Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of Paragraphs 1 and 2 of Article 4,
Paragraphs 1 and 3 of Article 5, Item 1 of Paragraph 3,
Paragraphs 4, 5 and 6 of Article 7 of the Republic of Lithuania
Law on Remuneration for Work of State Politicians, Judges and
State Officials, as well as Chapter II of the Appendix to the
same law, Appendix 6 to the Republic of Lithuania Law on the
Approval of the Financial Indices of the 2000 State Budget and
the Budgets of Local Governments, Article 9 of the Republic of
Lithuania Law on Amending the Law on the Approval of the
Financial Indices of the 2000 State Budget and the Budgets of
Local Governments, Government of the Republic of Lithuania
Resolution No. 499 "On the Temporary Experimental Procedure for
Remuneration for Work to Heads and Other Officials of State
Power, State Administration and Law Enforcement Bodies" of 29
November 1991, Government of the Republic of Lithuania
Resolution No. 666 "On Remuneration for Work of Judges of
Courts, Officials and Other Employees of the Prosecutor's
Office and the State Security Department of the Republic of
Lithuania" of 24 June 1997, Government of the Republic of
Lithuania Resolution No. 1494 "On the Partial Amendment of
Government of the Republic of Lithuania Resolution No. 689 'On
Remuneration for Work of Chief Officials and Officers of Law
and Order Institutions and of Law Enforcement and Control
Institutions' of 30 June 1997'" of 28 December 1999 with the
Constitution of the Republic of Lithuania
Vilnius, 12 July 2001
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 representative of the party concerned-the Seimas of
the Republic of Lithuania-Egidijus Rumbutis, a consultant to
the Legal Department of the Office of the Seimas,
the representatives of the party concerned-the Government
of the Republic of Lithuania-Algis Baležentis, the chief
specialist of the Private Law Division of the Legal Department
of the Ministry of Justice of the Republic of Lithuania, Vida
Žagūnienė, Head of the Division for the Security Programmes of
the State and Society of the Budget Department of the Ministry
of Finance of the Republic of Lithuania, and Viktorija
Jakubonienė, Deputy Director of the Legal Department of the
same ministry,
pursuant to Paragraph 1 of Article 102 of the Constitution
of the Republic of Lithuania and Paragraph 1 of Article 1 of
the Republic of Lithuania Law on the Constitutional Court, on
28 June 2001 in its public hearing conducted the investigation
of Case No.
13/2000-14/2000-20/2000-21/2000-22/2000-25/2000-31/2000-35/2000
-39/2000-8/01-31/01 subsequent to the petition submitted to the
Court by the petitioners-the Vilnius City Court of the First
District, the Higher Administrative Court, the Vilnius Regional
Administrative Court-requesting investigation into the
compliance of Article 4, Paragraphs 1 and 3 of Article 5,
Article 7 of the Republic of Lithuania Law on Remuneration for
Work of State Politicians, Judges and State Officials, as well
as Chapter II of the Appendix to the same law, the Republic of
Lithuania Law on Amending Article 7 of the Law on Remuneration
for Work of State Politicians, Judges and State Officials,
Appendix 6 to the Republic of Lithuania Law on the Approval of
the Financial Indices of the 2000 State Budget and the Budgets
of Local Governments, Article 9 of the Republic of Lithuania
Law on Amending the Law on the Approval of the Financial
Indices of the 2000 State Budget and the Budgets of Local
Governments, Government of the Republic of Lithuania Resolution
No. 499 "On the Temporary Experimental Procedure for
Remuneration for Work of Heads of State Power, State
Administration and Law Enforcement Bodies and of Other
Officials" of 29 November 1991, Government of the Republic of
Lithuania Resolution No. 666 "On Remuneration for Work of
Judges of Courts, Officials and Other Employees of the
Prosecutor's Office and the State Security Department of the
Republic of Lithuania" of 24 June 1997, Government of the
Republic of Lithuania Resolution No. 1494 "On the Partial
Amendment of Government of the Republic of Lithuania Resolution
No. 689 'On Remuneration for Work of Chief Officials and
Officers of Law and Order Institutions and of Law Enforcement
and Control Institutions' of 30 June 1997'" of 28 December 1999
with the principle of a law-governed state established in the
Constitution of the Republic of Lithuania, Articles 5 and 109,
Paragraph 1 of Article 113 and Paragraph 1 of Article 114 of
the Constitution of the Republic of Lithuania.
By the Constitutional Court decision of 20 June 2001, the
above-mentioned petitions were joined into one case.
The Constitutional Court
has established:
I
On 29 November 1991, the Government adopted Resolution No.
499 "On the Temporary Experimental Procedure for Remuneration
for Work of Heads of State Power, State Administration and Law
Enforcement Bodies and of Other Officials" (Official Gazette
Valstybės žinios, 1992, No. 3-62).
On 24 June 1997, the Government adopted Resolution No. 666
"On Remuneration for Work of Judges of Courts, Officials and
Other Employees of the Prosecutor's Office and the State
Security Department of the Republic of Lithuania" (Official
Gazette Valstybės žinios, 1997, No. 60-1428), whereby official
salaries of judges of the Republic of Lithuania were confirmed.
On 28 December 1999, the Government adopted Resolution No.
1494 "On the Partial Amendment of Government of the Republic of
Lithuania Resolution No. 689 'On Remuneration for Work of Chief
Officials and Officers of Law and Order Institutions and of Law
Enforcement and Control Institutions' of 30 June 1997'"
(Official Gazette Valstybės žinios, 1999, No. 73-2257), whereby
Government Resolution No. 689 "On Remuneration for Work of
Chief Officials and Officers of Law and Order Institutions and
of Law Enforcement and Control Institutions" of 30 June 1997
was partially amended. It is established in this resolution
that the official salaries (their coefficients) shall be
reduced from 2.3 till 1.75 times, and that as of 1 January 2000
the official salaries shall be calculated by applying
coefficient 1.75.
On 23 December 1999, the Seimas passed the Law on the
Approval of the Financial Indices of the 2000 State Budget and
the Budgets of Local Governments (Official Gazette Valstybės
žinios, 1999, No. 113-3295) Appendix 6 whereof provides for
expenses for the law institutions on the basis of the Programme
for Implementation of the Outline of the Legal System Reform.
On 13 July 2000, the Seimas passed the Law on Amending the
Law on the Approval of the Financial Indices of the 2000 State
Budget and the Budgets of Local Governments (Official Gazette
Valstybės žinios, 2000, No. 61-1835) by Article 9 whereof, upon
amendment of Appendix 6 to the aforementioned law, fewer
expenses were provided for law institutions on the basis of the
Programme for Implementation of the Outline of the Legal System
Reform than were established in the wording of 23 December 1999
of the aforementioned law.
On 29 August 2000, the Seimas adopted the Republic of
Lithuania Law on Remuneration for Work of State Politicians,
Judges and State Officials (Official Gazette Valstybės žinios,
2000, No. 75-2271; hereinafter also referred to as the Law). On
17 October 2000, the Seimas adopted the Republic of Lithuania
Law on Amending the Law on Remuneration for Work of State
Politicians, Judges and State Officials (Official Gazette
Valstybės žinios, 2000, No. 92-2887). On 27 March 2001, the
Seimas adopted the Republic of Lithuania Law on Amending
Article 7 of the Law on Remuneration for Work of State
Politicians, Judges and State Officials (Official Gazette
Valstybės žinios, 2001, No. 29-918).
1. The petitioner-the Vilnius City Court of the First
District-was investigating a case regarding adjudication of
compensations for remuneration not received. By its ruling of 7
April 2000, the said court suspended the investigation of the
case and appealed to the Constitutional Court with a petition
requesting investigation into the compliance of Paragraphs 1
and 3 of Article 5, Item 1 of Paragraph 3 of Article 7,
Paragraph 5 of Article 7, Chapter II of the Appendix to the
same law as well as other provisions of the same law whereby by
one or another form the remuneration for work and other
payments in fact received by judges exercising judicial
functions in a professional capacity until 1 January 2000 which
had been paid to them from the budget of the state were reduced
with Articles 109 and 114 of the Constitution.
The request of the petitioner is based on the fact that
the arguments and conclusions of the Constitutional Court
ruling of 6 December 1995, ruling of 21 December 1999, and
decision of 12 January 2000 provide with the grounds to presume
that Paragraphs 1 and 3 of Article 5, Item 1 of Paragraph 3 of
Article 7, Paragraph 5 of Article 7, Chapter II of the Appendix
to the same law as well as other provisions of the same law
whereby by one or another form the remuneration for work and
other payments in fact received by judges exercising judicial
functions in a professional capacity until 1 January 2000 which
had been paid to them from the budget of the state were reduced
conflict with Articles 109 and 114 of the Constitution.
2. The petitioner-the Vilnius City Court of the First
District-was investigating a civil case regarding payment of
salaries. By its ruling of 11 April 2000 the said court
suspended the investigation of the case and appealed to the
Constitutional Court with a petition requesting investigation
into the compliance of Government Resolution No. 1494 of 28
December 1999 whereby the judges' salaries coefficient was
reduced from 2.5 till 1.75 with Articles 109 and 114 of the
Constitution guaranteeing the independence of courts and
judges.
3. The petitioner-the Vilnius City Court of the First
District-was investigating a civil case regarding payment of
salaries. By its ruling of 16 May 2000 the said court suspended
the investigation of the case and appealed to the
Constitutional Court with a petition requesting investigation
into the compliance of Government Resolution No. 1494 of 28
December 1999 whereby the official salaries of judges for
chairpersons of courts were reduced with Articles 109 and 114
of the Constitution.
The request of the petitioner is based on the fact that
any attempts to reduce salaries of judges are treated as
encroachment upon the guarantees of the principle of the
independence of courts and judges which is entrenched in the
Constitution.
4. The petitioner-the Vilnius City Court of the First
District-was investigating a civil case regarding reduced
official salaries. By its ruling of 16 May 2000 the said court
suspended the investigation of the case and appealed to the
Constitutional Court with a petition requesting investigation
into the compliance of Paragraph 1 of Article 1 of the Republic
of Lithuania Law on the Approval of the Financial Indices of
the 2000 State Budget and the Budgets of Local Governments
which is linked with the sum approved in Appendix 6 to the same
law for the expenses of remuneration for work for the Kaunas
Regional Court, as well as Government Resolution No. 1494 of 28
December 1999, with Articles 109 and 114 of the Constitution
guaranteeing the independence of courts and judges.
The request of the petitioner is based on the following
arguments. Upon adoption of the Republic of Lithuania Law on
the Approval of the Financial Indices of the 2000 State Budget
and the Budgets of Local Governments on 23 December 1999, in
Appendix 6 thereof the approved sum designated for the expenses
of remuneration for work for the Kaunas Regional Court does not
ensure the payment of judges' salaries of the size paid until 1
January 2000. It was held in the Constitutional Court ruling of
6 December 1995 that any attempts to reduce the salary or other
social guarantees of the judge or cut the budget of the
judiciary are interpreted as infringement on the guarantees of
social (material) character of the principle of independence of
judges and courts entrenched in Paragraph 2 of Article 109 of
the Constitution. The same attitude of the Constitutional Court
is also set forth in its ruling of 24 December 1999 and
decision of 12 January 2000. Thus, one is to suppose that the
Republic of Lithuania Law on the Approval of the Financial
Indices of the 2000 State Budget and the Budgets of Local
Governments and Government Resolution No. 1494 of 28 December
1999 on the reduction of judges' salaries conflict with
Articles 109 and 114 of the Constitution.
5. The petitioner-the Vilnius City Court of the First
District-was investigating a civil case regarding payment of
official salaries. By its ruling of 16 May 2000 the said court
suspended the investigation of the case and appealed to the
Constitutional Court with a petition requesting investigation
into the compliance of Paragraph 1 of Article 1 of the Republic
of Lithuania Law on the Approval of the Financial Indices of
the 2000 State Budget and the Budgets of Local Governments and
Government Resolution No. 1494 of 28 December 1999 with
Articles 109 and 114 of the Constitution.
