Case No. 16/2009
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
RULING
ON THE COMPLIANCE OF THE PROVISIONS OF THE FIFTH, SIXTH
AND EIGHTH PARAGRAPHS OF THE SEIMAS OF THE REPUBLIC OF
LITHUANIA RESOLUTION "ON THE PRINCIPLES OF ORGANISATION
OF THE LITHUANIAN ARMED FORCES" OF 13 MARCH 2008, THE
PROVISIONS OF ITEM 18 OF THE CONCEPTION OF THE REPUBLIC
OF LITHUANIA LAW ON MILITARY CONSCRIPTION OF THE NEW
WORDING APPROVED BY RESOLUTION OF THE GOVERNMENT OF THE
REPUBLIC OF LITHUANIA NO. 620 "ON APPROVING THE
CONCEPTION OF THE REPUBLIC OF LITHUANIA LAW ON MILITARY
CONSCRIPTION OF THE NEW WORDING" OF 18 JUNE 2008, ITEM 2
OF PARAGRAPH 2 OF ARTICLE 3 OF THE REPUBLIC OF LITHUANIA
LAW ON ESTABLISHING THE PRINCIPAL STRUCTURE OF THE ARMED
FORCES IN 2008, ESTABLISHING THE PLANNED PRINCIPAL
STRUCTURE OF THE ARMED FORCES IN 2013 AND APPROVING THE
MARGIN NUMBER OF STATUTORY SERVANTS IN THE CIVIL
NATIONAL DEFENCE SERVICE AND ITEM 2 OF PARAGRAPH 2 OF
ARTICLE 3 OF THE REPUBLIC OF LITHUANIA LAW ON
ESTABLISHING THE PRINCIPAL STRUCTURE OF THE ARMED FORCES
IN 2009, ESTABLISHING THE PLANNED PRINCIPAL STRUCTURE OF
THE ARMED FORCES IN 2014 AND APPROVING THE MARGIN NUMBER
OF STATUTORY SERVANTS IN THE CIVIL NATIONAL DEFENCE
SERVICE WITH THE CONSTITUTION OF THE REPUBLIC OF
LITHUANIA
24 September 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 hearingDaiva Pitrėnaitė,
in the presence of the representatives of the Seimas of the
Republic of Lithuania, the petitioner, who were Arvydas
Anušauskas, Chairman of the Seimas Committee on National Security
and Defence, and Stasys Šedbaras, Chairman of the Seimas
Committee on Legal Affairs,
in the presence of the representative of the Seimas of the
Republic of Lithuania, the party concerned, who was Juozas
Olekas, a Member of the Seimas,
in the presence of the representatives of the Government of
the Republic of Lithuania, the party concerned, who were Veronika
Baliūnienė, Head of the Legal Unit of the Office of the Prime
Minister of the Republic of Lithuania, Jolita Mikulėnienė,
Advisor to the Legal Unit of the Office of the Prime Minister and
Jonas Kronkaitis, Advisor to the Minister of National Defence of
the Republic of Lithuania,
pursuant to Articles 102 and 105 of the Constitution of the
Republic of Lithuania and Article 1 of the Law on the
Constitutional Court of the Republic of Lithuania, in its public
hearing on 15 September 2009 heard constitutional justice case
No. 16/2009 subsequent to the petition of the Seimas of the
Republic of Lithuania, the petitioner, set forth in Article 1 of
its Resolution No. XI-209 "On the Application to the
Constitutional Court of the Republic of Lithuania with a Petition
Requesting to Investigate Whether the Provisions of the Fifth,
Sixth and Eighth Paragraphs of the Resolution of the Seimas of
the Republic of Lithuania 'On the Principles of Organisation of
the Lithuanian Armed Forces' of 13 March 2008, the Provision of
the Second Sentence of Item 18 of the Conception of the Republic
of Lithuania Law on Military Conscription of the New Wording
Approved by Resolution of the Government of the Republic of
Lithuania No. 620 'On Approving the Conception of the Republic of
Lithuania Law on Military Conscription of the New Wording' of 18
June 2008, Item 2 of Paragraph 2 of Article 3 of the Republic of
Lithuania Law on Establishing the Principal Structure of the
Armed Forces in 2008, Establishing the Planned Principal
Structure of the Armed Forces in 2013 and Approving the Margin
Number of Statutory Servants in the Civil National Defence
Service and Item 2 of Paragraph 2 of Article 3 of the Republic of
Lithuania Law on Establishing the Principal Structure of the
Armed Forces in 2009, Establishing the Planned Principal
Structure of the Armed Forces in 2014 and Approving the Margin
Number of Statutory Servants in the Civil National Defence
Service are not in Conflict with the Second Paragraph of Article
3, the Second Paragraph of Article 5, the First and the Second
Paragraphs of Article 139 of the Constitution of the Republic of
Lithuania, and with the Constitutional Principle of a State under
the Rule of Law" of 26 March 2009 requesting to investigate
whether the provision "it is expedient to switch to the
Lithuanian armed forces organised on the grounds of professional
and volunteer military service" of the Seimas Resolution "On the
Principles of Organisation of the Lithuanian Armed Forces" of 13
March 2008, the provision of the sixth paragraph thereof to the
extent that it provides to retain the obligatory military service
only in case of mobilisation and to reconsider the need of the
obligatory initial military service every year by approving the
margin numbers of soldiers by a Seimas decision, the provision of
the eighth paragraph thereof to the extent that it proposes that
the Government present the Seimas the margin numbers of soldiers
for approval, established after having taken account of the needs
of switching to the armed forces organised on the grounds of
professional and volunteer military service, the provision "shall
establish the additional new grounds of postponement of the
obligatory initial military service which will provide that the
obligatory initial military and alternative service of the
national defence may be postponed for all the conscripts if the
law which regulates the principal structure of the armed forces
of the corresponding year provides that the margin number of
soldiers of the obligatory initial military service is 0" of Item
18 of the Conception of the Republic of Lithuania Law on Military
Conscription of the New Wording approved by Resolution of the
Government of the Republic of Lithuania No. 620 "On Approving the
Conception of the Republic of Lithuania Law on Military
Conscription of the New Wording" of 18 June 2008, Item 2 of
Paragraph 2 of Article 3 of the Republic of Lithuania Law on
Establishing the Principal Structure of the Armed Forces in 2008,
Establishing the Planned Principal Structure of the Armed Forces
in 2013 and Approving the Margin Number of Statutory Servants in
the Civil National Defence Service, as well as Item 2 of
Paragraph 2 of Article 3 of the Republic of Lithuania Law on
Establishing the Principal Structure of the Armed Forces in 2009,
Establishing the Planned Principal Structure of the Armed Forces
in 2014 and Approving the Margin Number of Statutory Servants in
the Civil National Defence Service are not in conflict with
Paragraph 2 of Article 3, Paragraph 2 of Article 5 and Paragraphs
1 and 2 of Article 139 of the Constitution of the Republic of
Lithuania and with the constitutional principle of a state under
the rule of law.
The Constitutional Court
has established:
I
1. On 26 March 2009, the Seimas, the petitioner, adopted
Resolution No. XI-209 "On the Application to the Constitutional
Court of the Republic of Lithuania with a Petition Requesting to
Investigate Whether the Provisions of the Fifth, Sixth and Eighth
Paragraphs of the Resolution of the Seimas of the Republic of
Lithuania 'On the Principles of Organisation of the Lithuanian
Armed Forces' of 13 March 2008, the Provision of the Second
Sentence of Item 18 of the Conception of the Republic of
Lithuania Law on Military Conscription of the New Wording
Approved by Resolution of the Government of the Republic of
Lithuania No. 620 'On Approving the Conception of the Republic of
Lithuania Law on Military Conscription of the New Wording' of 18
June 2008, Item 2 of Paragraph 2 of Article 3 of the Republic of
Lithuania Law on Establishing the Principal Structure of the
Armed Forces in 2008, Establishing the Planned Principal
Structure of the Armed Forces in 2013 and Approving the Margin
Number of Statutory Servants in the Civil National Defence
Service and Item 2 of Paragraph 2 of Article 3 of the Republic of
Lithuania Law on Establishing the Principal Structure of the
Armed Forces in 2009, Establishing the Planned Principal
Structure of the Armed Forces in 2014 and Approving the Margin
Number of Statutory Servants in the Civil National Defence
Service are not in Conflict with the Second Paragraph of Article
3, the Second Paragraph of Article 5, the First and the Second
Paragraphs of Article 139 of the Constitution of the Republic of
Lithuania, and with the Constitutional Principle of a State under
the Rule of Law" in whose Article 1 it set forth the petition for
the Constitutional Court requesting to investigate, whether the
provision "it is expedient to switch to the Lithuanian armed
forces organised on the grounds of professional and volunteer
military service" of the Seimas Resolution "On the Principles of
Organisation of the Lithuanian Armed Forces" of 13 March 2008,
the provision of the sixth paragraph thereof to the extent that
it provides to retain the obligatory military service only in
case of mobilisation and to reconsider the need of the obligatory
initial military service every year by approving the margin
numbers of soldiers by a Seimas decision, the provision of the
eighth paragraph thereof to the extent that it proposes that the
Government present the Seimas the margin numbers of soldiers for
approval, established after having taken account of the needs of
switching to the armed forces organised on the grounds of
professional and volunteer military service, the provision of the
second sentence of Item 18 of the Conception of the Republic of
Lithuania Law on Military Conscription of the New Wording
approved by Government Resolution No. 620 "On Approving the
Conception of the Republic of Lithuania Law on Military
Conscription of the New Wording" of 18 June 2008 to the extent
that it provides for that "one shall establish the additional new
grounds of postponement of the obligatory initial military
service which will provide that the obligatory initial military
and alternative service of the national defence may be postponed
for all the conscripts if the law which regulates the principal
structure of the armed forces of the corresponding year provides
that the margin number of soldiers of the obligatory initial
military service is 0", Item 2 of Paragraph 2 of Article 3 of the
Law on Establishing the Principal Structure of the Armed Forces
in 2008, Establishing the Planned Principal Structure of the
Armed Forces in 2013 and Approving the Margin Number of Statutory
Servants in the Civil National Defence Service and Item 2 of
Paragraph 2 of Article 3 of the Law on Establishing the Principal
Structure of the Armed Forces in 2009, Establishing the Planned
Principal Structure of the Armed Forces in 2014 and Approving the
Margin Number of Statutory Servants in the Civil National Defence
Service are not in conflict with Paragraph 2 of Article 3,
Paragraph 2 of Article 5 and Paragraphs 1 and 2 of Article 139 of
the Constitution and with the constitutional principle of a state
under the rule of law.
The petition of the Seimas, the petitioner, was received at
the Constitutional Court on 1 April 2009.
2. By its decision "On Accepting the Petition of the Seimas
of the Republic of Lithuania, the Petitioner, Set Forth in Its
Resolution No. XI-209 'On the Application to the Constitutional
Court of the Republic of Lithuania with a Petition Requesting to
Investigate Whether the Provisions of the Fifth, Sixth and Eighth
Paragraphs of the Resolution of the Seimas of the Republic of
Lithuania "On the Principles of Organisation of the Lithuanian
Armed Forces" of 13 March 2008, the Provision of the Second
Sentence of Item 18 of the Conception of the Republic of
Lithuania Law on Military Conscription of the New Wording
Approved by Resolution of the Government of the Republic of
Lithuania No. 620 "On Approving the Conception of the Republic of
Lithuania Law on Military Conscription of the New Wording" of 18
June 2008, Item 2 of Paragraph 2 of Article 3 of the Republic of
Lithuania Law on Establishing the Principal Structure of the
Armed Forces in 2008, Establishing the Planned Principal
Structure of the Armed Forces in 2013 and Approving the Margin
Number of Statutory Servants in the Civil National Defence
Service and Item 2 of Paragraph 2 of Article 3 of the Republic of
Lithuania Law on Establishing the Principal Structure of the
Armed Forces in 2009, Establishing the Planned Principal
Structure of the Armed Forces in 2014 and Approving the Margin
Number of Statutory Servants in the Civil National Defence
Service are not in Conflict with the Second Paragraph of Article
3, the Second Paragraph of Article 5, the First and the Second
Paragraphs of Article 139 of the Constitution of the Republic of
Lithuania and with the Constitutional Principle of a State Under
the Rule of Law' of 26 March 2009" of 3 April 2009, the
Constitutional Court decided to accept the petition set forth in
the Resolution of the Seimas of 26 March 2009 requesting to
investigate whether the provision "it is expedient to switch to
the Lithuanian armed forces organised on the grounds of
professional and volunteer military service" of the fifth
paragraph of the Seimas of the Republic of Lithuania Resolution
"On the Principles of Organisation of the Lithuanian Armed
Forces" of 13 March 2008, the provision of the sixth paragraph
thereof to the extent that it provides to retain the obligatory
military service only in case of mobilisation and to reconsider
the need of the obligatory initial military service every year by
approving the margin numbers of soldiers by a Seimas decision,
the provision of the eighth paragraph thereof to the extent that
it proposes that the Government present the Seimas the margin
numbers of soldiers for approval, established after having taken
account of the needs of switching to the armed forces organised
on the grounds of professional and volunteer military service,
the provision "shall establish the additional new grounds of
postponement of the obligatory initial military service which
will provide that the obligatory initial military and alternative
service of the national defence may be postponed for all the
conscripts if the law which regulates the principal structure of
the armed forces of the corresponding year provides that the
margin number of soldiers of the obligatory initial military
service is 0" of Item 18 of the Conception of the Republic of
Lithuania Law on Military Conscription of the New Wording
approved by Government Resolution No. 620 "On Approving the
Conception of the Republic of Lithuania Law on Military
Conscription of the New Wording" of 18 June 2008, Item 2 of
Paragraph 2 of Article 3 of the Law on Establishing the Principal
Structure of the Armed Forces in 2008, Establishing the Planned
Principal Structure of the Armed Forces in 2013 and Approving the
Margin Number of Statutory Servants in the Civil National Defence
Service, as well as Item 2 of Paragraph 2 of Article 3 of the Law
on Establishing the Principal Structure of the Armed Forces in
2009, Establishing the Planned Principal Structure of the Armed
Forces in 2014 and Approving the Margin Number of Statutory
Servants in the Civil National Defence Service are not in
conflict with Paragraph 2 of Article 3, Paragraph 2 of Article 5
and Paragraphs 1 and 2 of Article 139 of the Constitution and
with the constitutional principle of a state under the rule of
law.
3. The announcement of the President of the Constitutional
Court regarding the acceptance of the said petition was
officially announced in the official gazette "Valstybės žinios"
(Official Gazette Valstybės žinios, 2009, No. 39-1479) on 7 April
2009. Since that day until publishing of a Constitutional Court
ruling in this constitutional justice case, the validity of the
provision "it is expedient to switch to the Lithuanian armed
forces organised on the grounds of professional and volunteer
military service" of the fifth paragraph of the Seimas Resolution
"On the Principles of Organisation of the Lithuanian Armed
Forces" of 13 March 2008 (Official Gazette Valstybės žinios,
2008, No. 47-1753), the provision of the sixth paragraph thereof
to the extent that it provides to retain the obligatory military
service only in case of mobilisation and to reconsider the need
of the obligatory initial military service every year by
approving the margin numbers of soldiers by a Seimas decision,
the provision of the eighth paragraph thereof to the extent that
it proposes that the Government present the Seimas the margin
numbers of soldiers for approval, established after having taken
account of the needs of switching to the armed forces organised
on the grounds of professional and volunteer military service,
the provision "shall establish the additional new grounds of
postponement of the obligatory initial military service which
will provide that the obligatory initial military and alternative
service of the national defence may be postponed for all the
conscripts if the law which regulates the principal structure of
the armed forces of the corresponding year provides that the
margin number of soldiers of the obligatory initial military
service is 0" of Item 18 of the Conception of the Republic of
Lithuania Law on Military Conscription of the New Wording
approved by Government Resolution No. 620 "On Approving the
Conception of the Republic of Lithuania Law on Military
Conscription of the New Wording" of 18 June 2008 (Official
Gazette Valstybės žinios, 2008, No. 75-2942), Item 2 of Paragraph
2 of Article 3 of the Law on Establishing the Principal Structure
of the Armed Forces in 2008, Establishing the Planned Principal
Structure of the Armed Forces in 2013 and Approving the Margin
Number of Statutory Servants in the Civil National Defence
Service (Official Gazette Valstybės žinios, 2008, No. 87-3460)
adopted by the Seimas on 15 July 2008, as well as Item 2 of
Paragraph 2 of Article 3 of the Law on Establishing the Principal
Structure of the Armed Forces in 2009, Establishing the Planned
Principal Structure of the Armed Forces in 2014 and Approving the
Margin Number of Statutory Servants in the Civil National Defence
Service (Official Gazette Valstybės žinios, 2008, No. 87-3461)
adopted by the Seimas on 15 July 2008 is suspended.
II
The petition of the Seimas, the petitioner, is based on the
following arguments.
1. Paragraph 2 of Article 139 of the Constitution enshrines
the institute of military obligation which is not an end in
itself. While construing this provision together with the
provision "the Nation and each citizen shall have the right to
resist anyone who encroaches on the independence, territorial
integrity, and constitutional order of the State of Lithuania by
force" of Paragraph 2 of Article 3 of the Constitution and with
the provision "the defence of the State of Lithuania against a
foreign armed attack shall be the right and duty of each citizen
of the Republic of Lithuania" of Paragraph 1 of Article 139 of
the Constitution, one is to draw a conclusion that the purpose of
the military obligation is to prepare citizens of the Republic of
Lithuania to implement their constitutional rights and duties to
defend their Homeland. Thus, according to Paragraph 2 of Article
139 of the Constitution, the legislator must establish such
procedure of performance of the obligatory initial military
service that it would effectively ensure the implementation of
the right and duty of a citizen of the Republic of Lithuania to
defend his Homeland which is enshrined in Paragraph 1 of Article
139 of the Constitution, as well as the implementation of the
right of the Nation and each citizen to resist anyone who
encroaches to destroy the State of Lithuania by force, which is
established in Paragraph 2 of Article 3 of the Constitution. In
addition, the legislator has not been granted the right to
suspend the obligatory initial military service without providing
for the efficient alternatives for it, whereby one would reach
the purpose of the military obligation to prepare citizens for
the defence of the Homeland.
