Case No. 13/04-21/04-43/04, 38/04-39/04
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
DECISION
ON THE CONSTRUCTION OF THE PROVISIONS OF ITEM 15.3.1.1
OF CHAPTER II OF THE REASONING PART OF THE RULING OF
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
OF 9 MAY 2006 AND ITEM 12.2 OF CHAPTER IV OF THE
REASONING PART OF THE RULING OF 22 OCTOBER 2007
30 June 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 hearing—Daiva Pitrėnaitė,
pursuant to Article 61 of the Law on the Constitutional
Court of the Republic of Lithuania, in its public hearing on 29
June 2010, considered petitions of the Šiauliai Regional Court
and the Supreme Court of Lithuania requesting to construe certain
provisions of Item 15.3.1.1 of Chapter II of the reasoning part
of the ruling of the Constitutional Court of the Republic of
Lithuania of 9 May 2006 and Item 12.2 of Chapter IV of the
reasoning part of the ruling of the Constitutional Court of the
Republic of Lithuania of 22 October 2007.
By means of the Constitutional Court decision "On Joining
the Petitions" of 14 June 2010, petition No. 1B-16/2010 of the
Šiauliai Regional Court, a petitioner, and petition No. 1B-28/
2010 of the Supreme Court of Lithuania, a petitioner, were joined
into one case.
The Constitutional Court
has established:
1. In constitutional justice case No. 13/04-21/04-43/04, the
Constitutional Court adopted the Ruling "On the compliance of
Paragraph 2 (wording of 24 January 2002), Paragraph 3 (wording of
21 January 2003), Paragraphs 4, 5 and 6 (wording of 24 January
2002) of Article 56, Paragraph 3 (wording of 28 January 2003) of
Article 57, Paragraph 4 (wording of 24 January 2002) of Article
63, Paragraphs 2 and 3 (wording of 24 January 2002) of Article
70, Paragraphs 2 and 3 (wording of 24 January 2002) of Article
71, Paragraphs 2 and 3 (wording of 24 January 2002) of Article
72, Paragraph 2 (wording of 24 January 2002) of Article 73,
Paragraph 1 (wording of 24 January 2002) of Article 74, Paragraph
1 (wording of 24 January 2002) of Article 75, Paragraph 2
(wording of 21 January 2003) of Article 76, Paragraph 3 (wording
of 24 January 2002) of Article 77, Paragraph 2 (wording of 21
January 2003) of Article 78, Paragraph 2 (wording of 24 January
2002) of Article 79, Paragraphs 3 and 7 (wording of 24 January
2002) of Article 81, Paragraphs 3 and 7 (wording of 24 January
2002) of Article 90, Paragraphs 2 and 5 (wording of 24 January
2002) of Article 119, Items 3 and 4 (wording of 24 January 2002)
of Article 120, Paragraph 2 (wording of 24 January 2002) of
Article 128 of the Republic of Lithuania Law on Courts, of Item
13 (wording of 4 July 1996) of Paragraph 3 of Article 11,
Paragraphs 1 and 3 (wording of 18 April 1995) and Paragraph 4
(wording of 4 July 1996) of Article 17, Paragraph 3 (wording of
18 April 1995) of Article 18 of the Republic of Lithuania Law '
The Statute of the Supreme Court of Lithuania', and of Article 1
of Decree of the President of the Republic of Lithuania No. 2048
'On the Dismissal of a Judge of the Regional Court from Office'
of 10 February 2003 with the Constitution of the Republic of
Lithuania" (Official Gazette Valstybės žinios, 2006, No. 51-1894;
hereinafter referred to as the Constitutional Court ruling of 9
May 2006).
2. On 22 October 2007, in constitutional justice case No.
38/04-39/04 the Constitutional Court adopted the Ruling "On the
compliance of Article 4 (wordings of 2 July 2002, 4 November
2004, 19 May 2005 and 8 June 2006) of the Republic of Lithuania
Law on the State Pensions of Judges with the Constitution of the
Republic of Lithuania" (Official Gazette Valstybės žinios, 2007,
No. 110-4511; hereinafter referred to as the Constitutional Court
ruling of 22 October 2007).
3. The Šiauliai Regional Court, a petitioner, requests inter
alia to construe whether the provision "the 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 Šiauliai Regional Court, a petitioner, requests also to
construe whether:
- the provision "a full-fledged judge", formulated in
Constitutional Court rulings, means that the 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 the 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, as long as the cases indicated in the
decree of the President of the Republic are not finished, such a
judge may consider (be a judge-rapporteur, a judge, and a member
of the college) also other cases, which are not indicated in the
decree of the President of the Republic on the extension of
powers of the judge.