The request of the petitioner is based on the following
arguments. Upon adoption of the Law on the Approval of the
Financial Indices of the 2000 State Budget and the Budgets of
Local Governments on 23 December 1999, in Appendix 6 thereof
the approved sum designated for the expenses of remuneration
for work for the Šiauliai Regional Court does not ensure the
payment of judges' salaries of the size paid until 1 January
2000. It was held in the Constitutional Court ruling of 6
December 1995 that any attempts to reduce the salary or other
social guarantees of the judge or cut the budget of the
judiciary are interpreted as infringement on the guarantees of
the principle of independence of judges and courts entrenched
in Paragraph 2 of Article 109 of the Constitution.
6. The petitioner-the Vilnius City Court of the First
District-was investigating a civil case regarding official
salaries. By its ruling of 8 June 2000 the said court suspended
the investigation of the case and appealed to the
Constitutional Court with a petition requesting investigation
into the compliance of Government Resolution No. 1494 of 28
December 1999, to the extent that it is linked with reduction
of official salaries of chairpersons of courts and judges, with
Articles 109 and 114 of the Constitution. The request of the
petitioner is based on the fact that any attempts to reduce
salaries of judges are treated as infringement on the
guarantees of the principle of independence of judges and
courts enshrined in the Constitution.
7. The petitioner-the Higher Administrative Court-was
investigating a civil case regarding payment of official
salaries. By its ruling of 7 June 2000 the said court suspended
the investigation of the case and appealed to the
Constitutional Court with a petition requesting investigation
into the compliance of Government Resolution No. 666 of 24 June
1997, Government Resolution No. 499 of 29 November 1991, and
Government Resolution No. 1494 of 28 December 1999 with
Paragraph 2 of Article 109 and Article 114. The request of the
petitioner is based on the fact that the said Government
resolutions violate the principle of independence of judges and
courts, which is established in the Constitution and on the
fact that institutions of state power and administration
attempt to interfere with the activities of judges and courts,
thus violating the Constitution.
8. The petitioner-the Higher Administrative Court-was
investigating an administrative case regarding payment of
difference in salaries. By its ruling of 3 October 2000 the
said court suspended the investigation of the case and appealed
to the Constitutional Court with a petition requesting
investigation into the compliance of Articles 4 and 7 of the
Law on Remuneration for Work of State Politicians, Judges and
State Officials, as well as Chapter II of the Appendix to the
same law, Appendix 6 to the Republic of Lithuania Law on the
Approval of the Financial Indices of the 2000 State Budget and
the Budgets of Local Governments, Article 9 of the Republic of
Lithuania Law on Amending the Law on the Approval of the
Financial Indices of the 2000 State Budget and the Budgets of
Local Governments, Government Resolution No. 1494 of 28
December 1999 with the principle of a law-governed state
established in the Preamble to the Constitution, the principle
of separation of powers established in Article 5 of the
Constitution, Article 109, Paragraph 1 of Article 113 and
Paragraph 1 of Article 114 of the Constitution.
The request of the petitioner is based on the following
arguments. The Constitution contains a prohibition for
institutions of state power and administration to interfere
with activities of judges or courts, as well as the provision
that judges are not permitted to receive any remuneration other
than the salary established for judges as well as payments for
educational or creative activities. Article 5 of the
Constitution establishes the principle of separation of powers,
while the Preamble to the Constitution establishes the
principle of a law-governed state. The protection of salaries
and other social guarantees for judges is one of the guarantees
for the principle of the independence of judges and courts. Any
attempts to reduce salaries or other social guarantees of
judges while they are exercising judicial functions in a
professional capacity are prohibited. By Articles 4 and 7 of
the Law on Remuneration for Work of State Politicians, Judges
and State Officials, as well as by Chapter II of the Appendix
to the same law the salaries of judges were reduced if compared
with those which had been paid before. By Appendix 6 to the
Republic of Lithuania Law on the Approval of the Financial
Indices of the 2000 State Budget and the Budgets of Local
Governments which was adopted on 23 December 1999, the means
allocated to financing of courts, including salaries to judges,
were such that salaries of judges decreased considerably.
Article 9 of the Republic of Lithuania Law on Amending the Law
on the Approval of the Financial Indices of the 2000 State
Budget and the Budgets of Local Governments reduced financing
for certain courts even more if compared with Appendix 6; by
Government Resolution No. 1494 of 28 December 1999 the formerly
established increase of the coefficient of official salaries of
judges was reduced from 2.5 till 1.75.
By the disputed legal acts salaries of judges were
reduced, therefore the court has doubts if these legal acts are
in compliance with the principle of a law-governed state
established in the Preamble to Constitution, the principle of
separation of powers established in Article 5, as well as
whether they do not violate the principle of independence of
judges and courts which is enshrined in Paragraph 2 of Article
109 of the Constitution, and whether, by reducing judges'
salaries, institutions of state power and administration do not
interfere with activities of judges and courts thereby
violating Article 114 of the Constitution.
9. The petitioner-the Higher Administrative Court-was
investigating an administrative case regarding defence of
infringed rights and payment of remuneration for work. By its
ruling of 7 October 2000 the said court suspended the
investigation of the case and appealed to the Constitutional
Court with the petition requesting investigation into the
compliance of Articles 4 and 7 of the 29 August 2000 Law on
Remuneration for Work of State Politicians, Judges and State
Officials, as well as Chapter II of the Appendix to the same
law, Appendix 6 to the 23 December 1999 Republic of Lithuania
Law on the Approval of the Financial Indices of the 2000 State
Budget and the Budgets of Local Governments, Article 9 of the
Republic of Lithuania Law on Amending the Law on the Approval
of the Financial Indices of the 2000 State Budget and the
Budgets of Local Governments enacted by the Seimas on 13 July
2000, Government Resolution No. 1494 of 28 December 1999, to
the extent that it reduced salaries of judges, with the
principle of a law-governed state established in the
Constitution as well as Article 5, Article 109, Paragraph 1 of
Article 113 and Paragraph 1 of Article 114 of the Constitution.
The request of the petitioner is based on the fact that
the protection of salaries and other social guarantees of
judges is one of the constitutional guarantees of the
independence of judges and courts. In effort to ensure the
independence of judges and courts from the legislative and
executive powers, any attempts to reduce salaries or other
social guarantees of judges while they are exercising judicial
functions in a professional capacity are prohibited.
10. The petitioner-the Vilnius City Court of the First
District-was investigating a case regarding payment of
salaries. By its ruling of 21 December 2000, the said court
suspended the investigation of the case and appealed to the
Constitutional Court with a petition requesting investigation
into the compliance of Paragraphs 1 and 3 of Article 5, Item 1
of Paragraph 3 of Article 7, Paragraph 5 of Article 7 of the 29
August 2000 Law on Remuneration for Work of State Politicians,
Judges and State Officials, Chapter II of the Appendix to the
same law as well as other provisions of the same law whereby by
one or another form the remuneration for work and other
payments in fact received by judges exercising judicial
functions in a professional capacity which had been paid to
them from the budget of the state until 1 January 2000 were
reduced with Articles 109 and 114 of the Constitution.
The request of the petitioner is based on the fact that
the arguments and conclusions of the Constitutional Court
ruling of 6 December 1995, ruling of 21 December 1999, and
decision of 12 January 2000 provide with the grounds to presume
that Paragraphs 1 and 3 of Article 5, Item 1 of Paragraph 3 of
Article 7, Paragraph 5 of Article 7 of the 29 August 2000 Law
on Remuneration for Work of State Politicians, Judges and State
Officials, Chapter II of the Appendix to the same law as well
as other provisions of the same law whereby by one or another
form the remuneration for work and other payments in fact
received by judges exercising judicial functions in a
professional capacity until 1 January 2000 were reduced are in
conflict with Articles 109 and 114 of the Constitution.
11. The petitioner-the Vilnius Regional Administrative
Court-was investigating an administrative case regarding
defence of infringed rights and payment of remuneration for
work. By its ruling of 11 May 2001 the said court suspended the
investigation of the case and appealed to the Constitutional
Court with the petition requesting investigation into the
compliance of the 27 March 2001 Law on Amending Article 7 of
the Law on Remuneration for Work of State Politicians, Judges
and State Officials with the principle of a law-governed state
entrenched in the Preamble to the Constitution, the principle
of separation of powers established in Article 5 of the
Constitution, Article 109, Paragraph 1 of Article 113 and
Paragraph 1 of Article 114 of the Constitution.
The request of the petitioner is based on the following
arguments.
By the norm of Article 1 of the disputed law the time
period was changed during which the remuneration for work of
judges is reduced, alongside, the coefficients of computation
of remuneration for work for this period were also changed. By
the norm of Article 2 of the disputed law an earlier date was
established as of which judges must be paid the remuneration
for work determined by the law, i.e. this law regulates the
procedure of reduction of remuneration for work of judges. The
Constitution provides that, in the Republic of Lithuania, the
courts shall have the exclusive right to administer justice,
and that, while administering justice, judges and courts shall
be independent and obey only the law. The protection of
salaries and other social guarantees of judges is one of the
guarantees of the principle of independence of judges and
courts, and, in effort to ensure the independence of judges and
courts from the legislative and executive powers, any attempts
to reduce salaries or other social guarantees of judges while
they are exercising judicial functions in a professional
capacity are prohibited.
II
In the course of the preparation of the case for the court
hearing, written explanations of 19 March 2001 and of 27 June
2001 were received from E. Rumbutis, a consultant of the Legal
Department of the Office of the Seimas. The representative of
the party concerned notes therein that the fact that the
provisions of Article 5 of the Law on Remuneration for Work of
State Politicians, Judges and State Officials provide that
"judges <...> shall be paid extra pays for the years served for
the State of Lithuania from 11 March 1990" and the fact that
"the extra pay for the years served for the State shall be
comprised of 3 percent of the official salary of the judge for
every three years, however, the size of the extra pay may not
exceed 30 percent of the official salary" in themselves do not
mean that thereby judges' salary is reduced, as the salary is
comprised not only of the extra pay for the years served for
the State of Lithuania. This conclusion may be grounded on
Paragraph 2 of Article 3 of the said law whereby the
remuneration for work of judges is comprised of the official
salary, the extra pay for the years served for the State of
Lithuania and a one-time bonus.
Under Item 1 of Paragraph 3 of Article 7 of the Law on
Remuneration for Work of State Politicians, Judges and State
Officials, state politicians, judges and state officials whose
average remuneration for work computed under the procedure
established by the Government on the basis of the official
remuneration (official salaries) received during the preceding
three months and of the established extra pays and bonuses of
the preceding twelve months is bigger than the remuneration for
work provided for in this law shall, upon this law going into
effect, be paid the remuneration for work that they will have
been paid until then and it shall not be increased in 2000.
Chapter II of the Appendix to the said law establishes the
coefficients of judges' official salaries, however, it is
impossible to assert on their basis that the judges' salaries
pointed out in the appendix will decrease in the course of the
application of the is law. Under Paragraph 2 of Article 3 of
the said law, the remuneration for work of judges shall consist
of the official salary, extra pay for the years served for the
State of Lithuania, and a one-time bonus.
Paragraph 2 of Article 109 of the Constitution provides
that, while administering justice, judges and courts shall be
independent. The independence of courts is based on the
principle of separation of powers.
