THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
DECISION
ON ACCEPTING THE PETITION OF THE ŠIAULIAI REGIONAL
COURT, THE PETITIONER, REQUESTING TO CONSTRUE
PROVISIONS OF THE RULINGS OF THE CONSTITUTIONAL COURT
OF THE REPUBLIC OF LITHUANIA OF 9 MAY 2006 AND 22
OCTOBER 2007
22 April 2010
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 procedural sitting of the Constitutional Court
considered a petition (No. 1B-16/2010) of the Šiauliai Regional
Court, the petitioner, requesting to construe whether:
- the provision "a judge, despite the fact that his powers
have expired or he reached the pensionable age established by
law, may still hold his office for a certain period of time until
the consideration of certain cases, the consideration of which
was not finished at the time (on the day) when the term of powers
of that judge expired or when he reached the pensionable age
established by law, is finished (final decisions therein will be
adopted), and at the time when the consideration of the said
cases is not yet finished, he is a full-fledged judge" of Item
15.3.1.1 of the reasoning part of the Constitutional Court ruling
of 9 May 2006, which, according to the petitioner, is repeated in
Item 12.2 of the Constitutional Court ruling of 22 October 2007
as well as Item 8 of Section II of the Constitutional Court
ruling of 15 May 2009, means that powers of such a judge are
limited by the cases which are indicated in the decree of the
President of the Republic on the extension of powers of such a
judge;
- the provision "a full-fledged judge", formulated in
Constitutional Court rulings, means that such a judge enjoys
full-fledged powers only in the concrete cases which are
indicated in the decree of the President of the Republic;
- the provision that a judge, during the period of the
extension of his powers, has to receive the same workload as
other judges of that court means that, during the period of the
extension of his powers, such a judge may also consider (be a
judge-rapporteur, a judge, and a member of the college) other
cases, which are not indicated in the decree of the President of
the Republic, as long as the cases indicated in the decree of the
President of the Republic are not finished.
The Constitutional Court
has established:
The Šiauliai Regional Court, the petitioner, was
investigating a civil case. By its ruling the said court
suspended the consideration of the case and applied to the
Constitutional Court with a petition requesting to construe
whether:
- the provision "a judge, despite the fact that his powers
have expired or he reached the pensionable age established by
law, may still hold his office for a certain period of time until
the consideration of certain cases, the consideration of which
was not finished at the time (on the day) when the term of powers
of that judge expired or when he reached the pensionable age
established by law, is finished (final decisions therein will be
adopted), and at the time when the consideration of the said
cases is not yet finished, he is a full-fledged judge" of Item
15.3.1.1 of the reasoning part of the Constitutional Court ruling
of 9 May 2006, which, according to the petitioner, is repeated in
Item 12.2 of the Constitutional Court ruling of 22 October 2007
as well as Item 8 of Section II of the Constitutional Court
ruling of 15 May 2009, means that powers of such a judge are
limited by the cases which are indicated in the decree of the
President of the Republic on the extension of powers of such a
judge;
- the provision "a full-fledged judge", formulated in
Constitutional Court rulings, means that such a judge enjoys
full-fledged powers only in the concrete cases which are
indicated in a decree of the President of the Republic;
- the provision that a judge, during the period of the
extension of his powers, has to receive the same workload as
other judges of that court means that, during the period of the
extension of his powers, such a judge may also consider (be a
judge-rapporteur, a judge, and a member of the college) other
cases, which are not indicated in the decree of the President of
the Republic, as long as the cases indicated in the decree of the
President of the Republic are not finished.
This petition of the Šiauliai Regional Court, the
petitioner, was received at the Constitutional Court on 26 March
2010.
The Constitutional Court
holds that:
I
1. Under Paragraph 1 of Article 61 of the Law on the
Constitutional Court, the Constitutional Court may officially
construe its ruling at the request of the parties to the case, of
other institutions or persons to whom it was sent, or on its own
initiative.
