THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
DECISION
ON 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 44, PARAGRAPH 1 OF ARTICLE 51, AND ITEM 4 OF
ARTICLE 52 OF THE REPUBLIC OF LITHUANIA LAW ON COURTS
(WORDING OF 24 JANUARY 2002), AS WELL AS WITH PARAGRAPH
1 OF ARTICLE 6 OF THE CONVENTION FOR THE PROTECTION OF
HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS
20 November 2009
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Armanas
Abramavičius, Pranas Kuconis, Kęstutis Lapinskas, Zenonas
Namavičius, Egidijus Šileikis, Algirdas Taminskas and Romualdas
Kęstutis Urbaitis,
with the secretary of the sittingDaiva Pitrėnaitė,
in the procedural sitting of the Constitutional Court
considered the petition (No. 1B-51/2009) 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 pursuant to
Item 2 of Article 115 of the Constitution of the Republic of
Lithuania, upon expiration of the term of powers (Official
Gazette Valstybės žinios, 2005, No. 31-984), according to the
content is not in conflict with the provision of Paragraph 1 of
Article 44 of the Republic of Lithuania Law on Courts whereby a
judge enjoys rights and freedoms of a citizen of the Republic of
Lithuania that are entrenched in the Constitution and laws of the
Republic of Lithuania, with Paragraph 1 of Article 55 of the same
law to the extent that a citizen of the Republic of Lithuania,
who has impeccable reputation, may be appointed as a judge of a
local court, with Item 4 of Article 52 of the same law, as well
as with Paragraph 1 of Article 6 of the Convention for the
Protection of Human Rights and Fundamental Freedoms which
consolidates the guarantees of equality of the procedure,
impartiality and independence".
The Constitutional Court
has established:
1. The Court of Appeal of Lithuania, the petitioner,
investigated a civil case. By its ruling the court suspended the
investigation of the case and applied to the Constitutional Court
with the petition requesting to investigate whether Decree of the
President of the Republic No. 225 "On Dismissing a Judge of a
Local Court" (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 44 of the Law on Courts,
with Paragraph 1 of Article 55 of the same law to the extent that
a citizen of the Republic of Lithuania, who has impeccable
reputation, may be appointed as a judge of a local court, with
Item 4 of Article 52 of the same law, as well as with Paragraph 1
of Article 6 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (hereinafter also referred to as the
Convention).
2. In the opinion of the Court of Appeal of Lithuania, the
petitioner, the procedure of investigating the appropriateness of
S. Petraškaitė, a judge at the Ukmergė District Local Court to
the job of a judge could be illegal and the assessment of
activity of this judge could be groundless. On the grounds of
these preconditions the petitioner has doubts whether an
exception was not made in relation to the judge S. Petraškaitė
when the disputed decree of the President of the Republic was
adopted, whether the principle of equality of all persons before
the law was not violated, and whether the President of the
Republic had the right to dismiss S. Petraškaitė from the office
of a judge pursuant to Item 2 of Article 115 of the Constitution
(upon expiry of the term of powers).
3. In its petition the petitioner notes that by its ruling
of 20 December 2007 the Constitutional Court recognised Decree of
the President of the Republic No. 225 of 3 March 2005, by which
the judge S. Petraškaitė was dismissed from office upon
expiration of the term of powers, as being not in conflict with
the Constitution and Paragraph 1 of Article 45 of the Law on
Courts (wording of 24 January 2002), also that the Constitutional
Court did not investigate the compliance of the aforementioned
decree of the President of the Republic with Item 4 of Article 52
of the Law on Courts and dismissed this part of the case.
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 is not in conflict with Paragraph 1 of Article
44 of the Law on Courts, with Paragraph 1 of Article 55 of the
same law to the extent that a citizen of the Republic of
Lithuania, who has impeccable reputation, may be appointed as a
judge of a local court, with Item 4 of Article 52 of the same
law, as well as with Paragraph 1 of Article 6 of the Convention
for the Protection of Human Rights and Fundamental Freedoms.
2. It should be mentioned that the first time when the Court
of Appeal of Lithuania, the petitioner, applied to the
Constitutional Court in relation to the compliance of Decree of
the President of the Republic No. 225 of 3 March 2005 with the
Constitution, was on 29 March 2006, after suspending the
investigation of the civil case according to the appeal of S.
Petraškaitė, the claimant, concerning to the decision of the
Panevėžys Regional Court of 18 November 2005. Under this decision
the Panevėžys Regional Court rejected the appeal of S.
