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On dismissing the instituted legal proceedings

Case No. 1/96

 THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA

 D E C I S I O N

On the petition of a group of members of the Seimas requesting an investigation into whether the part of the Decree of the President of the Republic (No. 15) “On the Composition of the Government of the Republic of Lithuania” of 16 March 1993 by which Romasis Vaitekūnas is confirmed the Minister of the Interior is in compliance with the Constitution of the Republic of Lithuania

 29 May 1996, Vilnius

The Constitutional Court of the Republic of Lithuania, composed of the justices of the Constitutional Court: Egidijus Jarašiūnas, Kęstutis Lapinskas, Zigmas Levickis, Augustinas Normantas, Vladas Pavilonis, Jonas Prapiestis, Teodora Staugaitienė, and Juozas Žilys

The court reporter—Daiva Pitrėnaitė

The Constitutional Court of the Republic of Lithuania, in its procedural sitting, discussed the petition of a group of members of the Seimas, the petitioner, requesting an investigation into whether the part of the Decree of the President of the Republic (No. 15) “On the Composition of the Government of the Republic of Lithuania” of 16 March 1993 by which Romasis Vaitekūnas is confirmed the Minister of the Interior is in compliance with Article 141 of the Constitution.

The Constitutional Court

has established:

A group of members of the Seimas, the petitioner, has applied to the Constitutional Court with a petition requesting an investigation into whether the part of the Decree of the President of the Republic (No. 15) “On the Composition of the Government of the Republic of Lithuania” of 16 March 1993 by which Romasis Vaitekūnas is confirmed the Minister of the Interior is in compliance with the Constitution.

The petitioner grounds its request on the following arguments.

Romasis Vaitekūnas is an officer of the internal service. Before his appointment the Minister of the Interior, he was a senior commissar of the Central Police Commissariat of the city of Šiauliai. By decree No. 349p of 12 May 1993 he was conferred the rank of general.

According to Article 141 of the Constitution, officers of the national defence, the police and the internal service may not hold elected or appointed posts in State civil service. Therefore, in the opinion of the petitioner, the appointment of the officer the Minister of the Interior contradicts Article 141 of the Constitution.

The Constitutional Court

holds that:

Article 141 of the Constitution reads: “Soldiers in active military service or alternative service, officers of the national defence, the police and the internal service, non-commissioned officers, re-enlistees who have not retired from service, and other paid officials of military and security services may not be members of the Seimas or of municipal councils. They may not hold elective or appointive posts in State civil service, and may not take part in the activities of political parties and political organisations.”

It is established in Article 2 of the Republic of Lithuania’s Law on Functionaries (Official Gazette Valstybės žinios, 1995, No. 3-759) that the employees who are directly or indirectly elected by citizens of the Republic of Lithuania, or appointed to fulfil a political programme by the legislative or executive powers, or by self-government institutions, shall be politicians. The President of the Republic of Lithuania, the members of the Seimas, the Prime Minister and ministers shall be politicians of the State. The members of municipal councils shall be politicians of municipalities.

It is prescribed in Article 3 of the said law that the employees (except for those mentioned in Article 2) who are paid remuneration from the funds of the State or municipal budget shall be considered State and municipal servants.

The nature of institutes of democratic authority is that all persons who implement the political will of the people are controlled in varied forms so that this will would not be distorted. While performing such control, the activity of these officials is inspected. In addition, the independence of the activity of persons who fulfil political programmes is of crucial importance.

It is necessary to emphasise that the Government is the part of State authority which carries out a political programme. It is accountable to the Seimas, while the ministers—to the Seimas, the President of the Republic, and are under direct subordination of the Prime Minister.

The relations of strict subordination and those of other regulations are of great importance to soldiers in active military service, officers of the national defence, the internal service, non-commissioned officers, officers of security services and other officials mentioned in Article 141 of the Constitution. It is established in Paragraph 2 of Article 6 of the Republic of Lithuania’s Law on Police (Official Gazette Valstybės žinios, 1991, Nos. 2-22, 16-410; 1994, Nos. 53-994, 82-1547; 1995, No. 92-2056) that police officials must obey the orders of the police officials of superior rank. One of the components of the police officials’ oath is conscientious execution of the laws of the Republic of Lithuania and the orders of his superiors.

Article 3 establishing the principles of the interior service of the Republic of Lithuania’s Law on the Interior Service (Official Gazette Valstybės žinios, 1992, No. 3-34) indicates one-man management which is combined with collectiveness. Therefore, there may emerge an internal collision between the necessity to carry out the functions of State authority and perform the requirements of the regulations in the activity of these and other persons mentioned in Article 141 of the Constitution. This may be one reason why the functioning of democratic institutions could be deranged.

As regards this aspect, the guarantees of democracy are also emphasised by the fact that the norm of Paragraph 3 of Article 140 of the Constitution contains an imperative prohibition for the Minister of National Defence: “The Minister of National Defence may not be a serviceman who has not yet retired from active service.” Thus, there are no preconditions for asserting that a soldier, the officer of police, the internal service or any other person indicated in Article 141 of the Constitution may be a minister or hold other positions pointed out in this article without having retired from active service.

By the impugned decree of the President of the Republic, an officer of the internal service who has not retired from active service was appointed the Minister of the Interior. Therefore, taking account of the reasoning and arguments set forth, there were grounds to assert that the part of the Decree of the President of the Republic (No. 15) “On the Composition of the Government of the Republic of Lithuania” of 16 March 1993 concerning the confirmation the Minister of the Interior of an officer of the interior service who had not retired from active service contradicted Article 141 of the Constitution. However, the President of the Republic by his decree No. 22 of 29 January 1996 (Official Gazette Valstybės žinios, 1996, No. 10-239) dismissed Romasis Vaitekūnas from the position of the Minister of the Interior and consequently the impugned part of the legal act ceased to be legally valid.

This is a ground to take a decision to dismiss the legal proceedings commenced in this case.

Conforming to Paragraph 4 of Article 69, and Article 28 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania adopts the following

decision:

To dismiss the legal proceedings commenced in this case.

Justices of the Constitutional Court:

 Egidijus Jarašiūnas                           Kęstutis Lapinskas                           Zigmas Levickis

 Augustinas Normantas                    Vladas Pavilonis                              Jonas Prapiestis

 Teodora Staugaitienė                       Juozas Žilys