Lietuviškai
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF
LITHUANIA
DECISION
ON THE 4 AUGUST 2005 PETITION OF THE KLAIPĖDA
REGIONAL COURT REQUESTING TO INVESTIGATE WHETHER
ITEM 89 OF THE INSTRUCTIONS FOR EXECUTION OF
DECISIONS AS CONFIRMED BY ORDER NO. 432 "ON
CONFIRMING THE INSTRUCTIONS FOR EXECUTION OF
DECISIONS" OF 31 DECEMBER 2002 ISSUED BY THE
MINISTER OF JUSTICE OF THE REPUBLIC OF LITHUANIA
IS NOT IN CONFLICT WITH THE CONSTITUTION OF THE
REPUBLIC OF LITHUANIA
20 September 2005
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Armanas
Abramavičius, Toma Birmontienė, Egidijus Kūris, Kęstutis
Lapinskas, Zenonas Namavičius, Ramutė Ruškytė, Vytautas
Sinkevičius, Stasys Stačiokas, and Romualdas Kęstutis Urbaitis,
with the secretary of the sitting-Daiva Pitrėnaitė,
at the procedural sitting of the Constitutional Court
considered the 4 August 2005 petition of the Klaipėda Regional
Court requesting to investigate whether Item 89 of the
Instructions for Execution of Decisions as confirmed by Order
No. 432 "On Confirming the Instructions for Execution of
Decisions" of 31 December 2002 issued by the Minister of
Justice of the Republic of Lithuania is not in conflict with
Paragraph 1 of Article 48 the Constitution of the Republic of
Lithuania.
The Constitutional Court
has established:
I
The Klaipėda Regional Court, the petitioner, was
investigating a civil case. By its ruling of 4 August 2005, the
said court suspended the investigation of the case and applied
to the Constitutional Court with a petition requesting to
investigate as to whether Item 89 of the Instructions for
Execution of Decisions (Official Gazette Valstybės žinios,
2003, No. 3-82; hereinafter also referred to as the
Instructions) as confirmed by Order No. 432 "On Confirming the
Instructions for Execution of Decisions" of 31 December 2002
issued by the Minister of Justice of the Republic of Lithuania
is not in conflict with Paragraph 1 of Article 48 the
Constitution.
II
The request of the petitioner is grounded on the following
arguments.
1. Paragraph 1 of Article 48 of the Constitution inter
alia establishes that each human being shall have the right to
just pay for work. According to the petitioner, constitutional
norms are characteristic of the fact that they establish not
only the right but also a duty to act in a corresponding
manner; thus, one must remunerate for work according to labour
expenditures, spent time, qualification of the employee and
other criteria. The petitioner does not have doubts that a
bailiff has the right to receive remuneration if he performs
concrete executing actions; the petitioner doubts the
compliance of Item 89 of the Instructions with Paragraph 1 of
Article 48 of the Constitution due to the fact that this item
establishes a duty of the debtor to pay remuneration to the
bailiff even in cases where the debtor himself pays the debt,
i.e. when the bailiff does not perform coercive execution
actions prior to paying the debt. The petitioner thinks that
the said duty of the debtor is established without reasonable
grounds.
2. The petitioner draws one's attention to the fact that
under Paragraph 1 of Article 583 of the Code of Civil Procedure
of the Republic of Lithuania, the Instructions for Execution of
Decisions are confirmed by the Government or an institution
authorised by it; in the opinion of the petitioner, this fact
proves that the Instructions "meet the requirements raised to
an act of the Government of the Republic of Lithuania",
therefore the issue of its compliance with the Constitution can
be raised and decided at the Constitutional Court.
The Constitutional Court
holds that:
I
1. Under Paragraph 1 of Article 583 of the Code of Civil
Procedure of the Republic of Lithuania, the Instructions for
Execution of Decisions are confirmed by the Government or an
institution authorised by it.
2. Paragraph 4 of Article 21 of the Republic of Lithuania
Law on Bailiffs provides that the procedure and amount of
remuneration to a bailiff for enforcement of execution
documents defined by law, for making material ascertainment by
a court order, delivering and handing in documents by a court
order to natural and legal persons in the Republic of Lithuania
shall be determined by the Government of the Republic of
Lithuania or an institution authorised by it.
