Lietuviškai
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF
LITHUANIA
RULING
ON THE COMPLIANCE OF ITEM 9 (WORDING OF 28
NOVEMBER 2000) OF PARAGRAPH 4 OF ARTICLE 11 OF THE
REPUBLIC OF LITHUANIA LAW ON THE PROSECUTOR'S
OFFICE AND ARTICLE 2 OF THE 28 NOVEMBER 2000
REPUBLIC OF LITHUANIA LAW ON THE AMENDMENT OF
ARTICLE 11 OF THE LAW ON THE PROSECUTOR'S OFFICE
WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA
24 January 2003
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 Seimas of the Republic of
Lithuania, the party concerned, who was Daiva Petrylaitė, 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 Law on the
Constitutional Court of the Republic of Lithuania, on 3 January
2003 in its public hearing heard Case No. 20/01 which
originated in a petition of the Vilnius Regional Administrative
Court, the petitioner, requesting to investigate as to whether
Articles 1 and 2 of the 28 November 2000 Republic of Lithuania
Law on the Amendment of Article 11 of the Law on the
Prosecutor's Office were not in conflict with the
constitutional principle of a state under the rule of law and
the provisions of Articles 5, 67 and 75 of the Constitution of
the Republic of Lithuania.
The Constitutional Court
has established:
I
The petitioner, the Vilnius Regional Court, was
investigating an administrative case. The said court suspended
the investigation of the case by its ruling and applied to the
Constitutional Court with a petition requesting to investigate
as to whether Articles 1 and 2 of the 28 November 2000 Law on
the Amendment of Article 11 of the Law on the Prosecutor's
Office (Official Gazette Valstybės žinios, 2000, No. 103-3259)
were not in conflict with the constitutional principle of a
state under the rule of law and the provisions of Articles 5,
67 and 75 of the Constitution.
II
The request of the petitioner is based on the following
arguments.
1. Paragraph 3 of Article 11 of the Law on the
Prosecutor's Office (wording of 13 March 1997) provided that
the Prosecutor General shall be appointed for a seven-year term
and dismissed by the Seimas upon the presentation by the Seimas
Committee on Legal Affairs. The candidatures of the Prosecutor
General used to be proposed to the Seimas Committee on Legal
Affairs by the President of the Supreme Court of Lithuania and
the Minister of Justice. This procedure of the appointment and
dismissal of the Prosecutor General was changed by Article 1 of
the Law on the Amendment of Article 11 of the Law on the
Prosecutor's Office: it was established that the Prosecutor
General shall be appointed for a seven-year term and dismissed
by the President of the Republic upon the approval of the
Seimas. Article 2 titled "The Procedure of the Implementation
of This Law" of the said law provides that from the day of
entry into effect of this law, the powers of the Prosecutor
General appointed by the Seimas shall be terminated and he
shall temporarily hold office of the Prosecutor General until a
new Prosecutor General is appointed under the procedure
established by laws.
The petitioner points out that by the 3 April 1997 Seimas
Resolution "On the appointment of K. Pėdnyčia as the Prosecutor
General of the Republic of Lithuania", the Prosecutor General
was appointed for a seven-year term. Subsequent to Article 2 of
the 28 November 2000 Law on the Amendment of Article 11 of the
Law on the Prosecutor's Office, the powers of the Prosecutor
General were terminated, even though his term of powers had not
expired, nor were there any other grounds for the dismissal of
the Prosecutor General, which had been provided for in the Law
on the Prosecutor's Office. The former Prosecutor General was
charged to temporarily hold office of the Prosecutor General,
however, the established term was clearly shorter than the
remaining term of powers of the Prosecutor General. The
petitioner also notes that the 28 November 2000 Law on the
Amendment of Article 11 of the Law on the Prosecutor's Office
established a compulsory dismissal of the Prosecutor General
upon the amendment of the procedure of his appointment, while
the powers of the former Prosecutor General were ultimately
terminated upon the appointment of a new Prosecutor General.
2. Article 75 of the Constitution provides that officials
appointed or elected by the Seimas (with the exception of
persons specified in Article 74 of the Constitution) shall be
dismissed from office when the Seimas, by majority vote of all
the members of the Seimas, expresses no-confidence in them. The
petitioner maintains that the Prosecutor General is not pointed
out in Article 74 of the Constitution. Under Paragraph 3 of
Article 118 of the Constitution, the procedure for the
appointment of prosecutors (thus, including the Prosecutor
General) and their status shall be established by law.
3. In the opinion of the petitioner, the 28 November 2000
Law on the Amendment of Article 11 of the Law on the
Prosecutor's Office is in conflict with the constitutional
principle of a state under the rule of law and the provisions
of Articles 5, 67 and 75 of the Constitution.
III
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from D. Petrylaitė, the representative of the party
concerned.
1. The representative of the party concerned points out
that, upon the amendment of the procedure of the appointment of
the Prosecutor General by the 28 November 2000 Law on the
Amendment of Article 11 of the Law on the Prosecutor's Office,
i.e. upon the establishment that the Prosecutor General shall
be appointed for a seven-year term and dismissed by the
President of the Republic upon the approval of the Seimas, and
upon the consolidation of new grounds for dismissal of the
Prosecutor General from office, i.e. upon the establishment
that the Prosecutor General is dismissed after the procedure
for the appointment of the Prosecutor General is changed when
the law provides for different entities who appoint the
Prosecutor General, one necessarily had to decide the issue of
the powers of the Prosecutor General who was holding office at
that time, and who had been appointed not by the President of
the Republic but by the Seimas which, under the said
provisions, loses the right to appoint the Prosecutor General
to office. Therefore, in Article 2 of the 28 November 2000 Law
on the Amendment of Article 11 of the Law on the Prosecutor's
Office it was established that after this law goes into effect,
the powers of the Prosecutor General appointed by the Seimas
shall be terminated and he shall temporarily hold office of the
Prosecutor General until a new Prosecutor General is appointed
by the President of the Republic.
