Lietuviškai
Case No. 51/01-26/02-19/03-22/03-26/03-27/03
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF
LITHUANIA
RULING
ON THE COMPLIANCE OF SOME LEGAL ACTS WHEREBY THE
RELATIONS OF STATE SERVICE AND THOSE LINKED
THERETO ARE REGULATED WITH THE CONSTITUTION OF THE
REPUBLIC OF LITHUANIA AND LAWS
13 December 2004
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 Jurgita Meškienė, a
senior consultant to the Legal Department of the Office of the
Seimas, and the representative of the Government of the
Republic of Lithuania, the party concerned, who was Nerijus
Rudaitis, Deputy Director of the Law Department of the Ministry
of the Interior,
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 6 October
2004 and 11 November 2004 in its public hearings heard Case No.
51/01-26/02-19/03-22/03-26/03-27/03 which originated in these
petitions:
1) the petition of the Vilnius Regional Administrative
Court, a petitioner, requesting to investigate as to whether
Paragraph 12 of Article 62 of the Republic of Lithuania Law on
the State Service and Paragraph 7 of Article 29 of the Republic
of Lithuania Law on Local Self-government are not in conflict
with the principles of a just civil society and state under the
rule of law entrenched in the Preamble to the Constitution of
the Republic of Lithuania, Paragraph 1 of Article 29, Paragraph
1 of Article 33 and Paragraph 1 of Article 48 of the
Constitution;
2) the petition of the Panevėžys Regional Administrative
Court, a petitioner, requesting to investigate as to whether
the Rules of Calculation of Remuneration for Work of the State
Servant for the Second Half-year of 2002 confirmed by
Government of the Republic of Lithuania Resolution No. 686 "On
Calculation of Remuneration for Work of State Servants for the
Second Half-year of 2002" of 20 May 2002 are not in conflict
with Paragraph 1 of Article 29 of the Constitution of the
Republic of Lithuania and Paragraphs 1 and 2 of Article 24 of
the Republic of Lithuania Law on the State Service;
3) the petition of the Vilnius Regional Administrative
Court, a petitioner, requesting to investigate as to whether
the provisions of Article 26 of the Republic of Lithuania Law
on the State Service regulating a constituent part of
remuneration for work of state servants, extra pays, and which
do not particularise the amounts of the extra pays, are not in
conflict by their content with the principles of an open, just
and harmonious civil society and state under the rule of law
entrenched in the Preamble to the Constitution of the Republic
of Lithuania, as well as Articles 29 and 48 of the
Constitution;
4) the petition of the Alytus Local District Court, a
petitioner, requesting to investigate as to whether Paragraph 6
of Article 4 of the Republic of Lithuania Law on the
Implementation of the Law on Supplementing the Law on the State
Service and Item 4 of Article 17 and Item 1 of Paragraph 4 of
Article 29 of the Republic of Lithuania Law on the State
Service are not in conflict with Articles 23, 29 and 48 of the
Constitution of the Republic of Lithuania;
5) the petition of the Vilnius Regional Administrative
Court, a petitioner, requesting to investigate as to whether
(1) Paragraph 1 of Article 7 of the Republic of Lithuania Law
on the State Pensions of Officials and Servicemen of the
Interior, the Special Investigation Service, State Security,
National Defence, the Prosecutor's Office, the Department of
Prisons and of the Establishments and State Enterprises Which
are Subordinate to the Latter and the provision of Item 9 of
the Regulations for Granting and Payment of State Pensions of
Officials and Servicemen of the Systems of the Interior, the
Special Investigation Service, State Security, National
Defence, the Prosecutor's Office, the Department of Prisons and
of the Establishments and State Enterprises Which are
Subordinate to the Latter confirmed by Government of the
Republic of Lithuania Resolution No. 83 "On the Approval of the
Regulations for Granting and Payment of State Pensions to
Officials and Servicemen of the Systems of the Interior, State
Security, National Defence and Prosecutor's Office, the
Department of Prisons and of the Establishments and State
Enterprises Which are Subordinate to the Latter and the
Establishment of the Time of Service Necessary in Order to
Receive a Respective Percentage Extra Pay for the Years of
Service" of 20 January 1995, which regulate calculation and
payment of state pensions of officials and servicemen according
to the remuneration for work of officials and servicemen valid
at the month of payment of the pension for the office that they
used to hold at the time of retirement, and which do not
provide for a prohibition to reduce remuneration for work for
the month for which the state pension of officials and
servicemen is calculated and paid, are not in conflict, as to
their content, with the principles of a just society and state
under the rule of law entrenched in the Preamble to the
Constitution of the Republic of Lithuania, as well as Articles
23, 29 and 52 of the Constitution; (2) the provisions of
Section 5 of Item 9 of the Regulations for Granting and Payment
of State Pensions of Officials and Servicemen of the Systems of
the Interior, the Special Investigation Service, State
Security, National Defence, the Prosecutor's Office, the
Department of Prisons and of the Establishments and State
Enterprises Which are Subordinate to the Latter confirmed by
Government of the Republic of Lithuania Resolution No. 83 "On
the Approval of the Regulations for Granting and Payment of
State Pensions to Officials and Servicemen of the Systems of
the Interior, State Security, National Defence and Prosecutor's
Office, the Department of Prisons and of the Establishments and
State Enterprises Which are Subordinate to the Latter and the
Establishment of the Time of Service Necessary in Order to
Receive a Respective Percentage Extra Pay for the Years of
Service" of 20 January 1995, which permit only the Ministry of
National Defence, when it grants state pensions of officials
and servicemen, to calculate their remuneration for work on the
basis of the resolutions of the Government of the Republic of
Lithuania in which remuneration for work of servicemen is
established prior to the entry into effect of the law
regulating remuneration for work of servicemen, are not in
conflict, by their content, with the principles of a just
society and state under the rule of law entrenched in the
Preamble to the Constitution of the Republic of Lithuania,
Article 29 and Item 7 of Article 94 of the Constitution, as
well as Paragraph 1 of Article 7 and Paragraph 2 of Article 12
of the Republic of Lithuania Law on the State Pensions of
Officials and Servicemen of the Interior, the Special
Investigation Service, State Security, National Defence, the
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to
the Latter; (3) Paragraph 3 of Article 1 of the Republic of
Lithuania Law on the Implementation of the Law on Supplementing
the Law on the State Service and the provisions of the Rules of
Calculation of Remuneration for Work of the State Servant for
the Second Half-year of 2002 confirmed by Government of the
Republic of Lithuania Resolution No. 686 "On Calculation of
Remuneration for Work of State Servants for the Second
Half-year of 2002" of 20 May 2002, which limit the amount of
remuneration for work of state servants by taking account of
the demand of funds calculated by the establishment according
to confirmed unified categories of positions of state servants,
which exceeds the appropriations for remuneration for work
confirmed in the State Budget for a respective year, are not in
conflict, by their content, with the principles of a just
society and state under the rule of law entrenched in the
Preamble to the Constitution of the Republic of Lithuania, as
well as Articles 23, 29 and 48 of the Constitution;
6) the petition of the Vilnius Regional Administrative
Court, a petitioner, requesting to investigate as to whether
Article 8 of the Republic of Lithuania Law on the State
Service, Seimas of the Republic of Lithuania Resolution No.
IX-992 "On the Confirmation of the List of Unified Positions of
Seimas State Servants of Political (Personal) Confidence, of
State Servants of the Office of the Seimas and Institutions
Accountable to the Seimas, Those of the Institution of the
President of the Republic and Institutions Accountable to the
President of the Republic, Those of National Administration of
Courts, of Courts, Prosecutor's Office and Municipal
Institutions" of 27 June 2002 and Seimas of the Republic of
Lithuania Resolution No. IX-1244 "On the Amendment of the
Seimas Resolution 'On the Confirmation of the List of Unified
Positions of Seimas State Servants of Political (Personal)
Confidence, of State Servants of the Office of the Seimas and
Institutions Accountable to the Seimas, Those of the
Institution of the President of the Republic and Institutions
Accountable to the President of the Republic, Those of National
Administration of Courts, of Courts, Prosecutor's Office and
Municipal Institutions'" of 10 December 2002 are not in
conflict with Article 29, Paragraph 2 of Article 120, Paragraph
1 of Article 121 and Article 127 of the Constitution of the
Republic of Lithuania.
By the Constitutional Court decision of 17 August 2004,
these petitions were joined into one case, by giving it
reference No. 51/01-26/02-19/03-22/03-26/03-27/03.
The Constitutional Court
has established:
I
1. The Vilnius Regional Administrative Court, a
petitioner, was investigating an administrative case. By its
ruling of 5 November 2001, the court suspended the
investigation of the case and applied to the Constitutional
Court with a petition requesting to investigate as to whether
Paragraph 12 of Article 62 of the Law on the State Service
(Official Gazette Valstybės žinios, 1999, No. 66-2130; 1999,
No. 105; 2002, No. 45-1708) and Paragraph 7 of Article 29 of
the Law on Local Self-government (Official Gazette Valstybės
žinios, 1994, No. 55-1049; 2000, No. 91-2832) were not in
conflict with the principles of a just civil society and state
under the rule of law entrenched in the Preamble to the
Constitution, Paragraph 1 of Article 29, Paragraph 1 of Article
33 and Paragraph 1 of Article 48 of the Constitution.
2. The Panevėžys Regional Administrative Court, a
petitioner, was investigating an administrative case. By its
ruling of 21 November 2002, the court suspended the
investigation of the case and applied to the Constitutional
Court with a petition requesting to investigate as to whether
the Rules of Calculation of Remuneration for Work of the State
Servant for the Second Half-year of 2002 (hereinafter also
referred to as the Rules) confirmed by Government Resolution
No. 686 "On Calculation of Remuneration for Work of State
Servants for the Second Half-year of 2002" of 20 May 2002
(Official Gazette Valstybės žinios, 2002, No. 51-1954) were not
in conflict with Paragraph 1 of Article 29 of the Constitution
and Paragraphs 1 and 2 of Article 24 of the Law on the State
Service.
3. The Vilnius Regional Administrative Court, a
petitioner, was investigating an administrative case. By its
ruling of 3 April 2003, the court suspended the investigation
of the case and applied to the Constitutional Court with a
petition requesting to investigate as to whether the provisions
of Article 26 of the Law on the State Service regulating a
constituent part of remuneration for work of state servants,
extra pays, and which do not particularise the amounts of the
extra pays, were not in conflict, by their content, with the
principles of an open, just and harmonious civil society and
state under the rule of law entrenched in the Preamble to the
Constitution, as well as Articles 29 and 48 of the
Constitution.
4. The Alytus Local District Court, a petitioner, was
investigating an administrative case. By its ruling of 18 April
2003, the court suspended the investigation of the case and
applied to the Constitutional Court with a petition requesting
to investigate as to whether Paragraph 6 of Article 4 of the
Law on the Implementation of the Law on Supplementing the Law
on the State Service (Official Gazette Valstybės žinios, 2002,
No. 45-1709) and Item 4 of Article 17 and Item 1 of Paragraph 4
of Article 29 of the Law on the State Service were not in
conflict with Articles 23, 29 and 48 of the Constitution.
5. The Vilnius Regional Administrative Court, a
petitioner, was investigating an administrative case. By its
ruling of 5 May 2003, the court suspended the investigation of
the case and applied to the Constitutional Court with a
petition requesting to investigate as to whether Article 8 of
the Law on the State Service, Seimas Resolution No. IX-992 "On
the Confirmation of the List of Unified Positions of Seimas
State Servants of Political (Personal) Confidence, of State
Servants of the Office of the Seimas and Institutions
Accountable to the Seimas, Those of the Institution of the
President of the Republic and Institutions Accountable to the
President of the Republic, Those of National Administration of
Courts, of Courts, Prosecutor's Office and Municipal
Institutions" of 27 June 2002 (Official Gazette Valstybės
žinios, 2002, No. 66-2707) and Seimas Resolution No. IX-1244
"On the Amendment of the Seimas Resolution 'On the Confirmation
of the List of Unified Positions of Seimas State Servants of
Political (Personal) Confidence, of State Servants of the
Office of the Seimas and Institutions Accountable to the
Seimas, Those of the Institution of the President of the
Republic and Institutions Accountable to the President of the
Republic, Those of National Administration of Courts, of
Courts, Prosecutor's Office and Municipal Institutions'" of 10
December 2002 (Official Gazette Valstybės žinios, 2002, No.
119-5329) were not in conflict with Article 29, Paragraph 2 of
Article 120, Paragraph 1 of Article 121 and Article 127 of the
Constitution.
6. The Vilnius Regional Administrative Court, a
petitioner, was investigating an administrative case. By its
ruling of 7 May 2003, the court suspended the investigation of
the case and applied to the Constitutional Court with a
petition requesting to investigate as to whether (1) Paragraph
1 of Article 7 of the Law on the State Pensions of Officials
and Servicemen of the Interior, the Special Investigation
Service, State Security, National Defence, the Prosecutor's
Office, the Department of Prisons and of the Establishments and
State Enterprises Which are Subordinate to the Latter (Official
Gazette Valstybės žinios, 1994, No. 99-1958) and the provisions
of Item 9 of the Regulations for Granting and Payment of State
Pensions of Officials and Servicemen of the Systems of the
Interior, the Special Investigation Service, State Security,
National Defence, the Prosecutor's Office, the Department of
Prisons and of the Establishments and State Enterprises Which
are Subordinate to the Latter (hereinafter also referred to as
the Regulations) confirmed by Government Resolution No. 83 "On
the Approval of the Regulations for Granting and Payment of
State Pensions to Officials and Servicemen of the Systems of
the Interior, State Security, National Defence and Prosecutor's
Office, the Department of Prisons and of the Establishments and
State Enterprises Which are Subordinate to the Latter and the
Establishment of the Time of Service Necessary in Order to
Receive a Respective Percentage Extra Pay for the Years of
Service" of 20 January 1995 (Official Gazette Valstybės žinios,
1995, No. 8-173), which regulate calculation and payment of
state pensions of officials and servicemen according to the
remuneration for work of officials and servicemen valid at the
month of payment of the pension for the office that they used
to hold at the time of retirement, and which do not provide for
a prohibition to reduce remuneration for work for the month for
which the state pension of officials and servicemen is
calculated and paid, were not in conflict, as to their content,
with the principles of a just society and state under the rule
of law entrenched in the Preamble to the Constitution, as well
as Articles 23, 29 and 52 of the Constitution; (2) the
provisions of Section 5 of Item 9 of the Regulations for
Granting and Payment of State Pensions of Officials and
Servicemen of the Systems of the Interior, the Special
Investigation Service, State Security, National Defence, the
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to
the Latter confirmed by Government Resolution No. 83 "On the
Approval of the Regulations for Granting and Payment of State
Pensions to Officials and Servicemen of the Systems of the
Interior, State Security, National Defence and Prosecutor's
Office, the Department of Prisons and of the Establishments and
State Enterprises Which are Subordinate to the Latter and the
Establishment of the Time of Service Necessary in Order to
Receive a Respective Percentage Extra Pay for the Years of
Service" of 20 January 1995, which permit only the Ministry of
National Defence, when it grants state pensions of officials
and servicemen, to calculate their remuneration for work on the
basis of the resolutions of the Government in which
remuneration for work of servicemen is established prior to the
entry into effect of the law regulating remuneration for work
of servicemen, were not in conflict, by their content, with the
principles of a just society and state under the rule of law
entrenched in the Preamble to the Constitution, Article 29 and
Item 7 of Article 94 of the Constitution, as well as Paragraph
1 of Article 7 and Paragraph 2 of Article 12 of the Law on the
State Pensions of Officials and Servicemen of the Interior, the
Special Investigation Service, State Security, National
Defence, the Prosecutor's Office, the Department of Prisons and
of the Establishments and State Enterprises Which are
Subordinate to the Latter; (3) Paragraph 3 of Article 1 of the
Law on the Implementation of the Law on Supplementing the Law
on the State Service and the provisions of the Rules of
Calculation of Remuneration for Work of the State Servant for
the Second Half-year of 2002 confirmed by Government Resolution
No. 686 "On Calculation of Remuneration for Work of State
Servants for the Second Half-year of 2002" of 20 May 2002,
which limit the amount of remuneration for work of state
servants by taking account of the demand of funds calculated by
the establishment according to confirmed unified categories of
positions of state servants, which exceeds the appropriations
for remuneration for work confirmed in the State Budget for a
respective year, were not in conflict, by their content, with
the principles of a just society and state under the rule of
law entrenched in the Preamble to the Constitution, as well as
Articles 23, 29 and 48 of the Constitution.
II
1. The 5 November 2001 petition of the Vilnius Regional
Administrative Court, a petitioner, is grounded on these
arguments.
According to the petitioner, by the provisions of
Paragraph 12 of Article 62 of the Law on the State Service and
Paragraph 7 (wording of 25 September 2001) of Article 29 of the
Law on Local Self-government opportunities are limited for
servants of municipal administration, to which also chief
executives are attributed, to become members of the council of
the municipality in which they are holding office. The
petitioner had doubts whether such limitation of career state
servants of municipal administration to be members of the
council of the municipality in which they are holding office
does not violate the principles of a just civil society and
state under the rule of law, and of the equality of all persons
before the law. According to the petitioner, pursuant to the
disputed provisions of the laws, the citizen must choose
whether to refuse the office that he is holding in the state
service or to refuse the powers of a member of the municipal
council (to resign). The petitioner believes that the disputed
provisions of the laws limit the freedom of the person to
choose a job (Paragraph 1 of Article 48 of the Constitution)
and violate the rights of citizens guaranteed by the state to
participate in the government of the state, as well as the
right to enter into the state service under equal conditions
(Paragraph 1 of Article 33 of the Constitution).
2. The 21 November 2002 petition of the Panevėžys Regional
Administrative Court, a petitioner, is grounded on these
arguments.
In the opinion of the petitioner, Paragraph 1 of Article
24 of the Law on the State Service provides for dependence of
the positional salary, thus also of the remuneration for work
of a state servant, only upon the category of the positions
that he is holding, i.e. the persons serving in the entire
country and in all state and municipal institutions, who hold
the same position under respective categories, must receive the
same positional salary. The law does not provide for any other
criteria upon which the positional salary of a state servant
might depend. The petitioner had doubts whether the Government,
by confirming the Rules of Calculation of Remuneration for Work
of the State Servant for the Second Half-year of 2002 by
Resolution No. 686 "On Calculation of Remuneration for Work of
State Servants for the Second Half-year of 2002" of 20 May
2002, had the right to establish a different procedure of
calculation of remuneration for work of state servants than
that provided for in Article 24 of the Law on the State
Service, and virtually to permit different positional salaries
for state servants of the same category, but who work in
different institutions, the amounts of which are dependent on
the budgetary appropriations assigned to the institutions.
According to the petitioner, such legal regulation is
deficient, it discriminates certain state servants in respect
of others, since holding the same position in the state
service, but being in different institutions in regard of
territorial or jurisdictional aspect, they receive different
remuneration for work. The petitioner had doubts whether the
Rules are not in conflict with Paragraph 1 of Article 29 of the
Constitution and Paragraphs 1 and 2 of Article 24 of the Law on
the State Service.
3. The 3 April 2003 petition of the Vilnius Regional
Administrative Court, a petitioner, is grounded on these
arguments.
The petitioner had doubts whether the provisions of
Article 26 of the Law on the State Service regulating extra
pays and their types paid to state servants and not
particularising their amounts are not in conflict with the
constitutional principles of an open, just and harmonious civil
society and state under the rule of law, and of equality of all
persons before the law, since they create an opportunity for
state servants of the same category, but who work in different
institutions, to receive extra pays of different amounts, which
are dependent on the will of the heads of these institutions
and budgetary appropriations for remuneration for work assigned
to these institutions. In the opinion of the petitioner, the
disputed provisions of the law violate the right of each human
being to get just pay for work guaranteed by the state (Article
48 of the Constitution), since they create an opportunity to
discriminate certain state servants with respect to others,
i.e. to grant and pay extra pays of different amounts for
analogous work.
4. The 18 April 2003 petition of the Alytus Local District
Court, a petitioner, is grounded on these arguments.
In the opinion of the petitioner, the provision of
Paragraph 6 of Article 4 of the Law on the Implementation of
the Law on Supplementing the Law on the State Service that the
state servants who practice medicine must end this practice
till 1 January 2003, Item 4 of Article 17 of the Law on the
State Service establishing certain activity that is
incompatible with the state service, and the provision of Item
1 of Paragraph 4 of Article 29 of the same law that the
official penalty, dismissal from office, may be imposed for the
activity incompatible with the state service, limits the right
of the person to use his private property, a licence,
undisturbed, also his right to freely choose a job, and
violates the constitutional principle of equality. In the
opinion of the petitioner, the disputed provisions of the laws
are in conflict with Articles 23, 29 and 48 of the
Constitution.
5. The 5 May 2003 petition of the Vilnius Regional
Administrative Court, a petitioner, is grounded on these
arguments.
In the opinion of the petitioner, after it had been
established in Paragraph 1 of Article 8 of the Law on the State
Service that the list of unified positions of state servants of
municipal institutions (and in such a list-the levels and
categories of positions of state servants of municipal
institutions) is confirmed by the Seimas by means of a
resolution, and after the confirmation of the list of unified
positions of state servants of municipal institutions (and in
such a list-the levels and categories of positions of state
servants of municipal institutions) by such Seimas resolution,
the municipality may not establish in its budget higher
remuneration for work for state servants of municipal
institutions than that calculated subsequent to the list of
unified positions confirmed by the Seimas resolution. Thus, the
Seimas interferes with and violates the constitutional right
granted solely to the municipality to form and confirm its
budget (Paragraph 1 of Article 121 and Paragraph 1 of Article
127 of the Constitution), and it also violates Paragraph 2 of
Article 120 of the Constitution whereby municipalities shall
act freely and independently within their competence, which
shall be established by the Constitution and laws.
In the opinion of the petitioner, the Seimas, having
adopted Resolution No. IX-992 "On the Confirmation of the List
of Unified Positions of Seimas State Servants of Political
(Personal) Confidence, of State Servants of the Office of the
Seimas and Institutions Accountable to the Seimas, Those of the
Institution of the President of the Republic and Institutions
Accountable to the President of the Republic, Those of National
Administration of Courts, of Courts, Prosecutor's Office and
Municipal Institutions" of 27 June 2002, did not have any legal
grounds to adopt, on 10 December 2002, Resolution No. IX-1244
"On the Amendment of the Seimas Resolution 'On the Confirmation
of the List of Unified Positions of Seimas State Servants of
Political (Personal) Confidence, of State Servants of the
Office of the Seimas and Institutions Accountable to the
Seimas, Those of the Institution of the President of the
Republic and Institutions Accountable to the President of the
Republic, Those of National Administration of Courts, of
Courts, Prosecutor's Office and Municipal Institutions'",
whereby the categories of positions of state servants of
municipal institutions were changed-they were diminished.
Seimas Resolution No. IX-1244 "On the Amendment of the Seimas
Resolution 'On the Confirmation of the List of Unified
Positions of Seimas State Servants of Political (Personal)
Confidence, of State Servants of the Office of the Seimas and
Institutions Accountable to the Seimas, Those of the
Institution of the President of the Republic and Institutions
Accountable to the President of the Republic, Those of National
Administration of Courts, of Courts, Prosecutor's Office and
Municipal Institutions'" of 10 December 2002 provided municipal
administrations with the basis to diminish categories of
positions of the state servants who were ranked in maximum high
categories of positions. As the remuneration for work of state
servants depends on the size of the category of the position
(Article 24 of the Law on the State Service), the diminishment
of the category is automatic reduction of the remuneration for
work of the state servant. The petitioner maintains that Seimas
Resolution No. IX-1244 "On the Amendment of the Seimas
Resolution 'On the Confirmation of the List of Unified
Positions of Seimas State Servants of Political (Personal)
Confidence, of State Servants of the Office of the Seimas and
Institutions Accountable to the Seimas, Those of the
Institution of the President of the Republic and Institutions
Accountable to the President of the Republic, Those of National
Administration of Courts, of Courts, Prosecutor's Office and
Municipal Institutions'" of 10 December 2002 is in conflict
with Article 29 of the Constitution, since it does not provide
to state servants the same guarantees in case of reduction of
the remuneration for work that the other employees (persons
working under labour contracts) enjoy.
The petitioner maintains that Seimas Resolution No.
IX-1244 "On the Amendment of the Seimas Resolution 'On the
Confirmation of the List of Unified Positions of Seimas State
Servants of Political (Personal) Confidence, of State Servants
of the Office of the Seimas and Institutions Accountable to the
Seimas, Those of the Institution of the President of the
Republic and Institutions Accountable to the President of the
Republic, Those of National Administration of Courts, of
Courts, Prosecutor's Office and Municipal Institutions'" of 10
December 2002 violates the legitimate expectations of state
servants to receive the remuneration for work under Seimas
Resolution No. IX-992 "On the Confirmation of the List of
Unified Positions of Seimas State Servants of Political
(Personal) Confidence, of State Servants of the Office of the
Seimas and Institutions Accountable to the Seimas, Those of the
Institution of the President of the Republic and Institutions
Accountable to the President of the Republic, Those of National
Administration of Courts, of Courts, Prosecutor's Office and
Municipal Institutions" of 27 June 2002, it is damaging for the
stability of the state service, since the person, who enters
into the state service or who works in the state service,
cannot be certain that in the future his remuneration for work
will not be reduced. Besides, under such legal regulation, the
state servant cannot assume long-term financial liabilities.
This also denies the striving for an open, just and harmonious
civil society entrenched in the Preamble to the Constitution.
6. The 7 May 2003 petition of the Vilnius Regional
Administrative Court, a petitioner, concerning the compliance
of the provisions of Paragraph 3 of Article 1 of the Law on the
Implementation of the Law on Supplementing the Law on the State
Service and those of the Rules of Calculation of Remuneration
for Work of the State Servant for the Second Half-year of 2002
confirmed by Government Resolution No. 686 "On Calculation of
Remuneration for Work of State Servants for the Second
Half-year of 2002" of 20 May 2002, which limit the amount of
remuneration for work of state servants by taking account of
the demand of funds calculated by the establishment according
to confirmed unified categories of positions of state servants,
which exceeds the appropriations for remuneration for work
confirmed in the State Budget for a respective year with the
principles of an open, just and harmonious civil society and
state under the rule of law entrenched in the Preamble to the
Constitution, as well as Articles 23, 29 and 48 of the
Constitution, is grounded on these arguments.
The petitioner had doubts whether the limitation of the
amount of paid remuneration for work of state servants by not
paying the sum of the entire calculated remuneration for work
to the persons is not in conflict with the constitutional
principles of a just civil society and state under the rule of
law. The petitioner believes that the disputed provisions of
the Law on the Implementation of the Law on Supplementing the
Law on the State Service and the Rules of Calculation of
Remuneration for Work of the State Servant for the Second
Half-year of 2002 confirmed by Government Resolution No. 686
"On Calculation of Remuneration for Work of State Servants for
the Second Half-year of 2002" of 20 May 2002 violate Article 23
of the Constitution which consolidates inviolability of
property and protection of the rights of ownership, Article 48
of the Constitution which consolidates the right of a human
being to just pay for work, and the principle of equality of
persons before the law (Article 29 of the Constitution), since
they create an opportunity for state servants of the same
category, but who work in different institutions, to receive
extra pays of different amounts, which are dependent on whether
budgetary appropriations for remuneration for work assigned to
these institutions are sufficient or not, and thus they
discriminate certain state servants with respect to the others,
as remuneration for work of different amount is paid to state
servants of the same categories for analogous work.
7. The 7 May 2003 petition of the Vilnius Regional
Administrative Court, a petitioner, concerning the compliance
of Paragraph 1 of Article 7 of the Law on the State Pensions of
Officials and Servicemen of the Interior, the Special
Investigation Service, State Security, National Defence, the
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to
the Latter and the provisions of Item 9 of the Regulations for
Granting and Payment of State Pensions of Officials and
Servicemen of the Systems of the Interior, the Special
Investigation Service, State Security, National Defence, the
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to
the Latter confirmed by Government Resolution No. 83 "On the
Approval of the Regulations for Granting and Payment of State
Pensions to Officials and Servicemen of the Systems of the
Interior, State Security, National Defence and Prosecutor's
Office, the Department of Prisons and of the Establishments and
State Enterprises Which are Subordinate to the Latter and the
Establishment of the Time of Service Necessary in Order to
Receive a Respective Percentage Extra Pay for the Years of
Service" of 20 January 1995, which regulate calculation and
payment of state pensions of officials and servicemen according
to the remuneration for work of officials and servicemen valid
at the month of payment of the pension for the office that they
used to hold at the time of retirement, and which do not
provide for a prohibition to reduce remuneration for work for
the month for which the state pension of officials and
servicemen is calculated and paid, with the principles of a
just society and state under the rule of law entrenched in the
Preamble to the Constitution, as well as Articles 23, 29 and 52
of the Constitution, and concerning the compliance of the
provisions of Section 5 of Item 9 of the Regulations for
Granting and Payment of State Pensions of Officials and
Servicemen of the Systems of the Interior, the Special
Investigation Service, State Security, National Defence, the
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to
the Latter confirmed by Government Resolution No. 83 "On the
Approval of the Regulations for Granting and Payment of State
Pensions to Officials and Servicemen of the Systems of the
Interior, State Security, National Defence and Prosecutor's
Office, the Department of Prisons and of the Establishments and
State Enterprises Which are Subordinate to the Latter and the
Establishment of the Time of Service Necessary in Order to
Receive a Respective Percentage Extra Pay for the Years of
Service" of 20 January 1995, which permit only the Ministry of
National Defence, when it grants state pensions of officials
and servicemen, to calculate their remuneration for work on the
basis of the resolutions of the Government in which
remuneration for work of servicemen is established prior to the
entry into effect of the law regulating remuneration for work
of servicemen, with the principles of a just civil society and
state under the rule of law entrenched in the Preamble to the
Constitution, Article 29 and Item 7 of Article 94 of the
Constitution, as well as Paragraph 1 of Article 7 and Paragraph
2 of Article 12 of the Law on the State Pensions of Officials
and Servicemen of the Interior, the Special Investigation
Service, State Security, National Defence, the Prosecutor's
Office, the Department of Prisons and of the Establishments and
State Enterprises Which are Subordinate to the Latter, is based
on these arguments.
The petitioner had doubts whether the establishment of the
amount of paid state pension of officials and servicemen
according to their remuneration for work valid at the month of
payment of the pension for the office that they used to hold at
the time of retirement, and the absence of a prohibition to
reduce remuneration for work for the month for which the state
pension of officials and servicemen is calculated and paid do
not violate the constitutional principles of an open, just and
harmonious civil society and state under the rule of law. In
the opinion of the petitioner, the recipient of the pension
loses an opportunity to receive the state pension of officials
and servicemen calculated under the most favourable conditions
and part of pensionary payments belonging to him. Such legal
regulation violates the right of the person to ownership and
the state guaranteed right of a citizen to receive pension. The
petitioner had doubts whether Paragraph 1 of Article 7 of the
Law on the State Pensions of Officials and Servicemen of the
Interior, the Special Investigation Service, State Security,
National Defence, the Prosecutor's Office, the Department of
Prisons and of the Establishments and State Enterprises Which
are Subordinate to the Latter and the provisions of Item 9 of
the Regulations for Granting and Payment of State Pensions of
Officials and Servicemen of the Systems of the Interior, the
Special Investigation Service, State Security, National
Defence, the Prosecutor's Office, the Department of Prisons and
of the Establishments and State Enterprises Which are
Subordinate to the Latter confirmed by Government Resolution
No. 83 "On the Approval of the Regulations for Granting and
Payment of State Pensions to Officials and Servicemen of the
Systems of the Interior, State Security, National Defence and
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to
the Latter and the Establishment of the Time of Service
Necessary in Order to Receive a Respective Percentage Extra Pay
for the Years of Service" of 20 January 1995, which regulate
calculation and payment of state pensions of officials and
servicemen according to the remuneration for work of officials
and servicemen valid at the month of payment of the pension for
the office that they used to hold at the time of retirement,
and which do not provide for a prohibition to reduce
remuneration for work for the month for which the state pension
of officials and servicemen is calculated and paid, are not in
conflict, as to their content, with the principles of a just
civil society and state under the rule of law entrenched in the
Preamble to the Constitution, as well as Articles 23, 29 and 52
of the Constitution.
In the opinion of the petitioner, disputed Section 5 of
Item 9 of the Regulations, providing for an exception for the
Ministry of National Defence when it grants state pensions of
officials and servicemen, grants a privilege to persons, who
used to serve in the system of this ministry, if compared with
persons, who used to serve in other institutions, therefore,
the principles of a just civil society and state under the rule
of law and the equality of persons before the law are violated.
The petitioner notes that the legislator, by commissioning the
Government to confirm the Regulations, did not transfer a duty
to the Government to provide for exceptions and grant
privileges to a concrete institution.
III
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from the representatives of the Seimas, the party
concerned, who were P. Papovas, a member of the Seimas, Daiva
Petrylaitė, a senior consultant to the Law Department of the
Office of the Seimas, J. Meškienė, a senior consultant to the
same department, and the representative of the Government, the
party concerned, who was D. Žilinskas, Director of the Law
Department of the Ministry of the Interior.
1. The representative of the Seimas, the party concerned,
D. Petrylaitė submitted explanations concerning the 5 November
2001 petition of the Vilnius Regional Administrative Court.
1.1. The representative of the party concerned pointed out
that it is not clear from the petition of the petitioner as to
the compliance of which wording of Paragraph 12 of Article 62
of the Law on the State Service with the Constitution is
doubtful to the petitioner. According to the representative of
the party concerned, the disputed provision was absent
altogether in the first wording of Article 62 (wording of 8
July 1999) of the Law on the State Service. Until 5 November
2001, when the petitioner decided to apply to the
Constitutional Court with a petition, the Seimas, on 29 August
2000, adopted the Republic of Lithuania Law on Amending and
Supplementing the Law on the State Service, whereby it
supplemented Article 62 of the Law on the State Service with
Paragraph 12, while on 21 November 2000 the Seimas adopted the
Republic of Lithuania Law on Amending Articles 7, 17, 21, 33,
43, 50, 55, 56, 62, 66, 69, 71, 76 and 78 of the Republic of
Lithuania Law on the State Service and Annexes 1 and 2 Thereof,
whereby it amended aforesaid Paragraph 12 of Article 62 of the
Law on the State Service. The representative of the party
concerned indicated that both under the 29 August 2000 wording
and the 21 November 2000 wording of Paragraph 12 of Article 62
of the Law on the State Service, career state servants of
municipal administration were prohibited from being members of
the council of the municipality in which they were holding
office.
1.2. According to D. Petrylaitė, the provision of
Paragraph 7 of Article 29 of the Law on Local Self-government
which is disputed in the petition of the petitioner, was
established when the Seimas, on 25 September 2001, adopted the
Republic of Lithuania Law on Amending and Supplementing
Articles 11, 15, 17, 21, 27, 28, 29, 30, 36, and 37 of the Law
on Local Self-government. According to D. Petrylaitė, it is
clear from the arguments of the petition of the petitioner that
the petitioner had doubts as to the compliance of the provision
of Paragraph 7 (wording of 25 September 2001) of the Law on
Local Self-government that the municipal administrator, under
the procedure established in the Law of State Service, appoints
and dismisses municipal civil servants and state employees as
well as heads of establishments rendering public services,
coordinates and controls their work, performs other functions
of personnel administration assigned to him by the Law on the
State Service, with the Constitution. In the opinion of D.
Petrylaitė, the municipal administrator, on the grounds of this
provision, had to dismiss from office the career civil servants
who, being members of the municipal council, lost the status of
the state servant or who decided to resign from the office of a
state servant.
1.3. In the opinion of the representative of the party
concerned, the disputed provisions of the Law on the State
Service and the Law on Local Self-government do not establish
limitations to citizens to be a candidate to the representative
institution (municipal council) of a respective community.
Alongside, D. Petrylaitė emphasised that these laws establish
certain limitations to the persons who have been elected to
municipal councils, as their members have to adopt decisions by
strictly dissociating themselves from individual interests. D.
Petrylaitė pointed out that the disputed legal norms prevent a
situation, where the same person who is a member of the
representative municipal institution and who at the same time
holds office of a civil servant at the same municipality could
adopt decisions that may be influential on both the position
that he is holding and the persons that appointed him, or
adoption of such decision may be determined. According to the
representative of the party concerned, legal acts can establish
certain requirements to a person, who wishes to take certain
jobs or earn his own living by professional activities: in an
analogous manner, one should assess the provisions of laws
limiting opportunities of persons to take several jobs at the
same time or hold several offices which in the content clearly
imply possible conflicts of interests.
1.4. In the opinion of the representative of the party
concerned, Paragraph 12 of Article 62 of the Law on the State
Service and Paragraph 7 of Article 29 of the Law on Local
Self-government are not in conflict with the principles of a
just civil society and state under the rule of law entrenched
in the Preamble to the Constitution, Paragraph 1 of Article 29,
Paragraph 1 of Article 33 and Paragraph 1 of Article 48 of the
Constitution.
2. The representative of the party concerned, the
Government, D. Žilinskas, presented his written explanations
concerning the 21 November 2002 petition of the Panevėžys
Regional Administrative Court, a petitioner, and the 7 May 2003
petition of the Vilnius Regional Court, a petitioner, to the
extent that the petitioner requests to investigate whether the
provisions of the Rules of Calculation of Remuneration for Work
of the State Servant for the Second Half-year of 2002 confirmed
by Government Resolution No. 686 "On Calculation of
Remuneration for Work of State Servants for the Second
Half-year of 2002" of 20 May 2002, which limit the amount of
remuneration for work of state servants by taking account of
the demand of funds calculated by the establishment according
to confirmed unified categories of positions of state servants,
which exceeds the appropriations for remuneration for work
confirmed in the State Budget for a respective year are not in
conflict, by their content, with the principles of an open,
just and harmonious civil society and state under the rule of
law entrenched in the Preamble to the Constitution, as well as
Articles 23, 29 and 48 of the Constitution.
2.1. In the opinion of the representative of the party
concerned, the provision of Paragraph 1 of Article 24 of the
Law on the State Service that the positional salary is
established for the category of the position and is the same
for all the positions in the same category does not mean that
all state servants of the same category must receive the same
remuneration for work. This also stems from Article 23 of the
Law on the State Service providing for the structure of
remuneration for work of a state servant. The system of
remuneration for work established in the Law on the State
Service links the size of remuneration for work not only with
the positional salary but also with bonuses and extra pays,
which every state servant can receive.
The representative of the party concerned noted that in
the Rules of Calculation of Remuneration for Work of the State
Servant for the Second Half-year of 2002 the indexation
coefficient is not expressed in a number form, therefore, it is
impossible to assume from the content of the legal norm itself
that by applying the Rules the remuneration for work of state
servants could either increase or decrease. The Government did
not provide for an obligation to either decrease or increase
the remuneration for work of state servants in state and
municipal institutions and establishments, nor did it establish
any situation of concrete state servants, which could be
treated as a different one if compared with other state
servants.
The representative of the party concerned pointed out that
the Rules established two formulas: (1) that of calculation of
the indexation coefficient; (2) that of calculation of
remuneration for work. The first formula established
calculation of the indexation coefficient and was not linked
with either the calculation of the positional salary nor of
that of the remuneration for work. The second formula
established the calculation of remuneration for work of the
state servant and could be applied in a concrete state or
municipal institution or establishment while taking account of
the funds assigned to remuneration for work. However, this
formula did not have any influence on the positional salary,
which was established under Article 24 of the Law on the State
Service and the Annex to the Law on the State Service. Under
this formula, it was possible to define more precisely the
final remuneration for work, which, in view of certain
circumstances, may be different also to state servants holding
the same position. Therefore, in the opinion of D. Žilinskas,
in the course of application of this formula, the requirement
of Paragraph 2 of Article 24 of the Law on the State Service
that the positional salary of all state servants holding the
same position is to be the same was not violated.
D. Žilinskas noted that the appropriations for
remuneration for work in the State Budget of the Republic of
Lithuania and municipal budgets are confirmed by the Seimas by
means of a law. The Seimas established in Paragraph 3 of
Article 1 of the Law on the Implementation of the Law on
Supplementing the Law on the State Service that in 2002
remuneration for work for state servants is paid from the
appropriations established for 2002. By such legal regulation
the legislator established a transition period of the
introduction of a new system of calculation and payment of
remuneration for work of state servants, alongside, he did not
establish procedures for implementation of this transition
period, nor did he provide for additional funds to implement
this system in 2002. Under Item 6 of Article 12 of the Law on
the Implementation of the Law on Supplementing the Law on the
State Service the legislator commissioned the Government to
adopt all legal acts necessary for implementation of the Law on
the State Service. Thus, the Government was granted the right
of discretion as regards decisions designated for
implementation of the provisions of the law. The Government had
to ensure the implementation of the Law on the State Service
and the execution of the State Budget at the same time.
The representative of the party concerned pointed out that
the Rules did not establish any alternative procedure of
calculation of remuneration for work of state servants, they
were designed for implementation of the provisions of Chapter
VI of the Law on the State Service and Item 6 of Article 12 of
the Law on the Implementation of the Law on Supplementing the
Law on the State Service. According to D. Žilinskas, the Rules
do not provide for any preferences or privileges, thus they are
not in conflict with Paragraph 1 of Article 29 of the
Constitution and Paragraphs 1 and 2 of Article 24 of the Law on
the State Service.
D. Žilinskas emphasised that the formulas provided for in
the Rules could be applied only in case there was the condition
specified in Item 1 of the Rules, i.e. if the demand of the
funds of the second half-year of 2002 for remuneration for work
of state servants exceeds the appropriations for remuneration
for work of state servants confirmed in the State Budget of the
Republic of Lithuania and municipal budgets. Thus, the
application of the Rules was linked with a special situation in
the state, when there was objective lack of funds. The
representative of the party concerned believes that there is
not any clear legal basis to unconditionally relate
remuneration for work with ownership, let alone identify them
with each other. The Rules do not establish a concrete amount
of remuneration for work for concrete persons. Meanwhile, the
money (cash or electronic money) which the person has lawfully
received as remuneration for work have characteristics of
ownership. D. Žilinskas noted that the Government did not
establish any obligation to either decrease or increase the
remuneration for state servants in state and municipal
institutions and establishments, due to this it did not create
any preconditions for violations of the human right to receive
just remuneration for work and social protection in case of
unemployment. Quite to the contrary: while taking account of
the lack of funds, the Government was indirectly seeking to
protect such constitutional values as the opportunity of each
human being to freely choose a job and the right to have
proper, safe and healthy working conditions. In the opinion of
the representative of the party concerned, the Rules are not in
conflict with Articles 23 and 48 of the Constitution.
2.2. The representative of the party concerned indicated
that the Rules were applied in the course of paying pays for
work (remuneration for work, vacation and severance pays, etc.)
which are paid from the fund of remuneration for work when the
demand for required funds exceeded the confirmed
appropriations. D. Žilinskas noted that the list of cases of
application of these Rules was final and could not be
interpreted in a broadened manner by making reference to the
legal regulation of the legal regulation of state pensions of
officials.
D. Žilinskas asserted that under Article 5 of the Law on
the State Service this law is not applied to servicemen of
professional military service and prosecutors. Thus, the
provisions of the substatutory legal acts implementing the Law
on the State Service, i.e. including those of the Rules of
Calculation of Remuneration for Work of the State Servant for
the Second Half-year of 2002 confirmed by Government Resolution
No. 686 "On Calculation of Remuneration for Work of State
Servants for the Second Half-year of 2002" of 20 May 2002, are
not applicable to them, either.
3. The representative of the Seimas, the party concerned,
P. Papovas presented written explanations concerning the 3
April 2003 petition of the Vilnius Regional Administrative
Court.
The representative of the party concerned indicated that
the positional salary of the state servant is established
according to the category of the position and is the same for
all positions of the same category. Meanwhile, extra pays and
bonuses may be differentiated according to the working
conditions, the amount of work and other factors. This
differentiation must be grounded, i.e. it may be established
only under the indicated working conditions, doing an
additional job, etc.
According to the representative of the party concerned,
the right to just pay for work entrenched in Paragraph 1 of
Article 48 of the Constitution means not only a right to the
same remuneration for the same work, but the right of each
employee to individual assessment of his work. Only such
assessment may ensure the right to just pay for work provided
for in Article 48 of the Constitution. In order to realise this
right, the assessment of official activity of state servants is
provided for in the Law on the State Service. In the opinion of
P. Papovas, the provisions of Article 26 (wording of 23 April
2002) of the Law on the State Service, regulating a constituent
part of the remuneration for work of state servants, extra
pays, are not in conflict, by their content, with the
principles of an open, just, harmonious civil society and a
state under the rule of law, as well as Articles 29 and 48 of
the Constitution.
