Lietuviškai
Case No. 34/03
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
DECISION
ON DISMISSING THE LEGAL PROCEEDINGS IN THE CASE
SUBSEQUENT TO THE PETITION OF THE THIRD VILNIUS CITY
LOCAL COURT, THE PETITIONER, REQUESTING TO
INVESTIGATE AS TO WHETHER PARAGRAPH 3 (WORDING OF 24
JANUARY 2002) OF ARTICLE 11 OF THE REPUBLIC OF
LITHUANIA LAW ON COURTS IS NOT IN CONFLICT WITH
PARAGRAPH 2 OF ARTICLE 5, PARAGRAPHS 2 AND 3 OF
ARTICLE 109, PARAGRAPH 1 OF ARTICLE 114 OF THE
CONSTITUTION OF THE REPUBLIC OF LITHUANIA AND THE
CONSTITUTIONAL PRINCIPLE OF A STATE UNDER THE RULE OF
LAW, WHETHER THE REPUBLIC OF LITHUANIA LAW ON
REMUNERATION FOR WORK OF STATE POLITICIANS, JUDGES
AND STATE OFFICIALS (WORDING OF 29 AUGUST 2000 WITH
SUBSEQUENT AMENDMENTS AND SUPPLEMENTS) IS NOT IN
CONFLICT WITH ARTICLE 5, PARAGRAPH 1 OF ARTICLE 30,
PARAGRAPHS 2 AND 3 OF ARTICLE 109 AND PARAGRAPH 1 OF
ARTICLE 114 OF THE CONSTITUTION OF THE REPUBLIC OF
LITHUANIA AND THE CONSTITUTIONAL PRINCIPLE OF A STATE
UNDER THE RULE OF LAW, AND WHETHER ITEM 1 OF
GOVERNMENT OF THE REPUBLIC OF LITHUANIA RESOLUTION
NO. 1494 "ON THE PARTIAL AMENDMENT OF GOVERNMENT OF
THE REPUBLIC OF LITHUANIA RESOLUTION NO. 689 'ON
REMUNERATION FOR WORK OF CHIEF OFFICIALS AND OFFICERS
OF LAW AND ORDER INSTITUTIONS AND OF LAW ENFORCEMENT
AND CONTROL INSTITUTIONS' OF 30 JUNE 1997'" OF 28
DECEMBER 1999 IS NOT IN CONFLICT WITH ARTICLE 1,
PARAGRAPH 1 OF ARTICLE 5, PARAGRAPHS 2 AND 3 OF
ARTICLE 109 AND PARAGRAPH 1 OF ARTICLE 114 OF THE
CONSTITUTION OF THE REPUBLIC OF LITHUANIA AND THE
CONSTITUTIONAL PRINCIPLE OF A STATE UNDER THE RULE OF
LAW
8 August 2006
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 hearingDaiva Pitrėnaitė,
at a procedural sitting of the Constitutional Court
considered the 16 July 2003 petition of the Third Vilnius City
Local Court, the petitioner, requesting to investigate as to
whether Paragraph 3 of Article 11 of the Republic of Lithuania
Law on Courts is not in conflict with Paragraph 2 of Article 5,
Paragraphs 2 and 3 of Article 109, Paragraph 1 of Article 114 of
the Constitution of the Republic of Lithuania and the
constitutional principle of a state under the rule of law,
whether the Republic of Lithuania Law on Remuneration for Work of
State Politicians, Judges and State Officials to the extent that,
according to the petitioner, it does not establish any legal
regulation of remuneration of judges replacing the legal
regulation which was recognised as being in conflict with the
Constitution of the Republic of Lithuania by the Constitutional
Court Ruling "On the compliance of Paragraphs 1 and 2 of Article
4, Paragraphs 1 and 3 of Article 5, Item 1 of Paragraph 3,
Paragraphs 4, 5 and 6 of Article 7 of the Republic of Lithuania
Law on Remuneration for Work of State Politicians, Judges and
State Officials, as well as Chapter II of the Appendix to the
same law, Appendix 6 to the Republic of Lithuania Law on the
Approval of the Financial Indices of the 2000 State Budget and
the Budgets of Local Governments, Article 9 of the Republic of
Lithuania Law on Amending the Law on the Approval of the
Financial Indices of the 2000 State Budget and the Budgets of
Local Governments, Government of the Republic of Lithuania
Resolution No. 499 'On the Temporary Experimental Procedure for
Remuneration for Work to Heads and Other Officials of State
Power, State Administration and Law Enforcement Bodies' of 29
November 1991, Government of the Republic of Lithuania Resolution
No. 666 'On Remuneration for Work of Judges of Courts, Officials
and Other Employees of the Prosecutor's Office and the State
Security Department of the Republic of Lithuania' of 24 June
1997, Government of the Republic of Lithuania Resolution No. 1494
'On the Partial Amendment of Government of the Republic of
Lithuania Resolution No. 689 "On Remuneration for Work of Chief
Officials and Officers of Law and Order Institutions and of Law
Enforcement and Control Institutions' of 30 June 1997"' of 28
December 1999 with the Constitution of the Republic of Lithuania"
of 12 July 2001 is not in conflict with Article 5, Paragraph 1 of
Article 30, Paragraphs 2 and 3 of Article 109 and Paragraph 1 of
Article 114 of the Constitution of the Republic of Lithuania and
the constitutional principle of a state under the rule of law,
and whether Item 1 of Government of the Republic of Lithuania
Resolution No. 1494 "On the Partial Amendment of Government of
the Republic of Lithuania Resolution No. 689 'On Remuneration for
Work of Chief Officials and Officers of Law and Order
Institutions and of Law Enforcement and Control Institutions' of
30 June 1997'" of 28 December 1999 is not in conflict with the
provision of Article 1 that the State of Lithuania shall be an
independent democratic republic, Articles 5 and 109 as well as
Paragraph 1 of Article 114 of the Constitution of the Republic of
Lithuania and the constitutional principle of a state under the
rule of law.
The Constitutional Court
has established:
I
1. The Third Vilnius City Local Court, the petitioner, was
investigating a civil case. The said court suspended the
investigation of the case and applied to the Constitutional Court
with a petition requesting to investigate as to whether Paragraph
3 of Article 11 of the Republic of Lithuania Law on Courts is not
in conflict with Paragraph 2 of Article 5, Paragraphs 2 and 3 of
Article 109, Paragraph 1 of Article 114 of the Constitution of
the Republic of Lithuania and the constitutional principle of a
state under the rule of law, whether the Law on Remuneration for
Work of State Politicians, Judges and State Officials to the
extent that, according to the petitioner, it does not establish
any legal regulation of remuneration of judges replacing the
legal regulation which was recognised as being in conflict with
the Constitution by the Constitutional Court Ruling "On the
compliance of Paragraphs 1 and 2 of Article 4, Paragraphs 1 and 3
of Article 5, Item 1 of Paragraph 3, Paragraphs 4, 5 and 6 of
Article 7 of the Republic of Lithuania Law on Remuneration for
Work of State Politicians, Judges and State Officials, as well as
Chapter II of the Appendix to the same law, Appendix 6 to the
Republic of Lithuania Law on the Approval of the Financial
Indices of the 2000 State Budget and the Budgets of Local
Governments, Article 9 of the Republic of Lithuania Law on
Amending the Law on the Approval of the Financial Indices of the
2000 State Budget and the Budgets of Local Governments,
Government of the Republic of Lithuania Resolution No. 499 'On
the Temporary Experimental Procedure for Remuneration for Work to
Heads and Other Officials of State Power, State Administration
and Law Enforcement Bodies' of 29 November 1991, Government of
the Republic of Lithuania Resolution No. 666 'On Remuneration for
Work of Judges of Courts, Officials and Other Employees of the
Prosecutor's Office and the State Security Department of the
Republic of Lithuania' of 24 June 1997, Government of the
Republic of Lithuania Resolution No. 1494 'On the Partial
Amendment of Government of the Republic of Lithuania Resolution
No. 689 "On Remuneration for Work of Chief Officials and Officers
of Law and Order Institutions and of Law Enforcement and Control
Institutions' of 30 June 1997"' of 28 December 1999 with the
Constitution of the Republic of Lithuania" of 12 July 2001
(hereinafter also referred to as the Constitutional Court ruling
of 12 July 2001) is not in conflict with Article 5, Paragraph 1
of Article 30, Paragraphs 2 and 3 of Article 109 and Paragraph 1
of Article 114 of the Constitution and the constitutional
principle of a state under the rule of law, and whether Item 1 of
Government Resolution No. 1494 "On the Partial Amendment of
Government of the Republic of Lithuania Resolution No. 689 'On
Remuneration for Work of Chief Officials and Officers of Law and
Order Institutions and of Law Enforcement and Control
Institutions' of 30 June 1997'" of 28 December 1999 (hereinafter
also referred to as the Government resolution of 28 December
1999) is not in conflict with the provision of Article 1 that the
State of Lithuania shall be an independent democratic republic,
Articles 5 and 109 as well as Paragraph 1 of Article 114 of the
Constitution and the constitutional principle of a state under
the rule of law.
The petition was received at the Constitutional Court on 16
July 2003.
2. By Ordinance of the President of the Constitutional
Court No. 2B-71 of 11 August 2003, subsequent to this petition of
the Third Vilnius City Local Court, the petitioner, the
preparation of Case No. 34/03 for a Constitutional Court hearing
was begun.
II
The petition of the petitioner is grounded on the following
arguments.
1. Under Paragraph 2 of Article 96 of the Law on Courts, it
shall be prohibited to reduce a judge's remuneration for work
during his work in court, save the situations provided for in
this law, or any other social guarantees, while under Paragraph 3
of Article 11 of the same law, when the economic and financial
situation of the country deteriorates considerably, the Seimas
may review the financial and material conditions for the
functioning of the courts. The established condition that it is
permitted to reduce the remuneration or other social guarantees
of a working judge is not concrete, it permits state institutions
to interpret any necessity to pay certain sums from the budget as
worsening of the financial situation of the state, thus, it
permits the legislator to worsen the financial and material
conditions of activities of courts and/or judges and to reduce
the social guarantees of working judges.
2. The legislator sought to regulate salaries of judges
namely by the Law on Remuneration for Work of State Politicians,
Judges and State Officials. After the Constitutional Court ruling
of 12 July 2001 had come into force, whereby corresponding
provisions of this law were recognised to be in conflict with the
Constitution, there appeared a legal gap, since there is no legal
regulation, which could be applied to the relations in the
dispute in the case considered by the Third Vilnius City Local
Court, the petitioner. This legal gap enables, when questions of
establishment of the size of salaries of judges are decided,
state institutions and officials (inter alia Presidents of
courts) to make judges and courts dependent on outside forces
(inter alia politicians), and to exert influence on them. In the
opinion of the petitioner, who inter alia quotes the statement of
the Constitutional Court decision of 6 May 2003 that "if the laws
(parts thereof) do not establish certain legal regulation, the
Constitution Court enjoys the constitutional powers to
investigate the compliance of these laws (parts thereof) with the
Constitution in the cases when due to the fact that the said
legal regulation has not been established in particularly those
laws (parts thereof) the principles and/or norms of the
Constitution might be violated", the Constitutional Court should
hold that the said legal gap is in conflict with the
Constitution.
3. By the Constitutional Court ruling of 12 July 2001, the
legal proceedings on the compliance of Government resolution of
28 December 1999 with the Constitution was dismissed; in that
constitutional justice case the constitutionality of the said
Government resolution was not investigated in essence. The
provision "shall be grounds to adopt a decision to dismiss the
instituted legal proceedings" of Paragraph 4 of Article 69 of the
Law on the Constitutional Court means that the Constitutional
Court has the right, when it takes account of the circumstances
of the considered case, to dismiss the instituted legal
proceedings, but not that it must dismiss the instituted legal
proceedings every time when the disputed legal act is annulled;
when the Constitutional Court is addressed by a court, which
investigates a case, the Constitutional Court has a duty to
investigate the petition of the court regardless of whether the
disputed legal act is in force or not; thus, the petition of the
court-petitioner on the constitutionality of a legal act, which
is applicable in a concrete case, must be considered in the
Constitutional Court even though the disputed legal act is no
longer in force. While interpreting the jurisprudence of the
Constitutional Court (inter alia the doctrinal provisions of its
rulings of 5 April 2000 and 21 August 2002), the petitioner
relates Paragraph 4 of Article 69 of the Law on the
Constitutional Court with Item 3 of Paragraph 1 of the same
article, under which, by a decision, the Constitutional Court
shall refuse to consider petitions to investigate the compliance
of a legal act with the Constitution, if the compliance of the
legal act with the Constitution specified in the petition has
already been investigated by the Constitutional Court and the
ruling on this issue adopted by the Constitutional Court is still
in force; in the opinion of the petitioner, a decision to refuse
to accept a petition on the compliance of a legal act with the
Constitution may be adopted only when the issue of the
constitutionality of the legal act has been investigated in
essence, while in cases when a court, which investigates a case,
applies to the Constitutional Court, in which the said legal act
must be applied, the Constitutional Court must investigate the
issue in essence, even though it previously dismissed the legal
proceedings on the constitutionality of this legal act. Thus, in
the opinion of the petitioner, due to the fact that the
compliance of the Government resolution of 28 December 1999 was
not investigated in essence in the constitutional justice case
wherein the Constitutional Court ruling of 12 July 2001 was
adopted, there are grounds to investigate into the compliance of
the said Government resolution with the Constitution in this
constitutional justice case.
The Constitutional Court
holds that:
I
1. The petitioner inter alia requests to investigate
whether Paragraph 3 of Article 11 of the Law on Courts is not in
conflict with Article 5, Paragraphs 2 and 3 of Article 109 and
Paragraph 1 of Article 114 of the Constitution as well as the
constitutional principle of a state under the rule of law.
1.1. It is clear from the arguments of the petitioner that
the Constitutional Court is requested to investigate whether the
legal regulation consolidated in Paragraph 3 (wording of 24
January 2002) of Article 11 of the Law on Courts is not in
conflict with the Constitution.
1.2. It is also clear from the arguments of the petitioner
that he had doubts whether not entire Paragraph 3 (wording of 24
January 2004) of Article 11 of the Law on Courts is not in
conflict with the Constitution, but only the provision "when the
economic and financial situation of the country deteriorates
considerably, the Seimas may review the financial and material
conditions for the functioning of the courts" of the said
paragraph.
1.3. It is also clear from the arguments of the petitioner
that he had doubts as regards the compliance of the provision
"when the economic and financial situation of the country
deteriorates considerably, the Seimas may review the financial
and material conditions for the functioning of the courts" of
Paragraph 3 (wording of 24 January 2004) of Article 11 of the Law
on Courts with inter alia not entire Article 5 of the
Constitution, but only Paragraph 2 thereof providing that the
scope of power shall be limited by the Constitution.
2. On 28 March 2006, In the constitutional justice case
subsequent to a petition of the Vilnius Regional Administrative
Court, the petitioner, requesting to investigate whether
Paragraph 4 of Article 69 of the Law on the Constitutional Court
was not in conflict with Articles 6, 30, 109 and 110 of the
Constitution as well as with the constitutional principle of a
state under the rule of law and whether Paragraph 3 of Article 11
of the Law on Courts and Paragraph 2 of Article 96 thereof to the
extent that, according to the petitioner, it established
possibilities to decrease the remuneration of judges and their
other social guarantees were not in conflict with Articles 5 and
109, Paragraph 1 of Article 114 of the Constitution as well as
with the constitutional principle of a state under the rule of
law, the Constitutional Court adopted the Ruling "On the
compliance of Item 2 of Paragraph 1 of Article 62, Paragraph 4
(wording of 11 July 1996) of Article 69 of the Republic of
Lithuania Law on the Constitutional Court and Paragraph 3
(wording of 24 January 2002) of Article 11, Paragraph 2 (wording
of 24 January 2002) of Article 96 of the Republic of Lithuania
Law on Courts with the Constitution of the Republic of Lithuania"
whereby it inter alia recognised that the provision "When the
economic and financial situation of the country deteriorates
considerably, the Seimas may review the financial and material
conditions for the functioning of the courts" of Paragraph 3
(wording of 24 January 2002) of Article 11 of the Law on Courts
was not in conflict with the Constitution.
This Constitutional Court ruling is still in force.
3. Thus, the issue of the compliance with the Constitution
of the provision "When the economic and financial situation of
the country deteriorates considerably, the Seimas may review the
financial and material conditions for the functioning of the
courts" of Paragraph 3 (wording of 24 January 2002) of Article 11
of the Law on Courts, the compliance of which is doubted by the
Third Vilnius City Local Court, the petitioner, was solved in the
Constitutional Court Ruling "On the compliance of Item 2 of
Paragraph 1 of Article 62, Paragraph 4 (wording of 11 July 1996)
of Article 69 of the Republic of Lithuania Law on the
Constitutional Court and Paragraph 3 (wording of 24 January 2002)
of Article 11, Paragraph 2 (wording of 24 January 2002) of
Article 96 of the Republic of Lithuania Law on Courts with the
Constitution of the Republic of Lithuania" of 28 March 2006.
4. Under Item 3 of Paragraph 1 of Article 69 of the
Constitution, by a decision, the Constitutional Court shall
refuse to consider petitions to investigate the compliance of a
legal act with the Constitution, if the compliance of the legal
act with the Constitution specified in the petition has already
been investigated by the Constitutional Court and the ruling on
this issue adopted by the Constitutional Court is still in force.
In the event that it is established before consideration of
the constitutional justice case at a public hearing of the
Constitutional Court that there are grounds for refusal to
consider the petition of a petitioner, a decision to dismiss the
case is adopted in a procedural sitting of the Constitutional
Court.
5. Taking account of the arguments set forth, one is to
hold that there are grounds to refuse to consider the petition of
the petitioner, requesting to investigate whether the provision
"When the economic and financial situation of the country
deteriorates considerably, the Seimas may review the financial
and material conditions for the functioning of the courts" of
Paragraph 3 (wording of 24 January 2002) of Article 11 of the Law
on Courts is not in conflict with Paragraph 2 of Article 5,
Paragraphs 2 and 3 of Article 109 and Paragraph 1 of Article 114
of the Constitution as well as the constitutional principle of a
state under the rule of law. In this part of the case the legal
proceedings are to be dismissed.
