Case No. 26/07
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
RULING
ON THE COMPLIANCE OF ARTICLES 4 AND 165 (WORDING OF
28 FEBRUARY 2002) OF THE CODE OF CIVIL PROCEDURE OF
THE REPUBLIC OF LITHUANIA WITH THE CONSTITUTION OF
THE REPUBLIC OF LITHUANIA
24 October 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 representatives of the Seimas of the
Republic of Lithuania, the party concerned, who were the Member
of the Seimas Julius Sabatauskas, and Gediminas Sagatys, Senior
Advisor of the Legal Department of the Office of the Seimas;
pursuant to Articles 102 and 105 of the Constitution of the
Republic of Lithuania and Article 1 of the Law on the
Constitutional Court of the Republic of Lithuania, in its public
hearing on 23 October 2007 heard constitutional justice case No.
26/07 subsequent to the petition of the Vilnius Regional Court,
the petitioner, requesting to investigate whether Articles 4 and
165 (wording of 28 February 2002) of the Code of Civil Procedure
of the Republic of Lithuania are not in conflict with Paragraph 1
of Article 29 and Article 109 of the Constitution of the Republic
of Lithuania.
The Constitutional Court
has established:
I
The Vilnius Regional Court, the petitioner, was
investigating a civil case. By its ruling the court suspended the
investigation of the case and applied to the Constitutional Court
with the petition requesting to investigate whether Articles 4
and 165 (wording of 28 February 2002) of the Code of Civil
Procedure (hereinafter also referred to as the CCP) are not in
conflict with Paragraph 1 of Article 29 and Article 109 of the
Constitution.
II
The petition of the Vilnius Regional Court, the petitioner,
is grounded on the following arguments.
1. Article 4 (wording of 28 February 2002) of the CCP
obligates courts that they, when they apply law, take account of
the construction of application of law which is contained in the
rulings adopted under cassation procedure and announced under
procedure of Republic of Lithuania Law on Courts. According to
the petitioner, this provision obligates courts to take account
of the construction of application of law which is contained only
in the announced rulings adopted under cassation procedure, and
it does not obligate the courts to take account of the entire
practice of courts of general jurisdictionthese courts do not
have a duty to take account of those court decisions (rulings)
which were adopted under non-cassation procedure. By making
reference to the jurisprudence of the Constitutional Court, it is
maintained in the petition of the petitioner that the
constitutional principle of a state under the rule of law implies
the continuity of jurisprudence, that the system of courts of
general jurisdiction consolidated in the Constitution must
function so that preconditions might be created for formation of
the uniform (regular, consistent) practice of courts of general
jurisdiction; the same (analogous) cases should be decided in the
same manner, i.e. by heeding the established precedents; while
adopting decisions in cases of corresponding categories, courts
are bound by the precedentsdecisions in analogous casesthat
they have created by themselves. According to the petitioner, the
fact that courts are obligated to take account of the
construction of application of law which is contained only in the
announced rulings adopted under cassation procedure, but not all
practice of courts of general jurisdiction, might be in conflict
with the constitutional principles of justice, equality of
persons before the law and the court, thus, with Paragraph 1 of
Article 29 and Article 109 (inter alia Paragraph 1 thereof) of
the Constitution.
2. Article 165 (wording of 28 February 2002) of the CCP
prohibits to lodge a separate complaint regarding a court ruling,
whereby the corresponding case was suspended due to the
application to the Constitutional Court or an administrative
court. Because of the suspension of the case, its consideration
might become protracted therefore, according to the petitioner,
there should always be a possibility to review such rulings in
courts of higher instance in the aspect of the lawfulness and
reasonableness of such rulings. The fact that the CCP does not
limit the right to lodge a complaint where the case is suspended
under Item 9 of Article 163 of the CCP, i.e. when the court
applies to a competent institution of the European Union
(hereinafter referred to as the EU), permits to believe that the
prohibition to make use of the right to lodge a complaint against
the court ruling regarding suspension of the case might be in
conflict with the constitutional principles of a state under the
rule of law, justice, equality of persons before the law and the
court. Besides, while ensuring the right of the person to lodge a
complaint against the court ruling regarding suspension of the
case and thus creating the conditions so that the participants to
the proceedings could achieve annulment of an unlawful or
unreasonable ruling regarding the suspension of the case by the
court of higher instance, one would implement the right of the
person entrenched in Paragraph 1 of Article 6 of the Convention
for the Protection of Human Rights and Fundamental Freedoms
whereby his case must be heard fairly and in public within a
reasonable time by an independent and impartial tribunal
established by law.
III
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were received
from the representatives of the Seimas, the party concerned, who
were the Member of the Seimas J. Sabatauskas and G. Sagatys, in
which it is maintained that Articles 4 and 165 (wording of 28
February 2002) of the CCP are not in conflict with Paragraph 1 of
Article 29 and Article 109 of the Constitution. The position of
the representatives of the party concerned, the Seimas, is
grounded on the following arguments.
1. In the opinion of the representatives of the party
concerned, in Lithuania the primary source of law is a legal act
in which the legal norm is set forth, but not an act of
construction of this legal norm. Therefore, the disputed
provision of Article 4 (wording of 28 February 2002) of the CCP
does not mean that one must a priori follow the construction of
application of law which is contained in the announced rulings
adopted under cassation procedure and it does not give it the
power of a law or that of a Government resolution. The doubts of
the petitioner regarding the compliance of Article 4 (wording of
28 February 2002) of the CCP with the Constitution are grounded
on imprecise interpretation of the said article. The purpose of
the disputed provision is not to present an exhaustive or
exemplary list of sources of law, but emphasise the need to form
the uniform practice of application of law in the entire country
(this is evident form the title of the article); it is impossible
to construe the provision consolidated in this article narrowly,
as the one which, purportedly, presents a final list of secondary
sources of law (practice of courts), which is taken account of by
the court considering a case. Quite to the contrary, the disputed
provision, while granting the status of a source of law to the
construction of application of law which is contained in those
rulings which were adopted under cassation procedure and
announced under procedure established in the Law on Courts, does
not eliminate other secondary sources of law, which are taken
account of by the court considering a case, i.e. it does not
eliminate the decisions made by the court itself in analogous
cases and decisions of courts of higher instance in cases of the
corresponding category. In case the disputed provision was
construed as obligating the courts to take account of the
construction of application of law which is contained only in the
announced rulings adopted under cassation procedure, one would
have to draw a conclusion that, when considering cases, courts of
general jurisdiction do not take account of the official
constitutional doctrine formed in Constitutional Court acts, nor
the practice of EU judicial institutions, nor judgments of the
European Court of Human Rights. Such comprehension of the
practice of courtsone of the secondary sources of lawwould be
incompatible with the hierarchy of legal acts stemming from the
Constitution.
In the opinion of the representatives of the party
concerned, the disputed provision of the law and the official
constitutional doctrine on formation of the uniform practice of
courts, which was formed in the jurisprudence of the
Constitutional Court, are in harmony with and supplement each
other: the former consolidates the function of the Supreme Court
of Lithuania in forming the uniform court practice in the entire
country, while the latter guarantees the self-binding by all
courts of general jurisdiction, which adopt decisions in cases of
corresponding categories, by their own decisions in analogous
cases, as well as the binding of courts of general jurisdiction
of lower instance, which adopt decisions in cases of
corresponding categories, by decisions of courts of general
jurisdiction of higher instance.
