Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of Part 3 of Article 20 of the
Republic of Lithuania Law on Officials with the
Constitution of the Republic of Lithuania
Vilnius, 10 March 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 party concerned-Genovaitė Rokickienė, an adviser at
the Public Administration Reforms and Local Government Affairs
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, on 20
February 1998 in its public hearing conducted the investigation
of Case No. 14/97 subsequent to the petition submitted to the
Court by the petitioner-the Alytus Regional District
Court-requesting to investigate if the norm of Part 3 of
Article 20 of the Republic of Lithuania Law on Officials was in
compliance with Parts 1 and 2 of Article 25 as well as Part 2
of Article 33 of the Constitution of the Republic of Lithuania.
The Constitutional Court
has established:
I
On 8 September 1997, the petitioner-the Alytus Regional
District Court-was investigating a civil case pursuant to a
claim of J. Krasnickas to the administration of the Alytus
county chief wherein he demanded to restore him to work. By its
interlocutory ruling the court suspended the investigation of
the case and appealed to the Constitutional Court with a
petition requesting to investigate whether the norm of Part 3
of Article 20 of the Republic of Lithuania Law on Officials
(Official Gazette "Valstybės Žinios" No. 33-759, 1995) was in
compliance with Parts 1 and 2 of Article 25 as well as Part 2
of Article 33 of the Constitution.
II
The petitioner grounds his request on the following
arguments.
Part 3 of Article 20 of the Law on Officials provides that
after officials of "B" level declare their disagreement in the
mass media, at political or other public events (except when
such declarations are made during the election campaign to the
Seimas, the office of the President of the Republic or the
local government councils) with the policy implemented by the
Seimas, the President of the Republic or the Government, or
with their decisions or actions, they tender their resignation
no later than within 14 days. Should they refuse to resign,
they shall be dismissed from office in accordance with the
procedure established by the labour legislation and shall be
considered dismissed from the civil service.
The norm of Part 3 of Article 20 of the Law on Officials
contradicts Parts 1 and 2 of Article 25 of the Constitution
wherein it is established that individuals shall have the right
to have their own convictions and freely express them, as well
as that individuals must not be hindered from seeking,
obtaining, or disseminating information or ideas. The
petitioner is of opinion that the contested norm of the Law on
Officials also contradicts Part 2 of Article 33 of the
Constitution which provides: "Each citizen shall be guaranteed
the right to criticize the work of State institutions and their
officers, and to appeal against their decisions. It shall be
prohibited to persecute people for criticism."
III
In the course of preparation of the case for the judicial
investigation, the representative of the party concerned
disagreeing with the petitioner, presented these
counter-arguments.
The chapter "The Individual and the State" of the
Constitution establishes the rights of the individual as a
civil-legal subject which must be guaranteed by the state.
Making use of these rights, the individual is in the
civil-legal relation with the state. Citizens of the Republic
of Lithuania have the right of choice consolidated by Part 1 of
Article 33 of the Constitution which provides: "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 representative of the party concerned maintained that
after he begins to serve in the civil service, a citizen passes
from the civil-legal relation with the state to administrative
relations. In representing the state, he acquires the status of
the official. Being in administrative-legal relations with the
state, the official has to observe the norms of administrative
law. Administrative-legal relations are those of authority and
subordination. Due to this, the nature of implementation of his
civil rights becomes different as his respective obligations
occur. He must assume part of responsibility for the
functioning of the democratic state himself, as well as be
loyal to the state authority which has received citizens'
mandates. In the case that an official, instead of discharging
his functions, publicly declares his disagreement with the
policy implemented by the state authority (the Seimas, the
President of the Republic, the Government), he passes from the
side of the state to that of the citizen of his own free will
and finds oneself de facto in the civil-legal relation with the
state again. Guaranteeing the right of choice provided for by
the Constitution, the legislator permits him to register
officially this change of legal relations by his resignation.
Should he refuse to do so, the law prescribes the duty for the
administrative body to dismiss him. Provided the citizen
considers that this happened against his will, and that the
dismissal from the civil service is either an administrative or
disciplinary penalty but not the official registration of the
change of factual relations, he is entitled to appeal to court.
