Lietuviškai
Case No. 02/04
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
DECISION
ON DISMISSING THE LEGAL PROCEEDINGS IN THE CASE
SUBSEQUENT TO THE PETITION OF A GROUP OF MEMBERS OF
THE SEIMAS OF THE REPUBLIC OF LITHUANIA, THE
PETITIONER, REQUESTING TO INVESTIGATE WHETHER ARTICLE
1 OF DECREE OF THE PRESIDENT OF THE REPUBLIC OF
LITHUANIA NO. 1373 "ON AWARDING ORDERS AND MEDALS OF
THE STATE OF LITHUANIA ON THE OCCASION OF THE DAY OF
STATE (CORONATION OF KING MINDAUGAS OF LITHUANIA)" OF
14 JUNE 2001, TO THE EXTENT THAT IT ESTABLISHES THAT
JURIJ BORISOV WAS AWARDED THE MEDAL OF DARIUS AND
GIRĖNAS, IS NOT IN CONFLICT WITH THE CONSTITUTION OF
THE REPUBLIC OF LITHUANIA AND WITH ARTICLE 128
(WORDING OF 1 JULY 1993) OF THE REPUBLIC OF LITHUANIA
LAW ON ORDERS, MEDALS AND OTHER DECORATIONS
29 December 2006
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Armanas
Abramavičius, Toma Birmontienė, Kęstutis Lapinskas, Zenonas
Namavičius, Ramutė Ruškytė, Vytautas Sinkevičius, Stasys
Stačiokas, and Romualdas Kęstutis Urbaitis,
with the secretary of the hearingDaiva Pitrėnaitė,
in the procedural sitting of the Constitutional Court
considered the petition of a group of Members of the Seimas of
the Republic of Lithuania, the petitioner, consisting of Petras
Gražulis, Stanislovas Buškevičius, Jonas Čiulevičius, Algimantas
Matulevičius, Jonas Jurkus, Rimantas Sinkevičius, Alfonsas
Pulokas, Mykolas Pronckus, Gintautas Mikolaitis, Vytautas Saulys,
Juozas Raistenskis, Vytautas Šustauskas, Juozas Matulevičius,
Gabriel Jan Mincevič, Vladas Žalnerauskas, Kęstutis Skamarakas,
Valerijus Simulik, Ramūnas Karbauskis, Egidijus Klumbys, Gintaras
Didžiokas, Vytautas Einoris, Visvaldas Nekrašas, Petras Papovas,
Antanas Baura, Julius Veselka, Rolandas Pavilionis, Edvardas
Karečka, Vasilijus Popovas, Nikolajus Medvedevas and Jūratė
Juozaitienė, requesting to investigate whether Article 1 of
Decree of the President of the Republic of Lithuania No. 1373 "On
Awarding Orders and Medals of the State of Lithuania on the
Occasion of the Day of State (Coronation of King Mindaugas of
Lithuania)" of 14 June 2001, to the extent that it establishes
that Jurij Borisovthe President of the joint stock company "Avia
Baltika" and a supporter of Lithuanian aviatorsis awarded the
Medal of Darius and Girėnas, is not in conflict with the
Constitution of the Republic of Lithuania and whether this Decree
of the President of the Republic, to the specified extent, was
not in conflict with Article 128 of the Republic of Lithuania Law
on Orders, Medals and other Decorations.
The Constitutional Court
has established:
I
1. On 14 June 2001, the President of the Republic issued
Decree No. 1373 "On Awarding Orders and Medals of the State of
Lithuania on the Occasion of the Day of State (Coronation of King
Mindaugas of Lithuania)", Article 1 whereof inter alia
establishes:
"On the Occasion of the Day of State (Coronation of King
Mindaugas of Lithuania), for merits to the State of Lithuania and
for efforts to spread the name of Lithuania in the world and for
help to integrate it into the community of states of the world,
the following citizens of the Republic of Lithuania and foreign
states shall be awarded orders and medals: <
>
the Medal of Darius and Girėnas
to Jurij Borisovthe President of the joint stock company
'Avia Baltika' and a supporter of Lithuanian aviators."
2. A group of Members of the Seimas, the petitioner,
applied to the Constitutional Court with a petition requesting to
investigate whether Article 1 of this decree of the President of
the Republic, to the extent that it establishes that the Medal of
Darius and Girėnas is awarded to Jurij Borisovthe President of
the joint stock company "Avia Baltika" and supporter of the
Lithuanian aviatorsis not in conflict with the Constitution and
whether this decree of the President of the Republic to the
specified extent was not in conflict with Article 128 of the Law
on Orders, Medals and other Decorations (hereinafter also
referred to as the Law).
This petition was received at the Constitutional Court on
27 November 2003.
3. By Ordinance of the President of the Constitutional
Court No. 2B-04 of 6 January 2004, subsequent to this petition of
the group of Members of the Seimas, the petitioner, the
preparation of Case No. 02/04 for a Constitutional Court hearing
was begun.
