Lietuviškai
Case No. 35/03-11/06
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
RULING
ON THE COMPLIANCE OF PARAGRAPH 3 (WORDING OF 19 SEPTEMBER 2000)
OF ARTICLE 85, PARAGRAPHS 2 AND 3 (WORDING OF 19 SEPTEMBER 2000)
OF ARTICLE 139 OF THE REPUBLIC OF LITHUANIA LAW ON THE
PROCEEDINGS OF ADMINISTRATIVE CASES, ARTICLE 306 (WORDING OF 8
JULY 2004), PARAGRAPH 2 (WORDING OF 14 MARCH 2002) OF ARTICLE 308
(WORDING OF 1 JUNE 2006), PARAGRAPHS 12 AND 13 (WORDING OF 14
MARCH 2002) OF ARTICLE 324, PARAGRAPH 9 (WORDING OF 14 MARCH
2002) OF ARTICLE 377 (WORDING OF 8 JULY 2004), PARAGRAPH 7
(WORDING OF 14 MARCH 2002) OF ARTICLE 448, PARAGRAPHS 5 AND 6
(WORDING OF 14 MARCH 2002) OF ARTICLE 454, PARAGRAPHS 4 AND 5
(WORDING OF 14 MARCH 2002) OF ARTICLE 460 OF THE CODE OF CRIMINAL
PROCEDURE OF THE REPUBLIC OF LITHUANIA, PARAGRAPH 3 (WORDING OF
28 FEBRUARY 2002) OF ARTICLE 268, PARAGRAPHS 2 AND 5 (WORDING OF
28 FEBRUARY 2002) OF ARTICLE 285, PARAGRAPH 1 (WORDING OF 28
FEBRUARY 2002) OF ARTICLE 286, PARAGRAPH 4 (WORDING OF 28
FEBRUARY 2002) OF ARTICLE 288, PARAGRAPH 2 (WORDING OF 28
FEBRUARY 2002) OF ARTICLE 289, PARAGRAPH 2 (WORDING OF 28
FEBRUARY 2002) OF ARTICLE 303, PARAGRAPH 2 (WORDING OF 28
FEBRUARY 2002) OF ARTICLE 320, PARAGRAPHS 2 AND 3 (WORDING OF 28
FEBRUARY 2002) OF ARTICLE 325, PARAGRAPHS 2 AND 3 (WORDING OF 28
FEBRUARY 2002) OF ARTICLE 358 OF THE CODE OF CIVIL PROCEDURE OF
THE REPUBLIC OF LITHUANIA WITH THE CONSTITUTION OF THE REPUBLIC
OF LITHUANIA, AS WELL AS ON THE PETITION OF A GROUP OF MEMBERS OF
THE SEIMAS, THE PETITIONER, REQUESTING TO INVESTIGATE AS TO
WHETHER ITEM 1 (WORDING OF 24 JANUARY 2002) OF PARAGRAPH 2 OF
ARTICLE 119, PARAGRAPH 5 (WORDING OF 24 JANUARY 2002) OF ARTICLE
119, ITEM 1 (WORDING OF 24 JANUARY 2002) OF ARTICLE 120 (WORDING
OF 21 JANUARY 2003) OF THE REPUBLIC OF LITHUANIA LAW ON COURTS,
PRESIDENT OF THE REPUBLIC OF LITHUANIA DECREE NO. 2067 "ON THE
PROLONGATION OF THE POWERS OF A JUDGE OF A REGIONAL COURT" OF 19
FEBRUARY 2003, PRESIDENT OF THE REPUBLIC OF LITHUANIA DECREE NO.
128 "ON APPOINTING CHAIRMEN OF DIVISIONS OF REGIONAL COURTS" OF
18 JUNE 2003 TO THE EXTENT THAT IT ESTABLISHES THAT KONSTANTAS
RAMELIS, A JUDGE OF THE VILNIUS REGIONAL COURT, IS APPOINTED
CHAIRMAN OF THE CIVIL CASES DIVISION OF THE SAID COURT ARE NOT IN
CONFLICT WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA
21 September 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 a group of Members of the Seimas of
the Republic of Lithuania, the petitioner, who were Nijolė
Steiblienė, a Member of the Seimas, and Kęstutis Čilinskas, an
advocate,
the representative of the Seimas of the Republic of
Lithuania, the party concerned, who was Julius Sabatauskas, a
Member of the Seimas (who was representing the Seimas of the
Republic of Lithuania, the party concerned, in the part of the
case subsequent to the petition of the Vilnius Regional Court,
the petitioner),
the representatives of the Seimas of the Republic of
Lithuania, the party concerned, who were Mindaugas Girdauskas and
Gediminas Sagatys, senior advisors of the Legal Department of the
Office of the Seimas (who were representing the Seimas of the
Republic of Lithuania, the party concerned, in the part of the
case subsequent to the petition of a group of Members of the
Seimas, the petitioner),
the representative of the President of the Republic of
Lithuania, the party concerned, who was Milda Vainiutė, advisor
to the President of the Republic of Lithuania on legal issues
(who was representing the President of the Republic of Lithuania,
the party concerned, in the part of the case subsequent to the
petition of a group of Members of the Seimas, the petitioner),
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 21 August 2006 heard case No. 35/03-11/06 subsequent
to the following petitions:
1) the petition of the Vilnius Regional Court, the
petitioner, requesting to investigate whether the provision of
Paragraph 2 of Article 320 of the Code of Civil Procedure of the
Republic of Lithuania that the court of appeal instance shall
consider the case without overstepping the limits established in
the appeal, with the exception when this is required by the
public interest in the course of consideration of the cases of
the categories provided for in Chapters XIX and XX of Part IV and
in Part V of the Code of Civil Procedure of the Republic of
Lithuania is not in conflict with Paragraph 1 of Article 29 and
Article 109 of the Constitution of the Republic of Lithuania;
2) the petition of a group of Members of the Seimas of the
Republic of Lithuania, composed of the Members of the Seimas
Nijolė Steiblienė, Algirdas Monkevičius, Julius Dautartas, Irena
Degutienė, Andrius Kubilius, Rimantas Dagys, Vida Marija
Čigriejienė, Danutė Bekintienė, Edmundas Pupinys, Antanas
Matulas, Egidijus Vareikis, Audronis Ažubalis, Rasa Juknevičienė,
Kazys Starkevičius, Algirdas Vrubliauskas, Povilas Jakučionis,
Alvydas Sadeckas, Vaclavas Stankevičius, Valerijus Simulikas,
Vaclovas Karbauskis, Gediminas Jakavonis, Petras Baguška, Jurgis
Razma, Saulius Pečeliūnas, Rytas Kupčinskas, Antanas Stasiškis,
Donatas Jankauskas, Henrikas Žukauskas, Violeta Boreikienė, Jonas
Lionginas, Juozas Jaruševičius, Ramūnas Garbaravičius, Vilija
Aleknaitė Abramikienė, Gintaras Steponavičius, Algis Kašėta, and
Petras Auštrevičius, requesting to investigate:
- whether Paragraph 3 (wording of 19 September 2000) of
Article 85 of the Republic of Lithuania Law on the Proceedings of
Administrative Cases to the extent that, according to the group
of Members of the Seimas, the petitioner, it provides that the
introductory and resolution parts of the decision shall be drawn
up and announced, as a rule, on the same day after the
considering of an individual case, while the parts of the
decision comprising the recital and the reasoning shall be drawn
up within seven working days after the announcement of the
decision, is not in conflict with Articles 109 and 117 of the
Constitution of the Republic of Lithuania and the constitutional
principle of a state under the rule of law;
- whether Paragraphs 2 and 3 (wording of 19 September 2000)
of Article139 of the Republic of Lithuania Law on the Proceedings
of Administrative Cases to the extent that, according to the
group of Members of the Seimas, the petitioner, they provide that
the introductory and resolution parts of the decision or the
ruling shall be drawn up and announced together with setting
forth short reasoning after the considering of a case, while the
parts of the decision comprising the recital and the reasoning
shall be drawn up within seven working days after the
announcement of the decision or the ruling, are not in conflict
with Articles 109 and 117 of the Constitution of the Republic of
Lithuania and the constitutional principle of a state under the
rule of law;
- whether Article 306 (wording of 8 July 2004) of the Code
of Criminal Procedure of the Republic of Lithuania to the extent
that, according to the group of Members of the Seimas, the
petitioner, it provides that the judge shall draw up and announce
the judgements with the reasoning substantiating it only in the
cases on the crimes provided for in Paragraph 1 of Article 135,
Paragraphs 1, 2, and 3 of Article 149, Paragraphs 1, 2, and 3 of
Article 150, Paragraphs 2 and 3 of Article 180, Paragraph 2 of
Article 182 and Paragraphs 1 and 2 of Article 260 of the Criminal
Code of the Republic of Lithuania are not in conflict with
Articles 29, 109 and 117 of the Constitution and the
constitutional principle of a state under the rule of law;
- whether Paragraph 2 (wording of 14 March 2002) of Article
308 of the Code of Criminal Procedure of the Republic of
Lithuania to the extent that, according to the group of Members
of the Seimas, the petitioner, it provides that the court of
first instance must, prior to the time of announcement of the
judgement, specify the reasoning of the adoption of the judgment
only when the court thinks that the case is not too complicated
or big, while in other cases the court has the right to draw up
only the introductory and resolution parts of the judgement until
the time of announcing of the judgement, to announce them and
verbally to explain the arguments of the adoption of the
judgement; that the entire reasoned judgement is drawn up and
signed later after its announcement and that the judges who have
considered the case have the right to draw up and sign the
judgement, with the assent of either the President of the court
or the Chairman of the Criminal Cases Division, within 14 days,
is not in conflict with Articles 29, 109, 117 of the Constitution
of the Republic of Lithuania and the constitutional principle of
a state under the rule of law;
- whether Paragraphs 12 and 13 (wording of 14 March 2002)
of Article 324 of the Code of Criminal Procedure of the Republic
of Lithuania to the extent that, according to the group of
Members of the Seimas, the petitioner, they provide that the
court of appeal instance must, prior to the time of announcement
of the judgement or the ruling, specify the reasoning of its
adoption only when the court thinks that the case is not too
complicated or big, while in other cases the court has the right
to draw up only the introductory and resolution parts of the
judgement or the ruling until the time of announcing of the
judgement or the ruling, to announce them and verbally to explain
the arguments of the adoption of the judgement or the ruling;
that the entire reasoned judgement or ruling is drawn up and
signed later after its announcement and that the judges who have
considered the case have the right to draw up and sign the
judgement or the ruling, with the assent of either the President
of the court or the Chairman of the Criminal Cases Division,
within 14 days, are not in conflict with Articles 29, 109, 117 of
the Constitution of the Republic of Lithuania and the
constitutional principle of a state under the rule of law;
- whether Paragraph 9 (wording of 14 March 2002) of Article
377 of the Code of Criminal Procedure of the Republic of
Lithuania to the extent that, according to the group of Members
of the Seimas, the petitioner, it provides that the court of
cassation instance shall adopt the ruling without reasoning,
while the reasoning is drawn up and the ruling is supplemented
with it later after the announcement of the ruling, and that the
judges who have considered the case have the right to draw up and
sign the ruling, with the assent of either the President of the
court or the Chairman of the Criminal Cases Division, within 14
days, is not in conflict with Articles 109 and 117 of the
Constitution of the Republic of Lithuania and the constitutional
principle of a state under the rule of law;
- whether Paragraph 7 (wording of 14 March 2002) of Article
448 of the Code of Criminal Procedure of the Republic of
Lithuania to the extent that, according to the group of Members
of the Seimas, the petitioner, it establishes that in cases
concerning newly emerged circumstances a ruling is adopted and
announced without reasoning, while the reasoning is drawn up and
signed by the judges later, within three days of the adoption of
the ruling, is not in conflict with Articles 109 and 117 of the
Constitution of the Republic of Lithuania as well as with the
constitutional principle of a state under the rule of law;
- whether Paragraph 5 (wording of 14 March 2002) of Article
454 of the Code of Criminal Procedure of the Republic of
Lithuania to the extent that, according to the group of Members
of the Seimas, the petitioner, it establishes that in cases
concerning newly emerged circumstances, in regard of all persons
save the convicts who must be released from the places of
confinement, a ruling is adopted and announced without reasoning,
while the reasoning is drawn up and signed by the judges later,
within three days of the adoption of the ruling, is not in
conflict with Articles 29, 109 and 117 of the Constitution of the
Republic of Lithuania as well as with the constitutional
principle of a state under the rule of law;
- whether Paragraphs 4 and 5 (wording of 14 March 2002) of
Article 460 of the Code of Criminal Procedure of the Republic of
Lithuania to the extent that, according to the group of Members
of the Seimas, the petitioner, they establish that in cases
concerning renewal of a case upon adoption of a corresponding
judgement of the European Court of Human Rights the ruling is
adopted and announced without reasoning, while the reasoning is
drawn up and signed by the judges later, within ten days of the
adoption of the ruling, is not in conflict with Articles 109 and
117 of the Constitution of the Republic of Lithuania as well as
with the constitutional principle of a state under the rule of
law;
- whether Paragraph 3 (wording of 28 February 2002) of
Article 268 of the Code of Civil Procedure of the Republic of
Lithuania to the extent that, according to the group of Members
of the Seimas, the petitioner, it establishes that in the course
of deciding a case in a court of first instance, only the
introductory and resolution parts of the decision are adopted,
drawn up and announced while the remaining part, which
substantiates the decision, is drawn up later, is not in conflict
with Articles 109 and 117 of the Constitution of the Republic of
Lithuania as well as with the constitutional principle of a state
under the rule of law;
- whether Paragraph 2 (wording of 28 February 2002) of
Article 285 of the Code of Civil Procedure of the Republic of
Lithuania to the extent that, according to the group of Members
of the Seimas, the petitioner, the court of first instance, when
it adopts a decision in absentia, performs a formal assessment of
the evidence submitted in the case, i.e. it ascertains that if
the content of the evidence is confirmed, there would be grounds
to adopt such decision, is not in conflict with Articles 29, 109
and 117 of the Constitution of the Republic of Lithuania as well
as with the constitutional principle of a state under the rule of
law;
- whether Paragraph 5 (wording of 28 February 2002) of
Article 285 of the Code of Civil Procedure of the Republic of
Lithuania is not in conflict with Articles 29, 109 and 117 of the
Constitution of the Republic of Lithuania as well as with the
constitutional principle of a state under the rule of law;
- whether Paragraph 1 (wording of 28 February 2002) of
Article 286 of the Code of Civil Procedure of the Republic of
Lithuania is not in conflict with Articles 29, 109 and 117 of the
Constitution of the Republic of Lithuania as well as with the
constitutional principle of a state under the rule of law;
- whether Paragraph 2 (wording of 28 February 2002) of
Article 303 of the Code of Civil Procedure of the Republic of
Lithuania is not in conflict with Articles 29, 109 and 117 of the
Constitution of the Republic of Lithuania as well as with the
constitutional principle of a state under the rule of law;
- whether Paragraphs 2 and 3 (wording of 28 February 2002)
of Article 325 of the Code of Civil Procedure of the Republic of
Lithuania to the extent that, according to the group of Members
of the Seimas, the petitioner, they establish that in the course
of deciding a case in a court of first instance, only the
introductory and resolution parts of the decision are adopted,
drawn up and announced, while the remaining partsthe recital and
the reasoningshall be drawn up and announced later, within
fourteen days of the adoption of the decision or the ruling, are
not in conflict with Articles 109 and 117 of the Constitution of
the Republic of Lithuania as well as with the constitutional
principle of a state under the rule of law;
- whether Paragraph 3 (wording of 28 February 2002) of
Article 358 of the Code of Civil Procedure of the Republic of
Lithuania to the extent that, according to the group of Members
of the Seimas, the petitioner, it establishes that in the course
of deciding a case in a court of cassation instance, only the
introductory and resolution parts of the ruling are adopted,
drawn up and announced, while the remaining parts-the recital
and the reasoningshall be drawn up and announced later, within
twenty days of the adoption of the decision or the ruling, is not
in conflict with Articles 109 and 117 of the Constitution of the
Republic of Lithuania as well as with the constitutional
principle of a state under the rule of law;
- whether Item 1 (wording of 24 January 2002) of Paragraph
2 of Article 119 of the Republic of Lithuania Law on Courts is
not in conflict with Articles 5, 109, 112, and 114 of the
Constitution of the Republic of Lithuania and the constitutional
principle of a state under the rule of law;
- whether Paragraph 5 (wording of 24 January 2002) of
Article 119 of the Republic of Lithuania Law on Courts is not in
conflict with Articles 5, 109, 112, and 114 of the Constitution
of the Republic of Lithuania and the constitutional principle of
a state under the rule of law;
- whether Item 1 (wording of 24 January 2002) of Article
120 of the Republic of Lithuania Law on Courts is not in conflict
with Articles 5, 109, 112, and 114 of the Constitution of the
Republic of Lithuania and the constitutional principle of a state
under the rule of law;
- whether President of the Republic of Lithuania Decree No.
2067 "On the Prolongation of the Powers of a Judge of a Regional
Court" of 19 February 2003 is not in conflict with Article 5 of
the Constitution of the Republic of Lithuania and the
constitutional principle of a state under the rule of law;
- whether President of the Republic of Lithuania Decree No.
128 "On Appointing Chairmen of Divisions of Regional Courts" of
18 June 2003 to the extent that it establishes that Konstantas
Ramelis, a judge of the Vilnius Regional Court, is appointed
Chairman of the Civil Cases Division of the said court is not in
conflict with Article 5 of the Constitution of the Republic of
Lithuania and the constitutional principle of a state under the
rule of law.
By the Constitutional Court decision of 10 May 2006, these
petitions of the Vilnius Regional Court and the group of Members
of the Seimas, the petitioners, were joined into one case and it
was given reference No. 35/03-11/06.
The Constitutional Court
has established:
I
1. The Vilnius Regional Court, the petitioner, was
investigating a civil case. By its ruling the said court
suspended the consideration of the case and applied to the
Constitutional Court with a petition requesting to investigate
whether the provision of Paragraph 2 of Article 320 of the Code
of Civil Procedure that the court of appeal instance shall
consider the case without overstepping the limits established in
the appeal, with the exception when this is required by the
public interest in the course of consideration of the cases of
the categories provided for in Chapters XIX and XX of Part IV and
in Part V of the Code of Civil Procedure is not in conflict with
Paragraph 1 of Article 29 and Article 109 of the Constitution.
2. A group of Members of the Seimas, the petitioner,
applied to the Constitutional Court with a petition requesting to
investigate:
- whether Paragraph 3 (wording of 19 September 2000) of
Article 85 of the Law on the Proceedings of Administrative Cases
to the extent that, according to the group of Members of the
Seimas, the petitioner, it provides that the introductory and
resolution parts of the decision shall be drawn up and announced,
as a rule, on the same day after the considering of an individual
case, while the parts of the decision comprising the recital and
the reasoning shall be drawn up within seven working days after
the announcement of the decision, is not in conflict with
Articles 109 and 117 of the Constitution and the constitutional
principle of a state under the rule of law;
- whether Paragraphs 2 and 3 (wording of 19 September 2000)
of Article139 of the Law on the Proceedings of Administrative
Cases to the extent that, according to the group of Members of
the Seimas, the petitioner, they provide that the introductory
and resolution parts of the decision or the ruling shall be drawn
up and announced together with setting forth short reasoning
after the considering of a case, while the parts of the decision
comprising the recital and the reasoning shall be drawn up within
seven working days after the announcement of the decision or the
ruling, are not in conflict with Articles 109 and 117 of the
Constitution and the constitutional principle of a state under
the rule of law;
- whether Article 306 (wording of 8 July 2004) of the Code
of Criminal Procedure (hereinafter referred to as the CCP, the
new CCP) to the extent that, according to the group of Members of
the Seimas, the petitioner, it provides that the judge shall draw
up and announce the judgements with the reasoning substantiating
it only in the cases on the crimes provided for in Paragraph 1 of
Article 135, Paragraphs 1, 2, and 3 of Article 149, Paragraphs 1,
2, and 3 of Article 150, Paragraphs 2 and 3 of Article 180,
Paragraph 2 of Article 182 and Paragraphs 1 and 2 of Article 260
of the Criminal Code (hereinafter also referred to as the CC) are
not in conflict with Articles 29, 109 and 117 of the Constitution
and the constitutional principle of a state under the rule of
law;
- whether Paragraph 2 (wording of 14 March 2002) of Article
308 of the CCP to the extent that, according to the group of
Members of the Seimas, the petitioner, it provides that the court
of first instance must, prior to the time of announcement of the
judgement, specify the reasoning of the adoption of the judgment
only when the court thinks that the case is not too complicated
or big, while in other cases the court has the right to draw up
only the introductory and resolution parts of the judgement until
the time of announcing of the judgement, to announce them and
verbally to explain the arguments of the adoption of the
judgement; that the entire reasoned judgement is drawn up and
signed later after its announcement and that the judges who have
considered the case have the right to draw up and sign the
judgement, with the assent of either the President of the court
or the Chairman of the Criminal Cases Division, within 14 days,
is not in conflict with Articles 29, 109, 117 of the Constitution
and the constitutional principle of a state under the rule of
law;
- whether Paragraphs 12 and 13 (wording of 14 March 2002)
of Article 324 of the CCP to the extent that, according to the
group of Members of the Seimas, the petitioner, they provide that
the court of appeal instance must, prior to the time of
announcement of the judgement or the ruling, specify the
reasoning of its adoption only when the court thinks that the
case is not too complicated or big, while in other cases the
court has the right to draw up only the introductory and
resolution parts of the judgement or the ruling until the time of
announcing of the judgement or the ruling, to announce them and
verbally to explain the arguments of the adoption of the
judgement or the ruling; that the entire reasoned judgement or
ruling is drawn up and signed later after its announcement and
that the judges who have considered the case have the right to
draw up and sign the judgement or the ruling, with the assent of
either the President of the court or the Chairman of the Criminal
Cases Division, within 14 days, are not in conflict with Articles
29, 109, 117 of the Constitution and the constitutional principle
of a state under the rule of law;
- whether Paragraph 9 (wording of 14 March 2002) of Article
377 of the CCP to the extent that, according to the group of
Members of the Seimas, the petitioner, it provides that the court
of cassation instance shall adopt the ruling without reasoning,
while the reasoning is drawn up and the ruling is supplemented
with it later after the announcement of the ruling, and that the
judges who have considered the case have the right to draw up and
sign the judgement, with the assent of either the President of
the court or the Chairman of the Criminal Cases Division, within
14 days, is not in conflict with Articles 109 and 117 of the
Constitution and the constitutional principle of a state under
the rule of law;
- whether Paragraph 7 (wording of 14 March 2002) of Article
448 of the CCP to the extent that, according to the group of
Members of the Seimas, the petitioner, it establishes that in
cases concerning newly emerged circumstances a ruling is adopted
and announced without reasoning, while the reasoning is drawn up
and signed by the judges later, within three days of the adoption
of the ruling, is not in conflict with Articles 109 and 117 of
the Constitution as well as with the constitutional principle of
a state under the rule of law;
- whether Paragraph 5 (wording of 14 March 2002) of Article
454 of the CCP to the extent that, according to the group of
Members of the Seimas, the petitioner, it establishes that in
cases concerning newly emerged circumstances, in regard of all
persons save the convicts who must be released from the places of
confinement, a ruling is adopted and announced without reasoning,
while the reasoning is drawn up and signed by the judges later,
within three days of the adoption of the ruling, is not in
conflict with Articles 29, 109 and 117 of the Constitution as
well as with the constitutional principle of a state under the
rule of law;
- whether Paragraphs 4 and 5 (wording of 14 March 2002) of
Article 460 of the CCP to the extent that, according to the group
of Members of the Seimas, the petitioner, they establish that in
cases concerning renewal of a case upon adoption of a
corresponding judgement of the European Court of Human Rights the
ruling is adopted and announced without reasoning, while the
reasoning is drawn up and signed by the judges later, within ten
days of the adoption of the ruling, is not in conflict with
Articles 109 and 117 of the Constitution as well as with the
constitutional principle of a state under the rule of law;
- whether Paragraph 3 (wording of 28 February 2002) of
Article 268 of the Code of Civil Procedure to the extent that,
according to the group of Members of the Seimas, the petitioner,
it establishes that in the course of deciding a case in a court
of first instance, only the introductory and resolution parts of
the decision are adopted, drawn up and announced while the
remaining part, which substantiates the decision, is drawn up
later, is not in conflict with Articles 109 and 117 of the
Constitution as well as with the constitutional principle of a
state under the rule of law;
- whether Paragraph 2 (wording of 28 February 2002) of
Article 285 of the Code of Civil Procedure to the extent that,
according to the group of Members of the Seimas, the petitioner,
the court of first instance, when it adopts a decision in
absentia, performs a formal assessment of the evidence submitted
in the case, i.e. it ascertains that if the content of the
evidence is confirmed, there would be grounds to adopt such
decision, is not in conflict with Articles 29, 109 and 117 of the
Constitution as well as with the constitutional principle of a
state under the rule of law;
- whether Paragraph 5 (wording of 28 February 2002) of
Article 285 of the Code of Civil Procedure is not in conflict
with Articles 29, 109 and 117 of the Constitution as well as with
the constitutional principle of a state under the rule of law;
- whether Paragraph 1 (wording of 28 February 2002) of
Article 286 of the Code of Civil Procedure is not in conflict
with Articles 29, 109 and 117 of the Constitution as well as with
the constitutional principle of a state under the rule of law;
- whether Paragraph 2 (wording of 28 February 2002) of
Article 303 of the Code of Civil Procedure is not in conflict
with Articles 29, 109 and 117 of the Constitution as well as with
the constitutional principle of a state under the rule of law;
- whether Paragraphs 2 and 3 (wording of 28 February 2002)
of Article 325 of the Code of Civil Procedure to the extent that,
according to the group of Members of the Seimas, the petitioner,
they establish that in the course of deciding a case in a court
of first instance, only the introductory and resolution parts of
the decision are adopted, drawn up and announced, while the
remaining partsthe recital and the reasoningshall be drawn up
and announced later, within fourteen days of the adoption of the
decision or the ruling, are not in conflict with Articles 109 and
117 of the Constitution Code of Civil Procedure as well as with
the constitutional principle of a state under the rule of law;
- whether Paragraph 3 (wording of 28 February 2002) of
Article 358 of Code of Civil Procedure to the extent that,
according to the petitioner, it establishes that in the course of
deciding a case in a court of cassation instance, only the
introductory and resolution parts of the ruling are adopted,
drawn up and announced, while the remaining parts-the recital
and the reasoningshall be drawn up and announced later, within
twenty days of the adoption of the decision or the ruling, is not
in conflict with Articles 109 and 117 of the Constitution as well
as with the constitutional principle of a state under the rule of
law;
- whether Item 1 (wording of 24 January 2002) of Paragraph
2 of Article 119 of the Law on Courts is not in conflict with
Articles 5, 109, 112, and 114 of the Constitution and the
constitutional principle of a state under the rule of law;
- whether Paragraph 5 (wording of 24 January 2002) of
Article 119 of the Law on Courts is not in conflict with Articles
5, 109, 112, and 114 of the Constitution and the constitutional
principle of a state under the rule of law;
- whether Item 1 (wording of 24 January 2002) of Article
120 of the Law on Courts is not in conflict with Articles 5, 109,
112, and 114 of the Constitution and the constitutional principle
of a state under the rule of law;
- whether President of the Republic Decree No. 2067 "On the
Prolongation of the Powers of a Judge of a Regional Court" of 19
February 2003 (hereinafter also referred to as President of the
Republic Decree No. 2067 of 19 February 2003) is not in conflict
with Article 5 of the Constitution and the constitutional
principle of a state under the rule of law;
- whether President of the Republic Decree No. 128 "On
Appointing Chairmen of Divisions of Regional Courts" of 18 June
2003 (hereinafter also referred to as President of the Republic
Decree No. 128 of 18 June 2003) to the extent that it establishes
that Konstantas Ramelis, a judge of the Vilnius Regional Court,
is appointed Chairman of the Civil Cases Division of the said
court is not in conflict with Article 5 of the Constitution and
the constitutional principle of a state under the rule of law.
II
1. The petition of the Vilnius Regional Court, the
petitioner, is grounded on the following arguments.
Under Paragraph 2 (wording of 28 February 2002) of Article
320 of the Code of Civil Procedure the court of appeal instance
may overstep the limits established in the appeal when this is
required by the public interest in the course of consideration of
the cases of the categories provided for in Chapters XIX and XX
of Part IV and in Part V of the Code of Civil Procedure, while no
prohibition is established for a court of cassation to overstep
the cassation appeal if this is required by the public interest
(Paragraph 2 (wording of 28 February 2002) of Article 353 of the
Code of Civil Procedure). The fact that the court of appeal
instance is prohibited from overstepping the limits established
in the appeal, even though the public interest requires to do so,
and the fact that no corresponding prohibition is established to
the court of cassation instance, mean that the rights and
interests of the persons who have no right to lodge a cassation
appeal and of the persons whose cases are considered under
appeals are, under the law, defended to smaller extent than of
the persons whose cases are considered in a court of cassation
instance. However, the public interest requires that law be
applied properly in cases of all categories, and that decisions
adopted in all cases be just ones, therefore, the court of appeal
instance (if it is intended that it decide the case justly) must
enjoy powers to overstep the limits of the appeal and assess the
part of the decision, which was not the point of appeal, when it
considers cases of not certain but all categories. In the opinion
of the Vilnius Regional Court, the petitioner, the legal
regulation established in Paragraph 2 (wording of 28 February
2002) of Article 320 of the Code of Civil Procedure does not
permit the court of appeal instance to administer justice, nor to
apply laws while following the principles of justice and
reasonableness (Article 1.5 of the Civil Code of the Republic of
Lithuania, nor to fulfil the objectives of the civil procedure;
the petitioner had doubts whether such legal regulation was not
in conflict with Paragraph 1 of Article 29 of the Constitution,
under which all persons shall be equal before the law and the
court, and Paragraph 1 of Article 109 of the Constitution under
which in the Republic of Lithuania, justice shall be administered
only by courts.
2. The petition of the group of Members of the Seimas, the
petitioner, is grounded on the following arguments.
2.1. The articles (parts thereof) of the Law on the
Proceedings of Administrative Cases, of the CCP and certain
articles (parts thereof) of the Code of Civil Procedure, which
are disputed by the petitioner, regulate the relations related
with drawing up and announcement of court decisions, rulings and
judgements (inter alia they establish the terms during which the
court, after it has investigated the case, must draw up and
announce decisions (rulings, judgements).
2.1.1. Article 306 (wording of 8 July 2004) of the CCP
provides that the judge of a local court, while drawing up a
judgement of conviction, in the recital need not set down the
circumstances provided for in Items 2, 3, and 4 of Paragraph 1
and Paragraph 5 of Article 305 of the CCP, save the cases in
which the persons are accused of the crimes provided for in
Paragraph 1 of Article 135, Paragraphs 1, 2, and 3 of Article
149, Paragraphs 1, 2, and 3 of Article 150, Paragraphs 2 and 3 of
Article 180, Paragraph 2 of Article 182, and Paragraphs 1 and 2
of Article 260 of the CC (Paragraph 1); the participants of the
consideration in court, who may, under the Code of Criminal
Procedure, file an appeal against the court judgement, have the
right to receive, after they have submitted written requests, a
copy of the judgement with a non-abridged recital, and that such
a request must be submitted to the court within seven days of the
day of the adoption of the judgement (Paragraph 2); if the
written request provided for in Paragraph 2 of this article is
submitted or the judgement is appealed against with a court of
appeal instance or a court of cassation instance, the judge who
has adopted the judgement shall, within three days of the day of
the reception of the request of the appeal, draw up a non-
abridged recital of the judgement, and that the judge shall sign
the newly drawn up recital of the judgement and attach it to the
existing judgement (Paragraph 3); if a judgment, whose recital
drawn up in an abridged form, and by which several persons have
been convicted or the convicted were recognised guilty of the
commission of several criminal deeds, is appealed against with a
court of appeal instance, a non-abridged recital shall be drawn
up (Paragraph 4).
Thus, according to the interpretation of the group of
Members of the Seimas, the petitioner, in Article 306 (wording of
8 July 2004) of the CCP, which regulates adoption of judgements
in courts of first instance when the judgment is adopted by the
judge of a local court, the legal regulation is established
whereby judgements with the reasoning substantiating them are
adopted and announced only in the cases regarding the crimes
provided for in Paragraph 1 of Article 135, Paragraphs 1, 2, and
3 of Article 149, Paragraphs 1, 2, and 3 of Article 150,
Paragraphs 2 and 3 of Article 180, Paragraph 2 of Article 182,
and Paragraphs 1 and 2 of Article 260 of the CC, while in other
cases the judge draws up judgments and announces them without the
reasoning substantiating them, and only later, in the cases
specified in the same article, the judge newly draws up the
recital of the judgment with the reasoning substantiating the
judgment and attaches this part, without announcing it, to the
judgment.
Such court judgments provided for in Article 306 (wording
of 8 July 2004) of the CCP (save the exceptions established for
the crimes provided for in Paragraph 1 of Article 135, Paragraphs
1, 2, and 3 of Article 149, Paragraphs 1, 2, and 3 of Article
150, Paragraphs 2 and 3 of Article 180, Paragraph 2 of Article
182, and Paragraphs 1 and 2 of Article 260 of the CC) in which
the reasoning substantiating them are not indicated, are, in the
opinion of the group of Members of the Seimas, the petitioner,
unsupported, since they do not contain the circumstances
specified in Items 2, 3, and 4 of Paragraph 1 and Paragraph 5
(wording of 14 March 2002) of Article 305 of the CCP, namely, the
evidence upon which court conclusions are based, and the
reasoning, by following which the court has rejected other
evidence (Item 2 of Paragraph 1), the reasoning regarding
qualification of the criminal deed and the conclusions (Item 3 of
Paragraph 1), the reasoning regarding the imposition of the
punishment, of penal coercive measures or educational coercive
measures (Item 4 of Paragraph 1), the reasoning substantiating
the decision on payment of the damage inflicted by the criminal
deed (Paragraph 5). Besides, under Paragraphs 2, 3, and 4 of
Article 306 (wording of 8 July 2004) of the CCP, the reasoning
substantiating the judgement is drawn up provided there are
certain conditions (save the exceptions established for the cases
on the crimes provided for in Paragraph 1 of Article 135,
Paragraphs 1, 2, and 3 of Article 149, Paragraphs 1, 2, and 3 of
Article 150, Paragraphs 2 and 3 of Article 180, Paragraph 2 of
Article 182 and Paragraphs 1 and 2 of Article 260 of the CC):
within certain period of time this is requested by the persons
who can lodge an appeal against the judgement (Paragraph 2); the
judgement is appealed in a court of appeal instance or a court of
cassation instance (Paragraphs 3 and 4).
2.1.2. Paragraph 2 (wording of 14 March 2002) of Article
308 of the CCP provides that in cases when the case is too
complicated or big, the court has the right to draw up only the
introductory and resolution parts of the judgement until the time
of announcing of the judgement; that in this case the court
announces the introductory and resolution parts of the judgement
and verbally explain the arguments of the adoption of the
judgement, and that the judges who have considered the case draw
up and sign the whole reasoned judgement within seven days, while
with the assent of either the President of the court or the
Chairman of the Criminal Cases Divisionwithin 14 days of the
adoption of the judgement.
Thus, according to the interpretation of the group of
Members of the Seimas, the petitioner, in Paragraph 2 (wording of
14 March 2002) of Article 308 of the CCP, which regulates
adoption of judgments in the court of first instance when the
judgement is adopted jointly, the legal regulation is established
whereby the court must specify the reasoning of adoption of the
judgement prior to the time of announcement of the judgment only
when it thinks that the case is not too complicated or big, while
in other cases the court has the right to draw up only the
introductory and resolution parts of the judgement until the time
of announcing of the judgement, to announce them and verbally to
explain the arguments of the adoption of the judgement; after the
judgement is announced and the participants to the case no longer
take part in it, the judgement is further supplemented with
reasoning: the judges who have considered the case draw up and
sign the whole reasoned judgement within seven days, while with
the assent of either the President of the court or the Chairman
of the Criminal Cases Divisionwithin 14 days of the adoption of
the judgement.
On the grounds of the arguments which are analogous to
those due to which, in the opinion of the group of Members of the
Seimas, the petitioner, the court judgements provided for in
Article 306 (wording of 8 July 2004) of the CCP (save the
exceptions established for the crimes provided for in Paragraph 1
of Article 135, Paragraphs 1, 2, and 3 of Article 149, Paragraphs
1, 2, and 3 of Article 150, Paragraphs 2 and 3 of Article 180,
Paragraph 2 of Article 182, and Paragraphs 1 and 2 of Article 260
of the CC) in which the reasoning substantiating them are not
indicated, are unsupported, the court judgements provided for in
Paragraph 2 (wording of 14 March 2002) of Article 308 of the CCP
are also to be regarded as unsupported.
2.1.3. Article 324 (wording of 14 March 2002) of the CCP
inter alia provides that when the case is too complicated or big,
the court has the right to draw up only the introductory and
resolution parts of the judgement or the ruling in the
deliberation room; that in this case the court announces only the
resolution part of the judgement or the ruling and verbally
explains the reasoning of its adoption, also that the judges who
have considered the case under appeal procedure draw up and sign
the whole reasoned judgement or ruling within seven days, while
with the assent of either the President of the court or the
Chairman of the Criminal Cases Divisionwithin 14 days of the
adoption of the judgement or the ruling (Paragraph 12), also,
that within five days of the announcement of the judgement or the
ruling, and if only the resolution part was announcedwithin the
same time after their signinga copy of the judgement or the
ruling must be sent to the arrested convict who has lodged the
appeal against the judgment or with whose interests the judgement
or ruling of the court of appeal instance is related, also that a
copy of the judgement or the ruling is handed in to other
appellants provided they request so (Paragraph 13).
Thus, according to the interpretation of the group of
Members of the Seimas, the petitioner, in Paragraphs 12 and 13
(wording of 14 March 2002) of Article 324 of the CCP, which
regulate the adoption of judgments and ruling in the court of
appeal instance, the legal regulation is established whereby the
court must specify the reasoning of adoption of the judgement or
the ruling prior to the time of announcement of the judgment only
when it thinks that the case is not too complicated or big, while
in other cases the court has the right to draw up only the
introductory and resolution parts of the judgement or the ruling
until the time of announcing of the judgement or the ruling, to
announce them and verbally to explain the arguments of the
adoption of the judgement or the ruling; after the judgement or
the ruling is announced and the participants to the case no
longer take part in it, the judgement or the ruling is further
supplemented with reasoning: the judges who have considered the
case draw up and sign the whole reasoned judgement or ruling
within seven days, while with the assent of either the President
of the court or the Chairman of the Criminal Cases Division
within 14 days of the adoption of the judgement or the ruling.
On the grounds of the arguments which are analogous to
those due to which, in the opinion of the group of Members of the
Seimas, the petitioner, the court judgements provided for in
Article 306 (wording of 8 July 2004) of the CCP (save the
exceptions established for the crimes provided for in Paragraph 1
of Article 135, Paragraphs 1, 2, and 3 of Article 149, Paragraphs
1, 2, and 3 of Article 150, Paragraphs 2 and 3 of Article 180,
Paragraph 2 of Article 182, and Paragraphs 1 and 2 of Article 260
of the CC) in which the reasoning substantiating them are not
indicated, are unsupported, the court judgements and rulings
provided for in Paragraphs 12 and 13 (wording of 14 March 2002)
of Article 324 of the CCP are also to be regarded as unsupported.
2.1.4. Paragraph 9 (wording of 14 March 2002) of Article
377 of the CCP provides that after it considers the case, the
court retires to the deliberation room to adopt a ruling; that
after it adopts the ruling, the court returns to the courtroom
and the Chairman of the college or another judge announces the
resolution part of the ruling and delivers the arguments of its
adoption, also that the whole reasoned ruling is drawn up and
signed by the whole college of judges within seven days, while
with the assent of either the President of the court or the
Chairman of the Criminal Cases Divisionwithin 14 days of the
adoption of the ruling.
Thus, according to the interpretation of the group of
Members of the Seimas, the petitioner, in Paragraph 9 (wording of
14 March 2002) of Article 377 of the CCP, which regulates the
adoption of rulings in the court of cassation instance, the legal
regulation is established whereby the court, after it has
considered the case, adopts and announces a ruling without
reasoning, while the reasoning is drawn up and the ruling is
supplemented with it later, within seven days, while with the
assent of either the President of the court or the Chairman of
the Criminal Cases Division, within 14 days of the adoption of
the ruling.
On the grounds of the arguments which are analogous to
those due to which, in the opinion of the group of Members of the
Seimas, the petitioner, the court judgements provided for in
Article 306 (wording of 8 July 2004) of the CCP (save the
exceptions established for the crimes provided for in Paragraph 1
of Article 135, Paragraphs 1, 2, and 3 of Article 149, Paragraphs
1, 2, and 3 of Article 150, Paragraphs 2 and 3 of Article 180,
Paragraph 2 of Article 182, and Paragraphs 1 and 2 of Article 260
of the CC) in which the reasoning substantiating them are not
indicated, are unsupported, the court rulings provided for in
Paragraph 9 (wording of 14 March 2002) of Article 377 of the CCP
are also to be regarded as unsupported.
2.1.5. Paragraph 7 (wording of 14 March 2002) of Article
448 of the CCP provides that the court retires to the
deliberation room to adopt a ruling; that, after it has adopted
the ruling, the court returns to the courtroom and the Chairman
of the college announces the resolution part of the ruling and
delivers the arguments of its adoption, also that the whole
reasoned ruling is drawn up and is signed by the entire college
of judges within three days of the adoption of the ruling.
Thus, according to the interpretation of the group of
Members of the Seimas, the petitioner, in Paragraph 7 (wording of
14 March 2002) of Article 448 of the CCP, which regulates the
adoption of rulings due to newly emerged circumstances, the legal
regulation is established whereby the ruling in such cases is
adopted and announced without reasoning, while the reasoning is
drawn up and signed by the judges later, within three days of the
adoption of the ruling.
On the grounds of the arguments which are analogous to
those due to which, in the opinion of the group of Members of the
Seimas, the petitioner, the court judgements provided for in
Article 306 (wording of 8 July 2004) of the CCP (save the
exceptions established for the crimes provided for in Paragraph 1
of Article 135, Paragraphs 1, 2, and 3 of Article 149, Paragraphs
1, 2, and 3 of Article 150, Paragraphs 2 and 3 of Article 180,
Paragraph 2 of Article 182, and Paragraphs 1 and 2 of Article 260
of the CC) in which the reasoning substantiating them are not
indicated, are unsupported, the court rulings provided for in
Paragraph 7 (wording of 14 March 2002) of Article 448 of the CCP
are also to be regarded as unsupported.
2.1.6. Paragraph 5 (wording of 14 March 2002) of Article
454 of the CCP provides that the court, after it has heard the
speeches, retires to the deliberation room to adopt a ruling;
that, after it has adopted the ruling, the court returns to the
courtroom and the Chairman of the college announces the
resolution part of the ruling and delivers the main arguments of
its adoption; that the whole reasoned ruling is drawn up within
three days; also, that if the convict must be released from the
place of confinement, the whole reasoned ruling must be drawn up
and referred for execution on the day of its adoption.
Thus, according to the interpretation of the group of
Members of the Seimas, the petitioner, in Paragraph 5 (wording of
14 March 2002) of Article 454 of the CCP, which regulates
adoption of rulings on renewal of the case due to evidently
improper application of the penal law, the legal regulation is
established whereby the ruling in the cases regarding all persons
but the convicts who must be released from the places of
confinement is adopted and announced without reasoning, while the
reasoning is drawn up and signed by the judges later, within
three days of the adoption of the ruling.
On the grounds of the arguments which are analogous to
those due to which, in the opinion of the group of Members of the
Seimas, the petitioner, the court judgements provided for in
Article 306 (wording of 8 July 2004) of the CCP (save the
exceptions established for the crimes provided for in Paragraph 1
of Article 135, Paragraphs 1, 2, and 3 of Article 149, Paragraphs
1, 2, and 3 of Article 150, Paragraphs 2 and 3 of Article 180,
Paragraph 2 of Article 182, and Paragraphs 1 and 2 of Article 260
of the CC) in which the reasoning substantiating them are not
indicated, are unsupported, the court rulings (save the rulings
concerning the convicts who must be released from the places of
confinement) provided for in Paragraph 5 (wording of 14 March
2002) of Article 454 of the CCP are also to be regarded as
unsupported.
2.1.7. Article 460 (wording of 14 March 2002) of the CCP
inter alia provides that the court, after it has heard the
speeches of the persons participating in the case and their
additional explanations, retires to the deliberation room to
adopt a ruling; also, that, after it has adopted the ruling, the
court returns to the courtroom and announces its resolution part
and delivers the main arguments of the adoption of the ruling
(Paragraph 4); in addition, the whole reasoned ruling is drawn up
and signed within ten days of its adoption; also, that it is
signed by all judges of the college or the Chairman and the
rapporteur of the plenary session (Paragraph 5).
Thus, according to the interpretation of the group of
Members of the Seimas, the petitioner, in Paragraphs 4 and 5
(wording of 14 March 2002) of Article 460 of the CCP, which
regulate the adoption of rulings in cases concerning renewal of a
case upon adoption of a corresponding judgement by the European
Court of Human Rights, the legal regulation is established
whereby in such cases the ruling is adopted and announced without
reasoning, while the reasoning is drawn up and signed by the
judges later, within ten days of the adoption of the ruling.
On the grounds of the arguments which are analogous to
those due to which, in the opinion of the group of Members of the
Seimas, the petitioner, the court judgements provided for in
Article 306 (wording of 8 July 2004) of the CCP (save the
exceptions established for the crimes provided for in Paragraph 1
of Article 135, Paragraphs 1, 2, and 3 of Article 149, Paragraphs
1, 2, and 3 of Article 150, Paragraphs 2 and 3 of Article 180,
Paragraph 2 of Article 182, and Paragraphs 1 and 2 of Article 260
of the CC) in which the reasoning substantiating them are not
indicated, are unsupported, the court rulings provided for in
Paragraphs 5 and 6 (wording of 14 March 2002) of Article 460 of
the CCP are also to be regarded as unsupported.
2.1.8. Paragraph 3 (wording of 28 February 2002) of Article
268 of the Code of Civil Procedure provides:
"The decision shall be adopted by drawing up its
introductory and resolution parts and shall be announced
immediately after the case has been considered, save the cases
provided for in this Code, by short verbal delivery of the
reasoning of the decision. The recital and the reasoning shall be
drawn up within five days of the adoption of the decision."
Thus, according to the interpretation of the group of
Members of the Seimas, the petitioner, in Paragraph 3 (wording of
28 February 2002) of Article 268 of the Code of Civil Procedure,
which regulates adoption of decisions in the court of first
instance, the legal regulation is established whereby the
decision, upon drawing up its introductory and resolution parts,
is announced without the recital nor the reasoning: they are
drawn up within five days of the announcement of the decision.
On the grounds of the arguments which are analogous to
those due to which, in the opinion of the group of Members of the
Seimas, the petitioner, the court judgements provided for in
Article 306 (wording of 8 July 2004) of the CCP (save the
exceptions established for the crimes provided for in Paragraph 1
of Article 135, Paragraphs 1, 2, and 3 of Article 149, Paragraphs
1, 2, and 3 of Article 150, Paragraphs 2 and 3 of Article 180,
Paragraph 2 of Article 182, and Paragraphs 1 and 2 of Article 260
of the CC) in which the reasoning substantiating them are not
indicated, are unsupported, the court decisions provided for in
Paragraph 3 (wording of 28 February 2002) of Article 268 of the
Code of Civil Procedure are also to be regarded as unsupported.
2.1.9. Article 325 (wording of 28 February 2002) of the
Code of Civil Procedure inter alia provides:
"2. Having adopted the decision or the ruling, the court
shall return to the courtroom and the Chairman of the college or
another judge shall announce the introductory and resolution
parts of the decision or the ruling, shall deliver verbally the
reasoning of the decision or the ruling and shall announce as to
when the entire decision or ruling will be drawn up.
3. The entire decision or ruling shall be set forth in
writing and signed by all judges within fourteen days of the
adoption of the decision or ruling."
Thus, according to the interpretation of the group of
Members of the Seimas, the petitioner, in Paragraphs 2 and 3
(wording of 28 February 2002) of Article 325 of the Code of Civil
Procedure, which regulate the adoption of decisions and rulings
in a court of appeal instance, the legal regulation is
established whereby the decision or the ruling, after only the
introduction and resolution parts are drawn up, is announced
without the recital nor the reasoning; they are drawn up within
fourteen days of the adoption of the decision or the ruling.
On the grounds of the arguments which are analogous to
those due to which, in the opinion of the group of Members of the
Seimas, the petitioner, the court judgements provided for in
Article 306 (wording of 8 July 2004) of the CCP (save the
exceptions established for the crimes provided for in Paragraph 1
of Article 135, Paragraphs 1, 2, and 3 of Article 149, Paragraphs
1, 2, and 3 of Article 150, Paragraphs 2 and 3 of Article 180,
Paragraph 2 of Article 182, and Paragraphs 1 and 2 of Article 260
of the CC) in which the reasoning substantiating them are not
indicated, are unsupported, the court decisions and rulings
provided for in Paragraphs 2 and 3 (wording of 28 February 2002)
of Article 325 of the Code of Civil Procedure are also to be
regarded as unsupported.
2.1.10. Paragraph 3 (wording of 28 February 2002) of
Article 358 of the Code of Civil Procedure provides: "After the
case has been considered, a court ruling is adopted, which is
composed of the introductory and resolution parts, while the
ruling which meets the requirements of Article 361 of this Code
shall be drawn up within twenty days of its adoption."
Thus, according to the interpretation of the group of
Members of the Seimas, the petitioner, in Paragraph 3 (wording of
28 February 2002) of Article 358 of the Code of Civil Procedure,
which regulates the adoption of rulings in a court of cassation
instance, the legal regulation is established that the court,
after it has considered a case, adopts a ruling which is composed
of only the introductory and resolution parts, while the ruling
which meets the requirements of Article 361 of the Code of Civil
Procedure, i.e. a ruling with the recital and the postulating
parts is drawn up within twenty days of the adoption of the
ruling.
On the grounds of the arguments which are analogous to
those due to which, in the opinion of the group of Members of the
Seimas, the petitioner, the court judgements provided for in
Article 306 (wording of 8 July 2004) of the CCP (save the
exceptions established for the crimes provided for in Paragraph 1
of Article 135, Paragraphs 1, 2, and 3 of Article 149, Paragraphs
1, 2, and 3 of Article 150, Paragraphs 2 and 3 of Article 180,
Paragraph 2 of Article 182, and Paragraphs 1 and 2 of Article 260
of the CC) in which the reasoning substantiating them are not
indicated, are unsupported, the court rulings provided for in
Paragraph 3 (wording of 28 February 2002) of Article 358 of the
Code of Civil Procedure are also to be regarded as unsupported.
2.1.11. Paragraph 3 (wording of 19 September 2000) of
Article 85 of the Law on the Proceedings of Administrative Cases
provides:
"The introductory and resolution parts of the court
decision shall be drawn up and announced, as a rule, on the same
day after the consideration of an individual case. The parts of
the judgement comprising the recital and the reasoning shall be
drawn up no later than within seven working days after the
announcement of the judgement."
Thus, according to the interpretation of the group of
Members of the Seimas, the petitioner, in Paragraph 3 (wording of
19 September 2000) of Article 85 of the Law on the Proceedings of
Administrative Cases, which regulates the adoption of a decision
in the court of first instance, the legal regulation is
established whereby a court decision is, as a rule, announced on
the same day after consideration of "an individual" case without
the recital nor the reasoningthey are drawn up within seven days
of the announcement of the decision.
On the grounds of the arguments which are analogous to
those due to which, in the opinion of the group of Members of the
Seimas, the petitioner, the court judgements provided for in
Article 306 (wording of 8 July 2004) of the CCP (save the
exceptions established for the crimes provided for in Paragraph 1
of Article 135, Paragraphs 1, 2, and 3 of Article 149, Paragraphs
1, 2, and 3 of Article 150, Paragraphs 2 and 3 of Article 180,
Paragraph 2 of Article 182, and Paragraphs 1 and 2 of Article 260
of the CC) in which the reasoning substantiating them are not
indicated, are unsupported, the court decisions provided for in
Paragraph 3 (wording of 19 September 2000) of Article 85 of the
Law on the Proceedings of Administrative Cases are also to be
regarded as unsupported.
2.1.12. Article 139 (wording of 19 September 2000) of the
Law on the Proceedings of Administrative Cases inter alia
provides:
"2. Having adopted the decision or ruling, the court shall
return to the courtroom and the chairman of the college or the
judge rapporteur shall read out the introductory and resolution
parts of the decision or ruling, briefly define the reasoning of
the decision or ruling and inform when the full text of decision
or ruling will be drawn up.
3. The complete text of the decision or ruling shall be
presented in writing and signed by all the judges within seven
days from the adoption thereof."
Thus, according to the interpretation of the group of
Members of the Seimas, the petitioner, in Paragraphs 2 and 3
(wording of 19 September 2000) of Article139 of the Law on the
Proceedings of Administrative Cases, which regulate the adoption
of a decision or a ruling in a court of appeal instance, the
legal regulation is established whereby a court decision or
ruling is announced on the same day after consideration of "an
individual" case by shortly setting forth the reasoning, but
without the recital and full reasoningthey are drawn up within
seven days of the adoption of the decision (ruling).
On the grounds of the arguments which are analogous to
those due to which, in the opinion of the group of Members of the
Seimas, the petitioner, the court judgements provided for in
Article 306 (wording of 8 July 2004) of the CCP (save the
exceptions established for the crimes provided for in Paragraph 1
of Article 135, Paragraphs 1, 2, and 3 of Article 149, Paragraphs
1, 2, and 3 of Article 150, Paragraphs 2 and 3 of Article 180,
Paragraph 2 of Article 182, and Paragraphs 1 and 2 of Article 260
of the CC) in which the reasoning substantiating them are not
indicated, are unsupported, the court decisions and rulings
provided for in Paragraphs 2 and 3 (wording of 19 September 2000)
of Article139 of the Law on the Proceedings of Administrative
Cases are also to be regarded as unsupported.
2.1.13. Paragraph 1 of Article 29 of the Constitution
provides: "All persons shall be equal before the law, the court,
and other State institutions and officials."
Article 109 of the Constitution provides:
"In the Republic of Lithuania, justice shall be
administered only by courts.
While administering justice, the judge and courts shall be
independent.
When considering cases, judges shall obey only the law.
The court shall adopt decisions in the name of the Republic
of Lithuania."
Paragraph 1 of Article 117 of the Constitution provides:
"In all courts, the consideration of cases shall be public.
A closed court hearing may be held in order to protect the
secrecy of private or family life of the human being, or where
public consideration of the case might disclose a State,
professional or commercial secret."
2.1.14. In the opinion of the group of Members of the
Seimas, the petitioner, it follows from Articles 29, 109, and 117
of the Constitution as well as from the constitutional principle
of a state under the rule of law that the court, when considering
a case and by adopting and announcing the decision (judgement,
ruling) in the name of the Republic of Lithuania, performs an act
of justice.
Thus, according to the interpretation of the group of
Members of the Seimas, the petitioner, under the Constitution, a
decision (judgement, ruling) adopted and announced by the court
is an act of justice only when it is adopted, drawn up and
announced directly, after comprehensively and objectively
assessing all the circumstances which are important to the case,
the evidence, the arguments and demands of the participants to
the case, applicable legal acts etc., i.e. when this decision
(judgement, ruling) is announced at once in its entirety, by
indicating the reasoning substantiating it (inter alia the
reasoning of the qualification of the deed, the reasoning of
imposition or non-imposition of punishments or other sanctions,
the reasoning substantiating the decision on payment of the
inflicted damage). Here consistency must be adhered to: first,
the reasoning of the decision (judgement, ruling) must be
considered and drawn up, and only after that the decision
(judgement, ruling) is adopted, and not vice versafirst, the
decision (judgement, ruling) is adopted and afterwards the
reasoning is drawn up. Under the Constitution, justice
administered by the court cannot be split somehow into two parts,
where "one part of justice" is administered when the participants
to the court process take part and the principle of publicity is
followedthe decision (judgement, ruling) is announced without
the reasoning, while "the other part of justice" is administered
without participation of the participants to the court process
and when the principle of publicity is not followedthe reasoning
is created and drawn up, whereby the court decision (judgement,
ruling) is substantiated and the court decision (judgement,
ruling) which has already been adopted and announced is
supplemented. Thus, according to the interpretation of the group
of Members of the Seimas, the petitioner, the court must draw up
and publicly announce the reasoning of the decision (judgement,
ruling) instantaneously, but not adopt and announce the decision
(judgement, ruling) first, and afterwards, some time later,
supplement it with reasoning.
