Case No. 13/04-21/04-43/04
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
DECISION
ON THE CONSTRUCTION OF THE PROVISIONS OF SUB-ITEM 15.
3.1.1 AND ITEM 22 OF CHAPTER II OF THE REASONING PART
OF THE RULING OF THE CONSTITUTIONAL COURT OF THE
REPUBLIC OF LITHUANIA "ON THE COMPLIANCE OF PARAGRAPH
2 (WORDING OF 24 JANUARY 2002), PARAGRAPH 3 (WORDING
OF 21 JANUARY 2003), PARAGRAPHS 4, 5 AND 6 (WORDING OF
24 JANUARY 2002) OF ARTICLE 56, PARAGRAPH 3 (WORDING
OF 28 JANUARY 2003) OF ARTICLE 57, PARAGRAPH 4
(WORDING OF 24 JANUARY 2002) OF ARTICLE 63, PARAGRAPHS
2 AND 3 (WORDING OF 24 JANUARY 2002) OF ARTICLE 70,
PARAGRAPHS 2 AND 3 (WORDING OF 24 JANUARY 2002) OF
ARTICLE 71, PARAGRAPHS 2 AND 3 (WORDING OF 24 JANUARY
2002) OF ARTICLE 72, PARAGRAPH 2 (WORDING OF 24
JANUARY 2002) OF ARTICLE 73, PARAGRAPH 1 (WORDING OF
24 JANUARY 2002) OF ARTICLE 74, PARAGRAPH 1 (WORDING
OF 24 JANUARY 2002) OF ARTICLE 75, PARAGRAPH 2
(WORDING OF 21 JANUARY 2003) OF ARTICLE 76, PARAGRAPH
3 (WORDING OF 24 JANUARY 2002) OF ARTICLE 77,
PARAGRAPH 2 (WORDING OF 21 JANUARY 2003) OF ARTICLE
78, PARAGRAPH 2 (WORDING OF 24 JANUARY 2002) OF
ARTICLE 79, PARAGRAPHS 3 AND 7 (WORDING OF 24 JANUARY
2002) OF ARTICLE 81, PARAGRAPHS 3 AND 7 (WORDING OF 24
JANUARY 2002) OF ARTICLE 90, PARAGRAPHS 2 AND 5
(WORDING OF 24 JANUARY 2002) OF ARTICLE 119, ITEMS 3
AND 4 (WORDING OF 24 JANUARY 2002) OF ARTICLE 120,
PARAGRAPH 2 (WORDING OF 24 JANUARY 2002) OF ARTICLE
128 OF THE REPUBLIC OF LITHUANIA LAW ON COURTS, OF
ITEM 13 (WORDING OF 4 JULY 1996) OF PARAGRAPH 3 OF
ARTICLE 11, PARAGRAPHS 1 AND 3 (WORDING OF 18 APRIL
1995) AND PARAGRAPH 4 (WORDING OF 4 JULY 1996) OF
ARTICLE 17, PARAGRAPH 3 (WORDING OF 18 APRIL 1995) OF
ARTICLE 18 OF THE REPUBLIC OF LITHUANIA LAW 'THE
STATUTE OF THE SUPREME COURT OF LITHUANIA' AND OF
ARTICLE 1 OF DECREE OF THE PRESIDENT OF THE REPUBLIC
OF LITHUANIA NO. 2048 'ON THE DISMISSAL OF A JUDGE OF
THE REGIONAL COURT FROM OFFICE' OF 10 FEBRUARY 2003"
OF 9 MAY 2006
15 May 2009
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Armanas
Abramavičius, Toma Birmontienė, Pranas Kuconis, Kęstutis
Lapinskas, Zenonas Namavičius, Ramutė Ruškytė, Egidijus Šileikis,
Algirdas Taminskas and Romualdas Kęstutis Urbaitis,
with the secretary of the sittingDaiva Pitrėnaitė,
in the presence of the representatives of the President of
the Republic of Lithuania, the petitioner who submitted the
petition requesting to construe the provisions of the 9 May 2006
ruling Constitutional Court of the Republic of Lithuania, who
were Aušra Rauličkytė and Milda Vainiutė, advisers to the
President of the Republic,
pursuant to Article 61 of the Law on the Constitutional
Court of the Republic of Lithuania, on 11 May 2009, in its public
hearing considered the petition of the President of the Republic
set forth in his Decree No. 1K-1778 "On the Petition to the
Constitutional Court Requesting to Construe the Provisions of the
Ruling the Constitutional Court of the Republic of Lithuania 'On
the compliance of Paragraph 2 (wording of 24 January 2002),
Paragraph 3 (wording of 21 January 2003), Paragraphs 4, 5 and 6
(wording of 24 January 2002) of Article 56, Paragraph 3 (wording
of 28 January 2003) of Article 57, Paragraph 4 (wording of 24
January 2002) of Article 63, Paragraphs 2 and 3 (wording of 24
January 2002) of Article 70, Paragraphs 2 and 3 (wording of 24
January 2002) of Article 71, Paragraphs 2 and 3 (wording of 24
January 2002) of Article 72, Paragraph 2 (wording of 24 January
2002) of Article 73, Paragraph 1 (wording of 24 January 2002) of
Article 74, Paragraph 1 (wording of 24 January 2002) of Article
75, Paragraph 2 (wording of 21 January 2003) of Article 76,
Paragraph 3 (wording of 24 January 2002) of Article 77, Paragraph
2 (wording of 21 January 2003) of Article 78, Paragraph 2
(wording of 24 January 2002) of Article 79, Paragraphs 3 and 7
(wording of 24 January 2002) of Article 81, Paragraphs 3 and 7
(wording of 24 January 2002) of Article 90, Paragraphs 2 and 5
(wording of 24 January 2002) of Article 119, Items 3 and 4
(wording of 24 January 2002) of Article 120, Paragraph 2 (wording
of 24 January 2002) of Article 128 of the Republic of Lithuania
Law on Courts, of Item 13 (wording of 4 July 1996) of Paragraph 3
of Article 11, Paragraphs 1 and 3 (wording of 18 April 1995) and
Paragraph 4 (wording of 4 July 1996) of Article 17, Paragraph 3
(wording of 18 April 1995) of Article 18 of the Republic of
Lithuania Law "The Statute of the Supreme Court of Lithuania" and
of Article 1 of Decree of the President of the Republic of
Lithuania No. 2048 "On the Dismissal of a Judge of the Regional
Court From Office" of 10 February 2003' of 9 May 2006" requesting
to construe whether the provisions of Sub-Item 15.3.1.1 and Item
22 of Chapter II of the reasoning part of the 9 May 2006 ruling
of the Constitutional Court of the Republic of Lithuania should
be understood that the free mandate of the Member of the Seimas
also means that the Member of the Seimas can vote so that the
judges who hold the office of presidents of courts and chairmen
of divisions of courtsthe President of the Supreme Court of
Lithuania and chairmen of divisions of the Supreme Court of
Lithuaniawho are to be dismissed by the Seimas, would not be
dismissed from office upon expiration of the term of their
powers, although the factual circumstance is recognised that the
term, i.e. the term of their powers, of the appointment of the
aforesaid officials has expired; if the factual circumstance that
the term of appointment of the aforesaid officials to this office
has expired is not disputed, are there any circumstances which
would be constitutionally justifiable, under which the voting of
the Member of the Seimas against the dismissal of the aforesaid
officials upon expiration of their powers would be compatible
with the duty of the Members of the Seimas, which stems from his
oath to respect and execute the Constitution and laws, to
conscientiously discharge the duties of the representative of the
Nation as obligated by the Constitution.