2. At the junction of several constitutional values the
legislator has a duty to establish their reasonable balance,
therefore, when assessing the constitutionality of the
prohibition consolidated in Article 165 (wording of 28 February
2002) of the CCP to lodge a separate complaint regarding a court
ruling, whereby the corresponding case was suspended due to the
application to the Constitutional Court or an administrative
court, one must assess the place of the constitutional right of a
person to a speedy process in the system of other constitutional
values. The legal regulation consolidated in the disputed
provision and other provisions related with it reflects the model
of constitutional justice (constitutional judicial control)
consolidated in the Constitution, the powers of the
Constitutional Court and other courts in ensuring that one should
heed the hierarchy of legal acts arising from the Constitution
and that no legal acts which are in conflict with legal acts of
higher power be applied. Applications to the Constitutional Court
made by courts are special ones also because of the fact that the
courts which have doubts as to the compliance of a legal act
(part thereof) issued by the Seimas, the President of the
Republic or the Government or adopted by referendum with a legal
act of higher power, inter alia (and first of all) with the
Constitution, not only may, but also must apply to the
Constitutional Court. The right of the court to apply to the
Constitutional Court in order to ascertain whether the law or
other legal act applicable in the corresponding case is not in
conflict with the Constitution (either to confirm or negate the
existing doubts), is an important part of the court procedural
independence. It is impossible to interpret the instance system
of courts of general jurisdiction, which stems from the
Constitution, as restricting the procedural independence of
courts of general jurisdiction of lower courts, while the right
of the person to a speedy judicial process cannot overshadow
other constitutional values, like justice, independence of
courts, hierarchy of legal acts etc. The disputed provision of
Article 165 (wording of 28 February 2002) of the CCP precisely
ensures such balance of constitutional values.
IV
At the Constitutional Court hearing, the Member of the
Seimas J. Sabatauskas and G. Sagatys, the representatives of the
Seimas, the party concerned, virtually reiterated the arguments
set forth in their written explanations and presented additional
explanations.
The Constitutional Court
holds that:
I
On the compliance of Article 4 (wording of 28 February
2002) of the CCP with Paragraph 1 of Article 29 and Article 109
of the Constitution.
1. The Vilnius Regional Court, the petitioner, requests to
investigate whether Article 4 (wording of 28 February 2002) of
the CCP is not in conflict with Paragraph 1 of Article 29 and
Article 109 of the Constitution.
2. Article 4 (wording of 28 February 2002) of the CCP
provides: "The courts, when they apply law, shall take account of
the construction of application of law which is contained in the
rulings adopted under cassation procedure and announced under
procedure of Republic of Lithuania Law on Courts."
3. The doubts of the Vilnius Regional Court, the
petitioner, regarding the compliance of Article 4 (wording of 28
February 2002) of the CCP with the Constitution are grounded on
the fact that, in the opinion of the petitioner, according to
this article, the courts, when they apply law, have to take
account of the construction of application of law which is
contained only in the announced rulings adopted under cassation
procedure, and that they do not have a duty to take account of
those court decisions (rulings) which were adopted under non-
cassation procedure. The petitioner does not dispute the legal
regulation established in the Law on Courts, which is referred to
in this article; the said legal regulation is not a matter of
investigation in the constitutional justice case at issue.
Subsequent to the petition of the Vilnius Regional Court,
the petitioner, the Constitutional Court will investigate whether
the provision "the courts, when they apply law, shall take
account of the construction of application of law which is
contained in the rulings adopted under cassation procedure" of
Article 4 (wording of 28 February 2002) of the CCP is not in
conflict with Paragraph 1 of Article 29 and Article 109 of the
Constitution.
4. It needs to be mentioned that the legal regulation,
which is analogous to the one consolidated in Article 4 (wording
of 28 February 2002) of the CCP, is also consolidated in other
laws (the Republic of Lithuania Law on the Proceedings of
Administrative Cases, the Law on Courts), however, the
constitutionality of the provisions of these laws is not
disputed, therefore the corresponding legal regulation is not a
matter of investigation in the constitutional justice case at
issue.
5. Paragraph 1 of Article 29 of the Constitution provides
that all persons shall be equal before the law, the court, and
other state institutions and officials.
6. Article 109 of the Constitution provides that in the
Republic of Lithuania, justice shall be administered only by
courts (Paragraph 1); while administering justice, the judge and
courts shall be independent (Paragraph 2); when considering
cases, judges shall obey only the law (Paragraph 3); the court
shall adopt decisions in the name of the Republic of Lithuania
(Paragraph 4).
7. While reasoning, in the petition of the petitioner, the
position regarding the compliance of the disputed provision of
Article 4 (wording of 28 February 2002) of the CCP with the
Constitution, one substantiates his reasoning by the provisions
of the official constitutional doctrine, which were set forth in
the Constitutional Court ruling of 28 March 2006.
It needs to be noted that some of these provisions were set
forth in the Constitutional Court acts that had been adopted in
the constitutional justice cases considered even before the
latter ruling.
8. In this context, the following provisions of the
official constitutional doctrine of the Constitutional Court
ruling of 28 March 2006.
The principle of a state under the rule of law entrenched
in the Constitution implies continuity of jurisprudence. The
instance system of courts of general jurisdiction established in
the Constitution must function so that the preconditions are
created to form the uniform (regular, consistent) practice of
courts of general jurisdiction, i.e. such, which would be based
on the principles of a state under the rule of law, justice,
equality of all persons before the law (and other constitutional
principles) enshrined in the Constitution, on the maxim
inseparably linked with the said principles and arising from them
that the same (analogous) cases must be decided in the same way,
i.e. they have to be decided not by creating new court
precedents, competing with the existing ones, but by taking
account of the already consolidated ones. When ensuring the
uniformity (regularity, consistency) of the practice of courts of
general jurisdiction, which arises from the Constitution, thus,
also the continuity of the jurisprudence, the following factors
(along with other important factors) are of crucial importance:
the courts of general jurisdiction, when adopting decisions in
cases of corresponding categories, are bound by their own created
precedentsdecisions in the analogous cases; the courts of
general jurisdiction of lower instance, when adopting decisions
in the cases of corresponding categories, are bound by the
decisions of the courts of general jurisdiction of higher
instanceprecedents in the cases of the same categories; the
courts of general jurisdiction of higher instance, while revising
decisions of the courts of general jurisdiction of lower
instance, must assess these decisions by always following the
same legal criteria; these criteria must be clear and known ex
ante to the subjects of law, inter alia to the courts of general
jurisdiction of lower instance (thus, the jurisprudence of courts
of general jurisdiction must be predictable). The already
existing precedents in cases of corresponding categories, which
were created by courts of general jurisdiction of higher
instance, not only are binding on the courts of general
jurisdiction of lower instance that adopt decisions in analogous
cases, but also the courts of general jurisdiction of higher
instance that created those precedents (inter alia the Court of
Appeal of Lithuania and the Supreme Court of Lithuania). Courts
have to follow such concept of the content of corresponding
provisions (norms, principles) of law, also of the application of
these provisions of law, which was formed and which was followed
when applying these provisions (norms, principles) in the
previous cases, inter alia when previously deciding analogous
cases. Disregarding the maxim that the same (analogous) cases
have to be decided in the same way, which arises from the
Constitution, would also mean disregarding the provisions of the
Constitution on administration of justice, that of the
constitutional principles of a state under the rule of law,
justice, equality of people before the court and other
constitutional principles. The practice of courts of general
jurisdiction in cases of corresponding categories has to be
corrected and new court precedents in these categories may be
created only when it is unavoidably and objectively necessary,
when it is constitutionally grounded and justified. Such
correction of practice of courts of general jurisdiction
(deviation from the previous precedents, which had been binding
on courts until then and creation of new precedents) must in all
cases be properly (clearly and rationally) argued in
corresponding decisions of courts of general jurisdiction. No
creation or reasoning of a new court precedent may be determined
by accidental (in the aspect of law) factors. It is such
correctiononly when it is unavoidably and objectively necessary,
and when it is properly (clearly and rationally) argued in all
casesof the practice of courts of general jurisdiction
(deviation from the previous precedents that had been binding on
courts by then and creation of new precedents) that must be
respectively ensured by the Court of Appeal of Lithuania and the
Supreme Court of Lithuania within their competence. If the said
requirements arising from the Constitution are disregarded when
the court decisions are adopted, not only the preconditions for
the irregularities and inconsistencies to appear in the practice
of courts of general jurisdiction and the legal system are
created, not only the jurisprudence of courts become less
predictable, but also there are grounds for doubts on whether the
corresponding courts of general jurisdiction were impartial when
adopting the decisions, and whether these decisions were not
subjective in other aspects. The instance system of the courts of
general jurisdiction arising from the Constitution may not be
interpreted as restricting the procedural independence of the
courts of general jurisdiction of lower instance, either:
however, as it was mentioned, under the Constitution, when
adopting decisions in the cases of corresponding categories, the
courts of general jurisdiction of lower instance are bound by
decisions of courts of general jurisdiction of higher instance
precedents in the cases of these categories; courts of general
jurisdiction of greater power (and their judges) may not
interfere in the cases considered by courts of general
jurisdiction of lower instance, nor give them any instructions,
either obligatory or recommendatory, on how corresponding cases
must be decided etc.; from the aspect of the Constitution, such
instructions (whether obligatory or recommendatory) would be
assessed as acting of corresponding courts (judges) ultra vires.