2. The provisions of the fifth, sixth and eighth paragraph
of the Seimas Resolution "On the Principles of Organisation of
the Lithuanian Armed Forces" of 13 March 2008 (hereinafter also
referred to as the Resolution), the provisions of Item 18 of the
Conception of the Republic of Lithuania Law on Military
Conscription of the New Wording (hereinafter also referred to as
the Conception) approved by Government Resolution No. 620 "On
Approving the Conception of the Republic of Lithuania Law on
Military Conscription of the New Wording" of 18 June 2008, the
provisions of Item 2 of Paragraph 2 of Article 3 of the Law on
Establishing the Principal Structure of the Armed Forces in 2008,
Establishing the Planned Principal Structure of the Armed Forces
in 2013 and Approving the Margin Number of Statutory Servants in
the Civil National Defence Service (hereinafter also referred to
as the Law on the Planned Principal Structure of the Armed Forces
in 2013) and the provisions of Item 2 of Paragraph 2 of Article 3
of the Law on Establishing the Principal Structure of the Armed
Forces in 2009, Establishing the Planned Principal Structure of
the Armed Forces in 2014 and Approving the Margin Number of
Statutory Servants in the Civil National Defence Service
(hereinafter also referred to as the Law on the Planned Principal
Structure of the Armed Forces in 2014), provide to suspend the
obligatory initial military service and actually the performance
of this service is already being suspended. However, the
legislator does not provide for efficient alternatives of the
obligatory initial military service which would create
preconditions for the Nation and its citizens to implement the
rights and duties linked to the defence of the Homeland which are
provided for in Paragraph 2 of Article 3 and Paragraph 1 of
Article 139 of the Constitution.
3. The provision of the fifth paragraph of the Resolution in
which it is provided to organize the Lithuanian armed forces only
on the voluntary grounds, i.e. on the grounds of professional and
volunteer military service, would be insufficient in order to
ensure that every citizen of the Republic of Lithuania, when such
need arises, could properly implement his right and duty to
defend the Homeland. In addition, it would create favourable
preconditions for the citizens who avoid implementing their
constitutional duties to escape from the performance of such
duty.
4. The sixth paragraph of the Resolution provides to retain
the obligatory military service only in case of mobilisation, i.
e. essentially only in case of a war or threat. This may mean
that in case of war or its threat, citizens of the Republic of
Lithuania may be unprepared for the defence of the Homeland.
5. Under Item 20 of the Conception, at the time of peace one
provides for the general obligatory education of military
draftees on the questions of defence when they participate in
one-day national defence events. If the Seimas decides not to
call-up to the obligatory initial military service during the
time of peace, such measure would be insufficient to prepare the
citizens of the Republic of Lithuania so that they could
efficiently implement their rights and duties which are enshrined
in Paragraph 2 of Article 3 and Paragraph 1 of Article 139 of the
Constitution.
6. If one established the incompliance of the disputed legal
acts with the provisions of Articles 3 and 139 of the
Constitution, one should hold that the Seimas and the Government,
while adopting the disputed provisions of the legal acts,
disregarded the constitutional principles limiting their
discretion, thus, violated also the constitutional principle "the
scope of power shall be limited by the Constitution" which is
enshrined in Paragraph 2 of Article 5 of the Constitution. Having
held that, one should also hold that the disputed provisions of
the legal acts adopted by the Seimas and by the Government are in
conflict with the constitutional principle of a state under the
rule of law.
III
1. In the course of preparation of the case for the
Constitutional Court hearing, written explanations from the
representative of the Seimas, the party concerned, who was Member
of the Seimas J. Olekas, were received. In the opinion of the
representative of the party concerned, the provisions entrenched
in the disputed legal acts that the obligatory initial military
service, under corresponding conditions, may be postponed for all
the citizens of the Republic of Lithuania who are of the
conscript age and that in 2013 and 2014 in the Lithuanian Armed
Forces there will be no soldiers of the obligatory initial
military service are not in conflict with the Constitution. The
position of the representative of the party concerned is based on
the following arguments.
1.1. The implementation of the provision of Paragraph 1 of
Article 139 of the Constitution is ensured through the military
preparation for the defence of the state. Before the military
obligation is suspended, there are two kinds of military
preparation: the voluntary one and the obligatory one. Having
suspended the call-up to the obligatory initial military service,
only the voluntary military service will remain which must be
strengthened while seeking to create preconditions for citizens
to prepare for the defence of the country. For this purpose, the
volunteer soldiers must be sent to trainings so that they would
gain the basic military preparation.
1.2. Following Paragraph 2 of Article 139 of the
Constitution, the legislator has the discretion to establish the
forms and cases of the performance of military obligation,
therefore, the intention to suspend the call-up to the obligatory
initial military service is not in conflict with the provisions
of Article 139 of the Constitution. The military obligation must
be performed when it is necessary to defend the State of
Lithuania against a foreign armed attack, i.e. in the event of
mobilisation.
1.3. The present system of military service, when one is
called up to the obligatory initial military service, does not
meet the requirements which are laid down for the modern armed
forces. When such service is refused, the number of soldiers of
the Lithuanian armed forces will decrease, however, while
completing the armed forces on the grounds of professional and
volunteer military service, one will gain the qualitative balance
against big but weakly prepared forces. The armed forces which
are professionally prepared and armed in the modern manner will
be more efficient both on the national level and while
implementing the international obligations.
1.4. The present call-up system is socially unfair as only
about 2 percent of all the young men which are suitable for the
performance of the obligatory initial military service perform
this service.
1.5. After the Republic of Lithuania has become a member of
the North Atlantic Treaty Organisation (hereinafter referred to
as NATO), its geopolitical and security situation essentially
changed. The country's membership in NATO and its defence based
on the principle of collective defence ensure the protection of
the constitutional values best. Due to the changed security
situation and the tasks of the armed forces which are
qualitatively different, in most NATO states the obligatory
initial military service was abandoned or there are plans to
abandon it. Out of 28 NATO states, only nine states (Denmark,
Norway, Greece, Bulgaria, Poland, Estonia, Croatia, Albania and
Lithuania) still have the obligatory military service.
2. By Ordinance of the Prime Minister No. 154 of 23 April
2009, Dainius Žalimas, an advisor-lawyer to the Minister of
National Defence, and Algimantas Gutauskas, Deputy Director of
the Legal Department of the Ministry of National Defence, were
commissioned to represent the Government, the party concerned.
2.1. In the course of the preparation of the case for the
Constitutional Court hearing, written explanations from D.
Žalimas and A. Gutauskas were received, in which it is stated
that the provisions enshrined in the disputed legal acts that,
under the corresponding conditions, the obligatory initial
military service may be postponed for all the citizens of the
Republic of Lithuania who are of conscript age and that in 2013
and 2014 in the Lithuanian Armed Forces there will be no soldiers
of the obligatory initial military service are not in conflict
with the Constitution. The following is noted in the
explanations: the institute of military obligation which is
enshrined in Paragraph 2 of Article 139 of the Constitution is
linked to the defence of one of the most important constitutional
valuesdefence of the independence of the State of Lithuania,
however, this provision of the Constitution must be construed
also in the context of other values defended by the Constitution;
the welfare of the Nation and its citizens, the economic
prosperity of the country and the international obligations aimed
to ensure the state's security are no less important
constitutional values than the defence of independence of the
State of Lithuania, therefore, the state must, by means of laws,
ensure the balance of these values and the corresponding defence
thereof; the sovereignty of the State of Lithuania, its
territorial integrity, the political independence and
constitutional order may not be defended only by means of arms;
the guarantee of other constitutional valuesthe welfare of the
Nation and its citizens as well as their rights and freedomsis
no less important for the protection of these values. In
addition, in the explanations one emphasises the membership of
the Republic of Lithuania in NATO which is the most effective
organisation of collective defence and a reliable deterrent of
any aggressor. It also needs to be noted that the membership in
NATO obliges Lithuania to have a possibility to send to
international operations and to maintain a military unit of
battalion size which would be composed of soldiers of
professional military service and volunteers; taking account of
the present Lithuanian economic situation, to equip and maintain
not only a brigade composed of soldiers of professional military
service, but also the military units formed on the grounds of
obligatory initial military service, would mean either
postponement of implementation of Lithuania's obligations to NATO
or imposing an additional burden to the Lithuanian economy so
violating other constitutional values and values which ensure the
national securitythe welfare of the Nation and its citizens and
the capability and competitiveness of the economy of this
country.
2.2. On 11 September 2009, at the Constitutional Court,
letter of the Prime Minister No. 12-5433 "The opinion of the
legitimate representative of the Government of the Republic of
Lithuania, the party concerned, in the Constitutional Court case
No. 16/2009 regarding the arguments set forth in the petition of
the Seimas of the Republic of Lithuania, the petitioner,
requesting to investigate the compliance of the legal acts of the
Republic of Lithuania establishing the suspension of the
obligatory initial military service with the Constitution" of 11
September 2009 was received, in which it is stated that the
opinion of D. Žalimas and A. Gutauskas, the representatives of
the Government, the party concerned, who were commissioned by
Ordinance of the Prime Minister No. 154 of 23 April 2009,
presented for the Constitutional Court in this constitutional
justice case "was not harmonised with the Government of the
Republic of Lithuania. Even though the fifteenth coalition
Government of the Republic of Lithuania does not have the final
position regarding the compliance of the legal acts specified in
Seimas Resolution No. XI-209 of 26 March 2009 with the
Constitution, however, contrary to what was specified in the
opinion presented to the Constitutional Court by the
representatives of the Government of the Republic of Lithuania,
the party concerned, the Government has doubts regarding the fact
that the specified legal acts may be in conflict with Paragraph 2
of Article 3, Paragraph 2 of Article 5 and Paragraphs 1 and 2 of
Article 139 of the Constitution."
2.3. Together with the said document, two ordinances of the
Prime Minister were submitted to the Constitutional Court:
Ordinance No. 387 of 11 September 2009 whereby one authorised
Veronika Baliūnienė, Head of the Legal Unit of the Office of the
Prime Minister, Jolita Mikulėnienė, Advisor to the Legal Unit of
the Office of the Prime Minister, and Jonas Kronkaitis, Advisor
to the Minister of National Defence, to represent the Government
in the constitutional justice case at issue, and Ordinance No.
388 of 11 September 2009, whereby Ordinance of the Prime Minister
No. 154 of 23 April 2009 (regarding the authorisation for D.
Žalimas, an advisor-lawyer to the Minister of National Defence,
and A. Gutauskas, Deputy Director of the Legal Department of the
Ministry of National Defence, to represent the Government at the
Constitutional Court) was recognised as no longer valid.
IV
At the Constitutional Court hearing, A. Anušauskas, Chairman
of the Committee on National Security and Defence of the Seimas,
and S. Šedbaras, Chairman of the Committee on Legal Affairs of
the Seimas, the representatives of the Seimas, the petitioner,
reiterated the arguments set forth in the petition of the
petitioner and answered to the questions.
J. Olekas, a Member of the Seimas, the representative of the
Seimas, the party concerned, reiterated the arguments set forth
in the written explanations as well as answered to the questions
and presented additional explanations.
V. Baliūnienė, Head of the Legal Unit of the Office of the
Prime Minister, the representative of the Government, the party
concerned, assented to the petitioner's doubt regarding the
compliance of the disputed legal acts with the Constitution. She
explained that, under the Constitution, inter alia Item 2 of
Article 94 thereof, while passing legal acts, the Government must
follow the effective laws; the legal acts of the Government may
not establish any such legal regulation which would compete with
the one established in the laws. According to V. Baliūnienė, the
Conception was prepared while implementing the disputed Seimas
Resolution. Thus, the Government approved the disputed Conception
while implementing its constitutional duty to implement the legal
acts adopted by the Seimas. Otherwise, according to the
representative of the Government, the party concerned, one would
have violated the imperatives of the constitutional principles of
a state under the rule of law and separation of powers which stem
from Paragraph 2 of Article 5 of the Constitution, in which it is
established that the scope of power shall be limited by the
Constitution, and from Item 2 of Article 94 of the Constitution.
J. Kronkaitis, Advisor to the Minister of National Defence,
the representative of the Government, the party concerned, noted
that the Republic of Lithuania must retain a certain number of
soldiers of obligatory military service. He emphasised that the
armed forces must be able to accumulate and retain the
mobilisation reserve, so it must be well-organised and composed
on the ground of regular military units. Therefore, the disputed
legal acts, in the opinion of J. Kronkaitis, are in conflict with
the Constitution.
The Constitutional Court
holds that:
I
1. As it has been mentioned, the Seimas, the petitioner,
requests to investigate whether the provisions of the fifth,
sixth and eighth paragraphs of the Resolution, the provision of
the second sentence of Item 18 of the Conception, Item 2 of
Paragraph 2 of Article 3 of the Law on the Planned Principal
Structure of the Armed Forces in 2013 and Item 2 of Paragraph 2
of Article 3 of the Law on the Planned Principal Structure of the
Armed Forces in 2014 are not in conflict with Paragraph 2 of
Article 3, Paragraph 2 of Article 5 and Paragraphs 1 and 2 of
Article 139 of the Constitution and with the constitutional
principle of a state under the rule of law.
2. Item 2 of Paragraph 2 of Article 3 of the Law on the
Planned Principal Structure of the Armed Forces in 2013 which is
disputed in this constitutional justice case establishes the
margin number of soldiers of the obligatory initial military
service (0) in 2013. Item 2 of Paragraph 2 of Article 3 of the
Law on the Planned Principal Structure of the Armed Forces in
2014 which is disputed in this constitutional justice case also
establishes the margin number of soldiers of the obligatory
initial military service (0), but not in 2013, but in 2014.
Therefore, the provisions of the Law on the Planned Principal
Structure of the Armed Forces in 2013 and of the Law on the
Planned Principal Structure of the Armed Forces in 2014 which are
disputed in the constitutional justice case at issue, according
to the content of the legal regulation enshrined therein, are
essentially identical, only the periods of time of application of
that legal regulation are different. Thus, in this constitutional
justice case, the Constitutional Court will investigate the
compliance of the disputed provisions of laws with the
Constitution in connection with one another.
3. Taking account of the content, extent and arguments of
the petition of the petitioner, in this constitutional justice
case the Constitutional Court will investigate the following:
- the compliance of the provision "it is expedient to switch
to the Lithuanian armed forces organised on the grounds of
professional and volunteer military service" of the fifth
paragraph of the Resolution, the provision of the sixth
paragraph, to the extent that it provides to retain the
obligatory military service only in case of mobilisation and to
reconsider the need of the obligatory initial military service
every year by approving the margin numbers of soldiers by a
Seimas decision, the provision of the eighth paragraph thereof to
the extent that it proposes that the Government present the
Seimas the margin numbers of soldiers for approval, established
after having taken account of the needs of switching to the armed
forces organised on the grounds of professional and volunteer
military service with Paragraph 2 of Article 3, Paragraph 2 of
Article 5 and Paragraphs 1 and 2 of Article 139 of the
Constitution and with the constitutional principle of a state
under the rule of law;
- the compliance of the provision "shall establish the
additional new grounds of postponement of the obligatory initial
military service which will provide that the obligatory initial
military and alternative service of the national defence may be
postponed for all the conscripts if the law which regulates the
principal structure of the armed forces of the corresponding year
provides that the margin number of soldiers of the obligatory
initial military service is 0" of Item 18 of the Conception with
Paragraph 2 of Article 3, Paragraph 2 of Article 5 and Paragraphs
1 and 2 of Article 139 of the Constitution and with the
constitutional principle of a state under the rule of law;
- the compliance of Item 2 of Paragraph 2 of Article 3 of
the Law on the Planned Principal Structure of the Armed Forces in
2013 and Item 2 of Paragraph 2 of Article 3 of the Law on the
Planned Principal Structure of the Armed Forces in 2014 with
Paragraph 2 of Article 3, Paragraph 2 of Article 5 and Paragraphs
1 and 2 of Article 139 of the Constitution and with the
constitutional principle of a state under the rule of law.
II
1. In this constitutional justice case, one disputes the
provisions of the legal acts which provide for tendencies in the
policy in organisation of the national defence system, as well as
of the legal acts which regulate the relations linked to military
service. While construing the disputed legal regulation, it is
important to reveal the development of the law-making of the
Republic of Lithuania in the sphere of national defence which is
linked to that regulation.
2. Upon restoration of the independent State of Lithuania on
11 March 1990, one started to create the legal basis of the
system of organisation of the national defence system of the
Republic of Lithuania.
2.1. The Supreme Council of the Republic of Lithuania, by 11
March 1990 Law "On the Provisional Basic Law of the Republic of
Lithuania" suspended the validity of the 12 May 1938 Constitution
of Lithuania and confirmed the Provisional Basic Law of the
Republic of Lithuania. Article 39 of the Provisional Basic Law
consolidated the duty of the Lithuanian citizens to protect the
interests of the State of Lithuania and to defend it. Paragraph 2
of this article established that military service in the armed
forces of the Republic of Lithuania shall be an honourable duty
of all citizens of Lithuania. Article 8 of the Provisional Basic
Law established that the defence of the country shall be
regulated by law.
2.2. On 17 July 1990, the Supreme Council adopted the
Republic of Lithuania Provisional Law on the National Defence
Obligation in whose preamble it is noted that citizens of the
Republic of Lithuania must protect and defend their state and
that Lithuanian national defence is an activity of the state
whereby one seeks to defend the independence of the state, its
interests, borders and territory. This law established the legal
regulation of the organisation of the national defence obligation
and service of the State of Lithuania during the time period of
restoration of statehood (Item 1 of the law).
2.3. On 16 October 1990, the Supreme Council adopted the
Republic of Lithuania Law on Compulsory Alternative (Labour)
Service in which the grounds and procedure of compulsory
alternative (labour) service of citizens of the Republic of
Lithuania between the ages of 19 and 27, draftees of the national
defence, who are unable, on the basis of their beliefs, to
perform the actual national defence service were established.
2.4. On 20 November of the same year, one adopted the
Republic of Lithuania Law on National Defence Service. Article 1
of this law established that a soldier is a defender of the State
of Lithuania, while Article 2 of this law defined the categories
of soldiers and their concepts. In this article, the following
was established:
"A soldier may be in the actual national defence service, in
the reserve or retired.
A soldier of the actual national defence service shall be a
soldier who serves in the actual national defence service.