II
1. The petitioner requests to investigate whether inter
alia the Law on Remuneration for Work of State Politicians,
Judges and State Officials to the extent that, according to the
petitioner, it does not establish any legal regulation of
remuneration of judges replacing the legal regulation which was
recognised as being in conflict with the Constitution by the
Constitutional Court ruling of 12 July 2001, is not in conflict
with Article 5, Paragraph 1 of Article 30, Paragraphs 2 and 3 of
Article 109 and Paragraph 1 of Article 114 of the Constitution as
well as the constitutional principle of a state under the rule of
law.
2. The petitioner grounds his doubt as regards the
compliance of the Law on Remuneration for Work of State
Politicians, Judges and State Officials to the above extent with
the Constitution that, according to him, after the Constitutional
Court ruling of 12 July 2001 had come into force, there appeared
a legal gap which enables, when questions of establishment of the
size of salaries of judges are decided, state institutions and
officials (inter alia Presidents of courts) to make judges and
courts dependent on outside forces (inter alia politicians), and
to exert influence on them.
3. The Constitutional Court is an institution of
constitutional justice which executes constitutional judicial
control; it enjoys exceptional constitutional powers to
investigate and decide whether constitutional laws (parts
thereof) are not in conflict with the Constitution, whether laws
(parts thereof) as well as the Statute of the Seimas (part
thereof) are not in conflict with the Constitution and
constitutional laws, whether substatutory acts (parts thereof) of
the Seimas are not in conflict with the Constitution,
constitutional laws, laws and the Statute of the Seimas, whether
acts (parts thereof) of the President of the Republic are not in
conflict with the Constitution, constitutional laws and laws, and
whether acts (parts thereof) of the Government are not in
conflict with the Constitution, constitutional laws and laws. In
its acts, the Constitutional Court has held more than once that,
when deciding under its competence on the compliance of the legal
acts (parts thereof) of lower power with legal acts of higher
power, inter alia (and, first of all) with the Constitution, as
well as when implementing its other constitutional powers, the
Constitutional Courtindividual and independent courtimplements
constitutional justice and guarantees the supremacy of the
Constitution in the legal system and constitutional legitimacy
(Constitutional Court rulings of 12 July 2001, 29 November 2001,
13 December 2004, 28 March 2006 and 6 June 2006). When construing
the provisions of the Constitution in a systemic manner, one is
to hold that the Constitutional Court ensures, within its
competence, the hierarchy of legal acts consolidated in the
Constitution, the compliance of all legal acts having the power
of a constitutional law with the Constitution, the compliance of
all legal acts having the power of a law with the Constitution
and legal acts having the power of constitutional laws, as well
as the compliance of all substatutory legal acts of the Seimas,
acts of the President of the Republic and the Government with the
Constitution, legal acts having the power of constitutional laws,
and with legal acts having the power of a law.
4. Paragraph 1 of Article 107 of the Constitution provides
that a law (or part thereof) of the Republic of Lithuania or
other act (or part thereof) of the Seimas, act of the President
of the Republic, act (or part thereof) of the Government may not
be applied from the day of official promulgation of the decision
of the Constitutional Court that the act in question (or part
thereof) is in conflict with the Constitution.
4.1. As Paragraph 1 of Article 102 of the Constitution
(which provides that the Constitutional Court shall decide
whether the laws and other acts of the Seimas are not in conflict
with the Constitution and whether the acts of the President of
the Republic and the Government are not in conflict with the
Constitution or laws) is construed as meaning that the
Constitutional Court has the exclusive competence to investigate
and decide on whether a certain act (part thereof) of the Seimas,
the President of the Republic or the Government, or that adopted
by referendum is not in conflict with a certain legal act of
higher power, inter alia (and, first of all) with the
Constitution, so is Paragraph 1 of Article 107 of the
Constitution to be construed as meaning that every legal act
(part thereof) of the Seimas, the President of the Republic or
the Government, as well as that passed by referendum, which by a
Constitutional Court decision (ruling) is recognized as being in
conflict with a certain legal act of higher power, inter alia
(and, first of all) with the Constitution, is removed from the
Lithuanian legal system for good and one will never be able to
apply it again (Constitutional Court ruling of 28 March 2006).
After the Constitutional Court has recognised that a
constitutional law (part thereof) is in conflict with the
Constitution, that a law (part thereof) or the Statute of the
Seimas (part thereof) is in conflict with the Constitution or
with a certain constitutional law, that a substatutory act (part
thereof) of the Seimas is in conflict with the Constitution, a
certain constitutional law or a law or with the Statute of the
Seimas, that an act (part thereof) of the President of the
Republic is in conflict with the Constitution, a certain
constitutional law or a law, that an act (part thereof) of the
Government is in conflict with the Constitution, a certain
constitutional law or a law, a constitutional duty arises to a
corresponding law-making subjectthe Seimas, the President of the
Republic, or the Governmentto recognise such legal act (part
thereof) as no longer valid or, if it is impossible to do without
the corresponding legal regulation of the social relations in
question, to change it so that the newly established legal
regulation is not in conflict with legal acts of higher power,
inter alia (and, first of all) the Constitution. But even until
this constitutional duty is carried out, the corresponding legal
act (part thereof) may not be applied under any circumstances. In
this respect the legal power of such legal act is abolished
(Constitutional Court ruling of 6 June 2006).
4.2. In this context, it needs to be noted that, under
Paragraph 2 of Article 107 of the Constitution, the decisions of
the Constitutional Court on issues ascribed to its competence by
the Constitution shall be final and not subject to appeal, thus
the power of the Constitutional Court ruling to recognise a legal
act or part thereof as unconstitutional may not be overruled by a
repeated adoption of laws by the Seimas, nor other acts of the
Seimas, nor acts of the President of the Republic, nor acts of
the Government (Constitutional Court rulings of 30 May 2003, 28
March 2006 and 6 June 2006). The Constitutional Court has held
that after the Constitutional Court recognises a law (or part
thereof), or other act (or part thereof) of the Seimas, act of
the President of the Republic, act (or part thereof) of the
Government to be in conflict with the Constitution, the
institutions which had issued the corresponding actthe Seimas,
the President of the Republic, and the Governmentare prohibited
from repeatedly establishing the legal regulation which has been
recognised to be in conflict with the Constitution, by adopting
corresponding laws and other legal acts afterwards
(Constitutional Court ruling of 30 May 2003).
4.3. When new laws are adopted, amended and/or already
adopted laws and legal acts are supplemented (also when new legal
regulation is established in order to meet the requirements of
the Constitution, or when the existing legal regulation is
corrected in order to harmonise it with the Constitution), all
law-making subjects are bound by the jurisprudence of the
Constitutional Court, inter alia the official constitutional
doctrine formed therein (in parts of reasoning of Constitutional
Court acts), i.e. the official concept (official construction) of
provisions (norms and principles) of the Constitution as well as
other legal arguments set forth in Constitutional Court acts
(Constitutional Court ruling of 30 May 2003, decision of 20
September 2005, rulings of 14 March 2006, 28 March 2006, 9 May
2006 and 6 June 2006). It needs to be emphasised that the legal
acts passed by the Seimas, the President of the Republic and the
Government, and those adopted by referendum, which establish a
new (different) legal regulation instead of the legal regulation
that was recognised by the Constitutional Court as being in
conflict with the Constitution, or which recognise legal acts
(parts thereof) which are in conflict with the Constitution as no
longer valid, under the established procedure may be challenged
at the Constitutional Court.
5. In its rulings of 19 January 2005 and 23 August 2005,
the Constitutional Court held that "after a ruling of the
Constitutional Court goes into effect, whereby the law (part
thereof) is recognised as conflicting with the Constitution,
there might appear various indeterminacies in the legal system,
lacunae legisgaps in the legal regulation, or even a vacuum" and
that "in order to evade this, one must correct the legal
regulation in time so that the gaps in the legal regulation as
well as other indeterminacies could be removed and that the legal
regulation might become clear and harmonious".
It needs to be emphasised that the Constitution does not
tolerate any such situation where a corresponding law-making
subject (inter alia the legislator) avoids or delays the adoption
of corresponding laws and other legal acts whereby, while
following the official concept of the provisions of the
Constitution, which is set forth in Constitutional Court rulings,
the legal regulation that was recognised to be in conflict with
legal acts of higher power, inter alia (and, first of all) the
Constitution, would be respectively corrected. Such situation is
especially not to be tolerated, when, after upon the entry into
force of a Constitutional Court ruling, which recognised a
certain legal act (part thereof) to be in conflict with the
Constitution (or another legal act of higher power), there
appears a lacuna legis, a legal gap, i.e. when certain social
relations remain legally unregulated, although, when heeding the
imperatives of the consistency and inner uniformity that arise
from the Constitution and while account is taken of the content
of these social relations, they must be legally regulated. On the
other hand, the said correction of the legal regulation need not
be performed by a single law-making actionone legal act; for
instance, it does not stem from the Constitution that a
corresponding law-making subject (the Seimas, the President of
the Republic, the Government) would have to recognise, by a
single act, that the legal act (part thereof), which was
recognised by the Constitutional Court in its ruling as being in
conflict with the Constitution, as no longer valid and in the
same act to establish a new legal regulation, replacing the one
that was recognised to be in conflict with the Constitution.
In this context one is to mention the fact that, as held by
the Constitutional Court, "under the Constitution, the
Constitutional Court, having inter alia assessed what legal
situation might appear after a Constitutional Court ruling
becomes effective, may establish a date when this Constitutional
Court ruling is to be officially published; the Constitutional
Court may postpone the official publishing of its ruling if it is
necessary to give the legislator certain time to remove the
lacunae legis which would appear if the relevant Constitutional
Court ruling was officially published immediately after it had
been publicly announced in the hearing of the Constitutional
Court and if they constituted preconditions to basically deny
certain values protected by the Constitution. The said
postponement of official publishing of the Constitutional Court
ruling (inter alia a ruling by which a certain law (or part
thereof) is recognised as contradicting to the Constitution) is a
presumption arising from the Constitution in order to avoid
certain effects unfavourable to the society and the state, as
well as the human rights and freedoms, which might appear if the
relevant Constitutional Court ruling was officially published
immediately after its official announcement in the hearing of the
Constitutional Court and if it became effective on the same day
after it had been officially published" (Constitutional Court
rulings of 19 January 2005 and 23 August 2005). Thus, the
Constitutional Court enjoys the constitutional powers to
establish also a later date of the official publishing (thus,
also of entry into force) of its ruling, whereby a certain legal
act (part thereof) was recognised as being in conflict with legal
acts of higher legal power, inter alia (and, first of all) the
Constitution, where, in case the Constitutional Court ruling
after its adoption was immediately officially published, the
vacuum or other indeterminacies might appear in the legal
regulation due to which certain values entrenched in and defended
and protected by the Constitution could be violated in essence
(Constitutional Court rulings of 24 December 2002, 19 January
2005 and 23 August 2005).
6. Legal acts (including those concerning the compliance of
which with legal acts of higher power is decided by the
Constitution Court according to the Constitution) are sources of
law created by corresponding institutions of public power or by
referendum, in which lawlegal provisions set forth in a certain
textual formis entrenched. Legal acts as sources of law appear,
they are amended (supplemented) and abolished by decisions
adopted by corresponding institutions or by general vote
(referendum). Thus, legal acts (including those concerning the
compliance of which with legal acts of higher power is decided by
the Constitution Court according to the Constitution) are always
results of certain institutional decisions (actions) of law-
making (in the broadest meaning of the term "institutional",
which also includes legal acts adopted by referendum). In case
there was no law-making decision (on legal regulation of certain
social relations), a legal act cannot appear, nor can it be
amended (supplemented), nor abolished. In such way legal acts are
different from such sources of law, as, for instance, legal
customs, which appear (are created) not by means of institutional
law-making decisions (actions), but on other grounds.
6.1. All legal acts are expressed in a certain textual
form, and have certain linguistic expression. However, as held by
the Constitutional Court, it is impossible to treat law solely as
a text in which certain legal provisions and rules of behaviour
are set forth expressis verbis; it is impossible to treat the
legal reality solely in its textual form, only as an aggregate of
its explicit provisions (Constitutional Court ruling of 25 May
2004). Therefore, while investigating the compliance of legal
acts (parts thereof) passed by the Seimas, the President of the
Republic, the Government and those adopted by referendum with
legal acts of higher power, inter alia (and, first of all) the
Constitution, the Constitutional Court also investigates into
both the legal regulation that is explicitly, expressis verbis,
consolidated in these legal acts (parts thereof), and the legal
regulation which is consolidated in these legal acts (parts
thereof) implicitly and is derived from the explicit legal
provisions in the course of construction of law.
6.2. When investigating the compliance of legal acts (parts
thereof) passed by the Seimas, the President of the Republic, the
Government and those adopted by referendum with legal acts of
higher power, inter alia (and, first of all) the Constitution,
the Constitutional Court has to establish and, if it is necessary
in view of the logic of the investigated constitutional justice
case, hold whether certain legal regulation established in a
corresponding legal act (part thereof) of lower power is
consolidated explicitly, or whether it is not explicitly
consolidated therein. It needs to be emphasised that non-
establishment of certain explicit legal regulation (lack of legal
regulation, absence of respective explicit provisions) in the
legal act (part thereof) investigated in a constitutional justice
case does not yet mean that the said legal act (part thereof)
does not regulate corresponding social relations at all, nor does
it mean that no other legal acts regulate these social relations.
It also needs to be noted that non-establishment of certain
explicit legal regulation in the investigated legal act (part
thereof) may be linked with various legal situations: in some
cases the non-establishment of certain explicit legal regulation
precisely in that legal act (precisely in that part thereof) is
determined by the fact that corresponding legal provisions are
explicitly or implicitly consolidated in another legal act (or in
other parts of the same legal act); in other cases the absence of
explicit legal norms regulating certain social relations in the
said legal act (part thereof), provided they are not explicitly
nor implicitly consolidated in other legal acts (or in other
parts of the same legal act), is to be treated as establishment
of certain implicit legal regulation, which supplements and
extends the explicit legal regulation (in some casesas
establishment of legal regulation, which consolidates the
behaviour opposite to the established one) (thus, in certain
cases it is possible to "discover" in an investigated legal act
(in particular, in the investigated part thereof) the implicit
provisions regulating corresponding social relations and
supplementing and extending the explicit legal regulation); still
in some other cases the said non-establishment of explicit legal
regulation in that legal act (part thereof), provided
corresponding legal regulation is not explicitly nor implicitly
established in other legal acts (or in other parts of the same
legal act) means that in that legal act (part thereof) there is a
legal gap, which, in its turn, may be treated either as
legislative omission, i.e. the legal gap prohibited by the
Constitution (or some other act of higher power), or as a legal
gap, which cannot be interpreted as legislative omission, since
the Constitution (as well as any other legal act of higher power)
does not require that corresponding legal regulation must be
established, nor that it be established precisely in that legal
act (precisely in that part thereof).
6.2.1. It has been mentioned that the non-establishment of
certain explicit legal regulation precisely in the investigated
legal act (precisely in the investigated part thereof) may be
determined by the fact that corresponding legal regulation is
explicitly or implicitly consolidated in another legal act (or in
other parts of the same legal act). Such legal act (part thereof)
could be recognised as being in conflict with a legal act of
higher power, inter alia (and, first of all) the Constitution
because of the fact that certain legal regulation is not
consolidated precisely in that legal act (part thereof) only in
cases when the said legal act of higher power insistently demands
that corresponding legal regulation be established precisely in
the investigated legal act (precisely in the investigated part
thereof). In this context it needs to be mentioned that the
Constitution insistently demands that certain social relations be
regulated by means of a constitutional law or a law, and
sometimes, as in Article 93, Paragraph 2 of Article 102 and
Paragraph 4 of Article 11 of the Constitution, even indicates
expressis verbis the title of the law.
6.2.2. It was also mentioned that the non-establishment of
explicit legal regulation in the said legal act (part thereof),
provided it is not explicitly nor implicitly consolidated in
other legal acts (or in other parts of the same legal act), may
be treated as establishment of certain implicit legal regulation,
which supplements and extends the explicit legal regulation (in
some casesas establishment of legal regulation, which
consolidates the behaviour opposite to the established one):
although such implicit legal regulation is not established
expressis verbis, it is possible to derive it consecutively from
explicit legal norms in the course of construction of law. For
instance, in private law the principle of general permission is
dominant, under which "everything is permitted that is not
prohibited", the non-establishment of a certain explicit
prohibition is, as a rule, treated as permission of corresponding
behaviour (which is not explicitly prohibited), meanwhile in
public law, in which, as generally accepted, an opposite
principle of special permission (or general prohibition) is
dominant, under which "everything is prohibited that is not
permitted", the absence of certain explicit permission is, as a
rule, to be interpreted as prohibition of corresponding behaviour
(which is not explicitly permitted). If such legal regulation
established implicitly, but not explicitly, in a legal act of
lower power consolidates certain behaviour, which is different
from that established in a certain legal act of higher power,
inter alia (and, first of all) the Constitution, this may serve
as grounds for the Constitutional Court by its ruling to
recognise (by reasonably stating the existence of that implicit
legal regulation) that legal act of lower power (part thereof) as
being in conflict with a corresponding legal act of higher power,
inter alia (and, first of all) the Constitution, to the extent
that it does not explicitly establish the respective legal
regulation, and thus to remove that implicitly established legal
regulation from the legal system. In this context one is to
mention that in the jurisprudence of the Constitutional Court
legal acts (parts thereof) are rather often recognised as being
in conflict with the Constitution to the extent that certain
legal regulation is not explicitly established in these legal
acts (parts thereof).
6.2.3. The absence of the legal provisions regulating
certain social relations in a legal act (part thereof), if
corresponding legal regulation is neither explicitly nor
implicitly established in other legal acts (or in other parts of
the same legal act) is to be treated as a legal gaplacuna legis.
