Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of Articles 14, 251, 26, 30, 33,
34, 36, 40, 51, 56, 58, 59, 66, 69, 691, and 73 of
the Republic of Lithuania Law on Courts with the
Constitution of the Republic of Lithuania
Vilnius, 21 December 1999
The Constitutional Court of the Republic of Lithuania,
composed of the Judges of the Constitutional Court Egidijus
Jarašiūnas, Egidijus Kūris, Zigmas Levickis, Augustinas
Normantas, Vladas Pavilonis, Jonas Prapiestis, Vytautas
Sinkevičius, Stasys Stačiokas, and Teodora Staugaitienė,
with the secretary of the hearing-Daiva Pitrėnaitė,
in the presence of:
the representatives of the petitioner-a group of members
of the Seimas of the Republic of Lithuania-Juozas Bernatonis
and Česlovas Juršėnas, both are Seimas members,
the representative of the party concerned-the Seimas of
the Republic of Lithuania-Jurgis Orlauskas, a senior consultant
to the Law Department of the Chancery of the Seimas, and the
vice-minister of justice Gintaras Švedas,
pursuant to Part 1 of Article 102 of the Constitution of
the Republic of Lithuania and Part 1 of Article 1 of the
Republic of Lithuania Law on the Constitutional Court, on 24
November 1999 in its public hearing conducted the investigation
of Case No. 16/98 subsequent to the petition submitted to the
Court by the petitioner-a group of members of the Seimas of the
Republic of Lithuania-requesting to investigate if Articles 14,
251, 26, 30, 33, 34, 36, 40, 51, 56, 58, 59, 66, 69, 691, and
73 of the Republic of Lithuania Law on Courts were in
conformity with Part 2 of Article 5, Item 11 of Article 84,
Part 2 of Article 109, Article 112 and Part 1 of Article 114 of
the Constitution of the Republic of Lithuania.
The Constitutional Court
has established:
I
On 31 May 1994, the Seimas of the Republic of Lithuania
adopted the Republic of Lithuania Law on Courts (Official
Gazette Valstybės žinios, 1994, No. 46-851; hereinafter
referred to as the Law) which subsequently was amended and
supplemented. The petitioner-a group of Seimas members-requests
to investigate if certain norms of the said law are in
conformity with Part 2 of Article 5, Item 11 of Article 84,
Part 2 of Article 109, Article 112 and Part 1 of Article 114 of
the Constitution.
II
The request of the petitioner is based on the following
arguments.
The norms of Articles 14, 251, 26, 30, 33, 34, 36, 40, 51,
56, 58, 59, 66, 69, 691, and 73 of the Law creates direct and
indirect opportunities for the Minister of Justice to interfere
with the activities of courts. Such provisions contradict the
provision of Article 109 of the Constitution whereby, while
administering justice, judges and courts shall be independent.
In the opinion of the petitioner, the provision of Part 2
of Article 33 of the Law whereby the judges of district and
regional courts shall be appointed by the President of the
Republic on the proposal of the Minister of Justice, as
recommended by the Council of Judges, that of Part 3 of Article
33 whereby chairpersons of district and regional courts shall
be appointed from among the appointed judges by the President
of the Republic on the proposal of the Minister of Justice, as
recommended by the Council of Judges, that of Part 4 of the
same article whereby deputy chairpersons of district and
regional courts or court division chairpersons shall be
appointed by the Minister of Justice, that of Part 2 of Article
34 whereby judges of the Court of Appeal and from them-its
chairperson shall be appointed by the President of the Republic
on the proposal of the Minister of Justice and on the
recommendation of the Council of Judges and with the approval
of the Seimas, that of Part 3 of Article 34 whereby division
chairpersons of the Court of Appeal from among the appointed
judges shall be appointed by the Minister of Justice from the
appointed judges on the proposal of the Chairperson of this
court, contradict the norms of Part 2 of Article 5, Item 11 of
Article 84 and Part 2 of Article 109 of the Constitution.
The petitioner is also of the opinion that the norms of
Parts 5, 6, 7 and 8 of Article 56 of the Law whereby the judges
of district and regional courts and those of the Court of
Appeal, as well as chairpersons of the said courts, shall be
dismissed from office by the President of the Republic on the
proposal of the Minister of Justice, and that deputy and
division chairpersons of the said courts shall be dismissed
from office by the Minister of Justice on the recommendation of
the Director of the Department of Courts, contradict the
aforesaid norms of the Constitution.
The Constitution does not provide for the proposal of the
Minister of Justice regarding appointment and dismissal of
judges. The mandatory proposal of the Minister of Justice as
established by these norms restricts the powers of the
President of the Republic. Part of the powers of the President
of the Republic are taken over by the Minister of Justice. This
violates the principle of subordination established in Article
96 of the Constitution whereby the ministers, in directing the
spheres of administration entrusted to them, shall be
responsible to the President of the Republic. Part 5 of Article
112 of the Constitution provides that a special institution of
judges provided by law shall submit recommendations to the
President concerning the appointment of judges, as well as
their promotion, transference, or dismissal from office.
Because of the disputed norms of the Law, in reality such an
institution of judges submits recommendations to the Minister
of Justice but never to the President of the Republic.
The petitioner maintains that the right of the Minister of
Justice to submit the candidature for the Prosecutor General as
established in Part 1 of Article 66 of the Law might be
assessed as interference of the executive with the activity of
courts. The norm of this article granting the powers of the
Legal Committee of the Seimas to submit the candidature of the
Prosecutor General to the Seimas is also disputable as thereby
the powers of the Seimas to appoint and dismiss chief officers
of state institutions as established in Item 5 of Article 67 of
the Constitution are restricted.
The petitioner is of the opinion that the provisions of
Part 2 of Article 14, Parts 1 and 2 of Article 251, Part 1 of
Article 26, Part 1 of Article 30, Part 1 of Article 36, Article
40, Part 3 of Article 51, Part 1 of Article 58, Part 4 of
Article 59, Part 2 of Article 69 and Part 2 of Article 73 of
the Law create direct and indirect opportunities for the
Minister of Justice to interfere with the activity of courts,
therefore they contradict Part 2 of Article 109 of the
Constitution.
In the opinion of the petitioner, the provision of Article
691 of the Law whereby the Department of Courts shall act under
the Ministry of Justice means that the said department becomes
a constituent part of the executive.
The petitioners point out that most of the said norms of
the Law contradict Part 2 of Article 5, Item 11 of Article 84,
Part 2 of Article 109, Article 112 and Part 1 of Article 114 of
the Constitution.
III
In the course of the preparation of the case for judicial
investigation, an explanation of Dr. G. Švedas, a vice-minister
of justice, was received. It is pointed out therein that
neither the Constitution nor the Law on the Procedure for the
Enforcement of the Constitution provides for the ways by which
the Seimas might implement the reform of courts, therefore the
Seimas may freely choose the ways and procedure of
implementation of the reform. Before he appoints judges, the
Minister of Justice, first of all finds out if the candidature
of the person conforms to the requirements raised for a judge.
On receiving a positive conclusion, the minister submits the
proposal to the President of the Republic concerning
appointment of this person as a judge. Then the President of
the Republic may ask for advice from the Council of Judges
concerning the appointment of this person as a judge. After the
advice has been given to him, the President of the Republic
adopts a decision regarding the appointment of the person as a
judge. An analogous procedure is applied in cases when
chairpersons of courts are appointed or when judges are
dismissed from office. The President of the Republic may reject
the proposal of the Minister of Justice even without any
consultation with the Council of Judges. He is also not
obligated to appoint a person as a judge or the chairperson of
a court even in cases when the Council of Judges approves of
such an appointment. The norms of the Law regarding appointment
and dismissal of judges are in compliance with the norms of the
Constitution. It is pointed out in the explanation of the
ministry that that in the Constitutional Court decision of 30
December 1994 the functions of the judge and the chairperson
were singled out and it was interpreted therein that the
independence guarantees regarding termination of powers are
applicable "only to the Supreme Court judges but not to the
Chairperson or Deputy Chairperson of this Court". The proposal
of the Minister of Justice does not violate the principle of
subordination established in Article 96 of the Constitution,
however it is the obligation of the Minister of Justice to
submit the proposal that implements the constitutional
principles of subordination of ministers and their
responsibility before the President of the Republic.
It is maintained in the explanation that the petitioner
interprets the constitutional provision prohibiting "persons
and institutions to exercise the powers of the President of the
Republic" in an unreasonably extended manner as the proposal of
the Minister of Justice regarding appointment or dismissal of
judges is neither an act of appointment nor that of dismissal
of a judge neither by its content nor its form. The statement
of the petitioner that "in reality this special institution of
judges submits recommendations to the Minister of Justice but
never to the President of the Republic" contradicts the reality
as the request for the recommendation is submitted to the
Council of Judges by the President of the Republic but not by
the Minister of Justice, and the Council of Judges expresses
its opinion for the President of the Republic.
The provision of Part 1 of Article 66 of the Law on the
procedure of the appointment of the Prosecutor General is in
compliance with Item 5 of Article 67 of the Constitution. In
its ruling of 1 October 1993, the Constitutional Court noted
that "the Seimas has the right to establish the procedure for
its activities by its Statute. The Seimas is free to make
decisions within the limits established by the Constitution of
the Republic of Lithuania". It is provided for in the Statute
of the Seimas that the directions of activities and the powers
of the Seimas committees shall be established by the Statute
and other laws, therefore the obligation of the Legal Committee
of the Seimas to submit a candidature of the Prosecutor General
to the Seimas as established by the said article is in
compliance with the Statute of the Seimas. Thus Part 1 of
Article 66 of the Law on Courts is in compliance with Item 5 of
Article 67 and Article 76 of the Constitution.
The independence of judges and courts is guaranteed only
in the phase of implementation of justice. In the
constitutional justice of Lithuania the independence of judges
and courts and the content of its guarantees has extensively
been discussed. The Constitution establishes only the main
functions of state powers and the principles of their
activities. Its systematic analysis permits to assert that the
separation of powers may not be comprehended in its absolute
sense. In this way a balance between different state powers is
established whose guarantee is cooperation of powers and their
independence in the course of performance of their
constitutional functions. It is concluded in the explanation
that the norms of the articles of the Law pointed out by the
petitioner wherein the competence of the Minister of Justice is
provided for are in conformity with the Constitution.
IV
In the course of the preparation of the case for judicial
investigation, written explanations of Assoc. Prof. Dr. V.
Nekrošius, Vice-dean of the Law Faculty of Vilnius University,
and Assoc. Prof. Dr. T. Birmontienė, Head of the Constitutional
Law Department of the Public Administration Faculty of the Law
Academy of Lithuania, were received.
In the explanation of V. Nekrošius it is maintained that
the disputed norms of the Law are in compliance with the
Constitution.
In the opinion of T. Birmontienė, the disputed norms of
Articles 33 and 34 of the Law, Part 3 of Article 51, Part 4 of
Article 59, the norm of Part 1 of Article 66 and the norm of
Article 73 of the Law contradict the Constitution.
