Case No. 33/04
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
RULING
ON THE COMPLIANCE OF GOVERNMENT OF THE REPUBLIC OF
LITHUANIA RESOLUTION NO. 222 "ON THE CANDIDATE TO THE
GOVERNMENT REPRESENTATIVES" WITH THE CONSTITUTION OF
THE REPUBLIC OF LITHUANIA AND WITH ARTICLE 9 OF THE
REPUBLIC OF LITHUANIA LAW ON PREVENTION OF CORRUPTION
13 August 2007
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 representative of the Government
of the Republic of Lithuania, the party concerned, who was
Audrius Kasinskas, Deputy Head of the Law-making Division of the
Law Department of the Ministry of the Interior of the Republic of
Lithuania,
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 7 August 2007 heard constitutional justice case No.
33/04 subsequent to the petition of the Vilnius Regional
Administrative Court, the petitioner, requesting to investigate
whether Government of the Republic of Lithuania Resolution No.
222 "On the Candidate to the Government Representatives" of 27
February 2004 is not in conflict with Paragraph 1 of Article 29,
Paragraph 1 of Article 33 and Item 2 of Article 94 of the
Constitution of the Republic of Lithuania, with the
constitutional principle of a state under the rule of law which,
according to the petitioner, is enshrined in the Preamble to the
Constitution, with Article 3 of the Republic of Lithuania Law on
Administrative Supervision of Municipalities, with Paragraph 3 of
Article 9, Item 3 of Paragraph 2 of Article 10 and Article 13 of
the Republic of Lithuania Law on State Service.
The Constitutional Court
has established:
I
On 27 February 2004, the Government issued Resolution No.
222 "On the Candidate to the Government Representatives"
(hereinafter also referred to as Government Resolution No. 222 of
27 February 2004), in which it is established:
"Pursuant to Item 14 of Article 22 of the Law on the
Government of the Republic of Lithuania (Official Gazette
Valstybės žinios, 1994, No. 43-772; 1998, No. 41(1)-1131; 2000,
No. 92-2843; 2002, No. 41-1527), Paragraph 2 of Article 2 and
Paragraph 1 of Article 3 of the Republic of Lithuania Law on
Administrative Supervision of Municipalities (Official Gazette
Valstybės žinios, 1998, No. 51-1392; 2002, No. 127-5748), Item 6
of Paragraph 3 of Article 9 and Item 3 of Paragraph 2 of Article
10 of the Republic of Lithuania Law on State Service (Official
Gazette Valstybės žinios, 1999, No. 66-2130; 2002, No. 45-1708;
2003, No. 17-705, No. 112-4993), Paragraph 9 of Article 9 of the
Republic of Lithuania Law on Prevention of Corruption (Official
Gazette Valstybės žinios, 2002, No. 57-2297), the Government of
the Republic of Lithuania resolves:
1. Not to appoint Paulius Uleckas to the position of the
Government representative for the Marijampolė County.
2. To empower the Minister of the Interior Virgilijus
Bulovas to select, under procedure established in legal acts, an
applicant to the office of the Government representative for the
Marijampolė County, and to submit a draft resolution to the
Government of the Republic of Lithuania concerning his
appointment."
II
The Vilnius Regional Administrative Court, the
petitioner, was investigating an administrative 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 Government Resolution No. 222
of 27 February 2004 is not in conflict with Paragraph 1 of
Article 29, Paragraph 1 of Article 33 and Item 2 of Article 94 of
the Constitution, with the constitutional principle of a state
under the rule of law which, according to the petitioner, is
enshrined in the Preamble to the Constitution, with Article 3 of
the Law on Administrative Supervision of Municipalities, with
Paragraph 3 of Article 9, Item 3 of Paragraph 2 of Article 10 and
Article 13 of the Law on State Service.
III
The petition of the Vilnius Regional Administrative Court
is based on the following arguments.
1. Under Item 2 of Article 94 of the Constitution, the
Government shall execute laws and resolutions of the Seimas on
the implementation of the laws as well as the decrees of the
President of the Republic.
1.1. The Government, having the powers to appoint persons
to positions of state servants, shall also have the duty to
follow both the common and special requirements of laws regarding
the appointment of state servants to office. The common
requirements are established in Paragraph 1 (wording of 23 April
2002) of Article 9 of the Law on State Service and they are as
follows: (1) to hold citizenship of the Republic of Lithuania;
(2) be proficient in the Lithuanian language; (3) to be not less
than 18 years of age and not more than 62 years and 6 months of
age; (4) to have the education necessary to occupy a position of
that level in the state service. Under Paragraph 3 (wording of 3
April 2003) of the same article, the following persons shall not
be eligible for the positions in the state service: (1) those
found guilty, in accordance with the procedure prescribed by
laws, of a serious or grave crime, or a criminal act against the
state service and public interest or any act comprising elements
of corruptive nature, and whose conviction has not been spent or
expunged; (2) those who have been deprived by the court of the
right to occupy a position in the state service; (3) those whose
spouse, close relative or a person related to him by marriage
performs the duties of a civil servant in a state or municipal
institution or agency in the event that they would be related by
direct subordination according to the positions held by them; (4)
those recognised legally incapable in accordance with the
procedure prescribed by laws; (5) those who are members of an
organisation which is prohibited in accordance with the procedure
prescribed by laws; (6) in other cases provided for by other
laws. Under Paragraph 5 of the same article (wording of 4 July
2003), persons recruited to the state service shall also meet
special requirements set out in the job description. A person
recruited as head of an institution through competition shall be
examined in writing (a test) and orally (an interview); in the
course of an interview, the ability of a person to perform the
functions specified in the job description of the state service
shall be assessed (Paragraph 2 of Article 13 (wording of 23 June
2002) of the Law on State Service).
1.2. The Government resolution on admission of the
Government representative to the state service has also not to be
in conflict with the provisions of Article 3 (wording of 10
December 2002) of the Law on Administrative Supervision of
Municipalities which enshrine the procedure for admission of the
Government representative into the position of a state servant:
the Government representative is the head of the institution,
appointed to office for four years and dismissed from office
under the procedure established in the Law on State Service
(Paragraph 1); a person with higher university education or
education compared to university education and with work
experience in public administration which is not less than five
years or a person with higher university education in public
administration and the work experience in public administration
which is not less than three years may be appointed as the
Government representative (Paragraph 3).
1.3. The procedure of admission to state service and the
organization of competitions for the positions in state service
are regulated in more detail by the Procedure for Admission into
the Position of a State Servant approved by Government Resolution
No. 966 "On the Confirmation of the Procedure for Admission into
the Position of a State Servant" of 24 June 2002, Item 14 whereof
enshrines the requirement, while accepting the applications of
the candidates, to verify their compliance with the requirements
of Paragraph 1 of Article 9 of the Law on State Service; under
Item 66 of the said procedure, a person who won the competition
shall be appointed to the position in not less than 3 working
days and not more than 14 calendar days upon the end of the
competition.
2. In the opinion of the Vilnius Regional Administrative
Court, the petitioner, when the Government representative is
admitted to office, it is sufficient that he: (1) meets the
established common and special requirements; (2) wins the
competition; Articles 11 and 13 of the Law on State Service do
not provide (nor do the said articles give any reasons) that a
person who won the competition could be not admitted to the state
service, thus, if both specified conditions are fulfilled, the
person must be appointed as the Government representative.
According to the petitioner, "the Government resolution of the
opposite content" would be in conflict with Article 3 of the Law
on Administrative Supervision of Municipalities and with
Paragraph 3 of Article 9, Item 3 of Paragraph 2 of Article 10 and
Article 13 of the Law on State Service; such Government
resolution which is in conflict with the laws would be in
conflict with Item 2 of Article 94 of the Constitution, under
which the Government shall execute laws.
3. The disputed Government resolution is based on the
following: (1) Paragraph 3 of Article 9 of the Law on State
Service, under which the persons shall not be eligible for the
state service in other cases provided for by other laws; (2)
Paragraph 2 of Article 9 of the Law on Prevention of Corruption,
under which the employer shall have the duty to verify the
credibility of the candidateto request information about the
person who seeks to be admitted to a position in a state
institution, and Paragraph 9 of this article, under which, a
person, who lost his credibility, may be not admitted to state
service. In the opinion of the Vilnius Regional Administrative
Court, the petitioner, at the stage of submitting applications to
participate in the competition, one may not verify the
credibility of the candidates as this is not provided neither in
the Law on State Service, nor in the Procedure for Admission into
the Position of a State Servant approved by Government Resolution
No. 966 "On the Confirmation of the Procedure for Admission into
the Position of a State Servant" of 24 June 2002.
In the opinion of the Vilnius Regional Administrative
Court, the petitioner, following the provisions of the Law on
Prevention of Corruption (namely Paragraph 9 of Article 9
thereof), it is impossible not to complete the procedure of the
competition and not to admit to the position the person who won
the competition as this law (Paragraph 9 of Article 9 thereof) is
not a legal act which regulates the legal relations of the state
service (i.e. it is not a special legal act). The legal relations
of admission of state servants to their positions should be
regulated by laws so that there would be no ambiguities: either
the credibility of the candidates are to be verified at the stage
of admission of applications, or the laws must establish the
exceptions when the duty to admit persons who won the competition
to the state service is to be not carried out.
Thus, according to the Vilnius Regional Administrative
Court, the petitioner, following Paragraph 9 of Article 9 of the
Law on Prevention of Corruption, it was not possible not to
appoint P. Uleckas to the position of the Government
representative for the Marijampolė County.
4. In the opinion of the Vilnius Regional Administrative
Court, the petitioner, Government Resolution No. 222 of 27
February 2004 is in conflict with Paragraph 1 (with the
constitutional principle of equality of all persons before the
law) of Article 29, as well as with Paragraph 1 of Article 33 of
the Constitution, under which, each person who meets the
conditions for entering the state service established by the law
and who has fulfilled its procedures, must be admitted to the
state service, as P. Uleckas was not appointed to the position
the competition for which he had won, even though there were no
obstacles for that provided for in the laws (in Item 14 of
Article 22 of the Law on the Government, Paragraph 3 of Article 3
of the Law on Administrative Supervision of Municipalities and
Paragraphs 1 and 3 of Article 9 and Item 3 of Paragraph 2 of
Article 10 of the Law on State Service). Thus, according to the
Vilnius Regional Administrative Court, the petitioner, a
different legal regulation was applied to P. Uleckas if compared
to other persons.
5. In the opinion of the Vilnius Regional Administrative
Court, the petitioner, the doubt regarding the compliance of
Government Resolution No. 222 of 27 February 2004 with Paragraph
1 of Article 29, Paragraph 1 of Article 33 and Item 2 of Article
94 of the Constitution also implies the doubt whether the
disputed Government resolution is not in conflict with the
constitutional principle of a state under the rule of law which,
according to the petitioner, is consolidated in the Preamble to
the Constitution.
6. In the petition of the Vilnius Regional Administrative
Court it is inter alia noted that the parties of the
administrative case investigated by this court in which it was
decided to apply to the Constitutional Court, do not dispute
regarding the common and special requirements raised for the
persons who are admitted to positions of state servants.
IV
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations from the
representative of the Government, the party concerned, who was A.
Kasinskas, were received, in which it is stated that Government
Resolution No. 222 of 27 February 2004 is not in conflict with
the Constitution and with the articles (paragraphs thereof) of
the laws on State Service and Administrative Supervision of
Municipalities which are specified by the Vilnius Regional
Administrative Court, the petitioner. The position of the
representative of the Government, the party concerned, is based
on the following arguments.
1. Government Resolution No. 222 of 27 February 2004 was
adopted without violating Article 3 of the Law on Administrative
Supervision of Municipalities, Paragraph 3 of Article 9, Item 3
of Paragraph 2 of Article 10 and Article 13 of the Law on State
Service, thus, it is not in conflict with Item 2 of Article 94 of
the Constitution.
1.1. According to the representative of the Government,
the party concerned, the list of the grounds based on which a
person may not be admitted to the state service which is set
forth in Paragraph 3 of Article 9 of the Law on State Service is
not finite; such grounds may be provided also by other laws; it
is obvious from Paragraph 6 of this article, in which it is
established that "the procedure for admission into the position
of a state servant is established by this Law, other laws and the
procedure approved by the Government". Thus, it is by no means
possible to state that the Law on State Service and the Procedure
for Admission into the Position of a State Servant approved by
Government Resolution No. 966 "On the Candidate to the Government
Representatives" of 27 February 2004 are the only legal acts
which regulate the relations of appointing the Government
representative in the county.
1.2. While adopting the disputed resolution, the
Government had to heed Paragraphs 1 and 2 of Article 9 of the Law
on Prevention of Corruption: under Paragraph 2, the provision
with information about the person who seeks to hold office in the
state institution to which he is appointed by inter alia the
Government, is obligatory, and Paragraph 1 enshrines the
objective that "only the persons of impeccable reputation would
work in the state or municipal institution"; this objective is to
be applied not only to the state servants of personal confidence,
but to all state servants in general. Non-application of the Law
on Prevention of Corruption in this case would mean that in the
hierarchy of the legal sources, the power of the norms of this
law is lower than the power of the norms of the Law on State
Service.
1.3. In the discussed case, the relations of admission
into the state service are "multilayer": first, they are the
relations of state service which are regulated by the Law on
State Service and the Procedure for Admission into the Position
of a State Servant approved by Government Resolution No. 966 "On
the Candidate to the Government Representatives" of 27 February
2004; second, they are the relations of adoption of Government
decisions which are regulated by the Law on the Government and
the Work Regulations of the Government approved by a Government
resolution; third, they are the relations of the restraint of
unlawful deeds (corruption) in the state service which are
regulated by the Law on Prevention of Corruption. While adopting
the disputed resolution, the Government had to follow all the
said legal acts and not only the Law on State Service.
1.4. If the Government representative in the county was
appointed to office only upon establishing that he meets the
common and special requirements raised for the state servants and
that he won the competition, the application of the Government to
the Special Investigation Service (hereinafter also referred to
as the SIS) regarding the provision of information and the answer
to it would only be official and would not create any legal or
factual consequences; thus, the provision of Paragraph 3 of
Article 5 of the Constitution that state institutions shall serve
the people would remain not implemented (according to A.
Kasinskas, it would be in conflict with Paragraph 1 of Article 6
of the Constitution, which establishes that the Constitution
shall be an integral and directly applicable act), and the human
and financial resources of the state would be wasted.
1.5. The fact that Paragraph 9 of Article 9 of the Law on
Prevention of Corruption does not include the unambiguous
obligation not to admit to the state service the person regarding
which the information which raises doubts about the person's
credibility has been provided is not in conflict with the
Constitution, as the Government has been reserved discretion to
assess the material regarding the credibility of the candidate
which has been provided to it while taking account of the
significance of the said material to the state service.
2. Government Resolution No. 222 of 27 February 2004 is
not in conflict with Paragraph 1 of Article 29 and Paragraph 1 of
Article 33 of the Constitution as the provisions of these
paragraphs do not mean that in all cases identical conditions
must be applied to all persons who enter all positions in the
state service; such requirement would be groundless as the state
servants do their job which is related to very different spheres
of the public life and economy. The said provisions also do not
require the fact that a person, who meets the conditions for
entering the state service which are established by the laws and
who has fulfilled the entrance procedures, would be
unconditionally admitted to the state service: they enshrine only
all persons' equality while entering the state service; thus,
equal conditions for participating in the competition should be
created for all the persons who seek to hold office in the state
service, they all must be assessed equally, the laws, in respect
with all of them, must be applied equally. Whoever wins the
competition to the position of the Government representative in
the county, he must be applied the Law on Prevention of
Corruption.