2.1.15. In the opinion of the group of Members of the
Seimas, the petitioner, the provisions of Article 306 (wording of
8 July 2004), Paragraph 2 (wording of 14 March 2002) of Article
308, Paragraphs 12 and 13 (wording of 14 March 2002) of Article
324, Paragraph 9 (wording of 14 March 2002) of Article 377,
Paragraph 7 (wording of 14 March 2002) of Article 448, Paragraph
5 (wording of 14 March 2002) of Article 454, and Article 460
(wording of 14 March 2002) of the CCP, Paragraph 3 (wording of 28
February 2002) of Article 268, Paragraphs 2 and 3 (wording of 28
February 2002) of Article 325, Paragraph 3 (wording of 28
February 2002) of Article 358 of the Code of Civil Procedure,
Paragraph 3 (wording of 19 September 2000) of Article 85, and
Paragraphs 2 and 3 (wording of 19 September 2000) of Article 139
of the Law on the Proceedings of Administrative Cases that the
court adopts court decisions (judgements, rulings) without
providing any reasoning, are not in line with the provisions of
Articles 29, 109 and 117 of the Constitution as well as the
constitutional principle of a state under the rule of law.
2.1.16. Besides, in the opinion of the group of Members of
the Seimas, the petitioner, under Article 109 of the Constitution
and the constitutional principle of a state under the rule of
law, judges cannot be dependent on other personscourt
officialsalso when court decisions (judgements, rulings) are
drawn up; the provision of Paragraph 3 of Article 109 of the
Constitution that, when considering cases, judges shall obey only
the law, implies that it is only the law, but not court officials
that may establish the maximum limits for drawing up a reasoned
judgement.
However, under Paragraph 2 (wording of 14 March 2002) of
Article 308, Paragraph 12 (wording of 14 March 2002) of Article
324, and Paragraph 9 (wording of 14 March 2002) of Article 377 of
the CCP, the possibility for the court to draw up the judgement
within fourteen days depends not on how much time, in the opinion
of the judges who are considering that case, is necessary to draw
up a reasoned judgement, but on the assent of other personsthe
President of the court or the Chairman of the Criminal Cases
Division. Thus, the judges, while administering justice, become
dependent on other personscourt officials.
2.2. Paragraph 2 (wording of 28 February 2002) of Article
285 of the Code of Civil Procedure provides that a decision due
to the respondent who failed to appear may be adopted in absentia
only as regards the demands of the claim about which the
respondent was informed under procedure established by the Code
of Civil Procedure and that, when adopting the decision in
absentia, the court shall perform a formal assessment of the
evidence submitted in the case, i.e. it shall ascertain that if
the content of the evidence is confirmed, there would be grounds
to adopt such decision. Paragraph 5 (wording of 28 February 2002)
of Article 285 of the Code of Civil Procedure provides that the
party that failed to appear, because of which the decision was
adopted in absentia, may not appeal against this decision either
under appeal, or cassation procedure. Paragraph 1 (wording of 28
February 2002) of Article 286 of the Code of Civil Procedure
provides that a decision adopted in absentia shall be composed of
the introductory and resolution parts as well as abridged
reasoning. Paragraph 2 (wording of 28 February 2002) of Article
303 of the Code of Civil Procedure provides that a court decision
adopted in absentia may not be an object of appeal, if the appeal
is lodged by the person in whose regard such decision was
adopted.
2.2.1. According to the interpretation of the group of
Members of the Seimas, the petitioner, in Paragraphs 2 and 5
(wording of 28 February 2002) of Article 285, Paragraph 1
(wording of 28 February 2002) of Article 286, and Paragraph 2
(wording of 28 February 2002) of Article 303 of the Code of Civil
Procedure, which regulate the adoption of a decision in absentia
and lodging an appeal against it, the legal regulation is
established whereby in case the respondent fails to appear, the
court may adopt a decision in absentia upon performing only a
formal assessment of the evidence presented in the case (in cases
provided for in the Code of Civil Procedure), which is composed
of only the introductory and resolution parts as well as abridged
reasoning; besides, the party that failed to appear has no right
to appeal against this decision either under appeal, or cassation
procedure. One is to take account of the fact that under the Code
of Civil Procedure a decision in absentia may be adopted if: the
respondent fails to submit a response to the claim within the
established term without valid excuse (Paragraph 4 (wording of 28
February 2002) of Article 142 of the Code of Civil Procedure);
the party fails to appear in the preparatory court hearing
(Paragraph 2 (wording of 28 February 2002) of Article 230 of the
Code of Civil Procedure); a party fails to appear in the court
hearing without valid excuse (Articles 246, 285 (wording of 28
February 2002) of the Code of Civil Procedure, even though the
court has recognised the personal participation of the party in
the court hearing as necessary (Article 246 (wording of 28
February 2002) of the Code of Civil Procedure), i.e. when, in the
opinion of the court, in the event of non-participation of a
corresponding party, it is impossible to adopt a just decision.
In addition, if the party fails to appear in the preparatory
court hearing, the decision is adopted in absentia without
considering the reasons of such failure to appear (Paragraph 2
(wording of 28 February 2002) of Article 230 of the Code of Civil
Procedure), while if the respondent fails to submit a response to
the claim within the established term without valid excuse
(Paragraph 4 (wording of 28 February 2002) of Article 142 of the
Code of Civil Procedure), or if one fails to appear in the court
hearing (Articles 246 and 285 (wording of 28 February 2002) of
the Code of Civil Procedure), a decision in absentia is adopted
after the court recognises that the reasons of failure to appear
in court are not valid (Articles 246 and 285 (wording of 28
February 2002) of the Code of Civil Procedure). While deciding
whether the reasons of failure to appear are not valid, the court
must follow Paragraph 1 (wording of 28 February 2002) of Article
156 and Paragraph 2 (wording of 28 February 2002) of Article 246
of the Code of Civil Procedure, under which neither a sickness,
nor a vacation, nor a business trip or other occupation, nor
other similar reasons are, as a rule, regarded as valid reasons.
If such court decision, which is composed of only introductory
and resolution parts and abridged reasoning and which is adopted
in absentia (in cases provided for in the Code of Civil
Procedure) by performing only formal assessment of the evidence
presented in the case, by which the partyclaimantis granted, to
whose claim the respondent did not present his response within
the established term, or the party which appeared in the
preparatory hearing or in the court hearing, at the request of
which the court adopted the decision in absentia, does not loge
an appeal against it under appeal procedure, the said decision
remains to be "an act of justice" not repealed by the court that
adopted it; this is also the case when the court, having held
that a party has failed to appear in court without a valid
excuse, rejects an application of the party and a third party
regarding the review of the decision adopted in absentia, also
when the court rejects such a request after it holds that a
corresponding party failed to appear in the court hearing without
valid excuse, but the evidence indicated in the application on
reviewing the decision adopted in absentia will not be important
as regards the lawfulness and reasonableness of the adopted
decision (Article 288 (wording of 28 February 2002) of the Code
of Civil Procedure). The party that due to whose failure to
appear in the preparatory hearing or the court hearing or due to
whose non-submission of a response to the claim the decision was
adopted in absentia, has no right to appeal against this decision
either under appeal, or cassation procedure.
2.2.2. However, as mentioned, in the opinion of the group
of Members of the Seimas, the petitioner, it follows from
Articles 29, 109, and 117 of the Constitution as well as from the
constitutional principle of a state under the rule of law that
the court, when considering a case and by adopting and announcing
the decision (judgement, ruling) in the name of the Republic of
Lithuania, and thus performing an act of justice, must directly,
comprehensively and objectively assess all the circumstances
which are important to the case, the evidence, the arguments and
demands of the participants to the case, and applicable legal
acts; the court must do so with regard to all persons related to
the case.
Thus, in the opinion of the group of Members of the Seimas,
the petitioner, the legal regulation where the court adopts a
decision in absentia and when such decision is a final one,
although it was adopted by performing only a formal assessment of
the evidence presented in the case, and where such decision is
composed of only the introductory and resolution parts and
abridged reasoning, is incompatible with the aforesaid provisions
of the Constitution.
2.2.3. In addition, the legal regulation established in
Paragraphs 2 and 5 (wording of 28 February 2002) of Article 285,
Paragraph 1 (wording of 28 February 2002) of Article 286 and
Paragraph 2 (wording of 28 February 2002) of Article 303 of the
Code of Civil Procedure also means that two sanctions are applied
to the party that failed to appear in the preparatory hearing or
the court hearing or that which failed to present a response to
the claim: (1) a decision in absentia is adopted with regard to
such party; (2) it cannot lodge an appeal against such decision
of the court of first instance either under appeal, or cassation
procedure. According to the group of Members of the Seimas, the
petitioner, it is possible to justify the first of such
sanctions, even though it is applied also when "there is no fault
of the person in the usual sense" (for example, the party fails
to appear in the court hearing because of sickness or a business
trip), but it is impossible to justify the second one, since,
while heeding the constitutional principles of equality of
persons and a state under the rule of law, it is not permitted
that a party be prohibited from verifying, under established
procedure, the lawfulness of the decision of the court of first
instance, especially when this decision was adopted under the
circumstances which were not favourable to objectivity and
reasonableness (when the party which is seeking a review of the
decision was not participating, nor giving any explanations).
2.3. The articles (parts thereof) of the Law on Courts
which are disputed by the petitioner, regulate the relations
related with the composition of the Council of Courts and
chairmanship of the Council of Courts.
2.3.1. Under Paragraph 5 of Article 112 of the
Constitution, a special institution of judges provided for by law
shall advise the President of the Republic on the appointment,
promotion, transfer of judges, or their dismissal from office.
Under Article 120 (wording of 21 January 2003) of the Law
on Courts, this advisory function was carried out by the Council
of Courts. It was established in Paragraph 1 (wording of 24
January 2002) of Article 114 of the same law that the system of
self-governance of courts is composed of the General Meeting of
Judges (Item 1), the Council of Courts (Item 2) and the Court of
Honour of Judges (Item 3).
2.3.2. It was established in Paragraph 2 (wording of 24
January 2002) of Article 119 of the Law on Courts that the
Council of Courts shall be composed of 24 membersby virtue of
their office (ex officio)the President of the Supreme Court, the
President of the Court of Appeal, the President of the Supreme
Administrative Court, an authorised representative of the
President of the Republic, an authorised representative of the
Seimas, the Chairman or Deputy Chairman of the Legal Affairs
Committee of the Seimas, the Chairman or Deputy Chairman of the
Committee of Budget and Finances of the Seimas, the Minister of
Justice or the Vice Minister authorised by him, the Minister of
Finance or the Vice Minister of Finance authorised by him (Item
1); judges elected by the General Meeting of Judges: one from the
Supreme Court, one from the Court of Appeal, one from the Supreme
Administrative Court, one from each of the five regional courts,
one from each local court within the territory of each regional
court, and one from all regional administrative courts; the
candidatures of judges are nominated to the General Meeting of
Judges by the representatives of the corresponding courts (Item
2); the judge elected by the largest public organisation of
judges (Item 3).
It was established Paragraph 5 of the same article that the
President of the Supreme Court shall be, by virtue of his office,
the President of the Council of Judges.
It was established in Article 120 (wording of 21 January
2003) of the Law on courts that the Council of Courts shall:
elect the Vice President and the Secretary of the Council of
Courts (Item 1); approve the Rules of Procedure of the Council of
Courts (Item 2); advise the President of the Republic about the
appointment of judges, their promotion, transfer and removal from
office (Item 3); advise the President of the Republic about the
appointment and removal from office of Presidents, Vice President
of courts, Chairmen of divisions of courts, with the exception of
cases specified in Article 79 and Paragraphs 2 and 3 of Article
81 (Item 4); advise the President of the Republic in respect of
determining or changing of the number of judges in courts, with
the exception of cases specified in Paragraphs 8 and 9 of Article
12 of this Law (Item 5); form the judicial examination commission
and appoint its Chairman, discuss the regulations of the
commission, the programme of the examination and shall approve
them (Item 6); approve the procedure of entering the candidates
in the list of judicial vacancies at a local court and the
procedure of entering the candidates in the register of persons
seeking promotion in judicial office (Item 7); form standing and
ad hoc commissions and approve their regulations (Item 8);
appoint members of the Judicial Ethics and Disciplinary
Commission (Item 9); appoint members of the Court of Honour of
Judges (Item 10); approve the regulations of the Court of Honour
of Judges (Item 11); approve the Regulations of Administration in
Courts and resolve other issues of administration in courts (Item
12); approve the Regulations of the Selection of Candidates for
Judicial Appointments, the Assessment Criteria for Candidates for
Judicial Office, the Regulations of Selection of the Persons
Seeking Promotion in Judicial Office and the Assessment Criteria
for Persons Seeking Promotion in Judicial Office (Item 13);
approve model structures of local, regional and regional
administrative courts, model lists of positions and job
descriptions (Item 14); consider and approve proposals for draft
investment programmes for courts and proposals for the budgets of
local, regional and regional administrative courts and submit
them to the Government (Item 15); control the activities of the
National Courts Administration and hear its reports (Item 16);
convene, when necessary, the General Meeting of Judges (Item 17);
co-operate with other institutions and organisations of Lithuania
on the issues of self-governance of courts, administration and
other issues relevant for the activities of courts (Item 18); co-
operate with institutions of other countries and international
bodies on the issues of self-governance of courts, administration
and other issues relevant for the activities of courts (Item 19);
decide other issues relating to court activities and issues
provided in relevant legislation (Item 20).
2.3.3. Under Paragraph 11 (wording of 22 December 2005) of
Article 2 of the Republic of Lithuania Law on the State Service,
state politicians are persons, who are elected or appointed, in
accordance with the procedure prescribed by laws, as the
President of the Republic, the Speaker of the Seimas, a Member of
the Seimas, the Prime Minister, a minister, while under Article
31 (wording of 16 April 2002) of the Law on the Government, a
vice-minister is a state servant of political (personal)
confidence of the minister.
2.3.4. Under Article 5 of the Constitution, in Lithuania,
State power shall be executed by the Seimas, the President of the
Republic and the Government, and the Judiciary (Paragraph 1);
while the scope of power shall be limited by the Constitution
(Paragraph 2).
Under Article 109 of the Constitution, in the Republic of
Lithuania, justice shall be administered only by courts
(Paragraph 1); while administering justice, the judge and courts
shall be independent (Paragraph 2).
Under Paragraph 1 of Article 114 of the Constitution,
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 law.
According to the interpretation of the group of Members of
the Seimas, the petitioner, in these articles (parts thereof) of
the Constitution important provisions of a state under the rule
of law are entrenched: separation of powers, independence of
courts, depoliticisation of activity of courts.
2.3.5. Courts consider cases in which, along with other
persons, also the state, state institutions, state politicians
(inter alia as a party to the case) take part. According to the
group of Members of the Seimas, the petitioner, judges, when they
consider cases, cannot be entirely independent from state
politicians, if the law entrenches the right of the politicians
to decide the questions which are important to the activity and
career of judges.
2.3.6. According to the group of Members of the Seimas, the
petitioner, under Item 1 (wording of 24 January 2002) of
Paragraph 2 of Article 119 of the Law on Courts, inter alia state
politicians, i.e. the President of the Republic and the Speaker
of the Seimas (indirectly, through their representatives) and the
state politicians as the Chairman or Deputy Chairman of the Legal
Affairs Committee of the Seimas, the Chairman or Deputy Chairman
of the Committee of Budget and Finances of the Seimas, the
Minister of Justice or the Minister of Finance (directly),
participated in the activity of the institution of self-
government of courtsthe Council of Courtsand decided the
questions ascribed to self-government of judges. If the said
ministers did not participate in decision of questions of self-
government of courts, they could do so through the authorised
state servants of their political confidencevice-ministers.
Thus, a legal situation was created, where state politicians
either directly or through their authorised representatives
exerted influence on self-government of courts, the Council of
Courts, when decisions on questions specified in Article 120
(wording of 21 January 2003) of the Law on Courts were being
adopted, as well as regarding appointment, promotion, transfer
and dismissal of judges, and their appointment as members of the
Court of Honour of Judges and of the Judicial Ethics and
Disciplinary Commission.
2.3.7. In the opinion of the group of Members of the
Seimas, the petitioner, the legal situation where state
politicians and state servants, who have their confidence,
participate in the activity of self-government of courts is
incompatible with Paragraph 5 of Article 112 of the Constitution,
under which, the institution that advises the President of the
Republic on the appointment, promotion, transfer of judges, or
their dismissal from office, is an institution of judges; nor is
it compatible with the quoted provisions of Articles 5, 109, and
114 of the Constitution and the constitutional principle of a
state under the rule of law.
2.3.8. Besides, according to the group of Members of the
Seimas, the petitioner, the disputed legal regulation created
also a legal situation, where, the President of the Republic
"gives advice to himself" through his representative in the
Council of Courts on appointment, transfer and dismissal of
judges, also appointment and dismissal of presidents of courts
and chairmen of divisions of courts, as well as on the
establishment or changing the number of judges in courts (Items
3, 4, and 5 (wording of 24 January 2002) of Article 120 (wording
of 21 January 2003) of the Law on Courts).
2.3.9. Under Paragraph 5 (wording of 24 January 2002) of
Article 119 of the Law on Courts, Item 1 (wording of 24 January
2002) of Article 120 (wording of 21 January 2003) of the Law on
Courts, the Council of Courts did not have the right to elect its
President; the President of the Supreme Court had, by virtue of
his office, to be the President of the Council of Courts, wile
the Council of Courts had the right to elect its Vice-president
and the Secretary.
2.3.10. Self-government institutions are created in order
that they act as a counterbalance to a decisive influence of
officials with broad powers, so that it be a counter-balance to
centralised administration. In a state under the rule of law the
activity of self-government of courts cannot be based on a
centralised government. Therefore, when bodies of self-government
of courts are formed, the subjects of the self-government have to
adopt the decision, they should not be imposed a candidature of
the person in charge, as they themselves have to decide as to who
will be their persons in charge. Thus, in the opinion of the
group of Members of the Seimas, the petitioner, under the
Constitution, it is the Council of Courtsan institution of self-
government of courtsthat should adopt a democratic decision on
the person in charge of the Council of Courts. While if the
President of the Supreme of Court is, according to the group of
Members of the Seimas, the petitioner, an official of judicial
power, who has "the main administrative powers", i.e. one of the
subjects with whose regard courts and judges would have to
implement the right to self-government, he cannot, by virtue of
his office, be the President of the Council of Courts.
2.3.11. In the opinion of the group of Members of the
Seimas, the petitioner, the fact that under Paragraph 5 (wording
of 24 January 2002) of Article 119 of the Law on Courts, Item 1
(wording of 24 January 2002) of Article 120 (wording of 21
January 2003) of the Law on Courts, the Council of Courts did not
have the right to elect their President, but the President of the
Supreme Court had, by virtue of his office, to be the President
of the Council of Courts, is not in compliance with the
provisions of Articles 5, 109, and 114 of the Constitution and
the constitutional principle of a state under the rule of law.
2.4. President of the Republic Decree No. 2067 "On the
Prolongation of the Powers of a Judge of a Regional Court" of 19
February 2003, which is disputed by the group of Members of the
Seimas, the petitioner, provides:
"Article 1.
Conforming to Item 11 of Article 84 and Article 112 of the
Constitution of the Republic of Lithuania and Paragraph 3 of
Article 57 of the Republic of Lithuania Law on Courts and taking
account of the advice of the Council of Courts, I shall prolong
the powers of Konstantas Ramelis, a judge of the Civil Cases
Division of the Vilnius Regional Court and the Chairman of the
same division, until he reaches the age of 70 years.
Article 2.
This decree shall come into force as from the day of its
signing."
President of the Republic Decree No. 128 "On Appointing
Chairmen of Divisions of Regional Courts" of 18 June 2003, which
is disputed by the group of Members of the Seimas, the
petitioner, inter alia provides:
"Article 1.
Conforming to Item 11 of Article 84 and Article 112 of the
Constitution of the Republic of Lithuania and taking account of
the advice of the Council of Courts, I shall appoint:
The judge of the Vilnius Regional Court Konstantas Ramelis
the Chairman of the Civil Cases Division of the same court <
>.
Article 2.
This decree shall come into force as from 26 June 2003."
By Article 1 of his Decree No. 2015 "On Submitting that the
Seimas Assent to the Appointment of A. Driukas and K. Ramelis as
Judges of the Court of Appeal of Lithuania" of 10 January 2003
(hereinafter also referred to as President of the Republic Decree
No. 2015 of 10 January 2003), the President of the Republic,
conforming to Item 11 of Article 84, Article 112 and Item 4 of
Article 115 of the Constitution, and while taking account of the
advice of the Council of Courts, submitted that the Seimas assent
inter alia to the appointment of Konstantas Ramelis as a judge of
the Court of Appeal of Lithuania. It was established in the said
decree of the President of the Republic: "This decree shall come
into force as from the day of its signing."
By Article 1 of its Resolution No. IX-1323 "On the Assent
to Appointment of a Judge of the Court of Appeal of Lithuania" of
28 January 2003 (hereinafter also referred to as the Seimas
resolution of 28 January 2003), the Seimas, conforming to Item 11
of Article 84 of the Constitution and taking account of President
of the Republic Decree No. 2015 of 10 January 2003, resolved to
assent to the appointment of Konstantas Ramelis as a judge of the
Court of Appeal of Lithuania. Article 2 of the said Seimas
resolution provided: "This Resolution shall come into force from
the moment of its adoption."
According to the group of Members of the Seimas, the
petitioner, these legal actsPresident of the Republic Decree No.
2015 of 10 January 2003 and the Seimas resolution of 28 January
2003expressed the will of the state to appoint Konstantas
Ramelis as a judge of the Court of Appeal of Lithuania.
However, when the said acts were in force, the President of
the Republic, disregarding the will expressed by two state
institutionsthe Seimas and the President of the Republic
himselfissued his Decree No. 2067 of 19 February 2003, and
laterDecree No. 128 of 18 June 2003, whereby Konstantas Ramelis
was granted the powers of a judge of the Vilnius Regional Court
and the Chairman of the Civil Cases Division of the same court.
2.4.2. As mentioned, under Article 5 of the Constitution,
in Lithuania, State power shall be executed by the Seimas, the
President of the Republic and the Government, and the Judiciary
(Paragraph 1); while the scope of power shall be limited by the
Constitution (Paragraph 2).
According to the group of Members of the Seimas, the
petitioner, one of the requirements of the constitutional
principle of a state under the rule of law is obligatoriness of
valid legal acts to all persons and to all state institutions.
This requirement also means that state institutions, including
the President of the Republic, must follow valid legal acts,
including decrees of the President of the Republic (including
those who were issued when another person was the President of
the Republic). Under the Constitution, only legal acts (normative
and individual ones) of higher power may establish a different
regulation than that established in legal acts of lower powerin
that case such legal acts of lower power must be harmonised with
legal acts of higher power.
2.4.3. Therefore, in the opinion of the group of Members of
the Seimas, the petitioner, the legal regulation where, when a
legal act which was issued by a state institution and officially
published in the official gazette "Valstybes žinios" is still in
force, by means of a legal act of the same power the same state
institution establishes a different legal regulation from that
established in the legal act which is still in fore, is in
conflict with the Constitution.
2.4.4. In the opinion of the group of Members of the
Seimas, the petitioner, President of the Republic Decree No. 2067
of 19 February 2003 and President of the Republic Decree No. 128
of 18 June 2003 (to the extent that it provides that Konstantas
Ramelis, a judge of the Vilnius Regional Court, is appointed
Chairman of the Civil Cases Division of the same court) do not
meet the aforesaid requirements and they are in conflict with
Article 5 of the Constitution and 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 were received
from M. Girdauskas and G. Sagatys, the representatives of the
Seimas, the party concerned, as well as from Č. Atkočaitis and M.
Vainiutė, the representatives of the President of the Republic,
the party concerned (together with annexescopies of the
documents related to the appointment of Konstantas Ramelis as a
judge of the Vilnius Regional Court and as the Chairman of the
Civil Cases Division of the same court, and to the appointment of
the same person as a judge of the Court of Appeal of Lithuania,
as well as with the prolongation of powers of the same person as
a judge of the Vilnius regional Court, the Chairman of the Civil
Cases Division of the same court).
1. It is maintained in the explanations of M. Girdauskas, a
representative of the Seimas, the party concerned, that Article
306 (wording of 8 July 2004), Paragraph 2 (wording of 14 March
2002) of Article 308, Paragraphs 12 and 13 (wording of 14 March
2002) of Article 324, Paragraph 9 (wording of 14 March 2002) of
Article 377, Paragraph 7 (wording of 14 March 2002) of Article
448, Paragraph 5 (wording of 14 March 2002) of Article 454, and
Paragraphs 4 and 5 of Article 460 (wording of 14 March 2002) of
the CCP, which are disputed by the group of Members of the
Seimas, the petitioner, are not in conflict with the
Constitution. The position of the representative of the Seimas,
the party concerned, is grounded on the following arguments.
1.1. It is clear from the explanations (in their entirety)
of M. Girdauskas, a representative of the Seimas, the party
concerned, that, in his opinion, Article 306 (wording of 8 July
2004) of the CCP, which is disputed by the group of Members of
the Seimas, the petitioner, establishes the legal regulation
whereby in the court of first instance, when the judgement is
adopted by the judge of a local court, in all cases reasoned (at
least to certain extent) judgements of conviction must be drawn
up before they are announced: in the cases in which persons are
accused of commission of the crimes provided for in Paragraph 1
of Article 135, Paragraphs 1, 2, and 3 of Article 149, Paragraphs
1, 2, and 3 of Article 150, Paragraphs 2 and 3 of Article 180,
Paragraph 2 of Article 182 and Paragraphs 1 and 2 of Article 260
of the CC, the entire part of recital of the judgement of
conviction is drawn up (provided for in Article 305 (wording of
14 March 2002) of the CCP), while in the cases in which persons
are accused of commission of other criminal deeds, the judgement
of conviction may (but not necessarily must) be drawn up with an
abridged part of recital, in which the circumstances provided for
in Items 2, 3, and 4 of Paragraph 1 and Paragraph 5 of Article
305 are not set forth; taking account of the cognisance rules
established in Article 224 (wording of 14 March 2002) and Article
225 (wording of 8 July 2004) of the CCP, all these cases
considered in the court of first instance, where the judgement is
adopted by the judge of a local court, are cases on the criminal
deeds that are not grave or very grave. Meanwhile, in the opinion
of M. Girdauskas, a representative of the Seimas, the party
concerned, in the other articles (parts thereof) of the CCP (in
Paragraph 2 (wording of 14 March 2002) of Article 308, Paragraphs
12 and 13 (wording of 14 March 2002) of Article 324, Paragraph 9
(wording of 14 March 2002) of Article 377 of the CCP, Paragraph 7
(wording of 14 March 2002) of Article 448, Paragraph 5 (wording
of 14 March 2002) of Article 454, and Paragraphs 4 and 5 of
Article 460 (wording of 14 March 2002) of the CCP) whose
compliance with the Constitution is disputed by the petitioner,
the legal regulation is established whereby after a judgement
(ruling) is adopted, first only the resolution part or only the
introductory and resolution parts of the judgement (ruling) may
be announced and, alongside, the arguments of its adoption (all
arguments or the "main", "most important" ones) must be set forth
verballyin such cases the reasoning substantiating the judgement
(ruling) (the arguments of the adoption of the judgement
(ruling)) must be drawn up later, within a corresponding time
period established in the CCP.
1.2. The Constitution does not contain any expressis verbis
established prohibition to draw up the arguments of a court
decision (judgement, ruling) later, within the time period
established in the law, after the court announces the resolution
part of the decision (judgement, ruling) consolidated in writing.
1.3. Such prohibition does not stem from the Convention for
the Protection of Human Rights and Fundamental Freedoms
(hereinafter also referred to as the Convention), nor the
practice of the European Commission of Human Rights, nor the
jurisprudence of the European Commission of Human Rights; in
themselves, abridged court judgements are not in conflict with
the Convention, if the accused enjoys sufficient opportunities by
means of appeal and cassation procedure to dispute all the
evidence and the arguments upon which the accusation and the
judgement of the court of first instance are grounded.
Besides, laws of criminal procedure of many foreign states
provide for a possibility to a court of first instance to draw up
the decision (judgement, ruling) with abridged reasoning, also a
possibility to the court to draw up the reasoning of decision
(judgement, ruling) after its announcement; it is "the common
practice" in the states which are the Parties to the Convention.
According to M. Girdauskas, a representative of the Seimas, the
party concerned, the constitutional courts of European states
have not construed that the announcement of a court decision
(judgement, ruling), when the reasoning substantiating it are
drawn up later, is in conflict with the constitutions of
respective states.
1.4. The fact that under the disputed provisions of the CCP
the court decision (judgement, ruling) must be set forth verbally
when it is being announced deny the assumptions that, allegedly,
a decision (judgement, ruling) is adopted first, and only later
the reasoning is contrived. In the opinion of M. Girdauskas, a
representative of the Seimas, the party concerned, also the
circumstance is of importance that under the CCP the participants
of the process have the right to make an audio record of the
court hearing, therefore, also to record the verbal reasoning
substantiating the decision (judgement, ruling) and thus to
guarantee that it is not changed.
1.5. The opinion that the drawing up of all the reasoning
substantiating a court decision (judgement, ruling) not prior to
the announcement of the court decision (judgement, ruling), but
later (inter alia upon request of the participants to the
proceedings), could be substantiated by the following doctrinal
provisions of the Constitutional Court ruling of 16 January 2006
(Item 16.5 of Chapter I of the part of reasoning):
"While construing Article 109 of the Constitution in the
context of the requirements of legal clarity, legal certainty,
and legal publicity, as well as the requirement to ensure human
rights and freedoms, which arise from the constitutional
principle of a state under the rule of law, it needs to be noted
that administration of justice implies also that a court
judgement (or another final act of the court) is an integral
legal act in which the ruling part is grounded on the arguments
set forth in the part of reasoning. This inter alia means that
when the court judgement (or another final act of the court) is
officially published, it must contain all arguments upon which it
is grounded, that the arguments (or part thereof) of a court
judgement (or another final act of the court) cannot be submitted
by the court after the official publishing of the court judgement
(or another final act of the court), and that after the official
publishing of the court judgement (or another final act of the
court), the court may not change or otherwise correct its
arguments.
In this context it needs to be noted that if a court
judgement (or another final act of the court) was published
officially, which is not grounded on legal arguments or which is
grounded only on certain part of the arguments, and the remaining
part of the arguments is made public after the official
publishing of the court judgement (or another final act of the
court), justice would not be administeredthere would always be a
reasonable doubt that such arguments only seek to justify the
court judgement (or another final act of the court) that was
adopted a priori."
However, according to M. Girdauskas, a representative of
the Seimas, the party concerned, the said doctrinal provisions in
that Constitutional Court ruling adopted in the said
constitutional justice case are set forth as obiter dicta and
they do not carry such obligatoriness as ratio decidendi,
therefore, if there are grounds, they may be particularised and
corrected.
1.6. In the explanations one also questions the
reasonableness of the doubts of the group of Members of the
Seimas, the petitioner, regarding the compliance of Paragraph 2
(wording of 14 March 2002) of Article 308, Paragraph 12 (wording
of 14 March 2002) of Article 324 and Paragraph 9 (wording of 14
March 2002) of Article 377 of the CCP with the Constitution in
the aspect that the possibility for a court to draw up a
judgement within fourteen days allegedly depends not on the fact
how much time, in the opinion of the judges, is necessary in
order to draw up a reasoned judgement, but on the assent of other
personsthe President of the court or the Chairman of the
Criminal Cases Division. In the opinion of M. Girdauskas, a
representative of the Seimas, the party concerned, the said
powers of presidents of courts and chairmen of criminal cases
divisions are to be related not to dependence of the judges who
administer justice, but to ensuring the organisation of work in
courts, since these court officials not only administer justice
as judges, but also they are responsible for the area of
organisation of work in the courts, which is entrusted to them.
2. In the explanations of G. Sagatys, a representative of
the Seimas, the party concerned, it is maintained that Paragraph
3 (wording of 28 February 2002) of Article 268, Paragraph 2
(wording of 28 February 2002; to the extent pointed out by the
group of Members of the Seimas, the petitioner) of Article 285,
Paragraph 5 (wording of 28 February 2002) of Article 285,
Paragraph 1 (wording of 28 February 2002) of Article 286,
Paragraph 2 (wording of 28 February 2002) of Article 303,
Paragraphs 2 and 3 (wording of 28 February 2002) of Article 325,
Paragraph 3 (wording of 28 February 2002) of Article 358 of the
Code of Civil Procedure, Paragraph 3 (wording of 19 September
2000) of Article 85, and Paragraphs 2 and 3 (wording of 19
September 2000) of Article 139 of the Law on the Proceedings of
Administrative Cases are not in conflict with the Constitution.
Also an opinion is stated that the legal proceedings commenced in
the part of the case regarding Item 1 (wording of 24 January
2002) of Paragraph 2 of Article 119, Paragraph 5 (wording of 24
January 2002) of the same article, Item 1 (wording of 24 January
2002) of Article 120 (wording of 21 January 2003) of the Law on
Courts, which are disputed by the group of Members of the Seimas,
the petitioner, are to be dismissed. The position of the
representative of the Seimas, the party concerned, is based on
the following arguments.
2.1. The compliance of Paragraph 3 (wording of 28 February
2002) of Article 268, Paragraphs 2 and 3 (wording of 28 February
2002) of Article 325, Paragraph 3 (wording of 28 February 2002)
of Article 358 of the Code of Civil Procedure, Paragraph 3
(wording of 19 September 2000) of Article 85, and Paragraphs 2
and 3 (wording of 19 September 2000) of Article 139 of the Law on
the Proceedings of Administrative Cases with the Constitution are
grounded on the following arguments.
2.1.1. The Constitution does not establish any expressis
verbis formal requirements which should be followed by a court,
when it announces its final decision in a case. According to G.
Sagatys, a representative of the Seimas, the party concerned, the
doubt of the group of Members of the Seimas, the petitioner,
regarding the compliance of Paragraph 3 (wording of 28 February
2002) of Article 268, Paragraphs 2 and 3 (wording of 28 February
2002) of Article 325and Paragraph 3 of Article 358 of the Code of
Civil Procedure as well as Paragraph 3 (wording of 19 September
2000) of Article 85 and Paragraphs 2 and 3 (wording of 19
September 2000) of Article 139 of the Law on the Proceedings of
Administrative Cases is substantiated by expansive interpretation
of Articles 109 and 117 of the Constitution and the
constitutional principle of a state under the rule of law.
2.1.2. The right of the person to a fair process is defined
not by setting forth of court arguments in a certain (written)
form, but making them public.
2.1.3. In the explanations attention is drawn to the same
doctrinal provisions of the Constitutional Court ruling of 16
January 2006, which are quoted in the explanations of M.
Girdauskas, a representative of the Seimas, the party concerned,
as well as to these doctrinal provisions of the same
Constitutional Court ruling (Item 16.5 of Chapter I of the part
of reasoning):
"Under the Constitution, the legislator enjoys powers to
establish reasonable terms within which a reasoned court
judgement (or another final act of the court) must be published,
and, if necessary, to establish exceptions to the establishment
of general rules.
It needs to be noted that the said requirements concerning
the reasoning of the judgement (or another final act of the
court), its publishing and terms are applicable mutatis mutandis
not only to the criminal procedure, but also to other types of
legal proceedings."
In the opinion of G. Sagatys, a representative of the
Seimas, the party concerned, the doctrinal provisions of the
Constitutional Court ruling of 16 January 2006 are to be
interpreted as the ones which do not specify in an imperative
manner as to in what form the court arguments should be set forth
at the time when the court act is being officially announced. The
legislator, after it has established that the reasoning of a
decision (judgement, ruling) is set forth "abridged in verbal
form" in the course of the announcement of the decision
(judgement, ruling), has ensured minimum implementation of the
constitutional imperatives and did not exceed the powers
established to him in the Constitution.
2.1.4. The legal regulation established in Paragraph 3
(wording of 28 February 2002) of Article 268, Paragraphs 2 and 3
(wording of 28 February 2002) of Article 325, Paragraph 3
(wording of 28 February 2002) of Article 358 of the Code of Civil
Procedure, which are disputed by the group of Members of the
Seimas, the petitioner, is rational with regard to implementation
of a great many principles of civil procedure law; such legal
regulation established in the Code of Civil Procedure is also
useful to the court, which, due to big workload, faces
difficulties in ensuring that all the decisions adopted by it,
which meet the requirements of Article 270 (wording of 28
February 2002) of the Code of Civil Procedure, be "prepared" on
the day of their announcement, and to the persons participating
in the case, who are concerned to learn the resolution part ("the
most important one", according to G. Sagatys, a representative of
the Seimas, the party concerned) of the court decision as fast as
possible. Such legal regulation does not seek to create any
conditions for abuse in the course of administration of justice.
These arguments are to be applied mutatis mutandis also
when substantiating the compliance of Paragraph 3 (wording of 19
September 2000) of Article 85, and Paragraphs 2 and 3 (wording of
19 September 2000) of Article 139 of the Law on the Proceedings
of Administrative Cases, which are disputed by the group of
Members of the Seimas, the petitioner, with the Constitution.
2.2. In the explanations the compliance of disputed
Paragraphs 2 and 5 (wording of 28 February 2002) of Article 285
of the Code of Civil Procedure, Paragraph 1 (wording of 28
February 2002) of Article 286 and Paragraph 2 (wording of 28
February 2002) of Article 303 of the Code of Civil Procedure with
the Constitution is grounded on the following arguments.
2.2.1. The purpose of the decision in absentia provided for
in Paragraphs 2 and 5 (wording of 28 February 2002) of Article
285, Paragraph 1 (wording of 28 February 2002) of Article 286 and
Paragraph 2 (wording of 28 February 2002) of Article 303 of the
Code of Civil Procedure is ensuring of effective judicial defence
of violated rights, by preventing a dishonest party from stalling
the court proceedings or from abusing the proceedings otherwise.
According to G. Sagatys, a representative of the Seimas, the
party concerned, the institute of decision adopted in absentia
(which is not a new one in Lithuanian law or unique from the
standpoint of comparative law) is necessary in order to ensure
the concentration, expedition, cooperation of the parties and
other essential principles of the civil procedure.
2.2.2. The decision adopted in absentia provided for in the
Code of Civil Procedure is not a procedural sanction to the party
that does not perform the duties established in the law (inter
alia the duty to take care of stimulating the proceedings) and
which has not made use of the available procedural opportunities,
but further development of the proceedings (procedural effect)
and a logical consequence of the strategy of the case chosen by
the passive party.
2.2.3. The court may adopt a decision in absentia only upon
request of the active party, but not on its own initiative.
Besides, the court does not have to, but it enjoys the right to
adopt a decision in absentia in corresponding cases; it can do so
only if there are the conditions established in the Code of Civil
Procedure, when a party does not submit its response within
established term without valid excuse (Paragraph 4 (wording of 28
February 2002) of Article 142), it fails to appear at the court
hearing without valid reasons (Paragraphs 1 and 2 (wording of 28
February 2002) of Article 246) or it fails to appear at the
preparatory court hearing after the party was properly informed
(Paragraph 2 (wording of 28 February 2002) of Article 230).
However, it needs to be emphasised that even if there are all the
conditions established in the Code of Civil Procedure (and even
the active party requests so), the court may decide not to adopt
a decision in absentia.
2.2.4. By means of a decision in absentia one does not seek
to establish the material truth. While in the cases where the
court has a duty to ascertain the material truth (for example, in
cases of "greater public interest" and those of special
proceedings), also in cases of some other categories (for
example, in documentary proceedings), the court is prohibited to
adopt a decision in absentia at all.
2.2.5. The Code of Civil Procedure consolidates the model
of limited appeal, which means that the appeal process is a
mechanism of control of the lawfulness and reasonableness of a
decision adopted by the court of first instance, but it is not a
repeated consideration of the case in court. Thus, all
circumstances, all evidence by which the parties substantiate
their demands and replications must be submitted and assessed
when the case is considered at the court of first instance. The
prohibition to appeal against a decision adopted in absentia
under appeal and cassation procedure logically stems from the
model of limited appealsuch prohibition is applied to the person
in whose regard such decision was adopted (Paragraph 2 (wording
of 28 February 2002) of Article 303). It is prohibited that the
appellant substantiate the appeal by the circumstances which have
not been indicated in the court of first instance (Paragraph 2
(wording of 28 February 2002) of Article 306); it is prohibited
that he express new substantive legal demands in the appeal
(Article 312 (wording of 28 February 2002)); it is also
prohibited that the appellant submit new evidence which might
have been submitted at the court of first instance (save the
cases when the court of first instance refused to accept it or
when the necessity to submit this evidence appeared later)
(Article 314 (wording of 28 February 2002)).
If the person in whose regard the decision in absentia was
adopted had a possibility to appeal against that decision under
appeal procedure, it would mean that one begins to investigate
the case on merits only at the court of appeal instance. This
would be in conflict with the principle of economy of the
proceedings and the functions of the court of first instance and
the court of appeal instance would be mixed. This would also
threaten the implementation of the principle of contest and the
rights of the honest party (which took an active part in the
proceedings in the court of first instance and had reasonable
considerations as regards the sufficiency of the submitted court
evidence).
Besides, that party in whose regard the decision was
adopted in absentia has the right to submit a statement
requesting review of the decision in absentia (Article 287
(wording of 28 February 2002) of the Code of Civil Procedure.
Such statement is a complaint regarding not the essence of the
adopted decision, but that on the procedural basis of the
adoption of the decision in absentia, therefore, the court, after
it considers this statement, may repeal the decision adopted in
absentia and renew the consideration of the case on merits (Item
2 (wording of 28 February 2002) of Paragraph 3 of Article 288 of
the Code of Civil Procedure). After a new decision is adopted in
the same case, also an appeal on general grounds is possible.
While if the court of first instance adopts a ruling whereby one
refuses to grant the statement requesting a review of the
decision adopted in absentia, the party in whose regard the
decision was adopted in absentia has the right to submit an
individual complaint (Paragraph 6 (wording of 28 February 2002)
of Article 288 of the Code of Civil Procedure). Thus, even if
there was a decision in absentia, the party in whose regard this
decision was adopted is not prevented to apply to the court of
appeal instance: when a new decision is adopted in the same case,
this party may apply to the court of appeal instance regarding
the essence of the decision itself, while if one refuses to grant
the statement requesting a review of the decision adopted in
absentia, it may apply to the court of appeal instance on the
procedural expediency and reasonableness of the decision adopted
in absentia. Thus, the passive party enjoys sufficient procedural
guarantees.
In the opinion of G. Sagatys, a representative of the
Seimas, the party concerned, when assessing whether the
established prohibition to a person, in whose regard a decision
in absentia was adopted, to appeal against that decision under
appeal procedure and cassation procedure is not in conflict with
the Constitution, the circumstance that under the Convention the
right to appeal is not a constituent part of the right to
judicial defence, is also of importance.
2.2.6. The prohibition to a person to appeal, under appeal
and cassation procedure, against a decision adopted in absentia,
which is adopted in regard to the said person, cannot be in
conflict with Article 29 of the Constitution and the principle of
equality of persons before the court, which is established
therein, since in itself the constitutional principle of equality
of persons does not deny the fact that the law may establish
different legal regulation in regard of certain categories of
persons which are in different situations. Thus, this
constitutional principle is not violated also when the procedural
rights of the person, who takes an active part in the court
proceedings and who contributes to speedy and comprehensive
consideration of the case, and the procedural rights of the
person who behaves in the opposite manner, are differentiated.
2.3. The position of G. Sagatys, a representative of the
Seimas, the party concerned, that the legal proceedings commenced
in the part of the case regarding the compliance of Item 1
(wording of 24 January 2002) of Paragraph 2 of Article 119,
Paragraph 5 (wording of 24 January 2002) of the same article,
Item 1 (wording of 24 January 2002) of Article 120 (wording of 21
January 2003) of the Law on Courts, which are disputed by the
group of Members of the Seimas, the petitioner, with the
Constitution are to be dismissed, is grounded on the following
arguments.
2.3.1. The Constitutional Court Ruling "On the compliance
of Paragraph 2 (wording of 24 January 2002), Paragraph 3 (wording
of 21 January 2003), Paragraphs 4, 5 and 6 (wording of 24 January
2002) of Article 56, Paragraph 3 (wording of 28 January 2003) of
Article 57, Paragraph 4 (wording of 24 January 2002) of Article
63, Paragraphs 2 and 3 (wording of 24 January 2002) of Article
70, Paragraphs 2 and 3 (wording of 24 January 2002) of Article
71, Paragraphs 2 and 3 (wording of 24 January 2002) of Article
72, Paragraph 2 (wording of 24 January 2002) of Article 73,
Paragraph 1 (wording of 24 January 2002) of Article 74, Paragraph
1 (wording of 24 January 2002) of Article 75, Paragraph 2
(wording of 21 January 2003) of Article 76, Paragraph 3 (wording
of 24 January 2002) of Article 77, Paragraph 2 (wording of 21
January 2003) of Article 78, Paragraph 2 (wording of 24 January
2002) of Article 79, Paragraphs 3 and 7 (wording of 24 January
2002) of Article 81, Paragraphs 3 and 7 (wording of 24 January
2002) of Article 90, Paragraphs 2 and 5 (wording of 24 January
2002) of Article 119, Items 3 and 4 (wording of 24 January 2002)
of Article 120, Paragraph 2 (wording of 24 January 2002) of
Article 128 of the Republic of Lithuania Law on Courts, of Item
13 (wording of 4 July 1996) of Paragraph 3 of Article 11,
Paragraphs 1 and 3 (wording of 18 April 1995) and Paragraph 4
(wording of 4 July 1996) of Article 17, Paragraph 3 (wording of
18 April 1995) of Article 18 of the Republic of Lithuania Law '
The Statute of the Supreme Court of Lithuania' and of Article 1
of Decree of the President of the Republic of Lithuania No. 2048
'On the Dismissal of A Judge of the Regional Court From Office'
of 10 February 2003 with the Constitution of the Republic of
Lithuania" of 9 May 2006 inter alia recognised that
- Paragraph 2 (wording of 24 January 2002) of Article 119
of the Law on Courts to the extent that it establishes that not
only judges but also other persons compose the Council of Courts
was in conflict with Paragraph 2 of Article 5 and Paragraph 5 of
Article 112 of the Constitution, the constitutional principle of
separation of powers, and the constitutional principle of a state
under the rule of law;
- the provision "the President of the Supreme Court shall
be, by virtue of his office, the President of the Council of
Judges" of Paragraph 5 (wording of 24 January 2002) of Article
119 of the Law on Courts was in conflict with Paragraph 2 of
Article 5 of the Constitution and the constitutional principle of
a state under the rule of law.
2.3.2. On 23 May 2006, the Seimas adopted the Republic of
Lithuania Law on Amending Articles 119, 120 and 121 of the Law on
Courts whereby the articles (parts thereof) of the Law on Courts
which had been recognised as conflicting with the Constitution
were amended, inter alia the legal regulation was established
that only judges may be members of the Council of Courts (who are
elected and appointed by virtue of their office), while the
President of the Council of Courts is elected from members of the
Council of Courts.
2.3.3. Thus, in the opinion of G. Sagatys, a representative
of the Seimas, the party concerned, in this part of the case
regarding the compliance of Item 1 (wording of 24 January 2002)
of Paragraph 2 of Article 119, Paragraph 5 (wording of 24 January
2002) of the same article, Item 1 (wording of 24 January 2002) of
Article 120 (wording of 21 January 2003) of the Law on Courts,
which are disputed by the group of Members of the Seimas, the
petitioner, with the Constitution the matter of investigation is
no longer present. Conforming to Paragraph 2 of Article 80 of the
Law on the Constitutional Court, the instituted proceedings in
this part of the case are to be dismissed.
3. It is maintained in the explanations of M. Vainiutė and
Č. Atkočaitis, representatives of the President of the Republic,
the party concerned, that President of the Republic Decree No.
2067 "On the Prolongation of the Powers of a Judge of a Regional
Court" of 19 February 2003 and President of the Republic Decree
No. 128 "On Appointing Chairmen of Divisions of Regional Courts"
of 18 June 2003, which are disputed by the group of Members of
the Seimas, the petitioner, to the extent that it establishes
that Konstantas Ramelis, a judge of the Vilnius Regional Court,
is appointed Chairman of the Civil Cases Division of the said
court, are not in conflict with the Constitution. It is clear
from the explanations and annexes theretocopies of the documents
related to appointment of Konstantas Ramelis as a judge of the
Vilnius Regional Court and the Chairman of the Civil Cases
Division of this court, with the appointment of this person as a
judge of the Court of Appeal of Lithuania, as well as the
prolongation of his powers in the capacity of a judge of the
Vilnius Regional Court and the Chairman of the Civil Cases
Division of this courtthat the position of the representatives
of the Seimas, the party concerned, is grounded on the following
arguments.
3.1. By President of the Republic Decree No. 472 "On
Appointing Judges of Regional Courts" of 19 December 1994, inter
alia Konstantas Ramelis was appointed a judge of the Vilnius
Regional Court (in the decree a different name of this person was
indicatedKonstantinas). It was specified in the same decree of
the President of the Republic that it "shall come into force as
from the day of its signing".
3.2. By Order of the Minister of Justice of the Republic of
Lithuania No. 542K "On Appointing the Chairman of a Division of
the Vilnius Regional Court" of 20 December 1994 (hereinafter also
referred to as Minister of Justice Order No. 542K of 20 December
1994) Konstantas Ramelis was appointed Chairman of the Civil
Cases Division of the Vilnius Regional Court. It was established
in this order of the Minister of Justice that it shall come into
force "as from 1 January 1995" (in this context, it needs to be
noted that under then valid Paragraph 4 (wording of 31 May 1994)
of Article 33 of the Law on Courts the chairmen of divisions of
regional courts were appointed from among appointed judges by the
Minister of Justice upon proposal of the President of a
corresponding court).
3.3. On 18 June 1996, the Seimas adopted the Republic of
Lithuania Law on Amending and Supplementing Articles 22, 22-1,
33, 34, 35, 56 and 59 of the Law on Courts, by Article 3 whereof
Article 33 (wording of 8 November 1994) of the Law on Courts was
supplemented with Paragraphs 5 and 6 and it was inter alia
established that Presidents of regional courts and chairmen of
divisions of these courts are appointed for a 7-year term.
3.4. On 24 January 2002, the Seimas adopted the Republic of
Lithuania Law on Amending the Law on Courts (which came into
force on 1 May 2002) whereby the Law on Courts (wording of 31 May
1994 with subsequent amendments and supplements) was set forth in
a new wording.
Also, on 14 March 2002 the Seimas adopted the Republic of
Lithuania Law on Entry into Force and Implementation of the Law
on Amending the Law on Courts in Paragraph 1 of Article 6 whereof
it was established that until the entry into force of the Law on
Amending the Law on Courts the appointed presidents and deputy
presidents of courts of general jurisdiction and specialised
courts, as well as chairmen of divisions of these courts hold
their office until the end of the term of office for which they
were appointed.
3.5. On 28 October 2002, K. Ramelis submitted an
application to the National Courts Administration requesting to
enter him into the register of the persons who seek a career as
judges and expressed his wish to be appointed as a judge of the
Court of Appeal of Lithuania (if possible, the chairman of a
division of this court).
3.6. By its Decision No. 62 "On the advice to the President
of the Republic to dismiss K. Ramelis from the office of a judge
of the Vilnius Regional Court and the Chairman of the Civil Cases
Division of this court and to appoint him a judge of the Court of
Appeal of Lithuania" of 23 December 2002, the Council of Courts
advised the President of the Republic to dismiss K. Ramelis from
the office of a judge of the Vilnius Regional Court and the
Chairman of the Civil Cases Division of this court and to appoint
him a judge of the Court of Appeal of Lithuania. (The
representatives of the President of the Republic, the party
concerned, did not submit any documents nor their copies
testifying that there was an application to the Council of Courts
requesting such advice.)
3.7. By his Decree No. 2015 "On Submitting that the Seimas
Assent to the Appointment of A. Driukas and K. Ramelis as Judges
of the Court of Appeal of Lithuania" of 10 January 2003
(hereinafter also referred to as President of the Republic Decree
No. 2015 of 10 January 2003), the President of the Republic
submitted that the Seimas assent inter alia to the appointment of
Konstantas Ramelis as a judge of the Court of Appeal of
Lithuania.
3.8. By Article 1 of its Resolution No. IX-1323 "On the
Assent to Appointment of a Judge of the Court of Appeal of
Lithuania" of 28 January 2003 the Seimas, conforming to Item 11
of Article 84 of the Constitution and taking account of President
of the Republic Decree No. 2015 of 10 January 2003, resolved to
assent to the appointment of Konstantas Ramelis as a judge of the
Court of Appeal of Lithuania.
3.9. On 28 January 2003, the Seimas adopted the Republic of
Lithuania Law on Amending Article 57 of the Law on Courts by
Article 1 whereof Paragraph 3 (wording of 24 January 2003) of
Article 57 of the Law on Courts was amended. It was established
in Paragraph 3 (wording of 24 January 2003) of Article 57 of the
Law on Courts that when a judge of the Supreme Court of
Lithuania, the Court of Appeal of Lithuania and the Supreme
Administrative Court of Lithuania, a regional court and a
regional administrative court reaches the age of 65, his powers
may be extended by the institution which appointed him until he
reaches the age of 70; in such cases the judge seeking an
extension of his powers shall apply to the President of the
Republic.
Thus, an opportunity was created to judges of regional
courts and administrative regional courts to hold office until
they reach the age of 70.
3.10. On 31 January 2003, K. Ramelis applied to the
President of the Republic with a request in which it was
indicated that on 12 March 2003 K. Ramelis would reach the age of
65, and he requested to prolong his powers as a judge and the
chairman of the division until he reaches the age of 70.
3.11. Upon assignment of the President of the Republic, the
Council of Courts was applied to by means of Letter No. 2D-797 of
3 February 2003 seeking advice to the President of the Republic
regarding the prolongation of the powers of Konstantas Ramelis, a
judge of the Vilnius Regional Court and the Chairman of the Civil
Cases Division of this court until he reaches the age of 70.
3.12. By its Decision No. 66 of 7 February 2003, the
Council of Courts advised to the President of the Republic to
prolong the powers of Konstantas Ramelis, a judge of the Vilnius
Regional Court and the Chairman of the Civil Cases Division of
this court, until he reaches the age of 70 years.
3.13. By his Decree No. 2067 "On the Prolongation of the
Powers of a Judge of a Regional Court" of 19 February 2003, the
President of the Republic prolonged the powers of Konstantas
Ramelis, a judge of the Civil Cases Division of the Vilnius
Regional Court and the Chairman of the same division this court
until he reaches the age of 70 years.
3.14. When the term of powers of K. Ramelis as the Chairman
of the Civil Cases Division of the Vilnius Regional Court was
about to expire, upon assignment of the President of the Republic
the Council of Courts was applied to with Letter No. 2D-4175 of
30 May 2003 seeking advice to the President of the Republic
regarding inter alia the appointment of K. Ramelis the Chairman
of the Civil Cases Division of the Vilnius Regional Court.
3.15. By its Decision No. 108 "On the Advice to the
President of the Republic to appoint Presidents of Regional
Courts and Chairmen of the Divisions" of 6 June 2003, the Council
of Courts advised the President of the Republic to appoint inter
alia the judge of the Vilnius Regional Court Konstantas Ramelis
the Chairman of the Civil Cases Division of this court.
3.16. By his Decree No. 128 "On Appointing Chairmen of
Divisions of Regional Courts" of 18 June 2003 (which came into
force on 26 June 2003), the President of the Republic appointed
inter alia the judge of the Vilnius Regional Court Konstantas
Ramelis the Chairman of the Civil Cases Division of this court.
3.17. By issuing the decrees, which are disputed by the
group of Members of the Seimas, the petitioner, the President of
the Republic was conforming to Item 11 of Article 84 and Article
112 of the Constitution in which exceptional powers of the
President of the Republic are entrenched related to appointment,
promotion, transfer and dismissal of judges and presidents of
regional courts and he was following the requirements of the
laws.