4. The Supreme Court of Lithuania, a petitioner, requests
inter alia to construe whether the provision "The Constitution
does not in essence prevent such legal regulation established by
law where the 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)" 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 means that the powers of such a judge (a judge-rapporteur, a
judge, and a member of the college) to administer justice, which
are entrenched in the Constitution, are limited by the cases
indicated in the decree of the President of the Republic on the
extension of powers of such a judge.
The Supreme Court of Lithuania, a petitioner, requests inter
alia to construe whether the provisions "<...> 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. Thus, he has
the same workload (inter alia because of the fact that in the
said court, the position of a judge who must carry out an
important constitutional function—to administer justice—is not
yet vacant) as other judges of the corresponding court" 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
such a judge (a judge-rapporteur, a judge, and a member of the
college), as a full-fledged judge, also has the powers,
entrenched in the Constitution, to administer justice and in
other cases, which are not indicated in the decree of the
President of the Republic on the extension of powers of the
judge, but which are additionally received for consideration,
until final decisions therein are adopted or the consideration
thereof is postponed.
The Supreme Court of Lithuania, a petitioner, also requests
to construe whether the judge who has reached the age of 65 years
and whose powers have been extended by the decree of the
President of the Republic until the consideration of the cases
indicated in the decree is finished, in the case when the
consideration of the cases indicated in the decree is finished,
but the said judge, as a full-fledged judge, is a judge-
rapporteur, a judge, or a member of the college in other cases
received for consideration, has the powers, entrenched in the
Constitution, to administer justice in the said other cases,
which are not indicated in the decree of the President of the
Republic and the consideration of which is not finished.
The Constitutional Court
holds that:
I
1. The powers of the Constitutional Court to officially
construe its own rulings are entrenched in the Law on the
Constitutional Court (Article 61). Paragraph 1 of Article 61 of
the Law on the Constitutional Court provides that a ruling of the
Constitutional Court may be officially construed by the
Constitutional Court at the request of the parties to the case,
of other institutions or persons to whom it was sent, or on its
own initiative. Under Item 158 of the Rules of the Constitutional
Court of the Republic of Lithuania, upon announcement of a final
act of the Constitutional Court at a public hearing of the
Constitutional Court, the General Division of the Constitutional
Court, not later than within 2 days of the date of adoption of
the said documents, sends copies thereof to inter alia the
President of the Supreme Court of Lithuania. Thus, under
Paragraph 1 of Article 61 of the Law on Constitutional Court, the
Supreme Court of Lithuania has the right to apply to the
Constitutional Court with a petition requesting to construe a
Constitutional Court ruling.
2. The petition of the Šiauliai Regional Court, a
petitioner, requesting to construe the corresponding provisions
of the Constitutional Court rulings, was accepted for
consideration by the Constitutional Court decision of 22 April
2010.
3. A decision concerning construction of a Constitutional
Court ruling shall be adopted at a Constitutional Court sitting
as a separate document (Paragraph 2 of Article 61 of the Law on
the Constitutional Court).
4. In its acts the Constitutional Court has held more than
once that the purpose of the institute of construction of
Constitutional Court rulings and other final acts is to disclose
the contents and meaning of corresponding provisions of a
Constitutional Court ruling or other final act 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.
5. The Constitutional Court has held more than once that a
ruling of the Constitutional Court is integral; the operative
(resolving) part of a ruling of the Constitutional Court is based
upon the arguments of the reasoning part; while construing its
ruling, the Constitutional Court is bound both by the content of
the part of resolution and that of reasoning of its ruling; the
decision adopted concerning construction of a Constitutional
Court ruling is inseparable from the Constitutional Court ruling.
6. Under Paragraph 3 of Article 61 of the Law on the
Constitutional Court, the Constitutional Court must construe its
ruling without changing its content.
The Constitutional Court has held more than once that this
provision of Paragraph 3 of Article 61 of the Law on the
Constitutional Court, among other things, means that, while
construing its ruling, the Constitutional Court cannot construe
its content so that the meaning of its provisions, inter alia the
notional entirety of the elements constituting the content of the
ruling, the arguments and reasons upon which that Constitutional
Court ruling is based, is changed, also that the Constitutional
Court may not construe what was not investigated in that
constitutional justice case, subsequent to which the construed
ruling was adopted, either. The Constitutional Court has held
more than once that the consideration of a petition requesting to
construe a Constitutional Court ruling or its other final act
does not imply a new constitutional justice case.
