Lietuviškai
Case No. 10/05
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF
LITHUANIA
RULING
ON THE COMPLIANCE OF ARTICLE 2 OF RESOLUTION OF
THE SEIMAS OF THE REPUBLIC OF LITHUANIA NO. X-131
"ON THE APPOINTMENT OF JUSTICES OF THE
CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA"
OF 15 MARCH 2005, DECREE OF THE PRESIDENT OF THE
REPUBLIC OF LITHUANIA NO. 237 "ON PRESENTATION TO
THE SEIMAS OF THE REPUBLIC OF LITHUANIA CONCERNING
DISMISSAL OF R. K. URBAITIS FROM THE OFFICE OF A
JUSTICE OF THE SUPREME COURT OF LITHUANIA" OF 17
MARCH 2005, AND OF RESOLUTION OF THE SEIMAS OF THE
REPUBLIC OF LITHUANIA NO. X-138 "ON THE DISMISSAL
OF R. K. URBAITIS FROM THE OFFICE OF A JUSTICE OF
THE SUPREME COURT OF LITHUANIA" OF 17 MARCH 2005
WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA
2 June 2005
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Armanas
Abramavičius, Egidijus Kūris, Kęstutis Lapinskas, Zenonas
Namavičius, Ramutė Ruškytė, Vytautas Sinkevičius, and Stasys
Stačiokas,
with the secretary of the hearing-Daiva Pitrėnaitė,
in the presence of:
the representatives of a group of members of the Seimas,
the petitioner, who were Remigijus Ačas, a member of the
Seimas, and Julius Veselka, a member of the Seimas,
the representatives of the President of the Republic of
Lithuania, the party concerned, who was Haroldas Šinkūnas, an
advisor to the President of the Republic on legal issues, the
Head of the Legal Department, as well as Česlovas Atkočaitis
and Milda Vainiutė, advisors to the President of the Republic
on legal issues,
the representatives of the Seimas of the Republic of
Lithuania, the party concerned, who were Česlovas Juršėnas,
Deputy President of the Seimas, as well as Antanas Jatkevičius
and Gediminas Sagatys, senior advisors of the Legal Department
of the Office of the Seimas,
pursuant to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Article 1 of the Law on the
Constitutional Court of the Republic of Lithuania, on 29 March
2005 in its public hearing conducted the investigation of Case
No. 10/05 subsequent to the 23 May 2005 petition of a group of
members of the Seimas of the Republic of Lithuania, the
petitioner, requesting to investigate as to whether:
1) Decree of the President of the Republic of Lithuania
No. 237 "On Presentation to the Seimas of the Republic of
Lithuania Concerning Dismissal of R. K. Urbaitis from the
Office of a Justice of the Supreme Court of Lithuania" of 17
March 2005, according to its content and procedure of adoption,
is in compliance with the principles of a state under the rule
of law and responsible governance entrenched in the
Constitution of the Republic of Lithuania, as well as
Paragraphs 1 and 2 of Article 5, Paragraph 1 of Article 6,
Paragraph 1 of Article 7, Article 77, Item 11 of Article 84,
Paragraph 5 of Article 112 and Item 4 of Article 115 thereof;
2) Article 2 of Resolution of the Seimas of the Republic
of Lithuania No. X-131 "On the Appointment of Justices of the
Constitutional Court of the Republic of Lithuania" of 15 March
2005 and Resolution of the Seimas of the Republic of Lithuania
No. X-138 "On the Dismissal of R. K. Urbaitis from the Office
of a Justice of the Supreme Court of Lithuania" of 17 March
2005, according to the procedure and succession of their
adoption, are in compliance with the principles of a state
under the rule of law and responsible governance entrenched in
the Constitution of the Republic of Lithuania, Articles 103 and
104, Paragraph 5 of Article 112, Article 113 and Item 4 of
Article 115 thereof;
3) Article 2 of Resolution of the Seimas of the Republic
of Lithuania No. X-131 "On the Appointment of Justices of the
Constitutional Court of the Republic of Lithuania" of 15 March
2005 and Resolution of the Seimas of the Republic of Lithuania
No. X-138 "On the Dismissal of R. K. Urbaitis from the Office
of a Justice of the Supreme Court of Lithuania" of 17 March
2005, according to their content, are in compliance with the
principles of a state under the rule of law and responsible
governance entrenched in the Constitution of the Republic of
Lithuania, Paragraphs 1 and 2 of Article 5, Paragraph 1 of
Article 6, Paragraph 1 of Article 7, Item 10 of Article 67,
Paragraph 5 of Article 112 and Item 4 of Article 115 thereof.
The Constitutional Court
has established:
I
The petitioner, a group of members of the Seimas, has
applied to the Constitutional Court with the petition
requesting to investigate as to whether:
1) Decree of the President of the Republic No. 237 "On
Presentation to the Seimas of the Republic of Lithuania
Concerning Dismissal of R. K. Urbaitis from the Office of a
Justice of the Supreme Court of Lithuania" of 17 March 2005,
according to its content and procedure of adoption, is in
compliance with the principles of a state under the rule of law
and responsible governance entrenched in the Constitution, as
well as Paragraphs 1 and 2 of Article 5, Paragraph 1 of Article
6, Paragraph 1 of Article 7, Article 77, Item 11 of Article 84,
Paragraph 5 of Article 112 and Item 4 of Article 115 thereof;
2) Article 2 of Resolution of the Seimas No. X-131 "On the
Appointment of Justices of the Constitutional Court of the
Republic of Lithuania" of 15 March 2005 and Resolution of the
Seimas No. X-138 "On the Dismissal of R. K. Urbaitis from the
Office of a Justice of the Supreme Court of Lithuania" of 17
March 2005, according to the procedure and succession of their
adoption, are in compliance with the principles of a state
under the rule of law and responsible governance entrenched in
the Constitution, Articles 103 and 104, Paragraph 5 of Article
112, Article 113 and Item 4 of Article 115 thereof;
3) Article 2 of Resolution of the Seimas No. X-131 "On the
Appointment of Justices of the Constitutional Court of the
Republic of Lithuania" of 15 March 2005 and Resolution of the
Seimas No. X-138 "On the Dismissal of R. K. Urbaitis from the
Office of a Justice of the Supreme Court of Lithuania" of 17
March 2005, according to their content, are in compliance with
the principles of a state under the rule of law and responsible
governance entrenched in the Constitution, Paragraphs 1 and 2
of Article 5, Paragraph 1 of Article 6, Paragraph 1 of Article
7, Item 10 of Article 67, Paragraph 5 of Article 112 and Item 4
of Article 115 thereof.
II
The request of the group of members of the Seimas, the
petitioner, is based upon the following arguments.
In the opinion of the petitioner, Paragraph 5 of Article
112 of the Constitution is applicable to justices and President
of the Supreme Court, whereby a special institution of judges
provided for by law shall advise the President of the Republic
concerning the appointment of judges, as well as their
promotion, transference, or dismissal from office. The
petitioner asserts that the President of the Republic, when he
presents that the Seimas either appoint or dismiss the judges
provided for in Paragraph 2 of Article 112 of the Constitution,
must prior be advised by the Council of Courts and only upon
such advice he can initiate the procedures in the Seimas
regarding appointment to or dismissal from the office of a
justice of the Supreme Court. The petitioner believes that the
absence of advice of a special institution of judges (the
Council of Courts) provided for in Paragraph 5 of Article 112
of the Constitution was a constitutional obstacle to the
President of the Republic to issue Decree of the President of
the Republic of Lithuania No. 237 "On Presentation to the
Seimas of the Republic of Lithuania Concerning Dismissal of R.
K. Urbaitis from the Office of a Justice of the Supreme Court
of Lithuania" of 17 March 2005 and to submit this decree to the
Seimas for consideration.
According to the petitioner, by adopting Resolution No.
X-131 of 15 March 2005 and Resolution No. X-138 of 17 March
2005, the Seimas violated the procedure of appointment of
justices of the Constitutional Court and that of dismissal of
judges from office, which is entrenched in the Constitution.
The petitioner notes that the norms of Articles 103 and 104,
Paragraph 5 of Article 112 and Articles 113 and 115 of the
Constitution are designed for ensuring the independence
guarantees of judges, including justices of the Constitutional
Court. Beside of other limitations, they also include a
prohibition for the same person to be a justice of the Supreme
Court and a justice of the Constitutional Court at the same
time. In the opinion of the petitioner, by the disputed legal
acts the President of the Republic initiated dismissal of
Justice of the Supreme Court R. K. Urbaitis from office too
late and improperly, while the Seimas appointed R. K. Urbaitis
as a justice of the Constitutional Court without dismissing him
from the office of a justice of the Supreme Court. Therefore,
after R. K. Urbaitis had been appointed as a justice of the
Constitutional Court by Article 2 of Resolution of the Seimas
No. X-131 "On the Appointment of Justices of the Constitutional
Court of the Republic of Lithuania" of 15 March 2005 and after
he had been dismissed from the office of a justice of the
Supreme Court by Resolution of the Seimas No. X-138 "On the
Dismissal of R. K. Urbaitis from the Office of a Justice of the
Supreme Court of Lithuania" of 17 March 2005, the procedure and
succession of adoption of corresponding decisions as well as
the constitutional principles of a state under the rule of law
and responsible governance was violated.