Having investigated the compliance of a legal act (part thereof)
of the Seimas, the President of the Republic or the Government,
or of a legal act (part thereof) adopted by referendum with legal
acts of higher power, inter alia (and, first of all) with the
Constitution, the Constitutional Court may also hold that there
is a legal gap in a respective legal act (part thereof). Such
legal gaps may appear due to various reasons, inter alia due to
mistakes of law-making, also due to the fact that a corresponding
subject of law-making did not regulate those social relations on
purpose. Such gaps, both big and small, may also appear after by
its decision the Constitutional Court recognised the legal
regulation (part thereof) (articles (parts thereof) of legal
acts) either implicitly or explicitly established in a certain
legal act as being in conflict with a legal act of higher power,
inter alia (and, first of all) with the Constitution; however, it
needs to be emphasised that by no means does it mean that legal
gaps appear after each Constitutional Court ruling comes into
force, whereby a certain legal act (part thereof) of lower power
is recognised as being in conflict with a legal act of higher
power, inter alia (and, first of all) with the Constitution:
legal situations are also possible, where elimination of the
provisions conflicting with provisions of legal acts of higher
power, inter alia the Constitution, by means of the
Constitutional Court ruling from the legal system, with respect
to application of law virtually amounts to changing the overall
legal regulation, i.e. the establishment of a different, gapless
overall legal regulation.
Alongside, it needs to be noted that any legal gap, no
matter in what way it appeared, means that although certain
social relations must be regulated legally (there is a need for
their legal regulation), they are not legally regulated. All such
gaps are to be assessed as indeterminacies, shortcomings of the
legal regulation and as deficiencies of the legal system which
should be removed. In cases when a whole area of social relations
is not regulated, there are even grounds to state the existence
of so-called vacuum of legal regulation.
The legal gap, inter alia the legislative omission, as one
of varieties of non-establishment of explicit legal regulation,
is essentially different form such non-establishment of explicit
legal regulation which means that in the legal act there is legal
regulation established implicitly (inter alia legal regulation,
which consolidates the behaviour opposite to the established
one), which supplements and extends the explicit legal
regulation, which, as mentioned, may be in conflict with a
certain legal act of higher power, inter alia the Constitution.
In cases where certain legal regulation implicitly established in
a legal act (part thereof) establishes a certain behaviour and
thereby supplements and extends the explicit legal regulation,
there are no grounds to assert that, purportedly, this legal act
(part thereof) does not regulate the corresponding social
relations at all, since these social relations are in fact
legally regulated, however, this legal regulation is consolidated
in respective legal acts not explicitly, expressis verbis, but
implicitly and is derived form the explicit legal provisions in
the course of construction of law. Meanwhile, a legal gap, inter
alia legislative omission, always means that the legal regulation
of corresponding social relations is established neither
explicitly nor implicitly, neither in the said legal act (part
thereof) nor in any other legal acts, even though there exists a
need for legal regulation of these social relations, while the
said legal regulation, in case of legislative omission, must be
established, while heeding the imperatives of the consistency and
inner uniformity of the legal system stemming from the
Constitution and taking account of the content of these social
relations, precisely in that legal act (precisely in that part
thereof), since this is required by a certain legal act of higher
power, inter alia the Constitution itself.
6.2.3.1. Some legal gaps whose existence in the
investigated legal act (part thereof) may be stated by the
Constitutional Court may be assessed as such indeterminacies of
legal regulation, which do not compete with the legal regulation
established in legal acts of higher power and, by itself, it does
not create preconditions to violate the latter. In itself, the
statement of the existence of such legal gaps does not create
grounds to recognise the investigated legal act (part thereof) as
being in conflict with legal acts of higher power, inter alia the
Constitution. In Constitutional Court acts the legal gaps of such
nature may also be assessed as not violating provisions of the
Constitution (or those of other legal acts of higher power)
(Constitutional Court ruling of 21 April 1994, decision of 11
July 1994, ruling of 22 December 1995).
6.2.3.2. In other cases, the absence of explicit legal
provisions regulating certain social relations in the
investigated legal act (part thereof) of lower power, provided
corresponding legal regulation is not established either
explicitly or implicitly also in other legal acts (or in other
parts of the same legal act) and provided it is impossible to
treat the non-establishment of the legal regulation in the
investigated legal act (part thereof) as the discussed implicit
legal regulation, which supplements and extends the explicitly
established legal regulation, it to be treated as such legal gap
that is prohibited by the Constitution (or a certain other legal
act of higher power), i.e. as legislative omission. Legislative
omission means that the corresponding legal regulation is not
established in that legal act (part thereof), although, under the
Constitution (or some other act of legal act of higher power, the
compliance of the investigated legal act (part thereof) of lower
power with which is assessed), it must be established precisely
in that legal act (or precisely in that part thereof). It needs
to be emphasised especially that legislative omission differs
from other legal gaps also that it is always the consequence of
the action of the law-making subject who issued a respective
legal act, but not that of his failure to act, moreover, it is
not a consequence of an action (especially, a lawful one) or
failure to act of any other subject; for instance, such legal gap
where certain social relations were not even begun to be
regulated by certain legal acts, although there exists a need for
their legal regulation, is not to be regarded as legislative
omission; neither can legislative omission appear after by its
ruling the Constitutional Court recognises in a constitutional
justice case that a certain legal act (part thereof) is in
conflict with a legal act of higher power, inter alia with the
Constitution.
Thus, it is necessary to distinguish legislative omission,
as a consequence of an action by the law-making subject that
issued a corresponding legal act, from the legal gaps that
appeared due to the fact that the necessary law-making actions
were not undertaken at all, neither one nor another law-making
subject issued a legal act designated for regulation of certain
social relations, and due to this these social relations remained
legally not regulated. Under certain circumstances, especially
when the Constitution demands that these social relations be
legally regulated (and sometimes it explicitly indicates that
they must be regulated not by any legal act, but by a
constitutional law or a law), the absence of law-making actions
actually may create preconditions for appearance of an anti-
constitutional situationsuch state of social relations, where
these relations are developing not on the grounds of law,
although, as mentioned, the Constitution demands that they be
legally regulated. However, such legal regulation, to be more
precise, its absence, is not legislative omission.
The "detection" of legislative omission par excellence in a
legal act (part thereof) of lower power is, if it is necessary
because of the logic of the investigated constitutional justice
case, sufficient grounds to recognise that legal act (part
thereof) to be in conflict (to corresponding extent, i.e. to the
extent that the legal act (part thereof) does not consolidate the
legal regulation required by legal acts of higher power, inter
alia (and, first of all) with the Constitution) with the
Constitution (other legal act of higher power).
6.2.3.3. The elimination of legal gaps (without excluding
legislative omission) is a matter of competence of respective
(competent) law-making subject. However, it is possible to
certain extent to fill the legal gaps that are in legal acts of
lower power also in the course of application of law (inter alia
by making use of legal analogy, by applying general principles of
law, as well as legal acts of higher power, first of all the
Constitution), thus also in the course of construction of law
(inter alia when this is done by courts of general jurisdiction
and the specialised courts established under Paragraph 2 of
Article 111 of the Constitution, which administer justice and
decide, within their competence, individual cases and which have
to construe law so that they would be able to apply it).
Alongside, it needs to be noted that the courts can fill the
legal gaps that are in legal acts of lower power only ad hoc, i.
e. by this way of application of law the legal gaps are removed
only as regards a particular social relation due to which the
dispute is decided in the case investigated by the court. On the
other hand, the judicial (ad hoc) removal of legal gaps creates
preconditions for formation of the same court practice in
deciding cases of a certain categorythe law which is entrenched
in court precedents, which, it goes without saying, later can be
changed or corrected otherwise by the legislator (or another
competent law-making subject), when it regulates certain social
relations by means of a law (or other legal act), thus removing
the corresponding legal gap already not ad hoc, but by
prospective legal regulation of general character.
Thus, it is possible to completely remove legal gaps (as
well as legislative omission) only when the law-making
institutions issue respective legal acts. The courts cannot do
this, they can fill the legal gaps that are in legal acts of
lower power only ad hoc, since the courts administer justice, but
they are not legislative institutions (in the positive and
broadest sense of this term); such limitation of opportunities of
courts in this area is especially evident when one confronts gaps
in substantive law. However, in all cases there is an undeniable
opportunity for courts to fill a legal gap, which is in a legal
act of lower power, ad hoc. If such empowerments of courts were
denied or not recognised, if the opportunities of courts to apply
law, first of all the supreme lawthe Constitutiondepended on
whether a certain law-making subject did not leave gaps in the
legal regulation (legal acts) that he has established, and if
courts were able to decide cases only after these legal gaps are
filled by way of law-making, then one would have to hold that the
courts, when they decide cases, apply not law, not, first of all,
the supreme lawthe Constitutionbut only a law (in the general
sense of this term), that they administer justice not according
to law, but only formally apply articles (parts thereof) of legal
acts, that constitutional values, inter alia the rights and
freedoms of the person, may be injured (and not compensated, nor
redressed) only because a corresponding law-making subject has
not legally regulated certain relations (or when he legally
regulates them, but not intensively enough), i.e. that although
certain values are entrenched in the Constitution, they, under
the Constitution, are not properly defended and protected. This
would not be in line with the social and constitutional purpose
of courts. Besides, it would mean that law is treated only as its
textual form and is identified with the latter.
7. In Constitutional Court acts (inter alia the decision of
16 April 2004, the rulings of 29 December, 19 January 2005, 16
January 2006 and 28 March 2006) various aspects of legislative
omission, as a phenomenon of legal reality, have been disclosed.
In the jurisprudence of the Constitutional Court (inter
alia the ruling of 25 January 2001, the decisions of 6 May 2003,
13 May 2003, 16 April 2004, the ruling of 13 December 2004) one
follows the provision that the Constitutional Court enjoys the
constitutional powers not only to hold that there is a legal gap,
inter alia legislative omission, in the investigated legal act of
lower power (part thereof), but also by its ruling adopted in the
constitutional justice case it can recognise such legal
regulation as being in conflict with legal acts of higher power,
inter alia the Constitution. However, in order that the
Constitutional Court accept to consider a petitioner wherein a
real or alleged legal gap, inter alia legislative omission, is
disputed, let alone that the Constitutional Court would be able
by its rulings to recognise corresponding legal regulation as
being in conflict with legal acts of higher power, inter alia the
Constitution, it is necessary to follow certain conditions, which
are defined in the jurisprudence of the Constitutional Court
(inter alia in the aforesaid Constitutional Court rulings and
decisions), namely: if the laws and other legal acts (parts
thereof) of lower power do not establish certain legal
regulation, the Constitutional Court has constitutional powers to
recognise these laws or other legal acts (parts thereof) as being
in conflict with the Constitution or other legal acts of higher
power in cases when due to the fact that the said legal
regulation is not established in precisely the investigated laws
or other legal acts (precisely in the investigated parts
thereof), the principles and/or norms of the Constitution, the
provisions of other legal acts of higher power might be violated;
however, in the cases when the law or other legal act (part
thereof), which is disputed by the petitioner and which is
investigated by the Constitutional Court, does not establish
certain legal regulation which, under the Constitution (and if a
substatutory act (part thereof) of the Seimas, and act (part
thereof) of the President of the Republic or the Government is
disputedalso under the laws) need not be established precisely
in the disputed legal act (precisely in that part thereof), the
Constitutional Court holds that the matter of investigation is
absent in the case on the petition of the petitionerthis is the
basis to dismiss the instituted legal proceedings (if a
respective petition was accepted at the Constitutional Court and
preparation of a constitutional justice case for the
Constitutional Court hearing began) or to dismiss the case (if
the constitutional justice case has already been investigated in
the Constitutional Court hearing).
8. Attention is to be paid to the fact that, while deciding
whether the Constitutional Court enjoys, under the Constitution,
the powers to recognise a legal gap (or other absence of explicit
legal provisions in that legal act) of lower power as conflicting
with the Constitution or other legal act of higher power, it is
impossible to confine oneself solely to the doctrinal provision
(statement) "if the laws (parts thereof) do not establish certain
legal regulation, the Constitution Court enjoys the
constitutional powers to investigate the compliance of these laws
(parts thereof) with the Constitution in the cases when due to
the fact that the said legal regulation has not been established
in particularly those laws (parts thereof) the principles and/or
norms of the Constitution might be violated" of the
Constitutional Court decision of 6 May 2003. It is also necessary
to take account of how the said legal gap appeared: whether it is
legislative omission, created by a law-making action of the
subject who passed a corresponding legal act (i.e. due to the
fact that, in the course of passage of this legal act, the legal
relations that should have been regulated precisely in that legal
act (precisely in that part thereof), were not regulated
precisely in that legal act (precisely in that part thereof)),
whether this legal gap appeared due to other circumstances, for
example, due to the fact that by its ruling the Constitutional
Court had recognised that the legal regulation in a certain legal
act (part thereof) of lower power was in conflict with the
Constitution or other legal act of higher power. In the latter
case, as mentioned, there are no grounds to state the presence of
legislative omission; to the contrary, in this situation, under
the Constitution, a corresponding subject of law-making (provided
corresponding legal relations have to be legally regulated) is
under obligation to change the no longer valid legal regulation
so that the newly established legal regulation would not be in
conflict with a corresponding legal act of higher power, inter
alia (and, first of all) with the Constitution.
A different concept of legislative omission, as well as a
different construction of the powers of the Constitutional Court
to investigate the compliance of legal acts of lower power with
legal acts of higher power, inter alia (and, first of all) with
the Constitution, and to recognise, by its rulings, that the
legal gaps present in those legal acts (parts thereof) of lower
power are in conflict with legal acts of higher power, inter alia
the Constitution, namely the construction that, purportedly, the
Constitutional Court may or must investigate also such legal gaps
which are not the consequence of an action of the law-making
subject that issued a certain legal act, for example, such legal
gaps where certain legal relations have not even been begun to be
regulated by any legal acts, although there is a need for their
legal regulation, as well as such legal gaps or other
indeterminacies, which could appear after the Constitutional
Court recognised by its ruling that a certain legal act (part
thereof) is in conflict with a legal act of higher power, inter
alia the Constitution, would deny the essence of legislative
omission as the consequence of an action of the law-making
subject that issued the corresponding legal act. In addition, an
assumption that, purportedly, the Constitutional Court may or
must investigate also such legal gaps or other indeterminacies,
which appeared after the Constitutional Court itself recognised
by its ruling that that a certain legal act (part thereof) is in
conflict with a legal act of higher power, inter alia the
Constitution, would mean that the Constitutional Court, while
acting within its constitutional competence, by the said ruling
created the legal situation (i.e. that it virtually created new
legal regulation instead of that recognised as conflicting with a
legal act of higher power, inter alia the Constitution), which is
incompatible with the Constitution or other legal act of higher
power; such construction of the Constitutional Court powers to
recognise, by its ruling, that legal gaps are in conflict with
the Constitution, would in essence distort and even deny the
essence and meaning of constitutional review and constitutional
justice.
By the said assumption one would also ignore the fact that
under Paragraphs 1 and 2 of Article 105 of the Constitution the
Constitutional Court investigates whether precisely legal acts,
but not non-adoption of law-making decisions by state
institutions (the Seimas, the President of the Republic, the
Government), i.e. avoidance or delay to adopt such decisions, as
well as failure to act, which is determined by other motives. It
also needs to be emphasised that, as mentioned, under Paragraph 1
of Article 107 of the Constitution, a law (or part thereof) of
the Republic of Lithuania or other act (or part thereof) of the
Seimas, act of the President of the Republic, act (or part
thereof) of the Government may not be applied from the day of
official promulgation of the decision of the Constitutional Court
that the act in question (or part thereof) is in conflict with
the Constitution; it means that every legal act (part thereof) of
the Seimas, the President of the Republic or the Government, as
well as that passed by referendum, which by a Constitutional
Court decision (ruling) is recognized as being in conflict with a
certain legal act of higher power, inter alia (and, first of all)
with the Constitution, is removed from the Lithuanian legal
system for good and one will never be able to apply it again.
After all, if the constitutional empowerments of the
Constitutional Court were interpreted as those including also the
(alleged) powers to investigate and adopt a decision that the
fact that state institutions do not adopt law-making decisions,
when no legal act is passed at all, is in conflict with the
Constitution or other legal act of higher power, then it would
become completely unclear, how in such cases Paragraph 1 of
Article 107 of the Constitution (which is a directly applicable
act (Paragraph 1 of Article 6 of the Constitution)) must be
applied, since in such cases there is no legal act (part thereof)
at all, which may be disputed by the subjects specified in the
Constitution at the Constitutional Court. Thus, the said
assumption would deny and distort in essence also the concept of
the constitutional legal effects of Constitutional Court acts.
It has been held that after the Constitutional Court has
recognised by its ruling that a legal act (part thereof) of lower
power is in conflict with a legal act of higher power, inter alia
the Constitution, a constitutional duty arises to a corresponding
law-making subject to recognise such legal act (part thereof) as
no longer valid or, if it is impossible to do without the
corresponding legal regulation of the social relations in
question, to change it so that the newly established legal
regulation is not in conflict with legal acts of higher power,
inter alia (and, first of all) the Constitution. Until this has
not been done, the corresponding legal gap (which, as emphasised
in this Constitutional Court decision, is not legislative
omission) persists. In order to remove it some time might be
necessary. However, even the fact that this time might be quite
lengthy, in itself does not mean that the Constitutional Court is
granted the powers to investigate the compliance of the same
legal act with respect to legal acts of higher power, inter alia
the Constitution, which in the same aspect has already been
investigated by the Constitutional Court in an earlier considered
constitutional justice case, and upon investigation of which and
entry into force of the corresponding Constitutional Court ruling
the said legal gap precisely appeared.
