Case No. 04/08-11/08
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
RULING
ON THE COMPLIANCE OF PARAGRAPH 2 (WORDING OF 18
DECEMBER 2007) OF ARTICLE 16 OF THE REPUBLIC OF
LITHUANIA LAW ON THE PROCEEDINGS OF ADMINISTRATIVE
CASES WITH THE CONSTITUTION OF THE REPUBLIC OF
LITHUANIA AND ON THE COMPLIANCE OF DECREE OF THE
PRESIDENT OF THE REPUBLIC OF LITHUANIA NO. 1K-988 "ON
THE DISMISSAL OF A MEMBER OF THE STATE GAMING CONTROL
COMMISSION" OF 29 MAY 2007 WITH THE CONSTITUTION OF
THE REPUBLIC OF LITHUANIA AND PARAGRAPH 4 OF ARTICLE
26 (WORDING OF 4 JULY 2003) OF THE REPUBLIC OF
LITHUANIA LAW ON GAMING
13 May 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 presence of the representative of the Seimas of the
Republic of Lithuania, a party concerned, who was Julius
Sabatauskas, a Member of the Seimas (representing the Seimas of
the Republic of Lithuania, a party concerned, in the part of the
case subsequent to petition No. 1B-04/2008 of the Vilnius
Regional Administrative Court, a petitioner, and subsequent to
petition No. 1B-13/2008 of the Supreme Administrative Court of
Lithuania, a petitioner),
the representative of the President of the Republic of
Lithuania, a party concerned, who was Rasa Svetikaitė, an Advisor
to the President of the Republic (representing the President of
the Republic of Lithuania, a party concerned, in the part of the
case subsequent to petition No. 1B-04/2008 of the Vilnius
Regional Administrative Court, a petitioner),
pursuant to Articles 102 and 105 of the Constitution of the
Republic of Lithuania and Article 1 of the Law on the
Constitutional Court of the Republic of Lithuania, in its public
hearing on 23 April 2010, heard case No. 04/08-11/08 subsequent
to:
1) the petition of the Vilnius Regional Administrative
Court, a petitioner, requesting to investigate whether Paragraph
2 (wording of 18 December 2007) of Article 16 of the Republic of
Lithuania Law on the Proceedings of Administrative Cases, to the
extent that it is established that investigation of the
activities of the President of the Republic is outside the
jurisdiction of administrative courts, is not in conflict with
Paragraph 1 of Article 29 and Article 109 of the Constitution of
the Republic of Lithuania as well as whether Decree of the
President of the Republic of Lithuania No. 1K-988 "On the
Dismissal of a Member of the State Gaming Control Commission" of
29 May 2007 is not in conflict with Item 10 of Article 84 of the
Constitution of the Republic of Lithuania and Paragraph 4 of
Article 26 of the Republic of Lithuania Law on Gaming (petition
No. 1B-04/2008);
2) the petition of the Supreme Administrative Court of
Lithuania, a petitioner, requesting to investigate whether
Paragraph 2 (wording of 18 December 2007) of Article 16 of the
Republic of Lithuania Law on the Proceedings of Administrative
Cases, to the extent that it is established that investigation of
the activities of the Government of the Republic of Lithuania (as
a collegial body) is outside the jurisdiction of administrative
courts, is not in conflict with Paragraph 1 of Article 30 of the
Constitution of the Republic of Lithuania (petition No. 1B-13/
2008).
By the Constitutional Court Decision "On Joining Petitions
into One Case" of 6 April 2010, petition No. 1B-04/2008 (case No.
04/08) of the Vilnius Regional Administrative Court, a
petitioner, and petition No. 1B-13/2008 (case No. 11/08) of the
Supreme Administrative Court of Lithuania, a petitioner, were
joined into one case and it was given reference No. 04/08-11/08.
The Constitutional Court
has established:
I
1. The Vilnius Regional Administrative Court, a petitioner,
was investigating an administrative case. By its ruling the said
court suspended the consideration of the case and applied to the
Constitutional Court with a petition requesting to investigate
whether:
- Paragraph 2 (wording of 18 December 2007) of Article 16 of
the Law on the Proceedings of Administrative Cases, to the extent
that it is established that investigation of the activities of
the President of the Republic is outside the jurisdiction of
administrative courts, is not in conflict with Paragraph 1 of
Article 29 and Article 109 of the Constitution;
- Decree of the President of the Republic No. 1K-988 "On the
Dismissal of a Member of the State Gaming Control Commission" of
29 May 2007 (hereinafter also referred to as Decree of the
President of the Republic No. 1K-988 of 29 May 2007) is not in
conflict with Item 10 of Article 84 of the Constitution and
Paragraph 4 of Article 26 of the Law on Gaming.
2. The Supreme Administrative Court of Lithuania, a
petitioner, was investigating an administrative case. By its
ruling the Supreme Administrative Court of Lithuania suspended
the consideration of the case and applied to the Constitutional
Court with a petition requesting to investigate whether Paragraph
2 (wording of 18 December 2007) of Article 16 of the Law on the
Proceedings of Administrative Cases, to the extent that it is
established that investigation of the activities of the
Government (as a collegial body) is outside the jurisdiction of
administrative courts, is not in conflict with Paragraph 1 of
Article 30 of the Constitution.
II
1. The petition of the Vilnius Regional Administrative
Court, a petitioner, is substantiated by the following arguments.
The petitioner points out that the dispute arose regarding
service-related relations (the dismissal of an official from
office) as well as the reimbursement of property and non-property
damage. In the opinion of the petitioner, under Items 3 and 5 of
Paragraph 1 of Article 15 of the Law on the Proceedings of
Administrative Cases, the administrative court should have the
right to consider such a case, however, the legal regulation
entrenched in Paragraph 2 of Article 16 of the same law, under
which investigation of the cases concerning the activities of the
President of the Republic, also the activities when passing a
legal act (decree) of one-time application, is outside the
jurisdiction of the administrative court, implies such a
situation where the citizens, while seeking to defend their
rights and legitimate interests, may not apply to the
administrative court regarding the individual legal acts
(decrees) of one-time application adopted with regard to them by
the President of the Republic, whereby certain rights and duties
are created for them. By making reference to the provisions of
the official constitutional doctrine that disclose the concept of
constitutional justice and elucidate the principle of
constitutional equality of rights of persons, the petitioner
maintains that the provision of Paragraph 2 of Article 16 of the
Law on the Proceedings of Administrative Cases that investigation
of the activities of the President of the Republic is outside the
jurisdiction of administrative courts is in conflict with the
principle of equality of persons entrenched in Paragraph 1 of
Article 29 of the Constitution as well as with Article 109 (inter
alia Paragraph 1 thereof) of the Constitution.
The petitioner had doubts whether Decree of the President of
the Republic No. 1K-988 of 29 May 2007, whereby Petras Navikas,
upon taking account of the decision of the Chief Official Ethics
Commission of 13 April 2006 and the ruling of the Supreme
Administrative Court of Lithuania of 24 June 2007, was dismissed
from the office of a member of the State Gaming Control
Commission, is not in conflict with Item 10 of Article 84 of the
Constitution, wherein it is established that the President of the
Republic shall dismiss, according to the established procedure,
state officials provided for by laws, and with the provisions of
Paragraph 4 of Article 26 of the Law on Gaming, which provide for
the grounds of dismissal of a member of the State Gaming Control
Commission prior to the expiry of the term of office. The
petitioner notes that among the grounds for dismissal of a member
of the State Gaming Control Commission prior to the expiry of the
term of office, which are entrenched in Paragraph 4 of Article 26
of the Law on Gaming, there is no such one on the basis of which
the President of the Republic, upon taking account of the
decision of the Chief Official Ethics Commission and the court
ruling whereby such a decision was left to be in force, could
dismiss a member of the State Gaming Control Commission, an
official appointed by him.
The petitioner notes that, in its response, the Office of
the President of the Republic, the respondent, does not indicate
any concrete norms of law which were applied in the course of the
adoption of the decree of the President of the Republic.
2. The petition of the Supreme Administrative Court of
Lithuania, a petitioner, is substantiated by the following
arguments.
The provision of Paragraph 2 of Article 16 of the Law on the
Proceedings of Administrative Cases that investigation of the
activities of the Government (as a collegial body) is outside the
jurisdiction of administrative courts is designed to limit the
competence of administrative courts.
In the opinion of the petitioner, the provision of Paragraph
2 of Article 16 of the Law on the Proceedings of Administrative
Cases that administrative courts shall not investigate the
activities of the Government (as a collegial body) may be
construed as prohibiting administrative courts to investigate not
only the lawfulness of legal acts adopted by this institution,
but also its other actions or failure to act ("activities") while
performing the functions assigned to it in the Constitution and
the laws.
According to the petitioner, such construction of the legal
regulation established in Paragraph 2 of Article 16 of the Law on
the Proceedings of Administrative Cases may imply a situation
where persons will not have the possibility to defend their
rights and legitimate interests which will be violated by the
actions of the Government (as a collegial body) or by its failure
to act. Disputes arising from the activities of the Government in
the course of implementation of laws, particularly, when adopting
individual decisions or not adopting them, are, in essence, of
administrative character and, therefore, according to their legal
nature, might be investigated in administrative courts.
III
1. In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were received
from the representative of the Seimas, a party concerned, who was
J. Sabatauskas, a Member of the Seimas, wherein it is maintained
that the disputed Paragraph 2 of Article 16 of the Law on the
Proceedings of Administrative Cases, to the extent that it is
established that investigation of the activities of the
Government (as a collegial body) is outside the jurisdiction of
administrative courts, is not in conflict with Paragraph 1 of
Article 30 of the Constitution. The position of the
representative of the Seimas, a party concerned, is substantiated
by the following arguments.
1.1. One may not construe Paragraph 1 of Article 30 of the
Constitution by separating it from Articles 5, 6, 29, 31, 102,
105, 106, 107, 109, 110, and 111 of the Constitution, which
entrench the system of institutions executing state power, the
concept of administration of justice, equality of rights of
persons, the right to a fair and impartial court, the
independence of judges and courts while administering justice,
and the duty of the judge to suspend the consideration of a case
when he applies to the Constitutional Court. The said articles of
the Constitution are related both among themselves and with other
norms and principles of the Constitution. All constitutional
provisions are also to be construed in the context of the
constitutional principle of a state under the rule of law, which
is a universal principle and which grounds the whole system of
Lithuanian law as well as the Constitution itself.
1.2. Under Article 109 of the Constitution as well as the
principle of a state under the rule of law and that of justice, a
duty arises for the court to make use of all possibilities so
that the objective truth would be established in the case and a
just decision would be adopted. It is not possible to adopt a
just decision having not investigated the case, and in order to
do this, it is necessary to collect all the evidence in the case,
to investigate all the factual circumstances and to assess them.
Irrespective of their place in the instance system of courts,
which is entrenched in Paragraphs 1 and 2 of Article 111 of the
Constitution, courts, while executing their constitutional
obligationjustice, have a duty to collect and record evidence in
the cases under investigation. This duty pertains to courts
(judges) not only in the cases when the court (judge) has no
doubts as regards the compliance of the legal acts (or parts
thereof) adopted by the entities of state power (legislative and
executive) which are applicable in a concrete case with the
Constitution, but also in the cases when the court (judge) has
such doubts and it initiates a constitutional justice case at the
Constitutional Court. The evidence collected in the case under
investigation by the court (judge) enables the court (judge) to
adopt a just decision and, when initiating a constitutional
justice case at the Constitutional Court, to substantiate the
doubts and set forth the position regarding the compliance of a
legal act (or part thereof) adopted by an entity of state power
(legislative and executive), which is applicable in the case and
the verification of the constitutionality of which is entrusted
to the Constitutional Court, with the Constitution or the laws.
