Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of Item 2 of Part 1 of Article
16 of the Law on the Officials of the Republic of
Lithuania with the Constitution of the Republic of
Lithuania
6 May 1997, 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, Pranas Vytautas
Rasimavičius, and Juozas Žilys,
the secretary of the hearing - Daiva Pitrėnaitė,
the party concerned - the associate professor Dr. Alfonsas
Vileita, the adviser at the Legal Committee of the Seimas, the
representative of the Seimas 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 on 10 April 1997 conducted the investigation of
Case No. 13/96 subsequent to the petition submitted to the
Court by the petitioner - the Anykščiai Regional District Court
- requesting to investigate if Item 2 of Part 1 of Article 16
of the Law on the Officials of the Republic of Lithuania was in
compliance with Part 1 of Article 23, Part 1 of Article 29 and
Part 1 of Article 33 of the Constitution of the Republic of
Lithuania.
The Constitutional Court
has established:
I
On 15 August 1996, the petitioner - the Anykščiai Regional
District Court - was investigating a civil case subsequent to
the complaint of V. Ponomariovas, the representative of the
Government for the Utena county, in connection with the
appointment of A. Dūda the chief executive of the Kurkliai
neighbourhood in the Anykščiai district. By its interlocutory
ruling the said court suspended the investigation of the
aforesaid case and appealed to the Constitutional Court with
the request to investigate whether Item 2 of Part 1 of Article
16 of the Law on the Officials of the Republic of Lithuania
(Official Gazette "Valstybės Žinios" No. 33-759, 1995) was in
compliance with Part 1 of Article 23, Part 1 of Article 29 and
Part 1 of Article 33 of the Constitution of the Republic of
Lithuania.
II
The petitioner indicated in its interlocutory ruling that
by his 27 April 1995 order No. 13p-k the local government mayor
of the Anykščiai district appointed A. Dūda the chief executive
of the Kurkliai neighbourhood. The representative of the
Government for the Utena county lodged a complaint against the
aforesaid order of the mayor in the Anykščiai District Regional
Court stating that A. Dūda was not permitted to act as the
chief executive as it had in his possession a private
enterprise, which contradicted Item 2 of Part 1 of Article 16
of the Law on the Officials of the Republic of Lithuania
stipulating that "Officials shall be prohibited from: [...] 2)
being the owner of a personal enterprise, or full members or
silent partners of a partnership, acquiring or holding in trust
more than 10 % of securities of one enterprise".
The local government mayor of the Anykščiai district, when
the case was being investigated in court, had doubts as to the
compliance of Item 2 of Part 1 of Article 16 of the Law on
Officials with the Constitution. He grounded his doubts on the
fact that the prohibitions specified in Item 2 of Part 1 of
Article 16 of the said law meant that a person who has in his
possession the property mentioned in the aforesaid item may not
be an official, and, on the other hand, a person who acts as an
official may not possess the indicated property. Shares, a
private enterprise, financial securities etc. are the same
property as a house, a car etc. The Constitution gives priority
to the right of private ownership, freedom of individual
economic activity and initiative (Part 1 of Article 46),
freedom to choose an occupation or business (Part 1 of Article
48). Item 2 of Part 1 of Article 16 of the Law on Officials
contradicts the provisions of Article 23 of the Constitution
which determine that property shall be inviolable; laws may
prescribe only the protection of the rights to property but not
their restriction, whereas property may be seized for the needs
of society and must be adequately compensated for.
Besides, during the proceedings, the local government
mayor of the Anykščiai district maintained that the aforesaid
item of the Law on Officials also contradicted the provisions
of Part 1 of Article 33 of the Constitution whereby citizens
shall have the right to participate in the government of their
state both directly and their freely elected representatives,
and shall have the equal opportunity to serve in a state office
of the Republic of Lithuania. Item 2 of Part 1 of Article 16 of
the Law on Officials established discriminatory restrictions to
different categories of persons for service in a state office.
In the opinion of the local government mayor of the Anykščiai
district, this contradicted the stipulation of Part 1 of
Article 29 of the Constitution that all people shall be equal
before the law, the court, and other state institutions and
officers.
Therefore the Anykščiai District Regional Court had doubts
whether Item 2 of Part 1 of Article 16 of the Law on Officials
was in compliance with the Constitution.
III
In the course of preparation of the case for the court
hearing, S.Stačiokas, Chairman of the Legal Committee of the
Seimas, presented his explanation. It was pointed out therein
that disputed Item 2 of Part 1 of Article 16 of the said law
undoubtedly restricted the rights to property of an official.
