Lietuviškai
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF
LITHUANIA
RULING
ON THE COMPLIANCE OF PARAGRAPH 2 OF ARTICLE 48 OF
THE REPUBLIC OF LITHUANIA LAW ON THE ORGANISATION
OF THE NATIONAL DEFENCE SYSTEM AND MILITARY
SERVICE WITH THE CONSTITUTION OF THE REPUBLIC OF
LITHUANIA
2 July 2002
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Armanas
Abramavičius, Egidijus Jarašiūnas, Egidijus Kūris, Kęstutis
Lapinskas, Zenonas Namavičius, Augustinas Normantas, Jonas
Prapiestis, Vytautas Sinkevičius, and Stasys Stačiokas,
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, who was Romualdas Varslauskas, a
senior consultant to the Legal Department of the Office of the
Seimas,
pursuant to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Article 1 of the Republic of
Lithuania Law on the Constitutional Court, on 20 June 2002 in
its public hearing heard Case No. 32/2000 which originated in a
petition of the Higher Administrative Court, the petitioner,
requesting to determine whether the provision of Paragraph 2 of
Article 48 of the Republic of Lithuania Law on the Organisation
of the National Defence System and Military Service that in
cases of dismissal from professional or volunteer military
service based on the provisions of Paragraph 1 of Article 38,
or Items 10 and 12 of Paragraph 2 of Article 38 of this law,
when the service contract with the professional soldier or that
with the volunteer soldier had to be terminated, an appeal may
be lodged with the court regarding the violation of only the
dismissal procedure established by legal acts, was in
compliance with Paragraph 1 of Article 30 and Paragraph 1 of
Article 109 of the Constitution of the Republic of Lithuania.
The Constitutional Court
has established:
I
The petitioner, the Higher Administrative Court, was
investigating an administrative case. The said court suspended
the investigation of the case by its order and addressed the
Constitutional Court with a petition requesting to determine
whether the provision of Paragraph 2 of Article 48 of the
Republic of Lithuania Law on the Organisation of the National
Defence System and Military Service (hereinafter also referred
to as the Law) that in cases of dismissal from professional or
volunteer military service based on the provisions of Paragraph
1 of Article 38, or Items 10 and 12 of Paragraph 2 of Article
38 of this law, when the service contract with the professional
soldier or that with the volunteer soldier had to be
terminated, an appeal may be lodged with the court regarding
the violation of only the dismissal procedure established by
legal acts (wording of 7 July 1999; Official Gazette Valstybės
žinios, 1999, No. 64-2069) was in compliance with Paragraph 1
of Article 30 and Paragraph 1 of Article 109 of the
Constitution.
II
The request of the petitioner is based on the following
arguments.
Paragraph 1 of Article 30 of the Constitution provides
that any person whose constitutional rights or freedoms are
violated shall have the right to appeal to court, while
Paragraph 1 of Article 109 of the Constitution prescribes that,
in the Republic of Lithuania, the courts shall have the
exclusive right to administer justice. However, it is provided
in Paragraph 2 of Article 48 of the Law that in cases of
dismissal from professional or volunteer military service based
on the provisions of Paragraph 1 of Article 38, or Items 10 and
12 of Paragraph 2 of Article 38 of this law, when the service
contract with the professional soldier or that with the
volunteer soldier had to be terminated, an appeal may be lodged
with the court regarding the violation of only the dismissal
procedure established by legal acts. In the opinion of the
petitioner, thus the right of individuals established in
Paragraph 1 of Article 30 of the Constitution to appeal to
court is restricted and the provision of Paragraph 1 of Article
109 of the Constitution that, in the Republic of Lithuania, the
courts shall have the exclusive right to administer justice is
violated.
III
In the course of the preparation of the case for the
judicial investigation, written explanations were received from
the representative of the party concerned, the Seimas, P.
Petkevičius, a senior consultant to the Legal Department of the
Office of the Seimas.
