Lietuviškai
Case No. 33/03
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
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
28 March 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,
in the presence of the representatives of the Seimas of the
Republic of Lithuania, the party concerned, who was Jadvyga
Andriuškevičiūtė, senior advisor of the Law Department of the
Office of the Seimas,
pursuant to Articles 102 and 105 of the Constitution of the
Republic of Lithuania and Article 1 of the Law on the
Constitutional Court of the Republic of Lithuania, in its public
hearing on 14 March 2006 heard case No. 33/03 subsequent to the
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 of Republic of
Lithuania is not in conflict with Articles 6, 30, 109 and 110 of
the Constitution of the Republic of Lithuania as well as with the
constitutional principle of a state under the rule of law and
whether Paragraph 3 of Article 11 of the Republic of Lithuania
Law on Courts and Paragraph 2 of Article 96 thereof to the extent
that, according to the petitioner, it establishes possibilities
to decrease the remuneration of judges and their other social
guarantees are not in conflict with Articles 5 and 109, Paragraph
1 of Article 114 of the Constitution of Republic of Lithuania as
well as with the constitutional principle of a state under the
rule of law.
The Constitutional Court
has established:
I
1. The Vilnius Regional Administrative Court, the
petitioner, was investigating an administrative case. By its
ruling, the court suspended the consideration of the case and
applied to the Constitutional Court with a petition requesting to
investigate whether Paragraph 4 of Article 69 of the Law on the
Constitutional Court is not in conflict with Articles 6, 30, 109
and 110 of the Constitution of the Republic of Lithuania 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 establishes possibilities to
decrease the remuneration of judges and their other social
guarantees are 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.
2. The Vilnius Regional Administrative Court, the
petitioner, by the said ruling also applied to the Constitutional
Court with a petition, requesting to construe whether Item 6 of
the resolving part (by which the instituted legal proceedings on
the compliance of inter alia 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
with the Constitution were dismissed), Item 1 of Chapter II of
the part of reasoning (in which, according to the petitioner, it
is specified that the instituted legal proceedings are dismissed
because the corresponding legal regulation is no longer valid),
Item 7 of the resolving part (by which the instituted legal
proceedings on the compliance of Paragraph 1 of Article 1 of
inter alia the Law on the Approval of the Financial Indices of
the 2000 State Budget and the Budgets of Local Governments with
the Constitution were dismissed) and Item 2 of Chapter II of the
part of reasoning (in which, according to the petitioner, it is
specified that the instituted legal proceedings are dismissed
because the corresponding legal regulation is no longer valid) of
the Constitutional Court Ruling "On the compliance of Paragraph 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 mean one or several of the following reasons:
- the Law on the Approval of the Financial Indices of the
2000 State Budget and the Budgets of Local Governments and
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 are not in
conflict with the Constitution of the Republic of Lithuania to
the extent that these legal acts are related to the decrease of
the remuneration of judges;
- the instituted legal proceedings on the compliance of the
Law on the Approval of the Financial Indices of the 2000 State
Budget and the Budgets of Local Governments and 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 with the Constitution of the
Republic of Lithuania were dismissed because the legal
regulation, established by the said legal acts, had been no
longer valid prior to the day of the adoption of the said
Constitutional Court ruling, thus it made no sense to decide on
their compliance with the Constitution of the Republic of
Lithuania as, under the Constitution of the Republic of
Lithuania, a person has the right to protection of his
constitutional rights and freedoms not for the whole period of
time of the violation of the Constitution but only for the period
of time when the violations of these rights and freedoms were
violated after the announcement of the Constitutional Court
decision that recognised the legal act (part thereof) as being in
conflict with the Constitution;
- the instituted legal proceedings on the compliance of the
Law on the Approval of the Financial Indices of the 2000 State
Budget and the Budgets of Local Governments and 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 with the Constitution of the
Republic of Lithuania were dismissed not due to the two said
reasons but by executing the requirements of Paragraph 4 of
Article 69 of the Law on the Constitutional Court.
By its decision of 26 January 2006, the Constitutional
Court separated into an individual case the 9 July 2003 petition
of the Vilnius Regional Administrative Court, the petitioner, to
the extent that it is requested to construe whether Items 1 and 2
of Chapter II of the part of reasoning and Items 6 and 7 of the
resolving part of the Constitutional Court Ruling "On the
compliance of Paragraph 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 12 July 2001 mean one or
several reasons specified by the petitioner, while by its
decision of 14 March 2006 it refused to construe, subsequent to
the petition of the Vilnius Regional Administrative Court, the
petitioner, provided in the 3 June 2003 ruling of the said court,
whether Items 1 and 2 of Chapter II of the part of reasoning and
Items 6 and 7 of the resolving part of the Constitutional Court
of the Republic of Lithuania Ruling "On the compliance of
Paragraph 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, mean one or several of the reasons specified by
the petitioner.
II
The petition of the petitioner is based on the following
arguments.
1. Under Paragraph 4 of Article 69 of the Law on the
Constitutional Court, the annulment of the disputed legal act
shall be grounds to adopt a decision to dismiss the instituted
legal proceedings. In the opinion of the petitioner, this
provision does not allow the court to administer justice without
applying the law that is in conflict with the Constitution, which
is forbidden to be applied by Paragraph 1 of Article 110 of the
Constitution, it prevents the court and the persons who
participate in the case from making use of the opportunity, which
arises from Paragraph 2 of Article 110 of the Constitution, to
remove doubts regarding the constitutionality of the legal act,
it hinders the person whose rights and freedoms are violated to
implement the right, which is entrenched in Article 30 of the
Constitution, to apply to court in order to restore the violated
rights and to adjudicate compensation of damages, as well as the
right, which is entrenched in Article 6 of the Constitution, to
defend his rights by invoking the Constitution; thus the
constitutional principle of a state under the rule of law is
violated as well.
2. Under Paragraph 2 of Article 96 of the Law on Courts,
during the judge's tenure it shall be prohibited to reduce his
remuneration with the exception of cases provided by this law, or
any other social guarantees; the case when it is possible to
reduce the remuneration to the judge is provided for in Paragraph
3 of Article 11 of the Law on Courts: 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. In the opinion of the petitioner, such
legal regulation is not concrete because state institutions are
allowed to interpret any necessity to pay any funds of the budget
as deterioration of the financial situation of the state; in such
way, the possibility is entrenched to reduce the remuneration of
judges at any time, inter alia in the cases, when the courts,
while restoring violated rights of persons, adjudicate payment of
certain sums of money from the state or its institutions, if it
is possible to interpret the necessity to pay these sums of money
as deterioration of the financial situation of the state, thus,
also as the bases in order to reduce the remuneration of judges
and their other social guarantees. In the opinion of the
petitioner, such legal regulation is in conflict with Articles 5,
109, Paragraph 1 of Article 114 of the Constitution as well as
with the constitutional principle of a state under the rule of
law.
III
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations from J.
Andriuškevičiūtė, the representative of the Seimas, the party
concerned, were received. In the opinion of the representative of
the party concerned, the disputed provisions of Paragraph 4 of
Article 69 of the Law on the Constitutional Court and Paragraph 3
of Article 11 and Paragraph 2 of Article 96 of the Law on Courts
are not in conflict with the Constitution. The representative of
the party concerned grounds her position on the following
arguments.
1. Under Paragraph 4 of Article 69 of the Law on the
Constitutional Court, the Constitutional Court shall have the
right but not a duty to dismiss the instituted legal proceedings
on the compliance of the legal act which is no longer valid with
the Constitution. The rulings of the Constitutional Court are
final and not subject to appeal. Under Article 62 of the Law on
the Constitutional Court, the Constitutional Court may review its
ruling on the Court's own initiative, if new essential
circumstances turn up which were unknown to the Constitutional
Court at the time when the ruling was passed. In such case, the
Constitutional Court has not only a right but also a duty to
decide on the constitutionality of the legal act that had not
been investigated, on the compliance of which with the
Constitution the legal proceedings were dismissed.
2. Under the Law on Courts, it is possible to review the
financial and material conditions of the courts, when the
economic and financial situation of the state deteriorates
considerably. Such considerable deterioration may be stated by
the Government and grounded on the economic and financial indexes
of the state, while the financial and material conditions may be
reviewed only after the laws, establishing these conditions, are
amended. The "review" is to be construed as the establishment of
different but not necessarily worse financial and working
conditions for the functioning of the courts after the economic
and financial situation of the state is assessed. Moreover, it is
not allowed to considerably deteriorate the financial and working
conditions of courts. On the other hand, if it were completely
forbidden to change the financial and working conditions of
courts, which are established by laws, even when the economic and
financial situation of the state deteriorates considerably, it
would be impossible to ensure the rights of other persons,
because exclusive guarantees would be established to one group of
persons, while the rights and social condition of other citizens
would not be taken into account.
IV
At the hearing of the Constitutional Court, J.
Andriuškevičiūtė, the representative of the Seimas, the party
concerned, virtually reiterated the arguments set forth in the
written explanations.
The Constitutional Court
holds that:
I
1. The petitioner inter alia requests to investigate
whether Paragraph 4 of Article 69 of the Law on the
Constitutional Court is 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.
1.1. While identifying the wording in which Paragraph 4 of
Article 69 of the Law on the Constitutional Court is set forth,
the petitioner indicates the sourceOfficial Gazette Valstybės
žinios, 1993, No. 6, in which the Law on the Constitutional Court
of the wording of 3 February 1993 was officially published and he
also makes reference to the law adopted by the Seimas on 10 July
2001 by which the amendment of one of the articles of the Law on
the Constitutional Court was made; this law is the Republic of
Lithuania Law on Amending and Supplementing the Law on the State
Control, the Law on Courts, the Law on the Constitutional Court,
the Law on the Seimas Controller, the Law on the Working
Conditions of the Members of the Seimas, the Law on the
Prosecutor's Office, the Statute on the Service in the
Prosecutor's Office of the Republic of Lithuania, the Law on
Equal Opportunities for Men and Women and the Law on the
Controller for Child Rights Protection, adopted by the Seimas on
10 July 2001, whose Article 1 of Chapter 3 amended Article 16 of
the Law on the Constitutional Court.
1.2. On 3 February 1993, the Seimas adopted the Law on the
Constitutional Court. This law has been amended and supplemented
more than once.
1.3. In Paragraph 4 (wording of 3 February 1993) of Article
69 of the Law on the Constitutional Court, it was established:
"The annulment of the disputed legal act shall be grounds to
adopt a decision to dismiss the instituted legal proceedings".
Paragraph 4 of Article 69 of the Law on the Constitutional
Court has been supplemented onceby Article 18 of the Republic of
Lithuania Law on Amending and Supplementing the Law on the
Constitutional Court, which was adopted by the Seimas on 11 July
1996. Save this supplement, neither till that time, nor after (by
the Republic of Lithuania Law on Amending and Supplementing the
Law on the State Control, the Law on Courts, the Law on the
Constitutional Court, the Law on the Seimas Ombudsmen, the Law on
the Working Conditions of the Members of the Seimas, the Law on
the Prosecutor's Office, the Statute on the Service in the
Prosecutor's Office, the Law on Equal Opportunities for Men and
Women and the Law on the Controller for Child Rights Protection,
adopted by the Seimas on 10 July 2001, inter alia specified by
the petitioner) was the said part amended or supplemented.
In Paragraph 4 (wording of 11 July 1996) of Article 69 of
the Law on the Constitutional Court it is established:
"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."
1.4. It is obvious from the arguments of the petition of
the petitioner that the petitioner had doubts on whether 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 of Article 69 of the Law on the
Constitutional Court is not in conflict with the Constitution.
Such provision was entrenched in Paragraph 4 (wording of 3
February 1993, Official Gazette Valstybės žinios, 1993, No. 6-
120) of Article 69 of the Law on the Constitutional Court and is
entrenched in Paragraph 4 (wording of 11 July 1993, Official
Gazette Valstybės žinios, 1996, No. 73-1749) of Article 69 of the
Law on the Constitutional Court.
1.5. It is also obvious from the arguments of the petition
of the petitioner that the petitioner had doubts on whether the
said provision is not in conflict inter alia not with whole
Article 6 of the Constitution but only with Paragraph 2 of this
article, in which it is established that everyone may defend his
rights by invoking the Constitution, not with whole Article 30 of
the Constitution, but only with Paragraph 1 of this article, in
which it is established that a person whose constitutional rights
or freedoms are violated shall have the right to apply to court,
and not with whole Article 109 of the Constitution, but only with
Paragraph 1 of this article, in which it is established that in
the Republic of Lithuania justice will be administered only by
courts.
2. The petitioner inter alia requests to investigate
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 the possibilities to reduce the
remuneration of judges and their other social guarantees, are 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.
2.1. While identifying the wording of disputed Paragraph 3
of Article 11 and Paragraph 2 of Article 96 of the Law on the
Constitutional Court (to the extent indicated by the petitioner),
the petitioner makes reference to the law adopted by the Seimas
on 24 January 2002, and he also indicates No. 17 of the Official
Gazette Valstybės žinios of 2002, in which this law was
officially published.
2.2. The law indicated by the petitioner, which was adopted
by the Seimas on 24 January 2002, is the Republic of Lithuania
Law on Amending the Law on Courts, whose Article 1 amended the
Law on Courts (wording of 31 May 1994 with subsequent amendments
and supplements) and set it forth in a new wording. The Law on
Courts of the new wording came into force on 1 May 2002. The Law
on Courts of the new wording has been more than once amended and
supplemented, however, its Paragraph 3 (wording of 24 January
2002, Official Gazette Valstybės žinios, 2002, No. 17-649) of
Article 11 and Paragraph 2 (wording of 24 January 2002, Official
Gazette Valstybės žinios, 2002, No. 17-649) of Article 96 have
not been amended nor supplemented.
2.3. In Paragraph 3 (wording of 24 January 2002) of Article
11 of the Law on Courts it is established:
"It shall be prohibited to worsen the financial and
material-technical conditions for the functioning of courts
provided by the 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."
In Paragraph 2 (wording of 24 January 2002) of Article 96
of the Law on Courts, it is established: "During the judge's
tenure it shall be prohibited to reduce his remuneration with the
exception of cases provided by this Law, or any other social
guarantees."
2.4. It is obvious from the arguments of the petition of
the petitioner that the petitioner had doubts on inter alia
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 the Constitution.
2.5. It is also obvious from the arguments of the petition
of the petitioner that the petitioner had doubts on 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 and Paragraph 2 (wording of 24 January 2002)
of Article 96, to the extent that, according to the petitioner,
it establishes the possibilities to reduce the remuneration of
the judge and other social guarantees, are not in conflict not
with inter alia whole Article 5 of the Constitution but only with
Paragraph 2 of this article, in which it is established that the
scope of power shall be limited by the Constitution, not with the
whole Article 109, but only with Paragraph 2 of this article, in
which it is established that while administering justice, the
judge and courts shall be independent, and with Paragraph 3, in
which it is established that when considering cases, judges shall
obey only the law.
II
On the compliance 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 with Paragraph 2 of Article 6, Paragraph 1 of Article 30,
Paragraph 1 of Article 109 and Paragraph 2 of Article 110 of the
Constitution as well as with the constitutional principle of a
state under the rule of law.
1. Under Paragraph 4 (wording of 11 July 1996) of Article
69 of the Law on the Constitutional Court, the annulment of the
disputed legal act shall be grounds to dismiss the instituted
legal proceedings.
The petitioner doubts on whether this provision is not in
conflict with Paragraph 2 of Article 6 of the Constitution, in
which it is established that everyone may defend his rights by
invoking the Constitution, with Paragraph 1 of Article 30 of the
Constitution, in which it is established that the person whose
constitutional rights or freedoms are violated shall have the
right to apply to court, with Paragraph 1 of Article 109 of the
Constitution, in which it is established that in the Republic of
Lithuania justice shall be administered only by courts, with
Article 110 of the Constitution, in which it is established that
a judge may not apply a law, which is in conflict with the
Constitution (Paragraph 1), and also that in cases when there are
grounds to believe that the law or other legal act which should
be applied in a concrete case is in conflict with the
Constitution, the judge shall suspend the consideration of the
case and shall apply to the Constitutional Court requesting it to
decide whether the law or other legal act in question is in
compliance with the Constitution (Paragraph 2) as well as with
the constitutional principle of a state under the rule of law.
2. When deciding, according to the petition of the
petitioner, whether the provision "the annulment of the disputed
legal act shall be grounds to dismiss the instituted legal
proceedings" of Paragraph 4 (wording of 11 July 1996) of Article
69 of the Law on the Constitutional Court is not in conflict with
Constitution, it is necessary to discuss the model of
constitutional justice (the model of constitutional judicial
control) consolidated in the Constitution, the powers of the
Constitutional Court and other courts by which one ensures that
the hierarchy of legal acts arising from the Constitution is
taken into account and that the legal acts which are in conflict
with a legal act of higher power are not applied.
3. In the Republic of Lithuania justice shall be
administered only by courts (Paragraph 1 of Article 109 of the
Constitution).
3.1. Courtsjurisdictional institutionsimplement judicial
power which, as the legislative and executive powers, is an all-
sufficient branch of state power, one of the state powers
consolidated in the Constitution. Administration of justice is
the purpose and constitutional competence the judicial power.
The judicial power differs from other state powers inter
alia by the fact that it is formed on the professional but not
political basis (Constitutional Court rulings of 21 December
1999, 12 July 2001, conclusion of 31 March 2004).
The courts which, under the Constitution, implement
judicial power in Lithuania are to be attributed not to one, but
to two or more (if that, taking account of the Constitution, is
established in corresponding laws) systems of courts.
3.2. In Paragraph 1 of Article 102 of the Constitution it
is established 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 and laws. Moreover, in the Constitution (its inter
alia Chapter VIII thereof titled "The Constitutional Court")
other powers of the Constitutional Court are also established as
well as the legal power and consequences of the Constitutional
Court decisions is consolidated, the procedure of forming the
Constitutional Court is determined, the basis and guarantees of
implementing powers (activity) of the Constitutional Court are
established, the status of the justices of the Constitutional
Court is consolidated, etc.