Under the Constitution, court practice is formed only when courts
decide cases themselves. The imperatives of the activity of the
courts of general jurisdiction and legal regulation of this
activity arising from the Constitution and discussed in this
Constitutional Court ruling are also to be applied mutatis
mutandis to the activity of the specialized courts established
under Paragraph 2 of Article 111 of the Constitution and its
legal regulation.
In this context it also needs to be mentioned that, as it
has been held by the Constitutional Court, the Constitutional
Court is bound by the precedents that it itself has created and
by the official constitutional doctrine which has been formulated
by the Constitutional Court and which substantiates these
precedents (Constitutional Court decision of 21 November 2006).
The Constitutional Court, while referring to its already formed
constitutional doctrine and precedents, must ensure the
continuity of the constitutional jurisprudence (its consecution,
consistency) and the predictability of its decisions. It may be
possible to deviate from the Constitutional Court precedents
created while adopting decisions in cases of constitutional
justice and new precedents may be created only in the cases when
it is unavoidably and objectively necessary, constitutionally
grounded and reasoned; also the official constitutional doctrinal
provisions on which the precedents of the Constitutional Court
are based may not be reinterpreted so that the official
constitutional doctrine would be corrected when it is unavoidably
and objectively necessary, constitutionally grounded and
reasoned; any change of the precedents of the Constitutional
Court or correction of the official constitutional doctrine may
not be determined by accidental (in the aspect of law) factors.
The said necessity to reinterpret certain official constitutional
doctrinal provisions so that the official constitutional doctrine
would be corrected may be determined only by the circumstances as
the necessity to increase possibilities for implementing the
innate and acquired rights of persons and their legitimate
interests, the necessity to better defend and protect the values
enshrined in the Constitution, the need to create better
conditions in order to reach the aims of the Lithuanian Nation
declared in the Constitution on which the Constitution itself is
based, the necessity to expand the possibilities of the
constitutional control in this country in order to guarantee
constitutional justice and to ensure that no legal act (part
thereof) which is in conflict with legal acts of greater power,
would have the immunity from being removed from the legal system.
It is impossible and constitutionally impermissible to
reinterpret the official constitutional doctrine so that the
official constitutional doctrine would be corrected, if by doing
so the system of values entrenched in the Constitution is
changed, their compatibility is denied, the protection guarantees
of the supremacy of the Constitution in the legal system are
reduced, the concept of the Constitution as a single act and
harmonious system is denied, the guarantees of rights and
freedoms of the person entrenched in the Constitution are reduced
and the model of separation of powers enshrined in the
Constitution is changed. Every case of such reinterpretation of
the official constitutional doctrine when the official
constitutional doctrine is corrected has to be properly (clearly
and rationally) argued in the corresponding act of the
Constitutional Court (Constitutional Court ruling of 28 March
2006 and decisions of 8 August 2006 and 21 November 2006).
Thus, court precedents are sources of lawauctoritate
rationis; the reference to the precedents is a condition for the
uniform (regular, consistent) court practice as well as that of
implementation of the principle of justice entrenched in the
Constitution. Therefore, it is not permitted that court
precedents be unreasonably ignored. In order to perform this
function properly, the precedents themselves should be clear.
Court precedents may not be in conflict with the official
constitutional doctrine, either.
9. On the other hand, it is not permitted that the
significance of court precedents as sources of law be
overestimated, let alone be made absolute. One must refer to
court precedents with particular care. It needs to be emphasised
that in the course of consideration of cases by courts, only
those previous decisions of courts have the power of precedent,
which were created in analogous cases, i.e. the precedent is
applied only in those cases whose factual circumstances are
identical or very similar to the factual circumstances of the
case in which the precedent was created, and with regard to which
the same law should be applied as in the case in which the
precedent was created. In a situation where there is competition
of precedents (i.e. when there are several differing court
decisions adopted in analogous cases) one must follow the
precedent that was created by the court of higher instance (a
higher court). Also one is to take account of the time of the
creation of the precedent and of other factors of significance,
as, for instance: of the fact whether the corresponding precedent
reflects the established court practice, or whether it is a
single occurrence; of whether the reasoning of the decision is
convincing; of the composition of the court that adopted the
decision (whether the corresponding decision was adopted by a
single judge, or by a college of judges, or whether by the
enlarged college of judges, or whether by the entire composition
of the court (its chamber)); whether there were any dissenting
opinions of judges expressed because of the previous court
decision; of possible significant (social, economic etc.) changes
which took place after the adoption of the corresponding court
decision, which has the significance of a precedent, etc. As
mentioned, in cases when the correction of court practice is
unavoidably and objectively necessary, the courts may deviate
from the previous precedents, which had been binding on the
courts until then, and create new precedents, however, it must be
done by properly (clearly and rationally) arguing it. It needs to
be specially emphasised that, when deviating from its previous
precedents, the court must not only properly argue the adopted
decision itself (i.e. the created precedent itself), but also
clearly set forth the reasoning and the arguments substantiating
the necessity to deviate from the previous precedent.
10. One of the necessary conditions of ensuring the
uniformity (regularity, consistency) of court practice, thus also
the continuity of the jurisprudence, is the accessibility of the
precedents of courts of general jurisdiction of all levels and of
all specialised courts established under Paragraph 2 of Article
111 of the Constitution, which is determined by the creation of
corresponding information systems, and ensuring organisational
and technical possibilities for courts (judges) to become
familiarised with decisions-precedents previously adopted by
courts in analogous cases.
It has been held in this Constitutional Court ruling that
the Vilnius Regional Court, the petitioner, does not dispute the
legal regulation established in the Law on Courts which is
referred to in Article 4 (wording of 28 February 2002) of the
CCP; the said legal regulation is not a matter of investigation
in the constitutional justice case at issue.
11. As mentioned, the doubts of the Vilnius Regional Court,
the petitioner, regarding the compliance of Article 4 (wording of
28 February 2002) of the CCP with the Constitution are grounded
on the fact that, in the opinion of the petitioner, according to
this article, the courts, when they apply law, must take account
of the construction of application of law which is contained only
in the announced rulings adopted under cassation procedure ant
that they do not have a duty to take account of those court
decisions (rulings) which were adopted under non-cassation
procedure.
