Lietuviškai
Case No. 1/96
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
D E C I S I O N
On the request of a group of the Seimas members to
investigate if the part of the 16 March 1993
Decree No. 15 of the President of the Republic "On
the composition of the Government of the Republic
of Lithuania" whereby Romasis Vaitekūnas is
confirmed the Minister of Internal Affairs is in
compliance with the Constitution of the Republic
of Lithuania
29 May 1996, Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the justices of the Constitutional Court Egidijus
Jarašiūnas, Kęstutis Lapinskas, Zigmas Levickis, Augustinas
Normantas, Vladas Pavilonis, Jonas Prapiestis, Teodora
Staugaitienė, and Juozas Žilys,
the secretary of the hearing - Daiva Pitrėnaitė,
in its procedural sitting discussed the request of the
petitioner - a group of the Seimas members - to investigate if
the part of the 16 March 1993 Decree No. 15 of the President of
the Republic "On the composition of the Government of the
Republic of Lithuania" whereby Romasis Vaitekūnas is confirmed
the Minister of Internal Affairs is in compliance with Article
141 of the Constitution.
The Constitutional Court
has established:
The petitioner - a group of the Seimas members - appealed
to the Constitutional Court requesting to investigate if the
part of the 16 March 1993 Decree No. 15 of the President of the
Republic "On the composition of the Government of the Republic
of Lithuania" whereby Romasis Vaitekūnas is confirmed the
Minister of Internal Affairs is in compliance with the
Constitution.
The petitioner grounds his request with the following
arguments.
Romasis Vaitekūnas is an officer of the internal service.
Before his appointment the Minister of Internal Affairs, he was
a senior commissar of the Central Police Commissariat of the
city of Šiauliai. By the 12 May 1993 Decree No. 349p he was
conferred the rank of general.
According to Article 141 of the Constitution, officers of
the national defence, the police and the internal service may
not hold elected or appointed posts in State civil service.
Therefore, in the opinion of the petitioner, the appointment of
the officer the Minister of Internal Affairs contradicts
Article 141 of the Constitution.
The Constitutional Court
holds that:
Article 141 of the Constitution reads: "Soldiers in active
military service or alternative service, officers of the
national defence, the police and the internal service,
non-commissioned officers, re-enlistees who have not retired
from service, and other paid officials of military and security
services may not be members of the Seimas or of local
government Councils. They may not hold elected or appointed
posts in State civil service, and may not take part in the
activities of political parties and political organisations."
It is established in Article 2 of the Law of the Republic
of Lithuania on Officials (Official Gazette "Valstybės Žinios",
No. 3-759, 1995) that the employees who are directly or
indirectly elected by citizens of the Republic of Lithuania, or
appointed to fulfil a political programme by the legislative or
executive powers, or by self-government institutions, shall be
politicians. The President of the Republic of Lithuania, the
members of the Seimas, the Prime Minister and ministers shall
be politicians of the State. The members of self-government
councils shall be politicians of self-governments.
It is prescribed in Article 3 of the said law that the
employees (except for those mentioned in Article 2) who are
paid remuneration from the means of the State or
self-government budget shall be considered State and
self-government officers.
The nature of institutes of democratic power is that all
persons who implement political will of the people are
controlled in varied forms so that this will would not be
distorted. While performing such control, the activity of these
officials is inspected. In addition, the independence of
activity of persons who fulfil political programmes is of
crucial importance.
It is necessary to emphasise that the Government is the
part of State power which carries out a political programme. It
is accountable to the Seimas, while the ministers - to the
Seimas, the President of the Republic, and are under direct
subordination of the Prime Minister.
The relations of strict subordination and those of other
regulations are of great importance to soldiers in active
military service, officers of the national defence, the
internal service, non-commissioned officers, officers of
security services and other officials mentioned in Article 141
of the Constitution. It is established in Part 2 of Article 6
of the Law of the Republic of Lithuania on Police (Official
Gazette "Valstybės Žinios", No. 2-22, No. 16-410, 1991; No.
53-994, No. 82-1547, 1994; No. 92-2056, 1995) that police
officials must obey the orders of the police officials of
superior rank. One of the components of the police officials'
oath is conscientious execution of the laws of the Republic of
Lithuania and the orders of his superiors.
Article 3 establishing the principles of the internal
service of the Law of the Republic of Lithuania on the Internal
Service (Official Gazette "Valstybės Žinios" No. 3-34, 1992)
indicates one-man management which is combined with
collectiveness. Therefore there may appear an internal
collision between the necessity to carry out the functions of
State power and perform the requirements of the regulations in
the activity of these and other persons mentioned in Article
141 of the Constitution. This may be one reason why the
functioning of the democratic institutions could be deranged.
Speaking of this aspect, the guarantees of democracy are
also emphasised by the fact that the norm of Part 3 of Article
140 of the Constitution contains an imperative prohibition to
the Minister of National Defence: "The Minister of National
Defence may not be a serviceman who has not yet retired from
active service." Thus there are no preconditions to assert that
a soldier, the officer of police, the internal service or any
other person indicated in Article 141 of the Constitution may
be a minister or hold other positions pointed out in this
article without having retired from active service.
By the disputed Decree of the President of the Republic,
an officer of the internal service who has not retired from
active service was appointed the Minister of Internal Affairs.
Therefore, taking account of the motives and arguments set
forth, there were grounds to assert that the part of the 16
March 1993 Decree No. 15 of the President of the Republic "On
the composition of the Government of the Republic of Lithuania"
concerning the confirmation the Minister of Internal Affairs of
an officer of the internal service who had not retired from
active service contradicted Article 141 of the Constitution.
However, the President of the Republic by his 29 January 1996
Decree No. 22 (Official Gazette "Valstybės Žinios" No. 10-239)
dismissed Romasis Vaitekūnas from the position of the Minister
of Internal Affairs and consequently the disputed part of the
legal act ceased to be legally valid.
This is a ground to take a decision to terminate the legal
proceedings commenced in this case.
Conforming to Part 4 of Article 69, and Article 28 of the
Law of the Republic of Lithuania on the Constitutional Court,
The Constitutional Court shall take the following
decision:
To terminate the legal proceedings commenced in this case.
Justices of the Constitutional Court:
Egidijus Jarašiūnas
Kęstutis Lapinskas
Zigmas Levickis
Augustinas Normantas
Vladas Pavilonis
Jonas Prapiestis
Teodora Staugaitienė
Juozas Žilys