Thus, the Constitutional Court implements constitutional
judicial control. The Constitutional Court is an institution of
constitutional justice. When deciding under its competence on the
compliance of the legal acts (parts thereof) of lower power with
legal acts of greater 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.
The Constitutional Court has held that while administering
justice, the court must follow only the laws and legal acts that
are not in conflict with the Constitution, it may not apply a
law, which is in conflict with the Constitution, that, when
account is taken of the hierarchy of legal acts which originates
from the Constitution, this provision of the Constitution means
that the judge may not apply a substatutory legal act, which is
in conflict with the Constitution, too. Moreover, he may not
apply such a substatutory legal act, which is in conflict with
the law. On the other hand, the aforementioned provision of the
Constitution reflects the constitutional principle, one of the
basic elements of the enshrined in the Constitution principle of
a state under the rule of law, that a legal act, which is in
conflict with a legal act of greater power, may not be applied
(Constitutional Court rulings of 13 December 2004 and 16 January
2006).
Thus, it is to be emphasized that Paragraph 1 of Article
102 of the Constitution may not be construed only by applying the
linguistic method, literally, that it, allegedly, provides a
comprehensive and final list of the legal acts the investigation
of the compliance of which with legal acts of greater power,
inter alia (and, first of all) with the Constitution and adoption
of corresponding decisions is attributed to the jurisdiction of
the Constitutional Court in the Constitution. Paragraph 1 of
Article 102 of the Constitution is to be construed while taking
account of the whole context of the constitutional legal
regulation, inter alia while paying heed to the principle of
separation of powers, to the purpose and place of the
Constitutional Court in the system of the state institutions
which execute the judicial power (and power of the state in
general), which are consolidated in the Constitution, the
institute of constitutional laws (that under Constitution have
greater legal power than ordinary laws), which is entrenched in
the Constitution, to the provisions of the Constitution under
which laws (provisions thereof) or other legal acts may also be
adopted by referendum (Paragraph 1 of Article 9, Paragraph 4 of
Article 69, Paragraphs 3 and 4 of Article 71 of the
Constitution), to the constitutional duty of the President of the
Republic to perform everything which he is charged with by the
Constitution and laws (Paragraph 2 of Article 77 of the
Constitution), to the constitutional duty of the Government to
execute laws and resolutions of the Seimas on the implementation
of the laws as well as the decrees of the President of the
Republic (Item 2 of Article 94 of the Constitution), to the
principle of the supremacy of the Constitution and a state under
the rule of law, which, in addition to most other things, imply
the hierarchy of all legal acts and the prohibition that arise
from it to establish in the legal acts of lower power any such
legal regulation that would compete with the one established in
the legal acts of greater power (undoubtedly, first of all in the
Constitution itself), nor to implement any legal acts that are in
conflict with legal acts of greater power as well as the
possibility to eliminate from the legal system the legal acts
(parts thereof) that do not meet the said requirements, thus
taking account of the purpose of the constitutional judicial
control, as the constitutional institute and of the contextual
meaning of the constitutional provisions that consolidate it.
When in this way construing Paragraph 1 of Article 102 of the
Constitution in the whole context of the constitutional legal
regulation, it is to be held that under the Constitution, the
Constitutional Court has the exclusive competence to investigate
and decide on whether any act of the Seimas, the President of the
Republic or the Government, as well as any act (part thereof)
adopted by referendum is not in conflict with any act of greater
power, inter alia (and, first of all) with the Constitution,
namely: whether any constitutional law (part thereof) is not in
conflict with the Constitution, whether any law (part thereof)
and the Statute of the Seimas (part thereof) are not in conflict
with the Constitution and constitutional laws, whether any
substatutory legal act (part thereof) of the Seimas is not in
conflict with the Constitution, constitutional laws, laws, and
the Statute of the Seimas, whether any act (part thereof) of the
President of the Republic is not in conflict with the
Constitution, constitutional laws and laws, and whether any act
(part thereof) of the Government is not in conflict with the
Constitution, constitutional laws and laws.
It is this concept, which is based upon such construction
of the constitutional powers of the Constitutional Court while
deciding on the compliance of legal acts with legal acts of
greater power, inter alia (and, first of all) with the
Constitution, of Paragraph 1 of Article 102 of the Constitution,
which is embodied by the jurisprudence of the Constitutional
Court, which, under the Constitution, has been formed by the
Constitutional Court from the very beginning of its activities,
by inter alia these Constitutional Court rulings, by which,
subsequent to the petitions of the petitioners (courts, the
Government, the groups of the Members of the Seimas and the
Seimas in corpore), it was decided on such compliance of legal
acts with legal acts of greater power, which is not expressis
verbis mentioned either in Paragraph 1 of Article 102 of the
Constitution, or in other articles (parts thereof) of Chapter
VIII "The Constitutional Court" of the Constitution, such as:
whether the substatutory legal acts of the Seimas, i.e. the
resolutions of the Seimas on the implementation of laws, which
are specified in Item 2 of Article 94 of the Constitution, are
not in conflict with laws; whether laws are not in conflict with
constitutional laws, whether the Statute of the Seimas that has
the power of law (Article 76 of the Constitution), which,
however, may regulate not any but only certain relations
indicated in the Constitutionit may establish the structure and
the procedure of activities of the Seimas (Constitutional Court
ruling of 13 May 2004)is not in conflict with the Constitution;
whether substatutory legal acts of the Seimas are not in conflict
with the Statute of the Seimas. If Paragraph 1 of Article 102 of
the Constitution were construed literally, such constitutional
justice cases in which the petitioners (courts, the Government,
groups of Members of the Seimas and the Seimas in corpore) had
doubts and subsequent to their petitions it was decided whether
laws were not in conflict with constitutional laws, whether
substatutory legal acts of the Seimas were not in conflict with
laws, whether the Statute of the Seimas was not in conflict with
the Constitution, as well as whether substatutory legal acts of
the Seimas were not in conflict with the Statute of the Seimas
would have been impossible at all. Also such constitutional
justice cases would have been impossible, in which the
Constitutional Court, while deciding, subsequent to petitions of
petitioners, on the compliance of corresponding laws with the
Constitution, ex officio had to elucidate and adopt a decision
whether the constitutional laws, upon which, as it had been
asserted, the disputed laws (parts thereof) were grounded and/or
which regulated the same (or close) relations as the disputed
laws did, were not in conflict with the Constitution. If
Paragraph 1 of Article 102 of the Constitution were construed
literally, it would also be impossible to investigate whether the
laws (provisions thereof) or other legal acts adopted by
referendum were not in conflict with the Constitution and
constitutional laws, whether such legal acts (parts thereof) of
lower power of onetime (ad hoc) application, passed by the
Seimas, the President of the Republic or the Government, which at
the moment when the constitutional justice case was being
considered had already been implemented, were not in conflict
with the Constitution and other acts of greater power. The
establishment of legislative omission would have become more
difficult as well.
Thus, different, literal construction of Paragraph 1 of
Article 102 of the Constitution would mean that the Constitution,
purportedly, tolerates its own disregard, when certain legal acts
(for example, constitutional laws or the Statute of the Seimas)
are passed, that under the Constitution, purportedly, it is
possible to disregard constitutional laws when laws are passed,
and to disregard laws and constitutional laws, when certain
substatutory legal acts (for example, those of the Seimas) are
passed, as well as that, purportedly, under the Constitution, it
is possible to disregard the Constitution when laws (provisions
thereof) or other legal acts are passed by referendum. Thus, the
legal acts (parts thereof) of lower power of onetime (ad hoc)
application passed by the Seimas, the President of the Republic
or the Government would, in general, avoid the verification of
their compliance with legal acts of greater power, inter alia
(and, first of all) with the Constitution. Literal (moreover,
narrowing) construction of Paragraph 1 of Article 102 of the
Constitution would be totally groundless as it would deny the
principle of the supremacy of the Constitution, the
constitutional principle of a state under the rule of law, the
hierarchy of all legal acts arising from the Constitution (which
imply inter alia the compliance of substatutory legal acts with
laws), the provision of Paragraph 1 of Article 7 of the
Constitution that any law or other act, which is contrary to the
Constitution, shall be invalid, the provision of Paragraph 2 of
Article 5 of the Constitution that the scope of powers shall be
limited by the Constitution, and the provision of Paragraph 1 of
Article 6 of the Constitution that everyone may defend his rights
by invoking the Constitution. If only such literal construction
of Paragraph 1 of Article 102 of the Constitution were followed,
preconditions would be created to violate also other values,
inter alia constitutional rights of a person entrenched in and
defended and protected by the Constitution. In this context, it
is also to be noted that the Constitution, if it is construed
only by applying the linguistic method and literally, could not
be supreme law of Lithuania as it would be virtually identified
with its textual formthe letter of the Constitution would be
particularized and the spirit of the Constitution would be
ignored.
In Paragraph 1 of Article 107 of the Constitution it is
established 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. Thus, the erga omnes model of constitutional
control is consolidated in the Constitution.
In Paragraph 2 of Article 102 of the Constitution it is
established that 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. Thus, the legislator has the
duty to regulate by the law all the relations related to the
status, forming, execution of powers (activity) and its
guarantees of the Constitutional Court, to the status of the
justices of the Constitutional Court as well as with the
implementation of Constitutional Court decisions. Moreover, the
title of this law is expressis verbis consolidated in the
Constitutionthe Law on the Constitutional Court. Alongside, it
is also to be noted that such constitutional legal regulation in
itself does not mean that certain relations, related to the said
relations, may not be in general regulated by other laws as well.
3.3. In Paragraph 1 of Article 111 of the Constitution it
is established that the courts of the Republic of Lithuania shall
be the Supreme Court of Lithuania, the Court of Appeal of
Lithuania, regional courts and local courts. These courts, which
are specified in Paragraph 1 of Article 111 of the Constitution,
comprise the system of courts of general jurisdiction
(Constitutional Court rulings of 13 December 2004 and 16 January
2006).
One can find significant links between the system of courts
of general jurisdiction and the institution of constitutional
justice, the Constitutional Court, inter alia: upon the basis
established in the Constitution (Paragraphs 1, 2 and 3 of Article
106 and Paragraph 2 of Article 110), any court (judge thereof) of
general jurisdiction, as a petitioner, has the powers to initiate
cases of constitutional justice at the Constitutional Court; all
courts of general jurisdictionthe Supreme Court of Lithuania,
the Court of Appeal of Lithuania, regional courts and local
courtsare bound by the fact that the decisions of the
Constitutional Court on issues ascribed to its competence by the
Constitution shall be final and not subject to appeal, which is
entrenched in Article 107 of the Constitution; all courts of
general jurisdiction are bound by the official constitutional
doctrine, formed in the jurisprudence of the Constitutional
Court.
However, from the organizational and administrative points
of view, both of these systems of courtsthe Constitutional
Court, implementing constitutional judicial control, and the
system of courts of general jurisdictionare separated.
Under the Constitution, the system of courts of general
jurisdiction, as a system of institutions, is comprised of four-
level courts: the first (lowest) levellocal courts, the second
levelregional courts, the third levelthe Court of Appeal of
Lithuania, the fourth (supreme/highest) levelthe Supreme Court
of Lithuania. The legislator, taking account of the Constitution,
has the discretion to establish as many local and regional
courts, as, in his opinion, is necessary, and to establish such a
quantitative composition, which, to his mind, is necessary in
order to administer justice properly and in time, as well as to
determine such territorial boundaries of the activity of
corresponding local and regional courts, which, in his opinion,
are necessary in order to administer justice properly and in
time.
In the Constitution (inter alia Paragraph 1 of Article 111
of the Constitution) not only a four-level system of courts of
general jurisdiction (as a system of institutions) is
established, but also the fundamentals of the instance systems of
courts of general jurisdiction, as a system of procedural levels
of judicial consideration of cases, are entrenched. The instance
system of courts of general jurisdiction, which stems from the
Constitution, implies that there must be possibilities to lodge
an appeal against any final act of a court of general
jurisdiction of the first instance with a court of general
jurisdiction of at least one higher instance. The Constitutional
Court has held that the purpose of the instance court system is
to remove possible mistakes of courts of lower instances, not to
permit that injustice is executed, and thus to protect the rights
and legitimate interests of the person, society and the state
(Constitutional Court ruling of 16 January 2006). Thus, the
purpose of the instance system of courts of general jurisdiction
is to create preconditions for courts of higher instances to
correct any mistakes of the fact (i.e. of the establishment and
assessment of legally significant facts) or of the law (i.e. of
the application of law), which for some reasons could be made by
a court of lower instance, and not to allow that injustice is
executed in any civil case, criminal case or case of other
category considered by courts of general jurisdiction. The said
correction of mistakes of courts of lower instance and the
related prevention of injustice is conditio sine qua non of the
confidence of the parties of corresponding cases and society in
general not only in the court of general jurisdiction which
considers the corresponding case, but also in the whole system of
courts of general jurisdiction.
The principle of a state under the rule of law entrenched
in the Constitution implies continuity of jurisprudence
(Constitutional Court rulings of 12 July 2001, 30 May 2003,
decision of 13 February 2004, rulings of 13 December 2004 and 14
March 2006). In this context, it is to be emphasized that the
instance system of courts of general jurisdiction established in
the Constitution must function so that the preconditions are
created to form the same (regular, consistent) practice of courts
of general jurisdiction, i.e. such, which would be based on the
principles of a state under the rule of law, justice, equality of
all persons before the law (and other constitutional principles)
enshrined in the Constitution, on the maxim inseparably linked
with the said principles and arising from them that the same
(analogous) cases must be decided in the same way, i.e. they have
to be decided not by creating new court precedents, competing
with the existing ones, but by taking account of the already
consolidated ones. When ensuring the uniformity (regularity,
consistency) of the practice of courts of general jurisdiction,
which arises from the Constitution, thus, also the continuity of
the jurisprudence, the following factors (along with other
important factors) are of crucial importance: the courts of
general jurisdiction, when adopting decisions in cases of
corresponding categories, are bound by their own created
precedentsdecisions in the analogous cases; the courts of
general jurisdiction of lower instance, when adopting decisions
in the cases of corresponding categories, are bound by the
decisions of the courts of general jurisdiction of higher
instanceprecedents in the cases of the same categories; the
courts of general jurisdiction of higher categories, while
revising decisions of the courts of general jurisdiction of lower
instance, must assess these decisions by always following the
same legal criteria; these criteria must be clear and known ex
ante to the subjects of law, inter alia to the courts of general
jurisdiction of lower instance (thus, the jurisprudence of courts
of general jurisdiction must be predictable); the practice of
courts of general jurisdiction in cases of corresponding
categories has to be corrected and new court precedents in these
categories may be created only when it is unavoidably and
objectively necessary; such correction of practice of courts of
general jurisdiction (deviation from the previous precedents,
which had been binding on courts until then and creation of new
precedents) must in all cases be properly (clearly and
rationally) argued in corresponding decisions of courts of
general jurisdiction. The fact that the courts of general
jurisdiction that adopt decisions in cases of corresponding
categories bind themselves by their own created precedents
(decisions in analogous cases) and the fact that the courts of
general jurisdiction of lower instance that adopt decisions in
cases of corresponding categories are bound by decisions of the
courts of general jurisdiction of higher instance (precedents in
cases of such categories) inevitably imply that the said courts
have to follow such concept of the content of corresponding
provisions (norms, principles) of law, also of the application of
these provisions of law, which was formed and which was followed
when applying these provisions (norms, principles) in the
previous cases, inter alia when previously deciding analogous
cases. Disregarding the maxim that the same (analogous) cases
have to be decided in the same way, which arises from the
Constitution, would also mean disregarding the provisions of the
Constitution on administration of justice, that of the
constitutional principles of a state under the rule of law,
justice, equality of people before the court and other
constitutional principles.
The establishment of four-level courts of general
jurisdiction and the consolidation of the grounds of the instance
system of courts of general jurisdiction in the Constitution in
itself does not mean that it is four judicial instances (as
levels of proceedings of cases and not as institutional links)
that the legislator is constitutionally obliged to create by law,
i.e. that he has to establish such legal regulation, under which
it would be possible to consider any case in a local court, the
regional court, the Court of Appeal of Lithuania and in the
Supreme Court of Lithuania. On the contrary, in most of the
democratic states under the rule of law such a tradition of the
instance system of courts of general jurisdiction has been
developed (which is not questioned), where these courts comprise
a three-level instance system: in this system, the consideration
of cases is attributed to the court of first instance, the court
of appeal instance (when the facts that are important to the
decision of the case are inter alia investigated and assessed
anew) and the court of cassation instance (when no facts that are
important to the decision of the case are newly established,
because this has already been done by the court of appeal
instance, but the issues on the application of law are decided
anew). It is suchthree-levelinstance system of courts of
general jurisdiction which is established by laws in Lithuania as
well. It is to be noted that under the Constitution, the
legislator has discretion to establish (by following inter alia
expediency reasons) which civil, criminal cases or cases of other
categories have to be considered by first instance in local
courts, and which in regional courts; the legislator has also
certain discretion to establish (by following inter alia
expediency reasons) whether the proceedings of appeal have to
take place only in the Court of Appeal of Lithuania or also in
regional courts. However, under the Constitution, it is not
permitted to establish any such legal regulation, nor to form any
such practice of courts that would eliminate the essential
difference among the proceedings of cases in the court of first
instance, the proceedings of cases in the court of appeal
instance and/or the proceedings of cases in the court of
cassation instance, nor to establish any such legal regulation
nor to form any such practice of courts that would deny the
constitutional nature of the Court of Appeal of Lithuania, as a
court of appeal instance, and/or the Supreme Court of Lithuania,
as a court of cassation instance.