4. The representative of the Seimas, the party concerned,
J. Meškienė presented written explanations concerning the 18
April 2003 petition of the Alytus Local District Court, a
petitioner.
4.1. In the opinion of the representative of the party
concerned, the provision of Paragraph 6 (wording of 4 July
2002) of Article 4 of the Law on the Implementation of the Law
on Supplementing the Law on the State Service, even if it could
be regarded as a limiting one in the civil case of the claimant
on use of one's licence unhindered, is not in conflict with
Article 23 of the Constitution, since a licence is to be
assessed not as an item of ownership, but merely as a means for
implementation of certain rights (including the right of
ownership) of a person.
4.2. J. Meškienė noted that state servants must avoid the
conflict between public and private interests. The legal
regulation of Item 4 (wording of 23 April 2002) of Article 17
of the Law on the State Service, establishing a certain
activity that is incompatible with the state service, is to be
construed as one of the ways to avoid the conflict between
society's (public) and private interests. Such legal regulation
related with the state service is necessary in a democratic
society. According to J. Meškienė, the provision of Paragraph 6
(wording of 4 July 2002) of Article 4 of the Law on the
Implementation of the Law on Supplementing the Law on the State
Service that the state servants who practice medicine must end
this practice till 1 January 2003 and the prohibition
established in Item 4 (wording of 23 April 2002) of Article 17
of the Law on the State Service to coordinate the state service
with other work (professional) activity are not in conflict
with Article 29 of the Constitution.
4.3. The representative of the party concerned pointed out
that the freedom of a human being to choose a job and business,
as established in Paragraph 1 of Article 48 of the
Constitution, does not mean that the state service cannot be
defined in terms of certain requirements and limitations that
are necessary to properly perform the functions of the service.
J. Meškienė believes that the disputed provisions of the Law on
the Implementation of the Law on Supplementing the Law on the
State Service are not in conflict with Article 48 of the
Constitution.
5. The representative of the Seimas, the party concerned,
P. Papovas presented written explanations concerning the 5 May
2003 petition of the Vilnius Regional Administrative Court, a
petitioner.
P. Papovas noted that the disputed provisions of Paragraph
1 (wording of 23 April 2002) of Article 8 of the Law on the
State Service establish the interaction between state
governance and local self-government. The list of unified
positions of state servants of municipal institutions regulated
by the Law on the State Service ensures the principle of
equality of all persons before the law, the court and other
state institution entrenched in Article 29 of the Constitution.
Paragraph 5 of Article 8 of the Law on the State Service
provides that the municipal council shall confirm the maximum
number of positions of state servants in the municipal
institutions. The right of municipalities to independently
establish the number of state servants, their positions, and
the structure of the municipal administration, guarantees the
independence of local self-government. According to the
representative of the party concerned, Seimas Resolution No.
IX-992 "On the Confirmation of the List of Unified Positions of
Seimas State Servants of Political (Personal) Confidence, of
State Servants of the Office of the Seimas and Institutions
Accountable to the Seimas, Those of the Institution of the
President of the Republic and Institutions Accountable to the
President of the Republic, Those of National Administration of
Courts, of Courts, Prosecutor's Office and Municipal
Institutions" of 27 June 2002 and Seimas Resolution No. IX-1244
"On the Amendment of the Seimas Resolution 'On the Confirmation
of the List of Unified Positions of Seimas State Servants of
Political (Personal) Confidence, of State Servants of the
Office of the Seimas and Institutions Accountable to the
Seimas, Those of the Institution of the President of the
Republic and Institutions Accountable to the President of the
Republic, Those of National Administration of Courts, of
Courts, Prosecutor's Office and Municipal Institutions'" of 10
December 2002 merely established the list of unified positions
of state servants of municipal institutions and established
levels and categories of these positions, however, they did not
establish the position or category of a concrete person. The
Law on the Implementation of the Law on Supplementing the Law
on the State Service established that the state servants'
evaluation commission assigns a concrete position to positions
of state servants and submits them to the head of the state or
municipal institution or establishment for confirmation. In the
opinion of the representative of the party concerned, Article 8
of the Law on the State Service, Seimas Resolution No. IX-992
"On the Confirmation of the List of Unified Positions of Seimas
State Servants of Political (Personal) Confidence, of State
Servants of the Office of the Seimas and Institutions
Accountable to the Seimas, Those of the Institution of the
President of the Republic and Institutions Accountable to the
President of the Republic, Those of National Administration of
Courts, of Courts, Prosecutor's Office and Municipal
Institutions" of 27 June 2002 and Seimas Resolution No. IX-1244
"On the Amendment of the Seimas Resolution 'On the Confirmation
of the List of Unified Positions of Seimas State Servants of
Political (Personal) Confidence, of State Servants of the
Office of the Seimas and Institutions Accountable to the
Seimas, Those of the Institution of the President of the
Republic and Institutions Accountable to the President of the
Republic, Those of National Administration of Courts, of
Courts, Prosecutor's Office and Municipal Institutions'" of 10
December 2002 are not in conflict with Article 29, Paragraph 2
of Article 120, Paragraph 1 of Article 121 and Article 121 of
the Constitution.
6. The representative of the Seimas, the party concerned,
P. Papovas, presented written explanations concerning the 7 May
2003 petition of the Vilnius Regional Administrative Court, a
petitioner, to the extent that the petitioner requests to
investigate whether Paragraph 3 (wording of 10 December 2002)
of Article 1 of the Law on the Implementation of the Law on
Supplementing the Law on the State Service and the provisions
of the Rules of Calculation of Remuneration for Work of the
State Servant for the Second Half-year of 2002 confirmed by
Government of the Republic of Lithuania Resolution No. 686 "On
Calculation of Remuneration for Work of State Servants for the
Second Half-year of 2002" of 20 May 2002, which limit the
amount of remuneration for work of state servants by taking
account of the demand of funds calculated by the establishment
according to confirmed unified categories of positions of state
servants, which exceeds the appropriations for remuneration for
work confirmed in the State Budget for a respective year, are
not in conflict, by their content, with the principles of an
open, just and harmonious civil society and state under the
rule of law entrenched in the Preamble to the Constitution of
the Republic of Lithuania, as well as Articles 23, 29 and 48 of
the Constitution.
The representative of the party concerned pointed out that
the Law on the Implementation of the Law on Supplementing the
Law on the State Service was adopted on 23 April 2002,
officially published on 4 May 2002 and went into effect on 1
July 2002. In the opinion of P. Papovas, this circumstance is
of importance, since the amendments to the state service had
been published in advance. It was established in Paragraph 3 of
Article 1 of Law on the Implementation of the Law on
Supplementing the Law on the State Service that the
remuneration for work established in Chapter VI of the Law on
the State Service is paid from the remuneration for work
appropriations confirmed in the 2002 state and municipal
budgets. On 10 December 2002, the Law on the Implementation of
the Law on Supplementing the Law on the State Service (Official
Gazette Valstybės žinios, 2002, No. 123-5534) was adopted and
as of 1 January 2003 this provision was amended and it was
established that the remuneration for work established in
Chapter VI of the Law on the State Service is paid from the
remuneration for work appropriations confirmed in the state and
municipal budgets of a respective year. If the demand of funds
calculated by the state or municipal institution or
establishment according to confirmed unified categories of
positions of state servants for remuneration for work for state
servants exceeds the appropriations for remuneration for work
confirmed in the State Budget of the Republic of Lithuania and
municipal budgets for a respective year, the remuneration for
work of state servants will be calculated according to
corresponding rules of calculation of remuneration for work of
state servants, which are confirmed by the Government, however,
the positional salary of the state servant cannot be smaller
that that received by him until 30 June 2002. According to the
representative of the party concerned, these provisions of
Article 1 of the Law on the Implementation of the Law on
Supplementing the Law on the State Service did not deteriorate
the legal situation of state servants and did not diminish
their actual positional salary that they used to receive prior
to 30 June 2002. In the opinion of P. Papovas, the provisions
of Paragraph 3 of Article 1 of the Law on the Implementation of
the Law on Supplementing the Law on the State Service and those
of the Rules of Calculation of Remuneration for Work of the
State Servant for the Second Half-year of 2002 confirmed by
Government of the Republic of Lithuania Resolution No. 686 "On
Calculation of Remuneration for Work of State Servants for the
Second Half-year of 2002" of 20 May 2002, which limit the
amount of remuneration for work of state servants by taking
account of the demand of funds calculated by the establishment
according to confirmed unified categories of positions of state
servants, which exceeds the appropriations for remuneration for
work confirmed in the State Budget for a respective year, are
not in conflict, by their content, with the principles of an
open, just and harmonious civil society and state under the
rule of law entrenched in the Preamble to the Constitution, as
well as Articles 23, 29 and 48 of the Constitution.
7. The representative of the Seimas, the party concerned,
P. Papovas presented written explanations concerning the 7 May
2003 petition of the Vilnius Regional Administrative Court, a
petitioner, to the extent that the petitioner requests to
investigate whether (1) Paragraph 1 of Article 7 of the Law on
the State Pensions of Officials and Servicemen of the Interior,
the Special Investigation Service, State Security, National
Defence, the Prosecutor's Office, the Department of Prisons and
of the Establishments and State Enterprises Which are
Subordinate to the Latter and the provisions of Item 9 of the
Regulations for Granting and Payment of State Pensions of
Officials and Servicemen of the Systems of the Interior, the
Special Investigation Service, State Security, National
Defence, the Prosecutor's Office, the Department of Prisons and
of the Establishments and State Enterprises Which are
Subordinate to the Latter confirmed by Government Resolution
No. 83 "On the Approval of the Regulations for Granting and
Payment of State Pensions to Officials and Servicemen of the
Systems of the Interior, State Security, National Defence and
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to
the Latter and the Establishment of the Time of Service
Necessary in Order to Receive a Respective Percentage Extra Pay
for the Years of Service" of 20 January 1995, which regulate
calculation and payment of state pensions of officials and
servicemen according to the remuneration for work of officials
and servicemen valid at the month of payment of the pension for
the office that they used to hold at the time of retirement,
and which do not provide for a prohibition to reduce
remuneration for work for the month for which the state pension
of officials and servicemen is calculated and paid, are not in
conflict, as to their content, with the principles of a just
society and state under the rule of law entrenched in the
Preamble to the Constitution, as well as Articles 23, 29 and 52
of the Constitution; (2) the provisions of Section 5 of Item 9
of the Regulations for Granting and Payment of State Pensions
of Officials and Servicemen of the Systems of the Interior, the
Special Investigation Service, State Security, National
Defence, the Prosecutor's Office, the Department of Prisons and
of the Establishments and State Enterprises Which are
Subordinate to the Latter confirmed by Government Resolution
No. 83 "On the Approval of the Regulations for Granting and
Payment of State Pensions to Officials and Servicemen of the
Systems of the Interior, State Security, National Defence and
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to
the Latter and the Establishment of the Time of Service
Necessary in Order to Receive a Respective Percentage Extra Pay
for the Years of Service" of 20 January 1995, which permit only
the Ministry of National Defence, when it grants state pensions
of officials and servicemen, to calculate their remuneration
for work on the basis of the resolutions of the Government in
which remuneration for work of servicemen is established prior
to the entry into effect of the law regulating remuneration for
work of servicemen, are not in conflict, by their content, with
the principles of a just civil society and state under the rule
of law entrenched in the Preamble to the Constitution, Article
29 and Item 7 of Article 94 of the Constitution, as well as
Paragraph 1 of Article 7 and Paragraph 2 of Article 12 of the
Law on the State Pensions of Officials and Servicemen of the
Interior, the Special Investigation Service, State Security,
National Defence, the Prosecutor's Office, the Department of
Prisons and of the Establishments and State Enterprises Which
are Subordinate to the Latter.
7.1. The representative of the party concerned pointed out
that the provisions regulating the amount of remuneration for
work of a state servant, the procedure of its establishment and
payment, as well as the procedure of granting and payment of
extra pays and bonuses, are not a matter of regulation by laws
regulating pensionary legal relations, therefore the
provisions, which would regulate the conditions and procedure
of increasing and decreasing of remuneration for work, are not
a matter of regulation by the Law on the State Pensions of
Officials and Servicemen of the Interior, the Special
Investigation Service, State Security, National Defence, the
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to
the Latter or by other laws regulating pensionary legal
relations, either. These social relations are regulated in the
laws regulating the state service relations, therefore,
according to P. Papovas, there are no grounds to see any gaps
in legal regulation of remuneration for work, let alone in the
laws regulating pensionary relations. In the opinion of the
representative of the party concerned, Paragraph 1 of Article 7
of the said law and the provisions of Item 9 of the Regulations
for Granting and Payment of State Pensions of Officials and
Servicemen of the Systems of the Interior, the Special
Investigation Service, State Security, National Defence, the
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to
the Latter confirmed by Government Resolution No. 83 "On the
Approval of the Regulations for Granting and Payment of State
Pensions to Officials and Servicemen of the Systems of the
Interior, State Security, National Defence and Prosecutor's
Office, the Department of Prisons and of the Establishments and
State Enterprises Which are Subordinate to the Latter and the
Establishment of the Time of Service Necessary in Order to
Receive a Respective Percentage Extra Pay for the Years of
Service" of 20 January 1995, which regulate calculation and
payment of state pensions of officials and servicemen according
to the remuneration for work of officials and servicemen valid
at the month of payment of the pension for the office that they
used to hold at the time of retirement, and which do not
provide for a prohibition to reduce remuneration for work for
the month for which the state pension of officials and
servicemen is calculated and paid, are not in conflict, as to
their content, with the principles of a just civil society and
state under the rule of law entrenched in the Preamble to the
Constitution, and Articles 23, 29 and 52 of the Constitution.
7.2. P. Papovas noted that disputed Item 9 of the
Regulations was established in order to guarantee the
calculation of remuneration for work of officials and
servicemen which was prior to the entry into effect of the Law
on the State Pensions of Officials and Servicemen of the
Interior, the Special Investigation Service, State Security,
National Defence, the Prosecutor's Office, the Department of
Prisons and of the Establishments and State Enterprises Which
are Subordinate to the Latter (prior to 1 January 1995). The
rules of Section 5 of Item 9 of the Regulations are of one-time
application. If they had not been established and if one had
begun to newly grant pensions of officials and servicemen as
from 1 January 1995, one would not have been able to grant the
pension of an official or serviceman, since it would not have
been possible to establish one element, remuneration for work,
necessary to calculate the pension. The representative of the
party concerned pointed out that at present these provisions de
facto are not applied. According to P. Papovas, the disputed
rules of Item 9 of the Regulations establish the procedure of
establishment of remuneration for work for the time of service,
which is included into the time of service after which the
pension of an official or serviceman is granted, established in
Article 16 of the Law on the State Pensions of Officials and
Servicemen of the Interior, the Special Investigation Service,
State Security, National Defence, the Prosecutor's Office, the
Department of Prisons and of the Establishments and State
Enterprises Which are Subordinate to the Latter. Disputed
Section 5 of Item 9 of the Regulations is to be linked with the
provisions of Article 16 of the Law on the State Pensions of
Officials and Servicemen of the Interior, the Special
Investigation Service, State Security, National Defence, the
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to
the Latter, but not with Articles 7 and 12 of the same law.
Therefore, in the opinion of the representative of the party
concerned, the provisions of Section 5 of Article 9 of the
Regulations in their content are not in conflict with the
principles of a just society and state under the rule of law
entrenched in the Preamble to the Constitution, Article 29 and
Item 7 of Article 94 of the Constitution, as well as Paragraph
1 of Article 7 and Paragraph 2 of Article12 of the Law on the
State Pensions of Officials and Servicemen of the Interior, the
Special Investigation Service, State Security, National
Defence, the Prosecutor's Office, the Department of Prisons and
of the Establishments and State Enterprises Which are
Subordinate to the Latter.
8. The representative of the Government, the party
concerned, D. Žilinskas presented written explanations as
concerns the 7 May 2003 petition of the Vilnius Regional
Administrative Court, a petitioner, to the extent that the
petitioner requests to investigate whether the provisions of
Item 9 of the Regulations for Granting and Payment of State
Pensions of Officials and Servicemen of the Systems of the
Interior, the Special Investigation Service, State Security,
National Defence, the Prosecutor's Office, the Department of
Prisons and of the Establishments and State Enterprises Which
are Subordinate to the Latter confirmed by Government
Resolution No. 83 "On the Approval of the Regulations for
Granting and Payment of State Pensions to Officials and
Servicemen of the Systems of the Interior, State Security,
National Defence and Prosecutor's Office, the Department of
Prisons and of the Establishments and State Enterprises Which
are Subordinate to the Latter and the Establishment of the Time
of Service Necessary in Order to Receive a Respective
Percentage Extra Pay for the Years of Service" of 20 January
1995, which regulate calculation and payment of state pensions
of officials and servicemen according to the remuneration for
work of officials and servicemen valid at the month of payment
of the pension for the office that they used to hold at the
time of retirement, and which do not provide for a prohibition
to reduce remuneration for work for the month for which the
state pension of officials and servicemen is calculated and
paid, are not in conflict, as to their content, with the
principles of a just society and state under the rule of law
entrenched in the Preamble to the Constitution, as well as
Articles 23, 29 and 52 of the Constitution, and whether the
provisions of Section 5 of Item 9 of the Regulations for
Granting and Payment of State Pensions of Officials and
Servicemen of the Systems of the Interior, the Special
Investigation Service, State Security, National Defence, the
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to
the Latter confirmed by Government Resolution No. 83 "On the
Approval of the Regulations for Granting and Payment of State
Pensions to Officials and Servicemen of the Systems of the
Interior, State Security, National Defence and Prosecutor's
Office, the Department of Prisons and of the Establishments and
State Enterprises Which are Subordinate to the Latter and the
Establishment of the Time of Service Necessary in Order to
Receive a Respective Percentage Extra Pay for the Years of
Service" of 20 January 1995, which permit only the Ministry of
National Defence, when it grants state pensions of officials
and servicemen, to calculate their remuneration for work on the
basis of the resolutions of the Government in which
remuneration for work of servicemen is established prior to the
entry into effect of the law regulating remuneration for work
of servicemen, are not in conflict, by their content, with the
principles of a just civil society and state under the rule of
law entrenched in the Preamble to the Constitution, Article 29
and Item 7 of Article 94 of the Constitution, as well as
Paragraph 1 of Article 7 and Paragraph 2 of Article 12 of the
Law on the State Pensions of Officials and Servicemen of the
Interior, the Special Investigation Service, State Security,
National Defence, the Prosecutor's Office, the Department of
Prisons and of the Establishments and State Enterprises Which
are Subordinate to the Latter.
D. Žilinskas noted that Government Resolution No. 83 "On
the Approval of the Regulations for Granting and Payment of
State Pensions to Officials and Servicemen of the Systems of
the Interior, State Security, National Defence and Prosecutor's
Office, the Department of Prisons and of the Establishments and
State Enterprises Which are Subordinate to the Latter and the
Establishment of the Time of Service Necessary in Order to
Receive a Respective Percentage Extra Pay for the Years of
Service" of 20 January 1995 that confirmed the Regulations for
Granting and Payment of State Pensions of Officials and
Servicemen of the Systems of the Interior, the Special
Investigation Service, State Security, National Defence, the
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to
the Latter, was adopted in pursuance with the Law on the State
Pensions of Officials and Servicemen of the Interior, the
Special Investigation Service, State Security, National
Defence, the Prosecutor's Office, the Department of Prisons and
of the Establishments and State Enterprises Which are
Subordinate to the Latter. According to the representative of
the party concerned, legal regulation of issues of remuneration
for work is not a matter of this law as well as of the
Regulations.
In the opinion of the representative of the party
concerned, the provisions of Section 2 of Item 9 of the
Regulations do not limit the right of officials and servicemen
to receive a pension, nor do they provide for an opportunity to
limit its payment, thus they are not in conflict with Article
23 of the Constitution. D. Žilinskas noted that disputed
Section 2 of Item 9 of the Regulations does not establish any
privileges to any persons nor their exceptional situation in
regard to other persons, nor does it provide for any
restrictions to them, therefore it is not in conflict with
Article 29 of the Constitution. The representative of the party
concerned also indicated that in Section 2 of Item 9 of the
Regulations the procedure for calculation of the amount of
pension is established. It does not contain any provisions
limiting the right of citizens to receive old age and
disability pensions as well as social assistance in the event
of unemployment, sickness, widowhood, loss of breadwinner, and
other cases provided for in laws, therefore the provisions of
Section 2 of Item 9 of the Provisions are not in conflict with
Article 52 of the Constitution.
The representative of the party concerned noted that it is
indicated in Section 5 of Item 9 of the Regulations as to what
the Ministry of National Defence may follow in calculating the
remuneration for work of officials and servicemen, however,
there is no attempt to establish any restrictions or privileges
to the category of these persons. Therefore, in the opinion of
D. Žilinskas, Section 5 of Item 9 of the Regulations is not in
conflict with Article 29 of the Constitution.
According to the representative of the party concerned,
the Government, while implementing its powers stemming directly
from the Constitution, was permitted to allow the Ministry of
National Defence, when the latter granted state pensions of
servicemen under Paragraph 1 of Article 7 of the Law on the
State Pensions of Officials and Servicemen of the Interior, the
Special Investigation Service, State Security, National
Defence, the Prosecutor's Office, the Department of Prisons and
of the Establishments and State Enterprises Which are
Subordinate to the Latter, to calculate their remuneration for
work on the basis of the resolutions of the Government in which
remuneration for work of servicemen is established prior to the
entry into effect of the law regulating remuneration for work
of servicemen, and it was equally permitted to adopt such
resolutions formerly. Therefore, in the opinion of D.
Žilinskas, Section 5 of Item 9 of the Regulations is not in
conflict with Item 7 of Article 94 of the Constitution.
The representative of the party concerned emphasised that
the provisions of Section 5 of Item 9 of the Regulations do not
compete with those of Paragraph 1 of Article 7 of the Law on
the State Pensions of Officials and Servicemen of the Interior,
the Special Investigation Service, State Security, National
Defence, the Prosecutor's Office, the Department of Prisons and
of the Establishments and State Enterprises Which are
Subordinate to the Latter. The Regulations particularise the
provisions of this law and establish their implementation
procedures, while taking account of the situation of persons of
certain categories, who are in different situations, and who
work in different institutions, when pensions are granted and
paid to them. Therefore, in the opinion of D. Žilinskas, one is
to draw a conclusion that Section 5 of Item 9 of the
Regulations is not in conflict with Paragraph 2 of Article 12
of the Law on the State Pensions of Officials and Servicemen of
the Interior, the Special Investigation Service, State
Security, National Defence, the Prosecutor's Office, the
Department of Prisons and of the Establishments and State
Enterprises Which are Subordinate to the Latter.
IV
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from D. Grybauskaitė, the Minister of Finance of the
Republic of Lithuania, V. Bulovas, the Minister of the Interior
of the Republic of Lithuania, R. Brudbergytė, the Secretary of
the same ministry, V. Sarapinas, the State Secretary of the
Ministry of National Defence of the Republic of Lithuania, R.
Kairelis, the State Secretary of the Ministry of Social
Security and Labour of the Republic of Lithuania, V. Rupšys,
the Secretary of this ministry, P. Koverovas, the State
Secretary of the Ministry of Justice of the Republic of
Lithuania, V. Vadapalas, Director General of the European Law
Department under the Government of the Republic of Lithuania,
L. Butautienė, Acting Director of the State Service Department
under the Ministry of the Interior of the Republic of
Lithuania, Assoc. Prof. V. A. Vaičaitis who works at the
Faculty of Law, Vilnius University, and Assoc. Prof. S.
Šedbaras who works at the Law Faculty of the Law University of
Lithuania.
V
1. At the 6 October 2004 Constitutional Court hearing, J.
Meškienė, the representative of the Seimas, the party
concerned, virtually reiterated the arguments set forth in her
written explanations.
2. At the 6 October 2004 Constitutional Court hearing, N.
Rudaitis, the representative of the Government, the party
concerned, assented to the arguments set forth in the written
explanations presented by D. Žilinskas, the representative of
the Government, the party concerned.
VI
1. At the 11 November 2004 Constitutional Court hearing,
N. Rudaitis, the representative of the Government, the party
concerned, presented additional explanations.
2. At the 11 November 2004 Constitutional Court hearing,
the following specialists spoke: V. Žagūnienė, Head of the
National Defence and State Safety Programmes Division of the
Budget Department of the Ministry of Finance of the Republic of
Lithuania, R. Aleksinė, Head of the Organisation and Control
Division of the Ministry of the Interior of the Republic of
Lithuania and R. Berčiūnas, Deputy Chief of the Financial Board
of the Police Department under the Ministry of the Interior of
the Republic of Lithuania.
The Constitutional Court
holds that:
I
1. The Vilnius Regional Administrative Court, a
petitioner, requests to investigate (the 5 November 2001
petition received at the Constitutional Court on 11 November
2001) as to whether Paragraph 12 of Article 62 of the Law on
the State Service and Paragraph 7 of Article 29 of the Law on
Local Self-government are not in conflict with the principles
of a just civil society and state under the rule of law
entrenched in the Preamble to the Constitution, Paragraph 1 of
Article 29, Paragraph 1 of Article 33 and Paragraph 1 of
Article 48 of the Constitution.
2. The Panevėžys Regional Administrative Court, a
petitioner, requests to investigate (the 21 November 2002
petition received at the Constitutional Court on 4 December
2002) as to whether the Rules of Calculation of Remuneration
for Work of the State Servant for the Second Half-year of 2002
confirmed by Government Resolution No. 686 "On Calculation of
Remuneration for Work of State Servants for the Second
Half-year of 2002" of 20 May 2002 are not in conflict with
Paragraph 1 of Article 29 of the Constitution and Paragraphs 1
and 2 of Article 24 of the Law on the State Service.
3. The Vilnius Regional Administrative Court, a
petitioner, requests to investigate (the 3 April 2003 petition
received at the Constitutional Court on 4 April 2003) as to
whether the provisions of Article 26 of the Law on the State
Service regulating a constituent part of remuneration for work
of state servants, extra pays, and which do not particularise
the amounts of the extra pays, are not in conflict, by their
content, with the principles of an open, just and harmonious
civil society and state under the rule of law entrenched in the
Preamble to the Constitution, as well as Articles 29 and 48 of
the Constitution.
4. The Alytus Local District Court, a petitioner, requests
to investigate (the 18 April 2003 petition received at the
Constitutional Court on 28 April 2003) as to whether Paragraph
6 of Article 4 of the Law on the Implementation of the Law on
Supplementing the Law on the State Service and Item 4 of
Article 17 and Item 1 of Paragraph 4 of Article 29 of the Law
on the State Service are not in conflict with Articles 23, 29
and 48 of the Constitution.
5. The Vilnius Regional Administrative Court, a
petitioner, requests to investigate (the 5 May 2003 petition
received at the Constitutional Court on 28 May 2003) as to
whether Article 8 of the Law on the State Service, Seimas
Resolution No. IX-992 "On the Confirmation of the List of
Unified Positions of Seimas State Servants of Political
(Personal) Confidence, of State Servants of the Office of the
Seimas and Institutions Accountable to the Seimas, Those of the
Institution of the President of the Republic and Institutions
Accountable to the President of the Republic, Those of National
Administration of Courts, of Courts, Prosecutor's Office and
Municipal Institutions" of 27 June 2002 and Seimas Resolution
No. IX-1244 "On the Amendment of the Seimas Resolution 'On the
Confirmation of the List of Unified Positions of Seimas State
Servants of Political (Personal) Confidence, of State Servants
of the Office of the Seimas and Institutions Accountable to the
Seimas, Those of the Institution of the President of the
Republic and Institutions Accountable to the President of the
Republic, Those of National Administration of Courts, of
Courts, Prosecutor's Office and Municipal Institutions'" of 10
December 2002 are not in conflict with Article 29, Paragraph 2
of Article 120, Paragraph 1 of Article 121 and Article 127 of
the Constitution.
6. The Vilnius Regional Administrative Court, a
petitioner, requests to investigate (the 7 May 2003 petition
received at the Constitutional Court on 24 May 2003) as to
whether (1) Paragraph 1 of Article 7 of the Law on the State
Pensions of Officials and Servicemen of the Interior, the
Special Investigation Service, State Security, National
Defence, the Prosecutor's Office, the Department of Prisons and
of the Establishments and State Enterprises Which are
Subordinate to the Latter and the provisions of Item 9 of the
Regulations for Granting and Payment of State Pensions of
Officials and Servicemen of the Systems of the Interior, the
Special Investigation Service, State Security, National
Defence, the Prosecutor's Office, the Department of Prisons and
of the Establishments and State Enterprises Which are
Subordinate to the Latter confirmed by Government Resolution
No. 83 "On the Approval of the Regulations for Granting and
Payment of State Pensions to Officials and Servicemen of the
Systems of the Interior, State Security, National Defence and
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to
the Latter and the Establishment of the Time of Service
Necessary in Order to Receive a Respective Percentage Extra Pay
for the Years of Service" of 20 January 1995, which regulate
calculation and payment of state pensions of officials and
servicemen according to the remuneration for work of officials
and servicemen valid at the month of payment of the pension for
the office that they used to hold at the time of retirement,
and which do not provide for a prohibition to reduce
remuneration for work for the month for which the state pension
of officials and servicemen is calculated and paid, are not in
conflict, as to their content, with the principles of a just
society and state under the rule of law entrenched in the
Preamble to the Constitution, as well as Articles 23, 29 and 52
of the Constitution; (2) the provisions of Section 5 of Item 9
of the Regulations for Granting and Payment of State Pensions
of Officials and Servicemen of the Systems of the Interior, the
Special Investigation Service, State Security, National
Defence, the Prosecutor's Office, the Department of Prisons and
of the Establishments and State Enterprises Which are
Subordinate to the Latter confirmed by Government Resolution
No. 83 "On the Approval of the Regulations for Granting and
Payment of State Pensions to Officials and Servicemen of the
Systems of the Interior, State Security, National Defence and
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to
the Latter and the Establishment of the Time of Service
Necessary in Order to Receive a Respective Percentage Extra Pay
for the Years of Service" of 20 January 1995, which permit only
the Ministry of National Defence, when it grants state pensions
of officials and servicemen, to calculate their remuneration
for work on the basis of the resolutions of the Government in
which remuneration for work of servicemen is established prior
to the entry into effect of the law regulating remuneration for
work of servicemen, are not in conflict, by their content, with
the principles of a just civil society and state under the rule
of law entrenched in the Preamble to the Constitution, Article
29 and Item 7 of Article 94 of the Constitution, as well as
Paragraph 1 of Article 7 and Paragraph 2 of Article 12 of the
Law on the State Pensions of Officials and Servicemen of the
Interior, the Special Investigation Service, State Security,
National Defence, the Prosecutor's Office, the Department of
Prisons and of the Establishments and State Enterprises Which
are Subordinate to the Latter; (3) Paragraph 3 of Article 1 of
the Law on the Implementation of the Law on Supplementing the
Law on the State Service and the provisions of the Rules of
Calculation of Remuneration for Work of the State Servant for
the Second Half-year of 2002 confirmed by Government Resolution
No. 686 "On Calculation of Remuneration for Work of State
Servants for the Second Half-year of 2002" of 20 May 2002,
which limit the amount of remuneration for work of state
servants by taking account of the demand of funds calculated by
the establishment according to confirmed unified categories of
positions of state servants, which exceeds the appropriations
for remuneration for work confirmed in the State Budget for a
respective year, are not in conflict, by their content, with
the principles of a just society and state under the rule of
law entrenched in the Preamble to the Constitution, as well as
Articles 23, 29 and 48 of the Constitution.
7. Summing up the petitions of the petitioners, one is to
hold that the petitioners request to investigate (to various
extent) the following:
- the compliance of Article 8, Article 26 and Paragraph 12
of Article 62 of the Law on the State Service (provisions
thereof) with the Constitution;
- the compliance of Item 4 of Article 17 and Item 1 of
Paragraph 4 of Article 29 of the Law on Supplementing the Law
on the State Service with the Constitution;
- the compliance of Paragraph 3 of Article 1 of the Law on
the Implementation of the Law on Supplementing the Law on the
State Service and Paragraph 6 of Article 4 of the Law on the
Implementation of the Law on Supplementing the Law on the State
Service with the Constitution;
- the compliance of Paragraph 1 of Article 7 of the Law on
the State Pensions of Officials and Servicemen of the Interior,
the Special Investigation Service, State Security, National
Defence, the Prosecutor's Office, the Department of Prisons and
of the Establishments and State Enterprises Which are
Subordinate to the Latter with the Constitution;
- the compliance of Paragraph 7 of Article 29 of the Law
on Local Self-government with the Constitution;
- the compliance of Seimas Resolution No. IX-992 "On the
Confirmation of the List of Unified Positions of Seimas State
Servants of Political (Personal) Confidence, of State Servants
of the Office of the Seimas and Institutions Accountable to the
Seimas, Those of the Institution of the President of the
Republic and Institutions Accountable to the President of the
Republic, Those of National Administration of Courts, of
Courts, Prosecutor's Office and Municipal Institutions" of 27
June 2002 with the Constitution;
- the compliance of Seimas Resolution No. IX-1244 "On the
Amendment of the Seimas Resolution 'On the Confirmation of the
List of Unified Positions of Seimas State Servants of Political
(Personal) Confidence, of State Servants of the Office of the
Seimas and Institutions Accountable to the Seimas, Those of the
Institution of the President of the Republic and Institutions
Accountable to the President of the Republic, Those of National
Administration of Courts, of Courts, Prosecutor's Office and
Municipal Institutions'" of 10 December 2002 with the
Constitution;
- the compliance of Item 9 (provisions thereof) of the
Regulations for Granting and Payment of State Pensions of
Officials and Servicemen of the Systems of the Interior, the
Special Investigation Service, State Security, National
Defence, the Prosecutor's Office, the Department of Prisons and
of the Establishments and State Enterprises Which are
Subordinate to the Latter confirmed by Government Resolution
No. 83 "On the Approval of the Regulations for Granting and
Payment of State Pensions to Officials and Servicemen of the
Systems of the Interior, State Security, National Defence and
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to
the Latter and the Establishment of the Time of Service
Necessary in Order to Receive a Respective Percentage Extra Pay
for the Years of Service" of 20 January 1995 with the
Constitution and the Law on the State Pensions of Officials and
Servicemen of the Interior, the Special Investigation Service,
State Security, National Defence, the Prosecutor's Office, the
Department of Prisons and of the Establishments and State
Enterprises Which are Subordinate to the Latter;
- the compliance of the Rules of Calculation of
Remuneration for Work of the State Servant for the Second
Half-year of 2002 confirmed by Government Resolution No. 686
"On Calculation of Remuneration for Work of State Servants for
the Second Half-year of 2002" of 20 May 2002 with the
Constitution and the Law on the State Service.
8. During the time from the reception of the petitions of
the Vilnius Regional Administrative Court, the Panevėžys
Regional Administrative Court and the Alytus Local District
Court at the Constitutional Court, the legal regulation
disputed by the Vilnius Regional Administrative Court, the
Panevėžys Regional Administrative Court and the Alytus Local
District Court, the petitioners, was amended: some legal acts
and/or parts thereof were annulled and/or amended.
Under Paragraph 4 of Article 69 of the Law on the
Constitutional Court, the annulment of the disputed legal act
shall be grounds to adopt a decision to dismiss the instituted
legal proceedings. In its rulings the Constitutional Court has
held many a time that the formula "shall be grounds <...> to
dismiss the instituted legal proceedings" of Paragraph 4 of
Article 69 of the Law on the Constitutional Court is to be
construed as establishing the right to the Constitutional
Court, in cases when not courts but the other entities pointed
out in Article 106 of the Constitution applied to the
Constitutional Court, while taking account of the circumstances
of the case, to dismiss the instituted legal proceedings, but
not as establishing that in every case when the disputed legal
act was annulled the instituted legal proceedings must be
dismissed. Under the Constitution, in the cases when a court
investigating a case applies to the Constitutional Court after
it has had doubts concerning the compliance of a law applicable
in the case with the Constitution, also concerning the
compliance of an act adopted by the Seimas, or an act of the
President of the Republic or the Government with the
Constitution or laws, the Constitutional Court has a duty to
investigate the request of the court regardless of the fact
whether or not the disputed law or other legal is valid.
It needs to be emphasised that upon application of the
Vilnius Regional Administrative Court, the Panevėžys Regional
Administrative Court and the Alytus Local District Court, the
petitioners, with petitions requesting to investigate whether
the disputed provisions are not in conflict with the
Constitution and laws, and if the Constitutional Court did not
decide upon these issues in essence, the doubts of the Vilnius
Regional Administrative Court, the Panevėžys Regional
Administrative Court and the Alytus Local District Court, which
are investigating these cases, whether the disputed provisions
were not in conflict with the Constitution would not be
removed, thus, in case these provisions were applied, the
constitutional rights of persons could be violated.
II
1. The petitioners doubt whether the disputed provisions
of the legal acts are not in conflict with inter alia the
striving for an open, just, and harmonious civil society and
state under the rule of law which is entrenched in the
Constitution, and the constitutional principles of a just
harmonious civil society and a state under the rule of law.
2. The Constitution is integral and directly applicable
act (Paragraph 1 of Article 6 of the Constitution). This is an
act of supreme legal power, the supreme law, and the measure of
lawfulness and legitimacy of all the other legal acts. In its
ruling of 25 May 2004, the Constitutional Court held: "<...>
since it is impossible to treat law solely as a text in which
expressis verbis certain legal provisions and rules of
behaviour are set forth, thus, also, it is impossible to treat
the Constitution as a legal reality solely in its textual form.
The Constitution may not be understood only as an aggregate of
explicit provisions. <...> The nature of the Constitution as
the act of the supreme legal power itself, and the idea of the
constitutionality imply that the Constitution may not have and
has no gaps, so there may not be and there is no such legal
regulation established in legal acts of lower power which may
not be assessed in respect of its compliance with the
Constitution. The Constitution as a legal reality is comprised
of various provisions, the constitutional norms and the
constitutional principles, which are directly consolidated in
various formulations of the Constitution or derived from them.
Some constitutional principles are entrenched in constitutional
norms formulated expressis verbis, others, although not
entrenched therein expressis verbis, are reflected in them and
are derived from the constitutional norms, as well as from
other constitutional principles reflected in these norms, from
the entirety of the constitutional legal regulation, from the
meaning of the Constitution as the act which consolidates and
protects the system of major values of the state community, the
civil Nation, and which provides the guidelines for the entire
legal system. There may not exist and there is no contradiction
between the constitutional principles and the constitutional
norms-all the constitutional norms and constitutional
principles form a harmonious system. It is the constitutional
principles that organise all the provisions of the Constitution
into a harmonious entirety, and thus do not permit the
existence in the Constitution of internal contradictions or
such an interpretation thereof which distorts and denies the
essence of any provision of the Constitution, or any value
entrenched in and protected by the Constitution. The
constitutional principles reveal not only the letter, but also
the spirit of the Constitution-the values and strivings
entrenched in the Constitution by the Nation which chose
certain textual form and verbal expression of its provisions,
which defined certain norms of the Constitution, and which
explicitly or implicitly established certain constitutional
legal regulation. Thus, there may not exist and there is no
contradiction not only between the constitutional principles
and the constitutional norms, but also between the spirit of
the Constitution and the letter of the Constitution: the letter
of the Constitution may not be interpreted or applied in a
manner which denies the spirit of the Constitution, which may
be understood only when perceiving the constitutional legal
regulation as an entirety and only upon the evaluation of the
purpose of the Constitution as a social agreement and an act of
the supreme legal power. The spirit of the Constitution is
expressed by the entirety of the constitutional legal
regulation, all its provisions-both the norms of the
Constitution directly set forth in the text of the
Constitution, and the principles of the Constitution, including
those that originate from the entirety of the constitutional
legal regulation and the meaning of the Constitution as an act
which consolidates and protects the system of major values of
the Nation, and which provides the guidelines for the whole
legal system."
3. In its ruling of 11 July 2002, the Constitutional Court
held that the values and strivings enshrined in the
Constitution are expressed in the norms and principles of the
Constitution. It is to be stressed that the constitutional
principles express the strivings and values for the
consolidation, protection and defence of which the Constitution
of the Republic of Lithuania, which was adopted by the Nation
on the 25 October 1992 referendum, is designated. Upon these
strivings and values the constitutional order of the Republic
of Lithuania is based.
In its rulings the Constitutional Court has held more than
once that all the provisions of the Constitution are linked to
each other and constitute an integral and harmonious system,
that there is a balance between the values entrenched in the
Constitution, that not a single provision of the Constitution
may be interpreted in a manner distorting or denying the
content of any other provision of the Constitution, as this
would distort the essence of the entire constitutional legal
regulation, and disturb the balance between the constitutional
values.
Thus, none of the provisions of the Constitution may be
construed in a way, whereby any constitutional principle would
be denied or distorted, since the strivings and/or values would
be denied and/or distorted, which were consolidated by the
Nation in the Constitution adopted by it, and which the Nation,
the sovereign founder of the State of Lithuania (Article 2 of
the Constitution), constitutionally obligated the state (which
was created by the Nation) to protect and defend.
Within the context of the case at issue it is to be noted
that it is also the constitutional legal regulation established
in Articles 23, 29, 33, 48, 52, 120, 121, and 127 of the
Constitution (which were indicated by the petitioners) that is
to be construed in the context of the entire legal regulation
established in the Constitution, and which is inseparable from
the strivings and values of the Nation expressed in various
principles of the Constitution, which are expressed in, and
protected and defended by the Constitution.
4. The striving for an open, just, and harmonious civil
society and state under the rule of law is declared in the
Preamble to the Constitution. The aforementioned striving is
one of the strivings of the Nation which adopted the
Constitution of the Republic of Lithuania in the 25 October
1992 referendum, for achievement of which the Constitution was
adopted. In its 11 July 2002 ruling, the Constitutional Court
held that the striving for an open, just, and harmonious civil
society and state under the rule of law declared in the
Preamble to the Constitution is enshrined in various aspects in
various provisions of the Constitution, that the striving for a
state under the rule of law, enshrined in the Constitution, is
to be construed inseparably from other provisions of the
Constitution, which consolidated the principle of a state under
the rule of law, and that the striving for a state under the
rule of law is expressed by the constitutional principle of a
state under the rule of law.
When construing the content of the constitutional
principle of a state under the rule of law, the Constitutional
Court has held more than once in its rulings that the
constitutional principle of a state under the rule of law is a
universal principle, upon which the entire legal system of
Lithuania and the Constitution of the Republic of Lithuania
itself are based, that the constitutional principle of a state
under the rule of law is to be construed inseparably from the
striving for an open, just, and harmonious civil society and
state under the rule of law, which is declared in the Preamble
to the Constitution, and that the content of the aforementioned
constitutional principle reveals itself in various provisions
of the Constitution.
5. The essence of the constitutional principle of a state
under the rule of law is the rule of law. The constitutional
imperative of the rule of law means that the freedom of state
power is limited by law, to which all the entities of legal
relations, including the law-making entities, must obey. It is
to be stressed that the discretion of all the law-making
entities is limited by the supreme law-the Constitution. All
the legal acts, decisions of all the state and municipal
institutions and officials must be in compliance with and not
contradicting to the Constitution.
The Constitutional Court has held that the constitutional
principle of a state under the rule of law must be followed
both in law-making and enforcement of law (Constitutional Court
ruling of 6 December 2000). The compliance of each institute of
law with the Constitution must be evaluated according to how
this institute is in compliance with the constitutional
principles of a state under the rule of law (Constitutional
Court ruling of 11 May 1999).