V
At the Constitutional Court hearing the representatives of
the petitioner J. Bernatonis and Č. Juršėnas virtually
reiterated the arguments set forth in the request of the
petitioner.
VI
At the Constitutional Court hearing the representative of
the party concerned J. Orlauskas explained that the functions
of the Ministry of Justice in the sphere of the control over
judges' conduct should not be assessed as a violation of the
independence of judges. The representative of the party
concerned G. Švedas virtually reiterated the arguments set down
in the explanations of the Ministry of Justice to the
Constitutional Court.
In the opinion of the representatives of the party
concerned, the norms of the Law are in compliance with the
Constitution.
The Constitutional Court
holds that:
The petitioner-a group of Seimas members-requests to
investigate whether Articles 14, 251, 26, 30, 33, 34, 36, 40,
51, 56, 58, 59, 66, 69, 691, and 73 of the Law are in
compliance with Part 2 of Article 5, Item 11 of Article 84,
Part 2 of Article 109, Article 112 and Part 1 of Article 114 of
the Constitution.
In the argumentative part of the petition the petitioner
specifies his request and points out that only individual parts
or certain norms of the said articles of the Law contradict the
Constitution. The Constitutional Court will investigate the
compliance of the individual parts and the norms set down
therein with the Constitution, while taking account of the
arguments set forth in the petition.
In addition, it needs to be noted that even though the Law
was amended and supplemented later, the same wordings of the
norms and provisions whose compliance with the Constitution was
challenged by the petitioner at the Constitutional Court remain
in force.
I
1. The petitioner contests the compliance of the norms of
the Law regulating relations of courts with other state
institutions or officials with the Constitution. The
constitutionality of these norms may be assessed only after
taking account of the purpose and place of courts in the system
of institutions of state power established in the Constitution.
Under the Constitution, the state power is organised and
implemented on the basis of the principle of separation of
powers. This principle means that the legislature, the
executive and the judiciary are separate, sufficiently
independent and that there must be a balance between them.
Every institution of power enjoys competence according to its
purpose. The concrete content of such competence depends on the
fact as for to which state power this institution belongs, its
place among other state institutions, the relation of its
powers with those of other institutions of state power.
Part 1 of Article 109 of the Constitution provides that in
the Republic of Lithuania, the courts shall have the exclusive
right to administer justice. Administration of justice is the
function of courts and it determines the place of the judiciary
in the system of institutions of state power and the status of
judges. Neither any other state institution nor any other state
official may exercise this function.
2. Part 2 of Article 109 of the Constitution provides:
"While administering justice, judges and courts shall be
independent."
The independence of judges and courts is one of essential
principles of a democratic state. The role of the judiciary in
such a state is that, while administering justice, the courts
must ensure the implementation of law expressed in the
Constitution, the laws and other legal acts, to guarantee the
rule of law and to protect human rights and freedoms.
It needs to be noted that the independence of judges and
courts is not an end in itself: this is a necessary condition
of protection of human rights and freedoms. Part 1 of Article
30 of the Constitution provides that any person whose
constitutional rights or freedoms are violated shall have the
right to appeal to court. Part 2 of Article 31 of the
Constitution provides for the right for every indicted person
to a fair and public hearing by an independent and impartial
court. Therefore, such independence is not a privilege, but one
of the principal duties of judges and court, ensuing from the
human right to an impartial arbiter in a dispute guaranteed by
the Constitution, must necessarily be the criterion guiding the
assessment of the independence of judges and court
(Constitutional Court ruling of 6 December 1995).
3. Taking account of the strife for an open, just, and
harmonious civil society and law-governed state entrenched in
the Preamble to the Constitution, Article 5 and the norms of
other articles of the Constitutions establishing the separation
of powers, it is possible to distinguish two inseparable
aspects of the principle of the independence of judges and
courts.
This principle, first of all, means the independence of
judges and courts when they administer justice. Under Article
109 of the Constitution, while investigating cases, judges
shall be independent and obey only the law. Part 1 of Article
114 of the Constitution provides that institutions of state
power and administration, members of the Seimas and other
officers, political parties, public organisations, and citizens
shall be prohibited from interfering with the activities of a
judge or the court, and violation of this shall incur liability
provided for by the law. The procedural independence of judges
is a necessary condition of impartial and fair investigation of
a case.
On the other hand, judges and courts are not sufficiently
independent if the independence of courts as the system of the
institutions of the judiciary is not ensured. According to the
principle of separation of powers, all powers are autonomous,
independent, and capable of counterbalancing each other. The
judiciary, being independent, may not be dependent on the other
powers also because of the fact that it is the only power
formed on the professional but not political basis. Only being
autonomous and independent of the other powers, the judiciary
may implement its function, which is administration of justice.
The all-sufficiency and independence of the judiciary
presupposes its self-government. The self-government of the
judiciary also includes organisation of the work of courts and
the activities of the professional corps of judges.
The organisational independence of courts and their
self-government are the main guarantees of actual independence
of the judiciary. A constitutional duty of the other
institutions of power is to respect the independence of courts
established in the Constitution. It needs to be noted that the
activities of courts are guaranteed by the Constitution, and
the laws and other legal acts that are in conformity with the
Constitution. A duty of the state is to create proper work
conditions to courts. However, this does not mean that in the
course of establishing particular powers of the other
institutions of power as regards their relations with the
judiciary it is permitted to deny the separation of powers
established in the Constitution and the essence of the
judiciary as all-sufficient power which acts independently from
the other powers.
While ensuring the independence of judges and courts, it
is of much importance to separate the activity of courts from
that of the executive. The Constitution prohibits that the
executive interfere with administration of justice, exert any
influence on courts or assess the work of courts regarding
investigation of cases, let alone give instructions as to how
justice must be administered. Supervision of courts and
application of disciplinary measures to judges must be
organised in such a manner so that the actual independence of
judges might not be violated.
Under the Constitution, the activity of courts is not and
may not be considered an area of administration ascribed to any
institution of the executive. Only the powers designated to
create conditions for the work of courts may be granted to
institutions of the executive. For their activities the courts
are not accountable to any other institutions of power nor any
officials. It is only an independent institutional system of
courts that may guarantee the organisational independence of
courts and procedural independence of judges.
The material basis of the organisational independence of
courts is their financial independence of any decisions of the
executive. It needs to be noted that the financial independence
of courts is ensured by such legal regulation when finances for
the system of courts and every court are allocated in the state
budget approved by the law. The guarantee of the organisational
independence of courts is one of essential conditions to ensure
human rights.
4. The judge is also obligated to be independent by his
oath which he must make before taking office under Part 6 of
Article 112 of the Constitution. The judge swears allegiance to
the Republic of Lithuania, swears to administer justice only
pursuant to laws, to defend human rights, freedoms and
legitimate interests, always act honourably, humanely and never
let his behaviour cause damage to the title of a judge.
Under Article 115 of the Constitution, judges shall be
dismissed from office according to the procedure established by
law, in cases when their behaviour discredits their position as
a judge, and when judgment imposed on them by court comes into
force. Articles 74 and 116 of the Constitution also provide
that for gross violation of the Constitution, breach of oath,
or upon the disclosure of the commission of felony, the Seimas
may remove from office the Chairperson and judges of the
Supreme Court, as well as the Chairperson and judges of the
Court of Appeal, in accordance with the procedure for
impeachment. The behaviour of a judge connected with his
performance of his immediate duties, as well as his activity
not linked with his duties, may not cause any doubts as for his
independence and impartiality.
Another guarantee of proper administration of justice by
judges is their qualification: only persons who have life
experience and high legal qualification may be appointed as
judges. They must be of irreproachable reputation.
This means that special professional and ethical
requirements are raised to judges. The judge must feel greatly
responsible for the way he administers justice, i.e. the way he
performs the duty established to him by the Constitution.
5. It needs to be noted that the principle of independence
of judges is also established in a number of international
acts: Universal Declaration of Human Rights, Convention for the
Protection of Human Rights and Fundamental Freedoms, Basic
Principles on the Independence of the Judiciary endorsed by the
General Assembly of the United Nations, Recommendation on the
Independence, Efficiency and Role of Judges adopted on 13
October 1994 by the Committee of Ministers of the Council of
Europe, Universal Charter of the Judge of 17 November 1999 etc.
The principle of independence of judges and courts is
established in all the constitutions of democratic states.
6. The principle of independence of judges and courts
established in Part 2 of Article 109 of the Constitution is
linked with the provisions of Article 6 of the Convention for
the Protection of Human Rights and Fundamental Freedoms which
provide for the right of everyone to a fair and public trial by
an independent and impartial tribunal. The European Court of
Human Rights, while investigating cases regarding violations of
Article 6 of the Convention, distinguishes objective and
subjective elements of the right of to a fair and public trial
by an independent and impartial tribunal. The former are of
crucial importance from the standpoint of the case at issue.
They are the guarantee of the separation of powers and
corresponding regulation of interrelations between institutions
of power. An analysis of the case-law practice of the European
Court of Human Rights permits to assert that control over the
activities of courts and judges or the cases when non-judicial
structures exert influence on courts are considered violations
of Article 6 of the Convention. For example, in its judgment of
24 November 1994 in the case Beaumartin vs. France (Series A,
No. 296-B), the European Court of Human Rights held that only
an institution that has full jurisdiction and satisfies a
number of requirements, such as independence of the executive
and also of the parties, merits the designation "tribunal"
within the meaning of Paragraph 1 of Article 6 of the
Convention. Such a conclusion was also based on some other
judgments delivered by the European Court of Human Rights.
It needs to be noted that in the case-law of the European
Court of Human Rights also such factors as an opportunity for
the other branches of power, especially for the executive, to
give instructions to courts or cause transference of a judge to
another post in case he does not follow certain directions, as
well as conditions of remuneration of judges and a possibility
for the executive to exert direct or indirect influence on
courts, are regarded as factors exerting direct and indirect
influence on courts.
7. The legal status of judges and courts is also to be
attributed to the guarantees of independence of judges and
courts. According to the duties performed by him, the judge may
not be ascribed to civil servants. No one may demand that he
followed a certain political guideline. The case-law court
practice is formed only by courts, while applying the norms of
law. The judge ensures human rights and freedoms in that he
administers justice on the grounds of the Constitution and
laws.
In its ruling of 6 December 1995, the Constitutional Court
held that "according to the detailed interpretation of the
independence of judges and the court established in Part 2 of
Article 109 of the Constitution and set forth in the Law on
Courts and other laws of Lithuania, the following three groups
of safeguards may be conditionally identified among the
safeguards guaranteeing the independence of judges: a) those
guaranteeing the security of tenure, b) guaranteeing personal
immunity of a judge, and c) those securing social (material)
guarantees of judges".