In the constitutional justice case at issue, the provision
"Investigation of the activities of <...> the Government (as a
collegial body) <...> shall be outside the jurisdiction of
administrative courts" of Paragraph 2 of Article 16 of the Law on
the Proceedings of Administrative Cases may not be construed as
an exception to the general rule that places the court (judge)
under the obligation to collect evidence in the case, to
establish the legal act adopted by an entity of state power
(legislative and executive) which is applicable in that case,
and, if doubts arise regarding its compliance with the
Constitution or the laws, on the grounds provided for in
Paragraph 2 of Article 110 of the Constitution, to initiate a
case at the Constitutional Court.
1.3. Collecting of evidence in the constitutional justice
case initiated by a court may not be treated at the
Constitutional Court as interference with the exceptional
competence of the Constitutional Court to consider the acts
indicated in Paragraphs 1 and 2 of Article 105 of the
Constitution and to adopt a decision, which is final not subject
to appeal. The provision "Investigation of the activities of
<...> the Government (as a collegial body) <...> shall be outside
the jurisdiction of administrative courts" of Paragraph 2 of
Article 16 of the Law on the Proceedings of Administrative Cases
may not be construed as establishing the duty (exclusively) for
the Constitutional Court alone to collect evidence in the
constitutional justice case under its consideration wherein the
petitioner is a court. The aforesaid provision, according to the
representative of the Seimas, a party concerned, does not
prohibit administrative courts also to collect evidence in those
cases when a court has initiated a constitutional justice case at
the Constitutional Court.
1.4. norms and principles entrenched in the Constitution
imply the model of the court as an institution administering
justice, where the court cannot be understood as a passive
observer of the process of cases. The court, seeking to
investigate all circumstances of the case objectively and
comprehensively and to adopt a just decision, as well as when
initiating constitutional justice cases at the Constitutional
Court, must be active and it has powers to perform procedural
actions (to collect evidence) by itself.
2. In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were received
from the representative of the President of the Republic, a party
concerned, who was R. Svetikaitė, an Advisor to the President of
the Republic, wherein it is maintained that Decree of the
President of the Republic No. 1K-988 of 29 May 2007 is not in
conflict with Item 10 of Article 84 of the Constitution and
Paragraph 4 of Article 26 (wording of 4 July 2003) of the Law on
Gaming. The position of the representative of the President of
the Republic, a party concerned, is substantiated by the
following arguments.
2.1. The list of the grounds for dismissal from office of a
member of the State Gaming Control Commission, which is provided
for in Paragraph 4 of Article 26 of the Law on Gaming, is not
final. Such a conclusion is to be drawn on the basis of the
provision of Paragraph 7 of Article 26 of the Law on Gaming
whereby members of the State Gaming Control Commission are held
liable in accordance with the procedure established in the Labour
Code and other legal acts. This provision inter alia means that
the grounds for dismissal of members of the State Gaming Control
Commission prior to the expiry of the term of office may be
established in other laws as well. One of such legal acts is the
Republic of Lithuania Law on the Adjustment of Public and Private
Interests in the State Service upon stating the violation of
provisions whereof the Chief Official Ethics Commission, under
Item 4 of Paragraph 6 of Article 23 of this law, may apply to the
President of the Republic regarding the dismissal of the
officials appointed by him or propose that the investigation
would be initiated, if reasoned information is obtained that the
officials appointed by the President of the Republic do not
comply with the requirements of this law.
2.2. The Law on the Adjustment of Public and Private
Interests in the State Service is applied not only to the state
servants who fall within the area of regulation of the Law on the
State Service, but also to members of the State Gaming Control
Commission.
While taking account of provisions of the Law on the
Adjustment of Public and Private Interests in the State Service,
the representative of the President of the Republic draws a
conclusion that the decision of the Chief Official Ethics
Commission, whereby the violation of the Law on the Adjustment of
Public and Private Interests in the State Service is stated, is
an independent ground provided for by the law to dismiss
officials appointed by the President of the Republic,
consequently, members of the State Gaming Control Commission
appointed by the President of the Republic as well.
IV
1. In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were received
from Tomas Vaitkevičius, Vice-minister of Justice of the Republic
of Lithuania, and Rūta Mackevičienė, Deputy Director General of
the European Law Department under the Ministry of Justice of the
Republic of Lithuania.
2. In the course of the preparation of the case for the
Constitutional Court hearing, by a letter of Česlovas Kazimieras
Blažys, the then Chairman of the State Gaming Control Commission,
the material related with the dismissal of P. Navikas from the
office of a member of the State Gaming Control Commission was
received.
V
1. At the Constitutional Court hearing, J. Sabatauskas, the
representative of the Seimas, a party concerned, virtually
reiterated the arguments set forth in his written explanations,
answered to the questions of the justices and provided
explanations regarding Paragraph 2 of Article 16 of the Law on
the Proceedings of Administrative Cases, to the extent that it is
established that investigation of the activities of the President
of the Republic is outside the jurisdiction of administrative
courts.
2. At the Constitutional Court hearing, R. Svetikaitė, the
representative of the President of the Republic, a party
concerned, virtually reiterated the arguments set forth in her
written explanations and answered to the questions of the
justices.
The Constitutional Court
holds that:
I
1. The Vilnius Regional Administrative Court, a petitioner,
requests to construe whether:
- Decree of the President of the Republic No. 1K-988 "On the
Dismissal of a Member of the State Gaming Control Commission" of
29 May 2007 is not in conflict with Item 10 of Article 84 of the
Constitution and Paragraph 4 of Article 26 of the Law on Gaming;
- Paragraph 2 (wording of 18 December 2007) of Article 16 of
the Law on the Proceedings of Administrative Cases, to the extent
that it is established that investigation of the activities of
the President of the Republic is outside the jurisdiction of
administrative courts, is not in conflict with Paragraph 1 of
Article 29 and Article 109 of the Constitution.
The petitioner does not indicate with what wording of
Paragraph 4 of Article 26 of the Law on Gaming the investigation
of the compliance of the disputed decree of the President of the
Republic is requested, however, it is clear from the arguments of
the petition that the petitioner requests to investigate whether
Decree of the President of the Republic No. 1K-988 is not in
conflict with Paragraph 4 of Article 26 of the Law on Gaming
which is set forth in the wording of 4 July 2003.
Although the petitioner requests to investigate the
compliance of Paragraph 2 (wording of 18 December 2007) of
Article 16 of the Law on the Proceedings of Administrative Cases
(to the corresponding extent) with inter alia entire Article 109
of the Constitution, however, it is clear from the arguments of
the petition that the petitioner requests to investigate whether
Paragraph 2 (wording of 18 December 2007) of Article 16 of the
Law on the Proceedings of Administrative Cases (to the
corresponding extent) is not in conflict with inter alia
Paragraph 1 of Article 109 of the Constitution.
2. The Supreme Administrative Court of Lithuania, a
petitioner, requests to investigate whether Paragraph 2 (wording
of 18 December 2007) of Article 16 of the Law on the Proceedings
of Administrative Cases, to the extent that it is established
that investigation of the activities of the Government (as a
collegial body) is outside the jurisdiction of administrative
courts, is not in conflict with Paragraph 1 of Article 30 of the
Constitution.
3. Taking account of the arguments presented in the
aforementioned petitions, in the constitutional justice case at
issue, the Constitutional Court will investigate whether:
- the provision "Investigation of the activities of the
President of the Republic <...>, the Government (as a collegial
body) <...> shall be outside the jurisdiction of administrative
courts" of Paragraph 2 (wording of 18 December 2007) of Article
16 of the Law on the Proceedings of Administrative Cases is not
in conflict with Paragraph 1 of Article 29, Paragraph 1 of
Article 30, and Paragraph 1 of Article 109 of the Constitution;
- Decree of the President of the Republic No. 1K-988 "On the
Dismissal of a Member of the State Gaming Control Commission" of
29 May 2007 is not in conflict with Item 10 of Article 84 of the
Constitution and Paragraph 4 of Article 26 (wording of 4 July
2003) of the Law on Gaming.
II
1. On 14 January 1999, the Seimas adopted the Republic of
Lithuania Law on the Proceedings of Administrative Cases, which
came into force on 1 May 1999.
Article 5 "Cases not Decided by Administrative Courts"
(wording of 14 January 1999) of this law inter alia prescribed:
"1. Administrative courts shall not hear cases assigned to
the competence of the Constitutional Court, also cases within the
competence of courts of general jurisdiction or other specialised
courts.
2. Investigation of the activities of the President of the
Republic, the Seimas, Members of the Seimas, the Prime Minister,
the Government (as a collegial body), the Seimas Controllers,
Justices of the Constitutional Court, the Supreme Court of
Lithuania, and the Court of Appeal of Lithuania, the procedural
actions of judges of other courts, also of prosecutors,
investigators, interrogators, connected with the administration
of justice or investigation of a case shall be outside the
jurisdiction of administrative courts.
<...>."
2. On 19 September 2000, the Seimas adopted the Republic of
Lithuania Law on Amending the Law on the Proceedings of
Administrative Cases by Article 1 whereof it amended the Law on
the Proceedings of Administrative Cases (wording of 14 January
1999 with subsequent amendments and supplements) and set it forth
in a new wording. The Law on the Proceedings of Administrative
Cases of the new wording came into force on 1 January 2001.
Article 16 "Cases not within the Jurisdiction of
Administrative Courts" (wording of 19 September 2000) of the Law
on the Proceedings of Administrative Cases inter alia prescribes:
"1. Administrative courts shall not hear cases assigned to
the competence of the Constitutional Court, also cases within the
competence of courts of general jurisdiction or other specialised
courts.
2. Investigation of the activities of the President of the
Republic, the Seimas, Members of the Seimas, the Prime Minister,
the Government (as a collegial body), Justices of the
Constitutional Court, the Supreme Court of Lithuania, and the
Court of Appeal of Lithuania, the procedural actions of judges of
other courts, also of prosecutors, investigators, interrogators,
and court bailiffs, connected with the administration of justice
or investigation of a case and also with the execution of
decisions shall be outside the jurisdiction of administrative
courts.
<...>."
3. On 3 April 2003, the Seimas adopted the Republic of
Lithuania Law on Amending Articles 16 and 109 of the Law on the
Proceedings of Administrative Cases, which came into force on 1
May 2003, by Article 1 whereof it amended Paragraph 2 (wording of
19 September 2000) of Article 16 of the Law on the Proceedings of
Administrative Cases and set it forth in the following way:
"Investigation of the activities of the President of the
Republic, the Seimas, Members of the Seimas, the Prime Minister,
the Government (as a collegial body), Justices of the
Constitutional Court, the Supreme Court of Lithuania, and the
Court of Appeal of Lithuania, the procedural actions of judges of
other courts, also of prosecutors, officials of pre-trial
investigation and bailiffs, connected with the administration of
justice or investigation of a case and also with the execution of
decisions shall be outside the jurisdiction of administrative
courts."
4. On 18 December 2007, the Seimas adopted the Republic of
Lithuania Law on Amending and Supplementing Articles 16 and 110
of the Law on the Proceedings of Administrative Cases, which came
into force on 29 December 2007, by Article 1 whereof it
supplemented Paragraph 2 (wording of 3 April 2003) of Article 16
of the Law on the Proceedings of Administrative Cases.