The representative of the party concerned maintains that
the provision of Paragraph 2 of Article 48 of the Law that in
cases of dismissal from professional or volunteer military
service based on the provisions of Paragraph 1 of Article 38,
or Items 10 and 12 of Paragraph 2 of Article 38 of this law,
when the service contract with the professional soldier or that
with the volunteer soldier had to be terminated, an appeal may
be lodged with the court regarding the violation of only the
dismissal procedure established by legal acts is entrenched in
the Law for the purpose that the bases of dismissal of soldiers
from service established in Paragraph 1 of Article 38, and
Items 10 and 12 of Paragraph 2 of Article 38 are very
important, well-founded and may not be disputed, as it is
necessary to terminate the service contract with the soldier on
the said bases. In the opinion of P. Petkevičius, otherwise,
the interests of military service might be impeded and
significant damage might be inflicted on the national defence
system. According to the representative of the party concerned,
the court may decide only the dispute concerning whether one
followed the procedure of dismissal from the military service
which is established by legal acts, i.e. whether the question
of dismissal from the military service was decided by competent
entities, whether in the course of its adoption one grounded
one's decision on necessary facts, data, evidence and other
corresponding material, whether the procedural actions were
performed while duly following all the requirements established
by legal acts.
The representative of the party concerned maintains that
the Law on the Organisation of the National Defence System and
Military Service provides for the right of an individual to
lodge an appeal with the court against the procedure of
dismissal from military service and thus to defend his rights,
therefore the said provision of Paragraph 2 of Article 48 of
the Law is in compliance with Paragraph 1 of Article 30 and
Paragraph 1 of Article 109 of the Constitution.
IV
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from L. Linkevičius, Minister of Defence of the
Republic of Lithuania, and R. Melnikienė, Vice-minister of
Social Security and Labour.
V
At the Constitutional Court hearing, the representative of
the party concerned R. Varslauskas virtually reiterated the
arguments set forth in the written explanations by the
representative of the party concerned P. Petkevičius.
The Constitutional Court
holds that:
I
On the compliance of Paragraph 2 of Article 48 of the Law
on the Organisation of the National Defence System and Military
Service with Paragraph 1 of Article 30 of the Constitution.
1. The petitioner requests the Constitutional Court to
investigate whether the provision of Paragraph 2 of Article 48
of the Law that in cases of dismissal from professional or
volunteer military service based on the provisions of Paragraph
1 of Article 38, or Items 10 and 12 of Paragraph 2 of Article
38 of this law, when the service contract with the professional
soldier or that with the volunteer soldier had to be
terminated, an appeal may be lodged with the court regarding
the violation of only the dismissal procedure established by
legal acts was in compliance with Paragraph 1 of Article 30 of
the Constitution.
2. Paragraph 1 of Article 30 of the Constitution provides:
"Any person whose constitutional rights or freedoms are
violated shall have the right to appeal to court."
The constitutional principle of judicial protection is
established in Paragraph 1 of Article 30 of the Constitution.
In its ruling of 18 April 1996, the Constitutional Court held
that in a democratic state the court is the main institutional
guarantee of human rights and freedoms and that the
constitutional principle of judicial protection is universal.
It needs to be noted that, under the constitution, the
legislation has a duty to establish such legal regulation
whereby all disputes regarding violation of rights or freedoms
of individuals may be decided in court. An out-of-court dispute
settlement procedure may also be provided for. However, it is
not permitted to establish such legal regulation which denies
the right of an individual to defend his rights and freedoms in
court, who thinks that his rights or freedoms are being
violated.
In its 8 May 2000 ruling, the Constitutional Court held
that a person is guaranteed protection of his violated right in
court regardless of the legal status of this person and that
the violated rights and legitimate interests of persons must be
protected in court irrespective of the fact whether they are
directly established in the Constitution or not.
3. The relations of the organisation of the national
defence system and military service have their own
peculiarities. Taking account of these peculiarities, it is
permitted to establish by laws various ways of resolving
disputes regarding violation of the rights and freedoms,
including out-of-court settlement procedure of such disputes.
However, the peculiarities of the relations of the organisation
of the national defence system and military service may not
deny the constitutional right of persons to appeal to court to
defend their rights and freedoms.
4. It has been mentioned that Paragraph 2 of Article 48 of
the Law provides that in cases of dismissal from professional
or volunteer military service based on the provisions of
Paragraph 1 of Article 38, or Items 10 and 12 of Paragraph 2 of
Article 38 of this law, when the service contract with the
professional soldier or that with the volunteer soldier had to
be terminated, an appeal may be lodged with the court regarding
the violation of only the dismissal procedure established by
legal acts. Such legal regulation means that in cases when the
service contract with the professional soldier or that with the
volunteer soldier has to be or may be terminated and/or the
soldier is dismissed from service in the national defence
system, the dismissed soldier may lodge an appeal with the
court regarding the violation of only the dismissal procedure
established by legal acts. Thus, under the disputed provision
of Paragraph 2 of Article 48 of the Law, the soldier is
prohibited from appealing to court as regards the
reasonableness of his dismissal from military service. Thereby
the constitutional right of the person to appeal to court is
violated.