In this context it is to be mentioned that the
Constitutional Court in its ruling of 22 December 1994 formed the
doctrine that under the Constitution, the Seimas is free to
choose the ways in which the then system of courts (i.e. the one
which had been created before the Constitution came into force
and which functioned for a certain period of time after the
Constitution had come into force) had to be reformed so that it
would be in line with the model of the four-level courts system
entrenched in the Constitution, however, these ways could not be
in conflict with the Constitution. In the said Constitutional
Court ruling it was emphasized that when the then system of
courts (created before the Constitution came into force and which
functioned for a certain period of time after the Constitution
had come into force) was reformed so that it would be in line
with the model of the four-level courts system entrenched in the
Constitution, the Supreme Court of Lithuania became exclusively
the instance of cassation.
It was mentioned that one of the factors that is of crucial
importance when ensuring the uniformity (regularity, consistency)
of the practice of courts of general jurisdiction, thus, also the
continuity of the jurisprudence is that the practice of courts of
general jurisdiction may be corrected in cases of corresponding
categories and new court precedents may be created in cases of
these categories only when it is unavoidably and objectively
necessary; such correction of the practice of courts of general
jurisdiction (deviation from the previous precedents which had
been binding on the courts by then) must in all cases be properly
(clearly and rationally) argued in corresponding decisions of
courts of general jurisdiction. It is to be emphasized that the
already existing precedents in cases of corresponding categories,
which were created by courts of general jurisdiction of higher
instance, not only are binding on the courts of general
jurisdiction of lower instance that adopt decisions in analogous
cases, but also the courts of general jurisdiction of higher
instance that created those precedents (inter alia the Court of
Appeal of Lithuania and the Supreme Court of Lithuania). One may
deviate from the existing precedents and create new precedents
only in such particular exceptional cases when it is unavoidably
and objectively necessary, when it is constitutionally grounded
and reasoned and only when it is properly (clearly and
rationally) argued. Neither the creation of new court precedents,
nor the arguing (grounding) of the court precedents may be such
voluntary acts that are not rationally and legally reasoned. No
creation or reasoning of a new court precedent may be determined
by accidental (in the aspect of law) factors. It arises from the
Constitution that it is such correction only when it is
unavoidably and objectively necessary, and when it is properly
(clearly and rationally) argued in all casesof the practice of
courts of general jurisdiction (deviation from the previous
precedents that had been binding on courts by then and creation
of new precedents) must be respectively ensured by the Court of
Appeal of Lithuania and the Supreme Court of Lithuania. If the
said requirements arising from the Constitution are disregarded
when the court decisions are adopted, not only the preconditions
for the irregularities and inconsistencies to appear in the
practice of courts of general jurisdiction and the legal system
are created, not only the jurisprudence of courts become less
predictable, but also there are grounds for doubts on whether the
corresponding courts of general jurisdiction were impartial when
adopting the decisions, and whether these decisions were not
subjective in other aspects. In this context it is to be noted
that the final acts of the court must be clear for the persons
participating in the case as well as other persons, and in case
this requirement is disregarded, then this is not the
administration of justice which is entrenched in the Constitution
(Constitutional Court ruling of 16 January 2006).
The constitutional concept of administration of justice and
that of courts of general jurisdiction imply that the law has to
establish such legal regulation that, under the laws, each court
of general jurisdiction of certain instance would perform
precisely such functions which are typical for the courts of
general jurisdiction of that instance. In this context it is to
be noted that, as the Constitutional Court held in its ruling of
16 January 2006, the legislator must legislatively establish such
powers (jurisdiction) of all courts of general jurisdiction of
all instances, which would be constitutionally grounded, as well
as that the constitutional concept of administration of justice
also implies that courts must solve cases only by strictly
following procedural and other requirements, which are
established in laws, and by not overstepping the limits of their
jurisdiction, nor exceeding their other powers. Thus, under the
laws, each court of general jurisdiction of certain instance must
perform precisely the functions which are attributed to the
courts of general jurisdiction of that instance by the laws.
In this context it is to be noted that it is not possible
to construe the instance system of the courts of general
jurisdiction that arises from the Constitution as hierarchal one
as no court of general jurisdiction of lower instance is
subordinate to any court of higher instance in the administrative
or organisational aspect or any other way: the courts of general
jurisdiction of the first instance are neither subordinate to the
courts of general jurisdiction of instance of appeal, nor
instance of cassation, and the Court of Appeal of Lithuania is
not subordinate to the Supreme Court of Lithuania.
The instance system of the courts of general jurisdiction
arising from the Constitution may not be construed as restricting
the procedural independence of the courts of general jurisdiction
of lower instance, either: however, as it was mentioned, under
the Constitution, when adopting decisions in the cases of
corresponding categories, the courts of general jurisdiction of
lower instance are bound by decisions of courts of general
jurisdiction of higher instanceprecedents in the cases of these
categories; courts of general jurisdiction of greater power (and
their judges) may not interfere in the cases considered by courts
of general jurisdiction of lower instance, nor give them any
instructions, either obligatory or recommendatory, on how
corresponding cases must be decided etc. From the aspect of the
Constitution, such instructions (whether obligatory or
recommendatory) would be assessed as acting of corresponding
courts (judges) ultra vires. Under the Constitution, court
practice is formed only when courts decide cases themselves. A
different construction of the provisions of the Constitution
entrenching the instance system of courts of general
jurisdiction, as well as the legal regulation based on that
different construction of the provisions of the Constitution,
would create preconditions for courts of general jurisdiction of
higher instance (or their judges) to assume the functions that
are not provided for to them and the powers that are not
established in the Constitution, would deny the independence of
courts entrenched in the Constitution, would violate the
provision of Paragraph 2 of Article 109 of the Constitution that
while administering justice, the court and judges shall be
independent, and the provision of Paragraph 3 of this article
that when considering cases, judges shall only obey the law. It
is also to be noted that the giving of obligatory or
recommendatory instructions to courts of general jurisdiction of
lower instance on how corresponding cases must be decided etc.
would also restrict the possibilities of the courts of general
jurisdiction of higher instance to independently and impartially
review the corresponding cases under appeal and cassation
procedure in case it might be necessary.
In Paragraph 4 of Article 111 of the Constitution it is
established that the formation and competence of courts shall be
established by the Law on Courts. Thus, 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. It is also to be noted 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.
But it is to be emphasized that when regulating the said
relations, the legislator must pay heed to the Constitution and
inter alia the bases of the instance system of courts of general
jurisdiction entrenched in it.
3.4. In Paragraph 2 of Article 111 of the Constitution it
is established that for the consideration of administrative,
labour, family and cases of other categories, specialized courts
may be established according to law. It is also to be mentioned
that courts with extraordinary powers may not be established in
the Republic of Lithuania in a time of peace (Paragraph 3 of
Article 111 of the Constitution).
It is to be noted that when regulating the relations
related with the establishment and activity of the specialized
courts the legislator is bound by the provisions of the
Constitution, which establish the bases of the instance court
system. In this context it is to be emphasized that, as the
Constitutional Court held in its ruling of 16 January 2006, the
instance court system is established in the Constitution, inter
alia Paragraphs 1 and 2 of Article 111 thereof (but not only in
these provisions of the Constitution). The Constitution, if its
provisions are construed in a systemic manner, implies that the
instance system is established not only for the courts of general
jurisdiction, but also for the specialized courts established
under Paragraph 2 of Article 111 of the Constitution.
The legislator, while paying heed to the Constitution, has
broad discretion to decide (by following inter alia expediency
reasons) as regards establishment of specialised courts for
consideration of particular categories of cases. The legislator
also enjoys broad discretion in establishing the system of
specialised courts assigned for consideration of each category of
cases, their quantitative composition and their relations with
courts of general jurisdiction and with specialised courts
assigned for consideration of cases of other categories, inter
alia the fact whether the specialised courts assigned for
consideration of cases of certain categories will constitute an
autonomous system, which is separated from the system of courts
of general jurisdiction and from the system of specialised courts
assigned for consideration of cases of other categories, or
whether it will somehow be linked with such systems (one of them)
in organisational, procedural or some other aspect. It is to be
noted that the instance system of the specialised courts,
established under Paragraph 2 of Article 111 of the Constitution,
may have certain peculiarities in comparison with the instance
system of courts of general jurisdiction.
However, under the Constitution, the legislator may not
create any such system or systems (if there are more than one
category of the cases for whose consideration the individual
specialized courts are created) of the specialized courts,
established under Paragraph 2 of Article 111 of the Constitution,
which would replace the system of courts of general jurisdiction
imperatively established in the Constitution and which would take
over most of the functions of the system of courts of general
jurisdiction.
It is to be emphasized that the imperatives of the activity
of the courts of general jurisdiction and legal regulation of
this activity arising from the Constitution and discussed in this
Constitutional Court ruling are also to be applied mutatis
mutandis to the activity of the specialized courts established
under Paragraph 2 of Article 111 of the Constitution and its
legal regulation. This is to be said about the requirements
arising from the Constitution, related inter alia: to ensuring of
an opportunity to appeal to the court of at least one higher
instance against the final act of the court under the established
procedure; to the forming of the uniform court practice (grounded
on the maxim that the same (analogous) cases must be decided in
the same way) and predictability of court decisions arising from
this, thus, also to the continuity of the jurisprudence of
courts; to the binding of the courts (inter alia those of the
supreme instance) by the existing precedents; to the correction
of courts practice and creation of new court precedents only when
it is unavoidably and objectively necessary and by arguing it
properly (clearly and rationally) in all cases; to the obligation
of each court of a certain instance to perform, pursuant to laws,
precisely the functions that are attributed to the courts of that
instance and not to overstep the limits of their jurisdiction,
nor to exceed their other powers; to organisational and other
insubordination of courts of lower instance to any court of
higher instance and to procedural independence and formation of
court practice when courts decide cases by themselves, etc.
It is also to be emphasized that the legislator, when
establishing specialized courts, must also establish the
procedure under which the competition of cognizance of cases
between specialized courts and courts of general jurisdiction, as
well as between the specialized courts, assigned for the
consideration of cases of one category and the specialized courts
assigned for the consideration of cases of another category (if
there is more than one category of cases for whose consideration
the individual specialized courts were established) will be
decided. Moreover, the legislator must establish such legal
regulation, which would not only ensure the forming of the same
practice of courts in any of the individual systems of the
specialized courts assigned for the consideration of cases of a
certain category, but also which would not allow for the
inconsequence and inconsistence to appear among the specialized
courts and courts of general jurisdiction as well as among the
specialized courts assigned for the consideration of cases of one
category and the specialized courts assigned for the
consideration of cases of another category (if there is more than
one category of cases for whose consideration the individual
specialized courts were established). The irregularity and
inconsistency of the practice of courts among the specialized
courts and courts of general jurisdiction as well as among the
specialized courts assigned for the consideration of cases of one
category and specialized courts, assigned for the consideration
of cases of another category (if there is more than one category
of cases for whose consideration the individual specialized
courts were established) could be avoided inter alia by such
legal regulation (of establishment of cognizance) when cases of
certain categories may be considered only in the clearly
specified courts of general jurisdiction or specialized courts
and may not be considered in both, courts of general
jurisdiction, as well as specialized courts, or in the
specialized courts assigned for the consideration of cases of one
category and specialized courts, assigned for the consideration
of cases of another category (if there is more than one category
of cases for whose consideration the individual specialized
courts were established).
4. It was mentioned that one of the basic elements of the
enshrined in the Constitution principle of a state under the rule
of law is the principle that a legal act, which is in conflict
with the legal act of greater power, may not be applied.
In Paragraph 1 of Article 110 of the Constitution it is
established that a judge may not apply a law, which is in
conflict with the Constitution, and in Paragraph 2 of this
articlethat in cases when there are grounds to believe that the
law or other legal act which should be applied in a concrete case
is in conflict with the Constitution, the judge shall suspend the
consideration of the case and shall apply to the Constitutional
Court requesting it to decide whether the law or other legal act
in question is in compliance with the Constitution. If the court,
after it has faced doubts as regards the compliance of the law
applicable in the case with the Constitution, did not suspend the
consideration of the case and did not apply to the Constitutional
Court so that these doubts could be removed, and if the legal act
the compliance of which with the Constitution is doubtful was
applied in the case, the court would take a risk to adopt such a
decision, which would not be a just one (Constitutional Court
ruling of 16 January 2006).
It is to be emphasized that under the Constitution, the
Constitutional Court does not decide on the compliance with the
Constitution (with other legal acts of greater power) of all
legal acts of lower power (parts thereof) but, as it was held in
this Constitutional Court ruling, only on whether the acts (parts
thereof) passed by the Seimas, the President of the Republic or
the Government or adopted by referendum are not in conflict with
legal acts of greater power, inter alia (and, first of all) with
the Constitution.
On the other hand, as the Constitutional Court held in its
decision of 20 September 2005, under the Constitution, such legal
situations are impermissible where it would not be possible to
verify in a court whether legal acts (parts thereof), inter alia
legal acts issued by ministers, other substatutory legal acts of
lower power, as well as legal acts issued by municipalities,
whose control as regards their compliance with the Constitution
does not fall within the jurisdiction of the Constitutional
Court, are not in conflict with the Constitution and laws.
When executing this constitutional imperative, under the
Constitution, the legislator has the duty to establish by law, in
which courts (of general jurisdiction or specialized ones,
established under Paragraph 2 of Article 111 of the Constitution)
and under which procedure one must investigate and decide whether
the legal acts (parts thereof) the control of whose compliance
with the Constitution is not attributed to the jurisdiction of
the Constitutional Court under the Constitution (inter alia legal
acts, passed by the ministers, other substatutory legal acts of
lower power, as well as legal acts, passed by municipal
institutions) are not in conflict with the Constitution and laws.
However, if the legislator for certain reasons has not
carried out this constitutional duty (though the Constitution
does not tolerate this), still the courts, under Paragraph 1 of
Article 110 of the Constitution, may not apply any such legal
acts, which are in conflict with the Constitution. Thus, if one
fails to establish any such legal regulation under which it might
be clearly established, following inter alia the principle
expressis unius est exclusio alterius, in what courts and under
what procedure one is to investigate and decide whether the said
legal acts (parts thereof) are not in conflict with legal acts of
greater power, inter alia (and, first of all) with the
Constitution, it is to be held that: first, under the
Constitution (Article110), any court, as it was mentioned, that
may not apply a legal act on whose compliance with the
Constitution (other legal act of greater power) it doubts, though
it may not apply to the Constitutional Court concerning its
compliance with the Constitution, because the control of the
compliance of this legal act with the Constitution (other legal
act of greater power) is not attributed to the jurisdiction of
the Constitutional Court under the Constitution, has the powers
arising directly from the Constitution to recognize ad hoc the
corresponding legal act as being in conflict with the
Constitution (other legal act of greater power) and not to apply
it; second, such ad hoc recognition of the legal act as being in
conflict with the Constitution (other legal act of greater power)
is constitutional control of the inter partes model which is
established by the Constitution only under the said exceptional
circumstances, i.e., if the legislator for certain reasons has
not carried out this constitutional duty to establish by law, in
what courts and under what procedure one must investigate and
decide whether the legal acts (parts thereof) the control of
whose compliance with the Constitution is not attributed to the
jurisdiction of the Constitutional Court under the Constitution
are not in conflict with legal acts of greater power, inter alia
with the Constitution.
In this context, it is especially to be noted that such
legal regulation was not established for several years after the
Constitution had come into force. Under the then valid laws, a
court of general jurisdiction, after having established that a
legal act, the control on whose compliance with the Constitution
is not attributed to the jurisdiction of the Constitutional
Court, is in conflict with the laws, it, while adopting a
decision in the case, cold not follow such legal act. This was
also held by the Constitutional Court in its ruling of 18
December 1997. It is also to be stated that at that time in the
Lithuanian legal system there appeared a gap of legal regulation
which did not allow to remove all legal acts (parts thereof) from
the legal system, in which the established legal regulation
competed with the one, established in the legal acts of greater
power, inter alia (and, first of all) with the Constitution, nor
to properly implement the purpose and possibilities provided by
the constitutional judicial control as a constitutional
institute, i.e. to decide in court (thus, by following such
principles of proper legal process as the right to be heard in
court, contention, equality of the parties before the court,
inter alia procedural equality, publicity, etc.) on the
compliance of the legal acts, passed by other subjects of law-
making (thus, those passed not by the Seimas, the President of
the Republic or the Government and not adopted by referendum)
with legal acts of greater power, inter alia (and, first of all)
the Constitution.
The said gap of law was removed when on 14 January 1999,
the Seimas adopted the Republic of Lithuania Law on the
Establishment of Administrative Courts (which came into force on
3 February 1999) by which specialised administrative courts were
established "for considering complaints (applications) against
administrative enactments adopted by the subjects of public and
internal administration and their acts of omission (i.e. failure
to carry out the duties)" (Paragraph 1 of Article 1) which had to
be formed by 1 May 1999 and had to start their activities as from
1 May 1999 (Article 6), as well as the Republic of Lithuania Law
on the Proceedings of Administrative Cases (which came into force
on 1 May 1999), under Item 4 of Paragraph 2 of Article 6 of which
the regional administrative court had powers, as a court of first
instance, to consider cases concerning the applications of the
Government representative on inter alia "acts of local
authorities and their officials which are in conflict with <
>
the Constitution and laws", and under Article 30, in the cases
when the court of general jurisdiction or specialised court had
doubts on whether a normative administrative act (or a part
thereof) passed by a public administrative subject is not in
conflict with the law or the normative act of the Government,
this court had to suspend the consideration of the case and to
apply by its ruling to the administrative court with a petition,
requesting to verify whether the corresponding act (or a part
thereof) complies with the law or the normative act of the
Government; after it received the effective decision of the
administrative court, the court of general jurisdiction or
specialised court had to renew the consideration of the case.