IV
In the Constitutional Court hearing, the representative of
the party concerned virtually reiterated her counter-arguments
set out in writing. In addition, the representative of the
party concerned explained that under "A Dictionary of the
Lithuanian Language", the word "criticism" (Lith. kritika)
means an assessment and analysis of a certain work, as well as
pointing out some of its negative aspects. This is a positive
fact as while criticism continues there always remains a faith
that something could be changed into good. Citizens enjoy all
the rights granted by the Constitution and the European
Convention for the protection of Human Rights and Fundamental
Freedoms and are entitled to unrestricted freedom to criticise
the work of state institutions and officials. The right to
criticise is more restricted for officials than to other
citizens. After an individual begins his work in the civil
service, his status becomes different and he agrees to the
restriction of his civil rights. As a compensation for this,
the status of the official respectively provides him with
certain guarantees.
Officials have the right to criticise. They must express
their criticism in the way as regulated by the Law on
Officials, i.e. through all stages of subordination. The law
does not prohibit an official to speak publicly, inasmuch,
however, as it is within the limits of criticism, but it
prohibits to do so when this is a total disagreement with the
policy implemented by the institutions of authority, as there
must remain loyalty to the lawfully elected authority.
Meanwhile an official who declared his disagreement with the
policy implemented by the state authority no longer enjoys
confidence in him. The disagreement is equivalent to a total
refusal to discharge his functions and unwillingness to remain
in the administrative legal relation.
In the opinion of the representative of the party
concerned, in the case that an official participates in the
election campaign himself in attempt to receive citizens'
mandate, he may criticise the policy implemented by the state
authority within the limits of the rights provided for citizens
by the European Convention for the Protection of Human Rights
and Fundamental Freedoms as, in this case, he does not fulfil
his obligations as an official. During an election campaign, an
official is also entitled to take a holiday and take part in
the election campaign when he wishes to support another
candidate. In such a case he is enjoying respective civil
rights and retains the status of the official.
The Constitutional Court
holds that:
Part 3 of Article 20 of the Law on Officials provides:
"Officials of 'B' level, disagreeing with the policy
implemented by the Seimas, the President of the Republic or the
Government, or with their decisions or actions may resign if
the criticism of the above actions, passed through all stages
in accordance with the regular course of business, produces no
positive results. In the event that the above officials declare
their disagreement in the mass media, at political or other
public events (except when such declarations are made during
the election campaign to the Seimas, the office of the
President of the Republic or the local government councils), as
well as in the cases of non-approval of officials as provided
for by Article 17 of this law, they tender their resignation no
later than within 14 days. Should they refuse to resign, they
shall be dismissed from office in accordance with the procedure
established by the labour legislation and shall be considered
dismissed from the civil service."
The petitioner doubts whether the norm of Part 3 of
Article 20 of this law, whereby in the event that officials of
"B" level declare their disagreement in the mass media, at
political or other public events with the policy implemented by
the Seimas, the President of the Republic or the Government, or
with their decisions or actions, they tender their resignation
no later than within 14 days, is in compliance with Parts 1 and
2 of Article 25, as well as Part 2 of Article 33 of the
Constitution.
1. Parts 1 and 2 of Article 25 of the Constitution
stipulate:
"Individuals shall have the right to have their own
convictions and freely express them.
Individuals must not be hindered from seeking, obtaining,
or disseminating information or ideas."
Today's conception of the human rights attaches much
importance to the freedom of convictions and information among
other fundamental human rights and freedoms. The human right to
convictions and information is one of the fundamentals of a
democratic order, as well as a pre-condition of implementation
of other human rights and freedoms. For instance, citizens'
right to freely form societies, political parties and
associations, their right to assemble in peaceful meetings,
their right to manifest their religion or faith in practice,
their election right, their right to criticise the work of
state institutions and officials could not be implemented
unless the human right to have one's convictions and freely
express them, and that to seek, obtain or disseminate
information or ideas unhindered which are at the source of the
aforesaid rights and freedoms were guaranteed.
In a democratic state an individual is ensured the right
to freely form his opinion concerning public affairs, as well
as to freely discuss them. The commonest purpose of public
discussions on public life issues is to seek the truth which
the public is concerned about. People's political will which is
formed through discussions on the basis of various information
ensures functioning of the representative democracy.