12. While deciding, subsequent to the petition of the
Vilnius Regional Court, the petitioner, requesting to investigate
whether provision "the courts, when they apply law, shall take
account of the construction of application of law which is
contained in the rulings adopted under cassation procedure" of
Article 4 (wording of 28 February 2002) of the CCP is not in
conflict with Paragraph 1 of Article 29 and Article 109 of the
Constitution, it needs to be noted that this article of the CCP
does not contain the word "only", i.e. the word which is very
important and essential in the arguments of the petition of the
petitioner. Thus, the disputed provision may (and must) be
construed in a way so that it would be in line with the
constitutional requirements, i.e. as the one that does not
prevent the courts, when they consider cases, to take account not
only of the construction of application of law which is contained
only in the announced rulings adopted under cassation procedure,
but also of the construction of law which is in the decisions and
rulings of other courts of higher instance, provided they have
the significance of precedent for the corresponding court in
deciding an analogous case, and as the one not preventing to take
account of their own practice of application of law. Although the
disputed norm (also entire Article 4 (wording of 28 February
2002) of the CCP and the entire CCP as well) is not flawless from
the standpoint of the legal technique, since the duty of court of
general jurisdiction to pay heed to the precedents created both
by themselves and by all courts of higher instance is not
explicitly consolidated (either in this, or any other article of
the CCP), this is not a sufficient ground for recognition of the
disputed legal regulation as limiting the constitutional powers
of the court to administer justice and because of this violating
Article 109 of the Constitution or as hindering the court to heed
the maxim (arising inter alia from the principle of equality of
persons) whereby the same (analogous) cases should be decided in
the same manner and thus violating Paragraph 1 of Article 29 of
the Constitution.
13 Taking account of the arguments set forth, one is to
draw a conclusion that provision "the courts, when they apply
law, shall take account of the construction of application of law
which is contained in the rulings adopted under cassation
procedure" of Article 4 (wording of 28 February 2002) of the CCP
is not in conflict with Paragraph 1 of Article 29 and Article 109
of the Constitution.
II
On the compliance of Article 165 (wording of 28 February
2002) of the CCP with Paragraph 1 of Article 29 and Article 109
of the Constitution.
1. The Vilnius Regional Court, the petitioner, requests to
investigate whether Article 165 (wording of 28 February 2002) of
the CCP is not in conflict with Paragraph 1 of Article 29 and
Article 109 of the Constitution.
2. Article 165 (wording of 28 February 2002) of the CCP
provides: "A separate complaint may be lodged against a court
ruling on suspending the case, save the ruling whereby one
applies to the Constitutional Court or an administrative court."
3. The doubts of the Vilnius Regional Court, the
petitioner, regarding the compliance of Article 165 (wording of
28 February 2002) of the CCP with the Constitution are grounded
on the fact that, according to the petitioner, Article 165 of the
CCP prohibits to lodge a separate complaint regarding a court
ruling, whereby the corresponding case was suspended due to the
application to the Constitutional Court or an administrative
court, although the CCP does not limit the right to lodge a
complaint where the case is suspended under Item 9 of Article 163
of the CCP, i.e. when the court applies to a competent
institution of the EU. Because of the suspension of the case, its
consideration might become protracted therefore, according to the
petitioner, there should always be a possibility to review such
rulings in courts of higher instance in the aspect of the
lawfulness and reasonableness of such rulings. On the other hand,
it is clear from the case considered by the Vilnius Regional
Court, the petitioner, in which the ruling was adopted to apply
to the Constitutional Court, that the doubts of the petitioner
are to be related only with a legal situation, where the court
suspends the case because it decides to apply to the
Constitutional Court or an administrative court, but not on other
grounds, i.e. the petitioner disputes the reservation "save the
ruling whereby one applies to the Constitutional Court or an
administrative court" of Article 165 (wording of 28 February
2002) of the CCP.
Subsequent to the petition of the Vilnius Regional Court,
the petitioner, the Constitutional Court will investigate whether
the reservation "save the ruling whereby one applies to the
Constitutional Court or an administrative court" of Article 165
(wording of 28 February 2002) of the CCP is not in conflict with
Paragraph 1 of Article 29 and Article 109 of the Constitution.
4. It needs to be noted that Article 165 (wording of 28
February 2002) of the CCP is designed for the regulation of the
relations linked with lodging a complaint against not all, but
only with rulings of courts of first instance regarding
suspension of the case. The legal regulation of lodging a
complaint against rulings of courts of the appeal instance (of
higher instance) is consolidated in Chapter XVII "Proceedings of
Cases in a Cassation Court"; the corresponding legal regulation
is not a matter of investigation in the constitutional justice
case at issue.
5. It needs to be mentioned that the legal regulation which
is analogous to Article 165 (wording of 28 February 2002) of the
CCP is consolidated also in other laws (Law on the Proceedings of
Administrative Cases, the Code of Criminal Procedure of the
Republic of Lithuania), however, the constitutionality of the
provisions of these laws is not disputed, therefore the
corresponding legal regulation is not a matter of investigation
in the constitutional justice case at issue.
6. The Constitutional Court, while construing Article 109
of the Constitution (in which, as mentioned, it is established
that in the Republic of Lithuania, justice shall be administered
only by courts (Paragraph 1); while administering justice, the
judge and courts shall be independent (Paragraph 2); when
considering cases, judges shall obey only the law (Paragraph 3);
the court shall adopt decisions in the name of the Republic of
Lithuania (Paragraph 4)), has held more than once (inter alia in
its rulings of 21 December 1999, 9 May 2006, 6 June 2006, and 27
November 2006) that courts, when they administer justice, must
ensure the implementation of law expressed in the Constitution,
laws and other legal acts, to guarantee the supremacy of law, to
protect human rights and freedoms. The constitutional concept of
justice also implies that courts must decide cases only by
strictly adhering to the procedural and other requirements
established in laws and without overstepping the limits of their
jurisdiction, nor exceeding their other powers (constitutional
Court ruling of 16 January 2006). A duty to courts stems from
Paragraph 1 of Article 109 of the Constitution to consider cases
justly and objectively and to adopt reasoned and reasonable
decisions (Constitutional Court ruling of 15 May 2007). The
principle of justice entrenched in the Constitution as well as
the provision that justice is administered solely by courts mean
that the constitutional value is not the adoption of a decision
in court, but rather the adoption of a just court decision; the
constitutional concept of justice implies not only a formal and
nominal justice administered by the court, not only an outward
appearance of justice administered by the court, but, most
importantly, such court decisions (other court final acts), which
by their content are not unjust; the justice administered only
formally by the court is not the justice which is consolidated in
and protected and defended by the Constitution (Constitutional
Court ruling of 21 September 2006).
The said requirements arising from the constitutional
concept of administration of justice are to be applied also to
the decisions (rulings) courts of general jurisdiction and the
specialized courts established under Paragraph 2 of Article 111
of the Constitution regarding the application to the
Constitutional Court with a petition requesting to investigate
and decide whether a legal act (part thereof) which was passed by
the Seimas, the President of the Republic or the Government, or
adopted by referendum, which is to be applied in the considered
case, is not in conflict with a legal act of higher power, inter
alia (and, first of all) with the Constitution. The same
requirements are also to be applied to the court decisions
(rulings) regarding the application to a corresponding
administrative court with a petition requesting to investigate
whether a legal act (part thereof), the verification of the
compliance of which with a legal act of higher power, inter alia
(and, first of all) with the Constitution, has been assigned to
the jurisdiction of administrative courts, but not the
Constitutional Court, is not in conflict with the Constitution
(another act of higher legal power).
