees conditions
should be created preventing anyone's interference with the
actions of judges or the court while rendering an impartial and
fair judgement. Impartiality of the judge is ensured not only
by laws. The universally recognised code of judicial ethics
establishes strict requirements of ethics (to be conscientious,
discreet, attentive and to preserve dignity), professional
qualifications (competence and impartiality) and other to
judges. Thus, both the constitutional and other legal
safeguards guaranteeing the independence of judges and the
court, and the rules of judicial ethics create the basis for
people's belief in the impartiality and objectivity of the
court as the arbiter of disputes.
Review of the complex of the safeguards guaranteeing the
independence of judges and the court and the responsibility of
judges leads to the conclusion that they are closely
interrelated. Therefore, the independence of judges and court
in general may not be examined on the basis of one element, no
matter how salient it may be. On the other hand, it must be
admitted that if any of the safeguards guaranteeing the
independence of judges and court are violated, it would impede
administration of justice and protection of human rights and
freedoms.
The contents of the safeguards guaranteeing the
independence of judges and court while administering justice
first of all arises from their independence from a) any
interference with their activities on the part of the parties
to the case; b) the influence of the institutions of state
power, government as well as social institutions, corporate,
unlawful private or other interests.
The nature of the safeguards of independence is also
linked to the legal status of judges and court. The judge may
not be qualified as a government officer according to the
nature and contents of his principal duties. He may not be
requested to co-operate in the implementation of a certain
political programme. The judge is able to secure human rights
and freedoms by way of administration of justice founded on
laws and other legal acts.
According to the detailed interpretation of the
independence of judges and the court established in Part 2 of
Article 109 of the Constitution and set forth in the Law on
Courts and other laws of Lithuania, the following three groups
of safeguards may be conditionally identified among the
safeguards guaranteeing the independence of judges: a) those
guaranteeing the security of tenure, b) guaranteeing personal
immunity of a judge, and c) those securing social (material)
guarantees of judges.
a) A judge who is fulfilling his duties conscientiously,
is guaranteed by Article 115 of the Constitution that he will
not be dismissed from the office on the grounds other than
specified in this article (upon expiration of his tenure or
reaching pensionable age as determined by law, for reasons of
health and other). The security of the tenure is important
since it permits the judge to remain independent from the
government of the day and avoid the pressure to accommodate to
the likely change of political power.
On the other hand, Article 115 of the Constitution
envisages two specific cases which constitute the grounds for
dismissal of judge from the office: if his behaviour discredits
his position as judge, and when judgement imposed on him by
court comes into force. It means that judges must meet very
strict professional and ethics requirements. Behaviour of
judges in and outside the office should raise no doubt about
their independence.
b) Part 2 of Article 114 of the Constitution says that
judges may not have legal actions instituted against them, nor
may they be arrested or restricted of personal freedom without
the consent of the Seimas, or in the period between sessions of
the Seimas, of the President of the Republic of Lithuania.
Article 116 maintains that if the Chairperson (President) or
judges of the Supreme Court or the Court of Appeals grossly
violate the Constitution, break their oath, or are found guilty
of an offence, the Seimas may remove them from office according
to impeachment proceedings.
On the other hand, the judicial immunity also comprises
their personal immunity from attempts to exert influence on
them from outside. Article 114 of the Constitution establishes
the liability for any attempts to prevent judges from
conducting a fair and impartial hearing of the case and Article
298 of the Criminal Code specifies that any such actions shall
incur criminal liability.
c) Being arbiters of legal disputes, judges must be not
only qualified professionals and have authority, but also be
independent materially. For that end, laws of many countries
provide for a separate procedure for establishment of salaries
or various additional payments for judges on the basis of a
uniform criterion. Usually their remuneration is of
significantly higher amount than that of the officials. This
tradition used to be practised in Lithuania as well. Higher
salaries of the judges had been established by a separate law.
As early as the end of the eighteenth century, the US
Constitution enacted a provision that the salary of judge may
not be reduced during his tenure. This principle became
widespread universally and was proclaimed as one of the
fundamental safeguards guaranteeing the independence of judge.