A reserve soldier shall be a soldier who is relieved of the
actual national defence service.
A retired soldier shall be a soldier, who, due to age or
health reasons, is dismissed from the actual national defence
service or reserve and transferred to retirement."
2.5. Thus, the said laws enshrined the main principles of
the national defence system, inter alia national defence service
and organisation principles.
3. The Constitution of the Republic of Lithuania was adopted
by referendum which took place on 25 October 1992. It went into
effect on 2 November 1992. Under Article 1 of the Law of the
Republic of Lithuania "On the Procedure of Entry into Effect of
the Constitution of the Republic of Lithuania", which was adopted
by the Nation by the 25 October 1992 referendum together with the
Constitution of the Republic of Lithuania and which is a
constituent part of the Constitution, upon entry into effect of
the Constitution, the Provisional Basic Law became null and void.
From then on the Lithuanian national legal system had to be
created and developed only on the grounds of the Constitution.
Therefore, while regulating the relations linked to the national
defence, a duty arose to the legislator to heed the requirements
which stem from the Constitution, inter alia Article 139 thereof.
4. On 22 October 1996, the Seimas adopted the Republic of
Lithuania Law on National Conscription which established the
procedure for the fulfilment of military conscription of citizens
of the Republic of Lithuania and ensuring of the said
conscription (Paragraph 1 of Article 1). Upon coming into force
of this law, the legal acts which had regulated the organisation
of the national defence system until then, inter alia the
Provisional Law on the National Defence Obligation, the Law on
Compulsory Alternative (Labour) Service and the Law on National
Defence Service became no longer valid (Article 42 of the Law on
National Conscription (wording of 22 October 1996)).
4.1. Article 2 (wording of 22 October 1996) of the Law on
National Conscription established that "military conscription is
the right of a citizen of the Republic of Lithuania, provided for
in the Constitution, to fulfil actual military service or
alternative national defence service, and to prepare oneself to
defend the state from aggression."
4.2. Article 4 (wording of 22 October 1996) of the Law on
National Conscription defined the notions used in the law, inter
alia the following:
"2. 'Necessary military service' means obligatory military
service of a citizen of the Republic of Lithuania consisting of
initial military service and military service in the active
reserve.
<...>
4. 'Alternative national defence service' means alternative
obligatory national defence supporting service for those who, due
to religious or pacifistic beliefs, may not serve under arms.
5. 'Military draftee' means a citizen of the Republic of
Lithuania over 16 years of age who has the obligation to serve.
<...>
7. 'Conscript' means a military draftee from 19 to 27 years
of age who has neither completed the necessary military service,
nor is exempted from it because of the reasons laid down in this
Law."
4.3. By the Republic of Lithuania Law on Amending and
Supplementing the Law on National Conscription which was adopted
on 22 June 1999, Paragraph 2 of Article 4 of the Law on National
Conscription (wording of 22 October 1996) was amended and set
forth as follows:
"'Obligatory military service' means required military
service of a citizen of the Republic of Lithuania, established by
the Constitution of the Republic of Lithuania. It shall consist
of initial continuous military service of the duration
established by this Law and periodic refreshing military service
in the active reserve and service in the event of mobilisation."
Thus, by this amendment of the Law on National Conscription,
the name of necessary military service was changed into
obligatory military service, and it was supplemented that such
service consists not only of the initial military service and
periodic service in the active reserve, but also service in the
event of mobilisation.
By this amendment, also the notion "necessary military
service" of the definition of the alternative national defence
service enshrined in Article 4 (wording of 22 October 1996) of
the Law on National Conscription was replaced by the notion
"obligatory initial military service", and in the description of
the conscript it is specified that it means a military draftee
(male) from 19 to 26 years of age who has neither completed "an
initial period of obligatory military service, nor alternative
national defence service".
4.4. Article 8 (wording of 22 October 1996) of the Law on
National Conscription consolidated the grounds for exemption from
the necessary military service. This article established the
following:
"1. Citizens of the Republic of Lithuania shall be exempted
from necessary military service in the following cases:
1) they do not fit for necessary military service because of
their health condition in accordance with the list of diseases
approved by the Ministry of Health, upon coordination with the
Ministry of National Defence and the Ministry of the Interior;
2) they are sentenced to imprisonment;
3) having declared in writing that due to their religious or
pacifistic beliefs they may not serve under arms, and want to
fulfil alternative national defence service;
4) those who have completed necessary military trainings
under the procedure established in Article 19 of this Law;
5) clergymen of religious communities and associations which
are traditional in Lithuania and recognised by the State.
2. Citizens, sentenced to imprisonment for the crimes which
were committed due to negligence, may apply to the Selective
Recruitment Commission regarding the permission to perform the
necessary military service."
This article has been amended more than once. Article 8
(wording of 12 October 2006) of the Law on National Conscription
which is effective now provides:
"8. Exemption from Obligatory Initial Military Service or
Its Replacement
1. Citizens of the Republic of Lithuania shall be exempted
from the obligatory initial military service in the following
cases:
1) they do not fit for the obligatory initial military
service because of their health condition in accordance with the
list of diseases established in the Regulations for Military
Medical Examination;
2) having declared in writing that due to their religious or
pacifistic beliefs they may not serve under arms, and assigned to
fulfil alternative national defence service;
3) clergymen of religious communities and associations which
are traditional in Lithuania and recognised by the State.
2. Persons who lost both parents or were deprived of
parental care if they are not adopted or if they were established
guardianship (care) up to their majority, upon submission of a
reasoned request, may be exempted from the obligatory initial
military service by a decision of the Minister of National
Defence.
3. Persons recognised guilty for the commission of
intentional crimes and they were imposed an imprisonment
punishment, may not be called up to fulfil the obligatory
military service.
4. The obligatory initial military service of the duration
provided for in Article 17 of this Law may be altered into one of
the following types of service:
1) for students of schools of higher education, except
students of the Military Academy of Lithuaniatraining in
Leadership Courses of set duration during the studies, the
schedule of which is co-ordinated with a schedule of studies at
schools of higher education, and performing military training in
the armed forces or in the necessary military trainings the
duration of which does not exceed 90 days during summer holidays
in accordance with the procedure established in Article 19;
2) for cadets of the Military Academy of Lithuaniastudies
according to a curriculum of the Academy;
3) for persons who graduated from high schoolsservice the
duration of which does not exceed 6 months in separate training
military units according to a leadership training programme or
service the duration of which does not exceed 3 months according
to the basic military training course;
4) in the manner prescribed by Article 19 of this Law, basic
military training;
5) for persons who have concluded a volunteer service
contractexemplary, at least three-year service as a line unit
volunteer soldier in the national defence volunteer forces.
5. The following persons shall be regarded as having
completed the obligatory initial military service:
1) those who have completed the obligatory initial military
service established in Article 17 of this Law;
2) those who have completed service in one of the ways
indicated in Paragraph 4 of this Article and received a
certificate confirming the completion of such service;
3) those soldiers who have been dismissed (expelled) from
the Military Academy of Lithuania, and who have finished at least
one-year course of studies.
6. The obligatory initial military service may be altered
into one of the service types specified in Items 1, 3, 4 and 5 of
Paragraph 4 of this Article in accordance with the procedure
established by the Minister of National Defence, on the decision
of the Administrative Service of the National Conscription Centre
(save the exception established in Paragraph 7 of this article).
The duration of the service subject to completion in such way and
the form of certificates conforming its completion shall be
established by the Minister of National Defence on the proposal
of the commander of the armed forces.
7. For the persons who aspire to the service of the internal
affairs, the obligatory initial military service shall be changed
in the way specified in Item 4 of Paragraph 4 of this article
under the procedure established by the Minister of National
Defence.
8. Conscripts who have graduated from schools of higher
education or schools of further education and who have not been
called up to do the obligatory initial military service within 12
months after the graduation from such institution, shall be
exempt from obligatory initial military service."
4.5. Paragraph 2 (wording of 22 October 1996) of Article 17
of the Law on National Conscription provides that "the obligatory
initial military service shall last 12 months".
4.6. Article 19 of the Law on National Conscription
regulates the relations linked to the necessary military
trainings. Article 19 (wording of 5 July 2005) of the now
effective Law on National Conscription provides:
"Article 19. Obligatory military trainings
1. Obligatory military trainings shall be assigned to
military draftees from the age of 19 to 35:
1) in the cases provided for in Paragraph 5 of Article 9 of
this Law;
2) who have not completed the obligatory initial military
service for other reasons;
3) persons who aspire to the service of the internal
affairsby attending them in the statutory institutions of
professional training of the internal affairs during the time of
studying at these institutions;
4) who have been released from the obligatory initial
military service upon having served less than 6 months, when
during their service the circumstances provided for in Items 6-14
of Paragraph 1 of Article 9 of this Law appear. In such case the
duration of obligatory military trainings shall be set taking
into consideration the part of uncompleted service.
2. Obligatory military trainings shall be assigned to
military draftees from 18 years of age, who have finished the
training course of a young rifleman.
3. Obligatory military trainings shall be carried out in
territorial units of the armed forces or local territorial
national defence or other educational institutions in which
obligatory military training is organised. Obligatory military
trainings for persons who aspire to the service of internal
affairs shall be organised in the statutory educational
institutions of professional training of the internal affairs in
a manner co-ordinated with the commander of the armed forces.
4. Obligatory military trainings shall last from 60 to 150
days within 3 years, but not less than 20 days per year.
5. Obligatory military trainings shall be carried out in
accordance to the programmes approved by the commander of the
armed forces.
6. Persons shall be sent to obligatory military trainings by
a Selective Commission of the municipality. The beginning and end
of the trainings shall be established by the commander of the
armed forces.
7. During obligatory military trainings social guarantees
established for soldiers of the obligatory initial military
service shall apply to military draftees, they shall be provided
with meals and supplied with clothes of an established standard.
They shall be also paid payments to cover everyday expenses
established for soldiers of the obligatory initial military
service from State budget funds appropriated to the Ministry of
National Defence and the Ministry of the Interior, taking into
consideration in the institutions of which system they perform
obligatory military trainings. Such social guarantees, supply
provisions and payments shall, in the same order, apply to
military draftees who are fulfilling their service in the manner
prescribed by Item 1 of Paragraph 4 of Article 8 of this Law."
5. On 19 November 1996, the Seimas adopted the Republic of
Lithuania Law on Mobilisation and Preparation of Mobilisation
Reserve.
Article 2 of this law defines the notions of mobilisation
and mobilisation reserve:
"Article 2. Basic notions used in the law
1. Mobilisation means reorganisation of the state's economy
for the martial law and transfer of the armed forces and their
reserve from peace to fighting trim and call-up of the reserve
draftees to the actual military service.
2. Mobilisation reserve means reserve draftees, resources of
arms, ammunition, transport and other equipment, as well as of
other material valuables and money, resources of medicinal
purpose which are collected or accounted at the time of peace and
used under the established procedure upon announcement of
mobilisation or imposition of martial law."
The Republic of Lithuania Law on Amending and Supplementing
Articles 2, 3, 5, 11 and 14 of the Law on Mobilisation and
Preparation of Mobilisation Reserve of 23 June 1998 amended
Paragraph 1 of Article 2 of the Law on Mobilisation and
Preparation of Mobilisation Reserve (wording of 19 November 1996)
and the notion of mobilisation was defined as follows:
"Mobilisation means reorganisation of the state's administration,
municipalities and system of the economy for the martial law,
transfer of the armed forces and their reserve and the formations
of general and special purpose of the civil security (civil
security formations) from peace to fighting trim and call-up of
the reserve draftees to the actual military service."
6. On 19 December 1996, the Seimas adopted the Republic of
Lithuania Law on the Basics of National Security.
Paragraph 2 (wording of 19 December 1996) of Article 1 of
this law established that the ensuring of the national security
of Lithuania denotes the creation of conditions for a free and
democratic development of a Nation and State, and the protection
and defence of the independence of the State of Lithuania, its
territorial integrity and constitutional order.
The Second Section "General Provisions for the Defence of
Lithuania" (wording of 19 December 1996) of Chapter 7 of the Law
on the Basics of National Security inter alia established:
"The defence capability of Lithuania shall be based upon:
- determination and resolve of the Nation to resist any
aggressor;
- general obligatory military service as established by law;
- preparedness and armament of the armed forces and active
reserves;
- preparedness of citizens for total armed and unarmed
resistance and civil defence;
- good mutual understanding and co-operation between the
armed forces and the citizenry;
- the State's reserves.
The armed forces and other structures of national defence of
Lithuania shall be built up and trained for defence of the State
of Lithuania and interoperability with NATO Allied Forces.
In peace time the State armed forces shall comprise all the
services of the armed forces and its active reserve. Upon the
introduction of martial law, or during the armed defence from
aggression in war time, the armed forces shall include: the
border police and other specialised police units, the Military
Academy, the paramilitary units of the Riflemen's Union and
voluntary citizens' (partisan) units of armed resistance.
The basis of Lithuania's defence system shall be the
principle of total and unconditional defence. This principle
shall be consolidated in laws, other legal acts regulating
defence matters, in the plans of preparation for defence of the
armed forces and its active reserves, and in other documents.
This principle shall also underpin the training and preparation
of citizens for defence and resistance.
Lithuania shall seek to deter any potential assailant by the
citizens' general preparedness for resistance and the
preparedness of the armed forces for unconditional defence in the
event of aggression."
7. On 5 May 1998, the Seimas adopted the Republic of
Lithuania Law on the Organisation of the National Defence System
and Military Service, the purpose of which is to set forth "the
fundamentals of organisation, command, and control of the
National Defence System, and to establish the procedures for the
fulfilment and support of military service and the peculiarities
of civilian service within the National Defence System" (Article
1).
Article 2 (wording of 5 May 1998) of this law defined the
notions used in the law, inter alia:
"10. Actual military servicethe service status given to
citizens of the Republic of Lithuania for continuous service in
obligatory military service and professional military service, as
well as non-continuous service by volunteer soldiers or active
reservists called up for a period of time for training exercises,
defence, security, or other duties.
11. Obligatory military servicerequired military service
for citizens of the Republic of Lithuania as established by the
Constitution of the Republic of Lithuania. The services consists
of an initial period of military service established by law, and
follow on periodic service in the active reserve, as well as
service in the event of mobilisation.
12. Professional military servicecontinuous military
service voluntarily committed to (by means of a written contract
with the Ministry of National Defence) by citizens of the
Republic of Lithuania in accordance with conditions and
requirements set forth by law and legal acts. These soldiers
fulfil their military service in the Armed Forces or other
institutions within the National Defence System as well as other
institutions or international structures.
<...>
23. Conscripta draftee who, in accordance with the
procedures and methods established by Law on Military
Conscription, has not fulfilled the obligatory initial or
alternative service obligation, nor has been released from it.
During the period of time when a conscript is called up by the
Selective Service Commission to fulfil his mandatory service
until gaining a soldier's status, the individual shall be
referred to as recruit."
The numbering of the said paragraphs of Article 2 of the law
was changed by the Republic of Lithuania Law on Amending and
Supplementing Articles 2, 3, 10, 11, 13, 25, 26, 28, 31, 34, 38,
39, 40, 43, 45, 46, 48, 50, 53, 54, 55, 56, 60, 62, 63, 64, 65,
68, 72 and 73 of the Law on the Organisation of the National
Defence System and Military Service and on Supplementing the Law
by Article 77-1 which was adopted on 7 July 1999 (Paragraphs 10-
12 became Paragraphs 11-13 accordingly, and Paragraph 23 became
Paragraph 24).
The Republic of Lithuania Law on Amending and Supplementing
Articles 2, 3, 5, 7, 9, 10, 11, 12, 13, 14, 16, 20, 21, 28, 34,
36, 38, 39, 42, 44, 45, 49, 52, 53, 54, 55, 62, 67 and 73 of the
Law on the Organisation of the National Defence System and
Military Service, which was adopted on 11 November 2004, amended
Paragraphs 11-13 (wording of 7 July 1999) of Article 2 of the Law
and set them forth as follows:
"11. Actual military service shall mean the obligatory
military service of citizens of the Republic of Lithuania,
professional military service, national defence volunteer
military service, also service by cadets.
12. Obligatory military service shall mean the obligatory
military service which has been established by the Constitution
of the Republic of Lithuania for a citizen of the Republic of
Lithuania and which shall be fulfilled in accordance with the
procedure laid down by the law. It shall consist of initial
military service of the duration specified by the law fulfilled
on a continuous basis or otherwise, a non-continuous service in
the active reserve as well as service in the event of
mobilisation.
13. Professional military service shall mean a continuous
military service to fulfil which a citizen of the Republic of
Lithuania has voluntarily committed himself under a professional
military service contract and which is fulfilled in the Armed
forces or at other institutions of the national defence system
under the conditions and in accordance with the procedure laid
down by legal acts, also, in the cases specified by this Law, in
other states and foreign state or international institutions."
8. On 21 March 2000, the Seimas adopted the Republic of
Lithuania Law on Higher Education, Paragraph 5 of Article 49
whereof established that citizens of the Republic of Lithuania,
enrolled in higher education establishments, shall be provided
opportunities to acquire a military preparation, which shall be
counted as obligatory initial military service.
9. On 17 July 2000, the Seimas adopted the Republic of
Lithuania Law on the Armed Defence and Resistance Against
Aggression. Article 6 of this law enshrines the principles of
obligation, universality and unconditionality of the armed
defence and resistance against aggression:
"1. In the event of aggression, the Republic of Lithuania
must be defended by means of arms. Under the Constitution and
laws, state institutions, armed forces and each citizen must
defend the independence of Lithuania, its territorial integrity
and constitutional order.
2. In the event of aggression, the defence of the Republic
of Lithuania and its resistance against the aggressor shall be
universal. The independence of Lithuania, its territorial
integrity and constitutional order shall be defended by means of
arms by the armed forces of the state, all the resources of the
country shall be used for defence, the Nation and every citizen
shall resist in all possible ways which are not prohibited by the
universally recognised norms of the international law.
3. In the event of aggression, the armed defence of the
Republic of Lithuania shall be unconditional. It may not be bound
by the extent of aggression or any other conditions. Nobody may
restrict the right of the Nation and each citizen to resist the
aggressor or invader. Lithuania shall defend and resist the
aggression without waiting until the international assistance is
provided."