II
The petition of the petitioner is grounded on the
following arguments.
Under Article 128 the Law on Orders, Medals and other
Decorations, which was in effect at the time when the disputed
decree of the President of the Republic was issued, the Medal of
Darius and Girėnas was established in order to commemorate the
flight over the Atlantic made by Steponas Darius and Stasys
Girėnas in 1933 and was to be granted in order to honour the
persons who were with special merits to the Lithuanian aviation.
Article 1 of the Law, wherein it is established that the orders,
medals and other decorations of the Republic of Lithuania shall
be granted in order to honour the persons with merits at the time
of peace and war and to the Lithuanian citizens in order to
encourage them to work for the good of the State of Lithuania and
its society means that such persons should be loyal to the
Republic of Lithuania. However, according to the petitioner, the
aviation company "Avia Baltika" UAB, headed by Jurij Borisov,
"has been known to the officials of law and order" since 1997;
according to the petitioner, on 22 March 2002, the Prosecutor
General of the Republic of Lithuania instituted a criminal case
subsequent to the material regarding the import of double-purpose
goods by the aviation company "Avia Baltika" UAB, which was
collected in December 1997, as well as, according to the
petitioner, on 4 November 2002, the Chief Police Commissioner's
Office for the City of Kaunas instituted two criminal cases
subsequent to the material of 14 May 1999 regarding the import of
the controlled goods by the aviation company "Avia Baltika" UAB
which were later transferred to the Office of the Prosecutor
General. However, the President of the Republic Valdas Adamkus,
without taking account "of the said and other facts" and
following only the presentation (letter No. 524 of 4 June 2001)
of the Department of Physical Education and Sports under the
Government of the Republic of Lithuania, wherein it was specified
that J. Borisov financially supported the sport of aeronautics,
awarded the Medal of Darius and Girėnas to J. Borisov.
III
In the course of the preparation of the case for the
judicial consideration, written explanations were received from
the representatives of the President of the Republic, the party
concerned, who were Andrius Meškauskas, Head of the Office of the
President of the Republic and Chancellor or the orders of the
Republic of Lithuania, Zita Andrijonienė, Head of the Decorations
Division of the Office of the President of the Republic and
Judita Kaminskienė, chief specialist on legal issues of the
Office of the President of the Republic, as well as additional
explanations were received from the representatives of the
President of the Republic, the party concerned, who were Darius
Vilimas, advisor of the President of the Republic, and Judita
Kaminskienė. It is stated in the said explanations that at the
time when the President of the Republic awarded the Medal of
Darius and Girėnas to J. Borisov by the disputed decree, he had
no information which would show disloyalty of this person to the
State of Lithuania, meanwhile, the support of J. Borisov to the
Lithuanian aviation sport was obvious; moreover, the said award
of the state was granted to J. Borisov under the procedure
established by the Law. In the opinion of the representatives of
the party concerned, the disputed decree (to the specified
extent) of the President of the Republic is not in conflict with
the Constitution, neither was it in conflict with Article 128 of
the Law which was in effect at the time of issuance of the said
decree.
IV
In the course of the preparation of the case for the
judicial consideration, the witnesses, who were A. Karpavičius,
R. Kurtinaitis, V. Lapėnas, S. Murza, A. Meškauskas, G. Šurkus
and A. Žentelis, were questioned. Inter alia it is obvious from
the testimony (as well as from other case material) of the
witnesses that before the President of the Republic awarded the
Medal of Darius and Girėnas to J. Borisov, the enterprise headed
by J. Borisov had allocated funds to or had supported otherwise
the Lithuanian Aviation Club, the Lithuanian team of acrobatic
flying which represented Lithuania in international (European,
world) competitions, the aeronauts G. Šurkus and V. Machnorilovas
who flew across the Baltic Sea by air balloon, the public
establishment "Vytauto Lapėno skraidymo mokykla", etc.
Some of the said persons (R. Kurtinaitis and S. Murza)
also submitted written explanations.
V
In the course of the preparation of the case for the
judicial consideration, a statement from J. Borisov was received,
by which he informed that no other circumstances of his award by
the Medal of Darius and Girėnas are known to him, except for the
fact that he was invited to the Office of the President of the
Republic where he was granted the said award.
VI
1. In the course of the preparation of the case for the
judicial consideration, a letter (with annexes) from A.
Valantinas, the Prosecutor General, was received wherein the
information was provided about the inspection of the activity of
the aviation company "Avia Baltika" UAB carried out by the
officials of law and order and about the criminal cases
instituted (which were dismissed later) regarding the activity of
this enterprise.
2. A letter from V. Latvienė, Head of the State Tax
Inspectorate under the Ministry of Finance of the Republic of
Lithuania, was also received, wherein information is provided
about the charity and support provided to various subjects
(enterprises, organisations) by the aviation company "Avia
Baltika" UAB during the years 1996-2002.
3. A note from the Lithuanian Aviation Club was also
received, which provides information about the funds which were
allocated to the Lithuanian Aviation Club by the aviation company
"Avia Baltika" UAB.