2. D. Petrylaitė maintains that the regulation of the
appointment to and dismissal of the Prosecutor General from
office by law is linked with respective constitutional
provisions: the office of the Prosecutor General is not
provided for in the Constitution, it does not establish any
procedure for the appointment of the said official, however, it
is established in Paragraph 3 of Article 118 of the
Constitution that the procedure for the appointment of
prosecutors and their status shall be established by law. Thus,
under the Constitution, the procedure for the appointment and
dismissal of the Prosecutor General is also established by law.
In the opinion of the representative of the party concerned, in
this case the legislator, while adopting 28 November 2000 Law
on the Amendment of Article 11 of the Law on the Prosecutor's
Office, was permitted and had to decide the issues connected
with the procedure for the dismissal of the Prosecutor General.
3. In the opinion of the representative of the party
concerned, when changing the procedure for the appointment of
the Prosecutor General by the 28 November 2000 Law on the
Amendment of Article 11 of the Law on the Prosecutor's Office,
one attempted to establish the procedure for the appointment of
the Prosecutor General permitting to guarantee the independence
of the said official from the legislature and the executive.
This is in line with the principle of the separation of powers
entrenched in Article 5 of the Constitution.
D. Petrylaitė also points out that upon the establishment
of the aforesaid new ground for dismissal of the Prosecutor
General from office by the 28 November 2000 Law on the
Amendment of Article 11 of the Law on the Prosecutor's Office
and, provided the Seimas had not dismissed the Prosecutor
General who had been appointed by it, there would have occurred
a situation when this official could have been dismissed by
neither the Seimas (as it would not have enjoyed this right any
longer), nor the President of the Republic (since it would not
have been he who had appointed the Prosecutor General to
office). Therefore, the provision of Article 2 of the 28
November 2000 Law on the Amendment of Article 11 of the Law on
the Prosecutor's Office that upon the changing of the entity
appointing the Prosecutor General the powers of the Prosecutor
General holding office shall be terminated, was necessary. In
the opinion of the representative of the party concerned, the
provision of Article 2 of the 28 November 2000 Law on the
Amendment of Article 11 of the Law on the Prosecutor's Office
does not prohibit the President of the Republic from appointing
the Prosecutor General who was holding office as a new
Prosecutor General.
D. Petrylaitė maintains that Article 2 of the 28 November
2000 Law on the Amendment of Article 11 of the Law on the
Prosecutor's Office is a special norm in regard of the
provisions of Article 1 of the said law (they establish the
procedure of their implementation). Thus, the Seimas, while
adopting the 28 November 2000 Law on the Amendment of Article
11 of the Law on the Prosecutor's Office and, alongside,
establishing the procedure of its implementation, made use of
the legislative right provided for in Item 2 of Article 67 of
the Constitution.
4. The representative of the party concerned maintains
that the Seimas, pursuant to Item 5 of Article 67 of the
Constitution, shall establish state institutions provided for
by law, and shall appoint and dismiss their heads. The Seimas
may also dismiss officials appointed by it by majority vote of
all members of the Seimas after it expresses no-confidence in
them, i.e. pursuant to Article 75 of the Constitution. The
provisions of this article of the Constitution must be applied
while taking into consideration the provisions of Item 5 of
Article 67 and Paragraph 3 of Article 118 of the Constitution.
5. In the opinion of D. Petrylaitė, the disputed
provisions of the 28 November 2000 Law on the Amendment of
Article 11 of the Law on the Prosecutor's Office are not in
conflict with the provisions Articles 5, 67 and 75 of the
Constitution and the constitutional principle of a state under
the rule of law.
IV
In the course of the preparation of the case for the
Constitutional Court hearing, explanations were received from
A. Sakalas, Chairman of the Seimas Committee on Legal Affairs,
Č. Jokūbauskas, Chairman of the Division of Civil Cases of the
Supreme Court of Lithuania, A. Perkauskas, a reviewer to the
President of the Republic of Lithuania, J. Dubinienė, Director
of the Department of Law and Law Enforcement of the Office of
the Government of the Republic of Lithuania, P. Koverovas,
State Secretary of the Ministry of Justice of the Republic of
Lithuania, V. Urmonaitė, Deputy Prosecutor General of the
Republic of Lithuania, K. Betingis, Chief Prosecutor of the
Kaunas Region, I. Laucius, Chief Prosecutor of the Klaipėda
Region, A. Mirnyj, Chief Prosecutor of the Šiauliai Region, J.
Pupka, Chief Prosecutor of the Panevėžys Region, Prof. Dr. T.
Birmontienė, Head of the Department of Constitutional Law of
the Faculty of Law, the Law University of Lithuania.
V
At the Constitutional Court hearing, the representative of
the party concerned D. Petrylaitė virtually reiterated the
arguments set forth in her written explanations to the
Constitutional Court.
