Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of the Republic of Lithuania Law
"On the Amendment and Supplementation of the Law
on the Governing of the County, as well as the
Recognition of the Law on the Government
Representative as Null and Void", as well as the
12 December 1996 Seimas of the Republic of
Lithuania Resolution "On Supplementation of the
Republic of Lithuania Civil Service List of
Offices of 'A' Level Officials", with the
Constitution of the Republic of Lithuania
Vilnius, 18 February 1998
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, Teodora Staugaitienė, and Juozas Žilys,
the secretary of the hearing-Daiva Pitrėnaitė,
the petitioner-Vytenis Povilas Andriukaitis and Roma
Dovydėnienė, both are Seimas members as well as representatives
of a group of Seimas members,
the party concerned-Kęstutis Skrebys, a Seimas member, and
Genovaitė Rokickienė, an adviser at the Public Administration
Reforms and Local Government Affairs Committee of the Seimas,
both are representatives of the Seimas,
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, on 20
January 1998 in its public hearing conducted the investigation
of Case No. 2/97 subsequent to the petition submitted to the
Court by the petitioner-a group of Seimas members-requesting to
investigate if Articles 1, 2, 3, 5 of Chapter 1 and Article 1
of Chapter 2 of the Republic of Lithuania Law "On the Amendment
and Supplementation of the Law on the Governing of the County,
as well as the Recognition of the Law on the Government
Representative as Null and Void" were in compliance with Parts
1, 2 and 3 of Article 123, Article 120, and Part 2 of Article 5
of the Constitution, as well as if Items 3, 4, 5, 6 and 7 of
Chapter IV of Article 2 of the 12 December 1996 Seimas of the
Republic of Lithuania Resolution "On Supplementation of the
Republic of Lithuania Civil Service List of Offices of 'A'
Level Officials" were in compliance with Parts 1, 2 and 3 of
Article 123, Article 120, and Part 2 of Article 35 of the
Constitution, as well as Parts 2 and 3 of Article 6 of the
Republic of Lithuania Law on Officials.
The Constitutional Court
has established:
I
On 12 December 1996, the Seimas adopted the Republic of
Lithuania Law "On the Amendment and Supplementation of the Law
on the Governing of the County, as well as the Recognition of
the Law on the Government Representative as Null and Void"
(Official Gazette "Valstybės Žinios" No. 126-2938, 1996), as
well as the Resolution "On Supplementation of the Republic of
Lithuania Civil Service List of Offices of 'A' Level Officials"
(Official Gazette "Valstybės Žinios" No. 121-2854, 1996).
The petitioner-a group of Seimas members-requests the
Constitutional Court to investigate whether
(1) Articles 1, 2, 3, 5 of Chapter 1 and Article 1 of
Chapter 2 of the Republic of Lithuania Law "On the Amendment
and Supplementation of the Law on the Governing of the County,
as well as the Recognition of the Law on the Government
Representative as Null and Void" (hereinafter in the ruling
referred to as the disputed law) are in compliance with Parts
1, 2 and 3 of Article 123, Article 120, and Part 2 of Article 5
of the Constitution;
(2) Items 3, 4, 5, 6 and 7 of Chapter IV of Article 2 of
the 12 December 1996 Seimas of the Republic of Lithuania
Resolution "On Supplementation of the Republic of Lithuania
Civil Service List of Offices of 'A' Level Officials"
(hereinafter in the ruling referred to as the disputed
resolution) are in compliance with Parts 1, 2 and 3 of Article
123, Article 120, and Part 2 of Article 35 of the Constitution,
as well as Parts 2 and 3 of Article 6 of the Republic of
Lithuania Law on Officials.
II
The request of the petitioner is based on the following
arguments.
1. By the disputed law the Seimas replaced the notion
"county governor" by that of "county chief", as well as
broadened the competence of the county chief by granting him
the right to "supervise as to how local governments observe the
Constitution of the Republic of Lithuania and laws and whether
they implement Government resolutions; to check whether
decisions adopted by joint or non-joint self-government
institutions respect the rights of citizens and organisations",
established the rights and powers of the county chief as
regards the questions of legal supervision of local government
activities, and determined implementation of the said rights
and powers. By Article 1 of Chapter 2 of this law the Seimas
recognised the Law on the Government Representative as null and
void.
Chapter 10 of the Constitution is entitled "Local
Governments and Administration". The articles of this chapter
define clearly local self-government, the rights of local
governments, self-government and administration reform, and
establish that in higher level administrative units the
administration shall be organised by the Government. However
this chapter of the Constitution mentions individually the
supervisory functions of the Government representative in
certain parts of Article 123. Parts 1, 2 and 3 of Article 123
of the Constitution provide:
"In higher level administrative units, the administration
shall be organised by the Government according to the procedure
established by law.
Representatives shall be appointed by the Government to
supervise that the Constitution and the laws are observed, and
that the decisions of the Government are implemented by local
governments.
The powers of Government representatives and the
procedures of their implementation shall be established by
law."
The petitioner points out that this is not a matter of
coincidence. The Constitution is an integral legal act, and
this wording of Article 123 of the Constitution which
individualises supervisory functions of the Government
representative must be assessed in the context of other
articles of the Constitution. In doing so, one is also to take
account of Lithuanian legal traditions. Looking back into
history, one can notice that in Lithuania there existed general
legal supervision of local governments. In 1990-1992, under the
Provisional Basic Law of the Republic of Lithuania, this was
exercised by the procurator's office. Article 118 of the
Constitution of 1992 established other and precise functions of
procurators: prosecution on behalf of the State, carrying out
criminal prosecutions and supervision of the activities of
interrogative bodies. Meanwhile an individual official-the
Government representative-was provided for the purpose of
exercising general legal supervision of local governments.
Under the Constitution his powers and the procedures of their
implementation must be established by law. On 1 July 1993 the
Seimas passed the Law on the Government Representative
(Official Gazette "Valstybės Žinios", No. 28-639, No. 73-1370,
1993; No. 57-1340, 1996). Article 1 of the aforesaid law
prescribes:
"The Republic of Lithuania Government representative shall
supervise whether local governments observe the Constitution of
the Republic of Lithuania and the laws, and whether they
implement Government decisions.
The Government representative must check whether the
decisions adopted by joint or non-joint self-government
institutions respect the rights of citizens and organisations,
and whether officials of local governments implement Government
resolutions."
Article 7 of the said law established the procedure of
appointment to and dismissal of the Government representative
from office, prohibition to hold any other position etc. It was
also established therein that the Government representative
shall be assisted in implementation of the granted powers by
the Government Representative Service. The employees of this
service were to be admitted and dismissed by the Government
representative himself.