Under Paragraph 1 of Article 60 of the Law on the
Constitutional Court, a Constitutional Court ruling shall be sent
to the justices of the Constitutional Court, the parties to the
case, the Seimas, the President of the Republic, the Government,
the President of the Supreme Court, the Prosecutor General, and
the Minister of Justice. Under Paragraph 2 of Article 60 of the
Law on the Constitutional Court, the President of the
Constitutional Court may order that a Constitutional Court ruling
be sent to other institutions, officials, or citizens.
Item 93 of the Rules of the Constitutional Court inter alia
prescribes that the instruction to send the ruling according to
Paragraph 2 of Article 60 of the Law on the Constitutional Court
is given by the President of the Constitutional Court by issuing
an order.
Under Order of the President of the Constitutional Court No.
4B-10 "On Sending Final Acts of the Constitutional Court" of 29
March 2004, final acts of the Constitutional Court, besides the
institutions enumerated in the Rules of the Constitutional Court,
are sent to the Speaker of the Seimas of the Republic of
Lithuania, the Prime Minister of the Republic of Lithuania, the
President of the Court of Appeal of Lithuania, and the President
of the Supreme Administrative Court of Lithuania.
In the constitutional justice cases wherein the
Constitutional Court rulings of 9 May 2006 and 22 October 2007 as
well as the decision of 15 May 2009, which are requested for
construction, were adopted, the Šiauliai Regional Court was not a
party to the case, the said court is not such an entity to which,
under Paragraph 1 of Article 60 of the Law on the Constitutional
Court, a ruling of the Constitutional Court must be sent.
2. Paragraph 1 of Article 110 of the Constitution prescribes
that a judge may not apply a law, which is in conflict with the
Constitution, while Paragraph 2 thereof stipulates that in cases
when there are grounds to believe that the law or other legal act
which should be applied in a concrete case is in conflict with
the Constitution, the judge shall suspend the consideration of
the case and shall apply to the Constitutional Court requesting
it to decide whether the law or other legal act in question is in
compliance with the Constitution. If the court, after it has
faced doubts as regards the compliance of the law applicable in
the case with the Constitution, did not suspend the consideration
of the case and did not apply to the Constitutional Court so that
these doubts could be removed, and if the legal act the
compliance of which with the Constitution is doubtful was applied
in the case, the court would take a risk to adopt such a
decision, which would not be a just one (Constitutional Court
rulings of 16 January 2006 and 28 March 2006).
Under the Constitution, the grounds to initiate a
constitutional justice case at the Constitutional Court are the
doubts which arise to the court (judge) that is considering a
concrete case, regarding the conformity of the legal act
applicable in that case with the Constitution (other legal act of
higher power), which must be removed so that the said court could
adopt a just decision (other final court act) in that case. It is
only the Constitutional Court that can remove such doubts (i.e.
deny or confirm their reasonableness) within its competence
(Constitutional Court ruling of 24 October 2007).
The Constitutional Court ruling of 28 March 2006 held:
- if a petitionera court which is considering a case
applies to the Constitutional Court requesting to investigate and
decide whether a legal act (part thereof) passed by the Seimas,
the President of the Republic or the Government or adopted by
referendum, which is applicable in that case, is not in conflict
with a legal act of higher power, inter alia (and, first of all)
with the Constitution, and if the Constitutional Court does not
decide this question in essence, the doubts of the said court on
whether the corresponding law or other legal act (part thereof)
is not in conflict with a legal act of higher power, inter alia
(and, first of all) with the Constitution, would not be removed,
and if it applies that law or other legal act (part thereof), the
values, inter alia constitutional rights of the person,
entrenched in and defended and protected by the Constitution,
could be violated;
- the comparison of the applications of courts (both, of
general jurisdiction and specialised) to the Constitutional Court
with the petition requesting to investigate and decide whether a
legal act (part thereof) passed by the Seimas, the President of
the Republic or the Government or adopted by referendum is not in
conflict with a legal act of higher power, inter alia (and, first
of all) with the Constitution, as well as the comparison of the
applications of other entities indicated in Article 106 of the
Constitution shows that the applications of courts are special
ones also because the courts, having doubted on the compliance of
a legal act (part thereof) passed by the Seimas, the President of
the Republic or the Government or adopted by referendum with a
legal act of higher power, inter alia (and, first of all) with
the Constitution, not only may but also must apply to the
Constitutional Court;
- a court considering a case, which, under the Constitution,
not only has the powers but (if it has certain doubts) also must
apply to the Constitutional Court with a petition requesting to
decide whether a legal act (part thereof) passed by the Seimas,
the President of the Republic or the Government or adopted by
referendum is not in conflict with a legal act of higher power,
inter alia (and, first of all) with the Constitution, also has a
constitutionally grounded interest to receive a corresponding
Constitutional Court answer that such answer will be given; a
different construction of the corresponding provisions of the
Constitution could create preconditions for the court that
considers the corresponding case to apply such law or other legal
act (part thereof) on whose compliance with the Constitution
(other legal act of higher power) the said court has doubts.