VII
In the course of the preparation of the case for the
judicial consideration, the representatives of the group of
Members of the Seimas, the petitioner, who were P. Gražulis, a
member of the Seimas, and S. Buškevičius, were questioned (on 22
June 2006).
1. The representatives of the group of Members of the
Seimas, the petitioner, who were P. Gražulis, a member of the
Seimas and S. Buškevičius submitted inter alia the following
explanations regarding the arguments of the petition of the
petitioner and the reasoning of the application of the group of
Members of the Seimas, the petitioner, to the Constitutional
Court.
1.1. The petitioner does not dispute that J. Borisov had
allocated some funds and supported the Lithuanian aviation sport
in other way before the President of the Republic awarded him the
Medal of Darius and Girėnas.
1.2. The legal regulation established in the Law was not
clear, thus, it was not in line with the Constitution, as the Law
did not establish any criteria, under which it would be possible
to decide what merits to the Lithuanian aviation are to be
considered as particularly special so that it would be possible
to award a person with the Medal of Darius and Girėnas for such
merits. In this aspect, the Law was deficient. In general, when
state awards are granted to persons, "there is chaos", they are
granted to "all those who want them"; in Lithuania the practice
of granting awards has become established that not "people with
merits", but mostly "the good people" are awarded. However, in
order that a person is granted a state award, the fact that he
has provided somebody with financial and material support (even
if it is big) is not enough.
1.3. Formally, taking account only of the legal criteria,
awarding J. Borisov with the Medal of Darius and Girėnas maybe
was "fair", but assessing it in a wider context, it was doubtful
from the moral and political aspects. Such assessment of the said
award is based inter alia on the fact that the Constitutional
Court has presented a conclusion (Constitutional Court conclusion
of 31 March 2004) that the actions of President Rolandas Paksas
of the Republic of Lithuania, when he (by Decree No. 40 "On
Granting Citizenship of the Republic of Lithuania by Way of
Exception" of 11 April 2003) granted citizenship of the Republic
of Lithuania to Jurij Borisov, grossly violated the Constitution.
According to the representatives of the petitioner, if such
conclusion had not been presented, the members of the Seimas (as
well as the representatives of the petitioner) perhaps would not
have doubted the loyalty of J. Borisov to the State of Lithuania,
as well as the compliance of the disputed decree of the President
of the Republic with the Constitution and with Article 128 of the
Law.
1.4. In society, J. Borisov is assessed as "particularly
dangerous to our state" and the one who "has no reputation", it
is thought that he "has discredited himself", as (while defending
not the interests of Lithuania, but those of Russia) he "put huge
pressure <
> on the President of the Republic Rolandas Paksas".
J. Borisov has not been, nor is loyal to the Republic of
Lithuania. It is also shown by the criminal cases, which had been
instituted against the aviation company "Avia Baltika" UAB headed
by the said person, of which the President of the Republic did
not take any account when awarding the said person the Medal of
Darius and Girėnas. Neither did the President of the Republic
take account of "other facts". The representatives of the
petitioner could not specify what are those "other facts", of
which, in their opinion, the President of the Republic Valdas
Adamkus had to take account while deciding on granting the said
state award to Borisov, but of which he had not taken any
account.
1.5. The representatives of the petitioner asserted that
awarding J. Borisov with the Medal of Darius and Girėnas, "was
actually a political question" and they could prove that. By
awarding the Medal of Darius and Girėnas to J. Borisov, the
Constitution was grossly violated. Such assessment is based inter
alia on the fact that, according to the representatives of the
petitioner, "people are talking" that, allegedly, the enterprise
headed by J. Borisov had transferred quite an amount of money to
the Valdas Adamkus foundation and that, allegedly, the said state
award was granted to J. Borisov not for the support to the
Lithuanian aviation, but for the support to V. Adamkus during the
elections of the President of the Republic. Thus, after he
awarded the Medal of Darius and Girėnas to J. Borisov, the
President of the Republic V. Adamkus should be recognized as the
one who has grossly violated the Constitution.
2. During the questioning at the Constitutional Court the
representatives of the petitioner did not present any arguments
that the President of the Republic was familiar with the fact
that J. Borisov or the aviation company "Avia Baltika" UAB headed
by him, "were known to the officials of law and order", that the
enterprise headed by J. Borisov had transferred any money to the
Valdas Adamkus foundation and that the said state award was
granted to J. Borisov for the support to V. Adamkus during the
elections of the President of the Republic. Nor were any
explanations presented about what were the "other facts" which
are specified in the petition of the petitioner and which were
specified by the representatives of the petitioner, of which the
President of the Republic V. Adamkus, while deciding on granting
the said state award to J. Borisov, had to take account, but
which he failed to do.
3. The representatives of the petitioner undertook an
obligation to present additional explanations in writing (till 31
July 2006), which would include inter alia the said arguments.
Such additional explanations have not been presented to the
Constitutional Court. The representatives of the petitioner
informed by telephone that the said evidence would not be
presented.