Therefore, any attempts to reduce the salary or other social
guarantees of judge or cut the budget of the judiciary are
interpreted as infringement on the judicial independence.
In the opinion of the petitioner's representative, the
very procedure for establishment of salaries of judges
constitutes a violation of judicial independence, because
according to the disputed Government Resolution the Government
undertakes not only to determine the official salaries of
judges (it has such temporal right according to the law), but
also to approve and pay to them additional official payments or
even award bonuses of different amount. The petitioner's
representatives, in essence not disputing the issue of the
additional official payments established for judges for service
years, also on other grounds, maintain that it all should be
prescribed by the law, and not by the Government resolution or
order of the Minister of Justice.
In its assessment of the opinion expressed by the
petitioner, the Constitutional Court points out, that the
Constitution does not specify which institution - the Seimas or
the Government - establishes the official salaries of judges.
However, in observance of the general constitutional principles
of judicial independence, the legislator has established in
Article 55 of the Law on Courts that salaries of judges shall
be regulated by the laws of the Republic of Lithuania.
The Constitutional Court also stresses that the wages fund
for paying of the salaries of judges is annually approved by
the Seimas in the Law on Budget, and not by the Government. The
amount of the official salary and the additional official
payments for judges are determined on the basis of the amount
of this fund. At present, the composition of the salary of
every judge does not depend on the number of cases processed by
him or, moreover, upon the judgement rendered by a judge in a
given case; it is based on the general criteria which are
applied to determine the amount of the official salary of a
judge. Additional official payments are not established on an
individual basis. Besides, additional official payments paid to
the Supreme Court judges are established not according to the
provisions of the disputed Government Resolution, but pursuant
to the norms of the Statute of the Supreme Court which has been
enacted by law already. It may not be omitted at the same time
that the Seimas in its Law adopted on 3 February 1993 ruled
that "until the respective laws are specified, [...] the amount
of the official salaries of judges of courts of the Republic of
Lithuania shall be determined by the Government of the Republic
of Lithuania". In the interim, while the law on the salaries of
the judges has not been not enacted yet, the Government remains
responsible for the task assigned to it by the Seimas, and in
the Law on Budget approved annually by the Seimas reasonable
limits for fulfilment of this task are set out.
Conforming to the above provided argumentation, a
conclusion is to be made that the right to establish the
additional official payments for judges prescribed in the
disputed Government Resolution on the basis of general
criteria, does not contradict the Constitution.
However, by the disputed Government Resolution, the
Government has also been reserved the right to award bonuses to
the Chairperson (President) of the Supreme Court, and the
Minister of Justice - the chairpersons and judges of the Court
of Appeals, area and district courts and the Economic Court.
Payment of bonuses is a method of stimulating of
individual incentive. It means that judges may be selected
individually for stimulating of such incentive and the amount
of the bonus may also be established individually in the case
of everyone who is awarded. Usually the function of the bonus
is to give incentive to the employees to achieve certain
results.
As it has been mentioned already, judges obey only the law
while administering justice. It means that judges may not be
encouraged or induced to conduct a case in a particular manner,
since the judge has to establish the objective truth in a given
case and on the basis of conclusive evidence to apply the law
which is to be invoked. Furthermore, all judges enjoy equal
status, only their responsibilities and functions differ,
depending on which level of the judicial system they are
working at.
Award of bonuses is usually linked with the implementation
of labour relations regulated by law, whereas judges are not
subordinate to any authority, nor to the Government or the
Minister of Justice, therefore, payment of bonuses to judges
entails violation of independence of the judiciary.