In the course of implementation of the self-government
reform, on 7 July 1994 the Republic of Lithuania Law on Local
Self-Government was adopted. Part 1 of Article 28 of the said
law stipulates: "The compliance of local governments with the
Constitution and laws of the Republic of Lithuania and
decisions of the Government shall be supervised by the
Government representatives under the procedure established by
the law." The petitioner calls one's attention to the fact that
on 14 December 1993 the Seimas adopted the Resolution "On the
Framework of the Legal System Reform and Its Implementation"
whereby the framework of the legal system reform was approved
and provided therein (see p. 5): "Officials of the procurator's
office who have been exercising general supervision shall be
granted an opportunity either to become procurators, judges of
local courts, those of regional courts, those of the Court of
Appeal, Government representatives, Seimas ombudsmen, or to
perform another legal work in the aforesaid institutions." The
petitioner concludes that in this context one is to comprehend
that general legal supervision is transferred to the
institution of the Government representative.
After the Seimas had adopted the Law on the Government of
the Republic of Lithuania on 19 May 1994, Article 22 of the
said law defined the relations of the Government with local
governments as follows:
"The Government of the Republic of Lithuania shall:
(1) through its appointed representatives monitor the
local governments' adherence to the Constitution and laws of
the Republic of Lithuania and implementation of the decisions
of the Government; and
(2) together with local governments establish general
directions of the development of social security, health,
education and culture."
The petitioner maintains that the institution of the
Government representative indicated in Article 123 of the
Constitution was consolidated in the aforementioned legal acts
as an individual institution which is nominated by the
Government. This institution exercised legal supervision of
local governments, it had at its control special service and
acted pursuant to a special law and not in accordance with
governmental assignments or directions. The petitioner is of
opinion that after the Seimas had adopted the disputed law, the
institution of the Government representative provided for by
Article 123 of the Constitution was abolished, although this
contradicted the requirements of Article 123 of the
Constitution.
On the grounds of an analysis of corresponding provisions
of the Law on Local Self-Government, those of the Law on the
Territorial Administrative Units of the Republic of Lithuania
and their Boundaries, and those of the Law on the Governing of
the County, the petitioner concludes that "a local government
is treated as a decentralised, i.e. comparatively independent
system of administration", while "the functions of centralised
state administration are exercised through counties".
Alongside, the petitioner recognises that "despite the said
differences, counties and local governments are united by
common objectives. This also conditions the necessity of their
cooperation along with the necessity to coordinate centralised
state administration with decentralisation". The petitioner
maintains that upon adoption of the disputed law and granting
the supervisory functions of the Government representative to
the county chief, pre-conditions were created for the
Government to exert political influence through the county
chief on local governments, as well as to broaden Government
powers in respect to local governments and infringe their
rights which are secured by Article 120 of the Constitution. In
the opinion of the petitioner, such an expansion of Government
powers also contradicts Part 2 of Article 5 of the Constitution
which consolidates the authority power restriction principle.
Alongside, the petitioner points out that, while passing
the disputed law, by Article 1 thereof the Seimas replaced the
notion "county governor" by that of "county chief". Article 123
of the Constitution stipulates that in higher level
administrative units, the administration shall be organised by
the Government according to the procedure established by law.
The 15 December 1994 Law on the Governing of the County
consolidated the notion "county governor". By "A Dictionary of
Contemporary Lithuanian", the word "chief" (Lith. viršininkas)
designates "a person in charge of either an office, the
post-office, the guard, or the station, etc.", while the word
"to govern" (Lith. valdyti) has several meanings: "to have
under subjection, to have in one's ownership, to run
something". In addition, Volume 17 of "A Dictionary of the
Lithuanian Language" gives the following meanings of the word
"to govern" (Lith. valdyti): "to keep order (of the work, of
affairs), to direct, to manage, to regulate someone's actions"
etc., in short, to accomplish more functions if compared to the
situation when one is a chief. Besides, in the Lithuanian legal
tradition the word "chief" is more linked with a centralised
and imperative governance to which teams of lower rank are
subordinated. Therefore in view of creation of legal
terminology and semantics of designations, one may raise a
well-founded question as to what term-"county governor" or
"county chief"-is more in compliance with the requirements of
Article 123 of the Constitution. The petitioner is certain that
the word "chief" reflects more a directive, centralised and
imperative administration and somewhat corresponds to the name
of the person in charge of an individual office or service.
Therefore, in his opinion, the term "county governor" reflects
more precisely the organisation of administration as it is
under stipulation of Part 1 of Article 123 of the Constitution.
2. As regards another contested act-the Seimas
resolution-in his request the petitioner presented the
following arguments. For the purpose of the administration
reform, on 4 April 1995 the Law on Officials was passed.
Article 2 thereof defines as to what state and local government
politicians are:
"State politicians shall include the President of the
Republic of Lithuania, members of the Seimas, the Prime
Minister, and ministers.
Local government politicians shall be local government
council members".
This law also established 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 governments in accordance with
the list of offices of the civil service which is kept by the
Government. The list names the offices of officials and
specifies the level ("A" or "B") to which they are assigned.
State or local government officials of "A" level are
employees appointed by the Seimas, the President of the
Republic, the Government and other employees specified in the
list of offices who assist state politicians in fulfilling
their functions. The service of the above officials is
connected with the duration of the term of office of their
respective head officers.
Officials of "B" level are employees, appointed by the
Seimas, the President of the Republic, the Government, as well
as other employees indicated in the respective list of offices.
The service of these officials is not connected with the term
of office of the institutions which appoint them.
The Seimas, on the proposal of the Government, assigns the
offices to "A" level in the list of offices. By the 27 June
1995 Resolution "On the Republic of Lithuania Civil Service
List of Offices of 'A' Level Officials" the Seimas approved the
list of offices of "A" level officials, while by its 3 August
1995 Resolution No. 1081 "On Approval of the Republic of
Lithuania Civil Service List of Offices of 'B' Level Officials"
the Government approved the list of offices of "B" level
officials. This list of "B" level officials includes the office
of the service of the Government representative in the county,
as well as that of the administration of the county governor.
After the Seimas had adopted the disputed resolution, the
county chief and the deputy county chief were included into the
list of offices of "A" level officials. The petitioner draws a
conclusion that thereby the county chief becomes dependent on
politicians who exercise their functions, as well as on the
political party which is in power. When exercising legal
supervision of local governments, the county chief will not be
able to be impartial as his decisions may be influenced by
political, however not legal, arguments. Meanwhile, Part 3 of
Article 123 of the Constitution establishes legal but never
political supervision of local governments.