The fact that the Constitution of this country
consolidates the freedom of convictions and information means
that the state is commissioned to guarantee and protect
people's right to have convictions and freely express them, as
well as the right to seek, obtain and disseminate information
unhindered. Along with this, the guarantees for an open society
and pluralistic democracy are consolidated.
2. Part 2 of Article 33 of the Constitution provides:
"Each citizen shall be guaranteed the right to criticize the
work of State institutions and their officers, and to appeal
against their decisions. It shall be prohibited to persecute
people for criticism."
Between these norms and the aforementioned norms of
Article 25 of the Constitution there is a connection as regards
the fact that Article 25 ensures the freedom of peoples'
convictions, while the freedom of information acquires a
concrete particularisation in Part 2 of Article 33, i.e., the
right to express critical opinions or views, to disseminate
critical information in respect to the work of state
institutions or officials is guaranteed for citizens. The
constitutionally established prohibition to persecute people
for criticism is a solid guarantee for the implementation of
this constitutional right. Moreover, the officials may be held
criminally responsible for people's persecution for criticism.
One should note that the function of the norms of Part 2
of Article 33 of the Constitution does not limit itself to
guaranteeing citizens' subjective right to criticise the work
of state institutions or officials. The said constitutional
norms are also linked with the implementation of the
fundamental provision consolidated in the chapter entitled "The
State of Lithuania" of the Constitution whereby state
institutions serve for the people.
3. The freedom to express convictions as well as the
freedom of information is not unrestricted. Respectively, Part
3 of Article 25 of the Constitution provides that freedom to
express convictions, as well as to obtain and disseminate
information, may not be restricted in any way other than as
established by law, when it is necessary for the safeguard of
the health, honour and dignity, private life, or morals of a
person, or for the protection of constitutional order.
Thus, it is established in this constitutional norm that
restriction of expression of convictions and that of the
freedom of information must always be conceived as a measure of
exceptional nature. The exclusiveness of the restriction means
that one may not interpret the constitutionally established
possible fundamentals of the restriction by expanding them. The
necessity criterion as consolidated therein pre-supposes the
fact that in every instance the nature and scope of the
restriction must be in conformity to the aim sought (thus
termed requirement of balance).
Under Part 4 of Article 25 of the Constitution, freedom to
express convictions or impart information shall be incompatible
with criminal actions-the instigation of national, racial,
religious, or social hatred, violence, or discrimination, the
dissemination of slander, or misinformation.
The Constitution guarantees the right for citizens to
criticise the work of state institutions and officials, and
this is a particularised form of freedom of convictions and
information. Therefore one is to conclude that this
constitutional right of citizens may be restricted by following
the discussed above conditions determined by Article 25 of the
Constitution. Alongside, one can notice some peculiarities of
the norm of Part 2 of Article 33 of the Constitution: first, a
special subject of the right guaranteed in this norm is the
citizen; second, the nature of this subjective right which is
criticism is also distinctive; third, the addressee and the
matter of the criticism are defined, which is the work of state
institutions and officials. All this, it goes without saying,
conditions certain peculiarities of the legal regulation, in
particular, when one determines the legal status of the
official, as well as when one defines the scope and procedure
whereby he may implement his civil right to criticise.
4. The discussed constitutional norms are in line with the
provisions of the international legal acts concerning the
protection of expression of people's convictions and freedom of
information. For instance, Article 10 of the European
Convention for the Protection for Human Rights and Fundamental
Freedoms, which was ratified by the Seimas, promulgates:
"1. Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive and
impart information and ideas without interference by public
authority and regardless of frontiers. This article shall not
prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
2. The exercise of these freedoms, since it caries with it
duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society, in
the interests of national security, territorial integrity or
public safety, for the prevention of disorder or crime, for the
protection of health or morals, for the protection of the
reputation or rights of others, for preventing the disclosure
of information received in confidence, or for maintaining the
authority and impartiality of the judiciary."
In the practice of the European Commission for Human
Rights and the European Court of Human Rights as regards the
application of Article 10 of the Convention the human right to
express one's ideas and convictions freely is emphasised as
being of exceptional importance for democracy. Alongside,
attention is drawn to the fact that this article provides the
states with more freedom of actions if compared to other
articles of the Convention, as therein it is stressed that
making use of these freedoms is connected with the duties and
responsibility, therefore they may depend on a variety of state
control forms. Besides, in the cases investigated by the
aforesaid institutions wherein state officials complained about
their violated rights which were consolidated by Article 10 of
the Convention because of their special official position, one
noted that the state was entitled to restrict the right of
state officials to express their ideas and convictions freely
insofar as this was connected with their official duties and
functions.