7. The powers of courts to suspend the consideration of the
case and apply to the Constitutional Court with a petition
requesting to investigate the compliance of the legal act with
the Constitution are expressis verbis consolidated in the
Constitution: it is established in Paragraph 2 of Article 110 of
the Constitution that in cases when there are grounds to believe
that the law or other legal act which should be applied in a
concrete case is in conflict with the Constitution, the judge
shall suspend the consideration of the case and shall apply to
the Constitutional Court requesting it to decide whether the law
or other legal act in question is in compliance with the
Constitution.
8. In the context of the constitutional justice case at
issue, in which, subsequent to the petition of the Vilnius
Regional Court, the petitioner, it is investigated whether inter
alia the reservation "save the ruling whereby one applies to the
Constitutional Court or an administrative court" of Article 165
(wording of 28 February 2002) of the CCP is not in conflict with
the Constitution, one is to mention these provisions of the
official constitutional doctrine (which were formulated inter
alia in the Constitutional Court rulings of 21 August 2002, 4
March 2003, 24 March 2003, 10 June 2003, 30 December 2003, 17
August 2004, 2 September 2004, 29 September 2004, 13 December
2004, 29 December 2004, 27 January 2005, 7 February 2005 and 8
July 2005, decision of 20 September 2005, rulings of 16 January
2006, 28 March 2006, 30 March 2006, decision of 8 August 2006,
ruling of 27 June 2007 and in other legal acts adopted by the
Constitutional Court in previous constitutional justice cases),
in which Article 110 of the Constitution is construed by relating
it with other provisions of the Constitution, inter alia with the
constitutional principle of a state under the rule of law and
with the provisions of the Constitution regarding specialised
(administrative) courts:
- one of the essential elements of the principle of a state
under the rule of law, which is consolidated in the Constitution,
is the principle that a legal act, which is in conflict with a
legal act of higher power, may not be applied;
- upon establishing, in Article 110 of the Constitution, a
prohibition to apply a law which is in conflict with the
Constitution and a duty of a judge considering a case, in case
there are doubts whether the law or other legal act applicable in
the case is not in conflict with the Constitution, to suspend the
consideration of the case and to apply to the Constitutional
Court requesting it to decide whether the law or other legal act
in question is in compliance with the Constitution, one seeks to
attain that a corresponding legal act (part thereof) which is in
conflict with the Constitution be not applied, that there would
not appear anti-constitutional legal effects due to the
application of such legal act (part thereof), that the rights of
the person be not violated, that a person in whose regard a legal
act inconsistent with the Constitution or the law was applied
would not unreasonably acquire, due to this, any rights or
corresponding legal status that does not belong to him;
- in cases where a court, which is considering a case,
faces doubts whether a law (other legal act) applicable in the
case is not in conflict with the Constitution, it must apply to
the Constitutional Court and request to decide whether this law
(other legal act) is in compliance with the Constitution, and
until the Constitutional Court decides this issue, the
consideration of the case in court may not be continued, i.e. it
must be suspended; neither Paragraph 2 of Article 110 of the
Constitution, nor any other part of the Constitution establishes
expressis verbis by what procedural decision the consideration of
the case must be suspended; the establishment of this must be
specified by the legislator;
- the legal regulation established by the legislator must
be such so that the suspended case from which the circumstances
are seen due to which the disputed legal act is to be applied in
the said case, must be accessible to the Constitutional Court;
only in this way the necessary conditions can be created in order
that the Constitutional Court might administer constitutional
justice and decide whether the law or other legal act which must
be applied in the case considered by the court is not in conflict
with the Constitution (while a substatutory legal act of the
Seimas, an act of the President of the Republic or an act of the
Governmentwith the Constitution and/or laws);
- if the court, after it has faced doubts as regards the
compliance of the law applicable in the case with the
Constitution, did not suspend the consideration of the case and
did not apply to the Constitutional Court so that these doubts
could be removed, and if the legal act the compliance of which
with the Constitution is doubtful was applied in the case, the
court would take a risk to adopt such a decision, which would not
be a just one;
- under the Constitution, the Constitutional Court decides
as for the compliance of not all legal acts (parts thereof) with
the Constitution (other legal acts of higher power), but only
whether legal acts (part thereof) issued by the Seimas, the
President of the Republic or the Government or adopted by
referendum are not in conflict with a legal act of higher power,
inter alia (and first of all) with the Constitution;
- under the Constitution, such legal situations are
impermissible where it would not be possible to verify in a court
whether legal acts (parts thereof), inter alia legal acts issued
by ministers, other legal acts of lower power, as well as legal
acts issued by municipalities, whose control as regards their
compliance with the Constitution does not fall within the
jurisdiction of the Constitutional Court, are not in conflict
with the Constitution and laws;
- when executing this constitutional imperative, under the
Constitution, the legislator has the duty to establish by law, in
which courts (of general jurisdiction or specialized ones,
established under Paragraph 2 of Article 111 of the Constitution)
and under which procedure one must investigate and decide whether
the legal acts (parts thereof) the control of whose compliance
with the Constitution is not attributed to the jurisdiction of
the Constitutional Court under the Constitution (inter alia legal
acts, passed by the ministers, other substatutory legal acts of
lower power, as well as legal acts, passed by municipal
institutions) are not in conflict with the Constitution and laws;
if the legislator for certain reasons has not carried out this
constitutional duty (though the Constitution does not tolerate
this), still the courts, under Paragraph 1 of Article 110 of the
Constitution, may not apply any such legal acts, which are in
conflict with the Constitution;
- at present the legal regulation is established by the Law
on the Proceedings of Administrative Cases and other laws whereby
decision on the compliance of the legal acts, passed by other
subjects of law-making (thus, those passed not by the Seimas, the
President of the Republic or the Government and not adopted by
referendum) with legal acts of greater power, inter alia (and,
first of all) with the Constitution, is attributed to the
jurisdiction of administrative courts; if the administrative
court recognizes such legal act as being in conflict with the
Constitution (other legal act of greater power), then, under the
Constitution and laws, such decision of the said court has erga
omnes impact on the whole practice of the application of
corresponding legal acts (parts thereof);
- the investigation on whether the legal acts (parts
thereof), passed by other subjects of law-making (thus, which
were passed not by the Seimas, the President of the Republic or
the Government and not adopted by referendum) are not in conflict
with legal acts of greater power, inter alia (and, first of all)
with the Constitution, and adoption of corresponding decisions
imply the necessity for the administrative court that decides the
case to ascertain whether these legal acts of greater power
(parts thereof) themselves are not in conflict with any legal
acts of even greater power, inter alia (and, first of all) with
the Constitution, and, if there are doubts, in order to remove
them, to take measures provided for in the Constitution and laws,
certainly, without interfering with the powers attributed to the
Constitutional Court; if this is not done, there would be a risk
to adopt a decision that would not be a just one, i.e. to apply a
certain legal act (part thereof), based on the legal act of
greater power, which would be recognized as being in conflict
with a legal act of even greater power, or even with the
Constitution itself if proper investigation were carried out, or
not to apply a certain legal act (part thereof) that was
recognized as being in conflict with a legal act of greater power
by the administrative court, even though that legal act of
greater power should be recognized as being in conflict with a
legal act of even greater power, or even with the Constitution
itself, if proper investigation were carried out; in case it
happened, preconditions would be created to violate the values,
inter alia constitutional rights of the person, entrenched in and
protected and defended by the Constitution;
- the investigation on the compliance of the legal acts
(parts thereof) passed by other subjects of law-making (thus,
which were passed not by the Seimas, the President of the
Republic or the Government and not adopted by referendum) which