The provision of the item in question contradicted Article 23
of the Constitution which determines that property shall be
inviolable, and that the rights of ownership shall be protected
by law. In the case at issue the legal norm requires not to
possess certain property or, providing one wishes to act as an
official in the civil service, to refuse a certain portion of
the property possessed.
It is maintained in the explanation that disputed Item 2
of Part 1 of Article 16 of the Law on Officials restricts the
legal capacity of officials and, furthermore, officials are
singled out from other citizens of the Republic of Lithuania.
Such a restriction of the rights of one group of people
contradicts Article 29 of the Constitution (and not only its
Part 1 but also Part 2) which determines that all people shall
be equal before the law and that a person may not have his
rights restricted on the basis of his social status. Officials
are a social group of the Lithuanian society, therefore their
rights may not be restricted.
In addition, in the explanation of the Chairman of the
Legal Committee of the Seimas it is stated that the provision
of the Law on Officials under investigation also contradicts
Part 1 of Article 33 whereby citizens shall have the equal
opportunity to serve in a state office of the Republic of
Lithuania. The requirement for the said equal opportunities is
groundlessly violated. A person who possesses a private
enterprise or is a member of a partnership must not necessarily
manage (supervise) these enterprises by himself. This may be
done by hired managers, directors or other employees. The fact
that an official possesses shares does not hamper the
performance of his duties. An official who performs his duties
inadequately because of the fact that he spends too much time
in managing his property may be dismissed from work for
negligent performance of duties. Officials who do not possess
the property mentioned in Item 2 of Part 1 of Article 16 of the
Law on Officials can also abuse their official position.
Therefore it could be possible to restrict the right of an
official to hold only such a position, or to perform only such
functions which are contrary to his proprietary interest and
which may create a possibility to abuse his official position.
For such an abuse officials may be dismissed from their
positions.
During the investigation of the case in the court hearing,
the representative of the party concerned virtually reiterated
the arguments set forth in the explanation of the chairman of
the Legal Committee of the Seimas.
In the course of preparation of the case for judicial
investigation, an explanation of G. Švedas, a secretary at the
Ministry of Justice, and that of K.Skrebys, the minister of
public administration reforms and local government affairs,
were received.
The Constitutional Court
holds that:
In attempt to regulate the relations of the civil service,
on 4 April 1995 the Seimas passed the Law on Officials wherein
the objective of the civil service was determined, as well as
state and local government officials were defined. The said law
established the procedure of employment in the civil service,
as well as the rights, duties and responsibility of officials,
along with the termination of office relations.
The said law specifies that the civil service is the
performance of duties in the Seimas, the institutions of the
President, the Government, other state institutions, and
structural divisions of local government in accordance with the
list of offices of the civil service. According to the
aforesaid law, state and local government officials are held
employees of the civil service the work of whose exerts
influence on the activity of the institution according to the
competence of the said institution. Thus officials stand out
from other employees by the character of their link with the
state: the official is a citizen who is in office relationship
of an institution of public power, i.e. in that of the state or
local government, and who, on the instructions of these
institutions, performs the functions of public power. The
service of an official is based on the fact that in his
activity he must show preference to public but not personal
interests or those of different persons, their groups,
political parties or organisations, nor may he bind himself to
other persons if this is incompatible with the civil service.
Taking account of the nature of the civil service, the
duties of officials have been specified. They must: implement
Government decrees, other legal acts which regulate the
functions of officials; implement the tasks and instructions
given to them by their chiefs; take decisions provided for in
the laws determining their competence and in office
regulations, and insist that the decisions be timely and
accurately carried out; comply with the established regulations
of professional ethics; perform their duties faultlessly and in
a cultured manner; improve their qualification; keep
confidential the state and official secret established by
normative acts; guarantee the open character of their work,
present information on their work to the residents in the
manner established by law; defend the lawful interests of the
state an local governments; declare their property and income
in accordance with the procedure established by law; refrain
from engaging in public and political activities within the
office premises and during working hours. According to the Law
on Officials, officials shall have the right to: refuse to
fulfil a task or an instruction if, in their opinion, the given
task or instruction is not in conformity with the law; at the
expense of the institution improve their qualifications for 15
to 30 days in 2 years, etc.