Paragraph 2 (wording of 18 December 2007) of Article 16 of
the Law on the Proceedings of Administrative Cases, the provision
whereof is being disputed in the constitutional justice case at
issue, prescribes:
"Investigation of the activities of the President of the
Republic, the Seimas, Members of the Seimas, the Prime Minister,
the Government (as a collegial body), Justices of the
Constitutional Court, the Supreme Court of Lithuania, and the
Court of Appeal of Lithuania, the procedural actions of judges of
other courts, also of prosecutors, officials of pre-trial
investigation and bailiffs, connected with the administration of
justice or investigation of a case, also with the execution of
decisions and decisions (recommendations) of the Seimas
Controller shall be outside the jurisdiction of administrative
courts."
5. Summing up the discussed legal regulation entrenched in
the Law on the Proceedings of Administrative Cases, in the
context of the constitutional justice case at issue it needs to
be held that the provision "Investigation of the activities of
the President of the Republic <...>, the Government (as a
collegial body) <...> shall be outside the jurisdiction of
administrative courts" of Paragraph 2 of Article 16 of the Law on
the Proceedings of Administrative Cases, which is being disputed
by the petitioners, since the entry into force of the Law on the
Proceedings of Administrative Cases on 1999 May 1 has remained
unchanged.
III
On the compliance of the provision "Investigation of the
activities of the President of the Republic <...>, the Government
(as a collegial body) <...> shall be outside the jurisdiction of
administrative courts" of Paragraph 2 (wording of 18 December
2007) of Article 16 of the Law on the Proceedings of
Administrative Cases with Paragraph 1 of Article 29, Paragraph 1
of Article 30, and Paragraph 1 of Article 109 of the
Constitution.
1. It has been mentioned that in the constitutional justice
case at issue the Constitutional Court is requested to
investigate inter alia the compliance of the provision
"Investigation of the activities of the President of the Republic
<...>, the Government (as a collegial body) <...> shall be
outside the jurisdiction of administrative courts" of Paragraph 2
(wording of 18 December 2007) of Article 16 of the Law on the
Proceedings of Administrative Cases with Paragraph 1 of Article
29, Paragraph 1 of Article 30, and Paragraph 1 of Article 109 of
the Constitution.
2. While deciding whether the disputed provision of the
aforementioned law is not in conflict with the provisions of the
Constitution, first of all, it is necessary to reveal
peculiarities of the constitutional status of the President of
the Republic and the Government.
3. The Constitutional Court has held that the state
exercises its functions through the system of respective
establishments, which comprise, first of all, state institutions;
the system of state institutions comprises various institutions;
the variety of these institutions, their legal status and powers
are determined by a variety of functions exercised by the state;
some state institutions are treated in the Constitution as state
institutions which execute state power. Such institutions are
specified in Paragraph 1 of Article 5 of the Constitution
(Constitutional Court ruling of 13 December 2004).
4. Paragraph 1 of Article 5 of the Constitution provides
that, in Lithuania, state power shall be executed by the Seimas,
the President of the Republic and the Government, and the
Judiciary.
This provision of the Constitution provides grounds for the
separation and balance of the powers of the state (Constitutional
Court ruling of 20 April 1999).
4.1. The Seimas is an institution of state power executing
the legislative power (Constitutional Court ruling of 13 May
2004).
The constitutional nature of the Seimas, as representation
of the Nation, determines its special place in the system of
institutions of state power, its functions and powers necessary
in order to discharge these functions (Constitutional Court
rulings of 13 May 2004, 1 July 2004, 4 April 2006 and decision of
15 January 2009).
The list of the constitutional powers of the Seimas
consolidated in Article 67 of the Constitution is not a final
one; the Seimas, as the representation of the Nation, has the
right to establish, by laws, also such its powers that are not
expressis verbis indicated in the Constitution which, however,
are designed for the implementation of the constitutional
functions of the Seimas (Constitutional Court ruling of 13 May
2004).
From the provisions of the Constitution which establish the
powers of the Seimas, it is clear that, while implementing its
constitutional powers, the Seimas discharges the classical
functions of the parliament of a democratic state under the rule
of law: the Seimas passes laws (the legislative function),
conducts the parliamentary control of executive and other state
institutions (save courts) (the control function), establishes
state institutions, appoints and dismisses their heads and other
state officials (the establishment function), confirms the State
Budget and supervises the execution thereof (the budgetary
function), etc. (Constitutional Court rulings of 13 May 2004, 1
July 2004, and 4 April 2006 and decision of 15 January 2009). The
said functions of the Seimas as the representation of the Nation
of a democratic state under the rule of law are constitutional
values. Under the Constitution, the legislator and other entities
of lawmaking may not establish any such legal regulation whereby
the said constitutional functions of the Seimas would be denied
or opportunities to discharge them would be restricted, since
thus the Seimas, the representation of the Nation, would be
hindered from effective actions in the interests of the Nation
and the State of Lithuania (Constitutional Court rulings of 13
May 2004 and 4 April 2006).
4.2. The constitutional arrangement of the State of
Lithuania has a specific feature of the model of dualistic
(double) executive power: the executive power in Lithuania is
exercised by the President of the Republic, the Head of State,
and the Government (Constitutional Court ruling of 13 December
2004).
4.2.1. The President of the Republic is a part of the
executive power (Constitutional Court rulings of 10 January 1998,
30 December 2003, and 13 December 2004).
Only one person, i.e. the President of the Republic, who is
elected by the citizens of the Republic of Lithuania, acquires
the status of the Head of State for the term established by the
Constitution. The legal status of the President of the Republic,
as the Head of State, is individual, it differs from the legal
status of all other citizens (Constitutional Court rulings of 8
May 2000, 19 June 2002, and 30 December 2003, conclusion of 31
March 2004, and ruling of 25 May 2004); the legal status of the
President of the Republic, as the Head of State, also differs
from the legal status of all other state officials
(Constitutional Court rulings of 19 June 2002, 30 May 2003, and
30 December 2003, conclusion of 31 March 2004, and ruling of 25
May 2004).
The individual exceptional legal status of the President of
the Republic, as the Head of State, is disclosed by various
provisions of the Constitution (Constitutional Court rulings of
19 June 2002, 30 May 2003, 30 December 2003, and 25 May 2004). It
needs to be mentioned that a part of the constitutional powers of
the President of the Republic, the Head of State, is linked with
an opportunity to form other institutions executing state power
and/or to exert influence on their activity, the decisions being
adopted, and on the lawmaking process (Constitutional Court
ruling of 25 May 2004). For example, enjoying the constitutional
powers to sign and officially promulgate laws, the President of
the Republic takes part in the legislative process
(Constitutional Court rulings of 19 January 1994, 19 June 2002,
and 22 February 2008); along with the Seimas, the President of
the Republic forms the Government; in this process, the main task
of the activities of the President of the Republic is to
guarantee the interaction among the institutions of power, and
act so that an efficient Government, i.e. having the confidence
of the Seimas, would be formed (Constitutional Court ruling of 10
January 1998); the powers of the President of the Republic in the
sphere of formation of the judiciary entrenched in the
Constitution are an important element of the constitutional
status of the Head of State; any change or restriction of the
powers of the President of the Republic in this area, as well as
any establishment of such a procedure for the implementation of
these powers when the actions of the President of the Republic
would be bound by decisions of the institutions or officials that
are not provided for in the Constitution, would mean a change of
the constitutional competence of the President of the Republic
(Constitutional Court rulings of 21 December 1999 and 9 May 2006
as well as decision of 15 May 2009).
Thus, the President of the Republic also has such
constitutional powers, when exercising which he may strongly
influence other institutions executing state power, i.e. the
Seimas, which exercises the legislative power, and the
Government, an institution of the executive power; the President
of the Republic, the Head of State, has also significant
constitutional powers in forming the judicial power. The
functioning of other institutions of state power considerably
depends upon the execution of the powers by the President of the
Republic, the Head of State, which are established for him in the
Constitution (Constitutional Court ruling of 25 May 2004).
Additional powers of the President of the Republic may be
established by laws; however, the nature of such new functions
must not cause dissonance nor oppose the constitutional powers of
the President of the Republic, nor contradict the constitutional
status of the Head of State of Lithuania (Constitutional Court
ruling of 4 March 1999).
From the Constitution arises a duty of the President of the
Republic, as the Head of State, to act, while exercising the
powers established for him in the Constitution and laws, so that
his actions would maintain harmonic interaction among the
institutions executing state power, that the citizens of the
Republic of Lithuania, the state community, could trust in the
institution of the President of the Republic, the Head of State,
that the State of Lithuania would be properly represented in its
relations with other countries and international organisations,
that the State of Lithuania would be able to duly perform its
international obligations, and that it might be ensured that
other entities of international relations (foreign states,
international organisations, etc.) could duly perform their
obligations to the State of Lithuania. The due fulfilment of the
said constitutional duty of the President of the Republic, the
Head of State, is an essential condition of the trust of the
citizens in the State of Lithuania itself, as the general good of
the entire society, and its institutions as well as a condition
of the trust of other entities of international relations in the
State of Lithuania as well (Constitutional Court ruling of 25 May
2004).
The President of the Republic, when implementing all the
powers that he is charged with, may not act by following the
objectives or interests which are not in line with the
Constitution and laws and the public interests (Constitutional
Court ruling of 30 December 2003, conclusion of 31 March 2004 and
ruling of 25 May 2004).
4.2.2. In the Lithuanian system of institutions of the
executive power, the Government implementing state administration
is exceptionally important; the Government is a joint institution
of general competence (Constitutional Court ruling of 10 January
1998). It is composed of the Prime Minister and Ministers
(Article 91 of the Constitution).
Only the main powers of the Government are entrenched in the
Constitution, and it is established therein that the Government
shall discharge the duties prescribed to it not only in the
Constitution but other laws as well (Item 7 of Article 94 of the
Constitution). Such constitutional regulation of the powers of
the Government is determined by the fact that the areas of state
governance and functions of governance are very much varied and
subject to change. The activity of the Government is not only of
executive but also procedural nature. Enforcing the laws and
resolutions adopted by the Seimas, the Government itself passes
normative and individual legal acts and ensures their enforcement
(Constitutional Court ruling of 23 November 1999).
Everything that the Government performs, while implementing
the powers established for it in the Constitution and laws, is
resolving of the affairs of state administration (Constitutional
Court rulings of 29 November 2001, 30 May 2003, and 26 February
2010).
Under Paragraph 1 of Article 95 of the Constitution, the
Government shall resolve the affairs of state governance at its
sittings by adopting resolutions by majority vote of all the
members of the Government. The affairs of state governance, which
are attributed to the powers of the Government by the
Constitution and laws, may not be decided by the Government
adopting an act of a different type (Constitutional Court rulings
of 29 November 2001, 30 May 2003, 3 December 2003, and 13 August
2007).
The provisions of the official constitutional doctrine that
the Government, while resolving the affairs of state governance,
must always adopt resolutions and that the legal acts adopted by
the Government have to be officially published, irrespective of
the fact whether these legal acts are normative or individual, as
well as irrespective of the fact for what subject or circle of
subjects they are designed, are not applicable to the Government
resolutions and the decisions which are adopted pursuant to
Paragraph 4 of the Constitutional Act "On the Membership of the
Republic of Lithuania in the European Union" (Constitutional
Court ruling of 27 June 2007).