In order to ensure the immunity of powers of judges,
Article 115 of the Constitution provides that judges may be
dismissed from offices only in cases provided for in the
Constitution. The security of tenure is important so that the
judge remains independent regardless of what political forces
are in power, and he must never conform to a possible change of
power of political forces.
In order to guarantee the personal immunity of a judge, it
is provided for in Part 2 of Article 114 of the Constitution
that judges may not have legal actions instituted against them,
nor may they be arrested or restricted of personal freedom
without the consent of the Seimas, or in the period between
sessions of the Seimas, of the President of the Republic of
Lithuania. Articles 74 and 116 of the Constitution provide that
for gross violation of the Constitution, breach of oath, or
upon the disclosure of the commission of felony, the Seimas may
remove from office the Chairperson and judges of the Supreme
Court, as well as the Chairperson and judges of the Court of
Appeal, in accordance with the procedure for impeachment.
The guarantees of social (material) nature of the
principle of independence of judges as established in Part 2 of
Article 109 of the Constitution are of no less importance. They
mean an obligation of the state to ensure social (material)
maintenance to judges which would be in conformity with the
status of judges when they are in office, as well as after
expiration of office. For instance Article 13 of the 17
November 1999 Universal Charter of the Judge provides that the
judge must receive sufficient remuneration to secure true
economic independence; the remuneration must not depend on the
results of the judge's work and must not be reduced during his
or her judicial service.
It needs to be noted that, disclosing the content of the
constitutional principle of independence of judges and courts,
in its ruling of 6 December 1995 the Constitutional Court held
that "any attempts to reduce the salary or other social
guarantees of a judge or cut the budget of the judiciary are
interpreted as infringement on the judicial independence".
The assessment of the system of guarantees of independence
of judges and courts permits to assert that they are closely
interrelated. It is impossible to assess independence of judges
and courts according to a single even though important element,
therefore it is universally recognised that in case any
guarantee of independence of judges and courts is violated,
administration of justice might be damaged, there might appear
a danger that neither human rights and freedoms will be ensured
nor the rule of law be guaranteed.
Alongside, the Constitutional Court notes that the system
of guarantees of independence of judges and courts does not
create any pre-conditions on the grounds of which judges could
evade proper fulfilment of their duties, investigate cases in
an improper manner, act unethically with the people taking part
in the case, violate human rights and dignity. Judges must
protect the honour and prestige of their profession. Therefore
the system of self-regulation and self-government of the
judiciary must ensure that judges perform their duties properly
and that every unlawful or unethical action of a judge be
properly assessed.
8. The independence of judges and courts is indivisible.
When the activity of courts is regulated by the law, it is not
permitted that the concept of the Judiciary, which is
established in Article 5 and other articles of the Constitution
as an independent and all-sufficient state power, be denied.
Otherwise, the protection of human rights and freedoms
entrenched in the Constitution would not be secured.
While investigating this case, the Constitutional Court
will take account of both aspects of the principle of
independence of judges and courts: first, the independence of
judges and courts in the area of administration of justice;
second, the independence of courts as institutions in the area
of implementation of judicial power.
II
On the compliance of Parts 2, 3 and 4 of Article 33, Parts
2 and 3 of Article 34 and Parts 5, 6, 7 and 8 of Article 56 of
the Law with the Constitution.
1. Parts 2, 3 and 4 of Article 33 of the Law provide:
"The judges of district and regional courts shall be
appointed by the President of the Republic on the proposal of
the Minister of Justice, as recommended by the Council of
Judges.
Chairpersons of district and regional courts shall be
appointed from among the appointed judges by the President of
the Republic on the proposal of the Minister of Justice, as
recommended by the Council of Judges.
Deputy chairpersons of district and regional courts or
court division chairpersons, as well as mortgage judges of
court mortgage divisions, shall be appointed from among the
appointed judges by the Minister of Justice on the proposal of
the Chairperson of the respective court."
Parts 2 and 3 of Article 34 of the Law provide:
"Judges of the Court of Appeal and from them-its
chairperson shall be appointed by the President of the Republic
on the proposal of the Minister of Justice and on the
recommendation of the Council of Judges and with the approval
of the Seimas.
Division chairpersons of the Court of Appeal shall be
appointed by the Minister of Justice from the appointed judges
on the proposal of the Chairperson of this court."
Parts 5, 6, 7 and 8 of Article 56 of the Law provide:
"The Chairperson and other judges of the Court of Appeal
shall be dismissed from office by the President of the Republic
on the proposal of the Minister of Justice and on the
recommendation of the Council of Judges, with the consent of
the Seimas.
Division chairpersons of the Court of the Appeal shall be
dismissed from office by the Minister of Justice on the
proposal of the Director of the Department of Courts, or on his
own initiative.
The chairpersons of other courts and other judges shall be
dismissed form office by the President of the Republic on the
proposal of the Minister of Justice, as recommended by the
Council of Judges.
Deputy chairpersons or court division chairpersons of
other courts, as well as mortgage judges of district court
mortgage divisions shall be dismissed form office by the
Minister of Justice on the proposal of the Director of the
Department of Courts, or on his own initiative."
The petitioner is of the opinion that the norms of Parts 2
and 3 of Article 33, Part 2 of Article 34 and those of Parts 5
and 7 of Article 56 of the Law establishing the proposal of the
Minister of Justice regarding appointment and dismissal of
judges, chairpersons, deputy chairpersons and court division
chairpersons of respective courts restrict the powers of the
President of the Republic and contradict Part 2 of Article 5,
Item 11 of Article 84 and Part 2 of Article 109 of the
Constitution.
The petitioner also doubts whether the right of the
Minister of Justice to appoint and dismiss deputy chairpersons,
court division chairpersons of respective courts as established
in Part 4 of Article 33, Part 3 of Article 34 and Parts 6 and 8
of Article 56 of the Law is in conformity with the aforesaid
articles of the Constitution.
Taking account of the motives set down in the request of
the petitioner, the Constitutional Court will investigate the
compliance of the disputed norms only from the aspect pointed
out by the petitioner.
2. Part 2 of Article 109 of the Constitution provides
that, while administering justice, judges and courts shall be
independent.
It needs to be noted that while establishing the procedure
for appointment, promotion of judges or that of their
transference, i.e. regulating questions of their professional
career, it is not permitted that the principle of independence
of judges and courts be violated.
3. Item 11 of Article 84 of the Constitution provides that
the President of the Republic shall propose Supreme Court judge
candidates to the Seimas, and, upon the appointment of all the
Supreme Court judges, recommend from among them the Supreme
Court Chairperson to the Seimas; appoint, with the approval of
the Seimas, Court of Appeal judges, and from among them-the
Court of Appeal Chairperson; appoint judges and chairpersons of
district and local district courts, and change their places of
office; in cases provided by law, propose the dismissal of
judges to the Seimas.
The norms of Item 11 of Article 84 of the Constitution
establishing the powers of the President of the Republic in the
sphere of appointment and dismissal of judges are linked with
Part 5 of Article 112 of the Constitution wherein it is
prescribed that a special institution of judges provided by law
shall submit recommendations to the President of the Republic
concerning the appointment of judges, as well as their
promotion, transference, or dismissal from office. Under
Article 30 of the Law, these functions are performed by the
Council of Judges.
Thus the powers of the President of the Republic in the
sphere of formation of the judiciary are entrenched in Item 11
of Article 84 of the Constitution. It is an important element
of the constitutional status of the Head of State. Any change
or restriction of the powers of the President of the Republic
in this area, as well as any establishment of such a procedure
for the implementation of these powers when the actions of the
President of the Republic would be bound by decisions of the
institutions or officials that are not provided for in the
Constitution, would mean a change of the constitutional
competence of the President of the Republic.
4. Part 2 of Article 5 of the Constitution provides: "The
scope of powers shall be circumscribed by the Constitution."
An important constitutional principle is enshrined in this
norm which must be taken account of when the powers of
institutions of state power both in the area of relations
between state power and individuals and that of interrelations
between institutions of state power are established. From this
aspect interpreting the principle established in Part 2 of
Article 5 of the Constitution, in its ruling of 3 June 1999 the
Constitutional Court held that this constitutional principle
"means that in cases when the powers of a concrete branch of
power are directly established in the Constitution, then no
institution may take over these powers, while an institution
whose powers are defined by the Constitution may neither
transfer nor refuse these powers. Such powers may neither be
changed nor restricted by the law." It is necessary that such
requirements be followed in order to ensure the harmony of
functioning of institutions of state power.
The Constitutional Court notes that while assessing the
compliance of the disputed norms of the Law with Part 2 of
Article 5 of the Constitution, the conformity or non-conformity
of the said norms of the Law with Item 11 of Article 84 of the
Constitution must be considered.
5. In the established procedures of appointment and
dismissal of judges the proposal of the Minister of Justice
regarding appointment and dismissal of judges is provided for.
The petitioner questions its compliance with the Constitution,
therefore it is necessary to ascertain the content of the
proposal, as a legal institute, made by the Minister of
Justice.
Analysing the powers of the Minister of Justice in the
procedure of appointment of judges, one is to note that under
Part 1 of Article 33 of the Law candidates to judges of
district and regional courts and their chairpersons shall be
designated by the Minister of Justice on the proposal of the
Director of the Department of Courts. The Council of Judges
chooses one candidature from among them and recommends that the
President of the Republic appoint him as a judge.
Part 2 of Article 33 of the Law provides that these judges
shall be appointed by the President of the Republic on the
proposal of the Minister of Justice, as recommended by the
Council of Judges.
Thus in the said parts of Article 33 of the Law a
respective procedure for appointment of judges is established.
Comparing the norms of Parts 1 and 2 of this article, it is
possible to draw a conclusion that the concepts "candidates to
judges <...> shall be designated by the Minister of Justice"
and "proposal of the Minister of Justice" are not identical.
The contents of these notions are not the same.
The proposal of the Minister of Justice provided for in
the norms of Articles 33 and 34 of the Law is officially
registered by a corresponding act. Such a proposal of the
Minister of Justice gives rise to legal effects. In case there
is not any proposal of the Minister of Justice, the President
of the Republic may not appoint an individual as a judge. Under
the Law, the proposal of the Minister of Justice is a necessary
condition of implementation of the powers of the President of
the Republic in the area of appointment of judges. The right of
the Minister of Justice to give proposals to the President of
the Republic regarding dismissal of respective judges from
office as provided for in the norms of Parts 5 and 7 of Article
56 of the Law acquires the same meaning.
Alongside, it needs to be noted that the legislator is
entitled to establish as to what subjects shall choose
candidatures of judges for the President of the Republic. This
function may be ascribed to the Minister of Justice, however
the right of the Minister of Justice to choose candidatures of
judges is not binding to the President of the Republic.
Thus, not only the right of the Minister of Justice to
nominate candidatures of judges but also that to submit the
proposal to the President of the Republic regarding their
appointment are established in the disputed norms of the Law.