3. In its acts the Constitutional Court has held more than
once that the purpose of the institute of construction of
Constitutional Court rulings and other final acts is to disclose
the contents and meaning of corresponding Constitutional Court
rulings or other final acts more broadly and in more detail, if
it is necessary, in order to ensure proper execution of that
Constitutional Court ruling or other final act so that this
Constitutional Court ruling or other final act would be followed.
Thus, if a court which is considering a case applies to the
Constitutional Court with a petition requesting to construe
corresponding provisions of a Constitutional Court ruling or
other final act, and if the Constitutional Court does not
construe the provisions of the Constitutional Court ruling or
other final act and does not reveal the contents and meaning
thereof more broadly and in more detail, if it is necessary, in
order to ensure proper execution of that Constitutional Court
ruling or other final act so that this Constitutional Court
ruling or other final act would be followed, the values, inter
alia constitutional rights of the person, entrenched in and
defended and protected by the Constitution, could be violated,
and this would mean that justice would not be administered.
The Constitutional Court, while construing Article 109 of
the Constitution, wherein it is established that, in the Republic
of Lithuania, justice shall be administered only by courts
(Paragraph 1), that, while administering justice, the judge and
courts shall be independent (Paragraph 2), that, when considering
cases, judges shall obey only the law (Paragraph 3), and that the
court shall adopt decisions in the name of the Republic of
Lithuania (Paragraph 4), has held more than once (inter alia in
its rulings of 21 December 1999, 9 May 2006, 6 June 2006, 27
November 2006, 24 October 2007, 15 March 2008, 17 September 2008,
and 10 April 2009) that courts, while administering justice, must
ensure the implementation of the rights established in the
Constitution, the laws and other legal acts, they must guarantee
the supremacy of law and protect human rights and freedoms. A
duty to courts stems from Paragraph 1 of Article 109 of the
Constitution to consider cases justly and objectively and to
adopt reasoned and reasonable decisions (Constitutional Court
rulings of 15 May 2007, 24 October 2007, 21 January 2008, 15
March 2008, 17 September 2008, and 10 April 2009). The principle
of justice entrenched in the Constitution as well as the
provision that justice is administered solely by courts mean that
the constitutional value is not the adoption of a decision in
court, but rather the adoption of a just court decision; the
constitutional concept of justice implies not only a formal and
nominal justice administered by the court, not only an outward
appearance of justice administered by the court, but, most
importantly, such court decisions (other court final acts) which
by their content are not unjust; the justice administered by the
court only formally is not the justice which is consolidated in
and protected and defended by the Constitution (Constitutional
Court rulings of 21 September 2006, 24 October 2007, 21 January
2008, 20 February 2008, 15 March 2008, 17 September 2008, and 10
April 2009).
4. In this context it needs to be noted that the right of
the Constitutional Court, which is entrenched in Paragraph 1 of
Article 61 of the Law on the Constitutional Court, to officially
construe a ruling inter alia on its own initiative means that the
Constitutional Court construes its rulings or other final acts,
i.e. reveals the contents and meaning of these acts more broadly
and in more detail, if it is necessary, in order to ensure proper
execution of a corresponding Constitutional Court ruling or other
final act, also so that a Constitutional Court ruling or other
final act would be not formally, but properly followed and the
justice, consolidated in and protected and defended by the
Constitution, would be administered. The powers of the
Constitutional Court to ex officio construe its rulings or other
final acts also mean that the Constitutional Court may construe
its rulings or other final acts, if it is necessary, so that acts
adopted by the Constitutional Court would be followed properly
while administering justice, irrespective of the fact whether a
petition of the entities indicated in the Law on the
Constitutional Court is present.
