Case No. 13/06
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
RULING
ON THE COMPLIANCE OF DECREE OF THE PRESIDENT OF THE
REPUBLIC OF LITHUANIA NO. 225 "ON DISMISSING A JUDGE
OF A LOCAL COURT" OF 3 MARCH 2005 WITH THE
CONSTITUTION OF THE REPUBLIC OF LITHUANIA AND
PARAGRAPH 1 OF ARTICLE 45 (WORDING OF 24 JANUARY
2002) OF THE REPUBLIC OF LITHUANIA LAW ON COURTS,
ALSO ON THE DISMISSAL OF THE 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. 225 "ON DISMISSING A JUDGE
OF A LOCAL COURT" OF 3 MARCH 2005 WITH ITEM 4 OF
ARTICLE 52 (WORDING OF 24 JANUARY 2002) OF THE
REPUBLIC OF LITHUANIA LAW ON COURTS
20 December 2007
Vilnius
The Constitutional Court of the Republic of Lithuania
composed of the Justices of the Constitutional Court Armanas
Abramavičius, 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
Milda Vainiutė, advisers on legal issues to the President of the
Republic of Lithuania,
pursuant to Articles 102 and 105 of the Constitution of the
Republic of Lithuania and Article 1 of the Law on the
Constitutional Court of the Republic of Lithuania, on 17 December
2007, at the public Court hearing heard case No. 13/06 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. 225 "On Dismissing a
Judge of a Local Court" of 3 March 2005 is not in conflict with
Paragraph 1 of Article 29, Item 2 of Article 115 of the
Constitution of the Republic of Lithuania, Paragraph 1 of Article
45, and Item 4 of Article 52 of the Republic of Lithuania Law on
Courts.
The Constitutional Court
has established:
I
1. 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:
- Paragraph 8 of Article 90 of the Law on Courts is not in
conflict with Paragraph 1 of Article 102, Item 1 of Paragraph 2
of Article 105 of the Constitution;
- Decree of the President of the Republic No. 225 "On
Dismissing a Judge of a Local Court" of 3 March 2005 (hereinafter
also referred to as Decree of the President of the Republic No.
225 of 3 March 2005) is not in conflict with Paragraph 1 of
Article 29, Paragraph 2 of Article 115 of the Constitution,
Paragraph 1 of Article 45, Item 4 of Article 52 of the Law on
Courts.
2. By the Constitutional Court Decision "On dismissing the
proceedings in the case subsequent to the petition of the Court
of Appeal of Lithuania, the petitioner, requesting to investigate
whether Paragraph 8 (wording of 24 January 2002) of Article 90 of
the Republic of Lithuania Law on Courts is not in conflict with
the Constitution of the Republic of Lithuania" of 3 December 2007
the following was decided: to dismiss the instituted legal
proceedings in the part of the case subsequent to the petition of
the Court of Appeal of Lithuania, the petitioner, requesting to
investigate whether the provision "when a judge contests his
dismissal from office, he shall be entitled to appeal <
> to the
Vilnius Regional Court" of Paragraph 8 (wording of 24 January
2002) of Article 90 of the Law on Courts is not in conflict with
Paragraph 1 of Article 102 and Item 1 of Paragraph 2 of Article
105 of the Constitution; to continue the preparation the case for
the Constitutional Court hearing, subsequent to the petition of
the Court of Appeal of Lithuania, the petitioner, requesting to
investigate whether Decree of the President of the Republic No.
225 of 3 March 2005 is not in conflict with Paragraph 1 of
Article 29, Item 2 of Article 115 of the Constitution and
Paragraph 1 of Article 45 and Item 4 of Article 52 of the Law on
Courts.
II
The petition of the Court of Appeal of Lithuania, the
petitioner, requesting to investigate the compliance of Decree of
the President of the Republic No. 225 "On Dismissing a Judge of a
Local Court" of 3 March 2005 with the Constitution, Paragraph 1
of Article 45, Item 4 of Article 52 of the Law on Courts is
grounded on the following arguments.
1. By Decree of the President of the Republic No. 793 "On
the Appointment of Judges to Local Courts" of 7 March 2000
(hereinafter also referred to as Decree of the President of the
Republic No. 793 of 7 March 2000) S. Petraškaitė was appointed a
judge of the Ukmergė District Local Court for five years, and by
Decree of the President of the Republic No. 225 "On Dismissing a
Judge of a Local Court" of 3 March 2005, which is disputed in
this constitutional justice case, she was dismissed from office
upon expiration of the term of powers. The disputed Decree of the
President of the Republic No. 225 of 3 March 2005 was adopted
upon advice by the Council of Courts, which by its Resolution "On
the Advice to the President of the Republic to Dismiss a Judge of
a Local Court" of 18 February 2005 provided advice to dismiss
judge S. Petraškaitė of the Ukmergė District Local Court, because
the Commission for the Periodic Assessment of the Activities of
Judges, upon assessment of activities of this judge, stated that
her behaviour did not meet the requirements of the Rules of
Judicial Ethics.