The Constitutional Court
has established:
I
1. On 9 May 2006, in constitutional justice case No. 13/04-
21/04-43/04, the Constitutional Court adopted the Ruling "On the
compliance of Paragraph 2 (wording of 24 January 2002), Paragraph
3 (wording of 21 January 2003), Paragraphs 4, 5 and 6 (wording of
24 January 2002) of Article 56, Paragraph 3 (wording of 28
January 2003) of Article 57, Paragraph 4 (wording of 24 January
2002) of Article 63, Paragraphs 2 and 3 (wording of 24 January
2002) of Article 70, Paragraphs 2 and 3 (wording of 24 January
2002) of Article 71, Paragraphs 2 and 3 (wording of 24 January
2002) of Article 72, Paragraph 2 (wording of 24 January 2002) of
Article 73, Paragraph 1 (wording of 24 January 2002) of Article
74, Paragraph 1 (wording of 24 January 2002) of Article 75,
Paragraph 2 (wording of 21 January 2003) of Article 76, Paragraph
3 (wording of 24 January 2002) of Article 77, Paragraph 2
(wording of 21 January 2003) of Article 78, Paragraph 2 (wording
of 24 January 2002) of Article 79, Paragraphs 3 and 7 (wording of
24 January 2002) of Article 81, Paragraphs 3 and 7 (wording of 24
January 2002) of Article 90, Paragraphs 2 and 5 (wording of 24
January 2002) of Article 119, Items 3 and 4 (wording of 24
January 2002) of Article 120, Paragraph 2 (wording of 24 January
2002) of Article 128 of the Republic of Lithuania Law on Courts,
of Item 13 (wording of 4 July 1996) of Paragraph 3 of Article 11,
Paragraphs 1 and 3 (wording of 18 April 1995) and Paragraph 4
(wording of 4 July 1996) of Article 17, Paragraph 3 (wording of
18 April 1995) of Article 18 of the Republic of Lithuania Law '
The Statute of the Supreme Court of Lithuania' and of Article 1
of Decree of the President of the Republic of Lithuania No. 2048
'On the Dismissal of a Judge of the Regional Court From Office'
of 10 February 2003" (Official Gazette Valstybės žinios, 2006,
No. 51-1894; hereinafter referred to as the Constitutional Court
ruling of 9 May 2006).
2. In the Constitutional Court ruling of 9 May 2006 it was
inter alia recognised that:
- Paragraph 3 (wording of 28 January 2003, Official Gazette
Valstybės žinios, 2003, No. 12-440) of Article 57 of the Republic
of Lithuania Law on Courts is in conflict with Paragraphs 2 and 3
of Article 109 of the Constitution of the Republic of Lithuania
and the constitutional principle of a state under the rule of
law;
- Paragraph 2 (wording of 24 January 2002, Official Gazette
Valstybės žinios, 2002, No. 17-649) of Article 73 of the Republic
of Lithuania Law on Courts is not in conflict with the
Constitution of the Republic of Lithuania;
- Paragraph 2 (wording of 24 January 2002, Official Gazette
Valstybės žinios, 2002, No. 17-649) of Article 79 and Paragraph 3
(wording of 24 January 2002, Official Gazette Valstybės žinios,
2002, No. 17-649) of Article 81 of the Republic of Lithuania Law
on Courts were in conflict with Paragraph 2 of Article 5, Item 11
of Article 84 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;
- Paragraph 7 (wording of 24 January 2002, Official Gazette
Valstybės žinios, 2002, No. 17-649) of Article 81 of the Republic
of Lithuania Law on 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;
- Items 3 and 4 (wording of 24 January 2002, Official
Gazette Valstybės žinios, 2002, No. 17-649) of Article 120 of the
Republic of Lithuania Law on Courts were 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.
3. The President of the Republic, the petitioner, requests
that the Constitutional Court construe whether the provisions of
Sub-Item 15.3.1.1 and Item 22 of Chapter II of the reasoning part
of the Constitutional Court ruling of 9 May 2006 should be
understood that the free mandate of the Member of the Seimas also
means that the Member of the Seimas can vote so that the judges
who hold the office of presidents of courts and chairmen of
divisions of courtsthe President of the Supreme Court of
Lithuania and chairmen of divisions of the Supreme Court of
Lithuaniawho are to be dismissed by the Seimas, would not be
dismissed from office upon expiration of the term of their
powers, although the factual circumstance is recognised that the
term, i.e. the term of their powers, of the appointment of the
aforesaid officials has expired; if the factual circumstance that
the term of appointment of the aforesaid officials to this office
has expired is not disputed, are there any circumstances which
would be constitutionally justifiable, under which the voting of
the Member of the Seimas against the dismissal of the aforesaid
officials upon expiration of their powers would be compatible
with the duty of the Members of the Seimas, which stems from his
oath to respect and execute the Constitution and laws, to
conscientiously discharge the duties of the representative of the
Nation as obligated by the Constitution.
This petition was received at the Constitutional Court at 9
April 2009.
II
At the Constitutional Court hearing, the representatives of
the President of the Republic of Lithuania, the petitioner who
submitted the petition requesting to construe some provisions of
the Constitutional Court ruling of 9 May 2006, who were Aušra
Rauličkytė and Milda Vainiutė, advisers to the President of the
Republic, explained the reasons which were set forth in the
petition, and which prompted the President of the Republic to
apply to the Constitutional Court, as well as presented
additional explanations.
The Constitutional Court
holds that:
I
1. The Law on the Constitutional Court entrenches the powers
of the Constitutional Court to officially construe its rulings
(Article 61). In its acts the Constitutional Court held more than
once that it enjoys powers to construe also its other final acts.
2. Paragraph 1 of Article 61 of the Law on the
Constitutional Court provides that a ruling of the Constitutional
Court may only be officially construed by the Constitutional
Court at the request of the parties to the case, of other
institutions or persons to whom it was sent, or on its own
initiative.
The President of the Republic was a party concerned at the
constitutional justice case in which the Constitutional Court
ruling of 9 May 2006 was adopted and the construction of the
provisions whereof is requested; in addition, under Paragraph 1
of Article 60 of the Law on the Constitutional Court, the
President of the Republic is one of the subjects to whom rulings
of the Constitutional Court are sent in all situations.
Thus, the President of the Republic has the right to request
that the Constitutional Court construe the provisions of the
Constitutional Court ruling of 9 May 2006.
3. A decision concerning construction of a Constitutional
Court ruling shall be adopted at a Constitutional Court sitting
as a separate document (Paragraph 2 of Article 61 of the Law on
the Constitutional Court).
4. In its acts the Constitutional Court has held more than
once that the purpose of the institute of construction of
Constitutional Court rulings and other final acts is to reveal
the contents and meaning of corresponding Constitutional Court
rulings or other final acts more broadly and in more detail if it
is necessary in order to ensure proper execution of that
Constitutional Court ruling or other final act so that this
Constitutional Court ruling or other final would be followed.
5. The Constitutional Court has held more than once that a
ruling of the Constitutional Court is integral; the resolving
part of a ruling of the Constitutional Court is based upon the
arguments of the part of reasoning; while construing its ruling,
the Constitutional Court is bound both by the content of the part
of resolution and that of reasoning of its ruling; the decision
adopted concerning construction of a Constitutional Court ruling
is inseparable from the Constitutional Court ruling.
6. Under Paragraph 3 of Article 61 of the Law on the
Constitutional Court, the Constitutional Court must construe its
ruling without changing its content.
The Constitutional Court has held more than once that this
provision of Paragraph 3 of Article 61 of the Law on the
Constitutional Court means, among other things, that while
construing its ruling, the Constitutional Court cannot construe
its content so that the meaning of its provisions, inter alia the
notional entirety of the elements constituting the content of the
ruling, the arguments and reasons upon which that Constitutional
Court ruling is based, is changed, also that the Constitutional
Court may not construe what was not investigated in that
constitutional justice case, subsequent to which the construed
ruling was adopted, either. The Constitutional Court also held
that the consideration of a petition requesting to construe a
Constitutional Court ruling or its other final act does not imply
a new constitutional justice case.
In this context it needs to be noted that, as it has been
held by the Constitutional Court more than once, the formula
"shall be final and not subject to appeal" of Paragraph 2 of
Article 107 of the Constitution, which provides that the
decisions of the Constitutional Court on issues ascribed to its
competence by the Constitution shall be final and not subject to
appeal, also means that the Constitutional Court rulings,
conclusions and decisions by which a constitutional justice case
is finished, i.e. final acts of the Constitutional Court, are
obligatory to all state institutions, courts, all enterprises,
establishments and organisations, as well as officials and
citizens, including the Constitutional Court itself: final acts
of the Constitutional Court are obligatory to the Constitutional
Court itself, they restrict the Constitutional Court in the
aspect that it may not change them or review them if there are no
constitutional grounds for that.
Therefore in the official construction (subsequent to a
petition of the persons that participated in the case, other
institutions and individuals, to whom the Constitutional Court
ruling was sent, also on the initiative of the Constitutional
Court itself) of rulings and other final acts of the
Constitutional Court, the constitutional doctrine is not
corrected. The correction of the official constitutional doctrine
(which, undoubtedly, must always have a constitutional basis and
be explicitly reasoned in a respective act of the Constitutional
Court) is to be related with the consideration of new
constitutional justice cases and creation of new Constitutional
Court precedents therein, but not with official construction of
provisions of the Constitutional Court rulings and other final
acts (Constitutional Court decisions of 6 December 2007, 1
February 2008, 4 July 2008 and 15 January 2009).