The Constitutional Court
holds that:
I
1. On 28 November 2000, the Seimas adopted the Law on the
Amendment of Article 11 of the Law on the Prosecutor's Office
which provides:
"Article 1. Amendment of Paragraphs 3, 4, and 5 of Article
11
1. Instead of the words "by the Seimas upon the
presentation by the Seimas Committee on Legal Affairs" in
Paragraph 3 of Article 11, to enter the words "by the President
of the Republic upon the approval of the Seimas", to delete the
second sentence and set forth this paragraph as follows:
"3. The Prosecutor General shall be appointed for a
seven-year term and dismissed by the President of the Republic
upon the approval of the Seimas."
2. Instead of the words "may be dismissed" in Paragraph 4
of Article 11, to enter the words "shall be dismissed", to
supplement it with Item 9 and set forth this paragraph as
follows:
"4. The Prosecutor General shall be dismissed from office
in accordance with the procedure established by law in the
following cases:
1) of his own will;
2) upon the expiry of the term of his powers;
3) for reasons of health;
4) upon reaching 65 years of age or by reason of
retirement;
5) upon being elected to another office or upon voluntary
transference to another work;
6) if by his action he discredits the prosecutor's name;
7) if a judgement of conviction passed on him by court
comes into force;
8) if he loses citizenship of the Republic of Lithuania;
9) upon changing the procedure for the appointment of the
Prosecutor General when the law provides for different entities
who appoint the Prosecutor General."
3. Instead of the words "the Seimas of the Republic of
Lithuania" in Paragraph 5 of Article 11, to enter the words
"the President of the Republic" and set forth this paragraph as
follows:
"5. Deputies of the Prosecutor General shall be appointed
and dismissed by the President of the Republic upon the
presentation by the Prosecutor General."
Article 2. The Procedure of the Implementation of This Law
From the day of entry into effect of this law, the powers
of the Prosecutor General appointed by the Seimas shall be
terminated and he shall temporarily hold office of the
Prosecutor General until a new Prosecutor General is appointed
under the procedure established by laws."
2. The petitioner requests to investigate as to whether
Articles 1 and 2 of the 28 November 2000 Law on the Amendment
of Article 11 of the Law on the Prosecutor's Office are not in
conflict with the constitutional principle of a state under the
rule of law and the provisions of Articles 5, 67 and 75 of the
Constitution.
2.1. The petitioner requests to investigate the compliance
of entire Article 1 of the 28 November 2000 Law on the
Amendment of Article 11 of the Law on the Prosecutor's Office
with the Constitution, however, it is clear from the motives of
the request that he does not doubt as to the compliance of all
provisions of Article 1 with the Constitution but as to the
compliance of the provision of Paragraph 2 of the said article
that the Prosecutor General is dismissed after the procedure
for the appointment of the Prosecutor General is changed when
the law provides for different entities who appoint the
Prosecutor General with the Constitution.
It needs to be noted that by Paragraph 2 of Article 1 of
the 28 November 2000 Law on the Amendment of Article 11 of the
Law on the Prosecutor's Office Paragraph 4 of Article 11
(wording of 13 March 1997) of the Law on the Prosecutor's
Office was supplemented with Item 9 which established that the
Prosecutor General shall be dismissed from office upon changing
the procedure for the appointment of the Prosecutor General
when the law provides for different entities who appoint the
Prosecutor General. Thus, the petitioner doubts as to the
compliance of Item 9 (wording of 28 November 2000) of Paragraph
4 of Article 11 of the Law on the Prosecutor's Office with the
Constitution.
2.2. The petitioner requests to investigate as to whether
the disputed provisions of the 28 November 2000 Law on the
Amendment of Article 11 of the Law on the Prosecutor's Office
are not in conflict with Articles 5 and 67 of the Constitution,
however, it is clear from the motives of the request that the
petitioner doubts as to the compliance of the disputed
provisions of the 28 November 2000 Law on the Amendment of
Article 11 of the Law on the Prosecutor's Office with not
entire Articles 5 and 67 of the Constitution but with Paragraph
2 of Article 5 and Items 2 and 5 of Article 67 of the
Constitution.
3. On 2 May 2002, the Seimas adopted the Law on the
Amendment of Article 11 of the Law on the Prosecutor's Office
by Article 1 whereof Item 9 (wording of 28 November 2000) of
Paragraph 4 of Article 11 of the Law on the Prosecutor's Office
was recognised as no longer valid.
4. Subsequent to the petition of the petitioner, the
Constitutional Court will investigate as to whether Item 9
(wording of 28 November 2000) of Paragraph 4 of Article 11 of
the Law on the Prosecutor's Office and Article 2 of the 28
November 2000 Law on the Amendment of Article 11 of the Law on
the Prosecutor's Office are not in conflict with the
constitutional principle of a state under the rule of law,
Paragraph 2 of Article 5, Items 2 and 5 of Article 67 and
Article 75 of the Constitution.
II
On the compliance of Item 9 (wording of 28 November 2000)
of Paragraph 4 of Article 11 of the Law on the Prosecutor's
Office and Article 2 of the 28 November 2000 Law on the
Amendment of Article 11 of the Law on the Prosecutor's Office
with the constitutional principle of a state under the rule of
law.
1. The petitioner doubts as to whether Item 9 (wording of
28 November 2000) of Paragraph 4 of Article 11 of the Law on
the Prosecutor's Office and Article 2 of the 28 November 2000
Law on the Amendment of Article 11 of the Law on the
Prosecutor's Office are in compliance with the constitutional
principle of a state under the rule of law.