Moreover, the Seimas included heads (directors general,
directors, chiefs) of Government institutions, as well as those
of departments, services, inspectorates or another institutions
of the civil service established at ministries, along with
ministerial advisers, experts, and ministerial representatives
for the media into Items 3, 4 and 5 of Chapter IV of Article 2
of the disputed resolution. Under Article 6 of the Law on
Officials, state officials of "A" level shall be employees
appointed by the Seimas, the President of the Republic, the
Government and other employees specified in the list of offices
who assist state politicians in fulfilling their functions,
while state officials of "B" level, along with the other
employees specified in the list of offices, shall be employees,
appointed by the Seimas, the President of the Republic, the
Government, the structural divisions, ministries, Government
institutions (departments, agencies, inspectorates),
departments, agencies, inspectorates, and other institutions of
the civil service founded at ministries. The petitioner
contends that Chapter IV of Article 2 of the aforesaid Seimas
resolution contradicts Article 6 of the Law on Officials.
Part 2 of Article 35 of the Constitution provides: "No
person may be forced to belong to any society, political party,
or association." In the opinion of the petitioner, in the case
that a person is politically self-determined and consents to
assist a state politician in fulfilling his functions, then it
is evident and understandable that he voluntarily links himself
with either one or another state politician or one or another
political party.
The petitioner contends that after the list of "A" level
officials had been expanded, the heads of Government
institutions (departments, services, inspectorates), as well as
those of departments, services, inspectorates or other
institutions of the civil service founded at ministry, in the
case that they wish to hold their office, must submit to one or
another political party which is in power, and assist a
politician in fulfilling his political functions.
Therefore the petitioner is of opinion that such an
expanded list of "A" level officials contradicts Part 2 of
Article 35 of the Constitution as it creates pre-conditions
that officials who wish to hold their office will have to
submit to political requirements of the ruling party or
coalition of parties and thereby to link themselves against
their will with political activities.
III
In the course of preparation of the case for the court
hearing K. Skrebys, a representative of the party concerned,
presented the following counter-arguments.
1. The Constitution does not contain any provision which
prescribes that the aforesaid functions (county governing and
supervision of local government activities) must be fulfilled
by individual institutions. Under Parts 1, 2 and 3 of Article
123 of the Constitution, the Government is commissioned to
organise both the administration in higher level administrative
units and supervision as to how local governments observe the
Constitution and the laws. By the Constitution, the Government
fulfils the said assignment under the procedure established by
law. Therefore the representative maintains that in deciding
that only one institution will exercise both the administration
and supervision the Seimas has not violated the Constitution.
The fact that Article 123 of the Constitution provides for the
administration and supervision in its individual parts should,
in the opinion of the representative, be commented as means to
define individual functions but not as a necessity to adopt
special laws as for these issues and to determine that
individual institutions must fulfil the functions connected
with the said issues.
Therefore the motive of the request that, as regards these
questions, special laws had been adopted and individual
institutions to implement these functions had been provided for
before, is not sufficient grounds to maintain that the Seimas
was not entitled to decide this issue in a different way and to
commission one institution only with fulfilment of these
functions.
The representative of the party concerned does not agree
with the statement of the petitioner that after the county
chief had been granted the powers to supervise local government
activities, pre-conditions were created for the Government to
exert political influence on local governments and restrict
their rights. Firstly, the powers of the county chief
concerning issues of supervision of local government activities
are strictly defined by the Law on the Governing of the County;
secondly, these powers are identical to those previously held
by the Government representative; thirdly, former Government
representatives were not less subordinated to the Government
than the county chief is.
2. The representative of the party concerned points out
that the essential argument in the request is as follows: after
the list of offices of "A" level officials had been expanded by
the Seimas resolution with the offices of the heads (directors
general, directors, chiefs) of Government institutions
(departments, services, inspectorates), as well as those of
departments, services, inspectorates or other institutions of
the civil service founded at ministries, as well as with the
offices of the county chief and the deputy county chief, the
list of "A" level officials became incompatible with the
provision of the Law on Officials under which officials of "A"
level shall be employees who assist politicians in fulfilling
their functions.
The representative maintains that one has to recognise
that this incompatibility has actually occurred. Therefore this
provision has been corrected in the course of preparation of a
draft Law on Officials of new wording. This draft Law on
Officials, however, has not been presented to the Seimas as the
Law on the Civil Service is being drafted and there is still
not clear whether the Law on Officials will be necessary at
all.
The representative of the party concerned noted that the
list of offices of "A" level officials had been expanded
reasonably as the persons who are appointed to these offices,
as regards the importance of their powers, must be linked with
the time period for which the Prime Minister and the ministers
are empowered. Therefore, as to its content, the expansion of
the list is in conformity to the concept of the Law on
Officials.
IV
The representatives of the petitioner once again
emphasised during the court hearing that the sources of local
government supervision come from the former general supervision
which had been exercised by the procurator's office. Upon
adoption of the Constitution of 1992, a new institution was
created, i.e. that of the Government representative. Its legal
status was defined by the respective law. The representatives
are of opinion that the institution of the Government
representative was delegated to perform that job that had been
performed by the procurator's office in the sphere of the
supervision of local government activities.
The representatives also certified that the tendency when
county chiefs become officials of "A" level is a dangerous one
as through them the ruling party may exert a direct influence
on local governments and subject their decisions to its aims.
V
During the court hearing the representatives of the party
concerned reiterated their arguments set forth previously and
indicated that supervision is a function of administration,
therefore there is no evil in the fact that the supervision of
local governments has been transferred to county chiefs. The
Constitution mentions the function of the supervision,
therefore one cannot assert that the Government representative
is a constitutional institution.
In addition, the representatives of the party concerned
presented the following explanations:
The possibilities of the Government to exert political
influence on local governments through the county chief have
remained the same as they were through an individual Government
representative. Of course, this possibility has slightly
diminished as, instead of the former two, only one Government
institution remained.
The powers of the Government in respect to local
governments have remained intact as former provisions of the
Law of the Government representative were transferred into
another law, i.e. the Law on the Governing of the County.
Part 3 of Article 123 of the Constitution provides that
the powers of Government representatives and the procedures of
their implementation shall be established by law. A mere fact
that one law has been repealed and the same powers as well as
the procedures of their implementation have been moved to
another law could not have placed the law in contradiction with
the Constitution. It is not correct to conclude that the
Constitution has established legal but not political
supervision of local governments. The Constitution has not
named such a supervision either political or legal. Such a
supervision is established by Part 2 and not 3 of Article 123
of the Constitution. Part 2 reads that "representatives shall
be appointed by the Government to supervise". County chiefs are
also Government representatives who are appointed by the
Government under the same procedure, therefore there could not
have occurred any contradiction to the Constitution.