In addition, the provision "the Constitution shall be an
integral and directly applicable act" of Paragraph 1 of Article 6
of the Constitution requires that while assessing the compliance
of the disputed Government resolution with Paragraph 1 of Article
29 and Paragraph 1 of Article 33 of the Constitution, one would
also take account of the provision "State institutions shall
serve the people" of Paragraph 3 of Article 5 of the
Constitution; the state servant must be unselfish and must seek
to serve the people as best as possible, to put the interests of
all society and the state in the first place. Namely because of
that fact, the laws provide for the possibility (and in the case
of certain positions of state servantsalso the duty) before
admitting the person to the state service to check how he heeded
the public interests in the past, whether he did not raise his
personal wellbeing above such interests.
3. According to the representative of the Government, the
party concerned, the disputed Government resolution is not in
conflict with the constitutional principle of a state under the
rule of law, as while adopting it, the Government did not have
the right to choose to implement the provisions of certain laws
or not to implement themit must according to its competence
apply all the norms of the Constitution and laws.
V
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations (including
annexes) from V. Sarapinas, the Chancellor of the Government,
were received.
VI
At the hearing of the Constitutional Court, the
representative of the Government, the party concerned, who was A.
Kasinskas, virtually repeated the arguments set forth in his
written explanations, as well as presented additional
explanations and additional documents which have been included in
this constitutional justice case.
The Constitutional Court
holds that:
I
1. The Vilnius Regional Administrative Court, the
petitioner, requests to investigate whether Government Resolution
No. 222 "On the Candidate to the Government Representatives" of
27 February 2004 is not in conflict with Paragraph 1 of Article
29, Paragraph 1 of Article 33 and Item 2 of Article 94 of the
Constitution, with Article 3 of the Law on Administrative
Supervision of Municipalities, and with Paragraph 3 of Article 9,
Item 3 of Paragraph 2 of Article 10 and Article 13 of Law on
State Service.
2. On 23 October 2003, the Prime Minister issued
Ordinance No. 242 "On Granting Empowerment", in which taking
account of "the fact that there is no appointed Government
representative for the Utena County and that the term of office
of other Government representatives appointed to office by
Government Resolution No. 1335 "On Appointing Government
Representatives" of 2 December 1999 is over under the procedure
established by the legal acts", V. Bulovas, the Minister of the
Interior, was empowered, under the procedure established by the
laws, to select the candidates to the positions of the Government
representatives and to present a draft Government resolution on
their appointment.
3. It is obvious from the administrative case considered
by the Vilnius Regional Administrative Court in which it was
decided to apply to the Constitutional Court, from the written
explanations (including annexes) of V. Sarapinas, the Chancellor
of the Government, and from the written explanations of A.
Kasinskas, the representative of the Government, the party
concerned, as well as from the explanations and documents
provided by him at the Constitutional Court hearing, that:
- on 30 October 2003, in the official gazette "Valstybės
žinios" annex titled "Information Bulletin", No. 82, the Ministry
of the Interior (hereinafter also referred to the MI) announced
the competition for inter alia the position of the Government
representative in the Marijampolė County;
- three applicants had submitted their applications to
participate in the competition for the position of the Government
representative in the Marijampolė County (head of institution)
(Protocol No. 195 on the competition of applicants for the
position of the state servant of the MI);
- the competition of the applicants to the position of
the state servant took place on 28 November 2003, at the Ministry
of the Interior; two candidates participated in the competition
K. Kubertavičius and P. Uleckas (Protocol No. 195 on the
competition of applicants for the position of the state servant
of the MI);
- the commission composed by Order of the Minister of the
Interior No. 1V-408 of 18 November 2003, assessed the knowledge
of P. Uleckas by 16 points, while the knowledge of K.
Kubertavičiusby 14.7 points; the competition was won by P.
Uleckas who reached the best result (Protocol No. 195 on the
competition of applicants for the position of the state servant
of the MI);
- on 4 December 2003, the Chancellor of the Government
applied in writing to the SIS with a request to provide
information about the persons who seek to hold the position of
the Government representative in the Marijampolė County, inter
alia about P. Uleckas who sought to hold the position of the
Government representative in the Marijampolė County (the
explanations of A. Kasinskas, the representative of the
Government, the party concerned, at the Constitutional Court
hearing);
- on 5 December 2003, Vice-minister of the Interior Z. B.
Kazakevičius, by his cover letter-proposal No. 1D-6961-(31) "On
Draft Resolutions of the Government" provided the Government
inter alia with draft Government Resolution "On Appointing the
Government Representative in the Marijampolė County" (in the
Office of the Government, it was given reference No. 3-1724N);
the said draft was set forth as follows:
"Pursuant to Item 14 of Article 22 of the Law on the
Government of the Republic of Lithuania (Official Gazette
Valstybės žinios, 1994, No. 43-772; 1998, No. 41(1)-1131; 2000,
No. 92-2843; 2002, No. 41-1527), Paragraph 2 of Article 2 and
Paragraph 1 of Article 3 of the Republic of Lithuania Law on
Administrative Supervision of Municipalities (Official Gazette
Valstybės žinios, 1998, No. 51-1392; 2002, No. 127-5748), Item 3
of Paragraph 2 of Article 10 of the Republic of Lithuania Law on
State Service (Official Gazette Valstybės žinios, 1999, No. 66-
2130; 2002, No. 45-1708; 2003, No. 17-705, No. 112-4993), the
Government of the Republic of Lithuania resolves:
To appoint Paulius Uleckas to the position of the
Government representative in the Marijampolė County (A level 17
category) as from 15 December 2003.";
- on 8 December 2003, at the Office of the Government, an
unsigned, i.e. anonymous, complaint dated 2 December 2003
(Registration No. 3487 given by the Office of the Government) was
received with address to the Prime Minister A. M. Brazauskas,
Minister of the Interior V. Bulovas and Member of the Seimas A.
Rimas, in which it was specified that its authors are "14
employees of the Marijampolė Municipality" who "have worked with
P. Uleckas since the restoration of Independence" (P. Uleckas was
the administrator of the Marijampolė Municipality); the complaint
states that P. Uleckas is dishonest (and sets forth certain
circumstances which, according to the author or authors of the
complaint, attest the said person being dishonest, and which are
related to P. Uleckas' work while managing the administration of
the Marijampolė Municipality, namely abusing the official
position while going on business trips and raising the
qualification, installation of the private house using the funds
which were allocated to the maintenance of the municipality
building, protection of certain enterprises by buying telephones,
computer equipment and by repairing the service car, being drunk
at work), as well as expresses the belief that P. Uleckas is not
suitable to hold the office of the Government representative for
the Marijampolė County;
- on 9 December 2003, Letter No. 2.5-01-3786 of 9
December 2003 (Registration No. 13975 given by the Office of the
Government) of Ž. Pacevičius, First Deputy Director of the SIS
addressed to the Chancellor of the Government A. Z. Kaminskas was
received at the Office of the Government, in which it was inter
alia specified that the SIS does not conduct the operational
investigation regarding P. Uleckas who seeks to hold the position
of the Government representative for the Marijampolė County; the
SIS also informed that it "applied to other law enforcement and
control institutions regarding the presentation of the held
information concerning the examined persons. Upon receiving the
information about the examined persons, we will inform
additionally.";
- on 10 December 2003, the Office of the Government
introduced P. Uleckas with the notice of 4 December 2003 about
the adopted decision to request for information (No. 39-8830) and
with the notice of 9 December 2003 about the provided information
(No. 2.5-01-3786);
- the appointment of the Government representative for
the Marijampolė County was considered at the 10 December 2003
Government sitting; in the material of this sitting of the
Government, the said complaint of "14 employees of the
Marijampolė Municipality" (Registration No. 3487 given by the
Office of the Government) was enclosed to draft resolution of the
Government No. 3-1724N "On Appointing the Government
Representative in the Marijampolė County"; it was decided to
postpone the consideration of the appointment of the Government
representative for the Marijampolė County (Protocol No. 51 of the
10 December 2003 Government sitting);
- by his Letter No. 39-9033 of 10 December 2003
"Regarding P. Uleckas", Chancellor of the Government A. Z.
Kaminskas applied to the SIS and requested "under the procedure
of urgency, to investigate the letter of the employees of the
Marijampolė Municipality of 2 December 2003 regarding the lodged
suspicions against Paulius Uleckas for abusing the official
position and to inform the Office of the Government about the
results of this investigation" (the said anonymous complaint was
enclosed to this letter);
- on 2 January 2004, the Office of the Government
received Letter No. 2.5-01-3994 "On Investigating the Anonymous
Complaint" of the SIS Director V. Junokas of 29-30 December 2003
(Registration No. 1 given by the Office of the Government ),
whereby the Office of the Government was informed that while
investigating the said complaint of "14 employees of the
Marijampolė Municipality", "no data were received that P. Uleckas
abused the official position while going on business trips and
raised the qualification, installed his private house using the
funds which were allocated to the maintenance of the municipality
building, protected certain enterprises by buying telephones,
computer equipment and by repairing the service car, and that he
was drunk at work", as well as that from 1 May 1995 till 25
February 2003 "The Marijampolė Municipality Controller's
(Ombudsman) Office did not establish any violations of lawfulness
or expedience of the use of municipality's property or the
property transferred to the municipality related to the activity
of the administrator of the municipality P. Uleckas"; by the said
letter of the SIS Director, the Office of the Government inter
alia was informed that: (1) in 2002, the Marijampolė Municipality
(at that time, P. Uleckas was the head of its administration),
without public procurement tender purchased various computer
technology for LTL 98,186.36, i.e. for more than LTL 75,000, even
though, according to the SIS Director, under Item 1 of Paragraph
1 of Article 1 of the Law on Public Procurement of the Republic
of Lithuania, it had to announce a public procurement tender,
thus, on 24 December 2003, the SIS sent a letter to the Public
Procurement Office under the Government of the Republic of
Lithuania (hereinafter referred to as the Public Procurement
Office) and requested to establish whether the administration of
the Marijampolė Municipality, by purchasing without the public
procurement tender various computer technology for LTL 98,186.36,
did not violate the provisions of the Law on Public Procurement;
(2) at the moment when P. Uleckas was the head of the
administration of the Marijampolė Municipality, 3 mobile phones
which had been purchased, under preferential conditions, from the
joint stock company (hereinafter referred to as the JSC)
"Omnitel" were entered into the books, however, "the number of
telephones which were actually purchased under the preferential
conditions is unknown for the administration of the municipality
", thus, on 22 December 2003, the SIS sent a letter to the
Customer Service Centre of the JSC "Omnitel" and asked to inform
about the number of the mobile phones which had been purchased
with the offered discounts by the Marijampolė Municipality; (3)
on 23 December 2003, the SIS sent a letter to the Centre of
Initial Medical Care of Marijampolė and asked to inform whether
P. Uleckas was cured at this centre from 1 January 2000 till 25
February 2003; (4) upon receiving the answers from the Public
Procurement Office, Customer Service Centre of the JSC "Omnitel"
and the Centre of Initial Medical Care of Marijampolė, "the
question regarding further investigation of the complaint will be
resolved";
- under Annex 1 of the Procedure for Provision of
Information About the Person Who Seeks to Hold the Position or
Holds the Position in a State or Municipal Institution approved
by Government Resolution No. 1484 "On Approving the Procedure for
Provision of Information About the Person Who Seeks to Hold the
Position or Holds the Position in a State or Municipal
Institution" of 19 September 2002, the Office of the Government
did not inform P. Uleckas that one had applied to the SIS and
requested to investigate the "anonymous complaint of 14 employees
of the Marijampolė Municipality";
- by his application "Regarding the Admission to Work" of
22 January 2004, P. Uleckas applied to the Chancellor of the
Government A. Z. Kaminskas and specified that even though on 28
November 2003 he won the competition for the position of the
Government representative for the Marijampolė County, the
employer did not appoint him to the said position and did not
inform about the reasons of such not appointing, he also
requested to answer in writing why he is not appointed to the
said position; there was no answer to this letter (the
explanations of A. Kasinskas, the representative of the
Government, the party concerned, at the Constitutional Court
hearing);
- on 30 January 2004, Letter of the SIS Director V.
Junokas No. 4-1-406 (Registration No. 1294 given by the Office of
the Government) of 29 January 2004 was received at the Office of
the Government, by which the Chancellor of the Government was
inter alia informed that (1) the Public Procurement Office,
having verified the lawfulness of the procedures of purchase of
the computer equipment carried out by the administration of
Marijampolė Municipality in 2002, and of petrol, gasols, other
light and medium petroleum products carried out in 2003,
established that the administration of the Marijampolė
Municipality headed by P. Uleckas, in 2002, while purchasing the
computer equipment, software and while carrying out the
procedures of purchase of petrol, gasols, other light and medium
petroleum products, violated Item 1 of Paragraph 1 of Article 1,
Paragraph 1 of Article 6 and Paragraph 1 of Article 35 of Law on
Public Procurement, however, that it may not hold the responsible
persons administratively liable for the purchase of the computer
equipment and software carried out in 2002 by the administration
of the Marijampolė Municipality and for the termless agreement
regarding the purchasing of fuel of 2000-2001 which were drawn
without following the requirements of the Law on Public
Procurement, because the term of prescription had passed; (2) the
long-term assets which had been purchased by the administration
of Marijampolė Municipality headed by P. Uleckas from the JSC
"Omnitel" from 7 April 2001 till 25 February 2003 was not
accounted so as it is established in Item 28 of the Procedure for
Accounting of the Establishments Financed by the Budget which was
approved by Minister of Finance of the Republic of Lithuania
Order No. 70 "On Approving the Procedure for Accounting of the
Establishments Financed by the Budget" of 16 March 2001; (3) "at
present moment", the SIS "is deciding the question on the
beginning of the pre-trial investigation under Article 229
(Inappropriate performance of duties of a state servant or a
person likened to him) of the Criminal Code of the Republic of
Lithuania";
- P. Uleckas has not been familiarised with this letter
under Paragraph 7 of Article 9 of the Law on Prevention of
Corruption and Annex 2 of the Procedure for Provision of
Information About the Person Who Seeks to Hold the Position or
Holds the Position in a State or Municipal Institution approved
by Government Resolution No. 1484 "On Approving the Procedure for
Provision of Information About the Person Who Seeks to Hold the
Position or Holds the Position in a State or Municipal
Institution" of 19 September 2002 (explanations of A. Kasinskas,
representative of the Government, the party concerned, at the
Constitutional Court hearing);
- by his complaint "On Procrastination of the State
Administrative Subject to Perform the Actions Attributed to his
Competence" of 5 February 2004, P. Uleckas applied to the Vilnius
Regional Administrative Court with a request to oblige the
Government in not less than 14 days as from coming into force of
the decision to appoint him to the position of the Government
representative for the Marijampolė County;
- on 23 February 2004, Letter of the SIS Director V.