In the opinion of the representative of the party
concerned, the independence of judges established in Paragraph
2 of Article 109 of the Constitution does not have a direct
connection with judges' salaries, extra pays and bonuses as
judges receive salaries, extra pays and bonuses for their work
but not for consideration of particular cases. The independence
of judges and courts is also conditioned by the right of a
person to have an impartial arbiter of the dispute. Of course,
their right means that in a law-governed state everyone is
given an opportunity to defend his rights in court against
unlawful actions of other persons as well as state institutions
and officials. It is of crucial importance to guarantee this
when there is a conflict concerning the inborn rights and
freedoms. However, Paragraph 3 of Article 109 of the
Constitution provides that, while investigating cases, judges
shall obey only the law, therefore even if there should be so
that judges' salaries, in connection with a complicated
situation of the Lithuanian economy, were decreased, this
should not and may not exert any influence on administration of
justice. Paragraph 1 of Article 48 of the Constitution provides
that every person must have adequate compensation for work.
This constitutional provision pre-supposes that fact that an
individual must receive adequate remuneration for work which
would guarantee the individual and the members of his family an
adequate subsistence level. This constitutional provision
pre-supposes that in the state no one may receive an
disproportionately big salary if compared with the majority of
working people.
The Constitution provides that institutions of state power
and administration, members of the Seimas and other officers,
political parties, political or public organizations, and
citizens shall be prohibited from interfering with the
activities of a judge or the court, and violation of this shall
incur liability provided by law. However, even though the
Seimas is empowered to enact laws, it did not establish
salaries for particular judges in the Republic of Lithuania Law
on the Approval of the Financial Indices of the 2000 State
Budget and the Budgets of Local Governments, therefore it is
not to be held as an attempt to influence judges in effort to
hinder them to consider the case fairly. The salaries of judges
and the bonuses (extra pays) are established on the basis of
the criteria entrenched in the laws and according to the size
of finances designated for remuneration for work.
Alongside, one must pay attention to the fact that by the
Republic of Lithuania Law on the Approval of the Indices of the
2000 State Social Insurance Fund Budget the tariff for state
social insurance payments for those insured against by the law
was increased from 1 to 3 percent, which also influenced the
actual size of the extra pays to official salaries.
While assessing the requirements and motives regarding the
reduction of the salaries, one is also to note that by the Law
"On the Official Salaries of Judges of Courts, Employees of the
Prosecutor's Office, State Arbiters and Employees of the State
Control Department of the Republic of Lithuania" the Seimas
commissioned the Government to establish salaries for judges
until the specification of respective laws. Implementing this
law, on 3 March 1993 the Government adopted Resolution No. 124
"On the Remuneration for Work of the Employees of Courts, State
Arbitration, Prosecutor's Office and State Control Department
of the Republic of Lithuania" whereby it established salaries
of judges. By its Resolution No. 74 of 3 February 1994, the
Government increased these salaries by 60 percent.
The Republic of Lithuania Law on Courts enacted on 31 May
1994 went into effect on 18 June 1994. On that day the law of 3
February 1993 whereby the Government had been commissioned to
establish salaries of judges became null and void. Regardless
of this, the Government by its Resolution No. 666 of 24 June
1997 established higher salaries of judges, by its Resolution
No. 689 of 30 June 1997 increased salaries of judges, while by
its Resolution No. 1494 of 28 December 1999 reduced them. Thus
the Government was exercising the functions which were not
ascribed to it, while its decisions were not in line with the
provisions of Article 55 of the Law on Courts.
On 29 August 2000 the Seimas enacted the Law on
Remuneration for Work of State Politicians, Judges and State
Officials whereby salaries of judges were established. Thus the
provisions of Article 55 of the Law on Courts were
consolidated. In the opinion of the representative of the party
concerned, one ought to compare the salaries of judges
established by Government Resolutions Nos. 124 and 74 of 3
March 1993 and by the Law on Remuneration for Work of State
Politicians, Judges and State Officials. According to the
representative of the party concerned, the disputed provisions
of the Law on Remuneration for Work of State Politicians,
Judges and State Officials are in compliance with the
Constitution.
III
1. At the Constitutional Court hearing E. Rumbutis, the
representative of the Seimas, virtually reiterated the
arguments set forth in his written explanations.
2. At the Constitutional Court hearing, A. Baležentis, the
representative of the Government, the chief specialist of the
Private Law Division of the Law Department of the Ministry of
Justice, explained that the Seimas, by the Law "On the Official
Salaries of Judges of Courts, Employees of the Prosecutor's
Office, State Arbiters and Employees of the State Control
Department of the Republic of Lithuania" of 3 February 1993
commissioned temporarily an institution of the executive to
regulate the relations occurring due to the official salaries
of judges of courts of the Republic of Lithuania. Until the
adoption of a law regulating remuneration for work of judges,
the commissioning for the Government by the legislator to
establish official salaries of judges was valid and the
Government had to enforce it. The Government, by its Resolution
No. 689 "On Remuneration for Work of Chief Officials and
Officers of Law and Order Institutions and of Law Enforcement
and Control Institutions" of 30 June 1997, increased 2.5 times
as much the official salaries (their coefficients) of judges of
the Republic of Lithuania established by resolutions of the
Government without exceeding the limit of the finances
designated for remuneration for work. After the financial
situation of this country had become worse, in its Resolution
No. 1494 "On the Partial Amendment of Government of the
Republic of Lithuania Resolution No. 689 'On Remuneration for
Work of Chief Officials and Officers of Law and Order
Institutions and of Law Enforcement and Control Institutions'
of 30 June 1997'" of 28 December 1999 the Government
established that as of 1 January 2000 the official salaries
shall be increased 1.75 but not 2.5 times as much, without
exceeding the finances designated for remuneration for work.
In the opinion of A. Baležentis, on the basis of the size
of the finances designated for remuneration for work of judges,
official salaries of judges are established. Therefore, a
conclusion is to be drawn that in 1993-2000 the competence of
the Government in the establishment of certain sizes of
salaries for judges was conditioned by the size of means
allocated for the finances designated for remuneration for work
of judges approved in the laws on the approval of the financial
indices of the state budget and the budgets of local
governments for respective years approved by the Seimas. The
Government must accomplish respective actions under the
competence granted to it and to restrain from actions which are
not allowed by legal norms (Constitutional Court ruling of 17
June 1997). The Government, implementing the commissioning by
the Seimas, by its Resolution No. 1494 of 28 December 1999
established the size of judges' salaries, by taking account of
the Law on the Approval of the Financial Indices of the 2000
State Budget and the Budgets of Local Governments.
3. The representative of the party concerned-the
Government-V. Žagūnienė, Head of the Division for the Security
Programmes of the State and Society of the Budget Department of
the Ministry of Finance, explained at the Constitutional Court
hearing that in 1999, when this country found itself in a
difficult economic situation, the Government had to take
certain decisions so that the 2000 state budget and the budget
of the State Social Insurance Fund would be implemented. One of
the decisions was reduction of judges' salaries.
The representative of the party concerned-the
Government-V. Jakubonienė, Deputy Director of the Legal
Department of the Ministry of Finance explained at the
Constitutional Court hearing that in the Constitution the
principle of separation of powers is entrenched, however, this
principle is not an absolute one. By the Law "On the Official
Salaries of Judges of Courts, Employees of the Prosecutor's
Office, State Arbiters and Employees of the State Control
Department of the Republic of Lithuania" of 3 February 1993 the
Seimas established that until the specification of respective
laws, the official salaries of judges of courts of the Republic
of Lithuania shall be established by the Government. Thus, a
conclusion is to be drawn that the Government was enforcing the
commissioning of the Seimas. In 1999 the economic-financial
situation was very difficult and this conditioned the changes
in the establishment of judges' salaries.
The Constitutional Court
holds that:
I
1. The petitioners-the Higher Administrative Court by its
rulings of 7 April 2000, 7 June 2000, 3 October 2000, 7
November 2000, the Vilnius Regional Administrative Court by its
ruling of 11 May 2001, the Vilnius City Court of the First
District by its ruling of 11 April 2000, three rulings of 16
May 2000, as well as the rulings of 8 June 2000 and 21 December
2000, request investigation into the compliance of Government
Resolution No. 499 of 29 November 1991, Government Resolution
No. 666 of 24 June 1997, Government Resolution No. 1494 of 28
December 1999, as well as Appendix 6 to the Republic of
Lithuania Law on the Approval of the Financial Indices of the
2000 State Budget and the Budgets of Local Governments, the
provisions of Article 9 of the Republic of Lithuania Law on
Amending the Law on the Approval of the Financial Indices of
the 2000 State Budget and the Budgets of Local Governments, and
Articles 4, 5, and 7 of the Law on Remuneration for Work of
State Politicians, Judges and State Officials, as well as the
provisions of Chapter II "Official Salaries of Judges" of the
Appendix to the same law whereby salaries of judges are
established, with the Constitution.
2.1. On 29 November 1991, the Government adopted
Resolution No. 499 "On the Temporary Experimental Procedure for
Remuneration for Work to Heads and Other Officials of State
Power, State Administration and Law Enforcement Bodies" wherein
it established the temporary experimental procedure for
remuneration for work to heads and other officials of state
power, who exercised the functions of state administration and
law enforcement.
2.2. On 24 June 1997, the Government adopted Resolution
No. 666 "On Remuneration for Work of Judges of Courts,
Officials and Other Employees of the Prosecutor's Office and
the State Security Department of the Republic of Lithuania"
wherein salaries of judges were confirmed, as well as extra
pays to judges for the time of service and additional
conditions of remuneration for work applicable to judges were
established.
2.3. On 28 December 1999, the Government adopted
Resolution No. 1494 "On the Partial Amendment of Government of
the Republic of Lithuania Resolution No. 689 'On Remuneration
for Work of Chief Officials and Officers of Law and Order
Institutions and of Law Enforcement and Control Institutions'
of 30 June 1997'" whereby it was decided to partially amend
Government Resolution No. 689 "On Remuneration for Work of
Chief Officials and Officers of Law and Order Institutions and
of Law Enforcement and Control Institutions" of 30 June 1997.
2.4. In Appendix 6 entitled "Distribution of the Expenses
to Law Institutions for Program 1.1 'Implementation of the
Outline of the Reform of the Legal System'", which was approved
by Paragraph 1 of Article 1 of the 23 December 1999 Republic of
Lithuania Law on the Approval of the Financial Indices of the
2000 State Budget and the Budgets of Local Governments, means
designated for financing of courts were provided for.
2.5. By Article 9 of the 13 July 2000 Republic of
Lithuania Law on Amending the Law on the Approval of the
Financial Indices of the 2000 State Budget and the Budgets of
Local Governments in Appendix 6 "Expenses for Law Institutions"
of the Republic of Lithuania Law on the Approval of the
Financial Indices of the 2000 State Budget and the Budgets of
Local Governments, the indices of means designated for
financing respective courts were amended.
2.6. The Law, which was enacted on 29 August 2000,
established the sizes of judges' salaries and conditions of
their payments, as well as the reduction of salaries of the
judges whose salary is bigger than provided in this law, by
applying, during the transitional period, a respective formula
provided for in the law. Certain provisions of this law were
amended by the 17 October 2000 Law on Amending the Law on
Remuneration for Work of State Politicians, Judges and State
Officials and the 27 March 2001 Law on Amending Article 7 of
the Law on Remuneration for Work of State Politicians, Judges
and State Officials.
II
1. On 3 February 1993, the Seimas enacted the Law "On the
Official Salaries of Judges of Courts, Employees of the
Prosecutor's Office, State Arbiters and Employees of the State
Control Department of the Republic of Lithuania" wherein it was
established that until respective laws are specified, salaries
of judges shall be established by Government resolutions. The
provision of this law that until respective laws are specified,
salaries of judges shall be established by Government
resolutions meant a temporary commissioning for the Government
to regulate the said relations.