3.18. In order that a person be appointed a judge of the
Court of Appeal, three competent institutions must adopt legal
acts: the President of the Republic must issue a decree on
presenting that the Seimas assent to the appointment of such a
person as a judge of the Court of Appeal, the Seimas must adopt a
resolution on assenting to the appointment of the judge of the
Court of Appeal and, finally, the President of the Republic must
issue a decree on appointing of the person as a judge of the said
court.
In the discussed case only two legal acts were issued:
President of the Republic Decree No. 2015 of 10 January 2003 and
the Seimas resolution of 28 January 2003, while no decree of the
President of the Republic was issued, whereby K. Ramelis should
have been dismissed form the office of a judge of the Vilnius
Regional Court and the Chairman of the Division of the said court
and appointed as a judge of the Court of Appeal.
In the opinion of M. Vainiutė and Č. Atkočaitis,
representatives of the President of the Republic, the party
concerned, the President of the Republic, after it has received
the assent of the Seimas, was also permitted not to appoint K.
Ramelis as a judge of the Court of Appeal and to submit another
candidature to the Seimas. M. Vainiutė and Č. Atkočaitis,
representatives of the President of the Republic, the party
concerned, substantiate their opinion inter alia by the doctrinal
provision of the Constitutional Court ruling of 9 May 2006 that
"<
> in order to appoint or dismiss a judge of the Court of
Appeal or the President of this court, the President of the
Republic must apply to the Seimas and, if he gets the assent of
the Seimas, he may appoint the corresponding person as a judge of
the Court of Appeal or the President of this court or dismiss the
corresponding judge of the Court of Appeal or the President of
this court from his office, also, inter alia if certain
circumstances significant to such appointment or dismissal from
office become clear, he might decide not to appoint that person
as a judge of the Court of Appeal or the President of this court,
and submit the Seimas with another candidature, or not to dismiss
the corresponding judge of the Court of Appeal or the President
of this court (if it is not obligatory to dismiss that judge
under the Constitution)".
According to Č. Atkočaitis and M. Vainiutė, representatives
of the President of the Republic, the party concerned, the
essential reason which determined the fact that K. Ramelis was
not dismissed from the office of the judge of the Vilnius
Regional Court and the Chairman of the Civil Cases Division was
that after the assent of the Seimas to appoint this person as a
judge of the Court of Appeal was received, the Law on Amending
Article 57 of the Law on Courts came into force which created an
opportunity also to judges of regional and administrative
regional courts to continue in office until they reach the age of
70. K. Ramelis changed his request and expressed his wish to
continue to work as a judge of the Vilnius Regional Court and the
Chairman of the Civil Cases Division and abandoned his aspiration
to seek the career of a judge, i.e. to be appointed as a judge of
the Court of Appeal. No person can be appointed to hold certain
office against his will.
3.19. In the opinion of Č. Atkočaitis and M. Vainiutė,
representatives of the President of the Republic, the party
concerned, neither President of the Republic Decree No. 2015 of
10 January 2003 whereby it was submitted that the Seimas inter
alia assent to the appointment of K. Ramelis as a judge of the
Court of Appeal of Lithuania, nor the Seimas resolution of 28
January 2003 whereby the Seimas resolved to assent to the
appointment of Konstantas Ramelis as a judge of the Court of
Appeal of Lithuania, caused any "direct" legal effects.
3.20. According to Č. Atkočaitis and M. Vainiutė,
representatives of the President of the Republic, the party
concerned, the validity of a legal act is terminated when a new
legal act is issued which regulates the same legal relations
differently. However, in the discussed case this rule cannot be
directly applied, since in the legal acts which were issued at
different time (i.e. decrees of the President of the Republic)
the legal regulation of different character is established. Thus,
although President of the Republic Decree No. 2015 of 10 January
2003 is not to be regarded as no longer valid, the President of
the Republic, before he issued his Decree No. 2067 of 19 February
2003 and Decree No. 128 of 18 June 2003, did not have to issue a
separate decree whereby President of the Republic Decree No. 2067
of 19 February 2003 should have been recognised as no longer
valid (to the extent that is disputed by the group of Members of
the Seimas, the petitioner).
3.21. In the opinion of Č. Atkočaitis and M. Vainiutė,
representatives of the President of the Republic, the party
concerned, the circumstance is also of importance that the
President of the Republic, before he issued the disputed decrees,
had received the corresponding advice of the special institution
of judges provided for by law, which is specified in Paragraph 5
of Article 112 of the Constitution (which under the then valid
law was the Council of Courts).
3.22. The disputed decrees of the President of the
Republic, as well as President of the Republic Decree No. 2015 of
10 January 2003, cannot be treated as conflicting with one
another or as the ones that were issued by disregarding formerly
issued decrees of the President of the Republic by relating this
to the termination of powers of the President of the Republic
under Article 88 of the Constitution, since the activity and
decisions of the President of the Republic are grounded on the
continuity of the activity of this institution.
IV
1. At the Constitutional Court hearing the Member of the
Seimas Nijolė Steiblienė and the advocate Kęstutis Čilinskas, the
representatives of the group of Members of the Seimas, the
petitioner, virtually reiterated the arguments set forth in the
petition of the petitioner and also submitted additional
explanations.
The advocate Kęstutis Čilinskas, a representative of the
group of Members of the Seimas, the petitioner, inter alia
expressed an opinion that after the Constitutional Court Ruling
"On the compliance of Paragraph 2 (wording of 24 January 2002),
Paragraph 3 (wording of 21 January 2003), Paragraphs 4, 5 and 6
(wording of 24 January 2002) of Article 56, Paragraph 3 (wording
of 28 January 2003) of Article 57, Paragraph 4 (wording of 24
January 2002) of Article 63, Paragraphs 2 and 3 (wording of 24
January 2002) of Article 70, Paragraphs 2 and 3 (wording of 24
January 2002) of Article 71, Paragraphs 2 and 3 (wording of 24
January 2002) of Article 72, Paragraph 2 (wording of 24 January
2002) of Article 73, Paragraph 1 (wording of 24 January 2002) of
Article 74, Paragraph 1 (wording of 24 January 2002) of Article
75, Paragraph 2 (wording of 21 January 2003) of Article 76,
Paragraph 3 (wording of 24 January 2002) of Article 77, Paragraph
2 (wording of 21 January 2003) of Article 78, Paragraph 2
(wording of 24 January 2002) of Article 79, Paragraphs 3 and 7
(wording of 24 January 2002) of Article 81, Paragraphs 3 and 7
(wording of 24 January 2002) of Article 90, Paragraphs 2 and 5
(wording of 24 January 2002) of Article 119, Items 3 and 4
(wording of 24 January 2002) of Article 120, Paragraph 2 (wording
of 24 January 2002) of Article 128 of the Republic of Lithuania
Law on Courts, of Item 13 (wording of 4 July 1996) of Paragraph 3
of Article 11, Paragraphs 1 and 3 (wording of 18 April 1995) and
Paragraph 4 (wording of 4 July 1996) of Article 17, Paragraph 3
(wording of 18 April 1995) of Article 18 of the Republic of
Lithuania Law 'The Statute of the Supreme Court of Lithuania' and
of Article 1 of Decree of the President of the Republic of
Lithuania No. 2048 'On the Dismissal of A Judge of the Regional
Court From Office' of 10 February 2003 with the Constitution of
the Republic of Lithuania" of 9 May 2006 inter alia recognised
that Paragraph 2 (wording of 24 January 2002) of Article 119 of
the Law on Courts to the extent that it establishes that not only
judges but also other persons compose the Council of Courts and
the provision "the President of the Supreme Court shall be, by
virtue of his office, the President of the Council of Judges" of
Paragraph 5 (wording of 24 January 2002) of Article 119 of the
Law on Courts were in conflict with the Constitution, therefore,
it is not expedient to further investigate in this constitutional
justice case the compliance of Item 1 (wording of 21 January
2003) of Paragraph 2 of Article 119 and Item 1 (wording of 24
January 2002) of Article 120 (wording of 21 January 2003) of the
Law on Courts, which are disputed by the petitioner, with the
Constitution.
2. At the Constitutional Court hearing, J. Sabatauskas, a
Member of the Seimas (who was representing the Seimas, the party
concerned, in the part of the case subsequent to the petition of
the Vilnius Regional Court, the petitioner) submitted his
explanations. According to this representative of the Seimas, the
party concerned, the provision of Paragraph 2 (wording of 28
February 2002) of Article 320 of the Code of Civil Procedure that
the court of appeal instance shall consider the case without
overstepping the limits established in the appeal, with the
exception when this is required by the public interest in the
course of consideration of the cases of the categories provided
for in Chapters XIX and XX of Part IV and in Part V of the Code
of Civil Procedure, which is disputed by the Vilnius Regional
Court, is not in conflict with the Constitution.
2.1. The position of the Vilnius Regional Court, the
petitioner, whereby, allegedly, the disputed legal regulation
might be in conflict with Paragraph 1 of Article 29 of the
Constitution is subject to doubt, since the limits of
consideration of an appeal, which are established in Paragraph 2
(wording of 28 February 2002) of Article 320 of the Code of Civil
Procedure, are valid to all participants of the procedure without
exception, regardless of their political views, gender,
nationality etc.
2.2. The exceptions when the court may overstep the limits
of the appeal are related to certain areas of life and to such
substantive legal relations which cannot be, nor are regulated
only by private law, since they are not dispositive.
Corresponding cases are called not dispositive ones.
For instance, in labour law there are elements of private
and public law, it consolidates the dialogue between social
partners (employers and employees), while both in substantive and
procedural law the protection of the weaker party (employee) of
the labour legal relation is bigger, therefore, the powers of the
court to overstep the limits of the appeal in corresponding cases
(analogous powers are enjoyed by the court of first instance as
well) is not to be assessed as a violation of the principle of
the autonomy of the parties (which is one of the most important
principles of private law). Also, in the Constitution special
attention is paid to family relations (Articles 38 and 39 of the
Constitution), although they are regulated by civil law, their
regulation in the Civil Code is in most cases based upon the ius
cogens norms; this specificity of family legal relations
determines rather limited disposition of the parties. While in
the course of consideration of cases of special legal
proceedings, the role of the court generally has nothing in
common with the implementation of the principle of the
disposition of the parties: in this case the principle of
formality is in operation, as the court does not settle the
dispute, but rather it "administers" the norms of substantive
law, it ensures their proper implementation in a concrete
situation of life and virtually it performs the executive
functions delegated to it by the state.
In addition, the duty of the court of appeal instance to
verify, irrespective of the limits of the appeal, whether there
have been any essential procedural violations in the court of
first instance (whether there are any absolute grounds of non-
validity of the decision) is also not related to the
implementation of the principles of the disposition and autonomy
of the parties. The civil procedure law is public law. The
essential procedural violations specified in Paragraph 2 (wording
of 28 February 2002) of Article 320 of the Code of Civil
Procedure mean that the person was in general not guaranteed the
right to apply to court nor the right to the proper process,
while this is violation of the constitutional principles as well.
It is due to this that the procedural laws of virtually all
European states consolidate the duty of the court of appeal
instance to verify ex officio whether there were not any such
violations in the course of consideration of the case in the
court of first instance.
2.3. The civil procedure law "serves" to the substantive
private law in which the most important principles of private law
are valid and are protected. From the constitutional principles
of inviolability of the person of the human being, the
inviolability of the private life of the human being and the
inviolability of property (respectively, Articles 21, 22 and 23
of the Constitution) the principle of the autonomy in private law
is derived, which determines the basic principles of the civil
procedure lawdisposition and contention: the parties have the
right to establish the content of their relations and their
limits, as well as applicable rules, and decide on how these
relations must be developed, but they also have a duty not to
violate the interests of one another, nor the freedom of their
self-determination. The fact that the court is bound by the
limits of both the claim and the appeal (save the discussed
situations) means that in the area of private law human rights
are really much protected against the interference of the state.
Should the powers of the court be renounced, unlimited
possibilities would be created for the state through the court to
interfere with all areas of private law regardless of the will of
the parties, while this would deny the said constitutional
principles and the essence of private law and would mean going
back to the Soviet model of civil procedure law.
2.4. As it is indicated in the petition of the Vilnius
Regional Court, the petitioner, the fact that, under Paragraph 2
(wording of 28 February 2002) of Article 353 of the Code of Civil
Procedure, the court of cassation may overstep the limits of the
cassation appeal, if this is required by the public interests is
compatible with Paragraph 2 (wording of 28 February 2002) of
Article 320 of the Code of Civil Procedure, which is disputed by
the petitioner. However, the cassation procedure differs in
essence from the appeal procedure: the court of first instance
and the court of appeal instance are designated for the parties
of the case, while the cassation procedure is virtually necessary
in order to meet the demands of societya public function is
performed in the cassation procedure. Besides, in the cassation
procedure only legal aspects of the case are considered; the
court of cassation is bound by the factual circumstances of the
case, which were established by the courts that had been
considering the case, the last of which is a court of appeal
instance, which has no right to assess those factual
circumstances, nor to investigate new evidence. Therefore,
according to the Member of the Seimas J. Sabatauskas, the
representative of the Seimas, the party concerned, the powers of
the cassation court to overstep the limits of the cassation
appeal, if this is required by the public interest, virtually
means a possibility for the court of cassation instance to more
broadly apply the principle iura novit curia without interfering
in the facts of the case. The court of cassation instance must
ensure the formation of uniform court practice in the course of
construction of law as well as the proper implementation of the
principle of a state under the rule of law.
The discussed powers of the court of cassation instance do
not violate the principle of autonomy of the parties, nor that of
disposition. Meanwhile, the establishment of corresponding powers
to the court of appeal instance would virtually deny the validity
of the most important principles recognised in the countries of
the western legal tradition in the civil procedure.
2.5. While deciding whether the legal regulation
established in Paragraph 2 (wording of 28 February 2002) of
Article 320 of the Code of Civil Procedure does not allow the
court of appeal instance to administer justice and thus Article
109 of the Constitution is violated (and the right of the person
to fair trial), one is to take account of the fact that not all
cases can be considered in the court of cassation procedure. In
the opinion of the Member of the Seimas J. Sabatauskas, the
representative of the Seimas, the party concerned, in this case
there are more doubts whether Paragraph 2 (wording of 28 February
2002) of Article 341 of the Code of Civil Procedure, which
establishes certain limits of the contested sum (value expression
of the claim), in case which are not reached the cases may not be
considered under cassation procedure, is in compliance with the
Constitution.
3. At the Constitutional Court hearing, M. Girdauskas and
G. Sagatys, the representatives of the party concerned, the
Seimas, virtually reiterated the arguments set forth in the
written explanations and also submitted additional explanations.
4. At the Constitutional Court hearing M. Vainiutė, a
representative of the President of the Republic, the party
concerned, virtually reiterated the arguments set forth in her
written explanations as well as those set forth in the written
explanations of Č. Atkočaitis, another representative of the same
party concerned, and submitted additional explanations. She also
submitted additional evidence to the Constitutional Courtcopies
of the documents related with the appointment of K. Ramelis as
the Chairman of the Civil Cases Division of the Vilnius Regional
Court.
The Constitutional Court
holds that:
I
On the compliance of Item 1 (wording of 24 January 2002) of
Paragraph 2 of Article 119 and Paragraph 5 (wording of 24 January
2002) of Article 119 of the Law on Courts with Articles 5, 109,
112, and 114 of the Constitution and the constitutional principle
of a state under the rule of law.
1. On 24 January 2002 the Seimas adopted the Republic of
Lithuania Law on Amending the Law on Courts by Article 1 whereof
it amended the Law on Courts (wording of 31 May 1994 with
subsequent amendments and supplements). The Law on Courts of this
new wording has been amended and/or supplemented more than once.
2. The group of Members of the Seimas, the petitioner,
inter alia requests to investigate whether Item 1 (wording of 24
January 2002) of Paragraph 2 of Article 119 of the Law on Courts
was not in conflict with Articles 5, 109, 112, and 114 of the
Constitution and the constitutional principle of a state under
the rule of law.
3. It was inter alia established in Paragraph 2 (wording of
24 January 2002) of Article 119 of the Law on Courts:
"The Council of Courts shall be composed of <
>:
1) by virtue of their office (ex officio)the President of
the Supreme Court, the President of the Court of Appeal, the
President of the Supreme Administrative Court, an authorised
representative of the President of the Republic, an authorised
representative of the Speaker of the Seimas, the Chairman or
Deputy Chairman of the Legal Affairs Committee of the Seimas, the
Chairman or Deputy Chairman of the Committee of Budget and
Finances of the Seimas, the Minister of Justice or the Vice
Minister authorised by him, the Minister of Finance or the Vice
Minister of Finance authorised by him <
>."
4. It was established in Paragraph 5 (wording of 24 January
2002) of Article 119 of the Law on Courts:
"The President of the Supreme Court shall be, by virtue of
his office, the President of the Council of Judges. The Council
of Courts shall elect the Deputy President and the Secretary of
the Council of Courts."
5. It is clear from the arguments of the group of Members
of the Seimas, the petitioner, that it doubts as to the
compliance of Paragraph 2 (wording of 24 January 2002) of Article
119 of the Law on Courts with the Constitution only to the extent
that, under Item 1 of the said paragraph, the Council of Courts
shall be composed of, by virtue of their office, an authorised
representative of the President of the Republic, an authorised
representative of the Seimas, the Chairman or Deputy Chairman of
the Legal Affairs Committee of the Seimas, the Chairman or Deputy
Chairman of the Committee of Budget and Finances of the Seimas,
the Minister of Justice or the Vice Minister authorised by him,
the Minister of Finance or the Vice Minister of Finance
authorised by him.
6. Although the group of Members of the Seimas, the
petitioner, requests to investigate whether inter alia entire
Paragraph 5 (wording of 24 January 2002) of Article 119 of the
Law on Courts is not in conflict with the Constitution, it is
clear from the arguments of the petitioner that he faced doubts
only whether the provision "the President of the Supreme Court
shall be, by virtue of his office, the President of the Council
of Judges" of the same paragraph is not in conflict with the
Constitution.
7. In the constitutional justice case subsequent to the
petition of a group of Members of the Seimas, the petitioner,
requesting to investigate whether Paragraph 3 of Article 57,
Paragraph 2 of Article 73, Paragraph 2 of Article 79 and
Paragraph 3 of Article 81 of the Law on Courts were not in
conflict with Article 29, Paragraph 2 of Article 109 and
Paragraphs 2 and 5 of Article 112 of the Constitution, also
petition of the Court of Appeal of Lithuania, the petitioner,
requesting to investigate whether the provision of Paragraph 3 of
Article 57 of the Law on Courts that the issue in respect of
extension of the judge's powers shall be decided in accordance
with the procedure for the appointment of a judge of an
appropriate court as laid down in this law, was not in conflict
with Paragraph 2 of Article 5, Paragraph 5 of Article 112,
Paragraph 2 of Article 109 and Paragraph 1 of Article 29 of the
Constitution and the constitutional principle of a state under
the rule of law, to the extent that, according to the Court of
Appeal of Lithuania, the petitioner, it established that the
President of the Republic of Lithuania may, by himself, refuse to
satisfy the request of the judge to extend his powers until he
reaches the age of 70 and dismiss that judge upon the expiry of
his powers, without applying to the Council of Courts for advice,
as well as whether Decree of the President of the Republic of
Lithuania No. 2048 "On the Dismissal of a Judge of the Regional
Court from Office" of 10 February 2003, by which Jurgis
Tautkevičius, a judge of the Panevėžys Regional Court, had been
dismissed from office upon the expiry of his powers, was not in
conflict with Paragraph 1 of Article 5, Paragraph 1 of Article
29, Paragraph 2 of Article 109, and Paragraph 5 of Article 112 of
the Constitution, with the constitutional principle of a state
under the rule of law, as well as with Paragraph 1 of Article 45,
with the provision of Paragraph 3 of Article 57 that the issue in
respect of extension of the judge's powers shall be decided in
accordance with the procedure for the appointment of a judge of
an appropriate court as laid down in this law, and with Paragraph
2 of Article 70 of the Law on Courts, also a petition of a group
of Members of the Seimas, the petitioner, requesting to
investigate whether Paragraph 2 (wording of 24 January 2002) of
Article 128 of the Law on Courts was not in conflict with Article
5, Paragraph 2 of Article 109 and Paragraph 1 of Article 114 of
the Constitution and the constitutional principle of a state
under the rule of law, the Constitutional Court adopted the
Ruling "On the compliance of Paragraph 2 (wording of 24 January
2002), Paragraph 3 (wording of 21 January 2003), Paragraphs 4, 5
and 6 (wording of 24 January 2002) of Article 56, Paragraph 3
(wording of 28 January 2003) of Article 57, Paragraph 4 (wording
of 24 January 2002) of Article 63, Paragraphs 2 and 3 (wording of
24 January 2002) of Article 70, Paragraphs 2 and 3 (wording of 24
January 2002) of Article 71, Paragraphs 2 and 3 (wording of 24
January 2002) of Article 72, Paragraph 2 (wording of 24 January
2002) of Article 73, Paragraph 1 (wording of 24 January 2002) of
Article 74, Paragraph 1 (wording of 24 January 2002) of Article
75, Paragraph 2 (wording of 21 January 2003) of Article 76,
Paragraph 3 (wording of 24 January 2002) of Article 77, Paragraph
2 (wording of 21 January 2003) of Article 78, Paragraph 2
(wording of 24 January 2002) of Article 79, Paragraphs 3 and 7
(wording of 24 January 2002) of Article 81, Paragraphs 3 and 7
(wording of 24 January 2002) of Article 90, Paragraphs 2 and 5
(wording of 24 January 2002) of Article 119, Items 3 and 4
(wording of 24 January 2002) of Article 120, Paragraph 2 (wording
of 24 January 2002) of Article 128 of the Republic of Lithuania
Law on Courts, of Item 13 (wording of 4 July 1996) of Paragraph 3
of Article 11, Paragraphs 1 and 3 (wording of 18 April 1995) and
Paragraph 4 (wording of 4 July 1996) of Article 17, Paragraph 3
(wording of 18 April 1995) of Article 18 of the Republic of
Lithuania Law 'The Statute of the Supreme Court of Lithuania' and
of Article 1 of Decree of the President of the Republic of
Lithuania No. 2048 'On the Dismissal of A Judge of the Regional
Court From Office' of 10 February 2003 with the Constitution of
the Republic of Lithuania" on 9 May 2006, whereby it inter alia
recognised that Paragraph 2 (wording of 24 January 2002) of
Article 119 of the Law on Courts to the extent that it
establishes that not only judges but also other persons compose
the Council of Courts was in conflict with Paragraph 2 of Article
5 and Paragraph 5 of Article 112 of the Constitution, the
constitutional principle of separation of powers, and the
constitutional principle of a state under the rule of law, and
that the provision "the President of the Supreme Court shall be,
by virtue of his office, the President of the Council of Judges"
of Paragraph 5 (wording of 24 January 2002) of Article 119 of the
Law on Courts is in conflict with Paragraph 2 of Article 5 of the
Constitution and the constitutional principle of a state under
the rule of law.
This Constitutional Court ruling is still in force.
8. Thus, the issue of the compliance of Paragraph 2
(wording of 24 January 2002) (inter alia that of Item 1 thereof
(to the extent disputed by the petitioner)) of Article 119 of the
Law on Courts as well as that of the provision "the President of
the Supreme Court shall be, by virtue of his office, the
President of the Council of Judges" of Paragraph 5 (wording of 24
January 2002) of the same article was decided in the aforesaid
Constitutional Court ruling of 9 May 2006.
9. By a decision, the Constitutional Court shall refuse to
consider petitions to investigate the compliance of a legal act
with the Constitution, if the compliance of the legal act with
the Constitution specified in the petition has already been
investigated by the Constitutional Court and the ruling on this
issue adopted by the Constitutional Court is still in force (Item
3 of Paragraph 1 of Article 69 of the Law on the Constitutional
Court). In the event that the grounds for refusal to consider a
petition have been established after the commencement of the
investigation of the case during the hearing of the
Constitutional Court, a decision to dismiss the case shall be
adopted (Paragraph 3 of Article 69 of the Law on the
Constitutional Court).
10. Taking account of the arguments set forth, one is to
hold that there are grounds to refuse to consider the petition of
the group of the Members of the Seimas, the petitioner,
requesting to investigate whether inter alia Item 1 (wording of
24 January 2002) of Paragraph 2 of Article 119 and Paragraph 5
(wording of 24 January 2002) of Article 119 of the Law on Courts
were not in conflict with Articles 5, 109, 112, and 114 of the
Constitution and the constitutional principle of a state under
the rule of law. This part of the case is to be dismissed.
II
On the compliance of Item 1 (wording of 24 January 2002) of
Article 120 (wording of 21 January 2003) of the Law on Courts
with Articles 5, 109, 112, and 114 of the Constitution and the
constitutional principle of a state under the rule of law.
1. The group of Members of the Seimas, the petitioner,
inter alia requests to investigate whether Item 1 (wording of 24
January 2002) of Article 120 of the Law on Courts (wording of 21
January 2003) was not in conflict with Articles 5, 109, 112, and
114 of the Constitution and the constitutional principle of a
state under the rule of law.
2. It was established in of Article 120 (wordings of 24
January 2002 and 21 January 2003) of the Law on Courts:
The Council of Courts shall:
1) elect the Vice President and the Secretary of the
Council of Courts <
>."
3. In the opinion of the group of Members of the Seimas,
the petitioner, the fact that under Item 1 (wording of 24 January
2002) of Article 120 (wording of 21 January 2003) of the Law on
Courts the Council of Courts did not have the right to elect its
President, since, under Paragraph 5 (wording of 24 January 2002)
of Article 119 of the Law on Courts, the President of the Supreme
Court ex officio had to be the President of the Council of
Courts, was in conflict with Articles 5, 109, 112, and 114 of the
Constitution and the constitutional principle of a state under
the rule of law.
4. On 23 May 2006, the Seimas adopted the Law on Amending
Articles 119, 120 and 121 of the Law on Courts by Article 2
whereof Article 120 (wording of 21 January 2003) of the Law on
Courts, which is disputed by the group of Members of the Seimas,
the petitioner, was amended and set forth differently. The Law on
Amending Articles 119, 120 and 121 of the Law on Courts came into
force on 27 May 2006.
5. In Paragraph 5 of Article 4 of the Law on Amending
Articles 119, 120 and 121 of the Law on Courts the notion
"Council of Courts" which used to be employed in the Law on
Courts (wording of 24 January 2002 with subsequent amendments and
supplements) was replaced by the notion "Judicial Council".
6. Article 120 (wording of 23 May 2006) of the Law on
Courts inter alia provides:
"The Judicial Council shall:
1) elect the President, Vice President and the Secretary of
the Judicial Council <
>."
7. In addition, by Article 1 of the Law on Amending
Articles 119, 120 and 121 of the Law on Courts, Article 119
(wording of 24 January 2002) of the Law on Courts was amended and
set forth in a new wording. Under Paragraph 5 (wording of 23 May
2006) of Article 119 of the Law on Courts, the Judicial Council
shall, by secret ballot and by simple majority of votes of all
members of the Judicial Council, elect the President, Vice
President and the Secretary of the Judicial Council.
8. It is also to be mentioned that Article 4 of the Law on
Amending Articles 119, 120 and 121 of the Law on Courts inter
alia provides that: upon entry into force of the Law on Amending
Articles 119, 120 and 121 of the Law on Courts, inter alia the
powers of the President of the Council of Courts shall cease
(Paragraph 1); upon entry into force of the Law on Amending
Articles 119, 120 and 121 of the Law on Courts, members of the
Council of Courts shall temporarily become members of the
Judicial Council, the first sitting of the Judicial Council shall
be convened within seven days by the eldest member (judge) of
this Judicial Council and shall preside over it, while the
President, Vice President and the Secretary of the Judicial
Council shall be elected in this meeting by the majority of votes
of not less than half of votes of all members of the Judicial
Council; the powers of this Judicial Council shall continue until
a new Judicial Council is formed under the procedure established
in the Law on Amending Articles 119, 120 and 121 of the Law on
Courts (Paragraph 2); within 30 days of its first sitting, the
Judicial Council provided for in Paragraph 2 of the same article
shall convene the General Meeting of Judges in which, under the
procedure established in Article 119 of the Law on Courts, which
is set forth in Article 1 of the Law on Amending Articles 119,
120 and 121 of the Law on Courts, members of the Judicial Council
are elected; in this meeting the members of the Judicial Council
are elected according to the number of places established to the
court (courts) subsequent to Article 119 of the Law on Courts set
forth in Article 1 of the said law; within seven days the
Judicial Council shall be convened to its first sitting by the
eldest member of the Judicial Council and shall preside over it
until the President of the Council of Courts is elected
(Paragraph 3); under Paragraph 3 of the same article, the powers
of the Judicial Council which is under the procedure established
in Article 119 of the Law on Courts, which is set forth in
Article 1 of the Law on Amending Articles 119, 120 and 121 of the
Law on Courts, shall continue until 31 December 2006 (Paragraph
4).
9. Thus, upon entry into force of the Law on Amending
Articles 119, 120 and 121 of the Law on Courts, the legal
regulation that the Council of Courts (under the amended Law on
Courtsthe Judicial Council) did not have the right to elect its
President, since the President of the Supreme Court ex officio
had to be the President of the Council of Courts, i.e. the legal
regulation which used to be consolidated expressis verbis in
formerly valid Paragraph 5 (wording of 24 January 2002) of
Article 119 of the Law on Courts and, according to the group of
Members of the Seimas, the petitioner, in Article 120 (wordings
of 24 January 2002 and 21 January 2003) and Item 1 thereof the
Law on Courts, disappeared; as mentioned, under Article 120
(wording of 23 May 2006) of the Law on Courts and Item 1 thereof
the Judicial Council elects inter alia its President, i.e. the
Law on Courts ((wording of 24 January 2002 with subsequent
amendments and supplements made also by the Law on Amending
Articles 119, 120 and 121 of the Law on Courts) consolidates the
legal regulation of the relations linked with the occupation of
the office of the President of the special institution of judges
provided for in Paragraph 5 of Article 112 of the Constitution is
opposite to the one the compliance of which with the Constitution
is disputed by the group of Members of the Seimas, the
petitioner.
In this context one is also to mention the fact that, as
held in this Constitutional Court ruling, the part of the case
regarding the compliance of Paragraph 5 (wording of 24 January
2002) of Article 119 of the Law on Courts, which used to provide
that the President of the Supreme Court shall be, by virtue of
his office, the President of the Council of Courts, with Articles
5, 109, 112, and 114 of the Constitution and the constitutional
principle of a state under the rule of law, is to be dismissed.
10. 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). In its acts the Constitutional Court has
held more than once that the Constitutional Court, by taking
account of the circumstances of the considered constitutional
justice case, may dismiss the instituted legal proceedings on the
ground provided for in Paragraph 4 (wording of 11 July 1996) of
Article 69 of the Law on the Constitutional Court when it was
applied to not by a court, but some other subject specified in
Article 106 of the Constitution. This can be said also about the
situations when the disputed legal act (part thereof) was not
repealed, however, the legal regulation established in it was
changed (Constitutional Court ruling of 4 March 2003, decision of
14 March 2006 (case No. 3/05), rulings of 30 March 2006 and 14
April 2006).
11. Taking account of the arguments set forth, the part of
the case regarding the compliance of Item 1 (wording of 24
January 2002) of Article 120 (wording of 21 January 2003) of the
Law on Courts with Articles 5, 109, 112, and 114 of the
Constitution and the constitutional principle of a state under
the rule of law is to be dismissed.
III
On the compliance of Paragraph 3 (wording of 19 September
2000) of Article 85, and Paragraphs 2 and 3 (wording of 19
September 2000) of Article 139 of the Law on the Proceedings of
Administrative Cases with of Articles 109 and 117 of the
Constitution as well as the constitutional principle of a state
under the rule of law.
1. The group of Members of the Seimas, the petitioner,
inter alia requests to investigate:
- whether Paragraph 3 (wording of 19 September 2000) of
Article 85 of the Law on the Proceedings of Administrative Cases
to the extent that, according to the group of Members of the
Seimas, the petitioner, it provides that the introductory and
resolution parts of the decision shall be drawn up and announced,
as a rule, on the same day after the consideration of an
individual case, while the parts of the decision comprising the
recital and the reasoning shall be drawn up within seven working
days after the announcement of the decision, is not in conflict
with Articles 109 and 117 of the Constitution and the
constitutional principle of a state under the rule of law;
- whether Paragraphs 2 and 3 (wording of 19 September 2000)
of Article139 of the Law on the Proceedings of Administrative
Cases to the extent that, according to the group of Members of
the Seimas, the petitioner, they provide that the introductory
and resolution parts of the decision or the ruling shall be drawn
up and announced together with setting forth short reasoning
after the consideration of a case, while the parts of the
decision comprising the recital and the reasoning shall be drawn
up within seven working days after the announcement of the
decision or the ruling, are not in conflict with Articles 109 and
117 of the Constitution and the constitutional principle of a
state under the rule of law.
2. On 14 January 1999, the Seimas adopted the Republic of
Lithuania Law on the Proceedings of Administrative Cases which
came into force on 1 May 1999. Later it was amended and
supplemented.
3. On 19 September 2000, the Seimas adopted the Republic of
Lithuania Law on Amending the Law on the Proceedings of
Administrative Cases by Article 1 whereof it amended the Law on
the Proceedings of Administrative Cases (wording of 14 January
1999 with subsequent amendments and supplements) and set it forth
in a new wording. The Law on the Proceedings of Administrative
Cases of the new wording came into force on 1 January 2001.
The Law on the Proceedings of Administrative Cases (wording
of 19 September 2000) was amended/or supplemented by the Republic
of Lithuania Law on Amending Articles 2 and 26 of the Law on the
Proceedings of Administrative Cases, which was adopted by the
Seimas on 26 June 2001, the Republic of Lithuania Law on Amending
Articles 13, 21 and 46 of the Law on the Proceedings of
Administrative Cases, which was adopted by the Seimas on 12 March
2002, the Republic of Lithuania Law on Amending Articles 16 and
109 of the Law on the Proceedings of Administrative Cases, which
was adopted by the Seimas on 3 April 2003, the Republic of
Lithuania Law on Amending and Supplementing the Law on Courts,
the Law on the Proceedings of Administrative Cases, the Code of
Civil Procedure and the Code of Criminal Procedure (with
amendments and supplements made by the Republic of Lithuania Law
on Amending Articles 1 and 2 of the Fourth Chapter of the Law on
Amending and Supplementing the Law on Courts, the Law on the
Proceedings of Administrative Cases, the Code of Civil Procedure
and the Code of Criminal Procedure, which was adopted by the
Seimas on 16 September 2003), which was adopted by the Seimas on
8 April 2003, and the Republic of Lithuania Law on Amending and
Supplementing Articles 15, 18, 19 and 22 of the Law on the
Proceedings of Administrative Cases, which was adopted by the
Seimas on 11 November 2004.
Paragraph 3 (wording of 19 September 2000) of Article 85
and Paragraphs 2 and 3 (wording of 19 September 2000) of Article
139 of the Law on the Proceedings of Administrative Cases the
compliance of which (to the corresponding extent) with the
Constitution is disputed by the group of Members of the Seimas,
the petitioner, in the constitutional justice case at issue have
not been amended and/or supplemented and at the time of the
consideration of this constitutional justice case are in force.
Article 85 titled "Adoption of the Decision" (wording of 19
September 2000) of the Law on the Proceedings of Administrative
Cases, the compliance of which with the Constitution is disputed
by the group of Members of the Seimas, the petitioner, and which
is set forth in Section Thirteen "Court Decisions" of Part I
"General Proceedings of Administrative Cases" of Chapter II
"Proceedings in the Court of the First Instance", provides:
"1. The decision in the case considered on the merits shall
be rendered by the administrative court in the deliberation room
by a majority vote of the judges. The judges shall have no right
to refuse to vote or to abstain, also to disclose the opinions
voiced during the deliberations in the deliberation room. The
presiding judge shall be the last to vote. The decision rendered
shall be signed by al the judges participating in the sitting.
2. The judge whose opinion of the case differs from that of
the majority of the judges may write his dissenting opinion. The
dissenting opinion shall not be announced publicly, but shall be
attached to the case file.
3. The introductory and resolution parts of the decision
shall be drawn up and announced, as a rule, on the same day after
the consideration of an individual case. The parts of the
decision comprising the recital and the reasoning shall be drawn
up no later than within seven working days after the announcement
of the decision.
4. If the respondent fully allows the claims of the
claimant, the court may present in the decision an abridged
reasoning indicating: the circumstances determined by the court,
the evidence upon which the conclusions made by the court are
based, the laws by which the court was governed.
5. The decision in the cases regarding the legality of the
administrative regulation and in other complex cases may be
rendered and promulgated not on the same day, but not later than
after ten days from the disposition of the case. The parties to
the proceedings shall be notified of the date when the decision
will be promulgated and a notice to the effect shall be made in
the minutes of the court sitting. During the time when the
decision is being drafted, the judges of the college may consider
other cases. The decision or the ruling the passing and
announcement whereof has been postponed may be promulgated by one
of the judges who considered the case, other judges of the
chamber not participating.
6. The decision of the administrative court shall be
rendered and promulgated in the name of the Republic of
Lithuania."
Article 139 titled "Rendering and Pronouncement of the
Decision or Ruling" of the Law on the Proceedings of
Administrative Cases (wording of 19 September 2000) the
compliance of which with the Constitution is disputed by the
group of Members of the Seimas, the petitioner, and which is set
forth in Section Twenty One "Decisions of the Court of Appeal
Instance" of Chapter III "Proceedings in the Court of Appellate
Jurisdiction", provides:
"1. Where oral hearing of the case is held, after the
closing statements by the participants in the proceedings the
court shall retire to the deliberation room to adopt the decision
or ruling.
2. Having adopted the decision or ruling, the court shall
return to the courtroom and the chairman of the college or the
judge rapporteur shall read out the introductory and resolution
parts of the decision or ruling, briefly define the reasoning of
the decision or ruling and inform when the full text of decision
or ruling will be drawn up.
3. The complete text of the decision or ruling shall be
presented in writing and signed by all the judges within seven
days from the adoption thereof.
4. By way of exception, having regard to the complexity and
scope of the case, the college of judges considering the case on
appeal may, by virtue of a reasoned ruling, postpone the
rendering and pronouncement of the judgement or ruling for not
longer than a ten-day period. During the preparation of the
judgement or ruling, the judges of the chamber may consider other
cases.
5. The judgement or ruling the rendering and pronouncement
whereof was postponed may be pronounced by one of the judges who
considered the case, in the absence of other judges of the
chamber."
6. The doubts of the group of Members of the Seimas, the
petitioner, regarding the compliance of Paragraph 3 (wording of
19 September 2000) of Article 85 and Paragraphs 2 and 3 (wording
of 19 September 2000) of Article139 of the Law on the Proceedings
of Administrative Cases (to the corresponding extent) with
Articles 109 and 117 of the Constitution and the constitutional
principle of a state under the rule of law are substantiated by
the fact that, according to the group of Members of the Seimas,
the petitioner, under theses paragraphs of the articles of the
Law on the Proceedings of Administrative Cases, the
administrative court adopts and publicly announces its final
court act without drawing up a reasoning substantiating itthe
reasoning is drawn up later.
7. Article 109 of the Constitution provides: in the
Republic of Lithuania, justice shall be administered only by
courts (Paragraph 1); while administering justice, the judge and
courts shall be independent (Paragraph 2); when considering
cases, judges shall obey only the law (Paragraph 3); the court
shall adopt decisions in the name of the Republic of Lithuania
(Paragraph 4).
Paragraph 1 of Article 117 of the Constitution provides
that in all courts, the consideration of cases shall be public; a
closed court hearing may be held in order to protect the secrecy
of private or family life of the human being, or where public
consideration of the case might disclose a state, professional or
commercial secret.
It needs to be noted that the legislator must regulate the
court proceedings by means of laws so that rational organisation
of court work might be ensured.
8. When construing Article 109 of the Constitution in the
context of other provisions of the Constitution, inter alia that
of the constitutional principles of a state under the rule of
law, justice, proper legal process, legal clarity, legal
certainty and publicity of law, in its ruling of 16 January 2006
the Constitutional Court held:
"The constitutional imperatives that only the 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 court judgement (or another final
act of the court) must be based on legal arguments (reasoning).
The argumentation must be rational: the court judgement (or
another final act of the court) must contain as many arguments so
that it is sufficient to ground the court judgement (or another
final act of the court). In this context it needs to be noted
that the requirement of legal clarity, which arises from the
constitutional principle of a state under the rule of law, inter
alia means that a court judgement (or another final act of the
court) cannot contain any concealed arguments, nor any non-
specified circumstances, which are important for the adoption of
a just court judgement (or another final act of the court). Court
judgements (other final acts of the court) must be clear to the
persons participating in the case as well as other persons. If
this requirement is disregarded, then this is not the
administration of justice which is entrenched in the
Constitution.
While construing Article 109 of the Constitution in the
context of the requirements of legal clarity, legal certainty,
and legal publicity, as well as the requirement to ensure human
rights and freedoms, which arise from the constitutional
principle of a state under the rule of law, it needs to be noted
that administration of justice implies also that a court
judgement (or another final act of the court) is an integral
legal act in which the ruling part is grounded on the arguments
set forth in the part of reasoning. This inter alia means that
when the court judgement (or another final act of the court) is
officially published, it must contain all arguments upon which it
is grounded, that the arguments (or part thereof) of a court
judgement (or another final act of the court) cannot be submitted
by the court after the official publishing of the court judgement
(or another final act of the court), and that after the official
publishing of the court judgement (or another final act of the
court), the court may not change or otherwise correct its
arguments.
In this context it needs to be noted that if a court
judgement (or another final act of the court) was published
officially, which is not grounded on legal arguments or which is
grounded only on certain part of the arguments, and the remaining
part of the arguments is made public after the official
publishing of the court judgement (or another final act of the
court), justice would not be administeredthere would always be a
reasonable doubt that such arguments only seek to justify the
court judgement (or another final act of the court) that was
adopted a priori.
Under the Constitution, the legislator enjoys powers to
establish reasonable terms within which a reasoned court
judgement (or another final act of the court) must be published,
and, if necessary, to establish exceptions to the establishment
of general rules.
It needs to be noted that the said requirements concerning
the reasoning of the judgement (or another final act of the
court), its publishing and terms are applicable mutatis mutandis
not only to the criminal procedure, but also to other types of
legal proceedings."
9. In the context of the constitutional justice case at
issue, it needs to be emphasised that no cited doctrinal
provision of the Constitutional Court ruling of 16 January 2006
may be construed as the one which constitutionally obligates the
court not only to draw up its final act (decision, ruling) before
it is adopted, but also to announce it in the courtroom by
reading aloud the entire text of that final act (which sometimes
might be very long).
Alongside, it needs to be noted that the legislator, while
seeking to ensure rational organisation of the work of the court
and by taking account of the peculiarities of individual kinds of
proceedings, may provide, by means of a law, certain specially
discussed exceptions when the final court act not necessarily
should be read aloud in the courtroom; in such cases the final
court act must be announced publicly in another way. It needs to
be emphasised that when the said exceptions are established by
means of a law, no preconditions may be created by which the
rights and freedoms of the person and other constitutional values
are violated.
Of course, while paying heed to the constitutional
imperative of publicity of law, the introductory and resolution
parts of the adopted final court act which is signed by the
judges cannot be not announced publicly by reading them aloud in
the courtroom (save the said exceptions). As regards the reading
aloud of other parts of a final court act in the courtroom, the
legislator may also establish a different legal regulation; the
legal regulation would most appropriately conform to various
provisions of the Constitution (inter alia the requirement of
publicity of law) whereby the court is able to decide, at its
discretion, as to which part or parts of its final act must be
announced publicly by reading them aloud in the courtroom, save
the introductory and resolution parts, which must always be read
aloud in the courtroom (save the said exceptions). If a final
court act is adopted and signed by all judges who have considered
the case, the non-reading aloud of this part of the act is not to
be regarded as a deviation from justice, publicity of law and
other constitutional imperatives. The most important thing here
is not that the entire final court act (inter alia all the
arguments substantiating itthe reasoning of its adoption) should
be read aloud in the courtroom, but that it all would be drawn up
before that final court act is adopted, i.e. before the judges
vote on it and sign it and before the public announcement of the
final court act, also that right after the court hearing in which
the corresponding final court act is announced, immediately, i.e.
within the reasonable and possibly shortest time, that final
court act (its copy) would be accessible to the parties to the
case as well as other participants of the proceedings to whom the
final court act directly raises certain legal effects, as well as
to the institutions which must execute corresponding court
decisions.
10. By each final court act justice is administered in a
corresponding case. The final court act adopted in a
corresponding case is one act of application of law, whereby that
case is finished. Thus, a final court act is one legal act, one
document, but not several legal acts-documents, let alone not
several legal acts-documents, which are drawn up and signed at
different time. A final court act cannot be a not integral act.
It, as an integral legal act, must be signed by all judges who
have considered the case. A final court act cannot be ambiguous;
it must be clear and comprehensible already at the time when the
decision on merits regarding the considered issue is adopted and
publicly announced, but not such an act, which would make the
parties and other participants of the proceedings guess why and
due to what reasoning precisely that and not different court
decision was adopted.
It needs to be especially emphasised that the requirement
for integrity of a final court act (by which justice is
administered in a corresponding case) expresses the
characteristic of such act, without which this act would not be
an act of administration of the justice that is provided for in
the Constitution, thus, under the Constitution, it would not be
an act of administration of justice.
The requirement of integrity of a final court act which
arises from the Constitution also means that the part of
resolution of such act always must, without exceptions, be
substantiated by the circumstances and arguments which are set
forth expressis verbis in the recital and/or the reasoning (if,
according to laws, there must be a separate part of recital or
separate part of reasoning). Thus, a final court act may not,
under any circumstances, be "stitched" from separate fragments,
which were drawn up at different time.
It needs to be held that the requirement of integrity of a
final court act which arises from the Constitution and the
constitutional imperative that the court adopts decisions in the
name of the Republic of Lithuania, that a final court act,
regardless of whether it is announced in its entirety (by reading
it aloud) in the courtroom, or whether only its introductory and
resolution parts are announced, or whether it is made public in
another way (if this is one of the exceptions discussed in this
Constitutional Court ruling and which is constitutionally
allowed), must always be signed by all the judges who have
considered the case. If such court decision is not confirmed by
the signatures of the judges (or if some its fragments as
separate documents were signed by the judges, while other
fragments were not or were signed not by all judges) it is not to
be regarded as a final court act and its reasonability and
lawfulness may be questioned.
The law must establish the legal regulation which would
effectively guarantee that such decisions, which have not been
signed by the judges, be not adopted nor announced, and should
they still be adopted, there should be a possibility to challenge
them.
11. The principle of justice entrenched in the Constitution
as well as the provision that justice is administered solely by
courts mean that the constitutional value is not the adoption of
a decision in court, but rather the adoption of a just court
decision. The constitutional concept of justice implies not only
a formal and nominal justice administered by the court, not only
an outward appearance of justice administered by the court, but,
most importantly, such court decisions (other final court acts),
which by their content are not unjust. The justice administered
only formally by the court is not the justice which is
consolidated in and protected and defended by the Constitution.
In the context of the constitutional justice case at issue
it needs to be specially emphasised that the drawing up of any
final court act (decision, judgement, ruling) before its official
adoption (i.e. when the judges vote on it and sign it) and its
official announcement is not an end in itself, rather, it is a
means permitting to ensure that all circumstances important to
the case will be established precisely before a corresponding
final court act is officially adopted and publicly announced,
that all important arguments will be assessed and all of them
weighed properly before that final court act is officially
adopted, that legal acts will be properly applied, etc. The fact
is of no less importance that the drawing up of a final court act
before it is officially adopted and publicly announced is one of
the means permitting to achieve the situation where all judges of
the college (in cases when the case is considered not by one
judge, but by a college of judges) will equally understand all
the arguments substantiating the final court act (even if they
will interpret and assess these arguments differently), because
only after the argumentsthe reasoning of its adoption
substantiating the final court act are drawn up, it is possible
to verify and ascertain that they are not inconsistent, that they
do not conflict with one another and are without other faults,
and if this is soto correct these arguments; therefore, it is
necessary that they be drawn up before the final court act is
officially adopted and announced.
Thus, the drawing up of a final court act before its
official adoption and public announcement is one of legal
guarantees that in a corresponding case justice will be
administered; in contrary case, i.e. if the final court act is
not substantiated by legal arguments or is substantiated only by
certain part of the arguments, while the other part of the
arguments is drawn up and made public later, after public
announcement of the corresponding final court act, justice would
not be administered, since there will always be a reasonable
doubt whether these arguments drawn up later do not seek to
justify the final court act adopted a priori, thus, there will
also be a doubt whether the final court act is actually
substantiated only by the arguments (reasoning) that are formally
drawn up therein.
12. Alongside, it needs to be noted that the legislator
enjoys unquestionable powers to legislatively establish a
structure of the final court act, inter alia the fact that in the
final court act there should be a separate part or parts where
certain circumstances of the state, the arguments etc. must be
set forth. Besides, the legislator, while taking account of the
variety of kinds of considered cases, the peculiarities of the
legal proceedings in consideration of cases of certain categories
and other important factors, may legislatively establish also a
different structure of the final court act to cases of certain
categories and/or to certain courts.
However, under the Constitution it is not permitted to
establish any such legal regulation whereby the court should or
could adopt at its discretion, let alone adopt and publicly
announce, its final acts not in their entirety, but only a
certain part or parts thereof, inter alia its resolution part,
which is not substantiated by the arguments drawn up, i.e. set
forth expressis verbis, nor by the specified circumstances in
that final act, and that these arguments could be drawn up and
the circumstances could be specified some time later.
13. As mentioned, a final court act must be clear ad
comprehensible already at the time when the decision on merits
regarding the considered issue is adopted and publicly announced,
but not such an act, which would make the parties and other
participants of the proceedings guess why and due to what
reasoning precisely that and not different court decision was
adopted.
In this context it needs to be mentioned that if a final
court act is drawn up not in its entirety before it is officially
adopted and publicly announced, especially when its resolution
part is announced before the argumentsthe reasoning of adoption
the final court actsubstantiating it are drawn up, then during
the whole time until these arguments (reasoning) are drawn up,
there will always be a possibility that a certain judge or judges
of the college that has considered the case and adopted the
decision on merits (which was set forth in the resolution part of
the corresponding final court act), due to certain circumstances
of life, from which no one is immune, which are always possible
and may fall upon each human being (for example, sickness,
accident, or even death), will not be able to continue its
participation in drawing up the arguments substantiating the
court decision (its resolution part) that had already been
adopted and publicly announced. Thus, in such cases the final
court act in general will not be able to be drawn up, it,
although publicly announced (i.e. although its resolution part
has been announced), will remain unfinished and not full-fledged,
or the said arguments will be drawn up (will be signed) not by
all the judges of the college, but only some of them, in other
words, the composition of the court will not be exactly the same.
While if the case was investigated not by a college of judges,
but by one judge, the said circumstances of life, should they
occur, would lead to a situation where there would be no one who
could draw up the argumentsthe reasoning of adoption the final
court actsubstantiating it, after its resolution part has been
adopted and publicly announced. It is clear that in such cases
justice would be administered only formally, thus, in reality, it
would not be administered.
14. Summing up, it needs to be held that the Constitution
does not tolerate any such legal and factual situation, where a
final court act (decision, judgment, ruling) is officially
adopted and publicly announced not in its entirety, inter alia
when the resolution part (in which a decision on merits is set
forth) is officially adopted and publicly announced, while the
argumentsthe reasoning of adoption of the final court act
substantiating it (i.e. the court decision set forth in the
resolution part) are drawn up later, post factum.
Under the Constitution, such final court acts are not be
regarded as acts of administration of justice, which, under the
Constitution, are adopted in the name of the Republic of
Lithuania; quite to the contrary, such final court acts
themselves can create preconditions to violate the rights and
freedoms of the person and other values entrenched in and
defended and protected by the Constitution.
15. While deciding whether Paragraph 3 (wording of 19
September 2000) of Article 85 Paragraphs 2 and 3 (wording of 19
September 2000) of Article 139 of the Law on the Proceedings of
Administrative Cases which are disputed by the group of Members
of the Seimas, the petitioner, are not in conflict (to the
corresponding extent) with the Constitution, one is to take into
consideration the legal regulation established in other
paragraphs of these articles, also Article 87 titled "Contents of
the Decision" of the Law on the Proceedings of Administrative
Cases Paragraph 1 whereof provides that the decision of the court
shall consist of the introductory part, the recital, the
reasoning and the resolution part; Paragraph 2 whereof provides
that the following shall be indicated in the introductory part of
the decision: time and place of rendering of the decision (Item
1); the title of the court which rendered the decision (Item 2);
the composition of the court, the recording clerk of the court
sitting, the parties, other participants in the proceedings (Item
3); the subject matter of the dispute (Item 4); Paragraph 3
whereof provides that the following shall be indicated in the
recital of the decision: the claims of the claimant (Item 1); the
replications by the respondent (Item 2); explanations by other
participants in the proceedings (Item 3); Paragraph 4 whereof
provides that the following shall be indicated in the part of the
decision where the reasoning thereof is given: the circumstances
of the case established by the court (Item 1); the evidence on
which the judicial opinion is based (Item 2); the arguments based
whereon the court finds certain evidence inadmissible (Item 3);
the laws invoked by the court, references to specific norms that
were applied (Item 4); Paragraph 5 whereof provides that the
following shall be indicated in the resolution part of the
decision: the conclusion of the court to grant the application in
full or in part, at the same time setting forth the contents of
the allowed claim, or to dismiss the application (Item 1); the
apportionment of legal costs (Item 2); the time limits and
procedure of appeal against the decision (Item 3). One is also to
take account of Article 106 titled "Contents of a Ruling" of the
Law on the Proceedings of Administrative Cases Paragraph 1
whereof provides that the following must be indicated in an
ruling: the time and venue of making of the ruling (Item 1); the
title of the court, the composition of the court, also the
recording clerk of the court sitting, if the decision is adopted
in oral proceedings (Item 2); the participants in the proceedings
and the subject matter of the dispute (Item 3); the issue in
respect of which the ruling is made (Item 4); the reasoning on
the basis whereof the judges have arrived at their conclusions
and the laws invoked by the court (Item 5); court decision (Item
6); procedure and time limits of appealing the ruling (Item 7);
Paragraph 2 whereof provides that the ruling adopted by the court
without withdrawing to the deliberation room must contain the
data specified in Items 4, 5 and 6 of Paragraph 1 of this
article.
16. The legal regulation established in Paragraph 3
(wording of 19 September 2000) of Article 85 of the Law on the
Proceedings of Administrative Cases, which is disputed by the
group of Members of the Seimas, the petitioner, is to be
construed as including the following provisions:
- the decision of the administrative court of first
instance is adopted and announced as a rule on the same day after
consideration of the case (which is called an "individual" one);
- the drawn up introductory and resolution parts of the
decision of the administrative court of first instance must
always be publicly announced (in the courtroom);
- the recital and the reasoning of the decision of the
administrative court of first instance may be drawn up later, but
not later than within seven working days of the announcement of
the decision.
16.1. Although some formulas of Paragraph 3 (wording of 19
September 2000) of Article 85 of the Law on the Proceedings of
Administrative Cases are worded as expressing certain imperative,
but not dispositive provisions, this paragraph is to be construed
by way of application of not only the linguistic (verbal), but
also other methods of construction of law, inter alia the
systemic and teleological ones, and also by taking account of the
constitutional imperative of the integrity of a final court act,
which stems from the Constitution, and the constitutional concept
of the court as the institution which administers justice in the
name of the Republic of Lithuania. Thus, one is to hold that
Paragraph 3 (wording of 19 September 2000) of Article 85 of the
Law on the Proceedings of Administrative Cases does not establish
any prohibition to the administrative court of first instance to
decide by itself, after it has considered a case, whether to
adopt a decision, which would be composed of only the
introductory and resolution parts, and publicly announce it on
the same day, while later (but not later than within seven
working days of the announcement of the decision) to draw up the
recital and the reasoning parts of its decision that was already
announced, or on the same day to adopt a decision, which would be
composed of not only the introductory and resolution parts, but
also the recital and reasoning parts, and, on the same day,
publicly to announce the entire decision.
