Case No. 16/05
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
RULING
ON THE COMPLIANCE OF PARAGRAPH 4 (WORDING OF 24
JANUARY 2002) OF ARTICLE 47 (WORDING OF 3 APRIL 2003)
OF THE REPUBLIC OF LITHUANIA LAW ON COURTS WITH THE
CONSTITUTION OF THE REPUBLIC OF LITHUANIA, ON THE
COMPLIANCE OF DECREE OF THE PRESIDENT OF THE REPUBLIC
OF LITHUANIA NO. 140 "ON DISMISSAL OF A JUDGE OF A
REGIONAL COURT" OF 1 JULY 2004 WITH THE CONSTITUTION
OF THE REPUBLIC OF LITHUANIA, WITH PARAGRAPHS 1 AND 2
OF ARTICLE 83 (WORDING OF 24 JANUARY 2002),
PARAGRAPHS 1 AND 6 OF ARTICLE 84 (WORDING OF 24
JANUARY 2002), PARAGRAPH 2 OF ARTICLE 86 (WORDING OF
24 JANUARY 2002), ITEM 5 OF PARAGRAPH 1 AND PARAGRAPH
6 OF ARTICLE 90 (WORDING OF 24 JANUARY 2002), ALSO ON
THE DISMISSAL OF PART OF THE CASE SUBSEQUENT TO THE
PETITION OF THE COURT OF APPEAL OF LITHUANIA, THE
PETITIONER, REQUESTING TO INVESTIGATE THE COMPLIANCE
OF DECREE OF THE PRESIDENT OF THE REPUBLIC OF
LITHUANIA NO. 140 "ON DISMISSAL OF A JUDGE OF A
REGIONAL Court" OF 1 JULY 2004 WITH PARAGRAPH 7
(WORDING OF 24 JANUARY 2002) OF ARTICLE 90 OF THE
REPUBLIC OF LITHUANIA LAW ON COURTS
17 December 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 President of the Republic of
Lithuania, the party concerned, who were Česlovas Atkočaitis and
Darius Vilimas, advisers on legal issues to the President of the
Republic,
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, on 10 December
2007 at the public Court hearing heard Case No. 16/05 subsequent
to the petition of the Court of Appeal of Lithuania, the
petitioner, requesting to investigate whether Decree of the
President of the Republic of Lithuania No. 140 "On Dismissal of a
Judge of a Regional Court" of 1 July 2004 is not in conflict with
the "principles of a state under the rule of law" which,
according to the petitioner, are consolidated in the Preamble to
the Constitution of the Republic of Lithuania, with the principle
of equality of all persons before the law, state institutions and
officials, which is consolidated in Paragraph 1 of Article 29 of
the Constitution, with Article 115 thereof to the extent that it
is established that judges of courts of the Republic of Lithuania
shall be dismissed from office according to the procedure
established by law, with the procedure of disciplinary liability
and dismissal of judges, which, according to the petitioner, is
consolidated in Paragraph 1 of Article 83, Articles 83, 84, 86,
Item 5 of Paragraph 1, Paragraphs 6 and 7 of Article 90 of the
Republic of Lithuania Law on Courts.
The Constitutional Court
has established:
I
The Court of Appeal of Lithuania, the petitioner, was
considering a civil case. By its ruling, the said court suspended
the consideration of the case and applied to the Constitutional
Court with a petition requesting to investigate whether Decree of
the President of the Republic No. 140 "On Dismissal of a Judge of
a Regional Court" of 1 July 2004 (hereinafter also referred to as
Decree of the President of the Republic No. 140 of 1 July 2004)
is not in conflict with the "principles of a state under the rule
of law" which, according to the petitioner, are consolidated in
the Preamble to the Constitution of the Republic of Lithuania,
with the principle of equality of all persons before the law,
state institutions and officials consolidated in Paragraph 1 of
Article 29 of the Constitution, with Article 115 thereof to the
extent that it is established that judges of courts of the
Republic of Lithuania shall be dismissed from office according to
the procedure established by law, with the procedure of
disciplinary liability and dismissal of judges, which, according
to the petitioner, is consolidated in Paragraph 1 of Article 83,
Articles 83, 84, 86, Item 5 of Paragraph 1, Paragraphs 6 and 7 of
Article 90, of the Republic of Lithuania Law on Courts.
II
The Court of Appeal of Lithuania, the petitioner, grounds
its petition on the fact that pursuant to Item 11 of Article 84
of the Constitution, the President of the Republic shall dismiss
judges and presidents of lower level courtsregional and district
courtspursuant to the procedure provided for in laws; the
procedure of dismissal of judges is established in the Law on
Courts, whereto, according to the petitioner, Article 112 of the
Constitution directs. Chapter IX of the Law on Courts establishes
liability of judges and the procedure of their dismissal and
removal from office; under Paragraph 1 of Article 83 of this law,
a judge shall be held liable under disciplinary procedure at the
Judicial Court of Honour, which can adopt decisions established
in Paragraphs 1, 2 of Article 86 of the Law on Courts. By the
disputed decree of the President of the Republic, G. Baziulis, a
judge of the Vilnius Regional Court, was dismissed from office
due to his behaviour discrediting the name of the judge according
to Item 5 of Article 115 of the Constitution, although the
disciplinary case instituted against him had not yet been
considered at the Judicial Court of Honour. However, in the
opinion of the petitioner, the President of the Republic hardly
was entitled to dismiss this judge on the above grounds before a
respective decision was adopted by the Judicial Court of Honour.
Since, according to Paragraph 1 of Article 29 of the
Constitution, all persons shall be equal before the law, the
court, and other state institutions and officials, the petitioner
had doubts whether by Decree of the President of the Republic No.
140 of 1 July 2004 an exception had not been made regarding G.
Baziulis and whether there was no violation of the principles of
a just civil society, a state under the rule of law and the
equality of persons before the law.