2. The investigation of the compliance of the disputed
decree of the President of the Republic with the Constitution and
with the specified articles (parts thereof) of the Law on Courts
is attributed by the Constitution to the competence of the
Constitutional Court; in the opinion of the Court of Appeal of
Lithuania, the petitioner, while investigating the compliance of
the President of the Republic decree with the Constitution and
with the specified articles (parts thereof) of the Law on Courts,
the Constitutional Court should also investigate factual
circumstances due to which judge S. Petraškaitė of the Ukmergė
District Local Court was dismissed from office, also whether
respective requirements established in the Constitution and in
this law were observed.
In this respect the petition of the Court of Appeal of
Lithuania, the petitioner, requesting to investigate the
compliance of Decree of the President of the Republic No. 225 of
3 March 2005 with the Constitution, Paragraph 1 of Article 45,
Item 1 of Article 52 of the Law on Courts is related with the
request of the petitioner to investigate, whether the provision
"when a judge contests his dismissal from office, he shall be
entitled to appeal <
> to the Vilnius Regional Court" of
Paragraph 8 (wording of 24 January 2002) of Article 90 of the Law
on Courts, which was grounded on the principled provision that
the investigation of the compliance with the Constitution of the
President of the Republic decree whereby a judge shall be
dismissed from office shall be attributed to the competence of
the Constitutional Court rather than to the Vilnius Regional
Court, is not in conflict with the Constitution. It was mentioned
that the proceedings instituted in this case were dismissed by
the Constitutional Court decision of 3 December 2007. Such
decision was adopted pursuant to inter alia Item 3 of Paragraph 1
of Article 69 of the Law on the Constitutional Court, which
provides that, by a decision, the Constitutional Court shall
refuse to consider petitions to investigate the compliance of a
legal act with the Constitution, if the compliance of the legal
act with the Constitution specified in the petition has already
been investigated by the Constitutional Court and the ruling on
this issue adopted by the Constitutional Court is still in force,
and taking into account that by the Constitutional Court Ruling
"On the compliance of Paragraph 8 (wording of 24 January 2002) of
Article 90 of the Republic of Lithuania Law on Courts with the
Constitution of the Republic of Lithuania" of 27 November 2006
the provision "when a judge contests his dismissal from office,
he shall be entitled to appeal <
> to the Vilnius Regional Court"
of Paragraph 8 (wording of 24 January 2002) of Article 90 of the
Law on Courts was recognised as being not in conflict with the
Constitution.
3. The petition of the Court of Appeal of Lithuania, the
petitioner, requesting to investigate the compliance of Decree of
the President of the Republic No. 225 of 3 March 2005 with the
Constitution, with Paragraph 1 of Article 45, Item 4 of Article
52 of the Law on Courts provides no arguments why the procedure
of testing the fitness of judge S. Petraškaitė of the Ukmergė
District Local Court for the job of a judge could be unlawful or
the assessment of the activities of S. Petraškaitė, as a judge,
could be ungrounded; the petitioner generally did not formulate
its position with regard to the said procedure and assessment.
The Court of Appeal of Lithuania did not investigate the factual
circumstances, which would allow any presumptions regarding
unlawfulness of the said procedure or unreasonableness of the
procedure for the assessment of activities of S. Petraškaitė as a
judge, while those set forth in the ruling wherein the petition
to apply to the Constitutional Court was adopted are in no way
related with the doubt of the Court of Appeal of Lithuania, the
petitioner, regarding the compliance of the disputed decree of
the President of the Republic with the Constitution and with the
specified articles (parts thereof) of the Law on Courts.
III
In the course of the preparation of the case for the
Constitutional Court hearing written explanations were received
from the representatives of the President of the Republic, the
party concerned, who were Č. Atkočaitis and M. Vainiutė, wherein
it is stated that the disputed decree of the President of the
Republic is not in conflict with the Constitution as well as with
Paragraph 1 of Article 45, Item 4 of Article 52 of the Law on
Courts. The position of the representatives of the President of
the Republic, the party concerned, is grounded on the following
arguments.
1. In the course of expiration of the five-year term for
which S. Petraškaitė was appointed as a judge of the Ukmergė
District Local Court, T. Birmontienė, the adviser of the
President of the Republic on legal issues, the Head of the Law
Department, upon commissioning by the President of the Republic,
applied to the Council of Courts with letter No. 2D-220 "On the
Advice to the President of the Republic" of 17 January 2005
regarding inter alia the appointment of judge S. Petraškaitė of
the Ukmergė District Local Court until she turns 65; by this
letter a request was made to provide advice regarding the
appointment of twelve judges (whose five-year term had expired)
in total as judges until they turn 65, therefore, the
constitutional principle of equality of all persons was observed.
2. S. Petraškaitė was dismissed from office by the disputed
decree of the President of the Republic upon accomplishing all
relevant procedures and upon receipt of the advice of the Council
of Courts. Upon expiration of the five-year term of powers of a
judge of the local court, the President of the Republic may, but
need not, appoint him to the office of a judge of the local court
until he turns 65. This is the discretion of the President of the
Republic, in the implementation of which the President of the
Republic takes account not only of the wish of the individual to
continue as a judge, but also of the public interest that only
persons possessing proper professional and personal qualities
would be appointed judges.