Junokas No. 4-1-697 (Registration No. 2414 given by the Office of
the Government) of 20 February 2004 was received at the Office of
the Government, by which the Chancellor of the Government was
inter alia informed that when the Marijampolė Municipality
purchased the mobile phones or their accessories while the
discount prices were applied (because many subscribers were
registered on behalf of the Marijampolė Municipality), the
invoices of the value added tax were drawn namely on behalf of
this municipality, however, the mobile phones were not accounted
as the assets of the Marijampolė Municipality, "since one paid
for them from the personal funds of the employees but not from
the funds of the Marijampolė Municipality", and most subscribers
(who worked in the enterprises, institutions of this municipality
or who were related to it otherwise) paid for the conversations
from their own funds; the phones were used for administrative
purposes; "no objective data regarding the possible criminal
deeds of the employees of the administration of the Marijampolė
Municipality or big damage for the municipality performed by
them" were received, thus, on 17 February 2004, at the Kaunas
Department of the SIS, pursuant to Article 168 of the Code of
Criminal Procedure of the Republic of Lithuania, a resolution was
adopted to refuse to start the pre-trial investigation;
- P. Uleckas has not been familiarised with this letter
under Paragraph 7 of Article 9 of the Law on Prevention of
Corruption and Annex 2 of the Procedure for Provision of
Information About the Person Who Seeks to Hold the Position or
Holds the Position in a State or Municipal Institution approved
by Government Resolution No. 1484 "On Approving the Procedure for
Provision of Information About the Person Who Seeks to Hold the
Position or Holds the Position in a State or Municipal
Institution" of 19 September 2002 (explanations of A. Kasinskas,
representative of the Government, the party concerned, at the
Constitutional Court hearing);
- on the same day, i.e. 23 February 2004, when Letter of
the SIS Director V. Junokas No. 4-1-697 of 20 February 2004 was
received, the appointment of the Government representative for
the Marijampolė County was considered at the meeting of ministers
and it was decided "to approve of the provision to consider this
question <
> at the 25 February 2004 Government sitting"
(Protocol No. 9R of the 23 February 2004 meeting of the
ministers);
- on 25 February 2004, the Minister of the Interior V.
Bulovas, by his cover letter-proposal No. 1D-1037-(31) "On Draft
Resolution of the Government" provided the Government with draft
Government Resolution "On the Candidate to the Government
Representatives" (Registration No. 4-231N given by the Office of
the Government) and requested to consider this draft in the
nearest sitting of the Government; it was not specified in the
said cover letter-proposal why this draft is submitted for
consideration under the procedure of urgency; this draft was set
forth as follows:
"Pursuant to Item 14 of Article 22 of the Law on the
Government of the Republic of Lithuania (Official Gazette
Valstybės žinios, 1994, No. 43-772; 1998, No. 41(1)-1131; 2000,
No. 92-2843; 2002, No. 41-1527), Paragraph 2 of Article 2 and
Paragraph 3 of Article 3 of the Republic of Lithuania Law on
Administrative Supervision of Municipalities (Official Gazette
Valstybės žinios, 1998, No. 51-1392; 2002, No. 127-5748), Item 6
of Paragraph 3 of Article 9 and Item 3 of Paragraph 2 of Article
10 of the Republic of Lithuania Law on State Service (Official
Gazette Valstybės žinios, 1999, No. 66-2130; 2002, No. 45-1708;
2003, No. 17-705, No. 112-4993), and Paragraph 9 of Article 9 of
the Republic of Lithuania Law on Prevention of Corruption
(Official Gazette Valstybės žinios, 2002, No. 57-2297), the
Government of the Republic of Lithuania resolves:
1. Not to appoint Paulius Uleckas to the position of the
Government representative for the Marijampolė County.
2. To empower the Minister of the Interior Virgilijus
Bulovas to select, under procedure established in legal acts, an
applicant to the position of the Government representative for
the Marijampolė County, and to submit a draft resolution to the
Government of the Republic of Lithuania concerning his
appointment";
- no annexes were attached to the cover letter-proposal
"On Draft Resolution of the Government" the Minister of the
Interior V. Bulovas of 25 February 2004, in which there would be
any information from which one could decide about credibility or
non-credibility of P. Uleckas (and in the cover letter-proposal
itself, there were no links to any references of such
information); it was only noted in it that "the question on
appointing P. Uleckas as the Government representative for the
Marijampolė County was considered during the 10 December 2003
Government sitting and it was postponed upon deciding to carry
out an investigation regarding the possible abuse of the official
position by P. Uleckas";
- in Protocol No. 8 of the 25 February 2004 Government
sitting, there is an entry that P. Uleckas was invited to this
Government sitting; there is no entry in the protocol that P.
Uleckas took the floor during the sitting;
- the draft Government resolution submitted by the
Minister of the Interior V. Bulovas was considered under the
procedure of urgency at the 25 February 2004 Government sitting,
and it was decided to "adopt the draft resolution prepared by the
Ministry of the Interior" (Protocol No. 8 of the 25 February 2004
Government sitting); the said Government resolution was set forth
as follows:
"Pursuant to Item 14 of Article 22 of the Law on the
Government of the Republic of Lithuania (Official Gazette
Valstybės žinios, 1994, No. 43-772; 1998, No. 41(1)-1131; 2000,
No. 92-2843; 2002, No. 41-1527), Paragraph 2 of Article 2 and
Paragraph 1 of Article 3 of the Republic of Lithuania Law on
Administrative Supervision of Municipalities (Official Gazette
Valstybės žinios, 1998, No. 51-1392; 2002, No. 127-5748), Item 6
of Paragraph 3 of Article 9 and Item 3 of Paragraph 2 of Article
10 of the Republic of Lithuania Law on State Service (Official
Gazette Valstybės žinios, 1999, No. 66-2130; 2002, No. 45-1708;
2003, No. 17-705, No. 112-4993), and Paragraph 9 of Article 9 of
the Republic of Lithuania Law on Prevention of Corruption
(Official Gazette Valstybės žinios, 2002, No. 57-2297), the
Government of the Republic of Lithuania resolves:
1. Not to appoint Paulius Uleckas to the position of the
Government representative for the Marijampolė County.
2. To empower the Minister of the Interior Virgilijus
Bulovas to select, under procedure established in legal acts, an
applicant to the position of the Government representative for
the Marijampolė County, and to submit a draft resolution to the
Government of the Republic of Lithuania concerning his
appointment".
4. Summing up (inter alia taking account of the fact that
in the preamble to the disputed Government resolution there is a
reference to Paragraph 9 of Article 9 of the Law on Prevention of
Corruption (in which it is established that "the information
provided shall be one of the grounds for judging about the
credibility of a person seeking or holding a position at a state
or municipal institution" and that "the person who has lost
credibility may be refused appointment at a state or municipal
institution or may be dismissed from office in accordance with
the procedure set out in the Law on the State Service and other
laws")) it needs to be held that the official legal ground for
not appointing P. Uleckas to the office of the Government
representative for the Marijampolė County was the fact that the
Government assessed the information regarding P. Uleckas'
activity when he was heading the administration of the
Marijampolė Municipality which was received from the SIS as
permitting to state that P. Uleckas lost his credibility.
5. It needs also to be mentioned that even though the
disputed Government resolution was formalized as of the date of
27 February 2004, the sitting of the Government, during which
this Government resolution was adopted, took place on 25 February
2004.
Under Article 95 of the Constitution, the Government
resolutions shall be adopted at its sittings by majority vote of
all the members of the Government (Paragraph 1), they shall be
signed by the Prime Minister and the Minister of a corresponding
branch (Paragraph 2). The Constitution does not expressis verbis
establish the time period within which the adopted Government
resolution must be signed and officially published. The time
period in which the resolution adopted by the Government must be
signed and officially published must be established by the law
(Constitutional Court ruling of 27 June 2007).
Such practice of publishing of Government resolutions or
legal acts of other collegial lawmaking subjects when the legal
act is formalized (published) nor as of the date of the sitting
of the Government or other collegial lawmaking subject during
which it was adopted, but as of any other later date (for
example, of signing) is deficient.
However, the relation of the Work Regulations of the
Government of the Republic of Lithuania (with subsequent
amendments) confirmed by Government Resolution No. 728 "On the
Confirmation of the Work Regulations of the Government of the
Republic of Lithuania" of 11 August 1994, on which such lawmaking
practice was groundedformalization of the Government resolution
as of the date of its signingat the moment when disputed
Government Resolution No. 222 of 27 February 2004 was adopted
with the Constitution is not a matter of investigation in the
constitutional justice case at issue.
In this context, it needs also to be mentioned that the
legal grounds of such practice was abolished when on 15 January
2007, the Government adopted Resolution No. 34 "On Amending
Government of the Republic of Lithuania Resolution No. 728 'On
the Confirmation of the Work Regulations of the Government of the
Republic of Lithuania' of 11 August 1994" and established (as
from 1 February 2007) that the date of the sitting during which
the Government resolution was adopted shall be specified in the
Government resolution (Item 91 (wording of 15 January 2007) of
the Work Regulations of the Government).
However, the fact that in the legal act of the Government
or other collegial lawmaking subject, not the date of the sitting
during which this legal act was adopted, but a later date (for
example, of signing) is specified, in itself does not mean that
only on this ground one may question the compliance of this legal
act with the Constitution as to its content.
II
1. The Vilnius Regional Administrative Court, the
petitioner, requests to investigate whether Government Resolution
No. 222 of 27 February 2004 is not in conflict with Paragraph 1
of Article 29, Paragraph 1 of Article 33 and Item 2 of Article 94
of the Constitution, with the constitutional principle of a state
under the rule of law which, according to the petitioner, is
enshrined in the Preamble to the Constitution, with Article 3
(wording of 10 December 2002) of the Law on Administrative
Supervision of Municipalities, with Paragraph 3 (wording of 3
April 2003) of Article 9 (wording of 4 July 2003), Item 3 of
Paragraph 2 (wording of 11 November 2003) of Article 10 (wording
of 18 December 2003) and Article 13 (wording of 23 April 2002) of
the Law on State Service.
2. It is obvious from the arguments of the petition of
the petitioner that the petitioner doubted whether the disputed
Government resolution is not in conflict:
- with not entire Article 3 (wording of 10 December 2002)
of the Law on Administrative Supervision of Municipalities, but
only with Paragraph 1 of this article (wording of 10 December
2002), in which it is established that "the Government
representative is a state servanthead of institutionand he
shall be appointed to office for four years and dismissed from
office under the procedure established in the Law on State
Service. Along with this Law, also the Law on State Service shall
establish the legal status of the Government representative", and
with Paragraph 3 of the same article, in which it is established
that "a person, who has a higher university education or an
education likened to it and not less than five years of work
experience in the field of public administration or who has
higher university education in the field of public administration
and not less than three years of work experience in the field of
public administration may be appointed as the Government
representative";
-with not entire Paragraph 3 (wording of 3 April 2003) of
Article 9 (wording of 4 July 2003) of the Law on State Service,
but only with the provision of Paragraph 3 (wording of 3 April
2003) of this article that "a person may not be admitted to the
office of the state servant in the following cases: <
> (6) in
the cases specified in other laws" i.e. with Item 6 (wording of
23 April 2003) of this paragraph (wording of 3 April 2003);
- with the provision that "the Government shall admit <
>
(3) the Government representative, county chief and deputy county
chief to the positions of the heads of institutions" of Paragraph
2 (wording of 11 November 2003) of Article 10 (wording of 18
December 2003) of the Law on State Service, i.e. with Item 3 of
the said paragraph (wording of 11 November 2003);
- with not entire Article 13 (wording of 23 June 2002) of
the Law on State Service, but only with Paragraph 2 of this
article (wording of 23 April 2002), in which it is established
that "a person, who is admitted to the position of the head of
institution by way of competition, shall be examined in writing
(test) and orally (conversation)" and that "during the
conversation, a person's abilities to perform the functions
established in the description of the position of the state
servant shall be verified."
3. It was mentioned that the Vilnius Regional
Administrative Court, the petitioner, requests to investigate
whether the disputed Government resolution is not inter alia in
conflict with the principle of a state under the rule of law
which, according to the petitioner, is enshrined in the Preamble
to the Constitution.
The Constitutional Court has held in its acts more than
once that the constitutional principle of a state under the rule
of law may not be construed as the one which is entrenched only
in the Preamble to the Constitution, nor may it be identified
only with the declared therein striving for an open, just, and
harmonious civil society and state under the rule of law; that
the constitutional principle of a state under the rule of law
integrates various values enshrined in, and protected and
defended by the Constitution, including those which are expressed
by the aforementioned striving. In the acts of the Constitutional
Court, it has been also more than once held that the
investigation of the compliance of legal acts (parts thereof)
with the enshrined in the Preamble to the Constitution striving
for an open, just, and harmonious civil society and state under
the rule of law implies the investigation of their compliance
with the constitutional principle of a state under the rule of
law.
III
1. According to the Vilnius Regional Administrative
Court, the petitioner, the disputed Government resolution was
adopted while applying the Law on Prevention of Corruption
(namely Paragraph 9 of Article 9 thereof), following which, it is
not possible to complete the procedure of the competition and not
to admit the person who won this competition to the position, as
this law (Paragraph 9 of Article 9 thereof) is not a legal act
which regulates the legal relations of the state service (i.e. is
not a special legal act); thus, according to the Vilnius Regional
Administrative Court, the petitioner, it was not possible not to
appoint P. Uleckas to the position of the Government
representative for the Marijampolė County while following
Paragraph 9 of Article 9 of the Law on Prevention of Corruption.
2. In the petition of the Vilnius Regional Administrative
Court, the petitioner, it is inter alia noted that the parties to
the administrative case in which it was decided to apply to the
Constitutional Court considered by this court did not dispute on
the common and special requirements raised before the persons who
are admitted to the positions of the state servants. The Vilnius
Regional Administrative Court, while considering the
administrative case subsequent to the complaint of P. Uleckas,
did not verify the information received from the SIS regarding
the activity of P. Uleckas while he was heading the
administration of the Marijampolė Municipality, upon receiving
which the Government decided not to appoint him to the position
of the Government representative for the Marijampolė County, nor
did it establish and investigate the factual circumstances which
would allow to assess the truth and credibility of the said
information, the lawfulness of the procedure of its collection,
etc. Thus, the Vilnius Regional Administrative Court, while
considering the administrative case subsequent to the complaint
of P. Uleckas, neither expressis verbis denied, nor expressis
verbis confirmed the said information and it did not formulate
any direct position regarding this information.
3. In the opinion of the petitioner, this Government
resolution is in conflict with the Constitution (and with the
articles (paragraphs thereof) of the laws specified by the
petitioner) namely because of the fact that the procedure of
adoption of such Government resolutions was violated: if,
purportedly, one had followed the laws (and the Procedure for
Admission into the Position of a State Servant approved by
Government Resolution No. 966 "On the Confirmation of the
Procedure for Admission into the Position of a State Servant" of
24 June 2002), it would not have been possible to adopt such
Government resolution.
4. It needs to be held that the doubt of the Vilnius
Regional Administrative Court, the petitioner, regarding the
compliance of the disputed Government resolution with the
Constitution and with the articles (paragraphs thereof) specified
by it is based exceptionally on the fact that, in the opinion of
the petitioner, when P. Uleckas won the competition for the
position of the Government representative for the Marijampolė
County, the Government, while deciding on appointing the said
person to the said office, could not apply to him the Law on
Prevention of Corruption, namely Paragraph 9 of Article 9
thereof, under which, a person, who lost his credibility, may be
not admitted to state service.