An analogous procedure for appointment of judges of the Court
of Appeal and its Chairperson is established in Article 34 of
the Law. Candidatures of judges of the Court of Appeal and its
Chairperson are chosen by the Minister of Justice under the
same procedure. These judges and the Chairperson from among
them are appointed by the President of the Republic on the
proposal of the Minister of Justice on the recommendation of
the Council of Judges.
The norms of Parts 5 and 7 of Article 56 of the Law
establishing that judges of respective courts are dismissed
from office on the proposal of the Minister of Justice are to
be assessed in the same manner.
6. As mentioned, the procedure of appointment of judges
established in the Law may not violate the independence of the
judiciary. Alongside, this procedure may not violate the
balance of state powers (in the case at issue this is that
between the President of the Republic and the Judiciary) as
established in Article 5 of the Constitution.
While investigating whether the norms of the parts of
articles of the Law pointed out in the petition which establish
the competence of the Minister of Justice in the formation of
courts, and decision of questions of internal organisation of
courts, are in conformity with the Constitution, it is
important to establish the legal status of a special
institution of judges provided for in Part 5 of Article 112 of
the Constitution.
Taking account of the procedure of formation of courts
established in the Constitution, as well as the constitutional
regulation of the relations of the President of the Republic
with the special institution of judges, one is to conclude that
the special institution of judges pointed out in Part 5 of
Article 112 of the Constitution must give recommendation to the
President of the Republic concerning all the questions of
appointment of judges, those of their professional career, as
well as those of their dismissal from office. The
recommendation of this institution gives rise to legal effects:
in case there is not a recommendation of this institution, the
President of the Republic may not adopt decisions on
appointment, promotion, transference of judges or those on
their dismissal from office.
Thus, by the Constitution, the special institution of
judges not only helps the President of the Republic to form
courts but it also serves as a counter-balance to the President
of the Republic, who is a subject of the executive, in the area
of the formation of the corps of judges. On the other hand, the
special institution of judges provided for in Part 5 of Article
112 of the Constitution is to be interpreted as an important
element of self-government of the Judiciary which is an
independent state power.
After the proposal of the Minister of Justice has been
established in the disputed parts of articles of the Law, the
recommendation of the Council of Judges becomes devoid of the
meaning attached to it by the Constitution, as in such a case
the actions of the President of the Republic are conditioned
not only by the recommendation of the Council of Judges but
also the proposal of the Minister of Justice which is not
provided for in the Constitution. Such legal regulation
violates the procedure of formation of corps of judges which is
established in the Constitution and interferes with the
competence of the President of the Republic and that of the
special institution of judges provided for in the Constitution.
7. Item 11 of Article 84 of the Constitution defines the
powers of the President of the Republic in the area of the
formation of the judiciary.
The implementation of these issues is within the
competence of the President of the Republic. A special
institution of judges provided by law shall submit
recommendations to the President concerning the appointment of
judges, as well as their promotion, transference, or dismissal
from office (Part 5 of Article 112 of the Constitution).
The disputed norms of the Law provide that the President
of the Republic may implement his constitutional rights only in
case there is the proposal of the Minister of Justice. Thus the
proposal of the Minister of Justice conditions the
implementation of the powers of the President of the Republic
established in Item 11 of Article 84 of the Constitution, when
the questions regarding professional career of judges are
decided. Alongside, the principle established in Part 2 of
Article 5 of the Constitution whereby the scope of powers shall
be circumscribed by the Constitution is violated.
Taking account of the arguments set forth, a conclusion is
to be drawn that the disputed norms of Parts 2 and 3 of Article
33, Part 2 of Article 34, Parts 5 and 7 of Article 56 of the
Law wherein the proposal of the Minister of Justice to appoint
and dismiss judges of respective courts and their chairpersons
is established contradict Part 2 of Article 5, Item 11 of
Article 84, Part 2 of Article 109 and Part 5 of Article 112 of
the Constitution.
8. Part 4 of Article 33 of the Law provides that deputy
chairpersons of district and regional courts or court division
chairpersons, as well as mortgage judges of court mortgage
divisions, shall be appointed from among the appointed judges
by the Minister of Justice on the proposal of the chairperson
of the respective court. Under Part 3 of Article 34 of the Law,
division chairpersons of the Court of Appeal shall be appointed
by the Minister of Justice from the appointed judges on the
proposal of the chairperson of this court.
Division chairpersons of the Court of the Appeal shall be
dismissed from office by the Minister of Justice on the
proposal of the Director of the Department of Courts, or on his
own initiative (Part 6 of Article 56 of the Law). Deputy
chairpersons or court division chairpersons of other courts, as
well as mortgage judges of district court mortgage divisions
shall be dismissed from office by the Minister of Justice on
the proposal of the Director of the Department of Courts, or on
his own initiative (Part 8 of Article 56 of the Law).
The petitioner maintains that the norms of the Law
providing for the right of the Minister of Justice to appoint
and dismiss deputy chairpersons and court division chairpersons
of respective courts contradict the Constitution. The
petitioner does not dispute the procedure for appointment and
dismissal of mortgage judges of court mortgage divisions of
district courts, therefore the Constitutional Court will not
investigate this issue.
While deciding whether the right of the Minister of
Justice to appoint and dismiss deputy chairpersons and court
division chairpersons of regional courts and court division
chairpersons of the Court of Appeal as established in the
aforesaid norms of Articles 33, 34 and 56 of the Law, one
should, first of all, take account of the status of deputy
chairpersons and court division chairpersons of the said courts
established in the Law and the powers of the Minister of
Justice as an official of the executive in relations with the
judiciary granted by the Law.
9. The principle of independence of judges and courts
entrenched in Part 2 of Article 109 of the Constitution
encompasses the organisational independence of courts as well.
Neither an institution nor an official of the executive may
interfere with the exercise of functions of courts or organise
the internal work courts. As mentioned in this ruling, the
activity of courts is not and may not be an area of
administration ascribed to a ministry.
In the context of the question at issue, it needs to be
noted that chairpersons of respective courts are appointed by
the President of the Republic. Under Item 11 of Article 84 and
Parts 3 and 4 of Article 112 of the Constitution, the President
of the Republic shall appoint the Chairperson of the Court of
Appeal with the approval of the Seimas. Chairpersons of
district, regional and specialised courts are also appointed by
the President of the Republic.
Deputy chairpersons and court division chairpersons of
district and regional courts, court division chairpersons of
the Court of Appeal administer justice as judges, and in
addition, they are responsible for the area of the work
organisation in courts attributed to them. Under Parts 1 and 2
of Article 43 of the Law, in the absence of the chairperson of
a regional court or that of the Court of Appeal, the division
chairperson with seniority in service shall serve as the
chairperson, and in the absence of a district court
chairperson, his office shall be taken by his deputy.
Under the Law, individual organisational functions of
court's work are entrusted to deputy chairpersons or court
division chairpersons of district and regional courts and court
division chairpersons of the Court of Appeal, besides, in case
of need they substitute chairpersons of the said courts.
Therefore, taking account of the principle of independence of
judges and courts entrenched in Part 2 of Article 109 of the
Constitution, as well as the fact that the activity of courts
in the course of their administration of justice is not and may
not be an area of administration of the Minister of Justice,
there are grounds to assert that after the powers of the
Minister of Justice to appoint deputy chairpersons and court
division chairpersons of respective courts had been established
in the Law, conditions for the official of the executive were
created to interfere with the appointment of judicial officials
and with the activity of courts in general.
Taking account of these arguments, a conclusion is to be
drawn that the disputed norms of Part 4 of Article 33, Part 3
of Article 34 and Parts 6 and 8 of Article 56 of the Law
contradict Part 2 of Article 109 of the Constitution.
As mentioned, under Part 5 of Article 112 of the
Constitution, a special institution of judges provided by law
shall submit recommendations to the President concerning all
questions of professional career of judges. This is the Council
of Judges. The legal regulation established in the Law when
deputy chairpersons of courts and court division chairpersons
are appointed by the Minister of Justice creates such a legal
situation where a subject provided for in the Constitution,
which is a special institution of judges, cannot accomplish its
competence attributed to it by the Constitution.
Taking account of the motives set forth, one is to draw a
conclusion that the disputed norms of Part 4 of Article 33,
Part 3 of Article 34 and Parts 6 and 8 of Article 56 of the Law
contradict Part 5 of Article 112 of the Constitution.
10. In Item 11 of Article 84 and Article 112 of the
Constitution the powers of the President of the Republic in the
area of the formation of the judiciary are established.
An analysis of the content of Item 11 of Article 84 of the
Constitution permits to assert that therein only the right of
the President of the Republic to appoint the Chairperson of the
Court of Appeal, chairpersons of regional and district courts
is established. The said article does not contain any directly
established right of the President of the Republic to appoint
and dismiss deputy chairpersons and court division chairpersons
of district and regional courts and court division chairpersons
of the Court of Appeal.
The Constitution does not provide for the posts of deputy
chairpersons of courts and court division chairpersons. The
legislator is entitled to provide for the said posts by law and
to establish a procedure for appointment of individuals to
these posts. In establishing these posts, the legislator is
bound by the principle of balance of powers established in
Article 5 and other articles of the Constitution and that of
the independence of judges and courts established in Part 2 of
Article 109 of the Constitution.
Taking account of the motives set forth, one is to
conclude that the disputed norms of Part 4 of Article 33, Part
3 of Article 34 and Parts 6 and 8 of Article 56 of the Law are
in compliance with Item 11 of Article 84 of the Constitution.
11. Doubts are expressed in the petition concerning the
compliance of Part 4 of Article 33, Part 3 of Article 34 and
Parts 6 and 8 of Article 56 of the Law with Part 4 of Article
89 of the Constitution providing that the powers of the
President of the Republic may not be executed in any other
cases, or by any other persons or institutions with the
exception of those provided for in the Constitution.
The content of Part 4 of Article 89 of the Constitution is
to be construed, while taking account of the legal regulation
established in whole Article 89 of the Constitution. Parts 1
and 2 of Article 89 of the Constitution provide for the
conditions and subjects who act for the President of the
Republic in the event that the President dies or is removed
from office according to impeachment proceedings, or if the
Seimas resolves that the President of the Republic is unable to
fulfil the duties of office for reasons of health, and when the
President is temporarily absent beyond the boundaries of the
country or has fallen ill and by reason thereof is temporarily
unable to fulfil the duties of office.
The disputed norms of Articles 33, 34 and 56 of the Law
regulate relations of state power in the area of the formation
of the judiciary. The Constitutional Court has already held in
this ruling that the disputed norms of the Law are in
compliance with Item 11 of Article 84 of the Constitution
establishing the right of the President of the Republic to
appoint and transfer respective judges and chairpersons of
courts or to submit proposal to the Seimas regarding their
dismissal from office.
Taking account of these arguments, a conclusion is to be
drawn that the disputed norms of Part 4 of Article 33, Part 3
of Article 34 and Parts 6 and 8 of Article 56 of the Law are in
compliance with Part 4 of Article 89 of the Constitution.
III
On the compliance of Part 1 of Article 66 of the Law with
the Constitution.