According to the petitioner, Item 4 of Article 115 of the
Constitution does not provide for either election of a justice
of the Constitutional Court, nor transfer of a judge of a court
of general jurisdiction to the office of a justice of the
Constitutional Court, who executes specific
competence-constitutional justice. Meanwhile, in his Decree No.
237 "On Presentation to the Seimas of the Republic of Lithuania
Concerning Dismissal of R. K. Urbaitis from the Office of a
Justice of the Supreme Court of Lithuania" of 17 March 2005,
the President of the Republic indicated Item 4 of Article 115
of the Constitution as the grounds of dismissal of R. K.
Urbaitis from the office of a justice of the Supreme Court, but
he did not specify upon which grounds-"upon election to another
office" or "upon transference to another place of work upon his
consent", which are set forth in the said item-R. K. Urbaitis
must be dismissed from the office of a justice of the Supreme
Court.
III
In the course of preparation of the case for the hearing
of the Constitutional Court written explanations were received
from Č. Juršėnas, A. Jatkevičius and G. Sagatys, who were
representatives of the Seimas, the party concerned.
It is maintained in the explanations that the Seimas has
no right to review, question, nor revise, let alone abolish
legal acts passed by the President of the Republic. In the
opinion of the representatives, the decree of the President of
the Republic, which was passed and went into effect under
procedure established by laws, whereby the President of the
Republic presents that the Seimas dismiss R. K. Urbaitis from
the office of a justice of the Supreme Court, gives rise to
legal effects and creates legal preconditions to the Seimas to
adopt a resolution on dismissal of this justice from the office
of a justice of the Supreme Court.
Č. Juršėnas, A. Jatkevičius and G. Sagatys assert that the
sequence of the Seimas resolutions whereby R. K. Urbaitis was
appointed as a justice of the Constitutional Court and
dismissed from the office of a justice of the Supreme Court is
logical and based on protection of rights and legitimate
interests of the person to whom the said procedures are
applied. The dismissal from office of a person, who meets the
requirements raised to a justice of the Constitutional Court,
without his knowing in advance whether or not he will be
appointed as a justice of the Constitutional Court, would be in
conflict with the principles of a state under the rule of law
and legitimate expectations.
The representatives of the Seimas, the party concerned,
emphasise that after the Seimas resolution whereby R. K.
Urbaitis was appointed as a justice of the Constitutional Court
had gone into effect, he could take the office of a justice of
the Constitutional Court only after taking an oath in the
Seimas. R. K. Urbaitis took the oath in the Seimas after he had
been dismissed from the office of a justice of the Supreme
Court. Thus, R. K. Urbaitis took the office of a justice of the
Constitutional Court when he no longer was a justice of the
Supreme Court.
Č. Juršėnas, A. Jatkevičius and G. Sagatys, the
representatives of the Seimas, the party concerned, also
maintain that in the course of construction of Item 4 of
Article 115 of the Constitution, the logic and systemic, but
not literal (grammatical), methods of construction of law must
be prevalent.
2. In the course of preparation of the case for the
hearing of the Constitutional Court, written explanations were
received from Č. Atkočaitis and M. Vainiutė, who were
representatives of the President of the Republic, the party
concerned.
Č. Atkočaitis and M. Vainiutė, the representatives of the
President of the Republic, the party concerned, noted that Item
11 of Article 84 of the Constitution consolidates the powers of
the President of the Republic in forming the judiciary. The
procedure of appointment and dismissal of judges is regulated
by Article 112 of the Constitution. Under Paragraph 2 of the
said article, justices of the Supreme Court, as well as the
President of the Supreme Court, who shall be chosen from among
them, shall be appointed and dismissed by the Seimas upon the
presentation by the President of the Republic. Under Paragraph
3 of the same article, judges of the Court of Appeal, as well
as the President of the Court of Appeal, who shall be chosen
from among them, shall be appointed by the President of the
Republic upon the approval of the Seimas. Under Paragraph 4 of
the same article, judges and presidents of regional, local, and
specialised courts shall be appointed and transferred to other
places of work, by the President of the Republic. In the
opinion of Č. Atkočaitis and M. Vainiutė, there are three legal
situations in these articles of the Constitution, which are
treated differently, where justices are appointed by the Seimas
upon the presentation by the President of the Republic, where
judges are appointed by the President of the Republic upon the
approval of the Seimas, and where judges are appointed by the
President of the Republic. The representatives believe that the
Constitution grants the right to the President of the Republic
to appoint and dismiss judges of local, regional, and
specialised courts as well as the Court of Appeal, and to
decide issues of their transfer to other places of work and
promotion.
According to the representatives of the President of the
Republic, the party concerned, the President of the Republic
issued Decree No. 237 "On Presentation to the Seimas of the
Republic of Lithuania Concerning Dismissal of R. K. Urbaitis
from the Office of a Justice of the Supreme Court of Lithuania"
of 17 March 2005 after he had received a respective proposal
from the President of the Supreme Court, as provided for in
Paragraph 3 of Article 90 of the Law on Courts of the Republic
of Lithuania. By issuing the said decree, the President of the
Republic was strictly observing his powers in forming the
judiciary, which are established to him in the Constitution and
the Law on Courts, and did not overstep the limits of his
competence.
Č. Atkočaitis and M. Vainiutė assert that the special
institution of judges provided for by the law, which is
specified in Paragraph 5 of Article 112 of the Constitution,
may advise the President of the Republic only concerning such
judges in whose regard the President of the Republic adopts a
final decision. As regards judges who are not appointed by the
President of the Republic himself, he does not have a duty to
apply to the Council of Courts for advice. The representatives
of the President of the Republic also maintain that the
existing procedure of formation of the Supreme Court permits to
avoid also certain problems of professional ethics, which could
arise if the Council of Courts, the majority of which is
composed of judges of lower level courts, was commissioned to
decide whether a person could become a justice of the Supreme
Court and whether he could be dismissed form that office.
In the opinion of Č. Atkočaitis and M. Vainiutė, the
grounds of dismissal of R. K. Urbaitis from the office of a
justice of the Supreme Court, which were indicated in Decree of
the President of the Republic No. 237 "On Presentation to the
Seimas of the Republic of Lithuania Concerning Dismissal of R.
K. Urbaitis from the Office of a Justice of the Supreme Court
of Lithuania" of 17 March 2005, were the most appropriate
grounds from all the grounds of dismissal from office of
judges, which are specified in Article 115 of the Constitution.
In the explanations of the representatives of the
President of the Republic, the party concerned, it is also
maintained that under Paragraph 2 of Article 104 of the
Constitution and Article 7 of the Law on the Constitutional
Court a person who is appointed as a justice of the
Constitutional Court, shall, before entering office, take an
oath in the Seimas to be faithful to the Republic of Lithuania
and the Constitution. Thus, R. K. Urbaitis acquired the powers
of a justice of the Constitutional Court and took office only
after he took the oath in the Seimas.
3. In the course of the preparation of the case for the
hearing of the Constitutional Court, explanations of H.
Šinkūnas, who was a representative of the President of the
Republic, the party concerned, were received, which assented to
the arguments given by Č. Atkočaitis and M. Vainiutė.
IV
In the course of the preparation of the case for the
hearing of the Constitutional Court, written explanations were
received from V. Greičius, President of the Supreme Court of
Lithuania.
V
1. At the Constitutional Court hearing, R. Ačas and J.
Veselka, the representatives of a group of members of the
Seimas, the petitioner, virtually reiterated the arguments set
forth in the petition of the petitioner and presented
additional explanations.
2. At the Constitutional Court hearing, Č. Juršėnas, A.
Jatkevičius and G. Sagatys, the representatives of the Seimas,
the party concerned, virtually reiterated the arguments set
forth in the petition of the petitioner and presented
additional explanations.
3. At the Constitutional Court hearing, H. Šinkūnas, Č.
Atkočaitis and M. Vainiutė, the representatives of the
President of the Republic, the party concerned, virtually
reiterated the arguments set forth in the petition of the
petitioner.
The Constitutional Court
holds that:
I
1. Following Paragraph 1 of Article 103 of the
Constitution and Paragraph 2 of Article 4 of the Law on the
Constitutional Court, by paper No. (1.6)-5T-53 of 15 December
2004 to the President of the Seimas, the President of the
Constitutional Court presented Romualdas Kęstutis Urbaitis to
the Seimas as a candidate to justices of the Constitutional
Court.