The Constitutional Court has also held more than once that
no official constitutional doctrinal provision of a
Constitutional Court ruling or its other final act may be
construed in isolation, by ignoring its meaning and systemic
links with the other official constitutional doctrinal provisions
set forth in that Constitutional Court ruling or its other final
act, in other Constitutional Court acts, as well as with other
provisions (explicit and implicit) of the Constitution.
7. It has also been held more than once that the formula
"shall be final and not subject to appeal" of Paragraph 2 of
Article 107 of the Constitution, which provides that the
decisions of the Constitutional Court on issues ascribed to its
competence by the Constitution shall be final and not subject to
appeal, also means that the Constitutional Court rulings,
conclusions and decisions by which a constitutional justice case
is finished, i.e. final acts of the Constitutional Court, are
obligatory to all state institutions, courts, all enterprises,
establishments and organisations, as well as officials and
citizens, including the Constitutional Court itself: final acts
of the Constitutional Court are obligatory to the Constitutional
Court itself, they restrict the Constitutional Court in the
aspect that it may not change them or review them if there are no
constitutional grounds for that.
II
1. The Šiauliai Regional Court and the Supreme Court of
Lithuania, the petitioners, request to construe the official
constitutional doctrinal provisions which are related with
extension of powers of the judge and which are set forth in the
Constitutional Court rulings of 9 May 2006 and 22 October 2007.
2. It needs to be noted that the provisions of the
Constitutional Court rulings, the construction of which is being
requested by the Šiauliai Regional Court and the Supreme Court of
Lithuania, the petitioners, as well as the questions raised by
the petitioners are related, therefore, they are to be construed
in conjunction.
2.1. The Šiauliai Regional Court, the petitioner, requests
inter alia to construe whether the provision "the 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.
2.2. The Šiauliai Regional Court, a petitioner, requests
inter alia to construe whether:
- the provision "a full-fledged judge", formulated in
Constitutional Court rulings, means that the 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 the 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, as long as the cases indicated in the
decree of the President of the Republic are not finished, such a
judge may consider (be a judge-rapporteur, a judge, and a member
of the college) also other cases, which are not indicated in the
decree of the President of the Republic on the extension of
powers of the judge.
2.3. The Supreme Court of Lithuania, a petitioner, requests
inter alia to construe whether the provision "The Constitution
does not in essence prevent such legal regulation established by
law where the 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)" 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 means that the powers of such a judge (a judge-rapporteur, a
judge, and a member of the college) to administer justice, which
are entrenched in the Constitution, are limited by the cases
indicated in the decree of the President of the Republic on the
extension of powers of such a judge.
2.4. The Supreme Court of Lithuania, a petitioner, requests
inter alia to construe whether the provisions "<...> 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. Thus, he has
the same workload (inter alia because of the fact that in the
said court, the position of a judge who must carry out an
important constitutional function—to administer justice—is not
yet vacant) as other judges of the corresponding court" 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
such a judge (a judge-rapporteur, a judge, and a member of the
college), as a full-fledged judge, also has the powers,
entrenched in the Constitution, to administer justice and in
other cases, which are not indicated in the decree of the
President of the Republic on the extension of powers of the
judge, but which are additionally received for consideration
until final decisions therein are adopted or the consideration
thereof is postponed.
2.5. The Supreme Court of Lithuania, a petitioner, requests
inter alia to construe whether the judge who has reached the age
of 65 years and whose powers have been extended by the decree of
the President of the Republic until the consideration of the
cases indicated in the decree is finished, in the case when the
consideration of the cases indicated in the decree is finished,
but the said judge, as a full-fledged judge, is a judge-
rapporteur, a judge, or a member of the college in other cases
received for consideration, has the powers, entrenched in the
Constitution, to administer justice in the said other cases,
which are not indicated in the decree of the President of the
Republic and the consideration of which is not finished.
2.6. The provisions of the Constitutional Court ruling of 9
May 2006, construction of which is requested by the Šiauliai
Regional Court and the Supreme Court of Lithuania, the
petitioners, constitute part of the text 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, wherein 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)."