1. Part 1 of Article 66 of the Law provides: "The
Prosecutor General shall be appointed and dismissed from office
by the Seimas of the Republic of Lithuania on the proposal of
the Legal Committee of the Seimas. Candidatures for the post of
the Prosecutor General shall be submitted to the Legal
Committee of the Seimas by the Chairperson of the Supreme Court
of Lithuania and the Minister of Justice."
In the opinion of the petitioner, prosecutors are part of
the judiciary, therefore the right of the Minister of Justice
to propose candidatures to the post of the Prosecutor General
is to be assessed as interference with the activity of courts
by the executive. In addition, this legal norm whereby the
powers to the Legal Committee of the Seimas to propose
candidatures for the Seimas to the post of the Prosecutor
General are granted restricts the powers of the Seimas to
appoint and dismiss the chief officers of state institutions as
established in Item 5 of Article 67 of the Constitution. The
petitioner also maintains that this norm of the Law also
contradicts Article 76 of the Constitution as uncharacteristic
functions are ascribed to the Seimas committee which are not
provided for in the Statute of the Seimas.
Taking account of the fact that not whole Part 1 of
Article 66 of the law is disputed but only the norms
establishing the powers of the Legal Committee of the Seimas
and the Minister of Justice concerning the appointment of the
Prosecutor General, the Constitutional Court will only
investigate the compliance of only these norms of Part 1 of
Article 66 of the Law with the Constitution. The Constitutional
Court will not investigate the questions linked with the powers
of the Chairperson of the Supreme Court regarding proposal of
candidatures of the Prosecutor General to the Legal Committee
of the Seimas.
2. Part 1 of Article 118 of the Constitution provides that
public prosecutors shall prosecute criminal cases on behalf of
the State, shall carry out criminal prosecutions, and shall
supervise the activities of the interrogative bodies.
Article 1 of the Republic of Lithuania Law on the
Prosecutor's Office provides for the following guidelines of
public prosecutors: to initiate and conduct criminal
prosecution, to control the activities of the interrogative
bodies, to conduct preliminary investigation, to pursue a
public charge, to control the execution of a sentence, to
coordinate the actions of the bodies of interrogation and
preliminary investigation directed against crime, to defend, in
the manner established by law, the lawful interests of the
state and the violated rights of persons, to prepare material
for instituting civil proceedings in a law court and
participate during the examination of the case in court. Thus,
the Constitution and the laws provide that prosecutors perform
specific functions characteristic of this institution only.
3. An analysis of the constitutional norms regulating the
formation of institutions of state power permit to draw a
conclusion that when the appointment of the officials pointed
out in the Constitution is regulated, as a rule, not only the
subject who appoints them but also the one who has the right to
propose or submit their candidatures is established therein.
The Constitution does nor provide for the post of the
Prosecutor General nor does it provide for the procedure for
the appointment of this official. Under Part 3 of Article 118
of the Constitution, the procedure for the appointment of
public prosecutors and investigators and their status shall be
established by law.
4. Part 1 of Article 66 of the Law provides that the
Prosecutor General shall be appointed and dismissed from office
by the Seimas of the Republic of Lithuania on the proposal of
the Legal Committee of the Seimas. It is also provided for
therein that candidatures for the post of the Prosecutor
General shall be submitted to the Legal Committee of the Seimas
by the Chairperson of the Supreme Court of Lithuania and the
Minister of Justice. Thus, it is possible to divide the
procedure for the appointment of the Prosecutor General into
two phases. In the first phase the Chairperson of the Supreme
Court and the Minister of Justice propose the candidatures to
the Legal Committee of the Seimas, while in the second phase
the Legal Committee of the Seimas submits to the Seimas the
candidature of the Prosecutor General from among the proposed
candidatures.
The principle of the independence of judges and courts is
entrenched in Part 2 of Article 109 of the Constitution. Under
Part 1 of Article 114 of the Constitution, institutions of
state power and officials shall be prohibited from interfering
with the activities of a judge or the court. Thus, the purpose
of these norms is to protect judges and courts that implement
the function of justice. Prosecutors are not judges and they do
not administer justice. The Constitution entrusts them with a
specific function which may not be identified with
implementation of judicial power. The disputed norm of Part 1
of Article 66 of the Law does not regulate the questions of the
activities of judges and courts, therefore it is to be
concluded that the said norm of the Law is in compliance with
Part 2 of Article 109 and Part 1 of Article 114 of the
Constitution.
5. Item 5 of Article 67 of the Constitution provides that
the Seimas shall form State institutions provided by law, and
shall appoint and dismiss their chief officers.
The petitioner maintains that the norm of Part 1 of
Article 66 of the Law whereby the Legal Committee of the Seimas
is empowered to submit to the Seimas the candidature of the
Prosecutor General restricts the powers of the Seimas to
appoint and dismiss the chief officers of state institutions as
established in Item 5 of Article 67 of the Constitution.
As mentioned, Part 1 of Article 66 of the Law provides
that the Prosecutor General shall be appointed and dismissed
from office by the Seimas of the Republic of Lithuania on the
proposal of the Legal Committee of the Seimas. Thus, the
disputed norm of the Law provides for the right of the Seimas
to appoint and dismiss the chief officer of a state
institution. This official is appointed under procedure
established by the Law.
Taking account of the aforesaid motives, it is to be
concluded that the norms of Part 1 of Article 66 of the Law
wherein the powers of the Minister of Justice and the Legal
Committee of the Seimas in connection with the appointment of
the Prosecutor General are established are in compliance with
Item 5 of Article 67 of the Constitution.
Alongside, the Constitutional Court notes that the norms
of Part 1 of Article 66 of the Law wherein the powers of the
Legal Committee of the Seimas in connection with the
appointment of the Prosecutor General are established provide
for the functions uncharacteristic of a committee of the
Seimas.
6. Article 76 of the Constitution provides that the
structure and procedure of activities of the Seimas shall be
determined by the Statute of the Seimas which shall have the
power of law.
This article of the Constitution means that the Seimas has
the right to determine its structure and procedure of
activities by itself. The structure of the Seimas is a system
of its internal divisions established in the Statute of the
Seimas which must ensure the working capacity of the parliament
and its effective functioning.
Article 76 of the Constitution also provides for the form
of the legal act whereby the internal organisation and
procedure of activities of the Seimas are regulated, which is
the Statute of the Seimas. Under the Constitution, the Statute
of the Seimas shall have the power of law.
In the opinion of the petitioner, the norm of the Law
whereby functions not provided for in the Statute of the Seimas
are entrusted with the committee of the Seimas contradicts
Article 76 of the Constitution whereby the procedure of
activities of the Seimas shall be determined by the Statute of
the Seimas.
It needs to be noted that the Constitution does not
provide for the functions of the committees of the Seimas. This
question is regulated in the Statute of the Seimas. The
petitioner grounds the non-compliance of the disputed norm of
Part 1 of Article 66 of the Law with the Constitution on the
fact that this norm is not coordinated with the norms of the
legal act of the same legal power-the Statute of the Seimas.
The Constitutional Court notes that non-coordination of the
norms between legal acts of the same power may indicate
inconsistency and even impropriety of legal regulation, but in
itself this may not serve as grounds for recognition that one
of these acts contradicts the Constitution.
Taking account of the motives set forth, a conclusion is
to be drawn that the norms of Part 1 of Article 66 of the Law
wherein the powers of the Minister of Justice and the Legal
Committee of the Seimas in connection with the appointment of
the Prosecutor General are established are in compliance with
Article 76 of the Constitution.
IV
On the compliance of Part 2 of Article 14, Parts 1 and 2
of Article 251, Part 1 of Article 26, Part 1 of Article 30,
Part 1 of Article 36, Article 40, Part 3 of Article 51, Part 2
of Article 58, Part 4 of Article 59, Part 2 of Article 69 and
Part 2 of Article 73 of the Law with the Constitution.
1. The petitioner is of the opinion that the provisions of
Part 2 of Article 14, Parts 1 and 2 of Article 251, Part 1 of
Article 26, Part 1 of Article 30, Part 1 of Article 36, Article
40, Part 3 of Article 51, Part 2 of Article 58, Part 4 of
Article 59, Part 2 of Article 69 and Part 2 of Article 73 of
the Law create direct and indirect opportunities for the
Minister of Justice to interfere with the activities of courts,
therefore they contradict Part 2 of Article 109 of the
Constitution.
2. Part 2 of Article 14 of the Law provides: "The number
of judges in the divisions of civil and criminal cases of
regional courts and the Court of Appeal shall be set by the
Minister of Justice on the proposal of the Director of the
Department of Courts under the Ministry of Justice (hereinafter
referred to as the Department of Courts), after consideration
of the opinion of the chairperson of the respective court. In
exceptional cases chairpersons of the said courts shall have
the right for the term of investigation of particular cases to
transfer a judge from one division to another division of the
same court on their own initiative."
The petitioner doubts whether the aforesaid provisions of
Part 2 of Article 14 of the Law whereby the number of judges in
the divisions of civil and criminal cases of regional courts
and the Court of Appeal shall be set by the Minister of Justice
on the proposal of the Director of the Department of Courts,
after consideration of the opinion of the chairperson of the
respective court, is in conformity with Part 2 of Article 109
of the Constitution.
Taking account of the arguments of the petitioner, the
Constitutional Court will investigate the compliance of not
whole Article 14 of the Law but only that of the disputed norms
of Part 2 of the said article with the Constitution. When the
compliance of the disputed norm of the Law with the
Constitution is assessed, it is important to establish whether
the right of the Minister of Justice to set the number of
judges in divisions of civil and criminal cases of regional
courts and the Court of Appeal violates the constitutional
principle of the independence of judges and courts and whether
such legal regulation creates pre-conditions for the officials
of the executive to interfere with the activity of courts.
3. Under the Law, the work of the respective court shall
be organised by the chairperson of the court. The assignment of
judges in the internal structures of the court also is within
this sphere of activity. Under the Law, the number of judges of
court divisions of respective courts shall be set by the
Minister of Justice on the proposal of the Director of the
Department of Courts, after consideration of the opinion of the
chairperson of the respective court. Thus the Law grants the
right to the official of the executive to decide the questions
of internal organisation of court activities.
The fact that decision of the questions of organisation of
internal activities of courts is ascribed to the Minister of
Justice is to be assessed as violating the independence of the
judiciary and as creating pre-conditions for an official of the
executive to interfere with the organisation of internal
activity of courts, and with the activity of courts in general.
Taking account of the motives set forth, it is to be
concluded that the disputed norms of Part 2 of Article 14 of
the Law contradict Part 2 of Article 109 of the Constitution.
4. Parts 1 and 2 of Article 251 of the Law provide:
"The Ministry of Justice together with the Department of
Courts shall organise and coordinate consistent training of
judges. When questions of promotion of judges are considered,
account is taken of the intensity of improvement of
professional skills of judges.