2. The constitutional principle of a state under the rule
of law 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 the state
under the rule of law reveals itself in various provisions of
the Constitution (Constitutional Court ruling of 23 February
2000).
Along with the other requirements, the principle of a
state under the rule of law, which is entrenched in the
Constitution, implies a duty of the state to guarantee
certainty and stability of legal regulation as well as
protection of legitimate expectations.
3. In its ruling of 11 May 1999, the Constitutional Court
held that in a democratic state under the rule of law the
officials and institutions must follow law. Carrying out the
functions which are important to society and the state, the
officials must not face any threat if they fulfil their duties
without violations of laws. The constitutional principle of a
state under the rule of law requires that the jurisdictional
and other institutions which apply law be impartial,
independent, that they seek to establish the objective truth
and that they adopt their decisions only on the grounds of law.
4. The functions of prosecutors are established in
Paragraph 1 of Article 118 of the Constitution: "In criminal
cases prosecutors shall pursue charges on behalf of the State,
shall carry out criminal prosecution, and shall supervise the
activities of the interrogative bodies."
To discharge their functions properly, the prosecutors
must have sufficient independence guarantees, which must be
provided for in the law. The legislative or executive powers as
well as their officials have no right to interfere with the
activities of prosecutors when they discharge their functions
established in the Constitution.
An important guarantee of the independence of prosecutors
is the provision established in Paragraph 3 of Article 118 of
the Constitution that the procedure for the appointment of
prosecutors and their status shall be established by law. The
legislator, while implementing his constitutional powers to
establish the entities who appoint and dismiss prosecutors,
also to establish the length of the term of powers of
prosecutors, as well as the procedure for their appointment,
dismissal, the grounds for the dismissal, is bound by the
Constitution, thus, also by the principle of a state under the
rule of law entrenched therein, which implies legal certainty,
stability and protection of legitimate expectations.
5. In the context of the case at issue, it needs to be
noted that the procedure for the appointment and dismissal of
the Prosecutor General as well as the grounds for his dismissal
have been changed by laws for more than once.
5.1. On 22 March 1990, by the Resolution "On the
Appointment of the Prosecutor of the Republic of Lithuania" the
Supreme Council of the Republic of Lithuania appointed the
Prosecutor the Republic of Lithuania.
On 27 July 1990, the Republic of Lithuania Law on the
Prosecutor's Office was adopted, which provided for the office
of the Prosecutor General of the Republic of Lithuania but not
that of the Prosecutor the Republic of Lithuania. Under the
said law, the term of powers of the Prosecutor General was five
years. The Supreme Council enjoyed the right to appoint and
dismiss the Prosecutor General, which he was responsible to and
accountable for (Articles 8, 12 and 15).
It was established in Item 2 of the 27 July 1990 Supreme
Council Resolution "On the Entry into Effect of the Republic of
Lithuania Law on the Prosecutor's Office" that as of then the
Prosecutor of the Republic of Lithuania shall be referred to as
the Prosecutor General of the Republic of Lithuania.
5.2. The Seimas of the 1992-1996 term of office changed
the procedure for the appointment and dismissal of the
Prosecutor General.
It was provided for in Article 66 of the Republic of
Lithuania Law on Courts (wording of 31 May 1994) that the
Prosecutor General and his deputies shall be appointed and
dismissed by the President of the Republic.
On 13 October 1994, the Seimas adopted a new Republic of
Lithuania Law on the Prosecutor's Office in Article 11 whereof
it was provided that the Prosecutor General shall be appointed
for a seven-year term and dismissed by the President of the
Republic. The Prosecutor General could be dismissed in the
following cases: (1) of his own will; (2) upon the expiry of
the term of his powers; (3) for reasons of health; (4) upon
reaching 65 years of age or by reason of retirement; (5) upon
being elected to another office or upon voluntary transference
to another work; (6) if by his action he discredited the
prosecutor's name; (7) if a judgement of conviction passed on
him by court came into force.
Article 2 of the 13 October 1994 Republic of Lithuania Law
"On the Implementation of the Republic of Lithuania Law on the
Prosecutor's Office" provided that the Prosecutor General of
the Republic of Lithuania under the Supreme Court of Lithuania
was to be appointed until 15 November 1994. The powers of the
then Prosecutor General were to be terminated after the
Prosecutor General of the Republic of Lithuania under the
Supreme Court of Lithuania had been appointed.
It was established in the 20 October 1994 Republic of
Lithuania Law "On the Amendment of the Republic of Lithuania
Law on Courts" that the Prosecutor General of the Republic of
Lithuania shall be appointed and dismissed by the Seimas upon
the presentation by the President of the Republic.
It was established in the 3 November 1994 Republic of
Lithuania Law "On the Amendment of the Republic of Lithuania
Law on the Prosecutor's Office and of the Republic of Lithuania
Law 'On the Implementation of the Republic of Lithuania Law on
the Prosecutor's Office'" that the Prosecutor General of the
Republic of Lithuania shall be appointed for a seven-year term
and dismissed by the Seimas upon the presentation by the
President of the Republic. The Prosecutor General under the
Supreme Court of Lithuania was to be appointed until 1 December
1994. The powers of the then Prosecutor General were to be
terminated as of 1 January 1995. The said 3 November 1994 law
did not change the grounds for the dismissal of the Prosecutor
General.