In the context of the constitutional justice case at issue
it needs to be noted that the resolving of the affairs of state
governance by adopting corresponding acts or not adopting them at
the Government sittings is a special one: while deciding on such
affairs, the Government acts as one of the institutions executing
state power that are entrenched in Paragraph 1 of Article 5 of
the Constitution.
4.3. Courts are one kind of the institutions of state power
entrenched in the Constitution (Constitutional Court ruling of 6
June 2006). The judicial power implemented by courts
jurisdictional institutionstogether with the legislative and
executive branches of power, is a full-fledged branch of state
power, one of the branches of state power entrenched in the
Constitution (Constitutional Court rulings of 28 March 2006 and
27 November 2006).
Under the Constitution and laws, at present in Lithuania
there are three systems of courts: 1) the Constitutional Court
executes constitutional judicial control; 2) the Supreme Court of
Lithuania, the Court of Appeal of Lithuania, regional courts and
local courts, specified in Paragraph 1 of Article 111 of the
Constitution, constitute the system of courts of general
jurisdiction; 3) under Paragraph 2 of Article 111 of the
Constitution, one system of specialised courts, namely,
administrative ones, which is composed of the Supreme
Administrative Court of Lithuania and regional administrative
courts, is established and is functioning at present
(Constitutional Court rulings of inter alia 13 December 2004, 16
January 2006, 28 March 2006, 9 May 2006, 6 June 2006, 27 November
2006, and 22 October 2007).
In this context it needs to be noted that the Constitutional
Court is a part of the judiciary system (Constitutional Court
ruling of 6 June 2006).
Under Paragraph 1 of Article 102 of the Constitution, the
Constitutional Court has the exclusive competence to investigate
and decide on whether any act of the Seimas, the President of the
Republic or the Government, as well as any act (part thereof)
adopted by referendum is not in conflict with any act of higher
power, inter alia (and, first of all) with the Constitution
(Constitutional Court rulings of 28 March 2006 and 6 June 2006,
decision of 8 August 2006, and ruling of 24 October 2007). It
needs to be noted that the Constitutional Court investigates
whether precisely legal acts, but not non-adoption of law-making
decisions by state institutions (the Seimas, the President of the
Republic, the Government), i.e. avoidance or delay to adopt such
decisions, as well as failure to act, which is determined by
other motives, are not in conflict with legal acts of higher
power, inter alia (and, first of all) with the Constitution
(Constitutional Court decision of 8 August 2006).
5. The policy implemented by the Seimas, the President of
the Republic and the Government constitutes overall activities of
these institutions of power within the competence defined to them
in the Constitution and laws. Competent decisions and actions of
these institutions of power are an integral part of the policy
implemented by them (Constitutional Court ruling of 10 March
1998).
6. In its rulings the Constitutional Court has held more
than once that Article 5 of the Constitution (as well as other
articles of the Constitution which establish powers of the state
institutions executing state power) entrenches the principle of
separation of powers.
In its acts the Constitutional Court has held more than once
that the constitutional principle of separation of powers means
that the legislative, executive, and judicial powers are
separated, and sufficiently independent; but that there must be a
balance among them; that every institution of power has the
competence corresponding to its purpose whose concrete content
depends on the state power to which this institution belongs and
on the place of the institution among other institutions of state
power as well as the relation of its powers with those of other
institutions; that after the powers to a concrete institution of
state power have been directly established in the Constitution,
no institution of state power may either take over or transfer or
waive such powers; and that such powers may neither be changed
nor limited by means of a law (Constitutional Court rulings of
inter alia 14 January 2002, 5 March 2002, 23 April 2002, 11 July
2002, 24 December 2002, 13 May 2004, 13 December 2004, 6 June
2006, and 2 March 2009).
It needs to be emphasised that the interaction of state
powers may not be treated as their opposition or competition,
thus, also the checks and balances that the judicial power
(institutions thereof) and other state powers (institutions
thereof) have towards each other, may not be treated as
mechanisms of the opposition of powers. The model of reciprocity
among state powers entrenched in the Constitution is also
described by the reciprocal control and balance of state powers
(institutions thereof), which does not allow for one state power
to dominate in respect of the other (others), and by their
cooperation, of course, without overstepping the limits
established by the Constitutionwithout interfering in the
implementation of powers of other state power (Constitutional
Court ruling of 9 May 2006).
7. In the context of the constitutional justice case at
issue it needs to be noted that the peculiarities of the
constitutional status of the Seimas, the President of the
Republic, the Government, and the Judiciary related with the
implementation of state power and separation of state powers
inter alia imply that these institutions may not take over
constitutional powers of each other, thus, also the courts to
which persons concerned apply with petitions requesting to
investigate the acts adopted by the Seimas, the President of the
Republic, or the Government or otherwise expressed activities of
these institutions may not take over the constitutional powers of
the Seimas, the President of the Republic, or the Government, i.
e. adopt corresponding decisions for these institutions of power
or obligate the said institutions of power to pass acts related
with execution of state power.
In this context it needs to be noted that the Constitution
consolidates the powers of the Constitutional Court to
investigate and decide whether acts of the Seimas and acts (parts
thereof) of the President of the Republic, and the Government are
not in conflict with acts of higher power, inter alia (and, first
of all) with the Constitution. Every legal act (or part thereof)
passed by the Seimas, the President of the Republic, or the
Government, which is recognised as being in conflict with any
legal act of higher power, inter alia (and, first of all) with
the Constitution, is removed from the Lithuanian legal system for
good, it may never be applied anymore (Constitutional Court
rulings of 28 March 2006 and 6 June 2006 as well as decision of 4
July 2008). In this respect the legal power of such a legal act
is abolished (Constitutional Court decisions of 8 August 2006 and
1 February 2008). Consequently, such an act is nullified.
It also needs to be noted that the Seimas, the President of
the Republic, and the Government, while adopting new, amending
and supplementing already adopted laws and other legal acts, are
bound by the concept of the provisions of the Constitution and
other legal arguments set forth in the reasoning part of the
Constitutional Court ruling (Constitutional Court ruling of 30
May 2003).
8. It has been mentioned that in the constitutional justice
case at issue the Constitutional Court is requested to
investigate whether the provision "Investigation of the
activities of the President of the Republic <...>, the Government
(as a collegial body) <...> shall be outside the jurisdiction of
administrative courts" of Paragraph 2 (wording of 18 December
2007) of Article 16 of the Law on the Proceedings of
Administrative Cases is not in conflict with inter alia Paragraph
1 of Article 30 of the Constitution.
9. Article 30 of the Constitution prescribes: the person
whose constitutional rights or freedoms are violated shall have
the right to apply to court (Paragraph 1); compensation for
material and moral damage inflicted upon a person shall be
established by law (Paragraph 2).
9.1. Paragraph 1 of Article 30 of the Constitution
consolidates the constitutional principle of judicial defence.
This principle is universal; every person, who thinks that his
rights or freedoms have been violated, has the right to judicial
defence of his constitutional rights and freedoms that have been
violated; the defence of his violated rights in court is
guaranteed to the person regardless of his legal status; the
violated rights of the person as well as his legitimate interests
must be defended in court regardless of whether or not they are
directly consolidated in the Constitution; the right to apply to
court is an absolute one; this right may not be limited or
denied; the constitutional right of the person to apply to court
may not be artificially restricted, nor that the implementation
of this right may be unreasonably burdened; if the constitutional
right of the person to apply to court were not ensured, the
generally recognised legal principle ubi ius, ibi remediumif
there is a certain right (freedom), there must be a measure for
its protectionwould be also disregarded; such a legal situation
where a certain right or freedom of the person cannot be
defended, also by means of the judicial procedure, although the
person himself thinks that this right or freedom has been
violated, is, under the Constitution, impossible, nor does the
Constitution tolerate this (Constitutional Court rulings of inter
alia 18 April 1996, 8 May 2000, 30 June 2000, 17 August 2004, and
13 December 2004, as well as decision of 8 August 2006).
It needs to be noted that the legal regulation entrenching
the procedure of implementation of the right of a person to
judicial defence of his rights and freedoms must conform to the
constitutional requirement of legal clarity; the legislator must
clearly establish in laws in what manner and to which court a
person can apply, so that he would implement his right in reality
to apply to court regarding violation of his rights and freedoms
(Constitutional Court rulings of 29 December 2004, 27 November
2006, and 15 May 2007).
9.2. Paragraph 1 of Article 30 of the Constitution is to be
construed together with Paragraph 2 of the same article, wherein
it is established that compensation for material and moral damage
inflicted upon a person shall be established by law. The
Constitutional Court has held more than once that the necessity
to compensate material and moral damage inflicted upon a person
is a constitutional principle (Constitutional Court rulings of 20
January 1997, 13 December 2004, 19 August 2006, 27 March 2009,
and 3 February 2010).
The Constitution imperatively requires to establish by law
such legal regulation that a person, who was inflicted damage by
unlawful actions, would be able in all cases to claim for just
compensation for that damage and to receive that compensation
(Constitutional Court rulings of 19 August 2006, 27 March 2009,
and 3 February 2010). It does not follow from the Constitution
that it is possible by laws to establish some exceptions, under
which the material and/or moral damage inflicted upon the person
is not compensated, for example, because of the reason that it
was inflicted by unlawful actions of officials or institutions of
the state itself. If the law, let alone other legal act,
established such legal regulation whereby the state would fully
or partially avoid the duty to justly compensate for material
and/or moral damage inflicted by unlawful actions of institutions
or officials of the state itself, it would mean not only that the
constitutional concept of compensation for damage is disregarded
and that this is not line with the Constitution (inter alia
Paragraph 2 of Article 30 thereof), but it would also undermine
the raison d'?tre of the state itself, as the common good of the
whole society (Constitutional Court ruling of 19 August 2006).
10. It needs to be noted that the provisions of Article 30
of the Constitution are to be construed inseparably from other
provisions of the Constitution, inter alia Paragraph 1 of Article
109, establishing that, in the Republic of Lithuania, justice
shall be administered only by courts, and Paragraph 1 of Article
29, establishing that all persons shall be equal before the law,
the court, and other state institutions and officials.
10.1. While construing the content of Paragraph 1 of Article
109 of the Constitution, the Constitutional Court has more than
once inter alia held that administration of justice is the
purpose and constitutional competence of the judicial power
(Constitutional Court rulings of 28 March 2006 and 27 November
2006); while administering justice, the court must secure the
implementation of law as expressed in the Constitution, laws and
other legal acts, guarantee the superiority of law and protect
human rights and freedoms (Constitutional Court rulings of inter
alia 21 December 1999, 9 May 2006, 6 June 2006, 27 November 2006,
24 October 2007, 21 January 2008, 15 March 2008, 17 September
2008, and 10 April 2009, as well as decision of 22 April 2010);
also, while administering justice, the court must follow only the
laws and legal acts that are not in conflict with the
Constitution, and it may not apply a law, which is in conflict
with the Constitution (Constitutional Court rulings of 16 January
2006, 28 March 2006, 27 June 2007, 2 March 2009, and 22 June
2009).