2.7. The provisions of the Constitutional Court ruling of 22
October 2007, construction of which is requested by the Šiauliai
Regional Court and the Supreme Court of Lithuania, the
petitioners, constitute part of the text of the second paragraph
of Item 12.2 of Chapter IV of the reasoning part of the
Constitutional Court ruling of 22 October 2007, wherein it is
inter alia held:
"<...> the Constitution does not in essence prevent such
legal regulation established by law where the 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); such
exceptional legal regulation would be constitutionally grounded,
since, otherwise, i.e. without establishing such legal
regulation, the decision of corresponding cases—administration of
justice—would slow down and, thus, preconditions could be created
to injure the rights and legitimate interests of persons and
certain constitutional values would be violated; such a judge
must be dismissed as soon as the corresponding legal fact, to
which the extension of powers of the judge is related, happens—
the consideration of corresponding cases is finished
(Constitutional Court ruling of 9 May 2006). 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 that
stem from the Constitution are applied to him, he has the same
responsibility and immunities as other judges. Thus, he has the
same workload (inter alia because of the fact that in the said
court, the position of a judge who must carry out an important
constitutional function—to administer justice—is 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."
3. Thus, these petitions of the Šiauliai Regional Court and
the Supreme Court of Lithuania, the petitioners, requesting to
construe the corresponding provisions of the Constitutional Court
rulings, are to be treated as the requests to construe whether:
- the provision "The Constitution does not in essence
prevent such legal regulation established by law where the 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)" 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 provisions "<...> the Constitution does not in
essence prevent such legal regulation established by law where
the 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); such exceptional legal regulation would be
constitutionally grounded, since, otherwise, i.e. without
establishing such legal regulation, the decision of corresponding
cases—administration of justice—would slow down and, thus,
preconditions could be created to injure the rights and
legitimate interests of persons and certain constitutional values
would be violated; such a judge must be dismissed as soon as the
corresponding legal fact, to which the extension of powers of the
judge is related, happens—the consideration of corresponding
cases is finished (Constitutional Court ruling of 9 May 2006). 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 that stem from the Constitution are applied to him,
he has the same responsibility and immunities as other judges.
Thus, he has the same workload (inter alia because of the fact
that in the said court, the position of a judge who must carry
out an important constitutional function—to administer justice—is
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 inter
alia mean that the judge, during the period of the extension of
his powers, may administer justice as a full-fledged judge (inter
alia be a judge, a judge-rapporteur, and a member of the college)
also in other cases, which are assigned to his consideration
after his powers have been extended;
- the provisions "<...> the Constitution does not in essence
prevent such legal regulation established by law where the 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); such
exceptional legal regulation would be constitutionally grounded,
since, otherwise, i.e. without establishing such legal
regulation, the decision of corresponding cases—administration of
justice—would slow down and, thus, preconditions could be created
to injure the rights and legitimate interests of persons and
certain constitutional values would be violated; such a judge
must be dismissed as soon as the corresponding legal fact, to
which the extension of powers of the judge is related, happens—
the consideration of corresponding cases is finished
(Constitutional Court ruling of 9 May 2006). 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 that
stem from the Constitution are applied to him, he has the same
responsibility and immunities as other judges. Thus, he has to
receive the same workload (inter alia because of the fact that in
the said court the position of a judge who must carry out an
important constitutional function—to administer justice—is 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 inter
alia mean that the judge whose powers have been extended may
administer justice as a full-fledged judge (inter alia be a
judge, a judge-rapporteur, and a member of the college) in other
cases (which are assigned for his consideration after his powers
have been extended), inter alia also after the consideration of
certain cases, the consideration of which was not finished at the
time (on the day) when powers of that judge were extended, has
already been finished.
III
1. While construing the indicated provisions of the
Constitutional Court ruling of 9 May 2006, it needs to be noted
that, in the constitutional justice case wherein the said
Constitutional Court ruling was adopted, investigation was
carried out inter alia regarding the compliance of Paragraph 3 of
Article 57 (wording of 28 January 2003) of the Law on Courts with
the Constitution. The following was prescribed in the said
paragraph: when a judge of the Supreme Court of Lithuania, the
Court of Appeal of Lithuania and the Supreme Administrative Court
of Lithuania, a regional court and a regional administrative
court reaches the age of 65 years, his powers may be extended by
the institution which appointed him until he reaches the age of
70 years; in such cases the judge wishing to have an extension of
his powers shall apply to the President of the Republic; the
issue in respect of the extension of the judge's powers shall be
decided in accordance with the procedure for the appointment of a
judge of an appropriate court as laid down in the Law on Courts.
In the aforementioned constitutional justice case subsequent to
the petitions of a group of Members of the Seimas and the Court
of Appeal of Lithuania, the petitioners, while deciding whether
Paragraph 3 of Article 57 (wording of 28 January 2003) of the Law
on Courts is not in conflict with the Constitution, the
Constitutional Court pointed out that, first of all, it is
necessary to establish whether the institute of the extension of
powers of the judge entrenched in this paragraph is in line with
the principle of the independence of the judge, which is inter
alia entrenched in the Constitution, whether this institute does
not create preconditions to influence in any way, even
indirectly, administration of justice and, thus, to violate the
principle of the independence of the judge.