3. If the President of the Republic applies to the special
institution of judges, which is specified in Paragraph 5 of
Article 112 of the Constitution and which is provided for by law,
so that it provides him advice regarding the appointment of a
judge, while if the latter provides advice to the President of
the Republic not to appoint the person to the office of a judge,
under the Constitution, the President of the Republic may not
appoint that person to the office of a judge. Therefore, the
President of the Republic, upon advice of the Council of Courts
to dismiss from office judge S. Petraškaitė of the Ukmergė
District Local Court, had to act accordingly.
IV
At the Constitutional Court hearing, the representatives of
the President of the Republic, the party concerned, who were Č.
Atkočaitis and M. Vainiutė, repeated the arguments set forth in
their written explanations, as well as presented additional
explanations.
The Constitutional Court
holds that:
1. The Court of Appeal of Lithuania, the petitioner,
requests to investigate whether Decree of the President of the
Republic No. 225 "On Dismissing a Judge of a Local Court" of 3
March 2005 is not in conflict with Paragraph 1 of Article 29,
Item 2 of Article 115 of the Constitution, Paragraph 1 of Article
45, Item 4 of Article 52 of the Law on Courts.
2. It is obvious from the arguments of the petitioner that
the compliance of Decree of the President of the Republic No. 225
of 3 March 2005 with the following is disputed:
- Paragraph 1 of Article 29 of the Constitution whereby all
persons shall be equal before the law, the court, and other state
institutions and officials;
- the provision "Judges of courts of the Republic of
Lithuania shall be dismissed from office according to the
procedure established by law <
> 2) upon expiration of the term
of powers" of Article 115 of the Constitution;
- Paragraph 1 of Article 45 (wording of 24 January 2002) of
the Law on Courts establishing that the appointment, transfer,
dismissal or removal of judges from office is only possible on
the grounds and pursuant to the procedure stipulated by the
Constitution and under this law;
- Item 4 of Article 52 (wording of 24 January 2002) of the
Law on Courts whereby a person may not be deemed of impeccable
reputation and appointed to the office of a judge, if the person
"does not meet other requirements of the Rules of Judicial
Ethics".
3. By Decree of the President of the Republic No. 793 "On
the Appointment of Judges to Local Courts" of 7 March 2000, which
took effect on the day of its signing, S. Petraškaitė was
appointed a judge of the Ukmergė District Local Court for five
years.
4. Upon expiration of the five-year term for which S.
Petraškaitė was appointed a judge of the Ukmergė District Local
Court, T. Birmontienė, the adviser of the President of the
Republic on legal issues, the Head of the Law Department, upon
commissioning by the President of the Republic, applied to the
Council of Courts with letter No. 2D-220 "On the Advice to the
President of the Republic" of 17 January 2005 regarding the
appointment of fifteen persons as judges of local courts,
including the appointment of judges until they turn 65 of twelve
judges whose five-year term of powers had expired; one of those
twelve judges was a judge S. Petraškaitė of the Ukmergė District
Local Court.
5. By the Resolution "On the Advice to the President of the
Republic to Dismiss a Judge of a Local Court" of 18 February
2005, the Council of Courts provided advice to the President of
the Republic to dismiss S. Petraškaitė, a judge of the Ukmergė
District Local Court, from office upon expiration of the term of
powers (and specified the day as to when she was to be dismissed
from office7 March 2005). This advice by the Council of Courts
appeared, when the Council of Courts, upon the assessment of the
activities of this judge and taking account of the conclusion of
the Commission for the Periodic Assessment of the Activities of
Judges that the behaviour of S. Petraškaitė did not meet the
requirements of the Rules of the Judicial Ethics, held that she
may not be appointed as a judge until she turns 65.
6. On 3 March 2005, the President of the Republic issued
Decree No. 225 "On Dismissing a Judge of a Local Court" which
provides:
"Article 1.
In pursuance of Item 11 of Article 84, Article 112, Item 2
of Article 115 of the Constitution of the Republic of Lithuania
and taking account of the advice of the Council of Courts I
hereby dismiss Sabina PETRAŠKAITĖ, a judge of the Ukmergė
District Local Court, from office upon expiration of the term of
powers.
Article 2.
This decree shall take effect on 7 March 2005."
7. At the time when S. Petraškaitė was appointed a judge of
the Ukmergė District Local Court by Decree of the President of
the Republic No. 793 of 7 March 2000, judges of local courts were
first appointed for the term of five years; upon expiration of
this term, judges of local courts, upon advising of the Council
of Courts, without an examination, could be appointed until they
turn 65 (Paragraph 1 (wording of 31 May 1994 without the clause
which was recognised as anti-constitutional by the Constitutional
Court ruling of 21 December 1998) of Article 36 (wording of 8
April 1998)) of the Law on Courts; the fact that S. Petraškaitė
was appointed a judge of the Ukmergė District Local Court for the
term of five years, is explicitly referred to in the said decree
of the President of the Republic. By the way, the provision that
judges of local courts shall first be appointed for the term of
five years, was also subsequently consolidated in the Law on
Courts wherein a number of amendments and supplements were made;
for instance, also during the consideration of this
constitutional justice case, it was inter alia established in
Paragraph 1 (wording of 24 January 2002) of Article 57 (wording
of 28 January 2003 without Paragraph 3 recognised as anti-
constitutional by the ruling of the Constitutional Court of 9 May
2006) of the Law on Courts that a person shall be first appointed
to the office of a judge for the five-year term with the purpose
of assessment whether he is fit for the office of a judge, also
that upon expiration of the five-year term the President of the
Republic may appoint such person to the office of a judge of a
local court without an examination or competition until he turns
65.