VIII
1. In the course of the preparation of the case for the
judicial consideration written explanations from the
representatives of the state institutions, who were G. Švedas,
Vice-minister of Justice, and A. Raslanas, Deputy Director
General of the Department of Physical Education and Sports under
the Government of the Republic of Lithuania, were received.
2. In the course of the preparation of the case for the
judicial consideration written explanations from the specialists
Assoc. Prof. Dr. G. Mesonis, acting Head of the Constitutional
Law Department of the Faculty of Law of Mykolas Romeris
University and Assoc. Prof. Dr. E. Šileikis of the Constitutional
and Administrative Law Department of the Faculty of Law of
Vilnius University were also received.
IX
In the course of the preparation of the case for the
judicial consideration, on 22 December 2006, additional
information was received from Judita Kaminskienė and Darius
Vilimas, the representatives of the President of the Republic,
the party concerned, regarding the fact that on 22 December 2006,
the President of the Republic issued Decree No. 1K-838 "On
Crossing out the Persons Awarded with Medals of the State of
Lithuania from the List of the Awarded Persons", Article 2 of
which amended Decree of the President of the Republic of
Lithuania No. 1373 "On Awarding Orders and Medals of the State of
Lithuania on the Occasion of the Day of State (Coronation of King
Mindaugas of Lithuania)" of 14 June 2001 by crossing out J.
Borisov from the list of persons awarded the Medals of Darius and
Girėnas, as he committed an intentional crime, by which he
discredited the name of the awarded person. Decree of the
President of the Republic No. 1K-838 "On Crossing out the Persons
Awarded with Medals of the State of Lithuania from the List of
the Awarded Persons" of 22 December 2006 was published in the
official gazette "Valstybės žinios" on 28 December 2006.
The Constitutional Court
holds that:
I
1. The petitioner requests to investigate whether Article
1 of Decree of the President of the Republic No. 1373 "On
Awarding Orders and Medals of the State of Lithuania on the
Occasion of the Day of State (Coronation of King Mindaugas of
Lithuania)" of 14 June 2001, to the extent that it establishes
that Jurij Borisovthe President of the joint stock company "Avia
Baltika" and a supporter of Lithuanian aviatorsis awarded the
Medal of Darius and Girėnas, is not in conflict with the
Constitution and whether this Decree of the President of the
Republic, to the specified extent, was not in conflict with
Article 128 of the Law on Orders, Medals and other Decorations.
2. The petitioner does not specify any concrete
provisions (norms, principles) of the Constitution, with which,
in his opinion, the disputed decree of the President of the
Republic (to the specified extent) is in conflict.
3. On 12 September 1991, the Supreme Council of the
Republic of Lithuania adopted the Law on Orders, Medals and other
Decorations. Article 124 of the Law established that this law
shall come into force as from the day of its adoption.
3.1. The Law (wording of 12 September 1991) did not
include Article 128; the Medal of Darius and Girėnas was not
provided for in this law, neither was it provided in other laws
which were then in effect.
3.2. The Law was amended and supplemented by the Republic
of Lithuania Law "On Establishing the Commemorative Medal of
January 13 and on Amending and Supplementing the Republic of
Lithuania Law on Orders, Medals and other Decorations", which was
adopted by the Supreme Council on 18 December 1991. Under Item 6
of Article II of this law, Article 123 (wording of 12 September
1991) of the Law on Orders, Medals and other Decorations became
Article 128 (wording of 18 December 1991). The Law "On
Establishing the Commemorative Medal of January 13 and on
Amending and Supplementing the Republic of Lithuania Law on
Orders, Medals and other Decorations" did not establish the Medal
of Darius and Girėnas.
3.3. On 1 July 1993, the Seimas adopted the Republic of
Lithuania Law "On Establishing the Medal of Darius and Girėnas
and on Amending and Supplementing the Republic of Lithuania Law
on Orders, Medals and other Decorations", Article I of which
established the Medal of Darius and Girėnas and Item 6 of Article
II whereof supplemented the Law (wording of 12 September 1991
with amendments and supplements made by the Law "On Establishing
the Commemorative Medal of January 13 and on Amending and
Supplementing the Republic of Lithuania Law on Orders, Medals and
other Decorations", which was adopted by the Supreme Council on
18 December 1991) with Chapter XX titled "The Statute for the
Medal of Darius and Girėnas". Article 128 of this chapter was set
forth as follows: "The Medal of Darius and Girėnas shall be
established in order to commemorate the flight over the Atlantic
made by Steponas Darius and Stasys Girėnas in 1933 and shall be
granted in order to honour the persons who are with special
merits to the Lithuanian aviation".