Thus, officials constitute such a social group of society
the general legal status whereof is determined by the purpose
of the civil service and its public significance. Therefore not
incidentally, along with immediate duties of officials, some
prohibitions of and restrictions on their activity have been
established. They are set down in Part 1 of Article 16 of the
Law on Officials. Therein it is stipulated that officials shall
be prohibited from:
"(1) being employed in other enterprises, offices and
organisations, being members of their managing bodies (unless
the law provides otherwise), being employed in another elective
or appointive post, receiving any other salary with the
exception of payment of creative activities [...];
(2) being the owner of a personal enterprise, or full
members or silent partners of a partnership, acquiring or
holding in trust more than 10 % of securities of one
enterprise;
(3) representing the interests of other domestic and
foreign enterprises, offices and organisations, and going
abroad on their invitation;
(4) going on strike;
(5) using the office property for other than official
business;
(6) using working hours and the opportunities provided by
the office for other than official purposes;
(7) receiving presents for the performance of official
duties, unless this is provided for by international protocol."
1. On the compliance of Item 2 of Part 1 of Article 16 of
the Law on Officials with Article 23 of the Constitution.
1.1. The petitioner states that the prohibitions
established in Item 2 of Part 1 of Article 16 of the Law on
Officials contradict the provisions of Article 23 of the
Constitution whereby property shall be inviolable; laws may
prescribe only the protection of the rights to property but not
their restriction, whereas property may be seized for the needs
of society and must be adequately compensated for. The
statement of the petitioner is grounded on the fact that
shares, a private enterprise, financial securities etc. are the
same property as a house, a car etc. In his opinion, the
Constitution gives priority to the right of private ownership,
freedom of individual economic activity and initiative, as well
as freedom to choose an occupation or business.
1.2. Article 23 of the Constitution stipulates:
"Property shall be inviolable.
The rights of ownership shall be protected by law.
Property may only be seized for the needs of society
according to the procedure established by law and must be
adequately compensated for."
To implement the constitutional provisions "Property shall
be inviolable" and "The rights of ownership shall be protected
by law", an entire legal system of civil, administrative,
criminal and other branches of law has been created. Not only
do legal norms consolidate the right of the owner to manage,
use and dispose of his property, but they also safeguard the
said subjective rights and legitimate interests.
By emphasising the constitutional protection of property,
one should also bear in mind the fact that the principle of
inviolability of property should not be treated as being
absolute. It was noted in the 13 December 1993 ruling of the
Constitutional Court that "neither Constitution nor valid
system of other laws, nor universally recognized norms of
international law deny the opportunity under conditions and
procedure prescribed by the law to alienate the property or
restrict its possession, use or disposal". The necessity to
restrict subjective rights of the owner may ensue either from
actions of the person himself, or from agreements or
international obligations of the state. Such a restriction may
also be conditioned by the nature of property or an interest
important to society. The specific status of the civil service
and that of the official may also be a precondition for certain
restrictions. However, the restrictions must be established by
the law, and they are permitted only when they are in
compliance with the Constitution.
It is possible to presume that by the prohibitions
established in Item 2 of Part 1 of Article 16 of the Law on
Officials whereby officials were prohibited from being the
owner of a personal enterprise, or full members or silent
partners of a partnership, acquiring or holding in trust more
than 10 % of securities of one enterprise, a publicly important
preventive objective was sought which was to put an end to the
fact of using working hours and the opportunities provided by
the office for other than official purposes by the officials.
The implementation of the interest of society which is
recognised by the state and is protected by law is one of the
most important conditions of existence and evolution of society
itself. However, noting that the public interest is a
dominating one in civil service relations, one should take
account of the fact that, from the social standpoint, the
public interest, as well as the person's rights to property, is
a constitutional value. Therefore in the case of collision of
these values while satisfying the public interest, it is not
sufficient to recognise restrictions of proprietary rights
only. It is also important to assess the fact as to upon what
scale these restrictions influence the aforementioned values.
In other words, one must take account of the nature and scale
of the restrictions themselves and to assess their validity
from such a standpoint.
The Constitutional Court, on the grounds of the European
Convention for the Protection of Human Rights and Fundamental
Freedoms and the case-law of the European Court of Human
Rights, in its 13 February 1997 ruling held that restrictions
on human rights and freedoms are possible, i.e. they are
regarded as grounded if they meet two conditions: (1) they are
legitimate, and (2) they are indispensable in a democratic
society. The requirement of legitimacy indicates that
restrictions have to be set only by a law that is publicly
declared; the norms of the law are to be formulated lucidly
enough. Legally defining the limits of the implementation of
laws, it is necessary to take account of the purpose and
meaning of a corresponding right (or freedom) and the
possibilities and conditions of its restriction established in
the Constitution. Looking for the answer to the question
whether a concrete restriction is indispensable in a democratic
society, the first step is to find out the aims and purpose of
the restriction, and secondly, to find out whether the means of
the restriction are proportionate to the legitimate aim.