III
In the course of the preparation of the case for the
Constitutional Court hearing written explanations of the
representatives of the President of the Republic, the party
concerned, who were Č. Atkočaitis and D. Vilimas, were received
wherein it is stated that the disputed decree of the President of
the Republic is not in conflict with the Constitution and the Law
on Courts. The position of the representatives of the President
is grounded on the following arguments.
1. Under Paragraph 2 of Article 77 of the Constitution,
the President of the Republic shall perform everything with which
he is charged by the Constitution and laws. Article 122 of the
Constitution and Article 90 of the Law on Courts consolidate the
right of the President of the Republic to dismiss judges from
office. Article 115 of the Constitution and the Law on Courts
provide for the grounds of dismissing judges from office, inter
alia when a judge, by his behaviour, discredits the name of the
judge. Impeccable reputation (Article 52 of the Law on Courts) is
an essential requirement for a judge persisting over the entire
period of his authorisations. Upon transpiring that a judge, by
his behaviour, discredited the name of the judge, the
constitutional obligation emerges for the President of the
Republic to apply for the advice to the Council of Courts
regarding dismissal of such a judge, and dismiss him upon receipt
of such advice.
The exceptional powers of the President of the Republic
to appoint judges and presidents of regional and district courts
to office, to transfer and dismiss them from office provided for
in Item 11 of Article 84 and Article 112 of the Constitution are
to be implemented without any reservations, and such powers are
not subject to limitations by other state authorities nor the
willpower of courts. The President of the Republic, by the
disputed decree dismissing G. Baziulis, a judge of the Vilnius
Regional Court, from office made an assessment of the behaviour
of the judge discrediting the name of the judge, but did not
decide regarding the issue of guilt of G. Baziulis, which is
attributed to the competence of the court by Articles 5, 109, 114
of the Constitution. While executing Article 112 of the
Constitution, the President of the Republic took account of the
advice given to the President of the Republic by the Council of
Courts, the self-government institution of judges provided for in
the Law on Courts, which assessed the behaviour of G. Baziulis as
discrediting the name of the judge, to dismiss G. Baziulis, a
judge of the Vilnius Regional Court, from office upon his
discrediting the name of the judge (Resolution of the Council of
Courts No. 251 "On the Advice to the President of the Republic of
Lithuania to Dismiss a Judge of a Regional Court from Office" of
30 June 2004).
2. Two alternative ways of bringing a judge to liability
for discrediting the name of the judge are provided in Item 1 of
Paragraph 2 of Article 83, Item 5 of Paragraph 1 of Article 90 of
the Law on Courts: a judge may be held liable under disciplinary
procedure or a judge may be dismissed from office pursuant to the
procedure stipulated in Article 90 of the Law on Courts. It
depends on the severity of the committed offence. On the other
hand, the institution of a disciplinary case is not an obstacle
to dismiss a judge from office, if by his behaviour he clearly
discredited the name of the judge, since dismissal from office is
not a disciplinary punishment and it should be related with the
nonconformity of the person to the requirements established to a
judge by laws. It was established that G. Baziulis, a judge of
the Vilnius Regional Court, discredited the name of the judge by
his behaviour, therefore, it is to be considered that this judge
was dismissed from office according to the requirements of the
Law on Courts.
IV
In the course of the preparation of the case for the
judicial consideration a paper of R. Laurinavičius, the Acting
Director of the National Courts Administration, was received
wherein the information was enclosed on dismissal from office of
judge G. Baziulis of the Vilnius Regional Court.
V
Prior to the Constitutional Court hearing a witness, the
dismissed judge G. Baziulis of the Vilnius Regional Court, was
questioned. He gave testimony and explanations, virtually
identical to those presented in the civil case considered by the
Court of Appeal of Lithuania, wherein it was decided to apply to
the Constitutional Court and which was attached to the petition
of this petitioner requesting to investigate the compliance of
Decree of the President of the Republic No. 140 of 1 July 2004
with the Constitution and with the articles (paragraphs thereof)
of the Law on Courts.
VI
At the Constitutional Court hearing, the representatives of
the President of the Republic, the party concerned, who were Č.
Atkočaitis and D. Vilimas, virtually repeated the arguments set
forth in their written explanations and presented additional
explanations.
The witness, the dismissed judge G. Baziulis of the Vilnius
Regional Court, gave testimony at the Constitutional Court
hearing.
The Constitutional Court
holds that:
I
1. On 1 July 2004, the President of the Republic issued
Decree No. 140 "On Dismissal of a Judge of a Regional Court",
which establishes the following:
"Article 1.
In pursuance of Item 11 of Article 84, Item 5 of Article
115 of the Constitution of the Republic of Lithuania and upon
advice by the Council of Courts I hereby d i s m i s s judge
Giedrius BAZIULIS of the Vilnius Regional Court from office upon
his discrediting the name of the judge by his behaviour.
Article 2.
This decree shall take effect on the day of its signing."
2. The Court of Appeal of Lithuania, the petitioner,
requests to investigate whether this decree of the President of
the Republic is not in conflict with the "principles of a state
under the rule of law", which, according to the petitioner, is
consolidated in the Preamble to the Constitution, with the
principle of equality of all persons before the law, state
institutions and officials, which is consolidated in Paragraph 1
of Article 29 of the Constitution, with Article 115 thereof to
the extent that it is established that judges of courts of the
Republic of Lithuania shall be dismissed from office according to
the procedure established by law, with the procedure of
disciplinary liability and dismissal of judges, which, according
to the petitioner, is consolidated in Paragraph 1 of Article 83,
Articles 83, 84, 86, Item 5 of Paragraph 1, Paragraphs 6 and 7 of
Article 90 of the Law on Courts.
3. The Court of Appeal of Lithuania, the petitioner,
requests to investigate whether Decree of the President of the
Republic No. 140 1 July 2004 is not in conflict with inter alia
the "principles of a state under the rule of law", which,
according to the petitioner, are consolidated in the Preamble to
the Constitution. The Constitutional Court has more than once
held in its acts that the principle of a state under the rule of
law is consolidated not only in the Preamble to the Constitution,
in addition, that the investigation of the compliance of legal
acts (paragraphs thereof) with the striving for a just civil
society and state under the rule of law proclaimed in the
Preamble to the Constitution implies the investigation of the
compliance thereof with the constitutional principle of a state
under the rule of law.