16.2. Thus, Paragraph 3 (wording of 19 September 2000) of
Article 85 of the Law on the Proceedings of Administrative Cases
which is disputed by the group of Members of the Seimas, the
petitioner, establishes the legal regulation whereby a decision
of the administrative court of first instance may be adopted and
publicly (in the courtroom) announced by drawing up only its
introductory and resolution parts and without drawing up its
recital and reasoning parts. It means that it is permitted that
one adopt and announce the decision of the administrative court
of first instance without indicating: the demands of the
claimant; the replications of the respondent; the explanations of
other participants of the proceedings; the circumstances
established by the court; the evidence upon which court
conclusions are based; the arguments due to which the court
rejects certain evidence; the laws invoked by the court, the
indications to concrete norms which were applied. It is contented
by the fact that the decision of the administrative court of
first instance always indicates: the time and venue of making of
the ruling; the title of the court that has adopted the decision;
the composition of the court; the recording clerk of the court
hearing; the participants in the proceedings; the subject matter
of the dispute; the conclusion of the court to grant the
application in full or in part, at the same time setting forth
the contents of the allowed claim, or to dismiss the application;
the apportionment of legal costs; the time limits and procedure
of appeal against the decision.
16.3. Such decision of the administrative court of first
instance, which is composed only of the introductory and
resolution parts and which does not contain the recital and
reasoning parts, and which is permitted by the legal regulation
established in Paragraph 3 (wording of 19 September 2000) of
Article 85 of the Law on the Proceedings of Administrative Cases,
especially when account is taken of what, under Article 87
(wording of 19 September 2000) of this law, should be specified
in the recital and reasoning parts of the court decision,
however, this not being specified in that court decision, is to
be regarded as a court decision without the argumentsthe
reasoning of its adoptionthat substantiate it, since as long as
the arguments that substantiate that court decisionthe reasoning
of its adoptionare not drawn up, they are not, nor can they be
regarded as those set forth in any objective form, they are not,
nor can they be accessible to other persons, nor are they
adequately understood by these persons and (at best) they exist
only in the mind (minds) of the judge (judges) who has (have)
adopted that decision. They are not public.
16.4. Under Paragraph 3 (wording of 19 September 2000) of
Article 85 of the Law on the Proceedings of Administrative Cases,
the decision of the administrative court of first instance is
adopted and announced "as a rule" on the same day after
consideration of the "individual" case. By no means does this
mean that the decision of the administrative court of first
instance must be publicly announced necessarily on the same day
when the case has been considered: it is established in Paragraph
5 (wording of 19 September 2000) of Article 85 of the Law on the
Proceedings of Administrative Cases that the decision in the
cases regarding the legality of the administrative regulation and
in other "complex" cases may be rendered and announced not on the
same day, but not later than after ten days from the disposition
of the case; in this paragraph this is referred to as
"postponement" of the adoption and announcement of the decision
(ruling). However, also in such cases the decision of the
administrative court of first instance may be adopted by drawing
up only the introductory and resolution parts which are publicly
announced, while its recital and reasoning parts may be drawn up
later, but "no later than within seven working days after the
announcement of the decision" (Paragraph 3 (wording of 19
September 2000) of Article 85 of the Law on the Proceedings of
Administrative Cases).
16.5. Alongside, it needs to be noted that, under Article
142 (wording of 19 September 2000) of the Law on the Proceedings
of Administrative Cases, violation of the procedural legal norms
or an error in applying the norms shall warrant the reversing of
the judgement only when the violation could have been the cause
of erroneous disposition of the case (Paragraph 1), while one of
grounds of non-validity of a court decision is recognition that
the decision or ruling is without reasoning. It also needs to be
mentioned that, under Article 153 (wording of 19 September 2000)
of the Law on the Proceedings of Administrative Cases, if a case
has been disposed of by virtue of an effective court decision or
ruling, the proceedings may be resumed on the grounds that inter
alia the decision, ruling is without reasoning (Paragraph 1, Item
8 of Paragraph 2).
16.6. Under Paragraph 4 (wording of 19 September 2000) of
Article 85 of the Law on the Proceedings of Administrative Cases,
if the respondent fully allows the claims of the claimant, the
court may present in the decision "abridged reasoning"
indicating: the circumstances determined by the court, the
evidence upon which the conclusions made by the court are based,
the laws by which the court was governed.
It needs to be emphasised that the provision on drawing up
"abridged reasoning" of Paragraph 4 (wording of 19 September
2000) of Article 85 of the Law on the Proceedings of
Administrative Cases is to be construed by taking account of the
fact that, under the Constitution, the final court act must
contain as many arguments as it is necessary to substantiate that
final court act, it may not contain any suppressed arguments, nor
any non-specified circumstances, which are of importance to the
adoption of the final court act. The final court act must be
clear to the persons who participate in the case as well as other
persons.
If one compares the provision of Paragraph 4 (wording of 19
September 2000) of Article 85 of the Law on the Proceedings of
Administrative Cases that if the respondent fully allows the
claims of the claimant, the court may present in the decision
"abridged reasoning" indicating the circumstances determined by
the court, the evidence upon which the conclusions made by the
court are based, the laws by which the court was governed, with
the provision of Paragraph 3 (wording of 19 September 2000) of
Article 87 of the Law on the Proceedings of Administrative Cases
that the recital of the decision indicates the claims of the
claimant, the replications by the respondent and explanations by
other participants in the proceedings and the provision of
Paragraph 4 of this paragraph that the reasoning part of the
decision specifies the circumstances of the case established by
the court, the evidence on which the judicial opinion is based,
the arguments based whereon the court finds certain evidence
inadmissible, the laws invoked by the court, references to
specific norms that were applied, it is clear that in cases when
the respondent fully allows the claims of the claimant, under
Paragraph 4 (wording of 19 September 2000) of Article 85 of the
Law on the Proceedings of Administrative Cases, the
administrative court of first instance is permitted not to
indicate inter alia the explanations of other participants of the
proceedings; the fact that, along with this, it is formally
permitted not to indicate the claims of the claimant nor the
replications by the respondent, is to be construed not as
permission not to indicate them at all, but as permission not to
set them forth very broadly, alongside, by indicating the essence
of the claims of the claimant and the fact that the respondent
fully allows the claims of the claimant; if this were not
indicated, there would not be any grounds to set forth the
"abridged reasoning" in the court decision, which are provided
for in Paragraph 4 (wording of 19 September 2000) of Article 85
of the Law on the Proceedings of Administrative Cases, since such
"abridged" setting forth of the arguments substantiating the
decision of the administrative court of first instance, i.e. the
reasoning of its adoption, is possible only after it is held that
the respondent fully allows the claims of the claimant, which, it
goes without saying, must be set forth in at least a short form.
On the other hand, also in the cases provided for in
Paragraph 4 (wording of 19 September 2000) of Article 85 of the
Law on the Proceedings of Administrative Cases, the "abridged
reasoning" may be drawn up already after the decision of the
administrative court of first instance has been adopted and
publicly announced. However, it needs to be emphasised that this
provision is entrenched not in Paragraph 4 (wording of 19
September 2000) of Article 85 of the Law on the Proceedings of
Administrative Cases, but in Paragraph 3 (wording of 19 September
2000) of this article, which is (to a corresponding extent)
disputed by the petitioner.
16.7. In addition, it needs to be mentioned that Article 85
(wording of 19 September 2000) of the Law on the Proceedings of
Administrative Cases, inter alia Paragraph 3 thereof, even does
not mention (does not explicitly establish) anything about the
fact that the administrative court of first instance, when it
announces its decision (which, as mentioned, is composed of only
the introductory and resolution parts) should inform the
participants of the proceedings in any manner (at least verbally)
about the reasoning of that decision.
16.8. In this context one is also to mention the fact that
Paragraph 5 (wording of 19 September 2000) of Article 85 of the
Law on the Proceedings of Administrative Cases (the compliance of
which with the Constitution is not disputed by the group of
Members of the Seimas, the petitioner) inter alia provides that
during the time when the decision is being drafted, the judges of
the college may consider other cases. Besides (it is also
established in Paragraph 5 (wording of 19 September 2000) of
Article 85 of the Law on the Proceedings of Administrative
Cases), the decision or the ruling the passing and announcement
whereof has been postponed may be announced by one of the judges
who considered the case, other judges of the college not
participating.
16.8.1. The clause "during the time when the decision is
being drafted, the judges of the college may consider other
cases" expresses the intention of the legislator not to put
restrictions on the judges by the time of adoption and public
announcement of the court decision adopted in a certain case:
before that court decision is adopted and publicly announced they
can also consider other cases. Such provision seeks to ensure
inter alia the rational organisation of the work of the court,
its rhythm and consistency, as well as that the consideration of
cases is not delayed or otherwise procrastinated.
16.8.2. It needs to be emphasised that the clause "during
the time when the decision is being drafted, the judges of the
college may consider other cases" cannot be interpreted that,
purportedly, during the time when "the decision is being drafted
", the judges of the college who consider other cases can stay
away from the drafting of precisely that court decision, that
they can stay away from establishing all the circumstances that
are important to the case (and to leave it to be done by the
Chairman of the college and/or the judge-rapporteur), or that
they can go less deep into the matter, that they can stay away
from the assessment of all evidence and all arguments of the
participants of the proceedings, and that they are allowed not to
ascertain whether these arguments (reasoning) are not
inconsistent, whether they do not conflict with one another and
whether they have not any other shortcomings.
In this context, it needs to be noted that the Constitution
does not tolerate any formal and nominal participation of judges
in drafting a court decision (including that of the
administrative court of first instance). The constitutional
concept of justice and the obligation of a court to administer
justice, which stems from the Constitution, as well as other
provisions of the Constitution, permit no judge not to
participate in drafting of a final court act in the case that has
been considered by him or together with other judges of the
college, by giving a reason that he has to consider other cases.
17. It needs to be held that the legal regulation
established in Paragraph 3 (wording of 19 September 2000) of
Article 85 of the Law on the Proceedings of Administrative Cases
that an adopted and publicly announced decision of the
administrative court of first instance may be composed of only
the introductory and resolution parts, while the recital and
reasoning parts may be drawn up later (no later than within seven
working days after the announcement of the decision) creates
preconditions for such situations to appear, where, if, before it
adopts and publicly announces its decision, the administrative
court of first instance draws up only its introductory and
resolution parts, while it postpones the recital and resolution
parts for some time later, the said court decision might be
adopted and publicly announced without establishing all the
circumstances which are important to the case and/or without
going deep into them properly, without assessing all the evidence
and arguments of the participants of the proceedings, as well as
without indicating all the laws and/or other legal acts, which
the court should follow and which it has to apply in the course
of consideration of a corresponding case; should it come to light
that one did not properly assess the arguments upon which the
already adopted and publicly announced decision was based and
that one did not go deep into them properly, and due to this the
said court decision, which was adopted a priori and publicly
announced is unjust (thus, unlawful), the administrative court of
first instance which has adopted the decision cannot, already
after the adoption and public announcement of the corresponding
decision, review and, having drawn up somewhat different
arguments, decide the corresponding case differently from what
was done in the court decision that has been already adopted and
publicly announced. While this means that such legal regulation
established in Paragraph 3 (wording of 19 September 2000) of
Article 85 of the Law on the Proceedings of Administrative Cases
also creates preconditions to the administrative court of first
instance, which has already solved the case and publicly
announced the decision in that case, to formulate, by drawing up
the reasoning substantiating it, the reasoning of its adoption so
that the decision adopted and publicly announced would be
justified, thus, not to logically derive the adopted court
decision from the circumstances of the case and other arguments,
but, vice versa, to select the drawn up arguments and to
formulate and establish the sequence of the reasoning in
conformity with the court decision that has already been adopted
and publicly announced (and which already cannot be changed by
the court itself). In other words, such legal regulation creates
preconditions to the court to mach up the arguments drawn up
later with the already adopted and publicly announced court
decision.
18. Summing up, it needs to be noted that the legal
regulation established in Article 85 (wording of 19 September
2000) of the Law on the Proceedings of Administrative Cases,
inter alia in Paragraph 3 thereof, gives priority to the
speediness of adoption and public announcement of the decision of
the administrative court of first instance over the quality of
this decision, thus, also over administration of justice in the
corresponding case. Alongside, preconditions are created to
violate the rights and freedoms of the person and other values
entrenched in and defended and protected by the Constitution.
19. Thus, it needs to be noted that the legal regulation
established in Paragraph 3 (wording of 19 September 2000) of
Article 85 of the Law on the Proceedings of Administrative Cases
deviates from the constitutional imperatives of justice and
publicity of law as well as from the constitutional concept of
the court as the institution which administers justice in the
name of the Republic of Lithuania.
20. Taking account of the arguments set forth, one is to
draw a conclusion that Paragraph 3 (wording of 19 September 2000)
of Article 85 of the Law on the Proceedings of Administrative
Cases to the extent that it provides that only the introductory
and resolution parts of the decision may be drawn up prior to the
announcement of a decision of the administrative court of first
instance, while the parts of the decision comprising the recital
and the reasoning may be drawn up later, within seven working
days after the announcement of the decision, is in conflict with
Article 109 of the Constitution and the constitutional principle
of a state under the rule of law.
21. The other legal regulation established in Paragraph 3
(wording of 19 September 2000) of Article 85 of the Law on the
Proceedings of Administrative Cases with the Constitution is to
be assessed differently.
21.1. As mentioned, it is established in Paragraph 3
(wording of 19 September 2000) of Article 85 of the Law on the
Proceedings of Administrative Cases that only the introductory
and resolution parts of a decision adopted by the administrative
court of first instance are announced in public (in the
courtroom).
21.1.1. In its decision of 8 August 2006, the
Constitutional Court held that legal situations are also
possible, where elimination of the provisions conflicting with
provisions of legal acts of higher power, inter alia the
Constitution, by means of the Constitutional Court ruling from
the legal system, with respect to application of law virtually
amounts to changing the overall legal regulation, i.e. the
establishment of a different, gapless overall legal regulation.
21.1.2. After it has been held in this Constitutional Court
ruling and after it has recognised that Paragraph 3 (wording of
19 September 2000) of Article 85 of the Law on the Proceedings of
Administrative Cases to the extent that it provides that only the
introductory and resolution parts of the decision may be drawn up
prior to the announcement of a decision of the administrative
court of first instance, while the parts of the decision
comprising the recital and the reasoning may be drawn up later,
within seven working days after the announcement of the decision,
is in conflict with Article 109 of the Constitution and the
constitutional principle of a state under the rule of law (thus,
under the Constitution, after this Constitutional Court ruling
comes into force, it will not be permitted to apply it), another
provision of this paragraph, whereby the introductory and
resolution parts of the decision adopted by the administrative
court of first instance are announced in public (in the
courtroom) acquires a different meaning: now it regulates the
relations related with only the announcement of the decision of
the administrative court of first instance by reading it aloud,
but not with its drawing up or its content, it no longer implies
that the decision may be composed of only the introductory and
resolution parts and that it could be without the recital and the
reasoning parts.
21.1.3. It has been held in this Constitutional Court
ruling that the Constitution does not require from the court that
it draw up its final act (decision, ruling) before it is adopted,
nor that it announce it in the courtroom by reading aloud the
entire text of that final act (which sometimes might be very
long): the most important thing here is not the fact that the
text of the entire court act (inter alia all the arguments
substantiating itall the reasoning of its adoption) is read
aloud in the courtroom, save the introductory and resolution
parts, which must always be announced in the courtroom aloud
(save the exceptions discussed in this Constitutional Court
ruling), but that it all should be drawn up before that final
court act is adopted, i.e. before the judges vote on it and sign
it and before the final court act is publicly announced, also
that right after the court hearing in which the corresponding
final court act is announced, immediately, i.e. within the
reasonable and possibly shortest time, that final court act (its
copy) should be accessible to the parties to the case as well as
other participants of the proceedings to whom the final court act
directly raises certain legal effects, as well as to the
institutions which must execute corresponding court decisions.
Thus, only the reading aloud of the introductory and
resolution parts of a final court act (inter alia of a final act
of the administrative court of first instance) in the courtroom
and exposition of the arguments substantiating that final court
actsetting forth the reasoning of its adoptionalthough very
short, in itself is not to be assessed as violating the
constitutional imperatives of justice and publicity of law, nor
as deviating from the constitutional concept of the court as the
institution which administers justice in the name of the Republic
of Lithuania.
21.1.4. After it was held in this Constitutional Court
ruling that Paragraph 3 (wording of 19 September 2000) of Article
85 of the Law on the Proceedings of Administrative Cases to the
extent that it provides that only the introductory and resolution
parts of the decision may be drawn up prior to the announcement
of a decision of the administrative court of first instance,
while the parts of the decision comprising the recital and the
reasoning may be drawn up later, within seven working days after
the announcement of the decision, is in conflict with Article 109
of the Constitution and the constitutional principle of a state
under the rule of law, in itself the other provision of this
paragraph whereby only the introductory and resolution parts of
the decision adopted by the administrative court of first
instance are announced in public (in the courtroom) does not
create preconditions to violate Article 109 of the Constitution,
nor the constitutional principles of a state under the rule of
law and justice, nor may it be recognised as being in conflict
with the aforesaid norms of the Constitution.
21.1.5. Alongside, it needs to be held that there are no
legal arguments permitting to assert that Paragraph 3 (wording of
19 September 2000) of Article 85 of the Law on the Proceedings of
Administrative Cases to the extent that it provides that only the
introductory and resolution parts of the decision adopted by the
administrative court of first instance are announced in public
(in the courtroom) would deviate also from the requirement of
publicity of consideration of cases in courts entrenched in the
Constitution.
21.1.6. Taking account of the arguments set forth, one is
to draw a conclusion that Paragraph 3 (wording of 19 September
2000) of Article 85 of the Law on the Proceedings of
Administrative Cases to the extent that it provides that only the
introductory and resolution parts of the decision adopted by the
administrative court of first instance are announced in public
(in the courtroom) is not in conflict with Articles 109 and 117
of the Constitution and the constitutional principle of a state
under the rule of law.
21.2. As mentioned, Paragraph 3 (wording of 19 September
2000) of Article 85 of the Law on the Proceedings of
Administrative Cases inter alia provides that the decision
adopted by the administrative court of first instance (which, as
mentioned is composed of only the introductory and resolution
parts) is announced, as a rule, on the same day after
consideration of the case.
21.2.1. After it was held in this Constitutional Court
ruling and after it was recognised that Paragraph 3 (wording of
19 September 2000) of Article 85 of the Law on the Proceedings of
Administrative Cases to the extent that it provides that only the
introductory and resolution parts of the decision may be drawn up
prior to the announcement of a decision of the administrative
court of first instance, while the parts of the decision
comprising the recital and the reasoning may be drawn up later,
within seven working days after the announcement of the decision,
is in conflict with Article 109 of the Constitution and the
constitutional principle of a state under the rule of law (thus,
under the Constitution, after this Constitutional Court ruling
comes into force, it will not be permitted to apply it), another
provision of this paragraph whereby the decision adopted by the
administrative court of first instance is announced, as a rule,
on the same day after consideration of the case, acquires a
different meaning: now it only regulates the relations linked
with the time of adoption and announcement of a decision of the
administrative court of first instance, but not with the drawing
up, nor the content of this decision; besides, taking account of
the institute of "postponement" of adoption and announcement of a
decision (ruling) consolidated in Paragraph 5 (wording of 19
September 2000) of Article 85 of the Law on the Proceedings of
Administrative Cases and taking account of the word "as a rule"
employed in the formula "shall be drawn up and announced, as a
rule, on the same day after the hearing of an individual case",
the discussed provision of Paragraph 3 (wording of 19 September
2000) of Article 85 of the Law on the Proceedings of
Administrative Cases is to be assessed the one which is not
imperative, but as establishing a corresponding time mark, thus,
virtually as of recommendation character. It no longer implies
that the said decision of the administrative court of first
instance may be composed of only the introductory and resolution
parts and that it can be without the recital and reasoning parts.
21.2.2. Thus, after it was held in this Constitutional
Court ruling and after it was recognised that Paragraph 3
(wording of 19 September 2000) of Article 85 of the Law on the
Proceedings of Administrative Cases to the extent that it
provides that only the introductory and resolution parts of the
decision may be drawn up prior to the announcement of a decision
of the administrative court of first instance, while the parts of
the decision comprising the recital and the reasoning may be
drawn up later, within seven working days after the announcement
of the decision, is in conflict with Article 109 of the
Constitution and the constitutional principle of a state under
the rule of law, in itself another provision of this paragraph
that the decision adopted by the administrative court of first
instance is announced, as a rule, on the same day after
consideration of the case, does not create preconditions to
violate Article 109 of the Constitution, nor the constitutional
principles of a state under the rule of law and justice, nor may
it be recognised as being in conflict with the aforesaid norms of
the Constitution.
21.2.3. On the other hand, after this Constitutional Court
ruling comes into force, the legal regulation which is
consolidated in Paragraph 3 (wording of 19 September 2000) of
Article 85 of the Law on the Proceedings of Administrative Cases
where the law imperatively requires that only the introductory
and resolution parts of a decision of the administrative court of
first instance, which was adopted and signed by judges, be
publicly announced in the courtroom, while the recital and the
reasoning parts, even though drawn up, should be not announced,
although there might be serious reasons to make them public at
once (for example, when the case has big public resonance), is
not faultless. It has been held in this Constitutional Court
ruling that the legal regulation would most appropriately conform
to various provisions of the Constitution (inter alia the
requirement of publicity of law) whereby the court is able to
decide, at its discretion, as to which part or parts of its final
act must be announced publicly by reading them aloud in the
courtroom, save the introductory and resolution parts, which must
always be read aloud in the courtroom (save the exceptions
discussed in this Constitutional Court ruling). The legislator is
to take account of this when he amends Paragraph 3 (wording of 19
September 2000) of Article 85 of the Law on the Proceedings of
Administrative Cases which to the extent that it provides that
only the introductory and resolution parts of the decision may be
drawn up prior to the announcement of a decision of the
administrative court of first instance, while the parts of the
decision comprising the recital and the reasoning may be drawn up
later, within seven working days after the announcement of the
decision, has been recognised in this Constitutional Court ruling
to be in conflict with Article 109 of the Constitution and the
constitutional principle of a state under the rule of law.
21.2.4. Alongside, it needs to be held that there are not
any legal arguments, which would permit to assert that Paragraph
3 (wording of 19 September 2000) of Article 85 of the Law on the
Proceedings of Administrative Cases to the extent that it
provides that a decision of the administrative court of first
instance is, as a rule, adopted and officially announced on the
same day after the consideration of the case, is in conflict with
Article 109 of the Constitution and the constitutional principle
of a state under the rule of law.
21.2.5. Taking account of the arguments set forth, one is
to draw a conclusion that Paragraph 3 (wording of 19 September
2000) of Article 85 of the Law on the Proceedings of
Administrative Cases to the extent that it provides that the
decision adopted by the administrative court of first instance is
announced, as a rule, on the same day after consideration of the
case, is not in conflict with Articles 109 and 117 of the
Constitution and the constitutional principle of a state under
the rule of law.
22. Having held that Paragraph 3 (wording of 19 September
2000) of Article 85 of the Law on the Proceedings of
Administrative Cases to the extent that it provides that only the
introductory and resolution parts of the decision may be drawn up
prior to the announcement of a decision of the administrative
court of first instance, while the parts of the decision
comprising the recital and the reasoning may be drawn up later,
within seven working days after the announcement of the decision,
is in conflict with Article 109 of the Constitution and the
constitutional principle of a state under the rule of law, in
this constitutional justice case the Constitutional Court will
not further investigate whether Paragraph 3 (wording of 19
September 2000) of Article 85 of the Law on the Proceedings of
Administrative Cases is not in conflict (to the corresponding
extent) with Article 117 of the Constitution.
23. The legal regulation established in Paragraphs 2 and 3
(wording of 19 September 2000) of Article 139 of the Law on the
Proceedings of Administrative Cases, which are disputed by the
group of Members of the Seimas, the petitioner, is essentially
analogous to that established in Paragraph 3 (wording of 19
September 2000) of Article 85 of the Law on the Proceedings of
Administrative Cases.
24. Alongside, it needs to be noted that under Paragraph 2
(wording of 19 September 2000) of Article 139 of the Law on the
Proceedings of Administrative Cases, after a decision or ruling
is adopted and after the court returns to the courtroom, the
chairman of the college or the judge rapporteur shall read out
not only the introductory and resolution parts of the decision or
ruling, but also briefly define the reasoning of the decision or
ruling.
It needs to be held that such short verbal setting forth of
the arguments substantiating the decision (ruling) of the
administrative court of first instancethe reasoning of its
adoptionprovided these arguments have not been drawn up in the
decision (ruling) adopted and signed by the judges before its
public announcement, does not guarantee that before the official
adoption of the corresponding final act of the administrative
court of first instance one properly assessed all important
arguments and that one went deep into them properly, that legal
acts were properly applied, that all the judges of the colleges
equally understood all the arguments substantiating that final
court act (but, as mentioned, they need not necessarily interpret
and assess them in the same manner). Thus, the said short verbal
setting forth of the arguments substantiating the decision
(ruling) of the administrative court of first instancethe
reasoning of its adoptionin the courtroom does not guarantee
that in a corresponding case justice will not be administered
only formally, it does not, nor can it remove the doubt that by
such arguments, which are drawn up later, one does not seek to
justify the final court act adopted a priori, and whether the
final court act is actually substantiated only by the arguments
(reasoning) that are formally drawn up therein.
25. On the grounds of the arguments analogous to those on
the grounds of which it was held in this Constitutional Court
ruling that Paragraph 3 (wording of 19 September 2000) of Article
85 of the Law on the Proceedings of Administrative Cases to the
extent that it provides that only the introductory and resolution
parts of the decision may be drawn up prior to the announcement
of a decision of the administrative court of first instance,
while the parts of the decision comprising the recital and the
reasoning may be drawn up later, within seven working days after
the announcement of the decision, deviates from the
constitutional imperatives of justice and publicity of law as
well as from the constitutional concept of the court as the
institution which administers justice in the name of the Republic
of Lithuania, it needs to be held that also the provision "the
chairman of the college or the judge rapporteur shall <
> inform
when the full text of decision or ruling will be drawn up" of
Paragraph 2 (wording of 19 September 2000) of Article 139 of the
Law on the Proceedings of Administrative Cases and Paragraph 3
(wording of 19 September 2000) of the same article deviates from
the constitutional imperatives of justice and publicity of law as
well as from the constitutional concept of the court as the
institution which administers justice in the name of the Republic
of Lithuania.
26. Taking account of the arguments set forth, a conclusion
is to be drawn that the provision "the chairman of the college or
the judge rapporteur shall <
> inform when the full text of
decision or ruling will be drawn up" of Paragraph 2 (wording of
19 September 2000) of Article 139 of the Law on the Proceedings
of Administrative Cases and Paragraph 3 (wording of 19 September
2000) of the same article are in conflict with Article 109 of the
Constitution and the constitutional principles of a state under
the rule of law and justice.
27. Having held this, in this constitutional justice case
the Constitutional Court will not further investigate whether the
provision "the chairman of the college or the judge rapporteur
shall <
> inform when the full text of decision or ruling will be
drawn up" of Paragraph 2 (wording of 19 September 2000) of
Article 139 of the Law on the Proceedings of Administrative Cases
and Paragraph 3 (wording of 19 September 2000) of the same
article are not in conflict with Article 117 of the Constitution.
28. The provision "having adopted the decision or ruling,
the court shall return to the courtroom and the chairman of the
college or the judge rapporteur shall read out the introductory
and resolution parts of the decision or ruling, briefly define
the reasoning of the decision or ruling" of Paragraph 2 (wording
of 19 September 2000) of Article 139 of the Law on the
Proceedings of Administrative Cases (to the extent indicated by
the group of Members of the Seimas, the petitioner) is to be
assessed differently.
28.1. As mentioned, the Constitution does not require from
the court that it draw up its final act (decision, ruling) before
it is adopted, but also to announce it in the courtroom by
reading aloud the entire text of that final act (which sometimes
might be very long), that the most important thing here is not
the fact that the text of the entire court act (inter alia all
the arguments substantiating itall the reasoning of its
adoption) is read aloud in the courtroom, save the introductory
and resolution parts, which must always be announced in the
courtroom aloud (save the exceptions discussed in this
Constitutional Court ruling), but that it all should be drawn up
before that final court act is adopted, i.e. before the judges
vote on it and sign it and before the public announcement of the
final court act, also that right after the court hearing in which
the corresponding final court act is announced, immediately, i.e.
within the reasonable and possibly shortest time, that final
court act (its copy) should be accessible to the parties to the
case as well as other participants of the proceedings to whom the
final court act directly raises certain legal effects, as well as
to the institutions which must execute corresponding court
decisions. It was also mentioned that only the reading aloud of
the introductory and resolution parts of a final court act (inter
alia of a final act of the administrative court of first
instance) in the courtroom and exposition of the arguments
substantiating that final court actsetting forth the reasoning
of its adoptionalthough very short, in itself is not to be
assessed as violating the constitutional imperatives of justice
and publicity of law, nor as deviating from the constitutional
concept of the court as the institution which administers justice
in the name of the Republic of Lithuania.
28.2. After it has been held and recognised in this
Constitutional Court ruling that the provision "the chairman of
the college or the judge rapporteur shall <
> inform when the
full text of decision or ruling will be drawn up" of Paragraph 2
(wording of 19 September 2000) of Article 139 of the Law on the
Proceedings of Administrative Cases and Paragraph 3 (wording of
19 September 2000) of the same article are in conflict with
Article 109 of the Constitution and the constitutional principle
of a state under the rule of law (thus, under the Constitution,
after this Constitutional Court ruling comes into force, it will
not be permitted to apply it), the provision "having adopted the
decision or ruling, the court shall return to the courtroom and
the chairman of the college or the judge rapporteur shall read
out the introductory and resolution parts of the decision or
ruling, briefly define the reasoning of the decision or ruling"
of Paragraph 2 (wording of 19 September 2000) of the same article
acquires a different meaning: now it regulates the relations
linked with only the announcement of a decision or ruling of the
administrative court of first instance, but not with drawing up
of the decision or ruling itself. It no longer implies that the
said decision or ruling of the administrative court of first
instance can be composed of only the introductory and resolution
parts, and that it may be without the recital and the reasoning
parts.
28.3. Thus, after it has been held and recognised in this
Constitutional Court ruling that the provision "the chairman of
the college or the judge rapporteur shall <
> inform when the
full text of decision or ruling will be drawn up" of Paragraph 2
(wording of 19 September 2000) of Article 139 of the Law on the
Proceedings of Administrative Cases and Paragraph 3 (wording of
19 September 2000) of the same article are in conflict with
Article 109 of the Constitution and the constitutional principle
of a state under the rule of law, the provision "having adopted
the decision or ruling, the court shall return to the courtroom
and the chairman of the college or the judge rapporteur shall
read out the introductory and resolution parts of the decision or
ruling, briefly define the reasoning of the decision or ruling"
of Paragraph 2 (wording of 19 September 2000) of the same article
in itself does not create any preconditions to violate Article
109 of the Constitution, nor the constitutional principles of a
state under the rule of law and justice, nor may it be recognised
as conflicting with the aforesaid provisions of the Constitution.
28.4. On the other hand, one is also to mention the fact
that, as held in this Constitutional Court ruling, the legal
regulation would most appropriately conform to various provisions
of the Constitution (inter alia the requirement of publicity of
law) whereby the court is able to decide, at its discretion, as
to which part or parts of its final act must be announced
publicly by reading them aloud in the courtroom, save the
introductory and resolution parts, which must always be read
aloud in the courtroom (save the exceptions discussed in this
Constitutional Court ruling).
28.5. Alongside, it needs to be held that there are not any
legal arguments, which would permit to assert that the provision
"having adopted the decision or ruling, the court shall return to
the courtroom and the chairman of the college or the judge
rapporteur shall read out the introductory and resolution parts
of the decision or ruling, briefly define the reasoning of the
decision or ruling" of Paragraph 2 (wording of 19 September 2000)
of Article 139 of the Law on the Proceedings of Administrative
Cases deviates from the requirement of publicity of consideration
of cases in court, which is entrenched in the Constitution, so
that in this Constitutional Court ruling it might be sufficient
grounds to state its conflict with a corresponding constitutional
principle.
28.6. Taking account of the arguments set forth, one is to
draw a conclusion that the provision "having adopted the decision
or ruling, the court shall return to the courtroom and the
chairman of the college or the judge rapporteur shall read out
the introductory and resolution parts of the decision or ruling,
briefly define the reasoning of the decision or ruling" of
Paragraph 2 (wording of 19 September 2000) of Article 139 of the
Law on the Proceedings of Administrative Cases is not in conflict
with Articles 109 and 117 of the Constitution and the
constitutional principle of a state under the rule of law.
IV
On the compliance of Article 306 (wording of 8 July 2004),
Paragraph 2 (wording of 14 March 2002) of Article 308, Paragraphs
12 and 13 (wording of 14 March 2002) of Article 324, Paragraph 9
(wording of 14 March 2002) of Article 377, Paragraph 7 (wording
of 14 March 2002) of Article 448, Paragraph 5 (wording of 14
March 2002) of Article 454, Paragraphs 5 And 6 (wording of 14
March 2002) of Article 460 of the CCP with Articles 109 and 117
of the Constitution and the constitutional principle of a state
under the rule of law, as well as on the compliance of Article
306 (wording of 8 July 2004), Paragraph 2 (wording of 14 March
2002) of Article 308, Paragraphs 12 and 13 (wording of 14 March
2002) of Article 324 and Paragraph 5 (wording of 14 March 2002)
of Article 454 of the CCP with Article 29 of the Constitution.
1. The group of Members of the Seimas, the petitioner,
requests inter alia to investigate:
- whether Article 306 (wording of 8 July 2004) of the Code
of Criminal Procedure to the extent that, according to the group
of Members of the Seimas, the petitioner, it provides that the
judge shall draw up and announce the judgements with the
reasoning substantiating it only in the cases on the crimes
provided for in Paragraph 1 of Article 135, Paragraphs 1, 2, and
3 of Article 149, Paragraphs 1, 2, and 3 of Article 150,
Paragraphs 2 and 3 of Article 180, Paragraph 2 of Article 182 and
Paragraphs 1 and 2 of Article 260 of the CC are not in conflict
with Articles 29, 109 and 117 of the Constitution and the
constitutional principle of a state under the rule of law;
- whether Paragraph 2 (wording of 14 March 2002) of Article
308 of the CCP to the extent that, according to the group of
Members of the Seimas, the petitioner, it provides that the court
of first instance must, prior to the time of announcement of the
judgement, specify the reasoning of the adoption of the judgment
only when the court thinks that the case is not too complicated
or big, while in other cases the court has the right to draw up
only the introductory and resolution parts of the judgement until
the time of announcing of the judgement, to announce them and
verbally to explain the arguments of the adoption of the
judgement; that the entire reasoned judgement is drawn up and
signed later after its announcement and that the judges who have
considered the case have the right to draw up and sign the
judgement, with the assent of either the President of the court
or the Chairman of the Criminal Cases Division, within 14 days,
is not in conflict with Articles 29, 109, 117 of the Constitution
and the constitutional principle of a state under the rule of
law;
- whether Paragraphs 12 and 13 (wording of 14 March 2002)
of Article 324 of the CCP to the extent that, according to the
group of Members of the Seimas, the petitioner, they provide that
the court of appeal instance must, prior to the time of
announcement of the judgement or the ruling, specify the
reasoning of its adoption only when the court thinks that the
case is not too complicated or big, while in other cases the
court has the right to draw up only the introductory and
resolution parts of the judgement or the ruling until the time of
announcing of the judgement or the ruling, to announce them and
verbally to explain the arguments of the adoption of the
judgement or the ruling; that the entire reasoned judgement or
ruling is drawn up and signed later after its announcement and
that the judges who have considered the case have the right to
draw up and sign the judgement or the ruling, with the assent of
either the President of the court or the Chairman of the Criminal
Cases Division, within 14 days, are not in conflict with Articles
29, 109, 117 of the Constitution and the constitutional principle
of a state under the rule of law;
- whether Paragraph 9 (wording of 14 March 2002) of Article
377 of the CCP to the extent that, according to the group of
Members of the Seimas, the petitioner, it provides that the court
of cassation instance shall adopt the ruling without reasoning,
while the reasoning is drawn up and the ruling is supplemented
with it later after the announcement of the ruling, and that the
judges who have considered the case have the right to draw up and
sign the ruling, with the assent of either the President of the
court or the Chairman of the Criminal Cases Division, within 14
days, is not in conflict with Articles 29, 109, 117 of the
Constitution and the constitutional principle of a state under
the rule of law;
- whether Paragraph 7 (wording of 14 March 2002) of Article
448 of the CCP to the extent that, according to the group of
Members of the Seimas, the petitioner, it establishes that in
cases concerning newly emerged circumstances a ruling is adopted
and announced without reasoning, while the reasoning is drawn up
and signed by the judges later, within three days of the adoption
of the ruling, is not in conflict with Articles 109 and 117 of
the Constitution as well as with the constitutional principle of
a state under the rule of law;
- whether Paragraph 5 (wording of 14 March 2002) of Article
454 of the CCP to the extent that, according to the group of
Members of the Seimas, the petitioner, it establishes that in
cases concerning newly emerged circumstances, in regard of all
persons save the convicts who must be released from the places of
confinement, a ruling is adopted and announced without reasoning,
while the reasoning is drawn up and signed by the judges later,
within three days of the adoption of the ruling, is not in
conflict with Articles 29, 109 and 117 of the Constitution as
well as with the constitutional principle of a state under the
rule of law;
- whether Paragraphs 4 and 5 (wording of 14 March 2002) of
Article 460 of the CCP to the extent that, according to the group
of Members of the Seimas, the petitioner, they establish that in
cases concerning renewal of a case upon adoption of a
corresponding judgement of the European Court of Human Rights the
ruling is adopted and announced without reasoning, while the
reasoning is drawn up and signed by the judges later, within ten
days of the adoption of the ruling, is not in conflict with
Articles 109 and 117 of the Constitution as well as with the
constitutional principle of a state under the rule of law.
2. On 14 March 2002, the Seimas adopted the Republic of
Lithuania Law on the Approval, Entry into Force and
Implementation of the Code of Criminal Procedure by Article 1
whereof it approved the Code of Criminal Procedure. Under
Paragraph 2 of this law, the date of entry into force of the Code
of Criminal Procedure had to be established by a separate law.
On 29 October 2002, the Seimas adopted the Republic of
Lithuania Law on the Entry into Force and Implementation the
Criminal Code which was confirmed by 26 September 2000 Law No.
VIII-1968, the Code of Criminal Procedure which was confirmed by
14 March 2002 Law No. IX-785 and the Penitentiary Code which was
confirmed by 27 June 2002 Law No. IX-994, in which it inter alia
established that the Code of Criminal Procedure shall come into
force "as from 1 May 2003" (Article 1) and that after the new
Code of Criminal Procedure comes into force, the "old" Code of
Criminal Procedure of the Republic of Lithuania (wording of 26
June 1961 with subsequent amendments and supplements) shall be no
longer valid (Paragraph 2 of Article 47).
3. The new CCP (wording of 14 March 2002) was amended and/
or supplemented by the Law on Amending and Supplementing the Law
on Courts, the Law on the Proceedings of Administrative Cases,
the Code of Civil Procedure and the Code of Criminal Procedure
(with amendments and supplements made by the Republic of
Lithuania Law on Amending Articles 1 and 2 of the Fourth Chapter
of the Law on Amending and Supplementing the Law on Courts, the
Law on the Proceedings of Administrative Cases, the Code of Civil
Procedure and the Code of Criminal Procedure, which was adopted
by the Seimas on 16 September 2003), which was adopted by the
Seimas on 8 April 2003; the Republic of Lithuania Law on Amending
and Supplementing Articles 21, 48, 50, 52, 127, 142, 143, 151,
158, 161, 163, 165, 212, 217, 232, 233, 234, 237, 244, 254, 255,
256, 266, 276, 287, 303, 318, 319, 322, 323, 326, 327, 329, 332,
342, 351, 353, 362, 375, 380, 397, 421, 440, 458, 459 of the Code
of Criminal Procedure Approved by 14 March 2002 Law No. IX-785
and Supplementing the Code with Article 362-1, which was adopted
by the Seimas on 10 April 2003; the Republic of Lithuania Law on
Amending and Supplementing Articles 151, 168, 186, 276, 407 and
409 of the Code of Criminal Procedure, which was adopted by the
Seimas on 19 June 2003; the aforesaid Law on Amending Articles 1
and 2 of the Fourth Chapter of the Law on Amending and
Supplementing the Law on Courts, the Law on the Legal Proceedings
of Administrative Cases, the Code of Civil Procedure and the Code
of Criminal Procedure, which was adopted by the Seimas on 16
September 2003; the Republic of Lithuania Law on Supplementing
and Amending Article 154 of the Code of Criminal Procedure, which
was adopted by the Seimas on 29 January 2004; the Republic of
Lithuania Law on Amending and Supplementing Articles 1, 51, 70,
72, 73, 74, 75, 76, 122, 437 of the Code of Criminal Procedure
and Supplementing the Code with Articles 171, 691, 711, 771 and
an Annex, which was adopted by the Seimas on 27 April 2004; the
Republic of Lithuania Law on the Amendment and Supplementing
Articles 65, 94, 103, 109, 139, 151, 154, 158, 168, 181, 218,
220, 225, 232, 237, 239, 240, 306, 313, 346, 360, 364, 370, 377,
403, 409, 418, 421, 422, 425, 426, 429, 446, 456, 457, 458 and
Amending the Title of Chapter XXXV of the Code of Criminal
Procedure, which was adopted by the Seimas on 8 July 2004; the
Republic of Lithuania Law on Amending Articles 120, 121, and 126
of the Code of Criminal Procedure and Supplementing It with
Article 132-1, which was adopted by the Seimas on 9 November
2004; the Republic of Lithuania Law on Amending Articles 50, 51,
103, 104, 106, 118, 361 and 431 of the Code of Criminal
Procedure, which was adopted by the Seimas on 20 January 2005;
the Republic of Lithuania Law on Amending Articles 210, 263, 269,
and 277 of the Code of Criminal Procedure, which was adopted by
the Seimas on 22 November 2005; and by the Republic of Lithuania
Law on Amending and Supplementing the Code of Criminal Procedure,
the Penitentiary Code and the Law on Pre-trial Detention, which
was adopted by the Seimas on 1 June 2006.
Article 306 (wording of 8 July 2004), Paragraph 2 (wording
of 14 March 2002) of Article 308, Paragraphs 12 and 13 (wording
of 14 March 2002) of Article 324, Paragraph 9 (wording of 14
March 2002) of Article 377, Paragraph 7 (wording of 14 March
2002) of Article 448, Paragraphs 5 And 6 (wording of 14 March
2002) of Article 454, Paragraphs 4 and 5 (wording of 14 March
2002) of Article 460 of the CCP the compliance of whose
provisions with the Constitution is disputed by the group of
Members of the Seimas, the petitioner, in this constitutional
justice case, have been neither amended, nor supplemented and at
the time of consideration of the constitutional justice case at
issue are still in force.
Alongside, it needs to be mentioned that by Article 2 of
the Law on Amending and Supplementing the Code of Criminal
Procedure, the Penitentiary Code and the Law on Pre-trial
Detention, which was adopted by the Seimas on 1 June 2006,
Article 308 (wording of 14 March 2002) of the CCP, the compliance
of Paragraph 2 of which is disputed by the group of Members of
the Seimas, the petitioner, in this constitutional justice case,
was supplemented with Paragraph 6. At the time of the
consideration of the constitutional justice case at issue,
Article 308 of the CCP is set forth in the wording of 1 June
2006, however, the group of Members of the Seimas, the
petitioner, disputes Paragraph 2 of the same article of the
wording of 14 March 2002.
It also needs to be mentioned that by Article 24 of the Law
on the Amendment and Supplementing Articles 65, 94, 103, 109,
139, 151, 154, 158, 168, 181, 218, 220, 225, 232, 237, 239, 240,
306, 313, 346, 360, 364, 370, 377, 403, 409, 418, 421, 422, 425,
426, 429, 446, 456, 457, 458 and Amending the Title of Chapter
XXXV of the Code of Criminal Procedure, which was adopted by the
Seimas on 8 July 2004, Paragraph 8 of Article 377 (wording of 14
March 2002) of the CCP was amended (the group of Members of the
Seimas, the petitioner, disputes the compliance of Paragraph 9 of
this article with the Constitution). At the time of the
consideration of the constitutional justice case at issue,
Article 377 of the CCP is set forth in the wording of 8 July
2004, however Paragraph 9 of the same article, which is disputed
by the group of Members of the Seimas, the petitioner, is set
forth in the wording of 14 March 2002.
4. Article 306 titled "Abridged Recital of the Judgement"
(wording of 8 July 2004) of the CCP (which is in Chapter XXIII
titled "Adoption of the Judgement" of Part V titled "The
Proceedings of Cases in the Court of First Instance") the
compliance of which with the Constitution (to the corresponding
extent) is disputed by the group of Members of the Seimas, the
petitioner, provides:
"1. While drawing up the judgement of conviction, the judge
of a local court is permitted not the set forth the circumstances
provided for in Items 2, 3 and 4 of Paragraph 1 and Paragraph 5
of Article 305 of this Code, save the cases on the crimes
provided for in Paragraph 1 of Article 135, Paragraphs 1, 2, and
3 of Article 149, Paragraphs 1, 2, and 3 of Article 150,
Paragraphs 2 and 3 of Article 180, Paragraph 2 of Article 182 and
Paragraphs 1 and 2 of Article 260 of the Criminal Code of the
Republic of Lithuania.
2. The participants of the consideration in court, who may,
under this Code, appeal against this court judgement, shall have
the right, after they submit written requests, to receive a copy
of the judgement containing the non-abridged recital. Such
request must be submitted to the court within seven days of the
adoption of the judgement.
3. If the written request provided for in Paragraph 2 of
this Article is submitted or the judgement is appealed in the
court of appeal instance or the court of cassation instance, the
judge who adopted the judgement shall draw up the non-abridged
recital of the judgement within three days of the reception of
the request or appeal. The judge shall sign the newly drawn up
recital and attach it to the already existing judgement.
4. If a judgement, in which the recital was drawn up in an
abridged form and by which several persons were convicted or the
convicts were recognised guilty of the commission of several
criminal deeds, is appealed in the court of appeal instance, a
non-abridged recital shall be drawn."
5. Article 308 titled "Announcement of the Judgement"
(wording of 1 June 2006) of the CCP (which is in Chapter XXIII
titled "Adoption of the Judgement" of Part V titled "The
Proceedings of Cases in the Court of First Instance") the
compliance of Paragraph 2 (wording of 8 July 2004) of which with
the Constitution (to the corresponding extent) is disputed by the
group of Members of the Seimas, the petitioner, provides:
"1. At the time notified in advance the court shall return
to the courtroom and the chairman of the trial hearing or another
judge shall announce the judgement.
2. When the case is too complicated or big, the court shall
have the right to draw up only the introductory and resolution
parts of the judgement until the time of announcing of the
judgement. In this case the court shall announce the introductory
and resolution parts of the judgement and shall verbally explain
the arguments of the adoption of the judgement. The entire
reasoned judgement shall be drawn up and signed by the judges who
have considered the case within seven days, while with the assent
of either the President of the court or the Chairman of the
Criminal Cases Divisionwithin fourteen days of the adoption of
the judgement.
3. All persons shall hear the judgement while standing.
4. When the judgment is announced, the accused, the
prosecutor and the defender must be present in the courtroom.
5. After he has announced the judgement, the judge shall
explain the participants to the court consideration the procedure
and terms of appeal against the judgement, while to the accused
also the peculiarities of execution of imposed punishment.
6. When the judgement imposes factual punishment of arrest
or confinement upon the accused, the chairman of the trial
hearing must ascertain whether the victim wishes to be notified
about the future release of the convict. If the victim did not
participate at the court hearing, this information must be
ascertained within five days of the announcement of the
judgement. It is not necessary to ascertain it, if the place of
residence of the victim is not known. If there are several
victims, it is sufficient to ascertain this information through
the person (persons) who represent their interests. If the victim
wishes that he should be notified about the future release of the
convict, the chairman of the trial hearing shall draw up a note.
After the judgement comes into effect, this note, together with a
copy of the judgement, shall be sent to the penitentiary
institution under the procedure established in Article 342 of
this Code. The convict and his defendant shall not be permitted
to acquaint with the content of the said note."
6. Article 324 titled "Consideration of the Case in the
Hearing of the Court of Appeal Instance" (wording of 14 March
2002) of the CCP (which is in Chapter XXV titled "The Appeal
Proceedings" of Part VI titled "The Proceedings of Cases in the
Court of Appeal Instance") the compliance of Paragraphs 12 and 13
of which with the Constitution (to the corresponding extent) is
disputed by the group of Members of the Seimas, the petitioner,
provides:
1. "The Chairman of the college shall commence the hearing,
announce the case, the appealing party and the court judgement
appealed against. After that, the Chairman of the college shall
verify as to who has appeared in the hearing, whether the persons
specified in Article 322 of this Code have been notified about
the time of consideration of the case. The witnesses who are
present are taken out of the courtroom. After that the Chairman
of the college shall announce the names and surnames of the
judges who are considering the case, of the prosecutors who
participate in the hearing, of defenders, representatives,
specialists, interpreters and the secretary of the hearing and
shall ask the persons who are present at the hearing whether they
have any statements of removal. Such statements shall be
considered by the court under the procedure established in
Articles 57-59 and 61 of this Code. The court shall decide
whether it is possible to consider the case, if someone from the
participants of the proceedings have not appeared in court. This
decision is adopted while following the rules established in
Article 266 of this Code.
2. The Chairman of the college shall explain the rights and
duties to the persons who appeared in the hearing and shall ask
whether they have any requests. These persons may ask that the
court summon witnesses, victims, experts, specialists or demand
and obtain the material necessary for consideration of the case.
The court shall adopt a reasoned ruling regarding the requests
made. If additional time is necessary in order to grant the
request, the court may announce adjournment of the consideration
of the case.
3. The consideration of the case on merits is begun by a
report of one of the judges, in which the essence of the case,
the main conclusions of the judgement of the court of first
instance, the reasons of the appeals and replications to them are
set forth. The participants to the proceedings may request that
the rapporteur supplement the report.
4. On the initiative of the court or at the request of the
participants to the proceedings the judgment of the court of
first instance as well as other judgements or rulings adopted in
that case as well as the minutes or part thereof of the trial
hearing of the court of first instance may be read.
5. When additional material is submitted to the court, the
Chairman of the college or another judge shall read it aloud and
refer it to the participants of the proceedings, if they request
so.
6. The court of appeal instance may conduct investigation
of the evidence. The investigation of the evidence is conducted
and renewed according to the rules established in Chapter XXI of
this Code. If necessary, the investigation of the evidence may be
renewed also at the time of final speeches and while adopting the
judgement or the ruling.
7. If at the time of pre-trial investigation one did not
establish any such circumstances, which had not been established
by the court of first instance, while if it is difficult to
establish them at the hearing of the court of appeal instance,
the court of appeal instance may oblige the judge of pre-trial
investigation to carry out necessary investigation actions. Until
these actions are carried out, if necessary, an adjournment may
be ordered.
8. Final speeches shall commence by a speech of the person
who lodged the appeal. If there are several appellants, including
the prosecutor, the private accuser and the victim, the
prosecutor shall speak first, followed by the private accuser and
the victim. The convict or the acquitted and/or the defender
shall speak last. After that the participants who made the final
speeches shall have the right to replicate and make remarks on
what has been said in the previous speeches. The defender shall
replicate and make remarks last, while in the absence of the
latterby the convict or the acquitted. After the final speeches
the convict or the acquitted shall be granted the last word.
9. After the final speeches and the final word, the court
shall retire to the deliberation room to adopt the judgement or
the ruling.
10. The procedure of deliberation of the judges in adoption
of the judgement or the ruling shall be established by Article
299 of this Code.
11. After it has adopted the judgement or the ruling, the
court shall return to the courtroom and the Chairman of the
college or another judge shall announce the judgement or the
ruling. When there are the conditions specified in Article 309 of
this Code, the arrested person shall be released immediately.
12. When the case is complicated or big, the court shall
have the right to draw up only the introductory and resolution
parts of the judgement or the ruling. In this case the court
shall announce the introductory or resolution parts and shall
verbally explain the arguments of its adoption. The entire
reasoned judgement or ruling shall be drawn up and signed by the
judges who have considered the case under appeal procedure within
seven days, while upon the assent of either the President of the
court or the Chairman of the Criminal Cases Divisionwithin
fourteen days of the adoption of the judgement or the ruling.
13. Within five days of the announcement of the judgement
or the ruling, while if only the resolution part was announced
within the same time period of signing of the judgement or the
rulinga copy of the judgement or the ruling must be sent to the
arrested convict who has appealed against the judgement, or with
whose interests the judgement or the ruling of the court of
appeal instance is related. A copy of the judgement or the ruling
is submitted to other appellants, if they request so.
14. The convict or the acquitted who have no command of
Lithuanian shall either be sent or submitted a translation of the
judgement or the ruling into his native language or a language
which he understands."
7. Article 377 titled "Consideration of a Cassation Case"
(wording of 8 July 2004) of the CCP (which is in Chapter XXVII
titled "The Proceedings of Cases in the Court of Cassation
Instance" of Part VIII titled "The Proceedings of Cases in the
Court of Cassation Instance") the compliance of Paragraph 9
(wording of 14 March 2002) of which with the Constitution (to the
corresponding extent) is disputed by the group of Members of the
Seimas, the petitioner, provides:
"1. The persons specified in Article 375 of this Code shall
be guaranteed an opportunity to acquaint in court with the
cassation appeal and the additionally collected material.
2. The court of cassation instance shall consider cases in
public court hearings, save in the situations specified in
Article 9 of this Code.
3. At the time appointed for the consideration of the case,
the Chairman of the college shall commence the court hearing and
announce the case, the cassation appeal party and the court
judgement or ruling appealed against under cassation. After that,
the Chairman of the college shall verify as to who has appeared
in the hearing, whether the persons specified in Article 375 of
this Code have been notified about the time of consideration of
the case. After that the Chairman of the college shall announce
the names and surnames of the judges who are considering the
case, of the prosecutors who participate in the hearing, of
defenders, representatives, interpreters and the secretary of the
hearing and shall ask the persons who are present at the hearing
whether they have any statements of removal. Such statements
shall be considered by the court under the procedure established
in Articles 57-59 and 61 of this Code.
4. At the beginning of the hearing, the college, either on
its own initiative or at the request of the participants of the
proceedings, may discuss whether the cassation appeal is in line
with the requirements of this Code and whether there are the
bases of the appealing of the case and of its consideration under
cassation procedure. Having heard opinions of the persons who
have appeared in the court hearing, the court shall adopt a
ruling on this issue. A court ruling not to consider the appeal
and to dismiss the court proceedings shall be adopted in the
deliberation room. This ruling is announced to the persons who
have appeared in the hearing.
5. If there were no grounds to consider the issue on non-
consideration of the appeal at the beginning of the hearing, or
if in the course of its consideration it was decided to continue
the hearing, the cassation appeal is considered on merits in
court.
6. The Chairman of the college shall ask the persons who
appeared in the hearing whether they have any requests. The court
shall adopt a ruling on the requests made.
7. One of the judges shall set forth the essence of the
case in his report as well as the content of the judgement or the
ruling as well as that of the cassation appeal.
8. After the report of the judge, the participants of the
proceedings shall have the right to give verbal explanations. If
there is an appeal submitted by the prosecutor, the victim or his
representative, these persons shall speak first, and the first
from among themwho has submitted his appeal first. In other
cases the convict or the acquitted shall speak first, his
defender or legal representative, and the first from among them
who has submitted his appeal first. After that the participants
to the proceedings, who have not given their explanations, shall
be given the floor. Later all the participants to the proceedings
are granted the right to give additional explanations. The
convict or the acquitted person or his defender or his legal
representative shall give additional explanations last.
9. Having considered the case, the court shall retire to
the deliberation room to adopt a ruling. Having adopted the
ruling, the court shall return to the courtroom and the Chairman
of the college or another judge shall announce the resolution
part of the ruling and set forth the arguments of its adoption.
The entire reasoned ruling shall be drawn up and signed by the
entire college of judges within seven days, while with the assent
of either the President of the court or the Chairman of the
Criminal Cases Divisionwithin 14 days of the adoption of the
ruling.
10. If after the consideration of the case under cassation
procedure the convict must be released, the ruling must be drawn
up in its entirety and referred to execution on the day of its
adoption.