3.4. The Law (wording of 12 September 1991 with
subsequent amendments and supplements) has been amended and/or
supplemented by the Republic of Lithuania Law on Supplementing
Article 133 of the Law on Orders, Medals and other Decorations,
which was adopted by the Seimas on 3 July 1997, the Republic of
Lithuania Law on Supplementing Article 91 of the Law on Orders,
Medals and other Decorations, which was adopted by the Seimas on
5 November 1998, and the Republic of Lithuania Law on Amending
Articles 95, 96 and 97 of the Law on Orders, Medals and other
Decorations, however, Article 128 (wording of 1 July 1993)
whereof has not been amended and/or supplemented.
3.5. On 18 June 2002, the Seimas adopted the Republic of
Lithuania Law on State Awards. Article 45 whereof established
that this law shall come into force upon confirmation of the
standards of the state orders, medals and other decorations (Item
1), the manner of wearing state orders, medals and other
decorations (Item 2), the Regulations of the State Awards Council
(Item 3) and the Regulations of the Chancellor of Orders of the
State of Lithuania (Item 4) by the President of the Republic.
By Article 1 of Decree No. 2026 "On the Confirmation of
the Projects and Drawings, the Standards and Substitutes of the
Awards of the State of Lithuania, the Rules of Wearing State
Awards, the Regulations of the Lithuanian State Awards Council
and the Regulations of the Chancellor of Orders of the State of
Lithuania" of 16 January 2003 the President of the Republic
confirmed the projects and drawings, the standards and
substitutes of the awards of the State of Lithuania (Item 1), the
rules of wearing state awards (Item 2), the Regulations of the
State Awards Council (Item 3) and the Regulations of the
Chancellor of Orders of the State of Lithuania (Item 4). Article
3 of the said decree of the President of the Republic established
that it shall come into force as from the day of its signing. In
this context, it needs to be noted that Decree No. 2026 "On the
Confirmation of the Projects and Drawings, the Standards and
Substitutes of the Awards of the State of Lithuania, the Rules of
Wearing State Awards, the Regulations of the Lithuanian State
Awards Council and the Regulations of the Chancellor of Orders of
the State of Lithuania" of 16 January 2003 of the President of
the Republic was officially published in the official gazette
"Valstybės žinios" on 24 January 2003.
Paragraph 2 of Article 7 of the Constitution establishes
that only laws which are published shall be valid. While
construing this constitutional provision, the Constitutional
Court has held that "the constitutional principle that law may
not be non-public is reflected in Paragraph 2 of Article 7 of the
Constitution. Thus, taking account of the constitutional
requirement that law may not be non-public, the notion 'laws'
which is employed in Paragraph 2 of Article 7 of the Constitution
should not be construed only literally. It should be construed in
an expanding manner, as a notion that includes not only legal
acts, which have the power of the law, but also other legal acts"
(Constitutional Court ruling of 29 October 2003), thus, also the
decrees of the President of the Republic. In its ruling of 11
January 2001, the Constitutional Court held that the official
publishing of laws in pursuance with the procedure established in
the Constitution and laws is a necessary condition so that laws
be valid and that subjects of legal relations should know as to
what laws are valid, what their content is, and that they might
follow these laws.
Taking account of the provision of Paragraph 2 of Article
7 of the Constitution that only laws which are published shall be
valid and of the fact that by following the general legal
principle (which is entrenched in the Constitution) lex retro non
agit the power of legal acts must only be prospective (save the
cases allowed by the general legal principle lex benignior retro
agit), it needs to be held that the application of the provisions
of Decree of the President of the Republic No. 2026 "On the
Confirmation of the Projects and Drawings, the Standards and
Substitutes of the Awards of the State of Lithuania, the Rules of
Wearing State Awards, the Regulations of the Lithuanian State
Awards Council and the Regulations of the Chancellor of Orders of
the State of Lithuania" of 16 January 2003 (and of the legal acts
confirmed by itconstituent parts of this decree) could be
started only as from 24 January 2003, when this decree of the
President of the Republic was published in the official gazette
"Valstybės žinios".
Thus, the application of the provisions of the Law on
State Awards could be started only as from 24 January 2003 and
the said provisions could not be applied to any relations that
had appeared till that day.
It needs also to be mentioned that, as the Constitutional
Court held in its ruling of 29 October 2003, under the
Constitution, the Government by its resolutions may not establish
any such legal regulation, whereby the time of entry into force
of a resolution or its becoming no longer valid would depend on
the entry into force of a legal act of lower power, which is
adopted by another subject. This doctrinal provision formulated
in the Constitutional Court ruling of 29 October 2003 is to be
construed as expressing a general constitutional imperative that
the time of entry into force of a legal act of higher power or
its becoming no longer valid should not, nor may be made
dependent on the time of entry into force of a legal act of lower
power or of its becoming no longer valid, etc. Thus, one neither
should nor may make the time of entry into force of a law
dependent on a decree of the President of the Republic, i.e., on
the issuance of a legal act of lower power and its coming into
force.