3. On 4 June 2002, the Government adopted Resolution No.
816 "On Granting Powers in Relation with the Implementation of
the Republic of Lithuania Law on Confirmation, Entry into
Effect and Implementation of the Code of Civil Procedure" by
Item 1 of which it resolved:
"To grant powers to the Ministry of Justice to draft and
confirm, with coordination of the Ministry of Finance: <...>
1.3. the instructions for execution of decisions."
4. On 31 December 2002, the Minister of Justice confirmed
the Instructions for Execution of Decisions by Order No. 432
"On Confirming the Instructions for Execution of Decisions".
It was established in Item 89 of the Instructions that
"after the debtor carries out the decision after the expiration
of the term established in the inducement paper, and if one did
not have to send him the inducement paper, after the execution
document was accepted for execution, all execution expenses
shall be exacted from the debtor."
5. On 14 February 2003, the Minister of Justice issued
Order No. 47 "On Amending Order No. 432 'On Confirming the
Instructions for Execution of Decisions' of 31 December 2002
issued by the Minister of Justice and Confirming the Form of an
Order Regarding Sequestration and Transfer of Funds to the
Deposit Account of the Bailiff" (Official Gazette Valstybės
žinios, 2003, No. 19-833) whereby the Instructions for
Execution of Decisions as confirmed by Order No. 432 "On
Confirming the Instructions for Execution of Decisions" of 31
December 2002 issued by the Minister of Justice were partly
amended. Item 89 (wording of 31 December 2002) of the
Instructions was not amended.
On 30 September 2003, the Minister of Justice issued Order
No. 242 "On Amending Order No. 432 'On Confirming the
Instructions for Execution of Decisions' of 31 December 2002
issued by the Minister of Justice and Confirming the Forms of
Orders on Execution of Execution Documents" (Official Gazette
Valstybės žinios, 2003, No. 94-4259) whereby the Instructions
for Execution of Decisions (with subsequent amendments) as
confirmed by Order No. 432 "On Confirming the Instructions for
Execution of Decisions" of 31 December 2002 issued by the
Minister of Justice were partly amended. Item 89 (wording of 31
December 2002) of the Instructions was not amended.
On 10 February 2004, the Minister of Justice issued Order
No. 1R-37 "On Amending Order No. 432 'On Confirming the
Instructions for Execution of Decisions' of 31 December 2002
issued by the Minister of Justice" (Official Gazette Valstybės
žinios, 2004, No. 26-833) whereby the Instructions for
Execution of Decisions (with subsequent amendments) as
confirmed by Order No. 432 "On Confirming the Instructions for
Execution of Decisions" of 31 December 2002 issued by the
Minister of Justice were partly amended. Item 89 (wording of 31
December 2002) of the Instructions was amended and set forth as
follows: "After the debtor carries out the decision after the
expiration of the term established in the inducement (proposal)
paper, and if one did not have to send him the inducement
(proposal) paper, after the execution document was accepted for
execution, all execution expenses shall be exacted from the
debtor." Having compared Item 89 (wording of 10 February 2004)
of the Instructions with the former wording (31 December 2002)
of the same item, it is clear that the legal regulation
established therein virtually remained the same, only twice
after the word "inducement" the word "proposal" was entered in
brackets.
On 24 January 2005, the Minister of Justice issued Order
No. 242 "On Amending Order No. 432 'On Confirming the
Instructions for Execution of Decisions' of 31 December 2002
issued by the Minister of Justice" (Official Gazette Valstybės
žinios, 2005, No. 12-402) whereby the Instructions for
Execution of Decisions (with subsequent amendments) were partly
amended. Item 89 (wording of 10 February 2004) of the
Instructions was not amended.
II
1. Item 1 of the Instructions provides that it establishes
the procedure of application of the norms of Part VI of the
Code of Civil Procedure in the course of executing execution
documents provided for by laws.
The provisions of the Instructions are grouped into these
chapters: I. General Provisions; II. Presentation of the
Execution Document and Its Acceptance for Execution. Initial
Actions of Execution; III. Sequestration of Property; IV.
Procedure for Realisation of Property; V. Exaction from
Remuneration for Work of the Debtor or from His Other Income;
VI. Execution Expenditures; VII. Accounting, Distribution and
Payment of Exacted Monetary Funds; VIII. Bailiff's Receipt; IX.
Peculiarities of Execution of Decisions of Non-property
Character.
The instructions also have 12 annexes which establish the
forms of documents drawn up by bailiffs.