4. It is clear from the arguments of the petition of the
Court of Appeal of Lithuania, the petitioner, that the petitioner
requests to investigate whether Decree of the President of the
Republic No. 140 is not in conflict with the articles (paragraphs
thereof) of the Law on Courts set forth in the wording of 24
January 2002.
5. It has been mentioned that the petitioner requests to
investigate whether the disputed decree of the President of the
Republic is not in conflict with inter alia Paragraph 7 of
Article 90 of the Law on Courts (wording of 24 January 2002).
It is to be noted that Paragraph 7 of Article 90 of the
Law on Courts (wording of 24 January 2002) by the ruling of the
Constitutional Court of 9 May 2006 was recognised as
contradicting to Paragraph 2 of Article 5, Paragraph 5 of Article
112 of the Constitution, to the constitutional principle of the
separation of powers and to the constitutional principle of a
state under the rule of law. Therefore, the investigation of the
compliance of the disputed decree of the President of the
Republic with this paragraph becomes meaningless: if it were
investigated, an essentially false presumption would have to be
made, as if a substatutory legal act should comply with an anti-
constitutional law. Such a presumption would negate the concept
of the hierarchy of legal acts consolidated in the Constitution,
with the Constitution at the top of it; thus, the essence of
constitutional justice itself would be distorted.
Taking account of the arguments set forth, one is to hold
that there is no matter of investigation in this part of the
constitutional justice case, thus the part of the case regarding
the compliance of the President of the Republic Decree No. 140 of
1 July 2004 with Paragraph 7 of Article 90 of the Law on Courts
(wording of 24 January 2002) is to be dismissed.
6. It is clear from the arguments of the petition of the
Court of Appeal of Lithuania, the petitioner, that it has doubted
regarding the compliance of Decree of the President of the
Republic No. 140 of 1 July 2004 with inter alia:
- not entire Article 83 (wording of 24 January 2002) of
the Law on Courts, but only the provision "a judge may be held
liable under disciplinary procedure: (1) for behaviour
discrediting the name of the judge" of Paragraph 2 of Paragraph 1
thereof;
- not entire Article 84 (wording of 24 January 2002) of
the Law on Courts, but only the provision "A disciplinary case
may be instituted against a judge immediately upon emerging of at
least one of the offences stipulated in Paragraph 2 of Article 83
of this Law" of Paragraph 1 thereof, and the provision "The
instituted disciplinary case shall be referred to the Judicial
Court of Honour" of Paragraph 6 thereof;
- not entire Article 86 (wording of 24 January 2002) of
the Law on Courts, but only the provision "The Judicial Court of
Honour by its decision may suggest to the President of the
Republic <
> pursuant to the procedure stipulated by this Law <
>
(2) to dismiss the judge from office" of Paragraph 2 thereof;
- not entire Article 90 (wording of 24 January 2002) of
the Law on Courts, but only the provision "A judge of the
regional court <
> shall be dismissed from office by the
President of the Republic" of Paragraph 6 thereof.
7. In summary, it should be held that in this
constitutional justice case the compliance of Decree of the
President of the Republic No. 140 of 1 July 2004 with the
Constitution and articles (paragraphs thereof) of the Law on
Courts is disputed only in the aspect that by this decree of the
President of the Republic, judge G. Baziulis of the Vilnius
Regional Court was dismissed from office before the consideration
of the disciplinary case instituted against him at the Judicial
Court of Honour and prior to adoption of the decision by the
latter to propose to the President of the Republic to dismiss
that judge from office.
The Constitutional Court will investigate the compliance
of Decree of the President of the Republic No. 140 of 1 July 2004
with the Constitution and with the Law on Courts (paragraphs
thereof) only in the aspect regarding which the arguments are
provided by the Court of Appeal of Lithuania, the petitioner.
II
1. The following has been established in this
constitutional justice case:
- on 12 January 2004, a car driven by judge G. Baziulis of
the Vilnius Regional Court hit a vehicle ahead of it; by causing
this accident G. Baziulis violated Paragraph 2 of Article 127 of
the Code of Administrative Violations of Law of the Republic of
Lithuania (hereinafter also referred to as the CAVL); on the same
day an administrative law violation protocol No. 3-760 was drawn
up, in the section "The Offender" whereof the entry "Unemployed"
was made in the row "Place of Employment"; G. Baziulis did not
say that he was a judge and signed this protocol; he did not
report this administrative violation to the President of the
Vilnius Regional Court (pages 43, 44, volume I of Civil Case No.
2A-286/2005 considered by the Court of Appeal of Lithuania, the
petitioner; testimony of the witness G. Baziulis at the
Constitutional Court hearing);
- upon investigation of the case of administrative law
violation committed by G. Baziulis, by Resolution No. 3-760 of
the Traffic Supervision Service of the public police of the
Vilnius City Chief Police Commissioner's Office of 16 January
2004, sanctioned by judge A. Tilindienė of the Second Vilnius
City District Court, pursuant to Paragraph 1 of Article 30-1 of
the CAVL, whereby inter alia a softer punishment may be imposed
than was provided for in the sanction of a respective CAVL
article, the administrative penalty imposed on G. Baziulis
according to Paragraph 2 of Article 127 of the CAVL was a
warning; G. Baziulis was familiarised with this resolution and
signed it (pages 43, 44, volume I of Civil Case No. 2A-286/2005
considered by the Court of Appeal of Lithuania, the petitioner);
- by letter No. 4-1-1918 "On administrative law violation
committed by Giedrius Baziulis" of V. Junokas, Director of
Special Investigations Service of the Republic of Lithuania
Government, of 20 May 2004, V. Greičius, the President of the
Supreme Court of Lithuania, was informed about the administrative
law violation committed by G. Baziulis; on 2 June 2004, G.