On 29 August 2000, the Seimas enacted the Law on
Remuneration for Work of State Politicians, Judges and State
Officials whereby salaries of judges were established. It means
that after this law had gone into effect, the commissioning for
the Government to establish salaries of judges, which had been
provided for by the aforementioned 3 February 1993 Law "On the
Official Salaries of Judges of Courts, Employees of the
Prosecutor's Office, State Arbiters and Employees of the State
Control Department of the Republic of Lithuania", became null
and void. Taking account of the fact that the Law regulates the
relations of judges' salaries differently from the Government
resolutions, the legal regulation established in Government
Resolution No. 499 "On the Temporary Experimental Procedure for
Remuneration for Work to Heads and Other Officials of State
Power, State Administration and Law Enforcement Bodies" of 29
November 1991, Government Resolution No. 666 "On Remuneration
for Work of Judges of Courts, Officials and Other Employees of
the Prosecutor's Office and the State Security Department of
the Republic of Lithuania" of 24 June 1997 and Government
Resolution No. 1494 "On the Partial Amendment of Government of
the Republic of Lithuania Resolution No. 689 'On Remuneration
for Work of Chief Officials and Officers of Law and Order
Institutions and of Law Enforcement and Control Institutions'
of 30 June 1997'" of 28 December 1999 is no longer in force.
Taking account of this, it is to be held that there are grounds
to dismiss the instituted legal proceedings in this part of the
case. In this part of the case the instituted legal proceedings
shall be dismissed.
2. In Appendix 6 to the 23 December 1999 Republic of
Lithuania Law on the Approval of the Financial Indices of the
2000 State Budget and the Budgets of Local Governments,
"Distribution of the Expenses to Law Institutions for Program
1.1 'Implementation of the Outline of the Reform of the Legal
System'" was established. By Article 9 of the 13 July 2000
Republic of Lithuania Law on Amending the Law on the Approval
of the Financial Indices of the 2000 State Budget and the
Budgets of Local Governments amendments were made in Appendix 6
to the Republic of Lithuania Law on the Approval of the
Financial Indices of the 2000 State Budget and the Budgets of
Local Governments.
The petitioners-the Vilnius City Court of the First
District by its two rulings of 16 May 2000 and the Higher
Administrative Court by its ruling of 7 November 2000 request
investigation into the compliance of Paragraph 1 of Article 1
(on reduction of salaries and other social guarantees of
judges) of the Republic of Lithuania Law on the Approval of the
Financial Indices of the 2000 State Budget and the Budgets of
Local Governments with the Constitution to the extent that
Appendix 6 to the law provides for the means for the expenses
on the remuneration for work of the courts pointed out in the
petitions with the Constitution, and into the compliance of
Article 9 of the Republic of Lithuania Law on Amending the Law
on the Approval of the Financial Indices of the 2000 State
Budget and the Budgets of Local Governments whereby amendments
were made to Appendix 6 to the Republic of Lithuania Law on the
Approval of the Financial Indices of the 2000 State Budget and
the Budgets of Local Governments which provided the means for
financing of remuneration for work of particular courts, with
the Constitution.
The legal relations regulated by the 23 December 1999
Republic of Lithuania Law on the Approval of the Financial
Indices of the 2000 State Budget and the Budgets of Local
Governments and the 13 July 2000 Republic of Lithuania Law on
Amending the Law on the Approval of the Financial Indices of
the 2000 State Budget and the Budgets of Local Governments
ended on 31 December 2000. At present the budgetary relations
are regulated by another law.
Taking account of the fact that the disputed legal
regulation is no longer in force, one is to hold that there are
grounds to dismiss the instituted legal proceedings in this
part of the case. In this part of the case the instituted legal
proceedings shall be dismissed.
3. Under the Constitution, the Constitutional Court must
secure the supremacy of the Constitution in the legal system.
The Constitutional Court administers constitutional justice
while considering whether the laws and other legal acts adopted
by the Seimas, legal acts adopted by the President of the
Republic and the Government of the Republic are in conformity
with the Constitution. It needs to be noted that the
Constitution does not provide that the Constitutional Court is
permitted not to consider certain laws and other legal acts.
The Constitutional Court must consider the compliance with the
Constitution of all the legal acts pointed out in Paragraph 1
of Article 102 of the Constitution, thus including those
whereby salaries of judges of the Republic of Lithuania are
established.
It needs to be noted that the Constitutional Court has
decided questions of the compliance with the Constitution of
the legal regulation of activities of judges and courts and
relations of salaries of judges (Constitutional Court rulings
of 6 December 1995, 18 April 1996, 19 December 1996, 5 February
1999, 21 December 1999, and the decision of 12 January 2000).
In these as well as other rulings of the Constitutional Court
the constitutional doctrine of the independence of judges and
courts as well as the protection guarantees ensuring this
independence was formulated.
4. The Constitutional Court notes that it does not
establish and that it may not establish as to what particular
size of salaries of judges of the Republic of Lithuania there
must be. The Constitutional Court, after it has received the
petitions of the petitioners, must consider the compliance of
the legal acts establishing salaries of judges with the
Constitution.
In the case at issue the Constitutional Court will
consider whether the disputed provisions of the Law on
Remuneration for Work of State Politicians, Judges and State
Officials to the extent that they establish salaries of judges
are in compliance with the principles and norms of the
Constitution.
III
1. As it has been mentioned, the petitioners doubt whether
the disputed norms of the Law are in compliance with the
principle of a law-governed state which is entrenched in the
Constitution, the principle of the separation of powers
established in Article 5 of the Constitution, Article 109 of
the Constitution, as well as the provisions of Paragraph 1 of
Article 113 and Paragraph 1 of Article 114 of the Constitution.
In the disputed provisions of the Law salaries of judges
are established. Under Paragraph 2 of Article 3 of the Law, the
remuneration of judges shall be comprised of the official
salary, the extra pay for the years served for the State of
Lithuania and a one-time bonus. It is possible to assess the
compliance of these provisions with the Constitution only after
one has taken account of the specific character of the
judiciary, the status of judges and guarantees of its ensuring
which are established in the Constitution.
It needs to be noted that under Paragraph 1 of Article 113
of the Constitution, the salaries received by judges are
referred to by the notion "salaries of judges". In the disputed
provisions of the Law, by comparing judges with state
politicians and other state officials, a different notion is
employed-"remuneration for work of judges". Such an imprecise
use of the notion in the Law may be treated as one of the
preconditions to deny the specific character and protection of
salaries of judges enshrined in the Constitution. The
legislator is obligated in the law to refer to the remuneration
received by judges by employing the notion "salaries of judges"
pointed out in the Constitution.
2. The Constitution shall be an integral and directly
applicable statute (Paragraph 1 of Article 6 of the
Constitution), therefore the principles and norms of the
Constitution pointed out in the petitions of the petitioners
will be interpreted by linking them with other principles and
norms of the Constitution.
3. Article 5 of the Constitution provides that, in
Lithuania, the powers of the State shall be exercised by the
Seimas, the President of the Republic and the Government, and
the Judiciary. In this and other articles of the Constitution
the principle of separation of powers is enshrined. The
judiciary is one of state powers which is the only one assigned
to administer justice. No other state institution or official
may exercise this function. Only an independent and
all-sufficient judiciary may successfully implement the
function assigned to it.
The independence and all-sufficiency of the judiciary are
inseparable from the principle of the independence of judges
and courts entrenched in the Constitution.
4.1. Article 109 of the Constitution provides:
"In the Republic of Lithuania, the courts shall have the
exclusive right to administer justice.
While administering justice, judges and courts shall be
independent.
While investigating cases, judges shall obey only the
law."
4.2. Paragraph 1 of Article 109 of the Constitution
provides that, in the Republic of Lithuania, the courts shall
have the exclusive right to administer justice. The function of
administration of justice determines the independence of judges
and courts. Paragraphs 2 and 3 of Article 109 of the
Constitution provide that, while administering justice, judges
and courts shall be independent and that, while investigating
cases, judges shall obey only the law. Thus the judge can
administer justice only in case he is independent from the
parties to the case, institutions of state power, officials,
political and public associations, natural and legal persons.
While analysing the principle of independence of judges
and courts, one must note that the independence is not a
privilege but one of the most important obligations of judges
and courts, which stems from the right of a person guaranteed
in the Constitution to an independent and impartial arbiter of
the dispute. All institutions of state power must respect and
ensure this right of the person guaranteed by the Constitution.
This circumstance must be taken into account, while the
guarantees of independence of judges and courts are being
assessed.
The independence of the judge is ensured by establishing
the inviolability of the term of office of the judge,
inviolability of the person of the judge, guarantees of social
(material) character of the judge, by consolidating
self-governance of the judiciary, which is all-sufficient, and
its financial and technical provision (Constitutional Court
rulings of 6 December 1995, 18 April 1996, 19 December 1996, 5
February 1999, 21 December 1999, 21 December 1999, decision of
12 January 2000).
4.3. It needs to be noted that the principle of
independence of judges and courts is consolidated in the
constitutions of democratic countries and international
documents. For example, by its Resolution of 13 December 1985,
the General Assembly of the United Nations endorsed the Basic
Principles on the Independence of the Judiciary. Replying to
the said document, on 13 October 1994 the Committee of
Ministers of the Council of Europe adopted the Recommendation
on the Independence, Efficiency and Role of Judges designated
to Member States of the Council of Europe. It is provided in
Item 1.1 of the European Charter on the Statute for Judges,
which was, upon the initiative of the Council of Europe,
approved on 10 July 1998, that its provisions aim at raising
the level of guarantees of competence, independence and
impartiality of judges in the various European States, and that
the provisions of the Charter cannot justify modifications in
national statutes tending to decrease the level of guarantees
already achieved in the countries concerned.
4.4. The principle of the independence of judges and
courts established in the Constitution means that the
legislator has a duty to provide for such a whole of guarantees
ensuring the independence of judges and courts which would
ensure impartiality of courts in adopting decisions, and which
would not permit anyone to interfere with activities of judges
and courts while they are administering justice.
A specific function of courts and the principle of
independence of judges and courts established in the
Constitution also determine the legal status of the judge. It
needs to be noted that the judiciary is formed on a
professional but not political basis. "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" (Constitutional Court
ruling of 21 December 1999).
In its rulings of 6 December 1995 and 21 December 1999,
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, 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". These guarantees are tightly
linked with each other, therefore it is universally recognised
that in case any guarantee of independence of judges and courts
is violated, administration of justice might be impaired, and
there might appear a danger that other human rights and
freedoms will not be ensured, either.
4.5. The petitions of the petitioners concerning the
compliance of the aforementioned legal acts with the
Constitution are linked with the guarantees of social
(material) character of judges. In the context of the case at
issue it needs to be noted that in democratic states it is
recognised that the judge, who is obligated to consider
conflicts arising in society, as well as those between a person
and the state, must be not only highly professionally qualified
and of impeccable reputation but also materially independent
and feel secure as to his future. The state has a duty to
establish such salaries for judges which would be in conformity
with the status of the judiciary and judges, with the functions
exercised by them and their responsibility. The protection of
judges' salaries is one of the guarantees of independence of
judges. Item 6.1 of the European Charter on the Statute for
Judges provides that judges exercising judicial functions in a
professional capacity are entitled to remuneration, the level
of which is fixed so as to shield them from pressures aimed at
influencing their decisions and more generally their behaviour
within their jurisdiction, thereby impairing their independence
and impartiality.
The constitutional imperative of the protection of judges'
salaries and other social guarantees arises form the principle
of independence of judges and courts established in Article 109
of the Constitution. By this principle one attempts to protect
the judges administering justice from any influence of the
legislative power and the executive, as well as from that of
other state establishments and officials, political and public
organisations, commercial economic structures, and legal and
natural persons. It needs to be noted that the independence of
judges is secured also from another aspect: a prohibition is
established in a commanding way in Paragraph 1 of Article 113
of the Constitution for judges to receive, during their
professional career, any remuneration other than the salary
established for judges as well as payments for educational or
creative activities.