6. The constitutional principle of a state under the rule
of law is an especially voluminous constitutional principle,
which comprises lots of various interrelated imperatives. Thus,
it should be stressed that the content of the constitutional
principle of a state under the rule of law is to be revealed
while taking account of various provisions of the Constitution,
while evaluating all the values entrenched in, and protected
and defended by the Constitution, and while taking account of
the content of various other constitutional principles, such as
the principle of the supremacy of the Constitution, its
integrity and direct applicability, sovereignty of the Nation,
democracy, responsible governance, restriction of powers of
state authority and service of state institutions to the
people, publicity of law, justice (comprising inter alia
natural justice), separation of powers, public spirit, equality
of persons before the law, court, state institutions and
officials, respect to and protection of the human rights and
freedoms (comprising inter alia the recognition that the human
rights and freedoms are of innate nature), coordination of
interests of the person and society, secularity of the state
and its neutrality in world-view matters, social orientation of
the state, social solidarity (comprised with responsibility of
everyone for his own fate), and other constitutional principles
of no less importance. The constitutional principle of a state
under the rule of law is consolidated not only by the striving
for an open, just, and harmonious civil society and state under
the rule of law, which is declared in the Preamble to the
Constitution, but, in various aspects, by all the rest of the
provisions of the Constitution as well. In its ruling of 19
September 2002, the Constitutional Court held that the
constitutional principle of a state under the rule of law also
embodies the striving for an open, just, and harmonious civil
society and State under the rule of law, which is enshrined in
the Preamble to the Constitution. The constitutional principle
of a state under the rule of law integrates various values
enshrined in, and protected and defended by the Constitution,
including those, which are expressed by the aforementioned
striving.
Thus, the constitutional principle of a state under the
rule of law may not be construed as the one which is entrenched
only in the Preamble to the Constitution, nor may it be
identified only with the declared therein striving for an open,
just, and harmonious civil society and state under the rule of
law. On the other hand, just like the content of the
constitutional principle of a state under the rule of law is to
be construed without denying any single provision of the
Constitution, in the same way none of the provisions of the
Constitution-not a single constitutional principle or
constitutional norm-may be construed so that the construction
would deviate from the requirements of a state under the rule
of law which arise from the Constitution, as the content of the
constitutional principle of a state under the rule of law, thus
the constitutional concept of a state under the rule of law,
would also be distorted or even denied. All the provisions of
the Constitutions are to be construed in the context of the
constitutional principle of a state under the rule of law, and
the enshrined in the Constitution concept of a state under the
rule of law. It is the function of the constitutional doctrine
to reveal the content of the concept of a state under the rule
of law (Constitutional Court ruling of 11 May 1999).
7. In its 25 May 2004 ruling the Constitutional Court
held: "It is due to the fact that the Constitution is an
integral act, that it is comprised of various provisions-both
the constitutional norms, and the constitutional
principles-among which there may not exist and there is no
contradiction, and which constitute a harmonious system, that
the constitutional principles are derived from the entirety of
the constitutional legal regulation expressing the spirit of
the Constitution, and from the meaning of the Constitution as
the act consolidating and protecting the system of the major
values of the state community, the civil Nation, and which
provides the guidelines for the entire legal system, and due to
the fact that the letter of the Constitution may not be
interpreted or applied in the manner which denies the spirit of
the Constitution, the Constitution may not be interpreted only
literally by applying the sole linguistic (verbal) method. When
interpreting the Constitution, one must apply various methods
of interpretation of law: systemic, the one of general
principles of law, logical, teleological, the one of intentions
of the legislator, the one of precedents, historical,
comparative, etc. Only such comprehensive interpretation of the
Constitution may provide conditions for realisation of the
purpose of the Constitution as a social agreement and the act
of the supreme legal power, and for ensuring that the meaning
of the Constitution will not be deviated from, that the spirit
of the Constitution will not be denied, and that the values
upon which the Nation has based the Constitution adopted by it
will be consolidated in reality."
The construction of all the provisions of the Constitution
in the context of the constitutional principle of a state under
the rule of law is a necessary pre-requisite for exhaustive
construction of the Constitution.
8. In this context it is to be noted that the
investigation of the compliance of legal acts (parts thereof)
with the enshrined in the Preamble to the Constitution striving
for an open, just, and harmonious civil society and a state
under the rule of law implies the investigation of their
compliance with the constitutional principle of a state under
the rule of law. It should also be noted that the
non-compliance of a legal act (part thereof) with any
imperative dictated by any constitutional principle of a state
under the rule of law-the universal constitutional principle-in
which various values enshrined in, and protected and defended
by the Constitution, are integrated (the element of the
constitutional principle of a state under the rule of law)
means that the constitutional principle of a state under the
rule of law is violated as well.
9. In its rulings the Constitutional Court has held more
than once that the principle of a state under the rule of law
which is entrenched in the Constitution, in addition to other
requirements also implies that human rights and freedoms must
be ensured, that all the institutions implementing state power
and other state and municipal institutions, and all the
officials must act on the basis of law and must obey the
Constitution and law, that the Constitution bears the supreme
legal power, and that all the legal acts must be in compliance
with the Constitution. Inseparable elements of the principle of
a state under the rule of law are the protection of legitimate
expectations, legal certainty and legal security. The principle
of legal security is one of the basic elements of the
entrenched in the Constitution principle of a state under the
rule of law, which means the obligation of a state to ensure
the certainty and stability of the legal regulation, to protect
the rights of the subjects of legal relations, as well as the
acquired rights, to respect the legitimate interests and
legitimate expectations. If the protection of legitimate
expectations, legal certainty and legal security were not
ensured, the trust of the person in the state and law would not
be guaranteed. The state must fulfil all its obligations to the
person.
In its rulings of 4 July 2003 and 3 December 2003, the
Constitutional Court held that one of the elements of the
principle of legitimate expectations is the protection of
rights which were acquired under the Constitution as well as
laws and other legal acts which are not in conflict with the
Constitution. It needs to be noted that, according to the
Constitution, only those expectations of the person in
relationships with the state are protected and defended, which
arise from the Constitution itself or from the laws and other
legal acts that are not in conflict with the Constitution. Only
these expectations of the person in relationships with the
state are considered legitimate.
The constitutional protection of legitimate interests of
the person is to be construed inseparably from the entrenched
in the Constitution principle of justice, the entrenched in the
Constitution protection of the acquired rights, the necessity
to ensure the trust of a person, who obeys law and follows the
requirements of the laws, in the state and law. The trust of
the person in the state and law as well as the protection of
legitimate interests, as constitutional values, are inseparable
from the constitutionality of legal acts and presumption of
legitimacy. Legal acts (parts thereof) are considered to be in
compliance with the Constitution and legitimate until the
moment, when, upon the procedure established by the
Constitution and the Law on the Constitutional Court, they are
recognised as being in conflict with the Constitution
(substatutory legal acts-as being in conflict with the
Constitution and/or the laws). Thus, until the moment when
legal acts (parts thereof), upon the procedure established by
the Law on the Constitutional Court, are recognised as being in
conflict with the Constitution (substatutory legal acts-as
being in conflict with the Constitution and/or the laws) or
until the moment when, upon the established procedure, they are
recognised as no longer effective, the legal regulation
established therein is compulsory for respective subjects of
legal relations. The person who obeys law, who follows the
requirements of the laws, is protected and defended by the
Constitution. A failure to pay heed to this provision would
mean a deviation from the principle of justice which is
enshrined in the Constitution as well.
It is to be stressed that there may be factual situations,
where the person who meets the conditions established in legal
acts, under the said legal acts acquired particular rights and
therefore gained expectations, which could be considered by
this person to be reasonably legitimate during the period of
validity of the said legal acts, therefore, he could reasonably
expect that if he obeys law, and fulfils the requirements of
the laws, his expectations will be held legitimate by the state
and will be defended and protected. Even the legal acts which,
on the basis and upon the procedure established in the
Constitution and the laws, are later recognised as being in
conflict with the Constitution (substatutory legal acts-as
being in conflict with the Constitution and/or the laws), may
give rise to such expectations. It is worth noticing in this
context that there may also be factual situations, where the
person has already fulfilled his rights and obligations arising
from the legal act which was later recognised as being in
conflict with the Constitution (substatutory legal acts-as
being in conflict with the Constitution and/or the laws) in
regard to other persons and after that, due to this, the
aforementioned other persons gained particular expectations,
the defence and protection of which by the state they could
reasonably expect, as well. It should be especially stressed
that in certain cases quite a long period of time may pass from
the moment of appearance of such expectations and recognition
of respective legal acts as being in conflict with the
Constitution (substatutory legal acts-as being in conflict with
the Constitution and/or the laws). The imperative of the
balance between the constitutional values, the constitutional
requirements of legal certainty and legal security, the
enshrined in the Constitution protection of the acquired
rights, and the presumption of constitutionality and legitimacy
of legal acts pre-determines inter alia the fact that the
Constitution generally does not prevent from protecting and
defending in certain special cases also such acquired rights of
the person arising from the legal acts recognised later as
being in conflict with the Constitution (substatutory legal
acts-as being in conflict with the Constitution and/or the
laws), which, if not defended or protected, would result in
greater harm to the person, other persons, society or the
state, than the harm inflicted in case of total non-defence or
non-protection or partial defence or protection of the said
rights. When deciding whether the acquired rights gained by the
person during the period of validity of the legal act which was
recognised later as being in conflict with the Constitution
(substatutory legal acts-as being in conflict with the
Constitution and/or the laws) are to be protected and defended
or not (and if so, to what extent), in each case it is
necessary to find out whether in case of failure to protect and
defend such acquired rights, other values protected by the
Constitution would not be violated, and whether the balance
between the values entrenched in and protected and defended by
the Constitution would not be disturbed. Upon recognising the
legal acts as being in conflict with the Constitution
(substatutory legal acts-as being in conflict with the
Constitution and/or the laws) and, due to this, certain persons
who have obeyed law, followed the laws and respected the state
and its law before the said recognition can suffer negative
consequences, while the legislator bears the constitutional
duty to evaluate all the circumstances related with this and,
if necessary, establish such legal regulation, which would
provide an opportunity in the aforementioned extraordinary
cases to fully or partially protect and defend the acquired
rights of the persons who obeyed law and followed the
requirements of the laws, arising from the legal acts which
were later recognised as being in conflict with the
Constitution (substatutory legal acts-as being in conflict with
the Constitution and/or the laws), so that the enshrined in the
Constitution principle of justice would not be deviated from,
too.
By the same it is worth stressing that the Constitution
does not protect and defend the acquired rights of persons
which are privileges in their essence; the protection and
defence of privileges would mean that the constitutional
principle of equal rights of persons and the constitutional
principle of justice, the imperative of a harmonious civil
society enshrined in the Constitution, and, therefore, the
constitutional principle of a state under the rule of law, are
violated.
10. The jurisprudence of the Constitutional Court stated
more than once the imperative arising from the constitutional
principle of a state under the rule of law and other provisions
of the Constitution that the person who believes that his
rights and freedoms have been violated has an absolute right to
an independent and impartial trial, which would settle the
dispute. The right of the person to apply to court also implies
his right to a due legal process, this is an essential
condition of administration of justice. It is to be emphasized
that the constitutional right of the person to apply to court
may not be artificially restricted or its exercising may not be
unreasonably aggravated.
11. The constitutional principle of a state under the rule
of law implies various requirements for the legislator and
other law-making entities; the law-making entities may pass
legal acts only without exceeding their powers; the
requirements established in legal acts must be based on the
provisions of general type (legal norms and principles) which
can be applied in regard to all the specified subjects of
respective legal relations; the differentiated legal regulation
must be based only on objective differences of the situation of
subjects of public relations regulated by respective legal
acts; in order to ensure that the subjects of legal relations
know what the legal norms require from them, the legal norms
must be established in advance, the legal acts must be
published officially, they must be public and accessible; the
legal regulation established in laws and other legal acts must
be clear, easy to understand, consistent, formulas in the legal
acts must be explicit, consistency and internal harmony of the
legal system must be ensured, the legal acts may not contain
any provisions, which at the same time regulate the same public
relations in a different manner; in order that subjects of
legal relations could orient their behaviour according to the
requirements of law, the legal regulation must be relatively
stable; the legal acts may not require the impossible (lex non
cogit ad impossibilia); the power of the legal acts is
prospective, while retrospective validity of the laws and other
legal acts is not permitted (lex retro non agit) unless the
legal act mitigates the situation of the subject of legal
relations and does not injure other subjects of legal relations
by the same (lex benignior retro agit); violations of law, for
which liability is established in legal acts, must be clearly
defined; when setting legal restrictions and liability for
violations of law, one must pay heed to the requirement of
reasonableness and the principle of proportionality, according
to which the established legal measures are to be necessary in
a democratic society and suitable for achieving legitimate and
universally important objectives (there must be a balance
between the objectives and measures), they may not restrict the
rights of the person more than it is necessary in order to
achieve the said objectives, and if these legal measures are
related to the sanctions for the violation of law, in such case
the aforementioned sanctions must be proportionate to the
committed violation of law; when legally regulating public
relations it is compulsory to pay heed to the requirements of
natural justice comprising inter alia the necessity to ensure
the equality of persons before the law, the court and state
institutions and officials; when issuing legal acts, one must
pay heed to procedural law-making requirements, including those
established by the law-making entity itself; etc.
From the constitutional principle of a state under the
rule of law and other constitutional imperatives arises the
requirement to the legislator to pay heed to the hierarchy of
legal acts which originates from the Constitution. This
requirement inter alia means that it is prohibited to regulate
the public relations by legal acts of lower power, which may be
regulated only by legal acts of higher power, it also means
that it is prohibited to establish in legal acts of lower power
any such legal regulation, which would compete with the one
established in the legal acts of higher power. Within the
context of the constitutional justice case at issue it is worth
emphasising that by a substatutory legal act norms of the law
are realised, therefore such a substatutory legal act may not
replace the law itself or create any new legal norms of general
character which would compete with the norms of the law, as
thus the supremacy of laws in respect to substatutory acts
which is established in the Constitution would be violated
(Constitutional Court ruling of 21 August 2002); it is also to
be stressed that substatutory legal acts cannot be in conflict
with laws, constitutional laws, and the Constitution, that
substatutory legal acts must be adopted on the basis of laws,
that a substatutory legal act is an act of application of
legislative norms irrespective of whether this act is of
one-time (ad hoc) application, or of permanent validity
(Constitutional Court ruling of 30 December 2003).
There is no delegated law-making in Lithuania
(Constitutional Court rulings of 26 October 1995, 19 December
1996, 3 June 1999, and 5 March 2004), therefore the Seimas-the
legislator-cannot commission the Government or other
institutions to regulate, by means of substatutory legal acts,
the legal relations which are to be regulated according to the
Constitution by means of laws, while the Government may not
accept such commissioning. These relations may not be regulated
by substatutory acts of the Seimas as well.
In the context of the constitutional justice case at issue
it is worth emphasizing that according to the Constitution the
legal regulation related to the definition of the content of
rights and freedoms of the person or consolidation of
guarantees of their exercising may be established only by the
law. On the other hand, in the cases where the Constitution
does not require that particular relations linked with the
rights of the person and their exercising are regulated by the
law, these relations may also be regulated by substatutory
acts-the acts which regulate process (procedural) relations of
exercising the rights of the person, the procedure of
exercising individual rights of the person, etc. However, under
no circumstances substatutory acts may establish any such legal
regulation of the relations linked with the rights of the
person and exercising thereof, which would compete with the one
established in the law.
It is also to be stressed that such failure to follow the
form of the legal act, when it is required in the Constitution
that certain relations are to be regulated by the law, still
they are regulated by a substatutory act (irrespective of the
fact whether these relations in any aspect are additionally
regulated by a law the legal regulation established in which is
challenged by the legal regulation established in the
substatutory act, or of the fact that no law regulates such
relations at all), may become sufficient reasoning for
recognising such a substatutory act as being in conflict with
the Constitution. Under the Constitution, it is the
Constitutional Court that decides whether substatutory legal
acts of the Seimas, the President of the Republic, and the
Government in their form are not in conflict with the
Constitution. When making such a decision, in each case the
Constitutional Court evaluates all the circumstances of the
case, inter alia the place of the investigated legal regulation
in the entire legal system, its objective, as well as
intentions of the law-making entity, development of the legal
regulation of respective relations and its changes before the
investigated legal act was issued (legislative history), etc.
It is also to be stressed that in cases when substatutory
legal acts are recognised as being in conflict with the
Constitution in their form (due to the fact that they regulate
the relations which may only be regulated by the law) and may
no longer be applied, it is necessary to pay heed to the
requirement arising from the Constitution to evaluate whether
other values protected by the Constitution will not be
violated, or whether the balance between the values enshrined
in, and protected and defended by the Constitution will not be
disturbed in case of failure to protect and defend the acquired
rights of persons, which originated during the period of
validity of the said substatutory legal acts. In these
extraordinary cases the legislator, having evaluated all the
circumstances and having found that it is necessary, bears the
constitutional duty to establish such legal regulation, which
would provide a possibility to fully or partially protect and
defend the rights of the persons who obeyed law, followed the
requirements of the laws, and trusted in the state and its law,
arising from the legal acts which were recognised later as
being in conflict with the Constitution in their form (due to
the fact that they regulated the relations which may only be
regulated by the law), and which would ensure that the
principle of justice enshrined in the Constitution will not be
deviated from.
12. The constitutional principle of a state under the rule
of law must be followed when applying law as well. When
applying law, one must inter alia pay heed to the following
requirements originating from the constitutional principle of a
state under the rule of law, for example: the law-applying
institutions must follow the requirement of equal rights of
persons; it is not permitted to punish for the same violation
of law twice (non bis in idem); liability (sanction,
punishment) for violations of law must be established in
advance (nullum poena sine lege); an act is not considered to
be criminal, if it is not provided for in the law (nullum
crimen sine lege), etc. In this context it is worth mentioning
also that 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 (Constitutional
Court rulings of 11 May 1999, 19 September 2000, and 24 January
2003).
It is established in Article 110 of the Constitution that
the judge may not apply a law, which is in conflict with the
Constitution. When account is taken of the hierarchy of legal
acts which originates from the Constitution, this provision of
the Constitution means that the judge may not apply a
substatutory legal act, which is in conflict with the
Constitution, too. Moreover, he may not apply such a
substatutory legal act, which is in conflict with the law. On
the other hand, the aforementioned provision of the
Constitution reflects the constitutional principle, one of the
basic elements of the enshrined in the Constitution principle
of a state under the rule of law, that a legal act, which is in
conflict with a legal act of greater power, may not be applied.
It is worth noting that the laws must be enforced until
the moment when they are changed or revoked or, upon the
procedure established by the Law on the Constitutional Court,
recognised as being in conflict with the Constitution
(substatutory legal acts-as being in conflict with the
Constitution and/or the laws). In the context of the
constitutional justice case at issue it is especially worth
emphasising that until the moment when the laws are changed or
upon the procedure established by the Law on the Constitutional
Court recognised as being in conflict with the Constitution,
all the subjects of legal relations, consequently the
Government included, must execute and apply them according to
their competence; it is not allowed that the Government, which
must itself apply the laws and/or ensure that other state and
municipal institutions and officials apply them, instead of
exercising the duties imposed upon it by the laws and/or
ensuring that other state and municipal institutions and
officials exercise the duties established by the laws, by its
substatutory legal acts establish the legal regulation which
would compete with the one established in the laws and which
would totally or partially exempt the Government and/or other
state and municipal institutions and officials from the
fulfilment of the mentioned duties.
13. It was stated that it is the function of the
constitutional doctrine to reveal the content of the concept of
a state under the rule of law. According to the Constitution it
is only the Constitutional Court who bears the official powers
to construe the Constitution (Constitutional Court rulings of
30 May 2003, 29 October 2003, 13 May 2004, and 1 July 2004).
When investigating the compliance of laws and other legal acts
with the Constitution, the Constitutional Court develops the
concept of provisions of the Constitution, which is presented
in its previous rulings and other acts, and reveals new aspects
of the regulation consolidated in the Constitution, which are
necessary for investigation of a particular case
(Constitutional Court rulings of 30 May 2003 and 1 July 2004).
The official constitutional doctrine inter alia reveals the
interrelation of various constitutional provisions, the
relationship of their content, the balance between the
constitutional values, and the essence of the constitutional
legal regulation as a single whole (Constitutional Court ruling
of 1 July 2004).
Hence, when construing the constitutional principle of a
state under the rule of law and revealing the content of the
concept of a state under the rule of law enshrined in the
Constitution, the Constitutional Court forms the official
constitutional doctrine of a state under the rule of law and
develops it by the same, while construing new aspects of the
legal regulation established in the Constitution, which are
necessary for investigation of a particular case of
constitutional justice.
One of many aspects of the constitutional principle of
state under the rule of law (directly related with the
constitutional principle of equal rights of persons) is that
similar cases must be decided in a similar manner. Therefore,
the discretion of the jurisdictional authorities, when deciding
disputes and applying law, is limited. In its rulings of 21
July 2001, and 30 May 2003, as well as the decision of 13
February 2004, the Constitutional Court held that the principle
of a state under the rule of law which enshrined in the
Constitution inter alia implies the continuity of
jurisprudence.
III
1. All the legal acts (parts thereof) whose compliance
with the Constitution and laws is disputed by the petitioners
regulate the relations of the state service and/or relations
linked with the state service in various aspects.
2. The state is an organisation of the entire society
(Constitutional Court rulings of 25 November 2002, 4 March
2003, 30 September 2003, 3 December 2003, and 30 December
2003). The power of the state, as a political organisation of
the entire society, covers all the territory of the state, and
it is designated for ensuring human rights and freedoms and
guaranteeing the public interest (Constitutional Court ruling
of 30 December 2003). The imperative of social harmony is
consolidated in the Constitution (Constitutional Court rulings
of 14 January 2002, 3 December 2003, and 5 March 2004). The
state, when exercising its functions, must act in the interests
of entire society (Constitutional Court ruling of 4 March
2003). In order to guarantee the public interest of the entire
community of the state, the civil Nation, the state must ensure
the execution of public administration and provision of public
services.
Article 1 of the Constitution provides: "The State of
Lithuania shall be an independent democratic republic." It is
established in Paragraph 1 of the Constitutional Law of the
Republic of Lithuania "On the Lithuanian State"-the constituent
part of the Constitution-that the statement "The State of
Lithuania shall be an independent democratic republic" is a
constitutional norm of the Republic of Lithuania and a
fundamental principle of the state. When construing the
provision of Article 1 of the Constitution, the Constitutional
Court held that in this article of the Constitution the
fundamental principles of the State of Lithuania are
established: the State of Lithuania is free and independent;
the republic is the form of governance of the State of
Lithuania; the state power must be organised in a democratic
way, and there must be a democratic political regime in this
country (Constitutional Court rulings of 23 February 2000, 18
October 2000, 25 January 2001, and 19 September 2002).
The constitutional requirement that the power of the State
of Lithuania should be organised in a democratic way and that
the democratic political regime must be in place in the
country, is inseparable from the provision of Paragraph 3 of
Article 5 of the Constitution, that state institutions serve
the people, as well as the provision of Paragraph 2 of this
article that the scope of power is limited by the Constitution.
The nature of democratic institutes of power is that all
persons who implement political will of the people are
controlled in varied forms so that this will would not be
distorted (Constitutional Court ruling of 29 May 1996). In its
ruling of 1 July 2004 and its conclusion of 5 November 2004,
the Constitutional Court held that the Constitution
consolidates the principle of responsible governance. The
responsibility of authority to society is a principle of the
state under the rule of law which is established by the
Constitution by providing that state institutions will serve
the people, while the citizens shall have the right to run the
country either directly or through democratically elected
representatives, to criticise the work of state institutions or
that of their officials, to lodge complaints against their
decisions, as well as by guaranteeing an opportunity for
citizens to defend their rights in court, the right of
petition, by regulating the procedure for investigation of
applications and complaints of citizens etc. (Constitutional
Court ruling of 11 May 1999).
3. The state exercises its functions through the system of
respective establishments, which comprise, first of all, state
institutions; the state may exercise its functions to a certain
extent through other establishments (other than state
institutions), which are assigned (entrusted) according to the
laws with exercising particular state functions or which
participate in exercising state functions in particular forms
and manners defined in the laws. When establishing by the law
that particular functions to certain extent may be exercised
not through the state but other establishments, it is necessary
to pay heed to the principles and norms of the Constitution.
4. The system of state institutions comprises various
state institutions. The variety of state institutions, their
legal status and powers are determined by a variety of
functions exercised by the state, particularities of managing
the general affairs of the society, organisational and
financial possibilities of the state, the content and
expediency of the policy implemented during a concrete period
of life of the society and development of the state,
international obligations of the state, as well as other
factors. The Seimas which enjoys the constitutional powers to
establish and liquidate state institutions, as well as to set
their legal status and powers, is bound by the Constitution.
It is worth emphasizing that the notion "state
institutions" is employed in the Constitution (Article 8,
Paragraph 1 of Article 29, Paragraph 1 of Article 61, Item 5 of
Article 67, and Paragraph 1 of Article 104 of the
Constitution). The Constitution also names the "institutions of
control" (Paragraph 3 of Article 73 of the Constitution), a
"special institution of judges provided for by law", which
advises the President of the Republic concerning the
appointment of judges, as well as their promotion,
transference, or dismissal from office (Paragraph 5 of Article
112 of the Constitution), the "institutions of State power and
administration" (Paragraph 1 of Article 114 of the
Constitution), the "self-government institutions" (Paragraph 3
of Article 119 of the Constitution). The notion "institution"
in the Constitution has also a broader meaning, it constitutes
also the name of non-governmental institutions in regard to
which particular restrictions, similar to those expressis
verbis established in regard to the state and/or its
institutions (Paragraph 2 of Article 44 and Paragraph 4 of
Article 89 of the Constitution), are established in the
Constitution.
When systematically construing the above mentioned
formulas of the Constitution it is obvious that the notion
"state institutions" is of general type and it comprises
various state institutions through which the state exercises
its functions. It was already mentioned that the state
institutions comprise a system. This system of state
institutions is consolidated in legal acts of diverse legal
power. Some state institutions are expressis verbis specified
in the Constitution. Other state institutions, according to the
Constitution, are to be specified by the law. A need to
establish any other state institutions originates from the
necessity to implement state governance, to administer affairs
of the state, to ensure the performance of various state
functions-the state institutions must be organised in order to
perform such functions although their establishment is not
explicitly provided for in the Constitution.
Various state institutions are expressis verbis specified
in the Constitution: the Seimas; the President of the Republic;
the Government; the Constitutional Court; the Supreme Court,
the Court of Appeal, regional and local courts; the Seimas
controllers; the State Control; the Bank of Lithuania, the
State Defence Council; the Chief of the Army; the Office of the
Prosecutor General; the Central Electoral Commission. Some
state institutions are consolidated in the Constitution without
specifying their exact names: ministries, security service; a
special commission of judges which advises the President of the
Republic concerning the appointment of judges, as well as their
promotion, transference, or dismissal from office; territorial
prosecutor's offices; representatives of the Government, who
supervise whether municipalities follow the Constitution and
the laws, and whether they execute Government decisions. The
institutions which may be organised by the laws adopted by the
Seimas are also provided for by the Constitution: institutions
of control; governmental institutions; specialised courts for
hearing cases of administrative, labour, family cases and cases
of other categories, are provided for in the Constitution as
well.
4.1. Some State institutions are treated in the
Constitution as state institutions which execute state power.
They are specified in Paragraph 1 of Article 5 of the
Constitution, in which it is established that in Lithuania, the
Seimas, the President of the Republic and the Government, and
the Judiciary, execute state power. Relations between the
Seimas (executing the legislative power), the President of the
Republic and the Government (institutions of the executive
power), and the Judiciary (executing the judicial power) are
grounded on the constitutional principle of separation of
powers.
4.1.1. The Seimas, the representation of the Nation,
executes the legislative power, and it is the only legislative
institution in Lithuania. It is directly provided for in the
Constitution that the Seimas has powers to establish certain
state institutions by the law. According to Item 5 of Article
67 of the Constitution, the Seimas establishes state
institutions provided for by law, and appoints and dismisses
their heads. When construing the legal regulation established
in Article 67 of the Constitution, the Constitutional Court has
held 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 (Constitutional Court
ruling of 24 January 2003).
4.1.2. The bases of the system of institutions of the
executive power, as well as powers of supreme institutions of
the executive power, are established in the Constitution. The
constitutional arrangement of the State of Lithuania has a
specific feature of the model of dualistic (double) executive
power: the executive power in Lithuania is exercised by the
President of the Republic, the Head of State, and the
Government.
The President of the Republic is a part of the executive
power (Constitutional Court rulings of 10 January 1998, 21
December 1999, and 30 December 2003). It is established in
Article 77 of the Constitution that the President of the
Republic is the Head of State (Paragraph 1); he represents the
State of Lithuania and performs everything that he is charged
with by the Constitution and laws (Paragraph 2). The President
of the Republic, implementing the powers vested in him, issues
acts-decrees (Article 85 of the Constitution). It is to be
emphasized that the Government executes inter alia the decrees
of the President of the Republic.
The Government is a collegial body of the executive power
(Constitutional Court ruling of 10 January 1998). It is
established in Article 91 of the Constitution that the
Government of the Republic of Lithuania consists of the Prime
Minister and Ministers; according to Paragraph 1 of Article 98
of the Constitution a Minister inter alia heads the ministry.
According to Item 3 of Article 94 of the Constitution, the
Government coordinates the activities of the ministries and
other establishments of the Government. The Constitution
specifies only one position of a minister-the Minister of
National Defence (Paragraph 1 of Article 140 of the
Constitution); therefore, according to the Constitution, the
Ministry of National Defence may not be absent in Lithuania.
When construing the legal regulation established in Item 3 of
Article 94 of the Constitution, the Constitutional Court in its
ruling of 23 November 1999 held that it is not revealed in the
Constitution what establishments are considered "establishments
of the Government", moreover, it is not specified what is the
legal status of the above mentioned Government establishments.
It is the legislator enjoying the discretion in this area
(limited by the Constitution), who has to establish this. On
the other hand, some Government institutions are specified in
the Constitution; for example, the institution of the
representative of the Government, who enjoys the power to
supervise whether municipalities follow the Constitution and
the laws, and whether they implement the Government decisions,
is consolidated in Paragraphs 2 and 3 of Article 123 of the
Constitution. In this context it is also worth mentioning that
Paragraph 1 of Article 123 of the Constitution provides that in
higher level administrative units the administration is
organised by the Government in accordance with the procedure
established by law; thus, the legislator has a duty not only to
establish higher level administrative bodies, but also to
provide for the Government institutions, through which the
Government would organise the administration at the
administrative units of higher level as well.
It is to be mentioned that the powers of the President of
the Republic and the Government, as the two branches of
dualistic (double) executive power, are autonomous and
independent in regard to each other. On the other hand, the
Constitution expressis verbis specifies the powers of the
President of the Republic and the Government which are to be
jointly implemented by the President of the Republic and the
Government. For example, Article 85 of the Constitutions inter
alia provides: "To be valid, the decrees of the President of
the Republic, specified in Items 3, 15, 17, and 21 of Article
84 of the Constitution, must be signed by the Prime Minister or
an appropriate Minister." According to Item 1 of Article 84 of
the Constitution, the President of the Republic inter alia
together with the Government conducts foreign policy. It is
worth noticing that, while paying heed to the Constitution, a
law may provide also for such legal regulation, pursuant to
which certain state institutions would be established under the
President of the Republic, the Head of State.
4.1.3. The judicial power is executed by courts. In the
Republic of Lithuania administration of justice is within the
competence of the judicial power.
It is established in Paragraph 1 of Article 102 of the
Constitution that the Constitutional Court decides whether the
laws and other acts of the Seimas are not in conflict with the
Constitution and whether acts of the President of the Republic
and the Government are not in conflict with the Constitution
and laws. The Constitutional Court ensures the supremacy of the
Constitution in the legal system and administers constitutional
justice.
It is entrenched in Paragraph 1 of Article 111 of the
Constitution that the courts of the Republic of Lithuania are
the Supreme Court of Lithuania, the Court of Appeal of
Lithuania, regional and local courts. These courts comprise the
system of courts of general jurisdiction.
In Paragraph 2 of Article 111 of the Constitution it is
established that for the consideration of administrative,
labour, family and other categories of cases, specialised
courts may be established.
In its rulings the Constitutional Court has stressed more
than once the independence of the judicial power from the
legislative and the executive powers, as well as
all-sufficiency of the judicial power. For example, it was held
in the Constitutional Court ruling of 21 December 1999 that
all-sufficiency and independency of the judicial power implies
its self-regulation and self-government, which comprises also
both the organisation of work of courts and activity of
professional corps of judges; that when ensuring the
independency of a judge and courts it is especially important
to clearly delimit the activity of courts from the executive
power; that activity of courts is not and may not be considered
the area of governance commissioned to any institution of the
executive power; that it is only an independent institutional
system of courts which may guarantee organisational
independence and, by the same, procedural independence of the
judge; that administration of courts should be organised so
that it does not violate a true independency of judges. These
constitutional imperatives determine that the legal regulation,
according to which particular state institutions ensuring
independent administration of courts are organised under the
judicial power, may be and must be established by the law.
It is established in Paragraph 5 of Article 112 of the
Constitution that a special institution of judges advises the
President of the Republic concerning the appointment of judges,
as well as their promotion, transference, or dismissal from
office. When construing this provision of Paragraph 5 of
Article 112 of the Constitution, the Constitutional Court held
in its ruling of 21 December 1999: "the special institution of
judges provided for in Part 5 of Article 112 of the
Constitution is to be interpreted as an important element of
self-government of the Judiciary which is an independent state
power", it is "counter-balance to the President of the
Republic, who is a subject of the executive, in the area of the
formation of the corps of judges".
4.2. Other state institutions, which are attributed to
neither the legislative, the executive, nor the judicial power,
as per Paragraph 1 of Article 5 of the Constitution, are
specified in the Constitution as well.
For example, according to the Constitution such
institutions and/or officials are Seimas controllers (Paragraph
1 of Article 73 of the Constitution), the Office of the
Prosecutor General and territorial prosecutor's offices
(Article 118 of the Constitution), State Control (Chapter XII),
the Bank of Lithuania (Articles 125 and 126 of the
Constitution), the Security Service (Item 14 of Article 84 of
the Constitution), the Chief of the Army (Item 14 of Article
84, Paragraphs 1 and 3 of Article 140 of the Constitution), the
Central Electoral Commission (Item 13 of Article 67 of the
Constitution).
4.3. It is established in Item 5 of Article 67 of the
Constitution that the Seimas establishes state institutions
provided for by law and appoints their heads; it is established
in Paragraph 1 of Article 94 that the Government administers
the affairs of the country; it is established in Paragraph 1 of
Article 123 that in higher level administrative units, the
administration is organised by the Government in accordance
with the procedure established by law.
Therefore the Seimas, and, according to the laws, the
Government enjoys powers to establish also state institutions,
which are not specified expressis verbis in the Constitution,
but a need to establish which originates from the necessity to
implement the state administration, manage the affairs of the
country, ensure the execution of various state functions.
5. The Constitution distinguishes two systems of public
power: state administration and local self-government. Under
the Constitution, local self-government is self-regulation and
self-action of the communities of the administrative units of
state territory, in accordance with the competence defined by
the Constitution and laws, which are provided for by law (i.e.
territorial or local communities), and which are composed of
permanent residents of these units (citizens of the Republic of
Lithuania and other permanent residents) (Constitutional Court
ruling of 24 December 2002). The Constitution determines local
self-government as a local public administration system
operating on the basis of self-action principles, which is not
directly subordinate to state power institutions
(Constitutional Court rulings of 18 February 1998 and 24
December 2002). The Constitution names communities of state
administrative territorial units (territorial communities) as
municipalities (or local municipalities). However, due to the
fact that the right of self-government is inseparable from the
institutions through which the said right is implemented and/or
from the organisation and activities of the institutions which
are accountable to them, it is not coincidence that the
Constitution employs the notion of "municipality" not only in
the sense of the territorial community of an administrative
unit but also in the sense of local self-government
institutions and/or the institutions which are accountable to
them (Constitutional Court ruling of 24 December 2002).
Local self-government is the power of territorial
communities of administrative units that are provided for by
law, which is formed and functions on other constitutional
grounds than state power (Constitutional Court ruling of 24
December 2002). The Constitution does not identify
self-government with state administration (Constitutional Court
rulings of 14 January 2002 and 24 December 2002). However, the
fact that the Constitution does not identify local
self-government with state administration does not mean that
there is no interaction between state administration and local
self-government; state administration and local
self-government, as two systems of implementation of public
power, are related, still, each of them implements the
functions which are characteristic of it only (Constitutional
Court ruling of 24 December 2002). The interests of
municipalities and the state are coordinated. The principle of
coordination of the interests of municipalities and the state
manifests itself not only in the support of municipalities by
the state in various ways and forms or in the supervision by
the state of the activities of municipalities in the forms
prescribed by law, but also in the coordination of common
actions when important social objectives are sought
(Constitutional Court rulings of 18 February 1998 and 24
December 2002).
It is established in Paragraph 2 of Article 120 of the
Constitution that municipalities act freely and independently
within their competence established by the Constitution and
laws. The independence of municipalities and freedom of their
activities within the competence limited by the Constitution
and laws are constitutional principles (Constitutional Court
ruling of 24 December 2002). The provision of the Constitution
that municipalities shall act freely and independently within
their competence, which shall be established by the
Constitution and laws, is to be assessed as the guarantee of
the participation of these communities in the governance of
these territories (Constitutional Court rulings of 28 June 2001
and 24 December 2002). By the same it is worth mentioning that
the provision of Paragraph 2 of Article 120 of the Constitution
that municipalities shall act freely and independently may not
be kept separate from the provision established in the same
paragraph of the same article that the freedom and independence
of municipalities are bound by the competence established by
the Constitution and laws (Constitutional Court rulings of 13
June 2000 and 24 December 2002).
Under the Constitution, it is not permitted to establish
any legal regulation whereby the opportunity for municipalities
to realise their competence directly established in the
Constitution would be denied. In case the Constitution or laws
attribute certain functions to municipalities, then
municipalities discharge these functions to the extent that
they are attributed such functions. It means that a certain
part of the competence of municipalities must be implemented
directly, that the implementation of decisions adopted by
municipal councils within the limits of their competence must
not be bound by decisions (permissions, consents, etc.) of
certain state institutions or officials. However, it needs to
be emphasised that even the functions which exclusively belong
to municipalities are regulated by laws. Not a single one of
these functions mean that in a respective area municipalities
are absolutely independent (Constitutional Court ruling of 24
December 2002).
The constitutional imperative of social harmony, the
entrenched in the Constitution striving for a civil society and
justice, the unitary type of the State of Lithuania, other
constitutional imperatives imply that the public interest of
the municipality-the territorial community-may not be opposed
to the public interest of the entire community of the state,
the civil Nation, a part of which is the territorial community
itself. Due to this reason, in addition to the functions which
belong exclusively to municipalities, they may be commissioned
to discharge certain state functions; thus, a more efficient
connection between state power and citizens as well as
democracy of administration are ensured; under the
Constitution, such state functions must be transferred to
municipalities by law (Constitutional Court ruling of 24
December 2002).
Thus, while acting according to the competence defined by
the Constitutions and laws, while exercising public
administration and/or providing pubic service, the
municipalities (their institutions) ensure the public interest
not only of the territorial community, but the public interest
of the entire community of the state-the civil Nation, which is
ensured, according to their competence, by state institutions
as well.
It is established in Paragraph 1 of Article 121 of the
Constitution that municipalities draft and confirm their own
budget. This provision of the Constitution is linked with the
provision of Paragraph 1 of Article 127 of the Constitution
that the budgetary system of the Republic of Lithuania consists
of the independent State Budget of the Republic of Lithuania as
well as the independent municipal budgets. Thus, according to
the Constitution the budgetary system of Lithuania is unified,
the municipal budgets are constituent part thereof, their
independency may be construed only upon taking account of the
unity of the budgetary system of Lithuania which is
consolidated in the Constitution.
The independence of the activities of municipalities,
which is entrenched in the Constitution, and which is within
the limits of the competence defined in the Constitution and
laws, implies that if municipalities are transferred state
functions by laws, or if they are given duties by laws or other
legal acts, funds must be provided for the implementation of
these functions (duties), also, if, before the end of a budget
year, municipalities are transferred additional state functions
(are given duties), for this purpose funds must be allocated as
well. Under the Constitution, municipalities must execute laws,
thus, also the laws whereby the municipalities are obligated to
exercise the functions transferred to them by the state.
Municipalities would be unable to exercise such duties unless
their implementation were not guaranteed by financial means.
The funds for the implementation of the functions transferred
by the state to municipalities must be provided for in the law
on the state budget. The independence of activities of
municipalities within the limits of the competence established
by the Constitution and laws and the support of the state for
municipalities, coordination of the interests of municipalities
and those of the state, which are entrenched in the
Constitution, imply that funds (municipal revenues and their
sources) must be provided for in the state budget, necessary
for the ensuring of all-sufficient functioning of
self-government and for the implementation of functions of
municipalities (Constitutional Court rulings of 14 January 2002
and 24 December 2002).
The right of self-government is implemented through
self-government institutions-municipal councils (Paragraph 1 of
Article 119 of the Constitution). It is worth noticing that no
other self-government institutions, save the municipal
councils, are specified in the Constitution; the notion
"self-government institutions" expresses the constitutional
purpose of corresponding institutions of territorial
communities of administrative units: they are institutions
through which the right of self-government of respective
communities is implemented (Constitutional Court ruling of 24
December 2002).
The Constitutional Court has held that, under the
Constitution, members of municipal councils may not be unequal
in their legal status. The Constitution consolidates the
principle of prohibition of a double mandate. The same persons
may not discharge the functions in the implementation of state
power and, at the same time, be members of municipal councils,
through which the right of self-government is implemented;
members of the Seimas, the President of the Republic, members
of the Government, and judges may not be members of municipal
councils. The state officials who, according to the
Constitution and laws, enjoy the powers to control or supervise
the activities of municipal councils, i.e. the state officials
(servants and other persons irrespective of how they are
referred to in laws) who, under the Constitution and laws,
enjoy the powers to adopt the decisions, on which depend the
adoption and implementation of decisions of municipal councils
within their competence defined in the Constitution and laws,
may not be members of municipal councils, either. If it is
established in laws that heads and officials of municipal
establishments and enterprises are accountable for the activity
of their own or of respective establishments and enterprises to
municipal councils, they may not, at the same time, be members
of such municipal councils. While deciding whether a certain
state official is to be attributed to the state officials who
have the right to adopt decisions upon which the adoption and
implementation of decisions of municipal councils within their
competence defined in the Constitution and laws would be
dependent, and who, due to this, cannot be municipal council
members at the same time, one must assess in every particular
case the content of powers established to them in the
Constitution and laws. In cases when there occurs a legal
situation when any above-mentioned person (who may not be a
member of municipal council at the same time) is elected a
member of a municipal council, he, before the newly elected
municipal council convenes to the first sitting, must decide
whether to remain in his previous office or to be a member of
the municipal council, i.e. before the newly elected municipal
council convenes to the first meeting, the person must,
according to the procedure established by laws, declare his
decision either to remain in office or to be a member of the
municipal council, also that before the newly elected municipal
council convenes to the first sitting, the question of the
legal status of this person must be decided: if the person has
decided to be a member of the municipal council, then, before
the newly elected municipal council convenes to the first
sitting, it must be stated, under the procedure established by
laws, that he has lost his office which was incompatible with
the office of a member of the municipal council, but if the
person has decided to remain in office and not to be a member
of the municipal council then, before the newly elected
municipal council convenes to the first sitting, it must be
stated, under the procedure established by laws, that he has
lost the mandate of a member of the municipal council. The law
must establish the legal regulation, according to which the
said question of the legal status of the person is decided
before the newly elected municipal council convenes to the
first sitting (Constitutional Court rulings of 24 December
2002, 30 May 2003 and resolutions of 11 February 2004 and 13
February 2004).
The self-government institutions-the municipal
councils-establish executive bodies accountable to them
(Paragraph 4 of Article 119 of the Constitution). The principle
of supremacy of municipal councils in regard to executive
bodies, which are accountable to them, is entrenched in the
Constitution. In its ruling of 24 December 2002 the
Constitutional Court held that the right of self-government is
inseparable from the institutions through which the said right
is implemented and/or from the organisation and activities of
the institutions which are accountable to them, that municipal
councils as self-government institutions are directly provided
for in the Constitution, that no other self-government
institutions are specified in the Constitution, and that the
notion "self-government institutions" expresses the
constitutional purpose of corresponding institutions of
territorial communities of administrative units: they are
institutions through which the right of self-government of
respective communities is implemented.
In its ruling of 24 December 2002 the Constitutional Court
also held that, under the Constitution the decisions adopted by
municipal councils are inseparable from the implementation
thereof; it is established in Paragraph 4 of Article 119 of the
Constitution that for the direct implementation of the laws of
the Republic of Lithuania, the decisions of the Government and
the municipal council, the municipal council establishes
executive bodies accountable to it, thus it is the
constitutional duty of municipal councils to establish the
executive bodies, and they are inseparable part of the
self-government mechanism. Still, the executive bodies which
are accountable to municipal councils may not be comprised from
members of the municipal councils that establish them.