11. In the court hearing minutes shall be taken."
8. Article 448 titled "The Procedure of Renewal of the
Criminal Case Due to Newly Emerged Circumstances" (wording of 14
March 2002) of the CCP (which is in Chapter XXXIII titled "The
Renewal of the Criminal Case Due to Newly Emerged Circumstances"
of Part XI titled "The Renewal of the Criminal Case") the
compliance of Paragraph 7 of which with the Constitution (to the
corresponding extent) is disputed by the group of Members of the
Seimas, the petitioner, provides:
"1. At the Supreme Court of Lithuania the issue of renewal
of a case due to newly emerged circumstances shall be considered
and decided by a college of three judges of the Criminal Cases
Division, who did not participate in the consideration of this
case (save the situation where the case was considered in the
plenary session of the Supreme Court of Lithuania). This college
shall be formed by the President of the Supreme Court of
Lithuania or the Chairman of its Criminal Cases Division. He
appoints the rapporteur and confirms one of the judges as
Chairman of the college.
2. The college of judges shall consider the conclusion of
the prosecutor and the investigation material. If necessary, it
may demand and obtain the case in which the judgment or the
ruling, which is possibly to be repealed, was adopted.
3. The prosecutor shall take part in the court hearing. The
person who submitted an application to newly emerged
circumstances and who is specified in Paragraph 1 of Article 446
of this Code shall be notified about the place and time of the
court hearing, however, his failure to appear shall not hinder
the consideration of the case.
4. At the appointed time the Chairman of the college shall
commence the court hearing, shall announce the conclusion of the
prosecutor and the court judgement or ruling regarding which the
case must be considered. After that the Chairman of the college
shall verify who is present at the hearing and announce the
composition of the college. Should the issue of removal appear,
the court shall decide it under procedure established in this
Code.
5. The consideration of the case shall commence by the
report of the judge in which he shall set forth the essence of
the conclusion of the prosecutor and the content of the judgment
or the ruling.
6. After the report of the judge, the prosecutor shall give
explanations.
7. The court shall retire to the deliberation room to adopt
a ruling. Having adopted the ruling, the court shall return to
the courtroom and the Chairman of the college shall announce the
resolution part of the ruling and shall set forth the arguments
of its adoption. The entire reasoned ruling shall be drawn up and
signed by the entire college of the judges within three days of
the adoption of the ruling."
9. Article 454 titled "Consideration of the Renewed Case"
(wording of 14 March 2002) of the CCP (which is in Chapter XXXIV
titled "The Renewal of a Criminal Case Due to Clearly Improper
Application of A Penal Law" of Part XI titled "The Renewal of the
Criminal Case") the compliance of Paragraph 5 of which with the
Constitution (to the corresponding extent) is disputed by the
group of Members of the Seimas, the petitioner, provides:
"1. During the consideration of a renewed criminal case,
the prosecutor and the defender shall participate. The convict,
his legal representative, the victim and his representative may
be summoned to the court hearing. The latter persons' failure to
appear shall not hinder the consideration of the case, provided
they have been properly notified about the place and time of the
consideration of the case.
2. At the beginning of the consideration of the case the
Chairman of the college shall ask the participants of the
consideration of the case whether they do not state removals of
the judges, the prosecutor, the interpreter or the secretary of
the court hearing. Stated removals shall be decided under the
procedure established in Articles 57-59 and Article 61 of this
Code.
3. In his report one of the judges shall set forth the
essence of the case and the content of the court decisions which
have been adopted in the case, as well as the content of the
presentation regarding renewal of the criminal case.
4. After the report of the judge, the speeches of the
persons who appeared at the hearing are heard. The person who
submitted the request shall be given the floor first.
5. Having heard the speeches, the court shall retire to the
deliberation room to adopt a ruling. Having adopted the ruling,
the court shall return to the courtroom and the Chairman of the
college shall announce the resolution part of the ruling and set
forth the main arguments of its adoption. The entire reasoned
ruling shall be drawn up within three days. If the convict must
be released from the place of confinement, the entire reasoned
ruling must be drawn up and referred for execution on the day of
its adoption.
6. The ruling adopted by a three-judge college and that
adopted by an extended seven-judge college shall be signed by all
the judges, while the ruling adopted by the plenary session of
the Criminal Cases Division shall be signed by the Chairman of
the plenary session and the rapporteur.
7. Minutes of the court hearing shall be taken in the court
hearing."
10. Article 460 titled "The Consideration of a Renewed
Criminal Case" (wording of 14 March 2002) of the CCP (which is in
Chapter XXXV titled "The Renewal of the Criminal Case Subsequent
to Decisions of the United Nations Human Rights Committee or the
European Court of Human Rights" of Part XI titled "The Renewal of
the Criminal Case") the compliance of Paragraphs 4 and 5 of which
with the Constitution (to the corresponding extent) is disputed
by the group of Members of the Seimas, the petitioner, provides:
1. A hearing of the college of justices of the Criminal
Cases Division or the plenary session of the supreme Court of
Lithuania for consideration of the renewed criminal case shall be
arranged within the shortest possible time from the adoption of
the ruling on renewal of the criminal case.
2. The person who submitted the request for renewal of the
criminal case shall have the right to participate in the court
hearing. The prosecutor and the defender shall participate in the
hearing. The convict, the victim and their legal representatives
shall be notified about the hearing. If the grounds of the
renewal of the case are related to the issues solved in the
cassation ruling, all the persons who had the right to
participate in the consideration of the case under cassation
procedure shall be notified about it. The persons' failure to
appear shall not hinder the consideration of the case, provided
they have been properly notified about the place and time of the
consideration of the renewed case.
3. At the beginning of the consideration of the case the
judge who was appointed as the rapporteur shall set forth the
essence of the case and the content of the court decisions which
have been adopted in the case, as well as the content of the
request or presentation regarding renewal of the criminal case.
After the report of the judge the person who has submitted the
request on renewal of the criminal case shall be given the floor.
After that the court shall give the floor to other persons who
participate in the consideration of the case. The person who
submitted the request shall have the right to give additional
explanations last.
4. Having heard the speeches and additional explanations of
the persons who participate in the consideration of the case, the
court shall retire to the deliberation room to adopt a ruling.
Having adopted the ruling, the court shall return to the
courtroom and shall announce its resolution part and set forth
the most important arguments of the adoption of the ruling.
5. The entire reasoned ruling shall be drawn up and signed
within ten days of its adoption. It shall be signed by all the
judges of the college or the Chairman of the plenary session and
the rapporteur.
6. If, upon the investigation of the renewed case, the
convict must be released from the place of confinement, the
ruling must be referred for execution on the day of its adoption.
7. Minutes of the court hearing shall be taken in the court
hearing."
11. The doubts of the group of Members of the Seimas, the
petitioner, regarding the compliance of Article 306 (wording of 8
July 2004), Paragraph 2 (wording of 14 March 2002) of Article
308, Paragraphs 12 and 13 (wording of 14 March 2002) of Article
324, Paragraph 9 (wording of 14 March 2002) of Article 377,
Paragraph 7 (wording of 14 March 2002) of Article 448, Paragraph
5 (wording of 14 March 2002) of Article 454, and Paragraphs 4 and
5 (wording of 14 March 2002) of Article 460 of the CCP with
Articles 109 and 117 of the Constitution and the constitutional
principle of a state under the rule of law, as well as regarding
the compliance of Article 306 (wording of 8 July 2004), Paragraph
2 (wording of 14 March 2002) of Article 308, Paragraphs 12 and 13
(wording of 14 March 2002) of Article 324, and Paragraph 5
(wording of 14 March 2002) of Article 454 of the CCP with Article
29 of the Constitution are substantiated by the fact that,
according to the group of Members of the Seimas, the petitioner,
the court which considers a criminal case subsequent to these
articles (parts thereof) of the CCP adopts and announces its
judgement (ruling), i.e. a final court act, without drawing up
the reasoning substantiating itit is drawn up later.
12. While deciding whether Article 306 (wording of 8 July
2004), Paragraph 2 (wording of 14 March 2002) of Article 308,
Paragraphs 12 and 13 (wording of 14 March 2002) of Article 324,
Paragraph 9 (wording of 14 March 2002) of Article 377, Paragraph
7 (wording of 14 March 2002) of Article 448, Paragraph 5 (wording
of 14 March 2002) of Article 454, and Paragraphs 4 and 5 of
Article 460 (wording of 14 March 2002) of the CCP are not in
conflict (to the corresponding extent) with the Constitution, one
is to take account of the legal regulation established in other
parts of these articles (the compliance of which with the
Constitution is not disputed by the group of Members of the
Seimas, the petitioner) and of that established in other articles
(parts thereof) of the CCP. One is to take account of inter alia
these articles of CCP: Article 303 titled "Types of Judgements"
(wording of 10 April 2003 of Article 303, in Paragraph 1 of which
it is provided that a court judgement can be either a judgement
of conviction or a judgement of acquittal, and that by a judgment
the criminal case may also be dismissed; Article 304 titled "The
introductory Part of the Judgment" (wording of 14 March 2002), in
which it is provided that in the introductory part of the
judgement the following shall be indicated: that the judgement is
adopted in the name of the Republic of Lithuania (Item 1); the
time and place of the adoption of the judgement (Item 2); the
title of the court that adopted the judgment, the names and
surnames of the judges, the secretary of the hearing, the
prosecutor, the defender, the victim, the civil claimant, the
civil respondent and their representatives, the legal
representative of the accused, and the interpreter (Item 3); the
name, surname, the date and place of birth, the personal code,
citizenship, nationality, place of residence, education, marital
status of the accused, the data about the previous record and
other data about him, which are of importance to the case (Item
4); the penal law providing for the criminal deed of the
commission of which the accused is accused (Item 5); Article 305
titled "The Recital Part of the Judgement" (wording of 14 March
2002) in Paragraph 1 of which it is provided that in the recital
of the judgement of conviction the following shall be set forth:
the circumstances of the criminal deed, which was recognised as a
proved one, i.e. the place, time, manner, consequences and other
important circumstances (Item 1); the evidence upon which the
conclusions of the court are substantiated and the reasoning by
following which the court has rejected other evidence (Item 2);
the reasoning of the qualification of the criminal deed and
conclusions (Item 3); the reasoning of the imposition of
punishment, punitive sanction or educational sanction (Item 4);
in Paragraph 2 of which it is provided that the recital of the
judgement of conviction, by which the convict is exempted from
serving the punishment, shall indicate the circumstances provided
for in Items 1-3 of Paragraph 1 of this article, as well as if
the convict is ill with any serious incurable disease due to
which serving the punishment would be too difficult, that the
illness of the convict must be confirmed by a note of the health
institution or a conclusion of a commission of experts and that,
provided a punitive sanction or an educational sanction is
imposed by exempting from serving of the punishment, the recital
of the judgment must contain the reasoning of imposition of such
sanction; in Paragraph 3 of which it is provided that the recital
of the judgement of acquittal shall set forth the essence of the
charge due to which the case was referred for consideration in
court (Item 1); the circumstances established by the court (Item
2); the reasoning of the assessment of the evidence (Item 3), the
conclusions of the court regarding the acquittal of the accused
(Item 4); in Paragraph 4 of which it is provided that the recital
of the judgment whereby the criminal case is dismissed indicates
the circumstances provided for in Items 1 and 2 of Paragraph 1 of
this article, the qualification of the criminal deed, as well as
the reasoning and bases of exemption from criminal liability, and
that, provided a punitive sanction or an educational sanction is
imposed by dismissing the criminal case, the recital indicates
the reasoning of the imposition of the said sanction; in
Paragraph 5 of which it is provided that the recital must
indicate the reasoning substantiating the decision on payment for
the damage inflicted by the criminal deed; in Paragraph 6 of
which it is provided that the recital of the judgment may set
forth also other important circumstances and the reasoning of the
decisions; Article 307 titled "The Resolution Part of the
Judgement" (wording of 14 March 2002) in Paragraph 1 of which it
is provided that the resolution part of the judgement of
conviction shall indicate: the name and surname of the accused
(Item 1); the decision to recognise the accused guilty (Item 2);
the penal law subsequent to which the accused is recognised
guilty (Item 3); decisions concerning the punishment, the
punitive sanction or the educational sanction, as well as
concerning the inclusion of the arrest or the coercive medical
measure into the time of service of the punishment, when there
are grounds for it (Item 4); the decision to recognise the
accused as a dangerous recidivist, provided the court has
recognised so (Item 5); the decision concerning the measure of
custody until the judgement becomes effective (Item 6); in
Paragraph 2 of which it is provided that in cases where the
accused who is charged with commission of several criminal deeds
is recognised guilty of committing some of the deeds, while not
guilty of committing the other deeds, the resolution part of the
judgement must precisely specify as to due to the commission of
which deeds he is convicted, and of which he is acquitted; in
Paragraph 3 of which it is provided that the resolution part of
the judgement of conviction whereby the accused is exempted from
serving the punishment shall indicate: the data and decisions
specified in Items 1-3 of Paragraph 1 of this article, as well as
the decision to impose the punishment and the decision to exempt
the convict from serving it, the decision concerning the
abolishment of the procedural coercive measures, the decision
concerning the imposition of the punitive sanction or the
educational sanction, when there are grounds for it; in Paragraph
4 of which it is provided that the resolution part of the
judgement of acquittal shall indicate: the name and surname of
the accused (Item 1); the decision to acquit the accused and the
grounds of the acquittal (Item 2); the decision on the
abolishment of the procedural coercive measures (Item 3); in
Paragraph 5 of which it is provided that the resolution part of
the judgement whereby the criminal case is dismissed shall
indicate: the name and surname of the person who is exempted from
criminal liability (Item 1); the decision to exempt the person
from criminal liability (Item 2); the decision concerning the
imposition of the punitive sanction or the educational sanction,
when there are grounds for it (Item 3); the decision concerning
the abolishment of the procedural coercive measures (Item 4); in
Paragraph 6 of which it is provided that the resolution part of
the judgement must indicate the decisions on: payment of the
damage inflicted by the criminal deed (Item 1); what is to be
done with physical evidence (Item 2); payment of the procedural
expenses (Item 3); in Paragraph 7 of which it is provided that
the resolution part of the judgement of acquittal shall indicate
the procedure and terms for appeal against the decision; Article
309 titled "Release from Arrest" (wording of 14 March 2002), in
Paragraph 1 of which it is provided that that the court shall
immediately release the acquitted or convicted person from arrest
in the courtroom: after a judgement of acquittal in regard of
this person is announced (Item 1); after a judgment whereby the
criminal case is dismissed and the person is exempted from
criminal liability is announced (Item 2); after it announces a
judgement of conviction by which one is exempted from serving the
punishment (Item 3); after the court imposes the punishment of
deprivation of public rights, the punishment of deprivation of
the right to work in certain a job or to engage in a certain
activity, the punishment of public works, a fine, or the
punishment of restriction of freedom (Item 4); after the court
imposes arrest or the punishment of deprivation of freedom the
duration of which does not exceed the time of the time spent in
pre-trial confinement (Item 5); after the court imposes the
arrest which is to be served during days-off (Item 6); after the
court postpones the execution of the judgment or the punishment
(Item 7); in Paragraph 2 of which it is provided that the court
shall immediately release the arrested accused person from
confinement in the courtroom also in the case where a ruling to
dismiss the criminal case is adopted; in Paragraph 3 of which it
is provided that the person upon whom the measure of
suppressionconfinementis imposed in another criminal case will
not be released from confinement; Article 310 titled "Handing In
a Copy of the Judgement to the Acquitted Person or the Convict"
(wording of 14 March 2002) in which it is provided that within
five days of the announcement of the judgement, and when only the
introductory and resolution pats were announcedwithin the same
period of time after the drawing up of the entire judgmentits
copy must be handed in or sent to the acquitted person or the
convict.
13. The legal regulation established in Article 306
(wording of 8 July 2004) of the CCP which is disputed (to the
corresponding extent) by the group of Members of the Seimas, the
petitioner, when it is related with inter alia the legal
regulation established in Article 305 (wording of 14 March 2002)
of the CCP, is to be construed as that including the following
provisions:
- in certain situations, which are strictly defined, where
a judge of a local court is considering a case, in which a person
is accused of commission of the crimes specified in Paragraph 1
of the said article, the judge, when he draws up a judgement of
conviction (inter alia such whereby the convict is exempted from
serving the punishment), must indicate in the recital of the
judgement the circumstances (the place, time, manner,
consequences and other important circumstances) of the deed which
was recognised as a proved one, the evidence by which the
conclusions of the court are substantiated and the reasoning by
following which the court rejected other evidence, as well as the
reasoning and conclusions of the qualification of the criminal
deed, the reasoning of the imposition of the punishment, of the
punitive sanction or the educational sanction (in case the
convict is exempted from serving the punishment, that fact
whether the convict is ill with any serious incurable disease due
to which serving the punishment would be too difficult, and if,
by exemption from serving the punishment, a punitive sanction or
an educational sanction is imposed, then also the reasoning of
the imposition of the said sanction), as well as the reasoning
substantiating the decision on payment of the damage inflicted by
the criminal deed and, in addition, he can set forth other
important circumstances and the arguments of the decisions;
- in other situations, i.e. when a judge of a local court
is considering a case in which a person is accused of commission
of criminal deeds, which are not specified in Paragraph 1 of this
article, the judge, while drawing up the judgment of conviction
(inter alia such whereby the convict is exempted from serving the
punishment), may abridge the recital of that judgementhe must
indicate in it only the circumstances (the place, time, manner,
consequences and other important circumstances) of the criminal
deed which was recognised as a proved one (in case the convict is
exempted from serving the punishment, that fact whether the
convict is ill with any serious incurable disease due to which
serving the punishment would be too difficult, and if, by
exemption from serving the punishment, a punitive sanction or an
educational sanction is imposed, then also the reasoning of the
imposition of the said sanction), in addition, he can set forth
other important circumstances and the arguments of the decisions,
however, he may avoid setting forth the evidence by which the
court conclusions are substantiated, as well as the reasoning by
following which the court rejected other evidence, the reasoning
and conclusions of the qualification of the criminal deed, the
reasoning of the imposition of the punishment, of the punitive
sanction or the educational sanction, and the reasoning
substantiating the decision on payment of the damage inflicted by
the criminal deed;
- the judge of the local court, who adopted the judgement,
draws up the non-abridged recital of the judgement within three
days of the day of the reception of the request or appeal and,
having signed it, attaches it to the existing judgment in cases
when the participants of consideration in court, who can appeal
against the court judgement under the CCP, within seven days of
the day of adoption of the judgement submit the court written
requests to receive a copy of the judgement with the non-abridged
recital, or when the judgement is appealed in the court of appeal
instance or the court of cassation instance (inter alia when the
judgement whose recital was drawn up in an abridged version and
whereby several persons were convicted or the convicts were
recognised guilty of commission of several criminal deeds is
appealed with the court of appeal instance).
Thus, Article 306 of the CCP (wording of 8 July 2004) which
(to the corresponding extent) is disputed by the group of Members
of the Seimas, the petitioner, establishes the legal regulation
whereby a judgement of conviction adopted by a local court, when
the case is considered by one judge, provided it does not exempt
the convict from serving the sentence, may be drawn up and
adopted without setting forth in the recital of the said
judgement (save the cases in which persons are accused of
commission of the crimes specified in Article 1 of this article)
the evidence by which the court conclusions are substantiated,
nor the reasoning by following which the court rejected other
evidence, nor the reasoning and conclusions of the qualification
of the criminal deed, nor the reasoning of imposition of the
punishment, the punitive sanction or the educational sanction,
nor the reasoning substantiating the decision regarding the
payment for the damage inflicted by the criminal deed. It is
considered to be enough that the said part of the judgment of
conviction sets forth the following: the circumstances of the
criminal deed which was recognised as a proved onethe place,
time, manner, consequences and other important circumstances of
its commission. Besides, if the judge thinks that there are other
important circumstances or arguments of the decisions, he may set
them forth in the recital of the judgement of conviction.
13.1. It needs to be noted that under Paragraph 1 (wording
of 8 July 2004) of Article 306 of the CCP, it is the judge
considering the case who decides whether or not to set forth the
aforesaid circumstances in the recital of the judgement of
conviction, save the strictly defined situations defined in
Paragraph 1 (wording of 8 July 2004) of Article 306 of the CCP
(where the judge of the local court is considering a case, in
which the person is accused of commission certain crimes
specified in Paragraph 1 of this article), as well as the
situation specified in Paragraph 4 of the same article (where the
judgement of conviction exempts the convict from serving the
punishment).
13.2. In this context it needs to be mentioned that the
crimes specified in Paragraph 1 (wording of 8 July 2004) of
Article 306 of the CCP due to which in the recital of the
judgement of conviction it is necessary to indicate not only the
circumstances of the criminal deed which was recognised as a
proved onethe place, time, manner, consequences and other
important circumstances of its commissionbut also the evidence
by which the conclusions of the court are substantiated and the
reasoning by following which the court has rejected other
evidence, the reasoning and conclusions of the qualification of
the criminal deed, the reasoning of the imposition of the
punishment, of the punitive sanction or the educational sanction
as well as the reasoning substantiating the decision on payment
of the damage inflicted by the criminal deed. These crimes are:
grave disturbance to health, if the one who sustained grave
injury or was made ill was not a minor, not a human being in a
helpless state, not the mother, father or child of that person,
not a pregnant woman, not two or more people, also, if the
accused has gravely injured the human being or made him ill not
by torturing or not in other way, which was not gravely cruel and
not dangerous to the life of other people, not by hooligan
motivation, not because of the duties of service or of citizen
performed by the victim, not by seeking to cover up other crime,
not by seeking to get an organ or tissue of the victim for
transplantation (Paragraph 1 (wording of 26 September 2000) of
Article 135 of the CC); rape, if the one who was raped is not a
minor (Paragraphs 1, 2, and 3 (wordings of 26 September 2000 and
22 June 2006) of Article 149 of the CCP; sexual abuse, if
corresponding actions were committed not in regard of a minor
(Paragraphs 1, 2, and 3 (wordings of 26 September 2000, 5 July
2004, and 22 June 2006) of Article 150 of the CCP; robbery, if
the accused committed robbery by invading the premises or if he
employed a non-fire arm, knife or other item which had been made
fit specially for injuring a human being, or if he employed a
fire weapon or an explosive, or if by the robbery he seized
property of big value, or if he committed robbery by taking part
in an organised group (Paragraphs 2 and 3 (wording of 4 July
2003) of Article 180 of the CCP); fraud, where the accused
acquired other person's property of big value or property right
for his benefit or the benefit of other persons, avoided the
property liability or eliminated it by deception (Paragraph 2
(wordings of 26 September 2000 and 5 July 2004) of Article 182 of
the CCP); unlawful disposal of narcotic or psychotropic
substances with the purpose of their distribution, or unlawful
disposal of very big amount of narcotic or psychotropic
substances, the accused unlawfully produced, processed, acquired,
kept, transported or sent a big amount of narcotic or
psychotropic substances with the purpose of their sale or
distribution in other manner, or sold or otherwise distributed a
very big amount of narcotic or psychotropic substances, or
unlawfully produced, processed, acquired, transported or
otherwise distributed a very big amount of narcotic or
psychotropic substances (Paragraphs 2 and 3 (wordings of 10 April
2003 and 5 July 2004) of Article 260 of the CC).
13.3. Such abridged recital of the judgement of the local
court provided for in Paragraph 1 (wording of 8 July 2004) of
Article 306 of the CCP, especially when one takes account of the
fact as to what, under Article 305 (wording of 8 July 2004) of
the CCP, should be indicated in the recital of the court
judgement of conviction, however, also as to what might be not
indicated in that court judgement, is to be regarded as a court
judgement without the argumentsthe reasoning substantiating it
of its adoption.
13.4. In this context one is to mention that regardless of
the similarity of the terminology, the abridged recital of the
judgement of conviction provided for in Article 306 (wording of 8
July 2004) of the CCP may not be equalled with the "abridged
reasoning" provided for in Paragraph 4 (wording of 19 September
2000) of Article 85 of the Law on the Proceedings of
Administrative Cases (which has not been recognised as being in
conflict with the Constitution to any extent), which can be drawn
up by the administrative court of first instance in its decision
in cases, when the respondent fully allows the claims of the
claimant.
14. On the grounds of the arguments analogous to those on
the grounds of which it was held in this Constitutional Court
ruling that Paragraph 3 (wording of 19 September 2000) of Article
85 of the Law on the Proceedings of Administrative Cases to the
extent that it provides that only the introductory and resolution
parts of the decision may be drawn up prior to the announcement
of a decision of the administrative court of first instance,
while the parts of the decision comprising the recital and the
reasoning may be drawn up later, within seven working days after
the announcement of the decision, as well as Paragraph 3 (wording
of 19 September 2000) of Article 139 of the same law, deviates
from the constitutional imperatives of justice and publicity of
law as well as from the constitutional concept of the court as
the institution which administers justice in the name of the
Republic of Lithuania, one needs to hold that the constitutional
imperatives of justice and publicity of law as well as the
constitutional concept of the court as the institution which
administers justice in the name of the Republic of Lithuania are
deviated from by the legal regulation established in Article 306
(wording of 8 July 2004) of the CCP whereby:
- the judge of the local court, when he draws up a
judgement of conviction (inter alia such whereby the convict is
exempted from serving the punishment), must indicate the
following: the circumstances (the place, time, manner,
consequences and other important circumstances) of the deed which
was recognised as a proved one, the evidence by which the
conclusions of the court are substantiated and the reasoning by
following which the court rejected other evidence, as well as the
reasoning and conclusions of the qualification of the criminal
deed, the reasoning of the imposition of the punishment, of the
punitive sanction or the educational sanction (in case the
convict is exempted from serving the punishment, that fact
whether the convict is ill with any serious incurable disease due
to which serving the punishment would be too difficult, and if,
by exemption from serving the punishment, a punitive sanction or
an educational sanction is imposed, then also the reasoning of
the imposition of the said sanction), as well as the reasoning
substantiating the decision on payment of the damage inflicted by
the criminal deedonly in certain cases which are strictly
defined, i.e. when the judge of the local court is considering
the case in which the person is accused of commission of certain
crimes specified in Paragraph 1 of the said article;
- in other situations, i.e. when the judge of the local
court is considering a case in which a person is accused of
commission of criminal deeds, which are not specified in
Paragraph 1 of the said article, the judge, while drawing up the
judgment of conviction (inter alia such whereby the convict is
exempted from serving the punishment), may abridge the recital of
that judgement in the way as it is specified in Paragraph 1 of
this article, and that in such situations a non-abridged recital
of the judgement is drawn up (within three days of the reception
of the request or appeal) and is signed by the judge who has
considered the case and attached to the existing judgment only in
cases when the participants of consideration in court, who can
appeal against the court judgement under the CCP, within seven
days of the day of adoption of the judgement submit the court
written requests to receive a copy of the judgement with the non-
abridged recital, or when the judgement is appealed in the court
of appeal instance or the court of cassation instance (inter alia
when the judgement whose recital was drawn up in an abridged
version and whereby several persons were convicted or the
convicts were recognised guilty of commission of several criminal
deeds is appealed with the court of appeal instance).
15. It needs to be held that after these provisions which
are in conflict with the Constitution are removed from the legal
system by this Constitutional Court ruling, the other legal
regulation established in Article 306 (wording of 8 July 2004) of
the CCP cannot be regarded as having independent content, nor any
potential for regulation. It is inseparably related with the said
provisions of the Constitution which have been recognised to be
in conflict with the Constitution and is also to be removed from
the legal system.
16. Taking account of the arguments set forth, one is to
draw a conclusion that Article 306 (wording of 8 July 2004) of
the CCP is in conflict with Article 109 of the Constitution and
the constitutional principles of a state under the rule of law
and justice.
17. Having held this, in the constitutional justice case at
issue the Constitutional Court will not further investigate
whether Article 306 (wording of 8 July 2004) of the CCP is not in
conflict (to any extent) with Articles 29 and 117 of the
Constitution.
18. The legal regulation established in Paragraph 2
(wording of 14 March 2002) of Article 308 (wording of 1 June
2006) of the CCP which is disputed (to the corresponding extent)
by the group of Members of the Seimas, the petitioner, is to be
construed as that including the following provisions:
- when the case is too complicated or big, the court of
first instance which is collegially considering it may, before
adopting the judgement, draw up and publicly announce only the
introductory and resolution parts of the judgement and verbally
explain the arguments of the adoption of the judgement in the
courtroom, while the recital may be drawn up and the entire
judgment may be signed by the judges who have considered the case
laterwithin seven days of the adoption of the judgment;
- in certain cases, namely when the President of the court
or the Chairman of the Criminal Cases Division gives his assent,
the recital of the adopted and publicly announced judgment may be
drawn up and the entire judgment signed even still laterwithin
fourteen days of the adoption of the judgement.
19. On the grounds of the arguments analogous to those on
the grounds of which it was held in this Constitutional Court
ruling that Paragraph 3 (wording of 19 September 2000) of Article
85 of the Law on the Proceedings of Administrative Cases to the
extent that it provides that only the introductory and resolution
parts of the decision may be drawn up prior to the announcement
of a decision of the administrative court of first instance,
while the parts of the decision comprising the recital and the
reasoning may be drawn up later, within seven working days after
the announcement of the decision, as well as Paragraph 3 (wording
of 19 September 2000) of Article 139 of the same law, deviates
from the constitutional imperatives of justice and publicity of
law as well as from the constitutional concept of the court as
the institution which administers justice in the name of the
Republic of Lithuania, it needs to be held that also the
provision of Paragraph 2 (wording of 14 March 2002) of Article
308 (wording of 1 June 2006) of the CCP that when the case is too
complicated or big, the court of first instance which is
collegially considering it may, before adopting the judgement,
draw up and publicly announce only the introductory and
resolution parts of the judgement and verbally explain the
arguments of the adoption of the judgement in the courtroom,
while the recital may be drawn up and the entire judgment may be
signed by the judges who have considered the case laterwithin
seven days of the adoption of the judgment, deviates from the
constitutional imperatives of justice and publicity of law as
well as from the constitutional concept of the court as the
institution which administers justice in the name of the Republic
of Lithuania.
20. In this context it needs to be mentioned that the
provision "in this case the court shall announce the introductory
and resolution parts of the judgement and shall verbally explain
the arguments of the adoption of the judgement" of Paragraph 2
(wording of 14 March 2002) of Article 308 (wording of 1 June
2006) of the CCP implies the legal situation which is essentially
different from those implied by the provision of Paragraph 3
(wording of 19 September 2000) of Article 85 of Law on the
Proceedings of Administrative Cases that only the introductory
and resolution parts of the decision adopted by the
administrative court of first instance are announced publicly (in
the courtroom) and the provision "having adopted the decision or
ruling, the court shall return to the courtroom and the chairman
of the chamber or the judge rapporteur shall read out the
introductory and resolution parts of the decision or ruling,
briefly define the reasoning of the decision or ruling" of
Paragraph 2 (wording of 19 September 2000) of Article 139 of the
same law, which, when one takes account of the meaning that they
will acquire after this Constitutional Court ruling comes into
force, are not recognised as being in conflict with the
Constitution: the said provision of Paragraph 2 (wording of 14
March 2002) of Article 308 (wording of 1 June 2006) of the CCP
(when account is taken of inter alia the words "in this case"
employed therein) is related with only one legal situation,
namely such, where the recital of the court of first instance is
drawn up after the court judgement which is composed of only the
introductory and resolution parts has already been adopted and
publicly announced, and it cannot be related with such legal
situation where the judgement, which was adopted and publicly
announced by the court of first instance, is composed of not only
the introductory and resolution parts that were drawn up before
it was adopted, but also the recital part drawn up at the same
time, i.e. when that judgment of the court of first instance is
one document, a single act of application of law. Thus, the said
provision is inseparable from other elements of the provisions of
Paragraph 2 (wording of 14 March 2002) of Article 308 (wording of
1 June 2006) of the CCP that when the case is too complicated or
big, the court of first instance which is collegially considering
it may, before adopting the judgement, draw up and publicly
announce only the introductory and resolution parts of the
judgement and verbally explain the arguments of the adoption of
the judgement in the courtroom, while the recital may be drawn up
and the entire judgment may be signed by the judges who have
considered the case laterwithin seven days of the adoption of
the judgment; if these elements were recognised as being in
conflict with the Constitution by this Constitutional Court
ruling, the said provision not only would not change its meaning,
but, as it does not have any independent content, would not have
any regulatory potential.
21. Having held that the provision of Paragraph 2 (wording
of 14 March 2002) of Article 308 (wording of 1 June 2006) of the
CCP that when the case is too complicated or big, the court of
first instance which is collegially considering it may, before
adopting the judgement, draw up and publicly announce only the
introductory and resolution parts of the judgement and verbally
explain the arguments of the adoption of the judgement in the
courtroom, while the recital may be drawn up and the entire
judgment may be signed by the judges who have considered the case
laterwithin seven days of the adoption of the judgmentdeviates
from the constitutional imperatives of justice and publicity of
law as well as from the constitutional concept of the court as
the institution which administers justice in the name of the
Republic of Lithuania, it needs also to be held that also the
provision of the same paragraph that in certain cases, namely
when the President of the court or the Chairman of the Criminal
Cases Division gives his assent, the recital of the adopted and
publicly announced judgment may be drawn up and the entire
judgment signed even still laterwithin fourteen days of the
adoption of the judgementalso deviates from the aforesaid
provisions of the Constitution.
22. Taking account of the arguments set forth, one is to
draw a conclusion that Paragraph 2 (wording of 14 March 2002) of
Article 308 (wording of 1 June 2006) of the CCP is in conflict
with Article 109 of the Constitution and the constitutional
principles of a state under the rule of law and justice.
23. Having held this, in the constitutional justice case at
issue the Constitutional Court will not further investigate
whether Paragraph 2 (wording of 14 March 2002) of Article 308
(wording of 1 June 2006) of the CCP is not in conflict (to any
extent) with Articles 29 and 117 of the Constitution.
24. The legal regulation established in Paragraph 12
(wording of 14 March 2002) of Article 324 of the CCP, which is
(to the corresponding extent) disputed by the group of Members of
the Seimas, the petitioner, is to be construed as including the
following provisions:
- when the case is too complicated or big, the court of
appeal instance which is considering it may, before it adopts a
judgment (ruling), draw up only its introductory and resolution
parts in the deliberation room and announce them in the courtroom
and verbally explain the arguments of its adoption in the
courtroom, while the recital may be drawn up and the entire
judgment or ruling may be signed by the judges who have
considered the case under appeal procedure laterwithin seven
days of the adoption of the judgement;
- in certain cases, namely when the President of the court
or the Chairman of the Criminal Cases Division gives his assent,
the recital part of the adopted judgement (ruling) which was
publicly announced may be drawn up and the entire judgment or
ruling may be signed by the judges who have considered the case
under appeal procedure still laterwithin fourteen days of the
adoption of the judgement.
25. On the grounds of the arguments analogous to those on
the grounds of which it was held in this Constitutional Court
ruling that Paragraph 3 (wording of 19 September 2000) of Article
85 of the Law on the Proceedings of Administrative Cases to the
extent that it provides that only the introductory and resolution
parts of the decision may be drawn up prior to the announcement
of a decision of the administrative court of first instance,
while the parts of the decision comprising the recital and the
reasoning may be drawn up later, within seven working days after
the announcement of the decision, as well as Paragraph 3 (wording
of 19 September 2000) of Article 139 of the same law, deviates
from the constitutional imperatives of justice and publicity of
law as well as from the constitutional concept of the court as
the institution which administers justice in the name of the
Republic of Lithuania, one needs to hold that the provision of
Paragraph 12 (wording of 14 March 2002) of Article 324 of the CCP
that when the case is too complicated or big, the court of appeal
instance which is considering it may, before it adopts a judgment
(ruling), draw up only its introductory and resolution parts in
the deliberation room and announce them in the courtroom and
verbally explain the arguments of its adoption in the courtroom,
while the recital may be drawn up and the entire judgment or
ruling may be signed by the judges who have considered the case
under appeal procedure laterwithin seven days of the adoption of
the judgementalso deviates from the constitutional imperatives
of justice and publicity of law as well as from the
constitutional concept of the court as the institution which
administers justice in the name of the Republic of Lithuania.
26. The provision of Paragraph 12 (wording of 14 March
2002) of Article 324 of the CCP that in certain cases, namely,
when the President of the court or the Chairman of the Criminal
Cases Division gives his assent, the recital part of the adopted
judgement (ruling) which was publicly announced may be drawn up
and the entire judgment or ruling is signed by the judges who
have considered the case under appeal procedure still later
within fourteen days of the adoption of the judgementis
virtually analogous to the provision of Paragraph 2 (wording of
14 March 2002) of Article 308 (wording of 1 June 2006) of the CCP
that in certain cases, namely when the President of the court or
the Chairman of the Criminal Cases Division gives his assent, the
recital of the adopted and publicly announced judgment may be
drawn up and the entire judgment signed even still laterwithin
fourteen days of the adoption of the judgementwhich, as it was
held in this Constitutional Court ruling, is in conflict with
Article 109 of the Constitution and the constitutional principles
of a state under the rule of law and justice.
27. Taking account of the arguments set forth, as well as
of the argument on the grounds of which it was held in this
Constitutional Court ruling that Paragraph 2 (wording of 14 March
2002) of Article 308 (wording of 1 June 2006) of the CCP is in
conflict with Article 109 of the Constitution and the
constitutional principles of a state under the rule of law and
justice, it needs to be held that also Paragraph 12 (wording of
14 March 2002) of Article 324 of the CCP is in conflict with
Article 109 of the Constitution and the constitutional principles
of a state under the rule of law and justice.
28. Having held this, in the constitutional justice case at
issue the Constitutional Court will not further investigate
whether Paragraph 12 (wording of 14 March 2002) of Article 324 of
the CCP (to any extent) is not conflict with Articles 29 and 117
of the Constitution.
29. The legal regulation established in Paragraph 13
(wording of 14 March 2002) of Article 324 of the CCP, which is
(to the corresponding extent) disputed by the group of Members of
the Seimas, the petitioner, is to be construed as including inter
alia the provision that after the court of appeal instance,
pursuant to Paragraph 12 (wording of 14 March 2002) of the same
article (which, as it was held in this Constitutional Court
ruling, is in conflict with Article 109 of the Constitution and
the constitutional principles of a state under the rule of law
and justice), has drawn up in the deliberation room only the
introductory and resolution parts of the judgement (ruling) and
announced it publicly in the courtroom (from which only the
resolution part is mentioned expressis verbis in Paragraph 13
(wording of 14 March 2002) of Article 324 of the CCP), a copy of
the judgement or the ruling must be sent to the arrested convict
who has appealed against the judgement, or with whose interests
the judgement or the ruling of the court of appeal instance is
related.
30. Such provision of Paragraph 13 (wording of 14 March
2002) of Article 324 of the CCP is inseparably related with the
legal regulation established in Paragraph 12 (wording of 14 March
2002) of the same article, which, as it was held in their
Constitutional Court ruling, is in conflict with Article 109 of
the Constitution and the constitutional principles of a state
under the rule of law and justice: this provision of Paragraph 13
(wording of 14 March 2002) of Article 324 of the CCP models the
legal situation which is the continuation of the legal situation
existing under Paragraph 12 (wording of 14 March 2002) of Article
324 of the CCP and which is in conflict with the Constitution.
31. Having held that Paragraph 12 (wording of 14 March
2002) of Article 324 of the CCP is in conflict with Article 109
of the Constitution and the constitutional principles of a state
under the rule of law and justice, one is also to hold that also
the provision of Paragraph 13 (wording of 14 March 2002) of
Article 324 of the CCP that after the court of appeal instance,
pursuant to Paragraph 12 (wording of 14 March 2002) of the same
article, has drawn up in the deliberation room only the
introductory and resolution parts of the judgement (ruling) and
announced it publicly in the courtroom, a copy of the judgement
or the ruling must be sent to the arrested convict who has
appealed against the judgement, or with whose interests the
judgement or the ruling of the court of appeal instance is
related, is also in conflict with Article 109 of the Constitution
and the constitutional principles of a state under the rule of
law and justice.
32. Alongside, it needs to be noted that there are no legal
arguments which would permit to assert that the other legal
regulation established in Paragraph 13 (wording of 14 March 2002)
of Article 324 of the CCP might be in conflict with the
Constitution; besides, its compliance with the Constitution is
not disputed by the group of Members of the Seimas, the
petitioner, either. Therefore, in the constitutional justice case
at issue the Constitutional Court will not investigate whether
the other legal regulation established in Paragraph 13 (wording
of 14 March 2002) of Article 324 of the CCP is not in conflict
with the Constitution.
33. Taking account of the arguments set forth, one is to
draw a conclusion that the provision "while if only the
resolution part was announcedwithin the same time period of
signing of the judgement or the ruling" of Paragraph 13 (wording
of 14 March 2002) of Article 324 of the CCP is in conflict with
Article 109 of the Constitution and the constitutional principles
of a state under the rule of law and justice.
34. Having held this, in the constitutional justice case at
issue the Constitutional Court will not further investigate
whether Paragraph 13 (wording of 14 March 2002) of Article 324 of
the CCP (to any extent) is not in conflict with Articles 29 and
117 of the Constitution.
35. The legal regulation established in Paragraph 9
(wording of 14 March 2002) of Article 377 (wording of 8 July
2004) of the CCP, which is (to the corresponding extent) disputed
by the group of Members of the Seimas, the petitioner, is to be
construed as including the following provisions:
- having considered the case, the court retires to the
deliberation room to adopt a ruling;
- the court of cassation instance which is considering a
case can, before it adopts the ruling, draw up only its
resolution part, by setting forth verbally the arguments of its
adoption in the courtroom, while the recital and even the
introductory parts can be drawn up and the entire ruling may be
signed by the judges who have considered the case laterwithin
seven days of the adoption of the ruling;
- in certain cases, namely when the President of the court
or the Chairman of the Criminal Cases Division gives his assent,
the introductory and recital parts of the adopted and publicly
announced ruling may be drawn up and the entire ruling may be
signed still laterwithin fourteen days of the adoption of the
ruling.
36. It is evident that there are no legal arguments
permitting to assert that the provision "having considered the
case, the court shall retire to the deliberation room to adopt
the ruling" of Paragraph 9 (wording of 14 March 2002) of Article
377 (wording of 8 July 2004) of the CCP could be in conflict with
the Constitution, besides, its compliance with the Constitution
is not disputed by the group of Members of the Seimas, the
petitioner, either.
37. On the grounds of the arguments analogous to those on
the grounds of which it was held in this Constitutional Court
ruling that Paragraph 3 (wording of 19 September 2000) of Article
85 of the Law on the Proceedings of Administrative Cases to the
extent that it provides that only the introductory and resolution
parts of the decision may be drawn up prior to the announcement
of a decision of the administrative court of first instance,
while the parts of the decision comprising the recital and the
reasoning may be drawn up later, within seven working days after
the announcement of the decision, as well as Paragraph 3 (wording
of 19 September 2000) of Article 139 of the same law, deviates
from the constitutional imperatives of justice and publicity of
law as well as from the constitutional concept of the court as
the institution which administers justice in the name of the
Republic of Lithuania, one needs to hold that the provision of
Paragraph 9 (wording of 14 March 2002) of Article 377 (wording of
8 July 2004) of the CCP that the court of cassation instance
which is considering a case can, before it adopts the ruling,
draw up only its resolution part, by setting forth verbally the
arguments of its adoption in the courtroom, while the recital and
even the introductory parts can be drawn up and the entire ruling
may be signed by the judges who have considered the case later
within seven days of the adoption of the rulingalso deviates
from the constitutional imperatives of justice and publicity of
law as well as from the constitutional concept of the court as
the institution which administers justice in the name of the
Republic of Lithuania.
38. The provision of Paragraph 9 (wording of 14 March 2002)
of Article 377 (wording of 8 July 2004) of the CCP that in
certain cases, namely when the President of the court or the
Chairman of the Criminal Cases Division gives his assent, the
introductory and recital parts of the adopted and publicly
announced ruling may be drawn up and the entire ruling may be
signed still laterwithin fourteen days of the adoption of the
rulingis analogous to the provision of Paragraph 2 (wording of
14 March 2002) of Article 308 (wording of 1 June 2006) of the CCP
that in certain cases, namely when the President of the court or
the Chairman of the Criminal Cases Division gives his assent, the
introductory part of the adopted and publicly announced judgement
adopted by the court of first instance may be drawn up and the
entire ruling may be signed by the judges who have considered the
case still laterwithin fourteen days of the adoption of the
judgementwhich, as it has been held in this Constitutional Court
ruling, is in conflict with Article 109 of the Constitution and
the constitutional principles of a state under the rule of law
and justice.
39. Taking account of the arguments set forth, as well as
of the arguments on the grounds of which it was held in this
Constitutional Court ruling that Paragraph 2 (wording of 14 March
2002) of Article 308 (wording of 1 June 2006) of the CCP is in
conflict with Article 109 of the Constitution and the
constitutional principles of a state under the rule of law and
justice, one is to draw a conclusion that Paragraph 9 (wording of
14 March 2002) of Article 377 (wording of 8 July 2004) of the CCP
to the extent that it establishes that the court of cassation
instance which is considering a case can, before it adopts the
ruling, draw up only its resolution part, by setting forth
verbally the arguments of its adoption in the courtroom, while
the recital and even the introductory parts can be drawn up and
the entire ruling may be signed by the judges who have considered
the case laterwithin seven days of the adoption of the ruling
while with the assent of the President of the court or the
Chairman of the Criminal Cases Divisionwithin fourteen days of
the adoption of the ruling, is in conflict with Article 109 of
the Constitution and the constitutional principles of a state
under the rule of law and justice.
40. Having held this, the Constitutional Court will not
investigate in the constitutional justice case at issue whether
Paragraph 9 (wording of 14 March 2002) of Article 377 (wording of
8 July 2004) of the CCP is not in conflict (to any extent) with
Article 117 of the Constitution.
41. The legal regulation established in Paragraph 7
(wording of 14 March 2002) of Article 448 of the CCP, which is
(to the corresponding extent) disputed by the group of Members of
the Seimas, the petitioner, is to be construed as including inter
alia the following provisions:
- having considered the issue of renewal of the case due to
newly emerged circumstances, the tree-judge college of the
Criminal Cases Division of the Supreme Court of Lithuania retires
to the deliberation room to adopt a ruling;
- the tree-judge college of the Criminal Cases Division of
the Supreme Court of Lithuania which is considering the issue of
renewal of the case due to newly emerged circumstances can,
before it adopts the ruling, draw up only the resolution part of
the ruling and announce it, while in the courtroom the Chairman
of the college verbally sets forth the arguments of its adoption,
while the recital and even introductory parts may be drawn up and
the entire ruling can be signed by the judges laterwithin three
days of the adoption of the ruling.
42. It is evident that there are no legal arguments
permitting to assert that the provision "the court shall retire
to the deliberation room to adopt a ruling" of Paragraph 7
(wording of 14 March 2002) of Article 448 of the CCP could be in
conflict with the Constitution, besides, its compliance with the
Constitution is not disputed by the group of Members of the
Seimas, the petitioner, either.
43. On the grounds of the arguments analogous to those on
the grounds of which it was held in this Constitutional Court
ruling that Paragraph 3 (wording of 19 September 2000) of Article
85 of the Law on the Proceedings of Administrative Cases to the
extent that it provides that only the introductory and resolution
parts of the decision may be drawn up prior to the announcement
of a decision of the administrative court of first instance,
while the parts of the decision comprising the recital and the
reasoning may be drawn up later, within seven working days after
the announcement of the decision, as well as Paragraph 3 (wording
of 19 September 2000) of Article 139 of the same law, deviates
from the constitutional imperatives of justice and publicity of
law as well as from the constitutional concept of the court as
the institution which administers justice in the name of the
Republic of Lithuania, one needs to hold that the provision of
Paragraph 7 (wording of 14 March 2002) of Article 448 of the CCP
that the tree-judge college of the Criminal Cases Division of the
Supreme Court of Lithuania which is considering the issue of
renewal of the case due to newly emerged circumstances can,
before it adopts the ruling, draw up only the resolution part of
the ruling and announce it, while in the courtroom the Chairman
of the college verbally sets forth the arguments of its adoption,
while the recital and introductory parts may be drawn up and the
entire ruling can be signed by the judges laterwithin three days
of the adoption of the rulingalso deviates from the
constitutional imperatives of justice and publicity of law as
well as from the constitutional concept of the court as the
institution which administers justice in the name of the Republic
of Lithuania.
44. Taking account of the arguments set forth, one is to
draw a conclusion that the provision of Paragraph 7 (wording of
14 March 2002) of Article 448 of the CCP that the tree-judge
college of the Criminal Cases Division of the Supreme Court of
Lithuania which is considering the issue of renewal of the case
due to newly emerged circumstances can, before it adopts the
ruling, draw up only the resolution part of the ruling and
announce it, while in the courtroom the Chairman of the college
verbally sets forth the arguments of its adoption, while the
recital and descriptive parts may be drawn up and the entire
ruling of the judges of the entire ruling can be signed by the
judges laterwithin three days of the adoption of the rulingis
in conflict with Article 109 of the Constitution and the
constitutional principles of a state under the rule of law and
justice.
45. Having held this, the Constitutional Court will not
investigate in the constitutional justice case at issue whether
Paragraph 7 (wording of 14 March 2002) of Article 448 of the CCP
is not in conflict (to any extent) with Article 117 of the
Constitution.
46. The legal regulation established in Paragraph 5
(wording of 14 March 2002) of Article 454 of the CCP, which is
(to the corresponding extent) disputed by the group of Members of
the Seimas, the petitioner, is to be construed as including the
following provisions:
- having considered the issue of renewal of the case due to
a clearly improper application of the penal law, the tree-judge
college of the Criminal Cases Division of the Supreme Court of
Lithuania, or the extended seven-judge college of this division,
or the Criminal Cases Division of the Supreme Court (which is
considering such an issue in its plenary session), retires to the
deliberation room to adopt a ruling;
- having considered the issue of renewal of the case due to
a clearly improper application of the penal law, the tree-judge
college of the Criminal Cases Division of the Supreme Court of
Lithuania, or the extended seven-judge college of this division,
or the Criminal Cases Division of the Supreme Court (which is
considering such an issue in its plenary session) may, before it
adopts a ruling, draw up only the resolution part of the ruling
and announce it in the courtroom, the Chairman of the college
setting forth verbally the main arguments of its adoption, while
the recital and even the introductory parts may be drawn up and
the entire ruling may be signed by the judges who have considered
the case laterwithin three days of the adoption of the ruling;
- if the convict must be released from the place of
confinement, the entire reasoned ruling must be drawn up and
referred for execution on the day of its adoption.
47. It is evident that there are no legal arguments
permitting to assert that the provisions "having heard the
speeches, the court shall retire to the deliberation room to
adopt a ruling" and "if the convict must be released from the
place of confinement, the entire reasoned ruling must be drawn up
and referred for execution on the day of its adoption" of
Paragraph 5 (wording of 14 March 2002) of Article 454 of the CCP
could be in conflict with the Constitution. Besides, their
compliance with the Constitution is not disputed by the group of
Members of the Seimas, the petitioner, either.
48. On the grounds of the arguments analogous to those on
the grounds of which it was held in this Constitutional Court
ruling that Paragraph 3 (wording of 19 September 2000) of Article
85 of the Law on the Proceedings of Administrative Cases to the
extent that it provides that only the introductory and resolution
parts of the decision may be drawn up prior to the announcement
of a decision of the administrative court of first instance,
while the parts of the decision comprising the recital and the
reasoning may be drawn up later, within seven working days after
the announcement of the decision, as well as Paragraph 3 (wording
of 19 September 2000) of Article 139 of the same law, deviates
from the constitutional imperatives of justice and publicity of
law as well as from the constitutional concept of the court as
the institution which administers justice in the name of the
Republic of Lithuania, one needs to hold that also Paragraph 5
(wording of 14 March 2002) of Article 454 of the CCP to the
extent that it establishes that, having considered the issue of
renewal of the case due to a clearly improper application of the
penal law, the tree-judge college of the Criminal Cases Division
of the Supreme Court of Lithuania, or the extended seven-judge
college of this division, or the Criminal Cases Division of the
Supreme Court (which is considering such an issue in its plenary
session) may, before it adopts a ruling, draw up only the
resolution part of the ruling and announce it in the courtroom,
when the Chairman of the college setting forth verbally the main
arguments of its adoption, while the recital and even the
introductory parts may be drawn up and the entire ruling may be
signed by the judges who have considered the case laterwithin
three days of the adoption of the rulingdeviates from the
constitutional imperatives of justice and publicity of law as
well as from the constitutional concept of the court as the
institution which administers justice in the name of the Republic
of Lithuania.
49. Taking account of the arguments set forth, one is to
draw a conclusion that Paragraph 5 (wording of 14 March 2002) of
Article 454 of the CCP to the extent that it establishes that,
having considered the issue of renewal of the case due to a
clearly improper application of the penal law, the tree-judge
college of the Criminal Cases Division of the Supreme Court of
Lithuania, or the extended seven-judge college of this division,
or the Criminal Cases Division of the Supreme Court (which is
considering such an issue in its plenary session) may, before it
adopts a ruling, draw up only the resolution part of the ruling
and announce it in the courtroom, when the Chairman of the
college setting forth verbally the main arguments of its
adoption, while the recital and even the introductory parts may
be drawn up and the entire ruling may be signed by the judges who
have considered the case laterwithin three days of the adoption
of the rulingis in conflict with Article 109 of the Constitution
and the constitutional principles of a state under the rule of
law and justice.
50. Having held this, the Constitutional Court will not
investigate in the constitutional justice case at issue whether
Paragraph 5 (wording of 14 March 2002) of Article 454 of the CCP
is not in conflict (to any extent) with Articles 29 and 117 of
the Constitution.
51. Paragraph 6 (wording of 14 March 2002) of Article 454
of the CCP whereby the ruling on the renewal of a criminal case
due to a clearly improper application of the penal law, which is
adopted by the tree-judge college of the Criminal Cases Division
of the Supreme Court of Lithuania and that adopted by an extended
seven-judge college of the same division shall be signed by all
the judges, while the ruling adopted by the plenary session of
the Criminal Cases Division of the Supreme Court of Lithuania
shall be signed by the Chairman of the plenary session and the
rapporteur is inseparably related with Paragraph 5 (wording of 14
March 2002) of Article 454 of the CCP which, as it was held in
this Constitutional Court ruling, to the extent that it
establishes that, having considered the issue of renewal of the
case due to a clearly improper application of the penal law, the
tree-judge college of the Criminal Cases Division of the Supreme
Court of Lithuania, or the extended seven-judge college of this
division, or the Criminal Cases Division of the Supreme Court
(which is considering such an issue in its plenary session) may,
before it adopts a ruling, draw up only the resolution part of
the ruling and announce it in the courtroom, the Chairman of the
college setting forth verbally the main arguments of its
adoption, while the recital and the introductory parts may be
drawn up and the entire ruling may be signed by the judges who
have considered the case laterwithin three days of the adoption
of the rulingis in conflict with Article 109 of the Constitution
and the constitutional principles of a state under the rule of
law and justice.
51.1. It has been held in this Constitutional Court ruling
that a final court act must be signed by all the judges who have
considered the case; in case this has not been done, such a final
court act, under the Constitution, is not an act of justice
administered, nor even can it be regarded as an officially
adopted act; it was also held that laws must establish such
procedure for disputing and repeal of final court acts, which
would effectively guarantee that such final acts, should they be
adopted, would be repealed.
It needs to be noted that the fact that a certain judge
voted for or against a corresponding final court act, also
whether he expressed a dissenting opinion or not, is of no
importance to the signing of the final court act.
The legal regulation permitting a certain judge who has
considered a certain case (in the most general meaning of this
word) not to sign a final court act (which has also the
resolution part) which is publicly announced may in no way be
constitutionally justified.
51.2. Paragraph 6 (wording of 14 March 2002) of Article 454
of the CCP precisely establishes such legal regulation, i.e. a
provision that the ruling on renewal of a criminal case due to a
clearly improper application of the penal law adopted in the
plenary session of the Criminal Cases Division of the Supreme
Court of Lithuania is signed by the Chairman of the session and
the rapporteur; the other judges who adopted the ruling do not
sign it.