The Constitutional Court has emphasised the requirement to
ensure the independence of judges arising form Article 109 of
the Constitution in a number of cases. Interpreting the
constitutional principle of independence of judges and courts,
in its rulings of 6 December 1995, 21 December 1999 and
decision of 12 January 2000, the Constitutional Court held that
the protection of judges' salaries and other social guarantees
is one of the guarantees to ensure this principle. Thus, under
the Constitution, in attempt to ensure the independence of
judges, it is prohibited to reduce the salary of the judge
during his continuance in office, and to reduce the established
social guarantees.
The provisions of the Constitution and the constitutional
doctrine set forth in the rulings of the Constitutional Court
are in line with the provisions of the constitutions and
constitutional doctrines of democratic countries. It needs to
be noted that the principle that the salary of the judge during
his continuance in office may not be diminished was entrenched
as far back as the 1787 USA Constitution (Section 1 of Article
III). Later on it was taken over by constitutional law of other
democratic countries. In some countries it is directly stated
in the texts of basic laws, while in others it is considered an
integral element of the principle of independence of judges and
courts established in the Constitution. In the constitutional
doctrine various aspects of the element of the principle of
independence of judges and courts have been revealed. For
instance, in its decision of 15 September 1999, the
Constitutional Court of the Czech Republic emphasised the
inalienable right of the judge to undiminished salary and the
prohibition to ascribe judges to the category of public
servants. In its decision of 17 September 1997, the Supreme
Court of Canada noted that it is impermissible to diminish
salaries of judges in attempt to evade the budget deficit. In
the decision of 4 October 2000 of the Constitutional Tribunal
in Poland it is held that the salaries of judges must be
especially protected against unfavourable fluctuations in case
of difficulties in the area of state budget, etc.
4.6. In case the imperative of independence of judges and
courts is violated, conditions are created to subjugate the
judiciary to political situations. It needs to be noted that
manipulations with the size of judges' salaries and with the
extent of their social guarantees are characteristic of the
practice of undemocratic states. In democratic states under the
rule of law the legal regulation violating the principle of
judges and courts entrenched in the Constitution of that
country is impermissible.
5.1. The constitutional principle of a law-governed state
is a universal one upon which the whole Lithuanian legal system
as well as the Constitution of the Republic of Lithuania itself
are based. The content of the principle of a law-governed state
reveals itself in various provisions of the Constitution and is
to be construed inseparably from the strife for an open, just,
and harmonious civil society and law-governed state promulgated
in the Preamble of the Constitution. Along with the other
requirements, the principle of the state under the rule of law
enshrined in the Constitution also pre-supposes the fact that
human rights and freedoms must be ensured, that all state
institutions exercising state power, as well as other state
institutions, must act on the grounds of law and in compliance
with law, that the Constitution has the supreme juridical power
and that the laws, Government resolutions and other legal acts
must be in conformity with the Constitution (Constitutional
Court ruling of 23 February 2000).
While preparing and adopting legal acts, institutions of
state authority must follow the principle of a law-governed
state entrenched in the Constitution. Paragraph 2 of Article 5
of the Constitution provides that the scope of powers shall be
defined by the Constitution. It means that the Seimas, as the
legislator of laws and other legal acts, is independent as much
as its powers are not limited by the Constitution. The right of
the Seimas to adopt, amend, supplement laws and other legal
acts or recognise them as null and void is indisputable,
however, it may implement this by following the procedure
established in the Constitution and the principles of
coordination of legal acts. Thus, the Seimas, regulating
respective relations by the law, may not violate the principles
and norms of the Constitution.
5.2. One of essential elements of the principle of a
law-governed state established in the Constitution is the
principle of legal security. It means the duty of the state to
ensure the certainty and stability of legal regulation, to
protect the rights of entities of legal relations, including
the acquired rights, and to respect legitimate interests and
legitimate expectations. The purpose of this principle is to
guarantee the faith of persons in their state and law.
While this principle is being analysed, two aspects must
be underlined. First, the imperative of legal security
presupposes certain obligatory requirements for legal
regulation itself. It must be clear and harmonious, legal norms
must be formulated precisely. Legal acts of lower level may not
conflict with legal acts of higher level, and no legal act may
conflict with the Constitution. Legal normative acts must be
promulgated under established procedure and all entities of
legal relations must have an opportunity to familiarise with
them. Second, this principle also includes several requirements
linked with validity of legal regulation. Under this principle,
legal regulation may be amended only in pursuance with an
earlier established procedure and without violating the
principles and norms of the Constitution. It is also necessary,
inter alia, to follow the principle lex retro non agit, it is
impermissible to deny legitimate interests and legitimate
expectations of persons, the continuance of jurisprudence must
be guaranteed.
The principle of legal security must be followed by all
institutions of state authority, and the Seimas first of all,
which, under Item 2 of Article 67 of the Constitution, enacts
laws. It is of crucial importance that the legislator, while
regulating the implementation of the rights and freedoms of
persons entrenched in the Constitution, should follow this
principle so that the legal situation of persons would not be
deteriorated without reason, that neither the acquired rights
nor legitimate interests nor legitimate expectations would be
denied.
The principle of legal security also pre-supposes that in
cases when due to actions of institutions of state authority
the rights of persons are infringed, the persons must be
guaranteed an effective judicial defence of these rights. One
of necessary conditions of such defence is independence and
impartiality of judges and courts. Thus the guarantees of
independence and impartiality of judges and courts are
important also in view of ensuring of legal security of every
member of society.
One more aspect of ensuring legal certainty is to be
noted. The judge may not be regarded as a person exercising the
function of justice only. A judge is a member of society. As
every person, he has the right to defend his rights, legitimate
interests and legitimate expectations. It is universally
recognised that the purpose of the principle of legal security
is to ensure the faith of a person in his state and law. The
fact is of no less importance that judges themselves, who
administer justice, should trust their state and law.
6. Paragraph 1 of Article 113 of the Constitution
provides: "Judges may not hold any other elected or appointed
posts, and may not be employed in any business, commercial, or
other private establishment 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."
Paragraph 1 of Article 113 of the Constitution establishes
the incompatibility of the post of the judge with any other
elected or appointed posts, employment in any business,
commercial, or private establishment or company. The judge may
receive only the salary of the judge paid from the state
budget. He is not permitted to receive any other remuneration
except payments for educational or creative activities.
The incompatibility of the post of the judge with other
posts or employment is determined by a special legal situation
of the judge, as well as the Judiciary, as one of state powers.
By the established prohibition it is attempted to ensure the
independence and impartiality of judges, which are necessary
conditions for implementation of justice. Alongside, it needs
to be noted that incompatibility of the post of the judge with
any other posts or employment pre-supposes a duty of the state
to establish respective salary and social guarantees which
would be in line with the dignity of the judge and his
professional status.
7. Paragraph 1 of Article 114 of the Constitution
provides: "Institutions of State power and administration,
members of the Seimas and other officers, political parties,
political or public organizations, and citizens shall be
prohibited from interfering with the activities of a judge or
the court, and violation of this shall incur liability provided
by law."
By the prohibition to interfere with the activities of a
judge or the court established in Paragraph 1 of Article 114 of
the Constitution it is attempted to ensure the independence and
impartiality of judges. The court is able to administer justice
only when the judge can consider a case impartially, by taking
account of the circumstances of the case and the requirements
of the law. It needs to be noted that, under the Constitution,
institutions of state power and administration are not only
prohibited to exert influence on judges and courts-they are
also obligated to ensure the independence of judges and courts.
8. As it was mentioned, the principles and norms of the
Constitution comprise a harmonious system, therefore it is
impossible to construe certain principles and norms of the
Constitution by denying the essence of the other principles and
norms. If one or another principle enshrined in the
Constitution was denied, the balance of constitutional
principles and values would be disturbed and the essence of
constitutional regulation would be distorted.
The principles and norms of the Constitution have a
clearly defined meaning and content which is revealed in the
constitutional jurisprudence. It is impossible to construe
constitutional norms and principles on the basis of the legal
acts adopted by the legislator and other entities of
law-making, as then the supremacy of the Constitution in the
legal system would be denied. On the contrary, in every case
the Seimas, as well as other institutions of state power, is
directly bound by the Constitution.
Neither the principle of a law-governed state, nor
separation of powers, nor independence of judges or courts is a
thing in itself. Their meaning is revealed by the protection of
human rights, ensuring of social concord and solution by law of
conflicts arising in society. The judge considers cases wherein
the interests clash between the employee and the employer, the
citizen and the official, the entity indulged in commercial
activities and the consumer, the person and the state. It is
especially important to guarantee an impartial judicial
protection against unlawful actions of state institutions and
officials. This once again confirms the importance of
guarantees of independence of judges and courts.
9. Alongside, the Constitutional Court notes that the
system of guarantees of independence of judges and courts does
not create any pre-conditions, which the judge might use as a
cover so that he might evade proper fulfilment of his duties,
consider cases in a negligent manner, treat the persons
participating in the case in an unethical manner, or violate
human rights and dignity. Judges must preserve the honour and
prestige of their profession. Therefore the system of
self-regulation and self-governance of the judiciary must
guarantee that judges fulfil their duties accurately, that
every unlawful or unethical actions of a judge be properly
assessed.
IV
On the compliance of Paragraphs 1 and 2 of Article 4,
Paragraphs 1 and 3 of Article 5, Item 1 of Paragraph 3,
Paragraphs 4, 5 and 6 of Article 7 of the Law on Remuneration
for Work of State Politicians, Judges and State Officials, as
well as Chapter II of the Appendix to the Law with Articles 5
and 109, Paragraph 1 of Article 113, Paragraph 1 of Article 114
of the Constitution as well as the principle of a law-governed
state enshrined in the Constitution.
1. Article 4 of the Law on Remuneration for Work of State
Politicians, Judges and State Officials provides:
"1. The official salaries of state politicians, judges and
state officials shall be computed by applying coefficients of
the size of the minimal monthly salary (MMS) approved by the
Government.
2. The official salary shall be computed by multiplying a
respective official salary coefficient established in the
Appendix to this Law by the MMS approved by the Government. The
official salary shall be rounded following the common rules of
numbers' rounding so that the last figure would be either 0 or
5.
3. The salary which was not received by local government
councils members as politicians in their main place of
employment because of the time spent by them in meetings of
either the council or its sub-divisions, as well as that spent
in connection with the duties of a member of the local
government council shall be paid to them on the grounds
established by the Law on Local Self-Government."
1.1. Paragraph 1 of Article 5 of the Law provides:
"1. State politicians, judges and state officials shall be
paid extra pay for the years served for the State of Lithuania
from 11 March 1990 in the institutions of the State and local
governments and establishments in the posts of public servants
of public administration and public servants of 'A' and 'B'
levels, as well as in the posts pointed out in Items 1-6 of
Paragraph 3 of Article 4 of the Law on Public Service."
Paragraph 3 of Article 5 of the Law provides:
"3. The extra pay for the years served for the State shall
be comprised of 3 percent of the official salary of the state
politician, judge or state official for every three years,
however, the size of the extra pay may not exceed 30 percent of
the official salary."
1.2. Article 7 of the Law provides:
"1. The size and conditions of payment of remuneration for
work of the President of the Republic, as provided by this Law,
shall be applicable for a newly elected or re-elected President
of the Republic.
2. The size and conditions of payment of remuneration for
work of the Chairman of the Seimas, Seimas officials and Seimas
members shall be applicable as of the day of the first sitting
of the newly elected Seimas.
3. State politicians, judges and state officials,
1) whose average remuneration for work computed under the
procedure established by the Government on the basis of the
official remuneration (official salaries) received during the
preceding three months and of the established extra pays and
bonuses of the preceding twelve months (hereinafter referred to
as the former remuneration for work) is bigger than the
remuneration for work established in this Law shall, upon this
Law going into effect, be paid the remuneration for work that
they will have been paid until then and it shall not be
increased in 2000. During the established transitional period
(from 1 January 2001 till 1 January 2003) the former
remuneration for work paid until 1 January 2001 shall be
reduced by computing the appertaining remuneration for work for
every month (until it becomes equal with the remuneration for
work established in this Law) by the following formula:
A = C (1 - M).