2. In the Constitutional Court ruling of 9 May 2006, the
provision "If the judge's term of powers expires while a case is
still pending, his powers are extended till the consideration of
the case is finished or its consideration is postponed" of
Paragraph 5 (wording of 24 January 2002) of Article 57 of the Law
on Courts was assessed by the Constitutional Court as
constitutionally grounded. Paragraph 3 of Article 57 (wording of
28 January 2003) of the Law on Courts, which entrenched the
possibility to extend powers of a judge of the Supreme Court of
Lithuania, the Court of Appeal of Lithuania and the Supreme
Administrative Court of Lithuania, a regional court and a
regional administrative court who has reached the age of 65 years
until he reaches the age of 70 years, in the aforementioned
Constitutional Court ruling was recognised to be in conflict with
the Constitution.
3. It has been mentioned that no official constitutional
doctrinal provision of a Constitutional Court ruling or its other
final act may be construed in isolation, by ignoring its meaning
and systemic links with the other official constitutional
doctrinal provisions set forth in that Constitutional Court
ruling or its other final act, in other Constitutional Court
acts, as well as with other provisions (explicit and implicit) of
the Constitution.
4. The official constitutional doctrine related with the
term of powers of the judge (inter alia extension thereof) was
developed not only in the Constitutional Court ruling of 9 May
2006, but also in other Constitutional Court acts, inter alia the
Constitutional Court ruling of 22 October 2007, construction of
the corresponding provisions of which is also requested by the
petitioners. Therefore, the construed provisions of the
Constitutional Court rulings of 9 May 2006 and 22 October 2007
are to be construed in conjunction with one another, by taking
account of the whole context of the official constitutional
doctrine, inter alia other constitutional doctrinal provisions
that are set forth in the indicated rulings.
5. The Constitutional Court has held more than once that one
of the guarantees of the independence of the judge entrenched in
the Constitution is the guarantee of the term of his powers
(Constitutional Court rulings of 6 December 1995, 21 December
1999, 12 July 2001, and 9 May 2006). Only an independent court,
thus, only such whose judges are guaranteed the inviolability of
the term of their office may be considered as one administering
justice as required by the Constitution (Constitutional Court
ruling of 9 May 2006). The guarantee of the inviolability of the
term of powers of the judge is also important because of the fact
that a judge, whatever political forces are in power, must remain
independent and not conciliate to the possible change of
political forces (Constitutional Court rulings of 6 December
1995, 21 December 1999, and 9 May 2006). The principle of the
independence of the judge, entrenched in the Constitution,
implies only such legislative regulation of the term of powers of
the judge that, when appointing a judge, he would know the term
of his powers (until the time established by law or until he
reaches the pensionable age established by law); the term of
powers of the judge may not depend on the future decisions of the
state power institutions that have appointed him, which would be
grounded on free discretion (Constitutional Court rulings of 9
May 2006, 22 October 2007, 20 December 2007, and decision of 15
May 2009).
Such legal regulation when the possibility to extend the
term of powers of judges upon their expiration (irrespective of
the term for which powers of the judge are extended and of the
level of the court powers of whose judge are extended) is
provided may create preconditions for other persons to try to
influence the judge directly or indirectly in order that he, when
seeking extension of his powers, would make certain decisions in
the cases under his consideration; such legal regulation is to be
assessed as enabling someone to induce the judge to consider
cases and adopt decisions in them not only by obeying the law, as
required by the Constitution (Paragraph 3 of Article 109), but
also by heeding the fact how the decisions adopted in the cases
under his consideration will influence the possibility to extend
his powers in the future. In other words, such legal regulation
creates preconditions for a judge to adopt the decisions in the
cases under his consideration which would correspond not to the
concept of the justice of the judge himself, but to the concept
of the justice of other persons (Constitutional Court rulings of
9 May 2006, 22 October 2007, and decision of 15 May 2009).
6. In its rulings of 9 May 2006 and 22 October 2007, the
Constitutional Court also held that the Constitution does not in
essence prevent such legal regulation established by law where
the 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); such exceptional legal regulation would be
constitutionally grounded, since, otherwise, i.e. without
establishing such legal regulation, the decision of corresponding
cases—administration of justice—would slow down and, thus,
preconditions could be created to injure the rights and
legitimate interests of persons and to violate certain
constitutional values.