8. The Constitutional Court held in its ruling of 22
October 2007 that "the Constitution does not oblige the
legislator to establish such legal regulation that the time of
the expiry of powers of the judges which is established in the
Constitution or laws would coincide with the time period when the
judge reaches the pensionable age established in the law: one
may, by means of a law, establish also such legal regulation
whereby the time of powers of the judge may expire before he
reaches the pensionable age established in the law, as well as
such legal regulation whereby the time of powers of the judge may
expire after he reaches the pensionable age established in the
law".
The Constitutional Court in its ruling of 22 October 2007
(referring to its preceding jurisprudence) also held that it
"investigated the compliance of the legal regulation whose
constituent part was a provision whereby the judges of the local
courts shall be appointed to office for five years for the first
time, with the Constitution and has not recognized this provision
as being in conflict with the Constitution (Constitutional Court
rulings of 21 December 1999 and 9 May 2006)", also that "this
term is to be construed as the 'term of powers' of the judge,
upon expiry of which provided the person has proved by his
performance and conduct to be fitting for the work of a judge,
the question of his appointment for the longer term of powers as
pointed out in the law is decided (Constitutional Court ruling of
21 December 1999)".
In this context one is to pay attention to the fact that,
as the Constitutional Court held in its rulings of 9 May 2006 and
22 October 2007, "the principle of independence of judges
entrenched in the Constitution implies only such legislative
regulation of the term of powers of the judge that when
appointing a judge, he would know the term of powers (until the
time established by law or until he reaches the pensionable age
established by law)", and that "the term of powers of the judge
may not depend on the future decisions of the state power
institutions that have appointed him, which would be grounded on
free discretion".
Thus, if pursuant to laws judges of certain courts are
first appointed for a certain period (required as the evidence of
his fitness to perform as a judge), which does not coincide with
the time when the judge attains the pension age provided for by
law (or with other term with which the law has linked the end of
the career of the judge), the President of the Republic has no
absolute discretion to decide whether the person whose term of
powers of a judge (required as the evidence of his fitness to
perform as a judge) has expired should be appointed as a judge
again (certainly, if he wishes so), or should be dismissed from
office upon expiration of the term of powers. In adopting a
respective decision the President of the Republic is bound by the
Constitution, inter alia the principles of responsible governance
and the protection of legitimate expectations consolidated
therein.
9. One is to hold that after 6 March 2005, which was the
last day of the term of powers of S. Petraškaitė as a judge of
the Ukmergė District Local Court, upon assessment of her fitness
to perform as a judge, S. Petraškaitė, a judge of the Ukmergė
District Local Court, had to be either appointed until she turns
65 or (if it was established that she was unfit to perform as a
judge) dismissed from office upon expiration of the term of
powers.
Both in the first and in the second case the President of
the Republic had to obtain the advice of the special judicial
institution provided for in Paragraph 5 of Article 112 of the
Constitution. According to the legal regulation established by
the Law on Courts at that time such an institution was the
Council of Courts (before the wording of 24 January 2002 of the
Law on Courts this institution was named as the Judicial Council;
the same name is also used in the Republic of Lithuania Law on
Amendment of Articles 119, 120 and 121 of the Law on Courts
adopted by the Seimas on 23 May 2006 upon respective amendments
of the Law on Courts (wording of 24 January 2002 with subsequent
amendments and supplements)).
10. As mentioned, upon expiration of the five-year term for
which S. Petraškaitė was appointed a judge of the Ukmergė
District Local Court, T. Birmontienė, the adviser of the
President of the Republic on legal issues, the Head of the Law
Department, upon commissioning by the President of the Republic,
applied to the Council of Courts with letter No. 2D-220 "On
Advice to the President of the Republic" of 17 January 2005
regarding inter alia the appointment of the judge S. Petraškaitė
of the Ukmergė District Local Court until she turns 65.
11. The Constitutional Court, while construing inter alia
Article 85 and Paragraph 5 of Article 112 of the Constitution, in
its ruling of 9 May 2006 held the following:
"Under Article 85 of the Constitution, the President of the
Republic, implementing the powers vested in him, shall issue
acts-decrees. The constitutional powers of the President of the
Republic to apply to the special institution of judges provided
for by law specified in Paragraph 5 of Article 112 of the
Constitution for advice concerning the appointment, promotion,
transfer of judges or their dismissal from office are implemented
by issuing a corresponding decree of the President of the
Republic. In such decree of the President of the Republic, also
the term during which the corresponding advice must be received
may be specified. If such term is specified in the corresponding
decree of the President of the Republic, the special institution
of judges provided for by law specified in Paragraph 5 of Article
112 of the Constitution must observe this term."