Thus, the Constitutional Court, which, under the
Constitution, enjoys exclusive powers to investigate and adopt
decisions regarding any consequences of law-making decisions
(actions) of the Seimas, the President of the Republic or the
Government, i.e. regarding the compliance of legal acts (parts
thereof) with legal acts of higher power, inter alia (and, first
of all) the Constitution, does not have any powers, under
Paragraphs 1 and 2 of Article 105 and Paragraph 1 of Article 107
of the Constitution, to investigate non-adoption of law-making
decisions by state institutions, the compliance of legal acts
adopted by which with the Constitution is investigated by the
Constitutional Court, i.e. avoidance and delay to adopt such
decisions, as well as failure to act, which is determined by
other motives, even though in the legal system there appear gaps
or other indeterminacies due to such failure to act. Thus, the
subjects pointed out in the Constitution, which can dispute the
compliance of precisely the legal acts (parts thereof) that were
adopted by the Seimas, the President of the Republic, or the
Government, or the compliance of legal acts (parts thereof)
adopted by referendum with legal acts of higher power, inter alia
the Constitution, cannot dispute the avoidance and delay to adopt
such law-making decisions or failure to act, which is determined
by other motives, due to which corresponding legal acts have not
been passed, including those which have to be passed so that, by
taking account of Constitutional Court acts, such legal
regulation would be established, which would be in compliance
with the Constitution or other legal acts of higher power.
If a corresponding law-making subject has not passed a
legal act (acts) (parts thereof) whereby a new (different) legal
regulation would be established instead of the legal act (parts
thereof) recognised by the Constitutional Court as conflicting
with a legal act of higher power, inter alia the Constitution,
also if the said subject has not passed a legal act (acts) (parts
thereof) whereby the legal act (part thereof) recognised by the
Constitutional Court as conflicting with a legal act of higher
power, inter alia the Constitution, is recognised as no longer
valid, then, as it was held in this Constitutional Court
decision, there is no legal act which may be disputed by the
subjects specified in the Constitution at the Constitutional
Court; thus, in such case there is no legal act (part thereof)
with whose respect the Constitutional Court might exercise
constitutional control.
9. The jurisprudence of the Constitutional Court has stated
more than once the imperative arising from the constitutional
principle of a state under the rule of law and other provisions
of the Constitution (inter alia Paragraph 1 of Article 30 of the
Constitution which provides that the person whose constitutional
rights or freedoms are violated shall have the right to apply to
court), whereby a person, who thinks that his rights or freedoms
are violated, has the absolute right to an independent and
impartial courtan arbiter, which would solve the dispute. Along
with other things, it has been held that the constitutional right
of the person to apply to court cannot be artificially
restricted, nor that the implementation of this right may be
unreasonably burdened; that also pre-judicial procedure of
consideration of disputes may be established, however, it is not
permitted to establish any such legal regulation which would deny
the right of the person who thinks that his rights or freedoms
have been violated to defend his rights or freedoms in court;
that every person, who thinks that his rights or freedoms have
been violated, has the right to protect his rights and freedoms
in court; that the defence of his violated rights is guaranteed
to the person regardless of his legal status; that the violated
rights of the person, inter alia the acquired rights, as well as
legitimate interests must be protected regardless of whether they
are directly consolidated in the Constitution; that the rights of
the person must be protected not formally, but in reality and in
an effective manner against unlawful actions of private persons
as well as against those of state institutions or officials
(Constitutional Court rulings of 6 December 1995, 1 October 1997,
5 February 1999, 21 December 1999, 8 May 2000, 19 September 2000,
12 February 2001, 5 June 2001, 12 July 2001, 2 July 2002, 23
October 2002, 4 March 2003, 10 June 2003, 17 August 2004, 13
December 2004, 29 December 2004, 7 February 2005, 10 November
2005, 16 January 2006, 28 March 2006, 9 May 2006, and 6 June
2006). If the constitutional right of the person to apply to
court were not ensured, the generally recognised legal principle
ubi ius, ibi remediumif there is a certain right (freedom),
there must be a measure for its protectionwould be disregarded.
Such legal situation where a certain right or freedom of the
person cannot be defended, also by means of the judicial
procedure, although the person himself thinks that this right or
freedom has been violated, is, under the Constitution,
impossible, nor does the Constitution tolerate this.
9.1. Therefore, the fact that the subjects specified in the
Constitution may not dispute in the Constitutional Court such
failure of a law-making subject to act, where, instead of the
legal regulation that was recognised by the Constitutional Court
as being in conflict with a legal act of higher power, inter alia
the Constitution, it has not passed a legal act (acts) (parts
thereof) which establish a new (different) legal regulation
harmonised with the said legal acts of higher power, inter alia
the Constitution, while the Constitutional Court does not have
powers to investigate non-adoption of such law-making decisions,
does not mean that the aforementioned persons cannot defend their
rights and freedoms (as well as in court) at all, which are
violated because the said law-making decisions have not been
adopted. The general legal principle ubi ius, ibi remedium, the
provision of Paragraph 1 of Article 6 of the Constitution that
the Constitution shall be a directly applicable act, the
constitutional principle of responsible governance, the provision
of Paragraph 3 of Article 5 of the Constitution that state
institutions shall serve the people, the provision of Article 18
of the Constitution that human rights and freedoms shall be
innate, as well as the right of the person who thinks that his
rights or freedoms have been violated to apply to court, which is
consolidated in the Constitution, imply not only the fact that in
such cases the rights, freedoms, legitimate interests and
legitimate expectations must and may be defended by means of
construction of the Constitution and direct application of its
provisions, but also that such protection must be guaranteed by
courts.
9.2. It has been held in this Constitutional Court decision
that legal gaps (including legislative omission) which are in
legal acts of lower power can be filled ad hoc, when courts
within their competence decide cases on an individual social
relation and when they apply (and construe) law. Therefore, in
cases where, instead of the legal regulation that was recognised
by the Constitutional Court as being in conflict with a legal act
of higher power, inter alia the Constitution, a corresponding
law-making subject has not passed a legal act (acts) (parts
thereof) which establish a new (different) legal regulation
harmonised with the said legal acts of higher power, inter alia
the Constitution, the courts have a constitutional duty to ensure
the rights and freedoms of the person who applies to court
regarding violation of his rights or freedoms, and they have to
ensure other constitutional values; thus, the courts, doubtless
to say, enjoy the powers which stem from the Constitution to
apply inter alia the general principles of law, as well as legal
acts of higher power, and, first of all, the Constitutionsupreme
law; otherwise, one would have to hold that the Constitution
itself prohibits the courts from administering justice, but this
would absolutely be groundless from the constitutional
standpoint. In the course of application of law, also in cases
where, instead of the legal regulation that was recognised by the
Constitutional Court as being in conflict with a legal act of
higher power, inter alia the Constitution, a corresponding law-
making subject has not passed a legal act (acts) (parts thereof)
which establish a new (different) legal regulation harmonised
with the said legal acts of higher power, inter alia the
Constitution, the courts must follow inter alia the
constitutional concept of human rights and freedoms, the maxim
recognising the innate nature of human rights and freedoms
consolidated in the Constitution, the constitutional principles
of a state under the rule of law, justice, legal certainty and
legal security, proportionality, proper legal process, and of
equal rights of persons, as well as the constitutional principle
of legitimate expectations (which, as it was held in the
Constitutional Court ruling of 13 December 2004, implies that in
certain, exceptional cases one has to protect also such acquired
rights of the person arising from the legal acts recognised later
as being in conflict with the Constitution (substatutory legal
actsas being in conflict with the Constitution and/or the laws),
which, if not defended or protected, would result in greater harm
to the person, other persons, society or the state, than the harm
inflicted in case of total non-defence or non-protection or
partial defence or protection of the said rights). If in cases
where, instead of the legal regulation that was recognised by the
Constitutional Court as being in conflict with a legal act of
higher power, inter alia the Constitution, a corresponding law-
making subject has not passed a legal act (acts) (parts thereof)
which establish a new (different) legal regulation harmonised
with the said legal acts of higher power, inter alia the
Constitution, for certain reasons the courts avoided implementing
their constitutional powers to apply inter alia the general
principles of law, as well as legal acts of higher power, first
of all, the Constitutionsupreme lawand thus avoided ensuring
human rights and freedoms, one would have to hold that the courts
do not stand for their constitutional purpose of administration
of justice, that they ignore the constitutional principles of a
state under the rule of law and justice, the general legal
principle ubi ius, ibi remedium, the provision of Paragraph 1 of
Article 6 of the Constitution that the Constitution shall be an
integral and directly applicable act, also that a person might
experience damage and remain unprotected, his rights and freedoms
as well as legitimate interests and legitimate expectations might
be non-secured only because a corresponding law-making subject,
i.e. a state institution, has not performed its constitutional
dutywhere, instead of the legal regulation that was recognised
by the Constitutional Court as being in conflict with a legal act
of higher power, inter alia the Constitution, a corresponding
law-making subject has not passed a legal act (acts) (parts
thereof) which establish a new (different) legal regulation
harmonised with the said legal acts of higher power, inter alia
the Constitution. Not only would it essentially shatter the
confidence of that person in the state and law, but also, if such
practice became wide-spread, it might create pre-conditions for
thriving of such arbitrariness of state power, where it does not
act in the way it should act, as well as for legal nihilism, and,
in the long run, for distrust in the state and its law to the
greater part of society or even the entire society.
However, it needs to be emphasised that when the courts
execute these constitutional powers, legal gaps are not removed
for goodthey are only filled ad hoc; still, this permits to
ensure the protection of the rights and freedoms of the person,
who applies to court regarding defence of his violated rights,
precisely in that individual social relation due to which the
case is considered in the court of general jurisdiction or in a
specialised court established under Paragraph 2 of Article 111 of
the Constitution. This should also motivate the competent law-
making subject to remove, more speedily and in a proper manner,
the existing legal gap, i.e. to establish the missing legal
regulation instead of the one recognised to be in conflict with
the Constitution.
10. On 29 August 2000, the Seimas adopted the Republic of
Lithuania Law on Remuneration for Work of State Politicians,
Judges and State Officials (having overcome, after a repeated
deliberation, the veto of the President of the Republic, which
had been stated by Decree of the President of the Republic No.
9721 "On Reference of the Republic of Lithuania Law on
Remuneration for Work of State Politicians, Judges and State
Officials, which was adopted by the Seimas of the Republic of
Lithuania, back to the Seimas of the Republic of Lithuania for
Repeated Deliberation", which was stated in connection to the
Republic of Lithuania Law on Remuneration for Work of State
Politicians, Judges and State Officials, which was adopted by the
Seimas on 13 July 2001), which established "the sizes of salaries
and conditions of payment thereof of state politicians, judges
and state officials of the Republic of Lithuania, to whom the
Republic of Lithuania Law on the State Service is not applied"
(Article 1).
In this context, one is to mention the fact that the Law on
Remuneration for Work of State Politicians, Judges and State
Officials, which was adopted by the Seimas on 29 August 2000, was
officially published in the official gazette "Valstybės žinios"
on 7 September 2000.
It was established in Article 8 of the same law (which
later, by the Law on Amending the Law on Remuneration for Work of
State Politicians, Judges and State Officials, which was adopted
by the Seimas on 17 October 2000, was recognised as no longer
valid) it was established that it "shall come into force on 1
August 2000" (save a separately specified exception).
Taking account of the fact that, under the Constitution,
only published laws shall be valid (Paragraph 2 of Article 7 of
the Constitution), of the fact that, according to the general
legal principle lex retro non agit (which is also established in
the Constitution of the Republic of Lithuania), the power of
legal acts must be only prospective (save the cases allowed by
the general legal principle lex benignior retro agit), as well as
of the fact that under Paragraph 1 of Article 70 of the
Constitution, the laws adopted by the Seimas shall come into
force after they are signed and officially promulgated by the
President of the Republic, unless the laws themselves establish a
later date for their coming into force, it is to be held that the
provisions of the Law on Amending the Law on Remuneration for
Work of State Politicians, Judges and State Officials, which was
adopted by the Seimas on 29 August 2000, could be applied only as
from 7 September 2000, after this law had been published in the
official gazette "Valstybės žinios", and that it could not be
applied to any relations, which appeared before that date.
Alongside, it needs to be noted that neither the time of
the adoption, official publishing and entry into force of the Law
on Amending the Law on Remuneration for Work of State
Politicians, Judges and State Officials, nor the date of the
beginning of the application of this law, nor other circumstances
related therewith are a matter of investigation in this
constitutional justice case.
11. Until the entry into force of the Constitutional Court
ruling of 12 July 2001, the Law on Remuneration for Work of State
Politicians, Judges and State Officials (wording of 29 August
2000) was amended and/or supplemented: by the Law on Amending the
Law on Remuneration for Work of State Politicians, Judges and
State Officials, which was adopted by the Seimas on 17 October
2000; by the Republic of Lithuania Law on Amending Article 7 of
the Law on Remuneration for Work of State Politicians, Judges and
State Officials, which was adopted by the Seimas on 27 March
2001; the Republic of Lithuania Law on Amending Article 2 of the
Law on Remuneration for Work of State Politicians, Judges and
State Officials and Chapter IV of the Appendix of the Same Law,
which was adopted by the Seimas on 8 May 2001; and the Republic
of Lithuania Law on Amending Article 2 of the Law on Remuneration
for Work of State Politicians, Judges and State Officials and the
Appendix of the Same Law, which was adopted by the Seimas on 24
May 2001.
12. On 12 July 2001, in the constitutional justice case
subsequent to petitions of petitionersthe First Vilnius City
Local Court, the Higher Administrative Court, the Vilnius
Regional Administrative Court (in all, eleven petitions of these
petitioners, which are given here as a summary), requesting to
investigate whether Article 4, Paragraphs 1 and 3 of Article 5,
Article 7 of the Law on Remuneration for Work of State
Politicians, Judges and State Officials, as well as Chapter II of
the Appendix "Official Salaries of Judges" to the Same Law, the
Law on Amending Article 7 of the Law on Remuneration for Work of
State Politicians, Judges and State Officials, Appendix 6 to the
Republic of Lithuania Law on the Approval of the Financial
Indices of the 2000 State Budget and the Budgets of Local
Governments, Article 9 of the Republic of Lithuania Law on
Amending the Law on the Approval of the Financial Indices of the
2000 State Budget and the Budgets of Local Governments,
Government Resolution No. 499 "On the Temporary Experimental
Procedure for Remuneration for Work of Heads of State Power,
State Administration and Law Enforcement Bodies and of Other
Officials" of 29 November 1991, Government Resolution No. 666 "On
Remuneration for Work of Judges of Courts, Officials and Other
Employees of the Prosecutor's Office and the State Security
Department of the Republic of Lithuania" of 24 June 1997,
Government Resolution No. 1494 "On the Partial Amendment of
Government of the Republic of Lithuania Resolution No. 689 'On
Remuneration for Work of Chief Officials and Officers of Law and
Order Institutions and of Law Enforcement and Control
Institutions' of 30 June 1997'" of 28 December 1999 were not in
conflict with Articles 5 and 109, Paragraph 1 of Article 113 and
Paragraph 1 of Article 114 of the Constitution and the
constitutional principle of a state under the rule of law, the
Constitutional Court adopted the Ruling "On the compliance of
Paragraphs 1 and 2 of Article 4, Paragraphs 1 and 3 of Article 5,
Item 1 of Paragraph 3, Paragraphs 4, 5 and 6 of Article 7 of the
Republic of Lithuania Law on Remuneration for Work of State
Politicians, Judges and State Officials, as well as Chapter II of
the Appendix to the same law, Appendix 6 to the Republic of
Lithuania Law on the Approval of the Financial Indices of the
2000 State Budget and the Budgets of Local Governments, Article 9
of the Republic of Lithuania Law on Amending the Law on the
Approval of the Financial Indices of the 2000 State Budget and
the Budgets of Local Governments, Government of the Republic of
Lithuania Resolution No. 499 'On the Temporary Experimental
Procedure for Remuneration for Work to Heads and Other Officials
of State Power, State Administration and Law Enforcement Bodies'
of 29 November 1991, Government of the Republic of Lithuania
Resolution No. 666 'On Remuneration for Work of Judges of Courts,
Officials and Other Employees of the Prosecutor's Office and the
State Security Department of the Republic of Lithuania' of 24
June 1997, Government of the Republic of Lithuania Resolution No.
1494 'On the Partial Amendment of Government of the Republic of
Lithuania Resolution No. 689 "On Remuneration for Work of Chief
Officials and Officers of Law and Order Institutions and of Law
Enforcement and Control Institutions' of 30 June 1997"' of 28
December 1999 with the Constitution of the Republic of Lithuania"
whereby it inter alia recognised that:
- Item 1 of Paragraph 3 of Article 7 (wordings of 29 August
2000, 17 October 2000 and 27 March 2001), Paragraph 5 of Article
7 (wordings of 29 August 2000 and 27 March 2001) of the Law on
Remuneration for Work of State Politicians, Judges and State
Officials, the provision of Paragraph 6 of Article 7 of the same
law establishing the transitional period (during which judges'
remuneration of work had to be reduced) and Chapter II entitled
"Official Salaries of Judges" of the Appendix to the same law to
the extent that it had established reduction of remuneration for
work of the judges whose remuneration for work is bigger than the
remuneration for work of judges established in this law were in
conflict with Article 5, Article 109, Paragraph 1 of Article 114
of the Constitution and the constitutional principle of a state
under the rule of law;
- Paragraph 4 of Article 7 of the Law on Remuneration for
Work of State Politicians, Judges and State Officials to the
extent that it established that the remuneration for work of the
judges appointed to the post of a judge during the transitional
period (during which judges' remuneration of work had to be
reduced) is established and computed on the basis of the
provisions and formulas of Article 7 of this law which establish
reduction of judges' remuneration conflict with Article 5,
Article 109, Paragraph 1 of Article 114 of the Constitution of
the Republic of Lithuania and the constitutional principle of a
state under the rule of law.