The forms of improvement of professional skills of judges
shall be compulsory and optional. The compulsory forms, except
for those designated to the judges of the Supreme Court of
Lithuania, shall be determined by a directive of the Minister
of Justice."
In the opinion of the petitioner, the norms of Parts 1 and
2 of Article 251 of the Law wherein it is established that the
Ministry of Justice shall organise and coordinate training of
judges, which is taken account of when questions of promotion
of judges are considered, as well as the fact that the
compulsory forms of improvement of professional skills of
judges shall be determined by a directive of the Minister of
Justice, contradict Part 2 of Article 109 of the Constitution
and create pre-conditions for the Minister of Justice to
interfere with the activity of courts.
Taking account of the motives set forth in the petition,
the Constitutional Court will investigate only the disputed
norms of Parts 1 and 2 of Article 251 of the Law establishing
the powers of the Ministry of Justice to organise and
coordinate training of judges and those of the Minister of
Justice to determine the compulsory forms of improvement of
professional skills of judges.
The disputed norms of the Law regulate the organisation of
improvement of professional skills of judges. The
Constitutional Court notes that appropriate preparedness of
judges, improvement of their knowledge and professional skills
are an important pre-condition of the guarantee of the proper
activity of courts. The Ministry of Justice may be empowered by
law to create conditions for judges to raise their
qualification, therefore it may be granted powers necessary to
organise and coordinate consistent training of judges.
Determination of the compulsory forms of training is to be
linked with particular professional requirements raised to
judges. All judges must have equal opportunities to improve and
raise their qualification. The powers of the Ministry of
Justice to organise and coordinate training of judges
pre-suppose an obligation of this ministry to guarantee equal
conditions for judges to improve their knowledge. Thus, the
Ministry of Justice, which is granted powers to organise and
coordinate consistent training of judges, may also be granted
the powers to determine the compulsory forms of training equal
to all judges. The competence of the Ministry of Justice to
organise and coordinate consistent training of judges and the
competence of the Minister of Justice to determine the
compulsory forms of improvement of professional skills of
judges, which is established by law, do not violate the
constitutional principle of the independence of judges and
courts.
Taking account of the motives set forth, one is to
conclude that the disputed norms of Parts 1 and 2 of Article
251 of the Law wherein it is established that the Ministry of
Justice shall organise and coordinate training of judges, as
well as the fact that the compulsory forms of improvement of
professional skills of judges shall be determined by a
directive of the Minister of Justice, are in compliance with
Part 2 of Article 109 of the Constitution.
5. Part 1 of Article 26 of the Law provides: "The
Lithuanian Judges' Examination Commission shall be formed for
the term of three years from six persons. The Council of Judges
and the Minister of Justice shall appoint three persons each
from judges and legal scholars as members of the Judges'
Examination Commission. The Chairperson of the Judges'
Examination Commission shall be appointed by the Minister of
Justice."
These norms of the Law regulate the procedure of formation
of the institution the purpose of which is to test the legal
qualification of persons before they are appointed as judges.
Under Article 28 of the Law, the oral and written examinations
of judges shall be taken by persons prior to their appointment
as judges. Thus the Judges' Examination Commission is charged
to perform a prior check of legal qualification of persons who
wish to become judges.
The examinations commission is formed for the term of
three years from six persons. It is evident that half the
members of the commission are appointed by the Council of
Judges and another half-by the Minister of Justice from judges
and legal scholars. The Chairperson of the Commission is
appointed by the Minister of Justice. Thus, this institution is
formed by representatives of two powers, i.e. those of the
executive and judiciary.
The Judges' Examination Commission tests the knowledge of
persons prior to their appointment as judges. It is not
empowered to test the knowledge of persons who already work as
judges. Thus, the norms of Part 1 of Article 26 of the Law
wherein the powers of the Minister of Justice to appoint the
members of the Judges' Examination Commission and the
chairperson of this commission are established do not violate
the constitutional principle of the independence of judges and
courts.
Taking account of the arguments set forth, it is to be
concluded that the disputed norms of Part 1 of Article 26 of
the Law are in compliance with Part 2 of Article 109 of the
Constitution.
6. Part 1 of Article 30 provides: "The Council of Judges
shall consist of fourteen judges: five judges elected at the
general meeting of judges, one judge elected by the Association
of Judges of the Republic of Lithuania, two judges appointed by
the President of the Republic, two judges appointed by the
Minister of Justice, and ex officio the Chairperson of the
Supreme Court of Lithuania, court division chairpersons of the
said court, and the Chairperson of the Court of Appeal."
The petitioner doubts whether the provision whereby the
Minister of Justice appoints two judges as members of the
Council of Judges is in conformity with Part 2 of Article 109
of the Constitution.
It needs to be noted that the Minister of Justice appoints
only two judges as members of the Council of Judges. The same
number of members of the Council of Judges is appointed by the
President of the Republic. Five judges are elected at the
general meeting of judges and one judge is elected by the
Association of Judges of the Republic of Lithuania as members
of the Council of Judges. Besides, the Chairperson of the
Supreme Court of Lithuania, court division chairpersons of the
said court, and the Chairperson of the Court of Appeal are ex
officio members of the Council of Judges.
Thus, under the Law, the Council of Judges is formed by
the Association of Judges of Lithuania, the general meeting of
judges, the Minister of Justice, the President of the Republic,
and respective members of the judiciary are its ex officio
members. The representatives of the executive, i.e. the
President of the Republic and the Minister of Justice, appoint
only four of the fourteen members of the Council of Judges.
Thus, there are not any legal grounds to assert that the norms
of Part 1 of Article 30 of the Law establishing the powers of
the Minister of Justice in the sphere of formation of a special
institution of judges provided for by law contradict the
independence of judges and courts.
Taking account of the arguments set forth, it is to be
concluded that Part 1 of Article 30 of the Law is in compliance
with Part 2 of Article 109 of the Constitution.
7. Part 1 of Article 36 of the Law provides that district
court judges shall be appointed for the first time for the term
of five years. Upon expiry of this term, district court judges,
on the proposal of the Minister of Justice and on the
recommendation of the Council of Judges, shall be appointed as
judges until they reach 65 years of age without taking the
examinations.
The petitioner is of the opinion that the proposal of the
Minister of Justice provided for in this norm creates
pre-conditions for his interference with the activity of
courts.
As mentioned, it is established in the disputed norm of
the Law that district court judges shall be appointed for the
first time for the term of five years. The said term is to be
construed as the "term of powers" of the judge. Under Item 2 of
Part 1 of Article 115 of the Constitution, court judges shall
be dismissed from office upon expiration of their powers. Upon
expiration of the five-year term, provided the person has
proved by his performance and conduct to be fitting for the
work of a judge, the question of his appointment for the longer
term of powers as pointed out in the Law is decided. Therefore
it is quite understandable that the Law contains the norm
whereby upon the expiration of this term judges shall be
appointed until they reach 65 years of age without prior
passing of the examinations.
The Constitutional Court notes that Article 112 of the
Constitution provides that a special institution of judges
provided by law shall submit recommendations to the President
of the Republic concerning the appointment of judges. Under the
Law this is the Council of Judges. As mentioned, the
Constitution does not provide for the proposal of the Minister
of Justice concerning appointment of judges, therefore such a
proposal may not condition the implementation of powers of the
President of the Republic.
The Constitutional Court has already noted in this ruling
that the disputed norms of Parts 2 and 3 of Article 33, Part 2
of Article 34 and Parts 5 and 7 of Article 56 of the Law
providing for the proposal of the Minister of Justice regarding
appointment and dismissal of judges contradict Item 11 of
Article 84, Part 2 of Article 5, Part 2 of Article 109 and Part
5 of Article 112 of the Constitution.
Taking account of the arguments set forth, a conclusion is
to be drawn that the norms of Part 1 of Article 36 of the Law
containing the proposal of the Minister of Justice to appoint a
judge after the expiration of his five-year term of office
contradict Part 2 of Article 5, Item 11 of Article 84, Part 2
of Article 109 and Part 5 of Article 112 of the Constitution.
8. Article 40 of the Law provides: "Chairpersons of
district courts shall organise the working process of judges in
such a manner that they would have equal amount of work,
control the administrative activity of these courts (judges),
control as to how judges adhere to the principles of ethics and
the work of judges in controlling the work of bailiffs'
offices. The rules for distribution of cases to judges, with
the exception of the Supreme Court, shall be confirmed by the
Minister of Justice on the proposal of the Director of the
Department of Courts."
In the opinion of the petitioner, the provision of this
article whereby the rules for distribution of cases to judges
shall be confirmed by the Minister of Justice contradict Part 2
of Article 109 of the Constitution.
It needs to be noted that the purpose of distribution of
cases which is accomplished by the chairperson of the court
under approved rules is to make sure that the judges would have
equal amount of work. Various ways of distribution of cases to
judges are possible.
The rules are a normative act. Their purpose is to make
sure that the same criteria of distribution of cases were
applied in all courts of Lithuania. Taking account of the
arguments set forth, a conclusion is to be drawn that the
disputed norm of Article 40 of the Law is in compliance with
Part 2 of Article 109 of the Constitution.
9. Part 3 of Article 51 of the Law provides: "A judge of a
district or regional court, that of the Court of Appeal and the
Supreme Court of Lithuania, in case he agrees, may, by a decree
of the President of the Republic, be delegated for the term of
up to one year to the structures of the Supreme Court of
Lithuania, those of the Ministry of Justice or the Department
of Courts the activities of which are directly linked with the
organisation of the activities of courts and their supervision.
For the term of the delegation, the powers of the delegated
judge shall be suspended. All social guarantees of the
delegated judge, including his salary and employment period
shall be preserved. His salary shall be paid by the same court
from which the judge has been delegated."
The petitioner questions the conformity of the norms of
Part 3 of the aforementioned article concerning suspension of
the powers of the judge and his delegation to the structures of
the Ministry of Justice and the Department of Courts with Part
2 of Article 109 of the Constitution. The petitioner does not
question the delegation of the judge to the structures of the
Supreme Court, therefore the Constitutional Court will not
investigate this question.
Part 2 of Article 109 of the Constitution provides that,
while administering justice, judges and courts shall be
independent. Assessing the compliance of the disputed norms
with Part 2 of Article 109 of the Constitution, it needs to be
noted that Part 1 of Article 113 of the Constitution provides
that judges may not hold any other elected or appointed posts,
and may not be employed in any business, commercial, or other
private institution or company. They are also not permitted to
receive any remuneration other than the salary established for
judges as well as payments for educational or creative
activities. The purpose of these norms of the Constitution is
to ensure the independence and impartiality of courts.
The delegation of a judge means that for some time he
holds another office, i.e. not that of a judge, in an
institution of the executive. However, the provisions of Part 1
of Article 113 of the Constitution prohibit to delegate judges
to the structures of the executive. Under the Constitution, the
President of the Republic does not have any powers to delegate
a judge to the structures of the Ministry of Justice or the
Department of Courts. Neither does the Constitution provide for
an opportunity to temporarily suspend the powers of a judge.