By its 21 December 1994 Resolution "On the Appointment of
the Prosecutor General of the Republic of Lithuania", the
Seimas appointed a new Prosecutor General.
5.3. The Seimas of the 1996-2000 term of office also
changed the procedure for the appointment and dismissal of the
Prosecutor General, as well as the grounds of his dismissal.
By its 25 February 1997 Resolution "On the Dismissal of V.
Nikitinas from the Office of the Prosecutor General", the
Seimas dismissed the then Prosecutor General from office.
It was established in the 13 March 1997 Republic of
Lithuania Law on the Amendment of Article 11 of the Law on the
Prosecutor's Office that the Prosecutor General shall be
appointed for a seven-year term by the Seimas upon the
presentation by the Seimas Committee on Legal Affairs. The
candidatures of the Prosecutor General were to be proposed to
the Seimas Committee on Legal Affairs by the President of the
Supreme Court of Lithuania and the Minister of Justice
(Paragraph 1 of Article 1). Alongside, the list of the grounds
for the dismissal of the Prosecutor General was supplemented
and it was established that the Prosecutor General may be
dismissed if he loses citizenship of the Republic of Lithuania
(Paragraph 2 of Article 1).
By its 3 April 1997 Resolution "On the Appointment of K.
Pėdnyčia as the Prosecutor General of the Republic of
Lithuania", the Seimas appointed a new Prosecutor General.
5.4. The Seimas elected in 2000 also has changed the
procedure for the appointment and dismissal of the Prosecutor
General, as well as the grounds of his dismissal.
It was established in Paragraph 1 of Article 1 of the 28
November 2000 Law on the Amendment of Article 11 of the Law on
the Prosecutor's Office that the Prosecutor General shall be
appointed for a seven-year term and dismissed by the President
of the Republic upon the approval of the Seimas. By Paragraph 2
of Article 1 of the said law, the list of the grounds for
dismissal of the Prosecutor General was supplemented by an
additional ground: the Prosecutor General is dismissed after
the procedure for the appointment of the Prosecutor General is
changed when the law provides for different entities who
appoint the Prosecutor General. In Article 2 of the said law it
was established that from the day this law goes into effect,
the powers of the Prosecutor General appointed by the Seimas
shall be terminated and he shall temporarily hold office of the
Prosecutor General until a new Prosecutor General is appointed
under the procedure established by laws.
The President of the Republic, upon the approval of the
Seimas, by his 12 December 2000 Decree "On the Appointment of
A. Klimavičius as the Prosecutor general of the Republic of
Lithuania" appointed a new Prosecutor General.
On 2 May 2002, the Seimas adopted the Republic of
Lithuania Law on the Amendment of Article 11 of the Law on the
Prosecutor's Office. By the said law Item 9 (wording of 28
November 2000) of Paragraph 4 of Article 11 of the Law on the
Prosecutor's Office was abolished, which had provided that the
Prosecutor General shall be dismissed from office upon changing
the procedure for the appointment of the Prosecutor General
when the law provides for different entities who appoint the
Prosecutor General.
5.5. Thus, each Seimas of a new term of office changed the
procedure for the appointment and dismissal of the Prosecutor
General, the grounds of dismissal of this official have been
changed for more than once, while the then Prosecutor General
used to be dismissed and a new Prosecutor General used to be
appointed. It needs to be noted that not a single one of the
Prosecutors General held office for the entire term of powers
provided for by the law. The legal acts on the grounds of which
Prosecutors General used to be dismissed from office did not
link their dismissal with the assessment of their work.
6. The provision of Paragraph 3 of Article 118 of the
Constitution that the procedure for the appointment of
prosecutors and their status shall be established by law means
inter alia that the legislator has the powers to establish by
law the entities who appoint and dismiss prosecutors, also, to
establish the term of powers of prosecutors and the grounds and
procedure for their dismissal from office. While establishing
this, the Seimas is bound by the Constitution, thus, also the
principle of a state under the rule of law entrenched therein,
which implies legal certainty, stability and protection of
legitimate expectations. After he has established the term of
powers of the Prosecutor General, the legislator does not have
the right to provide for any grounds of dismissal of the
Prosecutor General from office before the expiry of the term of
his powers. Under the Constitution, the legislator may
establish only such grounds for dismissal of the Prosecutor
General from office before the expiry of his powers, due to
which the Prosecutor General may not hold office on the whole
(e.g. due to such legal facts as the age provided for in the
law, transference to another place of work, loss of the
citizenship of the Republic of Lithuania). Upon such grounds,
following Item 5 of Article 67 of the Constitution, the Seimas
dismisses the Prosecutor General which was appointed by the
Seimas according to the law.
In the context of the case at issue, one is to note that,
under Article 75 of the Constitution, officials appointed or
elected by the Seimas (with the exception of persons specified
in Article 74 of the Constitution) shall be dismissed from
office when the Seimas, by majority vote of all the members of
the Seimas, expresses no-confidence in them. Thus, under the
Constitution, the Prosecutor General, if he is appointed by the
Seimas in accordance with the law, is also dismissed from
office before the expiry of his powers in the case that the
Seimas, by majority vote of all the members of the Seimas,
expresses no-confidence in him.
7. The changing of the procedure of the appointment of the
Prosecutor General when the law provides for other entities
appointing the Prosecutor General, under the Constitution, may
not serve a ground for dismissal of the Prosecutor General who
was appointed for the term provided for by law prior to the
expiry of the term of his powers, as this ground is not related
with the circumstances due to which the Prosecutor General may
not hold office on the whole.