Even though the administrative court system was later reorganized
and their powers were corrected, the general provision remained
entrenched in the laws that decision on the compliance of legal
acts passed by other subjects of law-making (thus, those passed
not by the Seimas, the President of the Republic or the
Government and not adopted by referendum) with legal acts of
greater power, inter alia (and, first of all) with the
Constitution, is attributed to the jurisdiction of administrative
courts. In this context it is to be noted that this general
provision is consolidated inter alia in Paragraph 1 (wording of
19 September 2000) of Article 20 of the now effective Law on the
Proceedings of Administrative Cases, under Item 3 of which the
Supreme Administrative Court of Lithuania is inter alia "the only
and final instance for the cases on the lawfulness of the
normative acts adopted by the central subjects of state
administration", and in Article 112 (wording of 19 September
2000), under which "the court of general jurisdiction or
specialised court shall have the right to suspend the
consideration of the case and by its ruling to apply to the
administrative court with a petition, requesting to review,
whether a concrete normative administrative act (or a part
thereof), which should be applied in the considered case,
complies with the law or the normative act of the Government"
(Paragraph 1), and "after it has received an effective decision
of the administrative court on the normative act, the court of
general jurisdiction or specialised court shall renew the
consideration of the suspended individual case". Similar
provisions are also entrenched in other laws, inter alia
Paragraph 4 of Article 3 (wording of 8 April 2003) of the Code of
Civil Procedure of the Republic of Lithuania, in which it is
established: "After it has established that a normative legal act
or a part thereof, the control on whose compliance with the
Constitution or laws is not within the jurisdiction of the
Constitutional Court, is in conflict with the law or the
normative legal act of the Government, when adopting a decision,
the court must not follow such legal act. The court of general
jurisdiction shall have the right to suspend the consideration of
the case and by its ruling apply to the administrative court with
a petition, requesting to verify whether a corresponding
normative legal act or a part thereof complies with the law or
the normative legal act of the Government. After the court has
received the effective decision of the administrative court, the
court shall renew the consideration of the case. A normative
administrative act (or a part thereof) shall be considered as
abolished and normally may not be applied since the day when the
effective administrative court decision on the recognition of the
corresponding normative act (a part thereof) as no longer valid
was officially announced."
It is to be held that at present the legal regulation is
established by the Law on the Proceedings of Administrative Cases
and other laws whereby decision on the compliance of the legal
acts, passed by other subjects of law-making (thus, those passed
not by the Seimas, the President of the Republic or the
Government and not adopted by referendum) with legal acts of
greater power, inter alia (and, first of all) with the
Constitution, is attributed to the jurisdiction of administrative
courts. If the administrative court recognizes such legal act as
being in conflict with the Constitution (other legal act of
greater power), then, under the Constitution and laws, such
decision of the said court has erga omnes impact on the whole
practice of the application of corresponding legal acts (parts
thereof).
In this context, it needs also to be noted that the formula
"the court of general jurisdiction or specialised court shall
have the right <
> by its ruling to apply to the administrative
court with a petition, requesting to verify, whether a concrete
normative administrative act (or a part thereof), which should be
applied in the considered case, complies with the law or the
normative act of the Government" of Paragraph 1 (wording of 19
September 2000) of Article 112 of the Law on the Proceedings of
Administrative Cases as well as the formula "after it has
established that a normative legal act or a part thereof, the
control on whose compliance with the Constitution or laws is not
within the jurisdiction of the Constitutional Court, is in
conflict with the law or the normative legal act of the
Government" and the formula "The court of general jurisdiction
shall have the right <
> by its ruling apply to the
administrative court with a petition, requesting to verify
whether a corresponding normative legal act or a part thereof
complies with the law or the normative legal act of the
Government" of Paragraph 4 of Article 3 (wording of 8 April 2003)
of the Code of Civil Procedure of the Republic of Lithuania, are
not without faults from the legal point of view and are to be
corrected, because, as the Constitutional Court held in its
ruling of 16 January 2006, the powers of state officials, inter
alia judges, cannot be defined in legal acts as their subjective
right that they can implement at their discretion, i.e. such
right that they choose whether to use or not to use it; such
powers are also the duties that the state officials not only may
but also must implement, if there are corresponding conditions
established by laws. The legal deficiency of the quoted formulas
of Paragraph 1 (wording of 19 September 2000) of Article 112 of
the Law on the Proceedings of Administrative Cases and Paragraph
4 of Article 3 (wording of 8 April 2003) of the Code of Civil
Procedure becomes even more obvious when they are construed in
the context of Item 3 (under which, the Supreme Administrative
Court of Lithuania is the only and final instance for the cases
on the lawfulness of normative acts adopted by central subjects
of the state administration) of Paragraph 1 (wording of 19
September 2000) of Article 20 of the Law on the Proceedings of
Administrative Cases.
5. It is also to be noted that the investigation on whether
the legal acts (parts thereof), passed by other subjects of law-
making (thus, which were passed not by the Seimas, the President
of the Republic or the Government and not adopted by referendum)
are not in conflict with legal acts of greater power, inter alia
(and, first of all) with the Constitution, and adoption of
corresponding decisions imply the necessity for the
administrative court that decides the case to ascertain whether
these legal acts of greater power (parts thereof) themselves are
not in conflict with any legal acts of even greater power, inter
alia (and, first of all) with the Constitution, and, if there are
doubts, to take measures provided for in the Constitution and
laws, in order to remove them, certainly, without interfering
with the powers attributed to the Constitutional Court. If this
is not done, there would be a risk to adopt a decision that would
not be a just one, i.e. to apply a certain legal act (part
thereof), based on the legal act of greater power, which would be
recognized as being in conflict with a legal act of even greater
power, or even with the Constitution itself if proper
investigation were carried out, or not to apply a certain legal
act (part thereof) that was recognized as being in conflict with
a legal act of greater power by the administrative court, even
though that legal act of greater power should be recognized as
being in conflict with a legal act of even greater power, or even
with the Constitution itself, if proper investigation were
carried out. In case it happened, preconditions would be created
to violate the values, inter alia constitutional rights of the
person, entrenched in and protected and defended by the
Constitution.
In this aspect, the investigation on the compliance of the
legal acts (parts thereof) passed by other subjects of law-making
(thus, which were passed not by the Seimas, the President of the
Republic or the Government and not adopted by referendum) which
are attributed to the jurisdiction of administrative courts by
laws (inter alia by the Law on the Proceedings of Administrative
Cases), with legal acts of greater power, save the Constitution
itself, implies the initiation of a corresponding case of
constitutional justice at the Constitutional Court, thus also the
duty of the administrative courts to apply in such cases to the
Constitutional Court with a corresponding petition, if the
administrative court has doubts on the compliance of a legal act
(part thereof) of greater power, passed by the Seimas, the
President of the Republic or the Government or adopted by
referendum, with a legal act of even greater power, inter alia
(and, first of all) with the Constitution.
6. In Paragraph 2 of Article 6 of the Constitution, it is
established that everyone may defend his rights by invoking the
Constitution, and in Paragraph 1 of Article 30 thereof that a
person whose constitutional rights or freedoms are violated shall
have the right to apply to court. In its rulings the
Constitutional Court has held more than once: the Constitution
guarantees a person the right to an independent and impartial
arbiter of the dispute, who would in essence settle the legal
dispute on the grounds of the Constitution and laws; each person,
who thinks that his rights or freedoms are violated has the right
to defend his rights and freedoms in courtthe implementation of
the right to apply to court is conditioned by the understanding
of the person himself that his rights or freedoms are violated;
the person is guaranteed the defence of his rights in court
regardless of his legal status; the violated rights, inter alia
acquired rights, and the legitimate interests of a person must be
defended in court irrespective of whether or not they are
directly established in the Constitution; the rights of the
person must be defended not formally, but in reality and
effectively from unlawful actions of both private persons and
state institutions or officials. When construing Paragraph 1 of
Article 30 of the Constitution, the Constitutional Court has also
held that the law must establish such legal regulation so that it
would be possible to appeal against a final act adopted by a
court of general jurisdiction or a specialised court established
under Paragraph 2 of Article 111 of the Constitution at least in
one court of higher instance (Constitutional Court ruling of 16
January 2006).
When construing Paragraph 2 of Article 6 and Paragraph 1 of
Article 30 of the Constitution in the context of Paragraph 1 of
Article 109 and Article 110 of the Constitution, as well as of
the constitutional principle of a state under the rule of law, it
needs to be noted that the right of each person to defend his
rights on the basis of the Constitution and the right to apply to
court of the person whose constitutional rights or freedoms are
violated also imply that each party of the case considered by a
court, which has doubted on the compliance of the law or other
legal act (part thereof) that may be applied in that case and the
investigation on the compliance of which with the Constitution
(other legal act of greater power) is attributed to the
jurisdiction of the Constitutional Court (i.e. the compliance of
a certain act (part thereof) of the Seimas, the President of the
Republic or the Government or an act (part thereof) adopted by
referendum with the Constitution (other legal act of greater
power)), has the right to apply to the court of general
jurisdiction or a corresponding specialised court established
under Paragraph 2 of Article 111 of the Constitution which
considers the case and to request to suspend the consideration of
the case and to apply to the Constitutional Court with a
petition, requesting to investigate and decide whether the legal
act (part thereof) passed by the Seimas, the President of the
Republic or the Government or adopted by referendum and which is
applicable in the said case, is not in conflict with a legal act
of greater power, inter alia (and, first of all) with the
Constitution.
This is applicable mutatis mutandis also to those legal
situations when a certain party of a case considered by a court
has doubts on the compliance of the law or other legal act (part
thereof) that may be applied in that case and the investigation
on the compliance of which with the Constitution (other legal act
of greater power) is not attributed to the jurisdiction of the
Constitutional Court (i.e. that act has not been passed by the
Seimas, by the President of the Republic or by the Government and
it has not been adopted by referendum) the said party, under the
Constitution and laws (inter alia Law on the Proceedings of
Administrative Cases), has the right to apply to the
corresponding administrative court on the compliance of such
legal act (part thereof) with the Constitution (other legal act
of greater power).
In its ruling of 16 January 2006, the Constitutional Court
held: the constitutional imperatives that only courts administer
justice, that law cannot be not public, as well as the
requirement arising from the Constitution to consider the case
justly, also imply that every final act of the court must be
based on legal arguments (reasoning); the argumentation must be
rational; the requirement of legal clarity, which arises from the
constitutional principle of a state under the rule of law, inter
alia means that a final act of the court cannot contain any
concealed arguments, nor any non-specified circumstances, which
are important for the adoption of a just final act of the court;
final acts of the court must be clear to the persons
participating in the case as well as other persons.
The said requirements on the argumentation of court
decisions are applicable also to decisions of courts of general
jurisdiction or specialised courts established under Paragraph 2
of Article 111 of the Constitution to apply or (even though it is
requested by a certain party of the case considered in the court)
not to apply to the Constitutional Court with a petition
requesting to investigate and decide, whether the legal act (part
thereof) applicable in that case whose verification as to the
compliance with legal acts of greater power (inter alia (and,
first of all) with the Constitution) is attributed not to the
jurisdiction of the Constitutional Court but to that of
administrative courts, is not in conflict with the Constitution
(other legal act of greater power).
These requirements are also applicable to the court
decisions on application or non-application (although they are
requested to apply) to a corresponding administrative court with
a petition requesting to investigate and decide whether the legal
act (part thereof) applicable in the corresponding case, the
verification of the compliance of which with legal acts of
greater power, inter alia (and, first of all) with the
Constitution, is ascribed not to the jurisdiction of the
Constitutional Court, but that of administrative courts, is not
in conflict with the Constitution (other legal act of greater
power).
7. It is to be noted that the comparison of the
applications of courts (both, of general jurisdiction and
specialised) to the Constitutional Court with the petition
requesting to investigate and decide whether a legal act (part
thereof), passed by the Seimas, the President of the Republic or
the Government or adopted by referendum is not in conflict with a
legal act of greater power, inter alia (and, first of all) with
the Constitution, shows that the applications of courts are
special ones also because the courts, having doubted on the
compliance of a legal act (part thereof), passed by the Seimas,
the President of the Republic or the Government or adopted by
referendum with a legal act of greater power, inter alia (and,
first of all) with the Constitution, not only may but also must
apply to the Constitutional Court.
In this context, it is to be noted that under the
Constitution, a court of general jurisdiction or a specialised
court established under Paragraph 2 of Article 111 of the
Constitution may apply to the Constitutional Court with a
petition requesting to investigate and decide whether not any
constitutional law (part thereof) is not in conflict with the
Constitution, but only such constitutional law, which must be
applied in the corresponding case considered by that court, also
whether not any law (part thereof) (as well as the Statute of the
Seimas (part thereof)) is not in conflict with the Constitution
and constitutional laws, but only that which must be applied in
the corresponding case considered by that court, also whether not
any substatutory legal act (part thereof) of the Seimas is not in
conflict with the Constitution, constitutional laws and laws as
well as the Statute of the Seimas, but only that which must be
applied in the corresponding case considered by that court, also
whether not any act (part thereof) of the President of the
Republic is not in conflict with the Constitution, constitutional
laws and laws, but only that which must be applied in the
corresponding case considered by that court, as well as whether
not any act (part thereof) of the Government (part thereof) is
not in conflict with the Constitution, constitutional laws and
laws, but only that which must be applied in the corresponding
case considered by that court.
Such requirement is also applicable to the court decisions
to apply to the corresponding administrative court with a
petition requesting to investigate and decide whether the legal
act (part thereof) applicable in the case the verification of
whose compliance with legal acts of greater power (inter alia
(and, first of all) with the Constitution) is attributed to the
jurisdiction of administrative courts, is not in conflict with
the Constitution (other legal act of greater power).
8. It is to be noted that the Constitution does not
tolerate any such situations, when a certain court, which, in a
case considered by it, has to apply a legal act (part thereof)
concerning the compliance of which with a legal act of greater
power, inter alia (and, first of all) with the Constitution
another petitioner (for example, other court) has already applied
to the Constitutional Court, neither (in case he doubts on the
compliance of the legal act (part thereof) with a legal act of
greater power, inter alia (and, first of all) with the
Constitution) suspends the consideration of the corresponding
case and applies to the Constitutional Court in order that these
doubts would be removed, nor (in case he doubts on the compliance
of the legal act (part thereof) with a legal act of greater
power, inter alia (and, first of all) with the Constitution)
applies this legal act (part thereof), but when it has
information that another petitioner (for example, other court)
has already applied to the Constitutional Court concerning the
compliance of that legal act (part thereof) with a legal act of
greater power, inter alia (and, first of all) with the
Constitution, suspends the consideration of the case and does not
decide on the case before the Constitutional Court finishes the
consideration of the corresponding case under the petition of the
said another petitioner.
9. In this Constitutional Court ruling it has been held
that the comparison of the applications of courts (both, of
general jurisdiction and specialised) to the Constitutional Court
with a petition requesting to investigate and decide whether a
legal act (part thereof), passed by the Seimas, the President of
the Republic or the Government or adopted by referendum is not in
conflict with a legal act of greater power, inter alia (and,
first of all) with the Constitution, shows that the applications
of courts are special ones also because the courts, having
doubted on the compliance of a legal act (part thereof), passed
by the Seimas, the President of the Republic or the Government or
adopted by referendum, with a legal act of greater power, inter
alia (and, first of all) with the Constitution, not only may but
also must apply to the Constitutional Court.
It is to be in particular emphasized that if a petitionera
court which is considering a caseapplies to the Constitutional
Court requesting to investigate and decide whether a legal act
(part thereof), passed by the Seimas, the President of the
Republic or the Government or adopted by referendum, which is
applicable in that case is not in conflict with a legal act of
greater power, inter alia (and, first of all) with the
Constitution, and if the Constitutional Court does not decide
this question in essence, the doubts of the said court on whether
the corresponding law or other legal act (part thereof) is not in
conflict with a legal act of greater power, inter alia (and,
first of all) with the Constitution would not be removed, and if
it applies that law or other legal act (part thereof), the
values, inter alia constitutional rights of the person,
entrenched in and defended and protected by the Constitution,
could be violated.
This is also to be said about such legal situations, when a
disputed law or other legal act (part thereof), which must be
applied in a case considered by a court, which applied to the
Constitutional Court with a petition, is no longer valid at the
time when the corresponding case of constitutional justice is
being considered (or at the time when one expects its
consideration to take place)it has been recognised as no longer
valid (it was either abolished or amended) or its validity
expired: if the Constitutional Court did not decide the question
on the compliance of that law or other legal act (part thereof)
with a legal act of greater power, inter alia (and, first of all)
with the Constitution, in essence, the doubts of the court which
considers the case on whether that law or other legal act (part
thereof) with a legal act of greater power, inter alia (and,
first of all) with the Constitution would not be removed, and if
that law or other legal act (part thereof) which is no longer
valid is applied at the time of adoption of the corresponding
court decision, the values, inter alia constitutional rights of
the person, entrenched in and defended and protected by the
Constitution, could be violated.
Thus, in every case when the Constitutional Court, after it
has received a petition of a court of general jurisdiction or a
specialised court, established under Paragraph 2 of Article 111
of the Constitution, requesting to investigate and decide whether
a legal act (part thereof), passed by the Seimas, the President
of the Republic or the Government or adopted by referendum, is
not in conflict with a legal act of greater power, inter alia
(and, first of all) with the Constitution, refuses, under the
Constitution and the Law on the Constitutional Court, to consider
the petition (thus, does not undertake to decide the
corresponding question in essence), a rationally argued decision
must be adopted.
The adoption of such a reasoned decision by which the
Constitutional Court refuses to consider a petition is provided
for in Article 69 of the Law on the Constitutional Court. In this
context, it is to be noted that none of the grounds of the
refusal to investigate a petition provided for in Article 69 of
the Law on the Constitutional Court (a petition was filed by an
institution or person who does not have the right to apply to the
Constitutional Court (Item 1), the consideration of the petition
does not fall under the jurisdiction of the Constitutional Court
(Item 2), 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 (Item 3), the
Constitutional Court has already commenced the investigation of a
case concerning the same issue (Item 4), the petition is grounded
on non-legal reasoning (Item 5)) may be construed as creating
legal preconditions for the court that considers the case to
apply such law or other legal act (part thereof) on whose
compliance with the Constitution (other legal act of greater
power) the said court doubts.