Here:
A means the appertaining remuneration for work during the
transitional period;
C means the former remuneration for work;
M means the coefficient of recomputation of the
remuneration for work, gradually decreasing the former
remuneration for work. The following coefficients of the
transitional period shall be established:
__________________________________________________________________
Years 2001 2002
__________________________________________________________________
Half-years I II I II
__________________________________________________________________
M 0,2 0,4 0,65 0,9
__________________________________________________________________
2) whose former remuneration for work is smaller than the
remuneration for work established in this Law, shall be paid
bigger remuneration for work the size of which shall be
attained gradually, by computing every month, during the
transitional period, the remuneration for work appertaining to
a state politician, judge or state official by the following
formula:
A = [(B - C) x D] +C.
Here:
A means the appertaining remuneration for work during the
transitional period;
B means the remuneration for work established in this Law;
C means the former remuneration for work;
D means the coefficient of recomputation of the
remuneration for work, gradually increasing the former
remuneration for work. The following coefficients of the
transitional period shall be established:
__________________________________________________________________
Years 2000 2001 2002 2003 2004 2005
__________________________________________________________________
D 0 0,1 0,3 0,5 0,7 0,9
__________________________________________________________________
4. During the transitional period, the remuneration for
work for persons either elected or appointed to the post of a
state politician, judge or state official shall be established
and computed under the provisions of this Article and aforesaid
formulas wherein C means the size of the remuneration for work
of persons either elected or appointed to the post of a state
politician, judge or state official which was computed under
the conditions of remuneration for work that had been in force
until this Law went into effect.
5. As of 1 January 2006, state politicians, judges, state
officials must be paid the remuneration for work established in
this Law.
6. While the remuneration for work is computed for state
politicians, judges and state officials during the transitional
period, the size of the coefficient base of the official salary
established in Item 1 of Paragraph 5 of Article 69 of the Law
on Public Service shall be applicable."
1.3. Chapter II of the Appendix to the Law provides:
II. OFFICIAL SALARIES OF JUDGES
(MMS sizes)
____________________________________________________________________
Seq. Title of establishment Official salary coefficient
No.
of chairman of of of
or his deputy deputy division judge
(in cases of chairman chairman
absence of a
permanent deputy)
____________________________________________________________________
1. Constitutional Court 17 - - 15,5
of the Republic of
Lithuania
2. Supreme Court of 17 - 15,5 14,5
Lithuania
3. Court of Appeal of 15 - 13,5 13
Lithuania
4. Higher 13 - - 11
Administrative
Court
5. Regional courts 12 - 11 10,5
6. Regional 11 - - 10,5
administrative
courts
7. District courts:
7.1 in which 15 or more 10 9,5 - 8,5
judges are employed
7.2 in which 14 or less 9,5 9 - 8,5"
judges are employed
____________________________________________________________________
1.4. By Article 3 of the 17 October 2000 Law on Amending
the Law on Remuneration for Work of State Politicians, Judges
and State Officials Item 1 was amended and set forth as
follows:
"1) whose average remuneration for work computed under the
procedure established by the Government on the basis of the
official remuneration (official salaries) received during the
preceding three months and of the established extra pays and
bonuses of the last twelve months (hereinafter referred to as
the former remuneration for work) is bigger than the
remuneration for work established in this Law shall, upon this
Law going into effect, be paid the remuneration for work that
they will have been paid until then and it shall not be
increased in 2000. During the established transitional period
(from 1 January 2001 till 1 January 2003) the former
remuneration for work paid until 1 January 2001 shall be
reduced by computing the appertaining remuneration for work for
every month (until it becomes equal with the remuneration for
work established in this Law) by the following formula:
A = C - [(C - B) x M].
Here:
A means the appertaining remuneration for work during the
transitional period;
C means the former remuneration for work;
B means the remuneration for work of a state politician,
judge or state official established in this Law;
M means the coefficient of recomputation of the
remuneration for work, gradually decreasing the former
remuneration for work. The following coefficients of the
transitional period shall be established:
____________________________________________________________________
Years 2001 2002
____________________________________________________________________
Half-years I II I II
____________________________________________________________________
M 0,2 0,4 0,65 0,9"
____________________________________________________________________
1.5. By Article 1 of the 27 March 2001 Law on Amending
Article 7 of the Law on Remuneration for Work of State
Politicians, Judges and State Officials Item 1 of Paragraph 3
of Article 7 was amended once again and set forth as follows:
"1) whose average remuneration for work computed under the
procedure established by the Government on the basis of the
official remuneration (official salaries) received during the
preceding three months and of the established extra pays and
bonuses of the preceding twelve months (hereinafter referred to
as the former remuneration for work) is bigger than the
remuneration for work established in this Law shall, upon this
Law going into effect, be paid the remuneration for work that
they will have been paid until then and it shall not be
increased in 2000. During the established transitional period
(from 1 January 2001 till 1 July 2003) the former remuneration
for work paid until 1 January 2001 shall be reduced by
computing the appertaining remuneration for work for every
month (until it becomes equal with the remuneration for work
established in this Law) by the following formula:
A = C - [(C - B) x M].
Here:
A means the appertaining remuneration for work during the
transitional period;
C means the former remuneration for work;
B means the remuneration for work of a state politician,
judge or state official established in this Law;
M means the coefficient of recomputation of the
remuneration for work, gradually decreasing the former
remuneration for work. The following coefficients of the
transitional period shall be established:
____________________________________________________________________
Years 2001 2002 2003
____________________________________________________________________
Half-years I II I II I
____________________________________________________________________
M 0 0,4 0,6 0,8 0,9"
____________________________________________________________________
Alongside, Paragraph 5 of Article 7 of the Law was also
emended which was set forth as follows:
"5. After the transitional period is over, state
politicians, judges and state officials must be paid the
remuneration for work established in this Law."
2. The petitioners-the Higher Administrative Court by its
rulings of 3 October 2000, 7 November 2000, the Vilnius
Regional Administrative Court by its ruling of 11 May 2001 and
the Vilnius City Court of the First District by its ruling of
21 December 2000, request investigation into the compliance of
the aforesaid provisions of the Law establishing that the
salary of the judges exercising judicial functions in a
professional capacity, whose salary is bigger than established
in this Law, shall be reduced with Articles 5 and 109,
Paragraph 1 of Article 113 and Paragraph 1 of Article 114 of
the Constitution.
3. Taking account of the motives set down in the petitions
of the petitioners, the Constitutional Court will consider the
compliance with the Constitution of
1) Paragraphs 1 and 2 of Article 4 of the Law to the
extent that they establish the manner of computing of judges'
official salaries;
2) Paragraphs 1 and 2 of Article 5 of the Law to the
extent that they establish extra pays for judges for years
served for the State of Lithuania;
3) Item 1 of Paragraph 3 of Article 7 (wordings of 29
August 2000, 17 October 2000 and 27 March 2001), Paragraph 4,
Paragraph 5 (wordings of 29 August 2000 and 27 March 2001), and
Paragraph 6 of the Law to the extent that they establish
remuneration of judges during the transitional period and after
the transitional period is over;
4) Chapter II of the Appendix to the Law entitled
"Official Salaries of Judges".
4. In the course of the consideration of the disputed
norms of the Law, it needs to be noted that they establish the
size of remuneration for work as well as conditions of its
payment to state politicians, judges and state officials to
whom the Law on Public Service is not applied. Paragraphs 1 and
2 of Article 4 of the Law stipulate that the official salaries
of judges are computed by applying coefficients of the size of
the minimal monthly salary (hereinafter also referred to as the
MMS) approved by the Government. The official salary is
computed by multiplying a respective coefficient by the minimal
monthly salary approved by the Government. Under the disputed
norms of Article 7 of the Law, the judges whose former
remuneration for work is bigger than the remuneration for work
established in the said law shall, upon the said law going into
effect, be paid the remuneration for work that they would have
been paid until then and it shall not be increased in 2000,
while during the established transitional period (from 1
January 2001 till 1 January 2003) the former remuneration for
work shall be reduced by a respective formula until it becomes
equal with the remuneration for work established in this Law.
In Chapter II of the Appendix to the Law the coefficients of
official salaries of judges are established.
5. Under the 3 February 1993 Law "On the Official Salaries
of Judges of Courts, Employees of the Prosecutor's Office,
State Arbiters and Employees of the State Control Department of
the Republic of Lithuania", until respective laws are
specified, salaries of judges were to be established by
Government resolutions.
In its ruling of 6 December 1995, analysing such legal
regulation, the Constitutional Court held: "Until the law on
the salaries of the judges has not been not enacted, the
commissioning of the Seimas to the Government remains in force,
and in the Law on Budget approved annually by the Seimas
reasonable limits for fulfilment of this task are set out."
On 29 August 2000, the Seimas adopted the Law on
Remuneration for Work of State Politicians, Judges and State
Officials whereby salaries of judges were established. By the
19 April 2001 Republic of Lithuania Law "On Recognising the
Republic of Lithuania Law 'On the Official Salaries of Judges
of Courts, Employees of the Prosecutor's Office, State Arbiters
and Employees of the State Control Department of the Republic
of Lithuania' as Null and Void", the aforementioned Law "On the
Official Salaries of Judges of Courts, Employees of the
Prosecutor's Office, State Arbiters and Employees of the State
Control Department of the Republic of Lithuania" was recognised
as null and void.
6. On 29 August 2000, upon enactment of the Law on
Remuneration for Work of State Politicians, Judges and State
Officials, salaries of judges were established by law. While
assessing the compliance of the disputed provisions of the Law
with the Constitution, one must ascertain whether the
legislator, while enacting the law, was following the
requirements of principles and norms entrenched in the
Constitution, guaranteeing the independence of judges and
courts.
The Constitutional Court notes that the independence of
judges and courts and the protection of its guarantees arise
from the Constitution but not from the law. The validity and
direct application of the norms of the Constitution may not be
bound by any conditions save the conditions established in the
Constitution itself. Under Paragraph 2 of Article 5 of the
Constitution, the scope of powers shall be defined by the
Constitution. By establishing salaries of judges by law, the
Seimas must take into consideration the constitutional status
of the judiciary and the judge and may not deny the guarantees
of independence of judges and courts, including the size of
salaries of judges received until then, which existed prior to
the enactment of the said law.
7. In the opinion of the petitioners, the disputed
provisions of the Law conflict with Article 109 of the
Constitution, as well as the principle of a law-governed state
entrenched in the Constitution.
Paragraph 1 of Article 4 of the Law provides that the
official salaries of judges shall be computed by applying
coefficients of the size of the minimal monthly salary, which
are approved by the Government. Thus, by such regulation a
manner of computation of official salaries of judges is
established. In itself this rule determines neither the size of
judges' salaries nor conditions of their payment, therefore it
is impossible to assert that by this legal regulation the
principle of the independence of judges and courts and that of
a law-governed state are violated.
Paragraph 2 of Article 4 of the Law provides that the
official salary of judges shall be computed by multiplying a
respective official salary coefficient established in the
Appendix to this Law by the minimal monthly salary approved by
the Government. The official salary shall be rounded following
the common rules of rounding of numbers so that the last figure
would be either 0 or 5.
Assessing the compliance of these provisions of Paragraph
2 of Article 4 of the Law with Article 109 of the Constitution
and the principle of a law-governed state established in the
Constitution, one has to note that therein a manner of
computing the official salary of the judge is pointed out. In
itself this rule does not determine the size of salaries
received by judges. The size of the salary of the judge will be
determined by the coefficient of the official salary, which is
established in the Appendix to the Law.
Taking account of the arguments set forth, one is to
conclude that the disputed provisions of Paragraphs 1 and 2 of
Article 4 of the Law in themselves do not restrict the material
guarantees of independence of judges and courts, therefore they
are in compliance with Article 109 of the Constitution, as well
as the principle of a law-governed state entrenched in the
Constitution.