7. It is also to be noted that the uniformity and continuity
of the official constitutional doctrine implies a necessity to
construe each construed provision of a Constitutional Court
ruling or its other final act by taking account of the entire
official constitutional doctrinal context, also of other
(explicit and implicit) provisions of the Constitution, which are
related with the provision (provisions) of the Constitution in
the course of construction of which in a Constitutional Court
ruling or its other final act the corresponding official
constitutional doctrine was formulated. As the Constitutional
Court has held more than once, no official constitutional
doctrinal provision of a Constitutional Court ruling or its other
final act may be construed in isolation, by ignoring its meaning
and systemic links with the other official constitutional
doctrinal provisions set forth in that Constitutional Court
ruling or its other final act, in other Constitutional Court
acts, as well as with other provisions (explicit and implicit) of
the Constitution.
II
1. The President of the Republic of Lithuania, the
petitioner, requests to construe whether the provisions of Sub-
Item 15.3.1.1 and Item 22 of Chapter II of the reasoning part of
the Constitutional Court ruling of 9 May 2006 should be
understood that the free mandate of the Member of the Seimas also
means that the Member of the Seimas can vote so that the judges
who hold the office of presidents of courts and chairmen of
divisions of courtsthe President of the Supreme Court of
Lithuania and chairmen of divisions of the Supreme Court of
Lithuaniawho are to be dismissed by the Seimas, would not be
dismissed from office upon expiration of the term of their
powers, although the factual circumstance is recognised that the
term, i.e. the term of their powers, of the appointment of the
aforesaid officials has expired if the factual circumstance that
the term of appointment of the aforesaid officials to this office
has expired is not disputed, are there any circumstances which
would be constitutionally justifiable, under which the voting of
the Member of the Seimas against the dismissal of the aforesaid
officials upon expiration of their powers would be compatible
with the duty of the Members of the Seimas, which stems from his
oath to respect and execute the Constitution and laws, to
conscientiously discharge the duties of the representative of the
Nation as obligated by the Constitution.
2. It was inter alia held in the reasoning part of the
Constitutional Court ruling of 9 May 2006:
- "It is clear 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.
It is to be emphasized 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 (if the judge to
be dismissed is a justice of the Supreme Courthe must propose
that the Seimas dismiss him and if the judge to be dismissed from
office is a judge of the Court of Appealhe must request for the
assent of the Seimas in order to dismiss him from office). It is
to be held that, under the Constitution, in such cases the judge
must be dismissed from office. <
>
One must also pay heed to the fact that the said
constitutionally reasoned exception of the general constitutional
prohibition to extend the powers of a judge when it has expired
or when the judge has reached pensionable age may not be
interpreted as, purportedly, meaning that the powers of the
Presidents of courts or of the chairmen of divisions of courts
may be extended on any similar basis" (Item 15.3.1.1);
- "If judges were appointed as <
> Presidents of courts,
Chairmen of the divisions of courts or were to hold any other
administrative offices for a certain term established by laws,
after the term has expired they must be dismissed from office and
therefore, as well as when appointing them to that office, a
corresponding individual act on the application of law must be
adopted. The powers of the Presidents of courts, the Chairmen of
the divisions of courts and other judges who hold administrative
offices in courts may not be extended by law, or by any other
legal act establishing general norms eitherin general such
powers may not be extended as after the term of powers has
expired, they are discontinued (an individual act on the
application of law must be adopted concerning that), and then,
according to the procedure established by laws, it must be anew
decided whether the same judge (if the laws provide for such
possibility) or another person has to be appointed as the
President of that court, the chairman of a division of court"
(Item 22).
3. The Constitutional Court construed the said provisions in
the Constitutional Court ruling of 9 May 2006 by interpreting
inter alia Article 112 of the Constitution.
Article 112 of the Constitution provides:
"In Lithuania, only citizens of the Republic of Lithuania
may be judges.
Justices of the Supreme Court as well as its President
chosen from among them shall be appointed and dismissed by the
Seimas upon the submission of the President of the Republic.
Judges of the Court of Appeal as well as its President
chosen from among them shall be appointed by the President of the
Republic upon the assent of the Seimas.
Judges and presidents of local, regional, and specialised
courts shall be appointed, and their places of work shall be
changed by the President of the Republic.
A special institution of judges provided for by law shall
advise the President of the Republic on the appointment,
promotion, transfer of judges, or their dismissal from office.
A person appointed judge shall take an oath, according to
the procedure established by law, to be faithful to the Republic
of Lithuania and to administer justice only according to law."
4. Article 112 of the Constitution which are designed for
dismissal of judges are to be construed also by taking account of
Article 115 of the Constitution wherein the grounds for dismissal
of judges from office are established, as well as of other
provisions of the Constitution.
For instance, under Article 115 of the Constitution, judges
(of courts of general jurisdiction and specialised courts
established under Paragraph 2 of Article 111 of the Constitution)
shall be dismissed from office according to the procedure
established by law in the following cases: of their own will
(Item 1); upon expiration of the term of powers or upon reaching
the pensionable age established by law (Item 2); due to the state
of health (Item 3); upon the election to another office or upon
their transfer, with their consent, to another place of work
(Item 4); when by their behaviour they discredit the name of the
judge (Item 5); upon coming into effect of court judgements
convicting them (Item 6).
Under Article 108 of the Constitution, the powers of a
justice of the Constitutional Court shall cease: upon the
expiration of the term of powers (Item 1); upon his death (Item
2); upon his resignation (Item 3); when he is incapable to hold
office due to the state of his health (Item 4); when the Seimas
removes him from office in accordance with the procedure for
impeachment proceedings (Item 5).
Under Articles 74 and 116 of the Constitution, the President
and justices of the Supreme Court, the President and judges of
the Court of Appeal, and, under Article 74 of the Constitution,
also the President and justices of the Constitutional Court, for
a gross violation of the Constitution or breach of oath, or if it
transpires that a crime has been committed, may be removed from
office by the Seimas; this shall be performed according to the
procedure for impeachment proceedings.
4.1. Under the Constitution, one of the grounds for
dismissal of judges from office (termination of powers of judges)
is expiration of the term of powers of the judge.
It needs to be noted that the Constitution defines the
consequences of the juridical factexpiration of the term of
powers of a judge or a justice of the Constitutional Courtby
means of different formulas: "judges shall be dismissed from
office according to the procedure established by law" (Article
115), "the powers of a justice of the Constitutional Court shall
cease" (Article 108).
While construing the formula "judges shall be dismissed from
office according to the procedure established by law" of the
Constitution, it needs to be noted that it means that after the
juridical factexpiration of the term of powers of the judge
takes place, the institution which is provided for in the
Constitution, i.e. the President of the Republic, or both the
President of the Republic and the Seimas, have a duty to
ascertain that such juridical fact has taken place, and, upon
stating the existence of this fact, to adopt, under procedure
established by the law, a corresponding decision (an individual
act of application of law) whereby the judge or President of a
court, whose term of powers has expired, would be dismissed from
the office of the judge or the President of that court.
While construing the formula "the powers of a justice of the
Constitutional Court shall cease" of the Constitution, it needs
to be noted that after the juridical factexpiration of the term
of powers of a justice of the Constitutional Courttakes place,
no institution has a duty to state the existence of such
juridical fact and adopt a corresponding decision (an individual
act of application of law) whereby the justice of the
Constitutional Court would be dismissed.
4.2. It needs to be noted that the Constitution entrenches
the final list of the grounds for dismissal of judges from office
(i.e. discontinuation of powers) and that this list may not be
expanded by laws or other legal acts (Constitutional Court ruling
of 22 October 2007).
Judges of courts of general jurisdiction and specialised
courts may be dismissed from office upon various constitutional
grounds. On the one hand, some of such grounds are related with
the free decision of the judge himself, as, for instance, under
Item 1 of Article 115 of the Constitution, a judge may be
dismissed from office of his own will. Such ground of dismissal
of a judge is not linked with expiration of his powers or his
pensionable age, although they sometimes can coincide. On the
other hand, the Constitution provides also for such grounds of
dismissal of a judge from office, which are linked with facts of
objective character, but not with the free decision of the judge,
as, for instance, the expiration of the term of powers of the
judge for which he was appointed to hold the office of the judge
or that of the President of a court.