It needs to be emphasized that the Vilnius Regional
Administrative Court, the petitioner, does not dispute the
compliance of Government Resolution No. 222 of 27 February 2004
with the Constitution and laws in any other aspects, inter alia
in the aspect whether while not appointing P. Uleckas to the
position of the Government representative for the Marijampolė
County subsequent to Paragraph 9 of Article 9 of the Law on
Prevention of Corruption, he was reasonably considered as having
lost his credibility.
It needs also to be mentioned that the Vilnius Regional
Administrative Court, the petitioner, does not raise the question
of the compliance of the legal acts which regulate the grounds
and/or the procedure of verification of credibility of the person
who seeks to hold the office with the Constitution (the
compliance of the substatutory legal actsalso with the laws)
too.
5. Such position of the Vilnius Regional Administrative
Court, the petitioner, is to be considered as the doubt whether
Government Resolution No. 222 of 27 February 2004 is not in
conflict with the Constitution and the specified articles
(paragraphs thereof) to the extent that in the preamble of this
Government resolution a reference is made to Paragraph 9 of
Article 9 of the Law on Corruption, namely the provision
"Pursuant to <
> Paragraph 9 of Article 9 of the Republic of
Lithuania Law on Prevention of Corruption (Official Gazette
Valstybės žinios, 2002, No. 57-2297)".
6. On the other hand, it is obvious from the said
provision of the preamble to the disputed Government resolution
what was the official legal ground for not appointing P. Uleckas
to the position of the Government representative for the
Marijampolė County, and to empower the Minister of the Interior
Virgilijus Bulovas to select, under procedure established in
legal acts, an applicant to the position of the Government
representative for the Marijampolė County, and to submit a draft
resolution to the Government concerning his appointment.
Thus, the investigation of the constitutionality of the
provision "Pursuant to <
> Paragraph 9 of Article 9 of the
Republic of Lithuania Law on Prevention of Corruption (Official
Gazette Valstybės žinios, 2002, No. 57-2297)" of the Preamble to
disputed Government Resolution No. 222 of 27 February 2004 in the
aspect specified by the Vilnius Regional Administrative Court,
the petitioner, and recognizing it as unconstitutional would also
imply the recognition of the whole said Government resolution as
being in conflict with the Constitution.
7. Under the Constitution, the Government of the Republic
of Lithuania shall resolve the affairs of state governance at its
sittings by adopting resolutions by majority vote of all the
members of the Government (Paragraph 1 of Article 95 of the
Constitution); the Government resolutions shall be signed by the
Prime Minister and the Minister of a corresponding branch
(Paragraph 2 of Article 95 of the Constitution).
These provisions of the Constitution are to be construed
in the context of other provisions of the Constitution, inter
alia Article 94 of the Constitution and the constitutional
principle of a state under the rule of law.
7.1. Under Item 2 of Article 94 of the Constitution, the
Government shall execute laws (as well as resolutions of the
Seimas on the implementation of the laws as well as the decrees
of the President of the Republic).
Taking account of the fact that the Government shall
execute laws, resolutions of the Seimas on the implementation of
the laws as well as the decrees of the President of the Republic,
it must follow the procedure for drafting, assessment,
coordination, consideration of Government resolutions and voting
on them which is established by laws.
7.1.1. While executing laws (as well as resolutions of
the Seimas concerning the implementation of laws, decrees of the
President of the Republic), the Government issues substatutory
legal actsresolutions. The Constitutional Court has held that
under the Constitution, all questions of state administration
which are attributed to the powers of the Government by the
Constitution and laws, are decided by adoption of resolutions,
that the affairs of state administration may not be decided by
the Government adopting an act of a different type
(Constitutional Court rulings of 29 November 2001, 30 May 2003
and 3 December 2003).
In this context, it needs to be noted that Article 94 of
the Constitution, under Item 2 of which the Government shall
execute laws (as well as resolutions of the Seimas on the
implementation of the laws as well as the decrees of the
President of the Republic), is set forth not in Chapter I or
Chapter XIV of the Constitution for the provisions of which a
particularly big constitutional protection has been established
and the provisions of which, under Paragraph 2 of Article 148 of
the Constitution, may be altered only by referendum, but in
Chapter VII.
The provision of the official constitutional doctrine
that the Government, while resolving the affairs of state
governance, must always adopt resolutions was formulated in the
Constitutional Court jurisprudence, inter alia the constitutional
justice cases in which it was investigated whether the legal acts
(paragraphs thereof) which had been issued yet before 14 August
2004, when the Republic of Lithuania Constitutional Act "On the
Membership of the Republic of Lithuania in the European Union"
which was adopted on 13 July 2004 came into force, whereby the
membership of the Republic of Lithuania in the European Union was
approved in a constitutional manner (Constitutional Court rulings
of 13 December 2004, 14 March 2006 and 27 June 2007) and which,
according to Article 150 of the Constitution, is a constituent
part of the Constitution, were not in conflict with the
Constitution. Upon coming into force of the Constitutional Act
"On the Membership of the Republic of Lithuania in the European
Union", the formerly formulated official constitutional doctrine
of the Government acts is developed in the Constitutional Court
jurisprudence while taking account of the fact that Paragraph 4
of this Constitutional Act established that the Government shall
consider the proposals to adopt the acts of European Union law
following the procedure established by legal acts. As regards
these proposals, the Government may adopt decisions or
resolutions for the adoption of which the provisions of Article
95 of the Constitution are not applicable. Thus, the provisions
of the official constitutional doctrine that the Government,
while resolving the affairs of state governance, must always
adopt resolutions is not applicable to the Government resolutions
and decisions which are adopted pursuant to Paragraph 4 of the
Constitutional Act "On the Membership of the Republic of
Lithuania in the European Union" (Constitutional Court ruling of
27 June 2007).
In the context of the constitutional justice case at
issue, one is to note that this reservation may not be applied to
disputed Government Resolution No. 222 of 27 February 2004.
7.1.2. The provision of Item 2 of Article 94 of the
Constitution that the Government shall execute laws is to be
construed inter alia in the context of the constitutional
principle of a state under the rule of law. This principle must
be followed both in law-making and in implementation of law
(Constitutional Court rulings of 6 December 2000 and 16 January
2006). The essence of the constitutional principle of a state
under the rule of law is the rule of law. The constitutional
imperative of the rule of law means that the freedom of power is
limited by law which must be obeyed by all entities of legal
relations, without excluding the lawmaking subjects
(Constitutional Court rulings of 13 December 2004, 29 December
2004, 8 July 2005 and 16 January 2006). The Constitutional Court
held in its acts (inter alia rulings of 30 December 2003, 5 March
2004, 13 December 2004, 7 February 2005 and 5 May 2007) more than
once that the principle of a state under the rule of law
entrenched in the Constitution implies the hierarchy of legal
acts as well, inter alia the fact that substatutory legal acts
may not be in conflict with laws, constitutional laws and the
Constitution, that substatutory legal acts must be adopted on the
basis of laws, that a substatutory legal act is an act of
application of norms of the law, irrespective of whether the act
is of one-time (ad hoc) application, or permanent validity. The
Constitutional Court also held that in certain casesdirectly
provided for in the Constitutionif the corresponding relations
are not regulated by the laws (which detail and concretize the
constitutional legal regulation), the substatutory legal acts,
whereby the institutions implement their particular powers,
expressis verbis established and clearly defined in the
Constitution, must be issued while directly invoking the
Constitution (Constitutional Court ruling of 5 May 2007).
7.1.3. While construing Item 2 of Article 94 of the
Constitution, the Constitutional Court has held more than once
that under the Constitution, the Government, while adopting legal
acts, must follow the valid laws and, while enforcing certain
laws, it may not violate other laws; the legal acts adopted by
the Government, which are substatutory legal acts, may not
contain any legal regulation competing with that established in
laws.
7.1.4. In the context of the constitutional justice case
at issue, it needs to be noted that, as the Constitutional Court
has already held, the duty of the Government to adopt
substatutory acts which are necessary so as to implement laws
stems directly from the Constitution, while in case of a
commissioning by the Seimas to do so, it also stems from the laws
and Seimas resolutions concerning implementation of laws
(Constitutional Court rulings of 30 October 2001, 18 December
2001, 5 March 2004 and 31 May 2006). However, in its substatutory
legal acts the Government does not have to make reference to
particular laws, Seimas resolutions or decrees of the President
of the Republic, which are being followed by the Government when
it adopts a corresponding substatutory legal act; it is important
that the Government adopt substatutory legal acts without
exceeding its powers, and that these substatutory legal acts be
in conformity with the Constitution and laws (Constitutional
Court rulings of 18 December 2001, 5 March 2004 and 31 May 2006).
7.1.5. In this context, it needs to be mentioned that as
the Constitutional Court held in its ruling of 23 May 2007,
should the Government fail to observe laws, the constitutional
principle of a state under the rule of law, which implies the
hierarchy of legal acts, as well as Item 2 of Article 94 of the
Constitution whereby the Government inter alia shall execute
laws, would be denied.
It needs to be emphasized that the jurisprudence of the
Constitutional Court has always been grounded on the principled
position that the fact that a Government resolution, under the
procedure of its adoption, is in conflict with the articles
(paragraphs thereof) of the law which establish the requirements
for the adoption of such Government resolutions, implies that
this Government resolution is also in conflict with Item 2 of
Article 94 of the Constitution; such Government resolution may
also be in conflict with other provisions of the Constitution
norms and principles (inter alia with the constitutional
principle of separation of powers (Constitutional Court ruling of
31 May 2006)). Thus, it was held in the Constitutional Court
ruling of 28 June 2001 that "having held that the disputed
Government resolution, according to the procedure of its
enactment, conflicts with Article 7 and Paragraph 3 of Article 13
of the Law on the Territorial Administrative Units of the
Republic of Lithuania and their Boundaries (wording of 4 May
1999), one is to conclude that it is also in conflict with Item 2
of Article 94, Paragraph 1 of Article 33, and Paragraph 2 of
Article 120 of the Constitution".
In addition, in the jurisprudence of the Constitutional
Court the principled position is followed that if the legal
regulation established in the Government resolutions competed
with the legal regulation established in the laws or were not
grounded on the laws, not only the constitutional principle of a
state under the rule of law and Item 2 of Article 94 of the
Constitution would be violated but also Paragraph 2 of Article 5
of the Constitution, in which it is established that the scope of
power shall be limited by the Constitution; the constitutional
principle of separation of powers could also be violated
(Constitutional Court ruling of 31 May 2006).
7.2. Under the Constitution, the Government is bound also
by the resolutions that it itself adopted; the Government must
follow the requirements set therein until the Government
resolution is amended or annulled (Constitutional Court rulings
of 28 June 2001, 30 October 2001, 8 July 2005 and 23 May 2007).
When issuing legal acts, one must pay heed to procedural law-
making requirements, including those established by the law-
making entity itself (Constitutional Court ruling of 13 December
2004). Failing to heed the resolutions adopted by itself would
mean that the Government deviated from the constitutional
imperative of the rule of law, thus, also that when a
corresponding Government resolution was issued, the
constitutional principle of a state under the rule of law and
Paragraph 2 of Article 5 of the Constitution in which it is
established that the scope of power shall be limited by the
Constitution, were violated.
8. While deciding subsequent to the petition of the
Vilnius Regional Administrative Court, the petitioner, whether
Government resolution No. 222 of 27 February 2004 is not in
conflict with the Constitution and the articles (paragraphs
thereof) of the laws specified by it:
- one should first of all elucidate whether when P.
Uleckas won the competition for the position of the Government
representative for the Marijampolė County, the Government, while
deciding on appointing the said person to the said position, had
the powers, under the Constitution and laws, to verify his
credibility (inter alia by asking for information from the SIS)
and when it decided that P. Uleckas had lost his credibility,
whether it could apply Paragraph 9 of Article 9 of the Law on
Prevention of Corruption, under which, a person, who lost his
credibility may be not admitted to state service;
- if it were held that the Government had the said
powers, one must elucidate, whether while verifying the
credibility of P. Uleckas, the procedure of verification of the
credibility of a person, who seeks to hold the office in a state
or municipal institution established by law was not violated,
whether one followed the requirements of the proper legal process
which stem from the Constitution.
9. It was said that the Vilnius Regional Administrative
Court, the petitioner, does not dispute the compliance of
Government Resolution No. 222 of 27 February 2004 with the
Constitution and laws, inter alia in the aspect whether while not
appointing P. Uleckas to the position of the Government
representative for the Marijampolė County subsequent to Paragraph
9 of Article 9 of the Law on Prevention of Corruption, he was
reasonably considered as having lost his credibility.
It has been held in this Constitutional Court ruling that
the Vilnius Regional Administrative Court, while considering the
administrative case subsequent to the complaint of P. Uleckas,
did not verify the information received from the SIS regarding
the activity of P. Uleckas while he was heading the
administration of the Marijampolė Municipality, upon receiving
which the Government decided not to appoint him to the position
of the Government representative for the Marijampolė County, nor
did it establish and investigate the factual circumstances which
would allow to assess the truth and credibility of the said
information, the lawfulness of the procedure of its collection,
etc., this court neither expressis verbis denied, nor expressis
verbis approved the said information and it did not formulate any
direct position regarding this information.
It needs to be noted that it is a matter of competence of
the court which considers an administrative case to assess,
whether the information received from the SIS by the Government
regarding the activity of P. Uleckas when he was heading the
administration of the Marijampolė Municipality which was assessed
as permitting to state that P. Uleckas lost his credibility and
which was the official legal ground for deciding not to appoint
P. Uleckas to the position of the Government representative for
the Marijampolė County, is truthful and credible and if it is
sufficient in order to reasonably state that P. Uleckas lost his
credibility.
This will not be investigated in this constitutional
justice case.
IV
1. Disputed Government Resolution No. 222 of 27 February
2004 is an act of application of law which regulated individual
relations: it was decided that P. Uleckas shall not be appointed
to the position of the Government representative for the
Marijampolė County and the Minister of the Interior Virgilijus
Bulovas shall be empowered to select, under the procedure
established in legal acts, an applicant to the position of the
Representative of the Government for the Marijampolė County, and
to submit a draft resolution to the Government concerning his
appointment.
These individual legal relations are relations of the
state service, namely the relations linked to entering the state
service (in the considered casethe position of the Government
representative for the Marijampolė County) and to non-appointing
the person who won the competition to the corresponding position.
2. The constitutional concept of the state service may be
revealed only on the basis of the provisions of the Constitution
itself, their content and systemic links between them; the
constitutional concept of the state service may not be construed
according to the way the state service relations are regulated by
laws and substatutory acts; it is the function of the
constitutional jurisprudence and the official constitutional
doctrine formulated therein to reveal the content of the
constitutional concept of the state service; on the other hand,
the legislator enjoys broad discretion to choose and consolidate
in laws a certain model of organisation of state service;
however, while regulating the relations of state service, the
legislator is bound by the constitutional concept of state
service and that he must pay heed to the norms and principles of
the Constitution; according to their competence, other law-making
subjects must pay heed to the constitutional concept of state
service while regulating the relations of state service
(Constitutional Court rulings of 13 December 2004 and 20 March
2007).