Not a single new provision has been adopted by the
disputed law which could create a pre-condition to restrict the
rights of local governments. A local government may lodge a
complaint against illegal actions of the county chief with the
court. The response acts of the county chief-proposals or
demands directed to the local governments provided these
governments persist in believing that they are acting
correctly-have remained non-compulsory. The county chief may
contest local government decisions only in court.
Concerning his status, in view of local government
activity supervision the county chief is the same Government
representative who is appointed by the Government on the
proposal of the Prime Minister as the former Government
representative for whom the legislator has not found another
name for his office was.
The exposition of Article 123 of the Constitution provides
the legislator with broader opportunities to choose ways of
decentralisation and deconcentration of state authority.
The office of the county chief belongs to offices to which
the officials are appointed by the Government. The officials
appointed by the Government, as well as the Seimas or the
President of the Republic, do not assist politicians in
fulfilling their functions but must exercise the powers granted
to them by themselves.
The statement that such an expanded list of "A" level
officials contradicts Part 2 of Article 35 of the Constitution
as it creates pre-conditions that officials who wish to hold
their office will have to submit to political requirements of
the ruling party or coalition of parties and thereby to link
themselves against their will with political activities is not
correct as to both its content and affirmation. It is incorrect
regarding its content as Part 2 of Article 35 of the
Constitution prohibits to force anyone to belong to any
society, political party, or association, meanwhile, on the
whole, the Seimas resolution concerning the expansion of the
list of "A" level officials does not mention any parties or
party membership. It is not correct regarding its affirmation
as state officials must comply with state authority political
requirements which are expressed in legal acts or legitimate
instructions of politicians but never those of the ruling
party.
The Constitutional Court
holds that:
1.1. Article 10 of the Constitution provides that the
territory of the State of Lithuania shall be integral and shall
not be divided into any state derivatives. It is this provision
which contains the constitutional consolidation of the
unitarian state system and expresses the idea of a united and
indivisible state.
However, for reasons of rational organisation of
administration, the territories of all states, including those
of unitarian ones, have their own internal structure, i.e. they
are divided into certain administrative units where
corresponding state institutions are formed. This is also
provided for in Article 11 of the Constitution: "The
administrative divisions of the territory of the State of
Lithuania and their boundaries shall be determined by law." One
should note that these constitutional norms are specified and
further developed by the norms of Chapter 10 entitled "Local
Governments and Administration". First, the said chapter
establishes no less than two levels (links) of administrative
units. Second, different administration systems are established
for administrative units of different levels (links): the
Constitution guarantees the right of self-government to the
lower (i.e. first level) units, while in the higher (i.e.
second level) administrative units administration is organised
by the Government.
These constitutional provisions are particularised in the
19 July 1994 Law on the Territorial Administrative Units of the
Republic of Lithuania and their Boundaries. Article 1 of the
said law prescribes that counties and territories of local
governments shall be territorial administrative units of the
Republic of Lithuania. Article 2 of the said law stipulates:
"The territory of local government is a territorial
administrative unit of the Republic of Lithuania which is
governed by institutions of local self-government elected by
the local community pursuant to the Law on Local
Self-Government of the Republic of Lithuania and other laws.
The territory of local government shall be formed out of
residential areas. The basic criteria for the formation of a
territory of local government are its preparedness to manage
and maintain its environment, communal economy, to provide
communal services to local inhabitants and to perform other
functions provided for in the Law on Local Self-Government of
the Republic of Lithuania.
The county is the higher territorial administrative unit
of the Republic of Lithuania, the governing of which shall be
organised by the Government of the Republic of Lithuania
pursuant to the Law on the Governing of the County and other
laws.
The county shall be formed out of the territories of local
governments that have common social, economic, and ethnic and
cultural interests."
Thus two systems of administration have been formed in
administrative units of Lithuania: a system of self-government
which is organised in the lower level administrative units
(which are referred to by the law as territories of local
governments), and a system of local administration which is
organised by the Government in the higher level administrative
units (counties).
1.2. The fundamental principles of organisation and
activities of local self-government are consolidated in the
Constitution. This is also in line with the provision of
Article 2 of the European Charter of Local Self-Government
stipulating that the principle of local self-government must be
recognised in domestic legislation, and where practicable in
the constitution.
The Constitution determines local self-government as a
public administration system operating on the basis of
self-action principles, and which is not directly subordinate
to state authority institutions. The analysis of the
constitutional norms permits to distinguish the following
principles of local self-government: representative democracy,
accountability of executive institutions to the
representatives, free and independent actions of local
governments within the limits prescribed by the law,
co-ordination of interests of local governments and those of
the state.
The fundamentals of organisation of self-government
institutions as defined in Chapter 10 of the Constitution are
particularised as well as the procedures of activities of the
said institutions are established by the 7 July 1994 Law on
Local Self-Government. Article 1 of the said law promulgates
that "local self-government (hereinafter referred to as
"self-government") denotes the right and actual power of the
institutions of a local government which is elected by the
residents of an administrative unit of the territory of the
Republic of Lithuania, to freely and independently on their own
responsibility regulate and manage public affairs and meet the
needs of local residents according to the Constitution and laws
of the Republic of Lithuania.
The territory of local government shall be an
administrative unit of the territory of the State, the
community of residents whereof has the right to self-government
guaranteed by the State".
One should note that in its many elements the presented
conception of self-government is in conformity with the
definition of self-government set out in Article 3 of the
European Charter of Local Self-Government.
Alongside, the law on Local Self-Government formulates
fundamental principles of local self-government. Some of them
coincide with the aforementioned constitutional self-government
principles, while other principles are new.
Thus self-government presupposes certain freedom and
autonomy of activities, as well as independence from state
authority institutions. Such freedom, however, is not
limitless, while the autonomy does not mean that one may ignore
state interests. Therefore the principle of coordination of
interests of local governments and those of the state is of
utmost importance. There are cases when this is expressed by
the state supporting local governments in all ways and forms,
or when joint actions are coordinated when significant social
objectives are being sought, or when the state supervises local
government activities in the form prescribed by the law.
It is to be noted that in Lithuania the self-government
model is based on the centuries old European tradition of the
culture of self-government which later was supplemented by the
institution of the administrative supervision and which was
formed on the basis of the local (regional) state
administration.
1.3. Constitutional provisions as to the state
administration are formulated in Part 1 of Article 123 of the
Constitution: "In higher level administrative units, the
administration shall be organised by the Government according
to the procedure established by law."