The Constitutional Court has held that, when appointing a
judge, he should know what is the length of the term of powers
(until the time established by law or until he reaches the
pensionable age established by law) (Constitutional Court rulings
of 9 May 2006, 22 October 2007, and 20 December 2007).
Under Paragraph 4 of Article 111 of the Constitution, the
formation and competence of courts shall be established by the
Law on Courts of the Republic of Lithuania. Thus, the
Constitution not only obliges the legislator to establish the
formation and competence of all the courts of the Republic of
Lithuania specified in Paragraph 1 of Article 111 of the
Constitution (thus, also the status, formation, discharge of
powers (activities) and the guarantees, the status of judges of
these courts, etc.) by means of a law, but also entrenches
expressis verbis the title of this lawthe Law on Courts. Thus,
also the term of powers of judges and Presidents of courts must
be regulated precisely by the Law on Courts. The regulation of
the term of powers of the judge by means of a law is one of
essential guarantees of the independence of the judge.
4.3. In its acts the Constitutional Court has formulated a
broad official constitutional doctrine of the independence of the
judge and courts wherein the imperative of the independence of
the judge and courts is construed in the context of the
constitutional principle of a state under the rule of law (which,
as the Constitutional Court has held in its acts more than once,
integrates various values entrenched in, and protected and
defended by the Constitution, and upon which the entire legal
system of Lithuania and the Constitution itself are based). The
Constitutional Court has held more than once that the
independence of the judge and courts is not an end in itself but
one of essential principles of a democratic state under the rule
of law and a necessary condition of protection of human rights
and freedoms; when administering justice, the courts must ensure
the implementation of law which is entrenched in the Constitution
and also in laws and other legal acts if they are not in conflict
with the Constitution.
Alongside, the Constitutional Court has noted in its rulings
of 27 November 2006 and 22 October 2007 that, while establishing
the procedures for dismissal of a judge from office by the Law on
Courts (taking account of inter alia the ground (particularities
thereof) of the dismissal), in all cases one must heed the
principle of independence of the judge and courts.
It was also held in the Constitutional Court rulings of 27
November 2006 and 22 October 2007 that the judge's behaviourboth
related to the direct performance of his office and to his
activity, which is not linked to his officeshould not raise any
doubts about his impartiality and independence.
It also needs to be noted that, as mentioned, under
Paragraph 6 of Article 112 of the Constitution, a person
appointed judge shall take an oath inter alia to administer
justice only according to law.
4.4. The Constitutional Court has noted 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", that "the legal regulation when the
possibility to extend the term of powers of judges upon their
expiry (irrespective of the term for which the powers of the
judge are extended and of the level of court the powers of whose
judge are extended) is provided may create preconditions for
other persons to try to influence the judge directly or
indirectly in order that he, when seeking extension of his
powers, would make certain decisions in his investigated cases;
such legal regulation is to be assessed as enabling someone to
induce the judge to consider cases and adopt decisions in them
not only by obeying the law, as required by the Constitution
(Paragraph 3 of Article 109), but also by heeding the fact how
the decisions adopted in his considered cases will influence the
possibility to extend his powers in the future", as well as that
"such legal regulation creates preconditions for a judge to adopt
the decisions in his investigated cases, which would correspond
not the concept of justice of the judge himself, but the concept
of justice of other persons"; the legal regulation, when the
possibility is provided to extend the powers of judges upon
expiry of their term, save the exceptions allowed by the
Constitution itself, is incompatible with the principle of the
independence of the judge and courts, with Paragraph 2 of Article
109 of the Constitution whereby while administering justice, the
judge and courts shall be independent, and with Paragraph 3 of
the same article which provides that, when considering cases,
judges shall obey only the law, and with the constitutional
principle of a state under the rule of law (Constitutional Court
rulings of 9 May 2006 and 22 October 2007).
4.5. The Constitutional Court has held that the Constitution
does not in essence prevent such legal regulation established by
law, where a judge, despite the fact that his powers have expired
or he reached the pensionable age established by law, may still
hold his office for a certain period of time until the
consideration of certain cases, the consideration of which was
not finished at the time (on the day) when the term of powers of
that judge expired or when he reached the pensionable age
established by law, is finished (final decisions therein will be
adopted); such exceptional legal regulation would be
constitutionally grounded (Constitutional Court rulings of 9 May
2006 and 22 October 2007).
It also needs to be noted that it was held in the
Constitutional Court ruling of 9 May 2006 (the construction of
the provisions of which is requested by the President of the
Republic, the petitioner) that "<
> the said constitutionally
reasoned exception of the general constitutional prohibition to
extend the powers of a judge when it has expired or when the
judge has reached pensionable age may not be interpreted as,
purportedly, meaning that the powers of the Presidents of courts
or of the chairmen of divisions of courts may be extended on any
similar basis".
5. The Constitutional Court ruling of 9 May 2006 (the
construction of the provisions of which is requested by the
President of the Republic, the petitioner) inter alia formulated
also the official constitutional doctrine of dismissal of judges
and Presidents of courts from office, which was formulated by the
Constitutional Court also by taking account of the constitutional
status of judges, which was revealed in the Constitutional Court
ruling of 21 December 1999.
5.1. The Constitution establishes such a procedure of
appointment and dismissal of judges and Presidents of courts of
general jurisdiction and specialised courts of various standing,
where these judges and Presidents of courts are appointed and
dismissed by institutions of other branches of state powerthe
executive and legislature, correspondingly, the President of the
Republic and the Seimas, i.e. the institutions formed on a
political basis.
5.2. In its rulings of 21 December 1999, 9 May 2006, and 27
November 2006, the Constitutional Court held that the powers of
the President of the Republic entrenched in Item 11 of Article 84
of the Constitution in formation of the judiciary are a
significant element of the constitutional status of the Head of
State; that changing or limitation of the specified powers of the
President of the Republic in this sphere, as well as
establishment of such procedure for implementation of these
powers that the President of the Republic would be conditioned or
bound by decisions of institutions or officials, which are not
provided for in the Constitution, would mean a change of the
constitutional competence of the President of the Republic. Also,
any change or restriction of the powers of the special
institution of judges provided for by law specified in Paragraph
5 of Article 112 of the Constitution to advise the President of
the Republic on the appointment, promotion, transfer of judges of
all courts or their dismissal from office would mean a change of
the purpose of the special institution of judges provided for by
law specified in Paragraph 5 of Article 112 of the Constitution
which arises from the Constitution itself (Constitutional Court
rulings of 9 May 2006 and 27 November 2006).
The President of the Republic participates (in the ways
established in Paragraphs 2, 3 and 4 of Article 112 and Item 11
of Article 84 of the Constitution) when appointing and dismissing
judges of courts of general jurisdiction of all levels, starting
from the lowest levellocal courtsand finishing by the highest
levelthe Supreme Court (as well as including judges of all
specialised courts), however, his powers regarding judges of
different courts of general jurisdiction are different. Judges
and Presidents of local, regional, and specialised courts are
appointed and dismissed by the President of the Republic and
regarding this he does not apply to the Seimas. Item 11 of
Article 84 of the Constitution inter alia provides that the
President of the Republic shall submit candidatures of the
Supreme Court justices to the Seimas and, upon the appointment of
all the Supreme Court justices, submit from among them to the
Seimas the President of the Supreme Court; appoint judges of the
Court of Appeal, and from among them, provided the Seimas gives
assent to their candidatures, the President of the Court of
Appeal; appoint judges and presidents of regional and local
courts, and change their places of work; in cases provided for by
law, shall submit that the Seimas dismiss judges.
As it was noted in the Constitutional Court rulings of 9 May
2006 and 21 September 2006, in order to appoint or dismiss a
judge of the Court of Appeal or the President of this court, the
President of the Republic must apply to the Seimas and, if he
gets the assent of the Seimas, he may appoint the corresponding
person as a judge of the Court of Appeal or the President of this
court or dismiss the corresponding judge of the Court of Appeal
or the President of this court from his office, also, inter alia
if certain circumstances significant to such appointment or
dismissal from office come to light, he might decide not to
appoint that person as a judge of the Court of Appeal or the
President of this court, and submit the Seimas with another
candidature, or not to dismiss the corresponding judge of the
Court of Appeal or the President of this court (if it is not
obligatory to dismiss that judge under the Constitution).
5.3. Paragraph 5 of Article 112 of the Constitution provides
that a special institution of judges provided for by law shall
advise the President of the Republic on the appointment,
promotion, transfer of judges, or their dismissal from office.