The Constitution does not establish any type of executive
bodies (collegial, single-person bodies), which are accountable
to municipal councils, nor the procedure of their formation,
their names, or interrelations; their functions and competence
are established only in general terms. The establishment, by
law, of the functions and competence of the executive bodies
accountable to municipal councils is left to be done by the
Seimas. When regulating the formation, functions and competence
of the executive bodies accountable to municipal councils by
laws, one must pay heed to the principles of local
self-government, which are established in the Constitution: the
representative democracy, accountability of executive bodies to
the representation, the supremacy of municipal councils in
respect to the executive bodies which are accountable to them,
etc. The legislator enjoys the discretion to establish by law
as to the procedure, whether by election or in other fashion,
the said executive bodies are formed, also, which of the said
bodies are collegial and which are single-person, also, the
type of their interrelations. The legislator also enjoys the
discretion to establish by law the structure of collegial
executive bodies and the number of their members, or to leave
it, by law, to be done by municipal councils. The executive
bodies accountable to municipal councils must be formed for the
term of office of the municipal council. The executive bodies
indicated in Paragraph 4 of Article 119 of the Constitution are
the institutions which are established for the direct
implementation of the laws, the decisions of the Government and
of the municipal council, they are not internal structural
units (sub-units) of municipal councils, which have to ensure
the work of the municipal council itself. The municipal
councils have the constitutional competence to control the said
executive bodies, therefore, the said executive bodies may not
replace municipal councils, or to bring municipal councils
under their control, or to dictate them, the powers of the
executive bodies may not be dominant in respect to the powers
of municipal councils, it is not permitted to establish the
legal regulation whereby the executive bodies accountable to
municipal councils would be equated to the municipal councils
which have established them, let alone the legal regulation
whereby the powers of the executive bodies established by and
accountable to municipal councils would restrict the powers of
the latter, or under which municipal councils would lose an
opportunity to control the executive bodies established by and
accountable to them (Constitutional Court ruling of 24 December
2002).
The constitution provides for two types of municipal
institutions: municipal councils (representative institutions)
and the executive bodies accountable to them (executive
institutions). In the cases established in the Constitution and
laws, authoritative empowerments are granted to the municipal
representative and executive institutions. Such municipal
institutions are institutions of municipal power and
institutions of public administration. As decisions adopted by
municipal councils are inseparable from the execution of these
decisions, then the municipal representative institutions as
well as the municipal executive institutions, both of which are
provided for in the Constitution, according to their competence
are responsible for the implementation of the right of
self-government and for the direct implementation of the laws,
the decisions of the Government and the municipal council
(Constitutional Court ruling of 24 December 2002).
Municipal councils, while implementing the right of
self-government guaranteed by the Constitution, may also
establish other municipal institutions and other municipal
establishments which have authoritative empowerments; the
notion "municipal institutions" means belonging of respective
institutions to a certain municipality. Municipal institutions
are established so that the interests of the municipality would
be realised, laws and decisions of the Government and the
municipal council would be directly implemented. Thus,
municipal councils, as well as the executive bodies accountable
to them, and other institutions established by municipal
councils, are to be regarded as "municipal institutions"
(Constitutional Court ruling of 24 December 2002).
6. State functions as an organisation of the entire
society, which has to act in the interests of the entire
community in a way ensuring the social harmony, are linked to
each other, comprise a single system and may not be confronted
to each other. Therefore, state institutions through which the
said functions are implemented may not be confronted to each
other as well.
It is also worth noticing that state institutions may not
be confronted also to other (non-state) institutions, which
are, according to laws and while paying heed to the
Constitution, commissioned to perform (entrusted with
performing) particular state functions or which participate in
exercising state functions in particular forms and manner
defined in the laws, i.e. they perform public administration
and/or provide public services. As they are the institutions
which perform public administration and/or provide public
services and, thus, guaranteeing the public interest, they
comprise a single system. Within the context of the
constitutional justice case at issue it is worth noting that
both state and municipal institutions, the two systems of
public power which are established in the Constitution and
which, each of them, as it was already mentioned, perform the
functions characteristic of it, but which still are related to
each other, belong to this system. According to the
Constitution, one must establish such a legal regulation, which
would ensure systemic correlations between and interaction of
the institutions performing public administration and/or
providing public services and, thus, guaranteeing the public
interest, comprising inter alia the rational proportion of
their competence, efficiency, professional skills,
transferability of knowledge, skills and experience of persons
employed in the said institutions, as well as continuity of
such an activity while performing state functions and
guaranteeing the public interest.
7. The correlations of state institutions, as well as
interaction between state institutions and municipal
institutions, do not deny their specific characteristics. The
content of each state function and the environment of its
implementation implies that the state institutions which
perform these functions may not be different in their status
and type of activity.
Some state functions are performed, first of all (or in
majority of cases), through state (and municipal) civil
institutions, the others through military and/or paramilitary
state institutions. In its ruling of 24 December 2002, the
Constitutional Court held that under the Constitution military,
paramilitary and security services are separated from the civil
service. The differentiated concept of state civil institutions
as well as state military and paramilitary institutions is
consolidated in the Constitution. It provides the legal
prerequisites for differentiated regulation of relations,
linked with the activity of state civil institutions as well as
state military and paramilitary institutions, and for
establishing the legal status of persons employed at state
civil and military as well as paramilitary institutions which
would have certain specific characteristics.
It is worth noticing in this context that under Article
140 of the Constitution it is the State Defence Council
consisting of the President of the Republic, the Prime
Minister, the President of the Seimas, the Minister of National
Defence, and the Chief of the Army, who considers and
coordinates the main issues of the defence of the state
(Paragraph 1); it is the President of the Republic who is the
Supreme Commander of the Armed Forces of the state (Paragraph
2); it is the Government, the Minister of National Defence, and
the Chief of the Army who are responsible to the Seimas for the
administration and command of the Armed Forces of the state
(Paragraph 3); the Minister of National Defence may not be a
serviceman who has not yet retired to the reserve (Paragraph
3). It is also worth noticing that under Article 141 of the
Constitution persons performing actual military service or
alternative service, as well as officials of the national
defence system, of the police and the Interior,
non-commissioned officials, re-enlistees and other paid
officials of paramilitary and security services who have not
retired to the reserve may not be members of the Seimas and of
municipal councils, they may not hold elected or appointed
office in state civil service.
In its ruling of 29 May 1996, the Constitutional Court
held that "the relations of strict subordination and those of
other regulations are of great importance to soldiers in actual
military service, officers of the national defence, the
internal service, non-commissioned officers, officers of
security services and other officials mentioned in Article 141
of the Constitution", that "there may appear an internal
collision between the necessity to carry out the functions of
state power and perform the requirement of the regulations in
the activity of these and other persons mentioned in Article
141 of the Constitution", and that "this may be one reason why
the functioning of the democratic institutions could be
deranged", thus "there are no preconditions to assert that a
soldier, the officer of police, the internal service or any
other person indicated in Article 141 of the Constitution may
be a minister or hold other positions pointed out in this
article without having retired from active service".
It stems from the constitutional requirement that state
power in Lithuania should be organised in a democratic way and
that a democratic political regime must be in place in the
country, from the constitutional imperative of an open, just
and harmonious civil society, from the constitutional principle
of responsible governance, and from other provisions of the
Constitution that military and paramilitary state institutions
may not have priority over state civil institutions, that
decisions of military and paramilitary institutions and their
officials must be based on decisions of state civil
institutions, that military state institutions must be
accountable to and controlled by state civil institutions.
Democratic civil control over state military and paramilitary
institutions (including the armed forces) is a necessary
prerequisite of civil democratic governance, and, thus, of a
state under the rule of law.
8. State and municipal institutions perform public
administration and/or provide public services through the
persons employed in these institutions who adopt respective
decisions. In the context of the constitutional justice case at
issue it is worth noticing that a diverse status of the persons
employed in the institutions through which state functions are
exercised is consolidated in the Constitution.
8.1. Some persons-members of the Seimas, the President of
the Republic, members of the Government and judges-perform the
functions while implementing state power; they perform these
functions independently; to this purpose, respective powers,
which may be exercised only by the said persons and nobody
else, are established to them in the Constitution and laws.
Members of municipal councils perform the functions while
implementing the self-government right of territorial
communities, under the powers established to them by laws
members of municipal councils implement the functions of
self-government independently. The fact that other persons
employed in the institutions through which state functions are
performed assist the said persons, provide them support in
another way or provide them services needed in their activity,
does not mean that these other persons implement any functions
while implementing state power.
It was mentioned that the institutions implementing state
power are listed in Paragraph 1 of Article 5 of the
Constitution-these are the Seimas, the President of the
Republic and the Government, and the Court. The Constitutional
Court has held in its rulings that in case state officials
perform their duties according to the Constitution and law, and
when they act in the interest of the Nation and the State of
Lithuania they must be protected from any pressure and
unreasonable interference in their activity, when fairly
exercising their duties, they must not suffer threat against
their person, their rights and freedoms (Constitutional Court
rulings of 25 May 2004 and 1 July 2004). In order that they
might be able to discharge the functions prescribed to them in
the Constitution in the implementation of state power, the
Constitution provides for a special legal status for the
President of the Republic, members of the Seimas, members of
the Government and judges, which, inter alia includes the
restrictions on work, remuneration and political activities,
also a special procedure of removal from office or revocation
of the mandate and/or immunities: inviolability of the person
and a special procedure of application of criminal and/or
administrative liability (Constitutional Court ruling of 24
December 2002). Under the Constitution, no other persons
employed in the institutions through which state functions are
exercised have the aforementioned immunities. On the other
hand, a special-constitutional-liability is established in the
Constitution for majority of the said state officials. The
state officials, who perform functions while exercising state
power, differ from all other persons employed at the
institutions, through which state functions are implemented, in
this regard, too.
8.2. Other persons employed at the institutions, through
which state functions are implemented, comprise a corps of
state servants. The state service is a professional activity of
these persons, related to guaranteeing of the public interest.
The notion "state service", employed in the Constitution, in
its content is identical to the notion "public service". The
concept of the state service entrenched in the Constitution is
inseparably linked with the purpose of the state as an
organisation of the entire society to ensure human rights and
freedoms and to guarantee the public interest. Professional
state servants adopt decisions while performing public
administration and/or providing public services (or participate
in drafting and executing these decisions, coordinating and/or
controlling the implementation thereof, etc.), however, they do
not exercise functions while implementing state power (like
members of the Seimas, the President of the Republic, members
of the Government and judges) and, under the Constitution, may
not enjoy such powers. Thus, the notion "state service"
employed in the Constitution does not include the office of a
member of the Seimas, the President of the Republic, the Prime
Minister or a Minister, and of a judge.
In this context it is to be held that the notion "state
service" does not comprise members of municipal councils, i.e.
local power institutions, either.
8.3. Professional activity of state servants is to be
remunerated from the state (municipal) budget.
8.4. In this context it is worth mentioning that the
Constitution does not provide prerequisites for treating in
legal acts all persons, who are employed at state or municipal
institutions and whose activity is remunerated from the state
(municipal) budget, as state servants only on the basis of the
fact that they are employed at the aforementioned institutions
or that their activity is remunerated from the state
(municipal) budget. It is the persons employed at the state or
municipal institutions and who adopt decisions while exercising
public administration and/or providing public services (or
participate in drafting and executing such decisions,
coordinating and/or controlling the execution thereof, etc.)
who are to be considered state servants.
It should also be noted that under the Constitution the
activity, when persons participate in exercising state (or
municipal) functions while not being employed at state or
municipal institutions, is not to be considered the state
service, either.
Laws and other legal acts must establish such legal status
of state servants, which would be in line with the
constitutional concept of the state service as a
special-remunerated from state (municipal) budget-system of
professional activity when adopting decisions in the area of
exercising public administration and/or providing public
services (or participation in drafting and executing such
decisions, coordinating and/or controlling the execution
thereof, etc.), which inter alia implies internal mobility of
the state service as a system, transferability of personal
knowledge, skills and experience, and continuity of such an
activity while performing state functions and guaranteeing the
public interest as well.
9. It has been mentioned that all the legal acts (parts
thereof), the compliance of which with the Constitution and
laws is disputed by the petitioners, regulate the relations of
the state service and/or relations linked with the state
service in various aspects. Therefore, when deciding whether
the disputed legal acts (parts thereof) are not in conflict
with the Constitution and laws, it is necessary to reveal the
constitutional concept of the state service and those
requirements originating from the Constitution, which are to be
paid heed to by the legislator when he regulates the relations
of the state service and relations linked thereto.
In this context it is worth emphasizing that no single,
universally recognised concept of the state service exists in
the scientific literature on law, political sciences or public
administration. This concept differs in various states as well;
moreover, it is different in the same state during different
periods of development of the state or law. The jurisprudence
of various countries proves this as well. The reforms of the
state service and public administration which were carried out
in Lithuania reflect the dynamics of the concept of the state
service.
The constitutional norms and principles may not be
construed on the basis of acts adopted by the legislator or
other law-making subjects, as thus the supremacy of the
Constitution in the legal system would be denied
(Constitutional Court rulings of 12 July 2001 and 1 July 2004).
It needs to be noted that the constitutional concept of
the state service may be revealed only on the basis of the
provisions of the Constitution itself, their content and
systemic links between them. The constitutional concept of the
state service may not be construed according to the way the
state service relations are regulated by laws and substatutory
acts. It is the function of the constitutional jurisprudence
and the official constitutional doctrine formulated therein to
reveal the content of the constitutional concept of the state
service.
The legislator enjoys broad discretion to choose and
consolidate in laws a certain model of organisation of the
state service. However, it should be stressed that, while
regulating the relations of the state service, the legislator
is bound by the constitutional concept of the state service and
that he must pay heed to the norms and principles of the
Constitution. According to their competence, other law-making
subjects must pay heed to the constitutional concept of the
state service while regulating the relations of the state
service.
10. In the Constitution, the state service is mentioned
expressis verbis only in Paragraph 1 of Article 33 of the
Constitution, in which it is established that citizens have the
right to participate in the government of the state both
directly and through their democratically elected
representatives, as well as the right to enter into the state
service of the Republic of Lithuania under equal conditions,
and in Article 141 of the Constitution, in which it is
established that persons performing actual military service or
alternative service, as well as officers of the national
defence system, of the police and the Interior,
non-commissioned officers, re-enlistees and other paid
officials of paramilitary and security services who have not
retired to the reserve may not be members of the Seimas and of
municipal councils, and they may not hold elected or appointed
office in state civil service, and may not take part in the
activities of political parties and political organisations.
11. The state service is a professional activity of state
servants linked with guaranteeing of the public interest. The
fact that the purpose of the state service is to guarantee,
when state and municipal institutions exercise public
administration and provide public service, the public interest
rather than private interests of the employees engaged in this
activity, presupposes a special procedure of forming the state
servants as a corps, the specifics of their legal status, and
their special responsibility to the society for implementation
of functions commissioned to them as well.
The legal relations of the state service are legal
relations between a state servant and the state, which acts as
the employer of the said person. Still, despite similarities,
the legal relations of the state service are not identical to
labour relations, which arise between the employee, who is not
a state servant, and the employer (irrespective of whether the
relations arise in state institutions, municipal institutions,
or other enterprises, establishments, and organisations). Their
legal statuses are different.
12. It has been mentioned that all the provisions of the
Constitution are to be construed in the context of the
constitutional principle of a state under the rule of law, and
the enshrined in the Constitution concept of a state under the
rule of law, and that construction of all the provisions of the
Constitution in the context of the constitutional principle of
a state under the rule of law is an essential pre-requisite of
a comprehensive construction of the Constitution.
Thus, the constitutional concept of the state service,
which is mentioned inter alia in the above quoted Paragraph 1
of Article 33 of the Constitution, is to be revealed also while
paying heed to the entrenched in the Constitution principle of
a state under the rule of law-the universal constitutional
principle, upon which the entire Lithuanian system of law and
the Constitution of the Republic of Lithuania itself are based,
and wherein various values entrenched in, and protected and
defended by the Constitution are integrated.
13. The constitutional principle of a state under the rule
of law, the constitutional imperatives of justice and social
harmony, the striving for a civil society, the constitutional
principle of responsible governance, as well as the principles
consolidated in the Constitution, such as the principle that
the State of Lithuania is an independent democratic republic,
that the State of Lithuania is created by the Nation, that the
sovereignty belongs to the Nation, that the scope of powers is
limited by the Constitution, that state institutions serve the
people, and the recognition of the innate nature of human
rights and freedoms, as well as other constitutional
imperatives, imply various constitutional requirements to the
state service as a system, which comprises professional
activity of persons, employed at state or municipal
institutions, when adopting decisions in the course of
execution of public administration and/or providing public
services (or participating in drafting and executing such
decisions, coordinating and/or controlling the execution
thereof, etc.) and thus guaranteeing the public interest in the
whole state.
Since the constitutional concept of the state service as a
system, which comprises professional activity of persons,
employed at the state or municipal institutions, when adopting
decisions in the course of execution of public administration
and/or providing public services (or participating in drafting
and executing such decisions, coordinating and/or controlling
the execution thereof, etc.) and thus ensuring the public
interest in the whole state, implies a necessity to establish
such legal regulation, which would ensure systemic correlations
between and interaction of all above-mentioned institutions,
comprising inter alia transferability of knowledge, skills and
experience of persons employed in the said institutions, as
well as continuity of such an activity while performing state
functions and ensuring the public interest, the system of the
state service, consolidated in laws and other legal acts, may
not be, under the Constitution, of other than a uniform type.
Thus one of the elements of the constitutional concept of the
state service, and, by the same, one of the requirements which
must be observed when organising the state service and
regulating the relations of the state service is uniformity of
the system of the state service. Taking account of the variety
of state functions which are implemented through respective
institutions, the uniformity of the system of the state service
does not deny a possibility to regulate certain relations of
the state service in a differentiated manner.
The chosen model of the system of the state service, as
well as the bases of organisation and functioning, is to be
established by the law.
It is worth noticing that "municipal service" is not
separately mentioned in the Constitution. The constitutional
concept of the state service comprises the relations of service
not only at state institutions, but at municipal institutions
as well; in this ruling of the Constitutional Court it was held
that the notion "state service" employed in the Constitution is
identical to the notion "public service". A single system of
the state service is an necessary pre-requisite of the
effective interaction of state administration and local
self-government, the two systems of public power, and
non-confronting, harmonising the public interest of the entire
society of the state, the civil Nation, and the public interest
of territorial communities and municipalities.
It is also worth noting that only a single system of the
state service ensures its internal mobility, possibility, if
needed, to expediently arrange human and other resources, which
are necessary for the implementation of certain state functions
or solving other issues, which originate in the state.
The unity of the systems of the state service, comprising
service at both state and municipal institutions, is an
important condition of uninterrupted, continued functioning of
the system of the state service. The Constitutional Court has
held that under the Constitution, no legal situation may occur
where any institution exercising state power fails to function
(Constitutional Court ruling of 1 July 2004). The same can be
said about other state and municipal institutions through which
state functions are exercised, too. Thus, all the state and
municipal institutions must act continuously. It means that the
functioning of the state service as a system should be
continuous as well, so that one could constantly and
efficiently exercise public administration and provide public
service in the entire state, thus guaranteeing the public
interest.
It has been mentioned that the unity of the system of the
state service does not deny a possibility to regulate certain
relations of the state service in a differentiated manner. Such
differentiation is possible upon considering that, under the
Constitution, it is necessary to guarantee efficient exercise
of state functions and guarantee the public interest. A
differentiated legal regulation of the relations of the state
service is based on particularities of state (municipal)
institutions and functions performed by them, the place of the
said institutions in the system of all the institutions through
which state functions are performed, as well as on powers
established to them, the professional skills necessary to
respective state servants and other important factors.
For example, it has been mentioned that a differentiated
concept of state civil institutions as well as state military
and paramilitary institutions is entrenched in the
Constitution, and that this fact provides prerequisites for
differentiated regulation, by legal acts, of relations linked
with activity of state civil institutions as well as state
military and paramilitary institutions, and for establishment
of such legal status of the persons employed at state civil and
military as well as paramilitary institutions, which would have
certain particularities.
The relations of the state service may be regulated in a
differentiated manner also upon taking account of the fact
whether this service is a service at state or municipal
institutions, and whether respective state institutions, under
the Constitution, are attributed to the legislative, the
executive or the judicial power, or none of them. Various
criteria may be the basis of the differentiated regulation of
relations of the state service: state functions which are
exercised through a respective state (municipal) institution,
the competence of the institution, the scope of activity, the
size of the institution, the territory of activity, etc.
The basis of differentiation of legal regulation of
relations of the state service may also be the fact that the
state service as a system is organised on the basis of inter
alia the principles of hierarchy and accountability. The
establishment of a hierarchy or other classification, grouping
into categories, etc. of positions of state servants must be
unified and based on the same criteria; it is not allowed that
individual state institutions or individual branches of state
power establish each for itself a separate system of categories
(classification) of positions of state servants, which would
not be based on the criteria established by the law and common
to the entire state service. When establishing the said single
system, it is essential to pay heed to the principle of
separation of powers, which implies inter alia that all the
state powers-legislative, executive and judicial-are equal in
their state status. Concrete positions of state servants may be
assigned to a certain category (type) only according to this
uniform system, however, this must be done while paying heed to
particularities of each institution and each position,
respective functions performed and responsibility taken by
state servants, as well as other factors.
Still, it is to be stressed that, under the Constitution,
it is not permitted to create any such legal regulation
according to which the state service in certain state
(municipal) institutions (a certain link of the system of the
state service) would be eliminated from the general system of
the state service, or which would consolidate a privileged
status of state servants of certain institutions in regard to
state servants of analogous institutions or, vice versa, their
discrimination. For example, the Constitutional Court in its
ruling of 2 July 2002 held that "the relations of the
organisation of the national defence system and military
service have their particularities", that "taking account of
these particularities, 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 particularities 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".
14. Under the Constitution, the state service is service
to the State of Lithuania and the civil Nation, therefore the
state service should be loyal to the State of Lithuania and its
constitutional order. It must be organised so that only the
people who are loyal to the State of Lithuania and its
constitutional order adopt decisions while exercising public
administration and providing public service (or participate in
drafting and executing these decisions, coordinating and/or
controlling executing thereof, etc.) at state or municipal
institutions. The Constitution does not tolerate the situations
where any link of the system of the state service, any state or
municipal institution or individual state servants act contrary
to the interests of the State of Lithuania or violate the
constitutional order of the State of Lithuania.
It should be noted that the constitutional imperative of
loyalty of the state service to the State of Lithuania raises
special requirements as well. State servants not only must not
violate the Constitution and laws themselves, but also bear the
duty to take all the necessary positive actions when protecting
the constitutional order of the State of Lithuania. It is to be
noted in this context that it is established in Paragraph 2 of
Article 3 of the Constitution that the Nation and each citizen
has the right to resist anyone who encroaches upon the
independence, territorial integrity, and constitutional order
of the State of Lithuania by force; in Article 8 of the
Constitution it is established that seizure of state power or
of its institution by force shall be considered
anti-constitutional actions, which are unlawful and invalid; in
Paragraph 1 of Article 139 of the Constitution it is
established that the defence of the state of Lithuania against
a foreign armed attack is the right and duty of each citizen of
the Republic of Lithuania. In its ruling of 23 November 1999,
the Constitutional Court held: "the constitutional order of the
Republic of Lithuania is based on the priority of the rights
and freedoms of individuals and citizens as the ultimate value,
as well as on the principles establishing the sovereignty of
the People, independence and territorial integrity of the
state, democracy, republic as the form of state governance,
separation of state powers, their independence and balance,
local self-government, etc. Protection of the constitutional
order means that it is not permitted that the social, economic
and political relations established in the Constitution which
constitute the fundamentals of the life of individuals, society
and the state be encroached upon". It was also held in the said
ruling of the Constitutional Court: "the Constitution does not
ascribe the function of protection of the constitutional order
to a single institution of state power. This is a
constitutional obligation of all institutions of state power
(the Seimas, the President of the Republic, the Government, the
Judiciary) and other state establishments and organisations.
This obligation derives not only from particular laws but also
from the principle of the state under the rule of law
established in the Constitution and the requirement to adhere
to the Constitution, to enforce it, not to violate it and to
protect it. Of course, every state institution protects the
constitutional order only by means of the form of the activity
characteristic of it and only on the grounds of powers
attributed to it by the Constitution and the laws".
15. The state service must act in conformity only with the
Constitution and law. Every state or municipal institution
through which state functions are exercised, every state
servant must pay heed to the requirements of lawfulness. State
servants must not abuse the powers established for them and not
violate the requirements of legal acts. In its ruling of 30
June 2000, the Constitutional Court held that state
institutions and officials are obligated to protect and defend
human rights and freedoms; and it is especially important that
while exercising the functions commissioned to them they would
not themselves violate human rights and freedoms. Under the
Constitution, the legislator has a duty to regulate the
relations of the state service, and the system of the state
service should function so that not only the liability is
established for violations committed while in the state
service, but that the persons who committed violations while in
the state service would also in reality be brought to justice.
The Constitution guarantees a right to every citizen to
appeal against the decisions of state institutions or their
officials (Paragraph 2 of Article 33 of the Constitution). It
is the Seimas controllers who examine complaints of citizens
concerning the abuse of powers by, or bureaucratic
intransigence of, state and municipal officials (with the
exception of judges); they have the right to submit a motion
before a court that the guilty officials be dismissed from
office (Paragraph 1 of Article 73 of the Constitution). The
observance of the Constitution and the laws, as well as the
execution of the decisions of the Government by municipalities,
is supervised by representatives appointed by the Government
(Paragraph 2 of Article 123 of the Constitution). It is
established in Paragraph 1 of Article 134 of the Constitution
that state control supervises the lawfulness of the possession
and use of state-owned property and the execution of the State
Budget.
It is worth mentioning in this context that it is
established in Paragraph 2 of Article 30 of the Constitution
that it is the law that establishes the compensation for
material and moral damage inflicted on a person. When
construing the legal regulation established in Paragraph 2 of
Article 30 of the Constitution, the Constitutional Court held
that in this paragraph one "provides for a duty of the
legislator to pass a law or laws providing for compensation of
damage for a who suffered material or moral damage", that "the
laws must provide for factual protection of violated human
rights and freedoms", and "this protection must be coordinated
with protection of the other values entrenched in the
Constitution", as well as that "the Constitution guarantees the
right of an individual to compensation of material or moral
damage, including recovery of damage under judicial procedure"
(Constitutional Court ruling of 30 June 2000). In the
Constitutional Court ruling of 20 January 1997, it is held that
"the necessity to compensate material and moral damage
inflicted on a person is a constitutional principle", which
"must be considered in the lawmaking work", and that Paragraph
2 of Article 30 of the Constitution "clearly indicates the form
of legal act whereby compensation for material and moral damage
must be regulated"-this must be done by the law.
On the other hand, state servants must not suffer
unreasonable interference in their activity, and they must be
protected from any unlawful pressure or unlawful requirements
(including unlawful pressure by and unlawful requirements of
state or municipal politicians). State servants may not be
commissioned unlawful assignments or instructions, and state
servants may not carry out such assignments or instructions or
may not in any other way be forced to obey them.
16. The system of the state service must be organised and
must function strictly according to the constitutional
principles of separation of powers and restrictions of their
authority.
In its rulings the Constitutional Court has held more than
once that the principle of separation of state powers means
that the legislative, executive and judicial powers must be
separate, sufficiently independent, but also there must be a
balance among them; that every state institution is attributed
the competence which corresponds to its purpose; that the
content of the competence of the institution depends on the
place of the corresponding power in the system of powers, on
its relations with the other powers, on the place of the
institution among the other institutions of power and on the
relation of the powers of the said institution with the powers
of other institutions; that after the Constitution had directly
established the powers of a particular institution of state
power, no state institution may take over such powers from
another institution, nor transfer or waive them, and that such
powers may not be amended or restricted by the law.
While paying heed to the constitutional principle of
separation of powers, respective authority should be attributed
to every institution of state power (legislative, executive,
judicial), as a chain of the system of the state service. The
laws must consolidate such a model of organising the state
service, where every institution has a clearly defined
competence, and the disputes between them (or between state
servants) related to the competence, if any, are settled on the
basis of law, upon legal procedure.
The constitutional principle of separation of powers is
also inseparable from the provision of Paragraph 2 of Article 5
of the Constitution that the scope of powers is limited by the
Constitution, which is binding not only to the institutions of
state power specified in Paragraph 1 of Article 5 of the
Constitution, but also to other institutions which enjoy
authoritative empowerments, but are not attributed to either
the legislative, the executive, or the judicial power,
including the state servants employed at these institutions,
too. In this context it is to be noted that, as already held by
the Constitutional Court, if the legal regulation is
established so that not only powers of the institution of state
power pointed out in Paragraph 1 of Article 5 of the
Constitution are unreasonably expanded from the constitutional
standpoint, but also the powers of some other state
institution, one is also to hold that the provision of
Paragraph 2 of Article 5 of the Constitution that the scope of
power shall be limited by the Constitution is violated as well
(Constitutional Court rulings of 24 December 2002 and 13 May
2004).
17. It was already mentioned that the purpose of the state
service is to ensure the public interest. Thus the public
interest must dominate in relation to the private interest in
the state service. In the state service the conflict between
public and private interests must be avoided and no conditions
for appearance of such conflicts should be created. The
opportunities provided by the state service should not be used
for private benefit. When ensuring the public interest, it is
essential to avoid unreasonable and unlawful impact by the
interest groups, and, even more important, pressure on state
servants, who adopt decisions while exercising public
administration and providing public services (or participate in
drafting and executing these decisions, coordinating and/or
controlling the implementation thereof, etc.). In its ruling of
25 May 2004, the Constitutional Court held: "in order that the
citizens-the state community-could reasonably trust the state
officials, that it would be possible to ascertain that all the
state institutions and all the state officials follow the
Constitution as well as law and obey them, while those who do
not obey the Constitution and law would not hold the office for
which trust of the citizens-the state community-is needed, a
public democratic control over the activity of the state
officials comprising inter alia a possibility to remove from
office the state officials who violate the Constitution and
law, who bring their personal interests or the interests of the
group above the public interests, or who disgrace state
authority by their actions, is needed". It was held in the
Constitutional Court ruling of 1 July 2004: "According to the
Constitution, the legislator has a duty to establish by legal
acts such legal regulation which would ensure that state
officials, who perform their functions while exercising state
power, and all the persons, who make decisions important to the
society and the state, are able to properly execute their
authority, so that contraposition of public and private
interests would be avoided, that no legal conditions would be
created for state officials, who perform their functions while
exercising state power, and all the persons, who make decisions
important to the society and the state, to act in the private
interests of a group, instead of the interests of the Nation
and the State of Lithuania, and use their status for the
benefit of their own, their close relatives or other persons,
so that it might be possible to effectively control how state
officials, who perform their functions while exercising state
power, and all the persons, who make decisions important to the
society and the state, follow the said requirements, and that
the above-mentioned state officials and other persons be held
liable pursuant to the Constitution and law in case they do not
follow these requirements."
When protecting the state service from unreasonable and
unlawful impact by the interest groups (thus, political powers
as well), according to the Constitution, certain links of the
system of the state service must be depoliticised. According to
Article 141 of the Constitution, persons performing actual
military service or alternative service, as well as officers of
the national defence system, of the police and the Interior,
non-commissioned officers, re-enlistees and other paid
officials of paramilitary and security services who have not
retired to the reserve may not take part in the activities of
political parties and political organisations.
It stems from the Constitution that the state service as a
system of professional activity must be impartial, neutral in
regard to participants of political process, the system of the
state service must be organised and must function so that
continuity of ensuring the public interest is ensured upon the
changes of political power. Under the Constitution, the
opportunities provided by the state service may not be used for
political activity; the legislator has a duty to ensure this by
the law. State servants must not give any priorities for any
persons due to their political, moral, religious or other
attitudes, beliefs or activity, or their other status.
Otherwise, the constitutional principle of equality of all
persons which prohibits discrimination of persons and provision
of privileges to them would be deviated from.
18. The constitutional provision that state institutions
serve the people, the constitutional imperative of an open
society, and the constitutional concept of the state service
imply that the state service should be open and accessible to
the people whose affairs it manages. It has been mentioned that
the purpose of the state as an organisation of the entire
society, thus the purpose also of the state service, is to
ensure human rights and freedoms, and to guarantee the public
interest.
The work of the system of the state service and
institutions of power should be organised so that the people
who address state servants would not face any arbitrariness,
abuse of powers, bureaucratic intransigence, that their
requests would be examined and decided without delay. The
requirement of accessibility of the state service to the people
is to be related also to the harmony of the state service as a
system (thus, with the necessity to ensure the unity of the
system of the state service as well). It is not allowed that
the work of state and municipal institutions is organised so
that a person, who addresses a state or municipal institution
or a state servant with any issue, would be forced to
re-address with the same issue due to the fact that the
examination of the issue, despite that this application was
reasonable and was in conformity with all the requirements
established in legal acts (including the procedural
requirements), was not initiated after the first application.
In this context it is worth noticing that it is
established in Paragraph 1 of Article 73 of the Constitution
that Seimas controllers examine complaints of citizens
concerning the abuse of powers by, or bureaucratic
intransigence of, state and municipal officials (with the
exception of judges); they have the right to submit a motion
before a court that the guilty officials be dismissed from
office. It is established in Paragraph 1 of Article 30 of the
Constitution that the person whose constitutional rights or
freedoms are violated has the right to apply to court.
The constitutional imperative of openness of the state
service and its accessibility to people is to be linked also
with the provision of Article 14 of the Constitution, where the
status of the Lithuanian language as the state language is
entrenched. In its ruling of 21 October 1999, the
Constitutional Court held that the state language inter alia
integrates the civil Nation, ensures smooth functioning of
state and municipal institutions, it is an important guarantee
of the equality of rights of citizens as it permits all the
citizens to associate with state and municipal institutions
under the same conditions, and to implement their rights and
legitimate interests. It is also held in the above-mentioned
ruling of the Constitutional Court that the constitutional
establishment of the status of the state language also means
that the legislator must establish by the law that the use of
this language is ensured in public life, and, in addition, he
must provide for the means of protection of the state language.
According to the Constitution, the Lithuanian language must be
used in all state and municipal institutions and in all
establishments, enterprises and organisations which are on the
territory of Lithuania; laws and other legal acts must be
published in the state language; office-work, accounting,
accountabilities, and financial papers must be in Lithuanian;
state and municipal institutions, establishments, enterprises
and organisations correspond with each other in the state
language. The nationality of an individual (including the
relations with the officials and state servants of the state or
municipal institution) may not serve as the basis for him to
demand that the rules arising from the status of the state
language be not applied as far as he is concerned; otherwise,
the constitutional principle of equality of all persons before
the law, the court, state institutions and officials would be
violated. The status of the Lithuanian language as the state
language implies the necessity to organise the system of the
state service and ensure that it functions so that only the
persons who know the state language well be admitted to the
state service (respective office); good knowledge of the state
language is a necessary precondition in order to ensure that
these persons, while acting as state servants, will be able to
fulfil their duties, that the persons who in writing or orally
address them as state servants will face no difficulties in
communicating with them, and that normal communication between
various state and municipal institutions will be ensured, that
they will face no other difficulties when fulfilling their
official duties or tasks related to the state service.
19. The constitutional provision that state institutions
serve the people, the constitutional imperative of an open
society, the constitutional concept of the state service, the
openness of the state service implies a requirement for
publicity of the state service as a system as well. The state
service is service to the State of Lithuania and the Lithuanian
Nation, therefore society must be informed about the work of
state institutions. The reasoning of decisions of state and
municipal institutions, as well as state servants, must be
clear and transparent, and the information about the reasoning
of these decisions must be available.
The requirement of publicity of the state service is also
linked with the entrenched in the Constitution right of
citizens to criticise the work of state institutions or their
officials, and to appeal against their decisions, and with the
prohibition of persecution for criticism (Paragraph 2 of
Article 33 of the Constitution), as well as with the
prohibition of censorship of mass information (Paragraph 1 of
article 44 of the Constitution) and the established (inter
alia) prohibition to monopolise mass media (Paragraph 2 of
article 44 of the Constitution). The Constitutional Court has
noted that in a democratic state under the rule of law the
public performance of duties by state officials and servants is
one of essential principles protecting from their arbitrariness
or abuse (Constitutional Court ruling of 8 May 2000).
In this context it is worth mentioning that according to
Paragraph 2 of Article 25 of the Constitution a person may not
be hindered from inter alia seeking and obtaining information,
and according to Paragraph 3 of this article freedom to obtain
information may not be restricted other than by law, if it is
necessary to protect the health, honour and dignity, private
life, and morals of a human being, or to defend constitutional
order. It is established in Paragraph 5 of Article 25 of the
Constitution that the citizen has the right to obtain any
available information which concerns him from state
institutions in the manner established by law.
On the other hand, it is to be noted that the requirement
of publicity of state service may not be interpreted so that
it, purportedly, means that information upon request of various
persons must be provided in a compulsory manner even in cases
where the rights of a person or other constitutional values
would be violated due to such disclosure of information. The
requirement of publicity of the state service is to be linked
also with the requirements raised to state servants for loyalty
to the State of Lithuania or the requirement of legitimacy of
activity of the state service: making certain information,
which constitutes a secret protected by the Constitution and
laws, public or its disclosure in any other way in an illegal
manner must lead to liability as provided for by laws.
20. The necessity to perform public administration and to
provide public services constantly and efficiently while
ensuring the public interest, the concept of the state service
as a professional activity and the requirement of efficiency of
the state service result in the requirement for qualification.
The state service must be qualified, it must be able to fulfil
the tasks commissioned to it. This fact implies quite high
(higher than the requirements for other employees) requirements
of qualification and professional skills for state servants,
especially the officials (first of all for those, who make
single-person decisions), as well as the necessity to ensure
for these persons, while in service, an opportunity to
constantly improve their professional competence.
21. The efficiency of functioning of the system of the
state service depends upon material and financial stability as
well. The state service is supported by the state (municipal)
budget. It has been mentioned that the professional activity of
state servants is also to be remunerated from the state
(municipal) budget. For this reason, the funding from the
budget should be provided for for all the state tasks,
otherwise, the state service would become inefficient and this
would reduce the trust of society and the citizens in the
system of the state service, degrade or even ruin its
authority, and finally it would diminish the trust of the
people in the state itself and its law.
Allocation of funds for the state service, its material
supply and use of the allocated funds are to be linked with the
requirements of legitimacy and publicity raised for the state
service, with the necessity to ensure the dominance of the
public interest over private interests and to avoid the
conflict between public and private interests. The funds and
other resources must be used transparently. An efficient and
independent system of control is necessary for this purpose,
and it must be inter alia independent from the institutions or
their officials, whose activity or decisions are under control.
It has already been mentioned that according to Paragraph 1 of
Article 134 of the Constitution it is the state control that
supervises whether state-owned property is possessed and used
lawfully and how the State Budget is executed.
22. These and other constitutional requirements for the
state service as a system, in their turn, imply certain
constitutionally reasonable requirements for the persons who
seek to exercise their constitutional right to enter into the
state service under equal conditions or who have already
exercised this constitutional right of their own, i.e. who have
already become state servants, as well.
The above-mentioned right of the citizen is consolidated
in Paragraph 1 of Article 33 of the Constitution, wherein it is
established: "Citizens shall have the right to participate in
the government of the state both directly and through their
democratically elected representatives, as well as the right to
enter into the State service of the Republic of Lithuania under
equal conditions."
The constitutional requirements for the persons who strive
to exercise or who have already exercised their right to enter
into the state service under equal conditions are, first of
all, requirements for the persons who enter into the state
service, and, secondly, requirements for the state servants.
The constitutionally reasonable and necessary guarantees to the
persons who enter into the state service and guarantees to the
state servants are respectively linked with the said two groups
of requirements.
23. In the context of the constitutional justice case at
issue, the legal regulation entrenched in Paragraph 1 of
Article 33 of the Constitution and the constitutional concept
of the state service are to be revealed not only upon
evaluating their links with the constitutional principle of a
state under the rule of law, but with other provisions of the
Constitution, which are, in their turn, to be construed in
accordance with the constitutional principle of a state under
the rule of law, as well.
24. It was already mentioned that all law-making subjects
must pay heed to the hierarchy of legal acts which originates
from the Constitution, that it is not permitted to amend a law
and create new legal norms of general type, which would compete
with the norms of law, by a substatutory legal act, and that
under the Constitution the legal regulation linked with
defining the content of human rights and freedoms or
consolidation of guarantees of their exercising can be
established solely by a law, however, in cases where the
Constitution does not require the regulation of certain
relations linked with human rights and their implementation to
be made by a law, these relations may be regulated also by
substatutory acts, and the legal regulation established therein
may compete with that established in the law under no
circumstances.
It is the constitutional right of the citizen to enter
into the state service of the Republic of Lithuania under equal
conditions. Relations of the state service comprise relations
linked with the implementation of the right of the citizen to
enter into the state service of the Republic of Lithuania under
equal conditions, as well as relations, which arise when the
citizen enters into the state service and while he performs his
duties at the state service; some other relations, which arise
when the person finishes performing his duties at the state
service (for example, relations linked with certain
restrictions of professional activity for former state
servants, with pensions granted and paid to former state
servants), are also closely linked with the relations of the
state service. Thus, the implementation of the right of the
person to enter into the state service of the Republic of
Lithuania under equal conditions is linked with the
implementation of other human rights, inter alia the rights
consolidated in the articles of the Constitution specified by
the petitioners. To the extent that the relations of the state
service are linked with human rights and freedoms, they must be
regulated by laws. It is worth mentioning in this context that
"the material legal norms have the priority in regard to
procedural legal norms", because "as a rule, the latter are of
official character, i.e. they are aimed at implementation of
material legal norms" (Constitutional Court ruling of 12
November 1996). The procedural relations of the state service
(as well as those related to it) may be regulated by
substatutory acts, however, this must be done so that there
would be no competition with the legal regulation established
by the law.
25. It was held in this Ruling of the Constitutional Court
that professional state servants adopt decisions while
performing public administration and/or providing public
services (or participate in drafting, and executing these
decisions, coordinating and/or controlling the implementation
thereof, etc.), however, they do not exercise any functions
while implementing state power (like members of the Seimas,
President of the Republic, members of the Government and judges
do), and that the notion "state service" which is used in the
Constitution does not comprise the duties of a member of the
Seimas, the President of the Republic, the Prime Minister or a
Minister, a judge, as well as a member of municipal council.
It is to be emphasized that the fact of becoming a member
of the Seimas, the President of the Republic, the Prime
Minister or a Minister is a result of political process,
elections of the Seimas, elections to the office of the
President of the Republic, formation of the Government
respectively. The bases and procedure of appointing the
justices of the Constitutional Court are established in Article
103 of the Constitution, those for judges of other courts-in
Article 112 of the Constitution; it is worth noting in this
context that the appointment of the justices of the
Constitutional Court and judges of other courts depends upon
the political will of respective officials of state power (the
President of the Republic or the President of the Republic and
members of the Seimas). Therefore, although the work of a
judge, similarly to the state service, is a professional
activity, there are no grounds to state that the same
requirement of "equal conditions" (consolidated in Paragraph 1
of Article 33 of the Constitution) is to be applied to the
becoming a member of the Seimas, the President of the Republic,
the Prime Minister or a Minister, and a judge as it is applied
to the entering into the state service.
The result of political activity, under the Constitution,
is becoming a member of municipal council as well. It is
established in Paragraph 2 of Article 119 of the Constitution
that members of municipal councils are elected for a four-year
term, as provided for by law, from among citizens of the
Republic of Lithuania and other permanent residents of the
administrative unit by the citizens of the Republic of
Lithuania and other permanent residents of the administrative
unit, on the basis of universal, equal and direct electoral
right by secret ballot.
Thus, the right of a citizen to enter into the state
service of the Republic of Lithuania under equal conditions, as
entrenched in Paragraph 1 of Article 33 of the Constitution,
does not comprise his constitutional right to seek to become
elected (if he meets the conditions established in the
Constitution and laws) a member of the Seimas, the President of
the Republic, the Prime Minister or a Minister, and a member of
the municipal council, nor the right to become (if he meets the
conditions established in the Constitution and laws) a justice
of the Constitutional Court or a judge of any other court,
which are implied by other provisions of the Constitution. The
said rights and the right of a citizen to enter into the state
service of the Republic of Lithuania under equal conditions are
different subjective rights.