Local administration is fulfilment of state administration
(i.e. the executive power) functions in particular localities,
i.e. respective administrative units. The functions of the
local administration are, as a rule, performed by officials
appointed by the central authority or institutions formed by
the said officials which generally act in the name or on the
instructions (authorisation) of the central authority. One is
of opinion that the local administration is an organic part of
the state administration (the executive power), that it is an
extension of state administration into particular locales.
Often this is defined as deconcentration of power, i.e. a
partial transition of central authority powers into particular
locales-administrative units. In most European states local
administration is organised in higher administrative units,
i.e. regions, departments, provinces, prefectures etc. by
granting them substantial autonomy. The officials (prefects,
governors, commissioners, etc.) appointed by the Government
(or, in some places, by Head of State) and directly subordinate
to it represent the central authority in such administrative
units. These officials in particular locales run a number of
state institutions, as well as discharge the functions of
coordination and control. Such organisation of local
administration in large administrative units, especially when
their autonomy is broadened, is commonly referred to as
regionalism.
The constitutionally consolidated fundamentals of the
local administration in Lithuania are revealed and
particularised in the 15 December 1994 Law on the Governing of
the County (herein the said law will be review until its 12
December 1996 amendments). Article 1 of the said law
prescribes: "The county is a higher territorial administrative
unit of the Republic of Lithuania, the governing of which shall
be organised by the Government through the governor of the
county, the Ministers and other Government institutions. The
government of the county is a constituent part of state
administration." The county governor shall be appointed to and
dismissed from office by the Government upon the recommendation
of the Prime Minister, while a deputy county governor shall be
appointed to and dismissed from office by the Prime Minister
upon the recommendation of the county governor. To fulfil the
functions attributed to him, the county governor forms and is
in charge of his administration.
It is possible to distinguish 3 groups of tasks for the
county governor:
(1) to implement state policy in the spheres attributed to
his administration, and to implement state and inter-regional
programmes in the county;
(2) to coordinate the activities of the ministries and
other structural subdivisions of Government institutions lying
within the limits of the county, as well as to coordinate the
activities of executive institutions of self-government in
implementing regional programmes;
(3) to provide for the priority trends of the county
development and prepare its programmes.
The first group of tasks virtually included general
functions of the executive power the content of which is
revealed in Articles 6-11 of the Law on the Governing of the
County. The following tasks are to be attributed to the more
important ones: establishment, reorganisation and liquidation
of institutions and organisations; ensuring their activity;
consideration of requests and petitions of natural and legal
persons, as well as adoption of decisions regarding such
requests and petitions; performance of actions having legal
significance; exercise of control and supervisory functions as
prescribed by the law.
The law also provided that the county governor, when
discharging the functions attributed to him, and implementing
the laws, other legal acts passed by the Seimas, the decrees of
the President of the Republic and resolutions of the
Government, had to cooperate with the governing institutions of
self-government and the state, as well as governing
institutions and organisations subordinate to them, and the
Government representative.
The county governor had to notify respectively the Seimas
or the Government of the activities and decisions of the
subdivisions of state governing institutions if they were not
in compliance with the laws, Government resolutions or violated
the rights of citizens or organisations. If a subdivision of
the state governing institution or a higher state governing
institution did not repeal or change the disputable decision
passed by them, the final decision was to be passed by the
Government. Besides the law provided that the Government was
entitled to repeal the decrees or other orders of the county
governor himself provided they contradicted the Constitution,
the laws, other acts passed by the Seimas, the decrees of the
President of the Republic and resolutions of the Government.
After surveying the Law on the Governing of the County,
one may draw the following general conclusions. First, the
highest administration official in the county in the hands of
whom the most important powers of the executive power were
concentrated was the county governor. Second, he was
commissioned to discharge common administration functions,
including those of certain control and supervision. Third, the
powers of the county governor were not restricted to the sphere
of the activities of state institutions only but also his
powers were orientated to subjects not subordinate to him:
state institutions as well as institutions of self-government
lying within the county territory. As a rule, along with other
cooperation forms, this was manifested by the rights to
coordinate and harmonise a respective activity.
1.4. In implementing constitutional provisions concerning
the administrative supervision of self-government institutions,
on 1 July 1993 the Law on the Government Representative was
adopted which was in force until 12 December 1996. Article 1 of
this law reiterated constitutional provisions that the
representative appointed by the Government had to supervise as
to how local governments observe the Constitution and the laws
or fulfil Government resolutions.
The Government representative had to check whether
decisions adopted by joint or non-joint self-government
institutions respect the rights of citizens and organisations,
and whether officials of local governments fulfil Government
resolutions.
It was established that the Government representative was
to be adopted to and dismissed from office by the Government on
the recommendation of the Prime Minister. The law also provided
that the Government representative might not hold any other
positions (save for those in political parties, other political
or public organisations) whether on elected or appointed basis,
act as a deputy of the local government council, work in other
state or private business, commercial or other institutions,
enterprises and public organisations, as well as get any other
remuneration save for that established for his position or that
for creative work.
A respective service assisted the Government
representative in discharging his powers. Employees of the said
service were appointed to or dismissed from office by the
Government representative himself. In the Regulations for the
Activities of the Government Representative approved by the
Government by its 19 April 1994 Resolution No. 293 it was
established that assignments to the Government representative
regarding his work questions had to be submitted only by
Government decisions in accordance with the Law on the
Government Representative, while only the Prime Minister, the
Government Secretary, the minister of administration reform and
self-government affairs or the secretary of this ministry were
entitled to give the Government representative instructions as
to the questions of organisational and functional matters.
To discharge the commissioned functions, the Government
representative was granted the following rights: to receive
decisions (originals) adopted by the self-government
institutions, as well as the explanations of the persons in
charge as to these decisions, while in other cases to receive
copies of both the minutes and adopted documents as well as
other material; to participate in conferences of the
self-government institutions with the right to express critical
observations or propose to suspend an adoption of decision; to
consider people's complaints concerning decisions of
self-government institutions, and to settle or transfer them to
other competent officials; to participate in conferences or
events of the state institutions when self-government affairs
are discussed there; as well as to become acquainted with
Seimas or Government documents wherein local government affairs
are decided.
The Government representative could react to any found
violation by one of the following forms:
(1) by writing a motivated proposal to the person in
charge of the institution that had adopted the act, and
requiring to suspend the disputed act immediately and
deliberate on its amendment or repeal, and to inform the higher
self-government institutions (the council, the board) as to
this matter;
(2) by his decree suspending implementation of the
disputed decision and presenting a motivated requisition which
had to be immediately considered in the session or conference
by adopting a decision regarding this requisition;
(3) by writing a requisition to the self-government
institution that a Government resolution be implemented
immediately, and requesting to inform in writing, during the
indicated time period, about the results of such
implementation.