Relations of the state service (in the broadest sense)
comprise relations linked with the implementation of the right of
the citizen to enter into the state service of the Republic of
Lithuania under equal conditions, as well as relations, which
arise when the citizen enters into the state service and while he
performs his duties at the state service; some other relations,
which arise when the person finishes performing his duties at the
state service (for example, relations linked with certain
restrictions of professional activity for former state servants,
with pensions granted and paid to former state servants), are
also closely linked with the relations of the state service
(Constitutional Court ruling of 13 December 2004).
3. In its acts, the Constitutional Court has formulated a
broad official constitutional doctrine of state service.
In the context of the constitutional justice case at
issue, in which, subsequent to the petition of the Vilnius
Regional Administrative Court, the petitioner, it is investigated
whether the legal act of the Government, whereby it was decided
that a person who won the competition shall not be appointed to
the position of the Government representative for the Marijampolė
County, is not in conflict with the Constitution and with the
laws (paragraphs thereof) specified by the petitioner, the
following provisions of the official constitutional doctrine of
state service formulated inter alia in the Constitutional Court
rulings of 4 March 1999 and 13 December 2004, in which the
constitutional concept of the state service is construed relating
it with other provisions of the Constitution, are to be noted:
- the state service is a professional activity of the
state servants who comprise a corps of state servants related to
guaranteeing of the public interest; professional state servants
adopt decisions while performing public administration and/or
providing public services (or participate in drafting and
executing these decisions, coordinating and/or controlling the
implementation thereof, etc.), however, they do not exercise
functions while implementing state power; state servants are a
special social group whose particularity is determined by the
purpose of the state service and public significance;
- laws and other legal acts must establish such legal
status of state servants, which would be in line with the
constitutional concept of the state service as a special
remunerated from state (municipal) budgetsystem of professional
activity when adopting decisions in the area of exercising public
administration and/or providing public services (or participation
in drafting and executing such decisions, coordinating and/or
controlling the execution thereof, etc.), which inter alia
implies internal mobility of the state service as a system,
transferability of personal knowledge, skills and experience, and
continuity of such an activity while performing state functions
and guaranteeing the public interest as well;
- the fact that the purpose of the state service is to
guarantee, when state and municipal institutions exercise public
administration and provide public service, the public interest
rather than private interests of the employees engaged in this
activity, presupposes a special procedure of forming the state
servants as a corps, the specifics of their legal status, and
their special responsibility to the society for implementation of
functions commissioned to them as well;
- one of the elements of the constitutional concept of
the state service, and, by the same, one of the requirements
which must be observed when organising the state service and
regulating the relations of the state service is uniformity of
the system of the state service; however, taking account of the
variety of state functions which are implemented through
respective institutions, the uniformity of the system of the
state service does not deny a possibility to regulate certain
relations of the state service in a differentiated manner;
- the chosen model of the system of the state service, as
well as the bases of organisation and functioning, is to be
established by the law;
- under the Constitution, the state service is service to
the State of Lithuania and the civil Nation, therefore the state
service should be loyal to the State of Lithuania and its
constitutional order; it must be organised so that only the
people who are loyal to the State of Lithuania and its
constitutional order adopt decisions while exercising public
administration and providing public service (or participate in
drafting and executing these decisions, coordinating and/or
controlling executing thereof, etc.) at state or municipal
institutions; the Constitution does not tolerate the situations
where any link of the system of the state service, any state or
municipal institution or individual state servants act contrary
to the interests of the State of Lithuania or violate the
constitutional order of the State of Lithuania; only the persons
who are loyal to that state and whose loyalty to that state and
credibility do not raise any doubts may work in the state
institutions;
- the constitutional imperative of loyalty of the state
service to the State of Lithuania raises special requirements;
state servants not only must not violate the Constitution and
laws themselves, but also bear the duty to take all the necessary
positive actions when protecting the constitutional order of the
State of Lithuania;
- the state service must act in conformity only with the
Constitution and law; every state or municipal institution
through which state functions are exercised, every state servant
must pay heed to the requirements of lawfulness; state servants
must not abuse the powers established for them and not violate
the requirements of legal acts; under the Constitution, the
legislator has a duty to regulate the relations of the state
service, and the system of the state service should function so
that not only the liability is established for violations
committed while in the state service, but that the persons who
committed violations while in the state service would also in
reality be brought to justice;
- the public interest and not the private interest must
dominate in the state service; in the state service the conflict
between public and private interests must be avoided and no
conditions for appearance of such conflicts should be created;
the opportunities provided by the state service should not be
used for private benefit; when ensuring the public interest, it
is essential to avoid unreasonable and unlawful impact by the
interest groups, and, even more important, pressure on state
servants, who adopt decisions while exercising public
administration and providing public services (or participate in
drafting and executing these decisions, coordinating and/or
controlling the implementation thereof, etc.); under the
Constitution, the legislator has a duty to establish by legal
acts such legal regulation that no legal conditions would be
created for state officials, who perform their functions while
exercising state power, and all the persons, who make decisions
important to the society and the state, to act in the private
interests of a group, instead of the interests of the Nation and
the State of Lithuania, and use their status for the benefit of
their own, their close relatives or other persons;
- the necessity to perform public administration and to
provide public services constantly and efficiently while ensuring
the public interest, the concept of the state service as a
professional activity and the requirement of efficiency of the
state service result in the requirement for qualification; the
state service must be qualified, it must be able to fulfil the
tasks commissioned to it; this fact implies quite high (higher
than the requirements for other employees) requirements of
qualification and professional skills for state servants,
especially the officials (first of all for those, who make
single-person decisions), as well as the necessity to ensure for
these persons, while in service, an opportunity to constantly
improve their professional competence;
- the constitutional requirements for the state service
as a system, in their turn, imply certain constitutionally
reasonable requirements for the persons who seek to exercise
their constitutional right to enter into the state service of the
Republic of Lithuania under equal conditions or who have already
exercised this constitutional right of their own, i.e. who have
already become state servants; the constitutionally reasonable
and necessary guarantees to the persons who enter into the state
service of the Republic of Lithuania and guarantees to the state
servants are respectively linked with the said constitutional
requirements;
- it is the constitutional right of the citizen to enter
into the state service of the Republic of Lithuania under equal
conditions; to the extent that the relations of the state service
are linked with human rights and freedoms, they must be regulated
by laws; the procedural relations of the state service (as well
as those related to it) may be regulated by substatutory acts,
however, this must be done so that there would be no competition
with the legal regulation established by the law;
- the provision "Citizens shall have the right to <...>
enter into the State service of the Republic of Lithuania under
equal conditions" of Paragraph 1 of Article 33 of the
Constitution is linked both as lex specialis and lex generalis
with the provision "each human being may freely choose a job and
business" of Paragraph 1 of Article 48 of the Constitution; under
the Constitution, the person who seeks to implement his
constitutional right to work, has the right to decide freely,
whether to choose a work in private sector or a private business,
or to seek to become admitted to the state service;
- the constitutional right of the citizen to enter into
the state service of the Republic of Lithuania under equal
conditions, as a version of the constitutional right of each
person to freely choose a job, especially upon considering the
provision "under equal conditions" of Paragraph 1 of Article 33
of the Constitution, is to be linked with the constitutional
principle of equality of persons (equality of persons before the
law, the court and other state institutions and officials); the
citizens who seek to become admitted to the state service may not
be discriminated, nor they may be granted privileges on the
grounds expressis verbis specified in Paragraph 2 of Article 29
of the Constitution or any other constitutionally unjustifiable
grounds; the constitutional imperative of equal conditions when
entering the state service implies the competition between those
who enter it, as well as objective, impartial assessment and
selection of those who enter into the state service;
- while creating the legal preconditions for
implementation of the right to freely choose a job or business,
the legislator is empowered, while taking account of the nature
of a job, to establish the conditions of implementation of the
right to freely choose a job; while doing this, he must observe
the Constitution; implementing its obligation to ensure national
security and proper guidance of young people, to secure
education, credible financial system, protection of state secrets
etc., the state is entitled to establish additional, special
requirements for those who wish to work in the main areas of
economy and business; requirements for professional competence
are not in conflict with the human right to freely choose a job
or business, either;
- certain common requirementsthe general conditions of
entering the state servicemay and must be set for the citizen
who enters into the state service, and the person who fails to
meet them will not be able to become a state servant; it is to be
stressed that the said requirements must be clear and common to
all those who seek to hold a respective position at the state
service, and they must be known in advance to the one who enters
into the state service; they must be set by the law; the
following common requirementsthe general conditions of entering
into the state serviceare to be mentioned: loyalty to the State
of Lithuania and its constitutional order, knowledge of the
Constitution and bases of the legal system (including the
catalogue of human rights and freedoms), good knowledge of the
state language, absence of the conflict between the position
which is being sough to hold, and private interests (or removal
of such conflict before the persons starts holding the position
that has been sought), etc.; moreover, common requirements linked
with personal characteristics of the person entering to the state
service, his reputation, education, etc. may be established; the
constitutionally reasonable general conditions preventing the
person from entering into the state service may also be provided
for;
- the special requirements for the persons striving for
particular duties at the state service or a concrete state or
municipal institutionspecial conditions to those who strive for
certain duties at the state servicemay be established by legal
acts; these special conditions of entering into the state service
may be differentiated according to the content of respective
duties at the state service; when setting the said conditions,
one must observe the Constitution; these conditions should also
be clear and common to everybody who seeks to be admitted to a
respective position at the state service, and they must be known
in advance to the ones who enter into the state service; the
following requirementsthe special conditions of entering into
the state serviceas professional competence, experience,
knowledge of languages, special knowledge and skills, etc., as
well as the requirements linked with the reputation of the person
who enters into the state service, his personal characteristics
and others, are to be mentioned; when admitting one to a certain
position, a great variety of special conditions may be provided
for, for example, the ones linked with the health of the person,
his physical abilities, relations with other persons, etc.; it is
to be emphasized that all the established special requirements of
entering into the state service must be constitutionally
reasonable;
- the right of the citizen to enter into the state
service of the Republic of Lithuania under equal conditions which
is established in Paragraph 1 of Article 33 of the Constitution
is not absolute; the state cannot oblige itself and it does not
oblige itself to accept each person to work in the state service;
the higher the position, the more important the sphere of
activity, the bigger the requirements are raised for the persons
who hold these positions.
4. These provisions of the constitutional doctrine imply
that the legislator not only may but also must establish such
legal regulation which would permit to verify credibilityloyalty
to the State of Lithuania, reputation, etc. of those persons who
seek to hold a position in the state service. The credibility of
the applicants to the positions at the state service must be
verified yet before they start holding office; when the state
servants are in office, their credibility may also be verified if
there appear reasonable doubts.
It needs to be emphasized that such verification of the
credibility of persons must be regulated by strictly following
the norms and principles of the Constitution; inter alia one must
follow the constitutional principle of a state under the rule of
law which implies, among other things, proper legal process.
The basis of the implementation of the said verification
of the credibility of the person who seeks to hold a position or
holds a position in the state or municipal institution must be
established by the law; the substatutory legal acts may establish
the procedure of implementation of such verification.
5. It is to be particularly emphasized that the legal
regulation of the relations of verification of the credibility of
these persons (a person, who seeks to hold a position in the
state service and a person, who already holds such position) must
be such that there would be no preconditions created for
artificial cavils due to which a person would not be accepted to
the state service and a person, who holds a position in the state
service, would have to retire, i.e. such that minor, coincidental
and similar facts and circumstances would not become the basis
for non-credibility of the person who seeks to hold a position or
who holds a position in a state or municipal institution, let
alone the fact that the credibility of the person would not be
stated only by referring only to presumptions.
6. It was mentioned that under the Constitution, the
state cannot oblige itself and it does not oblige itself to
accept each person to work in the state service.
Thus, if there is reasonably stated non-credibility of a
person, who seeks for a certain position in the state service,
such person may not be accepted to the corresponding position.
7. All the said is to be applied also to the persons who
seek to hold the position of the Government representative.
7.1. The duties of the Government representative are
expressis verbis enshrined in the Constitution. Paragraph 2 of
Article 123 of the Constitution establishes that the observance
of the Constitution and the laws as well as the execution of
decisions of the Government by municipalities shall be supervised
by the representatives appointed by the Government, and Paragraph
3 of this articlethat the powers of the Government
representative and the procedure of their execution shall be
established by law. The Constitutional Court held that under
Article 123 of the Constitution, the Government representative is
the subject exercising local government supervision acts in the
name of the Government and subordinate to it (Constitutional
Court ruling of 18 February 1998). Establishment of the powers of
the Government representative is left for the legislator (of
course, by paying heed to the Constitution, inter alia the
purpose of the constitutional institute of Government
representatives and the functions of Government representatives
which are entrenched in the Constitution); in this area the
legislator enjoys broad discretion, it may establish very varied
powers of the Government representative (Constitutional Court
ruling of 14 April 2006).
7.2. The legislator who enjoys broad discretion to
regulate the status and powers of the Government representative
also enjoys discretion to establish the common and special
requirements for the persons who seek this position.
7.3. However, it needs to be emphasized that the
legislator not only may but also must establish such legal
regulation which would permit to verify credibility, i.e. loyalty
to the State of Lithuania, reputation, etc., of those persons who
seek to hold a position in the state service. It is obvious that
if there is reasonably stated non-credibility of a person, who
applies to the position of the Government representative, such
person may not be appointed to this position.
In this context, it needs to be noted that the
jurisprudence of the Constitutional Court has always been based
on the principled position that the Government representative
must have the confidence of the Government; if the Government
representative loses the confidence of the Government, he may be
dismissed from office (Constitutional Court ruling of 14 April
2006).
V
1. At the time when disputed Government Resolution No.
222 "On the Candidate to the Government Representatives" of 27
February 2004 was adopted, the procedure of acceptance to the
position of the Government representative (head of institution)
was regulated by the following:
- Article 22 (wording of 16 April 2002) (Item 14 thereof
(wording of 10 October 2000)) of the Law on the Government;
- Paragraph 2 of Article 2 (wording of 10 December 2002)
and Paragraphs 1 and 3 of Article 3 (wording of 10 December 2002)
of the Law on Administrative Supervision of Municipalities;
- Paragraph 1 (wording of 23 April 2002), Paragraph 3
(wording of 3 April 2003) and Paragraph 5 (wording of 4 July
2003) of Article 9 (wording of 4 July 2003), Paragraph 2 (wording
of 11 November 2003) (Item 3 thereof) of Article 10 (wording of
18 December 2003) and Articles 11 and 13 (wording of 23 April
2002) of the Law on State Service;
- the Procedure for Admission into the Position of a
State Servant approved by Government Resolution No. 966 "On the
Confirmation of the Procedure for Admission into the Position of
a State Servant" of 24 June 2002 (with the amendments made by
Government Resolution No. 1366 "On Amending Government Resolution
No. 966 'On the Confirmation of the Procedure for Admission into
the Position of a State Servant' of 24 June 2002" of 29 August
2002, Government Resolution No. 695 "On Amending Government
Resolution No. 966 'On the Confirmation of the Procedure for
Admission into the Position of a State Servant' of 24 June 2002"
of 3 June 2003 and Government Resolution No. 1452 "On Amending
Government Resolution No. 966 'On the Confirmation of the
Procedure for Admission into the Position of a State Servant' of
24 June 2002" of 25 November 2003).
2. Article 22 (wording of 16 April 2002) (Item 14 thereof
is set forth in the wording of 10 October 2000) of the Law on the
Government, inter alia provides: "The Government shall: <
> (14)
appoint and dismiss county governors, their deputies and
representatives of the Government who exercise administrative
supervision of the activities of local authorities; impose
disciplinary penalties on them".