8. Paragraph 1 of Article 5 of the Law provides that
judges shall be paid extra pay for the years served for the
State of Lithuania from 11 March 1990 in posts of public
administration and public servants of "A" and "B" levels, as
well as in the posts pointed out in Items 1-6 of Paragraph 3 of
Article 4 of the Law on Public Service. Paragraph 3 of Article
5 of the Law provides for the size of the extra pay, which is 3
percent of the official salary for every three years, however,
the size of the extra pay may not exceed 30 percent of the
official salary.
Until the Law went into effect, such extra pays for the
years served for the State of Lithuania had not been paid to
judges. These provisions do not deny the independence of judges
and courts entrenched in the Constitution, or the
constitutional principle of a law-governed state.
Taking account of the arguments set forth, one is to
conclude that the disputed provisions of Paragraphs 1 and 3 of
Article 5 of the Law are in compliance with Article 109 of the
Constitution and the principle of a law-governed state
entrenched in the Constitution.
9.1. Item 1 of Paragraph 3 of Article 7 of the Law on
Remuneration for Work of State Politicians, Judges and State
Officials (wording of 29 August 2000) provides that the judges
whose average remuneration for work computed under the
procedure established by the Government on the basis of the
official remuneration (official salaries) received during the
preceding three months as well as of the established extra pays
and bonuses of the preceding twelve months is bigger than the
remuneration for work established in this law shall, upon this
law going into effect, be paid the remuneration for work that
they would have been paid until then and it shall not be
increased in 2000. During the established transitional period
(from 1 January 2001 till 1 January 2003) the former
remuneration for work paid until 1 January 2001 shall be
reduced by computing the appertaining remuneration for work for
every month by the established formula, until it becomes equal
with the remuneration for work established in this law.
In the 17 October 2000 and 27 March 2001 wordings of Item
1 of Paragraph 3 of Article 7 of the Law the nature of legal
regulation remained virtually intact. The 17 October 2000
wording of Item 1 of Paragraph 3 of Article 7 of the Law
changed the formula of computing of the remuneration, which was
to be reduced for the judges whose remuneration was bigger than
established in this law. In the 27 March 2001 wording of Item 1
of Paragraph 3 of Article 7 of the Law the coefficients of
re-computing of judges' salaries were changed, by which the
former salaries of judges were reduced and different periods of
application of these coefficients were provided for. Thus the
legal regulation established in the 29 August 2000 wording of
Item 1 of Paragraph 3 of Article 7 of the Law is common with
that of the wordings of 17 October 2000 and 27 March 2001 that
in all the wordings such legal regulation was established
whereby the salary received by the judges whose salary was
bigger than established in this law was to be reduced.
Therefore the compliance of the disputed wordings of Item 1 of
Paragraph 3 of Article 7 of the Law with the Constitution is to
be considered concurrently.
9.2. In the course of investigation of Item 1 of Paragraph
3 of Article 7 of the Law (wordings of 29 August 2000, 17
October 2000 and 27 March 2001), it needs to be noted that
several norms were consolidated therein.
First, in Item 1 of Paragraph 3 of Article 7 of the Law it
is established that the judges whose average remuneration for
work computed under the procedure established by the Government
on the basis of the official remuneration (official salaries)
received during the preceding three months as well as of the
established extra pays and bonuses of the preceding twelve
months is bigger than the remuneration for work established in
this law shall, upon this law going into effect, be paid the
remuneration for work that they would have been paid until then
and it shall not be increased in 2000.
Second, in Item 1 of Paragraph 3 of Article 7 of the Law
it is established that during the established transitional
period the remuneration for work of these judges shall be
reduced by computing the appertaining remuneration for work for
every month by the established formula, until it becomes equal
with the remuneration for work established in this law.
Third, Item 1 of Paragraph 3 of Article 7 of the Law
provides for the formula and coefficients of computing of
remuneration for work during the transitional period.
9.3. The petitioners ground their request to consider
whether Item 1 of Paragraph 3 of Article 7 of the Law is in
conformity with the Constitution on the fact that the said item
provides for reduction of the salaries which were received by
judges exercising judicial functions in a professional capacity
until 1 January 2000.
The Constitutional Court, analysing the guarantees of the
principle of the independence of judges and courts entrenched
in Article 109 of the Constitution, in its ruling of 6 December
1995 noted that any attempts to reduce the salary or other
social guarantees of judge or cut the budget of the judiciary
are interpreted as infringement on the judicial independence.
The content of this rule was construed in the Constitutional
Court decision of 12 January 2000.
While analysing the provision of Item 1 of Paragraph 3 of
Article 7 of the Law that the judges whose salary is bigger
than the salary of judges established by the law shall be paid
the former salary and that it shall not be increased in 2000,
one is to note that in this provision of the Law the size of
salaries to be paid to judges is established by law, i.e. the
law established an obligation of the state to pay the salaries
to judges of no less size than the size of salaries paid to
judges until the enactment of this law. Alongside, in this
provision of the Law it was established that this salary of the
judge shall not be increased in 2000. Consequently, this
provision did not establish reduction of the former salaries of
judges.
Taking account of the above-mentioned arguments, one is to
conclude that the provision of Item 1 of Paragraph 3 of Article
7 of the Law (wordings of 29 August 2000, 17 October 2000 and
27 March 2001) that the judges "whose average remuneration for
work computed under the procedure established by the Government
on the basis of the official remuneration (official salaries)
received during the three preceding months as well as of the
established extra pays and bonuses of the preceding twelve
months (hereinafter referred to as the former remuneration for
work) is bigger than the remuneration for work established in
this Law shall, upon this Law going into effect, be paid the
remuneration for work that they will have been paid until then
and it shall not be increased in 2000" is in compliance with
Article 109 of the Constitution and the principle of a
law-governed state entrenched in the Constitution.
The other aforementioned norms of Item 1 of Paragraph 3 of
Article 7 of the Law are of different character. It is pointed
out therein that during the established transitional period the
salary received by respective judges shall be reduced by
computing the salary appertaining to them for every month by
the established formula. It is clearly evident form the legal
regulation consolidated in these norms that reduction of
judges' salaries is provided for therein.
Taking account of the arguments set forth, one is to
conclude that Item 1 of Paragraph 3 of Article 7 of the Law
(wordings of 29 August 2000, 17 October 2000 and 27 March 2001)
to the extent that it provides that, for the judges whose
average remuneration for work is bigger than the remuneration
for work established in this law, during the established
transitional period (from 1 January 2001 till 1 January 2003)
the former remuneration for work paid until 1 January 2001
shall be reduced by computing the appertaining remuneration for
work for every month (until it becomes equal with the
remuneration for work established in this law), by an
established formula conflicts with Article 109 of the
Constitution.
After it has been held that these provisions are in
conflict with Article 109 of the Constitution, alongside, it
must be held that they are also in conflict with the principle
of a law-governed state entrenched in the Constitution.
9.4. Paragraph 4 of Article 7 of the Law provides: "During
the transitional period, the remuneration for work for persons
either elected or appointed to the post of a <...> judge <...>
shall be established and computed under the provisions of this
Article and aforesaid formulas wherein C means the size of the
remuneration for work of persons either elected or appointed to
the post of a <...> judge <...> which was computed under the
conditions of remuneration for work that had been in force
until this Law went into effect."
While assessing the legal regulation established in
Paragraph 4 of Article 7 of the Law, one must note that thereby
the remuneration of persons appointed as judges during the
transitional period is established, which is computed by
applying the provisions of Article 7 of the Law and the
formulas pointed out therein. Thus, to compute the remuneration
of the judges whose remuneration is bigger than the
remuneration established in the Law, the provisions and
formulas are applied establishing reduction of the remuneration
of judges during the transitional period. Therefore, Paragraph
4 of Article 7 of the Law to the extent that it provides that
during the transitional period the remuneration of appointed
judges is computed on the basis of the provisions and formulas
of Article 7 of the Law, by which, during the transitional
period, the remuneration of judges is reduced, conflicts with
Article 109 of the Constitution.
After it has been held that the disputed provisions of
Paragraph 4 of Article 7 of the Law are in conflict with
Article 109 of the Constitution, alongside, it must be held
that they are also in conflict with the principle of a
law-governed state entrenched in the Constitution.
9.5. Paragraph 5 of Article 7 of the Law (wording of 9
August 2000) provided that, as of 1 January 2006, judges must
be paid the remuneration established in this law. In the 27
March 2001 wording of Paragraph 5 of Article 7 of the Law this
provision was replaced by the provision stating that after the
transitional period is over, judges must be paid the
remuneration established in this law. Thus, the 9 August 2000
wording of Paragraph 5 of Article 7 of the Law defines the date
as of which judges must be paid the remuneration established in
this law by indicating the year 2006, while the 27 March 2001
wording provides that judges must be paid the remuneration
established in this law, after the transitional period is over.
Thus the provisions of Paragraph 5 of Article 7 of the Law
(wordings of 9 August 2000 and 27 March 2001) establish the
date as of which judges must be paid the remuneration
established in the Law.
Assessing the compliance of the provisions of Paragraph 5
of Article 7 of the Law with the Constitution, one has to link
them with the legal regulation established in Article 7 of the
Law, as well as on that whereby the size of the former
remuneration received by judges is reduced.
Taking account of these arguments, one is to conclude that
Paragraph 5 of Article 7 of the Law (wordings of 9 August 2000
and 27 March 2001) to the extent that it establishes reduction
of remuneration of the judges whose remuneration is bigger than
established in this law as provided in Article 7 of the Law,
conflicts with Article 109 of the Constitution and the
principle of a law-governed state entrenched in the
Constitution.
9.6. Paragraph 6 of Article 7 of the Law provides that
while the remuneration for work is computed for judges during
the transitional period, the size of the coefficient base of
the official salary established in Item 1 of Paragraph 5 of
Article 69 of the Law on Public Service shall be applicable.
The aim of Paragraph 6 of Article 7 of the Law is to
establish the size of the coefficient base of the official
salary, applicable during the transitional period. The disputed
provision of Paragraph 6 of Article 7 of the Law is of blanket
character as it provides that while respective remuneration for
work is computed, the size of the coefficient base of the
official salary established in Item 1 of Paragraph 5 of Article
69 of the Law on Public Service shall be applicable. Under Item
1 of Paragraph 5 of Article 69 of the Law on Public Service,
the value in Litas of the coefficient of the basic salary shall
be made equal to the amount of the basic salary coefficient
base approved by the Government which shall be determined
without increasing the funds provided for remuneration in the
2000 state and municipality budgets. The size of the basic
salary shall, under the provisions of Paragraph 2 of Article 32
of the Law on Public Service, be established by multiplying the
appropriate coefficient of the basic salary by the size of the
coefficient base.
As it is evident form the content of the disputed norm,
therein one of the elements of computation of judges'
remuneration is established, which is the basic salary
coefficient base. In itself, the provision consolidating this
element is in compliance with Article 109 of the Constitution
and the principle of a law-governed state entrenched in the
Constitution.
The provision of Paragraph 6 of Article 7 of the Law that
the said basic salary coefficient base is applicable during the
transitional period is to be assessed differently. By this
provision of the Law a transitional period is also consolidated
during which the remuneration of judges exercising judicial
functions in a professional capacity is reduced, therefore the
said provision conflicts with Article 109 of the Constitution
and the principle of a law-governed state entrenched in the
Constitution.
Taking account of the arguments set forth, one is to
conclude that Paragraph 6 of Article 7 of the Law to the extent
that while the remuneration for work is computed for judges the
size of the coefficient base of the official salary established
in Item 1 of Paragraph 5 of Article 69 of the Law on Public
Service shall be applicable is in compliance with Article 109
of the Constitution and the principle of a law-governed state
entrenched in the Constitution, while to the extent that it
consolidates a transitional period during which the
remuneration of judges exercising judicial functions in a
professional capacity is reduced conflicts with Article 109 of
the Constitution and the principle of a law-governed state
entrenched in the Constitution.