The civil service in democratic states has common features
of fundamental character that are in line with the nature of
the democratic state. Alongside, it goes without saying, the
legal regulation of the civil service differs in many respects
in various states. In comparative administrative law, taking
account of the common traits as well as differences, the legal
regulation of the civil service in democratic states is
classified on the basis of various aspects. For example, the
following categorisation of the main duties of officials is
presented: (1) duty to treat work in a state institution as a
public service performed in observance of constitutional values
and the laws; (2) duty to guarantee that the civil service is
apolitical or neutral; (3) duty to act impartially is
understood as an objective and proper accomplishment of
instructions; (4) duty to accomplish administrative
instructions in a professional way.
In democratic states political neutrality of officials is,
as a rule, sought by establishing the following restrictions in
laws: prohibition to follow one's political views when
professional issues are being decided (in all democratic
states), prohibition to go on strike (Italy, France,
Switzerland, Germany), prohibition to take part in political
rallies (the United Kingdom, Italy, Germany), prohibition to
declare one's political views when one is accomplishing his
officials duties (the United Kingdom, Italy, the USA, France,
Switzerland, Germany).
In attempt to ensure the accomplishment of duties in every
way possible, some other civil rights of officials are
restricted too (e.g. the right to associations, that to hold
position and discharge functions in political parties), as well
as duty is established to act in a self-sacrificing way under
certain circumstances.
The doctrine of administrative law of many states
especially emphasises the fact that in the event of a dispute
between an administrative body and its official, the rights of
the latter ought to be protected in pursuance of judicial
procedures.
5. The fundamentals of state administration in this
country are determined by the fundamental provision of the
Constitution that the State of Lithuania shall be an
independent and democratic state. Fundamental principles of the
civil service characteristic of democratic states stem from the
Constitution which is an integral act.
The relations of the civil service are regulated by the
Law on Officials. This law defines as to what the civil service
is, as well as establishes the legal status of officials: the
procedure of employment in the civil service, the rights,
duties, responsibility of, and guarantees for the officials, as
well as the principles of termination of the relations
pertaining to this service.
The Law on Officials provides that 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 governments in
accordance with the list of offices of the civil service. The
officials of the civil service constitute a professional body
of officials. Officials are not politicians. Officials stand
out of other employees in that their work is influential on the
activities of the respective institution according to the
competence of this institution. Taking account of the fact as
to the level of public institutions where the duties are
accomplished, officials are categorised into state and local
government officials, while these respectively into either "A"
or "B" level.
In the context of the case at issue, one should note that
state officials of "B" level are employees, appointed by the
Seimas, the President of the Republic, the Government, their
structural divisions, ministries, Government institutions
(departments, agencies, inspectorates), departments, agencies,
inspectorates, and other institutions of the civil service
founded at ministries, as well as the other employees specified
in the list of offices. Local government officials of "B" level
are 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. Officials of
"B" level are employed in the civil service in accordance with
the procedure established by the labour legislation and other
laws, however, the above officials may be employed only after
they have taken part in a public competition or passed an
examination to attest their qualification.
The purpose of the civil service, social importance of its
tasks conditions corresponding duties of officials. Under the
law, officials must: observe the Constitution and the laws;
implement Government decrees, other legal acts which regulate
their functions as well as 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 in accordance with the procedure
established by the Government (local government officials-on
co-ordination with the Association of Local Governments of
Lithuania); keep confidential the state and official secret
established by standard 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 and local governments; declare their property and
income in accordance with the procedure established by law;
give notice to the head official and, upon his consent, refrain
from fulfilling a task in the event of a conflict between
personal property interests and the task, or if there are
arguments to the effect that personal circumstances of private
character may undermine the prestige of the civil service. One
is to note that the law establishes in a commanding way that
officials of "B" level must refrain from engaging in public or
political activities within the office premises and during
working hours.