2. On 15 March 2005, the Seimas adopted Resolution of the
Seimas No. X-131 "On the Appointment of Justices of the
Constitutional Court of the Republic of Lithuania" which inter
alia provides:
"The Seimas of the Republic of Lithuania, following Item
10 of Article 67 and Article 103 of the Constitution of the
Republic of Lithuania and Article 4 of the Law on the
Constitutional Court of the Republic of Lithuania, r e s o l v
e s: <...>
Article 2
Taking account of the presentation by the President of the
Supreme Court of Lithuania, to appoint Romualdas Kęstutis
URBAITIS as a justice of the Constitutional Court of the
Republic of Lithuania for a nine-year term.
Article 3
This Resolution shall come into force as from 15 March
2005."
3. At the time of presentation to the Seimas of the
candidature of R. K. Urbaitis to justices of the Constitutional
Court and at the time of adoption of Resolution of the Seimas
No. X-131 "On the Appointment of Justices of the Constitutional
Court of the Republic of Lithuania" of 15 March 2005 R. K.
Urbaitis was a justice of the Supreme Court.
4. Following Paragraph 2 of Article 112 of the
Constitution and Item 4 of Paragraph 1 of Article 90 of the Law
on Courts, by paper No. (1.7)-5T-2 of 15 March 2005, the
President of the Constitutional Court submitted a request to
the President of the Republic that he propose that the Seimas
dismiss R. K. Urbaitis from the office of a justice of the
Supreme Court, since the latter had been appointed as a justice
of the Constitutional Court on 15 March 2005.
5. On 17 March 2005, the President of the Republic issued
Decree No. 237 "On Presentation to the Seimas of the Republic
of Lithuania Concerning Dismissal of R. K. Urbaitis from the
Office of a Justice of the Supreme Court of Lithuania", which
provides:
"Article 1.
Following Item 11 of Article 84, Paragraph 2 of Article
112 and Item 4 of Article 115 of the Constitution of the
Republic of Lithuania, as well as Paragraph 3 of Article 90 of
the Republic of Lithuania Law on Courts, I shall present
Romualdas Kęstutis URBAITIS to the Seimas of the Republic of
Lithuania to dismiss him from the office of a justice of the
Supreme Court.
Article 2.
This decree shall come into force as from the day of its
signing."
6. On 17 March 2005, the Seimas adopted Resolution No.
X-138 "On the Dismissal of R. K. Urbaitis from the Office of a
Justice of the Supreme Court of Lithuania" which provides:
"Following Paragraph 2 of Article 112 and Item 4 of
Article 115 of the Constitution of the Republic of Lithuania
and taking account of Decree of the President of the Republic
No. 237 'On Presentation to the Seimas of the Republic of
Lithuania Concerning Dismissal of R. K. Urbaitis from the
Office of a Justice of the Supreme Court of Lithuania' of 17
March 2005, the Seimas of the Republic of Lithuania r e s o l v
e s:
Article 1.
To dismiss Romualdas Kęstutis URBAITIS from the office of
a justice of the Supreme Court of Lithuania as from 17 March
2005.
Article 2.
This Resolution shall come into force from the moment of
its adoption."
7. R. K. Urbaitis, an appointed justice of the
Constitutional Court, after the Seimas had dismissed him from
the office of a justice of the Supreme Court, took an oath in
the Seimas to be faithful to the Republic of Lithuania and the
Constitution on 17 March 2005.
8. A group of members of the Seimas, the petitioner,
requests to investigate as to whether the legal acts (parts
thereof) whereby R. K. Urbaitis was appointed as a justice of
the Constitutional Court and due to this was dismissed from the
office of a justice of the Supreme Court are not in conflict
with the Constitution, and whether in particular:
1) Decree of the President of the Republic No. 237 "On
Presentation to the Seimas of the Republic of Lithuania
Concerning Dismissal of R. K. Urbaitis from the Office of a
Justice of the Supreme Court of Lithuania" of 17 March 2005,
according to its content and procedure of adoption, is in
compliance with the principles of a state under the rule of law
and responsible governance entrenched in the Constitution, as
well as Paragraphs 1 and 2 of Article 5, Paragraph 1 of Article
6, Paragraph 1 of Article 7, Article 77, Item 11 of Article 84,
Paragraph 5 of Article 112 and Item 4 of Article 115 thereof;
2) Article 2 of Resolution of the Seimas No. X-131 "On the
Appointment of Justices of the Constitutional Court of the
Republic of Lithuania" of 15 March 2005 and Resolution of the
Seimas No. X-138 "On the Dismissal of R. K. Urbaitis from the
Office of a Justice of the Supreme Court of Lithuania" of 17
March 2005, according to the procedure and succession of their
adoption, are in compliance with the principles of a state
under the rule of law and responsible governance entrenched in
the Constitution, Articles 103 and 104, Paragraph 5 of Article
112, Article 113 and Item 4 of Article 115 thereof;
3) Article 2 of Resolution of the Seimas No. X-131 "On the
Appointment of Justices of the Constitutional Court of the
Republic of Lithuania" of 15 March 2005 and Resolution of the
Seimas No. X-138 "On the Dismissal of R. K. Urbaitis from the
Office of a Justice of the Supreme Court of Lithuania" of 17
March 2005, according to their content, are in compliance with
the principles of a state under the rule of law and responsible
governance entrenched in the Constitution, Paragraphs 1 and 2
of Article 5, Paragraph 1 of Article 6, Paragraph 1 of Article
7, Item 10 of Article 67, Paragraph 5 of Article 112 and Item 4
of Article 115 thereof.
9. Under Paragraph 1 of Article 64 of the Constitutional
Court, the grounds for the consideration of a case concerning
the compliance of a legal act with the Constitution in the
Constitutional Court shall be a legally justified doubt that
the entire legal act or part thereof is in conflict with the
Constitution according to: the content of norms (Item 1); the
extent of regulation (Item 2); form (Item 3); the procedure of
adoption, signing, publication, and entry into effect, which is
established in the Constitution (Item 4).
The request of the petitioner to investigate as to whether
Article 2 of Resolution of the Seimas No. X-131 "On the
Appointment of Justices of the Constitutional Court of the
Republic of Lithuania" of 15 March 2005 and Resolution of the
Seimas No. X-138 "On the Dismissal of R. K. Urbaitis from the
Office of a Justice of the Supreme Court of Lithuania" of 17
March 2005, according to the procedure and succession of their
adoption, are not in conflict with the Constitution, is to be
treated as his request to investigate the compliance of each of
these legal acts (parts thereof) with the Constitution
according to the procedure of their adoption established in the
Constitution. The indication "succession of their adoption" is
to be assessed as reasoning of the petitioner upon which the
doubt is grounded whether the said legal acts (parts thereof)
are not in conflict with the Constitution according to the
procedure of their adoption established in the Constitution.
II
On the compliance of Article 2 of Resolution of the Seimas
No. X-131 "On the Appointment of Justices of the Constitutional
Court of the Republic of Lithuania" of 15 March 2005, according
to the procedure of adoption, with Articles 103 and 104,
Paragraph 5 of Article 112, Article 113 and Item 4 of Article
115 of the Constitution as well as the constitutional
principles of responsible governance and a state under the rule
of law, and on the compliance of Article 2 of Resolution of the
Seimas No. X-131 "On the Appointment of Justices of the
Constitutional Court of the Republic of Lithuania" of 15 March
2005, according to its content, with Paragraphs 1 and 2 of
Article 5, Paragraph 1 of Article 6, Paragraph 1 of Article 7,
Item 10 of Article 67, Paragraph 5 of Article 112 and Item 4 of
Article 115 of the Constitution as well as the constitutional
principles of responsible governance and a state under the rule
of law.
1. The petitioner grounds his doubts as regards the
compliance of Article 2 of Resolution of the Seimas No. X-131
"On the Appointment of Justices of the Constitutional Court of
the Republic of Lithuania" of 15 March 2005, according to the
procedure of adoption, with Articles 103 and 104, Paragraph 5
of Article 112, Article 113 and Item 4 of Article 115 of the
Constitution as well as the constitutional principles of
responsible governance and a state under the rule of law, and
the compliance of Article 2 of Resolution of the Seimas No.
X-131 "On the Appointment of Justices of the Constitutional
Court of the Republic of Lithuania" of 15 March 2005, according
to its content, with Paragraphs 1 and 2 of Article 5, Paragraph
1 of Article 6, Paragraph 1 of Article 7, Item 10 of Article
67, Paragraph 5 of Article 112 and Item 4 of Article 115 of the
Constitution as well as the constitutional principles of
responsible governance and a state under the rule of law, on
the fact that, in his opinion, the Seimas, without prior
dismissal of R. K. Urbaitis from the office of a justice of the
Supreme Court, could not, under the Constitution, appoint him
as a justice of the Constitutional Court, since the
Constitution prohibits the same person to be a justice of the
Supreme Court and a justice of the Constitutional Court at the
same time.