It is to be noted that the said requirements arising from
the Constitution related to the investigation on the compliance
of the legal acts which are no longer valid with legal acts of
greater power, inter alia (and, first of all) with the
Constitution as well as to the reasoned and rationally argued
refusal to investigate, subsequent to the petitions of the
petitioners, into the compliance of the disputed legal acts
(parts thereof) with legal acts of greater power, inter alia
(and, first of all) with the Constitution, are applicable also to
corresponding decisions of administrative courts.
10. In the context of the constitutional justice case at
issue, it is to be noted that the Constitution in general does
not prohibit to establish the legal regulation in the Law on the
Constitutional Court whereby if 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, by taking account of all the circumstances
of importance, could refuse to investigate and decide, subsequent
to the petition of the petitioners (as mentioned, they are
specified in Article 106 of the Constitution), whether the legal
act (part thereof) passed by the Seimas, the President of the
Republic or the Government or adopted by referendum is not in
conflict with a legal act of greater power, inter alia (and,
first of all) with the Constitution, and if the corresponding
petition has been received at the Constitutional Court and the
preparation of the constitutional justice case has begun or the
case has already been investigated at the Constitutional Court
hearingto dismiss the instituted legal proceedings (case).
However, it is to be emphasized that, under the
Constitution (inter alia Paragraph 1 of Article 110 of the
Constitution, under which a judge may not apply the law which is
in conflict with the Constitution, and Paragraph 2 of this
article, under which in cases when there are grounds to believe
that the law or other legal act which should be applied in a
concrete case is in conflict with the Constitution, the judge
shall suspend the consideration of the case and shall apply to
the Constitutional Court requesting it to decide whether the law
or other legal act in question is in compliance with the
Constitution), it is not possible to establish any such legal
regulation whereby if the Constitutional Court has received a
petition particularly from a court (which, as mentioned, differs
from other subjects specified in Article 106 of the Constitution,
inter alia because the court, having doubted on the compliance of
a legal act (part thereof), passed by the Seimas, the President
of the Republic or the Government or adopted by referendum with a
legal act of greater power, inter alia (and, first of all) with
the Constitution, not only may but also must apply to the
Constitutional Court), requesting to investigate and decide
whether the legal act (part thereof), passed by the Seimas, the
President of the Republic or the Government or adopted by
referendum is not in conflict with a legal act of greater power,
inter alia (and, first of all) with the Constitution, and if the
Constitutional Court did not undertake to decide this question in
essence (if it refused to consider the petition) particularly
because 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 expired, preconditions would be
created for the court that considers the case to apply the law or
other legal act (part thereof) on whose compliance with the
Constitution (other legal act of greater power) the said court
doubts; if the court applied such law or other legal act (part
thereof), the values, inter alia constitutional rights of the
person, entrenched in and defended and protected by the
Constitution, could be violated. Thus, it is to be held that,
under the Constitution, the court considering the case which,
under the Constitution, not only has the powers but (if it has
certain doubts) also must apply to the Constitutional Court with
a petition requesting to decide whether the legal act (part
thereof) passed by the Seimas, the President of the Republic or
the Government or adopted by referendum is not in conflict with a
legal act of greater power, inter alia (and, first of all) with
the Constitution, also has the constitutionally grounded interest
to receive a corresponding Constitutional Court answer that such
answer will be given; a different construction of the
corresponding provisions of the Constitution could create
preconditions for the court that considers the corresponding case
to apply such law or other legal act (part thereof) on whose
compliance with the Constitution (other legal act of greater
power) the said court has doubts. Thus, the Constitution
prohibits to establish any such legal regulation in the Law on
the Constitutional Court (or in any other law) whereby if a
disputed legal act (part thereof), passed by the Seimas, the
President of the Republic or the Government or adopted by
referendum, is no longer validit has been recognised as no
longer valid (it was abolished or amended) or its validity
expiredbut it must be applied in a corresponding case considered
by a court, the Constitutional Court could refuse to investigate
and decide, subsequent to the petition of the petitioner, whether
the legal act (part thereof) passed by the Seimas, the President
of the Republic or the Government or adopted by referendum is not
in conflict with the Constitution (with other legal act of
greater power), particularly because that legal act (part
thereof) is no longer validit was recognised as no longer valid
(it was abolished or amended) or its validity expired, and if the
corresponding petition is received at the Constitutional Court
and the preparation of the constitutional justice case has been
begun or the case has already been investigated at the
Constitutional Court hearingto dismiss the instituted legal
proceedings (case).
The said requirements arising from the Constitution are to
be applied also to such legal situations when a petition
requesting to investigate the conformity of a legal act (which
was passed not by the Seimas, the President of the Republic or
the Government and not adopted by referendum) with a legal act of
greater power, inter alia (and, first of all) with the
Constitution, is submitted to a corresponding administrative
court.
11. It was mentioned that under Paragraph 4 (wording of 11
July 1996) of Article 69 of the Law on the Constitutional Court,
the annulment of the disputed legal act shall be grounds to adopt
a decision to dismiss the instituted legal proceedings, as well
as that this provision (disputed by the petitioner) was also
entrenched in Paragraph 4 of Article 69 of the Law on the
Constitutional Court of the initial wording (3 February 1993).
When deciding, subsequent to the petition of the
petitioner, whether the disputed provision of Paragraph 4
(wording of 11 July 1996) of Article 69 of the Law on the
Constitutional Court is not in conflict with the Constitution, it
is to be noted that as in its rulings the Constitutional Court
has held more than once that the formula "shall be grounds <
> to
dismiss the instituted legal proceedings" of this paragraph
(wording of 11 July 1996) is to be construed as establishing the
powers of the Constitutional Court, while taking account of the
circumstances of the considered case, to dismiss the instituted
legal proceedings in such cases, when the Constitutional Court
was not applied by courts but by the other subjects specified in
Article 106 of the Constitution, and not as establishing that in
every case when the disputed legal act (part thereof) is
abolished, the instituted legal proceedings must be dismissed, as
well as that, under the Constitution, in the cases when the
Constitutional Court is applied by the court which considers a
case and which had doubts on the compliance of the law applicable
in that case with the Constitution as well as on the compliance
of other act passed by the Seimas, the President of the Republic,
or the Government with the Constitution or laws, the
Constitutional Court has the duty to consider the petition of the
court irrespective of whether or not the disputed law or other
legal act is valid. If the court applies to the Constitutional
Court with a petition requesting to investigate and decide
whether a legal act (part thereof) passed by the Seimas, the
President of the Republic or the Government or that adopted by
referendum is not in conflict with a legal act of greater power,
inter alia (and, first of all) with the Constitution, the
Constitutional Court does not have to dismiss the legal
proceedings also in the cases when the disputed legal act (part
thereof) was not abolished, however, the legal regulation
established therein was changed.
12. Under the Constitution, only the Constitutional Court
enjoys powers to construe the Constitution officially
(Constitutional Court rulings of 30 May 2003, 29 October 2003, 13
May 2004, 1 July 2004 and 13 December 2004, decision of 20
September 2005). It is the Constitutional Court that formulates
the official constitutional doctrine: the provisions of the
Constitutionits norms and principlesare construed in the acts
of the Constitutional Court. The official constitutional doctrine
inter alia reveals the content of various constitutional
provisions, their interrelations, the balance between the
constitutional values, and the essence of the constitutional
legal regulation as a single whole (Constitutional Court rulings
of 1 July 2004, 13 December 2004 and 14 March 2006). In the
official constitutional doctrine it may also be expressis verbis
specified as to what construction of the Constitution is not
permissible.
12.1. Each Constitutional Court ruling is integral (it
constitutes a single whole), its all constituent parts are
interrelated (Constitutional Court decision of 12 January 2000,
ruling of 30 May 2003, decisions of 11 February 2004 and 13
February 2004, ruling of 19 January 2005 and decisions of 10
February 2005 and 20 September 2005). The resolution part of the
Constitutional Court ruling is based upon the arguments of the
part of reasoning (Constitutional Court decisions of 12 January
2004, 11 February 2004, 13 February 2004, 10 February 2005 and 20
September 2005). While adopting new, amending and supplementing
already adopted laws or other legal acts, the state institutions
that pass them are bound by the concept of the provisions of the
Constitution and other legal arguments presented in the
motivation of the Constitutional Court ruling (Constitutional
Court rulings of 30 May 2003, 19 January 2005 and decision of 20
September 2005). It also needs to be noted that law-making
institutions (officials) and those that apply law are bound not
only by the concept of constitutional provisions and by arguments
set forth in rulings of the Constitutional Court, but also in
other acts of the Constitutional Court, i.e. conclusions and
decisions; thus, under the Constitution, all acts of the
Constitutional Court in which the Constitution is construed, i.e.
the official constitutional doctrine is formulated, by their
content are also binding on law-making institutions (officials)
and those that apply law, including courts of general
jurisdiction and specialised courts (Constitutional Court
decision of 20 September 2005).
Law-making subjects elucidate (often also interpret) higher
law, thus, the Constitution too; the subjects which apply law,
inter alia the Constitution, cannot avoid its elucidation (often
also its interpretation). The application of the Constitution is
inseparable from the elucidation and often interpretation of its
provisions. It is elucidation and interpretation of the
provisions of the Constitution that are the necessary
precondition in order to institute the verification of the
compliance of certain legal acts (parts thereof) with the
Constitution in the Constitutional Court or other court, to whose
jurisdiction it is attributed. In this context, it is to be
emphasized that, as the Constitutional Court held in its decision
of 20 September 2005, all subjects of law-making and those of
application of law, including courts, must pay heed to the
official constitutional doctrine when they apply the
Constitution, they cannot interpret the provisions of the
Constitution differently from their construction in the acts of
the Constitutional Court. Otherwise, the constitutional principle
that only the Constitutional Court enjoys powers to construe the
Constitution officially would be violated, the supremacy of the
Constitution would be disregarded, and preconditions would be
created for appearance of inconsistencies in the legal system.
It is to be noted that the courts which, under the
Constitution and laws, enjoy the powers to investigate the
compliance of legal acts (parts thereof), the investigation of
the compliance of which with the Constitution (other legal acts
of greater power) is not attributed to the jurisdiction of the
Constitutional Court, with the Constitution (other legal acts of
greater power) and to adopt corresponding decisions cannot evade
construction of the Constitution in corresponding cases, when
they investigate the compliance of these legal acts (parts
thereof) with the Constitution. It was mentioned that under the
Law on the Proceedings of the Administrative Cases and other
laws, the administrative courtsspecialised courts, established
under Paragraph 2 of Article 111 of the Constitutiondecide on
the compliance of legal acts (parts thereof), passed by other
subjects of law-making (thus, those passed not by the Seimas, the
President of the Republic or the Government and those not adopted
by referendum), inter alia on the compliance of the legal acts
issued by ministers, other substatutory legal acts of lower
power, as well as legal acts issued by municipalities, with legal
acts of greater power, inter alia (and, first of all) with the
Constitution. In its decision of 20 September 2005, the
Constitutional Court held that while implementing their
corresponding powers, the administrative courts are bound by the
official constitutional doctrine formulated in acts (rulings,
conclusions and decisions) of the Constitutional Court.
12.2. While investigating the compliance of the laws and
other legal acts with the Constitution, the Constitutional Court
develops the concept of provisions of the Constitution set forth
in its previous acts and it reveals new aspects of the legal
regulation established in the Constitution, which are necessary
for the investigation of the corresponding constitutional justice
case (Constitutional Court rulings of 30 May 2003, 1 July 2004,
13 December 2004 and 14 March 2006).
The development of the constitutional jurisprudence and the
official doctrine formulated therein (particularly at the
beginning of the Constitutional Court activity, when no official
constitutional doctrine was yet formulated on most constitutional
provisions) is characteristic of the fact that the official
constitutional doctrine is not formulated all "at once" on any
issue of the constitutional legal regulation (construction of
corresponding provisions of the Constitution) but "case after
case", by supplementing the elements (fragments) of the said
doctrine, which were revealed in the previous constitutional
justice cases adopted in the acts of the Constitutional Court
with others, revealed in the acts of the Constitutional Court
adopted in new cases of constitutional justice.
Thus, it is to be emphasized that the formulation of the
official constitutional doctrine (both as a whole and on every
individual issue of the constitutional legal regulation) is not a
onetime act but a gradual and consecutive process. This process
is uninterrupted and is never fully finished becausesince the
nature of the Constitution as the act of the supreme legal power
itself and the idea of the constitutionality imply that the
Constitution may not have, nor does it have any gaps or internal
contradictions (Constitutional Court rulings of 25 May 2004 and
13 December 2004)while construing the norms and principles of
the Constitution, which are explicitly and implicitly entrenched
in the text of the Constitution and which constitute a harmonious
system, the possibility, if it is necessary because of the logic
of the considered constitutional justice case, to formulate the
official constitutional doctrinal provisions (i.e. to reveal such
aspects of constitutional legal regulation) which have not been
formulated in the acts of the Constitutional Court adopted in
previous constitutional justice cases, never disappears. When the
Constitutional Court considers new constitutional justice cases
every time subsequent to petitions of petitioners, the official
constitutional doctrine formulated in the previous acts of the
Constitutional Court (on every individual issue on the
constitutional legal regulation which is important to a
corresponding case) is every time supplemented by new fragments.
Thus, by formulating new official constitutional doctrinal
provisions the diversity and completeness of the legal regulation
entrenched in the Constitutionthe supreme legal actis revealed.
12.3. In this Constitutional Court ruling it has been held
that the official constitutional doctrine (both as a whole and on
every individual issue of the constitutional legal regulation) is
formulated gradually and consecutively, by supplementing the
elements (fragments) of the said doctrine revealed in the
previous acts of the Constitutional Court with other elements,
revealed in new acts of the Constitutional Court.
Therefore, 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 not only revelation of new aspects of the
constitutional legal regulation necessary for the investigation
of the said constitutional justice cases and supplement of the
conception of the provisions of the Constitution provided in the
acts of the Constitutional Court adopted in the previous
constitutional justice cases with new elements (fragments), but
also reinterpretation of the official constitutional doctrinal
provisions formulated previously when the official constitutional
doctrine is corrected.
It is to be noted that the constitutional principle that
only the Constitutional Court enjoys powers to construe the
Constitution officially as well as the requirement related with
it that, while applying the Constitution, all the law-making
subjects and those applying law (including courts) would pay heed
to the official constitutional doctrine and would not construe
the provisions of the Constitution differently fro what the
Constitutional Court has done it in its acts, implies that 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.
12.4. It is necessary (or it may be necessary) to
reinterpret the official constitutional doctrinal provisions so
that the official constitutional doctrine would be corrected in
cases when amendments of the Constitution are made.
After an amendment of the Constitution comes into force,
whereby a certain provision of the Constitution is altered (or
abrogated) on the basis of which (i.e. in the course of
construction of which) the previous constitutional doctrine was
formed (as regards the corresponding issue of the constitutional
legal regulation), the Constitutional Court, under the
Constitution, enjoys exceptional powers to hold whether it is
possible (and to what extent) to invoke the official
constitutional doctrine formulated by the Constitutional Court on
the basis of previous provisions of the Constitution, or whether
it is no longer possible to invoke it (and to what extent)
(Constitutional Court rulings of 13 May 2004, 16 January 2006, 24
January 2006 and 14 March 2006).
As mentioned, all the constitutional norms and
constitutional principles form a harmonious system. In this
context it is also to be noted that, as the Constitutional Court
has held more than once in its acts, it is not permitted to
construe the Constitution so that the meaning of any provision or
the Constitution or value entrenched in and defended and
protected by the Constitution would be distorted or denied, thus,
the essence of the entire constitutional legal regulation would
be distorted and the balance of constitutional values would be
disturbed. Taking account of this, it is to be held that it may
also be necessary to reinterpret the official constitutional
doctrinal provisions so that the official constitutional doctrine
would be corrected when the amendment of the Constitution is made
(certain provision of the Constitution is amended or abolished or
a new provision is entrenched in the Constitution) by which the
content of the overall legal regulation is corrected in essence,
even though the provision of the Constitution, on the basis of
which (i.e. while construing it) the previous official
constitutional doctrine on certain issue of the constitutional
legal regulation was formulated, is not formally changed. In such
cases the Constitutional Court also enjoys the exceptional powers
to hold whether it is possible (and to what extent) to refer to
the previous official constitutional doctrine (as a whole and on
every individual issue of the constitutional legal regulation) or
it is not possible to refer to it any more (and to what extent)
while construing the Constitution.
12.5. It is to be emphasized that when no amendments to the
Constitution are made, due to which it is necessary to
reinterpret certain official constitutional doctrinal provisions
so that the official constitutional doctrine would be corrected,
this may be done only if the necessity to diverge from the
existing precedent and to create a new one arises from the
Constitution. In this field, the Constitutional Court is not
completely free, it is bound by its own created precedents and
formed official constitutional doctrine on which the said
precedents are based.
It was mentioned that the principle of a state under the
rule of law enshrined in the Constitution implies continuity of
jurisprudence, as well as that creation of new court precedents
and arguing (grounding) the court precedents may not be
rationally legally unreasoned volitional acts. Since courts of
general jurisdiction, inter alia the Supreme Court of Lithuania
and the Court of Appeal of Lithuania, must, under their
competence, ensure the continuity of the corresponding
jurisprudence (inter alia the fact that the practice of courts of
general jurisdiction would be corrected (it would be deviated
from the precedents that had been binding on courts by then and
new precedents would be created) only when it is unavoidably and
objectively necessary, constitutionally grounded and reasoned,
and that such correction of the practice of courts of general
jurisdiction (deviation from the previous precedents that had
been binding on courts by then and creation of new precedents)
would in all cases be properly (clearly and rationally) argued
(first of all, in the decisions of the corresponding courts of
general jurisdiction themselves)), as the courts of the highest
instances of the systems of specialised courts established under
Paragraph 2 of Article 111 of the Constitution (in the system of
administrative courtsthe Supreme Administrative Court) are under
analogous obligation, so must the Constitutional Court, referring
to its already formed constitutional doctrine and precedents,
ensure the continuity of the constitutional jurisprudence (its
consecution, consistency) and the predictability of its
decisions.