The law established that suspended decisions of
self-government institutions might not be implemented until the
dispute was not decided during the established time period
either in the local government or by a court decision.
In all cases the Government representative and the higher
self-government institution according to the level of
subordination had to be informed as to the time and place of
consideration of Government representative requisitions.
It was established that in cases when the local government
council or board refused to comply with the requisition of the
Government representative, or if it did not inform about the
implementation of the Government representative requisition or
Government resolution in time, as well as in cases when the
said institutions did not repeal illegal acts adopted by them
or those adopted by the institutions subordinated to them (the
board, mayor, manager, chief of a rural district) within 2
weeks from the day of the reception of the order of the
Government representative, the Government representative had to
lodge a complaint against these acts or actions of the
officials with the court, while he was to inform the Government
about the non-compliance with the Government resolution.
One should note that one can perceive that the sources of
the beginning of the institution of the Government
representative are in the former institution of the Government
representative-consultant. As far back as 8 May 1992, by
Government Resolution No. 337 the Regulations for Regional
Government Representatives-consultants were adopted. Therein it
was established that the chief tasks of the Government
representative-consultant were to look after appropriate
implementation of Government socio-economic policy in the
particular region, as well as to guarantee close links between
state and local bodies of authority and administration. In
addition to other tasks, the Government
representative-consultant was commissioned to exercise control
as to how the laws were observed in the region and other
normative acts were implemented, as well as to inform the
Government as to how local governments implemented the laws and
Government resolutions and decrees.
Thus, after reviewing the legal status of the Government
representative, one may draw the following conclusions. First,
the chief task of the Government representative was to check
the legal acts adopted by self-government institutions in
attempt to guarantee that they would not contradict the
Constitution and the laws, as well as to supervise whether
Government resolutions were fulfilled. Second, the main ways of
supervision were provided for as follows: taking part in the
conferences of self-government institutions; check-ups in
particular places; reviewing of the acts adopted by
self-government institutions; consideration of requests and
complaints regarding the acts or actions of self-government
institutions and their officials; regular reception of the
local people. Third, the Government representative was entitled
to demand that the disputed act be repealed or to require that
a Government resolution be fulfilled. Besides, he was granted
the right to suspend the implementation of a disputed decision,
to inform the higher self-government institution about the
violation, to lodge a complaint against illegal acts or actions
of officials with the court, and to notify the Government about
the fact that a Government resolution is not being fulfilled.
Fourth, the right of final decision in cases when the
requirements of the Government representative were not being
fulfilled was, in essence, left with either the court or the
Government. Fifth, the procedure of appointing to and
dismissing the Government representative from office, his
subordination and relations with the Government, as well as the
nature of his functions fulfilled, indicate that under the law
then in effect, the Government representative was an autonomous
institution which was directly subordinate and accountable to
the Government.
2.1. Comparative constitutional law distinguishes 2
models, which have been formed in the course of history, of
self-government activity supervision and control: the
administrative supervision and the judicial control.
In the countries of the continental law system the
administrative supervision of self-government activities have
been formed and are dominating. It means that local governments
are supervised by the executive power of the state, i.e. its
certain institutions.
It is recognised that the judicial control is
characteristic of the Anglo-Saxon legal system countries. In
this case the notion "judicial control" is used conditionally
and means only passive control, i.e. the courts control nothing
on their own initiative, however they consider the complaints
regarding the acts adopted by self-government institutions or
actions of their officials. On the other hand, the courts also
investigate the complaints of self-government institutions in
cases when state institutions violate the rights of local
governments. It is this that is named by the doctrine of
constitutional law as the judicial control of local
governments.
When democratic reforms of state governance in the
countries of Western Europe are implemented, one notices
softening of applied measures of the administrative supervision
(control), as well as a trend of coordination of the
administrative supervision and the judicial control.
It is important to note that the Constitution of the
Republic of Lithuania also provides for a possibility to
coordinate the administrative supervision with the judicial
control. Along with the administrative supervision, established
in Parts 2 and 3 of Article 123 of the Constitution, the
judicial control over the activities of the local government
institutions and those of their officials is consolidated by
Article 124.
2.2. On 12 December 1996, the Seimas passed the Law "On
the Amendment and Supplementation of the Law on the Governing
of the County, as well as the Recognition of the Law on the
Government Representative as Null and Void". The petitioner
maintains that by this law the institution of the Government
representative which is provided for by Article 123 of the
Constitution, was abolished, while this contradicts the
provisions of Article 123 of the Constitution. Furthermore, it
is maintained that the disputed law contradicts Article 120, as
well as Part 2 of Article 5, of the Constitution, too.
Parts 2 and 3 of Article 123 of the Constitution provide:
"Representatives shall be appointed by the Government to
supervise that the Constitution and the laws are observed, and
that the decisions of the Government are implemented by local
governments.
The powers of Government representatives and the
procedures of their implementation shall be established by
law."
Part 2 of the said article provides that the
representatives shall be appointed by the Government so as to
supervise local governments. Therefore it is important to
elucidate the semantic meaning of the notion "representative"
(Lith. atstovas), as well as its legal content in the context
of the case at issue. "A Dictionary of the Lithuanian Language"
(vol. 1) reads: "A representative-a person who represents
someone's interests and acts in someone's name". Therefore "a
representative", in general, may be assessed as a common notion
but not as a name of a concrete position or institution.
Therefore it is to be concluded that in cases when
constitutional norms do not directly define the organisational
form of a respective institution, the legislator has a
prerogative to choose and establish such a form.
One must emphasise that the common notion "representative"
as used by Article 123 of the Constitution has an important
legal meaning. First, Part 2 of the said article employs this
notion to define an institution of the administrative
supervision of local government activities. Second, the notion
"representative" indicates a legal link with a certain legal
subject, and reveals what interests are being represented and
in whose name is being acted. This question is answered by the
notion "Government representative" used by Part 3 of Article
123 of the Constitution. It means that the subject exercising
local government supervision acts in the name of the Government
and is subordinate to it.
2.3. Parts 2 and 3 of Article 123 of the Constitution
constitute an organic whole as they consolidate the institution
of the administrative supervision of local government
activities by attributing to it constitutional significance.
Special objectives are sought by consolidation of this
institution:
first, to grant the right to the Government to supervise
local government activities through the representatives which
the Government itself appoints;
second, to circumscribe the sphere of such supervision,
i.e., to supervise whether the Constitution and the laws are
observed, and whether Government resolutions are fulfilled;
third, to establish that the limits of Government
supervision powers are to be defined by law;
fourth, by such restrictions of the supervision to once
again emphasise the autonomy of local governments.