These provisions were repeated in the Constitutional Court
ruling of 21 September 2006. In this ruling the Constitutional
Court also held that "prior to the Constitutional Court ruling in
which it was construed for the first time that the constitutional
powers of the President of the Republic to apply to the special
institution of judges provided for by law specified in Paragraph
5 of Article 112 of the Constitution for advice concerning the
appointment, promotion, transfer of judges or their dismissal
from office are implemented by issuing a corresponding decree of
the President of the Republic, there used to be the practice
where such decrees would not be issued, but advisors or assistant
advisors, upon commissioning by the President of the Republic,
used to apply to the said institution of judges", however
"corresponding decrees of the President of the Republic or
corresponding decisions of to the special institution of judges
provided for by law specified in Paragraph 5 of Article 112 of
the Constitution on the appointment, promotion, transfer of
judges or their dismissal from office could not be questioned"
only on such grounds.
These provisions are also applicable to Decree of the
President of the Republic No. 225 "On Dismissing a Judge of a
Local Court" of 3 March 2005; if the President of the Republic,
upon receiving of respective advice from the Council of Courts,
had issued a decree whereby S. Petraškaitė would have been
appointed a judge of the Ukmergė District Local Court until she
turns 65, the said provisions should also be applicable to the
decree of the President of the Republic.
12. The said request of the President of the Republic to
provide advice regarding the appointment of S. Petraškaitė, a
judge of the Ukmergė District Local Court, until she turns 65,
especially taking into account that, as mentioned above, after 6
March 2005 which was the last day of the term of powers of S.
Petraškaitė as a judge of the Ukmergė District Local Court, S.
Petraškaitė, upon assessment of her fitness for the job of a
judge, had to be either appointed until she turns 65 or (if one
established that she is unfit for the job of a judge) dismissed
from this office upon expiration of the term of powers, also that
the expiration of the term of powers is explicitly established as
the grounds for dismissal of a judge from office by the
Constitution and the Law on Courts, is to be interpreted also as
an implicit request to provide advice whether S. Petraškaitė, a
judge of the Ukmergė District Local Court, if one established
that she is unfit for the job of a judge, should be dismissed
from office upon expiration of the term of powers.
13. On 18 February 2005, the Council of Courts considered
the request of the President of the Republic to provide advice
regarding the appointment of S. Petraškaitė as a judge of the
Ukmergė District Local Court until she turns 65. It was mentioned
that the Council of Courts by its Resolution "On the Advice to
the President of the Republic to Dismiss a Judge of a Local
Court" of 18 February 2005 provided advice to the President of
the Republic to dismiss S. Petraškaitė from the office of a judge
of the Ukmergė District Local Court upon expiration of the term
of powers (and specified the day from which she was to be
dismissed from office7 March 2005), also that such advice of the
Council of Courts was determined by the fact that the Council of
Courts, upon assessment of activities of this judge and taking
into account the conclusion of the Commission for the Periodic
Assessment of the Activities of Judges that the behaviour of S.
Petraškaitė did not meet the requirements of the Rules of
Judicial Ethics, held that she may not be appointed as a judge
until she turns 65.
14. In this context it should be noted that, as it has been
held by the Constitutional Court, the advice of a special
institution of judges provided for in Paragraph 5, Article 112 of
the Constitution (in the case at issue, the Council of Courts)
gives rise to legal consequences: if there is no advice of this
special institution of judges, the President of the Republic may
not adopt a decision on appointment, promotion, transfer or
dismissal of a judge from office (Constitutional Court rulings of
21 December 1999, 2 June 2005, and 9 May 2006); the advice to the
President of the Republic by the special institution of judges
established by law as provided for in Paragraph 5 of Article 112
of the Constitution should be rationally reasoned, the reasoning
upon which the advice is given whether or not to appoint,
promote, transfer, dismiss a certain individual from the office
of a judge, should be clearly set forth, no advice (or other
decisions) of the said special institution of judges may be
grounded on presumptions, subjective approaches or opinions of
the said special institution of judges, it should be grounded
upon established (ascertained) facts, upon assessment of the
professional readiness of respective individuals and such
personal qualities, and other circumstances, which determine
their fitness or unfitness for respective office (or the job of a
judge in general) (Constitutional Court ruling of 9 May 2006).
15. It was noted (in Item 2 of Chapter II of this
Constitutional Court ruling) that in the opinion of the Court of
Appeal of Lithuania, the petitioner, while investigating the
compliance of the disputed decree of the President of the
Republic with the Constitution and with the said articles (parts
thereof) of the Law on Courts, the Constitutional Court should
also investigate the factual circumstances, due to which S.
Petraškaitė, a judge of the Ukmergė District Local Court, was
dismissed from office, also, whether the respective requirements
established in the Constitution and in this law were observed.
The Constitutional Court, while investigating a
constitutional justice case according to the Constitution and the
Law on the Constitutional Court, has the powers, if required, to
investigate factual circumstances of significance to the decision
of the case (Constitutional Court decisions of 15 December 2006
and 17 January 2007). It is also stated in the jurisprudence of
the Constitutional Court that "under the Constitution, the
Constitutional Court enjoys the powers to investigate the
compliance of acts of the President of the Republic with the
Constitution and laws irrespective of whether these acts are of
individual, or normative character, whether they are of one-time
(ad hoc) application or of permanent validity", that "In case the
Constitution or laws provide for respective requirements that
must be followed (that must be fulfilled) in the course of
issuance of an act of the President of the Republic, the
Constitutional Court, when deciding whether the act of the
President of the Republic is not in conflict with the
Constitution and laws, must also investigate whether one has
followed (fulfilled) these requirements, since in case these
factual circumstances were not established, it would not be
possible to investigate also into the compliance of the act of
the President of the Republic with the Constitution", also that
"under the Constitution there may not be any such acts of the
President of the Republic, which have been issued by him while
implementing the powers established to him, as the Head of State,
in the Constitution and laws, that the Constitutional Court could
not investigate" (Constitutional Court ruling of 30 December
2003; by the way, the first of the cited provisions has been
recited many a time in various acts of the Constitutional Court).