It needs to be noted that the position of the petitioner
that Article 2 of Resolution of the Seimas No. X-131 "On the
Appointment of Justices of the Constitutional Court of the
Republic of Lithuania" of 15 March 2005 is in conflict, as to
its content, with the Constitution is grounded on that fact
that, in his opinion, this article is in conflict with the
Constitution according to the procedure of adoption.
2. Subsequent to the petition of the petitioner, the
Constitutional Court will investigate as to whether Article 2
of Resolution of the Seimas No. X-131 "On the Appointment of
Justices of the Constitutional Court of the Republic of
Lithuania" of 15 March 2005 is not in conflict, according to
the procedure of adoption and according to its content, with
the Constitution in the aspect that by this article R. K.
Urbaitis was appointed as a justice of the Constitutional Court
without prior dismissing him from the office of a justice of
the Supreme Court. In this constitutional justice case the
Constitutional Court will not investigate whether the disputed
article is not in conflict, according to the procedure of
adoption and according to its content, with the Constitution in
the aspects other than specified in the petition of the
petitioner.
3. The procedure of appointment of justices of the
Constitutional Court is expressis verbis established in the
Constitution.
Paragraph 3 of Article 103 of the Constitution provides
that citizens of the Republic of Lithuania who have an
impeccable reputation, who have higher education in law, and
who have not less than a 10-year work record in the field of
law or in a branch of science and education as a lawyer, may be
appointed as justices of the Constitutional Court. Under
Paragraph 1 of the same article, the President of the Republic,
the President of the Seimas, and the President of the Supreme
Court present candidates for justices of the Constitutional
Court; every three years, one-third of the Constitutional Court
shall be reconstituted.
It needs to be emphasised that under the Constitution,
when justices of the Constitutional Court are being appointed,
only the following subjects expressis verbis specified in the
Constitution enjoy respective powers: (1) the state official
(the President of the Republic, the President of the Seimas,
and the President of the Supreme Court) who presents a
candidature of a justice of the Constitutional Court to the
Seimas; (2) the Seimas which adopts a decision concerning
appointment of the presented candidate as a justice of the
Constitutional Court.
Under the Constitution, no institution and no official
enjoys powers to deny or limit the constitutional right of the
President of the Supreme Court (as well as that of the other
state officials, the President of the Republic and the
President of the Seimas (specified in Paragraph 1 of Article
103 of the Constitution), who present candidates to justices of
the Constitutional Court) to present to the Seimas a candidate
to justices of the Constitutional Court, or the right of the
Seimas either to appoint the presented person as a justice of
the Constitutional Court, or not to appoint him. If such powers
were established by means of a law or another legal act,
preconditions would be created to impede reconstitution of the
Constitutional Court-one of the institutions of state power
consolidated in the Constitution-under the procedure
established in the Constitution.
4. Paragraph 3 of Article 104 of the Constitution provides
that the restrictions on work and political activities which
are established for court judges shall apply also to justices
of the Constitutional Court. Under Article 113 of the
Constitution, the judge may not hold any other elected or
appointed office, may not work in any business, commercial, or
other private establishments or enterprises (Paragraph 1); he
is also not permitted to receive any remuneration other than
the remuneration established for the judge and payment for
educational or creative activities (Paragraph 1); a judge may
not participate in the activities of political parties and
other political organisations (Paragraph 2).
The said limitations are applied to a justice of the
Constitutional Court from the day when he takes office. Under
Paragraph 2 of Article 104 of the Constitution, before entering
office, justices of the Constitutional Court shall take an oath
in the Seimas to be faithful to the Republic of Lithuania and
the Constitution.
Under Paragraph 2 of Article 4 of the Law on the
Constitutional Court, the expiration of the justices' term of
office shall be the 3rd Thursday of March of the corresponding
year; newly appointed justices of the Constitutional Court
shall take an oath in the Seimas on the last working day before
their term of office commences.
In the Constitution the legal regulation is established
under which an appointed justice of the Constitutional Court
must remove incompatibilities with the office of a justice of
the Constitutional Court (Paragraph 3 of Article 104 and
Article 113 of the Constitution) until the oath in the Seimas.
If the removal of the said incompatibilities depends upon
decisions of certain institutions (officials), these
institutions (officials) have a duty to adopt respective
decisions until the oath of the justice of the Constitutional
Court in the Seimas. Otherwise, the appointed justice of the
Constitutional Court would be impeded to take the office of a
justice of the Constitutional Court and thus the reconstitution
of the Constitutional Court-one of institutions of state power
consolidated in the Constitution-under procedure established in
the Constitution would be impeded.
It needs to be stressed that the Constitution does not
contain any provisions requiring that a person, whose
candidature has been presented to justices of the
Constitutional Court, should, prior to the voting on his
candidature in the Seimas, refuse his job, or the office that
he is holding, or remove other incompatibilities with the
office of a justice of the Constitution which are specified in
the Constitution.
It also needs to be emphasised that the appointed justice
of the Constitutional Court, until he has not taken an oath in
the Seimas under established procedure, does not hold the
office of a justice of the Constitutional Court. At that time
the office of the justice of the Constitutional Court is held
by the justice of the Constitutional Court whose term of office
is about to expire.
5. As mentioned, at the time of adoption of Resolution of
the Seimas No. X-131 "On the Appointment of Justices of the
Constitutional Court of the Republic of Lithuania" of 15 March
2005 R. K. Urbaitis was a justice of the Supreme Court.
It was also mentioned that that a person, whose
candidature has been presented to justices of the
Constitutional Court, does not have to refuse his job, nor the
office that he is holding.
Thus, the Seimas, after it appointed R. K. Urbaitis as a
justice of the Constitutional Court by Article 2 of Resolution
No. X-131 "On the Appointment of Justices of the Constitutional
Court of the Republic of Lithuania" of 15 March 2005 without
his prior dismissal from the office of a justice of the Supreme
Court did not violate the prohibition arising from the
Constitution for the same person to be a justice of the Supreme
Court and a justice of the Constitutional Court at the same
time.
6. Taking account of the arguments set forth, one is to
hold that Article 2 of Resolution of the Seimas No. X-131 "On
the Appointment of Justices of the Constitutional Court of the
Republic of Lithuania" of 15 March 2005 in the aspect that by
this article R. K. Urbaitis was appointed as a justice of the
Constitutional Court without his prior dismissal from the
office of a justice of the Supreme Court is not in conflict,
according to the procedure of adoption, with Articles 104 and
113 of the Constitution.
7. While deciding whether Article 2 of Resolution of the
Seimas No. X-131 "On the Appointment of Justices of the
Constitutional Court of the Republic of Lithuania" of 15 March
2005 in the aspect that by this article R. K. Urbaitis was
appointed as a justice of the Constitutional Court without his
prior dismissal from the office of a justice of the Supreme
Court is not in conflict, according to the procedure of
adoption, with Paragraph 5 of Articles 112 and Item 4 of
Article 115 of the Constitution which were indicated by the
petitioner, one is to note that Paragraph 5 of Article 112 and
Item 4 of Article 115 of the Constitution do not regulate the
relations linked with appointment of justices of the
Constitutional Court: Paragraph 5 of Article 112 of the
Constitution provides that a special institution of judges
provided for by law shall advise the President of the Republic
concerning the appointment of judges, as well as their
promotion, transference, or dismissal from office, while under
Item 4 of Article 115 of the Constitution, judges of courts of
the Republic of Lithuania shall be dismissed from office in
accordance with the procedure established by law upon election
to another office or upon transference to another place of work
upon their consent. Meanwhile, Article 2 of Resolution of the
Seimas No. X-131 "On the Appointment of Justices of the
Constitutional Court of the Republic of Lithuania" of 15 March
2005 is designated to appointment of R. K. Urbaitis as a
justice of the Constitutional Court.
Thus, Article 2 of Resolution of the Seimas No. X-131 "On
the Appointment of Justices of the Constitutional Court of the
Republic of Lithuania" of 15 March 2005 regulates relations of
different nature than Paragraph 5 of Article 112 and Item 4 of
Article 115 of the Constitution.
8. Taking account of the arguments set forth, one is to
hold that Article 2 of Resolution of the Seimas No. X-131 "On
the Appointment of Justices of the Constitutional Court of the
Republic of Lithuania" of 15 March 2005 in the aspect that by
this article R. K. Urbaitis was appointed as a justice of the
Constitutional Court without his prior dismissal from the
office of a justice of the Supreme Court is not in conflict,
according to the procedure of adoption, with Paragraph 5 of
Article 112 and Item 4 of Article 115 of the Constitution.