13. In this context, it needs to be noted that after the
Constitutional Court ruling of 12 July 2001 had come into force,
the explicit legal regulation (the explicit formulation of the
provisions set forth therein, the text of the articles parts
thereof) established in Item 1 (wording of 27 March 2001) of
Paragraph 3, Paragraph 4 (wording of 29 August 2000), Paragraph 5
(wording of 27 March 2001) and Paragraph 6 (wording of 29 August
2000) of Article 7 of the Law on Remuneration for Work of State
Politicians, Judges and State Officials (wording of 29 August
2000 with subsequent amendments and supplements), and Chapter II
entitled "Official Salaries of Judges" of the Appendix (wording
of 29 August 2000) to the same law remained the same as it had
been before the entry into force of the Constitutional Court
ruling of 12 July 2001.
13.1. Paragraph 3 (wording of 29 August 2000) of Article 7
titled "The Procedure for the Implementation of this Law" of the
Law on Remuneration for Work of State Politicians, Judges and
State Officials, Item 1 whereof to the extent that, as it was
defined by the Constitutional Court, "it establishes reduction of
remuneration for work of the judges whose remuneration for work
is bigger than the remuneration for work of judges established in
this law", was recognised by the Constitutional Court ruling of
12 July 2001 to be in conflict with the Constitution, was set
forth as follows:
"3. State politicians, judges and state officials,
1) whose average remuneration for work computed under the
procedure established by the Government on the basis of the
official remuneration (official salaries) received during the
preceding three months and of the established extra pays and
bonuses of the preceding twelve months (hereinafter referred to
as the former remuneration for work) is bigger than the
remuneration for work established in this Law shall, upon this
Law going into effect, be paid the remuneration for work that
they will have been paid until then and it shall not be increased
in 2000. During the established transitional period (from 1
January 2001 till 1 January 2003) the former remuneration for
work paid until 1 January 2001 shall be reduced by computing the
appertaining remuneration for work for every month (until it
becomes equal with the remuneration for work established in this
Law) by the following formula:
A = C (1 - M).
Here:
A means the appertaining remuneration for work during the
transitional period;
C means the former remuneration for work;
M means the coefficient of recomputation of the
remuneration for work, gradually decreasing the former
remuneration for work. The following coefficients of the
transitional period shall be established:
-----------+----------------------+-----------------------------+
Years |2001 |2002 |
-----------+--------+-------------+--------------+--------------+
Half-years|I |II |I |II |
-----------+--------+-------------+--------------+--------------+
M |0.2 |0.4 |0.65 |0.9 |
-----------+--------+-------------+--------------+--------------+
2) whose former remuneration for work is smaller than the
remuneration for work established in this Law, shall be paid
bigger remuneration for work the size of which shall be attained
gradually, by computing every month, during the transitional
period, the remuneration for work appertaining to a state
politician, judge or state official by the following formula:
A = [(B - C) x D] +C.
Here:
A means the appertaining remuneration for work during the
transitional period;
B means the remuneration for work established in this Law;
C means the former remuneration for work;
D means the coefficient of recomputation of the
remuneration for work, gradually increasing the former
remuneration for work. The following coefficients of the
transitional period shall be established:
---------+--------+--------+--------+--------+--------+---------+
Years |2000 |2001 |2002 |2003 |2004 |2005 |
---------+--------+--------+--------+--------+--------+---------+
D |0 |0.1 |0.3 |0.5 |0.7 |0.9" |
---------+--------+--------+--------+--------+--------+---------+
13.2. Paragraph 3 (wording of 17 October 2000, established
by the Seimas by the Law on Amending the Law on Remuneration for
Work of State Politicians, Judges and State Officials which was
adopted on the same day, by Article 3 whereof Item 1 (wording of
29 August 2000) of Paragraph 3 of Article 7 of the Law on
Remuneration for Work of State Politicians, Judges and State
Officials was amended and set forth in a different way) of
Article 7 titled "The Procedure for the Implementation of this
Law" of the Law on Remuneration for Work of State Politicians,
Judges and State Officials, Item 1 whereof to the extent that, as
it was defined by the Constitutional Court, "it establishes
reduction of remuneration for work of the judges whose
remuneration for work is bigger than the remuneration for work of
judges established in this law", was recognised by the
Constitutional Court ruling of 12 July 2001 to be in conflict
with the Constitution, was set forth as follows:
"3. State politicians, judges and state officials,
1) whose average remuneration for work computed under the
procedure established by the Government on the basis of the
official remuneration (official salaries) received during the
preceding three months and of the established extra pays and
bonuses of the last twelve months (hereinafter referred to as the
former remuneration for work) is bigger than the remuneration for
work established in this Law shall, upon this Law going into
effect, be paid the remuneration for work that they will have
been paid until then and it shall not be increased in 2000.
During the established transitional period (from 1 January 2001
till 1 January 2003) the former remuneration for work paid until
1 January 2001 shall be reduced by computing the appertaining
remuneration for work for every month (until it becomes equal
with the remuneration for work established in this Law) by the
following formula:
A = C - [(C - B) x M].
Here:
A means the appertaining remuneration for work during the
transitional period;
C means the former remuneration for work;
B means the remuneration for work of a state politician,
judge or state official established in this Law;
M means the coefficient of recomputation of the
remuneration for work, gradually decreasing the former
remuneration for work. The following coefficients of the
transitional period shall be established:
------------+-------------------------+-------------------------+
Years |2001 |2002 |
------------+------------+------------+------------+------------+
Half-years |I |II |I |II |
------------+------------+------------+------------+------------+
M |0.2 |0.4 |0.65 |0.9" |
------------+------------+------------+------------+------------+
2) whose former remuneration for work is smaller than the
remuneration for work established in this Law, shall be paid
bigger remuneration for work the size of which shall be attained
gradually, by computing every month, during the transitional
period, the remuneration for work appertaining to a state
politician, judge or state official by the following formula:
A = [(B - C) x D] +C.
Here:
A means the appertaining remuneration for work during the
transitional period;
B means the remuneration for work established in this Law;
C means the former remuneration for work;
D means the coefficient of recomputation of the
remuneration for work, gradually increasing the former
remuneration for work. The following coefficients of the
transitional period shall be established:
---------+--------+--------+--------+--------+--------+---------+
Years |2000 |2001 |2002 |2003 |2004 |2005 |
---------+--------+--------+--------+--------+--------+---------+
D |0 |0.1 |0.3 |0.5 |0.7 |0.9" |
---------+--------+--------+--------+--------+--------+---------+
13.3. Paragraph 3 (wording of 27 Mach 2001, established by
the Seimas by the Law on Amending Article 7 of the Law on
Remuneration for Work of State Politicians, Judges and State
Officials which was adopted on the same day, by Article 3 whereof
Item 1 (wording of 17 October 2000) of Paragraph 3 of Article 7
of the Law on Remuneration for Work of State Politicians, Judges
and State Officials was amended and set forth in a different way)
of Article 7 titled "The Procedure for the Implementation of this
Law" of the Law on Remuneration for Work of State Politicians,
Judges and State Officials, Item 1 whereof to the extent that, as
it was defined by the Constitutional Court, "it establishes
reduction of remuneration for work of the judges whose
remuneration for work is bigger than the remuneration for work of
judges established in this law", was recognised by the
Constitutional Court ruling of 12 July 2001 to be in conflict
with the Constitution, was set forth as follows:
"3. State politicians, judges and state officials,
1) whose average remuneration for work computed under the
procedure established by the Government on the basis of the
official remuneration (official salaries) received during the
preceding three months and of the established extra pays and
bonuses of the preceding twelve months (hereinafter referred to
as the former remuneration for work) is bigger than the
remuneration for work established in this Law shall, upon this
Law going into effect, be paid the remuneration for work that
they will have been paid until then and it shall not be increased
in 2000. During the established transitional period (from 1
January 2001 till 1 July 2003) the former remuneration for work
paid until 1 January 2001 shall be reduced by computing the
appertaining remuneration for work for every month (until it
becomes equal with the remuneration for work established in this
Law) by the following formula:
A = C - [(C - B) x M].
Here:
A means the appertaining remuneration for work during the
transitional period;
C means the former remuneration for work;
B means the remuneration for work of a state politician,
judge or state official established in this Law;
M means the coefficient of recomputation of the
remuneration for work, gradually decreasing the former
remuneration for work. The following coefficients of the
transitional period shall be established:
----------+------------------+--------------------+-------------+
Years |2001 |2002 |2003 |
----------+--------+---------+----------+---------+-------------+
Half- |I |II |I |II |I |
years | | | | | |
----------+--------+---------+----------+---------+-------------+
M |0 |0.4 |0.6 |0.8 |0.9" |
----------+--------+---------+----------+---------+-------------+
2) whose former remuneration for work is smaller than the
remuneration for work established in this Law, shall be paid
bigger remuneration for work the size of which shall be attained
gradually, by computing every month, during the transitional
period, the remuneration for work appertaining to a state
politician, judge or state official by the following formula:
A = [(B - C) x D] +C.
Here:
A means the appertaining remuneration for work during the
transitional period;
B means the remuneration for work established in this Law;
C means the former remuneration for work;
D means the coefficient of recomputation of the
remuneration for work, gradually increasing the former
remuneration for work. The following coefficients of the
transitional period shall be established:
---------+--------+--------+--------+--------+--------+----------
Years |2000 |2001 |2002 |2003 |2004 |2005
---------+--------+--------+--------+--------+--------+----------
D |0 |0.1 |0.3 |0.5 |0.7 |0.9"
---------+--------+--------+--------+--------+--------+----------
13.4. Paragraph 4 (wording of 29 August 2000, which was
amended by neither the Law on Amending the Law on Remuneration
for Work of State Politicians, Judges and State Officials, which
was adopted by the Seimas on 17 October 2000, nor the Law on
Amending Article 7 of the Law on Remuneration for Work of State
Politicians, Judges and State Officials, which was adopted by the
Seimas on 27 March 2001) of Article 7 titled "The Procedure for
the Implementation of this Law" of the Law on Remuneration for
Work of State Politicians, Judges and State Officials, Item 1
whereof to the extent that, as it was defined by the
Constitutional Court, "the remuneration for work of the judges
appointed to the post of a judge during the transitional period
is established and computed on the basis of the provisions and
formulas of Article 7 of this law which establish reduction of
judges' remuneration", was recognised by the Constitutional Court
ruling of 12 July 2001 to be in conflict with the Constitution,
was set forth as follows: "During the transitional period, the
remuneration for work for persons either elected or appointed to
the post of a state politician, judge or state official shall be
established and computed under the provisions of this Article and
aforesaid formulas wherein C means the size of the remuneration
for work of persons either elected or appointed to the post of a
state politician, judge or state official which was computed
under the conditions of remuneration for work that had been in
force until this Law went into effect."
13.5. Paragraph 5 (wording of 29 August 2000, not amended
by the Law on Amending the Law on Remuneration for Work of State
Politicians, Judges and State Officials, which was adopted on 17
October 2000) of Article 7 titled "The Procedure for the
Implementation of this Law" of the Law on Remuneration for Work
of State Politicians, Judges and State Officials, Item 1 whereof
to the extent that, as it was defined by the Constitutional
Court, "it establishes reduction of remuneration for work of the
judges whose remuneration for work is bigger than the
remuneration for work of judges established in this law", was
recognised by the Constitutional Court ruling of 12 July 2001 to
be in conflict with the Constitution, was set forth as follows:
"As of 1 January 2006, state politicians, judges, state officials
must be paid the remuneration for work established in this Law."
13.6. Paragraph 5 (wording of 27 March 2001, established by
the Seimas by the Law on Amending Article 7 of the Law on
Remuneration for Work of State Politicians, Judges and State
Officials, which was adopted on the same day, by Article 2
whereof Paragraph 5 (wording of 29 August 2000) of Article 7 of
the Law on Remuneration for Work of State Politicians, Judges and
State Officials was amended and set forth in a different way) of
Article 7 titled "The Procedure for the Implementation of this
Law" of the Law on Remuneration for Work of State Politicians,
Judges and State Officials, Item 1 whereof to the extent that, as
it was defined by the Constitutional Court, "it establishes
reduction of remuneration for work of the judges whose
remuneration for work is bigger than the remuneration for work of
judges established in this law", was recognised by the
Constitutional Court ruling of 12 July 2001 to be in conflict
with the Constitution, was set forth as follows: "After the
transitional period is over, state politicians, judges and state
officials must be paid the remuneration for work established in
this Law."
13.7. Paragraph 6 (wording of 29 August 2000, which was
amended by neither the Law on Amending the Law on Remuneration
for Work of State Politicians, Judges and State Officials, which
was adopted by the Seimas on 17 October 2000, nor the Law on
Amending Article 7 of the Law on Remuneration for Work of State
Politicians, Judges and State Officials, which was adopted by the
Seimas on 27 March 2001) of Article 7 titled "The Procedure for
the Implementation of this Law" of the Law on Remuneration for
Work of State Politicians, Judges and State Officials, whose
provision was, as defined by the Constitutional Court ruling of
12 July 2001, "establishing the transitional period", to the
extent that, as it was defined by the Constitutional Court, "it
establishes reduction of remuneration for work of the judges
whose remuneration for work is bigger than the remuneration for
work of judges established in this law", was recognised by the
Constitutional Court ruling of 12 July 2001 to be in conflict
with the Constitution, was set forth as follows: "While the
remuneration for work is computed for state politicians, judges
and state officials during the transitional period, the size of
the coefficient base of the official salary established in Item 1
of Paragraph 5 of Article 69 of the Republic of Lithuania Law on
the State Service shall be applicable."
13.8. Chapter II titled "Official Salaries of Judges" of
the Annex (wording of 29 August 2000, which was amended by
neither the Law on Amending the Law on Remuneration for Work of
State Politicians, Judges and State Officials, which was adopted
by the Seimas on 17 October 2000, nor the Law on Amending Article
7 of the Law on Remuneration for Work of State Politicians,
Judges and State Officials, which was adopted by the Seimas on 27
March 2001) of the Law on Remuneration for Work of State
Politicians, Judges and State Officials, whose provision to the
extent that, as it was defined by the Constitutional Court, "it
establishes reduction of remuneration for work of the judges
whose remuneration for work is bigger than the remuneration for
work of judges established in this law", was recognised by the
Constitutional Court ruling of 12 July 2001 to be in conflict
with the Constitution, was set forth as follows:
"(MMS sizes)
------+------------------+---------------------------------------
Seq. | Title of | Official salary coefficient
No. +--establishment---+------------+----------+--------+------
| |of chairman |of deputy| of| of
| |or his |chairman |division|judge
| |deputy (in | |chairman|
| |cases of | | |
| |absence of a| | |
| |permanent | | |
| |deputy) | | |
------+------------------+------------+----------+--------+------
1. Constitutional 17 - - 15.5
Court of the
Republic of
Lithuania
2. Supreme Court of 17 - 15.5 14.5
Lithuania
3. Court of Appeal of 15 - 13.5 13
Lithuania
4. Higher 13 - - 11
Administrative
Court
5. Regional courts 12 - 11 10.5
6. Regional 11 - - 10.5
administrative
courts
7. District courts:
7.1 in which 15 or 10 9,5 - 8.5
more judges are
employed
7.2 in which 14 or 9.5 9 - 8.5"
less judges are
employed
-----------------------------------------------------------------
13.9. Later, when the Constitutional Court ruling of 12
July 2001 was already in force, articles (parts thereof), as well
as the Appendix of the Law on Remuneration for Work of State
Politicians, Judges and State Officials were amended and/or
supplemented by: the Republic of Lithuania Law on Supplementing
Article 7 of the Law on Remuneration for Work of State
Politicians, Judges and State Officials, which was adopted by the
Seimas on 18 December 2001; the Republic of Lithuania Law on
Supplementing Article 3 of the Law on Remuneration for Work of
State Politicians, Judges and State Officials, which was adopted
by the Seimas on 26 March 2002; the Republic of Lithuania Law on
Amending and Supplementing Articles 2 and 7 of the Law on
Remuneration for Work of State Politicians, Judges and State
Officials and the Appendix Thereof, which was adopted by the
Seimas on 9 April 2002; the Republic of Lithuania Law on Amending
and Supplementing Articles 2 and 7 of the Law on Remuneration for
Work of State Politicians, Judges and State Officials and the
Appendix Thereof, which was adopted by the Seimas on 2 July 2002;
the Republic of Lithuania Law on Amending Articles 2, 3 and 6 of
the Law on Remuneration for Work of State Politicians, Judges and
State Officials and the Appendix Thereof, which was adopted by
the Seimas on 5 July 2002; the Republic of Lithuania Law on
Amending Article 7 of the Law on Remuneration for Work of State
Politicians, Judges and State Officials, which was adopted by the
Seimas on 10 December 2002; the Republic of Lithuania Law on
Amending Article 2 of the Law on Remuneration for Work of State
Politicians, Judges and State Officials, Recognising Paragraph 1
of Article 7 Thereof as No Longer Valid, and Amending the
Appendix Thereof, which was adopted by the Seimas on 28 January
2003; the Republic of Lithuania Law on Amending and Supplementing
Article 2 of the Law on Remuneration for Work of State
Politicians, Judges and State Officials and the Appendix Thereof,
which was adopted by the Seimas on 25 March 2003; the Republic of
Lithuania Law on Amending and Supplementing Articles 2 and 3 of
the Law on Remuneration for Work of State Politicians, Judges and
State Officials, Supplementing Article 5-1 to the Law and
Amending Appendix III of the Law, which was adopted by the Seimas
on 22 April 2003; the Republic of Lithuania Law on Supplementing
and Amending Article 2 of the Law on Remuneration for Work of
State Politicians, Judges and State Officials, and Amending and
Supplementing the Appendix Thereof, which was adopted by the
Seimas on 3 June 2003; the Republic of Lithuania Law on
Supplementing the Appendix of the Law on Remuneration for Work of
State Politicians, Judges and State Officials, which was adopted
by the Seimas on 18 September 2003; the Republic of Lithuania Law
on Amending Article 2 of the Law on Remuneration for Work of
State Politicians, Judges and State Officials, and Amending
Chapters I and IV of the Appendix Thereof, which was adopted by
the Seimas on 18 December 2003; and by the Republic of Lithuania
Law on Supplementing Chapter I of the Appendix of the Law on
Remuneration for Work of State Politicians, Judges and State
Officials, which was adopted by the Seimas on 15 February 2005.