Thus, 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. Also the official
constitutional doctrinal provisions on which the precedents of
the Constitutional Court are based may not be reinterpreted so
that the official constitutional doctrine would be corrected when
it is unavoidably and objectively necessary, constitutionally
grounded and reasoned. Any change of the precedents of the
Constitutional Court or correction of the official constitutional
doctrine may not be determined by accidental (in the aspect of
law) factors. For instance, the correction of the official
constitutional doctrine may not be determined only by a change in
the composition of the Constitutional Court.
It is to be emphasized that the said necessity to
reinterpret certain official constitutional doctrinal provisions
so that the official constitutional doctrine would be corrected
may be determined only by the circumstances as the necessity to
increase possibilities for implementing the innate and acquired
rights of persons and their legitimate interests, 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 also needs to be emphasized that 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.
It is to be particularly emphasized that every case of such
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.
13. The Constitutional Court has held that the
Constitution, as supreme law, must be a stable act
(Constitutional Court rulings of 16 January 2006 and 14 March
2006). The stability of the Constitution is such its feature
which, together with its other features (inter alia and first of
all with the special, supreme legal power of the Constitution)
makes the constitutional legal regulation different from the
legal (ordinary) regulation established by legal acts of lower
legal power (Constitutional Court ruling of 14 March 2006) and
the Constitutiondifferent from all the rest legal acts. The
stability of the Constitution is a great constitutional value.
The Constitution should not be altered, if it is not legally
necessary. This is guaranteed by a more difficult and more
complex procedure for making amendments to the Constitution, if
compared with constitutional and ordinary laws (Constitutional
Court ruling of 14 March 2006), particularly by the fact that
special procedural requirements for alteration of certain
provisions of the Constitution (Article 1, Chapter I "The State
of Lithuania", Chapter XIV "Alteration of the Constitution") are
established. The stability of the Constitution is one of the
preconditions in order to ensure the continuity of the state, the
respect to the constitutional order and law and the
implementation of the aims of the Lithuanian Nation declared in
the Constitution on which the Constitution itself is based.
One of the conditions ensuring the stability of the
Constitution as a legal reality is the stability of its text. It
was mentioned that the nature of the Constitution, the idea of
constitutionality implies that the Constitution may not have and
has no gaps or internal contradictions. Thus, the text of the
Constitution should not be corrected, for example, only after the
terminology, inter alia legal terminology, has changed
(Constitutional Court ruling of 16 January 2006). The meaning of
the Constitution as an extremely stable legal act would also be
ignored if the intervention to its text would be made every time
when certain social relations which are regulated by law undergo
changes (for example, technological possibilities of certain
kinds of activity expand so much, which maybe were impossible to
predict at the time when the text of the Constitution was
created).
In this context it is particularly to be emphasized that
the further construction and development of the official
constitutional doctrine, inter alia the reinterpretation of the
official constitutional doctrinal provisions, also such, when the
official constitutional doctrine is corrected, in the acts of the
Constitutional Court adopted in new constitutional justice cases,
allow to reveal the deep potential of the Constitution without
changing its text and in this aspect to apply the Constitution to
the changes of social life, to constantly changing living
conditions of society and the state and to ensure the viability
of the Constitution as the fundamental of life of society and the
state. The formation and development of the official
constitutional doctrine is a function of constitutional justice.
In the acts of the Constitutional Court adopted in new
constitutional justice cases, by further construing and
developing, inter alia reinterpreting, the official
constitutional doctrinal provisions, also so that the official
constitutional doctrine is corrected, it is prompted not to make
any intervention to the text of the Constitution when such
intervention is not legally necessary. Alongside, thus one
contributes to the ensuring of the stability of the text of the
Constitution and the constitutional order.
14. The reinterpretation of the official constitutional
doctrinal provisions, also such when the constitutional doctrine
is corrected inter alia means that in the future, in the
Constitutional Court, constitutional justice cases will have to
be considered and corresponding decisions will have to be adopted
by following this reinterpreted (corrected) official
constitutional doctrine.
15. In Paragraph 2 of Article 107 of the Constitution, it
is established that the decisions of the Constitutional Court on
issues ascribed to its competence by the Constitution shall be
final and not subject to appeal.
15.1. The notion "decisions" used in Paragraph 2 of Article
107 of the Constitution (the same notion is used in Paragraph 1
of Article 105, Paragraph 2 of Article 107 and Paragraph 4 of
Article 109 of the Constitution) may not be construed as meaning
that the Constitutional Court, while deciding on issues ascribed
to its competence, may adopt only a legal act called a decision
(which has the form of a decision). The notion "decisions" is
resumptive, it not only describes the legal acts adopted by the
Constitutional Court and the kind of these actsit 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.
It needs to be noted that 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).
15.2. The resumptive notion "decisions" of Paragraph 2 of
Article 107 of the Constitution is concretised in the Law on the
Constitutional Court.
In Article 22 (wording of 11 July 1996) of the Law on the
Constitutional Court, it is inter alia established: the
Constitutional Court shall decide a case in essence by passing a
ruling (Paragraph 1), the Constitutional Court shall promulgate
rulings in the name of the Republic of Lithuania (Paragraph 1);
in the cases provided for by the Law on the Constitutional Court
(i.e. the cases provided for in Paragraph 3 of Article 105 of the
Constitution), the final act of the Constitutional Court shall be
called a conclusion (Paragraph 2); the Constitutional Court shall
adopt decisions on individual questions which prevent a case from
being decided in essence (Paragraph 3). Therefore, after it
investigates on whether a certain act of the Seimas, the
President of the Republic or the Government, as well as any act
(part thereof) passed by referendum is not in conflict with a
legal act of greater power, inter alia (and, first of all) with
the Constitution, the Constitutional Court shall adopt a ruling.
In this context it is to be noted that under the Law on the
Constitutional Court, the Constitutional Court shall adopt
decisions regarding the construction of the Constitutional Court
ruling (Paragraph 2 of Article 61) and regarding the dismissal of
the case (legal proceedings) (Paragraph 3 of Article 69).
The specified rulings, conclusions and decisions of the
Constitutional Court are final acts of the Constitutional Court
by them a constitutional justice case is finished. All the said
Constitutional Court rulings, conclusions, as well as decisions
by which the constitutional justice case is finished, i.e. final
acts of the Constitutional Court, are included in the resumptive
notion "decisions" used in Paragraph 2 of Article 107 of the
Constitution which also 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.
15.3. Under Paragraph 2 of Article 107 of the Constitution,
in which, as mentioned, it is established that the decisions of
the Constitutional Court on issues ascribed to its competence by
the Constitution shall be final and not subject to appeal,
Constitutional Court rulings, conclusions, as well as decisions
by which the constitutional justice case is finished, i.e. final
acts of the Constitutional Court, may not be reviewed, except the
cases when the necessity to review them arises from the
Constitution itself.
In the context of the constitutional justice case at issue
it is to be noted that Constitutional Court rulings, conclusions
and decisions by which a constitutional justice case is finished,
i.e. final acts of the Constitutional Court, are final and not
subject to appeal irrespective of whether the Constitutional
Court adopted these acts in a corresponding constitutional
justice case after it had investigated in essence on the
compliance of the legal act (part thereof) with the Constitution
(other legal act of greater power) or after it had not
investigated into the compliance of the legal act (part thereof)
with the Constitution (other legal act of greater power) in
essence, but by a properly (clearly and rationally) reasoned
decision refused to consider the petition or dismissed 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.
15.4. In the context of the constitutional justice case at
issue, it is particularly to be noted that the formula "shall be
final and not subject to appeal" of Paragraph 2 of Article 107 of
the Constitution, in which, as mentioned, it is established that
the decisions of the Constitutional Court on issues ascribed to
its competence by the Constitution shall be final and not subject
to appeal, means that the Constitutional Court rulings,
conclusions and decisions by which a constitutional justice case
is finished, i.e. final acts of the Constitutional Court, are
obligatory to all State institutions, courts, all enterprises,
establishments and organisations, as well as officials and
citizens, including the Constitutional Court itself: final acts
of the Constitutional Court are obligatory to the Constitutional
Court itself, they restrict the Constitutional Court in the
aspect that it may not change them or review them if there are no
constitutional grounds for that.
15.5. Thus, it is to be emphasised that under the
Constitution, no development of the official constitutional
doctrineneither the supplement of the conception of the
provisions of the Constitution provided in the acts of the
Constitutional Court adopted in the previous constitutional
justice cases with new elements (fragments) nor the
reinterpretation of the official constitutional doctrinal
provisions formulated previously when the official constitutional
doctrine is correctedmay be or is the grounds for reviewing the
rulings, conclusions or decisions or their reasoning, which were
adopted in the previous constitutional justice cases by which
corresponding constitutional justice cases were finished.
This is also to be said about the cases when the
Constitutional Court, after it has received a petition of a court
of general jurisdiction or a specialised court, established under
Paragraph 2 of Article 111 of the Constitution, requesting to
investigate and decide on whether any act (part thereof) of the
Seimas, the President of the Republic or the Government, as well
as that adopted by referendum is not in conflict with an act of
greater power, inter alia (and, first of all) with the
Constitution, did not decide, under the Constitution and the Law
on the Constitutional Court, on the corresponding question in
essence by a properly (clearly and rationally) argued decisionit
refused to consider the petition or dismissed 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.
16. Although the Constitution does not specify expressis
verbis that the Constitutional Court has the powers to review its
rulings, conclusions and decisions, nor does it contain any
expressis verbis specified grounds, due to which the
Constitutional Court has the powers to review its rulings,
conclusions and decisions, it does not mean that the said powers
of the Constitutional Court and grounds are not established in
the Constitution at all. The powers of the Constitutional Court
to review its rulings, conclusions and decisions arise from the
constitutional purpose of the Constitutional Court to administer
constitutional justice, guarantee the supremacy of the
Constitution in the legal system and the constitutional legality;
such powers of the Constitutional Court are also implied by the
constitutional principle of a state under the rule of law,
according to which it is required that the jurisdictional
institutions (thus, also the Constitutional Court) would seek to
establish the objective truth and that they would adopt their
decisions only on the grounds of law (Constitutional Court
rulings of 11 May 1999, 19 September 2000, 24 January 2003 and 13
December 2004).
The opposite construction would mean that the
Constitutional Court may not review its rulings, conclusions and
decisions even when they were adopted while the Constitutional
Court did not know about such essential circumstances which, if
had been known then, would have been able to determine a
different content of the adopted rulings, conclusions and
decisions. It is obvious that such construction would not
correspond the constitutional purpose of the Constitutional Court
and the conception of powers established to it in the
Constitution because it would imply inter alia the fact the
Constitutional Court may not administer constitutional justice
and guarantee the supremacy of the Constitution in the legal
system, nor the constitutional legality.
However, it is to be emphasized that the Constitutional
Court may review its rulings, conclusions and decisions only if
there are constitutional grounds for doing that. The construction
that the Constitutional Court may review its rulings, conclusions
and decisions also when the necessity to review them does not
arise from the Constitution, i.e. when no significant new
circumstances turned up which were unknown at the time when the
corresponding final act of the Constitutional Court was passed,
would mean that the Constitutional Court is not bound by
Paragraph 2 of Article 107 of the Constitution, under which, as
mentioned, final acts of the Constitutional Court are binding on
the Constitutional Court itself and they restrict the
Constitutional Court in the aspect that it may not change or
review them if there are no constitutional grounds for that. Such
construction would not correspond the Constitution also because
of the fact that it would create preconditions to deny the
continuity of the constitutional jurisprudence and to violate the
principle of the supremacy of the Constitution, the
constitutional principle of a state under the rule of law and
other provisions of the Constitution.
17. In this context, it is to be noted that the provision
that the Constitutional Court has the powers to review its ruling
is entrenched in Article 62 of the Law on the Constitutional
Court. In the said article it is established:
"Constitutional Court ruling may be reviewed on its own
initiative if:
1) new, essential circumstances turn up which were unknown
to the Constitutional Court at the time when the ruling was
passed;
2) the constitutional norm on which the ruling was based
has changed.
In such a case, the Constitutional Court shall adopt a
decision and start the investigation of the case anew.
A decision of the Constitutional Court concerning
construction of its ruling may also be reviewed if the ruling was
not construed according to its actual content."
18. The formula "ruling may be reviewed" of Article 62 of
the Law on the Constitutional Court may not be construed
literally, as meaning that, allegedly, the Constitutional Court
has the powers to review only its rulings (i.e. only such of its
legal acts, which have the form of a ruling). This formula is to
be construed in the context of the legal regulation, established
in other articles (parts thereof) of the Constitution, inter alia
of the resumptive notion "decisions" of Paragraph 2 of Article
107 of the Constitution, which, as mentioned, includes all
rulings, conclusions and decisions of the Constitutional Court by
which a constitutional justice case is finished (i.e. final acts
of the Constitutional Court), as well as in the context of the
legal regulation established in other articles (parts thereof) of
the Law on the Constitutional Court, inter alia of the notion
"decision concerning <
> construction of the ruling" of Paragraph
3 of Article 62 of the Law on the Constitutional Court. Thus,
under Article 62 of the Law on the Constitutional Court, the
Constitutional Court has the powers to review not only its
rulings, but also other final acts.
However, it is to be emphasized that, as it has been held
in this Constitutional Court ruling, under the Constitution, the
final acts of the Constitutional Court are final and not subject
to appeal, therefore, obligatory the Constitutional Court itself
(irrespective of whether the Constitutional Court adopted these
acts in the corresponding constitutional justice case after it
has investigated in essence on the compliance of the legal act
(part thereof) with the Constitution (other legal act of greater
power) or after it has not investigated into it in essence); they
restrict the Constitutional Court in the aspect that it may not
change or review them if there are no constitutional grounds for
that; the Constitutional Court may review its rulings,
conclusions and decisions only in the cases when the necessity to
review them arises from the Constitution itself. Under Paragraph
2 of Article 62 of the Law on the Constitutional Court, in such
cases, the Constitutional Court shall adopt a decision and start
the investigation of the case anew.
19. Under the Law on the Constitutional Court, a final act
may be reviewed only on the grounds established in Article 62 of
this law. In such a case, the Constitutional Court shall adopt a
decision and start the investigation of the case anew (Paragraph
2 of Article 62 of the Law on the Constitutional Court).
It needs to be noted that a final act of the Constitutional
Court may be reviewed only upon the initiative of the
Constitutional Court itself (Paragraph 1 of Article 62 of the Law
on the Constitutional Court). This provision does not mean that
various subjects of law, inter alia those, which, under the
Constitution and the Law on the Constitutional Court, may apply
to the Constitutional Court with a petition or request on the
questions ascribed to the jurisdiction of the Constitutional
Court, may not raise the question of reviewing of a final act of
the Constitutional Court at the Constitutional Court, however,
under the Constitution and the Law on the Constitutional Court,
while deciding, whether to do so, the Constitutional Court has a
wide discretion.
19.1. One of the bases for reviewing a final act of the
Constitutional Court on its own initiative is the fact that new
essential circumstances turned up which were unknown to the
Constitutional Court at the time when the ruling was passed (Item
1 of Paragraph 1 of Article 62 of the Law on the Constitutional
Court).
19.1.1. It was mentioned that, under the Constitution, the
Constitutional Court has the powers to review its rulings,
conclusions and decisions when they were adopted while the
Constitutional Court did not know about such essential
circumstances which, if they had been known, such circumstances
would have been able to determine a different content of the
adopted rulings, conclusions and decisions.
19.1.2. However, as it has been held in this Constitutional
Court ruling, under the Constitution, no development of the
official constitutional doctrineneither the supplement of the
conception of the provisions of the Constitution provided in the
acts of the Constitutional Court adopted in the previous
constitutional justice cases with new elements (fragments), nor
the reinterpretation of the official constitutional doctrinal
provisions formulated previously when the official constitutional
doctrine is correctedmay be or is the grounds for reviewing the
rulings, conclusions, or decisions or their reasoning which were
adopted in the previous constitutional justice cases by which
corresponding constitutional justice cases were finished; this,
as mentioned, is also to be said about the cases when the
Constitutional Court, after it has received a petition of a court
of general jurisdiction or a specialised court, established under
Paragraph 2 of Article 111 of the Constitution, requesting to
investigate and decide on whether an act (part thereof) of the
Seimas, the President of the Republic or the Government, or that
adopted by referendum is not in conflict with an act of greater
power, inter alia (and, first of all) with the Constitution,
refused, under the Constitution and the Law on the Constitutional
Court and by a properly (clearly and rationally) argued decision,
to consider the petition or dismissed 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 on the corresponding
question in essence.
19.2. Another base for reviewing a final act of the
Constitutional Court on its own initiative is that "the
constitutional norm on which the ruling was based has changed"
(Item 2 of Paragraph 1 of Article 62 of the Law on the
Constitutional Court).
19.2.1 In this context, it is to be noted that, under
Paragraph 1 of Article 107 of the Constitution, 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 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. As Paragraph 1 of Article 102 of the Constitution
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 greater power, inter alia
(and, first of all) with the Constitution, so is specified
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 is recognized as being in conflict
with a certain legal act of greater 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. It is also to be noted that 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 a like legal act or part thereof (Constitutional
Court ruling of 30 May 2003). It was mentioned 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.
Therefore, after the promulgation of the Constitutional
Court ruling that a certain act (part thereof) passed by the
Seimas, the President of the Republic or the Government, as well
as that adopted by referendum is in conflict with a certain legal
act of greater power, inter alia (and, first of all) with the
Constitution, the subject which has passed that legal act has the
duty to recognise that legal act (part thereof) as no longer
valid or to change it so that it would not be in conflict with
the corresponding legal act of greater power, inter alia (and,
first of all) with the Constitution. However, till this
constitutional duty has not been fulfilled, the corresponding
legal act (part thereof) may not longer be applied under any
circumstances.