After he has been delegated to structures of the executive, the
powers of a judge shall be suspended (Part 3 of Article 51 of
the Law). It means that the legal status of a judge is
virtually changed: it becomes similar to that of a civil
servant, therefore the separation of the judiciary from the
executive as established in the Constitution is violated and
the balance of state powers established in Article 5 of the
Constitution is denied.
Taking account of the arguments set forth it is to be
concluded that the norms of Part 3 of Article 51 of the Law
wherein it is established that a judge of a district or
regional court, that of the Court of Appeal and the Supreme
Court of Lithuania, in case he agrees, may, by a decree of the
President of the Republic, be delegated for the term of up to
one year to the structures of the Ministry of Justice or the
Department of Courts and that for the term of the delegation
the powers of the delegated judge shall be suspended contradict
Part 1 of Article 5, Part 2 of Article 109 and Part 1 of
Article 113 of the Constitution.
10. Part 2 of Article 58 of the Law provides: "The Court
of Honour of Judges of Lithuanian courts, with the exception of
the Supreme Court, shall be formed from five members for the
term of two years. The President of the Republic shall appoint
three members thereof on the proposal of the Minister of
Justice and two members from judges with the consent of the
Council of Judges. The judges appointed as members of the Court
of Honour of Judges shall be relieved from the duties of a
judge for the term of their powers."
In the opinion of the petitioner, the norm of Article 58
of the Law whereby the right of the Minister of Justice to give
his proposal regarding appointment of members of the Court of
Honour of Judges is provided for contradicts Article 109 of the
Constitution. Even though in his petition the petitioner
indicates Part 1 of Article 58, however, the disputed norm is
set down in Part 2 of the same article. Therefore the
Constitutional Court, taking account of the motives set forth
in the petition of the petitioner, will investigate the
compliance of the norm set down in Part 2 of Article 58 wherein
the proposal of the Minister of Justice to appoint three
members of the Court of Honour of Judges is established with
the Constitution.
The organisational independence of courts, the
self-regulation and self-government of the judiciary are
elements of the principle of the independence of judges and
courts entrenched in Part 2 of Article 109 of the Constitution.
Under the Law, disciplinary action shall be brought against the
judges before the Court of Honour of Judges. The Court of
Honour of Judges, upon hearing and determining disciplinary
action against the judges, may acquit a judge, confine itself
to the hearing of the case, reprove him, issue a reprimand,
issue a severe reprimand, to recommend to dismiss him from
office or impose other sanctions on him. As it was held in this
ruling of the Constitutional Court, the activity of courts is
not within the sphere of administration of the Minister of
Justice, therefore the powers to participate in the formation
of the Court of Honour of Judges may not be ascribed to his
competence. Otherwise, the concept of the Court of Honour of
Judges as an institute of self-government and self-regulation
of the judiciary would be denied.
Taking account of the arguments set forth, it is to be
concluded that the norm of Part 2 of Article 58 of the Law
providing for the proposal of the Minister of Justice regarding
appointment of judges to the Court of Honour of Judges
contradicts Part 2 of Article 109 of the Constitution.
11. Part 4 of Article 59 of the Law provides:
"Disciplinary action against the chairperson of a district or
regional court and the Court of Appeal, their deputies,
division chairpersons and other judges may be instituted by the
Chairperson of the Supreme Court and the Minister of Justice on
the proposal of the Director of the Department of Courts or on
his own initiative. The President of the Republic may, on the
proposal of the Minister of Justice, remove the judge against
whom disciplinary action has been instituted from office until
the outcome of the case becomes clear."
The petitioner is of the opinion that the norm set down in
this article whereby the Minister of Justice may institute
disciplinary action against judges either on his own initiative
or on the proposal of the Director of the Department of Courts,
and the fact that the President of the Republic may, on the
proposal of the Minister of Justice, remove the judge against
whom disciplinary action has been instituted from office,
contradict Part 2 of Article 109 of the Constitution.
Taking account of the motives pointed out in the petition
of the petitioner, the Constitutional Court will investigate
Part 4 of Article 59 of the Law only in the scope whereby the
right of the Minister of Justice is established to institute
disciplinary action against the chairperson of a district or
regional court and the Court of Appeal, their deputies,
division chairpersons and other judges, as well as to propose
to remove the judge against whom disciplinary action has been
instituted from office until the outcome of the case becomes
clear.
Special requirements are raised to judges. While
administering justice, judges must be impartial, independent
and conform only to the Constitution and the law. They must act
in such a manner so that the principles of justice would not be
violated. Judges must not yield to the influence of state
institutions or officials, or that of public organisations or
individual citizens. A judge must be of irreproachable
behaviour. Such requirements for judges are necessary as they
help ensure the right of an individual to judicial defence.
Adherence to these requirements guarantees proper
administration of justice.
It is provided for in the Law that disciplinary action may
be instituted against a judge for negligence at work,
malfeasance discrediting the court, behaviour discrediting the
title of a judge.
Under the law, behaviour discrediting the title of a judge
is a clear negligent performance of a particular duty of the
judge or failing to perform it without valid excuse. In
addition, if the judge, within one year of the imposition of
the penalties on him on the grounds referred to in Items 1-3 of
Part 1 of Article 59 of the Law, performs his duties in a
negligent manner or commits malfeasance discrediting the court
for which the Court of Honour of Judges imposes a penalty on
him, or when the judge is engaged in work activity prohibited
by law, such behaviour of his shall also be qualified as
discrediting the title of a judge.
Attempting to guarantee the proper work of courts, the
legislator provided for the responsibility for actions
incompatible with the office of a judge. The Law provides that
disciplinary sanctions are imposed by the Court of Honour of
Judges.
Part 4 of Article 59 of the Law provides for the right of
the Minister of Justice to institute disciplinary action
against the chairperson of a district or regional courts and
the Court of Appeal, their deputies, division chairpersons
either on his own initiative or on the proposal of the Director
of the Department of Courts. The establishment of such a right
by law creates legal pre-conditions for the official of the
executive to exert influence on the activity of courts and
violates the constitutional principle of the independence of
judges and courts. The norm of Part 4 of Article 59 of the Law
providing for the proposal of the Minister of Justice to remove
the judge against whom disciplinary action has been instituted
from office is to be assessed in an analogous manner. Taking
account of the provisions of Part 5 of Article 112 of the
Constitution, only a special institution of judges but never an
institution or an official of the executive may be granted the
right of such a proposal.
Alongside, it needs to be noted that such assessment of
the said norms of the Law does not deny the right of the
legislator to determine the powers of the Minister of Justice
regarding initiation of institution of disciplinary action
against judges.
Taking account of the arguments set forth, it is to be
concluded that the disputed norms of Part 4 of Article 59 of
the Law whereby the right of the Minister of justice is
established to institute disciplinary action against the
chairperson of a district or regional court and the Court of
Appeal, their deputies, division chairpersons and other judges,
as well as to propose to remove the judge against whom
disciplinary action has been instituted from office until the
outcome of the case becomes clear contradict Part 2 of Article
109 and Part 5 of Article 112 of the Constitution.
12. Part 2 of Article 69 of the Law provides: "The
operation of district, regional courts and the Court of Appeal
shall be guaranteed by the Minister of Justice, adhering to the
principles of the independence of the activities of courts and
judges provided herein and of the courts. The Minister of
Justice shall arrange for the improvement of the qualifications
of judges, the financial and material-technical supply of
district, regional courts and the Court of Appeal."
The petitioner maintains that the norms provided in the
said article contradict Part 2 of Article 109 of the
Constitution.
As mentioned, the Law provides that the proper working
conditions in courts shall be guaranteed by the state. The
competence of the Minister of Justice may not exceed the limits
of guaranteeing the proper working conditions of courts. In
case this norm is treated in a different manner, the work
organisation area of courts may be interfered with and the
concept of the judiciary as an independent power would be
denied.
Disputed Part 2 of Article 69 of the Law prescribes that
the Minister of Justice shall arrange for the improvement of
the qualifications of judges, the financial and
material-technical supply of district, regional courts and the
Court of Appeal. It has already been investigated in this
ruling whether the norms establishing the powers of the
Minister of Justice to arrange for the improvement of
professional skills of judges are in compliance with the
Constitution and it was held that they are in compliance with
Part 2 of Article 109 of the Constitution.
Analysing the norm of Part 2 of Article 69 of the Law
whereby the powers of the Minister of Justice to arrange for
the financial and material-technical supply of district,
regional courts and the Court of Appeal, one has to note that
the concept "arrange for the financial and material-technical
supply of courts" is legally undetermined and may be
interpreted in various ways. It may be understood not only as
reflecting the powers of the Minister of Justice to find out as
to how much finances are needed for the activity of courts and
not only as his duty to make sure that these finances were
provided in the state budget, and not only as reflecting the
duty of the Minister of Justice to be present in the Seimas
when the questions of allocation of the assignations provided
for courts in the draft state budget are discussed. The concept
"arrange for the financial and material-technical supply of
courts" which is employed in the Law may also be interpreted
that the Minister of Justice is granted the right to allocate
the assignations provided for in the state budget to individual
courts by himself. Such understanding of this concept employed
in the Law is confirmed by the present regulation of financing
of courts as well: the law on the state budget does not provide
as to how much finances are allocated to every individual court
(with the exception of the Supreme Court of Lithuania). Only
the total sum designated for the whole system of courts is
pointed out therein. Thus, it is not the Seimas that
distributes finances to individual courts by approving the law
on state budget but institutions of the executive. The legal
regulation when it is not the Seimas that distributes finances
to individual courts by approving the law on state budget but
institutions or officials of the executive is not in line with
the constitutional principle of the separation of the executive
and the judiciary and that of independence and autonomy of
these powers, and creates an opportunity for the executive to
exert influence on the activity of courts. The Constitutional
Court notes that the principle of independence of courts also
includes the independent financing of courts from the
executive. This principle may be secured by providing in laws
that the state budget must provide as to how much finances are
to be allocated to every individual court so that proper
conditions might be created for administration of justice.
In the area of the arrangement for financial supply of
courts the powers of the Minister of Justice regarding
preparation of a draft state budget and those concerning its
discussion in the Seimas may be ascribed to his competence.
Taking account of the motives set forth, it is to be
concluded that the norm of Part 2 of Article 69 of the Law
whereby the competence of the Minister of Justice to arrange
for the financial supply of district, regional courts and the
Court of Appeal contradicts Part 2 of Article 109 of the
Constitution.
The disputed norm of Part 2 of Article 69 of the Law
whereby the competence of the Minister of Justice to arrange
for the material-technical supply of district, regional courts
and the Court of Appeal is established is to be assessed in a
different manner. This legal norm is to be interpreted as
including not only the powers of the Minister of Justice to
ascertain the material needs of courts but also his duty to
help the system of courts as well as individual courts to
utilise the finances allocated to them from the state budget in
a rational way, and to create proper conditions for the
activities of courts.