10.2. While construing the content of Article 29 of the
Constitution, the Constitutional Court has held in its rulings
more than once that the principle of formal equality of all
persons must be also followed in the course of both enactment of
laws and their application, as well as in administration of
justice; this principle obligates to legally assess homogeneous
facts in the same manner and prohibits to arbitrarily assess
essentially homogeneous facts in a varied manner; the said
principle would be violated when a certain group of people to
which the legal norm is ascribed, if compared to other addressees
of the same legal norm, were treated differently, even though
there are not any differences in the character and extent between
these groups that such an uneven treatment would be objectively
justified (Constitutional Court rulings of inter alia 20 November
1996, 17 November 2003, 30 December 2003, and 13 December 2004).
11. In the context of the constitutional justice case at
issue it needs to be noted that: "<...> the fact that the
subjects specified in the Constitution may not dispute in the
Constitutional Court such failure of a law-making subject to act,
where, instead of the legal act (parts thereof) that was
recognised by the Constitutional Court as being in conflict with
a legal act of higher power, inter alia with the Constitution, it
has not passed a legal act (acts) which establish a new
(different) legal regulation harmonised with the said legal acts
of higher power, inter alia with the Constitution, while the
Constitutional Court does not have the powers to investigate non-
adoption of such law-making decisions, does not mean that the
aforementioned persons cannot defend their rights and freedoms
(as well as in court) at all, which are violated because the said
law-making decisions have not been adopted. The general legal
principle ubi ius, ibi remedium, the provision of Paragraph 1 of
Article 6 of the Constitution that the Constitution shall be a
directly applicable act, the constitutional principle of
responsible governance, the provision of Paragraph 3 of Article 5
of the Constitution that state institutions shall serve the
people, the provision of Article 18 of the Constitution that
human rights and freedoms shall be innate, as well as the right
of the person who thinks that his rights or freedoms have been
violated to apply to court, which is consolidated in the
Constitution, imply not only the fact that in such cases the
rights, freedoms, legitimate interests and legitimate
expectations must and may be defended by means of construction of
the Constitution and direct application of its provisions, but
also that such protection must be guaranteed by courts"
(Constitutional Court decision of 8 August 2006).
The aforesaid provisions of the constitutional doctrine
formulated in the Constitutional Court decision of 8 August 2006
are mutatis mutandis also applicable to those legal situations
where rights and freedoms of a person are violated because of the
fact that an act of the President of the Republic or the
Government has not been adopted, although its adoption is
required by a certain legal act of higher power, inter alia by
the Constitution.
12. The provision "Investigation of the activities of the
President of the Republic <...>, the Government (as a collegial
body) <...> shall be outside the jurisdiction of administrative
courts" of Paragraph 2 (wording of 18 December 2007) of Article
16 of the Law on the Proceedings of Administrative Cases, which
is being disputed by the petitioners, is to be construed by also
taking account of the provisions entrenched in other articles of
the Law on the Proceedings of Administrative Cases.
12.1. Paragraph 1 (wording of 19 September 2000) of Article
1 of the Law on the Proceedings of Administrative Cases
prescribes that this law establishes the procedure for the
hearing of administrative cases concerning disputes arising from
administrative legal relations.
Under Paragraph 16 of Article 2 (wording of 7 June 2007) of
the Law on the Proceedings of Administrative Cases,
administrative legal relations are public relations developing in
the process of implementation of public administration, which are
regulated by laws and other normative legal acts.
Paragraph 1 of Article 2 (wording of 7 June 2007) of the Law
on the Proceedings of Administrative Cases defines public
administration as the activity of entities of public
administration, which is regulated by laws and other legal acts
and the purpose whereof is implementation of laws and other
regulatory legal acts by adopting administrative decisions,
rendering administrative services provided for by laws,
administering the rendering of public services, and performing
internal administration of an entity of public administration.
Under Paragraph 17 of Article 2 (wording of 7 June 2007) of
the Law on the Proceedings of Administrative Cases,
administrative disputes are conflicts of persons with the
entities of public administration or conflicts between entities
of public administration which are not subordinate to each other.
The disputes between the employees and the administration as well
as electoral disputes are also assigned to administrative
disputes.
Paragraph 4 of Article 2 (wording of 7 June 2007) of the Law
on the Proceedings of Administrative Cases prescribes that the
entity of public administration is an institution, an
establishment, an official, a state servant, or other natural or
legal person who is authorised by laws to perform public
administration.
Article 3 "Disputes over Points of Law" (wording of 19
September 2000 with the amendment of 7 June 2007) of the Law on
the Proceedings of Administrative Cases prescribes:
"1. The administrative court shall settle disputes over
issues of law in public administration.
2. The court shall not offer assessment of the disputed
administrative act and actions (or failure to act) from the point
of view of political or economic expediency and shall only
establish whether there has not been in a specific case an
infringement of law or other legal act, whether the entity of
administration has not exceeded its competence, also whether the
act (deed) is not in conflict with the objectives and tasks for
the purpose whereof the institution has been set up and vested
with appropriate powers."
Thus, administrative courts decide administrative cases
concerning disputes arising from administrative legal relations,
which emerge inter alia during the performance of public
administration by state institutions. The Law on the Proceedings
of Administrative Cases does not contain any provisions that
administrative courts decide cases concerning disputes arising
from other, not administrative, legal relations.
12.2. Paragraph 1 (wording of 19 September 2000) of Article
16 of the Law on the Proceedings of Administrative Cases
prescribes: "Administrative courts shall not hear cases assigned
to the competence of the Constitutional Court, also cases within
the competence of courts of general jurisdiction or other
specialised courts."
Paragraph 2 (wording of 19 September 2000) of Article 4 of
the Law on the Proceedings of Administrative Cases prescribes:
"Provided that 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 court shall suspend the
consideration of the case and, with regard to the competence of
the Constitutional Court of the Republic of Lithuania, shall
apply to it with a petition to decide whether the law or other
legal act in question is in compliance with the Constitution.
After the court has received the ruling of the Constitutional
Court, the court shall renew the consideration of the case. The
said rules shall be also applied in the cases when the court has
doubts whether an act of the President of the Republic or the
Government, which is applicable in a concrete case, is not in
conflict with laws or the Constitution."
Thus, administrative courts do not hear cases assigned to
the competence of the Constitutional Court. The said courts must
suspend the consideration of the case and apply to the
Constitutional Court with a petition, provided that there are
grounds to believe that an act of the President of the Republic
or the Government, which is applicable in a concrete case, is in
conflict with laws or the Constitution. Consequently, the formula
"shall not hear cases" employed in Paragraph 1 (wording of 19
September 2000) of Article 16 of the Law on the Proceedings of
Administrative Cases is to be construed as inter alia meaning
that administrative courts may not decide as to whether inter
alia an act of the President of the Republic or the Government is
in conformity with the Constitution and laws. The said formula
cannot be construed as meaning that administrative courts may not
investigate the activities of the President of the Republic and
the Government inasmuch as such investigation is necessary to
substantiate doubts of these courts as regards the compliance of
an act of the President of the Republic or the Government with
the Constitution and laws.
13. While deciding whether the provision "Investigation of
the activities of the President of the Republic <...>, the
Government (as a collegial body) <...> shall be outside the
jurisdiction of administrative courts" of Paragraph 2 (wording of
18 December 2007) of Article 16 of the Law on the Proceedings of
Administrative Cases, which is being disputed by the petitioners,
is not in conflict with the provisions of the Constitution, it is
necessary to elucidate the concept of the formula "the activities
of the President of the Republic, the Government (as a collegial
body)" of this provision.
13.1. As mentioned, under Paragraph 1 of Article 5 of the
Constitution, the President of the Republic and the Government
are institutions executing state power.
It has also been mentioned that the peculiarities of the
constitutional status of the Seimas, the President of the
Republic, the Government, and the Judiciary related with the
implementation of state power and separation of state powers
inter alia imply that these institutions may not take over the
constitutional powers of each other, thus, also the courts to
which persons concerned apply with petitions requesting to
investigate acts adopted by the Seimas, the President of the
Republic, or the Government or the activities of these
institutions expressed in other ways may not take over the
constitutional powers of the Seimas, the President of the
Republic, or the Government, i.e. adopt corresponding decisions
for these institutions of power or obligate the said institutions
of power to pass acts related with the implementation of state
power.
Thus, the formula "the activities of the President of the
Republic, the Government (as a collegial body)" of Paragraph 2
(wording of 18 December 2007) of Article 16 of the Law on the
Proceedings of Administrative Cases means such activities whereby
state power is implemented. These activities may not be equated
with the activities embraced by the notion "public
administration" which is employed in the Law on the Proceedings
of Administrative Cases.
13.2. In this context the provision "Investigation of the
activities of the President of the Republic <...>, the Government
(as a collegial body) <...> shall be outside the jurisdiction of
administrative courts" of Paragraph 2 (wording of 18 December
2007) of Article 16 of the Law on the Proceedings of
Administrative Cases, which is being disputed in the
constitutional justice case at issue, is to be construed as inter
alia meaning that the subject matter of the administrative
dispute under consideration in the administrative court may not
be such activities of the President of the Republic or the
Government whereby state power is implemented.
14. In the context of the constitutional justice case at
issue it needs to be noted that, besides the discharge of state
functions assigned to them, the institutions implementing state
power also perform other activities, inter alia connected with
the discharge of functions of internal administration. It also
needs to be mentioned that the activities of the President of the
Republic or the Government can also cause violation of rights or
freedoms of a person, inter alia such activities can cause
damage.
In this context it needs to be noted that Paragraph 1 of
Article 15 "Cases within the Jurisdiction of Administrative
Courts" of the Law on the Proceedings of Administrative Cases
inter alia prescribes that administrative courts decide cases
concerning the lawfulness of legal acts adopted and actions
performed by the entities of state administration, also the
lawfulness and reasonableness of the refusal of these entities to
perform the actions which are attributed to their competence or
procrastination to perform such actions (Item 1 (wording of 19
September 2000)), compensation for the damage resulting from the
unlawful actions of the entities of public administration
(Article 6.271 of the Civil Code) (Item 3 (wording of 7 June
2007)), as well as service-related disputes where one of the
parties to the dispute is a state or municipal servant who has
powers of public administration (including officials and heads of
institutions) (Item 5 (wording of 19 September 2000)).
These provisions imply that administrative courts may
consider cases inter alia concerning the result or consequence of
the activities (failure to act) of the President of the Republic
or the Government whereby the rights or freedoms of a person have
been (could be) violated, inter alia concerning compensation for
damage.
15. It needs to be held that the provision "Investigation of
the activities of the President of the Republic <...>, the
Government (as a collegial body) <...> shall be outside the
jurisdiction of administrative courts" of Paragraph 2 (wording of
18 December 2007) of Article 16 of the Law on the Proceedings of
Administrative Cases does not prevent the person, who believes
that his rights and freedoms have been violated because of the
activities of the President of the Republic or the Government,
from implementing his right to apply to court, which is
entrenched in Paragraph 1 of Article 30 of the Constitution.
It also needs to be held that the disputed legal regulation,
established in Paragraph 2 (wording of 18 December 2007) of
Article 16 of the Law on the Proceedings of Administrative Cases,
also does not violate the constitutional imperatives that stem
from Paragraph 1 of Article 109 of the Constitution, which
provides that, in the Republic of Lithuania, justice shall be
administered only by courts, and Paragraph 1 of Article 29
thereof, which provides that all persons shall be equal before
the law, the court, and other state institutions and officials.
16. Taking account of the arguments set forth, one is to
draw a conclusion that the provision "Investigation of the
activities of the President of the Republic <...>, the Government
(as a collegial body) <...> shall be outside the jurisdiction of
administrative courts" of Paragraph 2 (wording of 18 December
2007) of Article 16 of the Law on the Proceedings of
Administrative Cases is not in conflict with Paragraph 1 of
Article 29, Paragraph 1 of Article 30, and Paragraph 1 of Article
109 of the Constitution.