5. Taking account of the arguments set forth, one is to
conclude that the provision of Paragraph 2 of Article 48 of the
Law that in cases of dismissal from professional or volunteer
military service based on the provisions of Paragraph 1 of
Article 38, or Items 10 and 12 of Paragraph 2 of Article 38 of
this law, when the service contract with the professional
soldier or that with the volunteer soldier had to be
terminated, an appeal may be lodged with the court regarding
the violation of only the dismissal procedure established by
legal acts conflicts with Paragraph 1 of Article 30 of the
Constitution.
II
On the compliance of Paragraph 2 of Article 48 of the Law
on the Organisation of the National Defence System and Military
Service with Paragraph 1 of Article 109 of the Constitution.
1. The petitioner requests the Constitutional Court to
investigate whether the provision of Paragraph 2 of Article 48
of the Law that in cases of dismissal from professional or
volunteer military service based on the provisions of Paragraph
1 of Article 38, or Items 10 and 12 of Paragraph 2 of Article
38 of this law, when the service contract with the professional
soldier or that with the volunteer soldier had to be
terminated, an appeal may be lodged with the court regarding
the violation of only the dismissal procedure established by
legal acts was in compliance with Paragraph 1 of Article 109 of
the Constitution.
2. Paragraph 1 of Article 109 of the Constitution
provides:
"In the Republic of Lithuania, the courts shall have the
exclusive right to administer justice."
The Constitution shall be an integral and directly
applicable statute (Paragraph 1 of Article 6 of the
Constitution). Paragraph 1 of Article 109 of the Constitution
is inseparably linked with Paragraph 1 of Article 30 of the
Constitution in which the right of any person to appeal to
court concerning protection of his violated rights is
entrenched, with the principle of a law-governed state
enshrined in the Constitution, and with the inborn right of
individuals to justice. Under Paragraph 1 of Article 109 of the
Constitution, in the Republic of Lithuania, the courts shall
have the exclusive right to administer justice.
3. It has been held in this ruling of the Constitutional
Court that the provision of Paragraph 2 of Article 48 of the
Law that in cases of dismissal from professional or volunteer
military service based on the provisions of Paragraph 1 of
Article 38, or Items 10 and 12 of Paragraph 2 of Article 38 of
this law, when the service contract with the professional
soldier or that with the volunteer soldier had to be
terminated, an appeal may be lodged with the court regarding
the violation of only the dismissal procedure established by
legal acts conflicts with Paragraph 1 of Article 30 of the
Constitution.
After it has been held that by the disputed legal
regulation established in Paragraph 2 of Article 48 of the Law
the constitutional right of persons to appeal to court is
violated, it must be held, alongside, that the right of persons
to justice is infringed, the opportunities of courts to
administer justice are restricted, thus Paragraph 1 of Article
109 of the Constitution and the constitutional principle of a
law-governed state are violated.
4. Taking account of the arguments set forth, one is to
conclude that the provision of Paragraph 2 of Article 48 of the
Law that in cases of dismissal from professional or volunteer
military service based on the provisions of Paragraph 1 of
Article 38, or Items 10 and 12 of Paragraph 2 of Article 38 of
this law, when the service contract with the professional
soldier or that with the volunteer soldier had to be
terminated, an appeal may be lodged with the court regarding
the violation of only the dismissal procedure established by
legal acts conflicts with Paragraph 1 of Article 109 of the
Constitution and the constitutional principle of a law-governed
state.
Conforming to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Articles 1, 53, 54, 55 and 56 of
the Republic of Lithuania Law on the Constitutional Court, the
Constitutional Court of the Republic of Lithuania has passed
the following
ruling:
To recognise that the provision of Paragraph 2 of Article
48 of the Republic of Lithuania Law on the Organisation of the
National Defence System and Military Service that in cases of
dismissal from professional or volunteer military service based
on the provisions of Paragraph 1 of Article 38, or Items 10 and
12 of Paragraph 2 of Article 38 of this law, when the service
contract with the professional soldier or that with the
volunteer soldier had to be terminated, an appeal may be lodged
with the court regarding the violation of only the dismissal
procedure established by legal acts conflicts with Paragraph 1
of Article 30, Paragraph 1 of Article 109 of the Constitution
of the Republic of Lithuania and the constitutional principle
of a law-governed state.
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated on behalf of the Republic of
Lithuania.