26. The state service is a professional activity performed
by an employee of a state or municipal institution, i.e. it is
work activity. Thus, the right to enter into the state service
of the Republic of Lithuania under equal conditions, entrenched
in Paragraph 1 of Article 33 of the Constitution, is linked
with the right of every person to freely choose a job,
entrenched in Paragraph 1 of Article 48 of the Constitution. In
this regard the provision "Citizens shall have the right to
<...> enter into the State service of the Republic of Lithuania
under equal conditions" of Paragraph 1 of Article 33 of the
Constitution is both lex specialis and lex generalis linked
with the provision "each human being may freely choose a job
and business" of Paragraph 1 of Article 48 of the Constitution.
It is to be noted that the right of each person to freely
choose a job in Paragraph 1 of Article 48 of the Constitution
is formulated broader-as the right of each person "to freely
choose a job and business". The Constitutional Court has held
that the provision of Paragraph 1 of Article 48 of the
Constitution that every person may freely choose an occupation
and business is a norm of common nature based on universally
recognised concept of human freedom (Constitutional Court
ruling of 4 March 1999) and it means an opportunity to choose a
type of occupation at one's own discretion, i.e. by deciding
freely on this subject (Constitutional Court ruling of 10 July
1996), and that the freedom to freely choose a job and
business, entrenched in Paragraph 1 of Article 48 of the
Constitution, is one of the necessary conditions for satisfying
human vital needs, and of ensuring his appropriate place in
society (Constitutional Court rulings of 4 March 1999 and 4
July 2003).
Thus, under the Constitution, the person who seeks to
implement his constitutional right to work, has the right to
decide freely, whether to choose a work in private sector or a
private business, or to seek to become admitted to the state
service. The provision "each human being may freely choose a
job and business" of Paragraph 1 of Article 48 of the
Constitution implies the duty of the state and the legislator
to create legal conditions for implementation of this right
(Constitutional Court rulings of 4 March 1999 and 4 July 2003).
27. The constitutional right of the citizen to enter into
the state service of the Republic of Lithuania under equal
conditions, as a version of the constitutional right of each
person to freely choose a job, especially upon considering the
provision "under equal conditions" of Paragraph 1 of Article 33
of the Constitution, is to be linked with the constitutional
principle of equality of persons (equality of persons before
the law, the court and other state institutions and officials).
Article 29 of the Constitution provides:
"All persons shall be equal before the law, the court and
other State institutions and officials.
The human being may not have his rights restricted, nor
may he be granted any privileges on the grounds of gender,
race, nationality, language, origin, social status, beliefs,
convictions, or views."
When construing the provisions of Article 29 of the
Constitution, the Constitutional Court has held more than once
that the constitutional principle of equality of all persons,
which must be followed in the course of passing of laws and in
their application, and when administering justice, obligates
one to legally assess homogenous facts in the same manner and
prohibits to arbitrarily assess virtually the same facts in a
varied manner, that the constitutional principle of equality of
all person means the natural right of the person to be treated
in the same manner as others are and consolidates the formal
equality of all persons, and that persons may not be
discriminated or that they may not be granted privileges.
Moreover, the Constitutional Court has noted many times that
the constitutional principle of equality of all persons does
not deny the fact that unequal (differentiated) legal
regulation in regard to certain categories of persons, who are
in different situations, may be established in the law; that
variety of social life may determine the manner and content of
legal regulation. The Constitutional principle of equality of
persons does not deny an opportunity to treat individuals,
while taking account of their status or situation, in a
different manner (Constitutional Court ruling of 30 December
2003). However, the constitutional principle of equality of all
persons before the law would be violated, if a certain group of
people to which the legal norm is ascribed, if compared to
other addresses of the same legal norms, was treated
differently, even though there are not any differences in their
character and extent between these groups so that such uneven
treatment would be objectively justified (Constitutional Court
rulings of 20 November 1996 and 30 December 2003).
It is to be stressed in this context that the citizens who
seek to become admitted to the state service may not be
discriminated, nor they may be granted privileges on the
grounds expressis verbis specified in Paragraph 2 of Article 29
of the Constitution or any other constitutionally unjustifiable
grounds.
It is worth noting also that the constitutional imperative
of equal conditions when entering the state service implies the
competition between those who enter it, as well as objective,
impartial assessment and selection of those who enter into the
state service. The legislator enjoys certain discretion to
establish particularities of admission to the state service in
regard to the persons whose term of office at the state service
is linked with the term of office of the President of the
Republic, members of the Seimas, members of the Government, and
members of municipal councils. According to the Constitution,
the person who believes that the principle of equal rights,
thus his constitutional right to enter into the state service
of the Republic of Lithuania under equal conditions as well,
was violated when he attempted to enter into the state service,
has the right to seek to defend his violated right at court.
28. The Constitutional Court has held that while creating
the legal preconditions for implementation of the right to
freely choose a job or business, the legislator is empowered,
while taking account of the nature of a job, to establish the
conditions of implementation of the right to freely choose a
job; while doing this, he must observe the Constitution
(Constitutional Court ruling of 4 July 2003). It was held in
the Constitutional Court ruling of 4 March 1999: "Implementing
its obligation to ensure national security and proper guidance
of young people, to secure education, credible financial
system, protection of state secrets etc., the state is entitled
to establish additional, special requirements for those who
wish to work in the main areas of economy and business." It is
held in the Constitutional Court ruling of 10 July 1996 that
"certain qualifications, professional knowledge and skills,
however, are necessary for complex work, therefore
corresponding requirements for persons who aspire to complex or
obligated work are held indisputable and, as a rule,
universally recognised" and that "the requirements of
professional competence do not contradict the human right to
freely choose an occupation or business".
The constitutional purpose of the state service and
special tasks assigned to the state service determine that
certain common requirements-the general conditions of entering
the state service-may and must be set for the citizen who
enters into the state service, and the person who fails to meet
them will not be able to become a state servant. It is to be
stressed that the said requirements must be clear and common to
all those who seek to hold a respective position at the state
service, and they must be known in advance to the one who
enters into the state service. They must be set by the law.
The following common requirements-the general conditions
of entering into the state service-are to be mentioned: loyalty
to the State of Lithuania and its constitutional order,
knowledge of the Constitution and bases of the legal system
(including the catalogue of human rights and freedoms), good
knowledge of the state language, absence of the conflict
between the position which is being sough to hold, and private
interests (or removal of such conflict before the persons
starts holding the position that has been sought), etc.
Moreover, general requirements linked with personal
characteristics of the person entering to the state service,
his reputation, education, etc. may be established. The
constitutionally reasonable general conditions preventing the
person from entering into the state service may also be
provided for.
29. The requirements of professionalism and qualification
which are raised before the state service as a system imply
respective requirements for the persons who enter into the
state service as well. It has also been mentioned that the
relations of the state service may and must be regulated in a
differentiated manner, while taking account of the
particularities of state (municipal) institutions and the
functions fulfilled by them, the role of these institutions in
the system of all institutions through which state functions
are implemented, their competence, the professional skills
necessary to respective state servants, and other important
factors. Therefore, the special requirements for the persons
striving for particular duties at the state service or a
concrete state or municipal institution-special conditions to
those who strive for certain duties at the state service-may be
established by legal acts. These special conditions of entering
into the state service may be differentiated according to the
content of respective duties at the state service. When setting
the said conditions, one must observe the Constitution. These
conditions should also be clear and common to everybody who
seeks to be admitted to a respective position at the state
service, and they must be known in advance to the ones who
enter into the state service.
The following requirements-the special conditions of
entering into the state service-as professional competence,
experience, knowledge of languages, special knowledge and
skills, etc., as well as the requirements linked with the
reputation of the person who enters into the state service, his
personal characteristics and others, are to be mentioned. When
admitting one to a certain office, a great variety of special
conditions may be provided for, for example, the ones linked
with the health of the person, his physical abilities,
relations with other persons, etc. It is to be emphasized that
all the established special requirements of entering into the
state service must be constitutionally reasonable. Otherwise,
the constitutional right of the citizen to enter into the state
service of the Republic of Lithuania under equal conditions and
the constitutional right of the person to freely choose a job
would be violated as well.
30. The notion "citizen" used in Paragraph 1 of Article 33
of the Constitution means that the right to enter into the
state service is linked with the relation between the person
and the State of Lithuania, i.e. citizenship. By the same,
account should also be taken of the fact that foreigners and
persons with no citizenship, who legally stay in the Republic
of Lithuania, enjoy the same rights and freedoms as the
citizens of the Republic of Lithuania, if the Constitution,
laws and international treaties of the Republic of Lithuania do
not provide otherwise (Constitutional Court conclusion of 24
January 1995). Certain provisions of the Constitution, which
consolidate the rights of citizens of the Republic of
Lithuania, as well as the provision "citizens shall have the
right to <...> enter into the State service of the Republic of
Lithuania under equal conditions" of Paragraph 1 of Article 33
of the Constitution may be construed in a broadening sense,
i.e. so that the notion "citizen" would include not only
citizens of the Republic of Lithuania, but citizens of foreign
states and persons with no citizenship as well. Still, this
does not mean that the citizens of foreign states and persons
with no citizenship may in all cases implement these rights,
including the right to enter into the state service of the
Republic of Lithuania under equal conditions, as a matter of
course, only on the grounds of the Constitution, as the
legislator enjoys the powers, while exercising the
international obligations of the Republic of Lithuania and
acting on the basis of respective international treaties, to
establish conditions and procedure of implementation of such
rights. In this context it is to be noted that under Paragraph
2 of Article 48 of the Constitution the work of foreigners in
the Republic of Lithuania is regulated by law. Since the
constitutional right of the citizen to enter into the state
service of the Republic of Lithuania under equal conditions is
a version of the constitutional right of each person to freely
choose a job, thus the law may provide for conditions and
procedure arising from international obligations of the
Republic of Lithuania and international treaties, which, in
their turn, must not be in conflict with the Constitution, of
entering into the state service of the Republic of Lithuania
for citizens of foreign states and persons with no citizenship.
In this context it needs to be noted that respective
international obligations of the Republic of Lithuania
originate from the membership of this country in the European
Union, which is constitutionally confirmed by the
Constitutional Act of the Republic of Lithuania "On Membership
of the Republic of Lithuania in the European Union", a
constituent part of the Constitution.
31. The constitutional right of citizens to enter into the
state service of the Republic of Lithuania under equal
conditions implies also the right of the persons admitted to
the state service to remain state servants until the moment
when the relations of the state service are terminated on the
grounds established in the law, as well as the right to make a
career in the state service, while paying heed to the
conditions provided for in the law, attempts of the state
servant himself to make a career, as well as to objective
possibilities. The state servant must not face unnatural and
unreasonable obstacles for making a career in the state
service.
Having entered into the state service and having started
to hold a respective office in the state service (at a state or
municipal institution), the citizen gains the status of a state
servant. From this moment in this state or municipal
institution he adopts decisions while performing public
administration and/or providing public services (or
participates in drafting, and executing these decisions,
coordinating and/or controlling the implementation thereof,
etc.) and, in this way, guarantees the public interest.
32. State servants are a special social group, the
specifics of which are determined by the purpose of the state
service and its social significance. Therefore, the legal
status of state servants, and implementation of the rights and
freedoms enjoyed by them under the Constitution and laws,
cannot not bear any important characteristics.
Just like the constitutional requirements to the state
service as a system imply certain constitutionally reasonable
requirements to the persons who strive to implement their
constitutional right to enter into the state service of the
Republic of Lithuania under equal conditions, the above
mentioned requirements to the state service as a system imply
requirements to the state servants.
Under the Constitution, the state servant must properly
fulfil his duties while observing the Constitution and law. He
must be loyal to the State of Lithuania and its constitutional
order, observe the Constitution and laws, respect, protect and
defend human rights and freedoms, be impartial and neutral in
regard to participants of the political process, be just, avoid
the conflict between public and private interests, not succumb
to illegal pressure or illegal requirements, not act in an
arbitrary manner and not abuse the service, improve his
professional competence, follow the requirements of
professional ethics, protect the reputation of his own as a
state servant and the authority of the institution at which he
is employed etc. Decisions adopted by him must be transparent
and their reasoning must be clear. The opportunities provided
by the state service must not be used for personal benefit or
political activity; the state servant may not use his status
for a private benefit of his own, his close relatives or other
persons. The legal regulation of the relations of the state
service must be such so that it would be possible to control
whether the aforementioned requirements are not violated.
Public and democratic control over the activity of state
servants and decisions adopted by them is an important
condition of the trust of the society in the state and its law.
Liability of a state servant for violations of law
committed while in the state service must be established by the
law.
33. The legislator enjoys the right to establish certain
requirements, which would limit the following activity of state
servants which is not related to the state service: other work
(business), as well as political and public activity, which
could result in the conflict between public and private
interests of state servants, and create prerequisites for using
the opportunities provided by the state service not for
guaranteeing the public interest, but for private interests,
and which would hinder state servants from performing their
official duties or would be harmful to the authority of the
state service or respective state or municipal institution and
discredit them.
In its rulings the Constitutional Court has held many
times that according to the Constitution, it is permitted to
restrict the constitutional human rights and freedoms in case
the following conditions are observed: this is done by law; the
restrictions are necessary in a democratic society in attempt
to protect the rights and freedoms of other persons and the
values entrenched in the Constitution as well as the
constitutionally important objectives; the restrictions do not
deny the nature and essence of the rights and freedoms; the
constitutional principle of proportionality is followed. In its
ruling of 6 May 1997, having stated that "the public interest
is a dominating one in civil service relations", the
Constitutional Court held that "one should take account of the
fact that, from the social standpoint, the public interest, as
well as the person's rights <...>, is a constitutional value".
When establishing by the law the restrictions of other
work of state servants it is necessary to follow the principle
that, according to the Constitution, these restrictions must be
such, which would help to avoid the conflict between public and
private interests in the state service, and which would ensure
that the state service and opportunities provided by it are not
used for ensuring private interests rather than the public
interest, that a state servant is not hindered from performing
his official duties, that no harm is made to the authority of
the state service or respective state or municipal institution,
and that they are not discredited.
In the context of the constitutional justice case at
issue, it is to be emphasized that the constitutional concept
of the state service, the constitutional purpose of the state
service, the type of it as a professional activity, implies
that, while paying heed to inter alia the constitutional
principle of proportionality, the law should establish such
restriction of other work of state servants, which would
prevent state servants from working in the enterprises,
establishments, organisations, in regard to which they enjoy
powers of management or the activity of which they control or
supervise, or adopt any other decisions related to this
enterprise, establishment or organisation (or participate in
drafting and executing these decisions, coordinating and/or
controlling the implementation thereof, etc.).
34. From the right of citizens to enter into the state
service of the Republic of Lithuania under equal conditions,
entrenched in Paragraph 1 of Article 33 of the Constitution,
and the right of each person to choose a job freely, entrenched
in Paragraph 1 of Article 48 of the Constitution, also
originates the link of the constitutional right of the citizens
to enter into the state service of the Republic of Lithuania
under equal conditions with other rights, which are closely
related to the right of each person to work and which are
consolidated in Paragraph 1 of Article 48 of the Constitution:
the right to have proper, safe and healthy working conditions,
just pay for work, and social security in the event of
unemployment. These rights must be guaranteed to the state
servant to not less extent than to other employees, however,
due to the type of the state service as a specific working
activity their implementation may have certain particularities.
The same is to be said about other social and economic rights
entrenched in the Constitution: the right of each working human
being to rest and leisure, as well as annual paid holidays,
entrenched in Paragraph 1 of Article 49 of the Constitution,
the right to establish trade unions, entrenched in Article 50
of the Constitution, the right to receive old age and
disability pensions, as well as social assistance in the event
of unemployment, sickness, widowhood, loss of breadwinner, and
other cases provided for in laws, entrenched in Article 52 of
the Constitution, etc. On the other hand, certain social and
economic rights of state servants at respective services may be
restricted by the law due to particularities of these services
or duties of respective state servants, for example, the right
of employees to strike while defending their economic and
social interests which is entrenched in Paragraph 1 of Article
51 of the Constitution may be restricted on the basis of
Paragraph 2 of this article, wherein it is established that the
restrictions of this right, the conditions and procedure for
the implementation thereof are established by the law.
It goes without saying that the Constitution guarantees to
the state servants, like other persons, the right to defend
their violated rights in court.
35. In the context of the constitutional justice case at
issue, a separate note should be made of the right to have just
pay for work, consolidated in Paragraph 1 of Article 48 of the
Constitution. This constitutional right is a prerequisite for
implementation of a great many other constitutional rights,
inter alia it is one of the most important prerequisites for
the implementation of the right to ownership, which is
consolidated in Article 23 of the Constitution. Under the
Constitution, the right appears in regard to the person who has
completed a commissioned task, to demand that the whole
remuneration for work (pay) which is due according to the legal
acts be paid to him, and that it be paid in due time. This
right of the person (on the basis of Article 23 of the
Constitution as well) is guaranteed, protected and defended as
the right to ownership.
It has been mentioned that to the extent that the
relations of the state service are related with human rights
and freedoms they must be regulated by laws, while the
procedural relations of the state service (and the ones linked
thereto) may be regulated by substatutory acts as well,
however, this should be done so that no competition with the
legal regulation established in the law would exist.
Clear criteria on the basis of which the size of
remuneration for work (pay) is established in regard to the
state servants are an essential element of the right of each
citizen to receive just pay for work, and they must be
established by the law. As the professional activity of state
servants is to be remunerated from the state (municipal)
budget, the budget must provide for funds for remuneration for
work of the state servants.
When construing the provision "Each human being <...>
shall have the right to <...> just pay for work", consolidated
in Paragraph 1 of Article 48 of the Constitution, the
Constitutional Court, in its ruling of 18 December 2001, held
that "the right of every person to adequate compensation for
work as established in Paragraph 1 of Article 48 of the
Constitution, means, in general, that the remuneration for work
of public servants, which is one of the main pre-conditions to
realise their other legitimate interests, must be established
by law and paid at the time fixed in the laws." In the
above-mentioned ruling the Constitutional Court also held: "the
right to adequate compensation for work guaranteed in the
Constitution is directly related to the principle of equality
of all persons before the law, the court, and other state
institutions. It is prohibited to diminish one's remuneration
for work on the basis of one's sex, race, nationality,
citizenship, political convictions, one's attitude towards
religion, and other circumstances not related to the
professional characteristics of the employee, if the functions
of work of the employee, the scope of his work etc. have not
changed."
The constitutional right to receive just pay for work is
linked with the constitutional principle of protection of
legitimate interests as well. The Constitutional Court held
that "in cases when a certain remuneration for work has been
established for a person by legal acts, then this remuneration
must be paid throughout the duration of the established time",
as well as that "the principle of protection of legitimate
expectations is linked with the duty of all state institutions
to observe the undertaken obligations", and that "persons have
the right to reasonably expect that the rights acquired under
the valid legal acts will be retained for the established
period of time and will be implemented in reality"
(Constitutional Court ruling of 18 December 2001). The legal
regulation may be changed only by following the procedure
established in advance and by not violating the principles and
norms of the Constitution, it is necessary inter alia to follow
the principle lex retro non agit, and it is not permitted to
deny the legitimate interests and legitimate expectations of
the person by the changes of the legal regulation
(Constitutional Court rulings of 12 July 2001, 18 December 2001
and 4 July 2003).
According to the Constitution, a legal situation, where a
state servant, who fulfilled the assigned task, is not paid, is
paid not in due time or is paid less than it is due according
to the laws and other legal acts passed on the basis of the
former, is impermissible. Taking into consideration the link
between the right of each citizen to receive just pay for work
and the right to ownership, one is to hold that such legal
situation would mean that legal preconditions are created to
violate by legal acts the constitutional right to ownership
too, thus not only Paragraph 1 of Article 48 of the
Constitution, but Article 23 of the Constitution as well.
The principle of protection of legitimate expectations
does not mean that the remuneration for work paid to the state
servants from the funds of the State Budget or municipal
budget, may not be reduced at all, however, this may be done
only in exceptional cases and only if it necessary in order to
protect the values consolidated in the Constitution. Still,
even in such exceptional cases the remuneration for wok may not
be reduced in violation of the balance entrenched in the
Constitution between the interests of a person and those of the
society. It also needs to be noted that the remuneration for
work may not be reduced only to separate categories of
employees who are remunerated for their work from the funds of
the state budget or municipal budget. The reduction of
remuneration for work must be in line with the constitutional
principle of proportionality (Constitutional Court ruling of 18
December 2001).
36. Article 52 of the Constitution provides: "The State
shall guarantee the right of citizens to receive old age and
disability pensions, as well as social assistance in the event
of unemployment, sickness, widowhood, loss of breadwinner, and
other cases provided for in laws."
When construing this provision of the Constitution, the
Constitutional Court has held that the grounds for pensionary
maintenance and social assistance are provided for in Article
52 of the Constitution. According to this article of the
Constitution, the legislator must establish old age and
disability pensions, as well as social assistance in the event
of unemployment, sickness, widowhood, and loss of breadwinner
by the law. Under the Constitution, other pensions or social
assistance than those specified in Article 52 of the
Constitution may be established by the law as well
(Constitutional Court rulings of 23 April 2002, 25 November
2002, 4 July 2003, and 30 January 2004). According to the
Constitution, the grounds for pensionary maintenance, the
persons who are granted and paid pensions, the conditions of
granting and payment of pensions, as well as the amounts of the
pensions are established by the law only (Constitutional Court
ruling of 4 July 2003).
The state must fulfil the undertaken obligations to the
person. A person, who meets the conditions established by the
law, acquires the right to a pension established by the law and
may reasonably expect that this his right will be protected and
defended by the state; when the pension established by the law
which is not in conflict with the Constitution is granted and
paid, this right and legitimate expectation acquired by the
person are also to be linked to the protection of the rights of
ownership of this person (Constitutional Court ruling of 4 July
2003). In its rulings, the Constitutional Court has held more
than once that if the protection of legitimate expectations,
legal certainty and legal security of the person were not
ensured, the trust of the person in the state and law would not
be ensured. The provision "the state shall guarantee" of
Article 52 of the Constitution inter alia means that, upon
establishing by law certain pensionary maintenance, the state
is obligated to guarantee it to the indicated persons on such
grounds and by such amounts which have been established by the
law, while the persons who meet the conditions provided by the
law have the right to require that the state grant and pay this
pension to them. The said provision of Article 52 of the
Constitution implies the duty of the legislator, while he
establishes a certain pension by law, to consolidate the legal
regulation which would ensure the payment of this pension to
persons who meet the conditions established by law
(Constitutional Court rulings of 23 April 2002, 4 July 2003 and
3 December 2003).
It was held in the Constitutional Court ruling of 25
November 2002 that the provisions of Article 52 of the
Constitution, which guarantee the right to social assistance to
citizens, obligate the state to establish sufficient measures
of the implementation and legal protection of this right, thus
not only must the types of pensions and social assistance
indicated in this article of the Constitution be established by
law but also proper implementation and legal protection of the
human right to receive pension and social assistance must be
ensured; the provisions of Article 52 of the Constitution imply
a duty of the legislator to establish the legal regulation
which would ensure the accumulation of funds necessary for
pensions and social assistance and the payment of these
pensions and rendering of social assistance.
While establishing the legal regulation according to which
the persons who meet the conditions provided by the law
(retirement from the service, time of service, age, etc.)
acquire the right to a certain pension for service established
in the law, the state alongside accepts the duty to grant and
pay this pension. The person who meets the conditions
established by the law has the right to demand that the state
fulfil the obligation undertaken by the law and pay the
payments of the established amount (Constitutional Court ruling
of 4 July 2003). In its ruling of 25 November 2002, the
Constitutional Court held that the person who meets the
conditions established by the law in order to receive the old
age pension, and who has been granted and paid this pension,
has the right to a monetary payment of a respective amount,
i.e. the right of ownership; this right must be protected and
defended according to Article 23 of the Constitution as well.
The particularities of the constitutional institute of the
state service determine inter alia that the legislator enjoys
constitutional powers to establish by the law the pensions
and/or types of social assistance granted solely to the state
service (or individual groups of state servants, the grouping
of which is objectively reasonable). The pensions for serving
the State of Lithuania may be established by the law as well.
While establishing such a pension for serving the State of
Lithuania, the legislator is bound by the norms and principles
of the Constitution (Constitutional Court ruling of 4 July
2003), and inter alia the constitutional imperative of social
harmony, principles of justice, reasonableness and
proportionality.
When construing the said provision of the Constitution in
the context of regulation of pensions of the state
servants-while investigating whether the legal regulation
linked with the state pensions of the officials and servicemen,
i.e. particular group of the state servants, is not in conflict
with the Constitution-in its ruling of 4 July 2003 the
Constitutional Court held that pensions for certain service to
the State of Lithuania, thus the state pensions to the
officials and servicemen, may also be established by the law.
Such pensions, in their nature and character, differ from state
social insurance pensions (thus, from the old age pension as
well)-they are granted to persons for their service to the
State of Lithuania and are paid from the State Budget. When
establishing such pension for service, the legislator is bound
by inter alia the constitutional striving for an open, just,
harmonious civil society and state under the rule of law.
If, while paying heed to the Constitution, the law
provides for a different pension, which is not directly
specified in Article 52 of the Constitution, it must be
guaranteed, under the Constitution, to the specified persons on
the bases and in amounts established in the law (Constitutional
Court ruling of 10 February 2000).
The legislator, while establishing the pension of
officials and servicemen, may not establish the legal
regulation, according to which the person would be able to
retire unreasonably early, or an unreasonably short time period
of service or work required in order to receive such pension
would be established, or the amount of the remuneration of the
official or serviceman would not be taken into consideration
while establishing the amount of the granted pension, or the
principles of justice, reasonableness and proportionality would
be violated in some other way. If the legislator, while
regulating pensionary maintenance of officials and servicemen,
did not pay heed to inter alia imperatives of an open, just,
and harmonious civil society and a state under the rule of law
that are the consolidated in the Constitution, especially if it
did not take into consideration the particularities of service
of officials and servicemen, particular type of duties and
other important circumstances, the granting and payment of such
pension would become a privilege, thus such pensionary
maintenance could not be guaranteed according to the
Constitution (Constitutional Court ruling of 4 July 2003).
It has also been held in Constitutional Court rulings that
there might occur such an extreme situation in the state
(economic crisis, natural disaster, etc.) when there is
objective lack of funds for the payment of pensions. In such
exceptional cases the legal regulation of pensionary relations
may be corrected also by reducing pensions to the extent that
it is necessary to ensure vitally important interests of
society and protect other constitutional values. The reduced
pensions may only be paid on a temporary basis, i.e. only when
there is an extraordinary situation in the state
(Constitutional Court rulings of 23 April 2002, 25 November
2002, and 4 July 2003). Still, even in such extraordinary cases
it is not permitted that pensions be reduced in violation of
the balance between the interests of the person and society,
entrenched in the Constitution; such reduction of pensions must
be in line with the constitutional principle of proportionality
(Constitutional Court ruling of 4 July 2003).
It is necessary to pay heed to the Constitution also when
reorganising the system of pensionary maintenance established
by the law; it may only be reorganised by the law, only by
guaranteeing the old age and disability pensions which are
provided for in the Constitution, as well as observing the
obligations undertaken by the state, which are not in conflict
with the Constitution, to pay respective monetary payments to
the persons meeting the requirements established by the law;
if, while reorganising the pensionary system, the pensions
established by the laws which are not directly specified in
Article 52 of the Constitution were eliminated, or the legal
regulation of these pensions were amended in essence, the
legislator would be obligated to establish a just mechanism for
compensation of the existing losses to the persons who had been
granted and paid such pensions. The legislator, while
reorganising the system of pensions so that the bases for
pensionary maintenance, persons to whom the pension is granted
and paid, the conditions of granting and payment of pensions,
the amounts of pensionary maintenance are changed, must provide
for a sufficient transition time period during which the
persons who have a respective job or who perform respective
service which entitles them to a respective pension under the
previous regulation, would be able to prepare for these changes
(Constitutional Court ruling of 4 July 2003).
37. Since, as it has already been mentioned, some other
relations which originate when a person finishes to perform his
duties in the state service, are closely linked with the
relations of the state service, therefore the constitutional
requirements to the state service as a system may result in the
fact that (for example, in order to avoid the conflicts of
public and private interests, to ensure the trust in the state
service, to protect other constitutional values) certain
requirements to the former state servants will be established
as well. For example, certain restrictions of working activity,
etc. may be established in their regard. When setting such
restrictions, it is essential in all cases to pay heed to the
norms and principles of the Constitution, the restrictions must
be proportionate to the sought purpose which is legitimate and
necessary in a democratic society, as well as socially
important.
IV
On the compliance of Paragraph 12 (wordings of 29 August
2000 and 21 November 2000) of Article 62 of the Law on the
State Service and Paragraph 7 (wording of 25 September 2001) of
Article 29 of the Law on Local Self-government with Paragraph 1
of Article 29, Paragraph 1 of Article 33 and Paragraph 1 of
Article 48 of the Constitution as well as with the
constitutional principle of a state under the rule of law.
1. By its 5 November 2001 petition the Vilnius Regional
Administrative Court, a petitioner, requests to investigate as
to whether Paragraph 12 of Article 62 of the Law on the State
Service is not in conflict with the principles of a just civil
society and state under the rule of law entrenched in the
Preamble to the Constitution, as well as with Paragraph 1 of
Article 29, Paragraph 1 of Article 33 and Paragraph 1 of
Article 48 of the Constitution.
2. On 8 July 1999, the Seimas adopted the Law on the State
Service. The said law went into effect on 30 July 1999.
3. On 29 August 2000, the Seimas adopted the Law on
Amending and Supplementing the Law on the State Service. By
Paragraph 4 of Article 43 of the same law Article 62 (wording
of 8 July 1999) of the Law on the State Service was
supplemented with new Paragraph 12 in which it was established:
"Upon the change of the position of a state servant (upon
the move of the position from Annex 1 to Annex 2 or vice
versa), the service relations of the person holding this
position persist-he respectively becomes a state career
servant, the head of an establishment or a state servant of
political (personal) confidence. The state servant of political
(personal) confidence who is elected a member of the municipal
council and who has become a career state servant or the head
of a civil service establishment of the administration of the
same municipality under this paragraph must, within 15 days of
the entry into effect of this Law, apply to the Central
Electoral Commission with an application concerning his
resignation from the position of a member of the municipal
council. The person who has not filed the application under the
procedure established in Article 86 of the Law on Elections to
Municipal Councils within this period shall lose the status of
a state servant under Item 4 of Paragraph 1 of Article 56 of
the Law on the State Service."
4. On 21 November 2000, the Seimas adopted the Law on
Amending Articles 7, 17, 21, 33, 43, 50, 55, 56, 62, 66, 69,
71, 76, 78 and Annexes 1 and 2 Thereof, by Paragraph 2 of
Article 9 whereof Paragraph 12 (wording of 29 August 2000) of
Article 62 of the Law on State service was amended and it was
established therein:
"Upon the change of the position of a state servant (when
the position of the state servant, who became a state servant
of political (personal) confidence under Article 15 of
Paragraph 4 of Article 62 of this Law, was entered into Annex 2
of this Law or when this position is moved from Annex 1 to
Annex 2 or from Annex 2 to Annex 1), the service relations of
the person holding this position persist-he respectively
becomes a state career servant, the head of an establishment or
a state servant of political (personal) confidence. His service
relations are legalised by the order (ordinance) of the persons
indicated in Paragraph 7 (concerning career state servants) of
Article 14, Paragraph 2 (concerning state servants of political
(personal) confidence) or Paragraph 5 (concerning heads of
establishments) of Article 62 of this Law. The state servants
of political (personal) confidence who became career state
servants or heads of civil service establishments of the
municipal administration in the manner specified in this
Paragraph and who were elected members of the council of the
same municipality must decide on their subsequent service. The
persons who have chosen to continue in the state service must
apply to the Central Electoral Commission with an application
concerning their resignation from members of the municipal
council. The persons who have not filed the application under
the procedure established in Paragraph 1 of Article 86 of the
Law on Elections to Municipal Councils shall lose the status of
a state servant under Item 4 of Paragraph 1 of Article 56 of
the Law on the State Service."
5. On 23 April 2002, the Seimas adopted the Law on
Amending the Law on the State Service by Article 1 whereof it
set forth the Law on the State Service in a new wording. On 23
April 2002, the Seimas adopted the Law on the Implementation of
the Law on Amending the Law on the State Service which went
into effect on 4 May 2002. It is provided in Paragraph 1 of
Article 1 of the Law on the Implementation of the Law on
Amending the Law on the State Service that "the Law on the
Implementation of the Law on Amending the Law on the State
Service shall go into effect as of 1 July 2002 save the
articles of the Law on the State Service to which other terms
of entry into effect have been established by this Law", while
it is established in Paragraph 2 of Article 1 thereof that
"Articles 2, 21 and 22 of the Law on the State Service shall go
into effect as of 1 May 2002". Article 62 ceased to exist in
the Law on the State Service (wording of 23 April 2002).
Under Item 2 (wording of 23 April 2002) of Paragraph 1 of
Article 44 of the Law on the State Service, a state servant of
the municipal administration is dismissed from office after he
begins to hold the office of a member of the council of the
same municipality.
6. The Vilnius Regional Administrative Court, the
petitioner, does not indicate in its ruling of 5 November 2001
the compliance of which wording of Paragraph 12 of Article 62
of the Law on the State Service with the Constitution it
requests to investigate.
It is clear from the arguments of the petitioner that the
petitioner doubts whether Article 12 (wordings of 29 August
2000 and 21 November 2000) of Article 62 of the Law on the
State Service is not in conflict with the Constitution.
7. The petitioner requests to investigate the compliance
of entire Paragraph 12 of Article 62 of the Law on the State
Service with the Constitution.
It is clear from the arguments of the petitioner that the
petitioner doubts whether the provision "The state servant of
political (personal) confidence who is elected a member of the
municipal council and who has become a career state servant or
the head of a civil service establishment of the administration
of the same municipality under this paragraph must <...> apply
to the Central Electoral Commission with an application
concerning his resignation from the position of a member of the
municipal council. The person who has not filed the application
under the procedure established in Article 86 of the Law on
Elections to Municipal Councils within this period shall lose
the status of a state servant under Item 4 of Paragraph 1 of
Article 56 of the Law on the State Service" of Paragraph 12
(wording of 29 August 2000) of Article 62 of the Law on the
State Service as well as the provision "The state servants of
political (personal) confidence who became career state
servants or heads of civil service establishments of the
municipal administration in the manner prescribed in this
Paragraph and who were elected members of the council of the
same municipality must decide on their subsequent service. The
persons who have chosen to continue in the state service must
apply to the Central Electoral Commission with an application
concerning their resignation from members of the municipal
council. The persons who have not filed the application under
the procedure established in Paragraph 1 of Article 86 of the
Law on Elections to Municipal Councils shall lose the status of
a state servant under Item 4 of Paragraph 1 of Article 56 of
the Law on the State Service" of Paragraph 12 (wording of 21
November 2000) of Article 62 of the Law on the State Service is
not in conflict with the Constitution.
8. As mentioned, the petitioner had doubts whether
Paragraph 12 (wordings of 29 August 2000 and 21 November 2000)
of Article 62 of the Law on the State Service is not in
conflict, to the aforementioned extent, with the principles of
a just civil society and state under the rule of law entrenched
in the Preamble to the Constitution.
It has been held in this Ruling of the Constitutional
Court that investigation of the compliance of legal acts (parts
thereof) with the enshrined in the Preamble to the Constitution
striving for a just civil society and state under the rule of
law implies the investigation of their compliance with the
constitutional principle of a state under the rule of law.
9. It has also been held in this Ruling that the
petitioner had doubts whether Paragraph 12 of Article 62 of the
Law on the State Service is not in conflict, to the
aforementioned extent, with Paragraph 1 of Article 48 of the
Constitution.
It is clear from the arguments of the petitioner that the
petitioner had doubts as to the compliance of the disputed
provisions with not entire Paragraph 1 of Article 48 of the
Constitution but only the provision of Paragraph 1 of this
article that each human being may freely choose a job.
10. As mentioned, one of aspects of the constitutional
principle of a state under the rule of law is that similar
cases must be decided in a similar manner. Thus, the discretion
of jurisdictional institutions in settling disputes and
applying law is limited. In its rulings of 12 July 2001 and 30
May 2003 as well as decision of 13 February 2004, the
Constitutional Court held that the principle of a state under
the rule of law consolidated in the Constitution inter alia
implies the continuity of jurisprudence. The Constitutional
Court, while deciding analogous constitutional disputes,
follows the doctrine formulated in previous cases, which
reveals the content of the Constitution.
11. In its rulings of 24 December 2002 and 30 May 2003,
the Constitutional Court held that the principle of superiority
of municipal councils over the executive bodies which are
accountable to them is consolidated in the Constitution. This
principle inter alia means that municipal councils enjoy the
powers to exercise control on the executive bodies which are
accountable to them. Thus, under the Constitution, the bodies
accountable to municipal councils cannot be formed from members
of the municipal councils that form them.
In its ruling of 30 May 2003, the Constitutional Court
held:
"Paragraph 3 of Article 3 of the Republic of Lithuania Law
on Local Self-Government provides that the director of the
municipal administration shall be the executive institution of
the municipality. Under Paragraph 2 of Article 29 of this law,
the director of the municipal administration is the head of the
establishment subordinate to the municipal council and
accountable to the mayor. The municipal administration is a
municipal establishment which consists of structural and
structural-territorial divisions-neighbourhoods (branch
offices), civil servants and other state servants not included
into structural divisions (Paragraph 1 of Article 29).
Paragraph 4 of Article 29 of the same law provides that the
municipal council shall decide on the establishment of the
office of the deputy director of the administration or the
substitution of the director of the administration. Servants of
the municipal administration shall be accountable to the
director of the municipal administration (Paragraph 8 of
Article 29).
Since, under the Constitution, the executive bodies
accountable to municipal councils may not be formed from among
members of the municipal councils which establish them, the
director of the municipal administration, his deputy, and a
state servant of the municipal administration may not be
members of the municipal council at the same time."
It was construed in the Constitutional Court decision of
13 February 2004 that the provision "<...> officials of the
institutions accountable to the municipal council <...> may not
be members of the municipal councils at the same time" means
that if the laws provide that heads of municipal establishments
and enterprises or their officials are accountable to municipal
councils for the activities of their or other respective
establishments and enterprises, then they may not be members of
the municipal councils at the same time.
12. In the provision "The state servant of political
(personal) confidence who is elected a member of the municipal
council and who has become a career state servant or the head
of a civil service establishment of the administration of the
same municipality under this paragraph must <...> apply to the
Central Electoral Commission with an application concerning his
resignation from the position of a member of the municipal
council. The person who has not filed the application under the
procedure established in Article 86 of the Law on Elections to
Municipal Councils within this period shall lose the status of
a state servant under Item 4 of Paragraph 1 of Article 56 of
the Law on the State Service" of Paragraph 12 (wording of 29
August 2000) of Article 62 of the Law on the State Service as
well as the provision "The state servants of political
(personal) confidence who became career state servants or heads
of civil service establishments of the municipal administration
in the manner specified in this Paragraph and who were elected
members of the council of the same municipality must decide on
their subsequent service. The persons who have chosen to
continue in the state service must apply to the Central
Electoral Commission with an application concerning their
resignation from members of the municipal council. The persons
who have not filed the application under the procedure
established in Paragraph 1 of Article 86 of the Law on
Elections to Municipal Councils shall lose the status of a
state servant under Item 4 of Paragraph 1 of Article 56 of the
Law on the State Service" of Paragraph 12 (wording of 21
November 2000) of Article 62 of the Law on the State Service
precisely such legal regulation was established under which the
office of a state servant of the municipal administration is
incompatible with the office of a member of the council of the
same municipality and under which the state servant of the
municipal administration must choose whether he will continue
to hold office in the state service and to refuse the mandate
of a member of the municipal council, or to hold the office of
a member of the municipal council and lose the office in the
state service of the municipal administration.
16. Taking account of the arguments set forth, one is to
hold that the provision "The state servant of political
(personal) confidence who is elected a member of the municipal
council and who has become a career state servant or the head
of a civil service establishment of the administration of the
same municipality under this paragraph must <...> apply to the
Central Electoral Commission with an application concerning his
resignation from the position of a member of the municipal
council. The person who has not filed the application under the
procedure established in Article 86 of the Law on Elections to
Municipal Councils within this period shall lose the status of
a state servant under Item 4 of Paragraph 1 of Article 56 of
the Law on the State Service" of Paragraph 12 (wording of 29
August 2000) of Article 62 of the Law on the State Service as
well as the provision "The state servants of political
(personal) confidence who became career state servants or heads
of civil service establishments of the municipal administration
in the manner specified in this Paragraph and who were elected
members of the council of the same municipality must decide on
their subsequent service. The persons who have chosen to
continue in the state service must apply to the Central
Electoral Commission with an application concerning their
resignation from members of the municipal council. The persons
who have not filed the application under the procedure
established in Paragraph 1 of Article 86 of the Law on
Elections to Municipal Councils shall lose the status of a
state servant under Item 4 of Paragraph 1 of Article 56 of the
Law on the State Service" of Paragraph 12 (wording of 21
November 2000) of Article 62 of the Law on the State Service
were not in conflict with the Constitution, thus also with
Paragraph 1 of Article 29, Paragraph 1 of Article 33, Paragraph
1 of Article 48 of the Constitution and the constitutional
principle of a state under the rule of law.
17. By its 5 November 2001 ruling, the Vilnius Regional
Administrative Court, a petitioner, requests to investigate
whether Paragraph 7 of Article 29 of the Law on Local
Self-government is not in conflict with the principles of a
just civil society and state under the rule of law entrenched
in the Preamble to the Constitution, as well as Paragraph 1 of
Article 29 of the Constitution, Paragraph 1 of Article 33 and
Paragraph 1 of Article 48 of the Constitution.
18. On 7 July 1994, the Seimas adopted the Law on Local
Self-government. Under Article 31 of this law, this law went
into effect on the first day after the election to municipal
councils of the Republic of Lithuania, i.e. on 26 March 1995.
19. On 12 October 2000, the Seimas adopted the Republic of
Lithuania Law on Amending the Law on Local Self-government, by
Article 1 whereof it set forth the Law on Local Self-government
(wording of 7 July 1994 with subsequent amendments and
supplements) in a new wording. This law went into effect on 27
October 2000.
It was provided in Paragraph 7 (wording of 12 October
2000) of Article 29 of the Law on Local Self-government:
"Servants of the municipal administration cannot be members of
the council of the municipality in which they work."
It was provided in Item 7 (wording of 12 October 2000) of
Paragraph 4 of Article 29 of the Law on Local Self-government
that the municipal administrator appoints and dismisses, under
procedure established in the Law of State Service, civil
servants and state employees as well as heads of establishments
that render public services, coordinates and controls their
work and performs other functions of personal supervision that
he is assigned with by the Law on State service.
20. On 25 September 2001, the Seimas adopted the Law on
Amending and Supplementing Articles 11, 15, 17, 21, 27, 28, 29,
30, 36, 37 of the Law on Local Self-government by Article 7
whereof it amended and supplemented Article 29 (wording of 12
October 2000) of the Law on Local Self-government. Under the
aforementioned law, Paragraph 7 (wording of 12 October 2000) of
Article 29 of the Law on Local Self-government became Paragraph
10, while Item 7 (wording of 12 October 2000) of Paragraph 4 of
Article 29 of the Law on Local Self-government became Item 7 of
Paragraph 7 of Article 29.
It was provided in Paragraph 7 (wording of 25 September
2001) of Article 29 of the Law on Local Self-government:
"The municipal administrator shall: <...>
7) appoint and dismiss, under procedure established in the
Law on the State Service, civil servants and state employees as
well as heads of establishments rendering public services,
coordinate and control their work, and perform other functions
of personnel management assigned to him by the Law on the State
Service <...>".
21. On 28 January 2003, the Seimas adopted the Law on
Amending Articles 3, 5, 6, 11, 12, 14, 15, 16, 17, 18, 20, 21,
28, 29, 30, 31, 33, 49, 50 of the Law on Local Self-government
and Recognition of Article 19 Thereof as No Longer Valid, by
Article 15 whereof it amended Article 29 (wording of 25
September 2001) of the Law on Local Self-government: the legal
regulation established in Item 7 (wording of 25 September 2001)
of Paragraph 7 of Article 29 of the Law on Local
Self-government, after it had been amended, was moved to Item 5
of Paragraph 7 of Article 29 of this law.