It also needs to be noted that neither the time of the
adoption, official publishing and coming into force of both
Decree of the President of the Republic No. 2026 "On the
Confirmation of the Projects and Drawings, the Standards and
Substitutes of the Awards of the State of Lithuania, the Rules of
Wearing State Awards, the Regulations of the Lithuanian State
Awards Council and the Regulations of the Chancellor of Orders of
the State of Lithuania" of 16 January 2003 and the Law on State
Awards, nor the date of the beginning of the application of these
legal acts or other circumstances related to that are the matter
of the dispute in the constitutional justice case at issue.
3.6. After the Law on State Awards had come into force,
the Law on Orders, Medals and other Decorations (wording of 12
September 1991 with subsequent amendments and supplements) became
no longer valid (Article 44 of the Law on State Awards).
3.7. Under Article 4 of the Law on State Awards, state
awards are orders, medals and other decorations (enumerated
precisely in this article) granted by a decree of the President
of the Republic. The Medal of Darius and Girėnas is bestowed not
by the President of the Republic, but by the Minister of National
Defence and the Minister of Transport and Communications (Article
43 of the Law on State Awards). Thus, under the now valid legal
regulation, the Medal of Darius and Girėnas is not a state award.
This provision may not be applied to the awards with the Medal of
Darius and Girėnas which were granted under the Law on Orders,
Medals and other Decorations (wording of 12 September 1991 with
subsequent amendments and supplements) which had been valid
before the entry into force of the Law on State Awards.
II
1. Under Item 8 of Paragraph 1 of Article 66 of the Law
on the Constitutional Court, a petition for the investigation of
the compliance of a legal act with the Constitution must contain
the position of the petitioner concerning the compliance of an
appropriate act with the Constitution and legal support of such
position containing references to laws. In the opposite case the
petition is to be returned to the petitioner (Article 70 of the
Law on the Constitutional Court).
2. Under Paragraph 3 of Article 34 of the Law on the
Constitutional Court, each party to the case must prove the
circumstances on the basis of which they make their requests and
retorts. Paragraph 4 of this article inter alia establishes that
parties to the case shall present evidence, that the Court may
propose that they present additional evidence and that the Court
shall accept only that evidence for investigation which confirms
circumstances that are of importance to the case.
3. Under Item 5 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 petition
is grounded on non-legal reasoning.
III
1. The petitioner (if one has in mind inter alia the
explanations of the member of the Seimas P. Gražulis and Š.
Buškevičius provided during the questioning at the Constitutional
Court) assesses negatively all the practice of granting state
awards which is established in Lithuania, and, according to him,
when state awards to persons are granted, "there is chaos", they
are granted to "all those who want them", mostly to "the good
people". In the opinion of the petitioner, the Law on Orders,
Medals and other Decorations, which was deficient, created the
conditions for the formation of such practice. In the context of
the problem at issue (regarding the granting of the state award
to J. Borisov), it is to be noted that the petitioner (his
representatives) assesses the provisions of the Law regarding
awarding the Medal of Darius and Girėnas critically; in the
opinion of the petitioner, those provisions were unclear and not
in line with the Constitution, as the Law did not establish any
criteria, under which it would be possible to decide what merits
to the Lithuanian aviation are to be considered as particularly
special so that it would be possible to award a person the Medal
of Darius and Girėnas for them.
In this context, it needs to be noted that the petitioner
does not request the Constitutional Court to investigate the
compliance of any of the provisions of the Law with the
Constitution.
2. The position of the petitioner (particularly having
taken account of the explanations of the member of the Seimas P.
Gražulis and S. Buškevičius provided during the questioning at
the Constitutional Court) on the compliance of Article 1 of
disputed Decree of the President of the Republic No. 1373 "On
Awarding Orders and Medals of the State of Lithuania on the
Occasion of the Day of State (Coronation of King Mindaugas of
Lithuania)" of 14 June 2001, to the extent that it establishes
that Jurij Borisovthe President of the joint stock company "Avia
Baltika" and a supporter of Lithuanian aviatorsis awarded the
Medal of Darius and Girėnas with the Constitution and Article 128
(wording of 1 July 1993) of the Law is based on inter alia the
following arguments.
According to the petitioner, the aviation company "Avia
Baltika" UAB, headed by Jurij Borisov, "has been known to the
officials of law and order" since 1997; according to P. Gražulis
and S. Buškevičius, the representatives of the petitioner, J.
Borisov has not been, nor is loyal to the Republic of Lithuania
he is assessed in society as "particularly dangerous to our
state" and "has no reputation", it is thought that he "has
discredited himself".
Thus, in the opinion of the petitioner (his
representatives), a person who was not loyal to the Republic of
Lithuania was awarded the Medal of Darius and Girėnas; he was
awarded this medal only for his financial support for the sport
of aeronautics, without taking account of the fact that the
enterprise headed by this person "has been known to the officials
of law and order", as well as of "other facts"; formally
(according to law) the President of the Republic was probably
right granting the Medal of Darius and Girėnas to J. Borisov for
the financial support to the Lithuanian aviation, however, he was
not right because of the moral and political reasons.