1.3. Pursuant to the prohibitions established in Item 2 of
Part 1 of Article 16 of the Law on Officials, an official may
not be the owner of a private enterprise. It means that he,
while being in the relations of the civil service, is
prohibited from not only possessing a private enterprise as
private property (i. e. being its owner) but also from buying,
inheriting or acquiring otherwise a private enterprise. Also an
owner is prohibited from being full members or silent partners
in a partnership. It means that he may have a share of
possessions in neither a general partnership nor in a
commandite (limited) partnership. Thus the said prohibitions
violate in fact the right to property, to objects of certain
kind of particular persons. Besides an owner is prohibited from
acquiring more than 10 % of securities (shares, etc.) of one
enterprise. This provision also restricts in essence the right
to property.
Taking account of the motives set forth, it is to be
concluded that the prohibition prescribed by Item 2 Part 1 of
Article 16 of the Law on Officials stipulating that officials
shall be prohibited from being the owner of a personal
enterprise, or full members or silent partners of a
partnership, acquiring more than 10 % of securities of one
enterprise contradicts Article 23 of the Constitution.
Alongside, the Constitutional Court notes that the
prohibition for officials to hold in trust more than 10 % of
securities of one enterprise which is established in Item 2 of
Part 1 of Article 16 of the Law on Officials is, in principle,
of different character. In this particular case an official is
prohibited from holding on trust certain property, i.e. certain
possessions of another person, which does not mean denial of
the right to property of officials. Therefore the said
prohibition is in compliance with Article 23 of the
Constitution.
2. On the compliance of Item 2 of Part 1 of Article 16 of
the Law on Officials with Part 1 of Article 29 and Part 1 of
Article 33 of the Constitution.
2.1. The petitioner alleges that Item 2 of Part 1 of
Article 16 of the Law on Officials contradicts the provisions
of Part 1 of Article 33 of the Constitution whereby citizens
shall have the right to participate in the government of their
State both directly and through their freely elected
representatives, and shall have the equal opportunity to serve
in a State office of the Republic of Lithuania. The petitioner
is of the opinion that the said item of the Law on Officials
establishes discriminatory restrictions on certain categories
of persons to serve in a State office, which is incompatible
with the stipulation of Part 1 of Article 29 of the
Constitution whereby all people shall be equal before the law,
the court, and other State institutions and officers.
2.2. Article 29 of the Constitution sets down a common
principle of people's equality:
"All people shall be equal before the law, the court, and
other State institutions and officers.
A person may not have his rights restricted in any way, or
granted any privileges, on the basis of his or her sex, race,
nationality, language, origin, social status, religion,
convictions, or opinions."
The principle of people's equality may be defined as
non-discrimination. This principle is reflected in Part 1 of
Article 33 which prescribes the right of citizens to equal
opportunity to serve in a State office of the Republic of
Lithuania.
As a rule, discrimination is understood as a change of a
situation of a person or group of persons with respect to other
persons without any objective justification. However, in
certain cases, providing there exists a sufficiently motivated
and grounded cause, it is possible to establish by the law a
legal status for different groups of subjects and to
consolidate certain particularities of legal situation. It
means that the constitutional principle of people's equality
does not deny a possibility to differently treat people as to
their status.
Restrictions on a person or a group of persons are varied
and, as a rule, established due to 2 reasons: due to objective
differences (sex, age, etc.) or because of the fact that this
is required by public interests (e.g., citizenship). One must
note that the notion "public interests" thus conditions of the
civil service, too, are understood differently in various
states. It was noted in the decisions of the European Court of
Human Rights that the notion "in the public interest" is
inevitably broad. The Court, bearing in mind that the
opportunity of choice granted to the legislator who implements
social and economic policy must be broad enough, will take into
consideration the decisions of the legislator in defining
"public interests" save the said decisions were unsubstantially
grounded. Seizure of property, when implemented for the success
of legal-social and economic policy, may be justified by
"public interests" even when the whole society does not make
direct use of the seized property (the cases James and others
against the United Kingdom (1986), Lithgow and others against
the United Kingdom (1987)). It means that the legislative power
is entitled to establish limits of the public interest in
particular relations, while decisions concerning the definition
of the public interest and the manner its satisfaction must be
realistically grounded and legitimate.