Taking account of the said circumstances, it needs to be
held that having established a constitutionally grounded interest
of a petitionera court which is considering a caseto remove
doubts as regards proper execution of Constitutional Court
rulings or other final acts (provisions thereof) in order that
justice would be properly administered in the case considered by
the court, the Constitutional Court may accept requests to
construe provisions of a Constitutional Court ruling or other
final act, investigate these requests in the manner prescribed by
law and announce a corresponding decision.
II
1. It has been mentioned that the Šiauliai Regional Court,
the petitioner, requests inter alia to construe whether the
provision "a judge, despite the fact that his powers have expired
or he reached the pensionable age established by law, may still
hold his office for a certain period of time until the
consideration of certain cases, the consideration of which was
not finished at the time (on the day) when the term of powers of
that judge expired or when he reached the pensionable age
established by law, is finished (final decisions therein will be
adopted), and at the time when the consideration of the said
cases is not yet finished, he is a full-fledged judge" of Item
15.3.1.1 of the reasoning part of the Constitutional Court ruling
of 9 May 2006, which, according to the petitioner, is repeated in
Item 12.2 of the Constitutional Court ruling of 22 October 2007
as well as Item 8 of Section II of the Constitutional Court
ruling of 15 May 2009, means that powers of such a judge are
limited by the cases which are indicated in the decree of the
President of the Republic on the extension of powers of such a
judge.
It needs to be noted that the Constitutional Court ruling of
9 May 2006 does not contain the provision which is formulated in
the way indicated by the petitioner. In the second paragraph of
Item 15.3.1.1 of Chapter II of the reasoning part of this ruling,
it is inter alia held: "<...> The Constitution does not in
essence prevent such legal regulation established by law, where a
judge, despite the fact that his term of powers has expired or he
reached the pensionable age established by law, may still hold
his office for a certain period of time until the consideration
of certain cases, the consideration of which was not finished at
the time (on the day) when the term of powers of that judge
expired or when he reached the pensionable age established by
law, is finished (final decisions therein will be adopted)."
It also needs to be noted that the provision "at the time
when the consideration of the said cases is not yet finished, he
is a full-fledged judge" indicated in the petition of the
Šiauliai Regional Court is set forth not in the Constitutional
Court ruling of 9 May 2006, as it is maintained by the
petitioner, but in the Constitutional Court ruling of 22 October
2007. In addition, the said provision, the construction of which
is requested by the petitioner, is a fragment of the provisions
set forth in the second paragraph of Item 12.2 of Chapter IV of
the reasoning part of the Constitutional Court ruling of 22
October 2007. In the second paragraph of Item 12.2 of Chapter IV
of the reasoning part of the Constitutional Court ruling of 22
October 2007, it is inter alia held: "At the time when the
consideration of the said cases is not yet finished, the said
judge is a full-fledged judge: while administering justice
(deciding cases), he has the same powers as other judges of the
corresponding court, his status as a judge is indivisible, the
same restrictions of activity and limitation of remuneration
which stem from the Constitution are applied to him, he has the
same responsibility and immunities as other judges."
Alongside, it needs to be mentioned that the provisions of
the Constitutional Court rulings of 9 May 2006 and 22 October
2007, the construction of which is requested by the Šiauliai
Regional Court, the petitioner, are only repeated in the
Constitutional Court decision of 15 May 2009.