On 14 June 2007, the Seimas adopted the Republic of
Lithuania Law on Amending and Supplementing Articles 9, 13, 14,
22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 31¹, 33, 34, 35, 37, 38,
39, 40, 41, 42, 43, 44, 44¹, 45 and 46 and the Title of the
Fourth Section of the Law on the Government, Paragraph 5 of
Article 5 of which amended Item 14 (wording of 10 October 2000)
of Article 22 of the Law on the Government and set it forth in a
new wording. The Law on Amending and Supplementing Articles 9,
13, 14, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 31¹, 33, 34, 35,
37, 38, 39, 40, 41, 42, 43, 44, 44¹, 45 and 46 and the Title of
the Fourth Section of the Law on the Government (with the
specified exception) must come into forth on 1 October 2007.
Article 22 (wording of 14 June 2007) of the Law on the
Government inter alia establishes: "The Government shall: <
>
(14) appoint and dismiss county governors and their deputies,
representatives of the Government, the authorised person of the
Government and other state servants and officials established by
the laws and impose official or disciplinary penalties on them".
3. Paragraph 2 of Article 2 (wording of 10 December 2002)
of the Law on Administrative Supervision of Municipalities
establishes: "The Government shall assign one representative of
the Government to each county."
Article 3 (wording of 10 December 2002) of this law inter
alia provides:
"1. The Government representative is a state servanthead
of institution, and he shall be appointed to office for four
years and dismissed from office under the procedure established
in the Law on State Service. Along with this Law, also the Law on
State Service shall establish the legal status of the Government
representative. <
>
3. A person, who has a higher university education or an
education likened to it and not less than five years of work
experience in the field of public administration or who has a
higher university education in the field of public administration
and not less than three years of work experience in the field of
public administration may be appointed as a Government
representative. <
>"
4. Article 9 (wording of 4 July 2003) (Paragraph 1
thereof is set forth in the wording of 23 April 2002, Paragraph
3in the wording of 3 April 2003 and Paragraph 5in the wording
of 4 July 2003) of the Law on State Service inter alia provides:
"1. A person, who is admitted to the position of a state
servant, must meet the following requirements:
(1) to hold citizenship of the Republic of Lithuania;
(2) to be proficient in the Lithuanian language;
(3) to be not less than 18 years of age and not more than
62 years and 6 months of age;
(4) to have the education necessary to occupy a position
of that level in the state service. <
>
3. The following persons shall not be eligible for
positions in the state service:
(1) those found guilty, in accordance with the procedure
prescribed by laws, of a serious or grave crime, or a criminal
act against the state service and public interest or any act
comprising elements of corruptive nature, and whose conviction
has not been spent or expunged;
(2) those who have been deprived by the court of the
right to occupy a position in the state service;
(3) those whose spouse, close relative or a person
related to him by marriage performs the duties of a public
servant in a state or municipal institution or agency in the
event that they would be related by direct subordination
according to the positions held by them;
(4) those recognised legally incapable in accordance with
the procedure prescribed by laws;
(5) those who are members of an organisation which is
prohibited in accordance with the procedure prescribed by laws;
(6) in the cases provided for by other laws. <
>
5. In addition, persons recruited to the state service
shall also meet special requirements set out in the job
description."
Paragraph 2 (wording of 11 November 2003) of Article 10
(wording of 18 December 2003) of the Law on State Service inter
alia provides: "The Government shall admit <
> (3) the Government
representative, county chief and deputy county chief to the
position of the heads of institutions".
Article 11 (wording of 23 April 2002) of this law
establishes:
"1. The career state servants shall be admitted to the
positions:
(1) through competition;
(2) without competition.
2. A person recruited as career state servant through
competition shall be examined in writing (a test) and orally (an
interview); in the course of an interview, the ability of a
person to perform the functions specified in the job description
of the state service shall be assessed. The requirement to have a
record of work in the state service shall not apply to a person
who is being recruited as a career state servant, except for the
cases provided for by other laws.
3. Persons referred to in Paragraph 2 of Article 43 of
this Law may be recruited as career state servants without
competition. In the event of two or more of such persons, they
are examined orally (an interview).
4. A person or a collegiate state or municipal
institution that appoints a state servant to office (hereinafter
referred to as the "appointing authority") may publish a notice
of competition concerning the recruitment of a career state
servant where it has submitted information about the vacant
position to the agency for state service management and has not
received any information from there about the persons referred to
in Paragraph 2 of Article 43 of this Law within 7 working days
after submission. The said persons have to be recruited provided
that they meet the requirements set out in the job description."
Article 13 (wording of 23 April 2002) of the Law on State
Service provides:
"1. Heads of institutions shall be recruited through
competition or on the basis of political (personal) confidence in
the cases provided for in the laws.
2. A person recruited as head of an institution through
competition shall be examined in writing (a test) and orally (an
interview); in the course of an interview, the ability of a
person to perform the functions specified in the job description
of the state service shall be assessed."
5. Item 14 (wording of 24 June 2002) of the Procedure for
Admission into the Position of a State Servant approved by
Government Resolution No. 966 "On the Confirmation of the
Procedure for Admission into the Position of a State Servant" of
24 June 2002 (with the amendments made by Government Resolution
No. 1366 "On Amending Government Resolution No. 966 'On the
Confirmation of the Procedure for Admission into the Position of
a State Servant' of 24 June 2002" of 29 August 2002, Government
Resolution No. 695 "On Amending Government Resolution No. 966 'On
the Confirmation of the Procedure for Admission into the Position
of a State Servant' of 24 June 2002" of 3 June 2003 and
Government Resolution No. 1452 "On Amending Government Resolution
No. 966 'On the Confirmation of the Procedure for Admission into
the Position of a State Servant' of 24 June 2002" of 25 November
2003) inter alia provides: "The personnel council, upon receiving
the documents, verifies them and notes in the application of the
candidate whether the applicant meets the common requirements of
Paragraph 1 of Article 9 of the Law on State Service <
> and
special requirements according to the data of the documents
provided by the applicant."
Item 66 (wording of 24 June 2002) of the Procedure for
Admission into the Position of a State Servant provides:
"A person who won the competition shall be appointed to
the position in not less than 3 working days and not more than 14
calendar days upon the end of the competition. Upon the agreement
of the person who won the competition and the person who admits
the state servant to the position, this term may be extended."
It needs to be mentioned that Government Resolution No.
640 "On Amending Government Resolution No. 966 'On the
Confirmation of the Procedure for Admission into the Position of
a State Servant' of 24 June 2002" of 28 June 2006 amended the
title of the said Procedureit was titled the Inventory Schedule
of the Procedure for Organisation of Competitions to the Position
of a State Servant (at the same time, the title of Government
Resolution No. 966 "On the Confirmation of the Procedure for
Admission into the Position of a State Servant" of 24 June 2002
was amendedit was titled "On the Confirmation of the Inventory
Schedule of the Procedure for Organisation of Competitions to the
Position of a State Servant").
6. The quoted provisions of the laws are to be construed
in the context of the legal regulation established (at the time
when the disputed Government resolution was adopted) in other
articles (paragraphs thereof) of the Law on the State Service, as
well as in other laws such as the Law on Prevention of Corruption
and the Republic of Lithuania Law on State Secrets and Official
Secrets.
One must also take account of the provisions of the
substatutory legal acts such as the Procedure for Provision of
Information About the Person Who Seeks to Hold the Position or
Holds the Position in a State or Municipal Institution approved
by Government Resolution No. 1484 "On Approving the Procedure for
Provision of Information About the Person Who Seeks to Hold the
Position or Holds the Position in a State or Municipal
Institution" of 19 September 2002.
6.1. In this context, it needs to be noted that Paragraph
6 (wording of 4 July 2003) of Article 9 of the Law on State
Service established: "The procedure for admission into the
position of a state servant is established by this Law and other
laws and the procedure approved by the Government."
It needs to be emphasized that the formula "other laws"
of Paragraph 6 (wording of 4 July 2003) of Article 9 of the Law
on State Service is very capacious. It is a blanket one and may
encompass virtually any law (part thereof), inter alia the Law on
Prevention of Corruption (part thereof).
Paragraph 2 of Article 4 of the Republic of Lithuania Law
on Amending and Supplementing Articles 2, 4, 6, 9, 10, 11, 13,
14, 15, 16, 17, 18, 19, 21, 22, 24, 27, 30, 34, 35, 36, 39, 40,
41, 42, 43, 44, 45, 49 and 50 of the Law on State Service and
Supplementing the Law with Articles 16¹ and 31¹ which was adopted
by the Seimas on 22 December 2005 recognized Paragraph 6 (wording
of 4 July 2003) of Article 9 of the Law on State Service as null
and void, while Paragraph 3 of Article 4 of the Law on Amending
and Supplementing Articles 3, 4, 8, 9, 18, 19, 20, 21, 22, 23,
25, 38, 41, 43, 44, 49 and 50 and Appendix of the Law on State
Service and Supplementing the Law with Articles 22¹, 48¹ and 50¹
which was adopted by the Seimas on 7 June 2007, supplemented
Article 9 (wording of 22 December 2005) of the Law on State
Service with Paragraph 6 which established:
"If a special requirement to comply with the requirements
established in the legal acts which are necessary while issuing
the certificate of credibility of the person or the permit to
work or to familiarize oneself with classified information is
established in the job description of the state servant, the
candidate shall be verified, under the procedure established by
the laws, prior to admission of the person who is recognized as
the winner of the competition to the position of the state
servant or prior to admission of the person to the position of
the state servant to which, under the procedure established by
this Law, one is admitted without competition. The person is
admitted to the position of the state servant upon receiving the
conclusion of the competent state institution that this person
may be issued the certificate of credibility of the person or the
permit to work or to familiarize oneself with classified
information."
Under Paragraph 1 of Article 22 of the Law on Amending
and Supplementing Articles 3, 4, 8, 9, 18, 19, 20, 21, 22, 23,
25, 38, 41, 43, 44, 49 and 50 and Appendix of the Law on State
Service and Supplementing the Law with Articles 22¹, 48¹ and 50¹,
Article 9 (wording of 7 June 2007) of the Law on State Service
must come into force on 1 October 2007.
6.2. The requirements to receive the permit to work or to
familiarize oneself with classified information are established
in the Law on State Secrets and Official Secrets which, at the
time when the disputed Government resolution was adopted, was set
forth in the wording of 25 November 1999 (with subsequent
amendments and supplements).
Article 9 (wording of 3 April 2003) (its Paragraph 2 is
set forth in the wording of 25 November 1999, Paragraph 3in the
wording of 29 August 2000, and Paragraph 7in the wording of 25
November 1999)) of this law inter alia established:
"<
> 2. Only the persons who have special permits may
hold the positions related with the use of information which
constitute state secret or its protection and familiarize
themselves with information which constitute state secret.
Candidates to the public service selected to the posts related to
use and protection of information considered a State secret,
shall be appointed upon having their candidacies verified
according to the procedures prescribed by the Government of the
Republic of Lithuania or its authorised institution and after
being issued permits to work or familiarise with the information
which constitutes a state secret. A list of the duties thereof is
determined by a subject of secrets itself.
3. Permits to work or to familiarize oneself with the
information which constitute a state secret shall be issued by a
subject of secrets, upon having verified according to the
procedure set by the Government of the Republic of Lithuania or
its authorised institution the candidacies of the persons, and
after co-ordinating, with the exception of under-cover agents of
operative activities, with the State Security Department. Prior
to adopting a final decision, the institutions verifying the
candidacy of a person, may invite him for an interview and if
necessary with the consent of the person, perform a polygraph
examination or request a written explanation of the person. The
subject of secrets shall be prohibited from use of permits to
work or familiarise with the information which constitutes a
state secret, if the State Security Department following
Paragraph 5, Article 9 of this Law, objects to it. <
>
7. The permit to work or to familiarize oneself with the
information which constitutes a state secret which is marked as
"Top Secret" or "Secret" shall be issued for the period of 5
years, and with the information which constitutes a state secret
and which is marked as "Confidential"for the time period of 7
years. After the said time is over, the person shall be verified
anew. The person may be verified additionally also before the
time periods established in this article are over. <
>"
6.3. Article 9 of the Law on Prevention of Corruption
provides:
"1. The provision of information about a person seeking
or holding a position at a state or municipal institution shall
mean furnishing, at the request of the head of a state or
municipal institution or on the initiative of the law enforcement
and control institutions, with the exception of positions
referred to in Paragraph 2 of this Article, following the
procedure laid down in legal acts, of objective and legally
gathered information held by the law enforcement and control
institutions about a person seeking or holding a position at a
state or municipal institution, to the head of the institution
who has appointed or is appointing the public servant in
question, or to a state politician in order to ensure that only
persons of high moral standing hold office at a state or
municipal institution.
2. The provision of information shall be obligatory
about a person seeking a position at a state or municipal
institution which is subject to the appointment by the Seimas,
the President of the Republic, the Speaker of the Seimas, the
Government or the Prime Minister as well as to the positions of
heads of state and municipal institutions or their deputies, vice
ministers, secretaries of state at the ministries, secretaries of
the ministries, the appointed deputies of mayors of
municipalities, heads of establishments subordinate to the
ministries and their deputies.
3. A decision to request the Special Investigation
Service for the information about a person shall be made by the
head of a state of municipal establishment that is appointing or
has appointed that person, or a state politician. When making the
decision, account shall be taken of the position, character of
the duties and the information available about the person seeking
or holding a position at a state or municipal institution. The
need for such a decision and its motivation shall also be taken
into account.
4. A request in writing to the Special Investigation
Service for the provision of information about a person holding a
position at a state or municipal establishment must be reasoned
and substantiated by the information raising serious doubts as to
the credibility of the person in question.
5. The information about a person seeking or holding a
position at a state or municipal establishment shall be provided
by the Special Investigation Service upon receipt of a request in
writing from the head of an establishment which is appointing or
has appointed the person in question, or a state politician. The
Special Investigation Service shall gather and submit in writing
the information it holds as well as the information held by the
Police Department under the Ministry of the Interior, the
Register of State Servants and, if necessary, the information
held by other law enforcement and control institutions. The law
enforcement and control institutions may also provide the
information available to them to the head of the agency or a
state politician on their own initiative.
6. The head of an establishment or a state politician
shall, within three days from the performance of the appropriate
actions, notify the person about whom information has been
provided or requested, of the decision to request information or
of the information supplied by the law enforcement or control
institutions.
7. The person about whom information has been provided
shall be acquainted with the information with the exception of
its part which contains classified information.
8. The person in respect of whom a decision to request
information was made may contest in court the decision and/or the
information provided about him.
9. The information provided shall be one of the grounds
for judging about the credibility of a person seeking or holding
a position at a state or municipal establishment. The person who
has lost credibility may be refused appointment at a state or
municipal establishment or may be dismissed from office in
accordance with the procedure set out in the Law on the Public
Service and other legislation.