Part 2 of Article 123 of the Constitution is of utmost
importance as to the content and meaning. It is this part where
the essence of the institution of the administrative
supervision of local government activities is determined: (1)
the supervision objects are local governments; (2) the
supervisory matters are whether one observes the Constitution
and the laws, and fulfils Government resolutions; (3) the
supervision subjects are the representatives appointed by the
Government.
The main purpose of Part 3 of Article 123 of the
Constitution is to establish the consolidating form of the said
institution as well as the main elements of its content. The
requirement of the form means that the institution of the
administrative supervision of local government activities must
be regulated by the law. The main requirements of the content
are empowering for the supervision (the limits and scope of the
powers) as well as the procedure of implementation of the
powers.
As it was mentioned, these constitutional norms were being
realised in the Law on the Government Representative until 12
December 1996. By Article 1 of the adopted disputed law, the
Law on the Government Representative was recognised as null and
void. The fact that the institution of the Government
representative was abolished is approved by the 9 January 1997
Government Resolution No. 3 "On Liquidation of the Republic of
Lithuania Institution of the Government Representative and
Reorganisation of the Republic of Lithuania Institution of the
County Chief".
Chapter 1 entitled "The Amendment and Supplementation of
the Law on the Governing of the County" of the disputed law
contains all the major powers of local government activity
supervision which earlier were granted to the Government
representative. Besides, by Article 1 of the disputed law the
office of "county governor" was replaced by that of "county
chief". The petitioner doubts as to the replacement of these
offices. One should note that under Part 1 of Article 123 of
the Constitution, the procedure of the local administration
must be established by law, therefore establishment of
respective names of offices of local administration heads is
within the prerogative of the legislator. The Constitutional
Court notes that, of itself, the replacement of the name of an
official does not contradict the Constitution save for the
cases when respective offices are directly and precisely named
in the Constitution.
By the disputed law Article 5 of the Law on the Governing
of the County, which establishes the tasks for the county
governor (chief) was supplemented. Therein a new task of the
county chief has been formulated, i.e. he must exercise
supervision of local government activities. This is a
repetition of the task which was contained by the former Law on
the Government Representative. In addition, the Law on the
Governing of the County has been supplemented by 2 new articles
linked with the implementation of the supervision of local
governments. One of them (Article 6) defines the rights and
powers of the county chief in the sphere of the supervision of
local government activities, while the other (Article 14)
establishes the form whereby the county chief exercises his
powers.
Thus, the analysis of the amendments of the Law on the
Governing of the County which were made by the disputed law
permits to draw the following conclusions: by the disputed law
the 1 July 1993 Law on the Government Representative was
recognised as null and void indeed. On the other hand, the
major functions of the Government representative which had been
provided for in the repealed law were transferred to the county
governor, the office of whom was renamed by the same law, i.e.
he became the county chief. Under formal assessment, it might
seem that only the subject exercising the supervision was
changed.
However, when investigating this problem one virtually has
to go back to the matter of constitutional regulation once
again. As it was mentioned, constitutional norms individually
define the institution of the administrative supervision of
local government activities, i.e. in individual parts of
Article 123 of the Constitution. Moreover, therein it is
indicated in a commanding way that this institution should be
defined by the law. This must be construed as the emphasis of
the autonomy of the institution supervising local government
activities, as well as the requirement, linked with this, that
this institution be regulated by a special law. One should not
consider this a matter of formality or that of little
importance. It is the form of the law and autonomous regulation
of this institution, as well as a comprehensive definition of
the powers to exercise the supervision, as well as the
procedure of their implementation, that are to be treated as
the conditions directly consolidated by the Constitution
guaranteeing the freedom and autonomy of local government
activities. The option for and consolidation of an appropriate
organisational legal form for a respective institution is
another matter. It is to be treated as a prerogative of the
legislator.
Therefore it is to be concluded that the amalgamation of
an independent constitutional institution of the administrative
supervision of local government activities with another
institution, and in this case its direct incorporation into the
local administration, contradicts the meaning of Part 2 of
Article 120, as well as that of Parts 2 and 3 of Article 123 of
the Constitution.
3.1. On 4 April 1995 the Law on Officials was passed
whereby classification of employees of state and
self-government institutions, the procedure of their taking
into and dismissal from office, the rights, obligations,
responsibility etc. of the officials were established. The law,
first of all, groups the said employees into politicians and
officials. Article 2 of the said law provides:
"State politicians shall include the President of the
Republic of Lithuania, members of the Seimas, the Prime
Minister, and ministers.
Local authority politicians shall be local government
council members."
Save for the said politicians, other employees of
institutions and organisations, who are remunerated from the
state budget or those of local governments, are considered
state or local government employees.
Under the law, the civil service is the performance of
duties in the Seimas, the institutions of the President of the
Republic, the Government, other state institutions and
structural divisions of local authority.
The employees of the civil service constitute a
professional body of officials. Such employees who discharge
economic-technical functions, i.e. who supervise facilities of
a particular institution and whose activities have no influence
on the activities of the institution according to its
competence are not regarded as officials.
Employees of respective offices indicated in the list of
officials are state officials in state administration
institutions, and local authority officials-in the structures
of local governments.
The list of offices is kept by the Government. The list
names the offices of officials and specifies the level ("A" or
"B") to which they are assigned. The assignment of offices to
level "A" is approved by the Seimas.
Article 6 of the Law on Officials provides:
"State officials of 'A' level shall be employees appointed
by the Seimas, the President, the Government and other
employees specified in the list of offices who assist state
politicians in fulfilling their functions. The service of the
above officials shall be connected with the duration of the
term of office of their respective head officers.
State officials of 'B' level shall be employees, appointed
by the Seimas, the President, the Government, their structural
divisions, ministries, Government institutions (departments,
agencies, inspectorates), as well as departments, agencies,
inspectorates, other institutions of the civil service founded
at ministries, as well as other employees specified in the list
of offices. The service of these officials shall not be
connected with the term of office of the institutions which
appoint them.
Local government officials of 'A' level shall be
controllers, their deputies and other employees specified in
the list of offices who assist local authority politicians to
fulfil their functions. The service of the above officials
shall be connected with the duration of the term of office of
their direct head officers.
Local government officials of 'B' level shall be employees
appointed in accordance with the procedure established by the
Law on Local Self-Government, as well as other employees
specified in the list of offices. The service of these
officials shall not be connected with the duration of the term
of office of the institutions which appoint them."