Baziulis presented a written explanation to V. Milius, the
President of the Court of Appeal of Lithuania, in which he inter
alia indicated that after the accident caused on 12 January 2004
he did not specify his place of employment in the explanation
written at the Road Police; on 2 June 2004 V. Milius, the
President of the Court of Appeal of Lithuania, wrote a
presentation to the Ethical and Disciplinary Commission of Judges
regarding the institution of a disciplinary case against judge G.
Baziulis of the Vilnius Regional Court; in the hearing of 9 June
2004 the Ethical and Disciplinary Commission of Judges heard
judge G. Baziulis of the Vilnius Regional Court and on the same
day by Decision No. 5 "To institute a disciplinary case against
judge Giedrius Baziulis" decided to institute a disciplinary case
against him due to behaviour discrediting the name of the judge,
since a conclusion was made that G. Baziulis was aware of the
fact that, according to Paragraph 4 (wording of 24 January 2002)
of Article 47 (wording of 3 April 2003) of the Law on Courts, a
judge may not be brought to administrative liability, however, if
he commits an administrative law violation, the material is
handed over to the Ethical and Disciplinary Commission of Judges,
however he knowingly did not indicate his place of employment and
took no action for the purpose of implementation of the said
provisions of the Law on Courts; by Ordinance No. 2 of 16 June
2004, A. Sirvydis, the President of the Judicial Court of Honour,
established the date of consideration of the disciplinary case
instituted against judge G. Baziulis of the Vilnius Regional
Court14 July 2004 at 14 hrs. (pages 70, 71, 94, 95, 99, 100, 118
, volume I of Civil Case No. 2A-286/2005 considered by the Court
of Appeal of Lithuania, the petitioner);
- on 25 June 2004, upon commission of A. Paulauskas, the
Acting President of the Republic, M. Vainiutė, the adviser on
legal issues to the President of the Republic by letter No. 2D-
2558 "On the advice to the President of the Republic" requested
the Council of Courts to provide advice regarding dismissal of G.
Baziulis from office of a judge of the Vilnius Regional Court; a
copy of this letter was sent to the National Courts
Administration; on 30 June 2004, the Council of Courts at a
special hearing considered this request and adopted Decision No.
251 "On Advice to the President of the Republic of Lithuania to
Dismiss a Judge of the Regional Court", whereby decided to advise
that the President of the Republic dismiss G. Baziulis from
office of a judge of the Vilnius Regional Court due to behaviour
discrediting the name of the judge; G. Baziulis did not take part
in this hearing (pages 87, 134, volume I of Civil Case No. 2A-
286/2005 considered by the Court of Appeal of Lithuania, the
petitioner, Letter No. 4R-444-(1.13) of R. Laurinavičius, the
Acting Director of the National Courts Administration, of 16
March 2007);
- by Decree of the President of the Republic No. 140 "On
Dismissal of a Judge of a Regional Court" of 1 July 2004,
pursuant to Item 11 of Article 84, Article 112, Item 5 of Article
115 of the Constitution and upon advising by the Council of
Courts, judge G. Baziulis of the Vilnius Regional Court was
dismissed from office upon discrediting the name of the judge by
his behaviour.
2. By the Constitutional Court ruling of 9 May 2006,
Paragraph 2 of Article 119 of the Law on Courts (wording of 24
January 2002) to the extent that it was established that not only
judges but also other persons compose the Council of Courts, was
acknowledged as conflicting with Paragraph 5 of Article 112,
Paragraph 2 of Article 5 of the Constitution, with the
constitutional principle of separation of powers, and the
constitutional principle of a state under the rule of law. In the
rulings of 9 May 2006 and 21 September 2006 the Constitutional
Court held that it did not mean that the decisions made by the
Council of Courts composed under the articles (paragraphs
thereof) of the Law on Courts valid at that time (wording of 24
January 2002 with subsequent amendments and supplements) on
advising the President of the Republic regarding appointment,
promotion, transfer, dismissal of judges from office or any other
decisions of such Council of Courts may be questioned on this
basis only.
It has been noted that by the Constitutional Court ruling
of 9 May 2006, Paragraph 7 of Article 90 of the Law on Courts
(wording of 24 January 2002) was also recognised as conflicting
with the Constitution. This also does not mean that the decisions
made by the Council of Courts composed under the articles
(paragraphs thereof) of the Law on Courts valid at that time
(wording of 24 January 2002 with subsequent amendments and
supplements) for the implementation of the provisions of Article
90 of the Law on Courts (wording of 24 January 2002) may be
questioned on these grounds only.
Thus, also Decree of the President of the Republic No. 140
of 1 July 2004, whereby judge G. Baziulis of the Vilnius Regional
Court was dismissed from office upon discrediting the name of the
judge by his behaviour, may not be questioned on the sole grounds
that the advice to dismiss this judge from office was given to
the President of the Republic by the Council of Courts, which
included persons other than judges.
3. It should be mentioned that, under Paragraph 2 of
Article 83 (wording of 24 January 2002) of the Law on Courts, an
action discrediting the name of the judge (Item 1) and an
administrative law violation (Item 2) are different grounds for a
judge to disciplinary liability; in itself, an administrative law
violation does not mean that an action discrediting the name of
the judge was committed.
In this context it should be noted that administrative law
violations provided for in laws are very different; not any
administrative law violation (inter alia not any violation of the
road traffic rules) by itself implies that there are grounds for
instituting disciplinary proceedings against a judge and treating
him as having discredited the name of the judge.
However, it should be noted that the behaviour, which the
Council of Courts recognised as behaviour discrediting the name
of the judge, was not the causing of the traffic accident by G.
Baziulis, committing an administrative law violation, but that he
was silent about his office and thus preconditioned the
institution of administrative proceedings against him, although,
as a judge, according to CAVL, he could not be brought to
administrative liability. Such silence of G. Baziulis created
preconditions to adopt Resolution No. 3-760 of 16 January 2004 by
the Traffic Supervision Office of the public police of the
Vilnius City Chief Police Commissioner's Office, and for a judge
to sanction the decision of an official to impose a softer
punishment than is provided in the sanction of Paragraph 2 of
Article 127 of the CAVL, i.e. to make such decisions, which under
Paragraph 4 (wording of 24 January 2002) of Article 47 (wording
of 3 April 2003) of the Law on Courts, could not be made (no
matter how the legal regulation established under this paragraph
is assessed, also from the standpoint of its constitutionality).