51.3. Taking account of the arguments set forth, one is to
draw a conclusion that Paragraph 6 (wording of 14 March 2002) of
Article 454 of the CCP to the extent that it establishes that the
ruling adopted in the plenary session the Criminal Cases Division
of the Supreme Court of Lithuania, which considers the issue of
renewal of a criminal case due to a clearly improper application
of the penal law, is signed by the Chairman of the session and
the rapporteur and not all the judges who have considered the
case (regardless of whether they voted for or against such
ruling), is in conflict with Article 109 of the Constitution and
the constitutional principles of a state under the rule of law
and justice.
52. The legal regulation established in Paragraph 4
(wording of 14 March 2002) of Article 460 of the CCP, which is
(to the corresponding extent) disputed by the group of Members of
the Seimas, the petitioner, is to be construed as including the
following provisions:
- a three-judge college of the Criminal Cases Division of
the Supreme Court of Lithuania, after it has considered a request
or presentation to renew a criminal case subsequent to a decision
of the United Nations Human Rights Committee or the European
Court of Human Rights, as well as the Criminal Cases Division of
the Supreme Court of Lithuania, after it had considered such a
request in the plenary session, after they have heard the
speeches and additional explanations of the persons who
participate in the consideration of the case, retire to the
deliberation room to adopt a ruling;
- the three-judge college of the Supreme Court of
Lithuania, which is considering a request or presentation to
renew a criminal case subsequent to a decision of the United
Nations Human Rights Committee or the European Court of Human
Rights may, before it adopts a ruling, draw up only the
resolution part of the ruling and announce it in the courtroom,
by verbally setting forth the main arguments of its adoption.
53. It is evident that there are no legal arguments
permitting to assert that the provision "having heard the
speeches and additional explanations of the persons who
participate in the consideration of the case, the court shall
retire to the deliberation room to adopt a ruling" of Paragraph 4
(wording of 14 March 2002) of Article 460 of the CCP could be in
conflict with the Constitution. Besides, their compliance with
the Constitution is not disputed by the group of Members of the
Seimas, the petitioner, either.
54. On the grounds of the arguments analogous to those on
the grounds of which it was held in this Constitutional Court
ruling that Paragraph 3 (wording of 19 September 2000) of Article
85 of the Law on the Proceedings of Administrative Cases to the
extent that it provides that only the introductory and resolution
parts of the decision may be drawn up prior to the announcement
of a decision of the administrative court of first instance,
while the parts of the decision comprising the recital and the
reasoning may be drawn up later, within seven working days after
the announcement of the decision, as well as Paragraph 3 (wording
of 19 September 2000) of Article 139 of the same law, deviates
from the constitutional imperatives of justice and publicity of
law as well as from the constitutional concept of the court as
the institution which administers justice in the name of the
Republic of Lithuania, one needs to hold that also Paragraph 4
(wording of 14 March 2002) of Article 460 of the CCP to the
extent that it establishes that the three-judge college of the
Supreme Court of Lithuania, which is considering a request or
presentation to renew a criminal case subsequent to a decision of
the United Nations Human Rights Committee or the European Court
of Human Rights may, before it adopts a ruling, draw up only the
resolution part of the ruling and announce it in the courtroom,
by verbally setting forth the main arguments of its adoption,
deviates from the constitutional imperatives of justice and
publicity of law as well as from the constitutional concept of
the court as the institution which administers justice in the
name of the Republic of Lithuania.
55. Taking account of the arguments set forth, one is to
draw a conclusion that Paragraph 4 (wording of 14 March 2002) of
Article 460 of the CCP to the extent that it establishes that the
three-judge college of the Supreme Court of Lithuania, which is
considering a request or presentation to renew a criminal case
subsequent to a decision of the United Nations Human Rights
Committee or the European Court of Human Rights may, before it
adopts a ruling, draw up only the resolution part of the ruling
and announce it in the courtroom, by verbally setting forth the
main arguments of its adoption, is in conflict with Article 109
of the Constitution and the constitutional principles of a state
under the rule of law and justice.
56. Having held this, in this constitutional justice case
the Constitutional Court will not further investigate whether
Paragraph 4 (wording of 14 March 2002) of Article 460 of the CCP
is not in conflict (to the corresponding extent) with Article 117
of the Constitution.
57. The legal regulation established in Paragraph 5
(wording of 14 March 2002) of Article 460 of the CCP, which is
disputed by the group of Members of the Seimas, the petitioner,
is to be construed as including the following provisions:
- the introductory and recital parts of a ruling on
renewing a criminal case subsequent to a decision of the United
Nations Human Rights Committee or the European Court of Human
Rights, which is adopted by a three-judge college of the Criminal
Cases Division of the Supreme Court of Lithuania and the Criminal
Cases Division of the Supreme Court of Lithuania, may be drawn up
not prior to the adoption and public announcement (in the
courtroom) of the corresponding ruling, but later, within ten
days of the adoption of that ruling;
- if the said ruling is adopted by the three-judge college
of the Criminal Cases Division of the Supreme Court of Lithuania,
it is signed by all judges of the college;
- if the said ruling is adopted by the Criminal Cases
Division of the Supreme Court of Lithuania in its plenary
session, it is signed by the Chairman of the plenary session and
the judge-rapporteur.
58. The provision of Paragraph 5 (wording of 14 March 2002)
of Article 460 of the CCP that the introductory and recital parts
of a ruling on renewing a criminal case subsequent to a decision
of the United Nations Human Rights Committee or the European
Court of Human Rights, which is adopted by a three-judge college
of the Criminal Cases Division of the Supreme Court of Lithuania
and the Criminal Cases Division of the Supreme Court of
Lithuania, may be drawn up not prior to the adoption and public
announcement (in the courtroom) of the corresponding ruling, but
later, within ten days of the adoption of that ruling, is
inseparably related with the legal regulation established in
Paragraph 4 (wording of 14 March 2002) of the same article,
which, as it was held in this Constitutional Court ruling, to the
extent that it establishes that the three-judge college of the
Supreme Court of Lithuania, which is considering a request or
presentation to renew a criminal case subsequent to a decision of
the United Nations Human Rights Committee or the European Court
of Human Rights may, before it adopts a ruling, draw up only the
resolution part of the ruling and announce it in the courtroom,
by verbally setting forth the main arguments of its adoption, is
in conflict with Article 109 of the Constitution and the
constitutional principles of a state under the rule of law and
justice: this provision of Paragraph 5 (wording of 14 March 2002)
of Article 460 of the CCP models a legal situation which is the
continuation of the legal situation shaped by Paragraph 4
(wording of 14 March 2002) of Article 460 of the CCP, which is in
conflict with the Constitution.
59. It is clear that there are no legal arguments which
would permit to assert that the provision "it is signed by all
judges of the college" of Paragraph 5 (wording of 14 March 2002)
of Article 460 of the CCP could be in conflict with the
Constitution; besides, its compliance with the Constitution is
not disputed by the group of Members of the Seimas, the
petitioner, either.
60. The compliance of the provision of Paragraph 5 (wording
of 14 March 2002) of Article 460 of the CCP that that if a ruling
subsequent to a decision of the United Nations Human Rights
Committee or the European Court of Human Rights is adopted by the
Criminal Cases Division of the Supreme Court of Lithuania in its
plenary session, this ruling is signed by the Chairman of the
plenary session and the judge-rapporteur is to be assessed
differently.
Taking account of the arguments on the grounds whereof it
has been held in this Constitutional Court ruling that Paragraph
6 (wording of 14 March 2002) of Article 454 of the Code of
Criminal Procedure to the extent that it provides that the ruling
adopted by the Criminal Cases division of the Supreme Court of
Lithuania, which in the plenary session considers the question of
the renewal of the criminal case due to the clearly inappropriate
application of the criminal law, shall be signed by the chairman
and the judge rapporteur of the plenary session and not by all
the judges who have adopted that ruling is in conflict with
Article 109 of the Constitution, and with the constitutional
principles of a state under the rule of law and justice, it is to
be held that also Paragraph 5 (wording of 14 March 2002) of
Article 460 of the CCP to the extent that it establishes that if
a ruling subsequent to a decision of the United Nations Human
Rights Committee or the European Court of Human Rights is adopted
by the Criminal Cases Division of the Supreme Court of Lithuania
in its plenary session, this ruling is signed by the Chairman of
the plenary session and the judge-rapporteur and not all the
judges who have adopted the ruling, deviates from the
constitutional imperatives of justice and publicity of law as
well as from the constitutional concept of the court as the
institution which administers justice in the name of the Republic
of Lithuania.
61. Taking account of the arguments set forth, one is to
draw a conclusion that Paragraph 5 (wording of 14 March 2002) of
Article 460 of the CCP to the extent that it establishes that the
introductory and recital parts of a ruling of a three-judge
college of the Criminal Cases Division of the Supreme Court of
Lithuania and of the Criminal Cases Division of the Supreme Court
of Lithuania regarding renewal of a criminal case subsequent to a
decision of the United Nations Human Rights Committee or the
European Court of Human Rights may be drawn up not before a
corresponding ruling is adopted and announced publicly (in the
courtroom), but laterwithin ten days of the adoption of the
rulingalso, that if the Criminal Cases Division of the Supreme
Court of Lithuania in it plenary session adopts a ruling on
renewal of a criminal case subsequent to a decision of the United
Nations Human Rights Committee or the European Court of Human
Rights and this ruling is signed only by the Chairman of the
plenary session and the judge-rapporteur, but not by all the
judges who have adopted the case, is in conflict with Article 109
of the Constitution and the constitutional principles of a state
under the rule of law and justice.
62. Having held this, the Constitutional Court will not
investigate in the constitutional justice case at issue whether
Paragraph 5 (wording of 14 March 2002) of Article 460 of the CCP
is not in conflict (to any extent) with Article 117 of the
Constitution.
V
On the compliance of Paragraph 3 (wording of 28 February
2002) of Article 268, Paragraphs 2 and 3 (wording of 28 February
2002) of Article 325 and Paragraph 3 (wording of 28 February
2002) of Article 358 of the Code of Civil Procedure with Articles
109 and 117 of the Constitution and with the constitutional
principle of a state under the rule of law.
1. A group of Members of the Seimas, the petitioner,
requests inter alia to investigate:
- whether Paragraph 3 (wording of 28 February 2002) of
Article 268 of the Code of Civil Procedure to the extent that,
according to the group of Members of the Seimas, the petitioner,
it provides that in the course of deciding a case in a court of
first instance, only the introductory and resolution parts of the
decision are adopted, drawn up and announced while the remaining
part, which substantiates the decision, is drawn up later, is not
in conflict with Articles 109 and 117 of the Constitution as well
as with the constitutional principle of a state under the rule of
law;
- whether Paragraphs 2 and 3 (wording of 28 February 2002)
of Article 325 of the Code of Civil Procedure to the extent that,
according to the group of Members of the Seimas, the petitioner,
they establish that in the course of deciding a case in a court
of first instance, only the introductory and resolution parts of
the decision are adopted, drawn up and announced, while the
remaining partsthe recital and the reasoning partsshall be
drawn up and announced later, within fourteen days of the
adoption of the decision or the ruling, are not in conflict with
Articles 109 and 117 of the Constitution as well as with the
constitutional principle of a state under the rule of law;
- whether Paragraph 3 (wording of 28 February 2002) of
Article 358 of the Code of Civil Procedure to the extent that,
according to the group of Members of the Seimas, the petitioner,
it establishes that in the course of deciding a case in a court
of cassation instance, only the introductory and resolution parts
of the ruling are adopted, drawn up and announced, while the
remaining parts-the recital and the reasoning partsshall be
drawn up and announced later, within twenty days of the adoption
of the decision or the ruling, is not in conflict with Articles
109 and 117 of the Constitution as well as with the
constitutional principle of a state under the rule of law.
2. On 28 February 2002 the Seimas adopted the Law on
Confirmation, Entry into Force and Implementation of the Code of
Civil Procedure, Article 1 whereof confirmed the Code of Civil
Procedure of the Republic of Lithuania. In Article 2 of the Law
on Confirmation, Entry into Force and Implementation of the Code
of Civil Procedure it was established that the Code of Civil
Procedure shall come into force "as from 1 January 2003"; after
the new Code of Civil Procedure came into force, inter alia the
formerly valid Code of Civil Procedure of the Republic of
Lithuania (wording of 7 July 1964 with subsequent amendments and
supplements; hereinafter also referred to as the formerly valid
Code of Civil Procedure) became no longer valid (Paragraph 2 of
Article 13).
3. The new Code of Civil Procedure was amended and/or
supplemented by: the Law on Amending and Supplementing the Law on
Courts, the Law on the Proceedings of Administrative Cases, the
Code of Civil Procedure and the Code of Criminal Procedure (with
amendments and supplements made by the Republic of Lithuania Law
on Amending Articles 1 and 2 of the Fourth Chapter of the Law on
Amending and Supplementing the Law on Courts, the Law on the
Proceedings of Administrative Cases, the Code of Civil Procedure
and the Code of Criminal Procedure, which was adopted by the
Seimas on 16 September 2003), which was adopted by the Seimas on
8 April 2003; the Law on Amending and Supplementing the Republic
of Lithuania Law on Competition, on the Recognition of the Law on
Monitoring of State Aid to Economic Entities as No Longer Valid
and on Amending Article 1 of the Code of Civil Procedure, which
was adopted by the Seimas on 15 April 2004; the Republic of
Lithuania Law on Amending and Supplementing Articles 1, 42, 62,
801 and 803 of the Code of Civil Procedure, on Amending the
Titles of the Fourth, Fifth and Sixth Sections of Chapter LX, on
Supplementing Chapter LX with Seventh Section and Supplementing
the Code with an Annex, which was adopted by the Seimas on 27
April 2004; the Republic of Lithuania Law on Amending Articles
57, 83, 99 and 225 of the Code of Civil Procedure, which was
adopted on 20 January 2005 and the Republic of Lithuania Law on
Amending Article 663 of the Code of Civil Procedure, which was
adopted on 22 June 2006.
Paragraph 3 (wording of 28 February 2002) of Article 268,
Paragraphs 2 and 3 (wording of 28 February 2002) of Article 325
and Paragraph 3 (wording of 28 February 2002) of Article 358 of
the Code of Civil Procedure, the compliance of the provisions of
which (to the specified extent) with the Constitution is disputed
by the group of Members of the Seimas, the petitioner, in this
constitutional justice case, have not been amended or
supplemented and are still in effect at the time of the
consideration of the constitutional justice case at issue.
4. Article 268 titled "The Procedure of Adoption of the
Decision and its Setting Forth" (wording of 28 February 2002) of
the Code of Civil Procedure, which is in the First Section titled
"Court Decisions" of Chapter XV titled "Court Rulings and
Decisions" of Part II titled "Procedure in the Court of First
Instance", the compliance of Paragraph 3 (to the corresponding
extent) of which with the Constitution is disputed by the group
of Members of the Seimas, the petitioner, provides:
"1. The decision is adopted immediately after the case has
been considered, save the cases provided for by this Code.
2. The judge alone (when the case is considered by one
judge) or the majority vote of judges shall adopt court
decisions. The decision shall be set forth in writing and signed
by all the judges who have considered the case.
3. The decision shall be adopted by drawing up its
introductory and resolution parts and announced immediately after
the consideration of the case, save the cases provided for by
this Code, briefly verbally setting forth reasons of the
decision. The recital and the reasoning parts shall be drawn up
not later than within five days of the adoption of the decision.
4. The form and contents of the court decision must be in
line with the requirements established in Article 270 of this
Code.
5. When the respondent allows the claim fully or partially,
the judge may draw up an abridged reasoning. If the claim is
allowed only partially, the abridged reasoning may be drawn up
only in the part wherein the respondent allows the claim. In the
abridged reasoning the arguments due to which the court rejects
some evidence shall not be specified.
6. A judge, who had another opinion, may set forth a
dissenting opinion in writing.
7. The dissenting opinion shall not be announced publicly,
but shall be attached to the case file and it shall be informed
that such an opinion exists.
8. Corrections in the text of the decision must be
discussed and signed by the judges."
5. Article 325 titled "Adoption and Publishing of a
Decision or Ruling" (wording of 28 February 2002) of the Code of
Civil Procedure, which is in the First Section titled "Appealing
Against Court Decisions That have not Come into Force" of Chapter
XVI titled "Procedure of Cases in the Court of Appeal Instance"
of Part III titled "The Forms of Control of Lawfulness and
Reasonableness of Court Decisions and Rulings and Renewal of the
Procedure", the compliance of Paragraphs 2 and 3 (to the
corresponding extent) of which with the Constitution is disputed
by the group of Members of the Seimas, the petitioner, provides:
"1. Where oral hearing of the case is held, after the
speeches by the participants in the proceedings and the final
speeches the court shall retire to the deliberation room to adopt
the decision or ruling.
2. Having adopted the decision or ruling, the court shall
return to the courtroom and the chairman of the college or
another judge shall read out the introductory and resolution
parts of the decision or ruling, shall verbally set forth the
reasoning of the decision or ruling and inform when the full text
of the decision or ruling will be drawn up.
3. The complete text of the decision or ruling shall be set
forth in writing and signed by all the judges within fourteen
days from the adoption thereof.
4. Also in the cases provided for in Paragraph 5 of this
Article, the persons participating in the case shall be informed
about the decision or ruling of the court of appeal instance
adopted under the procedure of written process.
5. By way of exception, having regard to the complexity and
scope of the case, the court considering the case on appeal may,
by a ruling, postpone the adoption of a decision or ruling for
not longer than a fourteen-day period. In such case the decision
or ruling shall be announced by the college of judges or one of
the judges. During the preparation of the decision or ruling, the
judges of the college may consider other cases."
6. Article 358 titled "Adoption of the Court Ruling"
(wording of 28 February 2002) of the Code of Civil Procedure,
which is in Chapter XVII titled "The Procedure of Cases in the
Court of Cassation" of Part III titled "The Forms of Control of
Lawfulness and Reasonableness of Court Decisions and Rulings and
Renewal of the Procedure", the compliance of Paragraph 3 (to the
corresponding extent) of which with the Constitution is disputed
by the group of Members of the Seimas, the petitioner, provides:
"1. The court ruling shall be adopted by the majority vote,
in line with the requirements of this Code. The judge of the
Supreme Court of Lithuania who has the least work record shall be
the one to speak the first, and the chairman of the sitting shall
be the one to speak the last. In case of a tie in the plenary
session of the Civil Cases Division, the vote of the chairman of
the sitting shall be decisive.
2. The ruling adopted by the court shall be set forth in
writing and signed by all judges. The ruling of the plenary
session of the department shall be signed by the chairman and the
rapporteur of the session sitting.
3. Having considered the case, a court ruling shall be
adopted, which shall be composed of the introductory and
resolution parts, while the ruling which is in line with the
requirements of Article 361 of this Code shall be drawn up within
twenty days from the adoption thereof.
4. Where oral hearing of the case is held, the court ruling
shall be announced in the courtroom. The chairman of the sitting
of the plenary session of the Civil Cases Division, the chairman
or a judge of the college of the judges shall read out the
resolution part of the ruling and shall set forth the reasoning
of the ruling verbally.
5. The college of judges or the plenary session of the
Civil Cases Division may by means of a ruling postpone the
adoption of the court ruling for not longer than a twenty-day
period. During that period the judges may consider other cases.
Where oral hearing of the case is held, the persons participating
in the case shall be informed about the date of the adoption of
the ruling during the court sitting. Where oral hearing of the
case is held, while announcing the ruling, the adoption and
announcement of which had been postponed, other judges of the
department of the plenary session and judges of the college of
judges may also abstain from participation."
7. The doubts of the group of Members of the Seimas, the
petitioner, regarding the compliance of Paragraph 3 (wording of
28 February 2002) of Article 268, Paragraphs 2 and 3 (wording of
28 February 2002) of Article 325, Paragraph 3 (wording of 28
February 2002) of Article 358 of the Code of Civil Procedure (to
the corresponding extent) with Articles 109 and 117 of the
Constitution and with the constitutional principle of a state
under the rule of law are substantiated by the fact that,
according to the group of Members of the Seimas, the petitioner,
the court which considers a case subsequent to these articles
(parts thereof) of the Code of Civil Procedure adopts and
announces its decision (ruling), i.e. a final court act, without
drawing up the reasoning substantiating itthe reasoning of its
adoption: it is drawn up later.
8. While deciding whether the provisions of Paragraph 3
(wording of 28 February 2002) of Article 268, Paragraphs 2 and 3
(wording of 28 February 2002) of Article 325, Paragraph 3
(wording of 28 February 2002) of Article 358 of the Code of Civil
Procedure (to the extent, specified by the group of Members of
the Seimas, the petitioner), which are disputed by the group of
Members of the Seimas, the petitioner, are not in conflict with
Articles 109 and 117 of the Constitution and with the
constitutional principle of a state under the rule of law, one is
to take account of the legal regulation established in other
parts of these articles and of that established in other articles
of the Code of Civil Procedure, inter alia: Article 270 titled
"The Contents of the Decision", in Paragraph 1 of which it is
provided that a decision (namely a decision of the court of first
instance) shall be composed of an introductory, recital,
reasoning and resolution parts; in Paragraph 2that the following
shall be specified in the introductory part of the decision: the
time and date of the adoption of the decision (Item 1); the title
of the court that adopted the decision (Item 2); the composition
of the court (name and surname of the judge (judges)), the
secretary of the court hearing, parties and other persons
participating in the case (Item 3); the subject of the dispute
(Item 4); in Paragraph 3that the recital part of the decision
must include the following: the summary of the requirements and
explanations of the claimant (Item 1); a summary of the
replications and explanations of the respondent (Item 2); a
summary of the explanations of other persons participating in the
case (Item 3); in Paragraph 4that the following must be
specified briefly in the reasoning part of the decision: the
circumstances of the case established by the court (Item 1); the
assessment of the evidence on which the conclusions of the court
are based (Item 2); the arguments, due to which the court has
rejected some evidence (Item 3); the laws and other legal acts
followed by the court, and other legal arguments (Item 4); in
Paragraph 5that the following must be specified in the
resolution part of the court decision: the conclusion of the
court to fully or partially satisfy the claim and/or counterclaim
together setting forth the contents of the satisfied claim or to
reject the claim and/or the counterclaim (Item 1); in cases
provided for by the lawsthe size of the adjudged interest and
the time period within which they must be exacted (Item 2);
reference to the distribution of the litigation expenses (Item
3); conclusions of the court regarding other questions decided by
the decision (Item 4); and reference to the term and procedure of
the appeal against the decision (Item 5); Article 291 titled "The
Contents of the Ruling" (wording of 28 February 2002) in
Paragraph 1 of which it is provided that the following shall be
specified in the ruling: the time and date of the adoption of the
ruling (Item 1); the name and composition of the court, the
secretary of the court hearing (Item 2); the persons
participating in the case and the subject of the dispute (Item
3); the question regarding which the ruling was adopted (Item 4);
the reasoning following which the court made the conclusions as
well as the laws and other legal acts invoked by the court (Item
5); the ruling of the court (Item 6); and the procedure and term
of the appeal against the ruling (Item 7); in Paragraph 2that
the data specified in Items 4, 5 and 6 of Paragraph 1 of this
article must be specified in a verbal ruling; Article 331 titled
"The Contents and Coming into Force of the Decision (Ruling) of
the Court of Appeal Instance" (wording of 28 February 2002) in
Paragraph 1 of which it is provided that a decision (ruling) of
the court of appeal instance shall be composed of introductory,
recital, reasoning and resolution parts; in Paragraph 2that the
following shall be specified in the introductory part of the
decision (ruling): the time and date of the adoption of the
decision (ruling) (Item 1); the name and composition of the court
that adopted the decision (ruling) (Item 2); the persons
participating in the consideration of the case at the court of
appeal instance (in the case of oral procedure) (Item 3); the
appellant (Item 4); the appealed decision (ruling) of the court
of first instance (Item 5); the parties and other persons
participating in the case and the subject of the dispute (Item
6); in Paragraph 3that the following shall be specified in the
recital part of the decision (ruling): a brief setting forth of
the circumstances of the case (Item 1); the essence of the
appealed decision (ruling) (Item 2); the bases of the appeal and
the arguments of the response to the appeal, which are
significant to the lawfulness and reasonableness of the appealed
decision (ruling) and the reference about joining to the appeal
(Item 3); in Paragraph 4that the following shall be briefly
specified in the reasoning part of the decision (ruling): the
circumstances of the case established by the court (Item 1); the
evidence on which the conclusions of the court are based (Item
2); and the arguments due to which the court has rejected certain
evidence (Item 3); the laws and other legal acts, as well as
other legal arguments followed by the court while drawing
conclusions (Item 4); in Paragraph 5that the decision of the
court of appeal must be specified in the resolution part; in
Paragraph 6that the decision or ruling of the court of appeal
instance shall come into force on the day of adoption thereof;
Article 361 titled "The Contents of the Court Ruling" (wording of
28 February 2002) in inter alia Paragraph 1 of which it is
provided that the ruling of the court of cassation shall be
composed of introductory, recital, statement and resolution
parts, in Paragraph 2that the following shall be specified in
the introductory part of the ruling: the time and date of the
adoption of the ruling (Item 1); the name and composition of the
court that adopted the ruling (Item 2); the persons participating
in the consideration of the case at the court of cassation (in
the case of oral procedure) (Item 3); the cassator (Item 4); the
appealed decisions (rulings) of courts (Item 5); the parties and
other persons participating in the case and the subject of the
dispute (Item 6); in Paragraph 3that the following shall be
specified in the recital part of the decision (ruling): a brief
setting forth of the circumstances of the case (Item 1); the
essence of the decision (rulings) (Item 2); the bases of the
cassation appeal and arguments of the response to the cassation
appeal, which are significant to the lawfulness and
reasonableness of the appealed decision (ruling) and the
reference about joining to the cassation appeal (Item 3); in
Paragraph 4that the following must be specified in the statement
part of the ruling: the laws and reasons following which the
court of cassation has drawn the conclusion (Item 1); and the
rule for application and construction of law in the considered
case, which is relevant for the practice of the court (Item 2);
in Paragraph 5that the decision of the court of cassation must
be specified in the resolution part of the ruling.
9. The legal regulation, established in Paragraph 3
(wording of 28 February 2002) of Article 268 of the Code of Civil
Procedure, which is disputed by the group of Members of the
Seimas, the petitioner, in the aspect specified by the group of
Members of the Seimas, the petitioner, is essentially analogous
to the legal regulation established in Paragraph 3 (wording of 19
September 2000) of Article 85 and Paragraph 3 (wording of 19
September 2000) of Article 139 of the Law on the Proceedings of
Administrative Cases, as well as to the articles (paragraphs
thereof) of the CCP which were discussed in this Constitutional
Court ruling and under which the corresponding final act of the
court may also be adopted and announced publicly (in the
courtroom), without drawing up its recital and reasoning parts.
10. It needs to be held in the context of the
constitutional justice case at issue that in Paragraph 3 (wording
of 28 February 2002) of Article 268 of the Code of Civil
Procedure, which is disputed by the group of Members of the
Seimas, the petitioner, it is inter alia established that a
decision of a court of first instance may be adopted and
announced after only the introductory and resolution parts of the
decision have been drawn up, briefly setting forth verbal
reasoning of the decision in the courtroom, while the recital and
the reasoning parts may be drawn up later, within five days of
the announcement of the decision.
11. On the grounds of the arguments analogous to those on
the grounds of which it was held in this Constitutional Court
ruling that Paragraph 3 (wording of 19 September 2000) of Article
85 of the Law on the Proceedings of Administrative Cases to the
extent that it provides that only the introductory and resolution
parts of the decision may be drawn up prior to the announcement
of a decision of the administrative court of first instance,
while the parts of the decision comprising the recital and the
reasoning may be drawn up later, within seven working days after
the announcement of the decision, as well as Paragraph 3 (wording
of 19 September 2000) of Article 139 of the same law, deviates
from the constitutional imperatives of justice and publicity of
law as well as from the constitutional concept of the court as
the institution which administers justice in the name of the
Republic of Lithuania, it needs to be held that also Paragraph 3
(wording of 28 February 2002) of Article 268 of the Code of Civil
Procedure to the extent that it establishes that a decision of a
court of first instance may be adopted and announced only after
the introductory and resolution parts of the decision are drawn
up, briefly setting forth verbal reasoning of the decision in the
courtroom, while the recital and the reasoning parts may be drawn
up later, within five days of the announcement of the decision,
deviates from the constitutional imperatives of justice and
publicity of law and from the constitutional concept of court, as
the institution administering justice on behalf of the Republic
of Lithuania.
12. Taking account of the arguments set forth, a conclusion
is to be made that Paragraph 3 (wording of 28 February 2002) of
Article 268 of the Code of Civil Procedure to the extent that it
establishes that a decision of a court of first instance may be
adopted and announced only after the introductory and resolution
parts of the decision are drawn up, briefly setting forth verbal
reasoning of the decision in the courtroom, while the recital and
the reasoning parts may be drawn up later, within five days of
the announcement of the decision, is in conflict with Article 109
of the Constitution and with the constitutional principles of a
state under the rule of law and justice.
13. The legal regulation established in Paragraphs 2 and 3
(wording of 28 February 2002) of Article 325 of the Code of Civil
Procedure, which are disputed (to the corresponding extent) by
the group of Members of the Seimas, the petitioner, in the aspect
specified by the group of Members of the Seimas, the petitioner,
is also essentially analogous to the legal regulation established
in Paragraph 3 (wording of 19 September 2000) of Article 85 and
Paragraph 3 (wording of 19 September 2000) of Article 139 of the
Law on the Proceedings of Administrative Cases, as well as to the
articles (parts thereof) of the CCP which were discussed in this
Constitutional Court ruling and under which the corresponding
final act of the court may also be adopted and announced publicly
(in the courtroom), without drawing up its recital and reasoning
parts.
14. It is to be held in the context of the constitutional
justice case at issue that in Paragraph 2 (wording of 28 February
2002) of Article 325 of the Code of Civil Procedure, which is
disputed (to the corresponding extent) by the group of Members of
the Seimas, the petitioner, it is inter alia established that a
decision (ruling) of a court of appeal instance may be adopted
and announced in the courtroom after only the introductory and
resolution parts thereof have been drawn up, briefly setting
forth verbal reasoning of the decision in the courtroom.
It is also to be held that in Paragraph 3 (wording of 28
February 2002) of Article 325 of the Code of Civil Procedure, it
is inter alia established that the recital and reasoning parts of
the decision (ruling) of the court of appeal instance may be
drawn up later, within fourteen days of the adoption of the
decision (ruling).
15. On the grounds of the arguments analogous to those on
the grounds of which it was held in this Constitutional Court
ruling that Paragraph 3 (wording of 19 September 2000) of Article
85 of the Law on the Proceedings of Administrative Cases to the
extent that it provides that only the introductory and resolution
parts of the decision may be drawn up prior to the announcement
of a decision of the administrative court of first instance,
while the parts of the decision comprising the recital and the
reasoning may be drawn up later, within seven working days after
the announcement of the decision, as well as Paragraph 3 (wording
of 19 September 2000) of Article 139 of the same law, deviates
from the constitutional imperatives of justice and publicity of
law as well as from the constitutional concept of the court as
the institution which administers justice in the name of the
Republic of Lithuania, it needs to be held that also the
following deviate from the constitutional imperatives of justice
and publicity of law and from the constitutional concept of the
court as the institution administering justice in the name of the
Republic of Lithuania:
- Paragraph 2 (wording of 28 February 2002) of Article 325
of the Code of Civil Procedure to the extent that it establishes
that a decision (ruling) of the court of appeal instance may be
adopted and announced in the courtroom only after the
introductory and resolution parts thereof have been drawn up,
briefly setting forth verbal reasoning of the decision in the
courtroom,
- Paragraph 3 (wording of 28 February 2002) of Article 325
of the Code of Civil Procedure to the extent that it establishes
that the recital and reasoning parts of the decision (ruling) may
be drawn up later, within fourteen days of the adoption of the
decision (ruling).
16. Taking account of the arguments set forth, a conclusion
is to be made that Paragraph 2 (wording of 28 February 2002) of
Article 325 of the Code of Civil Procedure to the extent that it
establishes that a decision (ruling) of the court of appeal
instance may be adopted and announced in the courtroom only after
the introductory and resolution parts thereof have been drawn up,
briefly setting forth verbal reasoning of the decision in the
courtroom and Paragraph 3 (wording of 28 February 2002) of this
article to the extent that it establishes that the recital and
reasoning parts of the decision (ruling) may be drawn up later,
within fourteen days of the adoption of the decision (ruling),
are in conflict with Article 109 of the Constitution and the
constitutional principles of a state under the rule of law and
justice.
17. The legal regulation established in Paragraph 3
(wording of 28 February 2002) of Article 358 of the Code of Civil
Procedure, which is disputed (to the corresponding extent) by the
group of Members of the Seimas, the petitioner, in the aspect
specified by the group of Members of the Seimas, the petitioner,
is also essentially analogous to the legal regulation established
in Paragraph 3 (wording of 19 September 2000) of Article 85 and
Paragraph 3 (wording of 19 September 2000) of Article 139 of the
Law on the Proceedings of Administrative Cases, as well as to the
articles (parts thereof) of the CCP which were discussed in this
Constitutional Court ruling, and under which the corresponding
final court act may also be adopted and announced publicly (in
the courtroom) without drawing up its recital and reasoning
parts.
18. It is to be held in the context of the constitutional
justice case at issue that in Paragraph 3 (wording of 28 February
2002) of Article 358 of the Code of Civil Procedure, which is
disputed (to the corresponding extent) by the group of Members of
the Seimas, the petitioner, it is inter alia established that a
ruling of the court of cassation instance may be adopted only by
drawing up the introductory and resolution parts, and without
drawing up the recital and statement parts.
19. On the grounds of the arguments analogous to those on
the grounds of which it was held in this Constitutional Court
ruling that Paragraph 3 (wording of 19 September 2000) of Article
85 of the Law on the Proceedings of Administrative Cases to the
extent that it provides that only the introductory and resolution
parts of the decision may be drawn up prior to the announcement
of a decision of the administrative court of first instance,
while the parts of the decision comprising the recital and the
reasoning may be drawn up later, within seven working days after
the announcement of the decision, as well as Paragraph 3 (wording
of 19 September 2000) of Article 139 of the same law, deviates
from the constitutional imperatives of justice and publicity of
law as well as from the constitutional concept of the court as
the institution which administers justice in the name of the
Republic of Lithuania, it needs to be held that also Paragraph 3
(wording of 28 February 2002) of Article 358 of the Code of Civil
Procedure to the extent that it establishes that a ruling of a
court of cassation instance may be adopted only by drawing up the
introductory and resolution parts, and without drawing up the
recital and statement parts, deviates from the constitutional
imperatives of justice and publicity of law and from the
constitutional concept of the court as the institution
administering justice in the name of the Republic of Lithuania.
20. Taking account of the arguments set forth, a conclusion
is to be made that Paragraph 3 (wording of 28 February 2002) of
Article 358 of the Code of Civil Procedure to the extent that it
establishes that a ruling of the court of cassation instance may
be adopted only by drawing up the introductory and resolution
parts and without drawing up the recital and statement parts is
in conflict with Article 109 of the Constitution, and with the
constitutional principles of a state under the rule of law and
justice.
21. The provision of Paragraph 3 (wording of 28 February
2002) of Article 358 of the Code of Civil Procedure that a ruling
of a court of cassation instance may be adopted only by drawing
up the introductory and resolution parts, and without drawing up
the recital and statement parts, which is disputed (to the
corresponding extent) by the group of Members of the Seimas, the
petitioner, is inseparably related with the following provisions
of this article (which are not disputed by the group of Members
of the Seimas, the petitioner):
- the provisions of Paragraph 2 (wording of 28 February
2002) of Article 358 of the Code of Civil Procedure that the
ruling adopted by the court of cassation instance shall be set
forth in writing and signed by all judges, while the ruling of
the plenary session of the Civil Cases Division shall be signed
by the chairman and the rapporteur of the session sitting;
- the provisions of Paragraph 4 (wording of 28 February
2002) of Article 358 of the Code of Civil Procedure that where
oral hearing of the case is held, the court ruling shall be
announced in the courtroom and that the chairman of the sitting
of the plenary session of the Civil Cases Division, the chairman
or a judge of the college of the judges shall read out the
resolution part of the ruling and shall set forth verbal
reasoning of the ruling.
21.1. On the grounds of the arguments analogous to those on
the grounds of which it was held in this Constitutional Court
ruling that Paragraph 6 (wording of 14 March 2002) of Article 454
of the CCP to the extent that it establishes that the ruling
adopted in the plenary session the Criminal Cases Division of the
Supreme Court of Lithuania, which considers the issue of renewal
of a criminal case due to a clearly improper application of the
penal law, is signed by the Chairman of the session and the
rapporteur and not all the judges who have considered the case is
in conflict with Article 109 of the Constitution and the
constitutional principles of a state under the rule of law and
justice, it is to be held that also the provision of Paragraph 2
(wording of 28 February 2002) of Article 358 of the Code of Civil
Procedure that the ruling of the plenary session of the Civil
Cases Division of the court of cassation instance shall be signed
only by the chairman and the rapporteur of the plenary session
and not by all the judges who have adopted that ruling is in
conflict with Article 109 of the Constitution and the
constitutional principles of a state under the rule of law and
justice.
21.2. After it has been held in this Constitutional Court
ruling and after it has recognised that Paragraph 3 (wording of
28 February 2002) of Article 358 of the Code of Civil Procedure
to the extent that it provides that a ruling of a court of
cassation instance may be adopted only by drawing up the
introductory and resolution parts, and without drawing up the
recital and statement parts, is in conflict with Article 109 of
the Constitution and the constitutional principles of a state
under the rule of law and justice, the provisions of Paragraph 4
(wording of 28 February 2002) of Article 358 of the Code of Civil
Procedure that where oral hearing of the case is held, the court
ruling shall be announced in the courtroom and that the chairman
of the sitting of the plenary session of the Civil Cases
Division, the chairman or a judge of the college of the judges
shall read out the resolution part of the ruling and shall set
forth verbally the reasoning of the ruling acquire a different
meaning: now they regulate the relations related with only to the
announcement of a ruling of the court of cassation instance by
reading it aloud and not to the drawing up or contents thereof,
it no longer implies that the said ruling may be composed of only
the introductory and resolution parts and that it may be without
the recital and statement parts.
22. Having held that Paragraph 3 (wording of 28 February
2002) of Article 268 of the Code of Civil Procedure to the extent
that it establishes that a decision of a court of first instance
may be adopted and announced only after the introductory and
resolution parts of the decision are drawn up, briefly setting
forth verbal reasoning of the decision in the courtroom, while
the recital and the reasoning parts may be drawn up later, within
five days of the announcement of the decision, that Paragraph 2
(wording of 28 February 2002) of Article 325 of the Code of Civil
Procedure to the extent that it establishes that a decision
(ruling) of the court of appeal instance may be adopted and
announced in the courtroom only after the introductory and
resolution parts thereof have been drawn up, briefly setting
forth verbal reasoning of the decision in the courtroom and
Paragraph 3 (wording of 28 February 2002) of this article to the
extent that it establishes that the recital and reasoning parts
of the decision (ruling) may be drawn up later, within fourteen
days of the adoption of the decision (ruling), and also that
Paragraph 3 (wording of 28 February 2002) of Article 358 of the
Code of Civil Procedure are in conflict with Article 109 of the
Constitution and the constitutional principles of a state under
the rule of law and justice, the Constitutional Court will not
further investigate in the constitutional justice case at issue,
whether these paragraphs (to any extent) are not in conflict with
Article 117 of the Constitution.
VI
On the compliance of Paragraph 2 (wording of 28 February
2002) of the Code of Civil Procedure with Paragraph 1 of Article
29 and Article 109 of the Constitution.
1. The Vilnius Regional Court, the petitioner, requests to
investigate whether the provision of Paragraph 2 (wording of 28
February 2002) of Article 320 of the Code of Civil Procedure that
the court of appeal instance shall consider the case without
overstepping the limits established in the appeal, with the
exception when this is required by the public interest in the
course of consideration of the cases of the categories provided
for in Chapters XIX and XX of Part IV and in Part V of the Code
of Civil Procedure is not in conflict with Paragraph 1 of Article
29 and Article 109 of the Constitution.
2. As mentioned, the new Code of Civil Procedure has been
amended and/or supplemented more than once. Paragraph 2 (wording
of 28 February 2002) of Article 320 of the Code of Civil
Procedure, the compliance of the provisions of which with the
Constitution is disputed by the Vilnius Regional Court, the
petitioner, in this constitutional justice case, has not been
amended or supplemented and is still in effect during the time of
consideration of the constitutional justice case at issue.
3. Article 320 titled "The Limits of Consideration of a
Case" (wording of 28 February 2002) of the Code of Civil
Procedure, the compliance of Paragraph 2 (to the corresponding
extent) of which with the Constitution is disputed by the Vilnius
Regional Court, the petitioner, of the First Section titled
"Appealing Against Court Decisions Which have not Come into
Force" of Chapter XVI titled "The Procedure of Cases in the Court
of Appeal Instance" of Part III titled "The Forms of Control of
the Legitimacy and Reasonableness of the Decisions of Rulings of
Courts and Renewal of the Procedure" provides:
"1. The limits of the consideration of cases under appeal
procedure shall be composed of the factual and legal basis of the
appeal and verification of the absolute grounds of non-validity
of the decision.
2. The court of appeal instance shall consider the case
without overstepping the limits established in the appeal, with
the exception when this is required by the public interest in the
course of consideration of the cases of the categories provided
for in Chapters XIX and XX of Part IV and in Part V of this Code.
The court of appeal instance shall also verify, irrespective of
the limits of the appeal, whether there are any absolute grounds
of non-validity of the decision, which are specified in Article
329 of this Code."
4. The legal regulation disputed by the Vilnius Regional
Court, the petitioner, entrenches the general rule that the court
of appeal instance may not overstep the limits established in the
appeal and an exception to that rule: the limits may be
overstepped only in certain cases established in this part,
namely in the case when this is required by the public interest
in the course of consideration of the cases of the categories
provided for in Chapters XIX and XX of Part IV and in Part V of
the Code of Civil Procedure. In the course of consideration of
cases of other categories the court of appeal instance is
restricted by the limits of the appeal.
5. Such legal regulation established in Article 320 titled
"The Limits of Consideration of a Case" (wording of 28 February
2002) of the Code of Civil Procedure expresses and entrenches the
universally recognised legal principle tantum devolutum quantum
appellatum. This principle means inter alia the fact that the
court of appeal instance must verify and assess only the
legitimacy and reasonableness of the appealed part of the
decision of the court of first instance, and does not have to
verify and assess whether the parts of the decision that were not
appealed under the appeal procedure are legitimate and
reasonable. Additionally, the court of appeal instance does not
have to expand the list of the arguments of the appeal, nor to
begin an analysis of the arguments that are not specified in the
appeal on its own initiative. However, following the principle
tantum devolutum quantum appellatum, it may not be totally
forbidden for the court of appeal instance to refer also to the
arguments which are not specified in the appeal, in case these
arguments are submitted by other participants of the procedure.
6. It is also universally recognised that the principle
tantum devolutum quantum appellatum is not absolute inter alia in
the aspect that in certain cases the court of appeal instance not
only can, but also must overstep the limits of the appeal. Such
limits of this principlethe said exceptions to the general rule
(which, by the way, are entrenched in the laws of civil procedure
of many states) are usually related with the necessity to protect
and defend the fundamental valuesthe public interest, the rights
of the weaker party in the dispute, the legitimate interests and
the legitimate expectations, etc. Usually such fundamental values
are entrenched in, as well as protected and defended by the
constitutions of democratic states under the rule of law.
Thus, the principle tantum devolutum quantum appellatum
does not imply in itself that the court of appeal instance must
be restricted by the limits of the appeal when its decision could
be essentially unjust and when it could violate the
constitutional values.
7. In civil procedure law of the Republic of Lithuania,
certain exceptions (they are provided for in Paragraph 2 of
Article 320 (wording of 28 February 2002) of the Code of Civil
Procedure) to the general rule that the court of appeal instance
may not overstep the limits established in the appeal are also
explicitly provided for:
- disregarding the limits of the appeal, the court of
appeal instance shall verify whether there are any absolute
grounds of non-validity of the decision specified in Article 329
of the Code of Civil Procedure (the compliance of this provision
with the Constitution is not disputed by the Vilnius Regional
Court, the petitioner)in this case, the case may be returned to
the court of first instance for new consideration only in the
case where these violations may not be corrected by the court of
appeal instance (Paragraph 1 (wording of 28 February 2002) of
Article 329 of the Code of Civil Procedure);
- the limits established in the appeal may be overstepped
when this is required by the public interest in the course of
consideration of the cases of the categories provided for in
Chapters XIX and XX of Part IV and in Part V of the Code of Civil
Procedure.
In this context, it needs to be mentioned that Chapter XIX
titled "Peculiarities of Consideration of Family Cases" of Part
IV titled "Peculiarities of Consideration of Cases of Individual
Categories" of the Code of Civil Procedure regulates the
relations which are related to the consideration of cases
concerning the divorce, dissolution of marriage, legal separation
(Second Section, Articles 381-386), the establishment of
paternity (maternity) (Third Section, Articles 387-393), the
contesting of the paternity (maternity) (Fourth Section, Articles
394-399), and the restriction of the power of parents (Fifth
Section, Articles 400-409), in Chapter XX titled "Peculiarities
of Consideration of Employment Cases at Law" (Articles 410-418)
of this partto the consideration of employment cases at law, in
Part V titled "Special Legal Proceedings"to the consideration of
cases at law of special legal proceedings (i.e. cases at law
concerning the establishment of facts having legal significance,
concerning the declaration of a natural person as dead or absent,
concerning the recognition of a natural person as incapable or of
limited capability and the recognition of a minor as capable
(emancipated); concerning the adoption, concerning the
guardianship and care, concerning the appeal against actions of
bailiffs and notaries, concerning registration of acts on civil
condition, concerning the restoration, amendment, supplementing,
correction or annulment of the registers, concerning the
restoration of rights according to the lost security document
which is to be presented (unilateral legal proceedings),
concerning substantive laws, save the cases considered under the
rules of the legal proceedings of the dispute, concerning legal
relations of the family (save the cases considered under the
rules of the proceedings of the dispute according to Chapter XIX
of Part IV of the Code of Civil Proceedings, on legal relations
of hypothec (hypothec of movable property), concerning the
restoration of a disappeared court case or an execution case, on
the renewal of the missed term established by the laws,
concerning the issuance of court permissions, confirmation of
statements or facts, concerning the administration of property,
concerning the application of succession procedures (appointment
of the inheritance administrator, composition of the description
of property, declaration of the will, etc.) and other cases at
law which, under the Civil Code and other laws, are considered
under the simplified procedure for proceedings) (Articles 442-
582)).
8. While deciding subsequent to the petition of the Vilnius
Regional Court, the petitioner, whether Paragraph 2 (wording of
28 February 2002) of Article 320 of the Code of Civil Procedure
(to the corresponding extent) is not in conflict with the
Constitution, it needs to be noted that the general rule itself
that the court of appeal instance may not overstep the limits
established in the appeal (which expresses the principle tantum
devolutum quantum appellatum), may not be assessed as groundless
or unjust, as it ensures not only the speed of the civil
procedure but also the fact that there will be no intervention of
the court into such areas of life, wherein there is no dispute
among private persons or such dispute has already been solved in
a court of first instance and the decision was not appealed under
the procedure established by law. There are no arguments that
would allow to state that this general rule could in any aspect
be in conflict with any provision of the Constitution, inter alia
with Paragraph 1 of Article 29 or Article 109 of the
Constitution. It is just to the contrary, this rule helps to
ensure the autonomy of the individual, in particular, of the
private person when the court administers justice as well as that
the legitimate expectations and interests of the person will not
be denied.
9. The exception to the rule established in Paragraph 2
(wording of 28 February 2002) of Article 320 of the Code of Civil
Procedure that the court of appeal instance may not overstep the
limits established in the appeal (which expresses the principle
tantum devolutum quantum appellatum)the fact that the said
limits may be overstepped only in certain cases established in
this paragraph, namely, when this is required by the public
interest in the course of consideration of the cases of the
categories provided for in Chapters XIX and XX of Part IV and in
Part V of the Code of Civil Procedure is to be assessed
differently.
10. The Constitution consolidates the state as the common
good of the entire society (Constitutional Court rulings of 25
May 2004 and 19 August 2006). The purpose of the state as a
political organisation of the entire society is to ensure human
rights and freedoms and to guarantee the public interest
(Constitutional Court rulings of 30 December 2003, 13 December
2004, 29 December 2004 and 16 January 2006). Each public interest
may only be based on the fundamental values of the society which
are entrenched in, as well as protected and defended by the
Constitution; the entrenchment and guarantee, as well as defence
and protection of such an interest are constitutionally reasoned.
It has been held in the jurisprudence of the Constitutional Court
that the implementation of the public interest, as an interest of
society, which is recognised by the state and is protected by
law, is one of the most important conditions of the existence and
evolution of society itself (Constitutional Court rulings of 6
May 1997 and 13 May 2005). On the other hand, the public
interest, as a common interest of the state, the entire society
or part of the society, must be coordinated with autonomous
interests of the individual, because not only the public
interest, but also the rights of the person are constitutional
values (Constitutional Court rulings of 6 May 1997 and 13
December 2004). These valuesprotection and defence of person's
rights and legitimate interests, and the public interestwhich
are entrenched in the Constitution, may not be confronted against
one another. The just balance must be ensured in this sphere.
It needs also to be noted that not any legitimate interest
of a person or a group of persons is to be considered as public
interest, but only such, which reflects and expresses the
fundamental values which are entrenched in, as well as protected
and defended by the Constitution; these are inter alia openness
and harmony of society, the rights and freedoms of the person,
the supremacy of law, etc. It is such interest of society or part
thereof, which the state, while implementing its functions, is
obliged to ensure and satisfy, inter alia through courts that
decide cases at law under their competence.
Thus, every time when the question arises whether a certain
interest is to be considered as a public one, it must be possible
to reason that without satisfying a certain interest of a person
or a group of persons, certain values entrenched in, as well as
protected and defended by the Constitution, would be violated.
While in the situations where the decision on whether a certain
interest has to be considered as public and defended and
protected as a public interest, must be adopted by the court,
which considers a case, it is necessary to reason it in the
corresponding act of the court. Otherwise, there would arise a
grounded doubt that what is protected and defended by the court
as a public interest, actually is not a public but a private
interest of a certain person.
11. It is to be emphasised that the public interest is
dynamic and subject to change (Constitutional Court ruling of 8
July 2005). On the other hand, it is a very varied one. It is
essentially impossible to say a priori in which areas of life,
concerning which legal disputes may arise or wherein the need may
arise to apply law, there may appear threats for the public
interest or the need may arise to ensure the public interest by
means of interference by the public power institutions or
officials.
12. In the doctrine of the European human rights (inter
alia in the jurisprudence of the European Court of Human Rights)
there is a prevalent attitude that while regulating social
relations, the legislator is entitled to establish the limits of
public interest, and the decisions on the definition of the
public interest and means of its satisfaction must be
realistically grounded and legitimate (Constitutional Court
rulings of 6 May 1997 and 22 February 2001). While construing
this provision, the Constitutional Court has held that without
violating the Constitution, laws may established in what cases
and under which procedure the authorised institutions or
authorised officials may defend the public interest under the
judicial procedure (Constitutional Court ruling of 22 February
2001). It needs to be mentioned that the corresponding powers are
expressis verbis entrenched in the Constitution (under Paragraph
2 of Article 118 of the Constitution, the prosecutor shall defend
the rights and legitimate interests of the person, society and
the state).
Howeverit needs to be particularly emphasized in the
context of the constitutional justice case at issueunder the
Constitution, it is not possible to establish any such legal
regulation that the public interest would not be able to be
defended by the court, to which it was applied, as well as that
the court, while deciding a case, would be forced to adopt such
decision, by which the public interest would be violated, thus,
also any value (inter alia a right or freedom of person),
established in, as well as defended and protected by the
Constitution. If the court adopted such decision, that decision
would be unjust. It would mean that the court, on behalf of the
Republic of Lithuania, administered not the justice, which is
entrenched by the Constitution, thus, under the Constitution, it
administered non-justice. Thus, also the constitutional concept
of the court, as the institution which administers justice on
behalf of the Republic of Lithuania would be denied.
In the context of the constitutional justice case at issue,
it needs to be noted that it is impossible to establish by law
any final list of the cases, wherein the court (also of the
appeal instance) is permitted to defend the public interest
(inter alia overstepping the limits of the appeal) or of the
cases, wherein the court is not permitted to defend the public
interest (inter alia overstepping the limits of the appeal).
On the other hand, it is to be emphasized that the arising
from the Constitution possibility of the court of appeal instance
to overstep the limits of the appeal while defending the public
interest may not be interpreted as its purely discretionary
right: this court may overstep the limits only when there is a
constitutional basis for it, i.e. when without overstepping them,
any value established in, as well as defended and protected by
the Constitution would be violated and thus, the decision adopted
by the court of appeal instance in the corresponding case would
be unjust. In all cases, this court must provide reasons for
that.
13. In this context it is to be noted that under Paragraph
2 (wording of 28 February 2002) of Article 353 of the Code of
Civil Procedure, the court of cassation instance may overstep the
limits established in the cassation appeal in all cases when this
is required by the public interest.
14. It was mentioned that under Paragraph 2 (wording of 28
February 2002) of Article 320 of the Code of Civil Procedure, the
court of appeal instance may overstep the limits established in
the appeal only in certain cases established in this paragraph,
namely, when this is required by the public interest when, under
the appeal procedure, the court considers the cases of the
categories provided for in Chapters XIX and XX of Part IV and in
Part V of the Code of Civil Procedure, and when cases of other
categories are decided, the court of appeal instance is
restricted by the limits of the appeal.
Thus, this exception to the general rule established in
Paragraph 2 (wording of 28 February 2002) of Article 320 of the
Code of Civil Procedure that the court of appeal instance may not
overstep the limits established in the appeal means that the
court of appeal instance is not permitted to protect the public
interest while deciding cases of certain categories, which are
not specified in this paragraph. This creates preconditions for
the court of appeal instance in such cases to adopt a decision,
which would not be a just one and by which the values established
in, as well as defended and protected by the Constitution would
be violated.
15. Taking account of the arguments set forth, a conclusion
is to be made that Paragraph 2 (wording of 28 February 2002) of
Article 320 of the Code of Civil Procedure to the extent that it
entrenches that the court of appeal instance, considering other
than the cases of the categories provided for in Chapters XIX and
XX of Part IV and in Part V of the Code of Civil Procedure may
not overstep the limits established in the appeal, though this is
required by the public interest, and without overstepping them,
the decision (ruling) of this court would be unjust and thus the
values established in, as well as defended and protected by the
Constitution would be violated, is in conflict with Article 109
of the Constitution and the constitutional principles of a state
under the rule of law and justice.
16. Having held this, in the constitutional justice case at
issue the Constitutional Court will no longer investigate whether
Paragraph 2 (wording of 28 February 2002) of Article 320 of the
Code of Civil Procedure is not in conflict (to any extent) with
Paragraph 1 of Article 29 of the Constitution.
VII
On the compliance of Paragraph 2 (wording of 28 February
2002) of Article 285 of the Code of Civil Procedure to the extent
that, according to the petitioner, the court, when it adopts a
decision in absentia, performs a formal assessment of the
evidence submitted in the case, i.e. it ascertains that if the
content of the evidence is confirmed, there would be grounds to
adopt such decision, as well as Paragraph 5 (wording of 28
February 2002) of Article 285, Paragraph 1 (wording of 28
February 2002) of Article 286, and Paragraph 2 (wording of 28
February 2002) of Article 303 of the Code of Civil Procedure are
not in conflict with Articles 29, 109 and 117 of the Constitution
as well as with the constitutional principle of a state under the
rule of law.
1. The group of Members of the Seimas, the petitioner,
requests to investigate:
- whether Paragraph 2 (wording of 28 February 2002) of
Article 285 of the Code of Civil Procedure to the extent that,
according to the petitioner, the court, when it adopts a decision
in absentia, performs a formal assessment of the evidence
submitted in the case, i.e. it ascertains that if the content of
the evidence is confirmed, there would be grounds to adopt such
decision, is not in conflict with Articles 29, 109 and 117 of the
Constitution as well as with the constitutional principle of a
state under the rule of law;
- whether Paragraph 5 (wording of 28 February 2002) of
Article 285 of the Code of Civil Procedure is not in conflict
with Articles 29, 109 and 117 of the Constitution as well as with
the constitutional principle of a state under the rule of law;
- whether Paragraph 1 (wording of 28 February 2002) of
Article 286 of the Code of Civil Procedure is not in conflict
with Articles 29, 109 and 117 of the Constitution as well as with
the constitutional principle of a state under the rule of law;
- whether Paragraph 2 (wording of 28 February 2002) of
Article 303 of the Code of Civil Procedure is not in conflict
with Articles 29, 109 and 117 of the Constitution as well as with
the constitutional principle of a state under the rule of law.