10. On 28 May 2002, the Seimas adopted Resolution No. IX-907
"On the Approval of the National Security Strategy". By this
resolution, one approved of the National Security Strategy which
included "the fields of policy, diplomacy, defence, economy and
other fields" and the aim of which was "to provide a vision of
the development of the State, to lay down the national interests
and the measures required for their implementation", as well as
to establish "the tasks and objectives of the national security
policy" (Item 1.1).
11. During the meeting of the North Atlantic Council which
was held on 21 November 2002 in Prague, the Heads of State and
Government of NATO Member States invited the Republic of
Lithuania and six more states of the Eastern and Central-Eastern
EuropeBulgaria, Estonia, Latvia, Romania, Slovakia and
Sloveniato join NATO. On 26 March 2003 in Brussels, the
representatives of 19 states, the present Members of NATO, signed
the Protocol on the Accession of the Republic of Lithuania to the
North Atlantic Treaty.
12. On 10 March 2004, the Seimas ratified the North Atlantic
Treaty which had been signed on 4 April 1949 in Washington (the
Republic of Lithuania Law on the Ratification of the North
Atlantic Treaty). The treaty came into force on 29 March 2004,
when Lithuania deposited its accession document to the Government
of the United States of America.
Article 3 of the North Atlantic Treaty provides: "In order
more effectively to achieve the objectives of this Treaty, the
Parties, separately and jointly, by means of continuous and
effective self-help and mutual aid, will maintain and develop
their individual and collective capacity to resist armed attack."
Referring to the provisions of the North Atlantic Treaty,
NATO grounds its activity on three basic principles: peaceful
settling of international disputes, non-use of force and
collective self-defence.
The principle of peaceful settling of international disputes
and the principles of non-use of force are consolidated in
Article 1 of the Treaty, in which it is established that the
parties of the Treaty undertake to settle any international
dispute in which they may be involved by peaceful means and to
refrain in their international relations from the threat or use
of force in any manner inconsistent with the purposes of the
United Nations.
The principle of collective self-defence which may be
considered as the basis of the whole North Atlantic Treaty, as
well as NATO activity, is enshrined in Article 5 of the Treaty
whereby the Parties agree that an armed attack against one or
more of them in Europe or North America shall be considered an
attack against them all. If such an armed attack occurs, each of
them, in exercise of the right of individual or collective self-
defence recognised by Article 51 of the Charter of the United
Nations, will assist the Party or Parties so attacked by taking
forthwith, individually and in concert with the other Parties,
such action as it deems necessary, including the use of armed
force, to restore and maintain the security of the North Atlantic
area. The same Article 5 provides that any such armed attack and
all measures taken as a result thereof shall immediately be
reported to the Security Council of the United Nations.
13. It needs to be noted that during the procedure of
Lithuania's accession to NATO, some national legal acts
regulating the organisation of the national defence system were
amended and supplemented, inter alia the Law on the Basics of
National Security and the National Security Strategy approved by
Resolution of the Seimas No. IX-907 of 28 May 2002.
13.1. By the Republic of Lithuania Law on Amending and
Supplementing Articles 2, 3 and 4 of the Law on the Basics of
National Security and Chapters 2, 3, 4, 5, 7, 8, 10, 11, 12, 13,
14, 15, 16, 17, 18, 19, 20, 21, 22 and 25 of the Appendix
Thereof, which was adopted by the Seimas on 22 April 2003, one
made the amendments and supplements to the provisions of the Law
on the Basics of National Security linked inter alia to the
membership of the Republic of Lithuania in NATO. For example,
Paragraphs 5 and 7 of Section II of Chapter 7 of the Law on the
Basics of National Security were amended, setting them forth as
follows:
"Lithuania shall seek to deter any potential assailant by
the total preparedness of citizens for resistance and the
preparedness of the armed forces for unconditional defence
against aggression, which shall be implemented independently and
in conjunction with the forces of NATO Allies.
<...>
In the event Lithuania perceives a direct threat to its
territorial integrity, political independence or security, it
shall immediately ask NATO for consultations. As a party to the
North Atlantic Treaty and to other collective defence treaties of
European states, Lithuania shall, in the event of an armed
assault, immediately apply for armed assistance of the countries
parties to these treaties in resisting the assault."
In addition, Chapter 18 was amended together with the
titleit was titled "System of National Defence."
The now effective Section II "General Provisions of the
Lithuanian Defence" (wording of 23 July 2009) of Chapter 7 of the
Law on the Basics of National Security inter alia provides:
"The defence power of Lithuania shall be based upon:
- the resolve and determination of the Nation to resist any
aggressor;
- the assistance and solidarity provided by NATO Allies;
- general obligatory military service as established by law;
- readiness and provision with weapons of the armed forces
and active reserve thereof;
- preparedness of citizens for total armed and unarmed
resistance and civil defence;
- good mutual understanding and co-operation between the
armed forces and civilians;
- the State's stocks and other resources of the mobilisation
reserve;
- the use of the potential of the country's institutions and
undertakings of science and studies.
The Lithuania armed forces and other institutions of
national defence shall be set up and trained for the defence of
the State of Lithuania and interoperability with NATO forces.
In peacetime, the state armed forces shall comprise all
types of military forces and active reserve thereof. Upon the
introduction of martial law or during an armed defence against
aggression (in wartime), the armed forces shall include: the
State Border Guard Service, the Public Security Service, the
combat platoons of the Riflemen's Union and other armed
resistance combat (partisan) platoons of citizens and their
organisations subordinate to the command of the armed forces.
The basis of Lithuania's defence system shall be the
principle of total and unconditional defence, which shall be
implemented in compliance with the principle of NATO's collective
defence. This principle shall be stipulated in laws, other legal
acts regulating defence, in the plans of preparation for defence
of military forces and active reserve thereof and in other
documents. The training and preparation of citizens for defence
and resistance shall be based on this principle too.
Lithuania shall seek to deter any potential assailant by the
total preparedness of citizens for resistance and the
preparedness of the armed forces for unconditional defence
against aggression, which shall be implemented independently and
in conjunction with the forces of NATO Allies.
Lithuania shall resist an aggressor by all available means:
military defence and guerrilla warfare, civil disobedience, non-
collaboration and other means.
In the event Lithuania perceives a direct threat to its
territorial integrity, political independence or security, it
shall immediately ask NATO for consultations. As a party to the
North Atlantic Treaty and to other collective defence treaties of
European states, Lithuania shall, in the event of an armed
assault, immediately apply for armed assistance of the countries
parties to these treaties in resisting the assault."
The now effective Section III (wording of 20 March 2008) of
Chapter 7 of the said law provides:
"All of the armed forces shall be employed in the military
defence of the State. They must be prepared for rapid response,
efficient mutual interaction and prompt regrouping as well as
interoperability with the forces of NATO Allies. Special
significance shall be attached to intelligence, information
analysis and efficient operational command of the armed forces.
The Lithuanian military forces must be prepared for defence
actions in the event of an unexpected and sudden assault or
demonstration of the military force. The main task of the
military forces shall be to destroy the enemy and to break its
determination to fight against Lithuania.
The Lithuanian armed forces shall defend the State
independently and in conjunction with the allied forces. In the
event of an armed assault or threat thereof, Lithuania shall ask
NATO allies for assistance in defence and for other international
assistance.
In the territories occupied by the enemy, partisan actions
shall be employed too."
13.2. By Seimas Resolution No. X-91 "On Amending the Annex
of the Seimas Resolution 'On the Approval of the National
Security Strategy'" of 20 January 2005, the National Security
Strategy was amended and set forth in a new wording.
Item 2.1 of the National Security Strategy (hereinafter also
referred to as the Strategy) (wording of 20 January 2005) held
that "at present the state of the Republic of Lithuania in the
international security system is the best since the restoration
of its independence. The independence of the Republic of
Lithuania is recognised and respected, national economy is
growing steadily, friendly relations are maintained and practical
co-operation is carried out with other states, the ethnic
minorities have been successfully integrated in Lithuania's
society, experience of functioning of institutions of democracy
has been accumulated, democratic civilian control over the armed
forces has been effectively implemented, the position in Euro-
Atlantic and other international organisations is becoming
stronger".
Item 2.3 of the Strategy (wording of 20 January 2005) holds
that "at present, the Republic of Lithuania does not observe any
immediate military threat to national security and, as a result,
does not regard any state as its enemy. The security policy of
the Republic of Lithuania is open, transparent and non-
confrontational. It defends the legitimate interests of the State
of Lithuania and its citizens."
It needs to be noted that in the Strategy (wording of 20
January 2005) one specifies enhancing response to danger and
threats (Item 6.6), inter alia improving military capabilities
(Item 6.3.1), as one of the main ways and means of implementation
of this strategy. In this provision of the Strategy it is also
noted that as a result of positive changes in the strategic
environment of the Republic of Lithuania, ongoing economic growth
and NATO membership requirements, the Republic of Lithuania
reorganises its defence structures and capabilities. The main
focus in this reform is directed at:
"6.3.1.1. creation of a modern, well-armed armed forces
which are able to effectively defend the State and act together
with NATO allies. When planning defence, the Republic of
Lithuania as a NATO member gives priority to the capabilities
which strengthen the collective defence of the whole Alliance and
its readiness to address threats of any type;
6.3.1.2. highly skilled, well commanded and properly
prepared military forces, as well as their regular training. The
Republic of Lithuania soldiers are trained to successfully carry
out complex tasks posed to the modern armed forces and justify
the confidence of the public in the armed forces and the
confidence of the allies in the State of Lithuania;
6.3.1.3. modernisation of the armed forces, allowing the
Republic of Lithuania to fulfil international commitments made by
it."
The "Final Provisions" of the Strategy (wording of 20
January 2005) hold the following:
"7.1. The Republic of Lithuania has become a NATO Member
State. Membership in this organisation ensures military,
political and economic security of the Republic of Lithuania.
7.2. Membership in the European Union fosters economic
development and prosperity, provides non-military guarantees of
security of the Republic of Lithuania. Accession to the
democratic community of Western states ensures internal stability
and paves the way for the new opportunities of cooperation to
counteract organised crime and to respond to natural or
technological calamities.
7.3. It is anticipated that the conditions, which could
affect the vital interests of the Republic of Lithuania, will
remain stable in the future. However, the Republic of Lithuania
must be adequately prepared to face new risk factors and threats
which may be the result of changing security environment.
7.4. The National Security Strategy is regularly adjusted to
the changes in the internal or external security environment."
14. On 17 May 2007, the Seimas adopted the Republic of
Lithuania Law on Establishing the Principal Structure of the
Armed Forces in 2007, Establishing the Planned Principal
Structure of the Armed Forces in 2012 and Approving the Margin
Number of Statutory Servants in the Civil National Defence
Service. Item 2 of Paragraph 2 of Article 2 of this law provides
that in the year 2007, the number of soldiers of the obligatory
initial military service may be 2600.
15. On 13 March 2008, the Seimas adopted the Resolution "On
the Principles of Organisation of the Lithuanian Armed Forces"
whose provisions are disputed in this constitutional justice
case. The Resolution provides:
"The Seimas of the Republic of Lithuania,
taking into consideration the fact that, according to
provisions of the Constitution of the Republic of Lithuania and
the Law on the Basics of National Security, the defence of the
State of Lithuania is total, namely, that in the event of an
armed attack, Lithuania shall be provided with armed defence by
the armed forces of the State and NATO Allies, that resources of
the State shall be employed in the defence effort, and that each
citizen and the Nation shall offer resistance by every means
allowed under international law;
noting that, according to Article 139 of the Constitution of
the Republic of Lithuania, defence of the State of Lithuania
against a foreign armed attack shall be the right and duty of
each citizen of the Republic of Lithuania, whereas the Seimas
must, by means of a law, lay down the procedure for fulfilling
the duty of military service as stipulated in the Constitution;
evaluating the extent and nature of threats, dangers to and
risks for the national security of Lithuania as provided for in
the National Security Strategy approved by the Seimas;
believes that it is expedient to switch to the Lithuanian
Armed Forces organised on the grounds of professional and
volunteer military service;
states the necessity to preserve the institution of military
conscription providing for the obligatory military service in the
event of mobilisation and to review the need of fulfilling the
obligatory initial military service on an annual basis when
approving margin numbers of soldiers by a decision of the Seimas
of the Republic of Lithuania;
stresses that civic and national education, consolidation of
volunteer military service and activities of the Lithuanian
Riflemen's Union is a prerequisite for increasing the defence
power of this country;
proposes that the Government of the Republic of Lithuania
draft required legislative amendments, also submit to the Seimas
for approval on an annual basis during the autumn session the
principal structure of the Armed Forces for the coming year,
including the margin numbers of soldiers determined according to
the needs of shifting to the armed forces organised on the basis
of professional and volunteer military service;
notes that the reform of military service providing for a
shift to professional and volunteer military service must be
based on appropriate allocations from the State budget through
continuous increase of financing of the national defence system."
In this constitutional justice case one disputes the
following provisions of the Resolution:
the provision of the fifth paragraph: "it is expedient to
switch to the Lithuanian Armed Forces organised on the grounds of
professional and volunteer military service";
the provision of the sixth paragraph, to the extent that it
provides to retain the obligatory military service only in case
of mobilisation and to reconsider the need of the obligatory
initial military service every year by approving the margin
numbers of soldiers by a Seimas decision;
the provision of the eighth paragraph, to the extent that it
proposes that the Government present the Seimas the margin
numbers of soldiers for approval, established after having taken
account of the needs of switching to the armed forces organised
on the grounds of professional and volunteer military service.
16. On 18 June 2008, the Government adopted Resolution No.
620 "On Approving the Conception of the Republic of Lithuania Law
on Military Conscription of the New Wording". By this resolution
one approved the Conception of the Republic of Lithuania Law on
Military Conscription of the New Wording the provisions of which
are disputed in this constitutional justice case. The Conception
was prepared while implementing Item 880 of the Measures of the
Implementation of the 2006-2008 Programme of the Government
approved by Government resolution No. 1020 of 17 October 2006
which provides for the measureto prepare, while taking into
account the changing needs of the system of administration of
military conscription and creation of the system of recruitment
and incentive, the Republic of Lithuania Draft Law on Amending
the Law on Military Conscription. While preparing the Conception,
one took account of the Seimas Resolution "On the Principles of
Organisation of the Lithuanian Armed Forces" of 13 March 2008
(Item 3.1 of the Conception).
The Conception discusses the general characteristics of the
subject of regulation and aims of the Republic of Lithuania Law
on Military Conscription of the new wording; it specifies the
legal acts which regulate military conscription at present; it
contains an analysis of insufficient efficiency of the legal
norms which are proposed to be annulled or amended, it also
contains a review of the law-making of foreign states, an
analysis of the legal norms and principles of international law
and European Union law; it discusses the main provisions of
regulation of social relations, possible consequences of the
anticipated legal regulation, it gives financial and economic
reasoning, it provides for the structure of the law and legal
acts which are expected to be amended or annulled.
The following amendments of inter alia the legal regulation
proposed in the Conception are to be noted:
- supplement of the grounds of postponement of the
obligatory initial military service and alternative national
defence service, by including new items (due to the temporary
deterioration in the health, as well as of the law which
regulates the principal structure of the armed forces in the
corresponding year provides that the margin number of soldiers of
the obligatory initial military service is 0) (Item 18 of the
Conception);
- establishment of mandatory participation of military
draftees in one-day events of National Security. During such
educational event of National Security, military draftees would
be explained about the importance of Homeland defence, the basis
of military conscription of citizens and they would be
familiarised with the armed forces and military service
(similarly like the civil education implemented in Portugal); it
would be a constituent part of military service. It would be
obligatory to all youngsters (men) from 16 years old, save the
disabled ones, members of the Riflemen's Union and/or those who
finished the courses of the defender of the Homeland (these would
be voluntary, short-term courses, during which young people would
be familiarised with the theoretical basis of defence of the
Homeland and they would gain elements of practical knowledge in
military defence; the participation of these youngsters in the
one-day events of National security would be voluntary) (Item 20
of the Conception).
Item 15 of the Conception held the following:
"15. In the procedure of preparation of the Conception, one
followed the experience of the Member States of the North
Atlantic Treaty Organisation (hereinafter referred to as NATO).
NATO does not specify what model of the armed forces to choose,
it is left for the discretion of the Member States. Most NATO
Member States have already refused the obligatory initial
military service, a few states are considering that and plan to
refuse it and 6 states are not going to refuse it. Taking account
of the changing needs of administration of military conscription
in Lithuania, while preparing the Conception, one analysed the
legal regulation of military service of various states, however,
a few most important examples of experience in the sphere of
administration of military conscription were chosen (those of
Portugal, Hungary, the Netherlands and Denmark). The following
conclusions have been drawn:
15.1. The example of Portugal in strengthening education on
the questions of defence would be acceptable for Lithuania. In
1997, in Portugal, the Constitution was amended and the
provisions regarding the obligatory military service of
conscripts were refused, however, one consolidated obligatory
education of citizens on questions of defence. All boys must
participate in the events of the National Defence Day (it is also
considered to establish this obligation for girls). The National
Defence Day performs a double role: it is both civil education
(during which it is explained about the essence of citizenship,
the duties of citizens in defence of the state, the importance of
national defence) and the means of campaigning for and attracting
of youngsters to the armed forces (the youngsters are introduced
with the armed forces, its functions, tasks, armament, history;
also the advantages of serving in the armed forces are shown in
order to make the youngsters to be interested in the service as
much as possible).
15.2. In addition, the examples of Hungary and the
Netherlands regarding the suspension of the performance of the
obligatory initial military service are relevant for Lithuania.
Quite a number of states refused the obligatory initial military
service without providing for the reservations regarding the
renewal of the obligatory initial military service, however,
Hungary and the Netherlands established such reservations. When
the parliament amended the Constitution, in Hungary the call-up
to perform the obligatory military service was suspended in 2004.
However, the law provides that the call-up may be renewed if two
thirds of members of the parliament decide so.
In the Netherlands, the obligatory military service was
officially suspended in 1997. The essence of the suspension was
that the citizens were not obliged to serve in the armed forces
until this is not necessary for the security of the state. Upon
reaching the age of 17, every male receives a letter in which it
is stated that he is registered as a military draftee, however,
that he does not have to present himself for service. The
Netherlands did not formally abolish the call-up, therefore, the
laws and procedures which regulate the call-up of the personnel
of the military conscription are still effective. In Article 98
of the Constitution of the Netherlands it is specified that
military service is compulsory and the power to defer the call-up
to active service shall be regulated by Act of Parliament.