Pursuant to the above mentioned reasoning, a conclusion is
to be made that provision of Item 6 of the amended Resolution
set forth in the Government of the Republic of Lithuania
Resolution No.465 "On partial amendment to the Government of
the Republic of Lithuania Resolution No.124 'On the
remuneration of officers of courts of the Republic of
Lithuania, the State Arbitration, the Prosecutor's Office, and
the Department of State Control' of 3 March 1993" adopted on 31
March 1995, stipulating that the Government of the Republic of
Lithuania shall take decisions on the amount of bonuses awarded
to the Chairperson (President) of the Supreme Court, and the
Minister of Justice - to the chairpersons and judges of the
Court of Appeals, area and district courts and the Economic
Court of the Republic of Lithuania, contradicts Part 2 of
Article 109 of the Constitution and Part 1 of Article 46 of the
Law on Courts.
2. On the compliance of the disputed Government Resolution
with Part 1 of Article 4 and Article 35 of the Law of the
Republic of Lithuania on the Prosecutor's Office as well as the
Law of the Republic of Lithuania "On the Official Salaries of
Judges of Courts, Officers of the Prosecutor's Office, the
State Arbiters, and Officers of the Department of State
Control"
The principal functions of the prosecutors and
investigators are prescribed in Chapter 9 of the Constitution
titled "The Court". The prosecutors and investigators are
treated in it as a component of the judiciary. Thus, while
conducting the legal proceedings, they are applied the
safeguards guaranteeing the independence of the judiciary
established by laws. The prosecutors or investigators are
independent, and they act independently when they pursue a
public charge, carry out criminal prosecution, control the
activities of the agencies of preliminary inquiry and conduct
preliminary investigation. The prosecutors or investigators
obey only the law while making decisions in such cases and
there can be no interference with their activities.
Part 3 of Article 118 of the Constitution states that the
status of prosecutors and investigators shall be established by
law. Consequently, the law gives a more specific definition of
the place of these officers in the system of the judiciary.
Article 4 of the Law on the Prosecutor's Office provides
for the safeguards guaranteeing the independence of the
officers of the prosecutors' office. Part 1 of the said article
stipulates that "in executing their powers, officers of the
prosecutor's office shall be independent and shall observe only
the law". Part 2 of this article states the following: "The
institutions of state power and government and their respective
officers, as well as political parties, public organisations
and movements, and the mass media shall be prohibited from
interfering with the work of the prosecutor's office during the
investigation of cases and discharge of other functions of the
prosecutors' office". This prohibition is aimed at preventing
the hindrance to objective examination of all the circumstances
of the case during the investigation. Any influence upon the
investigators or prosecutors may inflict irreparable harm and
lead to disastrous consequences: the guilty person may be
relieved of liability or an innocent person may be held
criminally liable.
In view of this, validity of the part of the disputed
Government Resolution, in which it is established that the
Government shall take decision on the amount of the bonus to be
awarded to the Prosecutor General, appears to be doubtful. As
it has been mentioned already, norms set forth in Article 118
of the Constitution, establish that the prosecutors and
investigators are a component of the judiciary, and the
Prosecutor General is disassociated from the executive not only
on the basis of his general status, but also owing to the rule
that he is appointed for seven years and dismissed from the
office by the Seimas. Therefore, the Prosecutor General has to
be independent while discharging the duties assigned to him.
The fact that the Government may choose when to establish and
award bonus to the Prosecutor General and take a decision on
the amount of the bonus, permits to assume that it will assess
the activities of the Prosecutor General and decide whether to
award him the bonus depending on the results of such
assessment. The very existence of the possibility to make
assessments alone is the grounds for conclusion that the
executive is thus infringing on the independence of the
component of the judiciary, i.e. the prosecutors. Thus, this
part of the disputed Government Resolution contradicts Part 1
of Article 4 of the Law on the Prosecutor's Office.
A different interpretation is to be offered of the
disputed Government Resolution on the award of the bonuses to
the heads, officers and employees of the prosecutor's office.
The laws establish separate social guarantees for the officers
of the prosecutor's office (salary, pensions, compensations
etc.) taking into account the nature and contents of their
duties.