Item 1 (wording of 27 March 2001) of Paragraph3, Paragraph 4
(wording of 29 August 2000), Paragraph 5 (wording of 27 March
2001), Paragraph 6 (wording of 29 August 2000) of Article 7 of
the Law on Remuneration for Work of State Politicians, Judges and
State Officials as well as Chapter II titled "Official Salaries
of Judges" (wording of 29 August 2000) of the Appendix of this
law, which had been in force until the entry into force of the
Constitutional Court ruling of 12 July 2001, have not been
amended and/or supplemented by the aforesaid laws, except the Law
on Amending and Supplementing Articles 2 and 7 of the Law on
Remuneration for Work of State Politicians, Judges and State
Officials, which was adopted by the Seimas on 9 April 2002, and
the Law on Amending and Supplementing Article 2 of the Law on
Remuneration for Work of State Politicians, Judges and State
Officials, and Amending and Supplementing the Appendix Thereof,
which was adopted by the Seimas on 25 March 2003.
13.9.1. By Article 2 of the Law on Amending and
Supplementing Articles 2 and 7 of the Law on Remuneration for
Work of State Politicians, Judges and State Officials, which was
adopted by the Seimas on 9 April 2002, Paragraph 2 (wording of 29
August 2000; this paragraph, as mentioned, to the extent that, as
it was defined by the Constitutional Court, "the remuneration for
work of the judges appointed to the post of a judge during the
transitional period is established and computed on the basis of
the provisions and formulas of Article 7 of this law which
establish reduction of judges' remuneration", was recognised by
the Constitutional Court ruling of 12 July 2001 to be in conflict
with the Constitution) of Article 7 of the Law on Remuneration
for Work of State Politicians, Judges and State Officials was
supplemented; Paragraph 2 (wording of 9 April 2002) of Article 7
of the Law on Remuneration for Work of State Politicians, Judges
and State Officials was set forth as follows:
"During the transitional period, the remuneration for work
for persons either elected or appointed to the post of a state
politician (save the mayor and his deputy), judge or state
official shall be established and computed under the provisions
of this Article and aforesaid formulas wherein C means the size
of the remuneration for work of persons either elected or
appointed to the post of a state politician, judge or state
official which was computed under the conditions of remuneration
for work that had been in force until this Law went into effect.
In the course of founding a new institution or establishment, in
the founding act or the statutes of the founded institution or
establishment the founder must specify what terms of remuneration
for work, which were valid in respect to similar institutions or
establishments until the entry into force of this Law, are to be
applied during the transitional period."
13.9.2. By Article 2 of the Law on Amending and
Supplementing Article 2 of the Law on Remuneration for Work of
State Politicians, Judges and State Officials, and Amending and
Supplementing the Appendix Thereof, which was adopted by the
Seimas on 25 March 2003, Chapter II titled "Official Salaries of
Judges" (wording of 29 August 2000, this chapter, as mentioned,
to the extent that, as it was defined by the Constitutional
Court, "it establishes reduction of remuneration for work of the
judges whose remuneration for work is bigger than the
remuneration for work of judges established in this law", was
recognised by the Constitutional Court ruling of 12 July 2001 to
be in conflict with the Constitution) of the Annex of the Law on
Remuneration for Work of State Politicians, Judges and State
Officials was amended and supplemented; Chapter II titled
"Official Salaries of Judges" (wording of 25 March 2003) of the
Annex of the Law on Remuneration for Work of State Politicians,
Judges and State Officials was set forth as follows:
"(MMS sizes)
------+------------------+---------------------------------------
Seq. | Title of | Official salary coefficient
No. | establishment +------------+----------+--------+------
| |of chairman |of deputy| of| of
| |or his |chairman |division|judge
| |deputy (in | |chairman|
| |cases of | | |
| |absence of a| | |
| |permanent | | |
| |deputy) | | |
------+------------------+------------+----------+--------+------
1. Constitutional 17 - - 15.5
Court of the
Republic of
Lithuania
2. Supreme Court of 17 - 15.5 14.5
Lithuania
3. Supreme 16 14.5 - 13.75
Administrative
Court of Lithuania
4. Court of Appeal of 15 - 13.5 13
Lithuania
5. Regional courts 12 - 11 10.5
6. Regional 11 - - 10.5
administrative
courts
7. Local courts:
7.1 in which 15 or 10 9,5 - 8.5
more judges are
employed
7.2 in which 14 or 9.5 9 - 8.5"
less judges are
employed
-----------------------------------------------------------------
14. One is to hold that after the Constitutional Court
ruling of 12 July 2001 had come into force (whereby certain
articles (parts thereof) of the Law on Remuneration for Work of
State Politicians, Judges and State Officials were recognised (to
the specified extent) to be in conflict with the Constitution)),
there appeared a legal situation, which is treated by various
subjects (inter alia by certain courts as well as self-government
institutions of judicial power), without excluding, as mentioned,
the Third Vilnius City Local Court, the petitioner in this
constitutional justice case, as a legal gap.
Without even verifying the reasonableness or truth of this
assumption and not deciding in this constitutional justice case
whether the said legal situation is to be assessed as a legal
gap, without analysing, separately and particularly, the content
of the provisions set forth in the specified articles (parts
thereof) and in Chapter II of the Annex of the Law on
Remuneration for Work of State Politicians, Judges and State
Officials, one is to hold:
- the legal regulation of the relations concerning
remuneration of judges, which was established in the Law on
Remuneration for Work of State Politicians, Judges and State
Officials (wording of 29 August 2000 with subsequent amendments
and supplements), which remained in force after the entry into
force of the Constitutional Court ruling of 12 July 2001, is not
exhaustive (since the explicit provisions of the said law are in
force not to the whole extent), not sufficiently defined, it
lacks legal clarity and creates pre-conditions for different
interpretations of the legal regulation of the said relations and
for diverse application of corresponding legal provisions;
- therefore, a duty appeared to the legislator to correct
the legislative regulation of the relations concerning
remuneration of judges so that it not only would be in compliance
with the Constitution, but also that it would be clear and
harmonious, in order that it would not be possible to construe it
in a diverse manner and that it would be impossible to apply its
provisions in a diverse manner;
- although the Law on Remuneration for Work of State
Politicians, Judges and State Officials (wording of 29 August
2000 with subsequent amendments and supplements) was amended and
supplemented many a time, all these amendments and supplements
are not related with the execution of the Constitutional Court
ruling of 12 July 2001, nor the implementation of the provisions
(inter alia the doctrinal ones) of this ruling;
- the legal regulation of the relations concerning
remuneration of judges has not become clearer (at least, in the
aspect pointed out by the petitioner) also after the Law on
Amending and Supplementing Articles 2 and 7 of the Law on
Remuneration for Work of State Politicians, Judges and State
Officials, which was adopted by the Seimas on 9 April 2002, and
the Law on Amending and Supplementing Article 2 of the Law on
Remuneration for Work of State Politicians, Judges and State
Officials, and Amending and Supplementing the Appendix Thereof,
which was adopted by the Seimas on 25 March 2003 came into force,
which inter alia corrected (correspondingly) Paragraph 4 (wording
of 29 August 2000) of Article 7 of the Law on Remuneration for
Work of State Politicians, Judges and State Officials and Chapter
II titled "Official Salaries of Judges" of the Annex (wording of
29 August 2000) of the Law on Remuneration for Work of State
Politicians, Judges and State Officials, which by the
Constitutional Court ruling of 12 July 2001 were recognised (to
the specified extent) to be in conflict with the Constitution,
since the said amendments and supplements of Paragraph 4 (wording
of 29 August 2000) of Article 7 of the Law on Remuneration for
Work of State Politicians, Judges and State Officials and Chapter
II titled "Official Salaries of Judges" of the Annex (wording of
29 August 2000) of the same law, are not related with the
execution of the Constitutional Court ruling of 12 July 2001, nor
the implementation of the provisions (inter alia the doctrinal
ones) of this ruling, either.
15. The legislator, who has the constitutional duty to
correct the legal regulation of the relations concerning
remuneration of judges so that it would be in compliance with the
Constitution, while doing so must pay heed to the official
constitutional doctrine formulated in the jurisprudence of the
Constitutional Court.
15.1. In its acts, the Constitutional Court has formulated
a broad doctrine of judicial power, which encompasses the
provisions designed for the legal regulation of the relations
concerning remuneration of judges. The concept "remuneration of
judges" includes all payments paid to a judge from the State
budget (Constitutional Court decision of 12 January 2000). Under
the Constitution, remuneration of judges must be established by
means of a law, their sizes, as well as the material and social
guarantees established to judges, must be such so that they would
be in line with the constitutional status of the judge and his
dignity, the remuneration of judges, the material and social
guarantees established to them may be differentiated according to
clear criteria, which are known ex ante and which are not related
with administration of justice when cases are decided (for
example, according to the length of time during which the person
works as a judge), the remuneration of the judge may not depend
upon the results of his work. One is also to emphasise the fact
that, as the Constitutional Court has emphasised in its rulings
more than once, the Constitution prohibits reduction of
remuneration and other social guarantees of judges; any attempts
to reduce the remuneration of the judge or his other social
guarantees, or limitation of financing of courts are treated as
encroachment upon the independence of judges and courts
(Constitutional Court rulings of 6 December 1995 and 21 December
1999, decision of 12 January 2000, rulings of 12 July 2001 and 28
March 2006).
15.2. In this context, it needs to be mentioned that, under
Paragraph 4 of Article 111 of the Constitution, the formation and
competence of courts shall be established by the Law on Courts.
While construing Paragraph 4 of Article 111 of the Constitution,
the Constitutional Court held in its rulings of 28 March 2006 and
9 May 2006, that "the Constitution not only obliges the
legislator to establish by the law the establishment and
competence of all the courts of the Republic of Lithuania (thus,
also the status, formation, execution of powers (activity) and
the guarantees for the courts of general jurisdiction, the status
of the judges of these courts, etc.) specified in Paragraph 1 of
Article 111 of the Constitution, but also expressis verbis
consolidates the title of this lawthe Law on Courts" and also
that "such constitutional legal regulation does not mean in
itself that certain relations related to the said relations may
not be regulated by other laws as well"; this imperative of the
legal regulation regarding the legal regulation of courts of
general jurisdiction, which arises from the Constitution, is also
to be applied mutatis mutandis to the legal regulation regarding
the legal regulation of specialised courts established under
Paragraph 2 of Article 111 of the Constitution Constitutional
Court ruling of 28 March 2006). In the de lege ferenda aspect,
one is to emphasise that judges, in view of their office, may not
be attributed to state servants (or officers) (inter alia due to
the fact that it is not permitted to demand that they implement a
certain policy) (Constitutional Court rulings of 6 December 1995,
21 December 1999, and 9 May 2006); differently from other state
servants, judges and courts (the Judiciary), while administering
justice, also execute state power (Paragraph 1 of Article 5 of
the Constitution), which, by the way, is the only among the
branches of state power which is formed not on political, but
professional basis (Constitutional Court rulings of 21 December
1999 and 12 July 2001, conclusion of 31 March 2004, rulings of 28
March 2006, 9 May 2006 and 6 June 2006). Thus, actually, the
legal regulation whereby the relations of remuneration of judges
of all courts specified in Paragraph 1 of Article 111 of the
Constitution and of the specialised courts established under
Paragraph 2 of Article 111 of the Constitution would be
established precisely in the Law on Courts (which, as mentioned,
is expressis verbis specified in Paragraph 4 of Article 111 of
the Constitution) would be in compliance with the Constitution.
It also needs to be mentioned that, under Paragraph 2 of
Article 102 of the Constitution, the status of the Constitutional
Court and the procedure for the execution of its powers shall be
established by the Law on the Constitutional Court. On the basis
of the arguments analogous to those that the relations of
remuneration of judges of all courts specified in Paragraph 1 of
Article 111 of the Constitution and of the specialised courts
established under Paragraph 2 of Article 111 of the Constitution
should be established precisely in the Law on Courts, the
relations of remuneration of justices of the Constitutional Court
are to be regulated in the Law on the Constitutional Court.
15.3. It also needs to be mentioned that, as the
Constitutional Court held in its ruling of 12 July 2001, under
Paragraph 1 of Article 113 of the Constitution, the salaries
received by judges are referred to by the notion "remuneration of
judges", however, in the Law on Remuneration for Work of State
Politicians, Judges and State Officials (wording of 29 August
2000 with subsequent amendments and supplements), by comparing
judges with state politicians and other state officials, a
different notion is employed"remuneration for work of judges";
such an imprecise use of the notion in the law may be treated as
one of the preconditions to deny the specific character and
protection of salaries of judges enshrined in the Constitution;
the legislator is obligated in the law to refer to the
remuneration received by judges by employing the notion
"remuneration of judges" pointed out in the Constitution.
16. It is clear that the time period during which the
legislative regulation had to be regulated so that it would be in
compliance with the Constitution (inter alia its official
construction presented in the Constitutional Court ruling of 12
July 2001) has become too long. This (although, of course, not
only this) creates pre-conditions for appearance of instability
in the professional corps of judges and in the court system, and,
ultimately, it creates pre-conditions for decreasing of public
trust in the judicial power.
It needs to be especially emphasised that the legal
situation determined by the Law on Remuneration for Work of State
Politicians, Judges and State Officials (wording of 29 August
2000 with subsequent amendments and supplements) which, as
mentioned, is treated as a legal gap by courts and judicial self-
government institutions themselves, prompted the judicial self-
government institutions to take also such steps (to adopt law-
making decisions), which, doubtless to say, are to be assessed
critically (it needs to be noted that the corresponding legal
acts are not, nor can they be the matter of investigation (in the
aspect of their compliance with legal acts of higher power, inter
alia the Constitution) in the constitutional justice case at
issue).
For example, it is clear from the case material that at
present, when remuneration of judges is computed, one is
following not only the Law on Remuneration for Work of State
Politicians, Judges and State Officials (wording of 29 August
2000 with subsequent amendments and supplements), but also legal
acts of lower power, which have been issued by institutions of
the executive, inter alia Government Resolution No. 666 "On
Remuneration for Work of Judges of Courts, Officials and Other
Employees of the Prosecutor's Office and the State Security
Department of the Republic of Lithuania" of 24 June 1997,
Government Resolution No. 689 "On Remuneration for Work of Chief
Officials and Officers of Law and Order Institutions and of Law
Enforcement and Control Institutions" of 30 June 1997 (with
subsequent amendments made inter alia by Government Resolution
No. 1494 "On the Partial Amendment of Government of the Republic
of Lithuania Resolution No. 689 'On Remuneration for Work of
Chief Officials and Officers of Law and Order Institutions and of
Law Enforcement and Control Institutions' of 30 June 1997'" of 28
December 1999) as well as Order of the Minister of Justice No.
370 "On Extra Pays to Official Salaries" of 23 December 1999. It
needs to be noted that the said order of the Minister of Justice
has not even been published in the official gazette "Valstybės
žinios", thus, legally it does not exist and may not be applied
under any circumstances; it also needs to be mentioned that it is
established in Item 2 of the aforesaid order of the Minister of
Justice that it shall become no longer valid "upon the entry into
force of the Republic of Lithuania Law on Remuneration for Work
of Judges", however, no law with such title was ever adopted,
besides (if, with reservation concerning its title, the Law on
Remuneration for Work of State Politicians, Judges and State
Officials which was adopted by the Seimas on 29 August 2000 is
regarded as being such a law), no order of the Minister of
Justice was ever issued, whereby, as provided in Order of the
Minister of Justice No. 370 "On Extra Pays to Official Salaries"
of 23 December 1999, this order of the Minister of Justice would
be recognised as no longer valid due to the fact that a law
regulating remuneration of judges came into force, or due to some
other reasons.
It needs to be noted that also the Council of Courts
(which, by the way, was formed under Paragraphs 2 and 5 of
Article 119 of the Law on Courts (wording of 24 January 2002 with
subsequent amendments and supplements) that were recognised to be
in conflict with the Constitution by the Constitutional Court
ruling of 9 May 2006) itself adopted decisions, which regulated
the calculation of size of remuneration of judges and its
payment, namely: the Council of Courts Decision No. 84 "On
Assenting to a Conclusion of Justices of the Civil Cases Division
of the Supreme Court of Lithuania" of 7 March 2003 (whereby inter
alia one assented to the Conclusion "On Paying Extra Pays to
Judges for the Time Served" made at the 14 February 2003 meeting
of justices of the Civil Cases Division of the Supreme Court of
Lithuania (Item 1) and commissioned "all Presidents of courts and
the National Administration of Courts to take measures in order
to ensure the financing of courts, creating conditions to pay an
extra pay to judges for the time served" (Item 3)); the Council
of Courts Decision No. 113 "On Assenting to an Additional
Conclusion of Justices of the Civil Cases Division of the Supreme
Court of Lithuania" of 6 June 2003 (whereby inter alia one
assented to the Conclusion "On Paying Extra Pays to Judges for
the Time Served" made at the 24 April 2003 meeting of justices of
the Civil Cases Division of the Supreme Court of Lithuania). Both
said decisions of the Council of Courts have not been published
in the official gazette "Valstybės žinios"; in addition, they are
based on the general character provision that the Council of
Courts "shall decide other issues of activities of courts, which
are provided for in laws" which is established in Item 20 of
Article 120 9wording of 21 January 20030 of the Law on Courts.
Even without analysing separate provisions consolidated in
the aforesaid legal acts, without their assessment as regards the
compliance with the legal regulation established in the
Constitution and laws, one is to hold that the overall legal
regulation regarding the relations of remuneration of judges is
completely irregular and chaotic. The situation is to be
corrected without delay; the legislative regulation must be
corrected so that it would be in compliance not only with the
Constitution and would be completely clear and harmonious (so
that it would be impossible to interpret it in diverse manner,
nor to apply it in diverse manner), but also that it would not
induce inter alia self-governance institutions of judicial power
to decide, by means of decisions (or other acts), which are of
questionable legal nature (especially with regard to the law-
making subject and law-making procedure) and of questionable
legal power, the questions which, under the Constitution, are
only within the competence of the legislatorthe Seimas.