are attributed to the jurisdiction of administrative courts by
laws (inter alia by the Law on the Proceedings of Administrative
Cases), with legal acts of greater power, save the Constitution
itself, implies the initiation of a corresponding case of
constitutional justice at the Constitutional Court, thus also the
duty of the administrative courts to apply in such cases to the
Constitutional Court with a corresponding petition, if the
administrative court has doubts on the compliance of a legal act
(part thereof) of greater power, passed by the Seimas, the
President of the Republic or the Government or adopted by
referendum, with a legal act of even greater power, inter alia
(and, first of all) with the Constitution;
- the right of each person to defend his rights on the
basis of the Constitution and the right to apply to court of the
person whose constitutional rights or freedoms are violated also
imply that each party of the case considered by a court, which
has doubted on the compliance of the law or other legal act (part
thereof) that may be applied in that case and the investigation
on the compliance of which with the Constitution (other legal act
of greater power) is attributed to the jurisdiction of the
Constitutional Court (i.e. the compliance of a certain act (part
thereof) of the Seimas, the President of the Republic or the
Government or an act (part thereof) adopted by referendum with
the Constitution (other legal act of greater power)), has the
right to apply to the court of general jurisdiction or a
corresponding specialised court established under Paragraph 2 of
Article 111 of the Constitution which considers the case and to
request to suspend the consideration of the case and to apply to
the Constitutional Court with a petition, requesting to
investigate and decide whether the legal act (part thereof)
passed by the Seimas, the President of the Republic or the
Government or adopted by referendum and which is applicable in
the said case, is not in conflict with a legal act of greater
power, inter alia (and, first of all) with the Constitution; this
is applicable mutatis mutandis also to those legal situations
when a certain party of a case considered by a court has doubts
on the compliance of the law or other legal act (part thereof)
that may be applied in that case and the investigation on the
compliance of which with the Constitution (other legal act of
greater power) is not attributed to the jurisdiction of the
Constitutional Court (i.e. that act has not been passed by the
Seimas, by the President of the Republic or by the Government and
it has not been adopted by referendum)the said party, under the
Constitution and laws (inter alia Law on the Proceedings of
Administrative Cases), has the right to apply to the
corresponding administrative court on the compliance of such
legal act (part thereof) with the Constitution (other legal act
of greater power);
- the courts, having doubted on the compliance of a legal
act (part thereof), passed by the Seimas, the President of the
Republic or the Government or adopted by referendum with a legal
act of greater power, inter alia (and, first of all) with the
Constitution, not only may but also must apply to the
Constitutional Court;
- the Constitution does not tolerate any such situations,
when a certain court, which, in a case considered by it, has to
apply a legal act (part thereof) concerning the compliance of
which with a legal act of greater power, inter alia (and, first
of all) with the Constitution another petitioner (for example,
other court) has already applied to the Constitutional Court,
neither (in case he doubts on the compliance of the legal act
(part thereof) with a legal act of greater power, inter alia
(and, first of all) with the Constitution) suspends the
consideration of the corresponding case and applies to the
Constitutional Court in order that these doubts would be removed,
nor (in case he doubts on the compliance of the legal act (part
thereof) with a legal act of greater power, inter alia (and,
first of all) with the Constitution) applies this legal act (part
thereof), but when it has information that another petitioner
(for example, other court) has already applied to the
Constitutional Court concerning the compliance of that legal act
(part thereof) with a legal act of greater power, inter alia
(and, first of all) with the Constitution, suspends the
consideration of the case and does not decide on the case before
the Constitutional Court finishes the consideration of the
corresponding case under the petition of the said another
petitioner;
- under the Constitution, the court considering the case
which, under the Constitution, not only has the powers but (if it
has certain doubts) also must apply to the Constitutional Court
with a petition requesting to decide whether the legal act (part
thereof) passed by the Seimas, the President of the Republic or
the Government or adopted by referendum is not in conflict with a
legal act of greater power, inter alia (and, first of all) with
the Constitution, also has the constitutionally grounded interest
to receive a corresponding Constitutional Court answer that such
answer will be given; a different construction of the
corresponding provisions of the Constitution could create
preconditions for the court that considers the corresponding case
to apply such law or other legal act (part thereof) on whose
compliance with the Constitution (other legal act of greater
power) the said court has doubts;
- in the cases when the Constitutional Court is applied by
the court which considers a case and which had doubts on the
compliance of the law applicable in that case with the
Constitution as well as on the compliance of other act passed by
the Seimas, the President of the Republic, or the Government with
the Constitution or laws, the Constitutional Court has the duty
to consider the petition of the court irrespective of whether or
not the disputed law or other legal act is valid.
In the context of the provisions of the official
constitutional doctrine one is also to mention the fact that,
under the Constitution and the Law on the Constitutional Court,
no court has locus standi to apply to the Constitutional Court
with a petition requesting to investigate whether a law (part
thereof) or another legal act (part thereof), which should not
(could not) be applied in the case considered by the said court
is not in conflict with the Constitution (Constitutional Court
decisions of 22 May 2007, 27 June 2007 and 5 July 2007).
9. In the context of the constitutional justice case at
issue it needs to be noted that, under the CCP, courts must heed
the principles and norms of civil procedure law, however, this
duty of the court may not be interpreted as permitting to raise
the principles and norms of civil procedure law or those of civil
law above the principles and norms of the Constitution, nor as
permitting to construe the principles and norms of civil
procedure law or those of civil law so that the meaning of the
provisions of the Constitution would be distorted or ignored
(Constitutional Court ruling of 21 September 2006).
10. In the context of the constitutional justice case at
issue, it needs to be noted that, as it was held in the
Constitutional Court ruling of 21 September 2006, under the
Constitution, the relations of civil procedure have to be
regulated by means of a law in the way that legal pre-conditions
would be created for a court to investigate all the circumstances
which are important to the case and to adopt a just decision in
the case and that it would be possible to file an appeal against
any final act, which was adopted at a court of first instance, at
a court of higher instance. In the same ruling the Constitutional
Court also held that the law must establish not only the right of
the party to the proceedings to lodge an appeal with at least one
court of higher instance against any final act which was adopted
in a case by a court of first instance, but also it must
establish a procedure of such appeal, which would permit to
correct possible mistakes of the court of first instance;
otherwise, one would deviate from the constitutional principle of
a state under the rule of law and the constitutional right of the
person to proper legal process would be violated. It was also
held in the same Constitutional Court ruling that "by each final
court act justice is administered in a corresponding case" and
that "the final court act adopted in a corresponding case is one
act of application of law, whereby that case is finished".
In the context of the necessity (which arises from the
Constitution) to provide for an opportunity to lodge an appeal
with at least one court of higher instance against any final act
which was adopted in a case by a court of first instance, it
needs to be noted that until the adoption of the court final act
in the case, the court has to adopt procedural decisions of
various form and character, by which the case is not completed.
Such procedural court decisions are not court final acts. The
Constitution does not demand that an opportunity be ensured by
means of a law to lodge a complaint against any court procedural
decision adopted in the case (i.e. not a final act); various
exceptions are possible in this area. One is to pay attention to
the fact that, as it was held in the Constitutional Court ruling
of 21 September 2006), the Constitution does not prevent
regulating the civil procedure whereby no legal preconditions are
created, which could permit the parties to the proceedings to
abuse their right to appeal against a decision adopted in their
case and, thus, to procrastinate the proceedings.