In the petitioner's opinion, some of the established
safeguards not only fail to guarantee the independence of the
officers of the prosecutor's office, but they also directly
cause the preconditions for violation of their independence to
exist. In particular, it is the part of the disputed Government
Resolution which regulates the procedure for the establishment
of additional official payments to the officers of the
prosecutor's office and award of bonuses to them. The
petitioner also claims, that the law contains no grounds for
broadening of the concept of salary of the aforementioned
officers by including in it the individual additional official
payments, and that the established procedure for awarding of
bonuses may give the officers of the prosecutor's office to
understand which of their actions are welcome, and which are
not.
In its assessment of the petitioner's opinion, the
Constitutional Court stresses that on 31 January 1995 the
Seimas adopted a law, which approved the Statute of Service in
the Prosecutor's Office (Official Gazette "Valstybės Žinios",
No.15-345, 1995). This act and its appendices establish the
composition of the salary of officers of the prosecutor's
office, their social guarantees, the procedure for giving
incentives etc. Article 55 of the Statute stipulates that for
exemplary performance the officers of the prosecutor's office
may be awarded a bonus or a valuable gift to encourage them,
and Article 66 regulates that the remuneration of the officers
shall consist of the official salary (the amount of which
depends on the type of their duties), and additional payments
for years of service and ranks held. Furthermore, those
officers who achieve excellent results in their service or
while disclosing organised crimes and pursue public charges in
cases on such crimes, also officers who work in standing groups
on the investigation of organised crimes and operation groups,
may be paid an additional official payment.
Thus, the procedure for awarding of the additional
payments and bonuses to the officers of the prosecutor's office
established by the norms the of law, is a component of the
internal labour relations of the prosecutor's office, on which
other branches of power may not exert any influence.
It should also be noted, that approval of the Statute of
Service in the Prosecutor's Office of the Republic of Lithuania
resulted in the conflict of the said law and the Law of 3
February 1993 "On the Official Salaries of Judges of the
Republic of Lithuania, State Arbiters and Officers of the
Prosecutor's Office and the Department of State Control",
namely, the part of the said law which regulates the procedure
for the establishment of the salaries of officers of the
prosecutor's office and awarding of bonuses to them. In the
case of the conflict of laws, the norm of the law which was
enacted later becomes effective. The earlier law entrusted the
Government an unspecified task to establish the official
salaries of the officers of the prosecutor's office, whereas
the Statute of Service in the Prosecutor's Office which was
enacted by the law in effect at present, provides for the
structure of the salary of the officers of the prosecutor's
office as well as the grounds and procedure for giving
incentives to them.
The laws in operation at present establish the additional
official payments, extra payments and bonuses to the officers
of the prosecutor's office, and the Law on Budget approves the
funds appropriated for the payment of such salaries and
bonuses. Therefore, a conclusion is to be made that the
provision of the disputed Government Resolution, setting forth
that the Prosecutor General of the Republic of Lithuania shall
take decision on the amount of additional official payments and
bonuses awarded to the heads, other officers and employees of
the prosecutor's office, and establishes the procedure for
awarding of bonuses to them, does not contradict Part 1 of
Article 4 and Article 35 of the Law on the Prosecutor's Office
as well as the Law "On the Official Salaries of Judges of the
Republic of Lithuania, State Arbiters and Officers of the
Prosecutor's Office and the Department of State Control".
3. On the compliance of the disputed Government Resolution
with Article 53 of the Law on State Control of the Republic of
Lithuania and the Law of the Republic of Lithuania "On the
Official Salaries of Judges of the Republic of Lithuania, State
Arbiters and Officers of the Prosecutor's Office and the
Department of State Control".
The petitioner requests the Constitutional Court to
investigate whether the disputed Government Resolution is in
compliance with Article 2 of the Law on State Control. The
Constitutional Court has taken into consideration the fact that
after the petitioner has submitted his request to the Court,
the Seimas adopted the Law of the Republic of Lithuania on
State Control (Official Gazette "Valstybės Žinios", No.51 -
1234, 1995) and declared the Law of the Republic of Lithuania
on the Department of State Control null and void (Official
Gazette "Valstybės Žinios" No.51 - 1244, 1995 ). The provision
of Article 2 of the Law on the Department of State Control
setting forth that "the State Control shall be financed out
from the State Budget of Lithuania" which was mentioned by the
petitioner, in essence complies with Article 53 of the adopted
Law on State Control. However, in comparison with the law which
had been effective before, other essential amendments were
introduced in the Law on State Control, therefore, all the
argumentation submitted by the petitioner shall be assessed in
this Ruling with consideration to the norms of the Law on State
Control which is valid at present.