The important thing is that material supply of a court
depends on how much finances are allocated to it from the state
budget. Taking account of the fact that the Minister of Justice
may not be empowered by law to decide as to how much finances
are to be allocated to every individual court, the norm of Part
2 of Article 69 of the Law providing for the powers of the
Minister of Justice to arrange for the material-technical
supply for courts does not violate the independence of justice.
On the grounds of the aforesaid motives it is to be
concluded that the norm Part 2 of Article 69 of the Law
providing for the powers of the Minister of Justice to arrange
for the material-technical supply of district, regional courts
and the Court of Appeal is in conformity with Part 2 of Article
109 of the Constitution.
13. Part 2 of Article 73 of the Law provides: "The
Minister of Justice shall, through the Department of Courts,
chairpersons of courts and other authorised persons, control
the administrative activities of courts and judges, with the
exception of those of the Supreme Court of Lithuania. The
control of the administrative activities of judges shall be
performed in accordance with the procedure established by the
Minister of Justice."
The petitioner is of the opinion that the right of the
Minister of Justice to control the administrative activities of
courts and judges, with the exception of those of the Supreme
Court of Lithuania, as provided for by the Law, contradicts
Part 2 of Article 109 of the Constitution.
It needs to be noted that the norms of the Law do not
disclose as to how the administrative activities of courts and
judges placed under the control of the Minister of Justice are
to be understood. It is possible to conclude from Part 3 of
Article 73 of the Law that this control also encompasses the
measures ensuring prompter investigation of cases which must
also conform to the ethic rules of judges, etc. The said
measures are to be assessed as linked with the direct
performance of the duties of a judge, i.e. administration of
justice in the course of investigation of cases at law.
Due to its vagueness, the norm set down in Item 3 of Part
3 of Article 73 of the Law providing that the control of the
administrative activity of courts (judges) includes other
measures facilitating to guarantee effective administrative and
good quality activity of courts (judges) is also to be assessed
as an improper one.
The Constitutional Court has held in this ruling that
under the Constitution courts are independent and autonomous
power. This constitutional provision means that a judge does
not have to account to any state institution or officials for
the cases at law that are under his investigation, he does not
have to present his cases for anyone to acquaint with only with
the exception of the situations provided for in procedural
laws. The decisions of a judge may be reviewed and altered or
abrogated only by court of a higher instance under the
procedure provided in procedural laws. As mentioned, the
activity of courts is not and may not be an area of
administration ascribed to the Ministry of Justice nor any
other institution of the executive, therefore there exist no
constitutional grounds to establish the powers of the Minister
of Justice permitting him to control the administrative
activities of courts and judges. Moreover, the Minister of
Justice cannot control the course of cases. It needs to be
noted that other state institutions and officials may inquire
the chairperson of a respective court and request to present
the data necessary for guaranteeing proper conditions of court
working conditions. However, these state institutions and
officials have no right to control either directly or
indirectly the actions of a judge when he investigates concrete
cases. Such an interpretation of the principle of independence
of courts would be in line with the case-law of the European
Court of Human Rights when Paragraph 1 of Article 6 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms is applied wherein the right of individuals to a fair
and impartial tribunal is enshrined.
The disputed norm of the Law establishes the control over
the administrative activity of courts and judges which is
exercised by the Minister of Justice through the Department of
Courts, chairpersons of courts and other authorised persons. As
mentioned, the area of this control and its content are defined
in the Law in an imprecise and ambiguous manner. On the basis
of Part 3 of Article 73 of the Law, the legal regulation over
the administrative activity of courts and judges creates
pre-conditions for the Minister of Justice to interfere with
administration of justice. Such legal regulation is to be
assessed as creating pre-conditions for institutions of the
executive or its officials to rule over the courts, therefore
it contradicts the constitutional principle of the independence
of judges and courts when they administer justice.
Taking account of the arguments set forth, it is to be
concluded that Part 2 of Article 73 of the Law contradicts Part
2 of Article 109 of the Constitution.
V
On the compliance of Part 1 of Article 691 of the Law with
the Constitution.
Part 1 of Article 691 of the Law provides: "The Department
of Courts under the Ministry of Justice shall be a legal person
having its seal with the state emblem and its bank account. The
Director of the Department of Courts shall be appointed and
dismissed by the Prime Minister on the proposal of the Minister
of Justice."
The petitioner maintains that the provision of Part 1 of
Article 691 of the Law whereby the Department of Courts shall
be under the Ministry of Justice contradicts Part 2 of Article
109 of the Constitution. In his opinion, the Department of
Courts may not be part of the executive.
Taking account of the motives set down in the petition of
the petitioner, the Constitutional Court will investigate only
the norm of Part 1 of Article 691 of the Law whereby the
Department of Courts shall be under the Ministry of Justice.
Under the Law, certain functions are attributed to the
Department of Courts which help to ensure proper working
conditions of courts. The fact alone that this institution is
under the Ministry of Justice does not mean that the area of
the judiciary is interfered with. The presence of the
Department of Courts under the Ministry of Justice may not
serve as the grounds to recognise that the disputed norm of
Part 1 of Article 691 of the Law contradicts the Constitution.
Taking account of the arguments set forth, it is to be
concluded that provision of Part 1 of Article 691 of the Law
whereby the Department of Courts shall be under the Ministry of
Justice is in compliance with Part 2 of Article 109 of the
Constitution.
Conforming to Article 102 of the Constitution of the
Republic of Lithuania and Articles 53, 54, 55 and 56 of the
Republic of Lithuania Law on the Constitutional Court, the
Constitutional Court has passed the following
ruling:
1. To recognise that Part 2 of Article 33 of the Republic
of Lithuania Law on Courts in the scope whereby the proposal of
the Minister of Justice regarding appointment of judges of
district and regional courts, Part 3 of Article 33 of the same
law in the scope whereby the proposal of the Minister of
Justice regarding appointment of chairpersons of district and
regional courts, Part 2 of Article 34 of the same law in the
scope whereby the proposal of the Minister of Justice regarding
appointment of judges of the Court of Appeal and its
Chairperson from among them, Part 5 of Article 56 of the same
law in the scope whereby the proposal of the Minister of
Justice regarding dismissal of the Chairperson and other judges
of the Court of Appeal from office, Part 7 of Article 56 of the
same law in the scope whereby the proposal of the Minister of
Justice regarding dismissal of chairpersons and other judges of
other courts from office, contradict Part 2 of Article 5, Item
11 of Article 84, Part 2 of Article 109 and Part 5 of Article
112 of the Constitution of the Republic of Lithuania.
2. To recognise that Part 4 of Article 33 of the Republic
of Lithuania Law on Courts in the scope whereby deputy
chairpersons or court division chairpersons shall be appointed
by the Minister of Justice, Part 3 of Article 34 of the same
law in the scope whereby court division chairpersons of the
Court of Appeal shall be appointed by the Minister of Justice
from among the appointed judges, Part 6 of Article 56 of the
same law in the scope whereby court division chairpersons of
the Court of Appeal shall be dismissed from office by the
Minister of Justice, Part 8 of Article 56 of the same law in
the scope whereby deputy chairpersons or court division
chairpersons of other courts shall be dismissed from office by
the Ministry of Justice, contradict Part 2 of Article 109 and
Part 3 of Article 112 of the Constitution of the Republic of
Lithuania.
3. To recognise that Part 2 of Article 14 of the Republic
of Lithuania Law on Courts in the scope whereby the number of
judges in the divisions of civil and criminal cases of regional
courts and the Court of Appeal shall be set by the Minister of
Justice on the proposal of the Director of the Department of
Courts under the Ministry of Justice contradicts Part 2 of
Article 109 of the Republic of Lithuania.
4. To recognise that Part 1 of Article 36 of the Republic
of Lithuania Law on Courts in the scope whereby the proposal of
the Minister of Justice regarding appointment of judges after
his five-year term of office has expired is established
contradicts Part 2 of Article 5, Item 11 of Article 84, Part 2
of Article 109 and Part 5 of Article 112 of the Constitution of
the Republic of Lithuania.
5. To recognise that Part 3 of Article 51 of the Republic
of Lithuania Law on Courts in the scope whereby a judge of a
district or regional court, that of the Court of Appeal and the
Supreme Court of Lithuania, in case he agrees, may, by a decree
of the President of the Republic, be delegated for the term of
up to one year to the structures of the Ministry of Justice or
those of the Department of Courts and that for the term of the
delegation the powers of the delegated judge shall be suspended
contradicts Part 1 of Article 5, Part 2 of Article 109 and Part
1 of Article 113 of the Constitution of the Republic of
Lithuania.
6. To recognise that Part 2 of Article 58 of the Republic
of Lithuania Law on Courts in the scope whereby the proposal of
the Minister of Justice regarding appointment of judges to the
Court of Honour of Judges is established contradicts Part 2 of
Article 109 of the Constitution of the Republic of Lithuania.
7. To recognise that Part 4 of Article 59 of the Republic
of Lithuania Law on Courts in the scope whereby disciplinary
action against the chairperson of a district or regional court
and the Court of Appeal, their deputies, division chairpersons
and other judges may be instituted by the Minister of Justice
on the proposal of the Director of the Department of Courts or
on his own initiative and that the judge against whom
disciplinary action has been instituted may be removed from
office on the proposal of the Minister of Justice until the
outcome of the case becomes clear contradicts Part 2 of Article
109 and Part 5 of Article 112 of the Constitution of the
Republic of Lithuania.
8. To recognise that Part 2 of Article 69 of the Republic
of Lithuania Law on Courts in the scope whereby the competence
of the Minister of Justice to arrange for the financial supply
of district, regional courts and the Court of Appeal is
established contradicts Part 2 of Article 109 of the
Constitution of the Republic of Lithuania.
9. To recognise that Part 2 of Article 73 of the Republic
of Lithuania Law on Courts contradicts Part 2 of Article 109 of
the Constitution of Republic of Lithuania.
10. To recognise that Parts 1 and 2 of Article 251 of the
Republic of Lithuania Law on Courts in the scope whereby the
Ministry of Justice shall organise and coordinate consistent
training of judges and that the compulsory forms of improvement
of professional skills shall be determined by a directive of
the Minister of Justice, Part 1 of Article 26, Part 1 of
Article 30 of the same law, Article 40 of the same law whereby
the rules for distribution of cases to judges, with the
exception of the Supreme Court, shall be confirmed by the
Minister of Justice on the proposal of the Director of the
Department of Courts, Part 1 of Article 66 of the same law in
the scope whereby the powers of the Legal Committee of the
Seimas are established regarding appointment of the Prosecutor
General, Part 1 of Article 691 of the same law whereby the
Department of Courts shall be under the Ministry of Justice,
Part 2 of Article 69 of the same law in the scope whereby the
powers of the Minister of Justice regarding arrangement for the
material-technical supply of district, regional courts and the
Court of Appeal, are in compliance with 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.