It is to be noted that these, as well as other issues
related with the procedure of adopting the decision of the
Council of Courts on the advising of dismissal of G. Baziulis
from office of a judge of the Vilnius Regional Administrative
Court are not raised in the petition of the Court of Appeal of
Lithuania.
4. Alongside, it is to be noted that the provision of
Paragraph 4 (wording of 24 January 2002) of Article 47 (wording
of 3 April 2003) of the Law on Courts that administrative
procedure may not be instituted against a judge is not grounded
constitutionally.
4.1. This provision should be construed while taking
account of the other provisions of this paragraph, specifically,
the provision that if a judge commits an administrative law
violation, the material shall be referred to the Ethical and
Disciplinary Commission of Judges, also Paragraph 1 of Article 84
(wording of 24 January 2002) of this law, whereby a disciplinary
case may be instituted against a judge immediately upon emerging
of at least one of the offences stipulated in Paragraph 2 of
Article 83 of this law (but not later than within three months of
the day, on which the Ethical and Disciplinary Commission of
Judges entitled to institute the case found out about this
offence), while under Item 2 of Paragraph 2 of Article 83
(wording of 24 January 2002) a judge may be held liable under
disciplinary procedure for committing an administrative law
violation; under Paragraph 5 of Article 84 (wording of 24 January
2002) of the Law on Courts this commission shall be entitled to
institute administrative cases, which, according to Paragraph 6
of this article, shall be referred to the Judicial Court of
Honour, however, the latter, according to the competence
established under Article 86 (wording of 24 January 2002) of the
Law on Courts, has no authorisations to hold a judge, who has
committed an administrative law violation, administratively
liable. Thus, such a judge evades administrative liability for
his commission of the administrative law violation (also when,
under Paragraph 2 of Article 86 (wording of 24 January 2002) of
the Law on Courts, by its decision the Judicial Court of Honour
proposes to the President of the Republic or to the Seimas to
appoint that judge as a judge of a lower level court, to dismiss
him from office or start the impeachment proceedings against that
judge).
4.2. Such legal regulation established in Paragraph 4
(wording of 24 January 2002) of Article 47 (wording of 3 April
2003) of the Law on Courts is not in line with Paragraph 2 of
Article 114 of the Constitution, whereby a judge may not be held
criminally liable, arrested or have his freedom restricted
otherwise without the consent of the Seimas, or, in the period
between the sessions of the Seimas, without the consent of the
President of the Republic. The immunity from administrative
liability of a judge, as well as a member of the Seimas and of
the Government who are also officials implementing their
functions of the state authority execution, is not established in
the Constitution, except the cases when administrative liability
is related with the restriction of the freedom of a judge;
whereas the President of the Republic has the immunity explicitly
consolidated in the Constitution not only from criminal, but also
from administrative liability: while in office, he may neither be
arrested nor held criminally or administratively liable
(Paragraph 1 of Article 86 of the Constitution).
4.3. On the other hand, by the provision of Paragraph 4
(wording of 24 January 2002) of Article 47 (wording of 3 April
2003) of the Law on Courts that a judge may not be held
administratively liable, an attempt is made to secure the
independence of a judge consolidated in the Constitution, when he
administers justice, inter alia to implement the provision of
Paragraph 1 of Article 114 of the Constitution that interference
by institutions of state power and governance, Members of the
Seimas and other officials, political parties, political and
public organisations, or citizens with the activities of a judge
or the court shall be prohibited and shall incur liability
provided for by law. It is obvious that an ungrounded attempt to
bring a judge to administrative liability in certain
circumstances may actually mean an interference with his
activities with an attempt to make an impact on the decisions of
the judge, or revenge for decisions already made by the judge.
Thus an obligation arises from the Constitution for the
legislator to establish the procedure for bringing a judge to
administrative liability, which could provide the maximum
protection to the judge from unreasonable attempts to bring him
to administrative liability.
Alongside, it is to be noted that in securing the
independence of a judge in the administration of justice, one
should heed the fact that, according to the Constitution, judges
have no immunity from administrative liability (with the
exception of the cases when administrative liability is related
with the restriction of freedom of the judge). A fair balance
should be found for the purpose of implementation of the
provisions of Paragraphs 1 and 2 of Article 114 of the
Constitution.
For instance, a rule would generally comply with the
Constitution (also from the viewpoint de lege ferenda) that in
order to bring a judge to administrative liability a consent
(permission) should be obtained from a certain institution of the
judiciary (a respective court, a higher court of the respective
courts system) or a self-government institution of the judiciary
(the special institution of judges which is provided for in
Paragraph 5 of Article 112 of the Constitution and which is
established by law, other self-government institutions of the
judiciary).
It is to be emphasised that the purpose of such consent
(permission) is the securing that no impact on the activities of
the judge is made, which is prohibited by the Constitution
(Paragraph 1 of Article 114 of the Constitution), however, it is
not creation of preconditions for the judge who committed an
administrative violation to evade administrative liability.
4.4. Taking account of the arguments set forth, one is to
draw a conclusion that the provision of Paragraph 4 (wording of
24 January 2002) of Article 47 (wording of 3 April 2003) of the
Law on Courts that a judge may not be held administratively
liable is in conflict with Paragraph 2 of Article 114 of the
Constitution.