In addition, in attempt to ensure effective and impartial
discharge of duties certain prohibitions are established for
officials which are not directly connected with the performance
of their service, as, for instance, officials are prohibited
from: being employed in other enterprises, offices and
organisations, being members of their managing bodies,
advisers, experts or consultants (unless the law provides
otherwise), being employed in another elective, appointive or
held post with the exception of that of a scientist or teacher
in state institutions of science and studies and those of
education and culture as well as the post of a doctor in state
medical institutions; receiving any other salary with the
exception of payment for creative activities. Officials are
also prohibited from: holding in trust more than 10 per cent of
securities of one enterprise; representing the interests of
other domestic and foreign enterprises, offices and
organisations, and going abroad on their invitation; going on
strike; using the office property for other than official
business; using working hours and the opportunities provided by
the office for other than official purposes; receiving presents
for the performance of official duties, unless this is provided
for by international protocol. To the body of officials the
requirements and restrictions of the Republic of Lithuania Law
on Co-ordination of Public and Private Interests in the Civil
Service are also to be applied. The laws provide for respective
responsibility of officials.
Thus the official is a participant of competence
implementation of respective state or local government
institutions. Taking account of the peculiarities of the legal
status of officials, certain restrictions of their civil rights
are possible. From the legal standpoint it is significant that
a person, after he becomes an official, commits himself to
perform his duties properly, and agrees with the restrictions
of his rights and freedoms which are provided for in the law.
In this case the fact is of importance that, as a rule, the big
requirements for officials as well as the restrictions applied
to them are counterbalanced by respective rights guaranteed to
them, as well as a system of incentives and awards, together
with remuneration and other social guarantees.
The Constitutional Court, summarising the arguments set
forth, notes that, in deciding the question of compliance of
the contested norm with the Constitution, one has to take into
consideration the protection requirements for the freedom of
people's convictions and information, as well as the
constitutional guarantees for citizens' right to criticise the
work of state institutions and officials, as well as the
peculiarities of the relations regulated by the Law on
Officials.
6. As it was mentioned, Part 3 of Article 20 of the Law on
Officials provides that officials of "B" level, disagreeing
with the policy implemented by the Seimas, the President of the
Republic or the Government, or with their decisions or actions
may resign if the criticism of the above actions, passed
through all stages in accordance with the regular course of
business, produces no positive results. In the event that the
above officials declare their disagreement in the mass media,
at political or other public events (except when such
declarations are made during the election campaign to the
Seimas, the office of the President of the Republic or the
local government councils), as well as in the cases of
non-approval of officials as provided for by Article 17 of this
law, they tender their resignation no later than within 14
days. Should they refuse to resign, they shall be dismissed
from office in accordance with the procedure established by the
labour legislation and shall be considered dismissed from the
civil service.
6.1. When elucidating the content of these legal norms,
one should note that the state authority institutions-the
Seimas, the President of the Republic, the Government-act
within the competence established to them by the Constitution
and which is particularised in the laws. The policy
accomplished by the Seimas, the President of the Republic, or
the Government is the competent activity of these state
institutions which is devoted to achieve respective objectives
or to solve tasks which are of social significance. Various
factors determine the success of adopted decisions on this
level of political power, however, in all cases the body of
officials plays the role of utmost importance. Therefore the
requirements for the lawfulness of their actions, professional
competence and ethics are applied to officials.
The Law on Officials consolidates the principle of
hierarchical subordination in the civil service. Under Article
15 of the Law on Officials, officials shall have the right to
refuse to fulfil a task or an instruction only in the event
that, in their opinion, the given task or instruction is not in
conformity with the law. The official shall notify the head of
the institution thereof and shall fulfil the task or
instruction only if so requested in writing by the head of the
institution, except in cases where the fulfilment of the task
or instruction would constitute a criminal deed or an
administrative violation. The official must no later than on
the next working day present the superior head official with a
justified statement declaring that he disagrees with the task
or instruction. After comparing Article 15 with Part 3 of
Article 20 of the said law, one can perceive that the latter
does not include the refusal of an official of "B" level to
fulfil an official task or instruction, as it is in Article 15
where the official relations of such character are regulated.
Therefore, it is to be concluded that Part 3 of Article 20
regulates the relations in the situations when an official of
"B" level performs his official duties and fulfils instructions
given to him but declares that he disagrees with the policy
implemented by the Seimas, the President of the Republic, and
the Government, as well as their decisions and actions. This is
an important aspect of the legal regulation at issue.