2. The provisions of the Code of Civil Procedure which are
disputed by the petitioner regulate the relations linked with
adoption of a decision in absentiaan institute of civil
procedure law, which was not consolidated in Lithuanian civil
procedure law for a long time.
3. After the restoration of the independence of the
Republic of Lithuania and in the course of reorganising the
system of Lithuanian law, civil procedure law was also reformed.
While seeking to ensure justice, the right to judicial defence,
the right to the proper process, procedural equal rights, the
right to be heard, the contention, publicity of the proceedings,
direct participation in the proceedings and to implement other
principles in the civil procedure, in the Code of Civil Procedure
which was in force then, corresponding amendments and/or
supplements were made; later, as mentioned, the new Code of Civil
Procedure was adopted and came into force.
4. Although, as mentioned, the Code of Civil Procedure has
been amended and/or supplemented more than once, however,
Paragraph 2 (wording of 28 February 2002) of Article 285,
Paragraph 5 (wording of 28 February 2002) of Article 285,
Paragraph 1 (wording of 28 February 2002) of Article 286 and
Paragraph 2 (wording of 28 February 2002) of Article 303 of the
Code of Civil Procedure, the compliance of the provisions of
which with the Constitution is disputed by the group of Members
of the Seimas, the petitioner, in this constitutional justice
case, have not been either amended or supplemented and at the
time of consideration of the constitutional justice case at issue
are in force.
5. If compared with the formerly effective Code of Civil
Procedure, in the new Code of Civil Procedure the principles of
civil procedure law have been developed by consolidating
expressis verbis not only the principles of the right to apply to
court for judicial defence, publicity of the court hearing, the
contention, the independence and impartiality of judges and
courts, the language of the proceedings, equality of rights, and
justice, which is administered only by courts, which were
consolidated also in the formerly effective Code of Civil
Procedure, but also the principles of co-operation, directness,
continuity of consideration of the case, publicity of the case
material, disposition, concentration and economy of the
proceedings, and the legal aid guaranteed by the state. The
procedure of consideration of civil cases, of adoption of
decisions in civil cases and their execution was correspondingly
regulated, the institutes of civil procedure law consolidated in
the formerly effective Code of Civil Procedure were amended and
new institutes were introduced (the group claim was consolidated,
the procedure of removal of the judge was amended, the institute
of cassation proposal was abandoned, written proceedings were
introduced, the process of execution was reformed in essence,
etc.).
In this context it needs to be mentioned that, under
Article 2 of the Code of Civil Procedure, "the objectives of the
civil procedure are to protect the interests of the persons whose
substantive-subjective rights or whose interests protected by
laws have been violated or are being disputed; to properly apply
laws when the court considers civil cases, adopts decisions and
in the course of their execution; to restore the legal peace
between the parties of the dispute as soon as possible; also to
construe and develop law".
6. In the context of the constitutional justice case at
issue, it needs to be noted that the institute of adoption of a
decision in absentia, which is consolidated in the Code of Civil
Procedure, is to be construed while taking account of the
principles of concentration and economy of the proceedings
consolidated in the Code of Civil Procedure, meaning that the
court resorts to measures established in the Code of Civil
Procedure in order to prevent procrastination of the proceedings
and seeks to attain that that case be considered in one court
hearing, if this does not harm for proper consideration of the
case, also that the effective court decision be executed within
the shortest time possible and in the most economical way
(Paragraph 1 (wording of 28 February 2002) of Article 7 of the
Code of Civil Procedure), also meaning that the persons
participating in the case must make use of their procedural
rights in good faith and not abuse them, they must take care of a
speedy consideration of the case, by taking account of the course
of the proceedings, carefully and in time to submit to the court
the evidence and the arguments by which their claims or
replications are substantiated (Paragraph 2 (wording of 28
February 2002) of Article 7 of the Code of Civil Procedure).
Thus, the institute of adoption of a decision in absentia in the
civil procedure seeks to create legal preconditions in the civil
proceedings to implement inter alia the principle of economy and
concentration.
It also needs to be mentioned that the institute of
adoption of a decision in absentia in general is not a novel
either in Lithuanian civil procedure law, nor in the Lithuanian
legal system: this institute (besides, it was also known in Roman
law) was consolidated in the laws of the interwar Lithuanian
civil procedure laws. This institute is also characteristic of
law of a great many European states (however, in various national
legal systems it has certain peculiarities).
7. The adoption of a decision in absentia is a specific way
of settling disputes in civil cases, when after one of the party
to the proceedings keeps away from participation in consideration
of the civil case (for example, when either the respondent or the
claimant fail to appear at the hearing of the court, in which the
civil case must be considered, or when the respondent fails to
submit a response to the claim) this case is considered and a
decision is adopted without participation of that party.
8. The relations linked with the adoption of a decision in
absentia are regulated in various articles (items and paragraphs
thereof) of the Code of Civil Procedure.
8.1. Under Paragraph 2 (wording of 28 February 2002) of
Article 626 of the Code of Civil Procedure, in the cases and
procedure provided for, the court which is considering the case
shall have the right to adopt a decision in absentia.
8.2. Article 285 (wording of 28 February 2002) of the Code
of Civil Procedure, the compliance of Paragraph 2 of which with
the Constitution is disputed by the group of Members of the
Seimas, the petitioner, in this constitutional justice case,
provides:
"1. A decision in absentia may be adopted in the cases when
one of the parties, which was properly notified about the time
and place of the court hearing and no statement was received from
it as regards the consideration of the case in its absence, fails
to appear at the court hearing, while the party that is present
requests for adoption of such a decision, as well as in other
cases provided for in this Code. A decision in absentia may also
be adopted regarding one or several claimants or respondents,
when they, under the said conditions, fail to appear at the court
hearing in the case in which there are several claimants or
respondents. If the party present at the court hearing disagrees
to the adoption of a decision in absentia, the court shall invoke
Article 246 of this Code.
2. A decision in absentia concerning the respondent who
failed to appear may be adopted only in connection of the demands
of the claim about which the respondent was informed according to
the procedure established in this Code. The court, when it adopts
a decision in absentia, performs a formal assessment of the
evidence submitted in the case, i.e. it ascertains that if the
content of the evidence is confirmed, there would be grounds to
adopt such decision.
3. The court shall not grant a request of the party present
at the court hearing to adopt a decision in absentia and shall
postpone the consideration of the case, if:
1) the party which failed to appear was not properly
notified about the time and place of the court hearing;
2) a request to postpone the consideration of the case was
received from the party which failed to appear, by indicating and
substantiating the reasons of failure to appear at the court
hearing, provided the court has recognised these reasons as
valid.
4. The refusal by the court to adopt a decision in absentia
must be a reasoned one.
5. The party which failed to appear, in whose regard the
decision in absentia was adopted, may not appeal against this
decision either under appeal procedure, or under cassation
procedure.
6. The adoption and announcement of a decision in absentia
may not be postponed.
7. A copy of a decision in absentia shall be sent to the
party which failed to appear within three days of its adoption."
8.3. Paragraph 2 (wording of 28 February 2002) of Article
303 of the Code of Civil Procedure the compliance of which with
the Constitution is disputed by the group of Members of the
Seimas, the petitioner, in this constitutional justice case,
provides that the object of appeal cannot be a court decision in
absentia, if such appeal is lodged by the person in whose regard
such decision is adopted.
8.4. The Code of Civil Procedure also provides for other
cases when the court may adopt a decision in absentia: if within
the established term the respondent fails to submit his response
to the claim, the court has the right, in case there is a request
of the claimant, to adopt a decision in absentia (Paragraph 4
(wording of 28 February 2002) of Article 142 of the Code of Civil
Procedure); at the request of the party that is present, the
court which is considering the case shall adopt the decision in
absentia under procedure established in the Code of Civil
Procedure with regard to the party which was properly notified
but failed to appear at the preparatory hearing (Paragraph 2
(wording of 28 February 2002) of Article 230 of the Code of Civil
Procedure).
8.5. Under Item 5 (wording of 28 February 2002) of
Paragraph 1 of Article 135 of the Code of Civil Procedure, the
claim must contain the opinion of the claimant regarding the
adoption of a decision in absentia, if the respondent does not
submit his response to the stated claim or no preparatory
procedural document is submitted (Item 5 (wording of 28 February
2002) of Paragraph 1 of Article 135 of the Code of Civil
Procedure), while under Item 4 (wording of 28 February 2002) of
Paragraph 2 of Article 142, in the response to the stated claim
the opinion of the respondent regarding the adoption of a
decision in absentia, if the claimant does not submit the
preparatory procedural documents.
8.6. In Article 286 (wording of 28 February 2002) of the
Code of Civil Procedure, the compliance of Paragraph 1 of which
with the Constitution is disputed by the group of Members of the
Seimas, the petitioner, in this constitutional justice case, the
requirements for the content of the decision in absentia are
entrenched: such decision is composed of the introductory and
resolution parts and abridged reasoning (Paragraph 1); the
introductory part of the decision, along with general
requirements to this part of the decision, must specify that the
decision has been adopted in absentia (Paragraph 2); together
with the general requirements for resolution part of the decision
adopted in absentia, this part of the decision must indicate the
terms and procedure for submitting an application for reviewing
this decision (Paragraph 3).
8.7. Some elements of the institute of adoption of a
decision in absentia are entrenched in Article 246 (wording of 28
February 2002) of the Code of Civil Procedure. It provides:
"1. When the claimant who has not been properly notified
about the time and place of the court hearing fails to appear at
the court hearing, and when he has no representative, the court
shall postpone the consideration of the case. The consideration
of the case is postponed also in the case when the claimant
conducts his case through a representative, however, the claimant
and his representative have failed to appear at the court
hearing, when the representative of the claimant has not been
properly notified about the place and time of the court hearing.
The consideration of the case may be postponed at the request of
the claimant or his representative if he, prior to the beginning
of the court hearing, submits documents, justifying his absence,
and if the court recognises the failure to appear as valid (as a
rule, failure to appear due to sickness, vacation, business trip,
participation of the representative of the party in other cases
at law, other business and other similar cases are not regarded
as valid reasons). In other cases the court, at the request of
the respondent and under procedure established in this Code shall
adopt a decision in absentia. Where the respondent does not
request to adopt a decision in absentia, the claim shall be left
unconsidered by the court.
2. When the respondent who has not been properly notified
about the time and place of the court hearing fails to appear at
the court hearing, and when he has no representative, the court
shall postpone the consideration of the case. The consideration
of the case may be postponed also in the case when the respondent
conducts his case through a representative, however, the
respondent and his representative have failed to appear at the
court hearing, when the representative of the claimant has not
been properly notified about the place and time of the court
hearing. The consideration of the case may be postponed at the
request of the respondent or his representative if he, prior to
the beginning of the court hearing, submits documents, justifying
his absence, and if the court recognises the failure to appear as
valid (as a rule, failure to appear due to sickness, vacation,
business trip, participation of the representative of the party
in other cases at law, other business and other similar cases are
not regarded as valid reasons). In other cases the court, at the
request of the claimant and under procedure established in this
Code shall adopt a decision in absentia. Where the claimant does
not request to adopt a decision in absentia, the court shall have
the right to postpone the consideration of the case or to
consider the case in essence according to the general rules of
the legal proceedings of disputes.
3. When postponing the consideration of the case, the court
shall have the right to impose a fine of up to LTL 1000 upon the
party which failed to appear, when laws establish a duty for the
said party to participate at the court hearing or where the court
recognises the participation of the party in the court hearing as
necessary and that it is impossible to adopt a decision in
absentia. When the representative of the party fails to appear at
the court hearing without valid reasons and due to this the court
postpones the consideration of the case, the court shall have the
right to impose a fine of up to LTL 1000 upon him, as well as
upon the head of the legal person because of whose fault the
representative failed to appear at the court hearing.
4. If there are no data about the reasons of the failure of
the parties to appear or of they fail to appear at the court
hearing without valid reasons and if no requests were received
from any of them to consider the case in their absence, the claim
shall be left unconsidered by the court
5. The participation of the representative of the party who
failed to appear at the court hearing shall be regarded as proper
participation of the party, save the cases when the court
recognises the personal participation of the party in the court
hearing as necessary. If the court recognises that the
participation of the party is necessary and the party fails to
appear at the court hearing, the court shall adopt a decision in
absentia."
8.8. One is also to mention the provision "the claim shall
be left unconsidered by the court: <
> (5) if the respondent does
not request to adopt a decision in absentia in the case specified
in Paragraph 1 of Article 246 of this Code" of Paragraph 1
(wording of 28 February 2002) of Article 296 of the Code of Civil
Procedure.
8.9. Articles 287, 288 and 289 (wording of 28 February
2002) of the Code of Civil Procedure regulate the relations
linked with reviewing a court decision adopted in absentia and
with repeated adoption of a decision in absentia.
8.8.1. Article 287 (wording of 28 February 2002) of the
Code of Civil Procedure provides:
"1. The party which failed to appear at the court hearing
shall have the right to submit the court that adopted the
decision in absentia an application on reviewing the decision
adopted in absentia (hereinafter referred to as the application)
within twenty days of the adoption of this decision.
2. The application must contain the following:
1) the title of the court that adopted the decision in
absentia;
2) the name of the party which is submitting the
application;
3) the circumstances testifying the validity of the reasons
for the failure to appear at the court hearing and for the
failure to inform the court prior to the court hearing, as well
as the evidence substantiating these circumstances;
4) the circumstances which could be influential to the
lawfulness and reasonableness of the decision, as well as the
evidence confirming these circumstances;
5) the request of the party which is submitting the
application;
6) the list of material attached to the application;
7) the signature of the party submitting the request and
the date of drawing up of the application.
3. The court is submitted with the number of copies of the
application and of its attachments, which corresponds to the
number of the other parties and the third persons.
4. The shortcomings of the application are removed under
the established procedure for removal of shortcomings of a claim.
5. If an appeal and an application on reviewing of the
decision adopted in absentia are lodged in the same case, the
application on reviewing of the decision adopted in absentia must
be considered first and the court ruling adopted in regard of
this application must become effective."
8.9.2. Article 288 (wording of 28 February 2002) of the
Code of Civil Procedure provides:
"1. After it has accepted the application, the court sends
copies of the application and of its attachments to the parties
and the third persons and informs them that within fourteen days
of its sending the parties must, and the third persons have the
right to, submit written responses to the application.
2. The court shall consider the submitted application
according to the procedure of written proceedings within fourteen
days of the day on which the term of submission of the response
expires.
3. After it has considered the application, the court shall
have the right:
1) not to grant the application;
2) to rescind the decision adopted in absentia and to renew
the consideration of the case in essence.
4. After it has considered the application, the court shall
repeal the decision adopted in absentia and shall renew the
consideration of the case in essence, if it holds that the party
failed to appear at the court hearing due to valid reasons about
which it was unable duly to inform the court, while the evidence
indicated in its application can be influential to the lawfulness
and reasonableness of the decision adopted in absentia.
5. A copy of the ruling shall be sent to the parties and
the third persons within three days of its adoption.
6. An individual complaint may be lodged as regards the
ruling which refuses to grant the application."
8.9.3. Article 289 (wording of 28 February 2002) of the
Code of Civil Procedure provides:
"1. If the court renews the consideration of the case on
merits on the grounds provided for in Paragraph 4 of Article 288
of this Code, however, the party in whose regard the decision in
absentia was adopted fails to appear at the court hearing without
valid reasons, the court shall have the right to adopt a decision
in absentia at the second time, provided that party was properly
notified about the time and place of the court hearing.
2. In the case specified in Paragraph 1 of this Article, an
application on reviewing the decision adopted in absentia may not
be lodged."
In this context it needs to be mentioned that the stamp
duty of LTL 50 is paid for an application requesting to review a
decision adopted in absentia (Paragraph 3 (wording of 28 February
2002) of Article 80 of the Code of Civil Procedure).
8.10. The Code of Civil Procedure also consolidates
prohibitions (limitations) for adoption of decisions in absentia
when cases of certain categories are considered.
8.10.1. The court has no right to adopt a decision in
absentia when it considers cases under Articles 381-409 of the
Code of Civil Procedure (Article 378 (wording of 28 February
2002) of the Code of Civil Procedure). In this context it needs
to be mentioned that Articles 381-409 of the Code of Civil
Procedure regulate the consideration of cases on dissolution of
marriage or its recognition as invalid, separation of spouses,
establishment of fatherhood (motherhood), disputing fatherhood
(motherhood), limitation of parental power.
8.10.2. Paragraph 9 (wording of 28 February 2002) of
Article 443 of the Code of Civil Procedure provides that the
court when it considers cases under special proceedings has no
right to adopt a decision in absentia.
8.10.3. Under Paragraph 4 (wording of 28 February 2002) of
Article 430 of the Code of Civil Procedure, it is prohibited to
adopt a decision in absentia in regard of the claimant in the
documentary proceedings, if the claimant does not submit his
response to objections of the respondent.
9. Summing up the legal regulation established in the cited
articles (items, paragraphs thereof) of the Code of Civil
Procedure, one is to hold that adoption of a decision in
absentia, if compared with adoption of other decisions in a civil
case, has certain peculiarities. These peculiarities are linked
with inter alia the conditions and content of the decision, with
assessment of the evidence submitted in the case, as well as with
reviewing of and appealing against such decision.
10. Strict conditions for adoption of a decision in
absentia are established in the Code of Civil Procedure. It needs
to be emphasised that such a decision can be adopted only when
there are all the conditions provided for, i.e. the entirety of
certain conditions provided for in the Code of Civil Procedure.
10.1. A decision may be adopted in absentia when one of the
parties to the proceedings fails to appear:
- when one of the parties, which has been properly notified
about the time and place of the court hearing, fails to appear;
- when no request to postpone the consideration of the case
was received from the party which failed to appear, wherein the
reasons of the failure to appear would be indicated and
substantiated, which would be recognised by the court as valid;
- when the party which is present requests to adopt a
decision in absentia.
In this context one is to note that, under the Code of
Civil Procedure, the participation of the representative of the
party which failed to appear at the court hearing is regarded as
proper participation of the party, save the cases when the court
recognises that the personal participation of the party is
necessary; if the court recognises that the participation of the
party is necessary, but it fails to appear at the court hearing,
the court adopts the decision in absentia.
10.2. In addition, a decision may be adopted in absentia,
if:
- the respondent did not submit his response to the claim
within the established term or the claimant did not submit the
preparatory procedural documents within the established term;
- there are no valid reasons of the failure to submit the
response to the claim or to submit the preparatory procedural
documents;
- there is a request (opinion) of the claimant or the
respondent to adopt the decision in absentia.
10.3. It needs to be specially emphasised that the Code of
Civil Procedure consolidates the legal regulation whereby even in
the case that there are all the conditions for adoption of a
decision in absentia, the court, when following inter alia the
principles of justice and reasonableness, has the powers to
decide whether to adopt the decision in absentia, or not to adopt
such decision.
11. Certain peculiarities of assessment of the evidence
submitted in the case as well as peculiarities related to the
content of a decision adopted in absentia are also characteristic
of the adoption of such decision, as a specific institute of
civil procedure law:
- to adopt a decision in absentia, the court must decide
whether in case the content of the submitted evidence is
confirmed there would be grounds for adoption of such decision;
if the court is convinced that in case the content of the
submitted evidence is confirmed there would be grounds for
adoption of a decision in absentia; such conviction of the court
is referred to in the Code of Civil Procedure as "formal
assessment of the submitted evidence";
- the decision adopted in absentia is composed of the
introductory and resolution parts as well as abridged reasoning;
- the decision with regard to the respondent who failed to
appear may be adopted in absentia only as regards the demands of
the claim about which the respondent was informed under the
procedure established in the Code of Civil Procedure.
12. Still other peculiarities of the adoption of a decision
in absentia as a specific institute of civil procedure law are
related to the reviewing of and appealing against such decision;
these peculiarities are determined by the objectives, essence and
nature of this institute.
The party which failed to appear and in whose respect the
decision in absentia was adopted has the right to submit, within
twenty days of the day of the adoption of the decision, an
application to the court that adopted the said decision
requesting to review the decision adopted in absentia, however,
it cannot appeal against this decision either under appeal, or
cassation procedure. Such application of the party which failed
to appear is considered in court under the procedure of written
proceedings. Having considered the application, the court enjoys
the powers to repeal the decision adopted in absentia and to
renew the consideration of the case on merits only in the case
when it holds that there is a whole of certain conditions
(circumstances) provided for in the Code of Civil Procedure,
namely, that the party failed to appear at the court hearing due
to valid reasons, that the party that failed to appear at the
court hearing could not inform the court due to valid reasons an
that the evidence indicated in the application of the party could
be influential to the lawfulness and reasonableness of the
decision adopted in absentia. Having held that at least one of
the aforementioned circumstances is absent, the court has no
powers to repeal the decision adopted in absentia.
It also needs to be noted that if the court, having renewed
the consideration of the case on merits, adopted a decision in
absentia at the second time, an application on reviewing the
decision adopted in absentia cannot be lodged.
13. When deciding, subsequent to the petition of the group
of Members of the Seimas, the petitioner, whether the disputed by
the petitioner articles (parts thereof) of the Code of Civil
Procedure consolidating individual aspects of adoption of a
decision in absentia as a specific institute of procedural law,
are not in conflict with the Constitution, it needs to be noted
that, in general, no prohibition arises form the Constitution to
establish the legal regulation of civil procedure whereby in
cases when a party to the proceedings withdraws from the
participation in the consideration of the civil case of its own
will and refuses to cooperate in the consideration of the case,
the court would enjoy the powers to consider the civil case and
adopt a decision also when the party to the proceedings has
withdrawn of its own will and which does not cooperate with the
court. Quite to the contrary, the civil procedure must be
regulated by the law so that no preconditions would be created
for procrastination of the consideration of cases, of adoption
and execution of decisions, thus the participants to the civil
process (including the parties to the process) would be prevented
from abusing their procedural and other rights, and the rights of
inter alia the party to the process which participates in the
consideration of the civil case in good faith would not be
violated. By means of the adoption of a decision in absentia one
precisely seeks, along with other objectives, to prevent the
procrastination of the civil process and not to permit the
parties to the process to abuse their procedural rights.
Therefore, in itself such institute is not to be regarded as
anti-constitutional: by means of such institute constitutionally
grounded objectives are sought.
14. Alongside, it needs to be noted that the legislator,
when regulating corresponding relations by means of the law, must
heed the Constitution, inter alia the constitutional principles
of a state under the rule of law, equality of rights, public and
fair consideration of the case, impartiality and independence of
judges. One must establish the legal regulation in laws whereby
the jurisdictional institutions and other institutions which
apply law would be independent, impartial, that they would seek
to establish the substantive truth in the case and adopt all
decisions on the grounds of law, that the constitutional right of
the person to proper legal process, which is derived from inter
alia the constitutional principle of a state under the rule of
law and which is inseparably related with it, would be heeded.
Thus, under the Constitution, the relations of civil
procedure must be regulated by means of the law so that the legal
preconditions would be created to the court to investigate all
circumstances important to the case and to adopt a just decision
in the case. And, on the other hand, it is not permitted to
establish any such legal regulation which would not permit the
court, after it takes account of all important circumstances of
the case and by following law, without transgressing the
imperatives of justice and reasonableness which arise from the
Constitution, to adopt a just decision in the case and thus to
administer justice. Otherwise, the powers of the court to
administer justice, which arise from inter alia Article 109 of
the Constitution, would be limited or even denied, and one would
deviate from the constitutional concept of the court as the
institution which administers justice in the name of the Republic
of Lithuania, as well as from the constitutional principles of a
state under the rule of law and justice.
15. Under the Constitution, when the relations of civil
procedure are regulated, the right of a party to the proceedings
the participate in the consideration of the case directly or
through a representative cannot be denied, either, providing it
itself has not self-removed from such participation. The party to
the proceedings must be properly notified about the consideration
of the case, while the court, at the beginning of the
consideration of the case, must ascertain whether it has been
informed about any valid reasons due to which the party to the
proceedings is not participating (it has not submitted its
position in writing as regards the dispute, it does not request
to extend the term for submission of its position, it fails to
appear at the court sitting, etc.).
The constitutional obligation of the court to solve the
case justly implies that if the court thinks that if after one
party to the proceedings has self-removed from participating in
the consideration of the case, it will not be able to consider
that case justly, nor to adopt a just decision, it must resort to
all possible measures so that the participation of such party in
the consideration of the case is ensured.
16. It also needs to be noted that, under the Constitution,
the legal regulation of the relations of civil procedure must be
such so that the participants, which have the same legal status,
to the proceedings would be treated equally. Thus, they should
have the same rights and duties, unless there are the differences
between them of such character and extent that the unequal
treatment would be objectively justified. Otherwise, one would
deviate from the constitutional principles of a state under the
rule of law and equality of persons.
17. The Constitution also implies certain requirements
which must be heeded by the legislator when he regulates
appealing against court decisions adopted after the case is
considered.
For instance, in its ruling of 16 January 2006 the
Constitutional Court held that under the Constitution a legal
regulation must be established by means of a law, whereby one
would be able to lodge an appeal with at least a court of higher
instance against a final act of the specialised court of first
instance established under Paragraph 2 of Article 111 of the
Constitution. In the context of the constitutional justice case
at issue, it needs to be noted that when the relations of civil
procedure are regulated by means of a law, also the legal
regulation must be established whereby one would be able to lodge
an appeal with at least one court of higher instance against any
final act which was adopted in a case by a court of first
instance. It needs to be emphasised that the law must establish
not only the right of the party to the proceedings to lodge an
appeal with at least one court of higher instance against any
final act which was adopted in a case by a court of first
instance, but also it must establish a procedure of such appeal,
which would permit to correct possible mistakes of the court of
first instance. Otherwise, one would deviate from the
constitutional principle of a state under the rule of law and the
constitutional right of the person to proper legal process would
be violated.
Alongside, it needs to be noted that the Constitution does
not prevent regulating the civil procedure so that no legal
preconditions are created, which could permit the parties to the
proceedings to abuse their right to appeal against a decision
adopted in their case and, thus, to procrastinate the
proceedings.
18. Under the Code of Civil Procedure, the courts must heed
the principles and norms of civil procedure law. It needs be
underlined that this duty of the court may not be interpreted as
permitting to raise the principles and norms of civil procedure
law or those of civil law above the principles and norms of the
Constitution, nor as permitting to construe the principles and
norms of civil procedure law or those of civil law so that the
meaning of the provisions of the Constitution would be distorted
or ignored.
19. While deciding whether Paragraph 2 (wording of 28
February 2002) of Article 285 of the Code of Civil Procedure to
the extent that the court, when it adopts a decision in absentia,
performs a formal assessment of the evidence submitted in the
case, i.e. it ascertains that if the content of the evidence is
confirmed, there would be grounds to adopt such decision, is not
in conflict with Articles 29, 109 and 117 of the Constitution of
the Republic of Lithuania as well as with the constitutional
principle of a state under the rule of law, it needs to be noted
that this provision is to be construed not only verbatim, but
also by taking account of the objectives, essence and nature of
the specific institute of adoption of a decision in absentia,
which are related with the adoption of a decision in absentia, as
well as by taking account of the overall legal regulation in the
Code of Civil Procedure and of the principles and objectives of
the civil procedure.
19.1. Thus, it is not permitted to construe the provision
"the court, when it adopts a decision in absentia, performs a
formal assessment of the evidence submitted in the case, i.e. it
ascertains that if the content of the evidence is confirmed,
there would be grounds to adopt such decision" of Paragraph 2
(wording of 28 February 2002) of Article 285 of the Code of Civil
Procedure cannot be construed as it, purportedly, means that the
court need not comprehensively investigate the evidence submitted
in the case, that it can investigate it only superficially and
without going deep into the evidence. Nor can this provision be
construed as obligating the court to adopt a decision in absentia
even in the case when, in its opinion, there are not enough
evidence in the case in order to adopt a just decision in that
case.
In this context it needs to be mentioned that, as held in
this Constitutional Court ruling, the constitutional concept of
justice implies not only a formal and nominal justice
administered by a court, but, and, most importantly, such court
decisions (other final court acts), which in their content are
not unjust, also that the justice administered by a court only
formally is not the justice which is entrenched in and protected
and defended by the Constitution.
It was mentioned that even in the case when there are all
conditions provided for in the Code of Civil Procedure in order
to adopt a decision in absentia, a court, while following inter
alia the principles of justice and reasonableness, has the powers
to decide whether to adopt the decision in absentia, or not to
adopt such a decision.
When the legal regulation established in Paragraph 2
(wording of 28 February 2002) of Article 285 of the Code of Civil
Procedure, which is which is disputed by the group of Members of
the Seimas, the petitioner, is understood in such a way, the
provision "the court, when it adopts a decision in absentia,
performs a formal assessment of the evidence submitted in the
case, i.e. it ascertains that if the content of the evidence is
confirmed, there would be grounds to adopt such decision" of the
said paragraph does not violate the constitutional right of the
person to proper legal process, it does not limit, nor does it
deny the empowerments of the court to administer justice, which
arise from the Constitution, inter alia Article 109 thereof, nor
does one deviate form the constitutional concept of the court as
the institution that administers justice in the name of the
Republic of Lithuania and from the constitutional principles of a
state under the rule of law and justice.
19.2. In this context, one is also to mention the fact
that, under the Code of Civil Procedure, it is not impossible to
review the court decision adopted in absentia, when formal
assessment of the evidence submitted in the case is conducted.
19.3. It needs to be noted that the legal regulation
established in Paragraph 2 (wording of 28 February 2002) of
Article 285 of the Code of Civil Procedure is applicable to all
parties to the proceedings, whose dispute is settled in the civil
case by way of adoption of a decision in absentia. Thus, such
legal regulation neither discriminates nor grants privileges to
any persons who have the same legal status, thus, the principle
of equality of persons entrenched inter alia in Article 29 of the
Constitution is not deviated from.
19.4. The provision of Paragraph 2 (wording of 28 February
2002) of Article 285 of the Code of Civil Procedure, which is
disputed in the constitutional justice case at issue by the group
of Members of the Seimas, the petitioner, regulates the relations
of different character than those regulated in Paragraph 1 of
Article 117 of the Constitution. Thus, the legal regulation
established in Paragraph 2 (wording of 28 February 2002) of
Article 285 of the Code of Civil Procedure does not violate the
principle of publicity of consideration of cases, which is
entrenched in inter alia Paragraph 1 of Article 117 of the
Constitution.
20. Taking account of the arguments set forth, one is to
draw a conclusion that Paragraph 2 (wording of 28 February 2002)
of Article 285 of the Code of Civil Procedure to the extent that
it provides that "the court, when it adopts a decision in
absentia, performs a formal assessment of the evidence submitted
in the case, i.e. it ascertains that if the content of the
evidence is confirmed, there would be grounds to adopt such
decision" is not in conflict with Articles 29 and 109, Paragraph
1 of Article 117 of the Constitution as well as the
constitutional principle of a state under the rule of law.
21. While deciding whether Paragraph 1 (wording of 28
February 2002) of Article 286 of the Code of Civil Procedure is
not in conflict with Articles 29, 109 and 107 of the Constitution
and the constitutional principle of a state under the rule of
law, it needs to be noted that although the group of Members of
the Seimas, the petitioner, requests to investigate whether
entire Paragraph 1 (wording of 28 February 2002) of Article 286
of the Code of Civil Procedure is not in conflict with the
Constitution, it is clear from the arguments of the petition that
the petitioner doubts only whether the provision of Paragraph 1
(wording of 28 February 2002) of Article 286 of the Code of Civil
Procedure that abridged reasoning is set forth in the decision
adopted in absentia is not in conflict with the Constitution.
22. While deciding whether the provision of Paragraph 1
(wording of 28 February 2002) of Article 286 of the Code of Civil
Procedure that abridged reasoning is set forth in the decision
adopted in absentia is not in conflict with Articles 209, 109 and
117 of the Constitution and the constitutional principle of a
state under the rule of law, one is to hold that this provision
may not be construed as meaning that, purportedly, in a decision
adopted in absentia the court does not have to enumerate all the
arguments (reasoning) substantiating it. It does not deny the
duty of the court to point out as much reasoning as it would be
enough for substantiating the adopted decision, while the formula
"abridged reasoning" of this provision includes only the minimum
of the reasoning which is necessary in order to substantiate the
decision adopted in absentia.
When the legal regulation established in Paragraph 1
(wording of 28 February 2002) of Article 286 of the Code of Civil
Procedure is understood in such a way, it needs to be held that
the provision that abridged reasoning is set forth in a decision
adopted in absentia does not violate the constitutional right of
the person to proper legal process, it does not limit, nor does
it deny the empowerments of the court to administer justice,
which arise from the Constitution, inter alia Article 109
thereof, nor does it deviate form the constitutional concept of
the court as the institution that administers justice in the name
of the Republic of Lithuania and from the constitutional
principles of a state under the rule of law and justice.
23. Taking account of the arguments set forth, one is to
draw a conclusion that the provision of Paragraph 1 (wording of
28 February 2002) of Article 286 of the Code of Civil Procedure
that abridged reasoning is set forth in the decision adopted in
absentia is not in conflict with Articles 29, 109 and Paragraph 1
of Article 117 of the Constitution as well as the constitutional
principle of a state under the rule of law.
24. While deciding whether Paragraph 5 (wording of 28
February 2002) of Article 285 and Paragraph 2 (wording of 28
February 2002) of Article 303 of the Code of Civil Procedure are
not in conflict with Articles 209, 109 and 117 of the
Constitution and the constitutional principle of a state under
the rule of law, it needs to be noted that under Paragraph 5
(wording of 28 February 2002) of Article 285 and Paragraph 2
(wording of 28 February 2002) of Article 303 of the Code of Civil
Procedure, the party in whose regard a decision in absentia was
adopted is prohibited from appealing against this decision either
under appeal procedure, or under cassation procedure.
24.1. This legal regulation is to be construed in the
context of other provisions of the Code of Civil Procedure, inter
alia those designed for the grounds and procedure of renewal of
the proceedings, as well as those designed for reviewing a
decision adopted in absentia.
As mentioned, under the Code of Civil Procedure, it is not
impossible to review the court decision adopted in absentia, when
formal assessment of the evidence submitted in the case is
conducted. For instance, under Paragraph 4 (wording of 28
February 2002) of Article 288 of the Code of Civil Procedure,
after it has considered the application on reviewing a decision
adopted in absentia, the court shall rescind the decision adopted
in absentia and shall renew the consideration of the case in
essence only if it holds that the party failed to appear at the
court hearing due to valid reasons about which it was unable duly
to inform the court, while the evidence indicated in its
application can be influential to the lawfulness and
reasonableness of the decision adopted in absentia. Thus, in
general, the court may repeal a decision adopted in absentia and
it may renew the consideration of the case in essence; however,
first, it must assess the reasons of the failure of the party to
appear at the court hearing in which the decision in absentia was
adopted and, second, after it has recognised them as valid ones,
it must assess and hold that the evidence indicated in its
application can be influential to the lawfulness and
reasonableness of the decision adopted in absentia. It needs to
be noted that the court may repeal the decision adopted in
absentia and renew the consideration of the case in essence only
if there are both said conditions. Thus, if the court recognises
that the reasons of the failure of the party to appear at the
court hearing in which the decision in absentia was adopted as
not valid ones, then even if it holds that the evidence indicated
in its application can be influential to the lawfulness and
reasonableness of the decision adopted in absentia, it enjoys no
powers to renew the consideration of the case in essence.
24.2. It needs to be noted that when one takes account of
the objectives, essence and nature of the adoption of a decision
in absentia as a specific institute of civil procedure law, and
especially of the fact that by means of such institute one seeks
to prevent procrastination of the proceedings and the situations
when the parties abuse their rights and to create legal
preconditions for inter alia the protection of the rights and
legitimate interests of the honest party to the proceedings,
certain limitations of reviewing of the decision adopted in
absentia are possible. Such limitations may be justifiable when a
party to the proceedings withdraws from the participation in the
consideration of the civil case of its own will and when the
court that is considering whether to review a decision adopted in
absentia is not submitted with the evidence confirming that the
decision adopted by the court is clearly unjust.
However, also such legal situations are possible where a
court, which is deciding whether to review a decision adopted in
absentia, is submitted such evidence, which confirms that that
decision was clearly unjust and that by that decision the rights
of the person were clearly violated. However, under Paragraph 4
(wording of 28 February 2002) of Article 288 of the Code of Civil
Procedure, the court, if it has recognised that the reasons of
the failure of the party to the proceedings to appear at the
court hearing were not valid, has not any powers in any case to
rectify the mistake made by the court, nor to defend the violated
rights of the persons, nor to administer justice.
24.3. It has been held in this Constitutional Court ruling
that, under the Constitution, the relations of civil procedure
must be regulated by means of the law so that the legal
preconditions would be created to the court to investigate all
circumstances important to the case and to adopt a just decision
in the case and that it is not permitted to establish any such
legal regulation which would not permit the court, after it takes
account of all important circumstances of the case and by
following law, without transgressing the imperatives of justice
and reasonableness which arise from the Constitution, to adopt a
just decision in the case and thus to administer justice. It was
also held that, otherwise, the powers of the court to administer
justice, which arise from inter alia Article 109 of the
Constitution, would be limited or even denied, and one would
deviate from the constitutional concept of the court as the
institution which administers justice in the name of the Republic
of Lithuania, as well as from the constitutional principles of a
state under the rule of law and justice.
The legal regulation established in Paragraph 4 (wording of
28 February 2002) of Article 288 of the Code of Civil Procedure
disregards the said constitutional imperatives.
24.4. In this context it needs to be mentioned that an
individual complaint can be lodged against a ruling of the court
of first instance, which refuses to grant the application
requesting to review the decision adopted in absentia (Paragraph
6 (wording of 28 February 2002) of Article 288 of the Code of
Civil Procedure). Such appeal is lodged with the court of appeal
instance separately from the court decision (Paragraph 1 (wording
of 28 February 2002) of Article 334 of the Code of Civil
Procedure). However, also the court of appeal instance, when it
decides whether to grant the individual complaint, must inter
alia follow the provisions regarding repeal of a decision adopted
in absentia, which are consolidated in Paragraph 4 (wording of 28
February 2002) of Article 288 of the Code of Civil Procedure, i.
e. if it has recognised that the reasons due to which the party
to the proceedings failed to appear at the court hearing were not
valid, it has no powers to repeal the ruling of the court of
first instance which had refused to grant the application
regarding reviewing the decision adopted in absentia even in the
cases when the court is submitted the evidence that confirms that
the said decision was clearly unjust and that by that decision
the rights of the person had been clearly violated.
24.5. Taking account of the arguments set forth, one is to
draw a conclusion that Paragraph 4 (wording of 28 February 2002)
of Article 288 of the Code of Civil Procedure to the extent that
the court is not permitted to review a decision adopted in
absentia also in such cases when the court is submitted the
evidence that confirms that the said decision was clearly unjust
and that by that decision the rights of the person had been
clearly violated is in conflict with Article 109 of the
Constitution and the constitutional principles of a state under
the rule of law and justice.
25. As mentioned, under Paragraph 2 (wording of 28 February
2002) of Article 289 of the Code of Civil Procedure, no
application requesting to review a decision adopted in absentia
may be lodged, which was adopted after the court had renewed the
consideration of the case on merits under already indicated
grounds provided for in Paragraph 4 (wording of 28 February 2002)
of Article 288 of the Code of Civil Procedure.
25.1. Thus, preconditions are created also for such legal
situations where even when there are the grounds for repealing a
decision adopted in absentia, which are established in Paragraph
4 (wording of 28 February 2002) of Article 288 of the Code of
Civil Procedure, i.e. when the party failed to appear at the
court hearing due to valid reasons about which it was unable to
duly inform the court, while the evidence indicated in its
application can be influential to the lawfulness and
reasonableness of the decision adopted in absentia, the repeat
court decision adopted in absentia may not be repealed, nor an
application may be lodged requesting to review the decision
adopted in absentia. Thus, neither does the court enjoy powers to
review such decision adopted in absentia, in which evident
mistakes by the court were made, nor can it adopt a just decision
in the case while following law and the principles of justice and
reasonableness which arise from the Constitution. Thus the powers
of the court to administer justice which stem from the
Constitution, inter alia Article 109 thereof, are denied and one
deviates form the constitutional concept of the court as the
institution which administers justice in the name of the Republic
of Lithuania as well as from the constitutional principles of a
state under the rule of law and justice.
25.2. On the grounds of the arguments on the grounds of
which it was held in this Constitutional Court ruling that
Paragraph 4 (wording of 28 February 2002) of Article 288 of the
Code of Civil Procedure to the extent that the court is not
permitted to review a decision adopted in absentia also in such
cases when the court is submitted the evidence that confirms that
the said decision was clearly unjust and that by that decision
the rights of the person had been clearly violated is in conflict
with Article 109 of the Constitution and the constitutional
principles of a state under the rule of law and justice, one is
to also hold that also Paragraph 2 (wording of 28 February 2002)
of Article 289 of the Code of Civil Procedure to the extent that
it provides that an application requesting to review a decision
adopted in absentia also in such cases when the court is
submitted such evidence that confirms that the decision was
clearly unjust deviates form the aforesaid imperatives as well.
25.3. Taking account of the arguments set forth, one is to
hold that Paragraph 2 (wording of 28 February 2002) of Article
289 of the Code of Civil Procedure to the extent the court is not
permitted to accept an application requesting to review a
decision adopted in absentia also in such cases when the court is
submitted such evidence whereby a clear mistake was made by the
court in adopting the decision in absentia, also when the court
is submitted such evidence that confirms that the decision was
clearly unjust, is in conflict with Article 109 the Constitution
and the constitutional principles of a state under the rule of
law and justice.
26. While deciding whether Paragraph 5 (wording of 28
February 2002) of Article 285 and Paragraph 2 (wording of 28
February 2002) of Article 303 of the Code of Civil Procedure are
not in conflict with Articles 29, 109 and 117 of the Constitution
and the constitutional principle of a state under the rule of
law, one is also to take account of how the Code of Civil
Procedure regulates the renewal of the proceedings.
26.1. Article 365 (wording of 28 February 2002) of the Code
of Civil Procedure provides:
"1. The proceedings in the case which was finished by an
effective court decision (ruling) may be renewed according to the
grounds and procedure established in this Chapter. The parties
and third persons as well as persons not included into the
consideration of the case may file a request to renew the
proceedings, if the effective decision or ruling violates their
rights or the interests which are protected by laws.
2. Under procedure established in this Chapter, seeking to
defend the public interest, the Prosecutor General of the
Republic of Lithuania may file requests on renewal of the
proceedings."
26.2. Article 366 (wording of 28 February 2002) of the Code
of Civil Procedure provides:
"1. The proceedings may be renewed, if there are the
following grounds:
1) after the European Court of Human Rights has recognised
that decisions or rulings of courts of the Republic of Lithuania
in civil cases are in conflict with the Convention for the
Protection of Human Rights and Fundamental Freedoms and/or its
additional Protocols a Party to which is the Republic of
Lithuania;
2) new and essential circumstances of the case have come to
light, which were not and could not be known to the petitioner at
the time of the consideration of the case;
3) by an effective court judgement knowingly deceitful
explanations of a party or of the third person and the testimony
of the witness, a knowingly deceitful conclusion of the expert, a
knowingly incorrect translation, forgery of documents or physical
evidence are established, due to which an unlawful or
unreasonable decision was adopted;
4) by an effective court judgement criminal deeds of the
persons participating in the case or of other persons or judges
are established, which were committed in the course of the
consideration of the case;
5) a court decision, judgement or another state or
municipal act of individual character, which served as the
grounds for the adoption of that decision or ruling, is repealed
as unlawful or groundless;
6) if one of the parties was legally incapable at the time
of the proceedings and it was not represented by a legal
representative;
7) if in the decision the court decided on the rights or
duties of the persons who have not been included in the
consideration of the case;
8) if the case was considered by a court of unlawful
composition;
9) if a clear mistake of application of a legal norm was
made in the decision (ruling) of the court of first instance and
the decision (ruling) was not reviewed under appeal procedure.
The Prosecutor General of the Republic of Lithuania shall also
have the right to lodge requests to renew the proceedings
according to the grounds provided for in this Item also as
regards the court decisions (rulings) which have not been
reviewed under appeal procedure.
2. In the cases provided for in Items 6 and 8 of Paragraph
1 of this Article, the proceedings shall not be renewed, if the
person who has lodged the request was able to invoke these
grounds in the appeal or the cassation appeal.
3. The request to renew the proceedings is not permitted on
issues of effective court decisions on recognition of a marriage
as invalid or those of dissolution of a marriage in cases when at
least one of the party after the entry of this decision into
effect concluded a new marriage or registered a new partnership."
26.3. Having renewed the consideration of the case, the
court repeatedly considers the case according to the general
rules of the Code of Civil Procedure, however, without
overstepping the limits defined by the grounds of renewal of the
proceedings; if at the time of the court hearing in which the
proceedings have been renewed it becomes clear that additional
preparation for consideration of the case in court is not
necessary, the court, with the assent of the persons
participating in the case, begins the consideration of the case
on merits (Paragraph 4 (wording of 28 February 2002) of Article
370 of the Code of Civil Procedure).
Under Paragraph 1 (wording of 28 February 2002) of Article
371 of the Code of Civil Procedure, after it has considered the
case, the court shall have the right: to reject the request on
amendment of the court decision (ruling) or its repeal (Item 1);
to amend the court decision or ruling (Item 2); to repeal the
court decision (ruling) and adopt a new decision (ruling) (Item
3).
The court decision (ruling) adopted after the court renewed
the proceedings and after it considered the case may be appealed
against at the court of higher instance.
27. Thus, Paragraph 5 (wording of 28 February 2002) of
Article 285 and Paragraph 2 (wording of 28 February 2002) of
Article 303 of the Code of Civil Procedure, which are disputed by
the group of Members of the Seimas, the petitioner, establish the
legal regulation which, when construed together with the legal
regulation designed for renewal of the proceedings, which is
entrenched in the Code of Civil Procedure, means that the
prohibition entrenched in the said paragraphs to the party in
whose regard the decision was adopted in absentia to appeal
against this decision either under the appeal procedure or the
cassation procedure cannot be treated as that which, in itself,
prevents such party to the proceedings from appealing against the
court decision adopted in absentia, also at the court of higher
instance, by making use of the institute of renewal of the
proceedings.
27.1. Such legal regulation is not to be assessed as
violating the constitutional principles of a state under the rule
of law and justice, nor as limiting the constitutional powers of
the court to administer justice only when one takes account of
the fact that this Constitutional Court ruling:
- has recognised that Paragraph 4 (wording of 28 February
2002) of Article 288 of the Code of Civil Procedure to the extent
that the court is not permitted to review a decision adopted in
absentia also in such cases when the court is submitted the
evidence that confirms that the said decision was clearly unjust
and that by that decision the rights of the person had been
clearly violated is in conflict with Article 109 of the
Constitution and the constitutional principles of a state under
the rule of law and justice;
- has recognised that Paragraph 2 (wording of 28 February
2002) of Article 289 of the Code of Civil Procedure to the extent
the court is not permitted to accept an application requesting to
review a decision adopted in absentia also in such cases when the
court is submitted such evidence whereby a clear mistake was made
by the court in adopting the decision in absentia, also when the
court is submitted such evidence that confirms that the decision
was clearly unjust is in conflict with Article 109 the
Constitution and the constitutional principles of a state under
the rule of law and justice.
27.2. Alongside, it needs to be held that the legal
regulation established in Paragraph 5 (wording of 28 February
2002) of Article 285 and Paragraph 2 (wording of 28 February
2002) of Article 303 of the Code of Civil Procedure, which is
disputed by the group of Members of the Seimas, the petitioner,
is applicable to all parties of the proceedings whose dispute is
settled by adopting a decision in absentia in the case, and such
legal regulation neither discriminates nor grants privileges to
any persons who have the same legal status, thus, the principle
of equality of persons entrenched inter alia in Article 29 of the
Constitution is not deviated from, either.
27.3. It also needs to be held that the provisions of
Paragraph 5 (wording of 28 February 2002) of Article 285 and
Paragraph 2 (wording of 28 February 2002) of Article 303 of the
Code of Civil Procedure, which are disputed by the group of
Members of the Seimas, the petitioner, regulate the relations of
different character than those regulated in Paragraph 1 of
Article 117 of the Constitution. Thus, the legal regulation
established in Paragraph 5 (wording of 28 February 2002) of
Article 285 and Paragraph 2 (wording of 28 February 2002) of
Article 303 of the Code of Civil Procedure do not violate the
principle of publicity of consideration of cases in courts, which
is entrenched in inter alia Paragraph 1 of Article 117 of the
Constitution.
28. Taking account of the arguments set forth, one is to
draw a conclusion that Paragraph 5 (wording of 28 February 2002)
of Article 285 and Paragraph 2 (wording of 28 February 2002) of
Article 303 of the Code of Civil Procedure are not in conflict
with the constitutional principle of a state under the rule of
law, Articles 29 and 109 and Paragraph 1 of Article 117 of the
Constitution.
VIII
On the compliance of President of the Republic Decree No.
2067 "On the Prolongation of the Powers of a Judge of a Regional
Court" of 19 February 2003 and President of the Republic Decree
No. 128 "On Appointing Chairmen of Divisions of Regional Courts"
of 18 June 2003 to the extent that it establishes that Konstantas
Ramelis, a judge of the Vilnius Regional Court, is appointed
Chairman of the Civil Cases Division of the said court, with
Article 5 of the Constitution and the constitutional principle of
a state under the rule of law.
1. The group of Members of the Seimas, the petitioner,
inter alia requests to investigate whether:
- President of the Republic Decree No. 2067 "On the
Prolongation of the Powers of a Judge of a Regional Court" of 19
February 2003 is not in conflict with Article 5 of the
Constitution and the constitutional principle of a state under
the rule of law;
- President of the Republic Decree No. 128 "On Appointing
Chairmen of Divisions of Regional Courts" of 18 June 2003 to the
extent that it establishes that Konstantas Ramelis, a judge of
the Vilnius Regional Court, is appointed Chairman of the Civil
Cases Division of the said court is not in conflict with Article
5 of the Constitution and the constitutional principle of a state
under the rule of law.
2. President of the Republic Decree No. 2067 of 19 February
2003, which is disputed by the group of Members of the Seimas,
the petitioner, provides:
"Article 1.
Conforming to Item 11 of Article 84 and Article 112 of the
Constitution of the Republic of Lithuania and Paragraph 3 of
Article 57 of the Republic of Lithuania Law on Courts and taking
account of the advice of the Council of Courts, I shall prolong
the powers of Konstantas Ramelis, a judge of the Civil Cases
Division of the Vilnius Regional Court and the Chairman of the
same division, until he reaches the age of 70 years.
Article 2.
This decree shall come into force as from the day of its
signing."
President of the Republic Decree No. 128 of 18 June 2003,
which is disputed by the group of Members of the Seimas, the
petitioner, provides:
"Article 1
Conforming to Item 11 of Article 84 and Article 112 of the
Constitution of the Republic of Lithuania and taking account of
the advice of the Council of Courts, I shall appoint:
The judge Konstantas Ramelis of the Vilnius Regional Court
the Chairman of the Civil Cases Division of the same court <
>.
Article 2.
This decree shall come into force as from 26 June 2003."
3. The doubts of the group of Members of the Seimas, the
petitioner, as regards the compliance of President of the
Republic Decree No. 2067 of 19 February and Decree No. 128 of 18
June 2003 with the Constitution are substantiated by the fact
that, in the opinion of the petitioner, K. Ramelis was granted
the powers of the Chairman of the Civil Cases Division of the
Vilnius Regional Court when President of the Republic Decree No.
2015 "On Submitting that the Seimas Assent to the Appointment of
A. Driukas and K. Ramelis as Judges of the Court of Appeal of
Lithuania" of 10 January 2003 was in force, Article 1 of which
submitted that the Seimas assent inter alia to the appointment of
Konstantas Ramelis as a judge of the Court of Appeal of
Lithuania, and when Seimas Resolution No. IX-1323 "On the Assent
to Appointment of a Judge of the Court of Appeal of Lithuania" of
28 January 2003 was in force, by Article 1 it was resolved to
assent to the appointment of Konstantas Ramelis as a judge of the
Court of Appeal of Lithuania, thus, the will of two state power
institutionsthe Seimas and the President of the Republic
himselfwas disregarded.
4. In the course of elucidation of the content of the legal
regulation established in President of the Republic Decree No.
2067 of 19 February 2003 and Decree No. 128 of 18 June 2003
subsequent to the petition of the group of Members of the Seimas,
the petitioner, it is necessary to elucidate not only the
circumstances related with the assent of the Seimas to the
appointment of K. Ramelis as a judge of the Court of Appeal of
Lithuania and granting him the powers of a judge of the Vilnius
Regional Court and the Chairman of the Civil Cases Division of
the same court, but also the legal regulation established in laws
upon which the corresponding decisions of the President of the
Republic and/or the Seimas were grounded, as well as changes in
that legal regulation.
5. Under Paragraph 4 of Article 112 of the Constitution,
judges and presidents of inter alia regional courts shall be
appointed, and their places of work shall be changed by the
President of the Republic, while under Paragraph 5 of the same
article, a special institution of judges provided for by law
shall advise the President of the Republic on the appointment,
promotion, transfer of judges, or their dismissal from office.
Under Item 11 (wording of 25 October 1992) of Article 84 of
the Constitution, the President of the Republic shall appoint
judges of the Court of Appeal, and from among them, provided the
Seimas gives assent to their candidatures, the President of the
Court of Appeal; the President of the Republic shall appoint
judges and presidents of inter alia regional courts, and change
their places of work and in cases provided for by law, and shall
submit that the Seimas dismiss judges.
At the time of the consideration of the constitutional
justice case at issue, Item 11 of Article 84 of the Constitution
is set forth in the wording of 20 March 2003 (which is in force
from 21 April 2003), however, the aforesaid provisions persisted
in it and their content remained unchanged.
6. It was inter alia established in Paragraph 2 (wording of
8 November 1994) of Article 33 of the Law on Courts that the
judges of regional courts shall be appointed by the President of
the Republic upon submission by the Minister of Justice and upon
advice of the Judicial Council, while it was inter alia
established in Paragraph 4 (wording of 31 May 1994) of the same
paragraph that the chairmen of divisions of regional courts shall
be appointed by the Minister of Justice upon proposal of the
president of the corresponding court.
Under Paragraph 2 (wording of 31 May 1994) of Article 36 of
the Law on Courts, inter alia judges of regional courts were
appointed until they reach the age of 65 years.
In the context of the constitutional justice case at issue,
it needs to be noted that the Law on Courts (wording of 31 May
1994 with subsequent amendments and supplements made by the Law
"On Amending the Republic of Lithuania Law on Courts" adopted by
the Seimas on 20 October 1994, the Law "On Amending and
Supplementing the Republic of Lithuania Law on Courts" adopted by
the Seimas on 8 November 1994, the Law "On Amending and
Supplementing the Republic of Lithuania Law on Courts" adopted by
the Seimas on 8 December 1994) did not provide for the term
(expiry) of powers of chairmen of divisions of regional courts.
It was established in Article 30 (wording of 31 May 1994)
of the Law on Courts (wording of 31 May 1994 with subsequent
amendments and supplements made by the Law "On Amending the
Republic of Lithuania Law on Courts" adopted by the Seimas on 20
October 1994, the Law "On Amending and Supplementing the Republic
of Lithuania Law on Courts" adopted by the Seimas on 8 November
1994, the Law "On Amending and Supplementing the Republic of
Lithuania Law on Courts" adopted by the Seimas on 8 December
1994) that the Judicial Council shall advise the President of the
Republic regarding the appointment, promotion, transfer or
dismissal from office of judges (Paragraph 1), it established the
composition of the Judicial Council (Paragraph 2), also that the
Judicial Council shall elect the President and the Secretary from
among its members (Paragraph 3).
7. By his application of 14 December 1994, the then judge
and President of the Švenčionys District Local Court K. Ramelis
applied to the Minister of Justice requesting to enter him into
the list of candidates to judges of the Vilnius Regional Court.