IV
On the compliance of Decree of the President of the Republic
No. 1K-988 "On the Dismissal of a Member of the State Gaming
Control Commission" of 29 May 2007 with Item 10 of Article 84 of
the Constitution and Paragraph 4 of Article 26 (wording of 4 July
2003) of the Law on Gaming.
1. The Vilnius Regional Administrative Court, a petitioner,
requests inter alia to investigate whether Decree of the
President of the Republic No. 1K-988 "On the Dismissal of a
Member of the State Gaming Control Commission" of 29 May 2007 is
not in conflict with Item 10 of Article 84 of the Constitution
and Paragraph 4 of Article 26 (wording of 4 July 2003) of the Law
on Gaming.
2. Decree of the President of the Republic No. 1K-988 of 29
May 2007 prescribes:
"Article 1.
Pursuant to Item 10 of Article 84 of the Constitution of the
Republic of Lithuania and taking into account decision of the
Chief Official Ethics Commission No. KS-15 of 13 April 2006 and
ruling of the Supreme Administrative Court of Lithuania No. A-8-
524/2007 of 24 May 2007, I hereby dismiss Petras NAVIKAS from the
office of a member of the State Gaming Control Commission.
Article 2.
This decree shall come into force as from the day of its
signing."
3. While deciding whether Decree of the President of the
Republic No. 1K-988 of 29 May 2007, whereby P. Navikas, a member
of the State Gaming Control Commission, according to the
petitioner, was dismissed from office on the grounds not provided
for in the Law on Gaming, is not in conflict with Paragraph 4 of
Article 26 (wording of 4 July 2003) of the Law on Gaming, it is
important to elucidate the purpose and legal status of the State
Gaming Control Commission.
4. On 17 May 2001, the Seimas adopted the Law on Gaming,
which came into force (with a certain exception) on 1 July 2001.
Article 26 (wording of 17 May 2001) of the Law on Gaming
prescribed:
"1. The activities of entities that organise gaming shall be
supervised and controlled by the Control Commission. The Control
Commission shall comprise 6 persons. The President of the
Republic, the Speaker of the Seimas, and the Prime Minister shall
each appoint two persons to the Control Commission. The Chairman
of the Control Commission shall be elected from among its
members. An administration comprised of regular employees shall
be formed to perform the functions of the Control Commission. Its
structure and positions, without exceeding the fund of annual
remuneration for work established by the Government, shall be
approved by the Chairman of the Control Commission.
2. The regulations of the Control Commission shall be
approved by the Government.
3. The Control Commission shall have the objective of
supervising and controlling, in accordance with the procedure
established by legal acts, the organisation of gaming activities
to ensure the protection of interests and rights of players and
gaming organisers."
5. On 4 July 2003, the Seimas adopted the Republic of
Lithuania Law on Amending and Supplementing Articles 4, 6, 11,
and 26 of the Law on Gaming, which came into force on 25 July
2003, by Article 4 whereof it amended Article 26 (wording of 17
May 2001) of the Law on Gaming and set it forth in a new wording.
Article 26 (wording of 4 July 2003) of the Law on Gaming
prescribes:
"1. The activities of entities that organise gaming shall be
supervised and controlled by the Control Commission. The Control
Commission shall comprise 6 persons. The President of the
Republic, the Speaker of the Seimas, and the Prime Minister shall
each appoint two persons to the Control Commission for a term of
five years and shall dismiss the persons appointed.
2. The same person may be appointed a member of the Control
Commission for not more than two successive terms. The Chairman
of the Control Commission shall be elected from among its members
for a term of five years. The Chairman of the Control Commission
shall appoint one member of the Control Commission as Deputy
Chairman and one member of the Control Commission as secretary of
the Control Commission. The Chairman and members of the Control
Commission must be citizens of the Republic of Lithuania.
3. Upon expiry of the term of office, members of the Control
Commission shall continue to perform their duties until new
members are appointed.
4. A member of the Control Commission may be dismissed prior
to the end of his term of office if he:
1) resigns at his own request;
2) loses citizenship of the Republic of Lithuania;
3) does not work for more than 120 successive days or for
more than 140 days within the last twelve months due to temporary
incapacity or if a medical or disability commission concludes
that he cannot perform his duties;
4) upon the entry into force of a court judgement convicting
for a serious and grave premeditated crime or crime against
property, property rights, property interests, the economy, and
business practice or the financial system;
5) it transpires that he does not comply with the
requirements laid down in Article 11 of this Law.
5. The President of the Republic of Lithuania, the Speaker
of the Seimas, or the Prime Minister shall appoint other persons
for a term of five years to the position of the members of the
Control Commission dismissed prior to the end of their term in
office.
6. A member of the Control Commission may only hold office
in the Control Commission and may also be engaged in scientific
research or teaching activity.
7. Members of the Control Commission shall be given
incentives, be liable and be provided with social and other
guarantees in accordance with the procedure provided for in the
Labour Code of the Republic of Lithuania and other legal acts.
Members of the Control Commission shall be remunerated in
accordance with the Republic of Lithuania Law on the Remuneration
of State Politicians, Judges, and State Officials.
8. An administration comprised of state servants and
employees shall be formed to perform the functions of the Control
Commission. Its structure and a list of positions, without
exceeding the funds allocated for remuneration, shall be approved
by the Chairman of the Control Commission.
9. The regulations of the Control Commission shall be
approved by the Government.
10. The Control Commission shall have the objective of
supervising and controlling, in accordance with the procedure
established by legal acts, the organisation of gaming activities
to ensure the protection of interests and rights of players and
gaming organisers."
6. Item 5 of Paragraph 4 of Article 26 (wording of 4 July
2003) of the Law on Gaming, which entrenches one of the grounds
for dismissal from office of a member of the State Gaming Control
Commission, makes reference to Article 11 (wording of 4 July
2003) of the Law on Gaming wherein it is prescribed:
"1. Persons, or their close relatives and family members, in
respect of whom an operational investigation is under way
regarding the maintenance of an illegal gaming establishment
(casino) or illegal organisation of gaming or belonging to a
criminal association as well as persons with a conviction for
serious or grave premeditated crimes or crimes against property,
property rights, property interests, the economy, and business
practice or the financial system which has not expired or has not
been expunged may not be the founders (shareholders) of a gaming
company or its controllers, members of its supervisory council
and board of directors, heads of the administration and their
deputies, chief financiers, heads of the administration of a
gaming establishment (casino), bingo hall or gaming machine hall
and their deputies, chief financiers, personnel members providing
services to the players as well as members, state servants, and
employees of the Control Commission.
2. The gaming organiser shall be responsible for the
competence and professional skills of the personnel providing
services to the players."
7. Having compared the legal regulation established in
Article 26 (wording of 4 July 2003) of the Law on Gaming with the
one established in Article 26 (wording of 17 May 2001) of the Law
on Gaming, it is clear that it has changed in essence: Article 26
(wording of 4 July 2003) of the Law on Gaming inter alia
consolidates the list of the grounds for dismissal from office of
a member of the State Gaming Control Commission, prescribes that
a member of the State Gaming Control Commission may only hold
office in the State Gaming Control Commission and may also be
engaged in scientific research or teaching activity, and
indicates that certain relations connected with the activities of
a member of the State Gaming Control Commission are regulated by
the Labour Code and other legal acts, and that the work is
remunerated in accordance with the procedure established in the
Law on the Remuneration of State Politicians, Judges, and State
Officials.
8. At the time when disputed Decree of the President of the
Republic No. 1K-988 of 29 May 2007, whereby P. Navikas was
dismissed from the office of a member of the State Gaming Control
Commission, was adopted, the relations connected with the
activities of a member of the State Gaming Control Commission,
inter alia his liability, were (and at present are) also
regulated by other laws, inter alia the Law on the Adjustment of
Public and Private Interests in the State Service, the Republic
of Lithuania Law on the Remuneration of State Politicians,
Judges, and State Officials, and the Republic of Lithuania Law on
the State Service.
8.1. Article 1 of the Law on the Adjustment of Public and
Private Interests in the State Service (wording of 17 February
2000 with subsequent amendments and supplements) provides that
the purpose of this law is adjustment of private interests of
persons employed in the state service and public interests of
society, ensuring that holders of public office make decisions
solely in terms of the public interests, securing the
impartiality of the decisions being taken and preventing the
emergence and spread of corruption in the state service.
Article 3 of the Law on the Adjustment of Public and Private
Interests in the State Service (wording of 17 February 2000)
inter alia provides for the following obligations of persons
working in the state service: to discharge their service-related
duties impartially, honestly and properly; to avoid conflict of
interests in accordance with the procedure and measures laid down
by laws; to refrain from using the official position for personal
gains.
Paragraph 1 (wording of 17 February 2000) of Article 13 of
this law prescribes that the person in the state service may not
use his duties, powers and name in order to exert influence upon
the decision of other persons, which would create the conflict of
interests.
Paragraph 1 (wording of 22 June 2006) of Article 2 of the
Law on the Adjustment of Public and Private Interests in the
State Service prescribed that persons in the state service are
state politicians, state officials, state servants, servicemen of
professional military service who carry out operational
activities, officers of professional military service, other
persons who are employed at institutions of state power and state
administration, at municipal, judicial, law enforcement, state
control and supervision institutions, also at any comparable
institutions and who perform the functions of a representative of
public authority or have administrative powers vested in them,
also persons who are employed at state and municipal enterprises
or budgetary establishments and who have administrative powers
vested in them, as well as persons who are employed at public
establishments which are financed from the Lithuanian national or
municipal budgets and funds and who have administrative powers
vested in them.
Thus, at the time when the disputed decree of the President
of the Republic was adopted, the Law on the Adjustment of Public
and Private Interests in the State Service was applied to state
officials to its full extent. It needs to be noted that the
provision of Paragraph 1 of Article 2 of the Law on the
Adjustment of Public and Private Interests in the State Service
that persons in the state service are inter alia state officials
is also valid at the time of the consideration of the
constitutional justice case at issue. Consequently, the Law on
the Adjustment of Public and Private Interests in the State
Service is applied to state officials at present as well.
8.2. Paragraph 3 (wording of 19 July 2006) of Article 2 of
the Law on the Remuneration of State Politicians, Judges, and
State Officials inter alia prescribes that:
"The amounts of remuneration for work and the conditions of
payment thereof, set by this Law, shall also apply to those state
officials to whom the Republic of Lithuania Law on the State
Service does not apply (hereinafter referred to as "state
officials"):
<...>
9) the chairpersons, deputy chairpersons and members of the
state (standing) commissions and councils, who are appointed
under special laws by the Seimas, the President of the Republic,
others."
Thus, under the said law, chairpersons and members of
commissions who are appointed by the President of the Republic
are to be ascribed to state officials.