It was established in Item 5 (wording of 28 January 2003)
of Paragraph 7 of Article 29 of the Law on Local
Self-government that the director of the municipal
administration shall appoint and dismiss, under procedure
established in laws, state servants and other employees of the
municipal administration, coordinate and control the work of
establishments rendering public services, and perform other
functions of personnel management assigned to him by the Law on
the State Service and the municipal council.
Paragraph 10 (wording of 25 September 2001) of Article 29
of the Law on Local Self-government was not amended by the Law
on Amending Articles 3, 5, 6, 11, 12, 14, 15, 16, 17, 18, 20,
21, 28, 29, 30, 31, 33, 49, 50 of the Law on Local
Self-government and Recognition of Article 19 Thereof as No
Longer Valid.
22. On 4 July 2003, the Seimas adopted the Law on Amending
Articles 3, 4, 14, 15, 16, 17, 20, 24, 25, 27, 28, 29, 31, 36,
38, 41 of the Law on Local Self-government and Supplementing
Thereof with Article 291 by Article 12 whereof it amended
Article 29 (wording of 28 January 2003) of the Law on Local
Self-government: the legal regulation established in Item 5
(wording of 28 January 2003) of Paragraph 7 of Article 29 of
the Law on Local Self-government, after it had been amended,
was moved to Item 6 (wording of 4 July 2003) of Paragraph 5 of
Article 29 of the Law on Local Self-government.
It was established in Item 6 (wording of 4 July 2003) of
Paragraph 5 of Article 29 of the Law on Local Self-government
that the director of the municipal administration shall appoint
and dismiss, under procedure established in laws, state
servants and other employees of the municipal administration,
coordinate and control the work of establishments rendering
public services, and perform other functions of personnel
management assigned to him by the Law on the State Service and
the municipal council (save appointment to and dismissal from
office of heads of establishments rendering public services and
imposition of penalties upon them).
23. The petitioner does not point out in his petition as
to which wording, in his opinion, of Paragraph 7 of Article 29
of the Law on Local Self-government, is in conflict with the
Constitution.
It is clear from the arguments of the petitioner that the
petitioner doubts whether Paragraph 7 (wording of 25 September
2001) of Article 29 of the Law on Local Self-government is not
in conflict with the Constitution.
24. As mentioned, under Paragraph 7 (wording of 28 January
2003) of Article 29 of the Law on Local Self-government, the
municipal administrator shall appoint and dismiss, under
procedure established in laws, civil servants and state
employees as well as heads of establishments rendering public
services, coordinate and control their work, and perform other
functions of personnel management assigned to him by the Law on
the State Service and the municipal council (Item 7).
The petitioner requests to investigate the compliance of
entire Paragraph 7 of Article 29 of the Law on Local
Self-government.
It is clear from the arguments of the petitioner that the
petitioner doubts not as concerns entire Paragraph 7 (wording
of 25 September 2001) of Article 29 of the Law on Local
Self-government, but only as to whether the provision "The
municipal administrator shall: <...> (7) <...> dismiss, under
procedure established in the Law on the State Service, civil
servants and state employees as well as heads of establishments
rendering public services <...>" of the same paragraph is not
in conflict with the Constitution.
25. It was also mentioned that the petitioner requests to
investigate whether Paragraph 7 (wording of 25 September 2001)
of Article 29 of the Law on Local Self-government to the
aforesaid extent is not in conflict with the principles of a
just civil society and state under the rule of law which are
entrenched in the Preamble to the Constitution.
It has been held in this Ruling of the Constitutional
Court that the investigation of the compliance of legal acts
(parts thereof) with the enshrined in the Preamble to the
Constitution striving for a just civil society and state under
the rule of law implies the investigation of their compliance
with the constitutional principle of a state under the rule of
law.
26. As mentioned, the petitioner had doubts whether
Paragraph 7 (wording of 25 September 2001) of Article 29 of the
Law on Local Self-government to the aforesaid extent is not in
conflict with Paragraph 1 of Article 48 of the Constitution.
It is clear from the arguments of the petitioner that the
petitioner had doubts as to the compliance of the disputed
provision with not entire Paragraph 1 of Article 48 of the
Constitution, but only with the provision of Paragraph 1 of
this article that each human being may freely choose a job.
27. It has been held in this Ruling of the Constitutional
Court that, under the Constitution, the bodies accountable to
municipal councils cannot be formed from members of the
municipal councils that form them, and the director of the
municipal administration, his deputy, a servant of the
municipal administration cannot be also members of the council
of this municipality at the same time.
Under the Constitution, in order to implement the
requirement stemming from the Constitution not to form the
bodies accountable to municipal councils from members of the
municipal council that forms these bodies, the legislator has a
duty to establish as to who (and in what way) implements this
constitutional requirement.
28. Under Item 7 (wording of 25 September 2001) of
Paragraph 7 of Article 29 of the Law on Local Self-government,
the municipal administrator dismisses, under procedure
established in the Law on the State Service, civil servants and
state employees as well as heads of establishments rendering
public services. Thus, the legal entity is specified in this
provision of the law, who enjoys powers inter alia to dismiss a
state servant from office under procedure established in the
Law on the State Service.
In the context of the case at issue one is to note that
while taking account of Item 4 (wordings of 8 July 1999, 29
August 2000, and 21 November 2000) of Paragraph 2 of Article 56
and Paragraph 12 (wordings of 29 August 2000 and 21 November
2000) of the Law on the State Service, the municipal
administrator has a duty to dismiss a state servant from office
when the latter begins to hold the office of a member of the
council of the same municipality.
29. Taking account of the arguments set forth, one is to
hold that the provision "The municipal administrator shall:
<...> (7) <...> dismiss, under procedure established in the Law
on the State Service, civil servants and state employees as
well as heads of establishments rendering public services
<...>" of Paragraph 7 (wording of 28 January 2003) of Article
29 of the Law on Local Self-government was not in conflict with
the Constitution, thus also with Paragraph 1 of Article 29,
Paragraph 1 of Article 33, Paragraph 1 of Article 48 of the
Constitution and the constitutional principle of a state under
the rule of law.
V
On the compliance of Item 4 (wording of 23 April 2002) of
Article 17 and Item 1 (wording of 23 April 2002) of Paragraph 4
of Article 29 of the Law on the State Service and Paragraph 6
(wording of 4 July 2002) of Article 4 of the Law on the
Implementation of the Law on Supplementing the Law on the State
Service with Paragraphs 1 and 2 of Article 23, Article 29,
Paragraph 1 of Article 48 of the Constitution and the
constitutional principle of a state under the rule of law.
1. By its ruling of 18 April 2003, the Alytus Local
District Court, a petitioner, requests to investigate whether
Item 4 of Article 17 of the Law on Amending the Law on the
State Service is not in conflict with Articles 23, 29, and 48
of the Constitution.
2. As mentioned, on 23 April 2002, the Seimas adopted the
Law on Amending the Law on the State Service by Article 1
whereof it set forth the Law on the State Service in a new
wording. It was provided in Article 2 of Law on Amending the
Law on the State Service that the procedure of entry into
effect and implementation of this law shall be established by
the Law on the Implementation of the Law on Amending the Law on
the State Service.
3. As mentioned, the Alytus Local District Court, a
petitioner, requests to investigate whether Item 4 of Article
17 of the Law on Amending the Law on the State Service is not
in conflict with the Constitution.
There are only two articles in the Law on Amending the Law
on the State Service (wording of 23 April 2002); there is no
Article 17 in this law. Article 17 due to the compliance of
Item 4 whereof with the Constitution the petitioner had doubts
was set forth in the Law on the State Service (wording of 23
April 2002).
Taking account of this, one is to hold that the petitioner
had doubts whether Item 4 (wording of 23 April 2002) of Article
17 of the Law on the State Service is not in conflict with
Articles 23, 29 and 48 of the Constitution.
4. The Alytus Local District Court, a petitioner, had
doubts whether Item 4 (wording of 23 April 2002) of Article 17
of the Law on the State Service is not in conflict with entire
Article 23 of the Constitution and entire Article 48 of the
Constitution.
It is clear from the arguments of the petitioner that the
petitioner had doubts as to the compliance of Item 4 (wording
of 23 April 2002) of Article 17 of the Law on the State Service
with not entire Article 23 of the Constitution but only with
Paragraphs 1 and 2 of this article, and not with entire Article
48 of the Constitution but only with the provision of Paragraph
1 of this article that each human being may freely choose a job
and business.
5. It was established in Article 17 (wording of 23 April
2002) of the Law on the State Service:
"The state servant shall be prohibited from: <...>
4) working as a hired employee, advisor, expert or
consultant in private legal persons, in state or municipal
enterprises, in public establishments, as well as receiving
remuneration for work other than established by this Law, save
the remuneration for work in all level electoral and referendum
commissions and for work under contracts with electoral and
referendum commissions, for scientific and educational work in
schools of higher education or establishments of state
servants' qualification raising, for informal adult education,
for preparation of draft legal acts (unless this function is
specified in the description of the position of the state
servant), when he is assigned, by a Seimas resolution or
decision of the Board of the Seimas, ordinance of the President
of the Seimas, decree of the President of the Republic,
Government Resolution or an ordinance of the Prime Minister,
with preparation of draft legal acts, and save the royalties
for production which is subject to intellectual property rights
<...>".
6. While assessing the legal regulation consolidated in
the said provision of Article 17 (wording of 23 April 2002) of
the Law on the State Service, it is clear that under this
regulation the state servant was permitted to work in all level
electoral and referendum commissions and to work under
contracts with electoral and referendum commissions, to perform
scientific and educational work in schools of higher education
or establishments of state servants' qualification raising, to
perform work related to informal adult education, to prepare
draft legal acts (unless this function is specified in the
description of the position of the state servant), when he is
assigned, by a Seimas resolution or decision of the Board of
the Seimas, ordinance of the President of the Seimas, decree of
the President of the Republic, Government Resolution or an
ordinance of the Prime Minister, with preparation of draft
legal acts and to receive remuneration for this, as well as
royalties for production which is subject to intellectual
property rights.
The provision "The state servant shall be prohibited from:
<...> (4) working as a hired employee, advisor, expert or
consultant in private legal persons, in state or municipal
enterprises, in public establishments, as well as receiving
remuneration for work other than established by this Law" of
Article 17 (wording of 23 April 2002) of the Law on the State
Service, when one takes account of the exceptions established
in Item 4 (wording of 23 April 2002) of Article 17 of this law,
means that the state servant is prohibited from working other
work save that permitted under this item of the Law on the
State Service, and from receiving other remuneration for work
save that that he may receive under this item of the Law on
Pubic Service.
7. In the context of the case at issue it is important to
elucidate whether the limitations for the state servant
established in the disputed provision of Article 17 (wording of
23 April 2002) of the Law on the State Service to work in
another work place and receive other remuneration, as well as
the permission to work certain work and to receive remuneration
for it, are constitutionally grounded.
8. It has been held in this Ruling of the Constitutional
Court that state servants are a special social group, the
specifics of which are determined by the purpose of the state
service and its social significance, that constitutional
requirements to the state service imply certain requirements to
state servants, that the legal status of state servants, and
implementation of the rights and freedoms enjoyed by them under
the Constitution and laws, cannot not bear any important
characteristics.
It was also held that the legislator, under the
Constitution, enjoys the right to establish certain
requirements, which would limit the activity of state servants
which is not related to the state service. It was mentioned
that, according to the Constitution, it is permitted to
restrict the human rights and freedoms if: this is done by law;
the restrictions are necessary in a democratic society in
attempt to protect the rights and freedoms of other persons and
the values entrenched in the Constitution as well as the
constitutionally important objectives; the restrictions do not
deny the nature and essence of the rights and freedoms; the
constitutional principle of proportionality is followed.
By legislatively establishing limitations on other work
done by the state servants, it is necessary to take account of
the fact that under the Constitution these limitations must be
such so that they help to evade the conflict between state and
private interests in the state service, that the state service
and the opportunities it provides are not used in private
interests but for guaranteeing the state interest, that the
state servant is not hindered from performing his duties of
office, that the authority of the state service or of
respective state or municipal institution is not damaged, that
they are not discredited, that the way is blocked to state
servants to work in the enterprises, establishments and
organisations in whose respect they enjoy authoritative powers
or whose activities they control and supervise, or adopt
certain other decisions related with this enterprise,
establishment or organisation (or they participate in the
preparation, execution, coordination and/or control of these
decisions etc.).
9. It has been mentioned that under the disputed provision
of Article 17 (wording of 23 April 2002) of the Law on the
State Service, the state servant was permitted to work in all
level electoral and referendum commissions and to work under
contracts with electoral and referendum commissions, to perform
scientific and educational work in schools of higher education
or establishments of state servants' qualification raising, to
perform work related to informal adult education, to prepare
draft legal acts (unless this function is specified in the
description of the position of the state servant), when he is
assigned, by a Seimas resolution or decision of the Board of
the Seimas, ordinance of the President of the Seimas, decree of
the President of the Republic, Government Resolution or an
ordinance of the Prime Minister, with preparation of draft
legal acts and to receive remuneration for this, as well as
royalties for production which is subject to intellectual
property rights.
Thus, in the disputed provision of Article 17 (wording of
23 April 2002) of the Law on the State Service the legal
regulation was established where the state servant was
permitted to work in another work place and receive other
remuneration regardless of any circumstances. Thus, under the
said legal regulation, the state servant is permitted to work
also in a such work place and receive other remuneration even
in the cases when this may be incompatible with the
guaranteeing of the public interest in the state service, with
the prohibition to use the state service in private interests,
with prohibition to be engaged in activities discrediting the
authority of the state service, with the requirement to ensure
that a person, who holds an office in the state service,
properly perform the duties assigned to him, with the
prohibition for a state servant to work in the enterprises,
establishments, organisations in whose respect he enjoys
authoritative powers or controls and supervises their
activities, or adopts certain other decisions concerning this
enterprise, establishment or organisation, as well as where
there are certain other circumstances due to which state
servants cannot work in another work place and receive other
remuneration.
By such legal regulation consolidated in Article 17
(wording of 23 April 2002) of the Law on the State Service one
disregarded the constitutional concept of the state service and
violated the constitutional principle of a state under the rule
of law.
10. As mentioned, under the disputed provision of Article
17 (wording of 23 April 2002) of the Law on the State Service,
the state servant was prohibited from working as a hired
employee, advisor, expert or consultant in private legal
persons, in state or municipal enterprises, in public
establishments, as well as receiving remuneration for work
other than established by this law, save the exceptions
established in Item 4 of Article 17 of this law.
Thus, in the disputed provision of Article 17 (wording of
23 April 2002) of the Law on the State Service the legal
regulation was established where the state servant was
prohibited to work in another work place save the exceptions
established in Item 4 of the said article, and from receiving
any other remuneration save the exceptions established in Item
4 of the said article regardless of any circumstances. Thus,
under the said legal regulation the state servant is prohibited
from working in a such work place and receiving such
remuneration even in the cases where this does not give rise to
the conflict between public and private interests in the state
service, where this does not create preconditions to use the
state service in personal interests, does not discredit the
authority of the state service, does not hinder the person who
holds an office in the state service to properly perform the
duties assigned to him, also, when this is not the work in the
enterprises, establishments and organisations in whose respect
the state servant enjoys authoritative powers or controls and
supervises their activity, or adopts certain other decisions in
regard of this enterprise, establishment or organisation, and
when there are not any other circumstances due to which state
servants cannot work in another work place and receive
remuneration.
Such prohibition established in the disputed provision of
Article 17 (wording of 23 April 2002) of the Law on the State
Service was disproportionate to the objective sought, it
limited the right of state servants to work in another work
place and receive remuneration more than was necessary to
protect the constitutionally important objectives.
By such legal regulation consolidated in Article 17
(wording of 23 April 2002) of the Law on the State Service one
disregarded the constitutional concept of a state under the
rule of law and violated the provision of Paragraph 1 of
Article 48 of the Constitution that each human being may freely
choose a job and business.
11. Alongside, it is to be noted that such regulation of
the right of state servants to work in another work place and
receive other remuneration would be in compliance with the
Constitution, under which one could decide in each particular
case whether to permit the state servant to work in another
work place, by having additionally assessed whether by such a
permission no preconditions would be created for the conflict
between state and private interests in the state service, for
the use of the state service in private interests, for
engagement in the activity discrediting the state service, for
hindrance of the person who holds an office in the state
service to properly perform the duties assigned to him, whether
the state servant would not work in the enterprises,
establishments and organisations in whose regard he enjoys
authoritative powers or controls and supervises their
activities or adopts any other decisions as regards this
enterprise, establishment or organisation, whether there are
not any other circumstances due to which state servants cannot
work in another work place and receive other remuneration. The
legislator ought to provide for the subjects, too, who would
decide whether to permit or not to permit the state servant to
work in another work place and receive other remuneration, and
for liability of these subjects for adopted unlawful decisions.
12. Taking account of the arguments set forth, one is to
conclude that the provision "The state servant shall be
prohibited from: <...> (4) working as a hired employee,
advisor, expert or consultant in private legal persons, in
public or municipal enterprises, in state establishments, as
well as receiving remuneration for work other than established
by this Law, save the remuneration for work in all level
electoral and referendum commissions and for work under
contracts with electoral and referendum commissions, for
scientific and educational work in schools of higher education
or establishments of state servants' qualification raising, for
informal adult education, for preparation of draft legal acts
(unless this function is specified in the description of the
position of the state servant), when he is assigned, by a
Seimas resolution or decision of the Board of the Seimas,
ordinance of the President of the Seimas, decree of the
President of the Republic, Government Resolution or an
ordinance of the Prime Minister, with preparation of draft
legal acts, and save the royalties for production which is
subject to intellectual property rights <...>" of Article 17
(wording of 23 April 2002) of the Law on the State Service was
in conflict with Paragraph 1 of Article 48 of the Constitution
and the constitutional principle of a state under the rule of
law.
13. Having held this, the Constitutional Court will not
investigate whether the disputed provision of Article 17
(wording of 23 April 2002) of the Law on the State Service was
not in conflict with Paragraphs 1 and 2 of Article 23 and
Article 29 of the Constitution.
14. On 12 November 2002, the Seimas adopted the Law on
Supplementing Article 17 of the Law on the State Service by
Article 1 whereof it supplemented Article 17 of the Law on the
State Service with Item 5.
On 7 October 2003, the Seimas adopted the Law on Amending
and Supplementing Articles 2, 7, 16, 17, 19, 39, 41, 42, 43,
44, 46 of the Law on the State Service and Supplementing
Article 51 Thereto, by Article 5 whereof it amended Item 3 of
Article 17 of the Law on the State Service.
By these laws the legal regulation established in Item 4
(wording of 23 April 2002) of Article 17 of the Law on the
State Service was not amended.
15. On 13 July 2004, the Seimas adopted the Law on
Amending and Supplementing Articles 4, 8, 15, 16, 17, 22, 25,
30, 43 of the Law on the State Service by Article 5 whereof it
inter alia amended Item 4 (wording of 23 April 2002) of Article
17 of the Law on the State Service and set it forth as follows:
"<...> working as a hired employee, advisor, expert or
consultant in private legal persons, in state or municipal
enterprises, in public establishments, as well as receiving
remuneration for work other than established by this Law, save
the remuneration for work in all level electoral and referendum
commissions and for work under contracts with electoral and
referendum commissions, for scientific and educational work in
schools of higher education or establishments of state
servants' qualification raising, for informal adult education,
for preparation of draft legal acts (unless this function is
specified in the description of the position of the state
servant), when he is assigned, by a Seimas resolution or
decision of the Board of the Seimas, ordinance of the President
of the Seimas, decree of the President of the Republic,
Government Resolution or an ordinance of the Prime Minister,
with preparation of draft legal acts, and save the royalties
for production which is subject to intellectual property
rights, and the remuneration for the work which is performed in
discharging the duties of a member of the municipal council
outside office (work) hours or during office (work) hours if
during that time the remuneration for work of the state servant
is not to be paid".
By this legal regulation, if compared with the legal
regulation established in Item 4 (wording of 23 April 2002) of
Article 17 of the Law on the State Service, it was additionally
established that the state servant may additionally receive
remuneration for the work which is performed in discharging the
duties of a member of the municipal council outside office
(work) hours or during office (work) hours if during that time
the remuneration for work of the state servant is not to be
paid.
16. If one compares the provision "The state servant shall
be prohibited from: <...> (4) working as a hired employee,
advisor, expert or consultant in private legal persons, in
state or municipal enterprises, in public establishments, as
well as receiving remuneration for work other than established
by this Law, save the remuneration for work in all level
electoral and referendum commissions and for work under
contracts with electoral and referendum commissions, for
scientific and educational work in schools of higher education
or establishments of state servants' qualification raising, for
informal adult education, for preparation of draft legal acts
(unless this function is specified in the description of the
position of the state servant), when he is assigned, by a
Seimas resolution or decision of the Board of the Seimas,
ordinance of the President of the Seimas, decree of the
President of the Republic, Government Resolution or an
ordinance of the Prime Minister, with preparation of draft
legal acts, and save the royalties for production which is
subject to intellectual property rights <...>" of Article 17
(wording of 13 July 2004) of the Law on the State Service with
the provision "The state servant shall be prohibited from:
<...> (4) "<...> working as a hired employee, advisor, expert
or consultant in private legal persons, in public or municipal
enterprises, in state establishments, as well as receiving
remuneration for work other than established by this Law, save
the remuneration for work in all level electoral and referendum
commissions and for work under contracts with electoral and
referendum commissions, for scientific and educational work in
schools of higher education or establishments of state
servants' qualification raising, for informal adult education,
for preparation of draft legal acts (unless this functions is
specified in the description of the position of the state
servant), when he is assigned, by a Seimas resolution or
decision of the Board of the Seimas, ordinance of the President
of the Seimas, decree of the President of the Republic,
Government Resolution or an ordinance of the Prime Minister,
with preparation of draft legal acts, and save the royalties
for production which is subject to intellectual property rights
<...>" of Article 17 (wording of 23 April 2002) of the Law on
the State Service, which, as held in this Ruling of the
Constitutional Court, was in conflict with Paragraph 1 of
Article 48 of the Constitution and the constitutional principle
of a state under the rule of law, it is clear that these
provisions are identical.
17. On the grounds of the same arguments, one is to draw a
conclusion that the provision "The state servant shall be
prohibited from: <...> (4) working as a hired employee,
advisor, expert or consultant in private legal persons, in
state or municipal enterprises, in public establishments, as
well as receiving remuneration for work other than established
by this Law, save the remuneration for work in all level
electoral and referendum commissions and for work under
contracts with electoral and referendum commissions, for
scientific and educational work in schools of higher education
or establishments of state servants' qualification raising, for
informal adult education, for preparation of draft legal acts
(unless this function is specified in the description of the
position of the state servant), when he is assigned, by a
Seimas resolution or decision of the Board of the Seimas,
ordinance of the President of the Seimas, decree of the
President of the Republic, Government Resolution or an
ordinance of the Prime Minister, with preparation of draft
legal acts, and save the royalties for production which is
subject to intellectual property rights <...>" of Article 17
(wording of 13 July 2004) of the Law on the State Service is in
conflict with Paragraph 1 of Article 48 of the Constitution and
the constitutional principle of a state under the rule of law.
18. By its ruling of 18 April 2003, the Alytus Local
District Court, a petitioner, requests to investigate whether
Paragraph 6 of Article 4 of the Law on the Implementation of
the Law on Supplementing the Law on the State Service is not in
conflict with Articles 23, 29 and 48 of the Constitution.
19. It has been mentioned that on 23 April 2002 the Seimas
adopted the Law on Amending the Law on the State Service by
Article 1 whereof it set forth the Law on the State Service in
a new wording, while it was established in Article 2 of the
said law that the procedure of entry into effect and
implementation of this law shall be established by the Law on
the Implementation of the Law on Amending the Law on the State
Service.
20. On 23 April 2002, the Seimas adopted the Law on the
Implementation of the Law on Amending the Law on the State
Service. This law went into effect on 4 May 2002.
21. On 4 July 2002, the Seimas adopted the Republic of
Lithuania Law on Amending and Supplementing Article 4 of the
Law on the Implementation of the Law on Amending the Law on the
State Service. The said law went into effect on 19 July 2002.
Article 1 of the Law on Amending and Supplementing Article
4 of the Law on the Implementation of the Law on Amending the
Law on the State Service provides:
"To cross out the words 'who practice medicine' in the
first sentence of Paragraph 6 of Article 4, to supplement this
paragraph with a new second sentence and to set forth the whole
paragraph as follows:
'6. The state servants who work in the sphere of culture
or as teachers in schools of general education and receive
remuneration for this, must discontinue this activity within
one month of the entry into effect of the Law on Amending the
Law on the State Service. The state servants who practice
medicine must end this practice till 1 January 2003. The state
servants who do not discontinue the practice that is prohibited
to state servants within the term specified in this Paragraph
shall be dismissed from the state service.'"
22. The Alytus Local District Court, a petitioner, does
not point out as to which wording of Paragraph 6 of Article 4
of the Law on the Implementation of the Law on Amending the Law
on the State Service is, in his opinion, in conflict with the
Constitution.
The legal regulation disputed by the petitioner is
established in Paragraph 6 (wording of 4 July 2002) of Article
4 of the Law on the Implementation of the Law on Amending the
Law on the State Service.
23. The Alytus Local District Court, a petitioner, had
doubts whether Paragraph 6 (wording of 4 July 2002) of Article
4 of the Law on the Implementation of the Law on Amending the
Law on the State Service was not in conflict with entire
Article 48 of the Constitution.
It is clear from the arguments of the petitioner that that
the Alytus Local District Court, a petitioner, had doubts as to
the compliance of Paragraph 6 (wording of 4 July 2002) of
Article 4 of the Law on the Implementation of the Law on
Amending the Law on the State Service with not entire Article
48 of the Constitution, but only with the provision of
Paragraph 1 of this article that each human being may freely
choose a job and business.
24. In Paragraph 6 (wording of 4 July 2002) of Article 4
of the Law on the Implementation of the Law on Amending the Law
on the State Service the procedure for implementation of Item 4
(wording of 23 April 2002) of Article 17 of the Law on the
State Service is established.
It has been held in this Ruling of the Constitutional
Court that the provision "The state servant shall be prohibited
from: <...> (4) working as a hired employee, advisor, expert or
consultant in private legal persons, in state or municipal
enterprises, in public establishments, as well as receiving
remuneration for work other than established by this Law, save
the remuneration for work in all level electoral and referendum
commissions and for work under contracts with electoral and
referendum commissions, for scientific and educational work in
schools of higher education or establishments of state
servants' qualification raising, for informal adult education,
for preparation of draft legal acts (unless this function is
specified in the description of the position of the state
servant), when he is assigned, by a Seimas resolution or
decision of the Board of the Seimas, ordinance of the President
of the Seimas, decree of the President of the Republic,
Government Resolution or an ordinance of the Prime Minister,
with preparation of draft legal acts, and save the royalties
for production which is subject to intellectual property rights
<...>" of Article 17 (wording of 23 April 2002) of the Law on
the State Service was in conflict with Paragraph 1 of Article
48 of the Constitution and the constitutional principle of a
state under the rule of law.
Thus, by the legal regulation established in Paragraph 6
(wording of 4 July 2002) of Article 4 of the Law on the
Implementation of the Law on Amending the Law on the State
Service the provision of Article 17 (wording of 23 April 2002)
of the Law on the State Service which is in conflict with the
Constitution is implemented.
23. Taking account of the fact that in this Ruling of the
Constitutional Court the provision "The state servant shall be
prohibited from: <...> (4) working as a hired employee,
advisor, expert or consultant in private legal persons, in
state or municipal enterprises, in public establishments, as
well as receiving remuneration for work other than established
by this Law, save the remuneration for work in all level
electoral and referendum commissions and for work under
contracts with electoral and referendum commissions, for
scientific and educational work in schools of higher education
or establishments of state servants' qualification raising, for
informal adult education, for preparation of draft legal acts
(unless this function is specified in the description of the
position of the state servant), when he is assigned, by a
Seimas resolution or decision of the Board of the Seimas,
ordinance of the President of the Seimas, decree of the
President of the Republic, Government Resolution or an
ordinance of the Prime Minister, with preparation of draft
legal acts, and save the royalties for production which is
subject to intellectual property rights <...>" of Article 17
(wording of 23 April 2002) of the Law on the State Service was
recognised to be in conflict with Paragraph 1 of Article 48 of
the Constitution and the constitutional principle of a state
under the rule of law, also, taking account of the fact that by
the legal regulation established in Paragraph 6 (wording of 4
July 2002) of Article 4 of the Law on the Implementation of the
Law on Amending the Law on the State Service the said provision
which is in conflict with the Constitution is implemented, one
is to hold that Paragraph 6 (wording of 4 July 2002) of Article
4 of the Law on the Implementation of the Law on Amending the
Law on the State Service is also in conflict with Paragraph 1
of Article 48 of the Constitution and the constitutional
principle of a state under the rule of law.
26. By its ruling of 18 April 2003, the Alytus Local
District Court, a petitioner, requests to investigate whether
Item 1 of Paragraph 4 of Article 29 of the Law on Amending the
Law on the State Service is not in conflict with Articles 23,
29 and 48 of the Constitution.
27. As mentioned, on 23 April 2002 the Seimas adopted the
Law on Amending the Law on the State Service by Article 1
whereof it set forth the Law on the State Service in a new
wording. It was established in Article 2 of the Law on Amending
the Law on the State Service that the procedure of entry into
effect and implementation of this law shall be established by
the Law on the Implementation of the Law on Amending the Law on
the State Service.
The Law on Amending the Law on the State Service did not
use to contain Article 29. Article 29 as regards the compliance
of Item 1 of Article 4 of which with Articles 23, 29 and 48 of
the Constitution the doubts appeared to the petitioner was set
forth in the Law on the State Service (wording of 23 April
2002). Taking account of this, one is to hold that the
petitioner had doubts whether Item 1 (wording of 23 April 2002)
of Paragraph 4 of Article 29 of the Law on the State Service is
not in conflict with Articles 23, 29 and 48 of the
Constitution.
28. Paragraph 4 (wording of 23 April 2002) of Article 29
of the Law on the State Service used to provide:
"An official penalty-dismissal from office-may be imposed
for:
1) engaging in activities incompatible with the state
service <...>".
29. On 4 July 2003, the Seimas adopted the Law on Amending
and Supplementing Articles 2, 4, 9, 14, 15, 16, 29, 30 of the
Law on State service by Article 7 whereof it amended Article 29
of the Law on the State Service.
Paragraph 4 (wording of 4 July 2003) of Article 29 of the
Law on the State Service provides:
"The official penalty-dismissal from office-may be imposed
for gross malfeasance, as well as for other malfeasance
provided the official penalty-severe reprimand-was applied
against the state servant during the last 12 months."
It needs to be noted that under Item 5 (wording of 4 July
2003) of Paragraph 6 of Article 29 of the Law on the State
Service engaging in activities incompatible with the state
service is regarded as gross malfeasance. Thus, the legal
regulation that the official penalty-dismissal from office-may
be imposed for engaging in activities incompatible with the
state service remained in Paragraph 4 (wording of 4 July 2003)
of Article 29 of the Law on the State Service.
30. It is clear from the arguments of the petitioner that
the petitioner has doubts as to the compliance of the disputed
provisions with not entire Article 23 of the Constitution, but
only with Paragraphs 1 and 2 of this article, as well as with
not entire Article 48 of the Constitution, but only with the
provision of Paragraph 1 of this article that each human being
may freely choose a job and business.
31. Paragraphs 1 and 2 of Article 23 of the Constitution
provide:
"Property shall be inviolable.
The rights of ownership shall be protected by laws."
32. Paragraph 4 (wording of 4 July 2003) of Article 29 of
the Law on the State Service provides for an official
penalty-dismissal from office-when there are the grounds
specified in Item 1 of this paragraph, namely, for engaging in
activities incompatible with the state service, i.e. the
disputed provision regulates not property relations but
different ones-the relations of dismissal from the state
service. Therefore, in itself the provision disputed by the
petitioner cannot be in conflict with Paragraphs 1 and 2 of
Article 23 of the Constitution.
33. While deciding whether the provision of Paragraph 4
(wording of 23 April 2002) of Article 29 of the Law on the
State Service, which is disputed by the petitioner, is not in
conflict with Article 29 of the Constitution, one is to note
that an official penalty-dismissal from office-when there are
the grounds specified in Item 1 of this paragraph, namely, for
engaging in activities incompatible with the state service, is
established in Paragraph 4 (wording of 23 April 2002) of
Article 29 of the Law on the State Service. This penalty is
established to all state servants and it does not discriminate
them either on the grounds expressis verbis indicated in
Paragraph 2 of Article 29 of the Constitution, or on any other
constitutionally unjustifiable grounds.
Therefore, one is to draw a conclusion that the provision
"An official penalty-dismissal from office-may be imposed for:
(1) engaging in activities incompatible with the state service
<...>" of Paragraph 4 (wording of 23 April 2002) of Article 29
of the Law on the State Service was not in conflict with
Article 29 of the Constitution.
34. Paragraph 1 of Article 48 of the Constitution inter
alia provides that each human being may freely choose a job and
business.
35. It has been mentioned that Paragraph 4 (wording of 23
April 2002) of Article 29 of the Law on the State Service
provided for the official penalty-dismissal from office-when
there were the grounds specified in Item 1 of this paragraph,
namely, for engaging in activities incompatible with the state
service.
Under the Constitution, the legislator, while establishing
prohibitions for state servants to participate in the activity
incompatible with the state service, also enjoys the right to
established, by means of a law, the measures so that one would
observe these prohibitions, also inter alia liability for
participation in activities incompatible with the state
service. One of the sanctions established by the law for
participation in activities incompatible with the state service
may be dismissal from office.
In addition, it must be noted that the state servant has
the right to choose freely whether to work in the state service
and keep to the established limitations on work and other
activity, or to refuse other work or activity. If he does not
decide upon this and continues the activity which is
incompatible with the state service, he, under Item 1 (wording
of 23 April 2002) of Paragraph 4 of Article 29 of the Law on
the State Service, must be dismissed from the state service.
Therefore, one is to draw a conclusion that the provision
"An official penalty-dismissal from office-may be imposed for:
(1) engaging in activities incompatible with the state service
<...>" of Paragraph 4 (wording of 23 April 2002) of Article 29
of the Law on the State Service did not violate the right of a
person to freely choose a job and business entrenched in
Paragraph 1 of Article 48 of the Constitution.
36. Taking account of the arguments set forth, one is to
conclude that the provision "An official penalty-dismissal from
office-may be imposed for: (1) engaging in activities
incompatible with the state service <...>" of Paragraph 4
(wording of 23 April 2002) of Article 29 of the Law on the
State Service was not in conflict with Paragraphs 1 and 2 of
Article 23, Article 29 and Paragraph 1 of Article 48 of the
Constitution.
VI
On the compliance of Article 26 (wording of 23 April 2002)
of the Law on the State Service with Article 29 and Paragraph 1
of Article 48 of the Constitution as well as the constitutional
principle of a state under the rule of law.
1. By its ruling of 3 April 2003, the Vilnius Regional
Administrative Court, a petitioner, requests to investigate as
to whether the provisions of Article 26 of the Law on the State
Service regulating a constituent part of remuneration for work
of state servants, extra pays, and which do not particularise
the amounts of the extra pays, are not in conflict, by their
content, with the principles of an open, just and harmonious
civil society and state under the rule of law entrenched in the
Preamble to the Constitution, as well as Articles 29 and 48 of
the Constitution.
2. The petitioner does not indicate as to what wording of
the disputed provisions of Article 26 of the Law on the State
Service he requests to investigate.
It is clear from the arguments of the petition that the
petitioner had doubts whether Article 26 (wording of 23 April
2002) of the Law on the State Service is not in conflict with
the Constitution.
Article 26 (wording of 23 April 2002) of the Law on the
State Service provides:
"1. The following extra pays are paid to state servants:
1) for work on days off, holidays and at night;
2) for work in harmful, highly harmful and hazardous
conditions;
3) for performing duties beyond the scope of the normal
work load or additional assignments which exceed the
established work time. Additional assignments to the state
servant must be formulated in writing.
2. The extra pay specified in Item 3 of Paragraph 1 of
this Article may not be paid longer than one year after its
award save the state servants of political (personal)
confidence. If the state servant has to work under the
conditions specified in Item 3 of Paragraph 1 of this Article
for more than a year, it shall be held that they are of
continuous character. In such a case one shall decide on
supplementing the description of the position of the state
servant.
3. The extra pays specified in Items 1, 2 and 3 of this
Article may not be in excess of 60 percent of the positional
salary."
4. The petitioner had doubts as to the compliance of the
disputed provisions of Article 26 (wording of 23 April 2002) of
the Law on the State Service with entire Article 48 of the
Constitution.
It is clear from the arguments of the petitioner that the
petitioner had doubts whether the disputed provisions of
Article 26 (wording of 23 April 2002) of the Law on the State
Service were in conflict with not entire Article 48 of the
Constitution, but only with the provision of Paragraph 1 of
this article that each human shall have the right to just pay
for work.
5. The petitioner had doubts whether the disputed
provisions of Article 26 (wording of 23 April 2002) of the Law
on the State Service are not in conflict with the principles of
an open, just and harmonious civil society and state under the
rule of law entrenched in the Preamble to the Constitution.
It has been held in this Ruling that the investigation of
the compliance of legal acts (parts thereof) with the enshrined
in the Preamble to the Constitution striving for a just civil
society and a state under the rule of law implies the
investigation of their compliance with the constitutional
principle of a state under the rule of law.
6. It is clear from the arguments of the petitioner that
the petitioner had doubts whether Article 26 (wording of 23
April 2002) of the Law on the State Service is not in conflict
with the Constitution in the aspect that this article does not
particularise the amounts of the extra pays.
7. The legal regulation consolidated in Article 26
(wording of 23 April 2002) of the Law on the State Service is
related with the legal regulation consolidated in Article 23
(wording of 23 April 2002) of the Law on the State Service.
Article 23 (wording of 23 April 2002) of the Law on the
State Service provides:
"1. The remuneration for work of the state servant shall
be composed of:
1) the positional salary;
2) extra pays;
3) bonuses.
2. The sum of extra pays and bonuses cannot exceed 70
percent of the positional salary."
8. In Article 23 (wording of 23 April 2002) of the Law on
the State Service the constituent parts of the remuneration for
work of state servants are defined. Under this article, extra
pays are one of constituent parts of the remuneration for work
of the state servant.
In Article 26 (wording of 23 April 2002) of the Law on the
State Service the grounds are established under which state
servants are paid extra pays: they are paid for work on days
off, holidays and at night, for work in harmful, highly harmful
and hazardous conditions, and for performing duties beyond the
scope of the normal work load or additional assignments which
exceed the established work time.
9. As mentioned, under Paragraph 1 of Article 48 of the
Constitution, state servants have the right to have proper,
safe and healthy working conditions, to receive just pay for
work, and social security in the event of unemployment. It has
been held in this Ruling of the Constitutional Court that the
right of state servants to receive just pay for work also means
that the remuneration for work of state servants, which is one
of the main preconditions to implement their other legitimate
interests, must be established by the law and paid at the time
that is established by laws, and that the state and municipal
budgets must provide for the funds necessary for remuneration
for work of state servants.
10. It needs to be noted that the diverse character of the
state service implies that state servants can perform various
work and tasks. State servants can discharge duties during days
off and holidays as well as at night, to work in harmful,
highly harmful and hazardous or other conditions which deviate
from the routine work.
11. As mentioned, in Paragraph 1 of Article 48 of the
Constitution the right to receive just pay for work is
entrenched. The principle of just pay for work does not deny
the right of the legislator to establish various forms of pay
for work to state servants and to establish various constituent
parts of remuneration for work.
It needs to be noted that, under the Constitution, there
may not be any such situation where the state servant who works
during days off and holidays as well as at night, in harmful,
highly harmful and hazardous conditions, and who performs
duties beyond the scope of the normal work load or additional
assignments which exceed the established work time would not be
paid or where this work would be paid unjustly.
It has been held in this Ruling of the Constitutional
Court that clear criteria on the basis of which the size of pay
for work (remuneration for work) is established in regard to
the state servants must be established by the law, that the
professional activity of state servants is to be remunerated
from the state (municipal) budget, and that the budget must
provide for the funds for remuneration for work of the state
servants.
12. While deciding whether Article 26 (wording of 23 April
2002) of the Law on the State Service, in the aspect indicated
by the petitioner, i.e. because this article does not
particularise the amounts of the specified extra pays, is not
in conflict with the provision of Paragraph 1 of Article 48 of
the Constitution that each human being shall have the right to
receive just pay for work, one has to take account of the fact
that under Article 5 (wording of 23 April 2002) of the Law on
the State Service laws and other legal acts regulating labour
relations and socials guarantees are applied to state servants;
their provisions are applied to state servants insofar as their
status and social guarantees are not regulated by the Law on
the State Service.
It needs to be noted that at the time of the validity of
the Law on the State Service (wording of 23 April 2002), the
Republic of Lithuania Law on Wages was valid in Article 6
whereof it used to be established that "during a change in
normal working conditions, wages shall be as follows: in
harmful conditions-at least one and a half the hourly (daily)
wage rate (monthly salary) established for employees; in very
harmful working conditions-at least double the hourly (daily)
wage rate (monthly salary) established for employees". It used
to be established in Article 7 of the Law on Wages that "at
least one and a half the hourly wage rate (monthly salary)
established for employees shall be paid for overtime and night
work (from 10 p.m. to 6 a.m.)", while Article 8 thereof used to
provide that "unscheduled work on days off and holidays shall
be compensated for by providing another day off within a month
or, at the request of the employee, by paying at least double
the hourly or daily established wage without providing an
additional day off. Employees shall be paid double the hourly
or daily wage for work scheduled on holidays." The Law on Wages
became no longer valid on 1 January 2003 after the Labour Code
of the Republic of Lithuania had gone into effect.
Article 193 of the Labour Code provides that for overtime
work and work at night the employee is paid not less than one
and a half hourly pay (monthly salary). Article 194 of the
Labour Code provides that for work on a day off or holiday, if
it is not provided for in the schedule, not less than a double
pay is paid or, at the request of the employee, this is
compensated by granting the employee an extra day off within a
month, or by adding this day to his annual vacation, and that
for scheduled work during a holiday not less than a double
hourly or day pay is paid. It is established in Article 197 of
this code that, inter alia, when the scope of work of the
employee is increased, if compared to the established norm, for
this work he is paid more in respective proportion.
13. The fact that Article 26 (wording of 23 April 2002) of
the Law on the State Service does not particularise, according
to the petitioner, the amounts of extra pays for work on days
off, holidays and at night, for work in harmful, highly harmful
and hazardous conditions, and for performing duties beyond the
scope of the normal work load or additional assignments which
exceed the established work time, in itself does not mean that
such amounts are not particularised in other laws. There are no
preconditions to maintain that the aforesaid amounts of extra
pays ought to be concretised in Article 26 (wording of 23 April
2002) of the Law on the State Service in particular or in this
law in general.
As mentioned, the respective legal regulation has been
established in labour laws: prior to 1 January 2003, it used to
be established in the Law on Wages, while as from 1 January
2003 it is established in the Labour Code.
Thus, by the legal regulation established in Article 26
(wording of 23 April 2002) of the Law on the State Service the
provision of Paragraph 1 of Article 48 of the Constitution that
each human being shall have the right to receive just pay for
work is not violated.
14. While taking account of the arguments set forth, one
is to conclude that Article 26 (wording of 23 April 2002) of
the Law on the State Service is not in conflict with Paragraph
1 of Article 48 of the Constitution.
15. While deciding whether Article 26 (wording of 23 April
2002) of the Law on the State Service is not in conflict, in
the aspect pointed out by the petitioner, i.e. that this
article does not particularise the amounts of the extra pays
indicated therein, with Article 29 of the Constitution, one is
to note that this article does not establish any such legal
regulation under which a certain group of state servants would
be treated unequally with other groups of servants. Such legal
regulation does not violate the constitutional principle of
equality of rights of all persons.
16. Taking account of the arguments set forth, one is to
conclude that Article 26 (wording of 23 April 2002) of the Law
on the State Service is not in conflict with Article 29 of the
Constitution.