In its ruling of 9 May 2006, the Constitutional Court also
held: in every case on such extension of powers of the judge,
which is allowed only in the exceptional cases, a corresponding
legal act—a decree of the President of the Republic or (if powers
of a justice of the Supreme Court are extended) a Seimas
resolution must be passed; in every such case, the advice of the
special institution of judges provided for by law and specified
in Paragraph 5 of Article 112 of the Constitution on the
extension of powers is necessary; such advice of the said special
institution of judges to extend powers of the judge also means
its advice to dismiss the judge from office as soon as the
corresponding legal fact happens—the consideration of
corresponding cases is finished; powers of the judge must be
discontinued under the established procedure when the
corresponding legal fact, to which the extension of powers of the
judge is related, happens—the consideration of corresponding
cases is finished; when this legal fact, to which the extension
of powers of the judge is related, happens, it is not necessary
for the President of the Republic to apply to the special
institution of judges provided for by law and specified in
Paragraph 5 of Article 112 of the Constitution regarding the
dismissal of the judge from office when his powers have expired
or when he has reached the pensionable age established by law
once again (as the corresponding advice has already been
received).
Such legal regulation, when the possibility is provided to
extend powers of judges upon expiration of their term, save the
exceptions allowed by the Constitution itself, is incompatible
with the principle of the independence of the judge and courts
entrenched in the Constitution, with Paragraph 2 of Article 109
of the Constitution, under which, while administering justice,
judges and courts are independent, with Paragraph 3 of this
article, in which it is established that, while considering
cases, judges obey only the law, as well as with the
constitutional principle of a state under the rule of law
(Constitutional Court ruling of 9 May 2006).
7. The official constitutional doctrine related with
extension of powers of the judge was developed in the
Constitutional Court ruling of 22 October 2007, wherein it is
held: at the time when the consideration of the cases, to the
consideration of which the extension of powers of the judge is
related, 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 that stem from the
Constitution are applied to him, he has the same responsibility
and immunities as other judges; thus, he must receive the same
workload (inter alia because of the fact that in the said court,
the position of a judge who must carry out an important
constitutional function—to administer justice—is 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.
8. While construing whether the indicated provisions of the
Constitutional Court rulings of 9 May 2006 and 22 October 2007
mean that the judge, during the period of the extension of his
powers, may administer justice as a full-fledged judge (inter
alia be a judge, a judge-rapporteur, and a member of the college)
also in other cases, which are assigned for his consideration
after his powers have been extended, as it has been mentioned in
this decision, it needs to be noted: such legal regulation when
the possibility is provided to extend powers of judges upon
expiration of their term, save the exceptions allowed by the
Constitution itself, is incompatible with the principle of the
independence of the judge and courts entrenched in the
Constitution; however, the Constitution does not in essence
prevent such legal regulation established by law where the 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); such
exceptional legal regulation would be constitutionally grounded,
since, otherwise, i.e. without establishing such legal
regulation, the decision of corresponding cases—administration of
justice—would slow down and, thus, preconditions could be created
to injure the rights and legitimate interests of persons and to
violate certain constitutional values; in every case on such
extension of powers of the judge, which is allowed only in the
exceptional cases, a corresponding legal act—a decree of the
President of the Republic or (if powers of a justice of the
Supreme Court are extended) a Seimas resolution must be passed.
Thus, under the official constitutional doctrine, inter alia
formulated in the Constitutional Court rulings of 9 May 2006 and
22 October 2007, the Constitution allows, by means of the law, to
establish only exceptional legal regulation of extension of
powers of the judge. In this context it needs to be noted that,
as mentioned, when appointing a judge, he must know the term of
his powers (until the time established by law or until he reaches
the pensionable age established by law). Therefore, work of the
judge (inter alia assignment of cases for the judge's
consideration) must be organised so that on the day of the
expiration of powers of the judge he would have a possibility to
have finished the consideration of the cases assigned to him.
Thus, extension of powers of the judge is allowed only in
exceptional cases, i.e. when, upon expiry of the term of powers
of the judge or upon reaching the pensionable age established by
law and without extending his powers, the decision of
corresponding cases—administration of justice—would slow down
and, thus, preconditions could be created to injure the rights
and legitimate interests of persons and to violate certain
constitutional values. For example, the decision of cases would
slow down, if powers of the judge were not extended inter alia in
those cases when on the day of the expiration of his powers the
judge is finishing the consideration of the complicated cases,
wherein most procedural actions have been completed and the time
is required for completion of certain final actions, inter alia
adoption of the final decision (drawing up and promulgating
thereof).