III
On compliance of Decree of the President of the Republic
No. 140 "On Dismissal of a Judge of a Regional Court" of 1 July
2004 with Paragraph 1 of Article 83 (wording of 24 January 2002)
of the Law on Courts, the provision "a judge may be held liable
under disciplinary procedure: (1) for behaviour discrediting the
name of the judge" of Paragraph 2 thereof, the provision "A
disciplinary case may be instituted against a judge immediately
upon emerging of at least one of the offences stipulated in
Paragraph 2 of Article 83 of this Law" of Paragraph 1 of Article
84 (wording of 24 January 2002) of the same law, the provision
"The instituted disciplinary case shall be referred to the
Judicial Court of Honour" of Paragraph 6 of Article 84 (wording
of 24 January 2002) of the same law, the provision "The Judicial
Court of Honour by its decision may suggest to the President of
the Republic <
> pursuant to the procedure stipulated by this Law
<
> (2) to dismiss the judge from office" of Paragraph 2 of
Article 86 (wording of 24 January 2002) of the same law, Item 5
of Paragraph 1 of Article 90 (wording of 24 January 2002) of the
same law, and the provision "A judge of the regional court <
>
shall be dismissed from office by the President of the Republic"
of Paragraph 6 of the same article.
1. In deciding subsequent to the petition of the Court of
Appeal of Lithuania, the petitioner, whether Decree of the
President of the Republic No. 140 of 1 July 2004 is not in
conflict with Paragraph 1 of Article 83 (wording of 24 January
2002) of the Law on Courts, whereby a judge shall be held liable
under disciplinary procedure at the Judicial Court of Honour, the
provision "a judge may be held liable under disciplinary
procedure: (1) for behaviour discrediting the name of the judge"
of Paragraph 2 of the same article, the provision "A disciplinary
case may be instituted against a judge immediately upon emerging
of at least one of the offences stipulated in Paragraph 2 of
Article 83 of this Law" of Paragraph 1 of Article 84 (wording of
24 January 2002), the provision "The instituted disciplinary case
shall be referred to the Judicial Court of Honour" of Paragraph 6
of Article 84 (wording of 24 January 2002), the provision "The
Judicial Court of Honour by its decision may suggest to the
President of the Republic <
> pursuant to the procedure
stipulated by this Law <
> (2) to dismiss the judge from office"
of Paragraph 2 of Article 86 (wording of 24 January 2002), Item 5
of Paragraph 1 whereby a judge shall be dismissed from office
upon discrediting the name of the judge by his behaviour, the
provision "A judge of a regional court <
> shall be dismissed
from office by the President of the Republic" of Paragraph 6 of
Article 90 (wording of 24 January 2002) of the Law on Courts in
the aspect judge G. Baziulis of the Vilnius Regional Court was
dismissed from office that by this decree of the President of the
Republic without consideration of the disciplinary case against
him by the Judicial Court of Honour and without adoption of the
decision by the latter to propose to the President of the
Republic to dismiss this judge from office, it should be noted
that the Constitutional Court, while assessing the legal
regulation established in the Law on Courts (wording of 24
January 2002 with subsequent amendments and supplements) on
dismissal of judges from office due to discrediting the name of
the judge by their behaviour, made the following statement in its
ruling of 27 November 2006:
- this law entrenches such overall regulation regarding the
relations of the dismissal of the judge from office because of
the fact that by his behaviour the judge discredited the name of
the judge, under which the Judicial Court of Honour has the right
inter alia to submit proposals for the President of the Republic
to dismiss the judge from office because of the fact that by his
behaviour the judge discredited the name of the judge, and the
President of the Republic, after having received the advice from
the special institution of judges provided for by law specified
in Paragraph 5 of Article 112 of the Constitution regarding the
dismissal of the judge from office because of the fact that by
his behaviour the judge discredited the name of the judge, has
the powers to decide whether to dismiss the judge from office on
the said grounds;
- neither Article 90 (wording of 24 January 2002) of the
Law on Courts, nor other articles of this law establish that the
President of the Republic may dismiss the judge from office
because of the fact that by his behaviour the judge discredited
the name of the judge only upon the proposal from the Judicial
Court of Honour to the President of the Republic; neither Article
90 (wording of 24 January 2002) of the Law on Courts, nor other
articles of this law establish that the President of the Republic
may apply to the special institution of judges provided for by
law specified in Paragraph 5 of Article 112 of the Constitution
regarding the dismissal of the judge from office because of the
fact that by his behaviour the judge discredited the name of the
judge only in the case, when there is a proposal from the
Judicial Court of Honour for the President of the Republic to
dismiss the judge from office because of the fact that by his
behaviour the judge discredited the name of the judge;
- the constitutional powers of the President of the
Republic to apply to the special institution of judges provided
for by law specified in Paragraph 5 of Article 112 of the
Constitution for advice regarding the dismissal of a judge from
office because of the fact that by his behaviour the judge
discredited the name of the judge, cannot be bound by the
presence or absence is a corresponding proposal of the Judicial
Court of Honour to the President of the Republic; under the
Constitution, no decision of the Judicial Court of Honour in a
disciplinary case, wherein it was investigated whether by his
behaviour the judge discredited the name of the judge, whatever
the content of such decision (inter alia to dismiss the
disciplinary case if there are no grounds for disciplinary
liability; to restrict oneself to the consideration of the
disciplinary case; to impose a disciplinary sanction on the
judge), restricts nor let alone denies the constitutional powers
of the President of the Republic to apply to the special
institution of judges provided for by law specified in Paragraph
5 of Article 112 of the Constitution for advice regarding the
dismissal of the judge from office because of the fact that by
his behaviour the judge discredited the name of the judge;
- if the said legal regulation established in the Law on
Courts (wording of 24 January 2002 with subsequent amendments and
supplements) were construed as, purportedly, establishing the
prohibition for the President of the Republic to apply to the
special institution of judges provided for by law specified in
Paragraph 5 of Article 112 of the Constitution for advice
regarding the dismissal of the judge from office until the
Judicial Court of Honour (after it has considered the
disciplinary case instituted against the judge) proposes the
President of the Republic to dismiss the judge from office
because of the fact that by his behaviour the judge discredited
the name of the judge, and as establishing the prohibition for
the President of the Republic to dismiss the judge from office
because of the fact that by his behaviour the judge discredited
the name of the judge if the Judicial Court of Honour (after it
has considered the disciplinary case instituted against the
judge) does not propose the President of the Republic to dismiss
the judge from office because of the fact that by his behaviour
the judge discredited the name of the judge, it would mean that
Article 86 (wording of 24 January 2002) (we construe it in
relation with Article 90) of the Law on Courts establishes such
legal regulation that restricts or even denies the powers of the
President of the Republic, which are established in the
Constitution, to dismiss judges of local and regional courts as
well as judges of the Court of Appeal who, by their behaviour,
discredited the name of the judge, and that restricts or even
denies the powers of the special institution of judges provided
for by law specified in Paragraph 5 of Article 112 of the
Constitution to advice the President of the Republic regarding
the dismissal of the judge from office; if the Law on Courts
(wording of 24 January 2002 with subsequent amendments and
supplements) established the said legal regulationrestricting or
even denying the powers of the President of the Republic, which
are established in the Constitution, to dismiss judges of the
local and regional courts as well as judges of the Court of
Appeal who, by their behaviour, discredited the name of the
judge, and restricting or even denying the powers of the special
institution of judges provided for by law specified in Paragraph
5 of Article 112 of the Constitution to advice the President of
the Republic regarding the dismissal of the judge from officeit
could be assessed as being in conflict with the Constitution.