Thus, under the Constitution, the powers of the Prosecutor
General appointed by the Seimas according to the law continue
until there appear the grounds established in the law for which
the Prosecutor General may not hold office on the whole, and
the Seimas dismisses the Prosecutor General from office (Item 5
of Article 67 of the Constitution) or until the Seimas
expresses no-confidence in the Prosecutor General (Article 75
of the Constitution).
8. The provision of Item 9 (wording of 28 November 2000)
of Paragraph 4 of Article 11 of the Law on the Prosecutor's
Office that the Prosecutor General shall be dismissed from
office upon changing the procedure for the appointment of the
Prosecutor General when the law provides for different entities
who appoint the Prosecutor General, and the provision of
Article 2 of the 28 November 2000 Law on the Amendment of
Article 11 of the Law on the Prosecutor's Office that from the
day of entry into effect of this law, the powers of the
Prosecutor General appointed by the Seimas shall be terminated
and he shall temporarily hold office of the Prosecutor General
until a new Prosecutor General is appointed under the procedure
established by laws, the legal regulation was established when
the dismissal of the Prosecutor General was determined not by
the circumstances due to which the Prosecutor General may not
hold office on the whole but by a mere fact that a law changed
the procedure of the appointment of the Prosecutor General and
the entity that appoints him. It also needs to be noted that
such legal regulation creates preconditions for the appearance
of legal uncertainty in the system of the prosecutor's office
and for violation of the independence of prosecutors when they
discharge the functions established for them in the
Constitution.
Thus, the disputed provisions disregard the constitutional
principle of a state under the rule of law which implies legal
certainty, stability and protection of legitimate expectations.
9. Taking account of the arguments set forth, one is to
conclude that Item 9 (wording of 28 November 2000) of Paragraph
4 of Article 11 of the Law on the Prosecutor's Office and
Article 2 of the 28 November 2000 Law on the Amendment of
Article 11 of the Law on the Prosecutor's Office are in
conflict with the constitutional principle of a state under the
rule of law.
III
On the compliance of Item 9 (wording of 28 November 2000)
of Paragraph 4 of Article 11 of the Law on the Prosecutor's
Office and Article 2 of the 28 November 2000 Law on the
Amendment of Article 11 of the Law on the Prosecutor's Office
with Item 2 of Article 67 of the Constitution.
1. The petitioner doubts as to whether Item 9 (wording of
28 November 2000) of Paragraph 4 of Article 11 of the Law on
the Prosecutor's Office and Article 2 of the 28 November 2000
Law on the Amendment of Article 11 of the Law on the
Prosecutor's Office are not in conflict with Item 2 of Article
67 of the Constitution.
2. Under Item 2 of Article 67 of the Constitution, the
Seimas shall pass laws.
The Seimas implements the constitutional powers to pass
laws by adopting new laws, by changing or supplementing, by
law, the valid laws, and by recognising laws as no longer
valid.
It needs to be emphasised that the Seimas, while passing
laws, is bound by the Constitution and its previously adopted
laws. This is an essential element of the constitutional
principle of a state under the rule of law (Constitutional
Court rulings of 6 December 2000 and 14 January 2002).
3. It has been mentioned that, under Paragraph 3 of
Article 118 of the Constitution, the procedure for the
appointment of prosecutors and their status shall be
established by law. This provision of the Constitution means
inter alia that the legislator has the powers to establish by
law the entities who appoint and dismiss prosecutors, also, to
establish the term of powers of prosecutors and the grounds and
procedure for their dismissal from office.
4. The Seimas, while passing the 28 November 2000 Law on
the Amendment of Article 11 of the Law on the Prosecutor's
Office, implemented its powers to pass laws, which are
established in Item 2 of Article 67 of the Constitution.
5. It has been held in this Ruling of the Constitutional
Court that Item 9 (wording of 28 November 2000) of Paragraph 4
of Article 11 of the Law on the Prosecutor's Office and Article
2 of the 28 November 2000 Law on the Amendment of Article 11 of
the Law on the Prosecutor's Office are in conflict with the
constitutional principle of a state under the rule of law.
The fact that the law adopted by the Seimas might be
inconsistent with the Constitution in itself does not mean that
the Seimas, while passing such a law, violates Item 2 of
Article 67 of the Constitution wherein the competence of the
Seimas to pass laws is established (Constitutional Court ruling
of 6 December 2000).
6. Taking account of the arguments set forth, one is to
draw a conclusion that Item 9 (wording of 28 November 2000) of
Paragraph 4 of Article 11 of the Law on the Prosecutor's Office
and Article 2 of the 28 November 2000 Law on the Amendment of
Article 11 of the Law on the Prosecutor's Office are not in
conflict with Item 2 of Article 67 of the Constitution.
IV
On the compliance of Item 9 (wording of 28 November 2000)
of Paragraph 4 of Article 11 of the Law on the Prosecutor's
Office and Article 2 of the 28 November 2000 Law on the
Amendment of Article 11 of the Law on the Prosecutor's Office
with Item 5 of Article 67 of the Constitution.
1. The petitioner doubts as to whether Item 9 (wording of
28 November 2000) of Paragraph 4 of Article 11 of the Law on
the Prosecutor's Office and Article 2 of the 28 November 2000
Law on the Amendment of Article 11 of the Law on the
Prosecutor's Office are not in conflict with Item 5 of Article
67 of the Constitution.