9. Having held that Article 2 of Resolution of the Seimas
No. X-131 "On the Appointment of Justices of the Constitutional
Court of the Republic of Lithuania" of 15 March 2005 in the
aspect that by this article R. K. Urbaitis was appointed as a
justice of the Constitutional Court without his prior dismissal
from the office of a justice of the Supreme Court is not in
conflict, according to the procedure of adoption, with Article
113, Paragraph 5 of Article 112 and Item 4 of Article 115 of
the Constitution, one is to hold that Article 2 of the said
resolution of the Seimas in the aspect that by this article R.
K. Urbaitis was appointed as a justice of the Constitutional
Court without his prior dismissal from the office of a justice
of the Supreme Court is not in conflict, according to the
procedure of adoption, also with
- Article 104 of the Constitution which provides that,
while in office, justices of the Constitutional Court shall be
independent of any other State institution, person or
organisation, and shall follow only the Constitution of the
Republic of Lithuania (Paragraph 1); before entering office,
justices of the Constitutional Court shall take an oath in the
Seimas to be faithful to the Republic of Lithuania and the
Constitution (Paragraph 2); the restrictions on work and
political activities which are established for court judges
shall apply also to justices of the Constitutional Court
(Paragraph 3); justices of the Constitutional Court shall have
the same rights concerning the inviolability of their person as
shall members of the Seimas (Paragraph 4);
- the constitutional principle of responsible governance;
- the constitutional principle of a state under the rule
of law.
10. It was held in this Ruling of the Constitutional Court
that the position of the petitioner whereby Article 2 of
Resolution of the Seimas No. X-131 "On the Appointment of
Justices of the Constitutional Court of the Republic of
Lithuania" of 15 March 2005 is in conflict, as to its content,
with the Constitution is grounded on that fact that, in his
opinion, this article is in conflict with the Constitution
according to the procedure of adoption. It was mentioned that
the petitioner doubts as to the compliance of Article 2 of
Resolution of the Seimas No. X-131 "On the Appointment of
Justices of the Constitutional Court of the Republic of
Lithuania" of 15 March 2005, according to the procedure of
adoption, with the Constitution due to the fact that by this
article R. K. Urbaitis was appointed as a justice of the
Conditional Court without his prior dismissal from the office
of a justice of the Supreme Court.
11. Having held that Article 2 of Resolution of the Seimas
No. X-131 "On the Appointment of Justices of the Constitutional
Court of the Republic of Lithuania" of 15 March 2005 in the
aspect that by this article R. K. Urbaitis was appointed as a
justice of the Constitutional Court without his prior dismissal
from the office of a justice of the Supreme Court is not in
conflict, according to the procedure of adoption, with Article
104, Article 113, Paragraph 5 of Article 112 and Item 4 of
Article 115 of the Constitution as well as the constitutional
principles of responsible governance and a state under the rule
of law, one is to hold that by its content Article 2 of the
said resolution of the Seimas is not in conflict, in the aspect
that by this article R. K. Urbaitis was appointed as a justice
of the Constitutional Court without his prior dismissal from
the office of a justice of the Supreme Court, with the
following indicated by the petitioner:
- Paragraph 1 of Article 5 of the Constitution which
provides that in Lithuania, the Seimas, the President of the
Republic and the Government, and the Judiciary, shall execute
State power;
- Paragraph 2 of Article 5 of the Constitution which
provides that the scope of power shall be limited by the
Constitution;
- Paragraph 1 of Article 6 of the Constitution which
provides that the Constitution shall be an integral and
directly applicable act;
- Paragraph 1 of Article 7 of the Constitution which
provides that any law or other act, which is inconsistent with
the Constitution, shall be invalid;
- Item 10 of Article 67 of the Constitution which provides
that the Seimas shall appoint justices to, and Presidents of,
the Constitutional Court and the Supreme Court;
- Paragraph 5 of Article 112 of the Constitution which
provides that a special institution of judges provided for by
law shall advise the President of the Republic concerning the
appointment of judges, as well as their promotion,
transference, or dismissal from office;
- Item 4 of Article 115 of the Constitution which provides
that judges of courts of the Republic of Lithuania shall be
dismissed from office in accordance with the procedure
established by law upon election to another office or upon
transference to another place of work upon their consent;
- the constitutional principle of responsible governance;
- the constitutional principle of a state under the rule
of law.
III
On the compliance of Decree of the President of the
Republic No. 237 "On Presentation to the Seimas of the Republic
of Lithuania Concerning Dismissal of R. K. Urbaitis from the
Office of a Justice of the Supreme Court of Lithuania" of 17
March 2005, according to the procedure of adoption and its
content, with Paragraphs 1 and 2 of Article 5, Paragraph 1 of
Article 6, Paragraph 1 of Article 7, Article 77, Item 11 of
Article 84, Paragraph 5 of Article 112 and Item 4 of Article
115 of the Constitution, as well as the constitutional
principles of a state under the rule of law and responsible
governance.
1. The petitioner grounds his doubts as to the compliance
of Decree of the President of the Republic No. 237 "On
Presentation to the Seimas of the Republic of Lithuania
Concerning Dismissal of R. K. Urbaitis from the Office of a
Justice of the Supreme Court of Lithuania" of 17 March 2005,
according to the procedure of adoption and its content, with
Paragraphs 1 and 2 of Article 5, Paragraph 1 of Article 6,
Paragraph 1 of Article 7, Article 77, Item 11 of Article 84,
Paragraph 5 of Article 112 and Item 4 of Article 115 of the
Constitution, as well as the constitutional principles of
responsible governance and a state under the rule of law, upon
the fact that, in his opinion, the President of the Republic,
prior to his presentation that the Seimas dismiss R. K.
Urbaitis from the office of a justice of the Supreme Court, had
to receive advice from a special institution of judges (the
Council of Courts, under the Law on Courts), which is indicated
in Paragraph 5 of Article 112 of the Constitution, while in
case of absence of such advice he could not issue the decree of
17 March 2005, nor present this decree to the Seimas for
deliberation, also, his doubts are based on the fact that, in
his opinion, in his Decree No. 237 "On Presentation to the
Seimas of the Republic of Lithuania Concerning Dismissal of R.
K. Urbaitis from the Office of a Justice of the Supreme Court
of Lithuania" of 17 March 2005 the President of the Republic
indicated Item 4 of Article 115 as the ground for dismissal of
R. K. Urbaitis from the office of a justice of the Supreme
Court, but he did not specify in particular upon which
grounds-"upon election to another office" or "upon transference
to another place of work upon his consent", which are set forth
in this item-R. K. Urbaitis must be dismissed from the office
of a justice of the Supreme Court.
2. Subsequent to the petition of the petitioner, the
Constitutional Court will investigate whether Decree of the
President of the Republic No. 237 "On Presentation to the
Seimas of the Republic of Lithuania Concerning Dismissal of R.
K. Urbaitis from the Office of a Justice of the Supreme Court
of Lithuania" of 17 March 2005 in the aspect that by this
decree the President of the Republic, without receiving, prior
to this, advice from a special institution of judges (the
Council of Courts, under the Law on Courts), presented that the
Seimas dismiss R. K. Urbaitis from the office of a justice of
the Supreme Court, is not in conflict, according to the
procedure of adoption, with the Constitution. In this
constitutional justice case the Constitutional Court will not
investigate whether the disputed decree of the President of the
Republic is in not conflict, according to the procedure of
adoption, with the Constitution in the aspects other than those
indicated by the petitioner.
Subsequent to the petition of the petitioner, the
Constitutional Court will investigate whether Decree of the
President of the Republic No. 237 "On Presentation to the
Seimas of the Republic of Lithuania Concerning Dismissal of R.
K. Urbaitis from the Office of a Justice of the Supreme Court
of Lithuania" of 17 March 2005 in the aspect that by this
decree the President of the Republic, without receiving, prior
to this, advice from a special institution of judges (the
Council of Courts, under the Law on Courts), presented that the
Seimas dismiss R. K. Urbaitis from the office of a justice of
the Supreme Court, also in the aspect that this decree of the
President of the Republic did not specify in particular upon
which grounds-"upon election to another office" or "upon
transference to another place of work upon his consent", which
are set forth in Item 4 of Article 115 of the Constitution-R.
K. Urbaitis must be dismissed from the office of a justice of
the Supreme Court, is not in conflict, according to its
content, with the Constitution. In this constitutional justice
case the Constitutional Court will not investigate whether the
disputed decree of the President of the Republic is not in
conflict, according to its content, with the Constitution in
the aspects other than those indicated by the petitioner.
3. Under Item 11 of Article 84 of the Constitution, the
President of the Republic inter alia in cases provided for by
law presents that the Seimas dismiss judges. A special
institution of judges provided for by law shall advise 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).