Such arguments of the petitioner (his representatives)
are to be assessed as the arguments of expediency: it is not that
the question of lawfulness (constitutionality) of the
implementation of the powers of the President of the Republic to
grant state awards is raised, but it is questioned whether in
this case it was expedient (in the moral and political aspects)
to implement the said powers of the President of the Republic.
3. Moreover, the position of the petitioner (his
representatives) is based on various assumptions and sometimes on
illogical reasoning:
3.1. Thus, the petitioner (his representatives) states
that the President of the Republic did not take account of the
following facts which took place already after the decree of the
President of the Republic was issued on 14 June 2001, by which
inter alia J. Borisov was awarded with the Medal of Darius and
Girėnas (as well as that he did not take account of corresponding
legal acts, which were issued later than the disputed decree of
the President of the Republic), though, allegedly, he had to take
account of such facts:
- the criminal cases regarding the activity of the
aviation company "Avia Baltika" UAB, headed by Jurij Borisov,
which, according to the petitioner (his representatives), were
instituted "on 22 March 2002 and 4 November 2002";
- Decree of the President of the Republic R. Paksas No.
40 "On Granting Citizenship of the Republic Lithuania by Way of
Exception" of 11 April 2003, whereby citizenship of the Republic
of Lithuania was granted to J. Borisov by way of exception and of
the Constitutional Court conclusion of 31 March 2004 (On the
compliance of actions of President Rolandas Paksas of the
Republic of Lithuania against whom an Impeachment case has been
Instituted with the Constitution of the Republic of Lithuania),
that the President of the Republic R. Paksas by his actions
granting citizenship of the Republic of Lithuania to J. Borisov
by way of exception, grossly violated the Constitution.
One is to pay heed to the fact that, according to the
representatives of the petitioner, the member of the Seimas P.
Gražulis and S. Buškevičius, if this Constitutional Court
conclusion had not been presented, the members of the Seimas (as
well as the representatives of the petitioner) perhaps would not
have doubted the compliance of the disputed decree of the
President of the Republic with the Constitution and Article 128
of the Law.
In this context, it is to be emphasized that the petition
of the petitioner was received at the Constitutional Court on 27
February 2003, thus, even before the said Constitutional Court
conclusion was presented.
3.2. According to the petitioner, while deciding on
granting the said state award to J. Borisov, the President of the
Republic Valdas Adamkus had to take account not only of the fact
that, according to the petitioner, the criminal cases had been
instituted regarding the activity of the aviation company "Avia
Baltika" UAB headed by the J. Borisov on 22 March 2002 and 4
November 2002 (i.e. already after J. Borisov had been granted the
Medal of Darius and Girėnas by the disputed decree of the
President of the Republic), but also of "other facts", however,
he did not do that.
The petitioner (his representatives), upon the
proposition of the Constitutional Court, did not explain what are
those "other facts", nor presented any evidence that the
President of the Republic knew about the fact that J. Borisov or
the enterprise headed by this person "has been known to the
officials of law and order".
3.3. In the opinion of the petitioner (his
representatives), if the President of the Republic had taken
account of these circumstances, inter alia the said "other facts
", the state award would not have been granted to J. Borisov, a
person who is disloyal to the Republic of Lithuania. However, as
J. Borisov was nevertheless awarded with the Medal of Darius and
Girėnas by the disputed decree of the President of the Republic,
the petitioner (his representatives) makes an assumption that the
said state award was granted to J. Borisov for his support to
Valdas Adamkus during the elections of the President of the
Republic. Such assumption is based on the fact that, according to
the representatives of the petitioner, the member of the Seimas
P. Gražulis and S. Buškevičius, "people are talking" that,
allegedly, the enterprise headed by J. Borisov had transferred
quite an amount of money to the President of the Republic Valdas
Adamkus foundation.
Therefore, according to the petitioner (his
representatives), the President of the Republic Valdas Adamkus,
who has granted the Medal of Darius and Girėnas to J. Borisov,
should be recognized as having grossly violated the Constitution.
It needs to be emphasized that the petitioner (his
representatives) did not present any evidence that the enterprise
headed by J. Borisov had transferred quite an amount of money to
the President of the Republic Valdas Adamkus foundation or that
the said state award had been granted to J. Borisov for his
support to V. Adamkus during the elections of the President of
the Republic, or that J. Borisov supported V. Adamkus in general.
3.4. All the arguments (assumptions) of the petitioner
(his representatives) which were mentioned here, particularly
taking account of the fact that no evidence is presented, are to
be assessed critically.
In this context, it is to be noted that, under Article 34
of the Law on the Constitutional Court, each party to the case
must present evidence and prove the circumstances on the basis of
which they make their requests.
4. Thus, as it came to light in the course of the
preparation of the case for the judicial consideration, the
petition of the petitioner requesting to investigate whether
Article 1 of Decree of the President of the Republic of Lithuania
No. 1373 "On Awarding Orders and Medals of the State of Lithuania
on the Occasion of the Day of State (Coronation of King Mindaugas
of Lithuania)" of 14 June 2001, to the extent that it establishes
that Jurij Borisovthe President of the joint stock company "Avia
Baltika" and a supporter of Lithuanian aviatorsis awarded the
Medal of Darius and Girėnas, is not in conflict with the
Constitution and whether this Decree of the President of the
Republic, to the specified extent, was not in conflict with
Article 128 of the Law on Orders, Medals and other Decorations,
is based not on legal, but other arguments.