15.3. One should also pay attention to the example of
Denmarkhow to ensure the impartial and transparent selection to
the obligatory initial military service, how to strengthen the
cooperation between the society and the armed forces. On the Day
of the Armed Forces one strengthens the cooperation between the
armed forces and the society and seeks to attract young men to
the armed forces. Upon having carried out the health check of a
young man, who participates in the events of this day and after
having talked to him, one decides whether he is suitable for the
military service, suitable with limitations or unsuitable. If he
is suitable or suitable with limitations, a young man is randomly
selected to perform the obligatory initial military service. The
purpose of this way is to ensure the impartial selection of
soldiers. Random selection is the proper means as only a limited
number of soldiers of mandatory service must be selected."
16. In this constitutional justice case one disputes the
provision "shall establish the additional new grounds of
postponement of the obligatory initial military service which
will provide that the obligatory initial military and alternative
service of the national defence may be postponed for all the
conscripts if the law which regulates the principal structure of
the armed forces of the corresponding year provides that the
margin number of soldiers of the obligatory initial military
service is 0" of Item 18 (Chapter VII "Basic Provisions of
Regulation of Social Relations" of the Conception) of the
Conception.
17. On 15 July 2008, the Seimas adopted the Law on
Establishing the Principal Structure of the Armed Forces in 2008,
Establishing the Planned Principal Structure of the Armed Forces
in 2013 and Approving the Margin Number of Statutory Servants in
the Civil National Defence Service whose provisions are disputed
in this constitutional justice case.
Paragraph 2 of Article 3 of this law provides:
"2. The total margin number of soldiers, the margin number
of soldiers of professional and obligatory initial military
service, volunteer soldiers and other soldiers of the active
reserve and of cadets established for the year 2013 shall be up
to 14,650. This number shall compose the following:
1) soldiers of professional military serviceup to 8,450,
out of which up to 12 generals and admirals, up to 45 colonels
and naval captains, up to 150 lieutenant colonels and commanders
and up to 400 majors and lieutenant commanders;
2) soldiers of obligatory initial military service0;
3) volunteer soldiers and other soldiers of the active
reservenot less than 6,000;
4) cadetsup to 200."
In this constitutional justice case one disputed Item 2 of
Paragraph 2 of Article 3 of the Law on the Planned Structure of
the Armed Forces in 2013, in which the margin number of soldiers
of the obligatory initial military service (0) is established.
18. On 15 July 2008, the Seimas adopted the Law on
Establishing the Principal Structure of the Armed Forces in 2009,
Establishing the Planned Principal Structure of the Armed Forces
in 2014 and Approving the Margin Number of Statutory Servants in
the Civil National Defence Service whose provisions are disputed
in this constitutional justice case.
Paragraph 2 of Article 3 of this law provides:
"2. The total margin number of soldiers, the margin number
of soldiers of professional and obligatory initial military
service, volunteer soldiers and other soldiers of the active
reserve and of cadets established for the year 2014 shall be up
to 14,700. This number shall compose the following:
1) soldiers of professional military serviceup to 8,450,
out of which up to 12 generals and admirals, up to 45 colonels
and naval captains, up to 150 lieutenant colonels and commanders
and up to 400 majors and lieutenant commanders;
2) soldiers of obligatory initial military service0;
3) volunteer soldiers and other soldiers of the active
reservenot less than 6,000;
4) cadetsup to 250.
3. The total margin number of statutory servants in the
civil national defence service established for the year 2014
shall be up to 200."
In this constitutional justice case one disputed Item 2 of
Paragraph 2 of Article 3 of the Law on the Planned Structure of
the Armed Forces in 2014, in which the margin number of soldiers
of the obligatory initial military service (0) is established.
Therefore, according to the said laws, call-up to the
obligatory initial military service in 2013 and 2014 is not
provided for.
19. On 15 September 2008, the Minister of National Defence
passed Order No. V-868 "On Postponement of the Obligatory Initial
Military Service" whereby one suspended the call-up to the
obligatory initial military service and established that the
citizens who were called up to the obligatory initial military
service before the order was passed, shall serve in the armed
forces until 1 July 2009.
Under Article 105 of the Constitution, the Constitutional
Court shall consider and adopt a decision whether the laws and
other acts adopted by the Seimas are not in conflict with the
Constitution (Paragraph 1), as well as if acts of the President
of the Republic and acts of the Government of the Republic are
not in conflict with the Constitution and law (Paragraph 2).
It is not the matter of competence of the Constitutional
Court to assess the compliance of legal acts of the ministers,
inter alia also those which establish the procedure of
performance of the obligatory initial military service, with the
Constitution and/or laws.
The Constitutional Court has held that at present the legal
regulation is established by the Law on the Proceedings of
Administrative Cases and other laws whereby decision on the
compliance of the legal acts, passed by other subjects of law-
making (thus, those passed not by the Seimas, the President of
the Republic or the Government and not adopted by referendum)
with legal acts of greater power, inter alia (and, first of all)
with the Constitution, is attributed to the jurisdiction of
administrative courts; if the administrative court recognises
such legal act as being in conflict with the Constitution (other
legal act of greater power), then, under the Constitution and
laws, such decision of the said court has erga omnes impact on
the whole practice of the application of corresponding legal acts
(parts thereof) (Constitutional Court rulings of 24 October 2007
and 2 September 2009).
20. While summing up the discussed legal regulation
enshrined in the legal acts whose provisions are disputed in this
constitutional justice case, it needs to be noted that by this
regulation:
- one seeks to reorganise the Lithuanian armed forces
organising it on the grounds on the professional and volunteer
military service;
- one provides to preserve the obligatory military service
in case of mobilisation;
- one emphasises the necessity to prepare the citizens for
the defence of the country, inter alia for the obligatory
military service in the event of mobilisation, by organising the
civil and national trainings, practical trainings of military
defence, educational events of national defence, etc.;
- one provides to reconsider the need of performance of the
obligatory initial military service every year by a decision of
the Seimas;
- one proposes to supplement the grounds of postponement of
the obligatory initial military service and alternative national
defence service;
- one does not provide for the call-up to the obligatory
initial military service in 2013 and 2014;
- one emphasises the necessity to support the reform of
military service, while moving to the professional and volunteer
military service, by the correspondingly formed subsidies and
consistent increase in financing the national defence system.
Therefore, the disputed legal regulation provides for the
reform of the military service which is inter alia linked to the
reorganisation of the obligatory initial military service by
assessing the necessity of performance of this service every year
according to the concrete needs of defence in the corresponding
period. It also needs to be noted that the disputed legal
regulation does not abolish the institute of the obligatory
military service in general; it is proposed to organise the
preparation of citizens for the defence of this country also by
means different from the obligatory initial military service.
III
1. In this constitutional justice case one disputes the
compliance of the legal acts which provide for the tendencies in
the policy of organisation of the national defence system, as
well as the compliance of the legal acts which regulate the
relations linked to the military service with Paragraph 2 of
Article 3, Paragraph 2 of Article 5 and Paragraphs 1 and 2 of
Article 139 of the Constitution, as well as with the
constitutional principle of a state under the rule of law.
1.1. Paragraph 2 of Article 3 of the Constitution provides
that the Nation and each citizen shall have the right to resist
anyone who encroaches on the independence, territorial integrity,
and constitutional order of the State of Lithuania by force.
1.2. Article 139 of the Constitution provides: the defence
of the State of Lithuania against a foreign armed attack shall be
the right and duty of each citizen of the Republic of Lithuania
(Paragraph 1); citizens of the Republic of Lithuania must perform
military or alternative national defence service according to the
procedure established by law (Paragraph 2).
2. The Constitution shall be an integral and directly
applicable act (Paragraph 1 of Article 6 of the Constitution).
The Constitutional Court has held more than once that all
provisions of the Constitution are interrelated and constitute a
single and harmonious system, that there is a balance among the
values consolidated in the Constitution, that it is not permitted
to construe any provision of the Constitution so that the content
of another provision of the Constitution is distorted or denied,
since thus the essence of the entire constitutional legal
regulation would be distorted and the balance of constitutional
values would be disturbed (Constitutional Court rulings of 4
March 2003, 16 January 2006 and 14 March 2006).
In its acts the Constitutional Court has also held: it is
due to the fact that the Constitution is an integral act that it
is comprised of various provisionsboth the constitutional norms,
and the constitutional principlesamong which there may not exist
and there is no contradiction, and which constitute a harmonious
system; that the constitutional principles are derived from the
entirety of the constitutional legal regulation expressing the
spirit of the Constitution, and from the meaning of the
Constitution as the act consolidating and protecting the system
of the major values of the state community, the civil Nation, and
which provides the guidelines for the entire legal system, and
due to the fact that the letter of the Constitution may not be
interpreted or applied in the manner which denies the spirit of
the Constitution, the Constitution may not be interpreted only
literally by applying the sole linguistic (verbal) method; when
interpreting the Constitution, one must apply various methods of
interpretation of law: systemic, the one of general principles of
law, logical, teleological, the one of intentions of the
legislator, the one of precedents, historical, comparative, etc.;
only such comprehensive interpretation of the Constitution may
provide conditions for realisation of the purpose of the
Constitution as a social agreement and the act of the supreme
legal power, and for ensuring that the meaning of the
Constitution will not be deviated from, that the spirit of the
Constitution will not be denied, and that the values upon which
the Nation has based the Constitution adopted by it will be
consolidated in reality; the construction of all the provisions
of the Constitution in the context of the constitutional
principle of a state under the rule of law is a necessary pre-
requisite for exhaustive construction of the Constitution
(Constitutional Court rulings of 25 May 2004 and 13 December
2004).
3. The provisions of Articles 3 and 139 of the Constitution
(in this constitutional justice case, the compliance of the legal
acts is disputed with regard to these provisions) enshrine the
principles of integrity of the State of Lithuania, its
independence and territory, the principles of defence of the
constitutional order and of national defence, as well as the
rights and duties of the citizen which are related thereto. These
provisions of the Constitution are interrelated, together with
other provisions and principles of the Constitution they compose
the integral system of constitutional regulation of national
defence, therefore, they must be construed in a systemic manner,
inter alia also in the context of the constitutional principle of
a state under the rule of law.
3.1. As it has been mentioned, Paragraph 2 of Article 3 of
the Constitution enshrines the right of each citizen to resist
anyone who encroaches on the independence, territorial integrity,
and constitutional order of the State of Lithuania by force.
In its ruling of 23 November 1999, the Constitutional Court
held: "The constitutional order of the Republic of Lithuania is
based on the priority of the rights and freedoms of individuals
and citizens as the ultimate value, as well as on the principles
establishing the sovereignty of the People, independence and
territorial integrity of the state, democracy, republic as the
form of state governance, separation of state powers, their
independence and balance, local self-government etc. Protection
of the constitutional order means that it is not permitted that
the social, economic and political relations established in the
Constitution which constitute the fundamentals of the life of
individuals, society and the state be encroached upon."
3.2. The Constitutional Court has held more than once that
the state is an organisation of the entire society (rulings of 25
November 2002, 4 March 2003, 30 September 2003, 3 December 2003
and 30 December 2003). In the acts of the Constitutional Court it
has also been held that: having adopted the Constitution, the
legal act of the supreme legal power, by referendum, the
Lithuanian Nation formed the standardised basis for the common
life of its own, as the state communitythe civil Nation, and
consolidated the state as the common good of the entire society;
The Constitution is based on universal, unquestionable values,
inter alia the respect for law and the rule of law, limitation of
the scope of powers, the duty of state institutions to serve the
people and their responsibility for society, justice, striving
for an open, just and harmonious society and state under the rule
of law, the recognition of human rights and freedoms and their
respect (rulings of 25 May 2004 and 19 August 2006). In the
Constitutional Court ruling of 19 August 2006 it was also held
that one of the most important obligations of a democratic state
based on law and justice is to respect, defend and protect the
values, as well as human rights and freedoms, upon which the
Constitution itself adopted by the Nation is based and whose real
assessment, defence and protection is raison d'?tre of the state
itself; otherwise, one would not be able to consider the state as
the common good of the whole society.
3.3. In the context of the constitutional justice case at
issue it needs to be noted that there is a special legal link
between the state and its citizens. In the Constitutional Court
ruling of 30 December 2003 it is inter alia held: citizenship is
a permanent, discontinued legal link between the person and the
state. It is the permanent (discontinued) legal link between the
citizen and the state that permits to distinguish this special
legal link from the legal link which appears between the state
and a foreigner or a stateless person, who resides in it either
permanently or temporarily: when the foreigner or the stateless
person leaves the state, his legal link with the state
discontinues. When the citizen leaves for another state, his
legal link with the state whose citizen he is persists.
Citizenship expresses legal membership of the person in the
state, reflects legal belongingness of the person to the nation
as a community organised into a state (state community). The link
between citizens and the state is mutual. State power can only
function when there is permanent jurisdiction over residents of
this state, the absolute majority of whom are, as a rule,
citizens of that state. The legal link with the state is
necessary to citizens so that all their rights and freedoms might
be guaranteed, which are enjoyed by citizens. Citizenship
determines the legal status of the person, enjoyment of
citizenship is a precondition for enjoyment of all rights and
freedoms entrenched in the Constitution and laws, and that for
performing established duties. Under the Constitution, certain
rights are enjoyed only by citizens: the right to participate in
the government of the state both directly and through their
democratically elected representatives (Paragraph 1 of Article
33), the right to present a proposal to alter or supplement the
Constitution of the Republic of Lithuania (Paragraph 1 of Article
147); the right to elect and be elected to the Seimas (Paragraph
1 of Article 34, Article 56); the right to elect and be elected
President of the Republic (Paragraph 1 of Article 34, Article 56,
Paragraphs 1 and 2 of Article 78); the right to be judges
(Paragraph 1 of Article 112); the right to enter into the state
service (Paragraph 1 of Article 33); the right to request that
referendum be announced (Paragraph 3 of Article 9); the right of
legislative initiative (Paragraph 2 of Article 68). The
Constitution and laws also establish certain other rights enjoyed
only by citizens of the Republic of Lithuania. Under the
Constitution, only citizens of the Republic of Lithuania also
have certain duties: the duty to defend the State of Lithuania
against a foreign armed attack (Paragraph 1 of Article 139 of the
Constitution); the duty to perform military or alternative
national defence service (Paragraph 2 of Article 139 of the
Constitution).
3.4. The following provisions and principles linked to the
security of the state, protection of the sovereignty and the
constitutional order, the foreign and defence policy of the state
which are consolidated in the Constitution, inter alia: the
Lithuanian Nation, having for centuries staunchly defended its
freedom and independence, has adopted and proclaimed the
Constitution (the Preamble to the Constitution), the State of
Lithuania shall be an independent democratic republic (Article
1), the State of Lithuania shall be created by the Nation;
sovereignty shall belong to the Nation (Article 2); no one may
restrict or limit the sovereignty of the Nation or make claims to
the sovereign powers belonging to the entire Nation (Paragraph 1
of Article 3); in implementing its foreign policy, the Republic
of Lithuania shall follow the universally recognised principles
and norms of international law, shall seek to ensure national
security and independence, the welfare of the citizens and their
basic rights and freedoms, and shall contribute to the creation
of the international order based on law and justice (Paragraph 1
of Article 135); the Republic of Lithuania shall participate in
international organisations provided that this is not in conflict
with the interests and independence of the state (Article 136);
there may not be any weapons of mass destruction and foreign
military bases on the territory of the Republic of Lithuania
(Article 137); the main issues of state defence shall be
considered and co-ordinated by the State Defence Council which
consists of the President of the Republic, the Prime Minister,
the Speaker of the Seimas, the Minister of National Defence, and
the Commander of the Armed Forces (Paragraph 1 of Article 140);
the Seimas shall impose martial law, announce mobilisation or
demobilisation, adopt a decision to use the armed forces when a
need arises to defend the Homeland or to fulfil the international
obligations of the State of Lithuania (Paragraph 1 of Article
142); in the event of an armed attack which threatens the
sovereignty of the state or its territorial integrity, the
President of the Republic shall immediately adopt a decision on
the defence against the armed aggression, impose martial law
throughout the state or in its separate part, announce
mobilisation, and submit these decisions to the next sitting of
the Seimas for approval, while in the period between sessions of
the Seimas he shall immediately convene an extraordinary session
of the Seimas (Paragraph 2 of Article 142); the state shall take
care of and provide for the servicemen who lost their health
during the military service as well as for the families of
servicemen who lost their lives or died during the military
service (Paragraph 1 of Article 146); the state shall also
provide for citizens who lost their health while defending the
state as well as for the families of the citizens who lost their
lives or died in defence of the state (Paragraph 2 of Article
146), imply a conclusion that independence of the state, its
territorial integrity and constitutional order are among the most
important constitutional values the protection of which is the
priority obligation of state power and all citizens. Ensuring the
implementation of this duty is a guarantee of the security of the
state. In order that the citizens who have the constitutional
duty to defend the state against a foreign armed attack could
properly implement this duty, they must be well-prepared for
that. Such preparation is ensured inter alia by the military
service.
Thus, the constitutional duty of citizens to perform
military or alternative national defence service which is
enshrined in Paragraph 2 of Article 139 of the Constitution is
not an end in itselfit is directly related to the duty to defend
the state against a foreign armed attack which is enshrined in
Paragraph 1 of Article 139 of the Constitution, as well as, in a
certain aspect, with the right of citizens to resist anyone who
encroaches on the independence, territorial integrity, and
constitutional order of the state which is enshrined in Paragraph
2 of Article 3 of the Constitution.
4. It needs to be noted that Paragraph 2 of Article 139 of
the Constitution provides for the duty to perform military or
alternative national defence service, however, the Constitution
does not expressis verbis establish all possible kinds of
military service, forms of the obligatory military service and
requirements for the subjects of military service. In the context
of the constitutional justice case at issue it needs to be noted
that the Constitution also does not expressis verbis enshrine the
duty to perform such obligatory military service which is named
in laws as obligatory initial military service. In the
Constitution the legislator is committed to establish the
organisation of national defence system. Thus, the Constitution
establishes the prerogative of the legislator so that he, while
heeding the norms and principles of the Constitution, would
establish the regulation of the national defence system, inter
alia military service.