In its ruling of 21 December 1999, the Constitutional
Court held: "The norms of Item 11 of Article 84 of the
Constitution establishing the powers of the President of the
Republic in the sphere of appointment and dismissal of judges
are linked with Part 5 of Article 112 of the Constitution
wherein it is prescribed that a special institution of judges
provided by law shall submit recommendations to the President
of the Republic concerning the appointment of judges, as well
as their promotion, transference, or dismissal from office",
also that "the special institution of judges pointed out in
Part 5 of Article 112 of the Constitution must give
recommendation to the President of the Republic concerning all
the questions of appointment of judges, those of their
professional career, as well as those of their dismissal from
office", and that "the recommendation of this institution gives
rise to legal effects: in case there is not a recommendation of
this institution, the President of the Republic may not adopt
decisions on appointment, promotion, transference of judges or
those on their dismissal from office".
4. It was held in this Ruling of the Constitutional Court
that the procedure of appointment of justices of the
Constitutional Court is expressis verbis established in the
Constitution, that, under the Constitution, no institution and
no official enjoys powers to deny or limit the constitutional
right of the Seimas either to appoint the presented person as a
justice of the Constitutional Court, or not to appoint him,
also, that if such powers were established by means of a law or
another legal act, preconditions would be created to impede
reconstitution of the Constitutional Court-one of the
institutions of state power consolidated in the
Constitution-under the procedure established in the
Constitution.
It was also held in this Ruling of the Constitutional
Court that, under the Constitution, an appointed justice of the
Constitutional Court must remove incompatibilities with the
office of a justice of the Constitutional Court (Paragraph 3 of
Article 104 and Article 113 of the Constitution) until the oath
in the Seimas, and that if the removal of the said
incompatibilities depends upon decisions of certain
institutions (officials), these institutions (officials) have a
duty to adopt respective decisions until the oath of the
justice of the Constitutional Court in the Seimas, otherwise,
the appointed justice of the Constitutional Court would be
impeded to take the office of a justice of the Constitutional
Court and thus the reconstitution of the Constitutional
Court-one of institutions of state power consolidated in the
Constitution-under procedure established in the Constitution
would be impeded.
Thus, if a person is appointed as a justice of the
Constitutional Court, who is holding office of a judge of a
certain court of the Republic of Lithuania at the time of his
appointment, he must be dismissed from this office until his
oath at the Seimas. If a person is appointed as a justice of
the Constitutional Court, who is holding office of a justice of
the Supreme Court at the time of his appointment, the President
of the Republic has a constitutional duty to present that the
Seimas dismiss, while the Seimas has a constitutional duty to
dismiss this appointed justice of the Constitutional Court from
the office of a justice of the Supreme Court until the oath of
the justice of the Constitutional Court at the Seimas.
Otherwise, the appointed justice of the Constitutional Court
would be impeded to take the office of a justice of the
Constitutional Court and thus the reconstitution of the
Constitutional Court-one of institutions of state power
consolidated in the Constitution-under procedure established in
the Constitution would be impeded.
5. It has been held in this Ruling of the Constitutional
Court that, under the Constitution, no institution and no
official enjoys powers to deny or limit the constitutional
right of the Seimas either to appoint the presented person as a
justice of the Constitutional Court, or not to appoint him. It
was also held that when justices of the Constitutional Court
are being appointed, respective powers, under the Constitution,
are enjoyed only by the state officials presenting the
candidates and by the Seimas. In the context of the
constitutional justice case at issue, one is to emphasise that
the special institution of judges provided for by law (the
Council of Courts, under the Law on Courts) which is provided
for in Paragraph 5 of Article 112 of the Constitution does not
enjoy, under the Constitution, any powers to adopt any
decisions related with appointment of justices of the
Constitutional Court. Thus, this institution, under the
Constitution, does not enjoy powers to advise on dismissal from
office of any judge of the Republic of Lithuania in the case
where this judge has been appointed as a justice of the
Constitutional Court by the Seimas. In this context one is to
note that the cited statements "the special institution of
judges pointed out in Part 5 of Article 112 of the Constitution
must give recommendation to the President of the Republic
concerning all the questions of appointment of judges, those of
their professional career, as well as those of their dismissal
from office" and "the recommendation of this institution gives
rise to legal effects: in case there is not a recommendation of
this institution, the President of the Republic may not adopt
decisions on appointment, promotion, transference of judges or
those on their dismissal from office" of the Constitutional
Court ruling of 21 December 1999 cannot be construed without
taking account of the provisions of the Constitution regulating
the procedure of appointment of justices of the Constitutional
Court.
Thus, when adopting a decision on dismissal from office of
any judge of a court of the Republic of Lithuania, who is
appointed as a justice of the Constitutional Court, the
President of the Republic, need not, under the Constitution,
apply to the special institution of judges (the Council of
Courts, under the Law on Courts) provided for by law, which is
specified in Paragraph 5 of Article 112 of the Constitution,
for advice, while the said institution, under the Constitution,
does not enjoy powers to give advice to the President of the
Republic as regards this issue. Otherwise, preconditions would
be created to the said special institution of judges (the
Council of Courts) to impede the appointed justice of the
Constitutional Court to take the office of a justice of the
Constitutional Court and thus the reconstitution of the
Constitutional Court-one of institutions of state power
consolidated in the Constitution-under procedure established in
the Constitution, as well as implementation of the resolution
of the Seimas on appointment of the justice of the
Constitutional Court, would be impeded.
6. Thus, the President of the Republic did not have to
apply to the Council of Courts for corresponding advice before
he issued Decree No. 237 "On Presentation to the Seimas of the
Republic of Lithuania Concerning Dismissal of R. K. Urbaitis
from the Office of a Justice of the Supreme Court of Lithuania"
of 17 March 2005 whereby he presented that the Seimas dismiss
R. K. Urbaitis from the office of a justice of the Supreme
Court of Lithuania, since the latter had been appointed as a
justice of the Constitutional Court.
7. Taking account of the arguments set forth, one is to
conclude that Decree of the President of the Republic No. 237
"On Presentation to the Seimas of the Republic of Lithuania
Concerning Dismissal of R. K. Urbaitis from the Office of a
Justice of the Supreme Court of Lithuania" of 17 March 2005, in
the aspect that by this decree the President of the Republic,
without receiving, prior to this, advice from a special
institution of judges (the Council of Courts, under the Law on
Courts), presented that the Seimas dismiss R. K. Urbaitis from
the office of a justice of the Supreme Court, is not in
conflict, according to the procedure of adoption and its
content, with Item 11 of Article 84 and Paragraph 5 of Article
112 of the Constitution.
8. It needs to be emphasised that the fact that it has
been held in this Ruling of the Constitutional Court that when
adopting a decision on dismissal from office of any judge of a
court of the Republic of Lithuania, who is appointed as a
justice of the Constitutional Court, the President of the
Republic, need not, under the Constitution, apply to the
special institution of judges (the Council of Courts, under the
Law on Courts) provided for by law, which is specified in
Paragraph 5 of Article 112 of the Constitution, for advice,
while the said institution, under the Constitution, does not
enjoy powers to give advice to the President of the Republic as
regards this issue cannot be interpreted as the statement of
the only case where the President of the Republic, under the
Constitution, need not, under the Constitution, apply to the
special institution of judges (the Council of Courts, under the
Law on Courts) provided for by law, which is specified in
Paragraph 5 of Article 112 of the Constitution, for advice,
while the said institution, under the Constitution, does not
enjoy powers to give advice to the President of the Republic as
regards this issue.
9. While deciding whether Decree of the President of the
Republic No. 237 "On Presentation to the Seimas of the Republic
of Lithuania Concerning Dismissal of R. K. Urbaitis from the
Office of a Justice of the Supreme Court of Lithuania" of 17
March 2005 is not in conflict with Item 4 of Article 115 of the
Constitution due to the fact that that this decree of the
President of the Republic did not specify in particular upon
which grounds-"upon election to another office" or "upon
transference to another place of work upon his consent", which
are set forth in this item-R. K. Urbaitis must be dismissed
from the office of a justice of the Supreme Court, one is to
hold that the provision "Judges of courts of the Republic of
Lithuania shall be dismissed from office in accordance with the
procedure established by law in the following cases: <...> 4)
upon election to another office or upon transference to another
place of work upon their consent" of Article 115 of the
Constitution cannot be construed only literally by applying
only the linguistic (verbal) method of construction of law. The
formula "upon election to another office or upon transference
to another place of work upon their consent" of Item 4 of
Article 115 of the Constitution encompasses all cases where a
judge, upon his consent, is elected or by other way takes
another office (begins another job) regardless of what way of
taking the new office (beginning the new job) is provided for
in laws and other legal acts. In the context of the
constitutional justice case at issue, it needs to be noted that
this formula, precisely its part "upon election to another
office" also encompasses the cases when a judge of a certain
court of the Republic of Lithuania is appointed as a justice of
the Constitutional Court.