17. While deciding whether Article 26 (wording of 23 April
2002) of the Law on the State Service is not in conflict, in
the aspect pointed out by the petitioner, i.e. that this
article does not particularise the amounts of the extra pays
indicated therein, with the constitutional principle under the
rule of law, one is to note that there are not any
preconditions to assert that the amounts of extra pays for work
on days off, holidays and at night, for work in harmful, highly
harmful and hazardous conditions, and for performing duties
beyond the scope of the normal work load or additional
assignments which exceed the established work time ought to be
concretised in Article 26 (wording of 23 April 2002) of the Law
on the State Service in particular or in this law in general.
It has also been mentioned that the amounts of extra pays
for work on days off, holidays and at night, for work in
harmful, highly harmful and hazardous conditions, and for
performing duties beyond the scope of the normal work load or
additional assignments which exceed the established work time
are provided for in other laws.
18. Taking account of the arguments set forth, one is to
draw a conclusion that Article 26 (wording of 23 April 2002) of
the Law on the State Service is not in conflict with the
constitutional principle of a state under the rule of law.
VII
On the compliance of Paragraph 3 (wording of 10 December
2002) of Article 1 of the Law on the Implementation of the Law
on Supplementing the Law on the State Service with Paragraphs 1
and 2 of Article 23, Article 29, Paragraph 1 of Article 48 of
the Constitution and the constitutional principle of a state
under the rule of law, as well as on the compliance of the
Rules of Calculation of Remuneration for Work of the State
Servant for the Second Half-year of 2002 confirmed by
Government Resolution No. 686 "On Calculation of Remuneration
for Work of State Servants for the Second Half-year of 2002" of
20 May 2002 and the Rules of Calculation of Remuneration for
Work of State Servants confirmed by Government Resolution No.
53 "On the Rules of Calculation of Remuneration for Work of
State Servants" of 17 January 2003 with Paragraphs 1 and 2 of
Article 23, Article 29, Paragraph 1 of Article 48 of the
Constitution, the constitutional principle of a state under the
rule of law and Paragraphs 1 and 2 (wording of 23 April 2002)
of Article 24 of the Law on the State Service.
1. By its ruling of 21 November 2002, the Panevėžys
Regional Administrative Court, a petitioner, requests to
investigate as to whether the Rules of Calculation of
Remuneration for Work of the State Servant for the Second
Half-year of 2002 confirmed by Government Resolution No. 686
"On Calculation of Remuneration for Work of State Servants for
the Second Half-year of 2002" of 20 May 2002 are not in
conflict with Paragraph 1 of Article 29 of the Constitution and
Paragraphs 1 and 2 (wording of 23 April 2002) of Article 24 of
the Law on the State Service.
By its ruling of 7 May 2003, the Vilnius Regional
Administrative Court, a petitioner, requests to investigate as
to whether the provisions of the Rules of Calculation of
Remuneration for Work of the State Servant for the Second
Half-year of 2002 confirmed by Government Resolution No. 686
"On Calculation of Remuneration for Work of State Servants for
the Second Half-year of 2002" of 20 May 2002, which limit the
amount of remuneration for work of state servants by taking
account of the demand of funds calculated by the establishment
according to confirmed unified categories of positions of state
servants, which exceeds the appropriations for remuneration for
work confirmed in the State Budget for a respective year, are
not in conflict, by their content, with the principles of a
just society and state under the rule of law entrenched in the
Preamble to the Constitution, as well as Articles 23, 29 and 48
of the Constitution.
2. On 20 May 2002, the Government adopted Resolution No.
686 "On Calculation of Remuneration for Work of State Servants
for the Second Half-year of 2002".
The following was established in this Government
resolution:
"In pursuance of Paragraph 3 of Article 1 of the Republic
of Lithuania Law on the Implementation of the Law on
Supplementing the Law on the State Service (Official Gazette
Valstybės žinios, 2002, No. 45-1709), the Government of the
Republic of Lithuania resolves:
To confirm the Rules of Calculation of Remuneration for
Work of the State Servant for the Second Half-year of 2002
(annexed)."
3. The Rules of Calculation of Remuneration for Work of
the State Servant for the Second Half-year of 2002 confirmed by
the Government resolution of 20 May 2002 were set forth as
follows:
"THE RULES OF CALCULATION OF REMUNERATION FOR WORK
OF THE STATE SERVANT FOR THE SECOND HALF-YEAR OF
2002
1. According to these rules will the remuneration for work
of the state servant be calculated provided in the second
half-year of 2002 the demand for remuneration for work of state
servants exceeds the appropriations for remuneration for work
confirmed in the State Budget of the Republic of Lithuania and
municipal budgets.
2. This calculation of the remuneration for work of the
state servant shall be carried out by state and municipal
institutions or establishments according to the indexation
coefficient.
3. The indexation coefficient shall be calculated
according to this formula:
K = A : L, where
K means the indexation coefficient;
A means the funds of the state and municipal institution
or establishment for the remuneration for work of state
servants and state social insurance payments;
L means the funds necessary for the remuneration for work
of state servants of the state and municipal institution or
establishment, which are calculated under Chapter VI of the
Republic of Lithuania Law on the State Service and the funds
necessary for state social insurance payments.
4. When applying the indexation coefficient established in
Item 3 of these Rules, the remuneration for work of the state
servant shall be calculated under this formula:
B = K x D, where:
D means the remuneration for work of the state servant
under Chapter VI of the Republic of Lithuania Law on the State
Service;
K means the indexation coefficient;
B means the calculated remuneration for work."
4. It has been mentioned that the Panevėžys Regional
Administrative Court and the Vilnius Regional Administrative
Court, petitioners, had doubts as to whether the Rules of
Calculation of Remuneration for Work of the State Servant for
the Second Half-year of 2002 confirmed by the Government
resolution of 20 May 2002 are not in conflict with the
Constitution.
It needs to be noted that the Rules are a constituent part
of Government Resolution No. 686 "On Calculation of
Remuneration for Work of State Servants for the Second
Half-year of 2002" of 20 May 2002.
The Constitutional Court has held that all parts of a
normative legal act (including annexes) constitute one whole,
they are inseparably interrelated and have equal legal power,
that it is impossible to separate annexes from the legal acts,
since, when the legal regulation established in the annexes is
changed, the entire content of the legal regulation established
in the legal acts is changed as well (Constitutional Court
rulings of 9 July 1999 and 29 October 2003).
5. As the Rules of Calculation of Remuneration for Work of
the State Servant for the Second Half-year of 2002 were
confirmed by Government Resolution No. 686 "On Calculation of
Remuneration for Work of State Servants for the Second
Half-year of 2002" of 20 May 2002, in this case the
Constitutional Court will investigate the compliance of not
only the Rules of Calculation of Remuneration for Work of the
State Servant for the Second Half-year of 2002 which were
confirmed by the aforesaid Government resolution and are being
disputed by the petitioners, with the Constitution, but also
the compliance of Government Resolution No. 686 "On Calculation
of Remuneration for Work of State Servants for the Second
Half-year of 2002" of 20 May 2002 itself, whereby the said
rules were confirmed and which contains no other regulation,
with the Constitution.
6. The Vilnius Regional Administrative Court, a
petitioner, requests to investigate whether the Rules of
Calculation of Remuneration for Work of the State Servant for
the Second Half-year of 2002 are not in conflict with entire
Article 23 and entire Article 48 of the Constitution.
It is clear from the arguments of the petitioner that the
petitioner had doubts as to the compliance of the said rules
with not entire Article 23 of the Constitution but only with
Paragraphs 1 and 2 of this article, and not with entire Article
48 of the Constitution, but only with the provision of
Paragraph 1 of this article that each human being shall have
the right to receive just pay for work.
7. The Vilnius Regional Administrative Court, a
petitioner, requests to investigate whether the Rules of
Calculation of Remuneration for Work of the State Servant for
the Second Half-year of 2002 are not in conflict with the
principles of a just society and state under the rule of law
entrenched in the Preamble to the Constitution.
It has been held in this Ruling of the Constitutional
Court that the investigation of the compliance of legal acts
(parts thereof) with the enshrined in the Preamble to the
Constitution striving for a just civil society and state under
the rule of law implies the investigation of their compliance
with the constitutional principle of a state under the rule of
law.
8. The Rules of Calculation of Remuneration for Work of
the State Servant for the Second Half-year of 2002 were
confirmed by Government Resolution No. 686 "On Calculation of
Remuneration for Work of State Servants for the Second
Half-year of 2002" of 20 May 2002 in the course of the state
service reform. One of the stages of the this reform is to be
linked with Law on the Implementation of the Law on
Supplementing the Law on the State Service which was adopted by
the Seimas on 23 April 2002, whereby the until then valid Law
on the State Service (wording of 8 July 1999) was set forth in
a new wording.
The Law on the State Service (wording of 23 April 2002)
inter alia established that positions of state servants are of
three levels and that positions of state servants are grouped
into 20 categories, meanwhile, the Law on the State Service
(wording of 8 July 1999) used to contain different provisions:
state servants used to be grouped into two groups, the
positions of state servants used to be grouped into four levels
and 30 categories. It is clear from the legal regulation
consolidated in the Law on the State Service (wording of 23
April 2002) that in the course of the reform of the state
service, among the other objectives was the one to increase the
remuneration for work of state servants.
9. It needs to be noted that under the Constitution the
legislator, while issuing a law or other legal act for the
implementation of which funds are necessary, must provide for
the funds necessary for the implementation of such a law or
other legal act. Under the Constitution, the legislator cannot
create any such legal situation when a law or other legal act
is passed for the implementation of which funds are necessary,
but such funds are not appropriated or there is insufficient
appropriation thereof.
In the context of the constitutional justice case at issue
one is to note that the legislator, when adopting, on 23 April
2002, the Law on Amending of the Law on the State Service for
the implementation of which additional funds were necessary,
had to make respective amendments to the State Budget and
provide for the funds that were necessary so that this law
would have been implemented.
10. As mentioned, under Paragraph 1 of Article 48 of the
Constitution state servants have the right to receive just pay
for work. Since the professional activity of state servants
must be remunerated from the state (municipal) budget, these
budgets must provide for funds for the remuneration for work of
state servants.
It has been held in this Ruling of the Constitutional
Court that, according to the Constitution, a legal situation,
where a state servant who fulfilled the assigned task is not
paid, is paid not in due time or is paid less than it is due
according to the laws and other legal acts passed on the basis
of the former, is impermissible.
11. As mentioned, according to the Rules of Calculation of
Remuneration for Work of the State Servant for the Second
Half-year of 2002, the remuneration for work of the state
servant was calculated provided in the second half-year of 2002
the demand for remuneration for work of state servants exceeded
the appropriations for remuneration for work confirmed in the
State Budget of the Republic of Lithuania and municipal
budgets; this calculation of the remuneration for work of the
state servant shall be carried out by state and municipal
institutions or establishments according to the indexation
coefficient.
Thus, in the Rules of Calculation of Remuneration for Work
of the State Servant for the Second Half-year of 2002 the legal
regulation is established under which in cases where a state or
municipal institution does not have enough appropriated funds
for payment of remuneration for work of state servants a lesser
remuneration is calculated to state servants by applying the
indexation coefficient than is due under laws or other legal
acts passed on their basis and for the work of the state
servants only part of the remuneration for work that is due to
them under laws or other legal acts passed on their basis could
be paid.
By such legal regulation preconditions are created to
violate the provision of Paragraph 1 of Article 48 of the
Constitution that each human being shall have the right to
receive just pay for work.
12. Taking account of the arguments set forth, one is to
draw a conclusion that the Rules of Calculation of Remuneration
for Work of the State Servant for the Second Half-year of 2002
confirmed by Government Resolution No. 686 "On Calculation of
Remuneration for Work of State Servants for the Second
Half-year of 2002" of 20 May 2002 were in conflict with
Paragraph 1 of Article 48 of the Constitution.
It has been mentioned that, under the Constitution, the
right appears in regard to the person who has completed a
commissioned task to demand that the whole remuneration for
work (pay) which is due according to the legal acts be paid to
him, and that it be paid in due time. This right of the person
is protected as the right to ownership (Article 23 of the
Constitution).
13. It has been mentioned that in the Rules of Calculation
of Remuneration for Work of the State Servant for the Second
Half-year of 2002 the legal regulation is consolidated under
which in cases where a state or municipal institution does not
have enough appropriated funds for payment of remuneration for
work of state servants a lesser remuneration is calculated to
state servants by applying the indexation coefficient than is
due under laws or other legal acts passed on the basis of the
former and for the work of the state servants only part of the
remuneration for work that is due to them under laws or other
legal acts passed on the basis of the former could be paid.
By such legal regulation established in the Rules of
Calculation of Remuneration for Work of the State Servant for
the Second Half-year of 2002 preconditions are created to
violate Paragraphs 1 and 2 of Article 23 of the Constitution.
14. Taking account of the arguments set forth, one is to
draw a conclusion that the Rules of Calculation of Remuneration
for Work of the State Servant for the Second Half-year of 2002
confirmed by Government Resolution No. 686 "On Calculation of
Remuneration for Work of State Servants for the Second
Half-year of 2002" of 20 May 2002 were in conflict with
Paragraphs 1 and 2 of Article 23 of the Constitution.
15. It has been mentioned that in the Rules of Calculation
of Remuneration for Work of the State Servant for the Second
Half-year of 2002 the legal regulation is established under
which in cases where a state or municipal institution does not
have enough appropriated funds for payment of remuneration for
work of state servants a lesser remuneration is calculated to
state servants by applying the indexation coefficient than is
due under laws or other legal acts passed on the basis of the
former and for the work of the state servants only part of the
remuneration for work that is due to them under laws or other
legal acts passed on the basis of the former could be paid.
By such legal regulation preconditions were created to
state servants to be in unequal legal situations depending on
whether a corresponding state or municipal institution was
appropriated sufficient funds for remuneration for work of
state servants, or whether they were insufficient of such
funds.
The legal regulation established in the Rules of
Calculation of Remuneration for Work of the State Servant for
the Second Half-year of 2002, where state servants are in
unequal legal situations due to the fact that they are paid for
the performed work depending on how much funds have been
appropriated for a corresponding state or municipal
institution, cannot be recognised as a constitutionally
grounded one.
By such legal regulation preconditions are created to
violate the constitutional principle of equality of rights of
persons, which is entrenched in Article 29 of the Constitution.
17. Having held that the Rules of Calculation of
Remuneration for Work of the State Servant for the Second
Half-year of 2002 confirmed by Government Resolution No. 686
"On Calculation of Remuneration for Work of State Servants for
the Second Half-year of 2002" of 20 May 2002 were in conflict
with Paragraphs 1 and 2 of Article 23, Article 29 and Paragraph
1 of Article 48 of the Constitution, one is to hold that the
Rules of Calculation of Remuneration for Work of the State
Servant for the Second Half-year of 2002 confirmed by
Government Resolution No. 686 "On Calculation of Remuneration
for Work of State Servants for the Second Half-year of 2002" of
20 May 2002 were also in conflict with the constitutional
principle of a state under the rule of law.
18. As mentioned, all parts of a normative legal act
(including annexes) constitute one whole, they are inseparably
interrelated and have equal legal power, that it is impossible
to separate annexes from the legal act, since, when the legal
regulation established in the annexes is changed, the entire
content of the legal regulation established in the legal act is
changed as well.
Having held that the Rules of Calculation of Remuneration
for Work of the State Servant for the Second Half-year of 2002
confirmed by Government Resolution No. 686 "On Calculation of
Remuneration for Work of State Servants for the Second
Half-year of 2002" of 20 May 2002 were in conflict with
Paragraph 1 of Article 48, Paragraphs 1 and 2 of Article 23,
and Article 29 of the Constitution as well as with the
constitutional principle of a state under the rule of law, one
is to hold that entire Government Resolution No. 686 "On
Calculation of Remuneration for Work of State Servants for the
Second Half-year of 2002" of 20 May 2002 whereby the said rules
were confirmed and which does not contain any other legal
regulation, was also in conflict with Paragraph 1 of Article
48, Paragraphs 1 and 2 of Article 23 and Article 29 of the
Constitution as well as with the constitutional principle of a
state under the rule of law.
19. Having held this, the Constitutional Court will not
investigate whether the Rules of Calculation of Remuneration
for Work of the State Servant for the Second Half-year of 2002
confirmed by Government Resolution No. 686 "On Calculation of
Remuneration for Work of State Servants for the Second
Half-year of 2002" of 20 May 2002 were not in conflict with
Paragraphs 1 and 2 (wording of 23 April 2002) of Article 24 of
the Law on the State Service.
20. By its ruling of 7 May 2003, the Vilnius Regional
Administrative Court, a petitioner, requests to investigate as
to whether the provisions of Paragraph 3 of Article 1 of the
Law on the Implementation of the Law on Supplementing the Law
on the State Service, which limit the amount of remuneration
for work of state servants by taking account of the demand of
funds calculated by the establishment according to confirmed
unified categories of positions of state servants, which
exceeds the appropriations for remuneration for work confirmed
in the State Budget for a respective year, are not in conflict,
by their content, with the principles of a just society and
state under the rule of law entrenched in the Preamble to the
Constitution, as well as Articles 23, 29 and 48 of the
Constitution.
21. The Vilnius Regional Administrative Court, a
petitioner, does not indicate which is the wording of the Law
on the Implementation of the Law on Supplementing the Law on
the State Service the disputed provisions of Paragraph 3 of
Article 1 whereof are, in its opinion, in conflict with the
Constitution.
It is clear from the arguments of the petitioner that the
petitioner had doubts as to whether the disputed provisions of
Paragraph 3 (wording of 10 December 2002) of Article 1 of the
Law on the Implementation of the Law on Supplementing the Law
on the State Service are not in conflict with the Constitution.
22. Paragraph 3 (wording of 10 December 2002) of Article 1
of the of the said law provides:
"The remuneration for work established in Chapter VI of
the Law on the State Service is paid from the remuneration for
work appropriations confirmed in the state and municipal
budgets of a respective year. If the demand of funds calculated
by the state or municipal institution or establishment
according to confirmed unified categories of positions of state
servants for remuneration for work for state servants exceeds
the appropriations for remuneration for work confirmed in the
State Budget of the Republic of Lithuania and municipal budgets
for a respective year, the remuneration for work of state
servants shall be calculated according to the rules of
calculation of remuneration for work of state servants, which
are confirmed by the Government, however, the positional salary
of the state servant cannot be smaller that that received by
him until 30 June 2002."
23. The petitioner requests to investigate whether the
provisions of Paragraph 3 of Article 1 of the Law on the
Implementation of the Law on Supplementing the Law on the State
Service, which limit the amount of remuneration for work of
state servants by taking account of the demand of funds
calculated by the establishment according to confirmed unified
categories of positions of state servants, which exceeds the
appropriations for remuneration for work confirmed in the State
Budget for a respective year, are not in conflict with the
Constitution.
It is clear from the arguments of the petitioner that the
petitioner had doubts whether the provision "If the demand of
funds calculated by the state or municipal institution or
establishment according to confirmed unified categories of
positions of state servants for remuneration for work for state
servants exceeds the appropriations for remuneration for work
confirmed in the State Budget of the Republic of Lithuania and
municipal budgets for a respective year, the remuneration for
work of state servants shall be calculated according to the
rules of calculation of remuneration for work of state
servants, which are confirmed by the Government, however, the
positional salary of the state servant cannot be smaller that
that received by him until 30 June 2002" of Paragraph 3
(wording of 10 December 2002) of Article 1 of the Law on the
Implementation of the Law on Supplementing the Law on the State
Service was not in conflict with the Constitution.
24. The Vilnius Regional Administrative Court, a
petitioner, had doubts whether the provisions of Paragraph 3
(wording of 10 December 2002) of Article 1 of the Law on the
Implementation of the Law on Supplementing the Law on the State
Service was not in conflict with entire Article 23 and entire
Article 48 of the Constitution.
It is clear from the arguments of the petitioner that the
petitioner had doubts as to the compliance of the provisions of
Paragraph 3 (wording of 10 December 2002) of Article 1 of the
Law on the Implementation of the Law on Supplementing the Law
on the State Service with not entire Article 23 of the
Constitution, but only with Paragraphs 1 and 2 of this article,
and not with entire Article 48 of the Constitution, but only
with the provision of Paragraph 1 of this article that each
human being shall have the right to receive just pay for work.
25. The Vilnius Regional Administrative Court, a
petitioner, requests to investigate whether the provisions of
Paragraph 3 (wording of 10 December 2002) of Article 1 of the
Law on the Implementation of the Law on Supplementing the Law
on the State Service are not in conflict with the principles of
a just society and state under the rule of law entrenched in
the Preamble to the Constitution.
It has been held in this Ruling of the Constitutional
Court that the investigation of the compliance of legal acts
(parts thereof) with the enshrined in the Preamble to the
Constitution striving for a just society and state under the
rule of law implies the investigation of their compliance with
the constitutional principle of a state under the rule of law.
26. Having compared the provision, disputed by the
petitioner, of Paragraph 3 (wording of 10 December 2002) of
Article 1 of the Law on the Implementation of the Law on
Supplementing the Law on the State Service with the Rules of
Calculation of Remuneration for Work of the State Servant for
the Second Half-year of 2002 confirmed by Government Resolution
No. 686 "On Calculation of Remuneration for Work of State
Servants for the Second Half-year of 2002" of 20 May 2002, it
is possible to notice that virtually the same legal regulation
is established in Paragraph 3 (wording of 10 December 2002) of
Article 1 of the Law on the Implementation of the Law on
Supplementing the Law on the State Service as that established
in the Rules of Calculation of Remuneration for Work of the
State Servant for the Second Half-year of 2002 confirmed by
Government Resolution No. 686 "On Calculation of Remuneration
for Work of State Servants for the Second Half-year of 2002" of
20 May 2002.
In addition, the provision "the positional salary of the
state servant cannot be smaller that that received by him until
30 June 2002" is established in Paragraph 3 (wording of 10
December 2002) of Article 1 of the Law on the Implementation of
the Law on Supplementing the Law on the State Service.
27. It needs to be noted that the provision "the
positional salary of the state servant cannot be smaller that
that received by him until 30 June 2002" of Paragraph 3
(wording of 10 December 2002) of Article 1 of the Law on the
Implementation of the Law on Supplementing the Law on the State
Service does not remove a possibility, in cases when
insufficient funds are appropriated to the state or municipal
institution for remuneration for work of state servants, to
calculate a lesser remuneration for work to state servants than
is due under the laws or legal acts passed on their basis and
to pay for the work performed by the state servants only part
of the remuneration for work that is due to them under laws or
other legal acts passed on their basis, i.e. it is possible
that for performed work they could be paid not all but only
part of the extra pays and bonuses that are due to them under
the laws or legal acts passed on their basis, and not all but
only part of the positional salary that is due to them under
laws or other legal acts passed on their basis, provided it
increased after 30 June 2002, or it is possible that the state
servants could be not paid the extra pays and bonuses at all.
28. It has been held in this Ruling of the Constitutional
Court that the Rules of Calculation of Remuneration for Work of
the State Servant for the Second Half-year of 2002 confirmed by
Government Resolution No. 686 "On Calculation of Remuneration
for Work of State Servants for the Second Half-year of 2002" of
20 May 2002 were in conflict with Paragraphs 1 and 2 of Article
23, Article 29 and Paragraph 1 of Article 48 of the
Constitution as well as with the constitutional principle of a
state under the rule of law.
Having held this and on the basis of the same arguments
one is also to hold that the provision "if the demand of funds
calculated by the state or municipal institution or
establishment according to confirmed unified categories of
positions of state servants for remuneration for work for state
servants exceeds the appropriations for remuneration for work
confirmed in the State Budget of the Republic of Lithuania and
municipal budgets for a respective year, the remuneration for
work of state servants shall be calculated according to the
rules of calculation of remuneration for work of state
servants, which are confirmed by the Government, however, the
positional salary of the state servant cannot be smaller that
that received by him until 30 June 2002" of Paragraph 3
(wording of 10 December 2002) of Article 1 of the Law on the
Implementation of the Law on Supplementing the Law on the State
Service is in conflict with Paragraphs 1 and 2 of Article 23,
Article 29 and Paragraph 1 of Article 48 of the Constitution as
well as with the constitutional principle of a state under the
rule of law.
29. On 17 January 2003, the Government adopted Resolution
No. 53 "On the Rules of Calculation of Remuneration for Work of
State Servants".
The said resolution provides:
"In pursuance of Paragraph 3 of Article 1 of the Republic
of Lithuania Law on the Implementation of the Law on
Supplementing the Law on the State Service (Official Gazette
Valstybės žinios, 2002, No. 45-1709), the Government of the
Republic of Lithuania resolves:
1. To confirm the Rules of Calculation of Remuneration for
Work of State Servants (annexed).
2. To establish that all state servants of state and
municipal institutions or establishments are applied the same
indexation coefficient, in which remuneration for work of state
servants is calculated according to the Rules of Calculation of
Remuneration for Work of State Servants which are confirmed by
this Resolution.
3. To recognise Resolution No. 686 'On Calculation of
Remuneration for Work of State Servants for the Second
Half-year of 2002' of 20 May 2002 (Official Gazette Valstybės
žinios, 2002, No. 51-1954) as no longer valid."
30. The following was set forth in the Rules of
Calculation of Remuneration for Work of the State Servants
which were confirmed by Item 1 of the Resolution:
"THE RULES OF CALCULATION OF REMUNERATION FOR WORK
OF THE STATE SERVANTS
1.1. The Rules of Calculation of Remuneration for Work of
State Servants (hereinafter referred to as the Rules) regulate
calculation of remuneration for work of state servants by
applying the indexation coefficient, if the demand of funds
calculated by a state or municipal institution or establishment
(hereinafter referred to as the establishment) according to
confirmed unified categories of positions of state servants
exceeds the appropriations for remuneration for work confirmed
in the State Budget of the Republic of Lithuania and municipal
budgets for a respective year.
2. The indexation coefficient shall be calculated
according to this formula:
K = (A - C - S) : L, where
K means the indexation coefficient;
A means the funds confirmed for the establishment for the
remuneration for work;
C means the funds of the establishment for remuneration
for work of employees working under employment contract;
S means additional funds of the establishment in order to
compensate the difference in the positional salary received
prior to 30 June 2002 and the positional salary established
under Article 24 of the Republic of Lithuania Law on the State
Service (Official Gazette Valstybės žinios, 1999, No. 66-2130;
2002, No. 45-1708) to the state servants whose positional
salary became, upon the application of the indexation
coefficient, lesser than the positional salary received prior
to 30 June 2002. In the budget year, when calculating for the
first time, the value S shall be zero, while in the course of
recalculation the indexation coefficient the value S is
established by taking account of the actually paid funds;
L means the funds necessary for the remuneration for work
of state servants of the establishment, which are calculated
under Chapter VI of the Republic of Lithuania Law on the State
Service.
3. The remuneration for work of the state servant shall be
calculated according to this formula:
U = P x K + (Pr1 + Pr2) x K, where
U means the remuneration for work of the state servant
under Chapter VI of the Republic of Lithuania Law on the State
Service after the indexation coefficient has been applied;
P means the positional salary of the state servant
established under Article 24 of the Republic of Lithuania Law
on the State Service;
Pr1 means the sum of the extra pays established in Article
25 of the Republic of Lithuania Law on the State Service;
Pr2 means the sum of bonuses established in Article 26 of
the Republic of Lithuania Law on the State Service;
K means the indexation coefficient calculated under Item 2
of these Rules.
4. If, upon the application of the indexation coefficient,
the positional salary of the state servant established
according to Article 24 of the Republic of Lithuania Law on the
State Service is lesser than the one received prior to 30 June
2002, his remuneration for work is calculated under the formula
U = P1 + (Pr1 + Pr2) x K, where
U means the remuneration for work of the state servant
under Chapter VI of the Republic of Lithuania Law on the State
Service after the indexation coefficient has been applied;
P1 means the positional salary (official pay) of September
2001 established according to Government of the Republic of
Lithuania Resolution No. 499 "On the Temporary Experimental
Procedure of Remuneration for Work of Heads and Other Officials
of State Power, State Governance and Bodies of Law and Order"
(Official Gazette Valstybės žinios, 1992, No. 3-62), or if the
state official was admitted to office in the period from 1
October 2001 till 30 June 2002, the positional salary (official
pay), established according to Government of the Republic of
Lithuania Resolution No. 499 of 29 November 1991, when the
state servant was admitted to office.
Pr1 means the sum of the extra pays established in Article
25 of the Republic of Lithuania Law on the State Service;
Pr2 means the sum of bonuses established in Article 26 of
the Republic of Lithuania Law on the State Service;
K means the indexation coefficient calculated under Item 2
of these Rules.
5. If decrease in the remuneration for work was
established to the state servant under Article 69 of the
Republic of Lithuania Law on the State Service (Official
Gazette Valstybės žinios, 1999, No. 66-2130; 2000, No. 75-2270,
No. 102-3213, No. 111-3586; 2001, No. 37-1231, No. 63-2278, No.
85-2972, No. 92-3210; 2002, No. 33-1249) which was valid prior
to the entry into effect of the Republic of Lithuania Law on
Amending the Law on the State Service (Official Gazette
Valstybės žinios, 2002, No. 45-1708) the value specified in
Item 4 of these Rules shall be multiplied by the correction
index M, which is calculated under the formula
M = U1 : U2, where
M means the correction coefficient;
U1 means the remuneration for work (positional salary
(official pay) together with extra pays and bonuses) in June
2002;
U2 means the remuneration for work (positional salary
(official pay) together with extra pays and bonuses) in
September 2001, or if the state official was admitted to office
in the period from 1 October 2001 till 30 June 2002, the
positional salary (official pay) when the state servant was
admitted to office.
6. While taking account of the change in the demand of the
funds for remuneration for work, the indexation coefficient may
be corrected in a corresponding establishment, but not more
often than once in a quarter of the year."
31. Having compared the legal regulation established in
the Rules of Calculation of Remuneration for Work of State
Servants confirmed by Government Resolution No. 53 "On the
Rules of Calculation of Remuneration for Work of State
Servants" of 17 January 2003 with the legal regulation
established in the Rules of Calculation of Remuneration for
Work of the State Servant for the Second Half-year of 2002
confirmed by Government Resolution No. 686 "On Calculation of
Remuneration for Work of State Servants for the Second
Half-year of 2002" of 20 May 2002, it is clear that they
establish virtually the same principle of calculation of
remuneration for work of state servants, which is applied in
case the established demand for funds for remuneration for work
of state servants exceeds the appropriations for remuneration
for work confirmed in the State Budget of the Republic of
Lithuania and municipal budgets.
32. It has been held in this Ruling of the Constitutional
Court that the Rules of Calculation of Remuneration for Work of
the State Servant for the Second Half-year of 2002 confirmed by
Government Resolution No. 686 "On Calculation of Remuneration
for Work of State Servants for the Second Half-year of 2002" of
20 May 2002 were in conflict with Paragraphs 1 and 2 of Article
23, Article 29 and Paragraph 1 of Article 48 of the
Constitution as well as with the constitutional principle of a
state under the rule of law.
Having held this, on the grounds of the same arguments,
one is also to hold that the Rules of Calculation of
Remuneration for Work of State Servants confirmed by Government
Resolution No. 53 "On the Rules of Calculation of Remuneration
for Work of State Servants" of 17 January 2003 are also in
conflict with Paragraphs 1 and 2 of Article 23, Article 29 and
Paragraph 1 of Article 48 of the Constitution as well as with
the constitutional principle of a state under the rule of law.
33. Having held that the Rules of Calculation of
Remuneration for Work of State Servants confirmed by Government
Resolution No. 53 "On the Rules of Calculation of Remuneration
for Work of State Servants" of 17 January 2003 are also in
conflict with Paragraphs 1 and 2 of Article 23, Article 29 and
Paragraph 1 of Article 48 of the Constitution as well as with
the constitutional principle of a state under the rule of law,
one is also to hold that Items 1 and 2 of Government Resolution
No. 53 "On the Rules of Calculation of Remuneration for Work of
State Servants" of 17 January 2003 are also in conflict with
Paragraphs 1 and 2 of Article 23, Article 29 and Paragraph 1 of
Article 48 of the Constitution.
VIII
On the compliance of Paragraph 1 (wording of 23 April
2002) of Article 8 of the Law on the State Service, Seimas
Resolution No. IX-992 "On the Confirmation of the List of
Unified Positions of Seimas State Servants of Political
(Personal) Confidence, of State Servants of the Office of the
Seimas and Institutions Accountable to the Seimas, Those of the
Institution of the President of the Republic and Institutions
Accountable to the President of the Republic, Those of National
Administration of Courts, of Courts, Prosecutor's Office and
Municipal Institutions" of 27 June 2002 and Seimas Resolution
No. IX-1244 "On the Amendment of the Seimas Resolution 'On the
Confirmation of the List of Unified Positions of Seimas State
Servants of Political (Personal) Confidence, of State Servants
of the Office of the Seimas and Institutions Accountable to the
Seimas, Those of the Institution of the President of the
Republic and Institutions Accountable to the President of the
Republic, Those of National Administration of Courts, of
Courts, Prosecutor's Office and Municipal Institutions'" of 10
December 2002 with Article 29, Paragraph 2 of Article 120,
Paragraph 1 of Article 121 and Paragraph 1 of Article 127 of
the Constitution.
1. By its ruling of 5 May 2003, the Vilnius Regional
Administrative Court, a petitioner, requests to investigate
whether Article 8 of the Law on the State Service is not in
conflict with Article 29, Paragraph 2 of Article 120, Paragraph
1 of Article 121 and Article 127 of the Constitution.
2. The petitioner does not indicate in his petition the
wording of Article 8 of the Law on state Service the compliance
of which with the Constitution is doubtful to him.
It is clear from the arguments of the petition of the
petitioner that the petitioner had doubts as to the compliance
of Article 8 of the Law on the State Service which provides:
"By its resolution, upon presentation by the Government,
the Seimas confirms the List of Unified Positions of Seimas
State Servants of Political (Personal) Confidence, of State
Servants of the Office of the Seimas and Institutions
Accountable to the Seimas, Those of the Institution of the
President of the Republic and Institutions Accountable to the
President of the Republic, Those of National Administration of
Courts, of Courts, Prosecutor's Office and Municipal
Institutions. It must contain the levels of positions and
categories of state servants."
Paragraph 1 (wording of 23 April 2002) of Article 8 of the
Law on the State Service is set forth this way.
3. The following provisions have been consolidated in
Paragraph 1 (wording of 23 April 2002) of Article 8 of the Law
on the State Service:
- the List of Unified Positions of Seimas State Servants
of Political (Personal) Confidence, of State Servants of the
Office of the Seimas and Institutions Accountable to the
Seimas, Those of the Institution of the President of the
Republic and Institutions Accountable to the President of the
Republic, Those of National Administration of Courts, of
Courts, Prosecutor's Office and Municipal Institutions must be
confirmed, which must contain the levels of positions and
categories of state servants;
- the List of Unified Positions of Seimas State Servants
of Political (Personal) Confidence, of State Servants of the
Office of the Seimas and Institutions Accountable to the
Seimas, Those of the Institution of the President of the
Republic and Institutions Accountable to the President of the
Republic, Those of National Administration of Courts, of
Courts, Prosecutor's Office and Municipal Institutions is
confirmed by the Seimas;
- the list of positions of state servants confirmed by the
Seimas also includes the positions of Seimas state servants of
political (personal) confidence;
- the list of positions of state servants confirmed by the
Seimas also includes the positions of state servants of the
Office of the Seimas;
- the list of positions of state servants confirmed by the
Seimas also includes the positions of state servants of
institutions accountable to the Seimas;
- the list of positions of state servants confirmed by the
Seimas also includes the positions of state servants of the
institution of the President of the Republic;
- the list of positions of state servants confirmed by the
Seimas also includes the positions of state servants of
institutions accountable to the President of the Republic;
- the list of positions of state servants confirmed by the
Seimas also includes the positions of state servants of courts;
- the list of positions of state servants confirmed by the
Seimas also includes the positions of state servants of the
prosecutor's office;
- the list of positions of state servants confirmed by the
Seimas also includes the positions of state servants of
municipal institutions;
- the list of positions of state servants, including
unified positions of Seimas state servants of political
(personal) confidence, of state servants of the Office of the
Seimas and institutions accountable to the Seimas, of the
institution of the President of the Republic and institutions
accountable to the President of the Republic, of National
Administration of Courts, of courts, prosecutor's office and
municipal institutions is confirmed by a substatutory act, a
Seimas resolution;
- the list of positions of state servants, including
unified positions of Seimas state servants of political
(personal) confidence, of state servants of the Office of the
Seimas and institutions accountable to the Seimas, of the
institution of the President of the Republic and institutions
accountable to the President of the Republic, of National
Administration of Courts, of courts, prosecutor's office and
municipal institutions is confirmed upon presentation of the
Government.
While taking account of inter alia Paragraph 2 (wording of
23 April 2002) of Article 8 of the Law on the State Service
which provides that the Government shall confirm the List of
Unified Positions of State Servants of Political (Personal)
Confidence of the Prime Minister, of State Servants of the
Office of the Government, Ministries, Government Establishments
and Establishments Under the Ministries, and that it must
indicate the levels of positions and categories of state
servants, one is to hold that the list of unified positions of
state servants indicated in Paragraph 1 (wording of 23 April
2002) of Article 8 of the Law on the State Service does not
include positions of state servants of the executive, save
state servants of the institution of the President of the
Republic and institutions accountable to the President of the
Republic.
4. It is clear from the arguments of the petitioner that
the petitioner had doubts only whether not entire Paragraph 1
(wording of 23 April 2002) of Article 8 of the Law on the State
Service is not in conflict with Article 29, Paragraph 2 of
Article 120, Paragraph 1 of Article 121 and Article 127 of the
Constitution, but only the provision established in the said
paragraph that the list of positions of state servants
confirmed by the Seimas includes also positions of state
servants of municipal institutions, since, in the opinion of
the petitioner, confirmation of any list of state servants of
municipal institutions is the competence of the municipal
councils, which arises from Paragraph 2 of Article 120 of the
Constitution that provides that municipalities shall act freely
and independently within their competence, which shall be
established by the Constitution and laws, from Paragraph 1 of
Article 121 of the Constitution which provides that
municipalities shall draft and confirm their own budget, and
Paragraph 1 of Article 127 of the Constitution which provides
that the budgetary system of the Republic of Lithuania shall
consist of the independent State Budget of the Republic of
Lithuania as well as the independent municipal budgets.
Subsequent to the petition of the petitioner, the
Constitutional Court will investigate the compliance of only
this provision of Paragraph 1 (wording of 23 April 2002) of
Article 8 of the Law on the State Service with Article 29,
Paragraph 2 of Article 120, Paragraph 1 of Article 121 and
Article 127 of the Constitution.
5. It has been held in this Ruling of the Constitutional
Court that, under the Constitution, local self-government is
self-regulation and self-action of the communities of the
administrative units of state territory, in accordance with the
competence defined by the Constitution and laws, which are
provided for by law; that the provision of Paragraph 2 of
Article 120 of the Constitution that municipalities shall act
freely and independently may not be kept separate from the
provision established in the same paragraph of the same article
that the freedom and independence of municipalities are bound
by the competence established by the Constitution and laws; the
state service, as a system, comprises professional activity of
persons, employed at state or municipal institutions, when
adopting decisions in the course of execution of public
administration and/or providing public services (or
participating in drafting and executing such decisions,
coordinating and/or controlling the execution thereof, etc.)
and thus guaranteeing the public interest in the whole state;
that the constitutional concept of the state service implies a
necessity to establish such legal regulation, which would
ensure systemic correlations between and interaction of all
self-government institutions; that the constitutional concept
of the sate service includes relations of office not only in
state institutions but also in municipal institutions; that a
single system of the state service is an necessary
pre-requisite of the effective interaction of state
administration and local self-government, the two systems of
public power, and non-confronting, harmonising the public
interest of the entire society of the state, the civil Nation,
and the public interest of territorial communities and
municipalities; that the unity of the systems of the state
service, comprising service at both state and municipal
institutions, is an important condition of uninterrupted,
continued functioning of the system of the state service; that,
under the Constitution, it is not permitted to create any such
legal regulation according to which the state service in
certain state (municipal) institutions (a certain link of the
system of the state service) would be eliminated from the
general system of the state service, that the independency of
municipal budget may be construed only upon taking account of
the unity of the budgetary system of Lithuania which is
consolidated in the Constitution.
6. The provision consolidated in Paragraph 1 (wording of
23 April 2002) of Article 8 of the Law on the State Service
that the list of positions of state servants confirmed by the
Seimas includes also positions of state servants of municipal
institutions is in compliance with the constitutional concept
of the state service and the constitutional principle of
independence of municipalities and freedom of their actions
within their competence, which shall be established by the
Constitution and laws, thus also with Paragraph 2 of Article
120 of the Constitution which provides that municipalities
shall act freely and independently within their competence,
which shall be established by the Constitution and laws,
Paragraph 1 of Article 121 of the Constitution which provides
that municipalities shall draft and confirm their own budget,
and Paragraph 1 of Article 127 of the Constitution which
provides that the budgetary system of the Republic of Lithuania
shall consist of the independent State Budget of the Republic
of Lithuania as well as the independent municipal budgets.
7. Taking account of the reasoning set forth, one is to
conclude that the provision of Paragraph 1 (wording of 23 April
2002) of Article 8 of the Law on the State Service that the
list of positions of state servants confirmed by the Seimas
includes also positions of state servants of municipal
institutions is not in conflict with Paragraph 2 of Article
120, Paragraph 1 of Article 121 and Article 127 of the
Constitution.
8. The investigated provision of Paragraph 1 (wording of
23 April 2002) of Article 8 of the Law on the State Service
does not contain any legal regulation under which state
servants would be discriminated or privileges would be granted
to them either on the grounds expressis verbis specified in
Paragraph 2 of Article 29 of the Constitution, or any other
constitutionally unjustifiable grounds.
9. Taking account of the reasoning set forth, one is to
draw a conclusion that the provision consolidated in Paragraph
1 (wording of 23 April 2002) of Article 8 of the Law on the
State Service the list of positions of state servants confirmed
by the Seimas includes also positions of state servants of
municipal institutions is not in conflict with Article 29 of
the Constitution.
10. By its ruling of 5 May 2003, the Vilnius Regional
Administrative Court, a petitioner, requests to investigate
whether Seimas Resolution No. IX-992 "On the Confirmation of
the List of Unified Positions of Seimas State Servants of
Political (Personal) Confidence, of State Servants of the
Office of the Seimas and Institutions Accountable to the
Seimas, Those of the Institution of the President of the
Republic and Institutions Accountable to the President of the
Republic, Those of National Administration of Courts, of
Courts, Prosecutor's Office and Municipal Institutions" of 27
June 2002 is not in conflict with Article 29, Paragraph 2 of
Article 120, Paragraph 1 of Article 121 and Paragraph 1 of
Article 127 of the Constitution.
11. It is clear from the arguments of the petitioner that
the petitioner doubts as to whether Seimas Resolution No.
IX-992 "On the Confirmation of the List of Unified Positions of
Seimas State Servants of Political (Personal) Confidence, of
State Servants of the Office of the Seimas and Institutions
Accountable to the Seimas, Those of the Institution of the
President of the Republic and Institutions Accountable to the
President of the Republic, Those of National Administration of
Courts, of Courts, Prosecutor's Office and Municipal
Institutions" of 27 June 2002 is not in conflict with Article
29, Paragraph 2 of Article 120, Paragraph 1 of Article 121 and
Article 127 of the Constitution only in the aspect that that
the list of positions of state servants confirmed by the Seimas
includes also positions of state servants of municipal
institutions, since, in the opinion of the petitioner,
confirmation of any list of state servants of municipal
institutions is the competence of the municipal councils.
12. It has been held in this Ruling of the Constitutional
Court that the provision that the list of positions of state
servants confirmed by the Seimas includes also positions of
state servants of municipal institutions is consolidated in
Paragraph 1 (wording of 23 April 2002) of Article 8 of the Law
on the State Service. It was also held that the said provision
is in compliance with the constitutional concept of the state
service and the constitutional principle of independence of
municipalities and freedom of their actions within their
competence established by the Constitution and laws, that this
provision does not contain any legal regulation under which
state servants would be discriminated or privileges would be
granted to them either on the grounds expressis verbis
specified in Paragraph 2 of Article 29 of the Constitution, or
any other constitutionally unjustifiable grounds, and that this
provision is not in conflict with Article 29, Paragraph 2 of
Article 120, Paragraph 1 of Article 121 and Article 127 of the
Constitution.