The public interest is defined in its most general sense
by the provision "Institution of power shall serve the people"
of Part 3 of Article 5 of the Constitution. It means that the
officials of the state and local governments perform specific
functions depending upon the purpose of the civil service. In
order to implement these functions properly, a citizen, taking
office in the civil service, must conform to the conditions
prescribed by laws. Under Article 9 of the Law on Officials,
persons who are citizens of the Republic of Lithuania, have a
good command of state language and meet other requirements as
regards qualification prescribed as necessary for the office
shall be employed in the civil service. The law also
establishes that persons tried for grave crimes, crimes against
the civil service, as well as persons who are close relatives
or are related by marriage if their service is connected with
direct subordination between the relatives or with the right of
one of them to control the other may not be employed in the
civil service.
Part 1 of Article 16 of the Law on Officials sets down
special prohibitions which differ by their character from the
aforementioned general requirements and prohibitions. The
prohibitions consolidated in disputed Item 2 of Part 1 of
Article 16 of the aforesaid law permit to presume that the
owner of a private enterprise, a full member or a silent
partner of a partnership, as well as a person who has acquired
more than 10 % of securities of one enterprise and who wishes
to take office in the civil service, must restrict his
ownership rights. Thus by the disputed legal norm citizens are
differentiated into: (1) those who do not have possessions
indicated in Item 2 of Part 1 of Article 16 of the said law and
who may take office in the civil service of the Republic of
Lithuania (providing they meet other requirements of the law),
and (2) those who have possessions specified in said Item 2 of
Part 1 of Article 16. The latter citizens acquire equal
opportunities to take office in the civil service of the
Republic of Lithuania only when they refuse the aforementioned
possessions or limit them within the boundaries provided by the
law.
The norm of Part 1 of Article 33 of the Constitution,
whereby citizens shall have the equal opportunity to serve in a
State office of the Republic of Lithuania, may not be denied by
legal norms contrary to the Constitution. Meanwhile, citizens
seeking to implement the right granted to them by Part 1 of
Article 33 of the Constitution must, due to the prohibitions
established by Item 2 of Part 1 of Article 16 (except for the
prohibition of the said item to hold securities on trust), deny
their another constitutional right - the right to property.
The Constitutional Court has already held in the present
ruling that the prohibition prescribed in Item 2 Part 1 of
Article 16 of the Law on Officials stipulating that officials
shall be prohibited from being the owner of a personal
enterprise, or full members or silent partners of a
partnership, acquiring or holding in trust more than 10 % of
securities of one enterprise contradicts Article 23 of the
Constitution.
Taking account of these circumstances and the motives set
forth, as well as the fact that the Constitution is an integral
and directly applicable act, the Constitutional Court has
concluded that the prohibition prescribed by Item 2 Part 1 of
Article 16 of the Law on Officials stipulating that officials
shall be prohibited from being the owner of a personal
enterprise, or full members or silent partners of a
partnership, acquiring more than 10% of securities of one
enterprise contradicts Part 1 of Article 29 and Part 1 of
Article 33 of the Constitution.
The Constitutional Court has also noted in the present
ruling that the prohibition for officials to hold in trust more
than 10 % of securities of one enterprise which is established
in Item 2 of Part 1 of Article 16 of the Law on Officials is in
compliance with Article 23 of the Constitution as in this
particular case an official manages not his property but that
of another person. The legislator, on the grounds of the public
interest, may establish conditions for the civil service which
must be in conformity with the Constitution. Thus it is to be
concluded that the said prohibition is in compliance with Part
1 of Article 29 and Part 1 of Article 33 of the Constitution.
Conforming to Article 102 of the Constitution of the
Republic of Lithuania and Articles 53, 54, 55 and 56 of the Law
of the Republic of Lithuania on the Constitutional Court,
the Constitutional Court has passed the following
ruling:
1. To recognise that the prohibition prescribed by Item 2
of Part 1 of Article 16 of the Law on Officials stipulating
that officials shall be prohibited from being the owner of a
personal enterprise, or full members or silent partners of a
partnership, acquiring more than 10 % of securities of one
enterprise contradicts Article 23, Part 1 of Article 29 and
Part 1 of Article 33 of the Constitution.
2. To recognise that prohibition for officials to hold in
trust more than 10 % of securities of one enterprise which is
established in Item 2 of Part 1 of Article 16 of the Law on
Officials is in compliance with the Constitution.
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated on behalf of the Republic of
Lithuania.