The mere fact that Decree of the President of the Republic
No. 237 "On Presentation to the Seimas of the Republic of
Lithuania Concerning Dismissal of R. K. Urbaitis from the
Office of a Justice of the Supreme Court of Lithuania" of 17
March 2005 did not specify in particular upon which
grounds-"upon election to another office" or "upon transference
to another place of work upon his consent", which are set forth
in Item 4 of Article 115 of the Constitution-R. K. Urbaitis
must be dismissed from the office of a justice of the Supreme
Court does not give grounds to assert that this decree of the
President of the Republic is in conflict with Item 4 of Article
115 of the Constitution.
10. Taking account of the arguments set forth, one is to
conclude that Decree of the President of the Republic No. 237
"On Presentation to the Seimas of the Republic of Lithuania
Concerning Dismissal of R. K. Urbaitis from the Office of a
Justice of the Supreme Court of Lithuania" of 17 March 2005 in
the aspect that this decree of the President of the Republic
did not specify in particular upon which grounds-"upon election
to another office" or "upon transference to another place of
work upon his consent", which are set forth in Item 4 of
Article 115 of the Constitution-R. K. Urbaitis must be
dismissed from the office of a justice of the Supreme Court, is
not in conflict, according to its content, with Item 4 of
Article 115 of the Constitution.
11. Having held that Decree of the President of the
Republic No. 237 "On Presentation to the Seimas of the Republic
of Lithuania Concerning Dismissal of R. K. Urbaitis from the
Office of a Justice of the Supreme Court of Lithuania" of 17
March 2005, in the aspect that by this decree the President of
the Republic, without receiving, prior to this, advice from a
special institution of judges (the Council of Courts, under the
Law on Courts), presented that the Seimas dismiss R. K.
Urbaitis from the office of a justice of the Supreme Court, is
not in conflict, according to the procedure of adoption and its
content, with Item 11 of Article 84 and Paragraph 5 of Article
112 of the Constitution, and in the aspect that this decree of
the President of the Republic did not specify in particular
upon which grounds-"upon election to another office" or "upon
transference to another place of work upon his consent", which
are set forth in Item 4 of Article 115 of the Constitution-R.
K. Urbaitis must be dismissed from the office of a justice of
the Supreme Court, is not in conflict, according to its
content, with Item 4 of Article 115 of the Constitution, one is
also to hold that this decree of the President of the Republic
in the aspect that by this decree the President of the
Republic, without receiving, prior to this, advice from a
special institution of judges (the Council of Courts, under the
Law on Courts), presented that the Seimas dismiss R. K.
Urbaitis from the office of a justice of the Supreme Court, and
in the aspect that this decree of the President of the Republic
did not specify in particular upon which grounds-"upon election
to another office" or "upon transference to another place of
work upon his consent", which are set forth in Item 4 of
Article 115 of the Constitution-R. K. Urbaitis must be
dismissed from the office of a justice of the Supreme Court, is
not in conflict, according to the procedure of adoption and its
content, with the following indicated by the petitioner:
- Paragraph 1 of Article 5 of the Constitution which
provides that in Lithuania, the Seimas, the President of the
Republic and the Government, and the Judiciary, shall execute
State power;
- Paragraph 2 of Article 5 of the Constitution which
provides that the scope of power shall be limited by the
Constitution;
- Paragraph 1 of Article 6 of the Constitution which
provides that the Constitution shall be an integral and
directly applicable act;
- Paragraph 1 of Article 7 of the Constitution which
provides that any law or other act, which is inconsistent with
the Constitution, shall be invalid;
- Article 77 of the Constitution which provides that the
President of the Republic shall be Head of State (Paragraph 1)
and that he shall represent the State of Lithuania and shall
perform everything that he is charged with by the Constitution
and laws (Paragraph 2);
- the constitutional principle of responsible governance;
- the constitutional principle of a state under the rule
of law.
IV
On the compliance of Resolution of the Seimas No. X-138
"On the Dismissal of R. K. Urbaitis from the Office of a
Justice of the Supreme Court of Lithuania" of 17 March 2005,
according to the procedure of adoption, with Articles 103 and
104, Paragraph 5 of Article 112, Article 113 and Item 4 of
Article 115 of the Constitution as well as the constitutional
principles of responsible governance and a state under the rule
of law, and on the compliance of Resolution of the Seimas No.
X-138 "On the Dismissal of R. K. Urbaitis from the Office of a
Justice of the Supreme Court of Lithuania" of 17 March 2005,
according to its content, with Paragraphs 1 and 2 of Article 5,
Paragraph 1 of Article 6, Paragraph 1 of Article 7, Item 10 of
Article 67, Paragraph 5 of Article 112 and Item 4 of Article
115 of the Constitution as well as the constitutional
principles of responsible governance and a state under the rule
of law.
1. The petitioner grounds his doubts concerning the
compliance of Resolution of the Seimas No. X-138 "On the
Dismissal of R. K. Urbaitis from the Office of a Justice of the
Supreme Court of Lithuania" of 17 March 2005, according to the
procedure of adoption, with Articles 103 and 104, Paragraph 5
of Article 112, Article 113 and Item 4 of Article 115 of the
Constitution as well as the constitutional principles of
responsible governance and a state under the rule of law, and
the compliance of Resolution of the Seimas No. X-138 "On the
Dismissal of R. K. Urbaitis from the Office of a Justice of the
Supreme Court of Lithuania" of 17 March 2005, according to its
content, with Paragraphs 1 and 2 of Article 5, Paragraph 1 of
Article 6, Paragraph 1 of Article 7, Item 10 of Article 67,
Paragraph 5 of Article 112 and Item 4 of Article 115 of the
Constitution as well as the constitutional principles of
responsible governance and a state under the rule of law on the
same reasoning upon which he grounds his doubts concerning the
compliance of Article 2 of Resolution of the Seimas No. X-131
"On the Appointment of Justices of the Constitutional Court of
the Republic of Lithuania" of 15 March 2005, according to the
procedure of adoption, with Articles 103 and 104, Paragraph 5
of Article 112, Article 113 and Item 4 of Article 115 of the
Constitution as well as the constitutional principles of
responsible governance and a state under the rule of law, also
his doubts as to the compliance of Article 2 of Resolution of
the Seimas No. X-131 "On the Appointment of Justices of the
Constitutional Court of the Republic of Lithuania" of 15 March
2005, according to its content, with Paragraphs 1 and 2 of
Article 5, Paragraph 1 of Article 6, Paragraph 1 of Article 7,
Item 10 of Article 67, Paragraph 5 of Article 112 and Item 4 of
Article 115 of the Constitution as well as the constitutional
principles of responsible governance and a state under the rule
of law, as well as his doubts concerning the compliance of
Decree of the President of the Republic No. 237 "On
Presentation to the Seimas of the Republic of Lithuania
Concerning Dismissal of R. K. Urbaitis from the Office of a
Justice of the Supreme Court of Lithuania" of 17 March 2005,
according to its content and procedure of adoption, with
Paragraphs 1 and 2 of Article 5, Paragraph 1 of Article 6,
Paragraph 1 of Article 7, Article 77, Item 11 of Article 84,
Paragraph 5 of Article 112 and Item 4 of Article 115 of the
Constitution, as well as the constitutional principles of
responsible governance and a state under the rule of law.
2. Subsequent to the petition of the petitioner, the
Constitutional Court will investigate whether Resolution of the
Seimas No. X-138 "On the Dismissal of R. K. Urbaitis from the
Office of a Justice of the Supreme Court of Lithuania" of 17
March 2005, in the aspect that it was adopted in view of Decree
of the President of the Republic No. 237 "On Presentation to
the Seimas of the Republic of Lithuania Concerning Dismissal of
R. K. Urbaitis from the Office of a Justice of the Supreme
Court of Lithuania" of 17 March 2005 which had been issued
without receiving, prior to this, advice from a special
institution of judges (the Council of Courts, under the Law on
Courts), is not in conflict, according to the procedure of
adoption, with the Constitution. In this constitutional case
the Constitutional Court will not investigate whether the
disputed resolution of the Seimas is in not conflict, according
to the procedure of adoption, with the Constitution in the
aspects other than those indicated by the petitioner.
Subsequent to the petition of the petitioner the
Constitutional Court will investigate whether Resolution of the
Seimas No. X-138 "On the Dismissal of R. K. Urbaitis from the
Office of a Justice of the Supreme Court of Lithuania" of 17
March 2005, in the aspect that it was adopted in view of Decree
of the President of the Republic No. 237 "On Presentation to
the Seimas of the Republic of Lithuania Concerning Dismissal of
R. K. Urbaitis from the Office of a Justice of the Supreme
Court of Lithuania" of 17 March 2005 which had been issued
without receiving, prior to this, advice from a special
institution of judges (the Council of Courts, under the Law on
Courts), also in the aspect that this resolution of the Seimas
did not specify in particular upon which grounds-"upon election
to another office" or "upon transference to another place of
work upon his consent", which are set forth in Item 4 of
Article 115 of the Constitution-R. K. Urbaitis was to be
dismissed from the office of a justice of the Supreme Court, is
not in conflict, as to its content, with the Constitution. In
this constitutional case the Constitutional Court will not
investigate whether the disputed resolution of the Seimas is in
not conflict, according to its content, with the Constitution
in the aspects other than those indicated by the petitioner.