2. Having held that, according to the Law on Courts
(wording of 24 January 2002 with subsequent amendments and
supplements), before the dismissal of a judge of the regional
court from office due to the fact that by his behaviour the judge
discredited the name of the judge, it is not necessary to
institute a disciplinary case against this judge and it is not
necessary for the Judicial Court of Honour, upon consideration of
such a case, to adopt the decision to propose to the President of
the Republic to dismiss the judge from office, also that
regardless whether there is a proposal of the Judicial Court of
Honour to the President of the Republic to dismiss that judge
from office or not, this does not limit nor negate the
constitutional powers of the President of the Republic to apply
to the special institution of judges specified in Paragraph 5 of
Article 112 of the Constitution for advice regarding the
dismissal of the judge of the regional court who discredited the
name of the judge by his behaviour from office and, upon receipt
of such advice, to dismiss that judge from office, it should also
be stated that it was within the powers of the President of the
Republic to issue the decree whereby he dismissed G. Baziulis
from the office of a judge of the Vilnius Regional Court for his
behaviour discrediting the name of the judge, although upon
instituting the disciplinary case against this judge for his
actions, the Judicial Court of Honour had not yet adopted any
decision to propose to the President of the Republic to dismiss
G. Baziulis from the office of a judge of the Vilnius Regional
Court.
3. Taking account of the arguments set forth, one is to
draw a conclusion that Decree of the President of the Republic
No. 140 of 1 July 2004 in the aspect that judge G. Baziulis of
the Vilnius Regional Court was dismissed from office by this
decree of the President of the Republic without the consideration
of the disciplinary case instituted against him at the Judicial
Court of Honour and without adoption of the decision by the
latter to propose to the President of the Republic to dismiss
this judge from office, is not in conflict with Paragraph 1 of
Article 83 (wording of 24 January 2002) of the Law on Courts, the
provision "a judge may be held liable under disciplinary
procedure: (1) for behaviour discrediting the name of the judge"
of Paragraph 2 thereof, the provision "A disciplinary case may be
instituted against a judge immediately upon emerging of at least
one of the offences stipulated in Paragraph 2 of Article 83 of
this Law" of Paragraph 1 of Article 84 (wording of 24 January
2002) of the same law, the provision "The instituted disciplinary
case shall be referred to the Judicial Court of Honour" of
Paragraph 6 of Article 84 (wording of 24 January 2002) of the
same law, the provision "The Judicial Court of Honour by its
decision may suggest to the President of the Republic <
>
pursuant to the procedure stipulated by this Law <
> (2) to
dismiss the judge from office" of Paragraph 2 of Article 86
(wording of 24 January 2002) of the same law, Item 5 of Paragraph
1 of Article 90 (wording of 24 January 2002) of the same law, and
the provision "A judge of the regional court <
> shall be
dismissed from office by the President of the Republic" of
Paragraph 6 of the same article.
IV
On the compliance of Decree of the President of the
Republic No. 140 "On Dismissal of a Judge of a Regional Court" of
1 July 2004 with Article 115 of the Constitution to the extent
that it is established that judges of courts of the Republic of
Lithuania shall be dismissed from office according to the
procedure established by law, with Paragraph 1 of Article 29
thereof, and with the constitutional principle of a state under
the rule of law.
1. While deciding, subsequent to the petition of the Court
of Appeal of Lithuania, the petitioner, whether Decree of the
President of the Republic No. 140 of 1 July 2004 is not in
conflict with Article 115 of the Constitution to the extent that
it is established that judges of courts of the Republic of
Lithuania shall be dismissed from office according to the
procedure established by law, in the aspect that by this decree
of the President of the Republic judge G. Baziulis of the Vilnius
Regional Court was dismissed from office without consideration by
the Judicial Court of Honour of the disciplinary case instituted
against him and without adoption of the decision by the latter to
propose to the President of the Republic to dismiss this judge
from office, it should be noted that, as the Constitutional Court
held in its ruling of 27 November 2006, when the requirement to
establish the procedure for dismissal of judges from office by
law entrenched in Article 115 of the Constitution is construed in
the context of Paragraph 4 of Article 111 of the Constitution,
under which the formation and competence of courts shall be
established by the Law on Courts, it means that the procedure for
the dismissal of judges from office must be established not in
any law, but namely in the Law on Courts; while establishing the
procedure for dismissal of judges from office in the Law on
Courts, the legislator, under the Constitution, has certain
discretion, however, while establishing this procedure, the
legislator inter alia may not deny nor restrict the
constitutional powers of the President of the Republic, the
Seimas and of the special institution of judges specified in
Paragraph 5 of Article 112 of the Constitution which are
entrenched in the Constitution.