2. Under Item 5 of Article 67 of the Constitution, the
Seimas shall establish state institutions provided for by law,
and shall appoint and dismiss their heads.
While interpreting Item 5 of Article 67 of the
Constitution in the case at issue, it needs to be noted that
this item inter alia means that the Seimas has the powers to
provide for the state institutions in the law, the heads of
which are appointed and dismissed by the Seimas itself, also,
that the Seimas enjoys the powers to appoint and dismiss the
heads of such institutions. Under Item 5 of Article 67 of the
Constitution, the Seimas may dismiss the heads of the state
institutions which are provided for in laws only upon the
grounds of dismissal established in the Constitution and/or
laws and following the dismissal procedure established in the
Constitution and/or laws. While dismissing the heads of the
state institutions provided for in the laws, whom it appointed
itself, the Seimas must base itself on the grounds established
in laws and follow the procedure established in laws, which are
not in conflict with the Constitution. Otherwise, Item 5 of
Article 67 of the Constitution would be violated.
3. Under the Constitution, a legal act whereby the head of
a state institution provided for by the law, who has been
appointed by the Seimas, is dismissed, is always an individual
legal act, therefore the form of such a legal act is not that
of a law but it is a different, i.e. substatutory, act of the
Seimas. Under Paragraph 2 of Article 70 of the Constitution,
such legal acts of the Seimas are signed by the President of
the Seimas. The said legal acts come into effect the day
following the publication thereof, unless they themselves
establish another procedure of entry into effect. Under the
Constitution, it is not permitted to dismiss, by a law, the
head of a state institution provided for by law, who was
appointed by the Seimas, as there would occur a legal situation
when the Seimas, which enjoys the constitutional powers to
dismiss the head of a state institution provided for by law,
who was appointed by the Seimas, would not be able to implement
such powers alone: as any law, then a law whereby the head of a
state institution provided for by law, who was appointed by the
Seimas, is dismissed, ought to be submitted to the President of
the Republic for signing and promulgation; the President of the
Republic would be able not to sign such a law and could refer
it back to the Seimas together with relevant reasons for
reconsideration; a law reconsidered by the Seimas would be
deemed adopted only if the amendments and supplements presented
by the President of the Republic were adopted, or if more than
half of all the members of the Seimas voted in favour of the
law.
If the head of a state institution provided for by law,
who was appointed by the Seimas, is dismissed by a law, the
powers of the Seimas which are established in Item 5 of Article
67 of the Constitution to dismiss the heads of state
institutions provided for by law who have been appointed by the
Seimas would be restricted, alongside, the constitutional
principle of separations of powers would be violated.
4. It has been mentioned that in Item 9 (wording of 28
November 2000) of Paragraph 4 of Article 11 of the Law on the
Prosecutor's Office one established the ground for dismissal of
the Prosecutor General prior to the expiry of the term of his
powers, that the dismissal of the Prosecutor General was
determined not by the circumstances due to which the Prosecutor
General may not hold office on the whole but by a mere fact
that a law changed the procedure of the appointment of the
Prosecutor General and the entity that appoints him. After the
28 November 2000 Law on the Amendment of Article 11 of the Law
on the Prosecutor's Office had gone into effect, under Article
2 of the said law the powers of the then Prosecutor General
were terminated, i.e. he was dismissed form office. In this
Ruling, the Constitutional Court has held that Item 9 (wording
of 28 November 2000) of Paragraph 4 of Article 11 of the Law on
the Prosecutor's Office and Article 2 of the 28 November 2000
Law on the Amendment of Article 11 of the Law on the
Prosecutor's Office are in conflict with the constitutional
principle of a state under the rule of law. Thus, by the
disputed provisions one established a ground for dismissal of
the Prosecutor General prior to the expiry of his powers, which
is in conflict with the Constitution, and the powers of the
Prosecutor General were terminated; the said powers were
terminated by a law.
5. Taking account of the arguments set forth, one is to
conclude that Item 9 (wording of 28 November 2000) of Paragraph
4 of Article 11 of the Law on the Prosecutor's Office and
Article 2 of the 28 November 2000 Law on the Amendment of
Article 11 of the Law on the Prosecutor's Office are in
conflict with Item 5 of Article 67 of the Constitution.
V
On the compliance of Item 9 (wording of 28 November 2000)
of Paragraph 4 of Article 11 of the Law on the Prosecutor's
Office and Article 2 of the 28 November 2000 Law on the
Amendment of Article 11 of the Law on the Prosecutor's Office
with Article 75 of the Constitution.
1. The petitioner doubts as to whether Item 9 (wording of
28 November 2000) of Paragraph 4 of Article 11 of the Law on
the Prosecutor's Office and Article 2 of the 28 November 2000
Law on the Amendment of Article 11 of the Law on the
Prosecutor's Office are not in conflict with Article 75 of the
Constitution.
2. Article 75 of the Constitution provides: "Officials
appointed or elected by the Seimas (with the exception of
persons specified in Article 74 of the Constitution) shall be
dismissed from office when the Seimas, by majority vote of all
the members of the Seimas, expresses no-confidence in them."
This article of the Constitution establishes the right of
the Seimas to dismiss those officials from office, who were
appointed or elected by the Seimas, with the exception of
persons specified in Article 74 of the Constitution. This is
done by following a special parliamentary procedure, which is
expression of no-confidence. The no-confidence is expressed by
majority vote of all the members of the Seimas.