16. On the other hand, it was mentioned (in Item 3 of
Chapter II of the fact-establishing part of this Constitutional
Court ruling) that Court of Appeal of Lithuania, the petitioner,
did not present any arguments why the procedure of the assessment
of fitness of S. Petraškaitė, a judge of the Ukmergė District
Local Court, for the job of a judge could be unlawful or the
assessment of the activities of S. Petraškaitė as a judge could
be ungrounded; in general, the petitioner did not formulate its
position with regard to the said procedure and the assessment. It
was also noted that the Court of Appeal of Lithuania did not
investigate the factual circumstances, which would allow any
presumptions regarding unlawfulness of the said procedure or
unreasonableness of the procedure for the assessment of
activities of S. Petraškaitė as a judge, while those set forth in
the ruling wherein the petition to the Constitutional Court was
adopted, are in no way related with the doubt of the Court of
Appeal of Lithuania, the petitioner, regarding the compliance of
the disputed decree of the President of the Republic with the
Constitution and the specified articles (parts thereof) of the
Law on Courts.
It was also noted (in Item 2 of Chapter II of the fact-
establishing part of this Constitutional Court ruling) that the
petition of the Court of Appeal of Lithuania, the petitioner,
requesting to investigate the compliance of the disputed Decree
of the President of the Republic No. 225 with the Constitution
and with the specified articles (parts thereof) of the Law on
Courts is related with the request of this petitioner to
investigate whether Paragraph 8 (wording of 24 January 2002) of
Article 90 of the Law on Courts is not in conflict (to the
specified extent) with the Constitution regarding which the
instituted legal proceedings were dismissed in this
constitutional justice case by the Constitutional Court decision
of 3 December 2007.
It is obvious that the compliance of Decree of the
President of the Republic No. 225 of 3 March 2005 with the
Constitution and with the articles (parts thereof) of the Law on
Courts specified by Court of Appeal of Lithuania, the petitioner,
is disputed on the grounds that the investigation of compliance
of this (as well as others) decree of the President of the
Republic with the Constitution is an exclusive constitutional
competence of the Constitutional Court.
17. In this context it is to be noted that, according to
Item 8 of Paragraph 1 of Article 66 of the Law on the
Constitutional Court, a petition for the investigation of the
compliance of a legal act with the Constitution must contain the
position of the petitioner concerning the compliance of an
appropriate act with the Constitution and legal support of such
position containing references to laws, while according to Item 5
of Paragraph 2 of Article 67, a ruling of the court whereby it
applies to the Constitutional Court must specify the legal
arguments presenting the opinion of the court on the conflict of
a law or other legal act with the Constitution.
While construing Item 8 of Paragraph 1 of Article 66 of the
Law on the Constitutional Court, the Constitutional Court has
held that "the position of the petitioner concerning the
compliance of a legal act (part thereof) with the Constitution
according to the content of the norms and/or the scope of
regulation must be indicated clearly, unambiguously, the petition
must contain the arguments and reasoning grounding the doubt of
the petitioner that the legal act (part thereof) is in conflict
with the Constitution. <...> The petition requesting to
investigate the compliance of a legal act (part thereof) with the
Constitution according to the content of norms and/or the scope
of regulation must also clearly indicate the legal arguments
grounding the doubt of the petitioner as regards every concretely
indicated article (part thereof) or item of the disputed legal
act, the compliance of which with the concretely indicated
provision of the Constitution is doubtful to the petitioner"
(Constitutional Court decision of 16 April 2004, ruling of 12
December 2005, decisions of 14 March 2006 (Case No. 14/03) and 29
March 2006). The Constitutional Court has also held that "the
requirement to indicate the legal arguments presenting the
opinion of the court on the conflict of a law or other legal act
with the Constitution arising from Item 5 of Paragraph 2 of
Article 67 of the Law on the Constitutional Court, means that 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, 12
September 2007, and 24 October 2007).
It is to be noted that such construction of the said
provisions of the Law on the Constitutional Court had been
presented in the jurisprudence of the Constitutional Court much
earlier than the Court of Appeal of Lithuania, the petitioner,
applied to the Constitutional Court while disputing the
compliance of Decree of the President of the Republic No. 225
with the specified articles (parts thereof) of the Law on Courts.