3. It has been held in this Ruling of the Constitutional
Court that
- Article 2 of Resolution of the Seimas No. X-131 "On the
Appointment of Justices of the Constitutional Court of the
Republic of Lithuania" of 15 March 2005 in the aspect that by
this article R. K. Urbaitis was appointed as a justice of the
Constitutional Court without his prior dismissal from the
office of a justice of the Supreme Court is not in conflict,
according to the procedure of adoption, with Article 104,
Paragraph 5 of Article 112, Article 113, Item 4 of Article 115
of the Constitution as well as the constitutional principles of
responsible governance and a state under the rule of law;
- Article 2 of Resolution of the Seimas No. X-131 "On the
Appointment of Justices of the Constitutional Court of the
Republic of Lithuania" of 15 March 2005 in the aspect that by
this article R. K. Urbaitis was appointed as a justice of the
Constitutional Court without his prior dismissal from the
office of a justice of the Supreme Court is not in conflict,
according to its content, with Paragraphs 1 and 2 of Article 5,
Paragraph 1 of Article 6, Paragraph 1 of Article 7, Item 10 of
Article 67, Paragraph 5 of Article 112, Item 4 of Article 115
of the Constitution as well as the constitutional principles of
responsible governance and a state under the rule of law;
- Decree of the President of the Republic No. 237 "On
Presentation to the Seimas of the Republic of Lithuania
Concerning Dismissal of R. K. Urbaitis from the Office of a
Justice of the Supreme Court of Lithuania" of 17 March 2005, in
the aspect that by this decree the President of the Republic,
without receiving, prior to this, advice from a special
institution of judges (the Council of Courts, under the Law on
Courts), presented that the Seimas dismiss R. K. Urbaitis from
the office of a justice of the Supreme Court, is not in
conflict, according to the procedure of adoption and its
content, with Item 11 of Article 84 and Paragraph 5 of Article
112 of the Constitution;
- Decree of the President of the Republic No. 237 "On
Presentation to the Seimas of the Republic of Lithuania
Concerning Dismissal of R. K. Urbaitis from the Office of a
Justice of the Supreme Court of Lithuania" of 17 March 2005 in
the aspect that this decree of the President of the Republic
did not specify in particular upon which grounds-"upon election
to another office" or "upon transference to another place of
work upon his consent", which are set forth in Item 4 of
Article 115 of the Constitution-R. K. Urbaitis must be
dismissed from the office of a justice of the Supreme Court, is
not in conflict, according to its content, with Item 4 of
Article 115 of the Constitution;
- Decree of the President of the Republic No. 237 "On
Presentation to the Seimas of the Republic of Lithuania
Concerning Dismissal of R. K. Urbaitis from the Office of a
Justice of the Supreme Court of Lithuania" of 17 March 2005 in
the aspect that by this decree the President of the Republic,
without receiving, prior to this, advice from a special
institution of judges (the Council of Courts, under the Law on
Courts), presented that the Seimas dismiss R. K. Urbaitis from
the office of a justice of the Supreme Court, and in the aspect
that this decree of the President of the Republic did not
specify in particular upon which grounds-"upon election to
another office" or "upon transference to another place of work
upon his consent", which are set forth in Item 4 of Article 115
of the Constitution-R. K. Urbaitis must be dismissed from the
office of a justice of the Supreme Court, is not in conflict,
according to the procedure of adoption and its content, with
Paragraphs 1 and 2 of Article 5, Paragraph 1 of Article 6,
Paragraph 1 of Article 7, Article 77 of the Constitution as
well as the constitutional principles of responsible governance
and a state under the rule of law.
4. Having held this, one is also to hold that Resolution
of the Seimas No. X-138 "On the Dismissal of R. K. Urbaitis
from the Office of a Justice of the Supreme Court of Lithuania"
of 17 March 2005:
- in the aspect that it was adopted in view of Decree of
the President of the Republic No. 237 "On Presentation to the
Seimas of the Republic of Lithuania Concerning Dismissal of R.
K. Urbaitis from the Office of a Justice of the Supreme Court
of Lithuania" of 17 March 2005 which had been issued without
receiving, prior to this, advice from a special institution of
judges (the Council of Courts, under the Law on Courts), is not
in conflict, according to the procedure of adoption, with
Articles 103 and 104, Paragraph 5 of Article 112, Article 113
and Item 4 of Article 115 of the Constitution as well as the
constitutional principles of responsible governance and a state
under the rule of law;
- in the aspect that it was adopted in view of Decree of
the President of the Republic No. 237 "On Presentation to the
Seimas of the Republic of Lithuania Concerning Dismissal of R.
K. Urbaitis from the Office of a Justice of the Supreme Court
of Lithuania" of 17 March 2005 which had been issued without
receiving, prior to this, advice from a special institution of
judges (the Council of Courts, under the Law on Courts), also
in the aspect that this resolution of the Seimas did not
specify in particular upon which grounds-"upon election to
another office" or "upon transference to another place of work
upon his consent", which are set forth in Item 4 of Article 115
of the Constitution-R. K. Urbaitis was to be dismissed from the
office of a justice of the Supreme Court, is not in conflict,
as to its content, with Paragraphs 1 and 2 of Article 5,
Paragraph 1 of Article 6, Paragraph 1 of Article 7, Item 10 of
Article 67, Paragraph 5 of Article 112, Item 4 of Article 115
of the Constitution as well as the constitutional principles of
responsible governance and a state under the rule of law.
Conforming to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Articles 1, 53, 54, 55, and 56 of
the Law on the Constitutional Court of the Republic of
Lithuania, the Constitutional Court of the Republic of
Lithuania has passed the following
ruling:
1. To recognise that Article 2 of Resolution of the Seimas
of the Republic of Lithuania No. X-131 "On the Appointment of
Justices of the Constitutional Court of the Republic of
Lithuania" of 15 March 2005 in the aspect that by this article
R. K. Urbaitis was appointed as a justice of the Constitutional
Court without his prior dismissal from the office of a justice
of the Supreme Court is not in conflict, as to the procedure of
adoption established in the Constitution of the Republic of
Lithuania and as to its content, with the Constitution of the
Republic of Lithuania.
2. To recognise that Decree of the President of the
Republic of Lithuania No. 237 "On Presentation to the Seimas of
the Republic of Lithuania Concerning Dismissal of R. K.
Urbaitis from the Office of a Justice of the Supreme Court of
Lithuania" of 17 March 2005 in the aspect that by this decree
the President of the Republic of Lithuania, without receiving,
prior to this, advice from a special institution of judges (the
Council of Courts, under the Republic of Lithuania Law on
Courts), presented that the Seimas dismiss R. K. Urbaitis from
the office of a justice of the Supreme Court, and in the aspect
that this decree of the President of the Republic of Lithuania
did not specify in particular upon which grounds-"upon election
to another office" or "upon transference to another place of
work upon his consent", which are set forth in Item 4 of
Article 115 of the Constitution of the Republic of Lithuania-R.
K. Urbaitis must be dismissed from the office of a justice of
the Supreme Court of Lithuania, is not in conflict, as to the
procedure of adoption established in the Constitution of the
Republic of Lithuania and as to its content, with the
Constitution of the Republic of Lithuania.
3. To recognise that Resolution of the Seimas of the
Republic of Lithuania No. X-138 "On the Dismissal of R. K.
Urbaitis from the Office of a Justice of the Supreme Court of
Lithuania" of 17 March 2005 in the aspect that it was adopted
in view of Decree of the President of the Republic of Lithuania
No. 237 "On Presentation to the Seimas of the Republic of
Lithuania Concerning Dismissal of R. K. Urbaitis from the
Office of a Justice of the Supreme Court of Lithuania" of 17
March 2005 which had been issued without receiving, prior to
this, advice from a special institution of judges (the Council
of Courts, under the Republic of Lithuania Law on Courts), also
in the aspect that this resolution of the Seimas of the
Republic of Lithuania did not specify in particular upon which
grounds-"upon election to another office" or "upon transference
to another place of work upon his consent", which are set forth
in Item 4 of Article 115 of the Constitution of the Republic of
Lithuania-R. K. Urbaitis was to be dismissed from the office of
a justice of the Supreme Court of Lithuania, is not in
conflict, as to the procedure of adoption established in the
Constitution of the Republic of Lithuania and as to its
content, with the Constitution of the Republic of Lithuania.
This ruling of the Constitutional Court 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 Kūris
Kęstutis Lapinskas
Zenonas Namavičius
Ramutė Ruškytė
Vytautas Sinkevičius
Stasys Stačiokas