In this context one is to note that the formula "lodging a
complaint with at least one court of higher instance against any
final act which was adopted in a case by a court of first
instance" is employed in the jurisprudence of the Constitutional
Court (as well as in this Constitutional Court ruling) in its
constitutional meaning, but not in the manner that this formula
could be used (is used) in ordinary law. The legislator, while
regulating the relations of civil procedure, enjoys certain
discretion in establishing various grounds and terms for lodging
such complaint, as well as various judicial institutions with
which one can lodge a complaint against final acts of a court of
first instance, and in consolidating corresponding separate
institutes in civil procedure laws. In exceptional cases and only
if it is possible to substantiate it constitutionally (inter alia
by the fact that no legal preconditions would be created, which
could permit the parties to the proceedings to abuse their right
to lodge a complaint against a decision adopted in their case
and, thus, to procrastinate the proceedings) one can also
establish (without creating any legal preconditions to violate
the rights of the person, or other constitutional values, or to
deviate from the requirements of proper legal process) such legal
regulation whereby one could lodge a complaint against certain
final acts adopted by a court of first instance not with a court
of higher instance, but with the court that adopted the
corresponding final act (every such situation could be subject to
constitutional control). In this respect the notion "lodging a
complaint" (which, as mentioned, is employed not in the ordinary,
but constitutional sense) encompasses not only lodging a
corresponding complaint (appeal, cassation) provided for in civil
procedure laws, by means of which one attempts to initiate a
review of this final act (also to renew the consideration of the
case), but also other situations of lodging a complaint against a
final act adopted by a court of first instance. While defining
such situations, in civil procedure laws one can consolidate
various notions (not only the notion "lodging a complaint"),
which reflect corresponding separate institutes of civil
procedure. However, the Constitution does not permit to establish
any such legal regulation whereby in cases of a certain category
it would be impossible in all situations to seek to initiate
reviewing the final act adopted by the court of first instance in
the said case, since thus one would deny an opportunity to
correct possible mistakes made by the court, to apply law justly
and to administer justice; upon establishing such legal
regulation, the constitutional concept of justice would be
limited only to formal, nominal justice administered by the
court, only to the appearance of justice administered by the
court, but it would not mean the justice which is consolidated in
and protected and defended by the Constitution; the legal
regulation established in civil procedure law (i.e. in ordinary
law) would be placed above the principles and norms of the
Constitution.
11. It needs to be emphasised that the court, while
suspending the consideration of the case because of the
application to the Constitutional Court or an administrative
court, does not decide the case in essence, but only creates
preconditions to adopt a just court final act. As mentioned, in
cases where a court, which is considering a case, faces doubts
whether a law (other legal act) applicable in the case is not in
conflict with the Constitution, it must apply to the
Constitutional Court and request to decide whether this law
(other legal act) is in compliance with the Constitution, and
until the Constitutional Court decides this issue, the
consideration of the case in court may not be continued, i.e. it
must be suspended. Thus, the application to the Constitutional
Court or an administrative court and suspension of the case in
which it was decided to apply to the Constitutional Court or an
administrative court are procedural actions, which are
inseparably interrelated.
It has also been mentioned that neither Paragraph 2 of
Article 110 of the Constitution, nor any other part of the
Constitution establishes expressis verbis by what procedural
decision the consideration of the case must be suspended and that
the establishment of this must be specified by the legislator.
Under Article 165 (wording of 28 February 2002) of the CCP, the
court, which has decided to apply to the Constitutional Court or
an administrative court, shall suspend the case by its ruling.
The application of the court to the Constitutional Court or an
administrative court is also formalised by means of a ruling
according to laws (Paragraph 2 of Article 67 of the Law on the
Constitutional Court, Paragraph 4 (wording of 28 February 2002)
of Article 3 (wording of 8 April 2003) of the CCP). According to
the established court practice both these procedural actions are
formalised by one and the same ruling. In itself the Constitution
does not prohibit this.
Thus, since the court ruling, by which one suspends the
consideration of the case and applies to the Constitutional Court
or an administrative court, does not finish the case, then such a
ruling is not the court final act, the possibility to lodge a
complaint against which is guaranteed by the Constitution.
12. On the other hand, the fact that the Constitution does
not demand that a law ensure the possibility to lodge a complaint
against any court procedural decision (which is not a final act)
does not mean that the court, while adopting such a decision, can
disregard the requirements raised to court acts, especially to
court final acts. The requirements (inter alia regarding
argumentation, clarity and comprehensiveness of court decisions)
raised to court final acts are to be applied also to the
decisions of courts of general jurisdiction and the specialized
courts established under Paragraph 2 of Article 111 of the
Constitution to apply or not to apply (even if a party to the
case requests so) to the Constitutional Court with a petition
requesting to investigate and decide whether a legal act (part
thereof) issued by the Seimas, the President of the Republic or
the Government or adopted by referendum is not in conflict with a
legal act of higher power, inter alia (and first of all) with the
Constitution (Constitutional Court ruling of 28 March 2006 and 5
July 2007).
In this context it needs to be mentioned that, as the
Constitutional Court has held in its acts, the courts that apply
to the Constitutional Court with the request to investigate
whether the law or other legal act (part thereof) is not in
conflict with the Constitution, while arguing their opinion
presented in the petition that the law or other legal act (part
thereof) is in conflict with the Constitution, may not confine
themselves to general reasoning or statements that the law or
other legal act (part thereof), in their opinion, is in conflict
with the Constitution, but must clearly indicate which disputed
articles (paragraphs, items thereof) and to what extent, in their
opinion, are in conflict with the Constitution, and to reason
their position on the compliance of every disputed provision of
the legal act (part thereof) with the Constitution with clearly
formulated legal arguments (Constitutional Court rulings of 12
December 2005, 16 January 2006, 17 January 2006, decisions of 17
January 2006, 5 July 2007, 6 September 2007, and 12 September
2007).
13. Paragraph 1 of Article 102 of the Constitution (which
provides that the Constitutional Court shall decide whether the
laws and other acts of the Seimas are not in conflict with the
Constitution and whether the acts of the President of the
Republic and the Government are not in conflict with the
Constitution or laws) is to be construed as meaning that the
Constitutional Court has the exclusive constitutional competence
to investigate and decide on whether any act (part thereof) of
the Seimas, the President of the Republic or the Government, or
whether any act (part thereof) adopted by referendum is not in
conflict with any legal act of higher power, inter alia (and,
first of all) with the Constitution (Constitutional Court rulings
of 28 March 2006 and 6 June 2006 and decision of 8 August 2006).
In the context of the constitutional justice case at issue,
it needs to be noted that the exclusive constitutional competence
of the Constitutional Court to decide whether a certain act (part
thereof) of the Seimas, the President of the Republic or the
Government, or a certain act (part thereof) adopted by referendum
is not in conflict with a certain legal act of higher power,
inter alia with the Constitution, also means the exclusive
constitutional competence of the Constitutional Court to decide
on the acceptability of petitions of the subjects (inter alia
courts) specified in Article 106 of the Constitution at the
Constitutional Court. The construction with an opposite meaning
of the empowerment of the Constitutional Court stemming from
Paragraph 1 of Article 102 of the Constitution would virtually
distort or even deny the essence and meaning of constitutional
control and constitutional justice.
It has been mentioned that one of the essential elements of
the principle of a state under the rule of law, which is
consolidated in the Constitution, is the principle that a legal
act, which is in conflict with a legal act of higher power, may
not be applied; that the powers of courts to suspend the
consideration of the case and apply to the Constitutional Court
with a petition requesting to investigate the compliance of the
legal act with the Constitution are expressis verbis consolidated
in the Constitution; that Article 110 of the Constitution
consolidates a prohibition to apply a law, which is in conflict
with the Constitution, and a duty of a judge considering a case,
in case there are doubts whether the law or other legal act
applicable in the case is not in conflict with the Constitution,
to suspend the consideration of the case and to apply to the
Constitutional Court requesting it to decide whether the law or
other legal act in question is in compliance with the
Constitution.