10. The head of an institution or a state politician may
use the information provided to them only for the purpose of
judging about the credibility of the person seeking or holding a
position at a state or municipal establishment. The head of an
establishment or a state politician shall not pass the
information provided to them by the law enforcement and control
institutions to third parties, except in circumstances provided
for by law.
11. The Special Investigation Service, in compliance with
the laws and on the basis of the information specified in the
request and provided by the other law enforcement and control
institutions, may initiate investigation in accordance with the
procedure established by law.
12. The procedure for the provision of information about
a person seeking or holding a position at a state or municipal
establishment shall be determined by the Government."
In the context of the constitutional justice case at
issue, when summing up the legal regulation established in
Article 9 of the Law on Prevention of Corruption, one is to note
that under this article, the purpose of provision of information
about a person seeking or holding a position at a state or
municipal establishment is to ensure that only the persons of
impeccable reputation would work in state service (Paragraph 1);
the provision of information shall be obligatory about a person
seeking the corresponding position at a state establishment which
is subject to the appointment by the Government (Paragraph 2);
the information shall be provided by the SIS (Paragraphs 3, 4 and
5); the SIS shall gather and provide in writing the held
objective and legally gathered information (Paragraphs 1 and 5);
the person about whom information has been provided shall be
acquainted with the information with the exception of its part
which contains classified information (Paragraph 7); on the
grounds of such information, the head of the institution shall
decide about the person's credibility and impeccable reputation
(Paragraphs 1 and 9); the procedure for the provision of
information about a person seeking or holding a position at a
state or municipal establishment must be established by the
Government (Paragraph 12).
6.4. The Procedure for Provision of Information About the
Person Who Seeks to Hold the Position or Holds the Position in a
State or Municipal Institution approved by Government Resolution
No. 1484 "On Approving the Procedure for Provision of Information
About the Person Who Seeks to Hold the Position or Holds the
Position in a State or Municipal Institution" of 19 September
2002 inter alia provides that: a decision to request the SIS for
the information about a person, including the persons who are
verified obligatorily, shall be made by the head of the
establishment who is appointing or has appointed that person, or
a state politician, inter alia the decision regarding the person
who is appointed to office by the Governmentby the Prime
Minister (Item 10); the submission of the written request to
provide information about the person seeking or holding a
position at a state or municipal establishment to the SIS (under
Annex 3 of this Procedure) shall be considered as adoption of the
decision regarding the request (Item 10); the request to provide
information about the person seeking or holding a position at a
state or municipal establishment must inter alia specify the
title of the request, the name and surname of the person about
which the information is requested, the title of the position
that is held by the person in the state or municipal
establishment, the information which is necessary to provide, the
deadlines for the provision of information, the necessity and
reasonableness of the request, the title of the position, name
and surname of the person who adopted the decision to submit the
request for provision of information (Annex 3 of this procedure);
the written request that the SIS provide information about the
person seeking or holding a position at a state or municipal
establishment must be reasoned and based on the data which raise
reasoned doubts whether the person about whom the provision of
information is requested, is credible (Item 11); the verified
person has the right, within 3 days from the day of adoption of
the decision, to request to provide information, to receive a
written notice about the adopted decision to request for
information (under Item 1 of this procedure) (Item 6.1); the
persons seeking or holding a position at a state or municipal
establishment about whom the information is provided to the head
of an institution or a state politician shall participate in the
process of provision of information (Item 3.1); the SIS not later
than within 30 calendar days from the day of receipt of the
request, shall gather and provide in witting the information held
by itself, the Police Department, the Register of State Servants,
and, if need may be, by other law enforcement and control
institutions (Item 13); the verified person has the right, within
3 days from the day of provision the information about him to the
recipient of information, to receive a written notice about the
fact that information was provided by law enforcement and control
institutions (under Annex 2 of this procedure) (Item 6.2); the
verified person has the right, upon signing, to familiarize with
the provided information about him, with the exception of the
part thereof which is classified (Item 6.3).
It needs to be noted that Item 7 of the Procedure for
Provision of Information About the Person Who Seeks to Hold the
Position or Holds the Position in a State or Municipal
Institution approved by Government Resolution No. 1484 "On
Approving the Procedure for Provision of Information About the
Person Who Seeks to Hold the Position or Holds the Position in a
State or Municipal Institution" of 19 September 2002 establishes
what legally gathered objective information the providers of
information may provide, namely the legally gathered information
about: the previous record of the verified person (Item 7.1) the
criminal persecution for an intentional crime against the
verified person (Item 7.2); punishment of the verified person for
the commission of violations of administrative law (Item 7.3);
the fact that the operational investigation is carried out
against the verified person (Item 7.4); recognition of the
verified person, under the procedure established by the laws, as
incapable or of limited capability (Item 7.5); the verified
person's abuse of narcotic, psychotropic, toxic substances or
alcohol (Item 7.6); the fact that when entering the state
service, the verified person presented counterfeit documents,
concealed or provided the data which contradict the reality
because of which he could not be admitted to the office of a
state servant (Item 7.7); application of preventive measures to
the verified person according to the Republic of Lithuania Law on
the Restraint of Organised Crime (Item 7.8); the cases when the
verified person had violated the requirements of the Republic of
Lithuania Law on the Adjustment of Public and Private Interests
in the State Service (Item 7.9); and the official (disciplinary)
penaltiessevere reprimand or dismissal from officeimposed on
the verified person (Item 7.10).
As it is obvious, the information about the person
seeking or holding a position at a state or municipal
establishment which is provided to the head of institution from
which one may decide about the person's credibility is defined as
a certain final list of the data which includes only certain
violations of official discipline, but it includes all (also
minor, negligent and those made long time ago) administrative
violations of law; it needs also to be noted that the said
procedure does not specify that any information regarding the
violations of code of ethics made by the verified person must be
provided.
It was mentioned that under Paragraph 12 of Article 9 of
the Law on Prevention of Corruption, the procedure for the
provision of information about a person seeking or holding a
position at a state or municipal establishment must be determined
by the Government.
It was also mentioned that the Vilnius Regional
Administrative Court, the petitioner, does not raise the question
of the compliance of the grounds of verification of credibility
of the person who seeks to hold office and/or the legal acts
which regulate the procedure with the Constitution (of the
substatutory legal actsalso with the laws) too. The Procedure
for Provision of Information About the Person Who Seeks to Hold
the Position or Holds the Position in a State or Municipal
Institution approved by Government Resolution No. 1484 "On
Approving the Procedure for Provision of Information About the
Person Who Seeks to Hold the Position or Holds the Position in a
State or Municipal Institution" of 19 September 2002 is not a
matter of investigation in the constitutional justice case at
issue.
6.5. It needs to be noted that at the time when the
disputed Government resolution was adopted, the Work Regulations
of the Government of the Republic of Lithuania (with subsequent
amendments and supplements) confirmed by Government Resolution
No. 728 "On the Confirmation of the Work Regulations of the
Government of the Republic of Lithuania" of 11 August 1994
regulated the procedure for drafting, consideration and adoption
of draft resolutions of the Government.
VI
On the compliance of Government Resolution No. 222 "On
the Candidate to the Government Representatives" of 27 February
2004 with Paragraph 1 of Article 29, Paragraph 1 of Article 33
and Item 2 of Article 94 of the Constitution, with the
constitutional principle of a state under the rule of law, with
Paragraphs 1 and 3 of Article 3 (wording of 10 December 2002) of
the Law on Administrative Supervision of Municipalities, Item 6
(wording of 23 April 2002) of Paragraph 3 (wording of 3 April
2003) of Article 9 (wording of 4 July 2003) and Item 3 of
Paragraph 2 (wording of 11 November 2003) of Article 10 (wording
of 18 December 2003) and Paragraph 2 of Article 13 (wording of 23
April 2002) of Law on State Service.
1. It was mentioned that the Vilnius Regional
Administrative Court, the petitioner, requests to investigate
whether Government Resolution No. 222 "On the Candidate to the
Government Representatives" of 27 February 2004 is not in
conflict with Paragraph 1 of Article 29, Paragraph 1 of Article
33 and Item 2 of Article 94 of the Constitution, with the
constitutional principle of a state under the rule of law, with
Paragraphs 1 and 3 of Article 3 (wording of 10 December 2002) of
the Law on Administrative Supervision of Municipalities, Item 6
(wording of 23 April 2002) of Paragraph 3 (wording of 3 April
2003) of Article 9 (wording of 4 July 2003) and Item 3 of
Paragraph 2 (wording of 11 November 2003) of Article 10 (wording
of 18 December 2003) and Paragraph 2 of Article 13 (wording of 23
April 2002) of Law on State Service.
2. It has been held in this Constitutional Court ruling
that while deciding subsequent to the petition of the Vilnius
Regional Administrative Court, the petitioner, whether Government
resolution No. 222 of 27 February 2004 is not in conflict with
the Constitution and the articles (paragraphs thereof) of the
laws specified by it, one should first of all elucidate whether,
when P. Uleckas won the competition for the position of the
Government representative for the Marijampolė County, the
Government, while deciding on appointing the said person to the
said position, under the Constitution and laws, had the powers to
verify his credibility (inter alia by asking for information from
the SIS) and when it decided that P. Uleckas had lost his
credibility, whether it could apply Paragraph 9 of Article 9 of
the Law on Prevention of Corruption, under which, a person, who
lost his credibility may be not admitted to state service.
3. It was mentioned that Paragraph 6 (wording of 4 July
2003) of Article 9 of the Law on State Service provides: "The
procedure for admission into the position of a state servant is
established by this Law, other laws and the procedure approved by
the Government". It was also mentioned that the formula "other
laws" of Paragraph 6 (wording of 4 July 2003) of Article 9 of the
Law on State Service is very capacious. It is a blanket one and
may encompass virtually any law (paragraph thereof), inter alia
the Law on Prevention of Corruption (paragraph thereof).
4. It was also mentioned that under Article 9 of the Law
on Prevention of Corruption: the purpose of provision of
information about a person seeking or holding a position at a
state or municipal institution is to ensure that only the persons
of impeccable reputation would work in state service (Paragraph
1); the provision of information shall be obligatory about a
person seeking the corresponding position at a state institution
which is subject to the appointment by the Government (Paragraph
2); the information shall be provided by the SIS (Paragraphs 3, 4
and 5); the SIS shall gather and provide in writing with the held
objective and legally gathered information (Paragraphs 1 and 5);
the person about whom information has been provided shall be
acquainted with the information with the exception of its part
which contains classified information (Paragraph 7); on the
grounds of such information, the head of the institution shall
decide about the person's credibility and impeccable reputation
(Paragraphs 1 and 9); and the person may dispute the decision on
the provision of information and the provided information under
judicial procedure (Paragraph 8).
In the context of the constitutional justice case at
issue, it is particularly emphasized that Paragraph 2 of the
discussed article expressis verbis establishes that "the
provision of information shall be obligatory about a person
seeking a position at a state <
> institution which is subject to
the appointment by <
> the Government <
>, as well as to the
positions of heads of state <
> institutions".
This provision means that under Paragraph 2 of Article 9
of the Law on Prevention of Corruption, the Government shall have
the duty to verify the credibility of the person who seeks to
hold the office of the Government representative (for a certain
county).
5. It needs to be noted that under the Law on Prevention
of Corruption (Article 9 thereof), one may request information
about the verified person both before the competition to the
corresponding position and after that competition.
It was mentioned that under Item 13 of the Procedure for
Provision of Information About the Person Who Seeks to Hold the
Position or Holds the Position in a State or Municipal
Institution approved by Government Resolution No. 1484 "On
Approving the Procedure for Provision of Information About the
Person Who Seeks to Hold the Position or Holds the Position in a
State or Municipal Institution" of 19 September 2002, the SIS not
later than within 30 calendar days from the day of receipt of the
request, shall gather and provide in witting the information held
by itself, the Police Department, the Register of State Servants,
and, if need may be, by other law enforcement and control
institutions.
In this context it needs to be noted that the time period
of 14 calendar days upon the end of competition, in which the
person who won the competition shall be appointed to the office
(except for the cases when upon the agreement of the person who
won the competition and the person who accepts this person to
office this term may be extended) established in Item 66 of the
Procedure for Admission into the Position of a State Servant
approved by Government Resolution No. 966 "On the Confirmation of
the Procedure for Admission into the Position of a State Servant"
of 24 June 2002 may also be not sufficient to receive the
necessary information about the verified person.
However, as long as this term has not been changed (it is
also established in Item 66 of the Procedure for Admission into
the Position of a State Servant approved by Government Resolution
No. 966 "On the Confirmation of the Procedure for Admission into
the Position of a State Servant" of 24 June 2002 (wording of 28
June 2006)), it must be followed; it must also by followed by the
law-making subjectthe Governmentwhich established this term.
It is particularly important that under Article 9 of the
Law on Prevention of Corruption, the head of an institution or a
state politician shall, within three days from the performance of
the appropriate actions, notify the person about whom information
has been provided or requested, of the decision to request
information or of the information supplied by the law enforcement
or control institutions (Paragraph 6); the person about whom
information has been provided shall be acquainted with the
information with the exception of its part which contains
classified information (Paragraph 7); the person in respect of
whom a decision to request information was made, may contest in
court the decision and/or the information provided about him
(Paragraph 8).
6. It was mentioned that under Item 6 (wording of 23
April 2002) of Paragraph 3 (wording of 3 April 2003) of Article 9
(wording of 4 July 2003) of the Law on State Service, a person
may not be admitted to the office of the state servant "in the
cases specified in other laws".
7.One of such cases is exactly provided for in Paragraph
9 of Article 9 of the Law on Prevention of Corruption, in which,
as it was mentioned, it is established that "the information
provided shall be one of the grounds for judging about the
credibility of a person seeking or holding a position at a state
or municipal establishment" and that "the person who has lost
credibility may be refused appointment at a state or municipal
establishment or may be dismissed from office in accordance with
the procedure set out in the Law on the State Service and other
laws".
Thus, it needs to be held that under Article 9 (Paragraph
9 thereof) of the Law on Prevention of Corruption, the winner of
the competition may be not appointed to the position even if he
won the competition if it is reasonably held that the said person
lost his credibility.
8. Under Item 2 of Article 94 of the Constitution, the
Government shall execute laws and resolutions of the Seimas on
the implementation of the laws as well as the decrees of the
President of the Republic. It was mentioned that the legislator
not only may but also must establish such legal regulation which
would permit to verify credibilityloyalty to the State of
Lithuania and reputationof those persons who seek to hold a
position in the state service.
Thus, when P. Uleckas won the competition for the
position of the Government representative for the Marijampolė
County, the Government, while deciding on appointing the said
person to the said position, under the Constitution and laws, had
the powers to verify his credibility (inter alia by asking for
information from the SIS) and when it decided that P. Uleckas had
lost his credibility, it could apply Paragraph 9 of Article 9 of
the Law on Prevention of Corruption, under which, a person, who
lost his credibility may be not admitted to state service.
9. Having held in this Constitutional Court ruling that
when P. Uleckas won the competition for the position of the
Government representative for the Marijampolė County, the
Government, while deciding on appointing the said person to the
said position, under the Constitution and laws, had the powers to
verify his credibility (inter alia by asking for information from
the SIS) and when it decided that P. Uleckas had lost his
credibility, it could apply Paragraph 9 of Article 9 of the Law
on Prevention of Corruption, under which, a person, who lost his
credibility may be not admitted to state service, one must
elucidate, whether while verifying the credibility of P. Uleckas,
the procedure of verification of the credibility of a person, who
seeks to hold a position in the state or municipal institution
established by law was not violated, one followed the
requirements of the proper legal process.