19.2.2. In themselves, no amendments or supplements of a
legal act of greater power, even those of the Constitution, made
after the Constitutional Court recognised, while referring to the
previous provisions of the Constitution, a certain legal act
(part thereof) passed by the Seimas, the President of the
Republic or the Government or adopted by referendum as being in
conflict with any act of greater power, inter alia (and, first of
all) with the Constitution, bring back the legal act (part
thereof) which was recognised as being in conflict with any legal
act of greater power, inter alia (and, first of all) with the
Constitution to the Lithuanian legal system. Under the
Constitution, nor does the Constitutional Court have the powers
to bring back such legal acts (parts thereof) to the Lithuanian
legal system. In an analogous way, in themselves no amendments or
supplements of a legal act of greater power, even of the
Constitution, made after the Constitutional Court recognised,
while referring to the previous provisions of the Constitution, a
certain act passed by the Seimas, the President of the Republic
or the Government or that adopted by referendum as not being in
conflict with a certain act of greater power, inter alia (and,
first of all) with the Constitution, do not mean that the
decision on the said legal act may or has to be retrospectively
changed. On the other hand, when an amendment to the Constitution
is made, the legislator and other law-making subjects must co-
ordinate the legal acts that they passed and which are still
valid with the changed legal regulation, however, this does not
imply that the constitutional justice cases on the compliance of
the previous legal regulation with the legal regulation of
greater power, inter alia (and first of all) with the
Constitution, which have already been investigated, must be
renewed and that the decisions adopted thereinreviewed and
changed.
This is applicable mutatis mutandis also to such cases,
when the Constitutional Court, referring to the previous
provisions of the Constitution, presents a conclusion on any of
the questions, specified in Paragraph 3 of Article 105 (whether
there were violations of election laws during elections of the
President of the Republic or elections of members of the Seimas
(Item 1); whether the state of health of the President of the
Republic allows him to continue to hold office (Item 2); whether
international treaties of the Republic of Lithuania are not in
conflict with the Constitution (Item 3); whether concrete actions
of members of the Seimas and State officials against whom an
impeachment case has been instituted are in conflict with the
Constitution (Item 4))such conclusion remains valid even if the
provisions of the Constitution, taking account of what conclusion
was made and presented, are changed or abolished. Moreover, this
is applicable mutatis mutandis to the decisions of the
Constitutional Court that were adopted without investigating into
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 (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.
19.2.3 Thus, the Constitution does not give grounds to
bring back retrospectively the legal act (part thereof) which was
recognised as being in conflict with legal regulation of greater
power, inter alia (and, first of all) established in the
Constitution, to the Lithuanian legal system, as well as to
question and annul the corresponding rulings, conclusions and
decisions of the Constitutional Court that were constitutionally
grounded at the moment when they were adopted. While construing
it in a different way, not only the provisions of the
Constitution that entrench the institute of constitutional
justiceconstitutional legal controlinter alia the fact that the
decisions of the Constitutional Court are final and not subject
to appeal would be disregarded, but the stability of the
Constitution, the predictability of decisions of the
Constitutional Court, the legitimate expectations of various
subjects of law that are created by such decisions would be
denied.
Thus, Item 2 of Paragraph 1 of Article 62 of the Law on the
Constitutional Court, in which one of the bases for reviewing a
final act of the Constitutional Court on the initiative of the
Constitutional Court is that "the constitutional norm on which
the ruling was based has changed" is not in line with the
provisions of Paragraphs 1 and 2 of Article 107 of the
Constitution.
19.2.4. It was also mentioned that under Paragraph 2 of
Article 5 of the Constitution, the scope of power shall be
limited by the Constitution. The Constitutional Court has held in
its acts that the provision of Paragraph 2 of Article 5 of the
Constitution that the scope of power shall be limited by the
Constitution is violated if the legal regulation is established
whereby the powers of the state institution specified in
Paragraph 1 of Article 5 of the Constitution or those of any
other state institution are broadened in a constitutionally
unreasonable manner (Constitutional Court rulings of 13 May 2004,
13 December 2004 and 23 August 2005).
It was mentioned that on the basis established in Item 2 of
Paragraph 1 of Article 62 of the Law on the Constitutional Court,
a final act of the Constitutional Court may be reviewed only on
the initiative of the Constitutional Court itself.
Since it has been held that Item 2 of Paragraph 1 of
Article 62 of the Law on the Constitutional Court, in which the
base is established, whereby a final act of the Constitutional
Court may be reviewed only on the initiative of the
Constitutional Court is not in line with the provisions of
Paragraphs 1 and 2 of Article 107 of the Constitution, it is also
to be held that by such regulation the powers that belong to the
Constitutional Court under the Constitution are broadened without
constitutional grounds.
19.2.5. Taking account of the arguments set forth, a
conclusion is to be made that Item 2 of Paragraph 1 of Article 62
of the Law on the Constitutional Court is in conflict with
Paragraph 1 of Article 5 and Paragraphs 1 and 2 of Article 107 of
the Constitution as well as with the constitutional principle of
a state under the rule of law.
19.3. Under Paragraph 3 of Article 62 of the Law on the
Constitutional Court, a decision of the Constitutional Court
concerning the construction of its ruling may also be reviewed if
the ruling was not construed according to its actual content.
In this context, it is to be noted that under Paragraph 1
of Article 61 of the Law on the Constitutional Court, a ruling of
the Constitutional Court may only be officially construed by the
Constitutional Court itself; the Constitutional Court does so
upon a request of the persons who participated in the case, of
other institutions and persons to whom the ruling was sent, as
well as on its own initiative. In Paragraph 3 of Article 61 of
the Law on the Constitutional Court it is established that the
Constitutional Court must construe its ruling without changing
its content. The Constitutional Court has held that while
construing its ruling, the Constitutional Court is bound both by
the content of the part of resolution and that of reasoning of
its ruling (Constitutional Court decisions of 12 January 2000, 11
February 2004, 13 February 2004 and 10 February 2005). The
provision of Paragraph 3 of Article 61 of the Law on the
Constitutional Court that the Constitutional Court must construe
its ruling without changing its content means, among other
things, that while construing its ruling, the Constitutional
Court may not construe its content so that the meaning of the
provisions of the ruling would be changed, inter alia the
entirety of the meaning of the elements composing the content of
the ruling, as well as the arguments and reasons on which the
Constitutional Court ruling is based. The specified provision of
Paragraph 3 of Article 61 of the Law on the Constitutional Court
also means that the Constitutional Court may not construe what it
did not investigate in the constitutional justice case in which
the construed ruling was adopted.
20. It has been held in this Constitutional Court ruling
that no development of the official constitutional doctrine
neither the supplement of the conception of the provisions of the
Constitution provided in the acts of the Constitutional Court
adopted in the previous constitutional justice cases with new
elements (fragments), nor the previously formulated
reinterpretation of the official constitutional doctrinal
provisions when the official constitutional doctrine is
correctedmay be or is the grounds for reviewing the rulings,
conclusions or decisions or their reasoning adopted in previous
constitutional justice cases by which corresponding
constitutional justice cases were finished, this, as it was
mentioned, is also to be said about the cases when the
Constitutional Court, after it has received a petition of a court
of general jurisdiction or a specialised court, established under
Paragraph 2 of Article 111 of the Constitution, requesting to
investigate and decide on whether a legal act (part thereof)
passed by the Seimas, the President of the Republic or the
Government, as well as any act (part thereof), or that adopted by
referendum is not in conflict with a legal act of greater power,
inter alia (and, first of all) with the Constitution, did not
decide, under the Constitution and the Law on the Constitutional
Court, on the corresponding question in essence by a properly
(clearly and rationally) argued decisionit refused to consider
the petition or dismissed 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.
Thus, 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).
In itself, the change (reinterpretation, correction) of the
constitutional doctrine formed by the Constitutional Court
previously is not the grounds for the subjects specified in
Article 106 of the Constitution to apply to the Constitutional
Court anew with a request whether there were violations of
election laws of the President of the Republic or elections of
Members of the Seimas, whether the state of health of the
President of the Republic permits him to continue to hold office,
whether international treaties of the Republic of Lithuania are
not in conflict with the Constitution and whether particular
actions of Members of the Seimas and state officials against whom
the impeachment case has been instituted are in conflict with the
Constitution.
21. In the context of the constitutional justice case at
issue, it is to be noted that the official constitutional
doctrine that if the Constitutional Court did not decide,
subsequent to a petition of a petitionera courtthe question on
the compliance of the disputed law or other legal act (part
thereof) with a legal act of greater power, inter alia (and,
first of all) with the Constitution, in essence due to the fact
that at the time when the corresponding constitutional justice
case is being considered (or at the time when one expects its
consideration to take place) is no longer validit has been
recognised as no longer valid (it was abolished or amended) or
its validity expired, the doubts of the court, which considers
the case, regarding the compliance of that law or other legal act
(part thereof) with a legal act of greater power, inter alia
(and, first of all) with the Constitution would not be removed,
and if that law or other legal act (part thereof) is applied, the
values, inter alia constitutional rights of the person,
entrenched in and defended and protected by the Constitution,
could be violated, was formulated in the jurisdiction of the
Constitutional Court not at the beginning of its activity, but
gradually, after the Constitutional Court has gained appropriate
experience in consideration of constitutional justice cases and
while construing the aspects of the legal regulation established
in the Constitution, necessary for the investigation of the
corresponding constitutional justice cases.
It is also to be noted that after the Constitutional Court
has gained appropriate experience in consideration of
constitutional justice cases, the construction (which is
mentioned in this Constitutional Court ruling) 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.
22. At the beginning of its activity and a bit later the
Constitutional Court adopted certain decisions to dismiss the
instituted legal proceedings (and, when the constitutional
justice case had already been investigated in the Constitutional
Court hearingto dismiss the case) in the constitutional justice
cases, in which the laws or other legal acts disputed by the
petitioners (inter alia courts) were no longer valid at the time
when corresponding constitutional justice cases were considered
they had been recognized as no longer valid (they had been
abolished or amended) or their validity had expired. If the
disputed legal act (part thereof) used to be recognised as no
longer valid (they had been abolished or amended) or their
validity had expired before the Constitutional Court decided on
the acceptance of the corresponding petition for consideration
and preparation of the case, a decision used to be adopted to
refuse to investigate the petition.
It is also to be mentioned that at the beginning of the
activity of the Constitutional Court and a bit later also such
Constitutional Court decisions were adopted by which it was
refused to consider certain petitions because corresponding legal
acts (parts thereof) of greater power were no longer valid (they
had been recognised as no longer valid (they had been abolished
or amended) or their validity had expired) in regard of which the
compliance of legal acts (parts thereof) of lower power was
disputed, at the time when the corresponding constitutional
justice case was being investigated (or at the time when one
expected its consideration to take place).
The said Constitutional Court decisions to dismiss the
instituted legal proceedings or the case and decisions to refuse
to consider the petition were reasoned by the fact (or inter alia
by the fact) that at the time of consideration of the
corresponding constitutional justice case (or at the time when
one expected its consideration to take place), the disputed legal
act (part thereof) and/or the legal act (part thereof) of greater
power was no longer valid (it had been recognised as no longer
valid (it had been abolished or amended) or its validity had
expired) in regard of which the compliance of certain legal acts
(parts thereof) of lower power was disputed.
Alongside, it is also to be emphasized that the said
Constitutional Court decisions to dismiss the instituted legal
proceedings or the case and decisions to refuse to consider the
petition were adopted while taking account of various
circumstances of the corresponding case (when one refused to
consider a corresponding petitionalso of the circumstances
related to the matter of the petition).
23. In this context, it is also to be noted that 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).
It is also to be mentioned that there were also such
decisions in which the Constitutional Court referred to the
provision of Paragraph 4 (wordings of 3 February 1993 and 11 July
1996) of Article 69 of the Law on the Constitutional Court that
the annulment of the disputed legal act shall be grounds to adopt
a decision to dismiss the instituted legal proceedings holding
that there was no disputed matter left in the considered case
(because the new legal regulation was already applied and not the
disputed one).
24. The said Constitutional Court decisions to dismiss the
instituted legal proceedings or to refuse to consider the
petition when the disputed legal acts (parts thereof) and/or
legal acts (parts thereof) of greater power in whose aspect the
compliance of certain legal acts (parts thereof) of lower power
was disputed were no longer valid, as well as when the disputed
legal acts (parts thereof) that were formally still valid were
compared to legal acts (parts thereof), which were no longer
valid, were grounded on such conception of the Constitutional
Court powers that was prevailing for some time (particularly, at
the beginning of the Constitutional Court activity and a bit
later) that the Constitutional Court has the powers to
investigate only into the compliance of valid legal acts of lower
power with only valid legal acts of greater power (inter alia
(and, first of all) with the Constitution); while following such
conception of the Constitutional Court powers, the Constitutional
Court did not investigate whether the legal acts that were no
longer valid, or the ones compared to such were not in conflict
with the Constitution (other legal acts of greater power).
It is to be noted that for some time (particularly, at the
beginning of the Constitutional Court activity and a bit later)
the 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 with only valid
legal acts of greater power (inter alia (and, first of all) with
the Constitution) and 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) was grounded not so much on the construction of the
provisions (inter alia of those in which the Constitutional Court
powers are entrenched) of the Constitution based on the systemic,
logical, teleological or other methods, but, first of all, on the
linguistic (literal) 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
(wordings of 3 February 1993 and 11 July 1996) of Article 69 of
the Law on the Constitutional Court.
It is to be emphasised that the application of the
linguistic method of construction of law as well as the strict
following of the letter of the law in general while applying law
is most often grounded; it is not possible to deny the
significance of this method of construction of law; while
applying the linguistic method of construction of law (together
with other methods), the observance of the formal requirements of
law and the same understanding of the corresponding legal
regulation are ensured.
On the other hand, the linguistic method of construction of
law is not unique or universal, its significance should not be
exaggerated. In this context, it is to be noted that, as the
Constitutional Court has held in its acts (inter alia in its
rulings of 25 May 2004 and 13 December 2004) more than once, it
is not permitted to construe the Constitution only literally, by
applying only the linguistic (verbal) method, that while
construing the Constitution, it is necessary to apply various
methods of construction of law: systemic, the one of general
principles of law, logical, teleological, the one of intentions
of the legislator, the one of precedents, historical,
comparative, etc. It is also to be held that the same can be said
about construction of all legal acts of lower power
(Constitutional Court ruling of 16 January 2006). Moreover, the
Constitutional Court has held that it is impossible to construe
constitutional norms and principles on the basis of the legal
acts adopted by the legislator and other entities of law-making,
as then the supremacy of the Constitution in the legal system is
denied (Constitutional Court decisions of 12 July 2001, 1 July
2004, 13 December 2004 and 10 February 2005).
25. It was mentioned that at the beginning of its activity
and a bit later the Constitutional Court, while taking account of
various circumstances of the case (related to the matter of the
petition), adopted decisions to dismiss the instituted legal
proceedings (and, when the constitutional justice case had
already been investigated in the Constitutional Court hearingto
dismiss the case) in the constitutional justice cases in which
the laws or other legal acts disputed by the petitioners (inter
alia courts) were no longer valid at the time when corresponding
constitutional justice cases were consideredthey had been
recognized as no longer valid (they had been abolished or
amended) or their validity had expired. Also, the Constitutional
Court adopted decisions to refuse to consider corresponding
petitions, if the disputed legal acts (parts thereof) had been
recognised as no longer valid (they had been abolished or
amended) or their validity had expired before the Constitutional
Court decided on the acceptance of the corresponding petitions
for consideration and on preparation of cases for Constitutional
Court hearings, also when these decisions were reasoned by the
fact (inter alia by the fact) that the disputed legal acts (parts
thereof) were no longer valid.
However, it needs also to be noted that 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. In this context it is to be noted that in
such constitutional justice cases it was investigated whether
inter alia such legal acts (parts thereof) of lower power, which
at the moment when the Constitutional Court was deciding on the
acceptance of the corresponding petition for consideration and
preparation of the case for the Constitutional Court hearing,
were valid, however, they became no longer valid prior to the
consideration of the corresponding constitutional justice case at
the Constitutional Court hearing, as well as such legal acts
(parts thereof) of lower power of one-time (ad hoc) application
which had been executed at the time when the constitutional
justice case was considered, were not in conflict with the
Constitution (other legal act of greater power).
26. In summary, it is to be held that 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).
27. When the Constitutional Court gained appropriate
experience in consideration of constitutional justice cases, it
was noticed that the said 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 with only valid legal acts of greater power (inter alia
(and, first of all) with the Constitution) and 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), created
preconditions for appearance of such legal situations, when a
court, which considers a corresponding case, doubted on the
compliance of the legal act (part thereof) passed by the Seimas,
the President of the Republic or the Government or adopted by
referendum, which was applicable in the considered case, with a
legal act of greater power, inter alia (and, first of all) with
the Constitution, and which, after it had applied to the
Constitutional Court with a petition, could not be certain that
these doubts which had arisen to it would be removed after
receiving an answer from the Constitutional Court, because the
Constitutional Court, while following the said conception of the
Constitutional Court powers, could, while taking into account the
circumstances of importance, refuse to accept the petition for
investigation on the compliance of the corresponding laws (parts
thereof) and other legal acts (parts thereof) with the
Constitution precisely because of the fact that the disputed
legal act (part thereof) was no longer validit had been
recognised as no longer valid (it had been abolished or amended)
or its validity had expired, or, under Paragraph 4 (wordings of 3
February 1993 and 11 July 1996) of Article 69 of the Law on the
Constitutional Court, it could dismiss the instituted legal
proceedings in the constitutional justice case (dismiss the
case). Thus, the said court had to apply such law (part thereof),
other legal act (part thereof) on whose compliance with the
Constitution (other legal acts of greater power) it had doubted.