The Constitutional Court interprets the special institution
of judges provided for in the Constitution as an important
element of self-government of the Judiciary which is an
independent state power; while regulating the relations linked to
appointment, promotion, transfer of judges or their dismissal
from office, one may not deny the indicated special competence of
the institution of judges, its constitutional nature and purpose;
this special institution of judges is a balance to the President
of the Republic, who is a subject of the executive
(Constitutional Court rulings of 21 December 1999, 13 December
2004 and 9 May 2006). The all-sufficiency, autonomy, independence
of the judiciary and the constitutional principle of separation
of powers do not allow to construe the constitutional purpose and
functions of the said special institution of judges in such a way
so that its role of a balance to the President of the Republic in
the area of the formation of the corps of judges would be denied
or ignored (Constitutional Court ruling of 9 May 2006).
6. In the Constitutional Court ruling of 9 May 2006 (the
construction of the provisions of which is requested by the
President of the Republic, the petitioner) it was emphasised that
the interaction of state power may not be treated as their
conflict or competition, thus, also the checks and balances that
the judicial power (its institutions) and other state powers (its
institutions) have towards each other, may not be treated as
mechanisms of the opposition of powers; the model of reciprocity
between state powers entrenched in the Constitution is also
described by the reciprocal control and balance of state powers
(their institutions), which does not allow for one state power to
dominate in respect of the other (others), and by their
cooperation, of course, without overstepping the limits
established by the Constitutionwithout interfering in the
implementation of powers of other state power.
7. As mentioned, also the legislative power participates in
the course of appointing and dismissing justices and President of
the Supreme Court and judges and President of the Court of
Appeal. The constitutional powers of the Seimas to appoint and
dismiss judges are entrenched in the provisions of Paragraphs 2
and 3 of Article 112 of the Constitution and Item 10 of Article
67 thereof which inter alia provides that the Seimas shall
appoint justices and the President of the Supreme Court. Thus,
the Seimas participates in appointing and dismissing not all
judges, but only the judges and Presidents of only the two courts
of highest standing. It also needs to be noted that the Seimas
implements these powers together with the President of the
Republic.
7.1. In order that a justice or President of the Supreme
Court be appointed or dismissed, the President of the Republic
must submit a corresponding person to the Seimas so that the
Seimas appoint or dismiss him, while the decision regarding the
appointment or dismissal of the person as justice or President of
this court is adopted by the Seimas. The Seimas, after it
receives the submission by the President of the Republic, may
appoint the corresponding person as justice or President of the
Supreme Court, and, also (inter alia if certain circumstances
come to light which are important to the appointment or
dismissal) it can decide not to appoint this person as justice or
President of the Supreme Court or it can decide not to dismiss
the corresponding justice of the Supreme Court or the President
thereof, if, under the Constitution, the dismissal of the justice
in question is not mandatory.
7.2. As mentioned, Article 115 of the Constitution also
provides for such grounds of dismissal of a judge from office,
which are linked with facts of objective character, but not with
the free decision of the judge, as, for instance, the expiration
of the term of powers of the judge for which he was appointed to
hold the office of the judge or that of the President of a court.
When there is such a constitutional ground for dismissal of a
justice of the Supreme Court or President thereof, the President
of the Republic must ascertain whether the said fact of objective
character really exists, i.e. whether the term of powers of the
justice of the Supreme Court or President thereof, which is
established by the law, has expired, and, provided the term of
powers has expired, he must apply to the special institution of
judges which is provided for in Paragraph 5 of Article 112 of the
Constitution so that this institution would advise him as for
dismissing of the justice of the Supreme Court or President
thereof from office, because the term of powers of the said
justice or President of court has expired. In its turn, however,
the said special institution of judges must ascertain whether the
said fact of objective character really exists (whether the term
of powers of the justice of the Supreme Court or President
thereof, which is established by the law, has expired), and,
provided this fact exists, it must advise the President of the
Republic to dismiss the justice of the Supreme Court or President
thereof from office. Upon receiving such advice fro the special
institution of judges, the President must submit the
corresponding person to the Seimas in order that the Seimas
dismiss the said person from office.
Upon receiving the submission by the President of the
Republic to dismiss the justice of the Supreme Court or President
thereof from office, the Seimas must ascertain whether the said
fact of objective character really exists, i.e. whether the term
of powers of the justice of the Supreme Court or President
thereof, which is established by the law, has expired, and,
provided it is recognised that the term of powers has expired,
the Seimas must adopt the corresponding individual act of
application of law regarding dismissal of the justice of the
Supreme Court or President thereof from the office of the justice
of the Supreme Court or President thereof. Thus, in case the
existence of the objective fact is stated that the term of powers
of the justice of the Supreme Court or President thereof has
expired, the dismissal of the corresponding person from office is
mandatory. The same is applied mutatis mutandis to chairmen of
divisions of the Supreme Court.
8. It has also been mentioned that the Constitutional Court
has held that the Constitution does not in essence prevent such
legal regulation established by law, where a judge, despite the
fact that his powers have expired or he reached the pensionable
age established by law, may still hold his office for a certain
period of time until the consideration of certain cases, the
consideration of which was not finished at the time (on the day)
when the term of powers of that judge expired or when he reached
the pensionable age established by law, is finished (final
decisions therein will be adopted); such exceptional legal
regulation would be constitutionally grounded.
In its rulings of 9 May 2006 and 22 October 2007, the
Constitutional Court grounded such compatibility of holding the
office of the judge with the Constitution upon the fact that such
exceptional legal regulation would be constitutionally grounded,
since, otherwise, i.e. without establishing such legal
regulation, the decision of corresponding casesadministration of
justicewould slow down and thus preconditions would be created
to injure the rights and legitimate interests of persons and
certain constitutional values would be violated. However, such
judge must be dismissed after the corresponding legal fact takes
place with which the extending of the powers of the judge is
related, i.e. when the consideration of corresponding cases is
over. As long as the consideration of the said cases is not over,
the judge whose term of powers has been extended is a full-
fledged judge: he enjoys the same powers to administer justice
(consider cases at law) as the rest of the judges of the
corresponding court; his status of a judge is indivisible and the
same restrictions of his activity are applied in his regard; he
has the same responsibility and immunities as all other judges;
thus, he has to receive the same load of work (inter alia due to
the fact that the place of the judge, who has to discharge an
important constitutional functionto administer justiceis not
vacant yet in the said court).
It also needs to be noted that, as mentioned, it was inter
alia held in the provision (Sub-Item 15.3.1.1) of the
Constitutional Court ruling of 9 May 2006 that the said
constitutionally reasoned exception of the general constitutional
prohibition to extend the powers of a judge when it has expired
or when the judge has reached pensionable age may not be
interpreted as, purportedly, meaning that the powers of the
Presidents of courts or of the chairmen of divisions of courts
may be extended on any similar basis. It was also mentioned that
in its ruling of 9 May 2006 the Constitutional Court also held
that the legal regulation, when the possibility is provided to
extend the powers of judges upon expiry of their term, save the
exceptions allowed by the Constitution itself, is incompatible
with the principle of the independence of the judge and courts,
with Paragraph 2 of Article 109 of the Constitution whereby while
administering justice, the judge and courts shall be independent,
and with Paragraph 3 of the same article which provides that,
when considering cases, judges shall obey only the law, and with
the constitutional principle of a state under the rule of law.
9. In the Constitutional Court ruling of 9 May 2006 (the
construction of the provisions of which is requested by the
President of the Republic, the petitioner) it was inter alia held
that The powers of the Presidents of courts, the chairmen of the
divisions of courts and other judges who hold administrative
offices in courts may not be extended by law, or by any other
legal act establishing general norms eitherin general such
powers may not be extended as after the term of powers has
expired, they are discontinued (an individual act on the
application of law must be adopted concerning dismissal of the
corresponding person from office).
Thus, one is to draw a conclusion that there are not any
constitutionally justifying circumstances due to which non-
dismissal of Presidents of courts or chairmen of divisions of
courts upon expiry of their term of powers would be compatible
with the Constitution, since the expiry of powers of Presidents
of courts or chairmen of divisions of courts is a fact of
objective character, which is not related with their free
decision. Non-dismissal of Presidents of courts or chairmen of
divisions of courts after their term of powers has expired may
not be treated as an exception to the general constitutional
prohibition to extend the powers of a judge upon expiry of his
term of powers or reaching the pensionable age, since, under the
Constitution, such exception may be applied only in cases when,
upon expiry of the powers of the judge (but not of the President
of a court nor those of chairmen of divisions of the court), the
consideration of certain cases, which was begun, has not been
finished.