The institute of expression of no-confidence is not only
one of the ways of the parliamentary control carried out by the
Seimas, but also an important guarantee of the activity of the
official appointed or elected by the Seimas, since such an
official, if there are no grounds due to which he may not hold
office on the whole, may be dismissed from office prior to the
expiry of the term of his powers when more than half of all
members of the Seimas vote in favour of no-confidence. The
expression of no-confidence is the ground for dismissal of an
official appointed or elected by the Seimas from office, which
must be linked with the assessment of the activity of the
official, therefore, the regulation of the procedure of the
parliamentary expression of no-confidence must be such so as to
ensure the due legal process, which inter alia means that an
official against whom no-confidence is expressed should have a
real opportunity to present to the Seimas his explanations and
to answer, at the Seimas sitting, all the arguments upon which
the no-confidence is grounded.
3. It has been mentioned that by Item 9 (wording of 28
November 2000) of Paragraph 4 of Article 11 of the Law on the
Prosecutor's Office one established an additional ground for
dismissal of the Prosecutor General from office, while by
Article 2 of the 28 November 2000 Law on the Amendment of
Article 11 of the Law on the Prosecutor's Office the powers of
the Prosecutor General appointed by the Seimas were terminated.
By the disputed provisions one did not decide the issue of
expression of no-confidence in the Prosecutor General; by the
said provisions one did not deny or restrict the right of the
Seimas entrenched in Article 75 of the Constitution to express
no-confidence, by majority vote of all members of the Seimas,
in an official appointed or elected by the Seimas.
4. Taking account of the arguments set forth, one is to
conclude that Item 9 (wording of 28 November 2000) of Paragraph
4 of Article 11 of the Law on the Prosecutor's Office and
Article 2 of the 28 November 2000 Law on the Amendment of
Article 11 of the Law on the Prosecutor's Office are not in
conflict with Article 75 of the Constitution.
VI
On the compliance of Item 9 (wording of 28 November 2000)
of Paragraph 4 of Article 11 of the Law on the Prosecutor's
Office and Article 2 of the 28 November 2000 Law on the
Amendment of Article 11 of the Law on the Prosecutor's Office
with Paragraph 2 of Article 5 of the Constitution.
1. The petitioner doubts as to whether Item 9 (wording of
28 November 2000) of Paragraph 4 of Article 11 of the Law on
the Prosecutor's Office and Article 2 of the 28 November 2000
Law on the Amendment of Article 11 of the Law on the
Prosecutor's Office are not in conflict with Paragraph 2 of
Article 5 of the Constitution.
2. Paragraph 2 of Article 5 of the Constitution provides
that the scope of power shall be limited by the Constitution.
While construing this provision of Paragraph 2 of Article
5 of the Constitution, the Constitutional Court noted: "While
preparing and adopting legal acts, institutions of state power
must follow the principle of a state under the rule of law
entrenched in the Constitution. Paragraph 2 of Article 5 of the
Constitution provides that the scope of power shall be limited
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"
(Constitutional Court ruling of 12 July 2001).
3. It has been held in this Ruling of the Constitutional
Court that by the disputed provisions one established a ground
for dismissal of the Prosecutor General prior to the expiry of
the term of his powers, which was in conflict with the
Constitution, and the powers of the Prosecutor General were
terminated. After it had been established in Item 9 (wording of
28 November 2000) of Paragraph 4 of Article 11 of the Law on
the Prosecutor's Office that the Prosecutor General shall be
dismissed upon changing the procedure for the appointment of
the Prosecutor General when the law provides for different
entities who appoint the Prosecutor General and in Article 2 of
the 28 November 2000 Law on the Amendment of Article 11 of the
Law on the Prosecutor's Office that from the day of entry into
effect of this law, the powers of the Prosecutor General
appointed by the Seimas shall be terminated and he shall
temporarily hold office of the Prosecutor General until a new
Prosecutor General is appointed under the procedure established
by laws, the constitutional principle of a state under the rule
of law and Item 5 of Article 67 were violated.
Thus, the Seimas exceeded the powers established for it in
the Constitution.
4. Taking account of the arguments set forth, one is to
conclude that Item 9 (wording of 28 November 2000) of Paragraph
4 of Article 11 of the Law on the Prosecutor's Office and
Article 2 of the 28 November 2000 Law on the Amendment of
Article 11 of the Law on the Prosecutor's Office are in
conflict with Paragraph 2 of Article 5 of the Constitution.
Conforming to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Articles 1, 53, 54, 55 and 56 of
the Law on the Constitutional Court of the Republic of
Lithuania, the Constitutional Court of the Republic of
Lithuania has passed the following
ruling:
To recognise that Item 9 (wording of 28 November 2000) of
Paragraph 4 of Article 11 of the Republic of Lithuania Law on
the Prosecutor's Office and Article 2 of the 28 November 2000
Republic of Lithuania Law on the Amendment of Article 11 of the
Law on the Prosecutor's Office are in conflict with Item 2 of
Article 5 and Item 5 of Article 67 of the Constitution of the
Republic of Lithuania, as well as the constitutional principle
of a state under the rule of law.
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated in the name of the Republic of
Lithuania.
Justices of the Constitutional Court: Armanas Abramavičius
Egidijus Jarašiūnas
Egidijus Kūris
Kęstutis Lapinskas
Zenonas Namavičius
Augustinas Normantas
Jonas Prapiestis
Vytautas Sinkevičius
Stasys Stačiokas