Thus, the request of the Šiauliai Regional Court to construe
whether the provision "a judge, despite the fact that his powers
have expired or he reached the pensionable age established by
law, may still hold his office for a certain period of time until
the consideration of certain cases, the consideration of which
was not finished at the time (on the day) when the term of powers
of that judge expired or when he reached the pensionable age
established by law, is finished (final decisions therein will be
adopted), and at the time when the consideration of the said
cases is not yet finished, he is a full-fledged judge" of Item
15.3.1.1 of the reasoning part of the Constitutional Court ruling
of 9 May 2006, which, according to the petitioner, is repeated in
Item 12.2 of the Constitutional Court ruling of 22 October 2007
as well as Item 8 of Section II of the Constitutional Court
ruling of 15 May 2009, means that powers of such a judge are
limited by the cases which are indicated in the decree of the
President of the Republic on the extension of powers of such a
judge is to be treated as the request to construe whether the
provision "<...> a judge, despite the fact that his powers have
expired or he reached the pensionable age established by law, may
still hold his office for a certain period of time until the
consideration of certain cases, the consideration of which was
not finished at the time (on the day) when the term of powers of
that judge expired or when he reached the pensionable age
established by law, is finished (final decisions therein will be
adopted)" of the second paragraph of Item 15.3.1.1 of Chapter II
of the reasoning part of the Constitutional Court ruling of 9 May
2006 as well as the provision "At the time when the consideration
of the said cases is not yet finished, the said judge is a full-
fledged judge: while administering justice (deciding cases), he
has the same powers as other judges of the corresponding court,
his status as a judge is indivisible, the same restrictions of
activity and limitation of remuneration which stem from the
Constitution are applied to him, he has the same responsibility
and immunities as other judges" of the second paragraph of Item
12.2 of Chapter IV of the reasoning part of the Constitutional
Court ruling of 22 October 2007 mean that the powers of such a
judge are limited by the cases which are indicated in the decree
of the President of the Republic on the extension of powers of
such a judge.
2. It has been mentioned that the Šiauliai Regional Court,
the petitioner, requests inter alia to construe whether the
provision "a full-fledged judge", formulated in Constitutional
Court rulings, means that such judge enjoys full-fledged powers
only in the concrete cases indicated in the decree of the
President of the Republic.
It needs to be noted that the provision "a full-fledged
judge", the construction of which is requested by the Šiauliai
Regional Court, is set forth in the second paragraph of Item 12.2
of Chapter IV of the reasoning part of the Constitutional Court
ruling of 22 October 2007. The said provision of the
Constitutional Court ruling of 22 October 2007, the construction
of which is requested by the Šiauliai Regional Court, is only
repeated in the Constitutional Court decision of 15 May 2009.
Thus, the request of the Šiauliai Regional Court to construe
whether the provision "a full-fledged judge", formulated in
Constitutional Court rulings, means that such a judge enjoys
full-fledged powers only in the concrete cases indicated in the
decree of the President of the Republic is to be treated as the
request to construe whether the provision "a full-fledged judge"
of the second paragraph of Item 12.2 of Chapter IV of the
reasoning part of the Constitutional Court ruling of 22 October
2007 means that such a judge enjoys full-fledged powers only in
the concrete cases indicated in the decree of the President of
the Republic on the extension of powers of the judge.
3. It has been mentioned that the Šiauliai Regional Court,
the petitioner, requests inter alia to construe whether the
provision that a judge, during the period of the extension of his
powers, has to receive the same workload as other judges of that
court means that, during the period of the extension of his
powers, such a judge may also consider (be a judge-rapporteur, a
judge, and a member of the college) other cases, which are not
indicated in the decree of the President of the Republic, as long
as the cases indicated in the decree of the President of the
Republic are not finished.
It needs to be noted that Constitutional Court rulings do
not contain the provision which is formulated in the way
indicated by the petitioner. The second paragraph of Item 12.2 of
Chapter IV of the reasoning part of the Constitutional Court
ruling of 22 October 2007 inter alia holds that a judge whose
powers have been extended "has the same workload (inter alia
because of the fact that in the said court, the position of the
judge who must carry out an important constitutional functionto
administer justiceis not yet vacant) as other judges of the
corresponding court, and he must be paid the same remuneration as
other judges of the corresponding court, he also has the same
social (material) guarantees which the judges of the
corresponding court have."