As it was mentioned, the Seimas approves the assignment of
offices in the list of offices to level "A" on the
recommendation of the Government. One should emphasise that in
this case the Seimas is not entirely independent as it must
observe the criteria and conditions defined by the law. It is
evident that, for instance, judges, public procurators, as well
as other state officials the opportunities of whom to
participate in political activities are restricted by the
Constitution or the law, may not be entered into the list of
"A" level state officials. On 27 June 1995, the Seimas approved
the list of offices of "A" level officials by its Resolution
"On the Republic of Lithuania Civil Service List of Offices of
'A' Level Officials", while on 3 August 1995 the Government by
its Resolution No. 1081 "On Approval of the Republic of
Lithuania Civil Service List of Offices of 'B' Level Officials"
approved the list of offices of "B" level officials.
3.2. On 12 December 1996 the Seimas adopted the Resolution
"On Supplementation of the Republic of Lithuania Civil Service
List of Offices of 'A' Level Officials". The petitioner
contends that Items 3, 4, 5, 6 and 7 of Chapter IV of Article 2
of this resolution contradict Parts 1, 2 and 3 of Article 123,
Article 120, and Part 2 of Article 35 of the Constitution, as
well as Parts 2 and 3 of Article 6 of the Law on Officials.
One should note that Part 1 of Article 123 of the
Constitution consolidates the fundamentals for organising local
administration; Part 3 of the same article establishes that the
local government supervision, i.e. its scope and procedure of
its implementation, is regulated by the law. The matter of
local government supervision is defined in Part 2 of the said
article. As it was mentioned in this ruling, Parts 2 and 3 of
Article 123 of the Constitution consolidate the administrative
supervision of local government activities, while Article 124
consolidates the judicial control. Therefore there are no
grounds to assert that the disputed resolution contradicts
Article 123 of the Constitution.
Part 2 of Article 35 of the Constitution provides that "no
person may be forced to belong to any society, political party,
or association". The petitioner presumes that the expansion of
the list of "A" level officials is equivalent to the
requirement "to link oneself against one's will with political
activities". However this presumption is not based on legal
arguments, while the disputed resolution does not deal with the
issues regarding belonging to a certain society, political
party or association. Neither this nor other constitutional
norms contain formulated and legally defined criteria on the
grounds whereof it would be possible to assert whether entering
one or another office into either "A" or "B" categories is
grounded. This is a prerogative of the legislator. Therefore
there are no grounds to maintain that the disputed resolution
contradicts Part 2 of Article 35 of the Constitution.
At present the relations of the civil service are
regulated and the fundamentals for classification of employees
are established by the Law on Officials. It is by Article 6 of
this law that the fundamentals of grouping of officials into
either "A" or "B" level are established. For example, at the
beginning of Part 2 of the said article it is stipulated that
"state officials of 'A' level shall be employees appointed by
the Seimas, the President, the Government and other employees
specified in the list of offices". This provision is to be
considered a formal-legal basis of the classification as, in
essence, therein one deals with entering respective offices
into one or another list. The further provision "who assist
state politicians in fulfilling their functions" of Part 2 of
Article 6 which links the said officials with an obligatory
condition is to be regarded as an essential, i.e. functional,
criterion of the classification. Both these criteria are
interrelated, they supplement each other, therefore, when
assessing the disputed resolution, one will have to compare its
respective provisions in order to determine whether they are in
conformity to these fundamentals.
Items 3, 4, 5, 6 and 7 formulated in Chapter IV of Article
2 of the disputed resolution indicate concrete offices which
are to be entered into the list of offices of "A" level
officials. This is in compliance with the formal criterion
established by Article 6 of the Law on Officials which is
necessary by grouping officials into either "A" of "B" levels.
The Constitutional Court has no sufficient grounds to assert
that the ministerial representative for the press, an adviser
to the ministry, the expert, the county chief, the deputy
county chief are not linked with respective state politicians
and that they do not assist them in fulfilling their functions.
Therefore a conclusion is to be drawn that Items 3, 4, 5, 6 and
7 formulated in Chapter IV of Article 2 of the disputed
resolution are in compliance with Article 6 of the Law on
Officials.
Item 5 of Chapter IV of Article 2 of the disputed
resolution is set out as follows: "The head (director general,
director, chief) of a Government office (department, service,
inspectorate) or that of a department, a service, inspectorate
or any other institution of the civil service established at a
ministry." First, this formulation lacks general clarity, as it
neither indicates particular institutions or offices nor
contains any final list of such offices, therefore it is
impossible to judge as concerns their ties with respective
state politicians. Second, in fact, this item does not
enumerate particular offices, while it merely mentions possible
names of heads of various institutions. It means that such a
list of offices is neither precise, exact, nor final. Due to
such vagueness it is neither possible to determine links of
particular offices with respective state politicians nor decide
whether particular employees assist state politicians in
fulfilling their functions. On such grounds one is to conclude
that Item 5 of Chapter 4 as formulated in Article 2 of the
disputed resolution contradicts Article 6 of the Law on
Officials.
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 Republic of Lithuania Law "On the
Amendment and Supplementation of the Law on the Governing of
the County, as well as the Recognition of the Law on the
Government Representative as Null and Void" in the part whereby
the independent constitutional institution of the
administrative supervision of local government activities is
amalgamated with another institution, which found expression in
the direct incorporation of local government supervision into
the local administration (Articles 2, 3 and 5 of Chapter 1 of
the said law), contradicts Part 2 of Article 120, as well as
Parts 2 and 3 of Article 123 of the Constitution of the
Republic of Lithuania.
2. To recognise that Articles 1, 4 and 6 of Chapter 1 as
well as Article 1 of Chapter 2 of the Republic of Lithuania Law
"On the Amendment and Supplementation of the Law on the
Governing of the County, as well as the Recognition of the Law
on the Government Representative as Null and Void" are in
compliance with the Constitution of the Republic of Lithuania.
3. To recognise that Item 5 of Chapter IV as formulated in
Article 2 of the 12 December 1996 Seimas of the Republic of
Lithuania Resolution "On Supplementation of the Republic of
Lithuania Civil Service List of Offices of 'A' Level Officials"
contradicts Article 6 of the Republic of Lithuania Law on
Officials.
4. To recognise that Items 3, 4, 6 and 7 of Chapter IV as
formulated in Article 2 of the 12 December 1996 Seimas of the
Republic of Lithuania Resolution "On Supplementation of the
Republic of Lithuania Civil Service List of Offices of 'A'
Level Officials" are in compliance with the Constitution of the
Republic of Lithuania and Article 6 of the Law on Officials.
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated on behalf of the Republic of
Lithuania.