2. It has been held in this Constitutional Court ruling
that Decree of the President of the Republic No. 140 of 1 July
2004 is not in conflict with Paragraph 1 of Article 83 (wording
of 24 January 2002) of the Law on Courts, the provision "a judge
may be held liable under disciplinary procedure: (1) for
behaviour discrediting the name of the judge" of Paragraph 2
thereof, the provision "A disciplinary case may be instituted
against a judge immediately upon emerging of at least one of the
offences stipulated in Paragraph 2 of Article 83 of this Law" of
Paragraph 1 of Article 84 (wording of 24 January 2002) of the
same law, the provision "The instituted disciplinary case shall
be referred to the Judicial Court of Honour" of Paragraph 6 of
Article 84 (wording of 24 January 2002) of the same law, the
provision "The Judicial Court of Honour by its decision may
suggest to the President of the Republic <
> pursuant to the
procedure stipulated by this Law <
> (2) to dismiss the judge
from office" of Paragraph 2 of Article 86 (wording of 24 January
2002) of the same law, Item 5 of Paragraph 1 of Article 90
(wording of 24 January 2002) of the same law, and the provision
"A judge of the regional court <
> shall be dismissed from office
by the President of the Republic" of Paragraph 6 of the same
article.
3. Therefore, there are no legal grounds for the statement
that when judge G. Baziulis of the Vilnius Regional Court was
dismissed from office by Decree of the President of the Republic
No. 140 of 1 July 2004in the aspect that judge G. Baziulis of
the Vilnius Regional Court was dismissed from office by this
decree of the President of the Republic without consideration of
the disciplinary case instituted against him at the Judicial
Court of Honour and without adopting a decision by the latter to
propose to the President of the Republic to dismiss this judge
from officethe provision of Article 115 of the Constitution that
judges shall be dismissed from office according to the procedure
established by law was disregarded.
4. Alongside, it should be stated that there are no legal
grounds for the statement that in the specified aspect one
deviated from the requirements of Paragraph 1 of Article 29 of
the Constitution, whereby it is established that all persons are
equal before the law, state institutions and officials, as well
as from the requirements arising from the constitutional
principle of a state under the rule of law.
5. Taking account of the arguments set forth one is to draw
a conclusion that Decree of the President of the Republic No. 140
of 1 July 2004 in the aspect that judge G. Baziulis of the
Vilnius Regional Court was dismissed from office by this decree
of the President of the Republic without the consideration of the
disciplinary case instituted against him at the Judicial Court of
Honour and without adoption of the decision by the latter to
propose to the President of the Republic to dismiss this judge
from office is not in conflict with Paragraph 1 of Article 29,
Article 115 of the Constitution to the extent that judges shall
be dismissed from office according to the procedure established
by law, and with the constitutional principle of a state under
the rule of law.
Pursuant to Articles 102, 105 of the Constitution of the
Republic of Lithuania, Articles 1, 53, 54, 55, 56, 69 of the Law
on the Constitutional Court of the Republic of Lithuania, the
Constitutional Court of the Republic of Lithuania has passed the
following
ruling:
1. To recognise that Paragraph 4 (wording of 24 January
2002; Official Gazette Valstybės žinios, 2002, No. 17-649) of
Article 47 (wording of 3 April 2003) of the Republic of Lithuania
Law on Courts to the extent that it is established that a judge
may not be held administratively liable is in conflict with
Paragraph 2, Article 114 of the Constitution.
2. To recognise that Decree of the President of the
Republic of Lithuania No. 140 "On Dismissal of a Judge the
Regional Court" of 1 July 2004 (Official Gazette Valstybės
žinios, 2004, No. 104-3840) 2004 in the aspect that judge G.
Baziulis of the Vilnius Regional Court was dismissed from office
by this decree of the President of the Republic without the
consideration of the disciplinary case instituted against him at
the Judicial Court of Honour and without adoption of the decision
by the latter to propose to the President of the Republic to
dismiss this judge from office is not in conflict with the
Constitution of the Republic of Lithuania.
3. To recognise that Decree of the President of the
Republic of Lithuania No. 140 "On Dismissal of a Judge of a
Regional Court" of 1 July 2004 (Official Gazette Valstybės
žinios, 2004, No. 104-3840) in the aspect that judge G. Baziulis
of the Vilnius Regional Court was dismissed from office by this
decree of the President of the Republic without the consideration
of the disciplinary case instituted against him at the Judicial
Court of Honour and without adoption of the decision by the
latter to propose to the President of the Republic to dismiss
this judge from office is not in conflict with Paragraph 1 of
Article 83 (wording of 24 January 2002) of the Republic of
Lithuania Law on Courts, the provision "a judge may be held
liable under disciplinary procedure: (1) for behaviour
discrediting the name of the judge" of Paragraph 2 thereof, the
provision "A disciplinary case may be instituted against a judge
immediately upon emerging of at least one of the offences
stipulated in Paragraph 2 of Article 83 of this Law" of Paragraph
1 of Article 84 (wording of 24 January 2002) of the same law, the
provision "The instituted disciplinary case shall be referred to
the Judicial Court of Honour" of Paragraph 6 of Article 84
(wording of 24 January 2002) of the same law, the provision "The
Judicial Court of Honour by its decision may suggest to the
President of the Republic <
> pursuant to the procedure
stipulated by this Law <
> (2) to dismiss the judge from office"
of Paragraph 2 of Article 86 (wording of 24 January 2002) of the
same law, Item 5 of Paragraph 1 of Article 90 (wording of 24
January 2002) of the same law, and the provision "A judge of the
regional court <
> shall be dismissed from office by the
President of the Republic" of Paragraph 6 of the same article.
4. To dismiss the part of the case regarding the compliance
of Decree of the President of the Republic of Lithuania No. 140
"On Dismissal of a Judge the Regional Court" of 1 July 2004
(Official Gazette Valstybės žinios, 2004, No. 104-3840) with
Paragraph 7 of Article 90 (wording of 24 January 2002) of the
Republic of Lithuania Law on Courts.
This ruling of the Constitutional Court is final and
subject to no 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