Undoubtedly, in such cases, when not courts but other subjects
specified in Article 106 of the Constitution applied to the
Constitutional Court with a petition requesting to investigate
into the compliance of a legal act (part thereof) passed by the
Seimas, the President of the Republic or the Government or
adopted by referendum with a legal act of greater power, inter
alia (and, first of all) with the Constitution, the dismissal of
the instituted legal proceedings (case) precisely because of the
fact that the disputed legal act (part thereof) was no longer
validit had been recognised as no longer valid (it had been
abolished or amended) or its validity had expireddid not use to
give rise to any undesirable legal effects.
The said conception of the Constitutional Court powers that
the Constitutional Court, allegedly, has the powers to
investigate only on the compliance of valid legal acts of lower
power with only 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) created
preconditions for appearance of such legal situations, when the
state institutions which pass laws and other legal acts the
revision of the constitutionality of which is attributed to the
jurisdiction of the Constitutional Court, while seeking to
achieve dismissal of the instituted legal regulation in the
constitutional justice case following the provision that the
annulment of the disputed legal act shall be grounds to adopt a
decision to dismiss the instituted legal proceedings of Paragraph
4 (wordings of 3 February 1993 and 11 July 1996) of Article 69 of
the Law on the Constitutional Court, could, before the
consideration of the corresponding constitutional justice case at
the Constitutional Court hearing, recognise the disputed law
(part thereof) or other legal act (part thereof) as no longer
valid (to annul or amend it) and to adopt a new legal act
replacing the disputed legal actin which virtually the same
legal regulation would be established as the one which was being
disputed in the said constitutional justice case, in which the
legal proceedings were dismissed because the disputed legal act
(part thereof) was no longer validit had been recognised as no
longer valid (it had been annulled or amended) or its validity
had expired. Thus, the said conception of the Constitutional
Court powers that the Constitutional Court, allegedly, has the
powers to investigate only into the compliance of only valid
legal acts of lower power with only 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) created
preconditions for appearance of such legal situations, when the
state institutions which pass laws and other legal acts the
revision of the constitutionality of which is attributed to the
jurisdiction of the Constitutional Court, could also act so that
the disputed legal regulation (established in laws (parts
thereof) and other legal acts (parts thereof))after it had been
transferred to new legal actswould be applied afterwards anyway,
i.e. until it was not annulled, amended or, if a new
constitutional justice case were initiated on that issue in the
Constitutional Court, recognised as being in conflict with the
Constitution.
It was also noticed that the concept of the powers of the
Constitutional Court that it allegedly has the powers to
investigate only into the compliance of valid legal acts of lower
power with only 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), does not permit
to investigate and to remove the legal acts that are not yet
valid from the legal system, if such legal acts of lower power
were recognised as being in conflict with the legal acts of
greater power, inter alia (and, first of all) with the
Constitution.
28. Due to such and other reasons, 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.
29. It was mentioned that the necessity of reinterpretation
of certain official constitutional doctrinal provisions so that
the official constitutional doctrine would be corrected may be
determined only by the circumstances as: the necessity to
increase possibilities for implementing the innate and acquired
rights of persons and their legitimate interests, the necessity
to better defend and protect the values enshrined in the
Constitution, the need to create better conditions in order to
implement the aims of the Lithuanian Nation declared in the
Constitution on which the Constitution itself is based, the
necessity to expand the possibilities of 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.
The development of the official constitutional doctrine on
the acceptance of applications at the Constitutional Court, which
entrenches the Constitutional Court powers also to investigate
into the compliance of the laws and of other legal acts (parts
thereof) which are no longer valid with the Constitution (other
legal acts of greater power), inter alia after one has
differentiated the subjects specified in Article 106 of the
Constitution that have the powers to apply to the Constitutional
Court, is supplementing of corresponding constitutional doctrine
formed in the previous constitutional justice cases with such new
elements, which are necessary in deciding new constitutional
justice cases so that the specified constitutionally important
objectives would be sought, and it is clearer revelation of one
of the aspects of the variety and completeness of the legal
regulation entrenched in the Constitution, the highest law, when
in most of the Constitutional Court acts ("case after case") the
corresponding changes (reinterpretation, correction) of the
official constitutional doctrinal provisions have been rationally
reasoned.
30. It was mentioned that, under the Constitution, no
development of the official constitutional doctrineneither
supplement of the conception of the provisions of the
Constitution provided in the acts of the Constitutional Court
adopted in the previous constitutional justice cases with new
elements (fragments), nor reinterpretation of the official
constitutional doctrinal provisions formulated previously when
the official constitutional doctrine is correctedmay be or is
the grounds for reviewing the rulings, conclusions or decisions
or their reasoning adopted in the previous constitutional justice
cases by which the constitutional justice case was finished; it
was also mentioned that the same is to be said about such cases
when the Constitutional Court, after it has received a petition
of a court of general jurisdiction or a specialised court,
established under Paragraph 2 of Article 111 of the Constitution,
requesting to investigate and decide whether the legal act (part
thereof), passed by the Seimas, the President of the Republic or
the Government or adopted by referendum is not in conflict with a
legal act of greater power, inter alia (and, first of all) with
the Constitution, under the Constitution and the Law on the
Constitutional Court, by a properly (clearly and rationally)
argued decision refused to consider the petition or dismissed 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.
It was also mentioned that, 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 is to be emphasized that neither the development of the
official constitutional doctrine (inter alia supplement of the
conception of the provisions of the Constitution provided in the
acts of the Constitutional Court adopted in the previous
constitutional justice cases with new elements (fragments), nor
reinterpretation of the official constitutional doctrinal
provisions formulated previously when the official constitutional
doctrine is corrected), nor application of new methods of
construction of law while construing certain provisions of the
Constitution may be considered the "new, essential circumstances
which were unknown to the Constitutional Court at the time when
the ruling was passed" mentioned in Item 1 of Paragraph 1 of
Article 62 of the Law on the Constitutional Court. Thus, neither
any development of the official constitutional doctrine, nor
application of new methods of construction of law while
construing certain provisions of the Constitution is, or may be
the grounds for the Constitutional Court to revise its final
legal actsrulings, conclusions and decisionsinter alia such by
means of which it was refused to consider the petition of the
petitionera courtto investigate and decide whether a legal act
(part thereof) passed by the Seimas, the President of the
Republic or the Government or adopted by referendum is not in
conflict with a legal act of greater power, inter alia (and,
first of all) with the Constitution, or by which the instituted
legal proceedings (case) were dismissed, 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.
31. 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, which is
disputed by the petitioner, is to be assessed while taking
account of the fact that, as it was mentioned, under Paragraph 2
of Article 107 of the Constitution, the Constitutional Court
decisions on issues ascribed to its competence by the
Constitution shall be final and not subject to appeal, that under
Paragraph 1 of Article 107 of the Constitution, 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 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 was held in this Constitutional Court ruling
that Paragraph 1 of Article 107 of the Constitution means that
every legal act (part thereof), passed by the Seimas, the
President of the Republic or the Government or adopted by
referendum, which is recognised as being in conflict with any
legal act of greater power, inter alia (and, first of all) with
the Constitution, is removed from the Lithuanian legal system for
good and it could never be applied.
Such provisions of the Constitution help to ensure the
stability and certainty of the legal regulation of social
relations, the continuity of the jurisprudence of the
Constitutional Court (and other courts), the predictability of
their activity and adopted decisions, the subjects of the
constitutional legal relations are protected from revision of
final legal acts adopted by the Constitutional Court, which would
be determined not by the objective constitutional necessity, but
by the accidental (in the aspect of law) factors.
32. Thus, 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
neither denies the stability and certainty of the legal
regulation of social relations and the continuity of the
jurisprudence of the Constitutional Court and other courts, nor
ignores the fact that, under the Constitution, the Constitutional
Court has the duty to provide a proper (clearly and rationally
argued) answer to the court which applied to the Constitutional
Court on the compliance of a legal act (part thereof) applicable
in the corresponding case with a legal act of greater power,
inter alia (and, first of all) with the Constitution irrespective
of whether the disputed legal act (part thereof) is valid or not,
nor, after it has taken account of all the circumstances of
importance, does it prevent from dismissing the legal proceedings
instituted in corresponding constitutional justice case in the
cases when the legal act, on whose compliance the Constitutional
Court was applied not by courts but by the other subjects
specified in Article 106 of the Constitution, is no longer valid
(it has been recognised as no longer valid (it has been abolished
or amended) or its validity has expired).
If one understands 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 in this way, the following is not violated:
- Paragraph 2 of Article 110 of the Constitution, whereby
in cases when there are grounds to believe that the law or other
legal act which should be applied in a concrete case is in
conflict with the Constitution, the judge shall suspend the
consideration of the case and shall apply to the Constitutional
Court requesting it to decide whether the law or other legal act
in question is in compliance with the Constitution;
- Paragraph 1 of Article 30 of the Constitution, whereby
the person whose constitutional rights are violated shall have
the right to apply to the Constitutional Court;
- Paragraph 2 of Article 6 of the Constitution, whereby
everyone may defend his rights by invoking the Constitution;
- Paragraph 1 of Article 109 of the Constitution, whereby
in the Republic of Lithuania, justice shall be administered only
by courts;
- the constitutional principle of a state under the rule of
law.
33. While taking account of the arguments set forth, a
conclusion is to be made that 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 is not in conflict with Paragraph 2 of Article 6, Paragraph
1 of Article 30, Paragraph 1 of Article 109 and Paragraph 2 of
Article 110 of the Constitution as well as with the
constitutional principle of a state under the rule of law.
III
On 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
2002) of Article 11 and Paragraph 2 (wording of 24 January 2002)
of Article 96 of the Law on Courts 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 with the constitutional principle
of a state under the rule of law.
1. In Paragraph 3 (wording of 24 January 2002) of Article
11 of the Law on Courts, it is established:
"It shall be prohibited to worsen the financial and
material-technical conditions for the functioning of courts
provided by the 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."
In Paragraph 2 (wording of 24 January 2002) of Article 96
of the Law on Courts, it is established: "During the judge's
tenure it shall be prohibited to reduce his remuneration with the
exception of cases provided by this law, or any other social
guarantees."
It was mentioned that the petitioner had doubts on 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
and Paragraph 2 (wording of 24 January 2004) of Article 96 of the
Law on Courts to the extent that, according to the petitioner, it
establishes possibilities to decrease the remuneration of judges,
are 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 with the constitutional principle of a
state under the rule of law.
2. Courts are one of the institutions implementing the
state power. Under Article 109 of the Constitution, while
administering justice, the judge and court shall be independent
(Paragraph 2), when considering cases, judges shall obey only the
law (Paragraph 3).
The principle of the independence of judges and courts,
which is entrenched in the Constitution, obliges the legislator
to establish such guarantees ensuring the independence of the
judge and court, which would ensure the impartiality of the court
while adopting a decision and would not permit to interfere in
the activities of the judge or court when it administers justice.
The Constitutional Court has held that the independence of the
judge is ensured by establishing the inviolability of the term of
office of the judge, inviolability of the person of the judge,
guarantees of social (material) character of the judge, by
consolidating self-governance of the judiciary, which is all-
sufficient, and its financial and technical provision, that all
these guarantees are closely interrelated, thus, in case any
guarantee of independence of the judge and court is violated,
administration of justice and the ensuring of the human rights
and freedoms might be damaged (Constitutional Court rulings of 6
December 1995, 21 December 1999 and 12 July 2001). The protection
of the judge's social (material) guarantees is one of the
protection guarantees of the constitutional principle of
independence of judges and courts. Thus, any attempts to reduce
the salary or other social guarantees of the judge or to cut the
budget of the judiciary are interpreted as encroachment upon the
judicial independence (Constitutional Court rulings of 6 December
1995, 21 December 1999 and 12 July 2001, decision of 12 January
2000).
3. Under the disputed provision of Paragraph 3 (wording of
24 January 2002) of Article 11 of the Law on Courts, "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", while under
Paragraph 2 (wording of 24 January 2002) of Article 96 of this
Law, during the judge's tenure it shall be prohibited to reduce
his remuneration with the exception of cases provided by this
law.
In the context of the constitutional justice case at issue,
it is to be held that the salary of judge, called "remuneration
of the judge" in Article 96 of the Law on Courts, is one of the
financial and material conditions mentioned in the disputed
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.
Thus, it is to be held that under Paragraph 2 (taking
account of the provision of Paragraph 3 (wording of 24 January
2002) of Article 11 of the Law on Courts) of Article 96 of the
Law on Courts, during the judge's tenure his remuneration may be
reduced when the economic and financial situation of the country
deteriorates considerably.
It is also to be mentioned that, as the Constitutional
Court held in its ruling of 12 July 2001, in Paragraph 1 of
Article 113 of the Constitution, the salaries received by judges
are referred to by the notion "remuneration of the judge",
however, in the laws, by comparing judges with state politicians
and other state officials, a different notion is employed
"remuneration for work of judges". Such use of the notion is
imprecise and may be treated as one of the preconditions to deny
the specific character and protection of salaries of judges
enshrined in the Constitution. Thus, the legislator is obligated
to refer to the remuneration received by judges by employing the
notion "remuneration of the judge" pointed out in the
Constitution.
4. The provision "when the economic and financial situation
of the country deteriorates considerably" of Paragraph 3 (wording
of 24 January 2002) of Article 11 of the Law on Courts is to be
construed as meaning an essential change of the economic and
financial situation of the state, when due to particular
circumstances (economic crisis, natural disasters, etc.), an
extremely difficult economic and financial situation has occurred
in the state. In such cases, due to objective reasons, there may
be not enough funds in order to implement the functions of the
state and to satisfy the public interests, thus, also to ensure
the material and financial needs of courts. Under such
circumstances, the legislator may change the legal regulation
which establishes the salaries to various persons, and to
consolidate the legal regulation on the salaries which would be
less favourable to these persons, if it is necessary in order to
ensure the vital interests of society and the state and to
protect other constitutional values. However, also in such cases
the legislator must keep the balance between the rights and
legitimate interests of the persons, to whom the less favourable
legal regulation is established and the interests of society and
the state, i.e. to pay heed to the requirements of the principle
of proportionality.
It is to be noted that in case of a difficult economic and
financial situation, usually the financing from the budget to all
the institutions which implement state powers, as well as the
financing of various spheres which are financed from the
resources of the budgets of the state and municipalities, should
be revised and reduced. If one established a certain legal
regulation, whereby in case of considerable deterioration of the
economic and financial situation of this country it would not be
permitted to reduce the financing of courts only, nor to reduce
the remuneration of judges only, it would mean that courts are
groundlessly singled out from among other institutions which
implement the state power, and the judgesfrom among other
persons, which participate in implementing the powers of
corresponding state institutions. Such consolidation of the
exceptional situation of courts (judges) would not be in line
with the requirements of an open, fair and harmonious civil
society and the imperatives of justice.
It is also to be emphasized that it is possible to worsen
the financial and material conditions for the functioning of
courts and to reduce the remuneration of judges only by law and
that it is possible to do so only temporarily, for the period of
time when the economic and financial condition of the state is
extremely difficult; by such reduction of the remuneration no
conditions should be created for other state power institutions
and their officials to violate the independence of courts. Even
in the case of the extremely difficult economic and financial
situation of the state, neither the financing of courts, nor
remuneration of judges may be reduced to the extent that the
courts would not be able to implement their constitutional
function and obligationto administer justiceor the possibility
of the courts to do that would be restricted.
5. Under the disputed provision of Paragraph 3 (wording of
24 January 2002) of Article 11 of the Law on Courts, when the
economic and financial situation of the country deteriorates
considerably, the financial and material conditions for the
functioning of the courts may be reviewed, while under Paragraph
2 (wording of 24 January 2002) of Article 96 of this Law, during
the judge's tenure, his remuneration may be reduced also in the
case, when the economic and financial situation of the country
deteriorates considerably.
By such legal regulation the following is not violated:
- Paragraph 2 of Article 5 of the Constitution, whereby the
scope of power shall be limited by the Constitution;
- Paragraph 2 of Article 109, whereby while administering
justice, the judge and court shall be independent;
- Paragraph 3 of Article 109, whereby when administering
cases, judges shall obey only the law;
- Paragraph 1 of Article 114, whereby interference by
institutions of State power and governance, members of the Seimas
and other officials, political parties, political and public
organisations, or citizens with the activities of a judge or the
court shall be prohibited and shall incur liability provided for
by the law;
- the constitutional principle of a state under the rule of
law.
6. While taking account of the arguments set forth, a
conclusion is to be made 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 and Paragraph 2 (wording of 24
January 2002) of Article 96 of the Law on Courts are 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 with the constitutional principle of a state under the
rule of law.
Conforming to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Articles 1, 53, 54, 55 and 56 of
the Law on the Constitutional Court of the Republic of Lithuania,
the Constitutional Court of the Republic of Lithuania has passed
the following
ruling:
1. To recognise that Item 2 (Official Gazette Valstybės
žinios, 1993, No. 6-120) of Paragraph 1 of Article 62 of the Law
on the Constitutional Court of the Republic of Lithuania is in
conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 2 of
Article 107 of the Constitution of the Republic of Lithuania as
well as with the constitutional principle of a state under the
rule of law.
2. To recognise that 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, Official Gazette Valstybės žinios, 1996, No. 73-
1749) of Article 69 of the Law on the Constitutional Court of the
Republic of Lithuania is not in conflict with the Constitution of
the Republic of Lithuania.
3. To recognise 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, Official Gazette Valstybės žinios, 2002, No. 17-649) of
Article 11 and Paragraph 2 (wording of 24 January 2002, Official
Gazette Valstybės žinios, 2002, No. 17-649) of Article 96 of the
Republic of Lithuania Law on Courts are not in conflict with the
Constitution of the Republic of Lithuania.
This ruling of the Constitutional Court is final and not
subject to appeal.
The ruling is promulgated in the name of the Republic of
Lithuania.
Justices of the Constitutional Court: Armanas Abramavičius
Toma Birmontienė
Egidijus Kūris
Kęstutis Lapinskas
Zenonas Namavičius
Ramutė Ruškytė
Vytautas Sinkevičius
Stasys Stačiokas
Romualdas Kęstutis Urbaitis