Article 134 of the Constitution says: "State control shall
supervise the legality of the management and utilisation of
State property and the realisation of the State budget. The
State Controller shall give an account to the Seimas on the
annual execution of the State Budget". Part 1 of Article 2 of
the Law on State Control says that the State Control is "the
supreme institution of economic financial control accountable
to the Seimas of the Republic of Lithuania which supervises the
legality of holding and use of the state budget and the State
Budget performance". In pursuit of this goal the officers of
the State Control control economic and financial activities of
the Seimas Chancellery, offices accountable to the Seimas and
subdivisions rendering services to the Seimas, the Chancellery
of the President of the Republic of Lithuania and subdivisions
rendering services to the President, the Government's
Chancellery, ministries, Government offices and other offices
financed from the State Budget, also the Constitutional Court,
courts, prosecutor's offices and the police, as well as the
activities of State-owned enterprises or those enterprises in
which no less than half of voting shares are owned by the
state, also the legality of State property privatisation and
the distribution, use and repayment of all types of credits
obtained on behalf of the State as well as credits taken with
the Government guarantee.
To enable the State Control to discharge all the functions
vested in it objectively, the independence of this institution
must be safeguarded. Though neither the Constitution nor the
Law on State Control establish any specific safeguards
guaranteeing the independence of the institution, however, the
contents of the law gives the grounds for a conclusion that
this law seeks to ensure objectivity of the activities of the
officers of this institution and to protect them against any
influence from outside. This follows from the rights and duties
of the officers of State Control, prohibitions and restrictions
imposed on them as established in this Law.
In the petitioner's opinion, the Government has violated
the independence of the officers of State Control having
provided for the award of bonuses to them in the disputed
Government Resolution. The arguments submitted to support this
standpoint maintain that the estimate of expenditure of this
institution is approved by the Seimas. Therefore, "if the bonus
fund was to be included in the wages fund, the bonus fund would
be approved (appropriated) only by the Seimas, not the
Government".
The Constitution Court, in its assessment of the opinion
of the petitioner, takes into consideration the fact that the
Law on State Control (its Article 55) provides for an
independent source for giving incentives to the personnel of
the State Control. Thus, the right of the State Controller to
grant bonuses to the officers and other employees of his
institution is based on the Law of State Control, and not the
disputed Government Resolution. This right is also founded on
the laws on labour as they give the head of the institution the
right to give incentives to his employees. The internal
relations among the heads of institution and its employees
relating to the awarding of bonuses are based on the laws and
they may not be interpreted as constituting the influence of
other branches of power, institutions or individual persons on
the employees of the institution. The possibility to give the
additional official payments to the State Controllers may not
be interpreted as an outside influence on the functions
discharged by them due to the same reasons and owing to the
fact that these payments may only be assigned from the wages
fund.
Thus, the part of the disputed Government Resolution in
which the State Controller is asked to establish the procedure
for awarding of bonuses to the employees of his institution,
and for payment of additional official payments, does not
contradict Articles 2, 53 and 55 of the Law on State Control,
also the Law "On the Official Salaries of Judges of the
Republic of Lithuania, State Arbiters and Officers of the
Prosecutor's Office and the Department of State Control".
However, the disputed Government Resolution enacted a
provision, stipulating that the Government shall take decisions
on the amount of the additional official payments paid to the
State Controller and the bonuses awarded to him. It means that
the Government reserves itself the right to give bonuses to the
head of the institution of State Control.
As it has been mentioned, the Constitution and the Law on
State Control entrusts the State Control to supervise the
legality of the management and utilisation of State property
and the realisation of the State budget. The Government has
particularly wide powers in these areas. Therefore, an
assumption may be made that reserving itself the right to give
bonuses to the State Controller and take decision on the amount
of the bonus by virtue of the disputed Resolution, the
Government may exert influence on him. This contradicts the
principle of independent activity of the State Controller.