Having held this, the Constitutional Court will not
investigate whether Seimas Resolution No. IX-992 "On the
Confirmation of the List of Unified Positions of Seimas State
Servants of Political (Personal) Confidence, of State Servants
of the Office of the Seimas and Institutions Accountable to the
Seimas, Those of the Institution of the President of the
Republic and Institutions Accountable to the President of the
Republic, Those of National Administration of Courts, of
Courts, Prosecutor's Office and Municipal Institutions" of 27
June 2002 is not in conflict with Article 29, Paragraph 2 of
Article 120, Paragraph 1 of Article 121 and Article 127 of the
Constitution.
13. By its ruling of 5 May 2003, the Vilnius Regional
Administrative Court, a petitioner, requests to investigate
whether Seimas Resolution No. IX-1244 "On the Amendment of the
Seimas Resolution 'On the Confirmation of the List of Unified
Positions of Seimas State Servants of Political (Personal)
Confidence, of State Servants of the Office of the Seimas and
Institutions Accountable to the Seimas, Those of the
Institution of the President of the Republic and Institutions
Accountable to the President of the Republic, Those of National
Administration of Courts, of Courts, Prosecutor's Office and
Municipal Institutions'" of 10 December 2002 is not in conflict
with Article 29, Paragraph 2 of Article 120, Paragraph 1 of
Article 121 and Paragraph 1 of Article 127 of the Constitution.
14. It is clear from the arguments of the petition of the
petitioner that the petitioner had doubts whether Seimas
Resolution No. IX-1244 "On the Amendment of the Seimas
Resolution 'On the Confirmation of the List of Unified
Positions of Seimas State Servants of Political (Personal)
Confidence, of State Servants of the Office of the Seimas and
Institutions Accountable to the Seimas, Those of the
Institution of the President of the Republic and Institutions
Accountable to the President of the Republic, Those of National
Administration of Courts, of Courts, Prosecutor's Office and
Municipal Institutions'" of 10 December 2002 is not in conflict
with Article 29, Paragraph 2 of Article 120, Paragraph 1 of
Article 121 and Article 127 of the Constitution only in the
aspect that by it the Seimas changed certain categories of
positions of state servants (for instance, the deputy director
of the municipal administration) of municipal institutions as
well as maximum categories-they were lowered.
15. It needs to be noted that the petitioner did not
present any legal arguments why, in his opinion, the Seimas was
not permitted to change categories of positions of respective
state servants of municipal institutions and to lower them.
16. Under Item 5 of Paragraph 2 of Article 67 of the Law
on the Constitutional Court, the ruling of the court that
applies to the Constitutional Court requesting to investigate
whether a legal act is not in conflict with the Constitution
must contain legal arguments presenting the opinion of the
court on the conflict of a law or other legal act with the
Constitution.
Under Article 70 of the Law on the Constitutional Court,
the petition is to be returned to the petitioner if the
petition or attachments thereto fail to comply with inter alia
the requirements set forth in Article 67 of this law. The
return of a petition shall not take away the right to apply to
the Constitutional Court according to the common procedure
after removal of the deficiencies thereof.
17. Taking account of the arguments set forth, one is to
hold that part of the case concerning the compliance of Seimas
Resolution No. IX-1244 "On the Amendment of the Seimas
Resolution 'On the Confirmation of the List of Unified
Positions of Seimas State Servants of Political (Personal)
Confidence, of State Servants of the Office of the Seimas and
Institutions Accountable to the Seimas, Those of the
Institution of the President of the Republic and Institutions
Accountable to the President of the Republic, Those of National
Administration of Courts, of Courts, Prosecutor's Office and
Municipal Institutions'" of 10 December 2002 with the
Constitution is to be dismissed and the petition to this extent
is to be returned to the petitioner.
IX
On the compliance of Paragraph 1 (wording of 13 December
1994) of Article 7 of the Law on the State Pensions of
Officials and Servicemen of the Interior, the Special
Investigation Service, State Security, National Defence, the
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to
the Latter (wording of 2 May 2000) with Paragraphs 1 and 2 of
Article 23, Article 29 and Article 52 of the Constitution as
well as with the constitutional principle of a state under the
rule of law.
1. By its ruling of 7 May 2003, the Vilnius Regional
Administrative Court, a petitioner, requests to investigate
whether the provisions of Paragraph 1 of Article 7 of the Law
on the State Pensions of Officials and Servicemen of the
Interior, the Special Investigation Service, State Security,
National Defence, the Prosecutor's Office, the Department of
Prisons and of the Establishments and State Enterprises Which
are Subordinate to the Latter, which regulate calculation and
payment of state pensions of officials and servicemen according
to the remuneration for work of officials and servicemen valid
at the month of payment of the pension for the office that they
used to hold at the time of retirement, and which do not
provide for a prohibition to reduce remuneration for work for
the month for which the state pension of officials and
servicemen is calculated and paid, are not in conflict, as to
their content, with the principles of a society and state under
the rule of law entrenched in the Preamble to the Constitution,
as well as Articles 23, 29 and 52 of the Constitution.
2. On 13 December 1994, the Seimas adopted the Law on the
State Pensions of Officials and Servicemen of the Interior,
State Security, National Defence and of the Prosecutor's
Office.
It was established in Paragraph 1 of Article 7 of this
law:
"The state pension of officials and servicemen for service
shall be calculated and paid on the basis of the remuneration
for work valid in the month of the payment of the pension for
the post which the official or serviceman used to hold prior to
his retirement. This remuneration shall include the positional
salary, as well as the extra pays for the rank, length of
service and the category when these extra pays are paid under
procedure established by laws."
3. The legal regulation established in the Law on the
State Pensions of Officials and Servicemen of the Interior,
State Security, National Defence and of the Prosecutor's Office
was changed for more than once; the title of the said law was
changed more than once, too.
For instance, the title of the Law on the State Pensions
of Officials and Servicemen of the Interior, State Security,
National Defence and of the Prosecutor's Office was amended
after the Seimas, on 2 May 2000, adopted the Republic of
Lithuania Law on Amending the Title as well as Articles 1, 3,
6, 12 and 16 to the Law on the State Pensions of Officials and
Servicemen of the Interior, State Security, National Defence
and of the Prosecutor's Office, by Article 1 whereof the said
title was supplemented and set forth as follows: "The Republic
of Lithuania Law on the State Pensions of Officials and
Servicemen of the Interior, the Special Investigation Service,
State Security, National Defence and of the Prosecutor's
Office".
The title of this law was amended once again after the
Seimas, on 13 July 2000, adopted the Republic of Lithuania Law
on Amending the Title as well as Articles 1, 3, 6, 12 and 16 to
the Law on the State Pensions of Officials and Servicemen of
the Interior, the Special Investigation Service, State
Security, National Defence and of the Prosecutor's Office, by
Article 1 whereof the said title was supplemented and set forth
as follows: "The Republic of Lithuania Law on the State
Pensions of Officials and Servicemen of the Interior, the
Special Investigation Service, State Security, National
Defence, the Prosecutor's Office, the Department of Prisons and
of the Establishments and State Enterprises Which are
Subordinate to the Latter".
Alongside, it needs to be noted that the legal regulation
established in Paragraph 1 (wording of 13 December 1994) of
Article 7 of the Law on the State Pensions of Officials and
Servicemen of the Interior, State Security, National Defence
and of the Prosecutor's Office had not been amended until the
petitioner applied to the Constitutional Court with the
petition requesting to investigate the compliance of this
paragraph with the Constitution.
4. On 23 April 2002, the Constitutional Court passed the
Ruling "On the compliance of Paragraphs 1 and 2 of Article 7,
Paragraph 6 and Item 2 of Paragraph 9 of Article 16 of the
Republic of Lithuania Law on the State Pensions of Officials
and Soldiers of the Interior, the Special Investigation
Service, State Security, National Defence and of the
Prosecutor's Office (wording of 2 May 2000) with the
Constitution of the Republic of Lithuania, and on the
compliance of Item 31.3 of the Regulations of Granting and
Payment of State Pensions to Officials and Soldiers of the
Systems of Internal Affairs, State Security, National Defence
and Prosecutor's Office (wording of 20 November 1998) Approved
by Government of the Republic of Lithuania Resolution No. 83
'On the Approval of the Regulations of Granting and Payment of
State Pensions to Officials and Soldiers of the Systems of
Internal Affairs, State Security, National Defence and
Prosecutor's Office and the Establishment of the Time of
Service Necessary in Order to Receive a Respective Percentage
Extra Pay for the Years of Service' of 20 January 1995 with
Paragraph 1 of Article 7 of the Republic of Lithuania Law on
the State Pensions of Officials and Soldiers of the Interior,
the Special Investigation Service, State Security, National
Defence and of the Prosecutor's Office (wording of 2 May 2000)"
whereby it inter alia recognised that Paragraphs 1 and 2 of
Article 7 of the Law on the State Pensions of Officials and
Servicemen of the Interior, the Special Investigation Service,
State Security, National Defence and of the Prosecutor's Office
(wording of 2 May 2002) were not in conflict with the
Constitution.
5. Taking account of the fact that the Constitutional
Court ruling of 23 April 2002 recognised that Paragraphs 1 and
2 of Article 7 of the Law on the State Pensions of Officials
and Servicemen of the Interior, the Special Investigation
Service, State Security, National Defence and of the
Prosecutor's Office (wording of 2 May 2002) were not in
conflict with the Constitution, as well as of the fact that the
title of the Law on the State Pensions of Officials and
Servicemen of the Interior, the Special Investigation Service,
State Security, National Defence and of the Prosecutor's Office
(wording of 2 May 2000) was amended by the Law on Amending the
Title as well as Articles 1, 3, 6, 12 and 16 to the Law on the
State Pensions of Officials and Servicemen of the Interior, the
Special Investigation Service, State Security, National Defence
and of the Prosecutor's Office, which was adopted by the Seimas
on 13 July 2000, and which was entitled as the Law on the State
Pensions of Officials and Servicemen of the Interior, the
Special Investigation Service, State Security, National
Defence, the Prosecutor's Office, the Department of Prisons and
of the Establishments and State Enterprises Which are
Subordinate to the Latter, as well as of the fact that the
legal regulation established in Paragraph 1 (wording of 13
December 1994) of Article 7 of this law had not been amended
before the petitioner applied to the Constitutional Court with
the petition requesting to investigate the compliance of this
paragraph with the Constitution, one is to hold that the issue
of the compliance of Paragraphs 1 and 2 (wording of 13 July
2000) of Article 7 of the Law on the State Pensions of
Officials and Servicemen of the Interior, the Special
Investigation Service, State Security, National Defence, the
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to
the Latter (wording of 13 July 2000) with the Constitution was
decided by the Constitutional Court ruling of 23 April 2002.
6. Item 3 of Paragraph 1 of Article 69 of the Law on the
Constitutional Court provides that the Constitutional Court, by
a decision, shall refuse to consider petitions to investigate
the compliance of a legal act with the Constitution, if the
compliance of the legal act with the Constitution indicated in
the petition has already been investigated by the
Constitutional Court and the ruling on this issue adopted by
the Constitutional Court is still in force.
Paragraph 3 of Article 69 of the Law on the Constitutional
Court provides that in the event that the grounds for refusal
to consider a petition have been established after the
commencement of the investigation of the case during the
hearing of the Constitutional Court, a decision to dismiss the
case shall be adopted.
7. The Constitutional Court dismisses the part of the case
concerning the compliance of Paragraph 1 of Article 7 of the
Law on the State Pensions of Officials and Servicemen of the
Interior, the Special Investigation Service, State Security,
National Defence, the Prosecutor's Office, the Department of
Prisons and of the Establishments and State Enterprises Which
are Subordinate to the Latter (wording of 13 July 2000) with
the Constitution.
X
On the compliance of Item 9 of the Regulations for
Granting and Payment of State Pensions of Officials and
Servicemen of the Systems of the Interior, the Special
Investigation Service, State Security, National Defence, the
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to
the Latter confirmed by Government Resolution No. 83 "On the
Approval of the Regulations for Granting and Payment of State
Pensions to Officials and Servicemen of the Systems of the
Interior, State Security, National Defence and Prosecutor's
Office, the Department of Prisons and of the Establishments and
State Enterprises Which are Subordinate to the Latter and the
Establishment of the Time of Service Necessary in Order to
Receive a Respective Percentage Extra Pay for the Years of
Service" of 20 January 1995 (wording of 18 July 2000) with
Paragraphs 1 and 2 of Article 23, Articles 29 and 52 of the
Constitution, and the constitutional principle of a state under
the rule of law, as well as that of Section 5 of Item 9 of the
said regulations also with Item 7 of Article 94 of the
Constitution and Paragraph 1 (wording of 13 December 1994) of
Article 7 and Paragraph 2 (wording of 13 July 2000) of Article
12 of the Law on the State Pensions of Officials and Servicemen
of the Interior, the Special Investigation Service, State
Security, National Defence, the Prosecutor's Office, the
Department of Prisons and of the Establishments and State
Enterprises Which are Subordinate to the Latter (wording of 13
July 2000).
1. By its ruling of 7 May 2003, the Vilnius Regional
Administrative Court, a petitioner, requests to investigate
whether the provisions of Item 9 of the Regulations for
Granting and Payment of State Pensions of Officials and
Servicemen of the Systems of the Interior, the Special
Investigation Service, State Security, National Defence, the
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to
the Latter confirmed by Government Resolution No. 83 "On the
Approval of the Regulations for Granting and Payment of State
Pensions to Officials and Servicemen of the Systems of the
Interior, State Security, National Defence and Prosecutor's
Office, the Department of Prisons and of the Establishments and
State Enterprises Which are Subordinate to the Latter and the
Establishment of the Time of Service Necessary in Order to
Receive a Respective Percentage Extra Pay for the Years of
Service" of 20 January 1995, which regulate calculation and
payment of state pensions of officials and servicemen according
to the remuneration for work of officials and servicemen valid
at the month of payment of the pension for the office that they
used to hold at the time of retirement, and which do not
provide for a prohibition to reduce remuneration for work for
the month for which the state pension of officials and
servicemen is calculated and paid, are not in conflict, as to
their content, with the principles of a just society and state
under the rule of law entrenched in the Preamble to the
Constitution, as well as Articles 23, 29 and 52 of the
Constitution, and whether the provisions of Section 5 of Item 9
of the Regulations for Granting and Payment of State Pensions
of Officials and Servicemen of the Systems of the Interior, the
Special Investigation Service, State Security, National
Defence, the Prosecutor's Office, the Department of Prisons and
of the Establishments and State Enterprises Which are
Subordinate to the Latter confirmed by Government Resolution
No. 83 "On the Approval of the Regulations for Granting and
Payment of State Pensions to Officials and Servicemen of the
Systems of the Interior, State Security, National Defence and
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to
the Latter and the Establishment of the Time of Service
Necessary in Order to Receive a Respective Percentage Extra Pay
for the Years of Service" of 20 January 1995, which permit only
the Ministry of National Defence, when it grants state pensions
of officials and servicemen, to calculate their remuneration
for work on the basis of the resolutions of the Government in
which remuneration for work of servicemen is established prior
to the entry into effect of the law regulating remuneration for
work of servicemen, are not in conflict, by their content, with
the principles of a just civil society and state under the rule
of law entrenched in the Preamble to the Constitution, Article
29 and Item 7 of Article 94 of the Constitution, as well as
Paragraph 1 of Article 7 and Paragraph 2 of Article 12 of the
Law on the State Pensions of Officials and Servicemen of the
Interior, the Special Investigation Service, State Security,
National Defence, the Prosecutor's Office, the Department of
Prisons and of the Establishments and State Enterprises Which
are Subordinate to the Latter.
2. At the time of the submission of the petition by the
petitioner to the Constitutional Court, Paragraph 1 of Article
7 and Paragraph 2 of Article 12 of the Law on the State
Pensions of Officials and Servicemen of the Interior, the
Special Investigation Service, State Security, National
Defence, the Prosecutor's Office, the Department of Prisons and
of the Establishments and State Enterprises Which are
Subordinate to the Latter (wording of 13 July 2000), which were
indicated by the petitioner, were set forth in the wording of
13 December 1994.
3. On 22 November 2004, the Government adopted Resolution
No. 1465 "On Amending Government of the Republic of Lithuania
Resolution No. 83 'On the Approval of the Regulations for
Granting and Payment of State Pensions to Officials and
Servicemen of the Systems of the Interior, State Security,
National Defence and Prosecutor's Office, the Department of
Prisons and of the Establishments and State Enterprises Which
are Subordinate to the Latter and the Establishment of the Time
of Service Necessary in Order to Receive a Respective
Percentage Extra Pay for the Years of Service' of 20 January
1995" whereby it recognised Sections 2, 3, 4 and 5 of Item 9 of
the Regulations for Granting and Payment of State Pensions of
Officials and Servicemen of the Systems of the Interior, the
Special Investigation Service, State Security, National
Defence, the Prosecutor's Office, the Department of Prisons and
of the Establishments and State Enterprises Which are
Subordinate to the Latter confirmed by Government Resolution
No. 83 "On the Approval of the Regulations for Granting and
Payment of State Pensions to Officials and Servicemen of the
Systems of the Interior, State Security, National Defence and
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to
the Latter and the Establishment of the Time of Service
Necessary in Order to Receive a Respective Percentage Extra Pay
for the Years of Service" of 20 January 1995 (wording of 18
July 2000) as no longer valid.
4. Item 9 (wording of 20 January 1995) of the Regulations
for Granting and Payment of State Pensions of Officials and
Servicemen of the Systems of the Interior, the Special
Investigation Service, State Security, National Defence, the
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to
the Latter confirmed by Government Resolution No. 83 "On the
Approval of the Regulations for Granting and Payment of State
Pensions to Officials and Servicemen of the Systems of the
Interior, State Security, National Defence and Prosecutor's
Office, the Department of Prisons and of the Establishments and
State Enterprises Which are Subordinate to the Latter and the
Establishment of the Time of Service Necessary in Order to
Receive a Respective Percentage Extra Pay for the Years of
Service" of 20 January 1995 (wording of 18 July 2000) used to
provide:
"The amounts of state pensions of officials and servicemen
and the procedure for calculation of these pensions are
specified in Articles 7, 9, 10 and 16 of the Law.
The amounts of the pensions are calculated according to
the remuneration for work of officials and servicemen valid at
the month of payment of the pension for the office that they
used to hold at the time of retirement.
The positional remuneration (basic monthly salary), extra
pay for the rank, work record and category are included into
the aforesaid remuneration where these extra pays are paid
under procedure established by laws.
For each service year included into the service time
necessary to grant the pension, 1 percent of the remuneration
for work is paid.
The Ministry of National Defence is permitted, when it
grants state pensions of officials and soldiers under Paragraph
1 of Article 7 of the Law, to calculate their remuneration for
work on the basis of the resolutions of the Government in which
remuneration for work of servicemen is established prior to the
entry into effect of the law regulating remuneration for work
of servicemen."
5. The law indicated in Section 1 of Item 9 (wording of 20
January 1995) of the Regulations for Granting and Payment of
State Pensions of Officials and Servicemen of the Systems of
the Interior, the Special Investigation Service, State
Security, National Defence, the Prosecutor's Office, the
Department of Prisons and of the Establishments and State
Enterprises Which are Subordinate to the Latter confirmed by
Government Resolution No. 83 "On the Approval of the
Regulations for Granting and Payment of State Pensions to
Officials and Servicemen of the Systems of the Interior, State
Security, National Defence and Prosecutor's Office, the
Department of Prisons and of the Establishments and State
Enterprises Which are Subordinate to the Latter and the
Establishment of the Time of Service Necessary in Order to
Receive a Respective Percentage Extra Pay for the Years of
Service" of 20 January 1995 (wording of 18 July 2000) is the
Law on the State Pensions of Officials and Servicemen of the
Interior, the Special Investigation Service, State Security,
National Defence, the Prosecutor's Office, the Department of
Prisons and of the Establishments and State Enterprises Which
are Subordinate to the Latter.
The said section provides in which articles of the Law on
the State Pensions of Officials and Servicemen of the Interior,
the Special Investigation Service, State Security, National
Defence, the Prosecutor's Office, the Department of Prisons and
of the Establishments and State Enterprises Which are
Subordinate to the Latter the amounts of the pensions and the
procedure of calculation of these pensions are indicated.
It needs to be noted that a mere fact that in Section 1
(wording of 20 January 1995) of Item 9 of the said regulations
one makes reference to the articles of the Law on the State
Pensions of Officials and Servicemen of the Interior, the
Special Investigation Service, State Security, National
Defence, the Prosecutor's Office, the Department of Prisons and
of the Establishments and State Enterprises Which are
Subordinate to the Latter does not give grounds to assert that
this section is in conflict with the articles of the
Constitution pointed out by the petitioner.
6. The following was established in Sections 2 and 3 of
Item 9 (wording of 20 January 1995) of the Regulations for
Granting and Payment of State Pensions of Officials and
Servicemen of the Systems of the Interior, the Special
Investigation Service, State Security, National Defence, the
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to
the Latter confirmed by Government Resolution No. 83 "On the
Approval of the Regulations for Granting and Payment of State
Pensions to Officials and Servicemen of the Systems of the
Interior, State Security, National Defence and Prosecutor's
Office, the Department of Prisons and of the Establishments and
State Enterprises Which are Subordinate to the Latter and the
Establishment of the Time of Service Necessary in Order to
Receive a Respective Percentage Extra Pay for the Years of
Service" of 20 January 1995 (wording of 18 July 2000):
"The amounts of the pensions are calculated according to
the remuneration for work of officials and servicemen valid at
the month of payment of the pension for the office that they
used to hold at the time of retirement.
The positional remuneration (basic monthly salary), extra
pay for the rank, work record and category are included into
the aforesaid remuneration where these extra pays are paid
under procedure established by laws."
The following was established in Paragraph 1 of Article 7
of the Law on the State Pensions of Officials and Servicemen of
the Interior, the Special Investigation Service, State
Security, National Defence, the Prosecutor's Office, the
Department of Prisons and of the Establishments and State
Enterprises Which are Subordinate to the Latter (wording of 13
July 2000):
"The pension of officials and servicemen is calculated and
paid according to the remuneration for work of officials and
servicemen valid at the month of payment of the pension for the
office that they used to hold at the time of retirement. The
positional salary, extra pays for the rank, work record and
category are included into the aforesaid remuneration where
these extra pays are paid under procedure established by laws."
Having compared the legal regulation established in
Sections 2 and 3 of Item 9 (wording of 20 January 1995) of the
Regulations for Granting and Payment of State Pensions of
Officials and Servicemen of the Systems of the Interior, the
Special Investigation Service, State Security, National
Defence, the Prosecutor's Office, the Department of Prisons and
of the Establishments and State Enterprises Which are
Subordinate to the Latter confirmed by Government Resolution
No. 83 "On the Approval of the Regulations for Granting and
Payment of State Pensions to Officials and Servicemen of the
Systems of the Interior, State Security, National Defence and
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to
the Latter and the Establishment of the Time of Service
Necessary in Order to Receive a Respective Percentage Extra Pay
for the Years of Service" of 20 January 1995 (wording of 18
July 2000) with the legal regulation established in Paragraph 1
of Article 7 of the Law on the State Pensions of Officials and
Servicemen of the Interior, the Special Investigation Service,
State Security, National Defence, the Prosecutor's Office, the
Department of Prisons and of the Establishments and State
Enterprises Which are Subordinate to the Latter (wording of 13
July 2000), it is clear that they are virtually identical.
7. The following was established in Section 4 (wording of
20 January 1995) of Item 9 (wording of 20 January 1995) of the
Regulations for Granting and Payment of State Pensions of
Officials and Servicemen of the Systems of the Interior, the
Special Investigation Service, State Security, National
Defence, the Prosecutor's Office, the Department of Prisons and
of the Establishments and State Enterprises Which are
Subordinate to the Latter confirmed by Government Resolution
No. 83 "On the Approval of the Regulations for Granting and
Payment of State Pensions to Officials and Servicemen of the
Systems of the Interior, State Security, National Defence and
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to
the Latter and the Establishment of the Time of Service
Necessary in Order to Receive a Respective Percentage Extra Pay
for the Years of Service" of 20 January 1995 (wording of 18
July 2000):
"For each service year included into the service time
necessary to grant the pension, 1 percent of the remuneration
for work is paid."
The following was established in Paragraph 1 of Article 7
of the Law on the State Pensions of Officials and Servicemen of
the Interior, the Special Investigation Service, State
Security, National Defence, the Prosecutor's Office, the
Department of Prisons and of the Establishments and State
Enterprises Which are Subordinate to the Latter (wording of 13
July 2000):
"For each service year included into the service time
necessary to grant the pension, 1% of the remuneration for work
is paid."
Having compared the legal regulation established in
Section 4 of Item 9 (wording of 20 January 1995) of the
Regulations for Granting and Payment of State Pensions of
Officials and Servicemen of the Systems of the Interior, the
Special Investigation Service, State Security, National
Defence, the Prosecutor's Office, the Department of Prisons and
of the Establishments and State Enterprises Which are
Subordinate to the Latter confirmed by Government Resolution
No. 83 "On the Approval of the Regulations for Granting and
Payment of State Pensions to Officials and Servicemen of the
Systems of the Interior, State Security, National Defence and
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to
the Latter and the Establishment of the Time of Service
Necessary in Order to Receive a Respective Percentage Extra Pay
for the Years of Service" of 20 January 1995 (wording of 18
July 2000) with the legal regulation established in Paragraph 2
of Article 7 of the Law on the State Pensions of Officials and
Servicemen of the Interior, the Special Investigation Service,
State Security, National Defence, the Prosecutor's Office, the
Department of Prisons and of the Establishments and State
Enterprises Which are Subordinate to the Latter (wording of 13
July 2000), it is clear that they were virtually identical.
8. It has been held in this Ruling of the Constitutional
Court that the issue of the compliance of Paragraphs 1 and 2
(wording of 13 July 2000) of Article 7 of the Law on the State
Pensions of Officials and Servicemen of the Interior, the
Special Investigation Service, State Security, National
Defence, the Prosecutor's Office, the Department of Prisons and
of the Establishments and State Enterprises Which are
Subordinate to the Latter (wording of 13 July 2000) with the
Constitution was decided by the Constitutional Court ruling of
23 April 2002-both of these paragraphs are not in conflict with
the Constitution.
9. Having held this, one is also to hold that Sections 2,
3, and 4 of Item 9 (wording of 20 January 1995) of the
Regulations for Granting and Payment of State Pensions of
Officials and Servicemen of the Systems of the Interior, the
Special Investigation Service, State Security, National
Defence, the Prosecutor's Office, the Department of Prisons and
of the Establishments and State Enterprises Which are
Subordinate to the Latter confirmed by Government Resolution
No. 83 "On the Approval of the Regulations for Granting and
Payment of State Pensions to Officials and Servicemen of the
Systems of the Interior, State Security, National Defence and
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to
the Latter and the Establishment of the Time of Service
Necessary in Order to Receive a Respective Percentage Extra Pay
for the Years of Service" of 20 January 1995 (wording of 18
July 2000) were not in conflict with the Constitution, thus
also with Articles 23, 29, and 52 of the Constitution and the
constitutional principle of a state under the rule of law.
10. The following was established in Section 5 (wording of
20 January 1995) of Item 9 (wording of 20 January 1995) of the
Regulations for Granting and Payment of State Pensions of
Officials and Servicemen of the Systems of the Interior, the
Special Investigation Service, State Security, National
Defence, the Prosecutor's Office, the Department of Prisons and
of the Establishments and State Enterprises Which are
Subordinate to the Latter confirmed by Government Resolution
No. 83 "On the Approval of the Regulations for Granting and
Payment of State Pensions to Officials and Servicemen of the
Systems of the Interior, State Security, National Defence and
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to
the Latter and the Establishment of the Time of Service
Necessary in Order to Receive a Respective Percentage Extra Pay
for the Years of Service" of 20 January 1995 (wording of 18
July 2000):
"The Ministry of National Defence is permitted, when it
grants state pensions of officials and soldiers under Paragraph
1 of Article 7 of the law, to calculate their remuneration for
work on the basis of the resolutions of the Government of the
Republic of Lithuania in which remuneration for work of
servicemen is established prior to the entry into effect of the
law regulating remuneration for work of servicemen."
11. The petitioner had doubts whether Section 5 (a
constituent part of Item 9) of Item 9 (wording of 20 January
1995) of the Regulations for Granting and Payment of State
Pensions of Officials and Servicemen of the Systems of the
Interior, the Special Investigation Service, State Security,
National Defence, the Prosecutor's Office, the Department of
Prisons and of the Establishments and State Enterprises Which
are Subordinate to the Latter confirmed by Government
Resolution No. 83 "On the Approval of the Regulations for
Granting and Payment of State Pensions to Officials and
Servicemen of the Systems of the Interior, State Security,
National Defence and Prosecutor's Office, the Department of
Prisons and of the Establishments and State Enterprises Which
are Subordinate to the Latter and the Establishment of the Time
of Service Necessary in Order to Receive a Respective
Percentage Extra Pay for the Years of Service" of 20 January
1995 (wording of 18 July 2000) is not in conflict with
Paragraphs 1 and 2 of Article 23, Articles 29 and 52 and Item 7
of Article 94 of the Constitution, the constitutional principle
of a state under the rule of law, as well as with Paragraph 1
(wording of 13 December 1994) of Article 7 and Paragraph 2
(wording of 13 July 2000) of Article 12 of the Law on the State
Pensions of Officials and Servicemen of the Interior, the
Special Investigation Service, State Security, National
Defence, the Prosecutor's Office, the Department of Prisons and
of the Establishments and State Enterprises Which are
Subordinate to the Latter (wording of 13 July 2000).
12. It is clear from the content of disputed Section 5
that it specifies on which legal acts the Ministry of National
Defence is permitted to base itself when it calculates the
remuneration for work of officials and servicemen in the course
of granting state pensions to them.
Thus, Section 5 (wording of 20 January 1995) disputed by
the petitioner regulates relations of granting state pensions
of officials and servicemen, but not those of remuneration for
work, and in it one makes reference to corresponding legal
acts.
Besides, one is to note that there are no preconditions to
assert that the said prohibition to diminish the remuneration
for work of officials and servicemen had to be established in
precisely Section 5 (which is disputed by the petitioner) of
Item 9 of the Regulations for Granting and Payment of State
Pensions of Officials and Servicemen of the Systems of the
Interior, the Special Investigation Service, State Security,
National Defence, the Prosecutor's Office, the Department of
Prisons and of the Establishments and State Enterprises Which
are Subordinate to the Latter confirmed by Government
Resolution No. 83 "On the Approval of the Regulations for
Granting and Payment of State Pensions to Officials and
Servicemen of the Systems of the Interior, State Security,
National Defence and Prosecutor's Office, the Department of
Prisons and of the Establishments and State Enterprises Which
are Subordinate to the Latter and the Establishment of the Time
of Service Necessary in Order to Receive a Respective
Percentage Extra Pay for the Years of Service" of 20 January
1995 (wording of 18 July 2000).
13. If the laws (parts thereof) do not establish certain
legal regulation, the Constitution Court enjoys the
constitutional powers to investigate the compliance of these
laws (parts thereof) with the Constitution in the cases when
due to the fact that the said legal regulation has not been
established in particularly those laws (parts thereof) the
principles and/or norms of the Constitution might be violated.
In the cases when the petitioner disputes the fact that the law
or another disputed legal act (part thereof) indicated by the
petitioner has not established certain legal regulation, but
the said legal regulation under the Constitution (and if a
substatutory legal act (part thereof) of the Seimas, the
Government and the President of the Republic is being disputed,
then also under the laws) need not be established in that
particular disputed legal act (part thereof), the
Constitutional Court holds that in the case on the request of
the petitioner the matter of investigation is absent
(Constitutional Court ruling of 25 January 2001, decisions of 6
May 2003, 13 May 2003, 16 April 2004).
Taking account of the arguments set forth, one is to hold
that in the case on the request of the petitioner the matter of
investigation is absent. Such request is not within the
jurisdiction of the Constitutional Court.
14. Under Item 2 of Paragraph 1 of Article 69 of the Law
on the Constitutional Court, the Constitutional Court shall
refuse, by its decision, to consider petitions to investigate
the compliance of a legal act with the Constitution, if the
consideration of the petition does not fall under the
jurisdiction of the Constitutional Court.
It is consolidated in Paragraph 3 of Article 69 of the Law
on the Constitutional Court that in the event that the grounds
for refusal to consider a petition have been established after
the commencement of the investigation of the case during the
hearing of the Constitutional Court, a decision to dismiss the
case shall be adopted.
15. The Constitutional Court dismisses the part of the
case concerning the compliance of Section 5 of Item 9 of the
Regulations for Granting and Payment of State Pensions of
Officials and Servicemen of the Systems of the Interior, the
Special Investigation Service, State Security, National
Defence, the Prosecutor's Office, the Department of Prisons and
of the Establishments and State Enterprises Which are
Subordinate to the Latter confirmed by Government Resolution
No. 83 "On the Approval of the Regulations for Granting and
Payment of State Pensions to Officials and Servicemen of the
Systems of the Interior, State Security, National Defence and
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to
the Latter and the Establishment of the Time of Service
Necessary in Order to Receive a Respective Percentage Extra Pay
for the Years of Service" of 20 January 1995 (wording of 18
July 2000) with the Constitution, as well as with Paragraph 1
(wording of 13 December 1994) of Article 7 and Paragraph 2
(wording of 13 July 2000) of Article 12 of the Law on the State
Pensions of Officials and Servicemen of the Interior, the
Special Investigation Service, State Security, National
Defence, the Prosecutor's Office, the Department of Prisons and
of the Establishments and State Enterprises Which are
Subordinate to the Latter (wording of 13 July 2000).
Conforming to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Articles 1, 53, 54, 55, 56 67,
69, and 70 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:
1. The provision consolidated in Paragraph 1 (wording of
23 April 2002) of Article 8 of the Republic of Lithuania Law on
the State Service that the list of state servants confirmed by
the Seimas also includes positions of state servants of
municipal institutions is not in conflict with the Constitution
of the Republic of Lithuania.
2. The provision "The state servant shall be prohibited
from: <...> (4) working as a hired employee, advisor, expert or
consultant in private legal persons, in state or municipal
enterprises, in public establishments, as well as receiving
remuneration for work other than established by this Law, save
the remuneration for work in all level electoral and referendum
commissions and for work under contracts with electoral and
referendum commissions, for scientific and educational work in
schools of higher education or establishments of state
servants' qualification raising, for informal adult education,
for preparation of draft legal acts (unless this function is
specified in the description of the position of the state
servant), when he is assigned, by a Seimas resolution or
decision of the Board of the Seimas, ordinance of the President
of the Seimas, decree of the President of the Republic,
Government Resolution or an ordinance of the Prime Minister,
with preparation of draft legal acts, and save the royalties
for production which is subject to intellectual property rights
<...>" of Article 17 (wording of 23 April 2002) of the Republic
of Lithuania Law on the State Service was in conflict with
Paragraph 1 of Article 48 of the Constitution of the Republic
of Lithuania and the constitutional principle of a state under
the rule of law.
3. The provision "The state servant shall be prohibited
from: <...> (4) working as a hired employee, advisor, expert or
consultant in private legal persons, in state or municipal
enterprises, in public establishments, as well as receiving
remuneration for work other than established by this Law, save
the remuneration for work in all level electoral and referendum
commissions and for work under contracts with electoral and
referendum commissions, for scientific and educational work in
schools of higher education or establishments of state
servants' qualification raising, for informal adult education,
for preparation of draft legal acts (unless this function is
specified in the description of the position of the state
servant), when he is assigned, by a Seimas resolution or
decision of the Board of the Seimas, ordinance of the President
of the Seimas, decree of the President of the Republic,
Government Resolution or an ordinance of the Prime Minister,
with preparation of draft legal acts, and save the royalties
for production which is subject to intellectual property rights
<...>" of Article 17 (wording of 13 July 2004) of the Republic
of Lithuania Law on the State Service is in conflict with
Paragraph 1 of Article 48 of the Constitution of the Republic
of Lithuania and the constitutional principle of a state under
the rule of law.
4. Article 26 (wording of 23 April 2002) of the Republic
of Lithuania Law on the State Service is not in conflict with
the Constitution of the Republic of Lithuania.
5. The provision "An official penalty-dismissal from
office-may be imposed for: (1) engaging in activities
incompatible with the state service <...>" of Paragraph 4
(wording of 23 April 2002) of Article 29 of the Republic of
Lithuania Law on the State Service was not in conflict with the
Constitution of the Republic of Lithuania.
6. The provision "The state servant of political
(personal) confidence who is elected a member of the municipal
council and who has become a career state servant or the head
of a civil service establishment of the administration of the
same municipality under this paragraph must <...> apply to the
Central Electoral Commission with an application concerning his
resignation from the position of a member of the municipal
council. The person who has not filed the application under the
procedure established in Article 86 of the Law on Elections to
Municipal Councils within this period shall lose the status of
a state servant under Item 4 of Paragraph 1 of Article 56 of
the Law on the State Service" of Paragraph 12 (wording of 29
August 2000) of Article 62 of the Republic of Lithuania Law on
the State Service was not in conflict with the Constitution of
the Republic of Lithuania.
7. The provision "The state servants of political
(personal) confidence who became career state servants or heads
of civil service establishments of the municipal administration
in the manner specified in this Paragraph and who were elected
members of the council of the same municipality must decide on
their subsequent service. The persons who have chosen to
continue in the state service must apply to the Central
Electoral Commission with an application concerning their
resignation from members of the municipal council. The persons
who have not filed the application under the procedure
established in Paragraph 1 of Article 86 of the Law on
Elections to Municipal Councils shall lose the status of a
state servant under Item 4 of Paragraph 1 of Article 56 of the
Law on the State Service" of Paragraph 12 (wording of 21
November 2000) of Article 62 of the Republic of Lithuania Law
on the State Service was not in conflict with the Constitution
of the Republic of Lithuania.
8. The provision "if the demand of funds calculated by the
state or municipal institution or establishment according to
confirmed unified categories of positions of state servants for
remuneration for work for state servants exceeds the
appropriations for remuneration for work confirmed in the State
Budget of the Republic of Lithuania and municipal budgets for a
respective year, the remuneration for work of state servants
shall be calculated according to the rules of calculation of
remuneration for work of state servants, which are confirmed by
the Government, however, the positional salary of the state
servant cannot be smaller that that received by him until 30
June 2002" of Paragraph 3 (wording of 10 December 2002) of
Article 1 of the Republic of Lithuania Law on the
Implementation of the Law on Supplementing the Law on the State
Service is in conflict with Paragraphs 1 and 2 of Article 23,
Article 29 and Paragraph 1 of Article 48 of the Constitution of
the Republic of Lithuania as well as with the constitutional
principle of a state under the rule of law.
9. Paragraph 6 (wording of 4 July 2002) of Article 4 of
the Republic of Lithuania Law on the Implementation of the Law
on Amending the Law on the State Service is in conflict with
Paragraph 1 of Article 48 of the Constitution of the Republic
of Lithuania as well as with the constitutional principle of a
state under the rule of law.
10. The provision "The municipal administrator shall:
<...> (7) <...> dismiss, under procedure established in the Law
on the State Service, civil servants and state employees as
well as heads of establishments rendering public services
<...>" of Paragraph 7 (wording of 28 January 2003) of Article
29 of the Republic of Lithuania Law on Local Self-government
was not in conflict with the Constitution of the Republic of
Lithuania.
11. Section 1 of Item 9 (wording of 20 January 1995) of
the Regulations for Granting and Payment of State Pensions of
Officials and Servicemen of the Systems of the Interior, the
Special Investigation Service, State Security, National
Defence, the Prosecutor's Office, the Department of Prisons and
of the Establishments and State Enterprises Which are
Subordinate to the Latter confirmed by Government of the
Republic of Lithuania Resolution No. 83 "On the Approval of the
Regulations for Granting and Payment of State Pensions to
Officials and Servicemen of the Systems of the Interior, State
Security, National Defence and Prosecutor's Office, the
Department of Prisons and of the Establishments and State
Enterprises Which are Subordinate to the Latter and the
Establishment of the Time of Service Necessary in Order to
Receive a Respective Percentage Extra Pay for the Years of
Service" of 20 January 1995 (wording of 18 July 2000) is not in
conflict with the Constitution of the Republic of Lithuania.
12. Sections 2, 3, and 4 of Item 9 (wording of 20 January
1995) of the Regulations for Granting and Payment of State
Pensions of Officials and Servicemen of the Systems of the
Interior, the Special Investigation Service, State Security,
National Defence, the Prosecutor's Office, the Department of
Prisons and of the Establishments and State Enterprises Which
are Subordinate to the Latter confirmed by Government of the
Republic of Lithuania Resolution No. 83 "On the Approval of the
Regulations for Granting and Payment of State Pensions to
Officials and Servicemen of the Systems of the Interior, State
Security, National Defence and Prosecutor's Office, the
Department of Prisons and of the Establishments and State
Enterprises Which are Subordinate to the Latter and the
Establishment of the Time of Service Necessary in Order to
Receive a Respective Percentage Extra Pay for the Years of
Service" of 20 January 1995 (wording of 18 July 2000) were not
in conflict with the Constitution of the Republic of Lithuania.
13. The Rules of Calculation of Remuneration for Work of
the State Servant for the Second Half-year of 2002 confirmed by
Government of the Republic of Lithuania Resolution No. 686 "On
Calculation of Remuneration for Work of State Servants for the
Second Half-year of 2002" of 20 May 2002 were in conflict with
Paragraphs 1 and 2 of Article 23, Article 29 and Paragraph 1 of
Article 48 of the Constitution of the Republic of Lithuania as
well as with the constitutional principle of a state under the
rule of law.
14. Items 1 and 2 of Government of the Republic of
Lithuania Resolution No. 53 "On the Rules of Calculation of
Remuneration for Work of State Servants" of 17 January 2003 and
the Rules of Calculation of Remuneration for Work of State
Servants confirmed by the same resolution of the Government of
the Republic of Lithuania are in conflict with Paragraphs 1 and
2 of Article 23, Article 29 and Paragraph 1 of Article 48 of
the Constitution of the Republic of Lithuania as well as the
constitutional principle of the stat under the rule of law.
15. To dismiss the part of the case concerning the
compliance of Paragraph 1 of Article 7 of the Republic of
Lithuania Law on the State Pensions of Officials and Servicemen
of the Interior, the Special Investigation Service, State
Security, National Defence, the Prosecutor's Office, the
Department of Prisons and of the Establishments and State
Enterprises Which are Subordinate to the Latter (wording of 13
July 2000) with the Constitution of the Republic of Lithuania.
16. To dismiss the part of the case concerning the
compliance of Seimas of the Republic of Lithuania Resolution
No. IX-1244 "On the Amendment of the Seimas Resolution 'On the
Confirmation of the List of Unified Positions of Seimas State
Servants of Political (Personal) Confidence, of State Servants
of the Office of the Seimas and Institutions Accountable to the
Seimas, Those of the Institution of the President of the
Republic and Institutions Accountable to the President of the
Republic, Those of National Administration of Courts, of
Courts, Prosecutor's Office and Municipal Institutions'" of 10
December 2002 with the Constitution of the Republic of
Lithuania and to this extent to return the petition to the
Vilnius Regional Administrative Court, a petitioner.
17. To dismiss the part of the case concerning the
compliance of Section 5 of Item 9 of the Regulations for
Granting and Payment of State Pensions of Officials and
Servicemen of the Systems of the Interior, the Special
Investigation Service, State Security, National Defence, the
Prosecutor's Office, the Department of Prisons and of the
Establishments and State Enterprises Which are Subordinate to
the Latter confirmed by Government of the Republic of Lithuania
Resolution No. 83 "On the Approval of the Regulations for
Granting and Payment of State Pensions to Officials and
Servicemen of the Systems of the Interior, State Security,
National Defence and Prosecutor's Office, the Department of
Prisons and of the Establishments and State Enterprises Which
are Subordinate to the Latter and the Establishment of the Time
of Service Necessary in Order to Receive a Respective
Percentage Extra Pay for the Years of Service" of 20 January
1995 (wording of 18 July 2000) with the Constitution of the
Republic of Lithuania, as well as with Paragraph 1 (wording of
13 December 1994) of Article 7 and Paragraph 2 (wording of 13
July 2000) of Article 12 of the Republic of Lithuania Law on
the State Pensions of Officials and Servicemen of the Interior,
the Special Investigation Service, State Security, National
Defence, the Prosecutor's Office, the Department of Prisons and
of the Establishments and State Enterprises Which are
Subordinate to the Latter (wording of 13 July 2000).
This ruling of the Constitutional Court of the Republic of
Lithuania 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
Jonas Prapiestis
Vytautas Sinkevičius
Stasys Stačiokas