17. As mentioned, in the opinion of the Third Vilnius City
Local Court, the petitioner in this constitutional justice case,
after the Constitutional Court ruling of 12 July 2001 had come
into force, by which corresponding provisions of the Law on
Remuneration for Work of State Politicians, Judges and State
Officials (wording of 29 August 2000 with subsequent amendments
and supplements) were recognised to be in conflict with the
Constitution, there appeared a legal gap in the legal regulation
of the relations of remuneration of judges, which enables, when
questions of establishment of the size of salaries of judges are
decided, state institutions and officials (inter alia Presidents
of courts) to make judges and courts dependent on outside forces
(inter alia politicians), and to exert influence on them.
Without deciding whether the stated in this Constitutional
Court decision incomprehensiveness, insufficient certainty, and
lack of legal clarity of the legal regulation of relations of
remuneration of judges which is established in the Law on
Remuneration for Work of State Politicians, Judges and State
Officials (wording of 29 August 2000 with subsequent amendments
and supplements) and which remained in force after the
Constitutional Court ruling of 12 July 2001 had come into force,
which create preconditions for different interpretations of the
legal regulation of the said relations and to apply the
corresponding legal provisions in a diverse manner, can be
assessed as a legal gap, one is to hold that the
incomprehensiveness, insufficient certainty, and lack of legal
clarity of the legal regulation of relations of remuneration of
judges which is established in the said law (upon the entry into
force of the Constitutional Court ruling of 12 July 2001) is one
of the features of the overall legal regulation regarding the
relations of remuneration of judges that is discussed in this
Constitutional Court decision. It is also to be held that
regardless of whether the said incomprehensiveness, insufficient
certainty, and lack of legal clarity of the legal regulation are
to be assessed as a legal gap or as shortcomings of different
nature, such legal situation occurred precisely because of the
fact that the legislator has not carried out his constitutional
duty and did not correct the legislative regulation of
remuneration of judges so that it would be in compliance with the
Constitution (inter alia its official construction presented in
the Constitutional Court ruling of 12 July 2001), that it would
be completely clear and harmonious (so that it would be
impossible to interpret it in diverse manner, nor to apply it in
diverse manner) but also that it would not induce inter alia
self-governance institutions of judicial power to decide the
questions which, under the Constitution, are only within the
competence of the legislatorthe Seimas.
18. It has been held in this Constitutional Court decision
that if a legal gap appeared because the Constitutional Court
recognised that certain legal regulation established in a legal
act (part thereof) of lower power is in conflict with the
Constitution or other legal act of higher power, there are no
grounds to hold that there is legislative omission, whose
compliance with a legal act of higher power (inter alia the
Constitution) could be investigated by the Constitutional Court;
an assumption that, purportedly, the Constitutional Court may or
must investigate also such legal gaps or other indeterminacies,
which appeared after by its ruling the Constitutional Court
itself recognised that that a certain legal act (part thereof) is
in conflict with a legal act of higher power, inter alia the
Constitution, would mean that the Constitutional Court, while
acting within its constitutional competence, by the said ruling
created the legal situation (i.e. that it virtually created new
legal regulation instead of that recognised as conflicting with a
legal act of higher power, inter alia the Constitution), which is
incompatible with the Constitution or other legal act of higher
power; such construction of the Constitutional Court powers to
recognise, by its ruling, that legal gaps are in conflict with
the Constitution, would in essence distort and even deny the
essence and meaning of constitutional review and constitutional
justice as well as the concept of the constitutional legal
effects of Constitutional Court acts. It has also been mentioned
that, under the Constitution, the Constitutional Court enjoys no
powers to investigate non-adoption of law-making decisions by
state institutions (the compliance of legal acts passed by which
with legal acts of higher power is investigated by the
Constitutional Court), nor avoidance or delay to adopt such
decisions, as well as failure to act, which is determined by
other motives, even though in the legal system there appear gaps
or other indeterminacies due to such failure to act, also, that
the subjects pointed out in the Constitution cannot dispute the
avoidance and delay to adopt such law-making decisions or failure
to act, which is determined by other motives, due to which
corresponding legal acts have not been passed, including those
which have to be passed so that, by taking account of
Constitutional Court acts, one would establish the legal
regulation that would be in compliance with the Constitution or
other legal acts of higher power.
It has also been held in this Constitutional Court decision
that by its ruling the Constitutional Court can recognise a legal
gap, inter alia legislative omission, as being in conflict with
legal acts of higher power, inter alia the Constitution only in
cases when due to the fact that certain legal regulation is not
established in precisely the investigated laws or other legal
acts (precisely in the investigated parts thereof), the
principles and/or norms of the Constitution, the provisions of
other legal acts of higher power might be violated; however, in
the cases when the law or other legal act (part thereof), which
is disputed by the petitioner and which is investigated by the
Constitutional Court, does not establish certain legal regulation
which, under the Constitution (and if a substatutory act (part
thereof) of the Seimas, and act (part thereof) of the President
of the Republic or the Government is disputedalso under the
laws) need not be established precisely in the disputed legal act
(precisely in that part thereof), the Constitutional Court holds
that the matter of investigation is absent in the case on the
petition of the petitionerthis is the basis to dismiss the
instituted legal proceedings or to dismiss the case.
19. As mentioned, after the Constitutional Court ruling of
12 July 2001 had come into force, a great many amendments to
articles (parts thereof) of the Law on Remuneration for Work of
State Politicians, Judges and State Officials (wording of 29
August 2000 with subsequent amendments and supplements) as well
as a great many of amendments and supplements of the Annex of the
same law were made, but which were not related with the execution
of the Constitutional Court ruling of 12 July 2001, nor with the
implementation of the provisions (inter alia doctrinal ones) of
the said ruling. All the laws by which these amendments and
supplements were made are not designed to regulate the relations
linked with the restoration of the size of remuneration of judges
(which had been reduced by the Law on Remuneration for Work of
State Politicians, Judges and State Officials (wording of 29
August 2000 with subsequent amendments and supplements) and by
any other legal act) etc.
Thus, there are no grounds to hold that, even though the
incomprehensiveness, insufficient certainty, and lack of legal
clarity of the legal regulation of relations of remuneration of
judges which is in the Law on Remuneration for Work of State
Politicians, Judges and State Officials (wording of 29 August
2000 with subsequent amendments and supplements), which create
preconditions for different interpretations of the legal
regulation of the said relations and to apply the corresponding
legal provisions in a diverse manner, could be assessed as a
legal gap, it is legislative omission or other legal gap, the
investigation of which (and, possibly, the statement that it is
anti-constitutional) is, under the Constitution (inter alia under
Paragraphs 1 and 2 of Article 105 and Paragraph 1 of Article 107
thereof), attributed to the competence of the Constitutional
Court.
20. Alongside, it needs to be held that in the part of the
case regarding the request of the petitioner to investigate
whether the Law on Remuneration for Work of State Politicians,
Judges and State Officials (wording of 29 August 2000 with
subsequent amendments and supplements) to the extent that,
according to the petitioner, it does not establish any legal
regulation of remuneration of judges replacing the legal
regulation which was recognised as being in conflict with the
Constitution by the Constitutional Court ruling of 12 July 2001
is not in conflict with Article 5, Paragraph 1 of Article 30,
Paragraphs 2 and 3 of Article 109 as well as Paragraph 1 of
Article 114 of the Constitution and the constitutional principle
of a state under the rule of law, there is no matter of
investigation. Thus, the fact that the matter of investigation is
absent in the petition of the petitioner means that the petition
does not fall under the jurisdiction of the Constitutional Court.
Under Item 2 of Paragraph 1 of Article 69 of the
Constitution, 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.
21. Taking account of the arguments set forth, it needs to
be held that there are grounds to refuse to consider the request
of the petitioner to investigate whether the Law on Remuneration
for Work of State Politicians, Judges and State Officials
(wording of 29 August 2000 with subsequent amendments and
supplements) to the extent that, according to the petitioner, it
does not establish any legal regulation of remuneration of judges
replacing the legal regulation which was recognised as being in
conflict with the Constitution by the Constitutional Court ruling
of 12 July 2001 is not in conflict with Article 5, Paragraph 1 of
Article 30, Paragraphs 2 and 3 of Article 109 as well as
Paragraph 1 of Article 114 of the Constitution and the
constitutional principle of a state under the rule of law. In
this part of the case the legal proceedings are to be dismissed.
22. Alongside, it needs to be noted that the fact that the
legal proceedings in the part of the case regarding the request
of the petitioner to investigate whether the Law on Remuneration
for Work of State Politicians, Judges and State Officials to the
extent that, according to the petitioner, it does not establish
any legal regulation of remuneration of judges replacing the
legal regulation which was recognised as being in conflict with
the Constitution by the Constitutional Court ruling of 12 July
2001is not in conflict with Article 5, Paragraph 1 of Article 30,
Paragraphs 2 and 3 of Article 109 as well as Paragraph 1 of
Article 114 of the Constitution and the constitutional principle
of a state under the rule of law are dismissed by this
Constitutional Court decision, it does not mean that the
legislator, purportedly, no longer has a duty to correct the
legislative regulation of the relations of remuneration of judges
so that it would be in compliance with the Constitution (inter
alia its official construction presented in the Constitutional
Court ruling of 12 July 2001), that it would be completely clear
and harmonious (so that it would be impossible to interpret it in
diverse manner, nor to apply it in diverse manner) but also that
it would not induce inter alia self-governance institutions of
judicial power to decide the questions which, under the
Constitution, are only within the competence of the legislator
the Seimas. The said constitutional duty of the legislator will
not disappear until it is properly carried out.
One is also to note that until the legislator has not
carried out his said constitutional duty, the persons who think
that their rights or freedoms are violated by the legal
regulation of the relations of remuneration of judges established
in the Law on Remuneration for Work of State Politicians, Judges
and State Officials (wording of 29 August 2000 with subsequent
amendments and supplements) precisely because the legislator has
not carried out his said constitutional duty, have the right to
apply to court also due to such violations, while the courts who
correspondingly consider such cases within their competence must,
under the Constitution, provided they establish that the rights
or freedoms of the person have been violated by this law because
of the reason specified above, ensure the judicial defence of the
violated rights or freedoms, by applying not only the law (in the
general meaning of this notion), but also inter alia the general
principles of law, as well as legal acts of higher power, and,
first of all, the supreme lawthe Constitutionas well as the
principles of justice, legal certainty and legal security,
proportionality, proper legal process, equal rights of persons
and protection of legitimate expectations, which are entrenched
in the Constitution as well as other provisions thereof. Such ad
hoc overcoming of the shortcomings of the overall legal
regulation of the relations of remuneration of judges in the
course of consideration of cases by courts is a necessary
precondition for ensuring the protection of the rights of
freedoms of the person who applied to the court for protection of
his violated rights or freedoms, in corresponding individual
social relations until the legislator carries out his
constitutional duty and corrects the legislative regulation of
the relations of remuneration of judges so that it would be in
compliance with the Constitution, that it would be completely
clear and harmonious, so that it would be impossible to interpret
it in diverse manner, nor to apply it in diverse manner, but also
that it would not induce inter alia self-governance institutions
of judicial power to decide the questions which, under the
Constitution, are only within the competence of the legislator
the Seimas.
III
1. The petitioner inter alia requests to investigate
whether Item 1 of Government Resolution No. 689 "On Remuneration
for Work of Chief Officials and Officers of Law and Order
Institutions and of Law Enforcement and Control Institutions" of
30 June 1997 is not in conflict with the provision of Article 1
that the State of Lithuania shall be an independent democratic
republic, Articles 5 and 109 and Paragraph 1 of Article 114 of
the Constitution and the constitutional principle of a state
under the rule of law.
2. Government Resolution No. 1494 "On the Partial Amendment
of Government of the Republic of Lithuania Resolution No. 689 'On
Remuneration for Work of Chief Officials and Officers of Law and
Order Institutions and of Law Enforcement and Control
Institutions' of 30 June 1997'" of 28 December 1999 provides:
"Taking account of the complex economic and financial
situation, the Government of the Republic of Lithuania shall
resolve:
1. To partially amend Government of the Republic of
Lithuania Resolution No. 689 "On Remuneration for Work of Chief
Officials and Officers of Law and Order Institutions and of Law
Enforcement and Control Institutions" of 30 June 1997 (Official
Gazette Valstybės žinios, 1997, No. 64-1511; 1999, No. 73-2257)
and in the first section to enter the words '1.75 times' instead
of the words '2.5 times'.
2. To establish that as of 1 January 2000 the official
remuneration shall be calculated by applying the coefficient
specified in Item 1 of this Resolution."
3. The compliance of the Government resolution of 28
December 1999 with the Constitution was disputed in the
constitutional justice case in which the Constitutional Court
ruling of 12 July 2001 was adopted. It was inter alia held in
that Constitutional Court ruling that: on 29 August 2000, the
Seimas enacted the Law on Remuneration for Work of State
Politicians, Judges and State Officials whereby salaries of
judges were established; after this law had gone into effect, the
commissioning for the Government to establish salaries of judges,
which had been provided for by the 3 February 1993 Law "On the
Official Salaries of Judges of Courts, Employees of the
Prosecutor's Office, State Arbiters and Employees of the State
Control Department of the Republic of Lithuania", became null and
void; the Law on Remuneration for Work of State Politicians,
Judges and State Officials regulated the relations of judges'
salaries differently from the Government resolutions, therefore
the legal regulation established in the Government resolution of
28 December 1999 (as well as that established by Government
Resolution No. 499 "On the Temporary Experimental Procedure for
Remuneration for Work to Heads and Other Officials of State
Power, State Administration and Law Enforcement Bodies" of 29
November 1991 and Government Resolution No. 666 "On Remuneration
for Work of Judges of Courts, Officials and Other Employees of
the Prosecutor's Office and the State Security Department of the
Republic of Lithuania" of 24 June 1997) was no longer in force;
this served as the grounds to dismiss the instituted legal
proceedings on the compliance of the Government resolution of 28
December 1999 with the Constitution. By the Constitutional Court
ruling of 12 July 2001 the legal proceedings concerning the
compliance of Government of the Republic of Lithuania Resolution
No. 1494 "On the Partial Amendment of Government of the Republic
of Lithuania Resolution No. 689 'On Remuneration for Work of
Chief Officials and Officers of Law and Order Institutions and of
Law Enforcement and Control Institutions' of 30 June 1997" of 28
December 1999 with the Constitution were dismissed.
The Constitutional Court ruling of 12 July 2001 is still in
force.
4. It needs to be noted that although the provision of the
Constitutional Court ruling of 12 July 2001 that the legal
regulation established by the Government resolution of 28
December 1999 is no longer in fore (inter alia the formula "the
legal regulation is no longer in force" itself) is not precise,
the fact that upon the entry into force of the Law on
Remuneration for Work of State Politicians, Judges and State
Officials adopted by the Seimas on 29 August 2000 whereby
remuneration of judges was established, the commissioning for the
Government to establish salaries of judges, which had been
provided for by the 3 February 1993 Law "On the Official Salaries
of Judges of Courts, Employees of the Prosecutor's Office, State
Arbiters and Employees of the State Control Department of the
Republic of Lithuania", became null and void, is beyond doubt,
still that, according to the Constitution, the remuneration of
judges is to be established by means of a law by heeding the
independence of judges and courts entrenched in the Constitution.
The said provision of the Constitutional Court ruling of 12 July
2001 is to be construed as meaning that upon the entry into force
of the Law on Remuneration for Work of State Politicians, Judges
and State Officials adopted by the Seimas on 29 August 2000, the
legal regulation established by the Government resolution of 28
December 1999 may no longer be applied to any relations, which
appeared after the entry into force of the said law. It is from
this aspect that at the time when the Constitutional Court ruling
of 12 July 2001 was being adopted, the legal regulation
established by the Government resolution of 28 December 1999 had
already been removed from the legal system, thus (though one
describes it in a not completely precise manner) in this respect
the validity of the said Government resolution had already been
over, although, from the formal point of view, this Government
resolution has not been recognised as no longer valid even until
today.
5. Under Paragraph 2 of Article 107 of the Constitution,
the decisions of the Constitutional Court on issues ascribed to
its competence by the Constitution shall be final and not subject
to appeal.
While construing Paragraph 2 (inter alia relating it with
Paragraph 1 of Article 105, Paragraph 1 of Article 107 and
Paragraph 4 of Article 109 of the Constitution) of Article 107 of
the Constitution, in its ruling of 28 March 2006 the
Constitutional Court inter alia held: the notion "decisions" used
in Paragraph 2 of Article 107 of the Constitution is resumptive
and it means that the Constitutional Court implements the
competence ascribed to it by the Constitution and expresses its
will, i.e. adopts a final act of the Constitutional Court; final
acts of the Constitutional Court are also such its legal acts by
which a constitutional justice case is considered in essence as
well as such which are adopted without investigating the
compliance of the disputed legal act (part thereof) with the
Constitution (other legal act of greater power) in essence, but
by properly (clearly and rationally) refusing by a reasoned
decision to consider the petition or by dismissing the instituted
legal proceedings (if the corresponding petition was received at
the Constitutional Court and the preparation of the
constitutional justice case for the Constitutional Court hearing
was begun) or by dismissing the case (if the constitutional
justice case has already been considered at the Constitutional
Court hearing).