Thus, the request of the Šiauliai Regional Court to construe
whether the provision that a judge, during the period of the
extension of his powers, has to receive the same workload as
other judges of that court means that, during the period of the
extension of his powers, such a judge may also consider (be a
judge-rapporteur, a judge, and a member of the college) other
cases, which are not indicated in the decree of the President of
the Republic, as long as the cases indicated in the decree of the
President of the Republic are not finished, is to be treated as
the request to construe whether the provision that a judge whose
powers have been extended "has the same workload (inter alia
because of the fact that in the said court, the position of the
judge who must carry out an important constitutional functionto
administer justiceis not yet vacant) as other judges of the
corresponding court, and he must be paid the same remuneration as
other judges of the corresponding court, he also has the same
social (material) guarantees which the judges of the
corresponding court have" of the second paragraph of Item 12.2 of
Chapter IV of the reasoning part of the Constitutional Court
ruling of 22 October 2007 means that, during the period of the
extension of his powers, such a judge may also consider (be a
judge-rapporteur, a judge, and a member of the college) other
cases, which are not indicated in the decree of the President of
the Republic, as long as the cases indicated in the decree of the
President of the Republic are not finished.
Conforming to Article 102 of the Constitution of the
Republic of Lithuania and Paragraph 3 of Article 22, Article 25,
28, and Paragraph 1 of Article 61 of the Law on the
Constitutional Court of the Republic of Lithuania, the
Constitutional Court of the Republic of Lithuania has passed the
following
decision:
To accept the petition of the Šiauliai Regional Court
requesting to construe whether:
- the provision "<...> a judge, despite the fact that his
powers have expired or he reached the pensionable age established
by law, may still hold his office for a certain period of time
until the consideration of certain cases, the consideration of
which was not finished at the time (on the day) when the term of
powers of that judge expired or when he reached the pensionable
age established by law, is finished (final decisions therein will
be adopted)" of the second paragraph of Item 15.3.1.1 of Chapter
II of the reasoning part of the Constitutional Court ruling of 9
May 2006" and the provision "At the time when the consideration
of the said cases is not yet finished, the said judge is a full-
fledged judge: while administering justice (deciding cases), he
has the same powers as other judges of the corresponding court,
his status as a judge is indivisible, the same restrictions of
activity and limitation of remuneration which stem from the
Constitution are applied to him, he has the same responsibility
and immunities as other judges" of the second paragraph of Item
12.2 of Chapter IV of the reasoning part of the Constitutional
Court ruling of 22 October 2007 mean that powers of such a judge
are limited by the cases which are indicated in the decree of the
President of the Republic on the extension of powers of such a
judge;
- the provision "a full-fledged judge" of the second
paragraph of Item 12.2 of Chapter IV of the reasoning part of the
Constitutional Court ruling of 22 October 2007 means that a judge
enjoys full-fledged powers only in the concrete cases indicated
in the decree of the President of the Republic on the extension
of powers of the judge;
- the provision that a judge whose powers have been extended
"has to receive the same workload (inter alia because of the fact
that in the said court, the position of the judge who must carry
out an important constitutional functionto administer justiceis
not yet vacant) as other judges of the corresponding court, and
he must be paid the same remuneration as other judges of the
corresponding court, he also has the same social (material)
guarantees which the judges of the corresponding court have" of
the second paragraph of Item 12.2 of Chapter IV of the reasoning
part of the Constitutional Court ruling of 22 October 2007 means
that, during the period of the extension of his powers, such a
judge may also consider (be a judge-rapporteur, a judge, and a
member of the college) other cases, which are not indicated in
the decree of the President of the Republic, as long as the cases
indicated in the decree of the President of the Republic are not
finished.
This decision of the Constitutional Court is final and not
subject to appeal.
The decision is promulgated in the name of the Republic of
Lithuania.
Justices of the Constitutional Court: Armanas Abramavičius
Toma Birmontienė
Pranas Kuconis
Kęstutis Lapinskas
Zenonas Namavičius
Ramutė Ruškytė
Egidijus Šileikis
Algirdas Taminskas
Romualdas Kęstutis Urbaitis