18. It is to be held that such arguing of the position in
the petition of the Court of Appeal of Lithuania, the petitioner,
requesting to investigate the compliance of Decree of the
President of the Republic No. 225 of 3 March 2005 with articles
(parts thereof) of the Constitution and the Law on Courts, when
this court itself, as mentioned (in Item 3 of Chapter II of the
fact-establishing part of the ruling of the Constitutional
Court), did not investigate the factual circumstances that would
allow any presumptions regarding the unlawfulness of the
procedure for assessment of the fitness of S. Petraškaitė, a
judge of the Ukmergė District Local Court, for the job of a
judge, or the absence of grounds for the assessment of activities
of S. Petraškaitė as a judge, while those specified in the ruling
wherein it was decided to apply to the Constitutional Court, are
in no way related with the doubt of the Court of Appeal of
Lithuania, the petitioner, regarding the compliance of the
disputed decree of the President of the Republic with the
Constitution and with the articles (parts thereof) of the Law on
Courts, especially taking account of the civil case considered by
the Court of Appeal of Lithuania, wherein the decision was made
to apply to the Constitutional Court, comprehensive information
is available on how the fitness of this judge for the job of a
judge was assessed, means that in this constitutional justice
case the petitioner does not question the lawfulness of this
procedure or grounds of assessment of activities of S.
Petraškaitė as a judge, therefore, also the grounds and
lawfulness of the Council of Courts Resolution "On the Advice to
the President of the Republic to Dismiss a Judge of a Local
Court" of 18 February 2005.
Therefore, the procedure for assessment of the fitness of
S. Petraškaitė, a judge of the Ukmergė District Local Court, for
the job of a judge and the grounds of assessment of activities of
S. Petraškaitė as a judge (thus the grounds and lawfulness of the
Council of Courts Resolution "On the Advice to the President of
the Republic to Dismiss a Judge of a Local Court" of 18 February
2005) in no aspects is the matter of investigation in this
constitutional justice case.
19. Thus it is to be stated that in this part of the
constitutional justice case regarding the request of the Court of
Appeal of Lithuania, the petitioner, to investigate whether
Decree of the President of the Republic No. 225 of 3 March 2005
is not in conflict with Item 4 of Article 52 (wording of 24
January 2002) of the Law on Courts the matter of investigation is
absent.
The absence of the matter of investigation in the petition
of the petitioner means that the petition is not within the
jurisdiction of the Constitutional Court (Constitutional Court
decisions of 6 May 2003, 13 May 2003, ruling of 13 May 2004,
decision of 8 August 2006).
Item 2 of Paragraph 1 of Article 69 of the Law on the
Constitutional Court provides that, by a decision, the
Constitutional Court shall refuse to consider petitions to
investigate the compliance of a legal act with the Constitution,
if the consideration of the petition does not fall under the
jurisdiction of the Constitutional Court.
It has been expressis verbis stated in the jurisprudence of
the Constitutional Court that the absence of the matter of
investigation in a case regarding the petition of the petitioner
is the grounds for dismissal of the case (Constitutional Court
ruling of 25 January 2001, decision of the Constitutional Court
of 6 May 2003).
20. Paragraph 2 of Article 80 of the Law on the
Constitutional Court, regulating the refusal by the
Constitutional Court to investigate an inquiry, establishes that
if in the course of the consideration of the inquiry the matter
under consideration ceases to exist, the Constitutional Court
shall dismiss the instituted legal proceedings on the grounds
thereof.
This provision of the Law on the Constitutional Court is
mutatis mutandis applicable to the consideration of requests to
investigate the compliance of a legal act with the Constitution
(with the other legal act of a higher legal power) and adoption
of respective decisions (Constitutional Court rulings of 21
September 2006, 6 September 2007, decision of 13 November 2007).
According to Item 3 of Article 69 of the Law on the
Constitutional Court, in the event that the grounds for refusal
to consider a petition have been established after the
commencement of the investigation of the case during the hearing
of the Constitutional Court, a decision to dismiss the case shall
be adopted.
21. Taking account of the arguments set forth, the part of
this constitutional justice case regarding the petition of the
Court of Appeal of Lithuania, the petitioner, requesting to
investigate whether Decree of the President of the Republic No.
225 of 3 March 2005 is not in conflict with Item 4 of Article 52
(wording of 24 January 2002) of the Law on Courts, is to be
dismissed.
22. It is to be held that the Council of Courts, upon
consideration of the request of the President of the Republic for
advice regarding the appointment of S. Petraškaitė, a judge of
the Ukmergė District Local Court, until she turns 65, upon
assessment of the activities of this judge and having taken
account of the conclusion of the Commission for Periodic
Assessment of the Activities of Judges that her behaviour did not
meet the Rules of Judicial Ethics, had the powers to provide
advice to the President of the Republic not to appoint her (to
the specified office) until she turns 65.
Such advice, especially taking into account that, as
mentioned, the request of the President of the Republic to
provide advice regarding the appointment of S. Petraškaitė, a
judge of the Ukmergė District Local Court, until she turns 65, is
to be interpreted also as an implicit request to provide advice
whether S. Petraškaitė, if established that she is not fit for
the job of a judge, should be dismissed from office upon
expiration of the term of powers, could be formulated not just as
advice to the President of the Republic not to appoint S.
Petraškaitė, a judge of the Ukmergė District Local Court, until
she turns 65, but also as advice to the President of the Republic
to dismiss S. Petraškaitė, a judge of the Ukmergė District Local
Court, from the office of a judge upon expiration of the term of
powers (or as advice to the President of the Republic not to
appoint S. Petraškaitė, a judge of the Ukmergė District Local
Court, until she turns 65 and dismiss her from office upon
expiration of the term of powers).