It has been mentioned that in every case on such extension
of powers of the judge, which is allowed only in the exceptional
cases, a corresponding legal act—a decree of the President of the
Republic or (if powers of a justice of the Supreme Court are
extended) a Seimas resolution must be passed.
9. While construing whether the indicated provisions of the
Constitutional Court rulings of 9 May 2006 and 22 October 2007
mean that the judge, during the period of the extension of his
powers, may administer justice as a full-fledged judge (inter
alia be a judge, a judge-rapporteur, and a member of the college)
also in other cases, which are assigned for his consideration
after his powers have been extended, as it has been mentioned in
this decision, it needs to be noted: the 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 is
finished (final decisions therein will be adopted); while holding
this office he is a full-fledged judge; he must receive the same
workload (inter alia because of the fact that in the said court,
the position of a judge who must carry out an important
constitutional function—to administer justice—is 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; at that time such a
judge, whose powers have been extended on the aforesaid basis, as
such an exception is allowed by the Constitution itself, may not
be granted the social (material) guarantees of the judge which
are established (and applied) to judges upon expiry of their
powers.
Thus, the judge whose powers have been extended must, for a
certain period of time (until the term of the extension of his
powers has not expired), still receive the same workload as other
judges of the corresponding court, i.e. such a judge may consider
(until the term of the extension of his powers has not expired)
also such cases the consideration of which is started after his
powers, upon the expiry of the term of his office or upon
reaching the pensionable age established by law, have been
extended.
10. Taking account of the arguments set forth, one is to
draw a conclusion that the provision "The Constitution does not
in essence prevent such legal regulation established by law where
the 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)" 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 provisions "<...> the Constitution does not
in essence prevent such legal regulation established by law where
the 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); such exceptional legal regulation would be
constitutionally grounded, since, otherwise, i.e. without
establishing such legal regulation, the decision of corresponding
cases—administration of justice—would slow down and, thus,
preconditions could be created to injure the rights and
legitimate interests of persons and certain constitutional values
would be violated; such a judge must be dismissed as soon as the
corresponding legal fact, to which the extension of powers of the
judge is related, happens—the consideration of corresponding
cases is finished (Constitutional Court ruling of 9 May 2006). 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 that stem from the Constitution are applied to him,
he has the same responsibility and immunities as other judges.
Thus, he has the same workload (inter alia because of the fact
that in the said court, the position of a judge who must carry
out an important constitutional function—to administer justice—is
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 inter
alia mean that the judge whose powers have been extended must
receive the same workload as other judges of the corresponding
court and, during the period of the extension of his powers, he
may administer justice as a full-fledged judge (inter alia be a
judge, a judge-rapporteur, and a member of the college) also in
other cases, which are assigned for his consideration after his
powers have been extended.
11. While construing whether the provisions of the
Constitutional Court ruling of 22 October 2007, indicated by the
Supreme Court of Lithuania, a petitioner, mean that the judge
whose powers have been extended may administer justice as a full-
fledged judge (inter alia be a judge, a judge-rapporteur, and a
member of the college) in other cases (which are assigned for his
consideration after his powers have been extended), inter alia
also after the consideration of certain cases, the consideration
of which was not finished at the time (on the day) when powers of
that judge were extended, has already been finished, it needs to
be noted that, as it was held in the Constitutional Court ruling
of 9 May 2006, the 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). Thus, the expiration of the term of the extension of
powers of the judge is linked to the end of the 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, inter alia to the
adoption of final decisions in these cases or postponement of the
consideration of these cases.
It has been mentioned that, as it was held in the
Constitutional Court ruling of 9 May 2006, the advice of the
special institution of judges provided for by law and specified
in Paragraph 5 of Article 112 of the Constitution to the
President of the Republic on the extension of powers of the judge
also means its advice to dismiss the judge from office as soon as
the corresponding legal fact happens—the consideration of
corresponding cases is finished; powers of the judge must be
discontinued under the established procedure as soon as the
corresponding legal fact, to which the extension of powers of the
judge is related, happens—the consideration of corresponding
cases is finished; when this legal fact, to which the extension
of powers of a judge is related, happens, it is not necessary for
the President of the Republic to apply to the special institution
of judges provided for by law and specified in Paragraph 5 of
Article 112 of the Constitution regarding the dismissal of the
judge from office when his powers have expired or when he has
reached the pensionable age established by law once again (as the
corresponding advice has already been received).