4.1. In this context it needs to be noted that the
constitutional concept of the obligatory military service which
is enshrined in Paragraph 2 of Article 139 of the Constitution
may not be identified with the notion of the actual military
service which is used in Article 141 of the Constitution. The
grounds of organisation of the actual military service may be
very varied ones. In the context of the constitutional justice
case at issue it needs to be noted that the actual military
service may be organised both on the grounds of professional
military service and on the grounds of voluntary or obligatory
military service (or several said kinds of service). It is the
discretion of the legislator to establish the legal regulation of
organisation of the actual military service. However, no matter
how the actual military service is organised, the legislator must
establish such legal regulation that the constitutional purpose
of such serviceensuring the preparation to defend the state
against a foreign armed attack and its defencewould not be
denied.
4.2. While regulating by laws the relations linked to the
organisation of the national defence system, inter alia military
service, the legislator has a rather broad discretion. For
example, he may, by means of a law, establish kinds of military
service, forms of the obligatory military service, age, health
and other requirements for the subjects of military service,
procedure for performance of military service, conditions of
exemption from the obligatory military service linked to the
circumstances due to which citizens may not perform such service
(age, state of health, etc.).
4.3. However, also while implementing the said discretion,
the legislator must heed the norms and principles of the
Constitution. Such requirement arises for the legislator inter
alia from Paragraph 2 of Article 5 of the Constitution in which
it is established that the scope of power shall be limited by the
Constitution, and it also arises from the constitutional
principle of a state under the rule of law.
In its rulings the Constitutional Court has held more than
once that Article 5 of the Constitution consolidates inter alia
the principle of separation of powers; the constitutional
principle of separation of powers is the main principle of the
organisation and activity of a democratic state under the rule of
law; Paragraph 2 of Article 5 of the Constitution reflects not
only the constitutional principle of separation of powers, but
also the principle of supremacy of the Constitution and the
constitutional principle of a state under the rule of law; if the
legal regulation is established so that not only the powers of
the institution of state power pointed out in Paragraph 1 of
Article 5 of the Constitution are unreasonably expanded from the
constitutional standpoint, but also the powers of some other
state institution, one is also to hold that the provision of
Paragraph 2 of Article 5 of the Constitution that the scope of
power shall be limited by the Constitution is violated as well.
While construing Paragraph 2 of Article 5 of the
Constitution, the Constitutional Court has held more than once
that the Seimas, as the issuer of laws and other legal acts, is
independent insofar as its powers and its broad discretion are
not limited by the Constitution, inter alia the constitutional
principles of a state under the rule of law, separation of
powers, responsible governance, protection of legitimate
expectations, legal clearness, and other principles.
It needs to be emphasised that, while issuing laws, the
Seimas is bound by the Constitution, as well as by the laws that
it adopted itself. It is the essential element of the
constitutional principle of a state under the rule of law
(Constitutional Court rulings of 6 December 2000, 14 January 2002
and 24 January 2003).
4.4. The Constitutional Court has also held that, under Item
2 of Article 94 of the Constitution, the Government shall
implement laws and resolutions of the Seimas concerning the
implementation of laws, as well as the decrees of the President
of the Republic; under the Constitution, the Government, while
adopting legal acts, must follow the valid laws and, while
enforcing certain laws, it may not violate other laws; the legal
acts adopted by the Government, which are sub-statutory legal
acts, may not contain any legal regulation competing with that
established in laws; it is important that the Government adopt
sub-statutory legal acts without exceeding its powers, and that
these sub-statutory legal acts be in conformity with the
Constitution and laws; if the legal regulation established in the
Government resolutions competed with the legal regulation
established in the laws or if they were not grounded on the laws,
not only the constitutional principles of a state under the rule
of law and separation of powers and Item 2 of Article 94 of the
Constitution, but also Paragraph 2 of Article 5 of the
Constitution, in which it is established that the scope of power
shall be limited by the Constitution, would be violated.
4.5. As it has been mentioned, while implementing its
function of legislation, the legislator is bound by the
Constitution. If the legal regulation established by the
legislator were not grounded on the provisions and principles of
the Constitution, by such legal regulation one would also violate
the provision of Paragraph 2 of Article 5 of the Constitution and
the constitutional principle of a state under the rule of law. It
needs to be noted that these requirements which stem from the
Constitution are to be applied also to the Government when it
implements its constitutional powers to adopt sub-statutory legal
acts.
5. While construing the said provisions and principles of
the Constitution in the context of the constitutional justice
case at issue, it needs to be noted that, while implementing the
discretion to regulate the organisation of national defence which
is established in Paragraph 3 of Article 139 of the Constitution,
the legislator must heed the norms and principles of the
Constitutionin the laws one must establish such regulation of
organisation of the system of national defence, inter alia
military service (including obligatory military service), which
would ensure the protection of some of the main constitutional
valuesindependence of the state, territorial integrity and
constitutional orderand proper defence of the state against a
foreign armed attack.
In its ruling of 13 December 2004, the Constitutional Court
held that some state functions are performed, first of all (or in
majority of cases), through state (and municipal) civil
institutions, the othersthrough military and/or paramilitary
state institutions. It has also been held that, under the
Constitution, the state service is service to the State of
Lithuania and the civil Nation, therefore the state service
should be loyal to the State of Lithuania and its constitutional
order; the Constitution does not tolerate the situations where
any link of the system of the state service, any state or
municipal institution or individual state servants act contrary
to the interests of the State of Lithuania or violate the
constitutional order of the State of Lithuania. In the said
ruling it was also held that the constitutional imperative of
loyalty of the state service to the State of Lithuania raises
special requirements as well. State servants not only must not
violate the Constitution and laws themselves, but also bear the
duty to take all the necessary positive actions when protecting
the constitutional order of the State of Lithuania.
It has been mentioned that independence of the state, its
territorial integrity and constitutional order are among the most
important constitutional values the protection of which is the
priority obligation of state power and all citizens. Therefore,
in order to implement the function of protection of the state
which includes the protection of constitutional values as
priorities, one needs a separate institutional system formed from
the military or paramilitary state institutions. Service in this
system is one of the kinds of the constitutional institute of the
state service as a service for the State of Lithuania and the
civil Nation which also includes military service, which directly
ensures the implementation of the function of state defence.
Therefore, the main constitutional requirements raised for the
state service, inter alia the requirement of loyalty to the
state, are applied for the service in paramilitary or military
institutions.
In this context it needs to be noted that even though the
constitutional concept of the state service includes military
service, however, taking account of the constitutional importance
of the function of state defence which is implemented by military
service, which, as it has been mentioned, includes the protection
of the priority constitutional values, it is separated from the
system of the civil service.
The Constitutional Court has held that, under the
Constitution, military, paramilitary and security services are
separated from the civil service. The differentiated concept of
state civil institutions as well as state military and
paramilitary institutions is consolidated in the Constitution. It
provides the legal prerequisites for differentiated regulation of
relations, linked with the activity of state civil institutions
as well as state military and paramilitary institutions, and for
establishing the legal status of persons employed at state civil
and military as well as paramilitary institutions which would
have certain specific characteristics (Constitutional Court
rulings of 24 December 2002 and 13 December 2004).
In this context it needs to be noted that, under Article 140
of the Constitution, the main issues of state defence shall be
considered and co-ordinated by the State Defence Council which
consists of the President of the Republic, the Prime Minister,
the Speaker of the Seimas, the Minister of National Defence, and
the Commander of the Armed Forces. The State Defence Council
shall be headed by the President of the Republic (Paragraph 1);
the President of the Republic shall be the Commander-in-Chief of
the Armed Forces of the State (Paragraph 2); the Government, the
Minister of National Defence, and the Commander of the Armed
Forces shall be responsible to the Seimas for the administration
and command of the armed forces of the state (Paragraph 3); the
Minister of National Defence may not be a soldier who has not yet
retired to the reserve (Paragraph 3). It also needs to be noted
that, under Article 141 of the Constitution, persons performing
actual military service or alternative service, as well as
officers of the national defence system, the police and the
interior, non-commissioned officers, re-enlistees, and other paid
officials of paramilitary and security services who have not
retired to the reserve may not be Members of the Seimas or
members of municipal councils, and they may not hold elected or
appointed office in the state civil service.
6. The aforementioned provisions and principles consolidated
in the Constitution linked to the security of the state,
protection of sovereignty and constitutional order, the state
foreign and defence policy, organisation of the system of
national defence, as well as the aforementioned statements of the
official constitutional doctrine linked to the construction of
the constitutional concept of state service, imply the
constitutional concept of military service which includes the
following most important aspects: military service is intended
for the implementation of the defensive functions of the state,
therefore, it is one of the kinds of state service, however, it
is separated from the civil service; military service guarantees
protection of some of the main constitutional valuesindependence
of the state, territorial integrity and constitutional orderand
proper defence of the state against a foreign armed attack;
subjects of military service have a specific legal status,
special requirements are raised to them and prohibitions are
established, inter alia the constitutional prohibition to be
Members of the Seimas or members of municipal councils and to
hold elected or appointed office in the state civil service which
is consolidated in Article 141 of the Constitution; the legal
regulation of the military service which is one of the grounds of
the national defence system is a constitutional prerogative of
the legislator enshrined in Paragraph 3 of Article 139 of the
Constitution.
7. It needs to be noted that from the Constitution, inter
alia the provisions of Articles 3, 139, 141 and 142 thereof, a
duty stems for the legislator to establish such legal regulation
whereby the Republic of Lithuania would have regular, well-
organised armed forces able to implement the constitutional
functions, inter alia the obligation to defend the state against
a foreign armed attack. However, the legislator, while regulating
the relations linked to the organisation of the national defence,
inter alia the armed forces, has a rather broad discretion. In
the context of the constitutional justice case at issue, it needs
to be noted that the legislator, while heeding the norms and
principles of the Constitution, may choose various models of the
armed forces and forms of military service. The Constitution does
not prohibit establishing such legal regulation under which the
Lithuanian armed forces whose purpose is to protect and defend
the state and its citizens from the armed attack would be
organised on the grounds of professional and voluntary military
service. Article 139 of the Constitution may not be interpreted
as meaning that the armed forces must be organised only on the
grounds of obligatory military service and that it is a duty of
every citizen to perform such obligatory military service which
is named in laws as the obligatory initial military service.
7.1. It also needs to be noted that the legislator, having
enshrined in the law such model of organisation of the armed
forces, under which the armed forces are organised on the grounds
of professional and voluntary military service, must heed the
provisions of the Constitution, inter alia the imperative
enshrined in Paragraph 1 of Article 139 of the Constitution that
the defence of the State of Lithuania against a foreign armed
attack shall be the right and duty of each citizen of the
Republic of Lithuania. In this context it needs to be emphasised
that the formation of the armed forces organised on the grounds
of professional and voluntary military service does not deny the
constitutional obligation of citizens to defend the State of
Lithuania against a foreign armed attack, while at the same time
the legislator is not exempted from the duty to establish such
legal regulation whereby legal preconditions would be created to
prepare the citizens properly for the implementation of this
constitutional obligation.
In the acts of the Constitutional Court, it has been more
than once held that:
- the Constitution as a legal act is expressed in a certain
textual form, it has certain linguistic expression, however, as
it is not permitted to treat law as a mere text, thus it is not
permitted to treat the Constitution only as its textual form
(rulings of 25 May 2004 and 16 January 2006);
- it is impossible to construe constitutional norms and
principles on the basis of the legal acts adopted by the
legislator and other entities of law-making, as thus the
supremacy of the Constitution in the legal system is denied
(rulings of 12 July 2001, 1 July 2004, 13 December 2004, decision
of 10 February 2005 and ruling of 28 March 2006).
7.2. While interpreting these doctrinal provisions in the
context of this constitutional justice case at issue, it needs to
be held that that the formula "Citizens of the Republic of
Lithuania must perform military <...> service" enshrined in
Paragraph 2 of Article 139 of the Constitution may not be
construed in the same way as the concept of the obligatory
military service is interpreted in ordinary law. While construing
this formula which is enshrined in the Constitution, one must
heed the constitutional meaning and purpose of the institute of
military service. As it has been mentioned, the constitutional
purpose of military service, inter alia obligatory military
service, is to ensure the preparation to defend the state against
a foreign armed attack and its defence. The obligatory military
service is necessary so that the citizens would be prepared to
defend the state, however, it does not mean that the preparation
may be implemented only in one wayby performing the obligatory
initial military service and that each citizen has the duty to
perform namely the obligatory initial military service. The
constitutional duty of the citizens to perform military service
and to prepare for the defence of the state against a foreign
armed attack may be implemented in various forms the variety of
which is implied inter alia by the variety of means of the
state's defence. Therefore, the legislator, while regulating the
relations linked to military service, must heed the
constitutional purpose of this service and establish such legal
regulation which would ensure the implementation of the
constitutional purposes of military service, i.e. proper
preparation of citizens for the defence of the state against a
foreign armed attack. In this context it needs to be noted that,
as it has been mentioned, while regulating the relations of
military service, the legislator may inter alia establish the
conditions for exemption from the obligatory military service
linked to the objective circumstances due to which the citizens
may not perform such service, i.e. age, state of health, etc.
8. The Constitution, inter alia Article 142 thereof,
consolidates the institute of mobilisation. The concept of
mobilisation is universally interpreted as meaning the
preparation of the systems of state governance and economy, as
well as of the armed forces for martial law, inter alia by
calling up the citizens of the state to the armed forces when
there is a threat of the armed attack against the state or a war
begins. Under the Constitution, inter alia Articles 139 and 142
thereof, the purpose of mobilisation is to organise the defence
of the state against a foreign armed attack. One of the means to
ensure mobilisation is call-up of citizens to perform obligatory
military service. In this context, it needs to be noted that the
legislator has the constitutional duty to regulate by laws the
procedure of performance of the obligatory military service in
the event of mobilisation which would ensure the defence of the
state from the armed aggression. In addition, the legislator must
establish also such legal regulation whereby legal preconditions
would be created to properly prepare the citizens in advance so
that when the mobilisation is announced, they could properly
implement their constitutional duty to defend the state.
Therefore, in the state there must be not only the regular armed
forces, but also a necessary number of citizens properly prepared
to defend the state.
9. While regulating the institute of the obligatory military
service, the legislator has to take account not only of the
provisions of Paragraph 2 of Article 139 of the Constitution
which inter alia enshrines certain constitutional grounds of the
obligatory military service, but also of other provisions of the
Constitution, constitutional values and constitutional
principles, inter alia of the constitutional principles of the
State of Lithuania, its independence, territorial integrity,
defence of constitutional order and national defence. The
protection of the said constitutional values is ensured inter
alia by establishing the system of military service and
preparation of citizens to defend the state which also includes
the institute of the obligatory military service. Therefore,
while regulating the legal relations of the system of national
defence, inter alia military service, the legislator must heed
the constitutional provisions and principles which oblige to
ensure proper national defence. Thus, such legal regulation must
be established by taking account of the geopolitical situation
and other factors which influence state security. The legislator
must assess possible threats for the state security, the long-
term political processes, the state's participation in the
organisations of mutual assistance of states, the international
obligations of the state in the missions ensuring security and
peacekeeping, etc.
Only such legal regulation of the national defence system,
inter alia military service, would not be in conflict with the
Constitution, which would be established taking account of
possible threats for the state's security and ensure the defence
of the state against a foreign armed attack, inter alia proper
preparation of citizens for the defence of the state against a
foreign armed attack.
10. In this context it needs to be noted that the notion of
preparation of citizens to defend the state is rather broad,
including not only the preparation of citizens to defend the
state against a foreign armed attack by means of an arm.
Preparation to defend the state may not be understood only as
service for gaining military preparation. The needs and means of
the national defence may be very diverse, including not only the
expansion of the armed forces and of the armament in order to
strengthen the military power of the state, but also the
information-technological, industrial and other means of similar
nature which are not directly linked to the armed defence, which
in certain aspect determine the strengthening of the military
power of the state. This diversity also determines the diversity
of the specific ways of preparation of citizens for the state's
defence.
11. In this Constitutional Court ruling, it was inter alia
held that:
- the constitutional order of the Republic of Lithuania is
based on the priority of the rights and freedoms of individuals
and citizens as the ultimate value;
- the link between citizens and the state is mutual; the
legal link with the state is necessary to citizens so that all
their rights and freedoms might be guaranteed, which are enjoyed
by citizens; citizenship determines the legal status of the
person; the permanent legal link between the person and the state
which is expressed by citizenship implies the duty of the state
to protect its citizen within the country as well as outside its
borders;
- the right of citizens of the Republic of Lithuania
enshrined in Paragraph 2 of Article 3 of the Constitution is
linked to their right and duty to defend the State of Lithuania
against a foreign armed attack which is enshrined in Paragraph 1
of Article 139 of the Constitution, and also with the
constitutional duty of citizens of the Republic of Lithuania to
perform military or alternative national defence service
(Paragraph 2 of Article 139).
11.1. These doctrinal statements, which are related to the
concepts of constitutional rights and freedoms, the link between
the citizens and the state, the rights and duties of citizens and
which are interpreted in the context of this constitutional
justice case at issue, lead to a conclusion that for the citizens
who perform their constitutional duties, inter alia the duty to
defend the state against a foreign armed attack, preconditions
must be created to prepare properly for the performance of this
duty. Otherwise, i.e. without having properly prepared the
citizens to perform their constitutional duty to defend the state
against a foreign armed attack, there would be inter alia not
only a groundlessly big threat for the health and/or life of the
citizens who, while being not prepared properly, were called up
to defend their country against a foreign armed attack, but also
such citizens would, in general, be unable to perform the
obligation to defend their state which stems for them from the
Constitution and, therefore, one would deny the duty which is
enshrined in Paragraph 1 of Article 139 of the Constitution.
11.2. Thus, the discretion of the legislator to establish
the legal regulation of organisation of the national defence
system, inter alia military service and state defence against a
foreign armed attack which would in certain cases be implemented
also by way of mobilisation which is provided for in the
Constitution, must be implemented by taking account of the
constitutional rights of a citizen, of the right of a citizen to
perform his duty to defend the state (inter alia obligatory
military service in the event of mobilisation) while being
properly prepared to do so.