6. It is maintained in the petitioner of the petitioner
that the provision "shall be grounds to adopt a decision to
dismiss the instituted legal proceedings" of Paragraph 4 of
Article 69 of the Law on the Constitutional Court means that the
Constitutional Court has the right, when it takes account of the
circumstances of the considered case, to dismiss the instituted
legal proceedings, but not that it must dismiss the instituted
legal proceedings every time when the disputed legal acts is
annulled; when the Constitutional Court is addressed by a court,
which investigates a case, the Constitutional Court has a duty to
investigate the petition of the court regardless of whether the
disputed legal act is in force or not; thus, the petition of the
court-petitioner on the constitutionality of a legal act, which
is applicable in a concrete case, must be considered in the
Constitutional Court even though the disputed legal act is no
longer in force. While interpreting the jurisprudence of the
Constitutional Court (inter alia the doctrinal provisions of its
rulings of 5 April 2000 and 21 August 2002), the petitioner
relates Paragraph 4 of Article 69 of the Law on the
Constitutional Court with Item 3 of Paragraph 1 of the same
article, under which, by a decision, the Constitutional Court
shall refuse to consider petitions to investigate the compliance
of a legal act with the Constitution, if the compliance of the
legal act with the Constitution specified in the petition has
already been investigated by the Constitutional Court and the
ruling on this issue adopted by the Constitutional Court is still
in force; in the opinion of the petitioner, a decision to refuse
to accept a petition on the compliance of a legal act with the
Constitution may be adopted only when the issue of the
constitutionality of the legal act has been investigated in
essence, while in cases when a court, which investigates a case,
applies to the Constitutional Court, in which the said legal act
must be applied, the Constitutional Court must investigate the
issue in essence, even though it previously dismissed the legal
proceedings on the constitutionality of this legal act. Thus, in
the opinion of the petitioner, due to the fact that the
compliance of the Government resolution of 28 December 1999 was
not investigated in essence in the constitutional justice case
wherein the Constitutional Court ruling of 12 July 2001 was
adopted, there are grounds to investigate into the compliance of
the said Government resolution with the Constitution in this
constitutional justice case.
7. In its acts the Constitutional Court has held more than
once that, while investigating the compliance of laws and other
legal acts with the Constitution, the Constitutional Court
develops the concept of the provisions of the Constitution which
were presented in its previous rulings and other acts, it reveals
new aspects of the legal regulation established in the
Constitution, which are necessary for investigation of a
corresponding constitutional justice case (Constitutional Court
rulings of 30 May 2003, 1 July 2004, 13 December 2004, 14 March
2006 and 28 March 2006). The development of the constitutional
jurisprudence and the official doctrine formulated therein
(especially at the beginning of Constitutional Court activities,
when there is no formed official constitutional doctrine
regarding most provisions of the Constitution) is characteristic
of the fact that the official constitutional doctrine is not
formulated all "at once" on any issue of the constitutional legal
regulation, but "case after case", by supplementing the elements
(fragments) of the said doctrine, revealed in the previous
constitutional justice cases, adopted in the acts of the
Constitutional Court with others, which are revealed in the acts
of the Constitutional Court adopted in the new cases of
constitutional justice (Constitutional Court rulings of 28 March
2006 and 9 May 2006). In the Constitutional Court ruling of 28
March 2006 it is inter alia held: in general, it is not
impossible that at certain time (particularly at the beginning of
the Constitutional Court activity) there were also such official
constitutional doctrinal provisions (fragments or rudiments of
the doctrine) in the jurisprudence of the Constitutional Court,
which, if compared with each other, but if assessed in isolation
from the entire official constitutional doctrinal context
(particularly, when a more detailed, broader official
constitutional doctrine has not been formed in the corresponding
issue of the constitutional legal regulation) and/or from the
general principles of law, they might be assessed as competing
ones; if the text of the Constitution does not change, if it
remains stable (i.e. if corresponding amendments of the
Constitution are not made), the said real or alleged competition
of these official constitutional doctrinal provisions is removed
by further construction (inter alia systemic) and development (in
the new constitutional justice cases) of the conception of the
provisions of the Constitution and the official constitutional
doctrinal provisions formulated on the basis of these provisions;
the conceptions of the provisions of the Constitution and further
construction and development of the official constitutional
doctrinal provisions formulated on the basis of the said
provisions in the acts of the Constitutional Court adopted in new
constitutional justice cases under certain circumstances may
imply reinterpretation of the official constitutional doctrinal
provisions formulated previously when the official constitutional
doctrine is corrected; such reinterpretation of the conception of
the provisions of the Constitution and official constitutional
doctrinal provisions when the official constitutional doctrine is
corrected is an exclusive competence of the Constitutional Court;
it may be possible to deviate from the Constitutional Court
precedents created while adopting decisions in cases of
constitutional justice and new precedents may be created only in
the cases when it is unavoidably and objectively necessary,
constitutionally grounded and reasoned, i.e. when it is necessary
while seeking to increase opportunities to implement the innate
and acquired rights and legitimate interests of persons; the
necessity to better defend and protect the values enshrined in
the Constitution, the need to create better conditions in order
to reach the aims of the Lithuanian Nation declared in the
Constitution on which the Constitution itself is based, the
necessity to expand the possibilities of the constitutional
control in this country in order to guarantee constitutional
justice and to ensure that no legal act (part thereof) which is
in conflict with legal acts of greater power, would have the
immunity from being removed from the legal system; it is
impossible and constitutionally impermissible to reinterpret the
official constitutional doctrine so that the official
constitutional doctrine would be corrected, if by doing so the
system of values entrenched in the Constitution is changed, their
compatibility is denied, the protection guarantees of the
supremacy of the Constitution in the legal system are reduced,
the concept of the Constitution as a single act and harmonious
system is denied, the guarantees of rights and freedoms of the
person entrenched in the Constitution are reduced and the model
of separation of powers enshrined in the Constitution is changed;
every case of reinterpretation of the official constitutional
doctrine when the official constitutional doctrine is corrected
has to be properly (clearly and rationally) argued in the
corresponding act of the Constitutional Court.
8. It was also held in the Constitutional Court ruling of
28 March 2006 that the construction of the provision "the
annulment of the disputed legal act shall be grounds to adopt a
decision to dismiss the instituted legal proceedings" of
Paragraph 4 (wording of 11 July 1996) of Article 69 of the Law on
the Constitutional Court has gradually developed in the
Constitutional Court jurisprudence, whereby in cases when the
Constitutional Court is not applied by courts but by the other
subjects specified in Article 106 of the Constitution and when
the disputed legal act (part thereof) is no longer validit has
been recognised as no longer valid (it was abolished or amended)
or its validity expiredthe Constitutional Court, while paying
heed to the circumstances of the considered case, has the powers
to dismiss the instituted legal proceedings, however, it does not
have to dismiss the instituted legal proceedings in every case
when the disputed legal act (part thereof) is no longer validit
has been recognised as no longer valid (it was abolished or
amended) or its validity expiredand that the Constitutional
Court has the duty, when it is applied by a court, which
considers a case and which had doubts on the compliance of a law
applicable in that case with the Constitution (other legal act of
greater power), to consider the petition of the court
irrespective of whether the disputed law or other legal act is
valid or not; by some decisions adopted at the beginning of the
Constitutional Court activity and a bit later the instituted
legal proceedings used to be dismissed also in such
constitutional justice cases, in which, subsequent to the
petitions of the petitioners, one investigated the compliance
with the Constitution (other legal acts of greater power) of such
legal acts (parts thereof) of lower power, which, even though
formally were valid when the corresponding constitutional justice
cases were investigatedformally they had not been recognised as
no longer valid (they had not been abolished nor amended), nor
their validity had been formally terminated, however, at that
moment they could no longer be applied because one had to apply
certain legal acts (parts thereof) that were passed later and/or
those of greater power, which regulated the corresponding
relations differently than the disputed legal acts (parts
thereof); in this aspect, the disputed legal acts (parts thereof)
which at the time when the constitutional justice cases were
investigated could no longer be applied because one had to apply
the legal acts (parts thereof) that were passed later and/or
those of greater power, which regulated the corresponding
relations differently than the said disputed legal acts (parts
thereof), in the jurisprudence of the Constitutional Court were
compared to no longer valid legal acts (parts thereof); on the
other hand, at the discussed time there were also such
constitutional justice cases, in which one investigated and
decided whether the legal acts (parts thereof) of lower power
which were not valid at the time when the corresponding
constitutional justice case was investigated or which, even
though were formally valid when the corresponding constitutional
justice case was investigated, at that moment they could no
longer be applied because one had to apply the legal acts (parts
thereof) that were passed later and/or those of greater power,
which regulated the corresponding relations differently than the
disputed legal acts (parts thereof), were not in conflict with
the Constitution (other legal acts of greater power)in these
constitutional justice cases, while taking account of various
circumstances of the case, corresponding rulings were adopted, by
which the cases were decided in essence. Thus, as it was held in
summary in the Constitutional Court ruling of 28 March 2006, the
official doctrine of acceptability of petitions at the
Constitutional Court in the jurisprudence of the Constitutional
Court was not finally formulated for some time; this doctrine was
formulated "case after case" in two directions: on the one hand,
there was a prevailing conception of the Constitutional Court
powers that the Constitutional Court has the powers to
investigate only into the compliance of valid legal acts of lower
power only with valid legal acts of greater power (inter alia
(and, first of all) with the Constitution) and that it does not
investigate whether the legal acts that are no longer valid, or
the ones compared to such are not in conflict with the
Constitution (other legal acts of greater power); on the other
hand (more seldom), one investigated and decided whether the
legal acts (parts thereof) of lower power, which were not valid
when the corresponding constitutional justice case was
investigated or which even though were formally valid when the
corresponding constitutional justice case was investigated, at
that moment they could no longer be applied because one had to
apply the legal acts (parts thereof) that were passed later and/
or those of greater power, which regulated the corresponding
relations differently than the disputed legal acts (parts
thereof), were not in conflict with the Constitution (other legal
acts of greater power).
It was also held in the Constitutional Court ruling of 28
March 2006 that one began to harmonise the two directions of
forming of the official constitutional doctrine on the acceptance
of applications at the Constitutional Court which came into being
gradually, after the subjects specified in Article 106 of the
Constitution that have the powers to apply to the Constitutional
Court were differentiated: in the official constitutional
doctrine a provision was eventually entrenched that in the cases
when the Constitutional Court is applied by courts, when, in the
course of administration of justice they had doubts on the
compliance of legal acts of lower power with legal acts of
greater power, inter alia (and, first of all) with the
Constitution, under the Law on the Constitutional Court (inter
alia Paragraph 4 (wording of 11 July 1996) of Article 69) the
Constitutional Court does not have the powers to dismiss the
instituted legal proceedings (case) and must consider the case,
and when the Constitutional Court is applied by other subjects
specified in Article 106 of the Constitution, the Constitutional
Court may, while taking account of the circumstances of the
considered constitutional justice case, either dismiss the
instituted legal proceedings (case) or not dismiss it.
9. In the context of the constitutional justice case at
issue one is to note that, as the Constitutional Court held in
its ruling of 28 March 2006, "in itself no development of the
official constitutional doctrine (inter alia the reinterpretation
of the official constitutional doctrinal provisions when the
official constitutional doctrine is corrected) is the grounds for
the subjects specified in Article 106 of the Constitution to
apply to the Constitutional Court anew with a petition requesting
to investigate, whether the law (part thereof) whose compliance
with the Constitution (other legal act of greater power) has
already been investigated in essence, is not in conflict with the
Constitution (other legal act of greater power), or with a
petition, which is analogous to the petition previously presented
by some subject, requesting to investigate whether the legal act
(part thereof) on which the Constitutional Court has already
passed a decision to refuse to consider the petition or a
decision (ruling) to dismiss the instituted legal proceedings
(case), if the corresponding petition had been received at the
Constitutional Court and the preparation of the constitutional
justice case for the Constitutional Court hearing had begun or it
had already been considered at the Constitutional Court hearing,
thus, it did not decide the corresponding question in essence, is
not in conflict with the Constitution (other legal act of greater
power)".
These doctrinal provisions are to be applied when Paragraph
4 of Article 69 of the Law on the Constitutional Court is
construed.
10. It also needs to be noted that, as the Constitutional
Court held in its ruling of 28 March 2006, under the
Constitution, the Constitutional Court has the powers to revise
its rulings, conclusions, and decisions when they were adopted
while the Constitutional Court did not know about such essential
circumstances which, if had been known, would have been able to
determine a different content of the adopted rulings, conclusions
and decisions.
It must be noted that at present the Constitutional Court
is not aware of any such circumstances related with the
Government resolution of 28 December 1999, which were not known
at the time of the adoption of the Constitutional Court ruling of
12 July 2001, which, if had been known, would have been able to
determine a different content of the said Constitutional Court
ruling.
Besides, the petition of the Third Vilnius City Local
Court, the petitioner, requesting to investigate whether Item 1
of Government Resolution No. 1494 "On the Partial Amendment of
Government of the Republic of Lithuania Resolution No. 689 'On
Remuneration for Work of Chief Officials and Officers of Law and
Order Institutions and of Law Enforcement and Control
Institutions' of 30 June 1997'" of 28 December 1999 is not in
conflict with the provision of Article 1 that the State of
Lithuania shall be an independent democratic republic, Articles 5
and 109 as well as Paragraph 1 of Article 114 of the Constitution
and the constitutional principle of a state under the rule of
law, does not specify any such circumstances, either.
11. Under Item 3 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 compliance of the
legal act with the Constitution specified in the petition has
already been investigated by the Constitutional Court and the
ruling on this issue adopted by the Constitutional Court is still
in force.
12. Having held that the compliance of the Government
resolution of 28 December 1999, which is disputed by the
petitioner, with the Constitution has already been investigated
in the Constitutional Court and the ruling on this issue adopted
by the Constitutional Court is still in force, one is also to
hold that there are grounds to refuse to consider the petition of
the petitioner requesting to investigate whether Item 1 of
Government Resolution No. 1494 "On the Partial Amendment of
Government of the Republic of Lithuania Resolution No. 689 'On
Remuneration for Work of Chief Officials and Officers of Law and
Order Institutions and of Law Enforcement and Control
Institutions' of 30 June 1997'" of 28 December 1999 is not in
conflict with the provision of Article 1 that the State of
Lithuania shall be an independent democratic republic, Articles 5
and 109 as well as Paragraph 1 of Article 114 of the Constitution
and the constitutional principle of a state under the rule of
law. The legal proceedings in this part of the case are to be
dismissed.
Conforming to Articles 102 and 107 of the Constitution of
the Republic of Lithuania and Paragraphs 3 and 4 of Article 22,
Article 28 and Items 2 and 3 of Paragraph 1 and Paragraph 2 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 dismiss the legal proceedings in the case regarding the
petition of the Third Vilnius City Local Court, the petitioner,
requesting to investigate as to whether Paragraph 3 (wording of
24 January 2002; Official Gazette Valstybės žinios, 2002, No. 17-
649) of Article 11 of the Republic of Lithuania Law on Courts is
not in conflict with Paragraph 2 of Article 5, Paragraphs 2 and 3
of Article 109, Paragraph 1 of Article 114 of the Constitution of
the Republic of Lithuania and the constitutional principle of a
state under the rule of law, whether the Republic of Lithuania
Law on Remuneration for Work of State Politicians, Judges and
State Officials (wording of 29 August 2000 with subsequent
amendments and supplements; Official Gazette Valstybės žinios,
2000, No. 75-2271; 2000, No. 92-2887; 2001, No. 29-918; 2001, No.
43-1492; 2001, No. 48-1661, correction 2001, No. 49; 2002, No.
43-1606; 2003, No. 35-1464) to the extent that, according to the
petitioner, it does not establish any legal regulation of
remuneration of judges replacing the legal regulation which was
recognised as being in conflict with the Constitution of the
Republic of Lithuania by the Constitutional Court Ruling "On the
compliance of Paragraphs 1 and 2 of Article 4, Paragraphs 1 and 3
of Article 5, Item 1 of Paragraph 3, Paragraphs 4, 5 and 6 of
Article 7 of the Republic of Lithuania Law on Remuneration for
Work of State Politicians, Judges and State Officials, as well as
Chapter II of the Appendix to the same law, Appendix 6 to the
Republic of Lithuania Law on the Approval of the Financial
Indices of the 2000 State Budget and the Budgets of Local
Governments, Article 9 of the Republic of Lithuania Law on
Amending the Law on the Approval of the Financial Indices of the
2000 State Budget and the Budgets of Local Governments,
Government of the Republic of Lithuania Resolution No. 499 'On
the Temporary Experimental Procedure for Remuneration for Work to
Heads and Other Officials of State Power, State Administration
and Law Enforcement Bodies' of 29 November 1991, Government of
the Republic of Lithuania Resolution No. 666 'On Remuneration for
Work of Judges of Courts, Officials and Other Employees of the
Prosecutor's Office and the State Security Department of the
Republic of Lithuania' of 24 June 1997, Government of the
Republic of Lithuania Resolution No. 1494 'On the Partial
Amendment of Government of the Republic of Lithuania Resolution
No. 689 "On Remuneration for Work of Chief Officials and Officers
of Law and Order Institutions and of Law Enforcement and Control
Institutions' of 30 June 1997"' of 28 December 1999 with the
Constitution of the Republic of Lithuania" of 12 July 2001
(Official Gazette Valstybės žinios, 2001, No. 62-2276; 2001, No.
86) is not in conflict with Article 5, Paragraph 1 of Article 30,
Paragraphs 2 and 3 of Article 109 and Paragraph 1 of Article 114
of the Constitution of the Republic of Lithuania and the
constitutional principle of a state under the rule of law, and
whether Item 1 (Official Gazette Valstybės žinios, 1999, No. 114-
3314) of Government of the Republic of Lithuania Resolution No.
1494 "On the Partial Amendment of Government of the Republic of
Lithuania Resolution No. 689 'On Remuneration for Work of Chief
Officials and Officers of Law and Order Institutions and of Law
Enforcement and Control Institutions' of 30 June 1997'" of 28
December 1999 is not in conflict with the provision of Article 1
that the State of Lithuania shall be an independent democratic
republic, Articles 5 and 109 as well as Paragraph 1 of Article
114 of the Constitution of the Republic of Lithuania and the
constitutional principle of a state under the rule of law.
Justices of the Constitutional Court: Armanas Abramavičius
Toma Birmontienė
Egidijus Kūris
Kęstutis Lapinskas
Zenonas Namavičius
Ramutė Ruškytė
Vytautas Sinkevičius
Stasys Stačiokas
Romualdas Kęstutis Urbaitis