2. It is clear from the contents of the Instructions that
they, inter alia their Item 89-especially when it is related
with Item 67 under which execution expenses include not only
expenses of case administration and execution expenses, which
are related with performance of individual execution actions,
but also remuneration to the bailiff for execution of execution
document (part thereof)-regulate not only procedural execution
actions of execution documents provided for by laws, but also
establish material legal norms regulating property relations as
well. It is noteworthy that concrete amounts of execution
expenses, when one takes account of the sums subject to
exaction, are indicated in the charts attached to corresponding
items. It needs to be noted that the execution expenses
established in the Instructions have signs of not only
compensational payments but also of material sanctions and/or
levies as well as obligatory payments.
III
1. While construing Paragraph 1 of Article 48 of the
Constitution, in its ruling of 13 December 2004 the
Constitutional Court inter alia noted 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, according to the legal
acts, to be paid to him, and that it be paid in due time. In
its ruling of 18 December 2001, the Constitutional Court noted
that the right to adequate compensation for work entrenched in
the Constitution is directly linked with the principle of
equality of all persons before the law, the court and other
state institutions, and that this right is inseparably linked
with the constitutional principle of a law-governed state,
which includes the principle of protection of legitimate
expectations as well.
2. Paragraph 3 of Article 127 of the Constitution
provides: "Taxes, other contributions to the budgets, and
levies shall be established by the laws of the Republic of
Lithuania." Under Item 15 of Article 67 of the Constitution,
the Seimas shall establish state taxes and other obligatory
payments.
The Constitutional Court has held that these and other
provisions of the Constitution consolidate not only the
prerogative of the Seimas to establish taxes, but also
establishes by what form of the legal act such legal regulation
is carried out. Under the Constitution, taxes and other
obligatory payments can be established only by a law
(Constitutional Court rulings of 15 March 1996, 10 July 1997, 9
October 1998, 15 March 2000, and 3 June 2002).
In its ruling of 3 June 2002, the Constitutional Court
held that the constitutional requirement to establish state
taxes and other obligatory payments only by means of a law is
an important guarantee of the protection of the rights of the
person.
It needs to be noted that the said constitutional
imperative must be observed mutatis mutandis also while
establishing other property obligations to persons as well-they
also must be grounded on the law.
3. From the constitutional principle of a state under the
rule of law and other constitutional imperatives a requirement
stems to the legislator and other entities of law-making to pay
heed to the hierarchy of legal acts which arises from the
Constitution. This requirement inter alia means that it is
impermissible to regulate, by means of legal acts of lower
power, the social relations which can be regulated only by
legal acts of superior power, also that it is impermissible to
establish the legal regulation in legal acts of lower power
which would compete with that established in legal acts of
superior power.
4. Under the Constitution, only the Constitutional Court
enjoys powers to construe the Constitution officially
(Constitutional Court rulings of 30 May 2003, 29 October 2003,
13 May 2004, 1 July 2004, and 13 December 2004).
Paragraph 2 of Article 107 of the Constitution provides
that the decisions of the Constitutional Court on issues
ascribed to its competence by the Constitution shall be final
and not subject to appeal.
Under Paragraph 2 of Article 72 of the Law on the
Constitutional Court, rulings passed by the Constitutional
Court shall have the power of law and shall be binding to all
State institutions, courts, all enterprises, establishments,
and organisations as well as officials and citizens.
Provisions of the Constitution-its norms and
principles-are construed in acts of the Constitutional Court.
The official constitutional doctrine is created and developed
in such acts. All subjects of law-making and those of
application of law, including courts, must pay heed to the
official constitutional doctrine when they apply the
Constitution, they cannot interpret the provisions of the
Constitution differently from their construction in the acts of
the Constitutional Court. Otherwise, the constitutional
principle that only the Constitutional Court enjoys powers to
construe the Constitution officially would be violated, the
supremacy of the Constitution would be disregarded, and
preconditions would be created for appearance of
inconsistencies in the legal system.
All constituent parts of the Constitutional Court ruling
are interrelated and constitute a whole; while adopting new,
amending and supplementing already adopted laws and other legal
acts, the state institutions that pass them are bound by the
concept of the provisions of the Constitution and other legal
arguments presented in the motivation of the Constitutional
Court ruling (Constitutional Court ruling of 30 May 2003 and 19
January 2005).
It needs to be noted that law-making institutions
(officials) and those that apply law are bound not only by the
concept of constitutional provisions and by arguments set forth
in rulings of the Constitutional Court, but also in other acts
of the Constitutional Court, i.e. conclusions and decisions.