10. While deciding whether while verifying the
credibility of P. Uleckas, the procedure of verification of the
credibility of a person, who seeks to hold a position in the
state or municipal institution established by law was not
violated, one followed the requirements of the proper legal
process, the following circumstances are of essential
significance:
- the Government had the right to initiate the
investigation of the circumstances specified in the anonymous
complaint of "14 employees of the Marijampolė Municipality" in
various state institutions according to their competence
established by the laws, as well as it could, under the Law on
Prevention of Corruption, to request that the SIS provide the
held information about the circumstances specified in the
mentioned anonymous complaint;
- it was mentioned that in the Preamble to Government
Resolution No. 222 of 27 February 2004, the Government specified
that it follows inter alia Paragraph 9 of Article 9 of the Law on
Prevention of Corruption;
- it was mentioned that in Paragraph 3 of Article 9 of
the Law on Prevention of Corruption, a decision to request the
SIS for the information about a person shall be made by the head
of a state of municipal establishment who is appointing or has
appointed that person, or a state politician; under Item 10 of
the Procedure for Provision of Information About the Person Who
Seeks to Hold the Position or Holds the Position in a State or
Municipal Institution approved by Government Resolution No. 1484
"On Approving the Procedure for Provision of Information About
the Person Who Seeks to Hold the Position or Holds the Position
in a State or Municipal Institution" of 19 September 2002, a
decision to request the SIS for the information about a person,
including the persons who are verified obligatorily, shall be
made by the head of the establishment who is appointing or has
appointed that person, or a state politician, inter alia the
decision regarding the person who is appointed to the office by
the Governmentby the Prime Minister; meanwhile, as it has been
held in this Constitutional Court ruling, Chancellor of the
Government A. Z. Kaminskas applied to the SIS and requested "to
investigate, under the procedure of urgency, the letter of the
employees of the Marijampolė Municipality of 2 December 2003
regarding the lodged suspicions against Paulius Uleckas for
abusing the official position and to inform the Office of the
Government about the results of this investigation" (Letter No.
39-9033 of 10 December 2003 "Regarding P. Uleckas" of the
Chancellor of the Government);
- it was mentioned that under Paragraph 2 of Article 9 of
the Law on Prevention of Corruption, the provision with
information about the person who seeks to hold office in the
state institution to which he is appointed by the Government, is
obligatory; under Item 11 of the Procedure for Provision of
Information About the Person Who Seeks to Hold the Position or
Holds the Position in a State or Municipal Institution approved
by Government Resolution No. 1484 "On Approving the Procedure for
Provision of Information About the Person Who Seeks to Hold the
Position or Holds the Position in a State or Municipal
Institution" of 19 September 2002, the written request that the
SIS provide information about the person seeking or holding a
position at a state or municipal establishment must be reasoned
and based on the data which would raise reasoned doubts whether
the person about whom the provision of information is requested,
is credible; under Item 10 of the said procedure, the submission
of the written request to provide information about the person
seeking or holding a position at a state or municipal
establishment to the SIS under Annex 3 of this procedure shall be
considered as adoption of the decision regarding the request;
meanwhile, Letter No. 39-9033 of 10 December 2003 "Regarding P.
Uleckas" of the Chancellor of the Government A. Z. Kaminskas (to
which the anonymous complaint of "14 employees of the Marijampolė
Municipality" was annexed) does not comply with the content and
form of Annex 3 of the said procedureit must specify, as it has
been mentioned, inter alia the title of the request, the name and
surname of the persons about which the information is requested,
the title of the position that is held by the person in the state
or municipal establishment, the information which is necessary to
provide, the deadlines for the provision of information, the
necessity and reasonableness, the title of the position, name and
surname of the person who adopted the decision to submit a
request for provision of informationit does not specify the
reasons or data which would raise reasonable doubts regarding
credibility of P. Uleckas, moreover, one requests to investigate
the information that might be established about the person's non-
credibility and not to provide the information held;
- it has been held that under Paragraph 6 of Article 9 of
the Law on Prevention of Corruption, the head of an institution
or a state politician shall, within three days from the
performance of the appropriate actions, notify the person about
whom information has been provided or requested, of the decision
to request information or of the information supplied by the law
enforcement or control institutions, and under Item 6.1 of the
Procedure for Provision of Information About the Person Who Seeks
to Hold the Position or Holds the Position in a State or
Municipal Institution approved by Government Resolution No. 1484
"On Approving the Procedure for Provision of Information About
the Person Who Seeks to Hold the Position or Holds the Position
in a State or Municipal Institution" of 19 September 2002, the
verified person has the right, within 3 days from the day of
adoption of the decision to request to provide information, to
receive a written notice about the adopted decision to request
for information (under Item 1 of this procedure); meanwhile, P.
Uleckas was not informed under the procedure established in these
legal acts that the SIS is requested to provide information about
him by Letter No. 39-9033 of 10 December 2003 "Regarding P.
Uleckas" of the Chancellor of the Government A. Z. Kaminskas;
- it has been mentioned that under Paragraph 7 of Article
9 of the Law on Prevention of Corruption, the person about whom
information has been provided shall be acquainted with the
information with the exception of its part which contains
classified information; under Item 6.2 of the Procedure for
Provision of Information About the Person Who Seeks to Hold the
Position or Holds the Position in a State or Municipal
Institution approved by Government Resolution No. 1484 "On
Approving the Procedure for Provision of Information About the
Person Who Seeks to Hold the Position or Holds the Position in a
State or Municipal Institution" of 19 September 2002, the
verified person has the right, within 3 days from the day of
provision of the information about him to the recipient of
information, to receive a written notice about the fact that
information was provided by law enforcement and control
institutions under Annex 2 of this procedure; under Item 6.3 of
the said procedure, the verified person has the right, upon
signing, to familiarize with the provided information about him,
with the exception of the part thereof which is classified;
meanwhile, P. Uleckas was not presented the information about him
which was provided by the SIS while investigating the complaint
of "14 employees of the Marijampolė Municipality" (it is to be
noted that this information provided by the SIS to the Chancellor
of the Government (or the Office of the Government) was not
marked as classified);
- it has been mentioned that under Item 13 of the
Procedure for Provision of Information About the Person Who Seeks
to Hold the Position or Holds the Position in a State or
Municipal Institution approved by Government Resolution No. 1484
"On Approving the Procedure for Provision of Information About
the Person Who Seeks to Hold the Position or Holds the Position
in a State or Municipal Institution" of 19 September 2002, the
SIS not later than within 30 calendar days from the day of
receipt of the request, shall gather and provide in writing with
the information held by itself, the Police Department, the
Register of State Servants, and, if need may be, by other law
enforcement and control institutions; Item 7 of the said
procedure establishes what legally gathered objective information
the providers of information may provide, namely the legally
gathered information about: the previous record of the verified
person (Item 7.1) the criminal persecution for an intentional
crime against the verified person (Item 7.2); punishment of the
verified person for the commission of violations of
administrative law (Item 7.3); the fact that the operational
investigation is carried out against the verified person (Item
7.4); recognition of the verified person, under the procedure
established by the laws, as incapable or of limited capability
(Item 7.5); the verified person's abuse of narcotic,
psychotropic, toxic substances or alcohol (Item 7.6); the fact
that when entering the state service, the verified person
presented counterfeit documents, concealed or provided the data
which contradict the reality because of which he could not be
admitted to the office of a state servant (Item 7.7); application
of preventive measures to the verified person according to the
Republic of Lithuania Law on the Restraint of Organised Crime
(Item 7.8); the cases when the verified person had violated the
requirements of the Republic of Lithuania Law on the Adjustment
of Public and Private Interests in the State Service (Item 7.9);
and the official (disciplinary) penaltiessevere reprimand or
dismissal from officeimposed on the verified person (Item 7.10);
meanwhile Letter No. 2.5-01-3994 "On Investigating the Anonymous
Complaint" of the SIS Director V. Junokas of 29-30 December 2003,
Letter No. 4-1-406 of 29 January 2004 and Letter No. 4-1-697 of
20 February 2004 do not include information specified in Item 7
of the Procedure for Provision of Information About the Person
Who Seeks to Hold the Position or Holds the Position in a State
or Municipal Institution approved by Government Resolution No.
1484 "On Approving the Procedure for Provision of Information
About the Person Who Seeks to Hold the Position or Holds the
Position in a State or Municipal Institution" of 19 September
2002.
11. All the enumerated circumstances testify that even
though when P. Uleckas won the competition for the position of
the Government representative for the Marijampolė County, the
Government, while deciding on appointing the said person to the
said position, under the Constitution and laws had the powers to
verify his credibility (inter alia by asking for information from
the SIS) and when it decided that P. Uleckas had lost his
credibility, it could apply Paragraph 9 of Article 9 of the Law
on Prevention of Corruption, under which, a person, who lost his
credibility may be not admitted to state service; the credibility
of P. Uleckas was verified without following the procedure of
verification of the person who seeks to hold a position or holds
a position in the state or municipal institution which is
established in Article 9 (inter alia Paragraphs 6, 7 and 8
thereof) of the Law on Prevention of Corruption as well as one
did not follow the Procedure for Provision of Information About
the Person Who Seeks to Hold the Position or Holds the Position
in a State or Municipal Institution approved by Government
Resolution No. 1484 "On Approving the Procedure for Provision of
Information About the Person Who Seeks to Hold the Position or
Holds the Position in a State or Municipal Institution" of 19
September 2002 itself.
It needs also to be noted that the Government resolution
was submitted for consideration under the procedure of urgency.
P. Uleckas actually did not have a possibility to use the right
to dispute the provided information under judicial procedure
which is enshrined in Paragraph 8 of Article 9 of the Law on
Prevention of Corruption.
12. While assessing the entirety of the circumstances set
forth in Items 10 and 11 of Part VI of this Constitutional Court
ruling, it needs to be held that while verifying the credibility
of P. Uleckas, one disregarded the procedure of verification of
the credibility of a person, who seeks to hold a position in a
state or municipal institution and the requirements of the proper
legal process.
13. It has been mentioned that the fact that the
Government does not follow the laws means that Paragraph 2 of
Article 5 of the Constitution, in which it is established that
the scope of power shall be limited by the Constitution, and Item
2 of Article 94 of the Constitution, under which the Government
shall execute inter alia laws, as well as the constitutional
principle of a state under the rule of law which implies the
hierarchy of legal acts, are violated. It has also been mentioned
that such Government resolution may also be in conflict with
other provisionsnorms and principlesof the Constitution.
It has also been mentioned that failure to pay heed by
the Government to the resolutions it itself adopted would mean
that while adopting a corresponding Government resolution, the
constitutional principle of a state under the rule of law and
Paragraph 2 of Article 5 of the Constitution were violated.
14. Taking account of the arguments set forth, a
conclusion is to be made that Government Resolution No. 222 of 27
February 2004, according to the procedure of its adoption, is in
conflict with Paragraph 2 of Article 5 of the Constitution, Item
2 of Article 94 of the Constitution, with the constitutional
principle of a state under the rule of law and with Article 9 of
the Law on Prevention of Corruption.
15. The fact that it has been held in this Constitutional
Court ruling that while verifying the credibility of P. Uleckas,
one disregarded the procedure of verification of the credibility
of a person, who seeks to hold a position in the state or
municipal establishment and the requirements of the proper legal
process, as well as that the disputed Government Resolution No.
222 of 27 February 2004, is in conflict with Paragraph 2 of
Article 5 of the Constitution, Item 2 of Article 94 of the
Constitution, with the constitutional principle of a state under
the rule of law and with Article 9 of the Law on Prevention of
Corruption, may not be interpreted as denial of the truth,
credibility and sufficiency of the information provided by the
SIS regarding the activity of P. Uleckas while heading the
administration of the Marijampolė Municipality in order to state
that P. Uleckas lost his credibility.
16. It has been mentioned that the Vilnius Regional
Administrative Court, while considering the administrative case
subsequent to the complaint of P. Uleckas, did not verify the
information received from the SIS regarding the activity of P.
Uleckas while he was heading the administration of the
Marijampolė Municipality, upon receiving which the Government
decided not to appoint him to the position of the Government
representative for the Marijampolė County, as well as did not
establish and did not investigate the factual circumstances which
would allow to assess the truth and credibility of the said
information, the lawfulness of the procedure of its collection,
etc., that this court neither expressis verbis denied, nor
expressis verbis approved the said information and it did not
formulate any direct position regarding this information.
It has also been mentioned that it is a matter of the
competence of the court which considers an administrative case to
assess whether the information received from the SIS by the
Government regarding the activity of P. Uleckas while heading the
administration of the Marijampolė Municipality which was assessed
as permitting to state that P. Uleckas lost his credibility and
which was the official legal ground for deciding not to appoint
P. Uleckas to the position of the Government representative for
the Marijampolė County, is truthful and credible and if it is
sufficient in order to reasonably state that P. Uleckas lost his
credibility.
Thus, the Constitutional Court will not investigate the
compliance of the disputed Government resolution with the
Constitution in the specified aspect.
This may not be interpreted as confirmation of the truth,
credibility and sufficiency of the information provided by the
SIS regarding the activity of P. Uleckas while heading the
administration of the Marijampolė Municipality in order to state
that P. Uleckas lost his credibility.
17. Having held all that, the Constitutional Court will
no longer investigate whether Government Resolution No. 222 of 27
February 2004 is not in conflict with Paragraph 1 of Article 29,
Paragraph 1 of Article 33 and Item 2 of Article 94 of the
Constitution, with the constitutional principle of a state under
the rule of law which, according to the petitioner, is enshrined
in the Preamble to the Constitution, with Paragraphs 1 and 3 of
Article 3 (wording of 10 December 2002) of the Law on
Administrative Supervision of Municipalities, with Item 6
(wording of 23 April 2003) of Paragraph 3 (wording of 3 April
2003) of Article 9 (wording of 4 July 2003), Item 3 of Paragraph
2 (wording of 11 November 2003) of Article 10 (wording of 18
December 2003) and Paragraph 2 of Article 13 (wording of 23 April
2002) of the Law on State Service.
Conforming to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Articles 1, 53, 54, 55 and 56 of
the Law on the Constitutional Court of the Republic of Lithuania,
the Constitutional Court of the Republic of Lithuania has passed
the following
ruling:
To recognise that Government of the Republic of Lithuania
Resolution No. 222 "On the Candidate to the Government
Representatives" (Official Gazette Valstybės žinios, 2004, No.
34-1096) of 27 February 2004 is in conflict, according to the
procedure of its adoption, with Paragraph 2 of Article 5 and Item
2 of Article 94 of the Constitution of the Republic of Lithuania,
with the constitutional principle of a state under the rule of
law, and with Article 9 of the Republic of Lithuania Law on
Prevention of Corruption.
This ruling of the Constitutional Court is final and not
subject to appeal.
The ruling is promulgated in the name of the Republic of
Lithuania.
Justices of the Constitutional Court:
Armanas Abramavičius
Toma Birmontienė
Egidijus Kūris
Kęstutis Lapinskas
Zenonas Namavičius
Ramutė Ruškytė
Vytautas Sinkevičius
Stasys Stačiokas
Romualdas Kęstutis Urbaitis