9.1. In addition, also such situations are possible, where
the President of the Republic, after he receives the advice from
the special institution of judges specified in Paragraph 5 of
Article 112 of the Constitution, applies to the Seimas regarding
dismissal of the President of the Supreme Court (or the chairman
of a division of this court) from office due to the objective
factexpiry of the term of powers for which he was appointed to
hold the office of the President of the Supreme Court (or the
chairman of a division of this court), however, the Seimas does
not adopt, in time, the corresponding individual act of
application of law regarding his dismissal from office due to the
fact that the respective presentation by the President of the
Republic was received at the time when no ordinary or
extraordinary session of the Seimas takes place. Under the
Constitution, in such a case the President of the Supreme Court
(or the chairman of a division of this court), whose term of
powers in the capacity of the President (chairman) has expired de
facto, however, de jure he has not been dismissed since the
corresponding individual act of application of law has not been
adopted, may not be regarded as having the powers of the
President of the Supreme Court (or the chairman of a division of
this court). On the other hand, the President of the Supreme
Court (or the chairman of a division of this court) whose term of
powers has expired must and may discharge all his powers as a
justice (if his powers of the justice has not expired).
9.2. Taking account of the arguments set forth, one is to
draw a conclusion that in cases when the fact of objective
character is ascertained that the term of powers of the President
of the Supreme Court (or the chairman of a division of this
court) has expired, there are not any constitutionally
justifiable circumstances under which non-dismissal of the
President of the Supreme Court (or the chairman of a division of
this court) from office upon expiry of the term of his powers
would be compatible with the Constitution, otherwise, there would
occur a situation prohibited by the Constitution.
10. It has been mentioned that the President of the Republic
requests that the Constitutional Court construe whether the
provisions of Sub-Item 15.3.1.1 and Item 22 of Chapter II of the
reasoning part of the Constitutional Court ruling of 9 May 2006
should be understood that the free mandate of the Member of the
Seimas also means that the Member of the Seimas can vote so that
the judges who hold the office of presidents of courts and
chairmen of divisions of courtsthe President of the Supreme
Court of Lithuania and chairmen of divisions of the Supreme Court
of Lithuaniawho are to be dismissed by the Seimas, would not be
dismissed from office upon expiration of the term of their
powers, although the factual circumstance is recognised that the
term, i.e. the term of their powers, of the appointment of the
aforesaid officials has expired.
10.1. It has been mentioned that the constitutional powers
of the Seimas to appoint and dismiss judges are entrenched in the
provisions of Paragraphs 2 and 3 of Article 112 of the
Constitution and Item 10 of Article 67 thereof.
It needs to be noted that the Seimas, while implementing its
constitutional powers, discharges the classical functions of the
parliament of a democratic state under the rule of law.
While passing laws and other legal acts, the Seimas and each
Member of the Seimas are bound by the Constitution,
constitutional laws and laws, as well as the Statute of the
Seimas which has the power of law Seimas (Constitutional Court
rulings of 4 April 2006 and 22 February 2008).
One of democratic principles of adoption of decisions is the
majority principle (Constitutional Court rulings of 22 July 1994
and 4 April 2006). The political will of the majority of Members
of the Seimas is reflected in Seimas resolutions (Constitutional
Court conclusion of 31 March 2004 and ruling of 4 April 2006).
Under the Constitution, the will of the Seimas regarding adoption
of corresponding resolutions cannot be expressed otherwise than
by voting by Members of the Seimas at a Seimas sitting and
adopting a corresponding legal act.
It also needs to be noted that, under the Constitution,
every decision of the Seimas, no matter what its expression
(legal form) might be, can be disputed at the Constitutional
Court with regard to the compliance of this decision (act of the
Seimas) with legal acts of higher power, inter alia (and, first
of all) the Constitution. Under the Constitution, the subjects
specified in Paragraph 1 of Article 106 of the Constitution can
do so, inter alia not less than 1/5 of all Members of the Seimas,
i.e. a group of not less than 29 Members of the Seimas.
10.2. While in office, and implementing their rights,
Members of the Seimas are guided by the Constitution, state
interests, their own consciences, and may not be restricted by
any mandates. The constitutional doctrine of the free mandate of
the Member of the Seimas, the construction of some aspects of
which is requested by the President of the Republic, is inter
alia related to actions of the Member of the Seimas in the course
of appointing and dismissing judges. It is to be construed by
taking account of the entire official constitutional doctrinal
context, as well as of the other related provisions of the
Constitution; no official constitutional doctrinal provision of a
ruling of the Constitutional Court or other final act thereof may
be construed in isolation, by ignoring its notional and systemic
links with other official constitutional doctrinal provisions.
The constitutional status of the Member of the Seimas
integrates the duties, rights and guarantees of activity of the
Member of the Seimas as a representative of the Nation; this
status is based upon the constitutional principle of the free
mandate of the Member of the Seimas. The Constitutional Court has
held more than once that the essence of the free mandate is that
a representative of the Nation is free to implement the rights
and duties vested in him without restricting this freedom by
mandates of the electorate, political requirements of parties or
organisations which have promoted him; that the imperative
mandate and the right of pre-term recall of a Member of the
Seimas are not recognised; the free mandate of the Member of the
Seimas entrenched in the Constitution is one of the guarantees of
independence of activities and equal rights of Members of the
Seimas.
The activity of the Member of the Seimas, which is based
upon the constitutional principle of the free mandate of the
Member of the Seimas, cannot be opposed to the powers of the
Seimas as representation of the Nation. While implementing the
constitutional powers, the Seimas has a duty to adopt
corresponding decisions, as, for instance, under the provisions
of Item 4 of Article 67 and Article 80 of the Constitution, the
Seimas calls regular elections of the President of the Republic,
which are held on the last Sunday two months before the
expiration of the term of office of the President of the
Republic; according to the provisions of Paragraph 3 of Article
59 of the Constitution, the Seimas shall adopt a corresponding
resolution regarding the loss of the mandate of the Member of the
Seimas who either does not take the oath according to the
procedure established by law, or who takes a conditional oath,
etc. Thus, all Members of the Seimas, as representatives of the
Nation, not only acquire corresponding rights, but also they must
discharge certain duties arising from the Constitution and laws
which are not in conflict with it.
10.3. In its ruling of 25 January 2001, wherein some
provisions of the Statute of the Seimas were construed, the
Constitutional Court held that every Member of the Seimas, in
accordance with the Constitution, the interests of the state, as
well as his own conscience, without restriction by any mandates,
may decide on how he will vote. It needs to be noted that the
constitutional doctrine of the free mandate of the Member of the
Seimas was developed not only in the Constitutional Court ruling
of 25 January 2001, but also in other acts of the Constitutional
Court, therefore, the constitutional principle of the free
mandate of the Member of the Seimas is to be construed inter alia
by taking account of the entire official constitutional doctrinal
context.
In its rulings of 25 May 2004 and 1 July 2004, the
Constitutional Court held that the free mandate of the Member of
the Seimas entrenched in the Constitution may not be understood
only as a permission to act only at one's discretion, to act by
following only one's conscience by ignoring the Constitution. The
Constitution implies the notion of discretion and conscience of a
Member of the Seimas, according to which no gap should exist
between the discretion of the Member of the Seimas and the
conscience of the Member of the Seimas on the one hand, and the
requirements of the Constitution, as well as values entrenched in
and protected by the Constitution on the other hand: according to
the Constitution, the discretion of a Member of the Seimas and
his conscience should be oriented towards the Constitution, and
the interests of the Nation and the State of Lithuania.
In its rulings of 25 May 2004 and 1 July 2004, the
Constitutional Court also held that the free mandate of a Member
of the Seimas is not a privilege of a representative of the
Nation, it is rather one of the legal measures ensuring that the
Nation will be properly represented in its democratically elected
representation, the Seimas, and that the representation of the
Nation, the Seimas, will act only in the interests of the Nation
and the State of Lithuania. Therefore the free mandate of a
Member of the Seimas may not be used in the interests other than
those of the Nation and the State of Lithuania.