Petraškaitė, because it inter alia made a conclusion that "in
relation to Sabina Petraškaitė, the claimant, one followed the
procedure which is established in the Constitution of the
Republic of Lithuania and the Republic of Lithuania Law on Courts
as regards the assessment of suitability of the claimant to be
appointed as a judge until 65 years of age, and the advice of the
Council of Courts to dismiss the claimant from the office of a
judge of Ukmergė District Local Court upon expiry of the term of
powers is a reasoned one".
On 20 December 2007 the Constitutional Court handed down the
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", in
which it was recognised that Decree of the President of the
Republic No. 225 of 3 March 2005 was not in conflict with the
Constitution and Paragraph 1 of Article 45 of the Law on Courts
(wording of 24 January 2002). This ruling of the Constitutional
Court was announced in the official gazette "Valstybės žinios" on
22 December 2007.
Thus, the petitioner requests to investigate whether the
Decree of the President of the Republic, the compliance of which
with the Constitution and Paragraph 1 of Article 45 of the Law on
Courts (wording of 24 January 2002) has been investigated and the
ruling that was handed down by the Constitutional Court on 20
December 2007 on this issue is still effective, is not in
conflict with the provisions of the Law on Courts and the
Convention.
3. It should be mentioned that after coming into effect of
the Constitutional Court ruling of 20 December 2007, the Court of
Appeal of Lithuania renewed the investigation of the case
concerning the dismissal of S. Petraškaitė, a judge of a local
court, from the office of a judge, and on 4 September 2008
adopted a decision whereby: it revoked the ruling of the
Panevėžys Regional Court of 18 November 2005; recognised
Resolution No. 13P-321 of the Council of Courts of 18 February
2005 on 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 as no longer
effective; recognised that dismissal of S. Petraškaitė from the
judge of the Ukmergė District Local Court by the decree of the
President of the Republic of 3 March 2005, pursuant to the advice
of the Council of Courts due to expiration of her term of powers,
was groundless and illegal; adjudicated that S. Petraškaitė
should be paid from the state budget an average remuneration for
work amounting to LTL 197,098 and the recovery of non-material
damages amounting to LTL 10,000.
By its ruling of 10 February 2009 (in civil case No. 3K-3-
43/2009), the Supreme Court of Lithuania overruled the decision
of the College of Judges of the Civil Case Division of the Court
of Appeal of Lithuania of 4 September 2008 and referred the case
back to the Court of Appeal of Lithuania for new investigation
under the appellate procedure.
On 12 October 2009, the Court of Appeal of Lithuania applied
to the Constitutional Court with the petition requesting to
investigate the compliance of Decree of the President of the
Republic No. 225 of 3 March 2005 with the respective provisions
of the Law on Courts and the Convention rather than the
Constitution.
4. The Constitutional Court has held more than once that the
Constitution is an integral and directly applicable legal act
(Paragraph 1 of Article 6 of the Constitution). It should be
noted that the Constitutional Court, while investigating,
subsequent to the petition of the petitioner whether the disputed
legal act (part thereof) is not in conflict with the articles
(parts thereof) of the Constitution pointed out by the
petitioner, alongside also investigates whether the said legal
act (part thereof) is not in conflict with the Constitution, an
indivisible and harmonious system (Constitutional Court rulings
of 24 December 2002 and 30 May 2003).
The principle of supremacy of the Constitution means that
the Constitution rests in the exceptional, highest place in the
hierarchy of legal acts; no legal act may be in conflict with the
Constitution; no one is permitted to violate the Constitution;
the constitutional order must be protected; the Constitution
itself consolidates the mechanism permitting to determine whether
legal acts (parts thereof) are not in conflict with the
Constitution; in this respect, the principle of the supremacy of
the Constitution, which is established in the Constitution, is
inseparably linked with the constitutional principle of a state
under the rule of law, which is a universal constitutional
principle upon which the entire Lithuanian legal system and the
Constitution itself are based; violation of the principle of the
supremacy of the Constitution would mean that the constitutional
principle of a state under the rule of law is violated as well
(Constitutional Court rulings of 24 December 2002, 29 October
2003, 5 March 2004, and 20 March 2007).