Thus, under the Constitution, all acts of the Constitutional
Court in which the Constitution is construed, i.e. the official
constitutional doctrine is formulated, by their content are
also binding on law-making institutions (officials) and those
that apply law, including courts of general jurisdictions and
specialised courts.
IV
1. It has been mentioned that the instructions were
confirmed by an order of the Minister of Justice.
2. Under Article 105 of the Constitution, the
Constitutional Court shall consider and adopt a decision
whether the laws and other acts adopted by the Seimas are not
in conflict with the Constitution (Paragraph 1), also, whether
acts of the President of the Republic and acts of the
Government of the Republic are not in conflict with the
Constitution and laws (Paragraph 2).
3. The Constitutional Court has held many a time that the
principle of a state under the rule of law consolidated in the
Constitution implies the hierarchy of legal acts in which the
Constitution takes an exceptional place; in a state under the
rule of law it is prohibited to establish the legal regulation
which might compete with the legal regulation established in
legal acts of superior power, inter alia with that established
in the Constitution itself.
Thus, under the Constitution, such legal situations are
impermissible where it would not be possible to verify in a
court whether legal acts (parts thereof), inter alia legal acts
issued by ministers, other legal acts of lower power, as well
as legal acts issued by municipalities, whose control as
regards their compliance with the Constitution does not fall
within the jurisdiction of the Constitutional Court, are not in
conflict with the Constitution and laws.
4. The investigation into the compliance of legal acts
whose power is lower than laws and other acts adopted by the
Seimas, acts of the President of the Republic and acts of the
Government, with legal acts of superior power is provided for
by the Republic of Lithuania Law on the Proceedings of
Administrative Cases.
Paragraph 1 of Article 112 of the Law on the Proceedings
of Administrative Cases provides that "the court of general
jurisdiction or court of special jurisdiction shall have the
right to suspend the hearing of a case and apply to the
administrative court by it ruling requesting to review whether
a concrete normative administrative act (or a part thereof)
applicable in the case being heard is in conformity with the
law or a normative act of the Government". Paragraph 1 of
Article 20 of the same law provides that the Supreme
Administrative Court of Lithuania is "the single and last
instance for the cases relating to the lawfulness of normative
administrative acts adopted by the central entities of state
administration".
It must be held that powers of administrative courts,
inter alia those of the Supreme Administrative Court of
Lithuania, to investigate the compliance of legal acts of lower
power than laws and other acts adopted by the Seimas, acts of
the President of the Republic and acts of the Government, with
the Constitution and laws stem from the aforesaid provisions of
the Law on the Proceedings of Administrative Cases. While
implementing these powers, administrative courts are bound by
the official constitutional doctrine formulated in acts
(rulings, conclusions and decisions) of the Constitutional
Court.
5. Taking account of the arguments set forth, one is to
hold that the petition of the Klaipėda Regional Administrative
Court, the petitioner, requesting to investigate the compliance
of Item 89 of the Instructions with Paragraph 1 of Article 48
of the Constitution does not fall under the jurisdiction of the
Constitutional Court-it falls under the jurisdiction of the
Supreme Administrative Court of Lithuania.
Under Item 2 of Paragraph 1 of Article 69 of the Law on
the Constitutional Court, by a decision, the Constitutional
Court shall refuse 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.
Conforming to Paragraph 1 of Article 28 and Item 2 of
Paragraph 1 of Article 69 of the Law on the Constitutional
Court of the Republic of Lithuania, the Constitutional Court of
the Republic of Lithuania has adopted the following
decision:
To refuse to consider the 4 August 2005 petition of the
Klaipėda Regional Court requesting to investigate whether Item
89 of the Instructions for Execution of Decisions as confirmed
by Order No. 432 "On Confirming the Instructions for Execution
of Decisions" of 31 December 2002 issued by the Minister of
Justice of the Republic of Lithuania is not in conflict with
Paragraph 1 of Article 48 the Constitution of the Republic of
Lithuania.
This decision of the Constitutional Court of the Republic
of Lithuania is final and not subject to appeal.
The decision is promulgated in the name of the Republic of
Lithuania.
Justices of the Constitutional Court: Armanas Abramavičius
Toma Birmontienė
Egidijus Kūris
Kęstutis Lapinskas
Zenonas Namavičius
Ramutė Ruškytė
Vytautas Sinkevičius
Stasys Stačiokas
Romualdas Kęstutis Urbaitis