8.3. In this context it needs to be mentioned that under
Paragraph 3 (wording of 13 July 2004) of Article 4 of the Law on
the State Service, state officials appointed by the President of
the Republic were subject to Paragraph 3 of Article 33 of this
law regulating inter alia compensation for the damage inflicted
by decisions of a collegiate state institution upon this
institution and Article 36 thereof regulating the annual leave
(save those state officials whose annual leave is regulated by
special laws). It needs to be noted that the provision of
Paragraph 3 of Article 4 of the Law on the State Service, which
stipulates that state officials appointed by the President of the
Republic are subject to Paragraph 3 of Article 33 of this law
regulating inter alia compensation for the damage inflicted by
decisions of a collegiate state institution upon this institution
as well as Article 36 regulating the annual leave (save those
state officials whose annual leave is regulated by special laws),
is also valid at the time of the consideration of the
constitutional justice case at issue. Consequently, the Law on
the State Service, save the provisions thereof concerning
compensation for the damage and granting of the annual leave, was
not (and is not) applied to state officials appointed by the
President of the Republic.
It has been mentioned that Paragraph 1 of Article 26
(wording of 4 July 2003) of the Law on Gaming prescribes that the
Control Commission shall comprise 6 persons and that the
President of the Republic, the Speaker of the Seimas, and the
Prime Minister shall each appoint two persons to the Control
Commission for a term of five years and shall dismiss the persons
appointed.
8.4. Thus, summing up the discussed legal regulation, it
needs to be held that a member of the State Gaming Control
Commission is a state official who is appointed and dismissed by
the President of the Republic in accordance with the special
lawthe Law on Gamingand who was (and is), to the full extent,
subject to inter alia the Law on the Adjustment of Public and
Private Interests in the State Service.
9. Article 23 "The Chief Official Ethics Commission"
(wording of 17 February 2000 with the amendments and/or
supplements made till 1 July 2008) of the Law on the Adjustment
of Public and Private Interests in the State Service, which was
valid at the time of the adoption of disputed decree of the
President of the Republic No. 1K-988 of 29 May 2007, whereby P.
Navikas was dismissed from the office of a member of the State
Gaming Control Commission, inter alia prescribed: the Chief
Official Ethics Commission shall be comprised of 5 persons
(Paragraph 1 (wording of 17 February 2000)); the President of the
Republic, the Seimas Speaker, the Prime Minister, the President
of the Supreme Court of Lithuania, and the Lithuanian Lawyers'
Association shall each appoint one person as a member of the
Chief Official Ethics Commission. A person appointed must be of
impeccable reputation. The composition of the Chief Official
Ethics Commission shall be approved by the Seimas (Paragraph 2
(wording of 5 July 2005)); the Chief Official Ethics Commission
is accountable to the Seimas (Paragraph 5 (wording of 5 July
2005)); the Chief Official Ethics Commission shall bring an
action in court for the termination of state service relations
with persons in the state service due to violation of the
requirements of this law or the termination or invalidation of
employment contracts and transactions concluded in violation of
the requirements of this law (Item 2 of Paragraph 6 (wording of 6
November 2003)) and it may apply to the President of the Republic
regarding the dismissal of officials appointed by him or propose
that the investigation would be initiated if the reasoned
information has been obtained that the officials appointed by the
President of the Republic do not comply with the requirements of
this law (Item 4 of Paragraph 6 (wording of 6 November 2003));
complaints may be lodged against decisions of the Chief Official
Ethics Commission with the administrative court within one month
after the day of the announcement of the decision or the
delivering of its copy to the person concerned (Paragraph 7
(wording of 6 November 2003)); the decision of the Chief Official
Ethics Commission regarding the violation of the Law on the
Adjustment of Public and Private Interests in the State Service,
against which no complaints have been lodged and which has not
been suspended or repealed in the manner prescribed by laws,
shall be grounds, in accordance with the procedure laid down by
legal acts, to impose a service-related (disciplinary) penalty on
the person who has violated the requirements of this law as well
as to apply other restrictions and prohibitions established in
Article 15 of this law (Paragraph 8 (wording of 6 November
2003)).
10. Thus, under Article 23 (wording of 17 February 2000 with
the amendments and/or supplements made till 1 July 2008) of the
Law on the Adjustment of Public and Private Interests in the
State Service, state officials, inter alia members of the State
Gaming Control Commission, who have violated the requirements of
this law, could incur service-related (disciplinary) penalties,
inter alia the dismissal of the official from office.
11. Alongside, it needs to be mentioned that any types of
service-related (disciplinary) penalties were not (and are not)
enumerated in the Law on the Adjustment of Public and Private
Interests in the State Service, they are specified in the Law on
the State Service and the Labour Code.
Paragraph 3 of Article 29 "Service-related Penalties"
(wording 4 July 2003) of the Law on the State Service prescribes
that for service-related transgressions one of the following
service-related penalties may be imposed on a state servant: 1) a
note of warning; 2) a reprimand; 3) a severe reprimand; 4)
dismissal from office.
Article 237 "Disciplinary Penalties" (wording of 4 June
2002) of the Labour Code prescribes that for violation of work
discipline the following disciplinary penalties may be imposed:
1) a note of warning; 2) a reprimand; 3) dismissal from work
(Paragraph 3 of Article 136 of the Code); laws and other
normative legal acts regulating work discipline may also
establish other disciplinary penalties to certain categories of
employees.
Paragraph 1 (wording of 4 June 2002) of Article 11 of the
Labour Code provides that: "In case there are contradictions
between this norm of the Code and the provisions of other law or
normative legal act, the norm of this Code shall be applied."
12. Thus, under both the Law on the State Service and the
Labour Code, dismissal from office (work) is one of the types of
penalties.
13. Summing up the legal regulation of relations connected
with the liability of a member of the State Gaming Control
Commission, which was valid at the time of the adoption of the
disputed decree of the President of the Republic, it needs to be
noted that a member of the State Gaming Control Commission could
be dismissed from office not only on the grounds specified in
Paragraph 4 of Article 26 (wording of 6 November 2003) of the Law
on Gaming, but also on the grounds that arise from Item 4
(wording of 6 November 2003) of Paragraph 6 and Paragraph 8
(wording of 6 November 2003) of Article 23 of the Law on the
Adjustment of Public and Private Interests in the State Service.
14. It has been mentioned that the Vilnius Regional
Administrative Court, a petitioner, requests inter alia to
investigate whether Decree of the President of the Republic No.
1K-988, whereby P. Navikas was dismissed from the office of a
member of the State Gaming Control Commission, is not in conflict
with Item 10 of Article 84 of the Constitution.
15. Item 10 of Article 84 of the Constitution provides that
the President of the Republic shall appoint and dismiss,
according to the established procedure, state officials provided
for by laws.
15.1. In the context of the constitutional justice case at
issue it needs to be noted that the powers of the President of
the Republic entrenched in Item 10 of Article 84 of the
Constitution mean that the legislator is allowed to establish as
to what state officials shall be appointed and dismissed by the
President of the Republic, also that the legislator must
establish the grounds for appointment and dismissal of such
officials from office. Under Item 10 of Article 84 of the
Constitution, requirements set for state officials who are
appointed by the President of the Republic must be established in
laws, inter alia requirements of ethical and moral nature: the
state official must be of impeccable reputation; the conduct of
the state official, both that related with direct performance of
his duties and that related with his activities which are not
connected with his duties, must not discredit the name of the
state official and the authority of the state institution wherein
he performs his duties.
15.2. It needs to be held that the President of the
Republic, while implementing the powers entrenched in Item 10 of
Article 84 of the Constitution to appoint state officials
provided for by laws, may choose (by following the requirements
set out in laws for state officials who are appointed by him) as
to what person is to be appointed as a state official, while,
upon the proposal, according to the established procedure, of
corresponding institutions or officials that a certain person be
appointed as a state official, decide whether that person is
suitable to hold the corresponding office of a state official, to
which, under law, one is appointed by the President of the
Republic. The legislator, while establishing the grounds for
dismissal of the said state officials from office, must pay heed
to the constitutional principle of a state under the rule of law,
inter alia meaning that state officials who violate the
Constitution and laws, who raise personal or group interests
above the interests of society, and discredit state power by
their actions must be brought to legal liability under the
procedure established by laws. The Constitution does not tolerate
any such legal and factual situation where the state officials
and other persons adopting decisions important to the society and
the state, who, in accordance with the established procedure, are
recognised not to avoid the contraposition of public and private
interests, to act with objectives that are incompatible with
public interests, to raise personal or group interests above the
interests of society and the state, and to discredit the name of
the official by their actions, would not be brought to legal
liability, inter alia dismissed from the office held.
15.3. Item 10 of Article 84 of the Constitution also means
that the President of the Republic, while appointing and
dismissing state officials provided for by laws, must follow the
grounds for dismissal of state officials which are laid down in
laws as well as the procedure for appointment and dismissal of
state officials which is established in laws and/or other legal
acts. The same requirements also arise from Paragraph 2 of
Article 5 of the Constitution, wherein it is established that the
scope of power shall be limited by the Constitution, Paragraph 2
of Article 77 of the Constitution, wherein inter alia it is
established that the President of the Republic shall perform
everything with which he is charged by the Constitution and laws,
as well as the constitutional principle of a state under the rule
of law, which implies the hierarchy of legal acts.
16. In this context it needs to be noted that in a
democratic state under the rule of law all state institutions and
officials must follow the Constitution and laws. The
responsibility of state power for the public is inseparable from
the constitutional principle of a state under the rule of law;
the responsibility is constitutionally consolidated by
establishing that state institutions serve the people, that the
scope of power is limited by the Constitution, that the state
officials who violate the Constitution and laws, who raise
personal or group interests above the interests of society, by
their actions discredit state power, may be removed from office
under the procedure established in laws (Constitutional Court
conclusion of 31 March 2004).
Also it needs to be noted that, according to the
Constitution, the legislator has a duty to establish by legal
acts such legal regulation which would ensure that state
officials, who perform their functions while exercising state
power, and all the persons, who make decisions important to the
society and the state, are able to properly execute their
authority, so that contraposition of public and private interests
would be avoided, that no legal conditions would be created for
state officials, who perform their functions while exercising
state power, and all the persons, who make decisions important to
the society and the state, to act in the private or group
interests, instead of the interests of the Nation and the State
of Lithuania, and use their status for the benefit of their own,
their close relatives or other persons, so that it might be
possible to effectively control how state officials, who perform
their functions while exercising state power, and all the
persons, who make decisions important to the society and the
state, follow the said requirements, and that the above-mentioned
state officials and other persons be held liable pursuant to the
Constitution and law in case they do not follow these
requirements (Constitutional Court rulings of 1 July 2004 and 13
December 2004).
State officials must enjoy the confidence of the citizens
the state community (Constitutional Court ruling of 25 May 2004).
However, in order that the citizensthe state communitycould
reasonably trust the state officials, that it would be possible
to ascertain that all the state institutions and all the state
officials follow the Constitution as well as law and obey them,
while those who do not obey the Constitution and law would not
hold the office for which the confidence of the citizensthe
state communityis needed, a public democratic control over the
activity of the state officials and their accountability to the
society comprising inter alia a possibility to remove from office
the state officials who violate the Constitution and law, who
bring their personal interests or the interests of the group
above the interests of society, or who discredit state authority
by their actions, is needed (Constitutional Court rulings of 25
May 2004, 1 July 2004, and 13 December 2004).
17. The Constitutional Court has held more than once that
one of the essential elements of the principle of a state under
the rule of law established in the Constitution is legal
certainty and legal clarity. The imperative of legal certainty
and legal clarity implies certain obligatory requirements for the
legal regulation: it must be clear and harmonious, legal norms
must be formulated precisely, they may not contain ambiguities
(Constitutional Court rulings of 30 May 2003, 26 January 2004, 24
December 2008, and 22 June 2009, as well as decision of 20 April
2010).