The constitutional consolidation of the free mandate of a
Member of the Seimas, as well as the essence of the Seimas as the
representation of the Nation, implies the constitutional duty of
the Seimas to set by legal acts the legal regulation, which would
provide no conditions for using the free mandate of a Member of
the Seimas in the interests other than the interests of the
Nation and the State of Lithuania, i.e. for the private benefit
of a Member of the Seimas, his close relatives or other persons,
for their personal interests or the interests of a group, in the
interests of political parties or political organisations, public
or other organisations, and other persons, which nominated or
supported the candidate to the office of a Member of the Seimas,
territorial communities, electors of the electoral district of
elections of a Member of the Seimas; the legislator should set
the legal regulation which would ensure that a Member of the
Seimas work only for the Nation and the State of Lithuania, and
avoid the confrontation of the interests of the Nation and the
State of Lithuania with private interests of a Member of the
Seimas, his close relatives or other persons (personal interests
or the interests of a group), interests of political parties or
political organisations, public or other organisations, and other
persons, which nominated or supported the candidate to the office
of a Member of the Seimas, territorial communities, electors of
the electoral district of elections of a Member of the Seimas;
alongside, the activity of a Member of the Seimas should be
legally regulated in the manner so that it would be possible to
efficiently control whether such confrontation does not exist,
whether a Member of the Seimas does not use his free mandate in
the interests other than the interests of the Nation and the
State of Lithuania; in case he disregards the aforementioned
requirements of the Constitution, the Member of the Seimas should
be held liable pursuant to the Constitution and laws
(Constitutional Court ruling of 1 July 2004).
The free mandate of Members of the Seimas must be used in
such a way, so that the Seimas could effectively act in the
interests of the Nation and the State of Lithuania, that it would
properly perform its constitutional obligation (Constitutional
Court ruling of 4 April 2006).
10.4. Under Paragraph 2 of Article 59 of the Constitution,
the elected Member of the Seimas shall acquire all the rights of
a representative of the Nation only after taking at the Seimas an
oath to be faithful to the Republic of Lithuania. According to
the text of the oath of the Member of the Seimas entrenched in
Article 5 of the Law "On the Procedure for Entry into Force of
the Constitution of the Republic of Lithuania" of 25 October
1992, which is a constituent part of the Constitution, the Member
of the Seimas swears to respect and execute the Constitution and
laws. The Constitution unreservedly requires that a Seimas member
take an oath to be loyal to the state of Lithuania only, that he
pledge to respect and observe the Constitution and laws
(Constitutional Court ruling of 11 November 1998).
The oath of a Member of the Seimas obligates him in his
activity to follow the Constitution, the interests of the state
and his conscience, and not to be bound by any mandates. His duty
to respect and execute the Constitution and laws, and to
conscientiously exercise the duties of a representative of the
Nation in a manner he is obliged to by the Constitution
originates from the oath of a Member of the Seimas
(Constitutional Court ruling of 1 July 2004). In its rulings of
25 May 2004 and 1 July 2004, the Constitutional Court held that
the act of the oath of a Member of the Seimas is constitutionally
legally important: when taking the oath, the elected Member of
the Seimas publicly and solemnly accepts an obligation to act in
line with the obligations of the oath and to breach the oath
under no circumstances; from the moment of taking the oath his
duty emerges to act only in the way he is obliged by the oath
taken and to breach this oath under no circumstances.
10.5. In this context it needs to be noted that the free
mandate of the Member of the Seimas may not be identified with
absolutely free actions of the Member of the Seimas, made only at
his own discretion while ignoring the Constitution, since the
Constitution implies only such concept of the discretion of the
Member of the Seimas, and only such conscience of the Member of
the Seimas, according to which there is no gap or contradictions
between the discretion of the Member of the Seimas and the
conscience of the Member of the Seimas on the one hand, and the
requirements of the Constitution and the values protected and
defended in it, on the other hand.
Thus, one is to draw a conclusion that the constitutional
principle of the free mandate of the Member of the Seimas may not
be understood as absolute freedom (which is not restricted by the
Constitution and laws) of the Member of the Seimas to act in such
manner so that the Seimas would not be able to implement the
requirements arising from the Constitution and that decisions
incompatible with the Constitution would be adopted; a different
construction of the constitutional principle of the free mandate
of the Member of the Seimas would mean disregard of the
imperatives arising to the Member of the Seimas from the
Constitution and the oath of the Member of the Seimas.
In this context one is also to hold that the duty of the
Member of the Seimas to act in the manner obligated by the oath
taken by the Member of the Seimas, while heeding the requirements
arising from the Constitution and laws which are not in conflict
with it, may not be interpreted as meaning the restriction of the
constitutional principle of the free mandate of the Member of the
Seimas. The construction of this principle that, purportedly, the
Member of the Seimas, while discharging his constitutional
obligation, would be allowed in certain cases to disregard the
Constitution and laws which are not in conflict with it, is
incompatible with the constitutional concept of the principle of
the free mandate of the Member of the Seimas.
10.6. Under Paragraph 4 of Article 111 of the Constitution,
the formation and competence of courts shall be established by
the Law on Courts of the Republic of Lithuania. Thus, the
Constitution obligates the legislator to regulate the founding
and the competence, the formation and execution of powers of all
courts of the Republic of Lithuania, inter alia the status of
judges of these courts etc., thus, including the Supreme Court,
by means of a law. In the context of this decision of the
Constitutional Court it needs to be noted that after the length
of the term of powers (term of office) of the President of the
Supreme Court (or of the chairman of a division of the same
court) has been established by means of a law, there is a duty to
heed the length of the term of powers (term of office)
established by the law, since the Seimas and each Member of the
Seimas, while discharging the functions established in, and the
powers granted by the Constitution, are bound by the Constitution
and laws. Thus, neither the Seimas nor Members of the Seimas can
ignore the Constitution as well as the legal regulation
entrenched in the law establishing the length of the term of
powers (term of office) of the President of the Supreme Court (or
of the chairman of a division of the same court).
11. It has been mentioned that the President of the
Republic, the petitioner, requests that the Constitutional Court
construe whether the provisions of Sub-Item 15.3.1.1 and Item 22
of Chapter II of the reasoning part of the Constitutional Court
ruling of 9 May 2006 should be understood that the free mandate
of the Member of the Seimas also means that the Member of the
Seimas can vote so that the judges who hold the office of
Presidents of courts and chairmen of divisions of courtsthe
President of the Supreme Court of Lithuania and chairmen of
divisions of the Supreme Court of Lithuaniawho are to be
dismissed by the Seimas, would not be dismissed from office upon
expiration of the term of their powers, although the factual
circumstance is recognised that the term, i.e. the term of their
powers, of the appointment of the aforesaid officials has
expired; if the factual circumstance that the term of appointment
of the aforesaid officials to this office has expired is not
disputed, are there any circumstances which would be
constitutionally justifiable, under which the voting of the
Member of the Seimas against the dismissal of the aforesaid
officials upon expiration of their powers would be compatible
with the duty of the Members of the Seimas, which stems from his
oath to respect and execute the Constitution and laws, to
conscientiously discharge the duties of the representative of the
Nation as obligated by the Constitution.
It has been held in this decision of the Constitutional
Court that the free mandate of the Member of the Seimas may not
be identified with absolutely free actions of the Members of the
Seimas, made only at his own discretion while ignoring the
Constitution. The Constitution implies only such concept of the
discretion of the Member of the Seimas, and only such conscience
of the Member of the Seimas, according to which there is no gap
or contradictions between the discretion of the Member of the
Seimas and the conscience of the Member of the Seimas on the one
hand, and the requirements of the Constitution and the values
protected and defended in it, on the other hand. Thus, under the
Constitution, when the Seimas implements the constitutional
empowerment (constitutional duty) in the course of adopting, at a
sitting of the Seimas, a corresponding individual act of
application of law regarding dismissal of the President of the
Supreme Court (or of the chairman of a division of the same
court) upon expiration of his term of powers, there appears a
duty to the Members of the Seimas to ascertain whether the said
fact of objective character really exists, i.e. whether the term
of powers of the President of the Supreme Court (or of the
chairman of a division of the same court), which is established
by the law, has expired, and, provided such fact of objective
character has been established, they must act in the manner that
the Seimas would be able to implement the requirement arising
from the Constitution to dismiss the President of the Supreme
Court (or of the chairman of a division of the same court) upon
expiry of their term of powers, which is established by the law.
A different construction of the constitutional principle of the
free mandate of the Member of the Seimaspurportedly, that this
mandate could be understood as absolute freedom of the Member of
the Seimas to act in such manner so that the Seimas would not
execute the requirements arising from the Constitution to adopt
corresponding decisionswould mean that conditions to adopt
decisions incompatible with the Constitution are created.