11.3. Therefore, in the context of the constitutional
justice case at issue it needs to be noted that when the
legislator reorganises the national defence system, inter alia by
switching to the armed forces organised on the grounds of
professional and voluntary military service and providing for
additional grounds of postponement of the obligatory initial
military service, a duty to him arises from the Constitution,
inter alia from the constitutional principles of a state under
the rule of law, separation of powers, responsible governance,
protection of legitimate expectations, legal clarity and from
other principles, to establish such legal regulation of the
system of military service, which would establish efficient means
(which are different from the obligatory initial military
service, for example, obligatory military trainings,
participation in the activity of a corresponding organisation
which is attributed to the national defence system, general
events of the national defence system, etc.) of preparation of
citizens who have the duty to perform obligatory military service
to defend the statethe means which would ensure proper
preparation of citizens to perform the constitutional duty to
defend the state against a foreign armed attack (inter alia in
the event of mobilisation).
IV
On the compliance of the provisions of the fifth, sixth and
eighth paragraph of the Seimas Resolution "On the Principles of
Organisation of the Lithuanian Armed Forces" of 13 March 2008
with Paragraph 2 of Article 3, Paragraph 2 of Article 5 and
Paragraphs 1 and 2 of Article 139 of the Constitution, and with
the constitutional principle of a state under the rule of law.
1. The petitioner requests to investigate the compliance of
the provision of the fifth paragraph of the Resolution "it is
expedient to switch to the Lithuanian armed forces organised on
the grounds of professional and volunteer military service", the
provision of the sixth paragraph thereof to the extent that it
provides to retain the obligatory military service only in case
of mobilisation and to reconsider the need of the obligatory
initial military service every year by approving the margin
numbers of soldiers by a Seimas decision and the provision of the
eighth paragraph thereof to the extent that it proposes that the
Government present the Seimas the margin numbers of soldiers for
approval, established after having taken account of the needs of
switching to the armed forces organised on the grounds of
professional and volunteer military service, with Paragraph 2 of
Article 3, Paragraph 2 of Article 5 and Paragraphs 1 and 2 of
Article 139 of the Constitution, and with the constitutional
principle of a state under the rule of law.
The petitioner disputes the constitutionality of the said
provisions of the Resolution in the aspect that these provisions
provide to suspend the obligatory initial military service and
the performance of this service is actually already being
suspended. However, in the opinion of the petitioner, the
legislator did not provide for any efficient alternatives of the
obligatory initial military service which would create the
conditions for the Nation and citizens to implement the rights
and duties provided for in Paragraph 2 of Article 3 and Paragraph
1 of Article 139 of the Constitution which are linked to the
defence of the Homeland.
2. The disputed provisions of the Resolution enshrine the
following statements:
- it is expedient to switch to the Lithuanian armed forces
organised on the grounds of professional and volunteer military
service (fifth paragraph);
- it is provided to retain the obligatory military service
only in case of mobilisation and to reconsider the need of the
obligatory initial military service every year by approving the
margin numbers of soldiers by a Seimas decision (sixth
paragraph);
- it is proposed that the Government present the Seimas with
the principal structure of the armed forces of the next year
including the margin numbers of soldiers for approval established
after having taken account of the needs of switching to the armed
forces organised on the grounds of professional and volunteer
military service (eighth paragraph).
3. According to Paragraph 1 of Article 182 of the Statute of
the Seimas (wording of 22 December 1998), the resolution is a
non-normative act of the Seimas which is adopted when one seeks
to approve in writing an opinion of the Seimas on any question
which is important to the state.
4. In the Resolution which is disputed in this
constitutional justice case at issue, one sets forth a certain
position of the Seimas on the question of organisation of the
armed forces and presents the Government the proposals regarding
the creation of drafts of the corresponding legal regulation.
Therefore, this Seimas Resolution is not a normative legal act
directly raising legal consequences. This legal act was adopted
by the Seimas, as the legislator, who is, according to Paragraph
3 of Article 139 of the Constitution, empowered to regulate by
laws the organisation of national defence. The said legal act
provides for certain tendencies in the policy of organisation of
military service and creates preconditions to establish a certain
legal regulation. It also needs to be noted that the
constitutionality of this act is one of the preconditions of the
constitutionality of the legal regulation prepared on the grounds
of this Resolution.
Thus, the constitutionality of the disputed provisions of
the Resolution which do not enshrine a legal regulation (legal
norms) directly influencing the legal relations is to be assessed
in the aspect of the compliance of their content on the grounds
of which the procedures of law-making should take place with the
Constitution.
5. It has been mentioned that, under the Constitution, the
legal regulation of national defence must be established taking
account of the geopolitical situation and other factors which
influence state security. The legislator must assess possible
threats for the state security, the long-term political
processes, the state's participation in the organisations of
mutual assistance of states, the international obligations of the
state in the missions ensuring security and peacekeeping, etc.
Only such legal regulation of the national defence system, inter
alia military service, would not be in conflict with the
Constitution, which would be established while taking account of
possible threats for the state's security and which would ensure
the defence of the state against a foreign armed attack, inter
alia which would ensure proper preparation of citizens for the
defence of the state against a foreign armed attack.
Therefore, when adopting the legal acts, inter alia the
Resolution, whereby he provides to reorganise the national
defence system by switching to the armed forces organised on the
grounds of the professional and voluntary military service, the
legislator must assess the geopolitical situation of the state
from the point of view of reality and the possibilities of state
defence.
6. It has been mentioned that the Republic of Lithuania is a
member of NATOan organisation of collective defence. The
principle of collective self-defence which may be considered as
the basis of the whole North Atlantic Treaty, as well as that of
NATO activity, is enshrined in Article 5 of the Treaty whereby
the Parties agree that an armed attack against one or more of
them in Europe or North America shall be considered an attack
against them all. If such an armed attack occurs, each of them,
in exercise of the right of individual or collective self-defence
recognised by Article 51 of the Charter of the United Nations,
will assist the Party or Parties so attacked by taking forthwith,
individually and in concert with the other Parties, such action
as it deems necessary, including the use of armed force, to
restore and maintain the security of the North Atlantic area.
The said guarantees of the article of the North Atlantic
Treaty applied to the Republic of Lithuania ensure the assistance
of other 27 members of NATO in the event of an armed attack.
Having ratified the North Atlantic Treaty, the Republic of
Lithuania not only received additional collective security
guarantees, but also assumed obligations to assist the attacked
parties in concert with other parties of this treaty.
7. Therefore, the Republic of Lithuania, while seeking to
protect the values which are expressis verbis enshrined in the
Constitutionindependence of the state, territorial
inviolability, constitutional ordermust organise the national
defence system, inter alia military service, so that the state
would have the units which would be well-prepared, regular, ready
to expeditiously react to threats for state security and which
would be formed on the grounds of military service. These may be
armed forces formed on the grounds of voluntary military service
and obligatory military service or professional military service
(or on the grounds of a few said kinds of service) able to
implement the functions of state defence. Under the Constitution,
inter alia Paragraph 2 of Article 139 thereof, a concrete model
of the armed forces must be established by the legislator.
It also needs to be noted that the obligation for the
Republic of Lithuania to organise the national defence system so
that there would be regular, well-prepared units formed on the
grounds of military service stems also from the international
obligations assumed by Lithuania, inter alia provided for in the
North Atlantic Treaty ratified by the Republic of Lithuania, to
participate in the collective defence operations, peacekeeping
missions, etc. The international documents, inter alia the North
Atlantic Treaty, do not include the requirement for the states to
choose a concrete model of the armed forces.
8. As it has been mentioned, while regulating the
organisation of military service by laws, one must ensure the
institute of military obligation (obligatory military service)
provided for in Paragraph 2 of Article 139 of the Constitution,
whose forms are not expressis verbis determined in Paragraph 2 of
Article 139 of the Constitution. In this context it needs to be
noted that the disputed Resolution does not expressis verbis
provide for abolition of the institute of the obligatory military
service. In the disputed provision of the sixth paragraph of the
Resolution, the legislator expressed the position regarding the
reorganisation of the armed forces linked inter alia to the
regular reconsideration of the need of performance of the
obligatory initial military service (by approving the margin
number of soldiers of such service by a law every year) relating
that also with the financial possibilities of the state.
9. It has also been mentioned that from the provisions of
the Constitution enshrined inter alia in Paragraph 1 of Article
139 and Article 142 it also follows that when, under the
procedure established by laws mobilisation is announced, inter
alia in the event of a foreign armed attack, a constitutional
duty stems for the citizens to perform the obligatory military
service. The legislator has the constitutional obligation to
regulate by laws the procedure of performance of the obligatory
military service in the event of mobilisation which would ensure
the defence of the state from an armed aggression. Taking account
of that it also needs to be noted that the legislator must
establish such legal regulation whereby legal preconditions would
be created to properly prepare the citizens for mobilisation.
10. In this context it needs to be noted that, as it has
already been mentioned in this Constitutional Court ruling, for
the citizens who implement their constitutional duties, inter
alia the duty to defend the state against a foreign armed attack,
preconditions must be created to prepare properly for the
performance of this duty. Otherwise, i.e. without having properly
prepared the citizens to perform their constitutional duty to
defend the state against a foreign armed attack, there would be
inter alia not only a groundlessly big threat for the health
and/or life of the citizens who, while being not prepared
properly, were called up to defend their country against a
foreign armed attack, but also such citizens would, in general,
be unable to perform the obligation to defend their state which
stems for them from the Constitution. Thus, the discretion of the
legislator to establish the legal regulation of organisation of
the national defence system, inter alia military service and
state defence against a foreign armed attack which would in
certain cases be implemented also by way of mobilisation which is
provided for in the Constitution, must be implemented by taking
account of constitutional rights of a citizen, inter alia by
taking account of the right of a citizen to perform his duty to
defend the state (inter alia obligatory military service in the
event of mobilisation) while being properly prepared to do so.
11. Therefore, as it has been mentioned, even if the
legislator decides to suspend (postpone) the call-up to the
obligatory initial military service, a duty to him arises from
the Constitution, inter alia from the constitutional principles
of a state under the rule of law, separation of powers,
responsible governance, protection of legitimate expectations,
legal clarity and from other principles, to establish such legal
regulation of the system of military service, which would
establish efficient means (which are different from the
obligatory initial military service, for example, obligatory
military trainings, participation in the activity of a
corresponding organisation which is attributed to the national
defence system, general events of the national defence system,
etc.) of preparation of citizens who have the duty to perform
obligatory military service to defend the statethe means which
would ensure proper preparation of citizens to perform the
constitutional duty to defend the state against a foreign armed
attack (inter alia in the event of mobilisation).
12. The Resolution does not provide for any concrete means
of preparation of citizens to defend the state against a foreign
armed attack. However, the Resolution does not deny the duty of
citizens to defend the state from an armed attack, nor does it
deny the obligation of the legislator to establish the legal
regulation ensuring the preparation of citizens to defend the
state.
It needs to be noted that taking account of the specificity
of the Resolution, as not a normative, but a programme document,
reflecting the legislator's will on certain political tendencies,
the legal regulation of the system of the means of preparation
for the defence of the state is not a subject of the Resolution.
The said questions of the legal regulation must be decided in
normative legal acts adopted by the legislator.
13. On the other hand, as it has been mentioned, the
Resolution was adopted by the Seimas, as the legislator, who is,
according to Paragraph 3 of Article 139 of the Constitution,
empowered to regulate by laws the organisation of national
defence. The said legal act provides for certain tendencies in
the policy of organisation of military service and creates
preconditions for corresponding legislative processes. It also
needs to be noted that the constitutionality of this act is one
of the preconditions of the constitutionality of the legal
regulation prepared on the grounds of this Resolution.
14. In this context it needs to be noted that in the seventh
paragraph of the Resolution it is emphasised that "civil and
national education, strengthening of the volunteer military
service and the activity of the Lithuanian Riflemen's Union is
necessary in order to increase the defence power of the state."
Therefore, the legislator, having expressed his position
regarding reorganisation of the military service in the course of
switching to the armed forces organised on the grounds of
professional and volunteer military service by the provisions
disputed in this constitutional justice case, also emphasised the
importance of the civil education necessary for strengthening the
defence power of the state. Such position of the legislator
creates preconditions to decide that he seeks to implement the
reform of military service by deciding, in a complex manner, the
questions linked to the organisation of the armed forces on the
grounds of other kinds of service than the obligatory initial
military service and to the preparation of citizens by means
different than the obligatory initial military service.
15. Therefore, the fact that in the disputed Resolution one
does not provide for means (which are different than the
obligatory initial military service) of preparation of citizens
to defend the state against a foreign armed attack is not the
grounds to hold that the disputed provisions enshrined in the
Resolution, under which one provides to reorganise military
service by organising the armed forces on the grounds of
professional and volunteer military service, are in conflict with
the provisions of Paragraph 2 of Article 3 and Paragraph 2 of
Article 139 of the Constitution enshrining the rights and duties
of citizens linked to the state defence as well as with Paragraph
2 of Article 5 of the Constitution and with the constitutional
principle of a state under the rule of law. The legislator, while
implementing the discretion to regulate the national defence
system enshrined in Paragraph 3 of Article 139 of the
Constitution and when establishing the guidelines for
organisation of military service, did not deviate from the
constitutional duty to provide for the system of legal means of
the state defence taking account of the circumstances linked to
the possible threats for state defence which stems from Paragraph
2 of Article 5 of the Constitution and the constitutional
principle of a state under the rule of law when these provisions
of the Constitution are construed together with Paragraphs 1 and
2 of Article 139 of the Constitution.
16. Taking account of the arguments set forth, one is to
draw a conclusion that the provision of the fifth paragraph of
the Resolution "it is expedient to switch to the Lithuanian armed
forces organised on the grounds of professional and volunteer
military service", the provision of the sixth paragraph thereof
to the extent that it provides to retain the obligatory military
service only in case of mobilisation and to reconsider the need
of the obligatory initial military service every year by
approving the margin numbers of soldiers by a Seimas decision,
and the provision of the eighth paragraph thereof to the extent
that it proposes that the Government present the Seimas the
margin numbers of soldiers for approval, established after having
taken account of the needs of switching to the armed forces
organised on the grounds of professional and volunteer military
service, are not in conflict with Paragraph 2 of Article 3,
Paragraph 2 of Article 5 and Paragraphs 1 and 2 of Article 139 of
the Constitution, and with the constitutional principle of a
state under the rule of law.
V
On the compliance of the provision of Item 18 of the
Conception of the Republic of Lithuania Law on Military
Conscription of the New Wording approved by Government Resolution
No. 620 "On Approving the Conception of the Republic of Lithuania
Law on Military Conscription of the New Wording" of 18 June 2008
with Paragraph 2 of Article 3, Paragraph 2 of Article 5 and
Paragraphs 1 and 2 of Article 139 of the Constitution, and with
the constitutional principle of a state under the rule of law.
1. The petitioner requests to investigate the compliance of
the provision "shall establish the additional new grounds of
postponement of the obligatory initial military service which
will provide that the obligatory initial military and alternative
service of the national defence may be postponed for all the
conscripts if the law which regulates the principal structure of
the armed forces of the corresponding year provides that the
margin number of soldiers of the obligatory initial military
service is 0" of Item 18 of the Conception with Paragraph 2 of
Article 3, Paragraph 2 of Article 5 and Paragraphs 1 and 2 of
Article 139 of the Constitution, and with the constitutional
principle of a state under the rule of law.
2. The petitioner disputes the constitutionality of the said
provision of the Conception in the aspect that if the Government
provides for the possibility for the citizens of the Republic of
Lithuania not to perform the obligatory initial military service,
they may be unprepared to implement the constitutional duty to
defend the State of Lithuania against a foreign armed attack.
3. It has been mentioned that the Conception, the provision
of Item 18 whereof is disputed in this constitutional justice
case, discusses the general characteristics of the subject of
regulation and aims of the Republic of Lithuania Law on Military
Conscription of the new wording; it specifies the legal acts
which regulate military conscription at present; it contains an
analysis of insufficient efficiency of the legal norms which are
proposed to be annulled or amended, it also contains a review of
the law-making of foreign states, an analysis of the legal norms
and principles of international law and European Union law; it
discusses the main provisions of regulation of social relations,
possible consequences of the anticipated legal regulation, it
gives financial and economic reasoning, it provides for the
structure of the law and legal acts which are expected to be
amended or annulled.
4. The Conception was prepared while implementing the Seimas
Resolution "On the Principles of Organisation of the Lithuanian
Armed Forces" of 13 March 2008 and Item 880 of the Measures of
the Implementation of the 2006-2008 Programme of the Government
approved by Government Resolution No. 1020 "On Approving the
Measures of the Implementation of the 2006-2008 Programme of the
Government of the Republic of Lithuania" of 17 October 2006 which
provides for the measureto prepare the Draft of the Republic of
Lithuania Law on Amending the Law on Military Conscription by
taking into account the changing needs of the system of
administration of military conscription and creation of the
system of recruitment and incentive.
5. The Conception is a non-normative legal act in which only
certain guidelines of law-making linked to the regulation of
military obligation are provided for. In the Conception it is
defined what concrete provisions should be enshrined in the Law
on Military Conscription of the new wording, what amendments and
supplements of the legal acts are necessary seeking to implement
the Law on Military Conscription of the new wording, it is
specified which institution (the Ministry of National Defence)
would be responsible for preparation of draft legal acts
specified in the Conception (Item 42 of the Conception). Thus, by
this act one enshrines the ground of establishment of amendments
of the legal regulation linked to organisation of military
service and obligations for law-making subjects. Therefore, the
compliance of the Conception with the Constitution is important
from the viewpoint of constitutionality of the legal acts which
should be prepared and adopted when implementing this Conception.
Thus, the constitutionality of the disputed provision of the
Conception which does not consolidate the legal regulation (legal
norms) that directly influences the legal relations is to be
assessed in the aspect of the compliance of its content, on the
grounds of which law-making procedures should take place, with
the Constitution.
6. The amendments of the laws regulating the organisation of
the system of military obligation that are proposed in the
Conception are linked also to the provisions of the Seimas
Resolution which are disputed in the case at issue (Item 3.1 of
the Conception), inter alia they are linked to the provisions,
according to which it is provided to retain the obligatory
military service only in case of mobilisation and to reconsider
the need of the obligatory initial military service every year by
approving the margin numbers of soldiers by a Seimas decision
(sixth paragraph of the Resolution); it is proposed that the
Government prepare the necessary draft amendments to the laws
(eighth paragraph of the Resolution).