5. A case subsequent to the petition which is based not
on legal reasoning and which is based on assumptions not
supported by evidence is not to be investigated at the
Constitutional Court, as such petition of the petitioner is not
in line with the requirements of the Law on the Constitutional
Court, inter alia Item 5 of Paragraph 1 of Article 69 thereof
(under which, as it was mentioned, by a decision, the
Constitutional Court shall refuse to consider petitions to
investigate the compliance of a legal act with the Constitution,
if the petition is grounded on non-legal reasoning).
6. In the context of the constitutional justice case at
issue, it is also to be noted that on 22 December 2006 the
President of the Republic issued Decree No. 1K-838 "On Crossing
out the Persons Awarded with Medals of the State of Lithuania
from the List of the Awarded Persons", Article 2 whereof
established:
"Pursuant to Paragraph 1 of Article 18 of the Republic of
Lithuania Law on State Awards and taking account of the advice of
the State Awards Council,
I shall amend Decree No. 1373 'On Awarding Orders and
Medals of the State of Lithuania on the Occasion of the Day of
State (Coronation of King Mindaugas of Lithuania)' of 14 June
2001 by crossing out Jurij BORISOV from the list of the persons
awarded the Medals of Darius and Girėnas, as the intentional
crime committed by him (Supreme Court of Lithuania ruling of 18
October 2005) discredits the name of the awarded person."
On 28 December 2006, this decree was published in the
official gazette "Valstybės žinios".
7. Paragraph 4 of Article 69 of the Law on the
Constitutional Court establishes that the annulment of the
disputed legal act shall be grounds to adopt a decision to
dismiss the instituted legal proceedings. If it becomes clear
before the beginning of the Court hearing, the Constitutional
Court shall decide this question in the deliberation room.
The Constitutional Court has more than once held in its
acts that the formula "shall be grounds <
> to dismiss the
instituted legal proceedings" is to be construed as establishing
the powers of the Constitutional Court in the cases when not
courts, but the other subjects specified in Article 106 of the
Constitution applied to the Constitutional Court, to dismiss the
instituted legal proceedings.
8. Taking account of the arguments set forth, as well as
of the fact that under Decree of the President of the Republic
No. 1K-838 "On Crossing out the Persons Awarded with Medals of
the State of Lithuania from the List of the Awarded Persons" of
22 December 2006 J. Borisov was crossed out from the list of
persons awarded the Medal of Darius and Girėnas, thus, he lost
the said award, the legal proceedings in the case subsequent to
the petition of the group of Members of the Seimas, the
petitioner, requesting to investigate whether Article 1 of Decree
of the President of the Republic No. 1373 "On Awarding Orders and
Medals of the State of Lithuania on the Occasion of the Day of
State (Coronation of King Mindaugas of Lithuania)" of 14 June
2001, to the extent that it establishes that Jurij Borisovthe
President of the joint stock company "Avia Baltika" and a
supporter of Lithuanian aviatorsis awarded the Medal of Darius
and Girėnas, is not in conflict with the Constitution and whether
this decree of the President of the Republic, to the specified
extent, was not in conflict with Article 128 of the Law on
Orders, Medals and other Decorations, are to be dismissed.
Conforming Article 28, Paragraphs 3 and 4 of Article 34
and Item 5 of Paragraph 1, Paragraph 2 and Paragraph 4 of Article
69 of the Law on the Constitutional Court of the Republic of
Lithuania,
The Constitutional Court of the Republic of Lithuania has
passed the following
decision:
To dismiss the instituted legal proceedings in the case
subsequent to the petition of the group of Members of the Seimas
of the Republic of Lithuania, the petitioner, requesting to
investigate whether Article 1 of Decree of the President of the
Republic No. 1373 "On Awarding Orders and Medals of the State of
Lithuania on the Occasion of the Day of State (Coronation of King
Mindaugas of Lithuania)" of 14 June 2001 (Official gazette
Valstybės žinios, 2001, No. 57-2029), to the extent that it
establishes that Jurij Borisovthe President of the joint stock
company "Avia Baltika" and a supporter of Lithuanian aviatorsis
awarded the Medal of Darius and Girėnas, is not in conflict with
the Constitution of the Republic of Lithuania and whether this
decree of the President of the Republic, to the specified extent,
was not in conflict with Article 128 of the Republic of Lithuania
Law on Orders, Medals and other Decorations.
Justices of the Constitutional Court: Armanas Abramavičius
Toma Birmontienė
Kęstutis Lapinskas
Zenonas Namavičius
Ramutė Ruškytė
Vytautas Sinkevičius
Stasys Stačiokas
Romualdas Kęstutis Urbaitis