8. By his Decree No. 472 "On the Appointment of Judges of
Regional Courts" of 19 December 1994, conforming to Item 11 of
Article 84 and Article 112 of the Constitution and taking account
of the presentation by the Minister of Justice, the President of
the Republic appointed inter alia Konstantas Ramelis a judge of
the Vilnius Regional Court (in the decree a different name of the
said person is indicatedKonstantinas). It was indicated in the
said decree of the President of the Republic of Lithuania that it
shall come into force "as from the day of its signing".
9. It needs to be held that under the then legal
regulation, the powers of K. Ramelis as a judge of the Vilnius
Regional Court, if he had not been removed from office earlier on
the grounds established in Article 115 of the Constitution, had
to expire on 12 March 2003, when he reached the age of 65 years.
10. It needs also to be held that at the rime when the
legal acts related with the appointment of K. Ramelis as a judge
of the regional court, the Judicial Council, i.e. a special
institution of judges provided for by the law and specified in
Paragraph 5 of Article 112 of the Constitution, which advises the
President of the Republic on the appointment, promotion, transfer
of judges, or their dismissal from office, was not formed: it
convened to the first sitting on 10 February 1995.
It needs to be noted that after the entry in force of the
Constitution, the system of courts was not reformed for some time
yet. In 1995-1995 in the course of reforming the system of
courts, along with establishing the Court of Appeal of Lithuania
and regional courts which had to start their functioning from
1995, until the Judicial Council was formed, all judges of courts
of the Republic of Lithuania were appointed, promoted,
transferred and dismissed from office without the advice of the
special institution of judges provided for by the law and
specified in Paragraph 5 of Article 112 of the Constitution,
which, as mentioned, was not formed at that time.
It needs to be noted that the fact that at the time when
the system of courts was being reformed judges were appointed
without the advice of the special institution of judges provided
for by the law and specified in Paragraph 5 of Article 112 of the
Constitution does not at all mean that solely on these grounds it
is possible to question the powers of judges, who were appointed
at that time.
11. In the constitutional justice case of 21 December 1999,
subsequent to the petition of a group of Members of the Seimas,
the petitioner, requesting to investigate whether Articles 14,
25-1, 26, 30, 33, 34, 36, 40, 51, 56, 58, 59, 66, 69, 69-1, and
73 of the Republic of Lithuania Law on Courts were in conformity
with Part 2 of Article 5, Item 11 of Article 84, Part 2 of
Article 109, Article 112 and Part 1 of Article 114 of the
Constitution, the Constitutional Court adopted the Ruling "On the
compliance of Articles 14, 25-1, 26, 30, 33, 34, 36, 40, 51, 56,
58, 59, 66, 69, 69-1, and 73 of the Republic of Lithuania Law on
Courts with the Constitution of the Republic of Lithuania"
whereby it inter alia recognised that Paragraph 2 of Article 33
of the Republic of Lithuania Law on Courts in the scope whereby
the proposal of the Minister of Justice regarding appointment of
judges of district and regional courts, Paragraph 3 of Article 33
of the same law in the scope whereby the proposal of the Minister
of Justice regarding appointment of chairpersons of district and
regional courts, Paragraph 2 of Article 34 of the same law in the
scope whereby the proposal of the Minister of Justice regarding
appointment of judges of the Court of Appeal and its Chairperson
from among them, Paragraph 5 of Article 56 of the same law in the
scope whereby the proposal of the Minister of Justice regarding
dismissal of the Chairperson and other judges of the Court of
Appeal from office, Paragraph 7 of Article 56 of the same law in
the scope whereby the proposal of the Minister of Justice
regarding dismissal of chairpersons and other judges of other
courts from office is established, contradicted Paragraph 2 of
Article 5, Item 11 of Article 84, Paragraph 2 of Article 109 and
Paragraph 5 of Article 112 of the Constitution.
It needs to be held that Paragraph 2 of Article 33 of the
Law on Courts, which was recognised by the said Constitutional
Court ruling of 21 December 1999 to be in conflict with the
Constitution, is Paragraph 2 (wording of 8 November 1994) of
Article 33 of the said law.
It needs to be noted that it does not at all mean that
solely on these grounds it is possible to question the powers of
judges, who were appointed at that time.
12. By his Order No. 542K "On Appointing the Chairman of a
Division of the Vilnius Regional Court" of 20 December 1994, the
Minister of Justice, "while following Paragraph 4 of Article 6 of
the Republic of Lithuania Law 'On the Establishment of the
Supreme Court of Lithuania, the Court of Appeal of Lithuania, and
Regional Courts, the Establishment of the Territories of the
Activities of Regional and Local Courts and on the Reform of the
Prosecutor's Office of the Republic of Lithuania' and taking
account of the submission by the President of the Vilnius
Regional Court" appointed K. Ramelis the Chairman of the Civil
Cases Division of the Vilnius Regional Court (Item 1). This order
of the Minister of Justice came into force on 1 January 1995
(Item 2).
13. It needs to be held that under the then legislative
regulation the powers of K. Ramelis as the Chairman of the Civil
Cases Division of the Vilnius Regional Court had to expire on 12
March 2003, when he reached the age of 65 years, provided he had
not been dismissed from office under the grounds established in
laws.
14. By the Constitutional Court ruling of 21 December 1999
it was inter alia recognised that Paragraph 4 of Article 33 of
the Law on Courts in the scope whereby deputy chairpersons or
court division chairpersons shall be appointed by the Minister of
Justice was in conflict with Paragraph 2 of Article 109 and
Paragraph 3 of Article 112 of the Constitution.
It needs to be held that Paragraph 4 of Article 33 of the
Law on Courts which was recognised by the Constitutional Court
ruling of 21 December 1999 as conflicting with the Constitution
was Paragraph 4 (wording of 10 June 1997) of Article 33 of the
said law. It also needs to be held that the provisions of
Paragraph 4 of Article 33 of the Law on Courts which was
recognised by the Constitutional Court ruling of 21 December 1999
as conflicting with the Constitution had been set forth also in
the previous wording (i.e. that of 31 May 1994) of Paragraph 4 of
Article 33 of the Law on Courts, which was in force at the time
when said Order No. 524K of 20 December 1994 was issued.
It needs to be noted that this does not at all mean that
solely on these grounds it is possible to question the powers of
corresponding vice-presidents of courts or chairmen of divisions
of courts, who were appointed at that time.
15. The Law on Courts (wording of 31 May 1994 with
subsequent amendments and supplements made by the Law "On
Amending the Republic of Lithuania Law on Courts" adopted by the
Seimas on 20 October 1994, the Law "On Amending and Supplementing
the Republic of Lithuania Law on Courts" adopted by the Seimas on
8 November 1994, the Law "On Amending and Supplementing the
Republic of Lithuania Law on Courts" adopted by the Seimas on 8
December 1994) was amended and/or supplemented by the Republic of
Lithuania Law "On Amending the Republic of Lithuania Law on
Courts", which was adopted by the Seimas on 14 February 1995, the
Republic of Lithuania Law "On Amending Article 51 of the Republic
of Lithuania Law on Courts", which was adopted by the Seimas on
21 March 1995, and the Republic of Lithuania Law on Amending and
Supplementing Articles 22, 22-1, 33, 34, 35, 56, and 59 of the
Law on Courts, which was adopted by the Seimas on 18 June 1995.
16. By means of the last of the aforesaid laws (Article 3
thereof), which came into force on 26 June 1996, Article 33
(wording of 31 May 1994) of the Law on Courts (wording of 31 May
1994 with subsequent amendments and supplements) was supplemented
with inter alia Paragraph 6, which inter alia provided that
presidents of regional courts and chairmen of court divisions
shall be appointed for 7 years.
In the context of the constitutional justice case at issue,
it needs to be noted that after the Law on Amending and
Supplementing Articles 22, 22-1, 33, 34, 35, 56, and 59 of the
Law on Courts had been adopted, it was not established expressis
verbis whether Paragraph 6 (wording of 18 June 1996) of Article
33 of the Law on Courts was to be applied only to the persons who
were going to be appointed chairmen of regional court divisions,
or also to those chairmen of regional court divisions who had
been appointed under the formerly valid provisions of the Law on
Courts (wording of 31 May 1994 with subsequent amendments and
supplements) and were holding that office at the time when the
Law on Amending and Supplementing Articles 22, 22-1, 33, 34, 35,
56, and 59 of the Law on Courts came into force. As mentioned,
the length (end) of the powers of chairmen of regional court
divisions had not been established in the Law on Courts of
previous wording.
Such legal regulation, if it is also assessed in the
context of the former legal regulation, is unclear and ambiguous.
It needs to be underlined that, under the Constitution, the
length of powers of chairmen of regional court divisions must be
clear already when the corresponding judge of a regional court is
appointed chairman of a regional court division. In addition, all
decisions on appointing or dismissing (also before the expiry of
his powers) the chairman of a regional court division may be made
by means of only one type of legal actsa decree of the President
of the Republic of Lithuania, issued under laws upon advice of
the special institution of judges provided for in Paragraph 5 of
Article 112 of the Constitution, i.e. by an act of application of
law (laws) and this cannot be done by any other legal actneither
individual nor normative oneissued by any other institution.
Thus, after the President of the Republic has appointed a
person the chairman of a regional court division, the length of
his powers may be neither extended, nor shortened by any legal
act, even a law, passed by the Seimas, since, under the
Constitution, appointing and dismissing the chairman of a
regional court division is within exclusive competence of the
President of the Republic.
As mentioned, under Paragraph 4 (wording of 31 May 1994) of
Article 33 of the Law on Courts, the chairmen of divisions of
regional courts were appointed from among appointed judges by the
Minister of Justice upon proposal of the chairman of a
corresponding court. It was also mentioned that by the
Constitutional Court ruling of 21 December 1999, Paragraph 4
(wording of 10 June 1997) of Article 33 of the Law on Courts, in
which (as well as in the previous wording (that of 31 May 1994)
of Paragraph 4 of Article 33 of the Law on Courts it was inter
alia established that chairmen of regional court divisions shall
be appointed by the Minister of Justice, was inter alia
recognised to this extent as conflicting with the Constitution.
The fact that, under the then valid legal regulation,
although later recognised as conflicting with the Constitution,
the Minister of Justice (but not the President of the Republic,
as required by the Constitution) used to appoint chairmen of
regional court divisions upon proposal of presidents of
corresponding courts, does not at all mean that, after the
Minister of Justice had appointed a person the chairman of a
regional court division under the laws valid at that time, the
length of his powers could, purportedly, be extended or reduced
by a certain legal acts passed by the Seimas, for example, by a
law. Therefore, the length of powers of previously appointed
chairmen of regional court divisions could be neither extended
nor reduced by the Law on Amending and Supplementing Articles 22,
22-1, 33, 34, 35, 56, and 59 of the Law on Courts as wellit
could be established anew only by means of decrees of the
President of the Republic issued upon advice of the Judicial
Council that acted then under the Law on Courts (wording of 31
May 1994 with subsequent amendments and supplements), provided
the laws established, while heeding the Constitution, the grounds
of establishment such length of the powers.
It is clear from the case material that the following
practice came into being: there was universal unquestioned
opinion that the chairmen of regional court divisions who had
been appointed under previously valid provisions of the Law on
Courts (wording of 31 May 1994 with subsequent amendments and
supplements) and were holding this office at the time when the
Law on Amending and Supplementing Articles 22, 22-1, 33, 34, 35,
56, and 59 of the Law on Courts came into force, the length of
powers used to be counted anew, i.e. from 26 June 1996, when the
Law on Amending and Supplementing Articles 22, 22-1, 33, 34, 35,
56, and 59 of the Law on Courts came into force.
On the other hand, when heeding the Constitution, inter
alia the provisions consolidating the independence of judges, the
constitutional principles of protection of legitimate
expectations, legal certainty and security, of separation of
powers and other provisions of the Constitution, it is impossible
to construe the legal regulation established in Paragraph 6
(wording of 18 June 1996) of Article 33 of the Law on Courts as
the one permitting to count the term of powers of the chairmen of
regional court divisions who had been appointed under the
previously valid provisions of the Law on Courts (wording of 31
May 1994 with subsequent amendments and supplements) and who were
holding this office at the time when the Law on Amending and
Supplementing Articles 22, 22-1, 33, 34, 35, 56, and 59 of the
Law on Courts came into force, i.e. from the date of 26 June 1996
so that the said term of powers was shorter than 7 years, i.e.
the term specified in Paragraph 6 (wording of 18 June 1996) of
Article 33 of the Law on Courts.
17. Thus, if counted in this manner, also the term of
powers of the then Chairman of the Civil Cases Division of the
Vilnius Regional Court K. Ramelis had to be over on 26 June 2003,
provided he had not been dismissed from office on other grounds
established in laws.
Alongside, it needs to be held that, as held in this
Constitutional Court ruling, under the then legal regulation, the
powers of K. Ramelis as a judge of the Vilnius Regional Court,
and those of the Chairman of the Civil Cases Division of the
Vilnius Regional Court, provided he had not been removed from
office earlier on the grounds established in laws, also provided
he had not been removed from the office of a judge of the Vilnius
Regional Court earlier on the grounds established in Article 115
of the Constitution, had to expire on 12 March 2003, when he
reached the age of 65 years.
18. Later, the Law on Courts (wording of 31 May 1994 with
subsequent amendments and supplements) was amended and
supplemented more than once.
Besides, certain articles (parts thereof) of the Law on
Courts (wording of 31 May 1994 with subsequent amendments and
supplements) were recognised as conflicting with the Constitution
by the Constitutional Court ruling of 21 December 1999.
19. On 24 January 2002, the Seimas adopted the Law on
Amending the Law on Courts by Article 1 whereof it amended the
Law on Courts and set it forth in a new wording. The Law on
Courts (wording of 24 January 2002) came into force on 1 May
2002.
Later, the Law on Courts (wording of 24 January 2002) was
amended and supplemented more than once.
Besides, certain articles (parts thereof) of the Law on
Courts (wording of 24 January 2002 with subsequent amendments and
supplements) were recognised as conflicting with the Constitution
by the Constitutional Court ruling of 9 May 2006.
20. Under Paragraph 2 (wording of 24 January 2002) of
Article 74 of the Law on Courts, inter alia the chairman of a
regional court division is appointed for five years.
On 14 March 2002, the Seimas adopted the Republic of
Lithuania Law on Entry into Force and Implementation of the Law
on Amending the Law on Courts, which came into force on 27 March
2002, in Paragraph 1 of Article 6 whereof it was established that
until the entry into force of the Law on Amending the Law on
Courts the appointed presidents, deputy presidents, chairmen of
divisions of courts of general jurisdiction and specialised
courts hold their office until the end of the term of office for
which they were appointed.
It was held in this Constitutional Court ruling that after
the Law on Amending and Supplementing Articles 22, 22-1, 33, 34,
35, 56, and 59 of the Law on Courts, which had been adopted by
the Seimas on 18 June 1996, came into force on 26 June 1996, by
which it was inter alia established that presidents of regional
courts and chairmen of court divisions shall be appointed for 7
years (Paragraph 6 of Article 33 of the Law on Courts (wording of
18 June 1996)), the practice came into being whereby the chairmen
of regional court divisions who had been appointed under
previously valid provisions of the Law on Courts (wording of 31
May 1994 with subsequent amendments and supplements) and were
holding this office at the time when the Law on Amending and
Supplementing Articles 22, 22-1, 33, 34, 35, 56, and 59 of the
Law on Courts came into force, the length of powers used to be
counted anew, i.e. from 26 June 1996, when the Law on Amending
and Supplementing Articles 22, 22-1, 33, 34, 35, 56, and 59 of
the Law on Courts came into force.
Thus, the term of powers of the chairmen of regional court
divisions who had been appointed under the previously valid
provisions of the Law on Courts (wording of 31 May 1994 with
subsequent amendments and supplements) and were holding this
office at the time when the Law on Amending and Supplementing
Articles 22, 22-1, 33, 34, 35, 56, and 59 of the Law on Courts
came into force, was not changed by the Law on Courts of the new
wording (24 January 2002)the expiry of the term of such powers
remained on 26 June 2003.
21. Thus, the term of powers of the Chairman of the Civil
Cases Division of the Vilnius Regional Court K. Ramelis, provided
he had not been removed from office earlier on the grounds
established in laws, also provided he had not been removed from
the office of a judge of the Vilnius Regional Court earlier on
the grounds established in Article 115 of the Constitution, was
not reducedthe expiry of his term of powers continued to be the
date of 12 March 2003, when he reached the age of 65 years.
22. Under the Law on Courts of the new wording (24 January
2002), the special institution of judges provided for by law and
specified in Paragraph 5 of Article 112 of the Constitution was
the Council of Courts.
As mentioned, it was established in Paragraph 2 (wording of
24 January 2002) of Article 119 of the Law on Courts that the
Council of Courts shall be composed of 24 membersby virtue of
their office (ex officio)the President of the Supreme Court, the
President of the Court of Appeal, the President of the Supreme
Administrative Court, an authorised representative of the
President of the Republic, an authorised representative of the
Seimas, the Chairman or Deputy Chairman of the Legal Affairs
Committee of the Seimas, the Chairman or Deputy Chairman of the
Committee of Budget and Finances of the Seimas, the Minister of
Justice or the Vice Minister authorised by him, the Minister of
Finance or the Vice Minister of Finance authorised by him (Item
1); judges elected by the General Meeting of Judges: one from the
Supreme Court, one from the Court of Appeal, one from the Supreme
Administrative Court, one from each of the five regional courts,
one from each local court within the territory of each regional
court, and one from all regional administrative courts; the
candidatures of judges are nominated to the General Meeting of
Judges by the representatives of the corresponding courts (Item
2); the judge elected by the largest public organisation of
judges (Item 3).
It was also mentioned that in its ruling of 9 May 2006, the
Constitutional Court recognised that Paragraph 2 (wording of 24
January 2002) of Article 119 of the Law on Courts to the extent
that it establishes that not only judges but also other persons
compose the Council of Courts was in conflict with Paragraph 2 of
Article 5 and Paragraph 5 of Article 112 of the Constitution, the
constitutional principle of separation of powers, and the
constitutional principle of a state under the rule of law.
It was also held in the said Constitutional Court ruling of
9 may 2006 that the fact that to the extent that not only judges
but also other persons compose the Council of Courts, Paragraph 2
(wording of 24 January 2002) of Article 119 of the Law on Courts
was by that Constitutional Court ruling recognized to be in
conflict with Paragraph 2 of Article 5, Paragraph 5 of Article
112 of the Constitution, the constitutional principle of
separation of powers and the constitutional principle of a state
under the rule of law did not mean that the decisions of the
Council of Courts, which was composed under the aforesaid
articles (parts thereof) of the Law on Courts to advise the
President of the Republic on the appointment, promotion, transfer
of judges or their dismissal from office or any other decisions
of such Council of Courts might be questioned only on these
grounds.
23. Under Paragraph 3 of Article 57 of the Law on Courts
(wording of 24 January 2002), when inter alia a judge of the
Court of Appeal of Lithuania reaches the age of 65, his powers
may be extended by the institution which appointed him until he
reaches the age of 70; in such cases the judge wishing to have an
extension of his powers shall apply to the President of the
Republic; one had to decide on the extension of powers according
to the procedure of appointment of a corresponding judge
established in the said law.
By its ruling of 9 May 2006, the Constitutional Court
recognised that Paragraph 3 (wording of 24 January 2002) of
Article 57 of the Law on Courts was in conflict with Paragraphs 2
and 3 of Article 109 of the Constitution and the constitutional
principle of a state under the rule of law.
It was also held in the same Constitutional Court ruling of
9 May 2006 that the fact that Paragraph 3 (wording of 28 January
2003) of Article 57 of the Law on Courts was by that
Constitutional Court ruling recognized as being in conflict with
Constitution did not mean that the powers of the justices of the
Supreme Court, or the judges of the Court of Appeal, regional
courts, the Supreme Administrative Court or of the regional
administrative courts that were extended under the then valid Law
on Courts (wording of 24 January 2002) may be questioned only on
these grounds and that these powers might discontinue or be
discontinued only on the said grounds.
It needs to be held that the institute of extension of the
powers of the judge who reached the age of 65 years until he
reaches the age of 70 years was also consolidated in Paragraph 3
of Article 57 of the Law on Courts of the previous wording (that
of 24 January 2002).
24. On 4 November 2002, the National Courts Administration
received the 28 October 2002 application of the Chairman of the
Civil Cases Division of the Vilnius Regional Court K. Ramelis
requesting to enter him into the register of the persons who seek
a career as judges and expressing his wish to be appointed as a
judge of the Court of Appeal of Lithuania (if possible, the
chairman of a division of this court).
25. By its Decision No. 62 "On the advice to the President
of the Republic to dismiss K. Ramelis from the office of a judge
of the Vilnius Regional Court and the Chairman of the Civil Cases
Division of this court and to appoint him a judge of the Court of
Appeal of Lithuania" of 23 December 2002, while following
Paragraph 2 of Article 72, Paragraph 7 of Article 81 and Items 3
and 4 of Article 120 of the Law on Courts, the Council of Courts
advised the President of the Republic to dismiss K. Ramelis from
the office of a judge of the Vilnius Regional Court and the
Chairman of the Civil Cases Division of this court and to appoint
him a judge of the Court of Appeal of Lithuania. (The
representatives of the President of the Republic, the party
concerned, did not submit any documents nor their copies
testifying that there was an application to the Council of Courts
requesting such advice.)
26. By his Decree No. 2015 "On Submitting that the Seimas
Assent to the Appointment of A. Driukas and K. Ramelis as Judges
of the Court of Appeal of Lithuania" of 10 January 2003, while
following Item 11 of Article 84, Article 112 and Item 4 of
Article 115 of the Constitution and taking account of the advice
of the Council of Courts, the President of the Republic submitted
that the Seimas assent inter alia to the appointment of
Konstantas Ramelis as a judge of the Court of Appeal of Lithuania
(Article 1). Article 2 of this decree of the President of the
Republic provides: "This decree shall come into force as from the
day of its signing."
27. By its Resolution No. IX-1323 "On the Assent to
Appointment of a Judge of the Court of Appeal of Lithuania" of 28
January 2003, the Seimas, conforming to Item 11 of Article 84 of
the Constitution and taking account of President of the Republic
Decree No. 2015 of 10 January 2003, resolved to assent to the
appointment of Konstantas Ramelis as a judge of the Court of
Appeal of Lithuania (Article 1). Article 2 of the same Seimas
resolution provides: "This Resolution shall come into force from
the day of its adoption."
28. On the same day (on 28 January 2003), the Seimas
adopted the Republic of Lithuania Law on Amending Article 57 of
the Law on Courts by Article 1 whereof Paragraph 3 (wording of 24
January 2003) of Article 57 of the Law on Courts was amended and
newly set forth.
It was established in Paragraph 3 (wording of 24 January
2003) of Article 57 of the Law on Courts that when inter alia a
judge of a regional court reaches the age of 65, his powers may
be extended by the institution which appointed him until he
reaches the age of 70; that in such cases the judge wishing to
have an extension of his powers shall apply to the President of
the Republic; also that one had to decide on the extension of
powers according to the procedure of appointment of a
corresponding judge established in the said law.
It has been mentioned that by the Constitutional Court
ruling of 9 May 2006 that Paragraph 3 (wording of 28 January
2003) of Article 57 of the Law on Courts was recognized as being
in conflict with Paragraphs 2 and 3 of Article 109 of the
Constitution and the constitutional principle of a state under
the rule of law and also that this did not mean that the powers
of inter alia judges of regional courts that were extended under
the then valid Law on Courts (wording of 24 January 2002) may be
questioned only on these grounds and that these powers might
discontinue or be discontinued only on the said grounds.
29. As mentioned, the powers of the judge of the Vilnius
Regional Court and the Chairman of the Civil Cases Division of
the same court K. Ramelis, provided he had not been removed from
office earlier on the grounds established in laws, also provided
he had not been removed from the office of a judge of the Vilnius
Regional Court earlier on the grounds established in Article 115
of the Constitution, had to expire on 12 March 2003, when he
reached the age of 65 years.
On the same day (i.e. on 31 January 2003) when the Law on
Amending Article 57 of the Law on Courts came into force, by
Article 1 whereof Paragraph 3 (wording of 28 January 2003) of the
Law on Courts was amended and an opportunity was granted to
judges of regional courts, after a judge reaches the age of 65
years, to extend his powers until he reaches the age of 70 years,
the Chairman of the Civil Cases Division of the Vilnius Regional
Court K. Ramelis applied to the President of the Republic,
requesting to extend his powers of a judge of the Vilnius
Regional Court and of the Chairman of the Civil Cases Division
until he reaches the age of 70.
30. Thus, it needs to be held that the Chairman of the
Civil Cases Division of the Vilnius Regional Court K. Ramelis
changed his wish that was expressed in his 28 October 2002
application submitted to the National Courts Administration
requesting to enter him into the register of the persons who seek
a career as judges and his wish to be appointed as a judge of the
Court of Appeal of Lithuania (if possible, the chairman of a
division of this court), and, having changed his mind, on 31
January 2003 he applied to the President of the Republic,
requesting to extend his powers of a judge of the Vilnius
Regional Court and of the Chairman of the Civil Cases Division
until he reaches the age of 70.
The President of the Republic did not issue any decree
whereby K. Ramelis would be appointed a judge of the Court of
Appeal of Lithuania.
31. In this context, it needs to be mentioned that, as it
was held by the Constitutional Court in its ruling of 9 May 2006,
"in order to appoint or dismiss a judge of the Court of Appeal or
the President of this court, the President of the Republic must
apply to the Seimas and, if he gets the assent of the Seimas, he
may appoint the corresponding person as a judge of the Court of
Appeal or the President of this court or dismiss the
corresponding judge of the Court of Appeal or the President of
this court from his office, also, inter alia if certain
circumstances significant to such appointment or dismissal from
office become clear, he might decide not to appoint that person
as a judge of the Court of Appeal or the President of this court,
and submit the Seimas with another candidature, or not to dismiss
the corresponding judge of the Court of Appeal or the President
of this court (if it is not obligatory to dismiss that judge
under the Constitution)".
32. Alongside, it needs to be noted that in such cases when
the President of the Republic has already applied to the Seimas
for assent in order to appoint a certain person as a judge of the
Court of Appeal or the President of this court or to dismiss a
certain a judge of the Court of Appeal or the President of this
court, and if he received such assent, however, he did not
appoint such person to this office nor dismissed him during the
appropriate time (inter alia due to the fact that certain
circumstances came to light, which are important to such
appointment or dismissal), he can appoint such person to this
office or dismiss him from office only after he once again
applies to the Seimas for assent and provided such assent is
received.
33. By Letter No. 2D-797 "On the Advice to the President of
the Republic" of 3 February 2003, the assistant adviser of the
President of the Republic on legal issues applied to the Council
of Courts, requesting, upon commissioning by the President of the
Republic, for advice to the President of the Republic on
extension of powers of the judge of the Vilnius Regional Court
and the Chairman of the Civil Cases Division K. Ramelis until he
reaches the age of 70 years.
34. It was held in the Constitutional Court in its ruling
of 9 May 2006 (inter alia when construing Article 85 and
Paragraph 5 of Article 112 of the Constitution) that the
constitutional powers of the President of the Republic to apply
to the special institution of judges provided for by law
specified in Paragraph 5 of Article 112 of the Constitution for
advice concerning the appointment, promotion, transfer of judges
or their dismissal from office are implemented by issuing a
corresponding decree of the President of the Republic; that in
such decree of the President of the Republic, also the term
during which the corresponding advice must be received may be
specified; also, that if such term is specified in the
corresponding decree of the President of the Republic, the
special institution of judges provided for by law specified in
Paragraph 5 of Article 112 of the Constitution must observe this
term.
It also needs to be held that prior to the Constitutional
Court ruling in which it was construed for the first time that
the constitutional powers of the President of the Republic to
apply to the special institution of judges provided for by law
specified in Paragraph 5 of Article 112 of the Constitution for
advice concerning the appointment, promotion, transfer of judges
or their dismissal from office are implemented by issuing a
corresponding decree of the President of the Republic, there used
to be the practice where such decrees would not be issued, but
advisors or assistant advisors, upon commissioning by the
President of the Republic, used to apply to the said institution
of judges.
35. By its Decision No. 66 of 7 February 2003, while
following Paragraph 3 of Article 57 and Item 3 of Article 120 of
the Law on Courts, the Council of Courts advised to the President
of the Republic to prolong the powers of Konstantas Ramelis, a
judge of the Vilnius Regional Court and the Chairman of the Civil
Cases Division of this court, until he reaches the age of 70
years.
36. By his Decree No. 2067 "On the Prolongation of the
Powers of a Judge of a Regional Court" of 19 February 2003,
Conforming to Item 11 of Article 84 and Article 112 of the
Constitution and Paragraph 3 of Article 57 of the Law on Courts
and taking account of the advice of the Council of Courts, the
President of the Republic prolonged the powers of Konstantas
Ramelis, a judge of the Civil Cases Division of the Vilnius
Regional Court and the Chairman of the same division this court
until he reaches the age of 70 years (Article 1). Article 2 of
this Decree of the President of the Republic provides: "This
decree shall come into force as from the day of its signing."
37. Article 1 of the said decree of the President of the
Republic contains the formula "I shall prolong the powers of
Konstantas Ramelis, a judge of the Civil Cases Division of the
Vilnius Regional Court and the Chairman of the same division,
until he reaches the age of 70 years".
37.1. This formula is imprecise and ambiguous, since, when
it is construed only verbatim (linguistically), there appears an
impression that, allegedly, not only the powers of K. Ramelis not
only as a judge of the Civil Cases Division of the Vilnius
Regional Court, but also the powers of the Chairman of this
division are extended.
37.2. On the other hand, the said formula of Article 1 of
the decree of the President of the Republic of 19 February 2003
is to be construed by taking account of the fact that, under Item
2 of Paragraph 1 of Article 90 (wording of 24 January 2002) of
the Law on Courts, the judge is dismissed form office when the
term of judge's powers expires or he reaches the pensionable age
established in laws, while under Item 1 of Paragraph 1 of Article
81 (wording of 24 January 2002) of the same law, the chairman of
a court division is dismissed from office after the term of
appointment for this office expires, provided he has not been
appointed for a new term of office.
It needs to be noted that such legal regulation established
in the Law on Courts (wording of 24 January 2002 with subsequent
amendments and supplements) used to be interpreted as the one
implying that in cases where the powers of a judge of a court
(including a regional court) who was the chairman of a
corresponding division of the same court used to be extended
under the said law, these powers of the chairman of the court
division would not be terminatedit used to be interpreted that
his powers of the chairman of the corresponding court division
had to continue until the term of his appointment to this office
is over.
Such construction is not constitutionally justified, since,
as mentioned, the institute of extension of powers of a judge who
reached 65 until he reaches 70 itself, which was consolidated in
the Law on Courts (wording of 24 January 2004 with subsequent
amendments and supplements) was in conflict with the
Constitution.
It needs to be noted that, under the Constitution, the
chairman of a division of a court (including of a regional
court), after the term of powers of the corresponding chairman of
a court division expires, must be appointed anew and, due to
this, the President of the Republic, after he has received advice
from the special institution of judges provided for by law and
specified in Article 112 of the Constitution, must issue a
decree.
38. It is clear from the case material that K. Ramelis
whose powers of a judge of the Vilnius Regional Court were
prolonged after he reached the age of 65 years on 12 March 2003
also continued to hold the position of the Chairman of the Civil
Cases Division of the same court.
39. As mentioned, the term of powers of the then Chairman
of the Civil Cases Division of the Vilnius Regional Court K.
Ramelis had to be over on 26 June 2003, provided he had not been
dismissed from office on other grounds established in laws.
40. On 16 May 2003, K. Ramelis submitted an application to
the National Courts Administration, requesting to enter him into
the list of candidates to the post of the Chairman of the Civil
Cases Division of the said court for a new five-year term of
office.
In this application K. Ramelis also asserted that, in his
opinion, Decree of the President of the Republic No. 2067 of 19
February 2003, upon advice of the Council of Courts, prolonged
his powers ad the Chairman of the Civil Cases Division until he
reaches the age of 70 years.
41. By Letter No. 2D-4175 of 30 May 2003 "On Advice to the
President of the Republic", the adviser of the President of the
Republic on legal issues applied to the Council of Courts,
requesting, upon commissioning by the President of the Republic,
for advice to the President of the Republic as regards the
appointment of inter alia the judge of the Vilnius Regional Court
K. Ramelis the Chairman of the Civil Cases Division of the same
court.
42. By its Decision No. 108 "On the Advice to the President
of the Republic to appoint Presidents of Regional Courts and
Chairmen of the Divisions" of 6 June 2003, wile following
Paragraph 1 of Article 74 and Item 4 of Article 120 of the Law on
Courts, the Council of Courts advised the President of the
Republic to appoint inter alia the judge of the Vilnius Regional
Court Konstantas Ramelis the Chairman of the Civil Cases Division
of this court.
43. By his Decree No. 128 of 18 June 2003 (which came into
force on 26 June 2003), conforming to Item 11 of Article 84 and
Article 112 of the Constitution and taking account of the advice
of the Council of Courts, the President of the Republic appointed
inter alia the judge of the Vilnius Regional Court Konstantas
Ramelis the Chairman of the Civil Cases Division of this court
(Article 1). Article 2 of the said decree of the President of the
Republic provides: "This decree shall come into force as from 26
June 2003."
44. It has been held in this Constitutional Court ruling
that the decisions of the Council of Courts, which was composed
under inter alia Paragraph 2 (wording of 24 January 2002) of
Article 119 of the Law on Courts, on inter alia providing advice
to the President of the Republic on the appointment, promotion,
transfer of judges or their dismissal from office might not be
questioned only on the grounds that, to the extent that not only
judges, but also other persons composed the Council of Courts,
Paragraph 2 (wording of 24 January 2002) of Article 119 of the
Law on Courts was recognised as conflicting with the
Constitution. It was also held that the powers of inter alia the
judges of regional administrative courts that were extended under
the then valid Law on Courts (wording of 24 January 2002) may not
be questioned only on these grounds and that these powers might
discontinue or be discontinued only on the grounds that Paragraph
3 (wording of 28 January 2003) of Article 57 of the Law on Courts
was recognised as being in conflict with Constitution.
It also needs to be held that corresponding decrees of the
President of the Republic or corresponding decisions of to the
special institution of judges provided for by law specified in
Paragraph 5 of Article 112 of the Constitution on the
appointment, promotion, transfer of judges or their dismissal
from office could not be questioned only on the grounds that
prior to the Constitutional Court ruling of 9 May 2006 in which
it was construed for the first time that the constitutional
powers of the President of the Republic to apply to the special
institution of judges provided for by law specified in Paragraph
5 of Article 112 of the Constitution for advice concerning the
appointment, promotion, transfer of judges or their dismissal
from office are implemented by issuing a corresponding decree of
the President of the Republic, while there used to be the
practice where such decrees would not be issued, but advisors or
assistant advisors, upon commissioning by the President of the
Republic, used to apply to the said institution of judges.
45. It was mentioned that the doubts of the group of
Members of the Seimas, the petitioner, regarding the compliance
of Decree No. 2067 of 19 February 2003, and laterDecree No. 128
of 28 June 2003, which were issued by the President of the
Republic, with the Constitution are substantiated by the fact
that K. Ramelis was granted the powers of a judge of the Vilnius
Regional Court and the Chairman of the Civil Cases Division of
the same court when President of the Republic Decree No. 2015 "On
Submitting that the Seimas Assent to the Appointment of A.
Driukas and K. Ramelis as Judges of the Court of Appeal of
Lithuania" of 10 January 2003, Article 1 whereof submitted that
the Seimas assent inter alia to the appointment of Konstantas
Ramelis as a judge of the Court of Appeal of Lithuania, and
Seimas Resolution No. IX-1323 "On the Assent to Appointment of a
Judge of the Court of Appeal of Lithuania" of 28 January 2003, by
Article 1 it was resolved to assent to the appointment of
Konstantas Ramelis as a judge of the Court of Appeal of Lithuania
were in force, thus, the said powers were granted by disregarding
the will expressed by two state institutionsthe Seimas and the
President of the Republic himself.
45.1. It has been held in this Constitutional Court ruling
that, as the Constitutional Court held in its ruling of 9 May
2006, "in order to appoint or dismiss a judge of the Court of
Appeal or the President of this court, the President of the
Republic must apply to the Seimas and, if he gets the assent of
the Seimas, he may appoint the corresponding person as a judge of
the Court of Appeal or the President of this court or dismiss the
corresponding judge of the Court of Appeal or the President of
this court from his office, also, inter alia if certain
circumstances significant to such appointment or dismissal from
office become clear, he might decide not to appoint that person
as a judge of the Court of Appeal or the President of this court,
and submit the Seimas with another candidature, or not to dismiss
the corresponding judge of the Court of Appeal or the President
of this court (if it is not obligatory to dismiss that judge
under the Constitution)".
45.2. It was also held that the Chairman of the Civil Cases
Division of the Vilnius Regional Court K. Ramelis changed his
wish that was expressed in his 28 October 2002 application
submitted to the National Courts Administration requesting to
enter him into the register of the persons who seek a career as
judges and his wish to be appointed as a judge of the Court of
Appeal of Lithuania (if possible, the chairman of a division of
this court), and, having changed his mind, on 31 January 2003 he
applied to the President of the Republic, requesting to extend
his powers of a judge of the Vilnius Regional Court and of the
Chairman of the Civil Cases Division until he reaches the age of
70.
45.3. Thus, the quoted doctrinal provisions of the
Constitutional Court ruling of 9 May 2006 are also applicable to
the legal situation related with K. Ramelis' aspiration to be
appointed a judge of the Court of Appeal of Lithuania and with
his said changed wish, which, it goes without saying, had to be
taken into consideration by the President of the Republic.
45.4. Thus, the doubts of the group of Members of the
Seimas, the petitioner, upon which the petition requesting to
investigate into the compliance of President of the Republic
Decree No. 2067 of 19 February 2003 and President of the Republic
Decree No. 128 of 19 February 2003 with the Constitution are
based are constitutionally groundless.
Alongside, it needs to be held that the constitutional
issue raised in the arguments of the group of Members of the
Seimas, the petitioner, upon which the petition requesting to
investigate into the compliance of President of the Republic
Decree No. 2067 of 19 February 2003 and President of the Republic
Decree No. 128 of 19 February 2003 with the Constitution are
based was solved in the Constitutional Court ruling of 9 May
2003.
45.5. It also needs to be noted that the group of Members
of the Seimas, the petitioner, does not dispute the compliance of
President of the Republic Decree No. 2067 of 19 February 2003 and
President of the Republic Decree No. 128 of 19 February 2003 with
the Constitution in any other aspects.
46. Thus, in this part of the constitutional justice case
at issue regarding the petition of the group of Members of the
Seimas, the petitioner, requesting to investigate into the
compliance of President of the Republic Decree No. 2067 of 19
February 2003 and President of the Republic Decree No. 128 of 19
February 2003 with the Constitution the matter of investigation
is no longer present.
Paragraph 2 of Article 80 (which regulates refusal to
examine an inquiry in the Constitutional Court) of the Law on the
Constitutional Court provides that if in the course of the
consideration of the inquiry the matter under consideration
ceases to exist, the Constitutional Court shall dismiss the
instituted legal proceedings on the grounds thereof.
It needs to be noted that this provision of the Law on the
Constitutional Court is applicable mutatis mutandis also to
consideration of petitions requesting to investigate into the
compliance of a legal act with the Constitution (other act of
higher power) and adoption of corresponding decisions.
Under Paragraph 3 of Article 69 of the Law on the
Constitutional Court, in the event that the grounds for refusal
to consider a petition have been established after the
commencement of the investigation of the case during the hearing
of the Constitutional Court, a decision to dismiss the case shall
be adopted.
47. Taking account of the arguments set forth, the part of
the case regarding the petition of the group of Members of the
Seimas, the petitioner, requesting to investigate into the
compliance of President of the Republic Decree No. 2067 of 19
February 2003 and President of the Republic Decree No. 128 of 19
February 2003 with the Constitution is to be dismissed.
Conforming to Articles 102 and 105 of the Constitution of
the Republic of Lithuania, and Articles 1, 53, 54, 55, 56, 69 and
Paragraph 2 of Article 80 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 Paragraph 3 (wording of 19 September
2000; Official Gazette Valstybės žinios, 2000, No. 85-2566) of
Article 85 of the Republic of Lithuania Law on the Proceedings of
Administrative Cases to the extent that it provides that the
introductory and resolution parts of the decision may be drawn up
prior to the announcement of a decision of the administrative
court of first instance, while the parts of the decision
comprising the recital and the reasoning may be drawn up later,
within seven working days after the announcement of the decision,
is in conflict with Article 109 of the Constitution of the
Republic of Lithuania and the constitutional principles of a
state under the rule of law and justice.
2. To recognise that Paragraph 3 (wording of 19 September
2000; Official Gazette Valstybės žinios, 2000, No. 85-2566) of
Article 85 of the Republic of Lithuania Law on the Proceedings of
Administrative Cases to the extent that it provides that only the
introductory and resolution parts of the decision adopted by the
administrative court of first instance are announced in public
(in the courtroom) is not in conflict with of the Constitution of
the Republic of Lithuania.
3. To recognise that Paragraph 3 (wording of 19 September
2000; Official Gazette Valstybės žinios, 2000, No. 85-2566) of
Article 85 of the Republic of Lithuania Law on the Proceedings of
Administrative Cases to the extent that it provides that the
decision adopted by the administrative court of first instance is
announced, as a rule, on the same day after consideration of the
case is not in conflict with the Constitution of the Republic of
Lithuania.
4. To recognise that the provision "the chairman of the
college or the judge rapporteur shall <
> inform when the full
text of decision or ruling will be drawn up" of Paragraph 2
(wording of 19 September 2000; Official Gazette Valstybės žinios,
2000, No. 85-2566) of Article 139 of the Republic of Lithuania
Law on the Proceedings of Administrative Cases is in conflict
with Article 109 the Constitution of the Republic of Lithuania
and the constitutional principles of a state under the rule of
law and justice.
5. To recognise that the provision "having adopted the
decision or ruling, the court shall return to the courtroom and
the chairman of the college or the judge rapporteur shall read
out the introductory and resolution parts of the decision or
ruling, briefly define the reasoning of the decision or ruling"
of Paragraph 2 (wording of 19 September 2000; Official Gazette
Valstybės žinios, 2000, No. 85-2566) of Article 139 of the
Republic of Lithuania Law on the Proceedings of Administrative
Cases is not in conflict with the Constitution of the Republic of
Lithuania.
6. To recognise that Paragraph 3 (wording of 19 September
2000; Official Gazette Valstybės žinios, 2000, No. 85-2566) of
Article 139 of the Republic of Lithuania Law on the Proceedings
of Administrative Cases is in conflict with Article 109 the
Constitution of the Republic of Lithuania and the constitutional
principles of a state under the rule of law and justice.
7. To recognise that Article 306 (wording of 8 July 2004;
Official Gazette Valstybės žinios, 2004, No. 115-4276) of the
Code of Criminal Procedure of the Republic of Lithuania is in
conflict with Article 109 of the Constitution of the Republic of
Lithuania and the constitutional principles of a state under the
rule of law and justice.
8. To recognise that Paragraph 2 (wording of 14 March 2002;
Official Gazette Valstybės žinios, 2002, No. 37-1341) Article 308
(wording of 1 June 2006) of the Code of Criminal Procedure of the
Republic of Lithuania is in conflict with Article 109 of the
Constitution of the Republic of Lithuania and the constitutional
principles of a state under the rule of law and justice.
9. To recognise that Paragraph 12 (wording of 14 March
2002; Official Gazette Valstybės žinios, 2002, No. 37-1341)
Article 324 of the Code of Criminal Procedure of the Republic of
Lithuania is in conflict with Article 109 of the Constitution of
the Republic of Lithuania and the constitutional principles of a
state under the rule of law and justice.
10. To recognise that the provision "while if only the
resolution part was announcedwithin the same time period of
signing of the judgement or the ruling" of Paragraph 13 (wording
of 14 March 2002; Official Gazette Valstybės žinios, 2002, No.
37-1341) Article 324 of the Code of Criminal Procedure of the
Republic of Lithuania is in conflict with Article 109 of the
Constitution of the Republic of Lithuania and the constitutional
principles of a state under the rule of law and justice.
11. To recognise that Paragraph 9 (wording of 14 March
2002; Official Gazette Valstybės žinios, 2002, No. 37-1341) of
Article 377 (wording of 8 July 2004) of the Code of Criminal
Procedure of the Republic of Lithuania to the extent that it
establishes that the court of cassation instance which is
considering a case can, before it adopts the ruling, draw up only
its resolution part, by setting forth verbally the arguments of
its adoption in the courtroom, while the recital and even the
introductory parts can be drawn up and the entire ruling may be
signed by the judges who have considered the case laterwithin
seven days of the adoption of the rulingwhile with the assent of
the President of the court or the Chairman of the Criminal Cases
Divisionwithin fourteen days of the adoption of the ruling, is
in conflict with Article 109 of the Constitution of the Republic
of Lithuania and the constitutional principles of a state under
the rule of law and justice.
12. To recognise that Paragraph 7 (wording of 14 March
2002; Official Gazette Valstybės žinios, 2002, No. 37-1341) of
Article 448 of the Code of Criminal Procedure of the Republic of
Lithuania to the extent that it provides that the tree-judge
college of the Criminal Cases Division of the Supreme Court of
Lithuania which is considering the issue of renewal of the case
due to newly emerged circumstances can, before it adopts the
ruling, draw up only the resolution part of the ruling and
announce it, while in the courtroom the Chairman of the college
verbally sets forth the arguments of its adoption, while the
recital and descriptive parts may be drawn up and the entire
ruling of the judges of the entire ruling can be signed by the
judges laterwithin three days of the adoption of the rulingis
in conflict with Article 109 of the Constitution of the Republic
of Lithuania and the constitutional principles of a state under
the rule of law and justice.
13. To recognise that Paragraph 5 (wording of 14 March
2002; Official Gazette Valstybės žinios, 2002, No. 37-1341) of
Article 454 of the Code of Criminal Procedure of the Republic of
Lithuania to the extent that it establishes that, having
considered the issue of renewal of the case due to a clearly
improper application of the penal law, the tree-judge college of
the Criminal Cases Division of the Supreme Court of Lithuania, or
the extended seven-judge college of this division, or the
Criminal Cases Division of the Supreme Court (which is
considering such an issue in its plenary session) may, before it
adopts a ruling, draw up only the resolution part of the ruling
and announce it in the courtroom, when the Chairman of the
college sets forth verbally the main arguments of its adoption,
while the recital and the introductory parts may be drawn up and
the entire ruling may be signed by the judges who have considered
the case laterwithin three days of the adoption of the rulingis
in conflict with Article 109 of the Constitution of the Republic
of Lithuania and the constitutional principles of a state under
the rule of law and justice.
14. To recognise that Paragraph 6 (wording of 14 March
2002; Official Gazette Valstybės žinios, 2002, No. 37-1341) of
Article 454 of the Code of Criminal Procedure of the Republic of
Lithuania to the extent that it establishes that the ruling
adopted in the plenary session the Criminal Cases Division of the
Supreme Court of Lithuania, which considers the issue of renewal
of a criminal case due to a clearly improper application of the
penal law, is signed by the Chairman of the session and the
rapporteur and not all the judges who have considered the case
(regardless of whether they voted for or against such ruling), is
in conflict with Article 109 of the Constitution of the Republic
of Lithuania and the constitutional principles of a state under
the rule of law and justice.
15. To recognise that Paragraph 4 (wording of 14 March
2002; Official Gazette Valstybės žinios, 2002, No. 37-1341) of
Article 460 of the Code of Criminal Procedure of the Republic of
Lithuania to the extent that it establishes that the three-judge
college of the Supreme Court of Lithuania, which is considering a
request or presentation to renew a criminal case subsequent to a
decision of the United Nations Human Rights Committee or the
European Court of Human Rights may, before it adopts a ruling,
draw up only the resolution part of the ruling and announce it in
the courtroom, by verbally setting forth the main arguments of
its adoption is in conflict with Article 109 of the Constitution
of the Republic of Lithuania and the constitutional principles of
a state under the rule of law and justice.
16. To recognise that Paragraph 5 (wording of 14 March
2002; Official Gazette Valstybės žinios, 2002, No. 37-1341) of
Article 460 of the Code of Criminal Procedure of the Republic of
Lithuania to the extent that it establishes that the introductory
and recital parts of a ruling of a three-judge college of the
Criminal Cases Division of the Supreme Court of Lithuania and of
the Criminal Cases Division of the Supreme Court of Lithuania
regarding renewal of a criminal case subsequent to a decision of
the United Nations Human Rights Committee or the European Court
of Human Rights may be drawn up not before a corresponding ruling
is adopted and announced publicly (in the courtroom), but later
within ten days of the adoption of the rulingalso, that if the
Criminal Cases Division of the Supreme Court of Lithuania in it
plenary session adopts a ruling on renewal of a criminal case
subsequent to a decision of the United Nations Human Rights
Committee or the European Court of Human Rights and this ruling
is signed only by the Chairman of the plenary session and the
judge-rapporteur, but not by all the judges who have adopted the
case, is in conflict with Article 109 of the Constitution of the
Republic of Lithuania and the constitutional principles of a
state under the rule of law and justice.
17. To recognise that Paragraph 3 (wording of 28 February
2002; Official Gazette Valstybės žinios, 2002, No. 36-1340) of
Article 268 of the Code of Civil Procedure of the Republic of
Lithuania to the extent that it establishes that a decision of a
court of first instance may be adopted and announced only after
the introductory and resolution parts of the decision are drawn
up, briefly setting forth verbal reasoning of the decision in the
courtroom, while the recital and the reasoning parts may be drawn
up later, within five days of the announcement of the decision,
is in conflict with Article 109 of the Constitution of the
Republic of Lithuania and with the constitutional principles of a
state under the rule of law and justice.
18. To recognise that Paragraph 2 (wording of 28 February
2002; Official Gazette Valstybės žinios, 2002, No. 36-1340) of
Article 285 of the Code of Civil Procedure of the Republic of
Lithuania to the extent that it provides that "the court, when it
adopts a decision in absentia, performs a formal assessment of
the evidence submitted in the case, i.e. it ascertains that if
the content of the evidence is confirmed, there would be grounds
to adopt such decision" is not in conflict with the Constitution
of the Republic of Lithuania.
19. To recognise that Paragraph 5 (wording of 28 February
2002; Official Gazette Valstybės žinios, 2002, No. 36-1340) of
Article 285 of the Code of Civil Procedure of the Republic of
Lithuania is not in conflict with the Constitution of the
Republic of Lithuania.
20. To recognise that the provision of Paragraph 1 (wording
of 28 February 2002; Official Gazette Valstybės žinios, 2002, No.
36-1340) of Article 286 of the Code of Civil Procedure of the
Republic of Lithuania that abridged reasoning is set forth in the
decision adopted in absentia is not in conflict with the
Constitution of the Republic of Lithuania.
21. To recognise that Paragraph 4 (wording of 28 February
2002; Official Gazette Valstybės žinios, 2002, No. 36-1340) of
Article 288 of the Code of Civil Procedure of the Republic of
Lithuania to the extent that the court is not permitted to review
a decision adopted in absentia also in such cases when the court
is submitted the evidence that confirms that the said decision
was clearly unjust and that by that decision the rights of the
person had been clearly violated is in conflict with Article 109
of the Constitution of the Republic of Lithuania and the
constitutional principles of a state under the rule of law and
justice.
22. To recognise that Paragraph 2 (wording of 28 February
2002; Official Gazette Valstybės žinios, 2002, No. 36-1340) of
Article 289 of the Code of Civil Procedure of the Republic of
Lithuania to the extent the court is not permitted to accept an
application requesting to review a decision adopted in absentia
also in such cases when the court is submitted such evidence
whereby a clear mistake was made by the court in adopting the
decision in absentia, also when the court is submitted such
evidence that confirms that the decision was clearly unjust, is
in conflict with Article 109 the Constitution of the Republic of
Lithuania and the constitutional principles of a state under the
rule of law and justice.
23. To recognise that Paragraph 2 (wording of 28 February
2002; Official Gazette Valstybės žinios, 2002, No. 36-1340) of
Article 303 of the Code of Civil Procedure of the Republic of
Lithuania is not in conflict with the Constitution of the
Republic of Lithuania.
24. To recognise that Paragraph 2 (wording of 28 February
2002; Official Gazette Valstybės žinios, 2002, No. 36-1340) of
Article 320 of the Code of Civil Procedure of the Republic of
Lithuania to the extent that it entrenches that the court of
appeal instance, considering other than the cases of the
categories provided for in Chapters XIX and XX of Part IV and in
Part V of the Code of Civil Procedure, may not overstep the
limits established in the appeal, though this is required by the
public interest, and without overstepping them the decision
(ruling) of this court would be unjust and thus the values
established in, as well as defended and protected by the
Constitution would be violated, is in conflict with Article 109
of the Constitution of the Republic of Lithuania and the
constitutional principles of a state under the rule of law and
justice.
25. To recognise that Paragraph 2 (wording of 28 February
2002; Official Gazette Valstybės žinios, 2002, No. 36-1340) of
Article 325 of the Code of Civil Procedure of the Republic of
Lithuania to the extent that it establishes that a decision
(ruling) of a court of appeal instance may be adopted and
announced in the courtroom only after the introductory and
resolution parts thereof have been drawn up, briefly setting
forth verbal reasoning of the decision in the courtroom is in
conflict with Article 109 of the Constitution of the Republic of
Lithuania and the constitutional principles of a state under the
rule of law and justice.
26. To recognise that Paragraph 3 (wording of 28 February
2002; Official Gazette Valstybės žinios, 2002, No. 36-1340) of
Article 325 of the Code of Civil Procedure of the Republic of
Lithuania to the extent that it establishes that the recital and
reasoning parts of the decision (ruling) may be drawn up later,
within fourteen days of the adoption of the decision (ruling) is
in conflict with Article 109 of the Constitution of the Republic
of Lithuania and the constitutional principles of a state under
the rule of law and justice.
27. To recognise that the provision of Paragraph 2 (wording
of 28 February 2002; Official Gazette Valstybės žinios, 2002, No.
36-1340) of Article 358 of the Code of Civil Procedure of the
Republic of Lithuania that the ruling of the plenary session of
the Civil Cases Division of the court of cassation instance shall
be signed only by the chairman and the judge rapporteur of the
plenary session and not by all the judges who have adopted that
ruling is in conflict with Article 109 of the Constitution of the
Republic of Lithuania and with the constitutional principles of a
state under the rule of law and justice.
28. To recognise that Paragraph 3 (wording of 28 February
2002; Official Gazette Valstybės žinios, 2002, No. 36-1340) of
Article 358 of the Code of Civil Procedure of the Republic of
Lithuania to the extent that it establishes that a ruling of a
court of cassation instance may be adopted only by drawing up the
introductory and resolution parts and without drawing up the
recital and statement parts is in conflict with Article 109 of
the Constitution of the Republic of Lithuania and with the
constitutional principles of a state under the rule of law and
justice.
29. To dismiss the part of the case regarding the
compliance of Item 1 (wording of 24 January 2002; Official
Gazette Valstybės žinios, 2002, No. 17-649) of Paragraph 2 of
Article 119 of the Republic of Lithuania Law on Courts with the
Constitution of the Republic of Lithuania.
30. To dismiss the part of the case regarding the
compliance of Paragraph 5 (wording of 24 January 2002; Official
Gazette Valstybės žinios, 2002, No. 17-649) of Article 119 of the
Republic of Lithuania Law on Courts with the Constitution of the
Republic of Lithuania.
31. To dismiss the part of the case regarding the
compliance of Item 1 (wording of 24 January 2002; Official
Gazette Valstybės žinios, 2002, No. 17-649) of Article 120
(wording of 21 January 2003) of the Republic of Lithuania Law on
Courts with the Constitution of the Republic of Lithuania.
32. To dismiss the part of the case regarding the
compliance of President of the Republic of Lithuania Decree No.
2067 "On the Prolongation of the Powers of a Judge of a Regional
Court" of 19 February 2003 (Official Gazette Valstybės žinios,
2003, No. 19-813) with the Constitution of the Republic of
Lithuania.
33. To dismiss the part of the case regarding the
compliance of President of the Republic of Lithuania Decree No.
128 "On Appointing Chairmen of Divisions of Regional Courts" of
18 June 2003 (Official Gazette Valstybės žinios, 2003, No. 60-
2717) 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
Stasys Stačiokas
Romualdas Kęstutis Urbaitis