10. In Chapter II entitled "Official Salaries of Judges"
of the appendix to the Law judicial institutions and
coefficients of official salaries of sizes expressed in MMS are
established. The official salaries of respective judges are
computed by multiplying the established coefficient of the
official salary, which is provided for in Chapter II of the
Appendix to the Law, by the MMS approved by the Government.
It needs to be noted that Chapter II of the Appendix to
the Law is directly connected with the regulation established
in Item 1 of Paragraph 3 of Article 7 of the Law (wordings of
29 August 2000, 17 October 2000 and 27 March 2001) under which
the judges whose average remuneration of work is bigger than
the remuneration for work established in this Law is reduced by
a respective formula, until it becomes equal with the
remuneration for work established in the Law. Chapter II of the
Appendix to the Law just precisely establishes as to what
official salaries must be paid to judges under the Law after
the transitional period is over.
Taking account of the arguments set forth, one is to
conclude that Chapter II "Official Salaries of Judges" of the
Appendix to the Law to the extent that the established official
salaries of judges in MMS sizes and respective coefficients are
smaller than the remuneration which was received by judges
before this law had gone into effect conflicts with Article 109
of the Constitution and the principle of a law-governed state
entrenched in the Constitution.
11. Article 5 of the Constitution provides: "In Lithuania,
the powers of the State shall be exercised by the Seimas, the
President of the Republic and the Government, and the
Judiciary". By this norm the content whereof is particularised
in other articles of the Constitution, the principle of
separation of powers is established. This is the main principle
of organisation and activity of a democratic law-governed
state. It means that the legislative, executive and judicial
powers must be separate, sufficiently independent, but they
must also be balanced.
In the context of the case at issue, it needs to be noted
that the principle of separation of powers is inseparable from
the independence of judges and courts which is characteristic
of organisation of the judiciary. Therefore, in the course of
the assessment of the compliance of the disputed provisions of
Articles 4, 5 and 7 of the Law, as well Chapter II entitled
"Official Salaries of Judges" of the Appendix to the Law, with
Article 5 of the Constitution, it must be considered whether
the legislator, by such regulation, did not violate the
fundamentals of organisation and activities of state powers
established in the Constitution, and whether such regulation is
in line with the independence of judges and courts as an
essential condition for an independent functioning of the
judiciary.
Having held that Item 1 of Paragraph 3 of Article 7
(wordings of 29 August 2000, 17 October 2000 and 27 March
2001), Paragraph 5 of Article 7 (wordings of 29 August 2000 and
27 March 2001), the provision establishing the transitional
period of Paragraph 6 of Article 7 of the Law and Chapter II of
the Appendix to the Law to the extent that it provides for
reduction of remuneration for the judges whose remuneration is
bigger than the remuneration of judges established in this law,
the provision of Paragraph 4 of Article 7 of the Law that the
remuneration of the judges appointed to the post of a judge
during the transitional period is computed on the basis of the
provisions and formulas of Article 7 of this law which
establish reduction of judges' remuneration conflict with
Article 109 of the Constitution and the principle of a
law-governed state entrenched in the Constitution, one is to
hold that these provisions are in conflict with the principle
of separation of powers enshrined in the Constitution as well.
Taking account of the arguments set down in this Ruling,
one is to conclude that Item 1 of Paragraph 3 of Article 7
(wordings of 29 August 2000, 17 October 2000 and 27 March
2001), Paragraph 5 of Article 7 (wordings of 29 August 2000 and
27 March 2001), the provision establishing the transitional
period of Paragraph 6 of Article 7 of the Law and Chapter II of
the Appendix to the Law to the extent that it provides for
reduction of remuneration for the judges whose remuneration is
bigger than the remuneration of judges established in this law,
the provision of Paragraph 4 of Article 7 of the Law that the
remuneration of the judges appointed to the post of a judge
during the transitional period is computed on the basis of the
provisions and formulas of Article 7 of this Law which
establish reduction of judges' remuneration conflict with
Article 5 of the Constitution.
12. As it has been mentioned, the incompatibility of the
post of a judge with any other post or employment as
established in Paragraph 1 of Article 113 of the Constitution
is determined by a special legal situation of a judge, as a
representative of the judiciary. It is attempted by the
established prohibition to ensure the independence and
impartiality of judges, which are necessary conditions for
implementation of justice.
In the norms of the Law disputed by the petitioners,
remuneration for judges and its payment during the transitional
period are established. Paragraph 1 of Article 113 of the
Constitution establishes the posts and activities incompatible
with the work of the judge and the prohibition to receive any
remuneration other than the salary established for judges as
well as payments for educational or creative activities.
Thus, the disputed provisions of the Law do not provide
for coordination of the post of the judge with other elected or
appointed posts, employment in any business, commercial, or
other private establishment or company. Neither do these
provisions deny a prohibition applied to a judge to receive any
remuneration other than the salary established for judges as
well as payments for educational or creative activities. As the
disputed provisions of the Law regulate relations of different
character than Paragraph 1 of Article 113 of the Constitution,
they are in compliance with Paragraph 1 of Article 113 of the
Constitution.
13. Assessing the compliance of the disputed provisions of
the Law with Paragraph 1 of Article 114 of the Constitution,
one has to note that the norms established in Paragraph 2 of
Article 109 and Paragraph 1 of Article 114 of the Constitution
are closely linked. Even though the disputed provisions of the
Law do not provide for any measures that would permit
institutions of state power and administration to interfere
with the activities of courts, however, the said provisions to
the extent that they deny the principle of independence of
judges and courts create preconditions to exert influence on
activities of judges and courts.
Having held that Item 1 of Paragraph 3 of Article 7
(wordings of 29 August 2000, 17 October 2000 and 27 March
2001), Paragraph 5 of Article 7 (wordings of 29 August 2000 and
27 March 2001), the provision establishing the transitional
period of Paragraph 6 of Article 7 of the Law and Chapter II of
the Appendix to the Law to the extent that it provides for
reduction of remuneration for the judges whose remuneration is
bigger than the remuneration of judges established in this Law,
the provision of Paragraph 4 of Article 7 of the Law that the
remuneration of the judges appointed to the post of a judge
during the transitional period is computed on the basis of the
provisions and formulas of Article 7 of this law which
establish reduction of judges' remuneration conflict with
Article 109 of the Constitution and the principle of a
law-governed state entrenched in the Constitution, one is to
hold that these provisions are in conflict with Paragraph 1 of
Article 114 of the Constitution.
Taking account of the arguments set down in this Ruling,
one is to conclude that Item 1 of Paragraph 3 of Article 7
(wordings of 29 August 2000, 17 October 2000 and 27 March
2001), Paragraph 5 of Article 7 (wordings of 29 August 2000 and
27 March 2001), the provision establishing the transitional
period of Paragraph 6 of Article 7 of the Law and Chapter II of
the Appendix to the Law to the extent that it provides for
reduction of remuneration for the judges whose remuneration is
bigger than the remuneration of judges established in this Law,
the provision of Paragraph 4 of Article 7 of the Law that the
remuneration of the judges appointed to the post of a judge
during the transitional period is computed on the basis of the
provisions and formulas of Article 7 of this law which
establish reduction of judges' remuneration conflict with
Paragraph 1 of Article 114 of the Constitution.
Conforming to Article 102 of the Constitution of the
Republic of Lithuania and Articles 53, 54, 55, 56 and Paragraph
4 of Article 69 of the Republic of Lithuania Law on the
Constitutional Court, the Constitutional Court of the Republic
of Lithuania has passed the following
ruling:
1. To recognise that Paragraphs 1 and 2 of Article 4 of
the Republic of Lithuania Law on Remuneration for Work of State
Politicians, Judges and State Officials to the extent that they
establish in what manner the official salaries of judges are to
be computed and Paragraphs 1 and 3 of Article 5 of the same law
to the extent that they establish extra pay for judges for the
years served for the State of Lithuania are in compliance with
the Constitution of the Republic of Lithuania.
2. To recognise that the provision of Item 1 of Paragraph
3 of Article 7 of the Republic of Lithuania Law on Remuneration
for Work of State Politicians, Judges and State Officials
(wordings of 29 August 2000, 17 October 2000 and 27 March 2001)
that the judges "whose average remuneration for work computed
under the procedure established by the Government on the basis
of the official remuneration (official salaries) received
during the preceding three months and of the established extra
pays and bonuses of the preceding twelve months <...> is bigger
than the remuneration for work established in this Law shall,
upon this Law going into effect, be paid the remuneration for
work that they will have been paid until then and it shall not
be increased in 2000" is in compliance with the Constitution of
the Republic of Lithuania.
3. To recognise that Paragraph 6 of Article 7 of the
Republic of Lithuania Law on Remuneration for Work of State
Politicians, Judges and State Officials to the extent that
while the remuneration for work is computed for judges the size
of the coefficient base of the official salary established in
Item 1 of Paragraph 5 of Article 69 of the Law on Public
Service shall be applicable is in compliance with Constitution
of the Republic of Lithuania.
4. To recognise that Item 1 of Paragraph 3 of Article 7
(wordings of 29 August 2000, 17 October 2000 and 27 March
2001), Paragraph 5 of Article 7 (wordings of 29 August 2000 and
27 March 2001) of the Republic of Lithuania Law on Remuneration
for Work of State Politicians, Judges and State Officials, the
provision of Paragraph 6 of Article 7 of the same law
establishing the transitional period and Chapter II entitled
"Official Salaries of Judges" of the Appendix to the same law
to the extent that it establishes reduction of remuneration for
work of the judges whose remuneration for work is bigger than
the remuneration for work of judges established in this law
conflict with Article 5, Article 109, Paragraph 1 of Article
114 of the Constitution of the Republic of Lithuania and the
principle of a law-governed state entrenched in the
Constitution of the Republic of Lithuania.
5. To recognise that Paragraph 4 of Article 7 of the
Republic of Lithuania Law on Remuneration for Work of State
Politicians, Judges and State Officials to the extent that it
establishes that the remuneration for work of the judges
appointed to the post of a judge during the transitional period
is established and computed on the basis of the provisions and
formulas of Article 7 of this law which establish reduction of
judges' remuneration conflict with Article 5, Article 109,
Paragraph 1 of Article 114 of the Constitution of the Republic
of Lithuania and the principle of a law-governed state
entrenched in the Constitution of the Republic of Lithuania.
6. To dismiss the initiated legal proceedings concerning
the compliance of Government of the Republic of Lithuania
Resolution No. 499 "On the Temporary Experimental Procedure for
Remuneration for Work to Heads and Other Officials of State
Power, State Administration and Law Enforcement Bodies" of 29
November 1991, Government of the Republic of Lithuania
Resolution No. 666 "On Remuneration for Work of Judges of
Courts, Officials and Other Employees of the Prosecutor's
Office and the State Security Department of the Republic of
Lithuania" of 24 June 1997, Government of the Republic of
Lithuania Resolution No. 1494 "On the Partial Amendment of
Government of the Republic of Lithuania Resolution No. 689 'On
Remuneration for Work of Chief Officials and Officers of Law
and Order Institutions and of Law Enforcement and Control
Institutions' of 30 June 1997'" of 28 December 1999 with the
Constitution of the Republic of Lithuania.
7. To dismiss the initiated legal proceedings concerning
the compliance of Appendix 6 to Paragraph 1 of Article 1 of the
Republic of Lithuania Law on the Approval of the Financial
Indices of the 2000 State Budget and the Budgets of Local
Governments and Article 9 of the Republic of Lithuania Law on
Amending the Law on the Approval of the Financial Indices of
the 2000 State Budget and the Budgets of Local Governments 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.