It needs to be especially emphasised that the legislator,
while regulating relations connected with appointment and
dismissal from office of persons, inter alia state officials,
must establish clear and harmonious legal regulation so that it
would not be construed in a varied manner.
18. In this context it needs to be noted that, in its ruling
of 13 December 2004, the Constitutional Court held that the
public interest and not the private interest must dominate in the
state service; in the state service the conflict between public
and private interests must be avoided and no pre-conditions for
appearance of such conflicts should be created; the opportunities
provided by the state service should not be used for private
benefit.
19. While deciding whether Decree of the President of the
Republic No. 1K-988 "On the Dismissal of a Member of the State
Gaming Control Commission" of 29 May 2007, whereby P. Navikas, a
member of the State Gaming Control Commission, according to the
petitioner, was dismissed from office on the grounds not provided
for in the Law on Gaming, is not in conflict with Item 10 of
Article 84 of the Constitution and Paragraph 4 of Article 26
(wording of 4 July 2003) of the Law on Gaming, it is important
also to elucidate whether the President of the Republic was
allowed to dismiss the said official under the Constitution and
laws.
19.1. From the provisions of the disputed decree of the
President of the Republic it is clear that the President of the
Republic passed this decree by taking into account the decision
of the Chief Official Ethics Commission and the ruling of the
Supreme Administrative Court of Lithuania.
19.2. From the material of the administrative case
considered by the Vilnius Regional Administrative Court wherein
it was decided to apply to the Constitutional Court, it is clear
that, in its ruling of 24 May 2007, the Supreme Administrative
Court of Lithuania, in the presence of P. Navikas, the
petitioner, having considered the administrative case subsequent
to his appeal, in the public court hearing, held that by the
decision of the Chief Official Ethics Commission P. Navikas had
been recognised lawfully and fairly as having violated the
provisions of Paragraph 2 of Article 7 and Paragraph 1 of Article
13 of the Law on the Adjustment of Public and Private Interests
in the State Service (ruling of the Supreme Administrative Court
of Lithuania of 24 May 2007 in administrative case No. A-8 -
524/2007).
Thus, P. Navikas was recognised as having violated the
provisions of Paragraph 2 of Article 7 and Paragraph 1 of Article
13 of the Law on the Adjustment of Public and Private Interests
in the State Service by the decision of the Chief Official Ethics
Commission, which, by an effective ruling of the Supreme
Administrative Court of Lithuania of 24 May 2007, was left to be
in force.
The facts established by an effective court decision are res
judicata, they have prejudicial meaning, and, when deciding the
constitutional justice case at issue, they are not proved anew.
Thus, in this constitutional justice case it will not be
investigated whether P. Navikas, before the President of the
Republic issued the disputed decree, had committed the violations
of the provisions of the Law on the Adjustment of Public and
Private Interests in the State Service, for which he was
dismissed from the office of a member of the State Gaming Control
Commission.
19.3. In this Constitutional Court ruling it has been held
that the powers of the President of the Republic established in
Item 10 of Article 84 of the Constitution mean that the
legislator is allowed to establish as to what state officials
shall be appointed and dismissed by the President of the
Republic, also that the legislator must establish the grounds for
appointment and dismissal from office of such officials.
It has been mentioned that Article 26 (wording of 4 July
2003) of the Law on Gaming regulates inter alia the grounds for
dismissal from office of a member of the State Gaming Control
Commission. However, such legal regulation in itself does not
mean that certain relations connected with the aforementioned
relations may not be regulated altogether by other laws as well.
In this ruling it has been held that a member of the State
Gaming Control Commission is a state official who is appointed by
the President of the Republic in accordance with a special law
the Law on Gamingand who was (and is), to the full extent,
subject to inter alia the Law on the Adjustment of Public and
Private Interests in the State Service.
It has been mentioned that in the disputed decree of the
President of the Republic it is indicated that the President of
the Republic has passed this decree by following Item 10 of
Article 84 of the Constitution as well as by taking into account
the decision of the Chief Official Ethics Commission No. KS-15,
whereby P. Navikas was recognised as having violated the
requirements of the Law on the Adjustment of Public and Private
Interests in the State Service, and the ruling of the Supreme
Administrative Court of Lithuania, whereby decision of the Chief
Official Ethics Commission No. KS-15 was left to be in force.
19.4. It has been held in this Constitutional Court ruling
that, under Item 10 of Article 84 of the Constitution, the
requirements set for state officials who are appointed by the
President of the Republic must be established in laws, inter alia
the requirements of ethical and moral nature: the state official
must be of impeccable reputation; the conduct of the state
official, both that related with direct performance of his duties
and that related with his activities which are not connected with
his duties, must not discredit the name of the state official and
the authority of the state institution wherein he performs his
duties. It has also been held that the Constitution does not
tolerate any such legal and factual situation where the state
officials and other persons adopting decisions important to the
society and the state, who, in accordance with the established
procedure, are recognised as having not avoided the
contraposition of public and private interests, acted with
objectives that are incompatible with public interests, raised
personal or group interests above the interests of the society
and the state, and discredited the name of the official by their
actions, would not be brought to legal liability, inter alia
dismissed from the office held.
19.5. It has been mentioned that under Article 23 (wording
of 17 February 2000 with the amendments and/or supplements made
till 1 July 2008) of the Law on the Adjustment of Public and
Private Interests in the State Service, the state officials who
have violated the requirements of this law could incur service-
related (disciplinary) penalties, inter alia the dismissal of the
official from office.
It has also been mentioned that a member of the State Gaming
Control Commission could be dismissed from office not only on the
grounds specified in Paragraph 4 of Article 26 (wording of 6
November 2003) of the Law on Gaming, but also on the grounds that
arise from Item 4 (wording of 6 November 2003) of Paragraph 6 and
Paragraph 8 (wording of 6 November 2003) of Article 23 of the Law
on the Adjustment of Public and Private Interests in the State
Service.
19.6. Accordingly, the President of the Republic had the
discretion to assess whether the violations of the Law on the
Adjustment of Public and Private Interests in the State Service
committed by P. Navikas, who had been appointed a member of the
State Gaming Control Commission by the President of the Republic,
were such for which the most severe service-related
(disciplinary) penaltydismissal from officecould be imposed.
20. It needs to be noted that the aforesaid provision of
Article 23 of the Law on the Adjustment of Public and Private
Interests in the State Service that the Chief Official Ethics
Commission may apply to the President of the Republic regarding
the dismissal of the officials appointed by him (Item 4 of
Paragraph 6 (wording of 6 November 2003)) cannot be construed as
meaning that the President of the Republic, while deciding
whether to dismiss an official appointed by him from the
corresponding office in the case when the violation of the Law on
the Adjustment of Public and Private Interests in the State
Service committed by this official is established by the decision
of the Chief Official Ethics Commission (all the more so that
such establishment has been verified and left to be in force by
the decision of the corresponding court, which is final and not
subject to appeal), is bound by the application by the said
commission.
In the context of the constitutional justice case at issue
it needs to be noted that in the case of absence of the said
application by the Chief Official Ethics Commission the President
of the Republic has also the powers to dismiss the official
appointed by him from office, who has been recognised as having
violated the requirements of the Law on the Adjustment of Public
and Private Interests in the State Service. A different
construction of the provisions of the aforesaid law, which are
related with the powers of the President of the Republic to
dismiss the official appointed by him from office, who has been
recognised as having violated the requirements of the Law on the
Adjustment of Public and Private Interests in the State Service,
would not be in line with the Constitution, inter alia with the
constitutional empowerment of the President of the Republic,
according to the established procedure, to appoint and dismiss
the state officials provided for by laws.
21. As mentioned, the Constitution does not tolerate any
such legal and factual situation where the state officials and
other persons adopting decisions important to the society and the
state, who, in accordance with the established procedure, are
recognised not to avoid the contraposition of public and private
interests, to act with objectives that are incompatible with
public interests, to raise personal or group interests above the
interests of the society and the state, and to discredit the name
of the official by their actions, would not be brought to legal
liability, inter alia dismissed from the office held.
22. It needs to be held that the fact that in the disputed
decree of the President of the Republic it is indicated that it
has been passed by taking into account the decision of the Chief
Official Ethics Commission, whereby P. Navikas was recognised as
having violated the requirements of the Law on the Adjustment of
Public and Private Interests in the State Service, and the ruling
of the Supreme Administrative Court of Lithuania, whereby the
decision of the Chief Official Ethics Commission was left to be
in force, means that P. Navikas was dismissed from the office of
a member of the State Gaming Control Commission on the grounds
that are established in Article 23 (wording of 17 February 2000
with the amendments and/or supplements made till 1 July 2008) of
the Law on the Adjustment of Public and Private Interests in the
State Service.
The mere fact that Paragraph 4 of Article 26 (wording of 6
November 2003) of the Law on Gaming does not prescribe that a
member of the State Gaming Control Commission may be dismissed
from office on the grounds established in other laws does not
mean that other laws may not provide also for the grounds for
dismissal of a member of the State Gaming Control Commission from
office other than those prescribed in Paragraph 4 of Article 26
(wording of 6 November 2003) of the Law on Gaming. Such grounds
arise from Article 23 (wording of 17 February 2000 with the
amendments and/or supplements made till 1 July 2008) of the Law
on the Adjustment of Public and Private Interests in the State
Service.
23. Taking account of the arguments set forth it needs to be
held that Decree of the President of the Republic No. 1K-988 of
29 May 2007, whereby P. Navikas was dismissed from the office of
a member of the State Gaming Control Commission, is not in
conflict with Paragraph 4 of Article 26 (wording of 4 July 2003)
of the Law on Gaming.
24. Having held that P. Navikas was dismissed from the
office of a member of the State Gaming Control Commission not on
the grounds of the Law on Gaming, but those established in the
Law on the Adjustment of Public and Private Interests in the
State Service, there are no legal arguments to hold that Decree
of the President of the Republic No. 1K-988 of 29 May 2007 is in
conflict with Item 10 of Article 84 of the Constitution.
Conforming to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Articles 1, 53, 54, 55, and 56 of
the Law on the Constitutional Court of the Republic of Lithuania,
the Constitutional Court of the Republic of Lithuania has passed
the following
ruling:
1. To recognise that the provision "Investigation of the
activities of the President of the Republic <...>, the Government
(as a collegial body) <...> shall be outside the jurisdiction of
administrative courts" of Paragraph 2 (wording of 18 December
2007; Official Gazette Valstybės žinios, 2007, No. 140-5758) of
Article 16 of the Republic of Lithuania Law on the Proceedings of
Administrative Cases is not in conflict with the Constitution of
the Republic of Lithuania.
2. To recognise that Decree of the President of the Republic
of Lithuania No. 1K-988 "On the Dismissal of a Member of the
State Gaming Control Commission" of 29 May 2007 (Official Gazette
Valstybės žinios, 2007, No. 61-2347) is not in conflict with
Paragraph 4 of Article 26 (wording of 4 July 2003) of the
Republic of Lithuania Law on Gaming and the Constitution of the
Republic of Lithuania.
This ruling of the Constitutional Court is final and not
subject to appeal.
The ruling is promulgated in the name of the Republic of
Lithuania.
Justices of the Constitutional Court: Armanas Abramavičius
Toma Birmontienė
Pranas Kuconis
Kęstutis Lapinskas
Zenonas Namavičius
Ramutė Ruškytė
Egidijus Šileikis
Algirdas Taminskas
Romualdas Kęstutis Urbaitis