When deciding, within its competence, as regards the
compliance of the legal acts (parts thereof) of lower power with
legal acts of higher power, inter alia (and, first of all) with
the Constitution, as well as when implementing its other
constitutional powers, the Constitutional Courtan autonomous and
independent courtimplements constitutional justice and
guarantees both the supremacy of the Constitution in the legal
system and constitutional legitimacy (Constitutional Court
rulings of 12 July 2001, 29 November 2001, 13 December 2004, 28
March 2006, 6 June 2006 and 8 August 2006). The Constitutional
Court is the institutional guarantee of the principles of the
supremacy of the Constitution and a state under the rule of law
entrenched in the Constitution (Constitutional Court ruling of 6
June 2006). Constitutional Court ensures, within its competence,
the hierarchy of legal acts consolidated in the Constitution, the
compliance of all legal acts having the power of a constitutional
law with the Constitution, the compliance of all legal acts
having the power of a law with the Constitution and legal acts
having the power of constitutional laws, as well as the
compliance of all substatutory legal acts of the Seimas, acts of
the President of the Republic and the Government with the
Constitution, legal acts having the power of constitutional laws,
and with legal acts having the power of a law (Constitutional
Court ruling of 8 August 2006).
In this context it needs to be mentioned that, as already
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.
5. In this context it should be mentioned that, as already
held, in its ruling of 20 December 2007 the Constitutional Court
recognised that Decree of the President of the Republic No. 225
"On Dismissing a Judge of a Local Court" was not in conflict with
the Constitution and Paragraph 1 of Article 45 (wording of 24
January 2002) of the Law on Courts. It has also been mentioned
that this ruling of the Constitutional Court is still effective.
Despite of the fact that the petitioner requests to investigate
whether Decree of the President of the Republic No. 225 "On
Dismissing a Judge of a Local Court" is not in conflict with the
Convention and the provisions of the Law on Courts, in relation
to which the Constitutional Court ruling of 20 December 2007 did
not expressis verbis state the non-conflict of this decree of the
President of the Republic, however, it is obvious from the
arguments of the petitioner and the material of the case that the
aforementioned decree of the President of the Republic is
disputed in the same aspect which was investigated in the
previous constitutional justice case, in which the Constitutional
Court ruling of 20 December 2007 was handed down, i.e. in the
aspect as to whether the procedures of dismissing S. Petraškaitė,
the judge of the Ukmergė District Local Court, were not infringed
by adopting the aforementioned Decree of the President of the
Republic of 3 March 2005.
In this context it is to be held that having investigated
the compliance of Decree No. 225 of the President of the Republic
of 3 March 2005 with the Constitutionan integral and harmonious
systemas well as with the provisions of the Law on Courts which
are not in conflict with the Constitution and on the basis of
which and while implementing which the aforementioned decree of
the President of the Republic has been adopted, and while the
Constitutional Court ruling of 20 December 2007 is effective, the
compliance of this decree with the Constitution and laws that are
not in conflict with the latter may not be subject to question.
Otherwise, one would deviate from the imperatives that stem from
Paragraph 1 of Article 7 and Paragraph 2 of Article 107 of the
Constitution of the Republic of Lithuania, the constitutional
principle of a state under the rule of law, one would deny the
principle of supremacy of the Constitution, the notion of
hierarchy of legal acts, which is entrenched in the Constitution,
and one would distort the notion that the Constitutional Court
rulings on the issues that are attributed to its jurisdiction
under the Constitution are final and not subject to appeal, as
well as the very essence of the constitutional justice.
In this context it should be noted that, subsequent to Item
3 of Paragraph 1 of Article 69 of the Law on the Constitutional
Court, 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.
6. It is established in Article 62 of the Law on the
Constitutional Court that a Constitutional Court ruling may be
reviewed on its own initiative if new, essential circumstances
turn up which were unknown to the Constitutional Court at the
time when the ruling was passed.
In this context it should be mentioned that this provision
does not mean that various subjects of law, inter alia those
which, under the Constitution and the Law on the Constitutional
Court, may apply to the Constitutional Court with a petition or
inquiry on the questions ascribed to the jurisdiction of the
Constitutional Court, may not raise the question of reviewing of
a final act of the Constitutional Court at the Constitutional
Court; however, under the Constitution and the Law on the
Constitutional Court, while deciding whether to do so, the
Constitutional Court has wide discretion. Under the Constitution,
the Constitutional Court has the powers to review its rulings,
conclusions, and decisions, when they were adopted while the
Constitutional Court did not know about such essential
circumstances, which, if they had been known, would have been
able to determine a different content of the adopted rulings,
conclusions and decisions. The opposite construction would mean
that the Constitutional Court is not bound by Paragraph 2 of
Article 107 of the Constitution, under which, as mentioned, final
acts of the Constitutional Court are binding on the
Constitutional Court itself and they restrict the Constitutional
Court in the aspect that it may not change or review them if
there are no constitutional grounds for that. Such construction
would not correspond the Constitution also because of the fact
that it would create preconditions to deny the continuity of the
constitutional jurisprudence and to violate the principle of the
supremacy of the Constitution, the constitutional principle of a
state under the rule of law and other provisions of the
Constitution (Constitutional Court ruling of 28 March 2006).