The State Controller is not linked up to the Government by
way of relations of labour or subordination. On the contrary,
his independence is illustrated by the procedure of his
appointment ( Part 2 of Article 133 of the Constitution), his
accountability to the Seimas (Part 1 of Article 14 of the Law
on State Control) etc.
In view of the aforementioned motives, a conclusion is to
be made that the provision of the disputed Government
Resolution, setting forth that the Government shall take
decision on the amount of the bonuses awarded to the State
Controller of the Republic of Lithuania, contradicts Article
134 of the Constitution and Part 1 of Article 2 of the Law on
State Control.
Conforming to Article 102 of the Constitution of the
Republic of Lithuania as well as Articles 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 has passed the following
ruling:
1. To recognise that the provision of the Government of
the Republic of Lithuania Resolution No.465 "On partial
amendment to the Government of the Republic of Lithuania
Resolution No.124 'On the remuneration of officers of the
courts of the Republic of Lithuania, the State Arbitration, the
Prosecutor's Office, and the Department of State Control' of 3
March 1993" adopted on 31 March 1995, setting forth that the
Government of the Republic of Lithuania shall take decisions on
the amount of the bonuses awarded to the Chairperson
(President) of the Supreme Court of Lithuania, the Prosecutor
General of the Republic of Lithuania and the State Controller
of the Republic of Lithuania respectively contradicts Part 2 of
Article 109 and Article 134 of the Constitution of the Republic
of Lithuania, Part 1 of Article 46 of the Law of the Republic
of Lithuania on Courts, Part 1 of Article 4 of the Law of the
Republic of Lithuania on the Prosecutor's Office and Part 1 of
Article 2 of the Law of the Republic of Lithuania on State
Control.
2. To recognise that the provision of the Government of
the Republic of Lithuania Resolution No.465 "On partial
amendment to the Government of the Republic of Lithuania
Resolution No.124 'On the remuneration of officers of the
courts of the Republic of Lithuania, the State Arbitration, the
Prosecutor's Office, and the Department of State Control' of 3
March 1993" adopted on 31 March 1995, setting forth that the
Minister of Justice shall take decisions on the amount of the
bonuses awarded to the chairpersons and judges of the Court of
Appeals of Lithuania, area and district courts and the Economic
Court of the Republic of Lithuania contradicts Part 2 of
Article 109 of the Constitution and Part 1 of Article 46 of the
Law of the Republic of Lithuania on Courts.
3. To recognise that the provision of the Government of
the Republic of Lithuania Resolution No.465 "On partial
amendment to the Government of the Republic of Lithuania
Resolution No.124 'On the remuneration of officers of the
courts of the Republic of Lithuania, the State Arbitration, the
Prosecutor's Office, and the Department of State Control' of 3
March 1993" adopted on 31 March 1995, setting forth that
additional official payments shall be established to the
Chairpersons and judges of the Court of Appeals of Lithuania,
district and area courts and the Economic Court of the Republic
of Lithuania, does not contradict the Constitution.
4. To recognise that the provision of the Government of
the Republic of Lithuania Resolution No.465 "On partial
amendment to the Government of the Republic of Lithuania
Resolution No.124 'On the remuneration of officers of the
courts of the Republic of Lithuania, the State Arbitration, the
Prosecutor's Office, and the Department of State Control' of 3
March 1993" adopted on 31 March 1995, setting forth that heads
of the institutions (the Prosecutor General and the State
Controller) listed in the resolution shall take decision on the
amount of additional official payments and bonuses given to
other officers and employees and shall establish the procedure
for awarding of bonuses to them, does not contradict Part1 of
Article 4 of the Law of the Republic of Lithuania on the
Prosecutor's Office and Part 1 of Article 2 of the Law of the
Republic of Lithuania on State Control.
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated on behalf of the Republic of
Lithuania.