In this context it is to be mentioned that the
Constitutional Court has held in its ruling of 9 May 2006 that
"in the cases when the President of the Republic applies to the
special institution of judges provided for by law specified in
Paragraph 5 of Article 112 of the Constitution so that it would
advise him on the dismissal of a judge from office because his
term of powers has expired or he reached the pensionable age
established by law or the court judgement convicting that judge
has come into effect, the said special institution of judges must
make sure whether the specified facts actually exist and, if they
do, it must advise the President of the Republic to dismiss the
judge from office", that "if the special institution of judges
provided for by law specified in Paragraph 5 of Article 112 of
the Constitution establishes that the said objective facts really
exist, it, under the Constitution, may not decide not to advise
the President of the Republic to dismiss the judge from office,
and the President of the Republic, when he receives such advice,
must dismiss the corresponding judge from office", also that
"under the Constitution, in such cases the judge must be
dismissed from office".
23. By the Constitutional Court ruling of 9 May 2006,
Paragraph 2 (wording of 24 January 2002) of Article 119 of the
Law on Courts to the extent that it established that not only
judges but also other persons compose the Council of Courts was
in conflict with Paragraph 2 of Article 5 and Paragraph 5 of
Article 112 of the Constitution of the Republic of Lithuania, 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, 21 September 2006, and 17 December 2007
the Constitutional Court held that it does not mean that the
decisions of the Council of Courts, which was composed under the
articles (parts thereof) of the Law on Courts (wording of 24
January 2002 with subsequent amendments and supplements) that
were valid at that time, to advise the President of the Republic
on the appointment, promotion, transfer of judges or their
dismissal from office or any other decisions of such Council of
Courts may be questioned only on these grounds.
Thus, Decree of the President of the Republic No. 225 of 3
March 2005 whereby S. Petraškaitė, a judge of the Ukmergė
District Local Court, was dismissed from office upon expiration
of the term of powers 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 was
composed not only of judges, but also of other persons, either.
24. The President of the Republic, upon receiving advice
from the Council of Courts to dismiss S. Petraškaitė, a judge of
the Ukmergė District Local Court, upon expiration of the term of
powers (upon specifying the day when she was to be dismissed from
this office7 March 2005), had to act accordingly.
The President of the Republic did precisely that when he
issued Decree No. 225 of 3 March 2005 "On Dismissing a Judge of a
Local Court" and established that it was to become effective as
of 7 March 2005.
25. Therefore, there are no grounds to state that,
purportedly, the disputed decree of the President of the Republic
violates Paragraph 1 (wording of 24 January 2002) of Article 45
of the Law on Courts, wherein it is established that a judge may
be appointed, transferred, dismissed or removed from office only
on the grounds and pursuant to the procedure stipulated in the
Constitution and in this Law, also the provision "Judges of
courts of the Republic of Lithuania shall be dismissed from
office according to the procedure established by law <...> (2)
upon expiration of the term of powers or upon reaching the
pensionable age established by law" of Article 115 of the
Constitution.
26. Alongside, it should be held that there are no legal
grounds for the statement that, purportedly, the disputed decree
of the President of the Republic was issued in violation of
Paragraph 1 of Article 29 of the Constitution wherein it is
established that all persons are equal before the law, the court
and other state institutions and officials, since S. Petraškaitė
was not treated in a way different from other judges of local
courts whose five-year term of powers was about to expire and
whose appointment until they turn 65 (thus, also, whose
assessment of the fitness to the job of a judge) was subject to
the application to the Council of Courts (the Judicial Council
before the wording of the Law on Courts of 24 January 2002).
27. Taking account of the arguments set forth one is to
draw a conclusion that Decree of the President of the Republic
No. 225 "On Dismissing a Judge of a Local Court" of 3 March 2005
is not in conflict with Part 1 of Article 29 of the Constitution,
the provision "Judges of courts of the Republic of Lithuania
shall be dismissed from office according to the procedure
established by law <...> (2) upon expiration of the term of
powers or upon reaching the pensionable age established by law"
of Article 115, and Paragraph 1 of Article 45 (wording of 24
January 2002) of the Law on Courts.
Pursuant to Articles 102, 105 of the Constitution of the
Republic of Lithuania, Articles 1, 53, 54, 55, 56, 69 and
Paragraph 2 of Article 80 of the Republic of Lithuania Law on the
Constitutional Court, the Constitutional Court of the Republic of
Lithuania has passed the following
ruling:
1. To recognise that Decree of the President of the
Republic of Lithuania No. 225 "On Dismissing a Judge of a Local
Court" of 3 March 2005 (Official Gazette Valstybės žinios, 2005,
Nr. 31-984) is not in conflict with the Constitution of the
Republic of Lithuania, and Paragraph 1 of Article 45 (wording of
24 January 2002) of the Republic of Lithuania Law on Courts.
2. To dismiss the part of the case 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. 225 "On Dismissing a Judge of a Local
Court" of 3 March 2005 (Official Gazette Valstybės žinios, 2005,
Nr. 31-984) is not in conflict with Item 4 of Article 52 (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
Egidijus Kūris
Kęstutis Lapinskas
Zenonas Namavičius
Ramutė Ruškytė
Vytautas Sinkevičius
Stasys Stačiokas
Romualdas Kęstutis
Urbaitis