It needs to be emphasised that, under the Constitution, the
grounds to initiate a constitutional justice case at the
Constitutional Court are the doubts which arise to the court
(judge) that is considering a concrete case, regarding the
conformity of the legal act applicable in that case with the
Constitution (other legal act of higher power), which must be
removed so that the said court could adopt a just decision (other
final court act) in that case. It is only the Constitutional
Court that can remove such doubts (i.e. to deny or to confirm
their reasonableness) within its competence. Thus, no court of
general jurisdiction of higher instance or a specialized court
established under Paragraph 2 of Article 111 of the Constitution
enjoys powers to assess the lawfulness and/or reasonableness of a
ruling of a court of lower instance to suspend the consideration
of the case and to apply to the Constitutional Court regarding
the compliance of a legal act (part thereof) with the
Constitution (other legal act of higher power), since, otherwise,
preconditions would be created to violate the exclusive
competence of the Constitutional Court established in Paragraph 1
of Article 102 of the Constitution, as well as virtually to deny
the empowerment of the court (judge) (which are established in
Paragraph 2 of Article 110 and Paragraphs 1, 2, and 3 of Article
106 of the Constitution) to suspend the consideration of the case
and apply to the Constitutional Court.
The prohibition (which stems from the Constitution) to
courts of higher instance to assess the lawfulness and/or
reasonableness of a ruling of a court of lower instance to
suspend the consideration of the case and to apply to the
Constitutional Court regarding the compliance of a legal act
(part thereof) with the Constitution (other legal act of higher
power) is applied mutatis mutandis also to the court rulings to
apply to a corresponding administrative court with a petition
requesting to investigate whether a legal act (part thereof)
which is to be applied in a corresponding case and the
verification of the compliance of which with legal acts of higher
power, inter alia (and first of all) with the Constitution, is
ascribed to the jurisdiction of administrative courts, but not
the Constitutional Court, is not in conflict with the
Constitution.
Thus, it is impossible to assess the legal regulation
consolidated in disputed Article 165 (wording of 28 February
2002) of the CCP as the one limiting the constitutional
empowerment to administer justice. Quite to the contrary, such
legal regulation seeks to ensure that a just decision (other
court final act) be adopted in the case.
14. Taking account of the arguments set forth, one is to
draw a conclusion that the reservation "save the ruling whereby
one applies to the Constitutional Court or an administrative
court" of Article 165 (wording of 28 February 2002) of the CCP is
not in conflict with Article 109 of the Constitution.
15. While deciding, subsequent to the petition of the
Vilnius Regional Court, the petitioner, whether the disputed
reservation is not in conflict with Paragraph 1 of Article 29 of
the Constitution (in which, as mentioned, it is established that
all persons shall be equal before the law, the court, and other
state institutions and officials), it needs to be held that, as
the Constitutional Court held in its acts more than once, the
principle of equal rights of persons means the innate human right
to be treated equally with others and it consolidates formal
equality of all persons, obliges to legally assess the same facts
in the same manner and prohibits from arbitrary assessment of the
facts that are essentially the same in a varied manner, it does
not allow to discriminate persons, nor grant them any privileges,
however, the same principle does not deny a possibility to
establish different (differentiated) legal regulation in the law
with respect to the categories of certain persons which are in
different situations; this constitutional principle would be
violated, if certain persons, to whom corresponding legal
regulation is designated, if compared with other persons to whom
corresponding legal regulation is designated, were treated
differently, even though there are no such differences between
them so that such different treatment would be objectively
justifiable.
16. In the context of the constitutional justice case at
issue, it needs to be emphasised that, under the Constitution,
the legal regulation of the relations of civil procedure must be
such so that the participants (which have the same procedural
legal status) to the proceedings would be treated equally; thus,
they should have the same rights and duties, unless there are the
differences between them of such character and extent that the
unequal treatment would be objectively justified; otherwise, one
would deviate from the constitutional principles of a state under
the rule of law and equality of persons (Constitutional Court
ruling of 21 September 2006).
17. It has been mentioned that the doubts of the petitioner
regarding the compliance of Article 165 (wording of 28 February
2002) of the CCP with the Constitution are inter alia grounded on
the fact that, according to the petitioner, Article 165 of the
CCP prohibits to lodge a separate complaint regarding a court
ruling, whereby the corresponding case was suspended due to the
application to the Constitutional Court or an administrative
court, although the CCP does not limit the right to lodge a
complaint where the case is suspended under Item 9 of Article 163
of the CCP, i.e. when the court applies to a competent
institution of the EU. It has also been mentioned that Article
165 (wording of 28 February 2002) of the CCP is designed for the
regulation of the relations linked with lodging a complaint
against not all, but only with rulings of courts of first
instance regarding suspension of the case.
18. The disputed reservation and the provision that a
separate complaint can be lodged regarding a court ruling to
suspend the case because of the application to a competent
institution of the EU is related with different legal situations.
The court of first instance applies to the Constitutional
Court or an administrative court when it has doubts regarding the
compliance of the legal act that is to be applied in the case
with the Constitution (other legal act of higher power); in order
that a legal act conflicting with the Constitution would not be
applied in the case, the said doubts must be removed, while the
court can do so only by applying to the Constitutional Court or
an administrative court. Meanwhile, a court of first instance
(i.e. a national court) applies to an EU judicial institution
when in the course of application of EU law it faces a problem of
construction or validity of acts of EU law, and, in order that EU
law might be properly applied, it is necessary to receive a
preliminary ruling (under Article 234 of the Treaty Establishing
the European Community). Thus, in each of these legal situations
the court of first instance faces questions of different
character, and different judicial institutionsone of which is a
national one (the Constitutional Court or an administrative
court), while the other one is an EU judicial institutionhave to
help solve these questions.
Thus, there are no grounds to assert that the reservation
"save the ruling whereby one applies to the Constitutional Court
or an administrative court" of Article 165 (wording of 28
February 2002) of the CCP in the aspect pointed out by the
Vilnius Regional Court, the petitioner, is in conflict with
Paragraph 1 of Article 29 of the Constitution. On the other hand,
taking account of the extent of the disputed regulation, the
provision that a separate complaint can be lodged regarding a
court ruling to suspend the case because of the application to a
competent institution of the EU is not considered in any other
aspect (inter alia the compliance of the said provision with the
Constitution in the constitutional justice case at issue).
19. Taking account of the arguments set forth, one is to
draw a conclusion that the reservation "save the ruling whereby
one applies to the Constitutional Court or an administrative
court" of Article 165 (wording of 28 February 2002) of the CCP is
not in conflict with Paragraph 1 of Article 29 of the
Constitution.
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 the provision "the courts, when they
apply law, shall take account of the construction of application
of law which is contained in the rulings adopted under cassation
procedure" of Article 4 (wording of 28 February 2002) (Official
Gazette Valstybės žinios, 2002, No. 36-1340) and the reservation
"save the ruling whereby one applies to the Constitutional Court
or an administrative court" of Article 165 (wording of 28
February 2002) (Official Gazette Valstybės žinios, 2002, No. 36-
1340) of the Code of Civil Procedure of the Republic of Lithuania
are not in conflict with the Constitution of the Republic of
Lithuania.
This ruling of the Constitutional Court is final and not
subject to appeal.
The ruling is promulgated in the name of the Republic of
Lithuania.
Justices of the Constitutional Court:
Armanas Abramavičius
Toma Birmontienė
Egidijus Kūris
Kęstutis Lapinskas
Zenonas Namavičius
Ramutė Ruškytė
Vytautas Sinkevičius
Stasys Stačiokas
Romualdas Kęstutis Urbaitis