6.2. From the principle of the hierarchical subordination
principle, usually the requirement for officials is derived to
refrain from public criticism of the higher state institutions.
In democratic states the relations of such nature are commonly
defined and assessed in accordance with the norms of
professional ethics. The requirement to observe professional
ethics along with other duties of officials is established by
Item 4 of Article 14 of the Law on Officials. In Lithuania the
regulations for professional ethics, however, are not
systematised and the content of the said legal norm is not
particularised either. Due to this, the Law on Officials is not
sufficiently clear whether the norm of Article 14 includes
certain relations connected with the criticism of the work of
the higher state institutions or officials, or whether such
relations are regulated individually by Part 3 of Article 20 of
the said law.
It is to be noted that Part 3 of Article 20 contains
several interrelated but essentially independent norms. For
example, one of them stipulates that officials of "B" level,
disagreeing with the policy implemented by the Seimas, the
President of the Republic or the Government, or with their
decisions or actions may resign if the criticism of the above
actions, passed through all stages in accordance with the
regular course of business, produces no positive results. From
the content of this norm one would be able to conclude that
officials of "B" level are permitted to criticise the work of
the higher institutions or officials. Only for the cases of
criticism of the work of 3 state institutions mentioned
therein, i.e. the Seimas, the President of the Republic, the
Government, a special procedure has been established: the
officials may pass their disagreement with the policy
implemented by the Seimas, the President of the Republic or the
Government, or with their decisions or sanctions through all
stages in accordance with the regular course of business.
Taking account of the legal status of the official, such a
procedure of criticism presentation as provided for by the law
is in conformity to the Constitution. Under this legal norm,
sanctions are not applied to the official for such criticism.
Meanwhile, another norm, the one which is being
challenged, stipulates that officials of "B" level are
dismissed from office in the event that they declare their
disagreement in the mass media, at political or other public
events with the policy implemented by the Seimas, the President
of the Republic or the Government, or with their decisions or
actions. Thus, under this norm, the service of the official of
"B" level is incompatible with the public criticism of the
aforementioned institutions.
6.3. It is possible to draw a conclusion from the
exposition of the norms of Part 3 of Article 20 of the Law on
Officials that the notions disagreement and criticism are
considered identical therein. However, when interpreting the
content of these norms, one cannot directly state this.
One should note that the notions criticism and
disagreement are explained differently by "A Dictionary of
Contemporary Lithuanian" too. For instance, the word criticism
(Lith. kritika) means analysis, assessment and, especially,
exposition of shortcomings. Thus criticism may be both negative
and positive. When officials publicly express positive
criticism regarding the work of respective higher institutions
or officials, this in fact means his approval of the policy
implemented by these institutions of power, as well as an
attempt to help to find a positive and better solution by means
of discussions and debates. The objectives that the public is
concerned about may also be sought by means of negative
criticism by exposing shortcomings of the work of institutions
of power or that of officials. Publicly declared negative
criticism by officials, however, may damage the prestige of the
institutions of state authority in greater extent, and,
depending on the circumstances, might mean disagreement with
the policy implemented by the Seimas, the President of the
Republic and the Government, or with their decisions or
actions.
Disagreement (Lith. nesutikimas) means discord,
dissension. Therefore, taking account of the content of the
norm of Part 3 of Article 25 of the Constitution, a conclusion
is to be drawn that such publicly expressed disagreement with
the policy implemented by the Seimas, the President of the
Republic and the Government, or with their decisions or
actions, when after its declaration the limit of loyalty to the
Constitution is crossed, would not be tolerated and in certain
cases would be incompatible with the civil service.
When assessing Part 3 of Article 20 of the said law, one
should note certain vagueness in formulating the matter of
disagreement as disagreement with the policy implemented by the
Seimas, the President of the Republic and the Government, or
with their decisions or actions. As it was mentioned above, the
policy implemented by the Seimas, the President of the Republic
and the Government constitutes overall activities of these
institutions of power within the competence established to them
by the Constitution and particularised in the laws. Competent
decisions and actions of these institutions of power are an
integral part of the policy implemented by them. However, after
Part 3 of Article 20 indicated that they are independent
matters of disagreement, it might seem that the sanctions
provided for therein are applicable not only in cases of public
declarations of officials that they disagree with the policy
implemented by the Seimas, the President of the Republic and
the Government or their decisions but also with their any
actions (e.g. those linked with private life) in general.