Therefore, the disputed Conception was prepared while
implementing the proposals of the legislator linked inter alia to
the reorganisation of the system of military service.
7. In the provision of Item 18 of the Conception, which is
disputed by the petitioner, it is provided to establish in the
law the additional new grounds of postponement of the obligatory
initial military service which will provide that the obligatory
initial military and alternative service of the national defence
may be postponed for all the conscripts if the law which
regulates the principal structure of the armed forces of the
corresponding year provides that the margin number of soldiers of
the obligatory initial military service is 0.
8. Therefore, in the disputed provision of the Conception
one presents the proposal to provide for a possibility in the law
to postpone the obligatory initial military and alternative
service of the national defence for all the conscripts if the law
which regulates the principal structure of the armed forces of
the corresponding year provides that the margin number of
soldiers of the obligatory initial military service is 0. Such
proposal which is presented in the Conception complies by its
content with the provisions of the Seimas Resolution regarding
the retaining of the obligatory military service only in case of
mobilisation and reconsideration of the need of the obligatory
initial military service every year by approving the margin
numbers of soldiers by a Seimas decision which are disputed in
this constitutional justice case. Thus, in the disputed provision
of the Conception one proposed a model of law-making which
essentially reiterated the position of the legislator set forth
in the Seimas Resolution.
9. It needs to be noted that, as it has been mentioned, the
Conception was prepared while implementing the proposals of the
legislator who has the discretion to establish the legal
regulation of the national defence system, inter alia the
organisation of military service, for the Government to prepare
the necessary draft laws which were set forth in the adopted
Resolution. In addition, the Conception does not enshrine a legal
regulation (legal norms) which directly influence the legal
relations, it is a non-normative legal act which provides for
only certain guidelines of law-making linked to the regulation of
military obligation. Therefore, while approving the Conception
whose provision is disputed in this constitutional justice case,
the Government did not exceed the limits of its competence and
did not violate the constitutional principles of limitation of
powers of the authority, separation of powers and a state under
the rule of law.
10. In this Constitutional Court ruling it has been held
that the disputed provisions of the Resolution, in the course of
the implementation of which the Conception was prepared, are not
in conflict with Paragraph 2 of Article 3, Paragraph 2 of Article
5 and Paragraphs 1 and 2 of Article 139 of the Constitution and
with the constitutional principle of a state under the rule of
law.
11. Therefore, there are no sufficient grounds to state that
the disputed provision of the Conception denies the duty of
citizens to defend the state which stems from the Constitution,
inter alia Paragraph 2 of Article 3 and Paragraphs 1 and 2 of
Article 139 thereof, and violates Paragraph 2 of Article 5 of the
Constitution and the constitutional principle of a state under
the rule of law.
12. Taking account of the arguments set forth, one is to
draw a conclusion that the provision "shall establish the
additional new grounds of postponement of the obligatory initial
military service which will provide that the obligatory initial
military and alternative service of the national defence may be
postponed for all the conscripts if the law which regulates the
principal structure of the armed forces of the corresponding year
provides that the margin number of soldiers of the obligatory
initial military service is 0" of Item 18 of the Conception is
not in conflict with Paragraph 2 of Article 3, Paragraph 2 of
Article 5 and Paragraphs 1 and 2 of Article 139 of the
Constitution, and with the constitutional principle of a state
under the rule of law.
VI
On the compliance of Item 2 of Paragraph 2 of Article 3 of
the Law on Establishing the Principal Structure of the Armed
Forces in 2008, Establishing the Planned Principal Structure of
the Armed Forces in 2013 and Approving the Margin Number of
Statutory Servants in the Civil National Defence Service and Item
2 of Paragraph 2 of Article 3 of the Law on Establishing the
Principal Structure of the Armed Forces in 2009, Establishing the
Planned Principal Structure of the Armed Forces in 2014 and
Approving the Margin Number of Statutory Servants in the Civil
National Defence Service with Paragraph 2 of Article 3, Paragraph
2 of Article 5 and Paragraphs 1 and 2 of Article 139 of the
Constitution and with the constitutional principle of a state
under the rule of law.
1. The petitioner requests to investigate the compliance of
Item 2 of Paragraph 2 of Article 3 of the Law on the Planned
Principal Structure of the Armed Forces in 2013 and Item 2 of
Paragraph 2 of Article 3 of the Law on the Planned Principal
Structure of the Armed Forces in 2014, under which the
established margin number of soldiers of the obligatory initial
military service correspondingly in 2013 and 2014 shall be 0,
with Paragraph 2 of Article 3, Paragraph 2 of Article 5 and
Paragraphs 1 and 2 of Article 139 of the Constitution and with
the constitutional principle of a state under the rule of law.
According to the petitioner, under the disputed provisions
of the said laws, in 2013 and 2014 there will be no initial
military obligation, therefore, the citizens will not be prepared
for the implementation of the rights and duties linked to the
defence of the Homeland which are established in Paragraph 2 of
Article 3 and Paragraph 1 of Article 139 of the Constitution.
2. The disputed Item 2 of Paragraph 2 of Article 3 of the
Law on the Planned Principal Structure of the Armed Forces in
2013 provides that the margin number of soldiers of the
obligatory initial military service in 2013 shall be 0. The
disputed Item 2 of Paragraph 2 of Article 3 of the Law on the
Planned Principal Structure of the Armed Forces in 2014 provides
that the margin number of soldiers of the obligatory initial
military service in 2014 shall be 0.
3. As it has been mentioned, according to the Resolution and
the Conception, it is provided to retain the obligatory military
service only in case of mobilisation, to reconsider the need of
the obligatory initial military service every year by approving
the margin numbers of soldiers by a Seimas decision and to
postpone the obligatory initial military and alternative service
of the national defence for all the conscripts if the law which
regulates the principal structure of the armed forces of the
corresponding year provides that the margin number of soldiers of
the obligatory initial military service is 0. As it has been
mentioned, under the disputed provisions of the Law on the
Planned Principal Structure of the Armed Forces in 2013 and the
Law on the Planned Principal Structure of the Armed Forces in
2014, the margin number of soldiers of the obligatory initial
military service correspondingly in 2013 and 2014 shall be 0.
Thus, these laws provide for the postponement of the call-up to
the obligatory initial military service in 2013 and 2014,
however, the institute of the obligatory initial military service
is not abolished.
4. In this Constitutional Court ruling, the following has
been mentioned:
- under the Constitution, the legal regulation of national
defence must be established by taking account of the geopolitical
situation and other factors which influence state security. The
legislator must assess possible threats for state security, the
long-term political processes, the state's participation in the
organisations of mutual assistance of states, the international
obligations of the state in the missions ensuring security and
peacekeeping, etc.;
- only such legal regulation of the national defence system,
inter alia military service, would not be in conflict with the
Constitution, which would be established by taking account of
possible threats for the state's security and which would ensure
the defence of the state against a foreign armed attack, inter
alia which would ensure proper preparation of citizens for the
defence of the state against a foreign armed attack;
- the Republic of Lithuania, both seeking to protect the
values which are expressis verbis enshrined in the Constitution
independence of the state, territorial inviolability,
constitutional orderand implementing the constitutionally
grounded obligations which stem from the international treaties,
must organise the national defence system, inter alia military
service, so that the state would have the units which would be
well-prepared, regular, ready to expeditiously react to threats
for state security and which would be able to participate in the
collective defence operations that would be formed on the grounds
of military service;
- while construing the formula "citizens of the Republic of
Lithuania must perform military <...> service" enshrined in
Paragraph 2 of Article 139 of the Constitution, one must heed the
constitutional meaning and purpose of the institute of military
service; Paragraph 2 of Article 139 of the Constitution provides
for the duty to perform military or alternative national defence
service, however, the Constitution does not expressis verbis
establish all possible kinds of military service, forms of the
obligatory military service and requirements for the subjects of
military service; the Constitution does not expressis verbis
enshrine the duty to perform the obligatory initial military
service, either;
- the legislator, while regulating the relations linked to
the organisation of the national defence, inter alia the armed
forces, has a rather broad discretion; while heeding the norms
and principles of the Constitution, he may choose various models
of the armed forces and forms of military service;
- the obligatory military service is necessary so that the
citizens would be prepared to defend the state, however, it does
not mean that the preparation may be implemented only in one
wayby performing the obligatory initial military service and
that each citizen has the duty to perform namely the obligatory
initial military service; the constitutional duty of the citizens
to perform military service and to prepare for the defence of the
state against a foreign armed attack may be implemented in
various forms the variety of which is implied inter alia by the
variety of means of the state's defence;
- the Constitution does not prohibit establishing such legal
regulation applying which the Lithuanian armed forces whose
purpose is to protect and defend the state and its citizens from
an armed attack would be organised only on the grounds of
professional and voluntary military service; Article 139 of the
Constitution may not be interpreted as meaning that the armed
forces must be organised only on the grounds of obligatory
military service;
- while adopting the legal acts in which he provides to
reorganise the national defence system, inter alia by switching
to the armed forces organised on the grounds of professional and
volunteer military service and providing for additional grounds
of postponement of the obligatory initial military service, the
legislator must establish such legal regulation so that efficient
means (which are different from the obligatory initial military
service) of preparation of citizens who have the duty to perform
obligatory military service to defend the state would be provided
for in the legal system.
5. The disputed provisions of laws do not deny the
constitutional institute of the obligatory military serviceit
remains in case of mobilisation, as well as they do not deny the
constitutional duty of citizens to defend the State of Lithuania
against a foreign armed attack. In addition, the disputed
provisions of laws, under which one does not provide to call-up
soldiers of the obligatory initial military service to the
Lithuanian armed forces for the years 2013 and 2014, virtually do
not deny the institute of the obligatory initial military service
as well.
6. It also needs to be noted that the purpose of the
disputed laws is to establish the principal structure of the
armed forces only for the corresponding period of timefor the
years 2013 and 2014. By these laws, one does not regulate the
relations linked to preparation of citizens for the obligatory
military service, inter alia in case of mobilisation.
7. Therefore, the mere fact that the disputed laws do not
provide for concrete different means (which are different from
the obligatory initial military service) of preparation of
citizens to defend the state against a foreign armed attack is
not the grounds to hold that the disputed provisions are in
conflict with the provisions of Paragraph 2 of Article 3 and
Paragraphs 1 and 2 of Article 139 of the Constitution which
consolidate the rights and duties of citizens linked to the
defence of the state, as well as with Paragraph 2 of Article 5 of
the Constitution and with the constitutional principle of a state
under the rule of law.
8. Taking account of the arguments set forth, one is to draw
a conclusion that Item 2 of Paragraph 2 of Article 3 of the Law
on the Planned Principal Structure of the Armed Forces in 2013
and Item 2 of Paragraph 2 of Article 3 of the Law on the Planned
Principal Structure of the Armed Forces in 2014 are not in
conflict with Paragraph 2 of Article 3, Paragraph 2 of Article 5
and Paragraphs 1 and 2 of Article 139 of the Constitution and
with the constitutional principle of a state under the rule of
law.
VII
1. In this Constitutional Court ruling, inter alia the
following was held:
- from the Constitution, inter alia the provisions of
Articles 3 and 139 thereof, a duty stems for the legislator to
establish such legal regulation that the Republic of Lithuania
would have a regular, well-organised armed forces able to
implement the constitutional functions, inter alia the obligation
to defend the state against a foreign armed attack;
- the legislator, having enshrined in the law such model of
organisation of the armed forces, under which the armed forces
are organised on the grounds of professional and voluntary
military service, must heed the provisions of the Constitution,
inter alia the imperative enshrined in Paragraph 1 of Article 139
of the Constitution that the defence of the State of Lithuania
against a foreign armed attack shall be the right and duty of
each citizen of the Republic of Lithuania; the formation of the
armed forces organised on the grounds of professional and
voluntary military service does not deny the constitutional
obligation of citizens to defend the State of Lithuania against a
foreign armed attack, while at the same time the legislator is
not exempted from the duty to establish such legal regulation
that legal preconditions would be created to prepare the citizens
properly for the performance of this constitutional obligation;
- the notion of preparation of citizens to defend the state
is rather broad, including not only the preparation of citizens
to defend the state against a foreign armed attack by means of
arms; the needs and means of the national defence may be very
varied ones; this variety also determines the diversity of the
specific ways of preparation of citizens for the state's defence;
- for the citizens who perform their constitutional duties,
inter alia the duty to defend the state against a foreign armed
attack, preconditions must be created to prepare properly for the
performance of this duty; otherwise, i.e. without having properly
prepared the citizens to perform their constitutional duty to
defend the state against a foreign armed attack, there would be
inter alia not only a groundlessly big threat for the health
and/or life of the citizens who, while being not prepared
properly, were called up to defend their country against a
foreign armed attack, but also such citizens would, in general,
be unable to perform the obligation to defend their state which
stems for them from the Constitution and, therefore, one would
deny the duty which is enshrined in Paragraph 1 of Article 139 of
the Constitution;
- when the legislator reorganises the national defence
system, inter alia by switching to the armed forces organised on
the grounds of professional and voluntary military service and
providing for additional grounds of postponement of the
obligatory initial military service, a duty stems to him from the
Constitution, inter alia Articles 3 and 139 thereof, to
consolidate such legal regulation of the system of military
service, which would establish efficient means (which are
different from the obligatory initial military service, for
example, obligatory military trainings, participation in the
activity of a corresponding organisation which is attributed to
the national defence system, general events of the national
defence system, etc.) of preparation of citizens who have the
duty to perform obligatory military service to defend the state
the means which would ensure proper preparation of citizens to
perform the constitutional duty to defend the state against a
foreign armed attack (inter alia in the event of mobilisation).
2. Taking account of the said doctrinal provisions, it needs
to be held that recognition of the legal acts disputed in this
constitutional justice case as not in conflict with the
Constitution does not mean that the legislator, when he regulates
the reorganisation of organisation of the national defence
system, inter alia military service, inter alia switching to the
armed forces organised on the grounds of professional and
volunteer military service, does not have the constitutional duty
to establish such legal regulation that when applying it one
would provide for efficient means (which are different from the
obligatory initial military service) of preparation of citizens
who have the duty to perform obligatory military service to
defend the state. From the Constitution, inter alia Paragraph 2
of Article 3 and Article 139 thereof, a duty arises for the
legislator, when reorganising the system of military service and
the structure of the armed forces, to establish such legal
regulation which would ensure proper organisation of the armed
forces, continuous implementation of the functions of the armed
forces linked to ensuring of the state defence and proper
preparation of citizens to defend the state against a foreign
armed attack inter alia by efficient means (which are different
from the obligatory initial military service) of preparation by
providing, in laws, concrete ways of preparation of citizens, the
procedure of their implementation, etc.
3. In this context it also needs to be noted that because of
the fact that by the laws disputed in this constitutional justice
case, inter alia establishing the principal structure of the
armed forces in 2013 and 2014, one postpones the call-up to the
obligatory initial military service in 2013 and 2014, if such
legal regulation would remain and would not be amended, the
legislator must, namely until that time, enshrine in laws
concrete ways (which are different from the obligatory initial
military service) of preparation of citizens to defend the state
against a foreign armed attack, the procedure of their
implementation, etc.
Conforming to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Articles 1, 53, 54, 55 and 56 of
the Law on the Constitutional Court of the Republic of Lithuania,
the Constitutional Court of the Republic of Lithuania has passed
the following
ruling:
1. To recognise that the provision "it is expedient to
switch to the Lithuanian armed forces organised on the grounds of
professional and volunteer military service" of the fifth
paragraph of the Resolution of the Seimas of the Republic of
Lithuania "On the Principles of Organisation of the Lithuanian
Armed Forces" of 13 March 2008 (Official Gazette Valstybės
žinios, 2008, No. 47-1753), the provision of the sixth paragraph
thereof to the extent that it provides to retain the obligatory
military service only in case of mobilisation and to reconsider
the need of the obligatory initial military service every year by
approving the margin numbers of soldiers by a Seimas decision,
the provision of the eighth paragraph thereof to the extent that
it proposes that the Government present the Seimas the margin
numbers of soldiers for approval, established after having taken
account of the needs of switching to the armed forces organised
on the grounds of professional and volunteer military service,
are not in conflict with the Constitution of the Republic of
Lithuania.
2. To recognise that the provision "shall establish the
additional new grounds of postponement of the obligatory initial
military service which will provide that the obligatory initial
military and alternative service of the national defence may be
postponed for all the conscripts if the law which regulates the
principal structure of the armed forces of the corresponding year
provides that the margin number of soldiers of the obligatory
initial military service is 0" of Item 18 of the Conception of
the Republic of Lithuania Law on Military Conscription of the New
Wording approved by Resolution of the Government of the Republic
of Lithuania No. 620 "On Approving the Conception of the Republic
of Lithuania Law on Military Conscription of the New Wording" of
18 June 2008 (Official Gazette Valstybės žinios, 2008, No. 75-
2942) is not in conflict with the Constitution of the Republic of
Lithuania.
3. To recognise that Item 2 of Paragraph 2 of Article 3 of
the Republic of Lithuania Law on Establishing the Principal
Structure of the Armed Forces in 2008, Establishing the Planned
Principal Structure of the Armed Forces in 2013 and Approving the
Margin Number of Statutory Servants in the Civil National Defence
Service (Official Gazette Valstybės žinios, 2008, No. 87-3460) is
not in conflict with the Constitution of the Republic of
Lithuania.
4. To recognise that Item 2 of Paragraph 2 of Article 3 of
the Republic of Lithuania Law on Establishing the Principal
Structure of the Armed Forces in 2009, Establishing the Planned
Principal Structure of the Armed Forces in 2014 and Approving the
Margin Number of Statutory Servants in the Civil National Defence
Service (Official Gazette Valstybės žinios, 2008, No. 87-3461) is
not in conflict with the Constitution of the Republic of
Lithuania.
This ruling of the Constitutional Court is final and not
subject to appeal.
The ruling is promulgated in the name of the Republic of
Lithuania.
Justices of the Constitutional Court: Armanas Abramavičius
Toma Birmontienė
Pranas Kuconis
Kęstutis Lapinskas
Zenonas Namavičius
Ramutė Ruškytė
Egidijus Šileikis
Algirdas Taminskas
Romualdas Kęstutis Urbaitis