7. Having taken into account the advice of the Council of
Courts, the President of the Republic, by Decree of the President
of the Republic No. 225 "On Dismissing a Judge of a Local Court"
of 3 March 2005, dismissed S. Petraškaitė, a judge of the Ukmergė
District Local Court, from office upon expiration of the term of
powers; it is inter alia held in the Constitutional Court ruling
of 20 December 2007 that S. Petraškaitė was dismissed from office
by the decree of the President of the Republic upon receipt of
the advice of the Council of Courts; the advice of the Council of
Courts, which was taken into consideration when adopting the
decree of the President of the Republic, is still effective.
It is to be held that the petition of the petitioner
contains no new, essential circumstances, which were not known to
the Constitutional Court at the moment of adopting the ruling of
20 December 2007 and which could be recognised to be the grounds
for deciding on the reviewing the Constitutional Court ruling
under Article 62 of the Law on the Constitutional Court.
8. In this context attention should also be drawn to the
doctrinal provisions on appointment and dismissal of judges,
which are formulated in the legal acts of the Constitutional
Court.
Subsequent to the doctrine which was formulated in the
Constitutional Court ruling of 20 December 2007, upon expiration
of the term of powers of the judge of a local court the President
of the Republic may, but not must, appoint the judge of a
district court until he reaches the age of 65 years, even if the
Council of Courts advises to appoint the judge to continue in
office until he reaches the age of 65 years. In the
aforementioned case the dismissal or appointment of the judge of
a local court until he reaches the age of 65 years, upon expiry
of the period of five years of the term of powers, is subject to
discretion of the President of the Republic, while implementing
which the President of the Republic follows not only the
intention of the person continue as in the office of a judge, but
also the public interest that only the persons who have proper
vocational and personal characteristics are appointed as judges.
If the President of the Republic applies to the special
institution of judges provided for by the law, as indicated in
Paragraph 5 of Article 112 of the Constitution, with the request
for an advice on appointment of the judge, and the latter advises
to the President of the Republic not to appoint this person as a
judge, subsequent to the Constitution the President of the
Republic may not appoint this person as a judge.
In this context it should be noted that upon expiration of
the five-year period of the term of powers of S. Petraškaitė, a
judge of the Ukmergė District Local Court, and upon the advice of
the Council of Courts to dismiss her from office, the President
of the Republic was not allowed to appoint S. Petraškaitė to
continue in the office of a judge until she reaches the age of 65
years and had to dismiss her from office due to expiration of the
term of powers.
9. It was held in this Constitutional Court decision that:
- The Constitutional Court ruling of 20 December 2007, by
which Decree of the President of the Republic No. 225 "On
Dismissing a Judge of a Local Court" of 3 March 2005 was
recognised to be not in conflict with the Constitution and
Paragraph 1 of Article 45 (wording of 24 January 2002) of the Law
on Courts, is still effective.
- The petition (No. 1B-51/2009) of the Court of Appeal of
Lithuania, the petitioner, contains no new, essential
circumstances, which were not known to the Constitutional Court
at the moment of handing down the ruling of 20 December 2007 and
which could be recognised to be the grounds for deciding to
review the Constitutional Court ruling subsequent to Article 62
of the Law n the Constitutional Court.
Pursuant to Item 3 of Paragraph 1 of Article 69 of the Law
on the Constitutional Court, the fact that 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, constitutes the grounds for refusal to investigate this
petition.
Conforming to Paragraphs 3 and 4 of Article 22, Article 28,
as well as Item 3 of Paragraph 1 and Paragraph 2 of Article 69 of
the Law on the Constitutional Court, the Constitutional Court of
the Republic of Lithuania has passed the following
decision:
To refuse to investigate 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 44 of the Republic of
Lithuania of the Law on Courts, with Paragraph 1 of Article 55 of
the same law to the extent that a citizen of the Republic of
Lithuania, who has impeccable reputation, may be appointed as a
judge of a local court, with Item 4 of Article 52 of the same
law, as well as with Paragraph 1 of Article 6 of the Convention
for the Protection of Human Rights and Fundamental Freedoms.
This decision of the Constitutional Court is final and not
subject to appeal.
The decision is promulgated in the name of Republic of
Lithuania.
Justices of the Constitutional Court: Armanas Abramavičius
Pranas Kuconis
Kęstutis Lapinskas
Zenonas Namavičius
Egidijus Šileikis
Algirdas Taminskas
Romualdas Kęstutis Urbaitis