Thus, by establishing the restrictions on the civil right
of officials of "B" level to criticise the work of state
institutions or officials, the legislator neither took account
of the differences of the notions disagreement and criticism
employed therein, nor did he define the matter of disagreement,
while for all cases he established the same legal effects. This
contradicts the balance requirement concerning restrictions of
people's and citizens' constitutional rights, thus this is the
essential deficiency of the contested legal norm.
6.4. The Constitutional Court also draws one's attention
to the vagueness of the discussed law concerning the subjects
with respect to whom criticism or disagreement is expressed, as
well as the subjects to whom the contested legal norm is
applied.
For instance, the law deals with the disagreement with the
policy implemented by the Seimas, the President of the Republic
or the Government, or with their decisions or actions. The
Seimas and the Government are, of course, institutions of joint
authority, they implement their policy by passing various
decisions. Meanwhile, from the standpoint of the legal
language, it is not clear as to the meaning of actions of joint
authority institutions. Due to this necessity occurs to
interpret this legal norm. In this case it would be logical to
dwell upon the actions of particular persons, i.e. those of
Seimas members or Government members. Such an interpretation
would, however, be an expansive interpretation of the legal
norm restricting the civil right of officials. It would create
the grounds to apply this norm even in such cases when an
official of "B" level publicly criticises the actions of
individual Seimas members and ministers or states his
disagreement with them.
The contested legal norm prescribes that the legal effects
provided for therein appear after officials of "B" level
declare their disagreement in the mass media, at political or
other public events with the policy implemented by the Seimas,
the President of the Republic or the Government, or with their
decisions or actions except when such declarations are made
during the election campaign to the Seimas, the office of the
President of the Republic or the local government councils.
Unless the latter stipulation is regulated in more detail, or
co-ordinated with the norms of the laws regulating the
elections of the aforesaid institutions wherein prohibitions
are established to make advantage of one's official position
during the election campaign, the limits of validity of the
contested legal norm with respect to the subjects to whom this
stipulation is applied, as well as with respect to their
actions, become indistinct.
6.5. By generalising the arguments set forth in this
ruling, a conclusion is to be drawn that the legal notions as
employed by Part 3 of Article 20 of the Law on Officials
evidently lack clarity. On the basis of the linguistic,
logical, systematic interpretation of the norms of the law, one
cannot unequivocally comprehend the disposition of the
contested norm. Such imprecise legal regulation creates
preconditions for such cases when an administrative body, in
applying this norm, establishes the content of the norm by
itself. On the other hand, even though the disposition of the
norm is vague, the norm provides for the imperative sanction,
i.e., the official must resign, while should he refuse to
resign, he is dismissed from office.
Due to such vagueness of the legal regulation, as well as
correlative disagreement of the disposition of the norm and the
sanction in the civil service, legal vagueness and
indetermination occur, while the protection of the rights of
officials is not guaranteed. Such deficient regulation is not
in line with the objectives sought in this case, i.e. those of
the lawfulness of state administration, stability, confidence
and effectiveness. It also contradicts the constitutional
principles of protection of the human rights, and one of such
principles is that restrictions may be established only by law
by not restricting the balance between the sought objective and
the restriction of the right.
Taking account of the motives set forth, one is to
conclude that the contested norm of Part 3 of Article 20 of the
Law on Officials contradicts 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:
To recognise that the norm of Part 3 of Article 20 of the
Law on Officials in the scope whereby officials of "B" level
declare their disagreement in the mass media, at political or
other public events (except when such declarations are made
during the election campaign to the Seimas, the office of the
President of the Republic or the local government councils)
with the policy implemented by the Seimas, the President of the
Republic or the Government, or with their decisions or actions,
they tender their resignation no later than within 14 days,
while should they refuse to resign, they shall be dismissed
from office contradicts Parts 1 and 2 of Article 25, as well as
Part 2 of Article 33 of the Constitution of the Republic of
Lithuania.
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated on behalf of the Republic of
Lithuania.