Therefore, there are not any constitutional arguments
permitting to assert that, purportedly, the provisions of Sub-
Item 15.3.1.1 and Item 22 of Chapter II of the reasoning part of
the Constitutional Court ruling of 9 May 2006 (the construction
of the provisions of which is requested by the President of the
Republic, the petitioner) may be understood that the free mandate
of a Member of the Seimas also means that the Member of the
Seimas can vote so that the judges who hold the office of
presidents of courts and chairmen of divisions of courtsthe
President of the Supreme Court of Lithuania and chairmen of
divisions of the Supreme Court of Lithuaniawho are to be
dismissed by the Seimas, would not be dismissed from office upon
expiration of the term of their powers, although the fact of
objective character is recognised that the term of office, i.e.
the term of their powers, of the appointment of the aforesaid
officials has expired; also, there are not any constitutional
arguments permitting to assert that if the fact of objective
character that the term of appointment of the aforesaid officials
to this office has expired is not disputed, there might be some
constitutionally justifiable circumstances, under which the
voting of the Member of the Seimas against the dismissal of the
aforesaid officials upon expiration of their powers would be
compatible with the duty of the Members of the Seimas, which
stems from his oath to respect and execute the Constitution and
laws, to conscientiously discharge the duties of the
representative of the Nation as obligated by the Constitution.
Otherwise, one would deviate from the imperatives entrenched in
the Constitution, since non-dismissal of the President of the
Supreme Court (or the chairman of a division of this court) from
office upon expiry of the term of his powers would be
incompatible with the requirements arising from Paragraph 2 of
Article 112 and Item 2 of Article 115 of the Constitution, with
the constitutional principle of a state under the rule of law;
also conditions would be created to interpret the constitutional
principle of the free mandate of the Member of the Seimas as the
right of the Member of the Seimas, which is unrestricted by the
Constitution and laws, to act in the manner that decisions
incompatible with the Constitution would be adopted and the
imperatives arising from the Constitution and the oath of the
Member of the Seimas would be disregarded.
12. Taking account of the arguments set forth, one is to
draw a conclusion that the provisions "It is clear 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. It is to be emphasized 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 (if the judge to be dismissed is a justice of the Supreme
Courthe must propose that the Seimas dismiss him and if the
judge to be dismissed from office is a judge of the Court of
Appealhe must request for the assent of the Seimas in order to
dismiss him from office). It is to be held that, under the
Constitution, in such cases the judge must be dismissed from
office. <
> One must also pay heed to the fact that the <
>
constitutionally reasoned exception of the general constitutional
prohibition to extend the powers of a judge when it has expired
or when the judge has reached pensionable age may not be
interpreted as, purportedly, meaning that the powers of the
Presidents of courts or of the chairmen of divisions of courts
may be extended on any similar basis" (Item 15.3.1.1) and "If
judges were appointed as <
> Presidents of courts, Chairmen of
the divisions of courts or were to hold any other administrative
offices for a certain term established by laws, after the term
has expired they must be dismissed from office and therefore, as
well as when appointing them to that office, a corresponding
individual act on the application of law must be adopted. The
powers of the Presidents of courts, the Chairmen of the divisions
of courts and other judges who hold administrative offices in
courts may not be extended by law, or by any other legal act
establishing general norms eitherin general such powers may not
be extended as after the term of powers has expired, they are
discontinued (an individual act on the application of law must be
adopted concerning that), and then, according to the procedure
established by laws, it must be anew decided whether the same
judge (if the laws provide for such possibility) or another
person has to be appointed as the President of that court, the
chairman of a division of court" (Item 22) of Chapter II of the
reasoning part of the Constitutional Court ruling of 9 May 2006
inter alia mean that, under the Constitution, when the Seimas
implements the constitutional powers related with dismissing of
the President of the Supreme Court (or the chairman of a division
of this court) from office upon expiry of the term of his powers
(term of office), and when the corresponding individual act of
application of law regarding this issue is adopted at the sitting
of the Seimas, the Members of the Seimas are under obligation to
act in the manner that the Seimas would be able to implement the
requirement arising from the Constitution to dismiss the
President of the Supreme Court (or of the chairman of a division
of the same court) upon expiry of their term of powers, which is
established by the law; otherwise, one would deviate from the
imperatives arising from Paragraph 2 of Article 112 and Item 2 of
Article 115 of the Constitution and from the constitutional
principle of a state under the rule of law, while the mandate of
the Member of the Seimas would be used by disregarding the
requirements arising form the Constitution and the oath of the
Member of the Seimas. The Constitution implies only such concept
of the discretion of the Member of the Seimas, and only such
conscience of the Member of the Seimas, according to which there
is no gap or contradictions between the discretion of the Member
of the Seimas and the conscience of the Member of the Seimas on
the one hand, and the requirements of the Constitution and the
values protected and defended in it, on the other hand. In cases
when the fact of objective character is ascertained that the term
of powers of the President of the Supreme Court (or the chairman
of a division of this court) has expired, there are not any
constitutionally justifiable circumstances under which non-
dismissal of the President of the Supreme Court (or the chairman
of a division of this court) from office upon expiry of the term
of his powers would be compatible with the Constitution.
Conforming to Article 102 of the Constitution of the
Republic of Lithuania and Articles 1 and 61 of the Law on the
Constitutional Court of the Republic of Lithuania, the
Constitutional Court of the Republic of Lithuania has adopted the
following
decision:
To construe that the provisions of Sub-Item 15.3.1.1 and
Item 22 of Chapter II of the reasoning part of the 9 May 2006
ruling of the Constitutional Court of the Republic of Lithuania:
- "It is clear 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.
It is to be emphasized 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 (if the judge to
be dismissed is a justice of the Supreme Courthe must propose
that the Seimas dismiss him and if the judge to be dismissed from
office is a judge of the Court of Appealhe must request for the
assent of the Seimas in order to dismiss him from office). It is
to be held that, under the Constitution, in such cases the judge
must be dismissed from office. <
> One must also pay heed to the
fact that the <
> constitutionally reasoned exception of the
general constitutional prohibition to extend the powers of a
judge when it has expired or when the judge has reached
pensionable age may not be interpreted as, purportedly, meaning
that the powers of the Presidents of courts or of the chairmen of
divisions of courts may be extended on any similar basis" (Item
15.3.1.1);
- "If judges were appointed as <
> Presidents of courts,
Chairmen of the divisions of courts or were to hold any other
administrative offices for a certain term established by laws,
after the term has expired they must be dismissed from office and
therefore, as well as when appointing them to that office, a
corresponding individual act on the application of law must be
adopted. The powers of the Presidents of courts, the Chairmen of
the divisions of courts and other judges who hold administrative
offices in courts may not be extended by law, or by any other
legal act establishing general norms eitherin general such
powers may not be extended as after the term of powers has
expired, they are discontinued (an individual act on the
application of law must be adopted concerning that), and then,
according to the procedure established by laws, it must be anew
decided whether the same judge (if the laws provide for such
possibility) or another person has to be appointed as the
President of that court, the chairman of a division of court"
(Item 22),
inter alia mean that, under the Constitution the Republic of
Lithuania, when the Seimas implements the constitutional powers
related with dismissing of the President of the Supreme Court (or
the chairman of a division of this court) from office upon expiry
of the term of his powers (term of office), and when the
corresponding individual act of application of law regarding this
issue is adopted at the sitting of the Seimas, the Members of the
Seimas are under obligation to act in the manner that the Seimas
would be able to implement the requirement arising from the
Constitution to dismiss the President of the Supreme Court (or of
the chairman of a division of the same court) upon expiry of
their term of powers, which is established by the law; otherwise,
one would deviate from the imperatives arising from Paragraph 2
of Article 112 and Item 2 of Article 115 of the Constitution of
the Republic of Lithuania and from the constitutional principle
of a state under the rule of law, while the mandate of the Member
of the Seimas would be used by disregarding the requirements
arising form the Constitution and the oath of the Member of the
Seimas. In cases when the fact of objective character is
ascertained that the term of powers of the President of the
Supreme Court (or the chairman of a division of this court) has
expired, there are not any constitutionally justifiable
circumstances under which non-dismissal of the President of the
Supreme Court (or the chairman of a division of this court) from
office upon expiry of the term of his powers would be compatible
with the Constitution of the Republic of Lithuania.
This decision of the Constitutional Court is final and not
subject to appeal.
The decision is promulgated in the name of the Republic of
Lithuania.
Justices of the Constitutional Court: Armanas Abramavičius
Toma Birmontienė
Pranas Kuconis
Kęstutis Lapinskas
Zenonas Namavičius
Ramutė Ruškytė
Egidijus Šileikis
Algirdas Taminskas
Romualdas Kęstutis Urbaitis