Thus, the judge, when the legal fact to which the extension
of his powers is related happens, i.e. when he finishes the
consideration of the 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 and for the period of the consideration whereof his powers
have been extended, must be dismissed from office. Powers of the
judge must be discontinued under the established procedure as
soon as the aforementioned legal fact happens—the consideration
of the cases to the consideration of which the term of the
extension of powers of the judge is related is finished.
Consequently, such a judge must be dismissed from office and he
may no longer consider any other cases (inter alia the cases
which were assigned for his, as a full-fledged judge,
consideration during the period of the extension of his powers
and the consideration of which has not been finished until the
day when the consideration of the cases, to the consideration of
which the term of the extension of his powers is related, is
finished).
12. Taking account of the arguments set forth, one is to
draw a conclusion that the provisions "<...> the Constitution
does not in essence prevent such legal regulation established by
law where the 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); such exceptional legal regulation would be
constitutionally grounded, since, otherwise, i.e. without
establishing such legal regulation, the decision of corresponding
cases—administration of justice—would slow down and, thus,
preconditions could be created to injure the rights and
legitimate interests of persons and certain constitutional values
would be violated; such a judge must be dismissed as soon as the
corresponding legal fact, to which the extension of powers of the
judge is related, happens—the consideration of corresponding
cases is finished (Constitutional Court ruling of 9 May 2006). 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 that stem from the Constitution are applied to him,
he has the same responsibility and immunities as other judges.
Thus, he has to receive the same workload (inter alia because of
the fact that in the said court, the position of a judge who must
carry out an important constitutional function—to administer
justice—is 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 inter alia mean that the judge whose powers have been
extended may administer justice as a full-fledged judge (inter
alia be a judge, a judge-rapporteur, and a member of the college)
also in other cases (which are assigned for his consideration
after his powers have been extended) but only until the
consideration of certain cases, the consideration of which was
not finished at the time (on the day) when powers of that judge
were extended, is finished.
Conforming to Article 102 of the Constitution of the
Republic of Lithuania and Articles 1 and 61 of the Law on the
Constitutional Court of the Republic of Lithuania, the
Constitutional Court of the Republic of Lithuania has passed the
following
decision:
1. To construe that the provision "The Constitution does not
in essence prevent such legal regulation established by law where
the 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)" 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 (Official Gazette Valstybės žinios, 2006, No. 51-1894) as
well as the provisions "<...> the Constitution does not in
essence prevent such legal regulation established by law where
the 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); such exceptional legal regulation would be
constitutionally grounded, since, otherwise, i.e. without
establishing such legal regulation, the decision of corresponding
cases—administration of justice—would slow down and, thus,
preconditions could be created to injure the rights and
legitimate interests of persons and certain constitutional values
would be violated; such a judge must be dismissed as soon as the
corresponding legal fact, to which the extension of powers of the
judge is related, happens—the consideration of corresponding
cases is finished (Constitutional Court ruling of 9 May 2006). 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 that stem from the Constitution are applied to him,
he has the same responsibility and immunities as other judges.
Thus, he has the same workload (inter alia because of the fact
that in the said court, the position of a judge who must carry
out an important constitutional function—to administer justice—is
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
(Official Gazette Valstybės žinios, 2007, No. 110-4511) inter
alia mean that the judge, during the period of the extension of
his powers, may administer justice as a full-fledged judge (inter
alia be a judge, a judge-rapporteur, and a member of the college)
also in other cases which are assigned for his consideration
after his powers have been extended.
2. To construe that the provisions "<...> the Constitution
does not in essence prevent such legal regulation established by
law where the 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); such exceptional legal regulation would be
constitutionally grounded, since, otherwise, i.e. without
establishing such legal regulation, the decision of corresponding
cases—administration of justice—would slow down and, thus,
preconditions could be created to injure the rights and
legitimate interests of persons and certain constitutional values
would be violated; such a judge must be dismissed as soon as the
corresponding legal fact, to which the extension of powers of the
judge is related, happens—the consideration of corresponding
cases is finished (Constitutional Court ruling of 9 May 2006). 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 that stem from the Constitution are applied to him,
he has the same responsibility and immunities as other judges.
Thus, he has to receive the same workload (inter alia because of
the fact that in the said court, the position of a judge who must
carry out an important constitutional function—to administer
justice—is 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 (Official Gazette Valstybės žinios, 2007, No. 110-4511)
inter alia mean that the judge whose powers have been extended
may administer justice as a full-fledged judge (inter alia be a
judge, a judge-rapporteur, and a member of the college) also in
other cases (which are assigned for his consideration after his
powers have been extended) but only until the consideration of
certain cases, the consideration of which was not finished at the
time (on the day) when powers of that judge were extended, is
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